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London, England, 1825-11-24 00:00:00

Mitt t apt= to the defendant for
IC telling him that Mrs.
Mistoeb thet AM use. owe him a farthing, and
Xblld Woad be of serious consequence to
her:. Us that Mrs. Brooks must be mistaken,
instagt.,
auto.= to pzirteot4rmt
,htehhaadt 4.lleonLbluasrianti
business
cm her
hich
be had left at thMion was for a balance of le/. on a bill of ex-
change. He said it was, and that he was going to have that 10/.
for *e use of MI. which he had lent her; that he was not going to
let her have the ate of his money for nothing. She called upon
kiss again, and 'represented to him the extreme illness of Mrs.
iiisiaks that all her other detaining creditors had consented to her
dleellorge ; and that he wx the only person who opposed her lib,-
mem. He on this suasion put himself into a great rage, and
Baia ha would not send her her discharge, and that she may rosin
prises, for he would not consent to her going out, unless part of the
the 101. were paid (lowa, and a recuntv given for the remainder.
lli aka observed that Mrs. Brooks had been transacting business
in Chancery. and that she might as well have employed him to
put in her answer. Mrs. Arnold saw the defendant a third time,
arid at length toad him that Mrs. Brooks still felt confident she
did not owe hint say thirst. and that unless he immediately sent
he a discharge. he 'mold be prosecuted. He flew into a violent
passion, and said he would not ; that he had other claims upon her,
and that she should be and rot in gaol until she had paid him, and
alto made hint an ,apology for charging him with taking a false
oath. Application was then made to this Court by Mrs. Brooks,
for a rule to show cause why she should not be discharged out of
custody, and the proteedings set aside. Upon affidavits of the
above facts being made by herself and others. the Court granted a
rrteittet which it was ordered that the matters in dispute should be
to the Prothonotary and in the mean time all proceedings
&WI be stayed. The Prothonotary having read the affidavits,
didiaamined the defendant, male his award, by which he directed
lam in plaintiff Amid be immediately discharged, that all further
posesediap in the cause should be stayed, and that the bill of ex-
chsuipi should be delivered up to Mrs. Brooks. The present
wise was then commenced, and came in for trial before Lord
Chid Justice Best, at the Sittings after last Term, when
was given for the plaintiff. Damages, 3001. Mr.
Wylde - jection at the trial on behalf of the
the Rule of ' which was of-
suit against Mrs.
that
her-
action
of the
that no
Justice
that the

,hirh ex•

fit to

di%plealure
.131 u even

not be

„ Of St
sought to

. not
positive
admigpi.

