2 Wilfon 395. S. C. "any offence against that act:" and alfo upon affidavits, that the defendant Curgenven did, within the fpace of twelve months next after the faid election (by making an affidavit) difcover one Cary, who had offended against the faid act, by receiving and taking money to give his vote at the faid election, who was convicted in an action at the fuit of one Luke, at the laft affizes for Cornwall, in the penalty of 500l. (as appears by the poftea and judgment thereon, now in court) upon the fingle teftimony of the now defendant Curgenven; who made the difcovery, and fwore he faw the bribe given to, and received by Cary, to give his vote at the faid election; the court made a rule to fhew cause. Serjeant Davy, for the plaintiff Pugh, upon fhewing caufe, obferved, that from the circumftances in the proceedings in the action of Luke v. Cary, there was great realon to believe the fame was collufively commenced, carried on and tried, with an intent to defeat and hinder Pugh, the now plaintiff, from recovering against Curgenven; for that it appeared by affidavit, that Cary's appearance was not entered by his attorney, but was entered by Luke's attorney; that Cary's agent in town pleaded to the declaration, without taking out of the office; and if the action had not been a collufive and friendly action, brought on purpofe to make Curgenven a witnefs, Luke's attorney would, and might have regularly figned judgment against Cary, according to the cafe of Swilland v. Limbrey exccutor, Eafter term laft, in B. R. wherein the plaintiff, upon an affidavit of service of the writ, had entered an appearance for the defendant, according to the flatute, left a declaration in the office, and given the defendant notice to plead thereto; the defendant Limbrey pleaded two pleas, without taking the declaration out of the office, or paying the plaintiff's attorney for the fame, and for entering the defendant's appearance; whereupon the plaintiff's attorney figned judgment; which the court, upon hearing counfel on both fides, held regular. Serjeant Davy alfo obferved, that the cause of Luke v. Cary was defended at the affizes by one young counsellor only, who made no objection to Curgensen's evidence; whereas caufes of this kind are ufually defended by more than one of the feniors and moft able counfellors upon the circuit; and that it appeared by affidavit that Curgenven himself gave the bribes to Cary, and to feveral other perfons to give their votes at the faid election; and that a verdict was found against him at the fummer aflizes 1768, at the fuit of one Rigg, for the penalties of 500l. and 500l. for corrupting Peter Buddle and William Hockin to give their votes at the faid election; whereupon a cafe was made for the opinion of this court, which was argued in Hilary term laft, when the court pronounced judgment for the plaintiff Rigg, which is in the memory of the court, but fome means. have been used to prevent that judgment from being entered upon upon record; however Serjeant Davy infifted that the court knew that Curgenven had been convicted of offences against the faid ftatute at the fuit of Rigg, for whom they had pronounced judg ment as aforefaid, and therefore they would not interfere to determine this matter upon a motion, but leave Curgenven to his remedy (if he had any) by an audita querela; befides he infifted, Curgenven ought to have pleaded the ftatute and the matter of his difcharge fpecially, that the plaintiff Pugh might have replied to it. For the defendant Curgenven it was faid in reply, that his having acted iniquitoufly in bribing the voters was no objection to his being difcharged from the penalties in this action at the fuit of Pugh, according to the faid ftatute; it appearing clearly to the court, that, within a year after the election, Curgenven difcovered Cary offending againft the faid ftatute, who hath been convicted thereof; that the caufe of Luke against Cary was as earnestly and ably defended by Mr. Hodgkins, Cary's counfel, as any caufe tried at the affizes; that the court will not prefume there was any collufion; that Curgenven was a good witnefs, as all accomplices are who have a pardon, or are to gain by a difcovery; indemnity is no objection to a witness, or that he is to be rewarded for the difcovery, which happens every feflions at the Old Bailey: As to the objection, that the conviction of Cary ought to have been pleaded in this cafe, it was impoffible to be done before judgment was entered upon the verdict against Cary, which could not be done until the fifth day within this prefent term; befides it is not neceflary to be pleaded; for in this very term, in the case of Sibley v. Comyn, B. R. a judgment having