Page images


Superior Courts : Queen's Bench.

cept as to the extent to which the doctrine in nion, though the state of that case did not that case was applicel in The King v. Paty. require us fully to declare it. Passages of my In that case, three judges said that a commit- judgment in that case have been referred to in ment for contempt was not to be questioned, argument, as tending to show that if, on the even if the cause of the commitmeni, as stated, committal for contempt, there should be shown was not sufficient. Lord Holt, who differed from to us some cause clearly insufficient and illegal, the other three judges in the opinion as to the such as fishing in the pool of a member, or sufficiency of the cause of contempt as stated in other things of that description, such statement that case, did not question the doctrine, that would be open to revision. That doctrine that though the facts were not set forth, the allegation no statement need be made I admit to have that ihe commitment was for contempt would be asserted, but that does not in the least contrasufficient, and he declared that in such a case he dict the general proposition. Reference has should not feel himnself authorised to ask ques. been made to the case of Lord Shaftesbury, tions and seek into the motives for which the but when it is said that that case is the foun. committal had taken place. So that it seems dation of all the rest, and that the judges in all a striking fact in favour of this doctrine that subsequent cases were controlled in their opi. Lord Holt, who disputed the susficiency of the nion by that case, I must say that I think that facts in that case, never once said that the facts statement to be erroneous. Every Court, of themselves required to be set out. Another course, refers to the latest decision, but there authority is Alurray's case, where the warrant is something in the nature of the Houses of was in the same terms, and there the warrant Parliainent which does invest them with this was held good. Then comes the case of Bure power, and the Shaftesbury case happened to dett v. Abbott, in 1810. There is not any case be the most recent instance in which it was which ever appeared on the books which is en-exercised, and to that case, therefore, reference titled to such great weight as that, whether in was most frequently made. Instances have respect of the great learning of the judges or been properly brought before me in argument of the counsel, or of the nuinber and frequency of acts of illegality committed by the Crown, of the discussions in and out of Parliament, which the judges were bound to set aside, and and the exiraordinary caution of the judges, if they had not done so they would bave comand the great light which must bave been mitted a higle offence towards the country, thrown in all possible quarters on the subject, and would have justly forfeited their reputation. enabling them to avail theinselves of the fullest But there are no cases in which the Crown has information upon it. In that case there is a riglits, where those rights cannot be enforced passage in Lord Ellenborough's judgment which by law. The prerogative of the Crown is a is most remarkable. He says something like part of the law, and the Crown has its recogthis, for I have not the book by me at this nised oslicers, who must enforce its rights. moment-"I am pressed with an extreme case, Those rights are therefore well defined by law. and am asked whether it is possible that the A deliberative assembly is in a different posiHouse of Commons should go to such a length? lion. It must have the power to vindicate its My answer is, that it is not decent to suppose own privileges by its own ineans, and it cannot such a case; but what occurs to me on the exercise those ineans but by having recourse subject is this that if either house should com- to the process of contempi. In Burdett v. init for contempt, without informing me on Abbott that privilege of committing for conwhat ground that commitment is made, Itempt was not pretended to be confineil to the should not feel justified in revising such a de- two Houses, but was said to belong to every cision. If, on the other hand, they stated to Court in Westminster Hall, and was therefore me such a ground as convinced me that they one which the highest body in the land could had no right to do the act, I should know how not possibly be deprived of. There is no doubt to do my duty." That is a plain doctrine. If without such a poiver tbey would be obstructed they state a general contempt, this Court is in their proceedings, and would be put down, bound by the statement; but if they enter into if they could not of themselves judge of the particulars, Lord Ellenborongh clearly laid it circumstances wbich called it into exercise. down, and Mr. Justice Bayley followed him in Without entering into small discussions of a the declaration, that the judges would act on verbal nature, whether the House of Commons the principle which Lord Holt stated in Paty's is a Court, I think that its right to commit is case, that if particular facts were stated which clçar. I acknowledge its authority, and am were insufficient to support the commitment, aware that the House of Lords, when sitting on they would order the release of the party com- writs of error from us, sit as and for the whole mitted. But then there is this docirine inost body; and I deem that the functions of neither clearly declared that, in case of a statement of assembly can go on properly unless each is a cause of committal made in general terms, properly protected in the exercise of thein. this Court is bound by it. The subsequent There inust be certain principles whiel no case of Sir J. Hobhouse was to the same effect. Court can question, which are necessary for I feel bound to say, with respect to ourselves, the protection of one against the other. This that there is not one of us who expressed an was brought out in the most singular manner opinion on the late occasion of Stockdale v. by the test of the question put by Lord Eldon Hansard, who did not intimate the same opi-to the judges in the House of Lorils, h in the & I Wils, 299,

h 5 Dow. 165.


