we have only to consider whether, in this instance, the assured had not done so by converting the house insured from a house composed of two stories into a heuse composed of three stories. This really admits of no reasonable doubt. Mr. Bramwell very condently admitted that if the policy remained in force after the alteration it covered the third story as well as the other two tins, being to increase the area of the building by a third story, must be considered by the court to have necessarily increased the hazard or probability of fire, as much as if the alteration to the hose had been lateralinstead of vertical. But there is another consideration, which is quite decisive to show that by the alteration the liability of the insurers is increased; and that his premiums, if preriously fair, have now become inadequate. Upon the insurance of a house against fire the insurer must make good the whole or any partial loss, the owner not being considered to stand his own insurer for the excess of the value of the house beyond the sum for which the insurance is effceted. The value of the additional property here sought to be covered by the insurance must be taken to be 10001. ; and for the whole of this or any part of it, the defendant is now liable to the full amount of the sum for which he has subsribed the policy until he has paid 10001, plus his Habity to the amount for the destruction of any part · ERLE, J.—I think the rule should be discharged. of the original house valued at 40007. We are of It has been held that the quarter sessions must speopinion that this additional liability could not be cify the amount of costs; and the judge of assize, by thewr upon him, without any consideration and whom I think is meant the judge under a commission against his consent, by the act of the assured, in of over and terminer, must also specify them. The altering the house so as to make it no longer corres-direction as to costs is used in the Act with reference pead with the description of the house in the policy. to those two tribunals. But then the question is, If the liability cannot be carried to this extent, it is whether there is a distinction between those cases and entirely gone therefore we pronounce judgment for the present case, where, under the latter part of the the defendant. Judgment for the defendant. section, the indictment is removed from the quarter sessions by certiorari, and tried before a third tribunal, viz., in this court. I assume the statute did not intend to take away costs where all the additional costs of a certiorari have been incurred. In the two first cases the tribunal has the power of finally disposing of the indictment; and it may well be that it shall not leave to the officer the final completion without adopting into its order the amount taxed by the officer, by dating the order so as to meet this. The tribunal must do this before it has put off its authority. It is not supposed that the tribunal taxes for itself; but it adopts the taxation of its officer. Does that reason apply to this case? I think not. If tried at Nisi Prius, it would be tried by a judge of assize in its popular sense and I think the judge under a commission of Nisi Prius would try on behalf of this court, and that the analogy of a trial at bar must prevail in respect of his authority. The Nisi Prius record must be returned into the Crown-office, and the costs of entering up judgment cannot be ascertained by him; but the court and judge adopt, sub silentio, the act of the taxing officer before final judgment is given-the practice of the courts having authorised their officers to do certain acts. And the trial at Nisi Prius is liable to be set aside by a new trial, and the certificate of the judge would then fall to the ground. end, it means the judge of over and terminer, improperly called judge of assize.] Reg. v. Clark, and Reg. v. Watford, 4 Dowl. & L. 593, were also cited. LORD CAMPBELL, C.J.—I am of opinion that this rule ought to be discharged. It seeks to disturb a practice certified to us by our officers as long in use, and a most convenient one; but still we are bound by the enactment of the Legislature. Now, as to the order of the judge, there is no pretence for setting it aside, it being ipsissimis verbis according to the Act. Then is what has been subsequently done by side bar rule right or wrong? I think the costs should be ascertained by the officer of this court, which would include costs subsequent to the trial. We must bear in mind that by certiorari it is now a record of her Majesty's Court of Q. B. My brother Erle has pointed out that the judge of assize refers in the contemplation of the Legislature to the judge of over and terminer; and I think it is entirely within the meaning that in the third case of a trial before the judge at Nisi Prius, the order is to be carried into effect by the officer, by means of a side-bar rule. In Reg. v. Clark no mandamus could go until the amount was ascertained; and in Reg. v. Watford the court proceeded on the ground that the order was bad on the face of it, and on that ground only. ** #1 of an Wednesday, June 14.9 and diet REG.. THE INHABITANTS OF EARDISLAND.''' Hinkway Indictment directed by justices and removed by certiorari Costs of prosecution Statement of astount in judge's order) Sulor le taniosa The è & 6 Wills 4, el 30, s. 93 (the Highway Act) cracks, 194 And the costs of such prosecution shall be dearted by the judge of assize before whom the said mibelment is tried, or by the justices at such quarter seasons, to be paid out of the rate made and leried in paradance of this wet in the parish in which such knhưng shall be situate': Provided nevertheless, that A shall be lawful for the party against whom such indxtraent shall be so preferred at the quarter sessions as aforesaid to remove such indictment, by certiorari Sur otherwise, Anto his Majesty's Court of King's Peachd? ro zbolq 976 9194T Bett, by Lord & Cumphell and Erle, T. (dissentiente Crumpton, J.) that where the indictment is removed by certoruri the judge's orders need not specify the amount of costs sinuomos of bellmed SPR This was an indictment for the nonrepair of a highway preferred at the quarter sessions by direction of justices under the Highway Act, 5 & 6 buk. 4, 2050, 4 The indictment was removed by artiorariinto the Court of QB., and tried before Wightman 37 at the last assizes at Hereford. Α verdict having been found for the Crown, Wightman, made an order under sect.195 of that Act, in the words of the section, that the costs of the prosecution should be paid out of the rate made and levied in the parish of Eardisland in pursuance of that Act; and a sidebar rule was then obtained, ordering it to be referred to the coroner and attorney of the court to tax the costs baso od: ni boitize CROMPTON, J.-I agree that there is no reason for setting aside the judge's order; but I incline to think that on this order the parties could not proceed to obtain the costs under the authority of this court. This court seems to me to have nothing to do in the matter; and especially after the decisions, we must take the ascertainment of the amount as the act of the judge at Nisi Prius alone. The side-bar rule is, in effect, an emanation from this court; and I think it Anteley having obtained a rule calling on the pro- was an improper course. Mr. Justice Patteson, in sitors to show cause why the order of Wightman, J. Reg, v. Clark, lays it down: "When the Legislature and the sidebar rule should not be set aside, on the says that the judge shall direct the costs to be paid, round that then order ought to have specified the the meaning must be that he should ascertain the nduit of the costs of mist : oidado of robne m amount, either by himself or his officer, or some one Kesting" and "Gray showed cause. The order of whose advice he may take. I do not inquire whether Wignsmanțial was correct, and the costs should be this must be done during the time for which the xsd in the usual way such has been the practice judge holds the commission, or may be done at any ince the statutedThe rule was moved on the autho-time afterwards; but it is by him that it must be done ity of Rev. Clark, 5 Q. B: 887; but that was tried efore the judge at the assizes as an ordinary indietment, and then the amount must be ascertained. Here the indictment was removed. How is the sociate to tax costs, part of which are incurred ere, and of which he has no cognisance? The judge at Nisi Prius is not provided with an officer capable r with the requisite machinery for ascertaining the mount. The other side must contend that the judge cannot make an order at all until the costs are ascerained (Lord CAMPBELL.-The order is in the words the statute], and that it makes no difference hether the indictment is removed or not, and if so, he clerk of assize must ascertain them; it was never tended that the judge was himself to tax them. The bjection was not taken in Reg. v. The Inhabitants of Pembridge, 3 Q. B. 901. The indictment being in the Court of Q. B., it must be taken that the costs are to e ascertained according to the course of that court. ERLE, J.