300 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 applied 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 commitment, 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 the 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 himself 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 founcommittal 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 sufficiency 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 Murray's case, where the warrant is something in the nature of the Houses of was in the same terms, and there the warrant Parliament which does invest them with this was held good. Then comes the case of Bur- 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 number 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 extraordinary caution of the judges, if they had not done so they would have comand the great light which must have been mitted a high offence towards the country, thrown in all possible quarters on the subject, and would have justly forfeited their reputation. enabling them to avail themselves of the fullest But there are no cases in which the Crown has information upon it. In that case there is a rights, 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 officers, 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 posi House of Commons should go to such a length? tion. It must have the power to vindicate its My answer is, that it is not decent to suppose own privileges by its own means, and it cannot such a case; but what occurs to me on the exercise those means but by having recourse subject is this—that if either house should com- to the process of contempt. In Burdett v. mit for contempt, without informing me on Abbott that privilege of committing for conwhat ground that commitment is made, I tempt was not pretended to be confined 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 power they 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 Ellenborough clearly laid it circumstances which 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 clear. 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 doctrine most clearly declared that, in case of a statement of a cause of committal made in general terms, this Court is bound by it. The subsequent case of Sir J. Hobhouse was to the same effect. I feel bound to say, with respect to ourselves, that there is not one of us who expressed an opinion on the late occasion of Stockdale v. Hansard, who did not intimate the same opi g 1 Wils, 299, body; and I deem that the functions of neither assembly can go on properly unless each is properly protected in the exercise of them. There must be certain principles which no Court can question, which are necessary for the protection of one against the other. This was brought out in the most singular manner by the test of the question put by Lord Eldon to the judges in the House of Lords, in the h 5 Dow. 165. Superior Courts: Queen's Bench; Q. B. Practice Court; Exchequer. If 301 Mr. Justice Littledale expressed his full concurrence with Lord Denman both as to the propriety of the judgment in Stockdale v. Hansard, and as to the reasons for declaring the return to this writ of habeas corpus suflicient; as did also Mr. Justice Williams and Mr. Justice Coleridge. Sheriff's remanded. H. T. 1840. Q B. F. J. Queen's Bench Practice Court. AWARD.-ATTACHMENT.-LACIES. Where a party delays for four years after making an award before he applies for an attachment, the delay ought to be accounted for on affidavit. 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 him to prison on a warrant com- Jeffries might have had recourse to such a mitting him for contempt, his 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 great public body, inquire into such a committal, and the sole amenable to public opinion. In conclusion, Í answer of all the judges was, that such a thing must say that I do not 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 me 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 good. either House of Parliament, takes on itself solemnly, and under the responsibility of great legal authority, to declare to be a contempt, that that is a contempt. Some affidavits have been produced in this case, and it has been intimated that they can be used, because this is not a criminal case. I do not think that that is the meaning of the 56th Geo. 3. Any person complaining of being imprisoned, has always brought his case before us by affidavit, and the return to the writ has shewn whether he was lawfully or unlawfully imprisoned. it is shewn on the face of the return to be lawful, there is an end of all argument in favour of the discharge. The