Superior Courts : Queen's Bench; Q. B. Practice Court; Exchequer. 301 case of Burdett v. Abbott. When his Lordship say, we will make an insufficient statement of came to consider the case, which was one facts in order to keep the Court in the dark. where Sir Francis Burdett had sued the speaker I know that in Bushell's case the Recorder for sending bim to prison on a warrant eoin. Jeffries might have had recourse to such a mitting him for contempt, lis Lordship put the line of conduct, but I will not believe that it question as to the right of the Court of Com- has been or will be again adopted This, mon Pleas to make such a committal, and, however, has been supposed in the course of supposing that no reason was stated on the the argument; but I cannot think that such face of it, he asked whether this Court would will ever be the course of a great public bɔdy, inquire into such a committal, and the sole amenable to public opinion. In conclusion, i answer of all the judges was, that such a thing must say that I do nct see any ground on which could not be done, and Lord Eldon with the these gentlemen should be released from their concurrence of Lord Erskine, and without a imprisonment. According to all the authoridissentient voice raised in the House of Lords, ties, the return seems to ine to be sufficient; put that case on the analogy between the and I am hound, by that law which alone i House and a Court of Westminster Hall, and can look at, and by which I am required to decided it on that analogy. We must pre- declare that the return is sufficient, and the sume that whatever any Court, and much more the warrant set out on the face of it is goud. either House of Parliament, takes on itself Mr. Justice Littledale expressed his full solemnly, and under the responsibility of great concurrence with Lord Denman both as to legal anthority, to declare to be a contempt, the propriety of the judgment in Stockdale v. that that is a coutempt. Some affidavits Hansard, and as to the reasons fur declaring bave been proluced in this case, aud it has the return to this writ of habeas corpus susibeen intimated that they can be used, because cient; as did also Mr. Justice Williams and this is not a criminal case. I do not think that Mr. Justice Coleridge. that is the meaning of the 56th Geo. 3. Any Sherit's remanded. H. T. 1840. Q B. F.J. person complaining of being imprisonerl, has always brought his case before us by affidavit, and the return to the writ has shewn whether

Queen's Bench Practice Court. he was lawfully or unlawfully imprisoned. If it is shewn on the face of ihe return to be lawful, there is an end of all argument in favour of the discharge. The production of a

Where a party delays for four years after good warrant makes a complete end of this making an award before he applics for an case.

We are not at liberty to enter into the attachment, the delay ought to be accounted question whether there is a real ground of for on affidavit. contempt, for that would give us the power In this case the suhmission to arbitration which I bare already denied that we possess was made a rule of Court in 1836, and the We are not justified in entering into the sup- award was made on the 9th Nay in the same posed motives, and speculating as to the pro- year, directing the delivery of a bill of exbable reasons of the House of Commons in change. coming to such a conclusion. We find such

Martin now moved for an attacbinent against a conclusion distinctly expressed, and we must the defendant for the non-performance of the be bound by it. Indeed I think that, according award. to the language of the cases, and especially Putteson, J.-I cannot grant this application. that of the Judges in Burdett v. Abbott, it The pariy should have come to the Court would he unseeily and indecent to suspect earlier, or have given some reason for so long the House of Commons of suppressing any a delay. facts, the statement of which would tend to

Rule refused. - Story v. Gallwy, H. T. 1810. show, in a Court of Law, that a subject had Q. B. P. C. been improperly deprived of his liberty; and if, in violent times, this should ever appear to be the course pursued by the House of Com

@rchequer of pleas. mons, I am sure that it would be a course JUDGES' POWER.-STAYING PROCEEDINGS.which, upon reflection, that House would ex. tremely regret, considering it both as unwise and unjust. It would be offensive to the

A Judge ut Chambers has now power, withHouse to think that, merely for the sake of

out the consent of the parties, to stay proavoiding a disclosure, such as would give a

ceedings on payment of debt and cosis. subject his freedoin, the House had avoided

Barstow moved to set aside a Judge's order, stating the reasons of his committal, desiring on the ground that the Court or a Judge has to take a poor advantage of a party, and no power to inake such an order as that in wrongfully to keep this Court in the dark. It question, without the consent of both parties, wawd be inunstrous to consider that such it was an action on a bill of exchange, and could be the case under the advice of men of the defendant, before declaration, had ol)great ability and learning, and I for one will tained an order of Gurney, B., that on paynot readily presume such to be the case. I

ment of the bill with interest and costs within cannot suppose that injustice would first be a limited time, proceedings should be stayed ; committed, and then that the House would the plaintiff, in default of such payment, to be

