The Sun.
London, England, 1851-11-28 00:00:00

MILLER v. DEAR.

This was the second trial of an action for debt. At
the former trial, which took place before Mr. Justice
Cresswell last week, the jury, having been unable to de-
cide which of the parties was guilty of perjury, were
discharged without returning a verdict.
Mr. Sergeant Byles and Mr. Petersdorff were counsel
for the plaintiff ; and Mr. Collier for the defendant.
The plaintiff is a coachbuilder, living at Paddington;
the defendant is a fly-master in Marylebone. The par-
ties had dealt together for some time, and at. Christmas
last the amount due to the plaintiff was 691. The plain-
tiff stated that he from time to time received small sums
of money from the defendant, for which he gave written
acknowledgments, and tbat on the 9th of April, 1851, an
account was settled between them, no other person being
present, and the previous payments beinc, allowed, a re-
ceipt, which included them, was given for 111. 2i. Bd.,
the amount of a particular item; but the written acknow-
ledgments previously given to the defendant for those
payments were not returned nor cancelled. The defen-
dant having paid all the money claimed into court, ex-
cept 111., the question in dispute
~between the parties
was as to the payment of this sum, and the plaintiff
swore that he had not received it from the defendant or
his wife, nor bad he given any receipt for it.
Mr. COLLIER. for the defendant, said the matter in
dispute was trivial, as compared with the more impor-
tant question, whether the plaintiff, or the defendant, and
the defendant's wife, were guilty of perjury? For his
own part, he wished the matter to be thoroughly sifted,
and that the party who swore falsely, whichever it was,
might be punished for it. He should, therefore, as he
did on the former trial, call the defendant's wife, and
prove by her evidence that she had paid the money to
the plaintiff.
The LORD CHIEF JUSTICE said, although he under-
stood his brother Cresswell had admitted the defendant's
wife to be called as a witness by the consent of the par-
ties, he had well considered the question, and if it were
now objected to ho was prepared to reject her evidence.
He was satisfied that she would not be a competent wit-
ness under the late statute, and, therefore, that she would
not give her evidence under the same peril as other wit-
nesses. He had consulted the rest of his Learned Bre-
thren of that court on the subject, and they were agreed
in opinion upon it.
Mr. COLLIER said he was informed by his Learned
Friend, Mr. Warren, that the Lord Chief Baron had
that morning decided that the wife of a party to a cause
might be examined.
Mr. Sergeant BYLES—My information is, that the
Lord Chief Baron's decision was the other way,—.
(Laughter.)
The LORD CHIEF JUSTICH--W011; I will :ask him
himself about it.
His LORDSHIP then went and consulted the Lord
Chief Baron, and on his return said—lt is true the
Lord Chief Baron gave a decision on the subject, but
there is a slight inaccuracy in the report of it which
has reached us. It was the other way.—(Laughter.)
Mr. WARREN explained that ho was in court that
morning when the Lord Chief Baron admitted the wife
of a party to give evidence, and that if she were ad-
mitted by consent, or with any qualification, he did not
hear it.
Mr. COLLIER said, that as the Lord Chief Baron had
permitted the objection to be waived, ho hoped his
Lordship would also do so, and that the other side
would not press the objection, this being a question of
character.
The LORD CHIEF JUSTICE said it was highly 'im-
portant that the practice on this matter should be set-
tled, and he knew that the majority of the judges were
of opinion that the evidence was not admissible. As to
waiving the objection, did the Learned Counsel before
the late Act ever hear of waiving an objection to
calling the plaintiff or the defendant ? "Brother
By les' " added his Lordship, " what do you intend to
do? For as I deal with this case, so must I deal
throughout the term with other cases that come be-
fore me:' _ _

Mr.iSorgeant BYLES said that as the present case could
not be thoroughly sifted without the wife's evidence, ho
would waive objection to it.
The LORD CHIEF JUSTICE,—The Lord Chief
Baron tells me he bad some doubts this morning whe-
ther he ought to admit the wife's evidence, notwithstand-
ing the waiver.
After some further discussion it was, however,
re-
solved to call her.
Mr. COLLIER then addressed the jury for the defen-
dant, and called the defendant's wife, who swore that
on the 9th of April the plaintiff called for a settlement
of his accoutr, and that she then paid him 11/., and gave
him 2s. for beer for the men, and that the plaintiff then
wrote and gave her a receipt for 111. 25., which she now
produced. The defendant also was called, but ho said
he left all to his wife, and knew nothing of the transac-
tion, [On his L9vdship referring to Mr, Justice Cress-