-I should think they must be enforced by e court in which judgment is given.] Whateley and Skinner, contrà.-The question epends on the statute, and not the practice. The adge of assize is put on the same footing as the uarter sessions, who must ascertain the amount and sert it in the order. [ERLE, J.-If you read to the i at some time or other." Suppose the judge were not a judge of this court, and directed his own officer to do it--and it is admitted that at the quarter sessions it must be done through the officer-then is it to be left to two parties? By allowing the order to be enforced here by attachment, it is entirely taken out of the control of the judge at Nisi Prius. Suppose the indictment were tried by a judge of the Common Pleas, we should be saying that he should no longer have any power over the costs. I apprehend this court has nothing to do with it. I do not find that the judge is to ascertain the costs at the moment he is sitting in court. Then it is said there are three tribunals; I apprehend that makes no difference. Lord CAMPBELL, C.J.-In explanation of what I have said, I think the judge was functus officio as soon as he had made the order in the words of the Rule discharged. statute. QUEEN'S BENCH. but was discharged after argument. The plaintiff was a necessary witness on his own behalf, and he could not have been ready to give evidence on the second trial unless he had remained in London. He consequently remained in London till the rule was dis charged; and he had no means of earning a subsistence in London, as he would have had if he could! have gone abroad. The Master, in taxing the costs of the rule under these circumstances, allowed a sum of money for the plaintiffTMs maintenance, between the time of granting the rule and that of discharging it; and the Court refused to disturb that taxation, but he'l that, except under such peculiar circumstances, no such allowance ought to be made. A rule had been obtained, calling on the plaintif to show cause why the Master should not review his taxation of costs herein, on the ground that he bad allowed the plaintiff 871. as maintenance money, on account of his detention in London during the pen dency of a rule for a new trial, which was obtained by the defendants, but upon argument discharged. The particular circumstances are fully noticed in the judg ment of the court. June 8.(a)-Gray showed cause, and submitted that, under the circumstances, the allowance was reasonable and proper, referring to Tremain v. Barrett, 6 Taunt. 88; Lonnergan v. The Royal Exchange Assurance Company, 7 Bing, 725; 1 Dowl. 223; Howes v. Barber, 21 L. J. 254, Q. B. The cause was not at an end; there might have been a new trial; and the plaintiff, therefore, was compelled to remain. Lush, contrà.-No case has yet occurred in which maintenance-money has been allowed for a witness beyond the day of trial; and although, in Howes v. Barber, the court said that the Master might allow for the detention of a plaintiff as his own witness, that was only a case of detention to the time of trial; an the court intimated that the power ought to be exercised with great caution. Merely as a party, no maintenance-money can be claimed; and, as a witness, the allowance has hitherto been confined to the costs of detention down to the time of the trial; yet in many cases rules for new trials must have becu obtained. Even if it could be extended to the case of a witness whose attendance the plaintiff might not be able to secure for a second trial, unless he detained him during the interval, that would not apply to a plaintiff who was to be his own witness, because he has complete control over his own actions. The delay which takes place before the rule is heard is the ant of the court, and no default of the defendant; and the plaintiff may always apply for special terms when the rule is disposed of The affidavit does not sufficiently show that the plaintiff would have got any appoint.ment if he had not been detained in London. Cur, adv.vult. Lord CAMPBELL, C. J. now delivered the judgment of the court.-In this case, after much hesitation and great doubt, we at last have come to the conclusion that the rule for the Master to review his taxation ought to be discharged; but we are very anxious that it should not be considered that we lay down anything like a general rule; that, where the court grant a rule to show cause why there should not be a new trial, a witness may be detained at the expense of the losing party. The circumstances of this case were peculiar. The plaintiff brought on action for being dismissed from the service of the Australian Steam-Packet Company, by whom he had been retained as steward. He was a witness for him self at the trial, and the material and almost, L think, the only witness; he recovered a verdict; then there was a motion for a new trial the following term; and the court granted a rule to show cause, which was discharged on argument. Then the Master, upon his taxation, made him an allowance for his maintenance from the time that the rule to show cause had been granted, until the rule was discharged; but it was only on the ground that he was a material witness, and that he could not have possibly been ready to give evidence upon the second trial unless he had remained in London, and that it was his remaining in London that deprived him of the means of obtaining his subsistence by going abroad, which he otherwise would have done, and that in London he had no means of earning a subsistence. Now, under these circumstances, certainly, he being a necessary witness, it was a loss that was cast upon him by the resistance of the company to pay his demand, and by obtaining a rule to show cause why there should not be a new trial that this expense was incurred. And we think upon the whole, under the peculiar circumstances of the case, this may be considered as part of the costs of the rule for a new trial that was discharged; and we must consider that the Master, upon investigation, and upon true evidence, came to a right conclusion that he was a necessary witness; that his remaining in London was indispensable, and that it was in consequence of remaining in London that he was deprived of the means of earning a subsistence elsewhere, which he otherwise would have earned; and unless under circumstances similar to these, we think that the costs ought not to be allowed. And we must most cautiously guard against the abuse that might arise from the parties now being allowed to be wit(a) Before Lord Campbell, C.J., Wightman and Crompton, Thursday, June 15. DOWDELL V. THE ROYAL AUSTRALIAN MAIL STEAM NAVIGATION COMPANY. Practice-Taxation of costs-Rule for new trialAllowance for maintenance of plaintiff's witness. In an action for wrongful dismissal by a seafaring man, a rule for a new trial was obtained by the defendant, | JJ. QUEEN'S BENCH. nesses for themselves. As parties, they are not entitled to any allowance in respect of their appearance to take care of the conduct of the cause; and we must take care that they do not, under a pretence of being witnesses, obtain an allowance to which they are not entitled as parties to the cause. Under the circumstances of this case, we decline disturbing the conclusion the Master has come to; and it is most earnestly wished that this may not be considered as a precedent for a general rule that the costs of either parties or witnesses are to be allowed between the time of the trial and the rule being granted. Gray-As this is an appeal from the Master, is the rule discharged with costs? Lord CAMPBELL, C. J.-No. Thursday, June 15. Rule discharged. COMMON BENCH. 2001. in full satisfaction of the damages sustained by reason of the alleged trespasses; and that plaintiff did receive 2007. in satisfaction, according to the agreement; and, further, that the plaintiff agreed to execute, and did execute, a release of L. from all damages and costs in respect of the trespasses. Replication, that the deed of release contained a proviso that it should not prejudice the rights of the plaintiff against any person liable jointly with L.; but that he should have the same remedies against all other persons and by the said agreement it was agreed and declared that as if the deed had not been executed; and, further, that in the payment and receipt of the 2007 should be made on the express condition that such payment should not release any other person than L.; and that it was so made. Demurrer thereto. Gray, in support of the demurrer.--The replication is no answer to the accord and satisfaction pleaded: (ThurWilles.-If there was an man v. Wild, 11 Ad. & Ell. 453.) accord and satisfaction, it would be a good answer; but the replication shows that there was no accord and satisfaction, but a mere arrangement to let L. off on payment of a sum of money. By the COURT.