production of a good warrant makes a complete end of this case. We are not at liberty to enter into the question whether there is a real ground of contempt, for that would give us the power In this case the suhmission to arbitration which I have 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 May 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 coming to such a conclusion. We find such a conclusion distinctly expressed, and we must be bound by it. Indeed I think that, according to the language of the cases, and especially that of the Judges in Burdett v. Abbott, it would he unseemly and indecent to suspect the House of Commons of suppressing any facts, the statement of which would tend to show, in a Court of Law, that a subject had been improperly deprived of his liberty; and if, in violent times, this should ever appear to be the course pursued by the House of Commons, I am sure that it would be a course JUDGES' POWER. STAYING PROCEEDINGS.— which, upon reflection, that House would extremely regret, considering it both as unwise and unjust. It would be offensive to the House to think that, merely for the sake of avoiding a disclosure, such as wou'd give a subject his freedom, the House had avoided stating the reasons of his committal, desiring to take a poor advantage of a party, and wrongfully to keep this Court in the dark. would be monstrous to consider that such could be the case under the advice of men of great ability and learning, and I for one will not readily presume such to be the case. cannot suppose that injustice would first be committed, and then that the House would It I change. Martin now moved for an attachment against the defendant for the non-performance of the award. Putteson, J.-I cannot grant this application. The party should have come to the Court earlier, or have given some reason for so long a delay. Rule refused.-Story v. Gallay, H. T. 1840. Q. B. P. C. Exchequer of Pleas. COMPULSORY SETTLEMENT OF ACTION. A Judge at Chambers has now power, without the consent of the parties, to stay proceedings on payment of debt and costs. Barstow moved to set aside a Judge's order, on the ground that the Court or a Judge has no power to make such an order as that in question, without the consent of both parties. It was an action on a bill of exchange, and the defendant, before declaration, had obtained an order of Gurney, B., that on pay ment of the bill with interest and costs within a limited time, proceedings should be stayed; the plaintiff, in default of such payment, to be at liberty to sign final judgment. The order | tion remains on the second point, as to whether was not obtained by consent, nor was the this objection ought not to have been taken money paid in pursuance of its terms, although the costs were taxed under the order. Barstow contended, that should a bankruptcy or insolvency take place, great inconvenience must arise from such a course. Rule nisi granted. Chandless, on a subsequent day, shewed cause, and submitted that the Court or a Judge at Chambers has always power to stay proceedings where the justice of the case requires it. It is a power exercised every day, especially in cases where a plaintiff is called on to give security for costs, when, as there is no means of punishing him by attachment for disobedience, the Court stay all proceedings until he complies with the terms imposed. Lord Abinger, C. B.-A Judge has no power to make an order of this kind, except either where the party is already under terms to plead, or with the consent of the opposite side. Alderson, B.-There could be no doubt of the power of the Judge to stay proceedings, if the money had been paid. Cases like this frequently present themselves at Chambers, and it is usual for Judges to endeavour to settle them on reasonable terms. But they can go no farther than recommend a particular course to be adopted by the parties; they have no compulsory jurisdiction. Rolfe, B., concurred Rule discharged on terms.- Reynolds v. Sherwood, H. T. 1840. Exch. Dowdeswell now moved to set aside this 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, it was held, that where a party adds the similiter for his opponent, it need not be dated. In the second place, the irregularity, (if one) was was waivad by the party not objecting to it on a summons for a writ of trial. In Mammott v. Mather, a request by the defendant that the plaintiff would accept certain bail, was held to amount to a waiver of all irregularities in the affidavit of debt. before the judge on the first summons. I do not, however, think that that omission amounts to a waiver of the irregularity. It is like the case of a summons to compute principal and interest on a bill of exchange, where it not competeut to shew for cause that no regular judginent has been signed: the proper course is, for the party to apply to set aside the judg ment, if irregular. The practice in those cases is clearly settled to be, that you cannot attack the judgment itself. So here, on shewing cause on a summons for a writ of trial, the only question open for discussion is, whether there is likely to arrise any difficult question of law or of fact, which would render a trial by an inferior judge improper under the circumstances. Rule refused-Middleton v. Hughes, H. T. 1840. Exch. CHANGE OF VENUE.