66 SELLON. They might have gone on for an account: the bill prays an account. Suppose the bill had been in part heard, and a decree was about to be made, then, according to the case of Needham v. Smith," if a witness is convicted of perjury after a hearing, the party will be entitled to a rehearing.' The case of the King v. Minitone is precisely in point with the present. The case of the King v. Pepys || was after the suit was ended. It It is there expressly stated, Upon this answer the bill was dismissed, and the present prosecution founded.' [Lord ELLENBOROUGH, C. J. "Whether the bill is dismissed or in force, have you any case where a court of equity has looked at a conviction of a witness for perjury in order to guide its decree? Though it is strange that Lord Kenyon should have stated what he did, yet at nisi prius he might have been taken by surprize."] . SELLON. "In Fanshawe's case t it is said, 'In an indictment for perjury, on an answer in Chancery, resolved first, the plaintiff in Chancery is no witness pending the bill; secondly, he is after the bill dismissed, 4 IV. and M. However I have been unable to discover, upon the inquiries that have been made, what is the present practice of Chancery; but it seems, from the tenor of the cases, to be taken for granted that the conviction would be looked at in Chancery +.1 " Lord ELLENBOROUGH, C. J. "The objection to this verdict, in order to obtain a new trial, is taken upon twe grounds: first, upon the incompetence of the witness Briggs; and, secondly, upon the weight of the whole testimony being in favour of the defendant, and against the conviction under this verdict. As to the competency of the witness it is said, that he has an interest in obtaining a conviction of perjury, because that conviction, *2 Vern. 464.-|| Peake's Nisi Prius Ca. p. 138.--+ Skinner, 327. He then referred to Mr. Hargrave's notes on Co. Litt. 6, b. and quitting this point of the admissibility of the witness, went upon the other as to the preponderance of the evidence. 1804. THE KING versus BOSTON. 1804. THEKING versus BOSTON. when obtained, would be available to him, the witness, in his suit in equity; either by inducing a decree in his own favour, or by laying a ground for a supplemental bill, or in some other way, according to the practice of the courts of Equity. No case, however, has been cited to us to shew that a court of Equity would have looked at such a conviction, at all, for that purpose, or that it could, in any manner, be so available to the party. This position is not only destitute of authority on the one side, but there is a direct authority on the other, Bartlett v. Pickersgill, that upon a case of this kind it would not be received in a court of Equity for the purpose to which it is said it would be applied. And it is but reasonable to presume that it would not; for indeed it would really be to render a party, in a suit in equity, entirely his own witness, and enable him to set up what defence he chose; by disabling the other party from impeaching his answer by an indictment for perjury. To consider this person as an incompetent witness would be to break in upon the course of judicial authorities now long established. In Bent v. Baker the principle was taken as settled, that if the proceedings in the cause cannot be used for him, he is a competent witness, although he may entertain wishes upon the subject; for that goes only to his credit, and not to his competency." The same rule has been adopted in the case of Smith (qui tam) v. Prager. The only existing anomaly which forms an exception to the general rule, is the case of a party whose name is forged to a bond, note, or other instrument; who cannot be a witness on an indictment for forgery committed in respect of that instrument. This I consider as a perfectly anomalous case, and on what principle it has obtained, it is not for Judges in a court of law to consider at this day. It is rather for the legislature itself to inquire, whether it is a distinction that ought to continue to be acted upon; and until it is revised and altered by the legislature, which I shall not anticipate will be the case, we are bound by the decisions to abide by it. As to the second point, his Lordship observed, that f d 1804. versus BOSTON. although there appeared some room for a doubt, it was GROSE, J. "Two points have been made in this case LAWRENCE, J. "It cannot be necessary to say more after the two points have been so fully gone into, than that, on the point of law, I agree with my brethren; and that on the point of fact, though there may be some difficulty in the case, it has been very properly decided by the jury." LE BLANC, J. "The point of law must depend upon the party having some interest in the cause; and it does not seem that the party concerned in the suit in equity, and the defendant in the suit at law, could have taken any benefit whatever from this conviction." RULE FOR A NEW TRIAL DISCHARGED. 1804. SMITH versus WOODWARD. SMITH versus WOODWARD.-Saturday, February 11. IN debt on bond, with a profert, the plaintiff must produce the bond at the trial or be non-suited, notwithstanding it is in the hands of the defendant, and he, upon notice to produce it, neglects or refuses to do so. If it be lost out of the plaintiff's possession after declaring, he must amend his declaration, by declaring as on a lost bond. THIS IIS was an action of debt on bond, in which the plaintiff had declared with a profert. Issue was joined on non est factum. The bond being, in fact, not in the hands of the plaintiff, but having been taken by force from him, and being in the possession of the defendant, the plaintiff gave notice to him to produce it. at the trial, which he neglected to do; and the plaintiff proceeded to give parol evidence of it, and to shew that it was taken from him by the defendant. This was objected to by the counsel for the defendant; but the Lord Chief Baron MACDONALD, before whom the cause was tried at the last assizes for Cambridge, over-ruled the objection, and the plaintiff had a verdict. It was moved in Michaelmas term last, by SELLON, Serjeant, to set this verdict aside, and enter a nonsuit on the ground of a mis-direction of the Judge; for that nothing could satisfy the profert in the declaration but the actual production of the bond. A rule was granted accordingly, and now B. HART, for the plaintiff, shewed cause, and urged, that notwithstanding the profert in the declaration, it was not absolutely necessary to produce the bond in this case; for it, might be true that the plaintiff had the bond to produce at the time of declaring, but it might be lost in the interval between that time and the trial; and he would be without remedy unless this secondary evidence were admitted. But 1804. SMITH versus THE COURT held, that after the profert, the production of the instrument declared upon was absolutely indispensable, and that the plaintiff should have amended his de- WOODWARD. claration if the bond were lost before the trial. They therefore made the rule absolute for a new trial, it being drawn up in that way, as SELLON, Serjeant, stated, by mistake; and although he urged that he took the objection at the trial, and moved for a nonsuit to be entered, they would not help him, but granted the rule only as for a new trial, in order that the plaintiff might in the interval move to amend. IN THE COURT OF CHANCERY, IN HILARY TERM. EAST INDIA COMPANY versus DONALD.-Jan. 31, 1804. IF an answer contains a positive denial to the facts stated in the COMPANY versus THIS was a bill filed by the East India Company, pray- EAST INDIA ing that the defendant might be decreed to pay to them the sum of 1000l. with interest, as money had and received to their use, under the following circum stances: Messrs. Mitchell and Crawford being owners of the ship Fort William, had chartered the same to the East DONALDI |