-The plea clearly sets up a com EARL ROMNEY V. THE INCLOSURE COMMISSIONERS. Statute 8 & 9 Vict. c. 118, s. 56-Rule absolute for new trial without mention of costs. The words of section 56 of statute 8 & 9 Vict. c. 118, that "the costs attending any such action shall abide the event of a trial,” do not interfere with the applica- | tion of the ordinary practice, that where a rule for a new trial is made absolute without any mention of costs each party pays his own costs of the first trial. This was a rule calling upon the plaintiff to show cause why the Master should not review his taxation of costs herein; or why the rule for a new trial should not be amended by adding "on payment of costs." The action was brought under section 56 of the Inclosure Act, 8 & 9 Vict. c. 118, to try the right of the plaintiff, as alleged lord of the manor of Queenborough, to object to a proposed inclosure; and at the trial a verdict was found for the defendants; but in the following term a rule nisi for a new trial was granted, and ultimately that rule was made absolute; but nothing was said about costs; and the rule was drawn up without any mention of costs. The Master had consequently disallowed the defendants the costs of the first trial, pursuant to r. 64 of R. H. 2 Will. 4; and the present rule was obtained to review the taxation, or to amend the rule for a new trial. Bramwell and Borill showed cause.-There is nothing in this case to interfere with the application of the general rule, that when a new trial is granted without mention of costs in the rule each party pays his own costs of the first trial, whatever may be the result of the second. The statute 8 & 9 Vict. c. 118, s. 56, says, that "the costs attending any such action shall abide the event of a trial;" but that is in accordance with the ordinary practice, and only means that the ordinary rules are to be applied. As to amending the rule, it was made absolute on Feb. 18, and served upon the defendants at once; they are now too late to apply for an amendment. M. Chambers and Raymond, in support of the rule, contended that, as the event of the trial was in favour of the defendants, they were entitled to their costs; and that at all events the court should now amend the rule, if that was necessary, for the purpose of giving the defendants their costs, they being public officers to whom the Legislature intended to give some degree of special protection. Lord CAMPBELL, C. J.-As to the construction to be put upon the statute, I entertain no doubt that it means the ordinary rule to be applied-that the costs are to be paid by the losing party; but, where a new trial has been granted, there is no losing party. As to the rest of the case, I defer to the judges who disposed of the rule. COLERIDGE, J.-I am of the same opinion as to the meaning of the statute; and as to the amend ment of the rule, we think the application too late. ERLE and CROMPTON, JJ. concurred. Rule discharged. contrà. Cur. adv, vult. of; and that is not denied by the replication. That being so, the mere stipulation between the plaintiff and L. affords no answer. Wednesday, June 7. BUCKLAND . JOHNSON. Pleading. A pleu of judgment, recovered in trover, against one person for the conversion of goods, is a bar to an action of assumpsit for the proceeds of the sale of the goods by another, whether he be a party to the conversion or a stranger. The plaintiff's goods were sold by the son of the defendant, as assistant to his father, who was an auctioneer, and judgment for 1001, in an action oftrover, was recovered against him. Nothing being received from him under the judgment, the plaintiff brought an action for money had and received against the defend ant, to whom the price for which the goods sold, namely, 1481., was paid. Plea, judgment recovered against the son: Held, a good answer to the action, and that the plaintiff could not recover the 481., being the difference between the sum recovered against the son and the price of the goods. Held also, that, where a party goes down to trial, knowing what is the real question intended to be tried, but relying upon some mistake in the pleading of the opposite side, the amendment should be made without costs. The declaration in this case was for goods sold and delivered, and for money had and received, with a count in trover. Fourth plea: That, as to the money had and received, and the household furniture sought to be recovered in trover, the said debt was due from defendant, and the said grievances were committed by him, jointly with one Thomas Barber Johnson, and not jointly and severally; and that an action had been brought against T. B. Johnson and judgment recovered. It appeared at the trial that T. B. Johnson, the son of the present defendant, assisted his father in his business of an auctioneer, and had in that capacity sold goods of the plaintiff by auction under circumstances which amounted to a conversion. The father was in and out of the room during the progress of the sale, and the money was paid to him alone; an action of trover had been brought against the son and judgment recovered, but no satisfaction was obtained, the son having immediately applied for relief under the Insolvent Debtors Act. These facts having been proved, Byles, Serjt. contended that he must recover upon the count for money had and received, the money having been received by the father only. Lush then had leave to amend by inserting an allegation that the said money was money received for the sale of the goods in the last count mentioned." The verdict was entered for the defendant, with leave to the plaintiff to move to set it aside on the ground that the judgment in trover against the son, who converted the goods jointly with the defendant, was no answer to the action COTTINGHAM. ROWLEY.-H. Hill and Rew showed canse Rule discharged. HOLGATE V. HOLGATE.-Macaulay and Bittleston, in support of a rule to enter a nonsuit, or to reduce the verdict to nominal damages. Melior and Hayes showed cause on a former day. Adjourned. Tuesday, June 20. TRESS C. SAVAGE. Rule discharged. HOLGATE . HOLGATE-Argument concluded. Rule absolute for a new trial. HALLUM. BAILEY-The argument of this case having proceeded to some length, it was ordered that the facts, &c. should be turned into a special case for the opinion of the court. Wednesday June 21. LOVEDAY T. FRESTON.-Action for false imprisonment. Plea, that the trespasses complained of were committed by command of and jointly with L.; that plaintiff sued L. for damages; and that, for the settlement of that action, l' was alone, and that the judge ought not to have amended. Byles, Serjt. had obtained a rule accordingly, against which COMMON BENCH. persons. For the conversion only 1007. was recovered; the money received amounted to 148. If the cause of action against the father is distinct from that against the son, the judgment against the son is no bar to an action against the father. Secondly, if one person has wrongfully converted goods, and another has received the proceeds, and judgment is recovered against the first for 50% less than the value, the owner may proceed against the other, provided the receipt of the money was before judgment recovered. There may be first an action of trespass, and then one in trover: (Ferrers v. Arden, Cro. El. 668.) Kitchin v. Campbell, as reported in 7 W. Bl. 79, is in our faveur. JERVIS, C.J.-I think the plea as amended was correctly amended, and substantially proved. I think my brother Williams was right in making the amend ment. The question was whether a substantial recovery against the son is a bar to the action, and the amendment raised the question in controversy between should be without costs, because the parties must the parties; and I think also that the amendment have known what the other side went down to trv The plea also appears to me to be an answer to the action. If the son had received the money, and the plaintiff had sued him for the conversion, and had recovered judgment, without fruits, he could not have sued him afterwards for money had and received. I think the principle is the same where another party receives the money. Mr. Finlason says that if the defendant received more than was recovered against the son, the plaintiff is entitled to the balance, and that the plea should be pleaded to 1002. only. But the case referred to is not as he cited it. It was an action for money had and received as the proceeds of goods. Plea, judgment. General demurrer. The case has no bearing on the matter, as the demurrer does not admit the conversion. The fallacy is this that Mr. Finlason treats the goods as being the property of the plaintiff after the conversion, whereas the judgment in trover changed the property in them from the time of the conversion. They were from that time the goods of the son, and the father received the son's money. It is true that some authorities show that the property is not changed till after the receipt of the money for which judgment is recovered: (Comper v. Shepherd, 3 C. B. 266.) But Adams v. Broughton, reported in Strange, 1078, a! much fuller in Andr. 18, distinctly lays it down that the judgment changes the property. By it the amount of damages is made certain, a higher remedy is obtained, and the other merged. MAULE, J.