-HUSBAND AND WIFE. A party's wife is not a proper person to make an affidavit to change the venue, unless it appears that she has the management of the matter, although the husband is sworn to be ill. which had originally been laid in Cardiganshire. This was an application to change the venue, Halcomb now moved that the venue in question might be changed to Monmouthshire. The affidavit on which he moved had been made by the defendant's wife, he being too ill to make one himself. The question was, whether such affidavit was receivable. Lord Adinger, C. B.-We must not depart in these cases, ought to be made by some person from the usual course, which is, that the affidavit who is cognizant of the nature and circumstances of the action. defendant or his attorney, would be the proper An affidavit by the course, or even by the wife, if it could be shewn that he was so ill as to be unable to make one himself, and that she had the management of his affairs, and was thereby acquainted with the nature and particulars of the cause. Rule refused.-Williams v. Higgis, H. T. 1840. Excheq. JUDGMENT.-EXCUSE FOR NOT PROCEEDING It is not a good excuse for not proceeding to Peacock shewed cause, and produced an affidavit made by the clerk of the London agent of the attorney for the plaintiff, and which stated that he was informed, and believed that plaintiff had good cause of action, but that he was not then in a situation to go to trial; that the plaintiff was at present in the country, deponent did not know where, or when he would return." Lord Abinger, C. B.-Although a slight ex Causes for Hearing in the House of Lords. Simpson v. O'Sullivan, ex parte, Allan v. Me Craw, cuse is sufficient to induce the Courts to dis- SESSIONS, 1840. House of Lords. CAUSES APPOINTED FOR HEARING. Plowden v. Thorpe, Exchequer, England Gibson v. Ross, Scotland 303 Chancery, Ireland Scotland Hill v. Paul and another, ex parte as to George Muir v. Muir & Co. ex parte Dixon v. Dixon, (or Fisher,) ditto ditto ditto ditto Chancery, Ireland Parr v. The Attorney General, ditto Scotland Carter v. Sir W. H. Palmer, Bart. Chancery, Ireland Callaghan v. Callaghan, Chancery, Ireland Sir Francis Burdett, Bart. v. Doe, on demise Appeals not appointed for Bryce v. Grahamn, abated, Q. B., England Spilsbury, (Wr. Q. B. England hearing and Scotland Mac Lennan v. Grant, Haig v. Sir. W. T. Homan, (et ad. exparte as to certain respondents) Chancery, Ireland Rutland v. Doe on demise of Wythe (Wr. Err.) ditto Campbell v. Boswall Scotland ditto Scottish Union Insurance Company v. Marquis Chancery, England of Queensbury, Scotland Chancery, Ireland Skinners' Company v. Irish Society, Chancery, England Scotland Campbell (Pauper) or Mc Lauren v. Fisher, ditto Scotland ditto Sir John Simpson v. Lord Howden, (Wr. Err.) ditto Queen's Bench, England ditto Lord Lovat v. T. F. Fraser, (cross appeal) Scotland Scotland Sir James Dunlop, Bart. v. Cuninghame, ditto 304 Circuits of the Judges.-Law Bills in Parliament.-The Editor's Letter Box. CIRCUITS, 1840. LdDenman. Ld. Abinger. B. Parke. J. Patteson. J. Coleridge J. Coltman J. Williams. J. Maule. J.Bosanque: J. Littledale B. Alderson. B. Gurney. J. Erskine. B. Rolfe. [For second reading.] Small Debt Courts for Aston, Barkston Ash, &c. Tavistock, Brighton, Bolton, Marylebone, Liverpool, Newton Abbott, Wakefield Manor. Summary Conviction of Juvenile Offenders. [For second reading.] Sir E. Wilmot. To amend the County Constabulary Act. Mr. F. Maule. To amend the Laws of Turnpike Trusts, and to allow Unions. Mr. Mackinnon. THE EDITOR'S LETTER BOX. Re-admission; the Non-payment of Country The letters on Attorneys' Certificates and Agents; on the Examination of Articled Clerks; and on the Law of Wills, will appear at an early opportunity. The letters of "Attornatus ;" M. W.; H. B.; "Beta;" "Civis;" T. H.; C. M.; and I. S. T., are under consideration. Erratum, p. 271.-In the case of Podmore v. Lawrence, the rule was "made absolute" for a new trial, not discharged-as the judgment shews. |