[ocr errors]


[blocks in formation]


at liberty to sign final judgment. The order tion reinains on the second point, as to whether was not obtained by consent, nor was the this objection ought not io have been taken money paid in pursuance of its terms, although before ihe judge on the first sumions. I do the costs were taxed under the order.

not, however, think that that omission amounts Barstow contended, that should a bank- to a waiver of the irregularity. It is like the ruptcy or insolvency take place, great incon. case of a summons to compute principal and venience must arise from such a course. interest on a bill of exchange, where it not Rule nisi granted.

competeut to shew for cause that no regular Chandless," on a subsequent day, shewed judginent has been signed: the proper course cause, and submitted that the Court or a is, for the party to apply to set aside the judgJudge at Chambers has always power to stay gent, if irregular. The practice in those cases proceedings where the justice of the case re. is clearly settled to be, that you cannot attack quires it. It is a power exercised every day, the judgment itself. So here, on shewing especially in cases where a plaintiff is called cause on a summons for a writ of trial, the on to give security for costs, when, as there is only question open for discussion is, whether no means of punishing him by attachment for there is likely to arrise any difficult question of disobedience, the Court stay all proceedings law or of fact, which would render a trial by an until he complies with the terms imposed. inferior judge improper under the circum

Lord Abinger, C. B.-A Judge has no stances. power to make an order of this kind, except Rule refused-Middleton v. Hughes, H. T. either where the party is already under terms 1840. Exch. to plead, or with the consent of the opposite side. Alderson, B.-There could be no doubt of

A party's wife is not a proper person to make the power of the Judge to stay proceedings, if

an affidavit to change the venue, unless it the money had been paid. "Cases like this

appears that she has the management of frequently present themselves at Chambers,

the matter, although the husband is stora and it is usual for Judges to endeavour to set

to be ill. tle them on reasonable terms. But they can go no farther than recommend a particular which had originally been laid

This was an application to change the venue, course to be adopted by the parties; they have


Halcomb now moved that the venue in quesno compulsory jurisdiction.

tion might be changed to Monmouthshire. Rolfe, B., concurred

The affidavit on which he moved had been Rule” discharged on terms:Reynolds v. made by the defendant's wife, he being too ill Sherwood, H. T. 1840. Exch.

to make one himself. The question was, whether such affidavit was receivable.

Lord Allinger, C. B.-We must not depart À similiter loy the party whose pleading it is, in these cases, ought to be made by some person

from the usual course, which is, that the affidavit requires to be daied. The objection to a want of a date is not waived who is cognizant of the nature and circum

stances of the action. by not opposing a judge's order for a writ defendant or his attorney, would be the proper

An affidavit by the of trial on that ground.

course, or even by the wife, if it could be This was an action of debt for a sum less shewn that he was so ill as to be unable to than 201., to which the defendant pleaded nun, make one himself, and that she had the managequam indehitatus. An order had been obtained ment of his affairs, and was thereby acquainted froin Rolfe, B., for scuting aside the replication with the nature and particulars of the cause. for want of a date.

Rule refused.-Williams v. Higgis, H. T. Dorodeswell now moved to set aside this 1840. Excheq. order on two grounds :—First, the similiter is not a pleading within the meaning of 1 R. G. H. T. 4 W.4,a and therefore does not require a date. In the case of Shakel v. Ranger, b it was lield, that where a party adils the similiter It is not a good excuse for not proceeding to for his opponent, it need not be dated.

In the trial, that the client is in the country, but second place, the irregularity, (if one) was the attorney does not know where. was waivad by the party not objecting to it on This was a rule for judgment as in case of a summons for a writ of trial. In Mammoll v.

a nonsuit, for not proceeding to trial pursuant Mathem, a request by the defendant that the to notice. plaintiff would accept certain bail, was held to Peacock shewed cause, and produced an affiamount to a waiver of all irregularities in the davit made by the clerk of the London agent of affidarit of debt.

the attorney for the plaintiff, and which stated Parke, B.-The similiter in this case having “ that he was informed, and believed that plainbeen added by the party on his own behalf, tiff had good cause of action, but that he was certainly comes in the shape of a pleading, and not then in a situation to go to trial; that the therefore ought to bear a date. But the ques- plaintiff was at present in the country, depo

nent did not know where, or when he would a 2 Dowl. P. C. 304. b 6 Ibid. 562.

return.” c 2 Ibid. 797.

Lord Abinger, C. B.-Although a slight ex




Causes for Hearing in the House of Lords.