-I think so too. It was a fit case for amendment; and the amendment does not alter the effect of the plea, or the real controversy between the parties. The substance of the plea is, that a judg ment against one of two parties to a conversion is a bar to an action against the other, and I think without costs, because a party is not to go down i. trial relying upon a mistake of the other party, He must go with knowledge that all fit amend ments will be made. The plea is a substantial answer to the action. It is said that in trover the value is sometimes not recovered. That may be se; and if that were shown, I will not say what the consequences would be. But that is not shown, and we must take it that the full value of the goods was recovered from the son, and that the father received the proceeds of the sale consequent on the conver sion. The plaintiff might either recover the value of the goods in trover, or might sue for the proceeds There is no injustice in saying that if he elects the former remedy, he may not recover what the goob may be sold for, if they are sold for more than be recovered in trover. The evidence shows that some thing more than what he recovered was paid to the defendant. But it may be that the plaintiff' was per fectly right in suing for the value of the goods; for be might have got more than they sold for. I deat think that he can recover the balance. The defend aut is a joint converter, and not a stranger; but I don't think that makes any difference; for, though he stranger, I don't think the plaintiff, having recovered the value once, can recover more again for anybody, whatever the proceeds may be. CRESSWELL and CROWDER, JJ. concurred. BUSINESS OF THE WEEK. Thursday, June 15. WOOD. THE COPPER MINERS OF ENGLAND.--Turner moved herein to enlarge a rule nisi obtained by Brill on a day; and prayed that the enlarged rule might be retur able at chambers. By the COURT.-No; if enlarged, it m Rule enlarget be to next term. cause against a rule obtained by Byles, Serjt. on a forme Re WILLIAM LACON CHILDE-Montague Smith shore William Lacon Childe, now confined as a lunatic at Hay day for a writ of habeas corpus to bring up the body of Capt park, on the ground that he was illegally confined, certificate under which he was sent to the asylum berg insufficient. The COURT discharged the rule on the gr that the application had been made by a mere stranger. | without authority. The case will be reported. Lush now showed cause. The particulars were the same in both actions; and the question is, whether the plaintiff can recover the proceeds of the goods again. There are two propositions for me to prove :-First, a person having a right of action in trover may waive the tort, and sue for money had and received, and judgment in that action would be a bar to an action in trover. Vice versa, judgment in trover is a bar to an action for money had and received: (Brown v. Wootton, Cro. Jac. 73; Kitchen v. Campbell, 3 Wils. 304.) Secondly, where there are two wrongdoers, judgment against one is a bar to an action against the BANKS . OLLERTON.-Atherton, Q.C. (Crompton H with him) applied, in the first instance, to Lave this rak," other: (King v. Hoare, 13 M. & W. 494.) which had been moved by Knowles, Q.C., enlarged, on the Hawkins and Finlason, in support of the rule.-The ground that the parties would no doubt settle their differ cases cited on the other side are distinguishable from ences without the interposition of the court (JRVIS, CJ.this. Here there are two distinct causes of action Unless Mr. Knowles will consent we cannot enlarge. You do not urge on us that time is material] Then I proceed Rule discharged with rests, agreed between plaintiff and L. that plaintiff should receive maintainable on different evidence against different to 1 COMMON BENCH. show cause why the acknowledgment of a deed by his late wit should not be taken off the file, on the ground that one of the communissioners before whom the acknowledgment was made was interested in the transaction, being, in fact, the mor cagee of the lands the subject-matter of the deed. It appened that a life-interest in these lands had been bequeathed to Ellen Flemming, afterwards Ollerton, before her mariag, with power of appointment to her children, and, In defit of appointment, to one Ellen Banks for life; here bong no disposal of the ultimate remainder, which wald, therefore, revert to Ellen Flemming, being the beir-at-law of the testator, 80 as to enable her to destroy the contingent remainder bequeathed to Ellen Banks After the marriage of Ellen Flemming, she, with the concurrence of her husband, executed and acknowledged the deed in question, by which the property was mortgaged to John Lord, one of the cominisstoners before whom the acknowledgment was made. After the death of Ellen Flemming, then Ollerton, Ellen Banks ught an action to recover the lands, and was met by the dead. It was contended on moving the rule that that deed was invalid, and should be taken off the file on the above grund 3 & 4 Will. 4, c. 74, s. 79, enacts that every deed to executed by a married woman for the purposes of the Act (or alia the disposition of any estate which she and her husband, in her right, may have in any lands) shail be produced and acknowledged by her before a judge of one of the Superior Courts, or a Master in Chancery, or before two of the perpetual commissioners, or two special commissioners, who, by s. 75, are to examine her apart from her husband. By the Court of C. P.shall from time to time make chanders and rezalations as the court shall think fit tending the mode of exsunination to be pursued by the missioners to be appointed under the Act." Under the Rth section the Court of C. P. made an order (4 M. & S. 11, that one at least of the commissioners should be a person et interested in the transaction, or concerned as an attorney. Under this order the usual practice has been to have the deed ackow:dged before two commissioners, one of whom is the storey soting in the matter. It had been further contended that that practice was bad, and a deed so acknowleged invalid, on the ground that under sect. 79 the two commissioners are equal to one judge, and that both of them mast by the common law be disinterested parties, and the rules of the Court of C. P. under sect. 89 could not affect that rule of law. That here one of the commissioners was the mortgagee, and clearly interested. Knowles and Mellish, in of the rule. The case occupied nearly the whole day. Cur, ade, vult. Re THE ARBITRATION IN-Montague Smith, QC., pared to show against a rule herein to set aside an award. ERVIS, C.J.-We cannot take it now; it is a universal ensnot to take such cases on the last day of term.] The mals was obtained late in term; it was served on Saturday turnable on Tuesday, so that we could not come here Fefore; our object is to put an end to their going on with their action. JERVIS, C.J.-The Court will take it if nothing Use pre-ses Stands over. BRZYMILOW 7. ARDEN. -Hake showed cause herein against rule obtained on a former day by Lush. This rule should e discharged, because, it being a pauper cause, the counsel Whad certified to the ground of action, and had been el to the pauper plaintiff, did not do his duty when cause came on for trial. The counsel had a conference so late as eight o'clock on the evening before the cause was be tried, and returned his brief. [JERVIS, C.J.-He very Probably did his duty, finding he had certified on imperfect materials] When the cause was called on the record was ily withdrawn. [CRESSWELL, J.-Why did not the tid ask the court to allow the cause to stand over, on tonation of the circumstances?] I was not present, and therefore emnot say. The cause was in the list all through the first sittings in term. (JERVIS, C..J.-You give no excuse gainst this motion.] It is submitted that counsel cannot w up his brief under such circumstances without coming The court to explain his reason for so doing. The affidavit Cites that the attorney relied entirely on his leading counsel. Davis, CJ.