The Express.
London, England, 1867-09-13 00:00:00

THE JAMAICA PROSECUTIONS.

(Before Lord Chef Justice &MU et Chambers.—dept. 10.

BRUCC T. Intl.

-
Mr. Reece, instructed by Messrs. Sheen and Ramo.,
the solicitors to the Jamaica Committee, appeared today
is support of an adjourned application under 1 William
IV. chap. 22, for an order for leave to examine the plaintiff
on oath before a commissioner as a witness on his own
behalf.

—Wien the application was first brought before his lord-
ship on Friday Let Mr. Reece brought to the notice of his
lordship the fact that an order had been made, on the
appliation of the defendant a few days ago, by Mr. Baron
Bramwell, for the examination of Lieutenant Edenborougb,
who it was sworn was about to leave England on a voyage,
and whose evidence would be material to the defendant's
ease, and urged that the present application was precisely
similar in effect to that of the defendant. His lordship
said that there was a great difference between this appli-
cation and the ono made before Mr. Baron Bramwell. In
that case the defendant was at liberty to say " An action
bas been commenced against me, the cause of which I can
oily surmise, but whatever it might be, I wish to take
the evidence of this witness for whatever it is worth, and
the plaintiff could cross-examine to snit his cause." Bat
if this present application were granted, the plaintiff
would Dave the advantage in knowing exactly what would
be laid before the jury, while the defendant would not,
and therefore could not have equal facility for cross-es-
gaining, and that as them were no particulars or declara-
tion delivered in the action, the application must be dis-
missed, and his lordship accordingly endorsed the sum-
mons dim:nosed. At the request of Mr. Reece to adjourn
the summons sine die, with a view of furnishing
lan to the defendant, his lordship erased the =-
meat, and adjourned the summons accordingly. The per-
titulars had now been delivered, and Mr. Ream submitted
that (even if they bad not been on the authority
of Fischer v. Hahn, reported in the Lem
Jeered, vol. 32 N. 8. 209, he was entitled to
have the application granted. In that case Honyman
bad obtained a rule nisi to examine the plaintiff rim ma
before one of the warders of the court, as a witness on his
own behalf under the above act. The writ was issued,
and at the time of the application no appearance had been
imbued. The plaintiff was • foreigner, and had to leave
England for the West Indies, and filed an affidavit by his
attorney's clerk, to the effect that he was a material and
necessary witness on his own behalf in support of his case
in the action, and that the trial thereof could not be pro-
ceeded with without the evidence of the plaintiff.
Mr. R. E. Turner showed cause against the rale, and
contended that the application was made too soon, inas-
much as no appearance bad been entered, and that the
plaintiff ought to have delivered his declaration before the
application was made. In support of this view he cited
mate. But Lord Chief Justice Erle rid that he was in-
clined to think that the affidavit was insufficient, but as,
however, the ease would in all probability come
on for trial before next term, he would make the
rule absolute. subject to the condition that the examina-
tion should not be used unless the plaintiff himself
made to the satisfaction of the court or judge at chambers
ea affidavit that the voyage was one of necessity, and that
the application for the examination was made bona tide.
He must also give security for costs. In this ruling Jus-
tices Williams, Wines, and Keating concurred.
In support of the present application affidavits by the
plaintiff and his medial attendant were filed, stating that
the plaintiff had been ill ever since his arrival in England
in May last, and was still in a dangerous state of health,
and that his long residence in the West Indies had ren-
dered him unfit to live in England, and strongly recom-
mended his immediate return to the West Indies as the
only mamas of metering his impaired health.
Mr. Rose, on behalf of the defendant, said that so far
back as December, 1865. a rit ia the Court of Exchequer was
issued by the plaintiffs ; thaton the 15th of May last another
writ in the Queen's Bench for thi mane cause of action
Tr served ; that Dr. Bruce had been in Fegland from
the service of the last writ up to the present time, and
had not yet even delivered bis declaration, but waited till
the long vacation to make the present application at •
time when counsel were out of town, and therefore had no
erportunity of consulting counseL He had only yester-
day evening received notice to attend to-day, and had sat
up W nigbt to prepare an affidavit setting forth the facts
sod grounds of his opposition to this application, which
ru icationtt re contended was reads too late- And he fur-
the was ever • case in which the plain-
tiff ourgteito be subjected to • rigid cross-examination it
was the present one.
Rix lordship said that the plaintiff had been in England
'aloe May last, and bad ample time to try his action at the
last arias, but instead of doing so be delayed taking any
kin until the present time. The application to examine
him lira more was made too late, and he should therefore
dismiss the summons. The summons was accordingly die-
*Caw.

PHILLIPS ALKIANDES V. SAME.
Mr. Reece made a similar application in this case, and
kat ed that the writ had been issued only on last Bator-
air, and therefore no time could possibly have been lost
making this application. Mr. Rose,
it appeared, had
Pico an undertaking to appear for the defendant, and the
Plait. tiff, to obviate the difficulty raised by his lordship
nnoself in the former application, had delivered particu-
lars similar to those delivered in " Bruce e. Byre."
Mr. Rose, who also appeared on behalf of the defendant
Ml this summons, said that it was true a writ had been
limed in the Queen's Bench on Saturday last, but a former
vas in the Exchequer was issued in the same suit in
"Mwober last ; and submitted that in this ease abo the
14sintiff had been remiss, and consequently the applies,
km should be refused.
His lordship agreed in this view, and semedingly dia.
killed the summons.