303 cuse is sufficient to induce the Courts to dis- Simpson v. O'Sullivan, ex parte, Chancery, charge a rule of this kind, on the plaintiff's

Ireland giving a peremptory undertaking, still it is in- Allan r. Mc Craw,

Scotland dispensably requisite that an excuse of some Hill v. Paul and another, ex parte as to George kind be given. This affidavit does not disclose Ord,

Scotland any reason whatever for the plaintiff's not pro- Commissioner of Police of Edinburgh v. Mitceeding to trial bitherto, and therefore the rule chell, ex parte

ditto must be made absolute.

Muir v. Muir & Co. ex parte

ditto Rule absolute.Mallan V. Jopson, H. T. Walker r. Grant,

ditto 1640. Exch

Dixon v. Dixon, (or Fisher,)

ditto Vigers v. Pike,

Chancery, Ireland
Parr v. The Attorney General,

ditto Dixons v. Dixons, (Pauper)

Scotland Carter v. Sir W. H. Palmer, Bart. Chancery, House of Lords.

Ireland CAUSES APPOINTED FOR HEARING. Stewart (or Menzies,) Pauper, v. Menzies Plowdep v. Thorpe, Exchequer, England

Scotland Horne v. Pringle-Pringle v. Horne, (second Allan (or Dickson) v. Brander,

ditto cross appeal) Scotland Stewart v. Campbell (or Stewart,)

ditto Earl Belfast v. Marquis of Donegal, (abated R.) Cairns v. Anstruther, ex parte

ditto Chancery, Ireland Fraser A. T. F. v. Lord Lovat,

ditto Munro (or Ross) v. Paul, (fully heard) Scotland Wilson v. Tait, (ditto)


Scotland Mc Can v. O'Farrell—Exparte as to J. O'Far- Callaghan v. Callaghan, Chancery, Ireland

rell the elder, (abated by the death of Arthur Corrall v. Cattell, Exchequer, Ireland O'Farrell)

Ireland Marquis Breadalbane v. Campbell, Scotland Preston v. Viscount Melville, (first appeal) Lawrence v. Blake, Chancery, Ireland

Scotland Sir Francis Burdett, Bart. v. Doe, on demise Preston v. Viscount Melville, (second appeal) of Spilsbury (Wr. Err.) Q. B., England

Scotland Skynner v. Doe on demise of Spilsbury, (Wr. Persse v. Persse, Chancery, Ireland Err.)

Q. B. England De Montmorency v. Devereux, (ditto) Appeals not appointed for hearing and Tennant and Co. v. Forth & Clyde Canal Na

defending vigation Company, Scotland Bryce v. Grahain, abated,

Scotland Gibson r. Ross,

ditto Malcolm v. Messrs. Hotchkis & Co. ditto Countess of Dalhouse v. Mc Dowall ditto Clyne v. Manson, (abated)

ditto Scanlan v. Usher,

Chancery, Ireland Mc Nair v. Lady Blantyre, (abated) ditto Reid v. Baxter, Scotland Wilson v. Sinclair,

ditto Neilson v. Mrs. J. Donald, (or Cochrane), ditto Munro v. Munro,


1839. Crawford v. Edward (Pauper,) Exparte, ditto Kerr v. Cochran,

ditto Hollier v. Eyre, Chancery, Ireland Lord Advocate of Scotland v. Lord Dunglas

Scotland 1839—Judges.

Lord Dunglas v. Duke of Argyle, ditto Sir Felix Booth, Bart. v. Governor and Com- O'Farrell v. Mc Can (cross appeal) Chancery, pany of Bank of England, England


Scotland Sir George Sinclair, Bart. v. Viscount Mait. Cochrane v. Kerr, (cross appeal) Jand, Scotland Bremner v. Kerr,

ditto Fergusson v. Fyrre,

ditto Horne v. Viscount Maitland, (cross appeal) Creighton v. Rankin, (first appeal) ditto

Scotland Creighton v. Rankin, (second appeal) ditto Forbes (Pauper) v. Wilson,

ditto Irvine (or Douglas) v. Kirkpatrick, Scotland The Royal Bank of Scotland v. Christie, ditto Sir J. G. Craig, Bart. v. T. J. J. Cochrane, Sir L. St. George Skelfington, Bart. v. Budd,


Exchequer, England Mac Lennan v. Grant, ditto Bell v. Mylne,


ditto Haig v. Sir. W. T. Homan, (et ad. exparte as Carrick v. Buchanan,

to certain respondents) Chancery, Ireland Rutland v. Doe on demise of Wythe (Wr. Err.) Sinyth u. Nangle, ditto Campbell v. Boswall

