Sir George Pownall, Knight v. John Ives Mascall (United Kingdom)

P ~ ~ ~ A ~ L (U. MASCALL E18331 I1 KNAPP, 161

[The Deccan case is reported in the following reports :-‘‘ Proceedings in the Deccan

Prim Case ” (2 vols. London, 1823) ; Kinloch’s “ Abridgment of the report of

the Proceedings in the case of the Dewan Prize Money ” (London, 1864), 2 St,

Tri. N.S. 961. It is discussed in Banda and Elilwee Bo@, 1866, L.R. 1 Ad. and

E. 109, pp. 148-156, 267; and see Dr. Lushington’s judgment in the Report@

of the Banda and Kirwee Booty Proceedings, 30th June, 1866, pp. 13-18; and

Report of Commissioners appointed to inquire into the Realisation and Distribu-

tion of Army Prize, 1864.1

E1611 ON APPEAL FROM ANTIGUA

SIB GEORGE POWNALL, Knight,-Appellant ; JOHN IVES MASCALL,-BP-

~ ~ n ~ e y ~ ~ [Nov. 27 and 29, 18331.

A bill of exceptions having been taken to the directions of a judge, and sealed by

him, and the case having baen removed by w r i t to a Court of Error, an

affidavit was filed, stating that an allegation in the bill, that the-judge had

declared that certain evidence was wnclusive, was incorrect, since he had in

f ac t left it to the jury, and that the bill omitted to set out material points of

the evidence, and the judge, upon being called upon by the Court of Error,

corroborated the state men^ of the affidavit, declaring that he had sealed the

bill under an erroneous impression that it had been settled by the counsel

on both sides. Held, that, the Court, of Error aught to have directed the

bill to have been taken off the file far the purpose of having it amended by

the judge’s notes.

It is not necessary, in the Rritish West Indies, to sue out a writ to oblige a judge

to confess or deny his seal t o a bill of exceptions.

The appellant i s provost-marshal of the Island of Antigua, and executes the

office by deputy, the grant of the office having been made previously to Lord Shel-

burne’s Act in 1783. The responde~t had been employed as a clerk in the provost-

marshal’s office there; and on the 3186 of May 1831, he brought an action of assumpsit

against the appellant, to recover the amount af his services and fees on sales under

executions in that situation. The action was tried, on the 31st of Suly following,

before the Chief Justice and the Assistant Justices of the Court of ~ o i i ~ n i o i ~ Pleas

of the island and a jury, and the appellant recovered e1147 currency damages. The

principal question during the trial was, whether the respondant had been employed

by the ~ppel lan t or by the appellant’s late deputy provost-n~a~hal, Mr. Nanton,

who was then dead. A bill of exceptions was taken by the appellant’s counsel to

the Chief Justice’s directions to the jury, to which he put his seal.

The bill of exceptions was to this effect: ‘‘ That the {162] counsel for the re-

spondent offered in evidence an account, headed, ‘Dr. Sir G. Pownall, Knight,

~’rovost-~arshal-gene~al, etc., in account with John I. Mascall, er.,’ and also pro-

duced several witnesses; that is to say, Janies Armstrong, who gave evidence ‘ that

the items as to the amount of sales were made out agreeably to the usual charges,

but could not prove positively the particular sales upon which those charges arose;

believed the salary agreed to be paid by the late Mr. Nanton was as charged (&250

per annum): that he never knew of any account having been made against the

a~pe l l an t as the principal in the office, or of any demand having been made against

him during the lifetime of Nanton, who died in January 1831 : that the respondent

has performed the duties of chief clerk from 1817 to 1830.‘ Abraharn Roach, who

being desired to mark the sales which came within his recollwtiorr, commenced so

doing, and, after proceeding for some time, expressed his anxiety to refresh his

memory by a reference to the sal@ book kept in the marshal’s office ; upon which the

respondent’s counsel moved for an order from the Court for their production, to

which b t h the deputy provos~marshal and the counsel for the appellant objwted,

inasmuch as there was no privity of contract between the appellant and respondent,

441

11 KNAPP, 163 POWNALL v. NASCALL [I8331

the sales book having been kept in the name of Nanton, and not in the name of the

appellant, and the entries having been made by the respondent himself. Notwith-

standing which, the Court ordered the sales book to be produced ; upon which the

appellant’s counsel desired it t o be noted that he should, by bill of ex-ptions, object

to the admission of such testimony: that the witness, Mr. Roa& having had re-

ference to this [I631 book, proved the various items stated in the particulars of

charges made for sales by the respondent in the books of Nanton; and i t was

proved that a demand has been made upon the administrator of Nanton by the

respondent for the1 balance now demanded from the appellant subsequently to1 the

death of Nanton ; and that no account in writing or otherwise had previously thereto

been delivered t o t.he appellant, or any demand made, against him, o r any other

person or persons upon his account, at any time whatever, by the respondent, or

by any person on his behalf, charging him with the payment thereof, prior to the

month of January 1831, or at any time since the e m p l o ~ e n t of the respondent

as chief clerk in the office of Nanton in 1817 : Whereupon the counsel for the appel-

lant objected to the matters so sworn to by the said several persons as witnesses as

aforesaid being admitted and permitted to go to the jury as evidence in support of

the issue, and insisted that they were not sufficient to entitle the respondent to a

verdict; but the Chief Justice and Assistant Justices declared their opinion that the

said ma t tps ought to be admitted to go to the jury in evidence in support of the

issue on the part of respondent, and did permit the same to go to the jury as con-

clusive evidence in support of the issue on the part of the respondent.”

