« ForrigeFortsett »
1804. rejected as a witness, because her conviction would inThe King Jiuence the jury. This case weighed with Lord Hardwiclcc
versus a|)fj wjth 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 overruled 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." tn Bent v. Baker f 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 tarn) 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, thai 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 verdictcouldnothavebeen given in evidence on the trial of that cause. But it is said, that although he has no interest at law to reuder him incompetent, yet he might avail himself of the verdict in equity and some nisi prim cases have been cited for the purpose of shewing this; but some of these arc before the case of Bent v.
• 2 Str. 1104. f 2 Str. 1043.
X Rep. temp. Hard. 3G0, and Abrahams v. Bunn, 4 Burr. 2251.
Baktr, and all before the case of Smith (qui turn) v. 1804.
Prager. These cases go upon the ground, that the Judge th„ kiii#
at nisi prius ought to take into his consideration what B*r"uw
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
aid against a witness: for where there is an action at
l»w, and then an indictment and conviction of a witness,
the court of equity will afterwards see whether there wai
aojthing 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
T. Da/Ay * the indictment was against a witness. In the
• Peake, Nui Prius Cases. 12.
This was an indictment against the defendant for perjury in • trial on an action brought by A. Greenwood against the proseWor for usury, in which action the defendant was the only witness, and a verdict was obtained against the prosecutor. The fast witness called was Priestmau, the prosecutor.
Law, for the defendant, objected to him as an incompetent .tiloess. He had riled a bill in Chancery against the defendant ni Greenwood, stating the perjury, and that the verdict was obtained on perjury, and praying an injunction. He cited the Kiag ». Minitoni *, sittings after Triit. term, 1785. "This was an indictment for perjury committed in an answer in Chancery to w injunction bill filed by the prosecutor.
Bi'ller, J. who tried the cause, thought that the prosecutor was an incompetent witness, because by convicting the defadant of perjury the witness would certainly obtain a perpetual injunction.
'Tliis, Lord Ellin Iobough now laid, wai cited from a MS. note at »ui priui, takea by himself, and that it wai before the case of Smith (qui '*) ». tragtr.
1804. King v. Eden * the defendant in llie original action, Thi Kino against whom the verdict went, was held an incompetent versus witness, because he had not paid the debt and costs. The
King v. Miniton& cited in the King v. Dalby, was before the case of Bent v. Baker. And in Bartlett v. Pickersgill f " 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 name, and refused to convey, and by his answer denied any trust. Parol evidence was rejected, and the bill was dismissed. "The defendant was afterwards indicted for 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, stating tliis conviction; but the petition was dismissed, "because the conviction was not evidence, «2d Nov. 1762 J." 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 Kenton. "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 *."
* Espinasse's Cases at Nisi Prius, 07.
I Lord Ellenborough, 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.
am informed by several- eminent practitioners in the court 1804. of Chancery, that a perpetual injunction is never granted Tl(I KlNbut upon admissions in the answer, and that if the de- tenia ftndant denies the bill ihe plaintiff cannot obtain a per- 0,TO''petual injunction,"
[Lord EtLENiioRoiiGH, C. J. <f 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 areview 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 case*"
Sei,lon, Seijt. contra. "Certainly it must be admitted that there is a distinction between injluencc 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. Dalbt/, and the King v. Miuiloni, Rrigg* 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
* Ho then went upon (lie other ground, as to the preponJerance of the evidence, which it is unnecessary to stale here.
1804. present defendant. For if it is to be admitted, that a perThtktko son 'n SQCn a s'tuat'on canupt be a witness against a witness a fortiori, he cannot against one who is also apart}-, 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 perj ury in the answer to that suit. Prior to the cases in the time of Lord Hardwicke, and in Burrote'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 forgeryJ,his rule still prevails; and the person whose deed is forged is never called. The King v. Nunez f 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 m 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 ense, and in Bartlett v. Pickersgill the bill was dismissed and at an end.
[lawrence, J. "Is not this $uit at an end.' 1ne bill was for a discovery, and they got it."J
• Lord liaym, 396. + Strange, 10«.