been given in evidence at the laft affizes, in order to prove that Comyn was a difcoverer within the faid ftatute, it was objected by the counfel for Sibley, that the judgment ought to have been pleaded; but the court of B. R. all inclined to be of opinion, that it need not be pleaded; but faid they would not give any certain opinion thereupon. Mr. Juftice Yates faid, that no judg ment, in fuch an action as this is, need be pleaded, except a judgment of recovery against the defendant himfelf, for the fame penalty for the fame offence; and Mr. Wallace (the King's counfel) being asked his opinion by Mr. Juftice Yates, agreed with him. As to the objection, that Cary's agent pleaded without taking the declaration out of the office, the plaintiff Luke's attorney, Mr, Harris, having accepted the plea, has waived that matter; and as to Mr. Harris's having entered an appearance for Cary, according to the ftatute, it is what is done in every cafe where the defendant doth not enter his own appearance. As to the objection, that it appears to the court that Curgenven has been convicted at the fuit of Rigg, fo is not intitled to D 3 the A new trial granted, al though there the benefit of the faid clause in the ftatute, which he now claims; it was replied by his counfel, that it doth not appear to the court that the Curgenven who had a verdict against him at the fuit of Rigg, is the fame identical perfon who is the now defendant in the cafe at bar; besides there is no judgment entered upon record in the cafe of Rigg v. Curgenven, and Rigg may do as he pleases, whether he will enter judgment upon the verdict or not. In the cafe of Sutton v. Bishop, B. R. it was determined there was no conviction until judgment be entered upon record; fo in Rigg v. Curgenven, there being no judgment, there is no conviction: Suppofe it was objected at the aflizes that a witness had been convicted of perjury, the judgment must be produced in evidence, the poftea alone will not do; that is this very cafe: Upon the whole it appears, that within a year after the election Curgenven made affidavit before a proper commiffioner to take affidavits, that he faw Cary take money to give his vote at the election, who has been convicted, at the fuit of Luke, upon the fingle teftimony of Curgenven; that the verdict and judgment are compleatly entered upon record, and are now here in court; that there is no evidence at all of any collufion, fo the court will not prefume any; that Curgenven was never convicted at the fuit of Rigg, there being no judgment in that cafe entered on record: And for these reasons they prayed the rule might be made absolute, to stay the entry of the judgment in this cause. Curia. We are all of opinion, that this is not a cafe wherein we ought to interpofe at all upon a motion: If Mr. Curgenven has the law on his fide, he muft take his remedy in some other way, as he fhall be advised. The rule was discharged per totam curiam. Norris verfus Freeman. C. B. DEBT upon a bond; defendant pleaded a general release; plaintiff replied non eft factum, thereupon iffue was joined; was evidence the caufe was tried at the last affizes for the county of Worcester, on both fides, before the Lord Chief Baron Parker, when a verdict was found because all for the defendant. Serjeant Nares moved for a new trial, upon fubfcribing to an affidavit that very strong circumftances of forgery and perjury a release were appeared upon the trial, whereupon the court made a rule to not called and fhew caufe. The Chief Baron reported, that at the trial the examined, &c. defendant produced a general release, supposed to be executed by the witneffes the plaintiff the 10th of October 1768, to which Albert and Goff appeared to be fubfcribing witneffes; Albert was called, and fwore, that in October 1768, he was fent for to go to the plaintiff's houfe to be a witnefs, that he went thither, and there there faw the plaintiff seal and deliver the release produced in evidence, and alfo faw the defendant execute another general releafe to the plaintiff, (that the other fubfcribing witnefs was a poor labouring man, but he was not called to prove the release), that this was done about one o'clock that day at the plaintiff's house, which is about thirty miles diftant from Worcester. John Webb, a clergyman, and Jofeph Collins, were called for the plaintiff, who fwore they had often feen the plaintiff write, and that the plaintiff's name fubfcribed to the release, was not of his handwriting, as they believed; and that on the 10th and 11th of Odober, the plaintiff and witneffes were at Worcefter all day it was the mayor's feaft day. Then Thomas Homer was called (for plaintiff), who fwore he heard the defendant fay, he