...et point,
required Mr.
trial,

against the
confined to
• Role
He
. was
of the
stole,
Order

determined.
had been
not the
• open

by the
bow

a•.lmit that
`, of the

but that

T
___. Beapiat V - Mail argued that, - _ _. awards,
21110 *verb* examined the parties; so that •
f n weed Isisht be said to be °budged through the
d . eft dtht pietielntereeitesed.in le ttedeeitti cg,
the result
w:ept...cttiw«Ata.
ogrieur
belf
.e. Ar caw
seat
tcoi,npeatendeedidadforthoen
defendantthe other
We ft weal. lend to this result, that no arbl.
*wad hot OM WO the judgment of the arbitrator, by showing
case istigraneededlo part upon the evidence of the plaintiff. The
Ilergeent submitted, that, upon principle, it would be mar
iresesweshon,- 14 the administration of justice, to exclude maMall
fietillielbtelogebeirttihts in a Court of Law, because, in the ealMilli
WA Its* *sideway bad es neeeseitate been made use of.
MIS LIMES followed on the same side, and contended
die, ease, the only evidence that could be adduced of the
wheineden of the snit was the rule of Court, and, therefore, es
ieeWallieeit,, k must be admitted. If not, then in no ease could any
ruled Ceort be admissible, for they were always obtained upost
the math of the parties. The Learned Sergeant then quoted the
following cues to support of hie argumeat t —Carbourne v. Rey:
raid, Cooper's Reports, An; Wane v. Bryant, Barns And Cress;
liep last No. p. M. In the latter ease the very question arose I
as to the power of an arbitrator to examine the parties on oath, and
the Court thought the general words of reference, and without the
meal words expressly authorising the arbitrator to examine the
pasties upon oath, were sufficiently large to empower the arbitrator
to do so, to whom a discretion was given in that respect. He sub-
mitted that this ease mine within the decision now contended fur,
sod was a direct authority for the Court to discharge the rule.
Mr. Sergeant TADDY this morning argued in support of the
Rule. He was prepared to show that the verdict which had been
s= hi this case ought to be set aside, and • nonsuit entered.
were a continued series of authorities which went to sustain
ehiAourine, that in all civil suits the evidence of the parties could
at either directly or indirectly be received. The Learned Sergeant
ekes voted the case of Ilabenhon v. Troby, 3 Espinasse Rep.
p.: as, where Lord Kenyon refused to examine an arbitrator as to
SUMP "ha had appeared before him on the examination of the
upon the principle that the parties themselves could not
=llll4 been examined in the former cause which had been referred to
the 'Arbitrator. He also quoted the opinion of Lord Chief Baron
OWN* wanted in that Learned Baron's Law of Evidence, p. 30
and'el, where it was said that a verdict obtained upon an indict-
NMI for a ereapsas by the oath of the party, cannot be given in
enigma upon an action brought for the same trespass, " for if the
pony% oath be no evidence in his own cause (as we shall hereafter
elaiew that it is not), then cannot the verdict be any evideoce that
is founded only on the party's own oath; for what cannot be tri-
dents" directly, cannot be made evidence by any anch circuity." In
the ease aloe of Hathway v. Barrow and others, 1 Campb. p. 111,
wideh was an action for a conspiracy to prevent the plaintifffrom
obssining his certificate under a commission of bankrupt, the
diffident* bad been convicted of the conspiracy, and it was pro-
Pia to put that in evidence, but Lord Mansfield held it was not
iteteLevidesce, having proceeded partly on the testimony of Bath-
way, who. if it were admitted, would in effect be swearing in his
own cause.
Lord Chief Justice BEST said he remembered • similar decision
of theism Lad Erskine, while Lord Chancellor.
Mr. Sergeant TADDY then proceeded to show that the doctrine
for which he was contending was laid doom in Phillips's Law of
Esidence, vol. 2. p. 820(2d edition).
The Low Cant Jairricit—Brother Teddy, no man has a
higher respect than I have for the very able work which you are
now quoting ; but I will say of It as Lord Mansfield said of
Blaektitone--'• I hope I shall never live when that book is taken as
aothoriiy." Any cases which are mentioned by Mr. Phillips you
pelf( course at liberty to quote.
' " Sergeant TADDY utd not mean to say Mr. Phillips was an
ty ; but certainly the cases which were cited by him showed
bad well investigated the subject. The Learned Sergeant
elentebleted the various cases from Phillips, to show that no
1•t dam rule of Court, if obtained upon the testimony of
Party,"llMad be produced as evidence In any subsequent action
M abet party. As to the argument that this was the only means
by which the plaintiff could show the previous action to have been
Isiestnined, he contended it was not the fact. She might have
the termination of the stilt by other evidence than the pro.
of the rule. By force, therefore, the authorities he had
sod also this last circumstance, that it was not
MIN , he submitted the rule should be made absolute
the verdict and entering a nonsuit. •
PEARL (in the absence of Isle. Sergeant Wylde)
A the tame side.
Celfal having consulted together for a few minutes,
-.Lied Chief Justice Bevr said, he was of opinion that there was
oeleundation foe this motion, and that the rule must be discharged.
HS was desirous that the rule to show cause should be granted,
timaase ise lif! f•arfol that be might have pressed the point at
'' the tel further than he ought; but as no Gentlemen hid made
that objection, he would suppose that he had only admitted the
rule to he received in evidence, ao fat as it went to show this
the limy suit was at an end. Then came the question, whelhaltl
chlitepeetes of evidence was admissible fur the purpose It was ith
(Weed to this mese, namely, that the suit was determined. 11, '
war of opinion that it was admissible for that purpose, end be
weed entirely with the masoning of hie 11*ther Lewes, timer
this evidence was not admissible, it was Impossible to prove shot
ISIS SOS was at an end ; foe the suit was put an end to by the rule,
sad Moot capable of Wag received, then there was no proof of
the alit hiving terminated. If this was contended for, the argil.