Scotland Earl Aldborough v. Trye,

ditto Scottish Union Insurance Company v. Marquis Andrewes v. Walton, Chancery, England of Queensbury,

Scotland Jackson v. Jackson, Chancery, Ireland Skinners' Company v. Irish Society, Chancery, Gordon v. Edinburgh Oil Gas Light Company,

England (first appeal)

Scotland Campbell (Pauper) or Mc Lauren v. Fisher, Laidlaw v. Smyth, ex parte ditto

Scotland Viscount Maitland v. Horne,

ditto Sir John Simpson v. Lord Howden, (Wr. Err.) Braimer v. Bethune,


Queen's Bench, England Campbell v. Campbell, ditto Lord Lovat v. T. F. Fraser, (cross appeal)

Scotland Gordon v. Edinburgh Oil Gas Light Company,

(second appeal), ex parte Scotland Sir James Dunlop, Bart. v. Cuninghame, ditto

304 Circuits of the Judges.-Law Bills in Parliament.- The Editor's Letter Box.

Renton v. Anstruther,

Scotlond Hamilton v. Hamilton,

ditto Marquis of Oriunde v Wandesford, Chancery, Sir John Kirkland v. Caddell, (1st appeal) ditto

Ireland Sir John Kirkland v. Caddell, (2d appeal) ditto 1 Scott v. Curle,






NORTHERN. WESTERN. N. WALES. S. WALS CIRCUITS, 1840. LdDenman. Ld. Abinger. B. Parke. J. Pulteson. J. Coleridge J. Coliman

J. Williams, J. Maule, J.Bosanque: J. Littledale B. Alderson. B. Gurney. J. Erskine. B. Rolfe. Tues, Feb. 18

Appleby Thursday 20

Carlisle Saturday 22


Newcastle &
Wednesday 26

(town Thursday 27


Winchester Saturday

Durham Mon. March 2 Northamp- Chelmsford

wansea Wednesday 4 (ton

: Worcester& Thursday 5

(city York & city Salisbury Friday

6 Oakham Saturday 7 Lincoln and Aylesbury


Haverford Monday 9 [city Maidstone Tuesday 10


(Westtown Wednesday 11

Thursday 12 Nottingham

Saturday 14 (and town

Cardigan Monday 16 Lewes Huntingdin

Exeter & Tuesday 17 Derby

(city Carnarvon Wednesday 18 Cambridge Shrewsbury

Carmarthen Thursday 19


buru Friday 20 Leicester & Saturday 21 (B.

Monday 231

Hereford Liverpool l'uesday 24

Brecon Wednesday 25 Coventry &

: Ruthin Thursday 26 (Warwick

Bury St. Ed. Monmouth

Bodmin Saturday 28

Mold Presteign Tuesday 31

Norwich & Gluucester Wed. April

[city [& city

Chester Chester Thursday



LIST OF LAW BILLS IN PARLIA- [For second reading.]

Small Debt Courts for


Birkston Ash, &c. Tavistock,
House of Lords.


Newton Abbott,

Wakefield Manor. Copyholds Enfranchisement. Ld. Brougham. Marylebone, [In Select Committee.]

Sumınarý Conviction of Juvenile O fenders.

(For second reading.] Sir E. Wilinot. PRIVATE BILLS.

To amend the County Constabulary Act. No Petition will be received after the 6th To amend the Laws of Turnpike Trusts, and

Mr. F. Maule. March.

to allow Unions.

Mr. Mackinnon. Nor Report of Judges thereon after 22nd May.

House of Conmans.

THE EDITOR'S LETTER BOX. To amend the Law of Copyright.

[For second reading.) Mr. Serjt. Talfourd. To extend the Term of Copyright in Designs Re-admission; the Non-payment of Country

The letters on Attorneys' Certificates and of woven Fabrics.

Mr. E. Tennant. [In Committee.)

Agents; on the Esainination of Articleid To carry into effect the Recommendation of Clerks ; and on the Law of Wills, will appear the Ecclesiastical Commissioners.

at an early opportunity.

The leiters of “ Attornalus ;" M. W.; H.

Lord J. Russell
To extend Freemen and Burgesses' Right of 1.5. T., are under consideration,

Beta; “Civis;” T. H.; C.M.; and Election.

Mr. F. Kelly Drainage of Lands.

Mr. Handley.

Erratum, p. 271.- In the case of Podmare r. To amend Tithes Cominuta:ion Act.

Lawrence, the rule was “made absolute " for [In Committee.] Sir. E. Knatchbull

a new trial, not discharged—as the judgment

sheil's. Vagrants' Removal.

[ocr errors]
« EelmineJätka »