Sidebilder
PDF
ePub

1804.

rejected as a witness, because her conviction would inTHE KING fluence the jury. This case weighed with Lord Hardwicke

versus

BOSTON.

and with Chief Justice Lee in the cases of the King v. Ellis *, and the King v. Nunez †. But in the King v. Bray these authorities were somewhat shaken, and they were afterwards over-ruled by Lord C. J. Lee in the case of the King v. Broughton §. Afterwards, in Abrahams v. Bunn, this matter was very thoroughly discussed upon principle, by Lord Mansfield in giving the judgment of the court, and he coincided with Lord Hardwicke, who held, in a former case, that the " question of a civil action being "the same with that in a civil cause in which the witness "is interested, goes generally to the credit; unless the judgment in the prosecution where he is a witness can "be given in evidence in the case where he is interested." In Bent v. Baker it was laid down, that the party to be precluded from giving evidence must have either a certain interest in the cause, or the verdict must be capable of being given in evidence for him. In Smith (qui tam) v. Prager, which was argued for the purpose of trying the question over again, Lord Kenyon says, speaking of the case of Bent v. Baker, that it lays down a certain rule by which he had always endeavoured to guide his directions to juries in cases of perjury. Though he adds with great modesty, that he did not perhaps always decide rightly. It is therefore clear upon these authorities, that Briggs would be a good witness; for by convicting Boston of perjury he could not gain any advantage in the action at law, since the verdict could not have been given in evidence on the trial of that cause. But it is said, that although he has no interest at law to render him incompetent, yet he might avail himself of the verdict in equity and some nisi prius cases have been cited for the purpose of shewing this; but some of these are before the case of Bent v.

[blocks in formation]

↑ Rep. temp. Hard. 360, and Abrahams v. Bunn, 4 Burr. 2251. | 4 Burr, 2251. ¶ 3 Term Rep. 27.

§ 2 Str. 1229.

** 7 Term Rep. 60.

1804.

versus

BOSTON.

Baker, and all before the case of Smith (qui tam) v. Prager. These cases go upon the ground, that the Judge THE KING at nisi prius ought to take into his consideration what would be the consequences of the verdict at law, in courts of equity; an inquiry which the Judges at nisi prius are neither willing nor very competent to enter into; they rather endeavour to keep the provinces of the two courts as distinct as possible. But upon this point, as to the effect which it would have in equity, there is a distinction where the indictment is against a party to a suit in equity and against a witness: for where there is an action at law, and then an indictment and conviction of a witness, the court of equity will afterwards see whether there was any thing to entitle the plaintiff in equity to relief. This distinction between witness and party in equity runs through the whole of the cases. In the case of the King Dalby the indictment was against a witness. In the

[blocks in formation]

This was an indictment against the defendant for perjury in a trial on an action brought by A. Greenwood against the prosecutor for usury, in which action the defendant was the only witness, and a verdict was obtained against the prosecutor. first witness called was Priestman, the prosecutor.

The

LAW, for the defendant, objected to him as an incompetent witness. He had filed a bill in Chancery against the defendant and Greenwood, stating the perjury, and that the verdict was obtained on perjury, and praying an injunction. He cited the King v. Minitone, sittings after Trin. term, 1785. "This was an indictment for perjury committed in an answer in Chancery to an injunction bill filed by the prosecutor,

BULLER, J. who tried the cause, thought that the prosecutor was an incompetent witness, because by convicting the defendant of perjury the witness would certainly obtain a perpetual injunction.

Lord

This, Lord ELLENBOROUGH now said, was cited from a MS. note at nisi prius, taken by himself, and that it was before the case of Smith (quí tam) v. Prager.

1804.

versus

BOSTON.

King v. Eden * the defendant in the original action, THE KING against whom the verdict went, was held an incompetent witness, because he had not paid the debt and costs. The King v. Minitonè cited in the King v. Dulby, was before the case of Bent v. Baker. And in Bartlett v. Pickersgill the defendant bought an estate for the plaintiff. "There was no writing, nor was any part of the money paid by the plaintiff. The defendant articled in his own 66 name, and refused to convey, and by his answer denied 66 any trust. Parol evidence was rejected, and the bill "was dismissed. The defendant was afterwards indicted for

[ocr errors]
[ocr errors]
[ocr errors]

perjury, tried at York, and convicted upon evidence of "the plaintiff, confirmed by circumstances, and the defendant's declarations. The plaintiff then petitioned "for a supplemental bill in the nature of a bill of review,

[ocr errors]

stating this conviction; but the petition was dismissed, "because the conviction was not evidence, 22d Nov. 1762." That case shews that the plaintiff in equity could not gain any thing by this conviction. The mode pointed out is by obtaining a perpetual injunction; but I

Lord KENYON. "This witness is certainly incompetent, as he is clearly interested in, and may derive a benefit from the event of this cause; for should this defendant be convicted, he being the only witness to support the verdict, the court of Chancery, upon having this new matter stated in a new or supplementary bill, would order the money to be refunded *."