-On the 24th the gentleman returned his brief. The cause was called on some days after, and an excuse made plaintiff's counsel was ill: and so again when it was alol on at a later periol. My brother Crowder thought had been ample time; this rule must therefore be EXCHEQUER. COURT OF EXCHEQUER. April 28 and June 13. In considering whether sufficient common had been left to This was an action against the defendant for break- Edwin James, Q.C., had obtained a rule for a new trial, on the ground of misdirection, and contended that, in considering the question, the jury ought to have been directed to ascertain who were entitled to use the common, and the limits to which such user extended; not who did actually use it, or the number of cattle with which they used it. It was not enough that sufficient common was left for the parishioners of Wanstead; but there should be also sufficient for the other parishes to which the forest extended, viz., Chigwell, Chingford, Walthamstow, and Waltham. The whole is undivided, and extends to several manors. Animals turned out at Wanstead might wander to Chigwell; and those turned out at Chigwell diminished pro tanto the pasture elsewhere. [ALDERSON, B.-The several manors might be divided every manor may be inclosed as against another manor.] No boundary was shown. The lord of the manor of Wanstead inclosed on Wanstead manor, no doubt. The questions were-first, whether the commonable rights were exhausted pro tanto by the cattle turned out; and, secondly, whether there was sufficient common left for the Wanstead commoners. The forestal rights extended over all. Reeves were appointed at the court, who marked the cattle; and cattle, so marked, could go anywhere as of right, no matter whence they came. Sir F. Thesiger (Bovill with him) showed cause against the rule. Rule absolute. CARLEY AND ANOTHER 7. PEARSON. -This was an action for sold and delivered. The cause was tried before the dary: verdict for the defendant. M. Lloyd on a former ay obtained a rule calling upon the defendant to show Edward James, Q.C., Bramwell, Q.C., and Rodwell, ase why there should not be a new trial, on the ground of in support. Cur. adv. vult. irection, and that the verdict was against the evidence. action was brought by the plaintiffs, as partners in a zar business, for cigars sold to the defendant. It appeared before my brother Cresswell, at Chelmsford, and a June 13.-POLLOCK, C.B.-This case was tried the of the plaintiffs lived near the defendant's country-rule mist for a new trial, on the ground of misdirection, JUDGMENT. te, and had dealings with him in his individual capacity. a bar to the action. JERVIS, C.J.-No. Rule enlarged. jury, and that it ought not to have been an element May 11 and June 14. and 82. Quære, is an information at the suit of the Crown, EXCHEQUER. gling, a civil or a criminal proceeding? and is the evidence of the defendant, on the trial of such information, admissible? Per Pollock, C. B., and Parke, B.-Such information is a criminal proceeding; and the evidence of the defendant is not admissible. Per Martin and Platt, BB.-Such information is not a criminal proceeding; and such evidence is admissible. Quare, where no bill of exceptions was tendered at the trial of such information, and the judges in banco are equally divided in opinion upon a question of evidence, brought before them on a motion for a rule for a new trial, will a bill of exceptions nunc pro tunc lie with the consent of all parties? This was an information at the suit of the Crown to recover treble the value of certain tobacco which had been seized as smuggled. At the trial, before Pollock, C.B., at the sittings in Middlesex, after last Hilary Term, the defendant tendered himself as a witness to be examined; but the learned judge rejected his evidence. Subsequently a rule for a new trial having been obained, on the ground of such rejection, The Attorney-General, Watson, and J. Wilde, showed cause. Shee, Serjt., W. M. Best, and P. M Mahon, contrà. Cur. ade, vult. JUDGMENT. MARTIN, B. This was an information for the recovery of penalties for smuggling tobacco under the 51st and 82nd sections of the statute 8 & 9 Vict. c. 87. The case was tried before the Lord Chief Baron at the sittings after last Hilary Term, when the defendant was tendered as a witness on his own behalf, and was rejected by the learned judge. A rule for a new trial was granted on the point, and the case has been argued before us. The question depends upon the construction of the 2nd and part of the 3rd sections of the statute 14 & 15 Vict. c. 99. The 2nd section enacts, that "on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having, by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the person on whose behalf any such suit, action, or other proceeding may be brought or defended, shall (except as thereinafter excepted) be competent and compellable to give evidence, either virá roce or by deposition according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding." An argument was addressed to us to show that the present case did not fall within this section. I believe, however, we are all clearly of opinion that it does. For my own part I cannot conceive what general words the Legislature could use to include the present case, if "any suit or other proceeding in a court of justice" do not; they must surely include an information at the suit of the Attorney-General for penalties, under the 82nd section of the Act first named. The 3rd section contains this exception:- it provides that "nothing in the Act contained should render any person who, in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent and compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself." By the 82nd section above mentioned, the penalties sought to be recovered in the present information are recoverable by an action of debt, bill, plaint, or information, in the name of the Attorney-General, or some officer or officers of the customs, before two justices. They are, therefore, recoverable on summary conviction. That the breach of law charged in the information is not an indictable offence is clear. The same statute which enacts the offence enacts gued that this was a criminal proceeding, wherein the penalties and the consequences. But it was arthe defendant was charged with an offence punishable on summary conviction; and, as I understand, we are all agreed that the only question is whether the information in the present case is a criminal proceeding within the true meaning of the 3rd section. I think it is not. There are many crimes, properly so called, which are liable to be punished on summary conviction; but there are a vast number of acts which in no sense are crimes, which are also so punishablesuch, for instance, as keeping open public-houses after certain hours, and a variety of breaches of the police regulations, which will readily occur to the mind of any one. The bringing of tobacco into this kingdom is, of itself, a perfectly innocent act; but the requirements of the public revenue, which induce the Legislature to impose a very heavy duty on the article, probably render it a matter of necessity that the bringing it into the kingdom without payment of the duty shall be subject to a penalty. But this cannot affect or alter the intrinsic and essential nature of the act itself; and it seems to me it cannot be denominated a crime according to the ordinary and common usage of the language, and the understanding of mankind. The proper meaning of "crime" is an indictable offence. A question has frequently arisen whether an information at the suit of the Attorney-General for penalties for smuggling be or not a criminal proceeding. I believe it has invariably been considered not to be so. One t EXCHEQUER. it is no objection to their being so, that when called any one has the privilege of refusing to ansiver any questions tending to criminate himself; and it is said that as every material question will have that th dency, and every immaterial one might be rejected, the result would be that he would not be bound to answer at all. But still he is compellable to attend and be sworn as a witness; and whether he actually gives evidence or not depends upon his taking the objection. The very act, however, of refusing to answer when called would materially prejudice the defendant's case. We cannot help that. He would stand in a very different position from that in which he is placed by a plea of "not guilty." This is on evil which the Legislature has not provided for; but it is not probable that it would often occur; and few plaintiffs would try the experiment of calling the defendant in a penal action. On the other hand, the defendant, în all those cases not provided for by the statute, may be examined for himself, and yet not be competent on cross-examination to answer any ques tion tending to render him liable to an information or action; but then, if he did so, his evidence would very likely not profit him at all, and the power of being examined on his own behalf would be of little avail All that is necessary, however, to decide in this case is, that the information, being for an offence punish able on summary conviction, is within the exception in the 3rd section, and therefore the witness is a admissible. 