would let judgment go by default in this caufe, and file a bill in Chancery against the plaintiff for an account, and did not pretend he had any release from the plaintiff. It alfo appeared, that the declaration in this caufe was of Trinity term 1768, and that the release was not pleaded until Trinity term laft. In reply, the defendant called feveral witneffes, who fwore, they believed the name subscribed to the release produced, to be the plaintiff's hand-writing; upon fumming up the evidence, the Chief Baron acquainted the jury, that he thought the ftrength of the evidence was with the plaintiff, but they found a verdict for the defendant. Serjeant Davy for the defendant against a new trial, infifted, that there never was a new trial granted, fingly, upon a judge's reporting, that the ftrength of the evidence was on the fide of the plaintiff or defendant; that in this cafe, there was evidence on both fides, of which the jury are the only proper judges; and although it is fworn (by the witneffes for the plaintiff), that the plaintiff and the witnelles to the release were at Worcester on the 10th and 11th of October 1768, yet the witness Albert did not swear that the relcafe was executed on the day it bears date, it might be drawn and written on the 10th, and not executed till fome days after; the alibi, only goes to falfify it's being executed on the 10th; the Chief Baron hath not reported, that the verdict is contrary to evidence. Serjeant Nares was about to reply, when the court, without hearing him, were of opinion, there ought to be a new trial. the court will Curia. There are many cafes where the court will grant new There are trials, notwithstanding there was evidence on both fides, as where cafes where all the light hath not been let in at the trial which might and grant a new ought to have been; we think the other fubfcribing witness, trial although Goff, ought to have been called and examined to the execution there was of the release, and he not having been called, we think it would given on both be hard the plaintiff fhould be bound by this verdict, efpe- fides. cially as the releafe is not in the power of the plaintiff, and fo evidence 1 fells for plain- the pound, is a good wit nefs to prove the contract and fale. he cannot prefer an indictment for forgery. The Lord Chief Juftice faid, he thought the evidence was very ftrong on the part of the plaintiff, and that if the caufe had been tried before him, he would (under the circumstances appearing) have called out for Goff the other fubfcribing witnefs, and if he had not been produced, he fhould have thought it a very strong case for the plaintiff, and directed the jury to have found a verdict for him. A new trial was granted; abfente Gould Juftice. Dixon and others verfus Cooper. A factor who SPECIAL action on the cafe, for 300 quarters of wheat fold and to be delivered to the defendant, at a certain day and place, and the defendant then and there to take and receive the fame for a certain price to be paid to the plaintiffs for the fame; but the defendant, not regarding his contract and promise, refused to receive and pay for the faid grain, to the plaintiff's damage: Upon the general iffue, this caufe was tried in London, and a verdict was found for the plaintiff. Upon the trial, one Morley, a factor for the plaintiff, who made the contract with the defendant, and was to have one fhilling in the pound for felling the 300 quarters of wheat, was the only witnefs at the trial who proved the contract; and it being objected he was not a competent witnefs, as being interested, that point was referved for the opinion of the court, who were now, upon debate, unanimously of opinion, that Morley was a good witnefs; that as a factor he was concerned both for the vender and vendee, was a mere go-between, and might be a good witness for either of them. A cafe in B. R. Scoley v. Gambier, Eafter, 7 Geo. 1. wherein it was held, that a Blackwell-hall factor may be a witnefs to recover his own commiffion, was cited by the Lord Chief Juftice. And fee the cafe of The King and Bray. B. R. Hill. io Geo. 2 Ld. Hard. 358. wherein many distinctions are made, between objections to the credit and competency of witnesses. Judgment for the plaintiff. 1 a warranty of a mare to be found, when Richards verfus Simonds. C. B. Entered of laft Action upon Norfolk, CHARLES SIMONDS late of Rodenhall with Harleston (to wit.) in the county aforefaid, blacksmith, was attached to answer unto Henry Richards, the younger, in a the was lame. plea of trefpafs on the cafe, &c. and thereupon the faid Henry, by Robert Greenacre his attorney, complains, that whereas he the faid Henry, on the 13th day of May, in the year of our Lord |