[blocks in formation]

Lord ELLEN BOROUGH, C. J. here read Mr. Justice Aston's note of the case of Bartlett v. Pickersgill, which exactly agreed with the statement by Lord Mansfield, in Burrows. The verdict went upon "circumstances confirming the testimony and proof by other witnesses,”

It was stated, that the defendant had demurred to the bill, which was dismissed with costs, and since that time the money had been paid by the prosecutor.

1804.

am informed by several eminent practitioners in the court of Chancery, that a perpetual injunction is never granted THE KING bat upon admissions in the answer, and that if the defendant denies the bill the plaintiff cannot obtain a per- . petual injunction,"

[Lord ELLENBOROUGH, C. J. "Your information goes only as to perpetual injunctions, not to all injunctions. Have you been able to find any cases where a conviction of perjury has been tendered in Chancery as a ground for an injunction?"]

"I have not been able to find any cases where the court of Equity proceeds as Lord Kenyon states in the King v. Dalby; and though his authority is very great, I cannot help thinking he must have been somewhat mistaken. The safer rule in all these cases certainly is to repel all these presumptions arising from equitable claims, which may, in a subsequent event, spring out of the case; and to leave it entirely to a court of Equity to decide, upon a review of all the facts, whether relief ought to be granted or not, and to consider what credit is then to be given to a party having convicted another of perjury in his own

[merged small][ocr errors]

SELLON, Serjt. contrà. "Certainly it must be admitted that there is a distinction between influence which goes only to the credit of the witness, and interest which renders him incompetent; and it must also be admitted that the courts have of late inclined rather to let the objection go to the credit than to the competency. This as a general principle, deducible from the cases cited, cannot be denied. But upon the principle mentioned in the King v. Dalby, and the King v. Minitone, Briggs must be considered as an incompetent witness. The distinction taken on the other side, that in the nisi prius cases referred to, the indictments were against witnesses, and not against parties to the suits in equity, makes for the

He then went upon the other ground, as to the prepon derance of the evidence, which it is unnecessary to state here.

versus BOSTON.

1804.

THE KING

versus

BOSTON,

present defendant. For if it is to be admitted, that a person in such a situation cannot be a witness against a witness

fortiori, he cannot against one who is also a party, and against whom his interest tends much more strongly to produce a bias in his testimony. In the cases relied on by the other side there was no suit pending in equity, but the objection was only that the conviction might probably be made use of, and the verdict acted upon by a court of Equity; but the rule now contended for is, that, whenever a suit in equity is pending, the complainant in that suit cannot be a witness on any indictment for perjury in the answer to that suit. Prior to the cases in the time of Lord Hardwicke, and in Burrow's Reports, in all cases of perjury and forgery, the party injured in the one case, and the party whose deed was forged in the other, could not be admitted as a witness. This is so stated by Lord Holt in the King v. Whiting. There are indeed some cases in which the evidence of the party interested is not rejected, but they are only those in which the witness cannot ex necessitate be dispensed with. In forgery this rule still prevails; and the person whose deed is forged is never called. The King v. Nunez + is directly in point with this. But the King v. Whiting was not a case of perjury; and though Lord Mansfield says, in Abrahams v. Bunn, that Lord C. J. Lee, in the case of the King v. Broughton, overruled these cases, yet it appears from the Report in Strange that Lord Mansfield was somewhat mistaken; for the Lord Chief Justice there said, that he would give no opinion at present further than observing that in Nunez's case the suit in the Exchequer was then depending, whereas the suit here in equity seemed to be at an end.' That distinction also applies in the present case, and in Bartlett v. Pickersgill the bill was dismissed and at an end.

[ocr errors]

[LAWRENCE, J. "Is not this suit at an end? The bill was for a discovery, and they got it."]

[blocks in formation]
« ForrigeFortsett »