7 A test, and a very obvious one, is whether, in such a a witness; and therefore I think the decision of the case, the character of the defendants be admissible in Lord Chief Baron, though I have had considerable evidence? It has been decided that it is not. In doubt about it, was right. By the Act 14 & 15 Vict. criminal cases evidence of good character of the ac- c. 99, upon which this question depends, it is provided cused is most properly, and with good reason, admis- by section 1, that the proviso in the 6 & 7 Vict. sible in evidence, because there is a fair and just pre- c. 85, s. 1, that no nominal or real party to a suit, sumption that a person of good character would not action, or proceeding shall be competent to give evicommit a crime; but in civil cases such evidence is, dence, be repealed; and then, by the 2nd section it is with equal good reason, not admitted, because no pre-enacted, that, on the trial of any issue joined, or of sumption would fairly arise in a very great proportion any matter or question, or on any inquiry arising in of such cases, from the good character of the de- any suit, action, or other proceeding in any court of fendant, that he did not commit the breach of con- justice, or before any person having by law, or by tract or of civil duty alleged against him. If it is consent of parties, authority to hear, receive, and not admissible in such cases as the present, the reason examine evidence, the party thereto, &c., except as given is, as indeed it must be, that the proceeding is not thereinafter excepted, shall be competent and coma criminal proceeding, but in the nature of a civil one, pellable to give evidence, either viva voce or by depoand that therefore the good character of the defendant sition, according to the practice of the court, on would afford no just ground of presumption that he behalf of either or any of the parties to the said had not done the acts in respect of which the penalty suit, action, or other proceeding. The exceptions is imposed. It therefore seems to me that the true are stated in the 3rd and 4th sections. The construction of the 3rd section is, that when the act 3rd provides that "nothing herein contained shall in respect of which the summary conviction is sought render any person who in any criminal proceeding is to be obtained be in reality a crime, the accused per- charged with the commission of any indictable offence, son is neither competent nor compellable to give evi- or any offence punishable on summary conviction, dence either for or against himself; but that when competent or compellable to give evidence for or the act is not of a criminal nature, he is so competent, against himself or herself, or shall render any person and may lawfully be examined. The judgment compellable to answer any question tending to which has been arrived at by the learned Lord Chief criminate himself or herself, or shall in any criminal Baron seems to me to put the admissibility or non- proceeding render any husband competent or comadmissibility of the defendant upon a very unsatis- pellable to give evidence for or against his wife, or factory ground, that is to say, not upon the nature of any wife competent or compellable to give evidence POLLOCK, C.B.My learned brothers who have the proceeding itself, but upon a collateral and appa- against her husband." The 4th section provides that preceded me in giving judgment, I think, have each rently not very relevant circumstance, whether the the statute shall not apply to actions or proceedings of them correctly stated the question. I entirely act charged in the information could also be the sub-in consequence of adultery, or breach of promise of agree with my brother Martin, that all that we have ject of a summary conviction. I cannot think that marriage. The 5th section provides that nothing in to consider is, what is the meaning of the 3rd section it was intended by the Legislature to make this a the Act contained shall repeal any provision in the of the 14 & 15 Vict. c. 9999 I think it is very dear test of the admissibility. But there seems to 7 Will. 4 & 1 Vict. c. 26. The question is as to the that but for that section the present defendant, and me a still stronger objection to the conclusion meaning of the 2nd and 3rd sections. The words of probably every other person in any court whatevery which has been arrived at by the Chief Baron. the 2nd section are certainly large enough to accused of any offence whatever, might become` à By the 82nd section of the 8 & 9 Vict. c. 87, include every proceeding of every description in witness; but by the operation of the 3rd secties, the penalties are recoverable by an action-at- which witnesses could be examined every pro- introducing exceptions, there can be no doubt a pers law. Now that is clearly not a criminal proceeding, ceeding, criminal or civil, or other, if there be son charged by the Crown' in a criminal enurt of and if the Attorney-General sued in debt the any, which does not fall accurately within the justice is not a witness. The question is, whether the defendant would undoubtedly be admissible; and description of criminal or civil law; and unless defendant on the present occasion was property r can it be that in a legal proceeding, to recover the this case is comprised within the subsequent ex-jected as a witness. The solution of this questio same penalty, the right of the defendant to be ex- ceptions, parties to suits and proceedings of every amined as a witness on his own behalf, is to depend description, civil or criminal, are competent and comupon whether the Attorney-General thinks fit to pellable to give evidence for and against each other. adopt the action of debt, or an information. The Then comes the question as to the meaning of the power to use either at his option being given to him exception in the 3rd section, the only one applicable by the same section of the Act of Parliament, in my to this case. Now the first part of this exception judgment the defendant's right cannot be affected by embraces all criminal proceedings for indictable the form of proceeding which the Attorney-General offences; proceedings by indictment; informations by thinks proper to use. A variety of reasons were the Attorney-General; informations in the Crownsubmitted to us to show that the defendant should not office; coroners' inquisitions; preliminary inquiries, have been rendered admissible by the Legislature. on charges of felony or misdemeanor, before magis Several of them seem to me not to be well founded. trates; and every other mode by which indictable It was said that there was no reciprocity, and that offences may be inquired into or tried. This certainly the admission of the defendant to be a witness does not apply to this sort of information by the would be one-sided. But this is not so. It would Attorney-General; for this offence is clearly not be perfectly idle to suppose that the Attorney-General indictable. I concur with my brother Martin in himself could know anything which would be evi- what he said upon that subject. Next, is this a dence in such a case; and in reality all persons who criminal proceeding by which the defendant is know anything of the transaction are admissible as charged with the commission of any offence punishwitnesses against defendant. Then it is said that as a able by summary conviction? As to its being a witness, he might refuse to answer any question what- criminal proceeding, an information by the Attorneyever. This is quite true; but, supposing him to be General for an offence against the revenue laws is a -called and refusing to answer, there can be no doubt, criminal proceeding. It is a proceeding instituted by if there was the slightest evidence in the case, the Crown for the punishment of a crime against the the practical consequence would be that his public, for it is a crime and injury to the publie to refusal would lead to an immediate verdict against disobey the statute and revenue laws. I think a him. It was also said it would be dangerous to prosecution or proceeding for any offence against the admit him to be examined, on the ground of tempta- public is a criminal prosecution; and accordingly tion to commit perjury. But this proves too much; the old form of proclamation, made before the trial for there is no greater temptation of the kind in the of informations for such offences, styles these offences case of an information at the suit of the Attorney- "misdemeanors." Is it a proceeding whereby he is General than in the numerous class of cases in which charged with the commission of an offence punishthe defendants are admissible. On the whole, I am able by a summary conviction? One should rather of opinion that an information at the suit of the conjecture that the intention might have been to proAttorney-General for penalties for smuggling under vide for proceedings before magistrates or commisthe statute 8 & 9 Vict. c. 87 is not a