• verdict was given foe the plaintiff. Damages, MO!. Mr.
Wylde took an objection at the trial on behalf of the
ing
arcs,
slee prt:derotiwoothoaft
ttl,tee
sßuiue of
tlbyc Court,
terwlaigaich asinswtmonif-.
BMW wee determined. The Learned Sergeant contended, that
as the Auk was obtained upon the affidavit or Mrs. Brooks her-
shit it could not be given in evidence in any subsequent action
in which she was a party, es it would be in contravention of the
well-known principle In the law of evidences, which said that no
=could be a witness in his own mum. Lord Chief Justice
thought the Rule was admissible so far as to show that the
suit had been determined ; but not further. He, however, would
give the defendant leave to move upon this point, to set aside the
verdict, and enter a nonsuit. But whether the defendant did or
did not, was of no great consequence, for the facts which hid been
deposed to were or such • nature as made it imperative on the
Court to tall upon the defendant, he being an Attorney, to answer
them by affidavit. In the course of the present term Mr. Sergeant
Wylde moved for a Rule to show cause why the verdict should not
tee set stride arid a nonsuit entered. The Learned Sergeant con-
Nadia that ro Rule of Court could operate as a legal determination
de a fait. It was only in the nature of an injunction which ex. '
papa the party to such punishment as the Court should deciti fit to '
maim in case of Its being violated, but no order or Rule of Court
coidd prevent him, if he thought proper, to risk the displeasure
of the Court, from proceeding to trial with the arse. .Rat even
it it Could, still, in this ease, he contended, the Rule could not be
received as evidence, inasmuch as it was obtained solely, or at
least principally upon the oath of the party who now sought to
nuke use of it to her own advantage.
The COURT were clearly of opinion that the Rule operated not
merely as a stay of proceedings, or an iniunction, but as a positive
deetemlnition of the suit. With regard, however, to its admissi-
bility, they were not so decided ; and, therefore, as to that point,
the Rale was granted. The Court at the same time required Mr.
illt to answer by affidavit the matters sworn to at the trial,
and e7fler
ered &Rule to be 'erred on him for that purpose.
Oct Toesday Mr. Sergeant rAt'Orl•N showed cause against the
RaSrfce setting aside the verdict. The question was confined to
the keit possible coulee's; it being merely whether the Role
could be received in evidence, as a determination of the suit. He
costended that It could, and that In cave of 4, Campb. 213,fit was
decided that a Bole of this description was • determination of the
snit. In a cue in I Esplnasse, p. 80, a similar question arose,
and there the Court took a distinction between a Judge's Order
a Role of Court, Lord Ellenborough observing that a Judge's
t'
intuit! not put an rod to a stilt. but a Rule of Court would,
... ta lent a prima fade evidence that the suit was determined.
isbjhalon to the receptioo of the Ruis;was, that it had been
gametal Rion the oath or the party ; she, however, was not the
only wow examined; and, besides, it was now too bete to open
that ad of argument, inasmuch as Mr. Carpenter himself was
: ad
=ll
by the Prothonotary ; and he was also heard by the
...iia rtztird ti:itablepreßule being madeliw abeolltutlee;olZneefititrme bow
Flfleaell,Ssence of the afirtft of tthe tpsresui:nat u
plaintiff?
The &ono cum,. JUSTICE—Had you not better wimit that
the geaseal ark Is, that a judgment obtained by the oath of the
pony Mew be used by that party in • subsequent case, but that
therjare esespodone to every rule, and that this is one of them ?
N r.
tingsemetyetronxst Men argued that., in ace of swards,