criminal proceed- sioners, or other persons having power to convict ing, and that the true construction of the third section summarily for an offence, in which proceeding he was of the 14 & 15 Vict. c. 99 (upon which the question charged with a view to a conviction for that offence. entirely depends) is to exclude defendants as wit- But the words are not so limited: they are large nesses in direct proceedings for a summary conviction enough to embrace any criminal proceeding, whether when the act charged is a crime. This, I have been summary or not, for any offence which might have informed, is the construction which has been put upon been the subject of inquiry and conviction in a sumthe section by the several very learned persons who mary proceeding; and if so, the defendant was inpreside at the metropolitan police courts; and in my competent to be examined; for no sufficient reason judgment it is the correct one. can be assigned for making a party incompetent and not compellable to be a witness in a proceeding before a magistrate, and yet competent and compellable on a trial for the very same offence before a judge and jury. I am therefore of opinion that in this particular case the witness was incompetent, and was therefore properly rejected. But the Legislature have not provided for the case of an information filed by the Attorney-General for an offence against the revenue laws, which was neither indictable nor the subject of a summary proceeding before a magistrate or other person. This is a casus omissus from the exception-whether accidental or designed, we need not inquire, as it falls within the general provision of PARKE, B.-In this case, on the trial of an information filed by the Attorney-General, for the recovery of the treble value of some smuggled tobacco, the defendant was offered as a witness on his own behalf, and rejected by the Lord Chief Baron. A motion for a new trial was made last term, and argued on the last day of the term; and time was taken to consider the question, which is of importance, and in some degree difficult. The difficulty-not an uncommon one-is to ascertain the meaning of the words used by the Legislature. Possibly the framers of the Act never had the particular class of cases-informations for penalties, or actions for them-in their contemplation. We must follow, however, the ordinary rule of construction and the language used by the Legislature; and, so doing, it seems to me that they have used sufficient words to prohibit the defendant from being the 2nd section. In like manner are omitted the cases of civil remedies for penalties or forfeitures, if there are turns upon these inquiries-Is the proceeding her the EXCHEQUER. it is punishable by fine. It is very true it is not punishable in any other way, as my brother Martin as pointed out, for reasons which it may be difficalt to know why they have continued to the present moment. There is no doubt it is not punishable in the ordinary way by indictment; but it is punishable by fine, and the fine may be obtained on summary conviction. Therefore this being, in my judgment, an offences punishable on summary conviction, and the question arising in a criminal proceeding, I am of opinion that the party was not a competent wit ness, and that he was very properly rejected. But, as my brother Platt is of the same opinion with my brother Martin, and the court, therefore, is divided, two and two, there can be no judgment pronounced; but the rule for a new trial will drop. It may be right to state here, that those may be arate of it who were not present yesterday, that an application was made for permission to tender a bill of exceptions that the matter may receive the judgment of a higher tribunal. The Crown has consented, as far as it can be done, to give every facility for a bill of exceptions. I have expressed my readiness to sign the bill of exceptions, as if it ad been tendered to me at the trial. Whether it can be done or not, perhaps there is very great doubt: the probability is it cannot be done; but it is extremely desirable that the attention of the Legislature and of the Government should be called to the subject. Very often there are other grave questions- there are some questions of the greatest importance both with reference to the public interest, and I may add, what is often of as great importance, private character, which may be involved is inquiries of this sort. I must say, I think it is of great importance that there should be the means of taking the opinion of a court of error on the judg meats of this court in cases of this description; and I certainly, for one, should be exceedingly glad if my Judgment could be reviewed by a bill of exceptions, and if the judgment of this court on a subject of this Surt could be reviewed by a writ of error. In the present state of the law probably that cannot be done. ALDERSON, B.I think it is worth considering whether it ought not to be altered. Watson rather think that there was a resolution of the judges in 1750, stating that there could be no bill of exceptions. The fla MARTIN, B. You are aware that meeting was cancelled. or to sea bo ** T EXCHEQUER. L, and the H. of L would say we are only one branch of the Legislature; the old law is so and so; we cannot alter it. Best. We will look into the matter, and see if we think we can sustain a bill of exceptions and there is reasonable ground. POLLOCK, C.B.-There are several Bills before Parliament at this moment, in one or other of which a clause might be introduced which would remedy the evil, if that is the proper mode of doing it. ALDERSON, B.-The better way would be to say at once, in informations in the Ex. for penalties, that the party should or should not be examined as a witness. I do not know what they would say; but it would be easy to say either he should or should not. It would be very desirable, because that would settle the question. POLLOCK, C.B.-My brother Platt will either to-day or to-morrow deliver his judgment. ALDERSON, B.-So that the whole of the reasons will be known. I have known in cases of difficulty that the court has been adjourned; but the question has been heard in the presence of the other judges. That is a much better thing than a bill of exceptions. Several cases I have known of that sort; one in the C. P.the case of Bosanquet v. Williams, I think it was; that was argued before the twelve judges. I argued one, when I was at the bar myself, at Serjeants'-inn; and one before the twelve judges, which was reserved from the Court of Q. B. That is a much better way. At a subsequent period of the day, the following judgment was delivered by had in view. PLATT, B.-In the case of the Attorney-General v. Radloff I was not fortunate enough to be here this morning, when my learned brothers gave their opinion. A motion was made for a new trial in a case arising upon the revenue laws. It was an information by the Attorney-General to recover penalties for smuggling tobacco, and upon the trial the defendant himself was called to be examined as a witness. The question arose whether he was competent, under the late Act of Parliament, to be so examined. The matter has been argued at very considerable length, and it at last comes for the judgment of the court to be pronounced on it; but I am sorry to say we are divided in opinion. Now it is to be considered that these Acts of Parliament which give rise to this question, the 6 & 7 Vict. c. 85, and the 14 & 15 Vict. c. 99, were manifestly passed for the purpose of remedying what was PARKE, B.-There is a balance of convenience and considered an evil, or an obstruction to the adconvenience; a convenience if anything relating to ministration of justice, by the raising of objections the criminal law should be wrongly decided, but a to persons proffered as witnesses. Now the first reat inconvenience in having bills of exceptions in Act on this subject was the 6 & 7 Vict. c. 85, and the very cause; there would be great delay, and it would preamble of the Act shows the object the Legislature be an advantage to the rich. ALDERSON, BAdvantageous to the rich rogue, "Whereas the inquiry after truth in courts of justice is often obstructed by incapacities and no good to the poors – pon into created by the present law, and it is desirable that MARTIN, B.Just consider well before you tender full information as to the facts in issue both in critill of exceptions, It is the most uncomfortable minal and civil cases should be laid before the perand disagreeable mode of taking the opinion of a court of error (too mobiwueden sons who are appointed to decide upon them," &c.; and then, having stated that as being the evil which POLLOCK, C.B.It would be very easy to make was to be remedied, we must not forget that this and rovision that no delay should occur as far as the the other are both remedial Acts, and therefore to be llection of the duty, or the enforcement of the construed in a manner so as to advance the remedy as alty, by making the penalty immediately payable, much as possible. The Act goes on to state that no twithstanding a bill of exceptions or a writ of error. person offered as a witness shall be excluded by is very easy to provide against that; but I must reason of incapacity from crime or interest from y think it is of very great importance in the ad-giving evidence, either in person or by deposition ac. astration of justice that there should be an oppor-cording to the practice of the court, on the trial of any ity of reviewing the decision of the court.. ALDERSON, B.-Oh certainly; but there is great vil accompanying it bor Watson When we got to the Ex. Ch. in a case other day, we had the greatest difliculty about I was arguing the last case in the Ex. Ch. PARKE, B.-We are not here as legislators; a great has been said against that; and a great deal is to =said against it ALDERSON, B.-It is worth considering I know it ight not to be decided without a consideration of evils on both sides, 1 MARUN, BIs there any mode of doing it, except till of exceptions? Watson. A bill of exceptions is a very inconvenient de of determining anything. issue joined, or of any matter or question, or on any inquiry arising in any such civil or criminal proceeding in any court or before any judge," and so forth; but they shall be examined. Now, if it stood without the provision which afterwards follows, who could doubt that any man, even who was indicted, might be put in the box and examined as a witness? If it stood alone, without the proviso, no one could doubt that parties might be examined; and the extent of that expression would be quite sufficient to include parties to a cause, and the person who had an immediate and direct interest in the victory on the occasion. But the Legislature has guarded and excepted from the enacting part, by the proviso, the parties to the suit, those who stand in the place of parties, lessors of the plaintiff, and landlords who are defending by means of their tenants, or bringing an action or defending an action, and all Best-In the present case are we to have permisto tender a bill of exceptions? POLLOCK, C.B.-If it will lie. When I was At- That has been found to operate beneficially; because, mey-freneral, cases arose (and one case has arisen although undoubtedly it has produced the commission e have had the honour to be here) where in each of the crime of perjury to a great extent, yet certainly I was very desirous to give every facility and this enactment has afforded the means of stamping istance that I could and in some other case and discovering the truth. Then comes the Act of ere I thought it was of importance, but it was not Parliament amending the previous one, and that is secuted; and I believe the reason was, it was the Act of the 14 & 15 Vict. c. 99. Now that Act of ed that there were insuperable technical diffi Parliament says that it is expedient to amend the lies which could not be got rid of. We cannot law in divers particulars; and it begins by striking se a court of error a party to these arrangements. out a great portion of that proviso to which I have hough I should, sign the bill of exceptions, and alluded, and says that so much of the section of the ough the Attomey-General should consent to it, Act of the 6 & 7 of her present Majesty, c. 85, as everything be prepared, when it got to the court of provides that the said Act shall not render compe, if the court found itself not invested with the tent any party to any suit, action, or proceeding inF of investigating the point, it ought to stay its dividually named in the record, or any lessor of the d, and decline to be a voluntary party. If it has plaintiff, or tenants of the premises sought to be rejurisdiction, it certainly ought not to exercise it covered in ejectment," and so forth-all that is reuntarily. pealed; and therefore the enacting part is thereby enlarged, the proviso and excepted portion from persons having a direct beneficial interest in the suit. ALDERSON, B.—It would ultimately go to the H. of EXCHEQUER. the operation of that enactment having been, by the enactment of this Act, repealed. Then it goes on, by the 2nd section, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding, in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding, may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence." Therefore, here, parties in a civil suit may "be competent and compellable to give evidence." Then, the next section raises the question which was mooted before the court: "But nothing herein contained shall render any person, who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself." Now, it was alleged that this was a criminal proceeding, or, at all events, that it was a proceeding for an offence punishable on summary conviction. Now, let us see what the cause of this proceeding was; because every information by the Attorney-General is not a criminal proceeding. He may proceed by way of information, and, in fact, declare in trover-advance, I should rather say, a claim against the defendant, in trover, in debt-in short, in ejectment, and in every species of action; and this is merely an action for the purpose of recovering penalties. Well, now, what is the meaning of a civil action," as contradistinguished from a "criminal proceeding?" It strikes me that the true test is this: if the subject-matter be of a personal character: that is to say, either relating to goods or property to be recovered by means of the proceeding-that then becomes a civil proceeding; but, if the proceeding is one which may affect the defendant personally at once, by the imprisonment of his body, in the event of a verdict of guilty being pronounced against him, without more, he is liable as a public offender. That is what I consider to be a criminal proceeding. It certainly may have been considered and undoubtedly informations by the Attorney-General have not been deemed criminal proceedings, but rather in the nature of a civil proceeding, or precisely like the old actions for recovering penalties under the Game Laws, which were we all remember. civil, as Now, let what the object of this is. Is it for the purpose of, on conviction, immediately taking the body and punishing for the offence the party who is found guilty? No; the object is to recover money-to recover that which by the law is made a debt; for by the 87th section of the 8 & 9 Vict. c. 82, the Act under which the us see penalty was sought to be recovered, you have this enactment: "And be it enacted, that all penalties and forfeitures incurred or imposed by this or any Act relating to the customs, or to trade or navigation, shall and may be sued for, prosecuted, and recovered by an action of debt"-by an action of debt!" by bill, plaint, or information in any of her Majesty's courts of record." Then it goes on to state that the debt may be recovered by summary conviction. Can any one say this action of debt would be a criminal proceeding? Would any lawyer contend for a moment that that would be a criminal proceeding? And yet here is the same man, who may be assailed in an action of debt, and would be competent under this Act of Parliament to be a witness; but if an information is filed he is not competent. Nothing can be so absurd. It seems to me, I own, it is not a criminal proceeding. Then, if it is not a criminal proceeding, let us look at the 87th section of the Act of Parliament; because, undoubtedly, the words "who in any criminal proceeding govern the whole, with the exception of rendering any person who in any criminal proceeding is charged with any indictable offence punishable by summary conviction. Therefore it must be a criminal proceeding in which the party is not competent_or compellable to give evidence. It seems to me that this is not a criminal proceeding, or anything approaching to the nature of that proceeding; therefore I think this man was entitled, under the Act of Parliament, to present himself before a jury for the purpose of being examined. ALDERSON, B.-It is clear that he can be a witness in justification in an action for felony. PLATT, B.-Suppose a man was indicted for an assault, he could not be a witness in his own case, because that is a criminal proceeding, and on conviction he is put into prison immediately. But if an action is brought against him for an assault, will any one contend for a moment that he is not a witness, according to the terms of this Act of Parliament. If the Act of Parliament has this effect, that is not for this court to consider; but if it says plainly that the Legislature intended at the time that the party should be made competent and compellable to give evidence, I think we must hold the law to be such as the Legislature declares. If that is an incorrect state of the law, nothing can be more easy than for those who have the power of legislation in this country to pass |