A wr i t of error wa8 subsequently obtained on the 5th of the following August,

directed to the Chief Justice of the Court of Common Pleas of Antigua, and made

rcturnable before “ Our Court of Error to be holden for Our said island of Antigua,

a t the court-house in the town of St. John;” and on the 6th of the following

September the appellant filed his assignment of errors. The respondent then pre-

sented a petition to the Court [lfisl] of Errors, praying them to appoint a day for

hearing a motion, that the writ might be quashed for irregularity, and the bill of

exceptions taken off the file. A day was accordingly appointed, and subsequently

an afEdavit was made by the respondent in support of this application, “ tha t

although the Chief Justice, in answer to the objection made by the appellant’s

counsel to the evidence adduced in support of the action, declared the same to be

matter fit for the consideration of a jury, he afterwards in his charge to them dis-

tinctly gave it as his opinion that i t waa not sufficient in law to warrant them in

finding a verdict for the respondent; that the substance of the bill of exceptions

was not reduced into writing when the exceptions were tendered; that in it the

Chief Justice was alleged to have permitted the evidence to go to the jury as con-

clusive, which was a t variance with the record which had been certified in the cause;

and that it did not contain the mhole of the evidence adduced in support of the

action, but that several facts and documents were not noticed therein, which the

respondent was advised were material to his case, and must have mainly contributed

to the verdict in his favour.”

The principal grounds on whhh the application was sustained in the court below

were those mentioned in the affidavit, and also as to the wr i t : that the jurisdiction

of the Court of Error, which was founded on an Act of the Island and the Royal

instructions to the Governor, ought to have appeared upon the face of the writ,

according to the practice of the court; that the writ had not been aIlowed in the

regular form; that the respondent had -been served with a notice of bail in error on

the 3d, although the writ had not been sealed till the 5th of August; and as to the

bill [I@] of exceptions, that as the evidence was not really decided to be conclusive,

but went to the jury with an opinion of the Chief Justice that it was not sufficient

in law, the appellant’@ counsel aught to have demurred to the evidence or applied

for a new trial instead of filing the bill; that the bill proceeded entirely upon a

statute of Great Britain, which neither directly extended to the island, nor had beerr

adopted there by usage or locai enactment; and that even assuming that statute

to have been in force, the appellant had not coniplied with the forms p r ~ c r ~ b e d by

it, as he had not sued out a writ to oblige the Chief Justice to appear in the Court of

Errors and acknowledge his seal, but had proceeded to assign errors before the

Chief Justice had acknowledged his seal.

The Court of Error, which in Antigua is formed by the Governor and Council,

442

POWNALL 9. MASCALL [I8331 If KKNBFP, 166

on the 19th of September, ordered that the writ should be quashed, with costs to be

paid by the appellant, and the paper writing purporting to be a bill of exceptions

should be taken off the file for irregularity. This order was not, however, drawn

up till the 9th of the following November, during which tinLe a minute map framed

by the Governor stating the grounds of the application, and also the notes and

charge to the jury a t the trial of the Chief Justice, who had been applied to for

them by the court. In these notes i t appeared, that besides the evidence stated in

the bill of exceptions, the deputation by the appellant to Nanton, and a bond of

indemnity to the appel~ant’s agent against all official ~ i a b ~ l ~ t i e s and expenses, as

well as a letter to prove the allowances to the chief clerk of Nanton’s predecessor,

had been produced on the part of the res~ondent, and evidence had been gone into

on the part of [166] the appelIant to prove that the respondent had formerly made

out his accounts against Nanton and not the appellant, and also to dispute the value

of his services. Tlze Chief Justice observed, that he had left the evidence entirely

to the jury, and if he had used the expression that the evidence was conclusive, as

stated in the bill of esceptit>ns, which he might or might not have done. it was not

with the intention of controlling the jury, and that he had signed the bill of ex-

ceptions under the i~p res s ion that i t had been perused by both parties’ coun8elz

according to the usual practice. E5 further stated, that he did not think that the

appellant would, under the circumstances, have obtained a new trial.

The appeal was against the order of the Court of Errors, and the appellant pro-

ceeded in his case to pray that the Council would also reverse the judgment of the

Court of cornn~on Pleas ~ o i ~ s ~ u e n t upon the verdict, and direct a ?w&-e de aovo.

Burge and Keltlly, for the Appellant&.-The objections both to the writ of error

and the bill of esceptions which prevailed with the Court, of Error below are totally

without foundation. The Courts of Error in all the West Indian islands governed

by the British law are constituted solely by the Crown, under the 4’7th and 48th

Ins~ruc t~ons to their governors. Ths Court Act of Antigua considers the Court of

Errors as constituted j i t establishes, however, a Court of Common Pleas, and the

115th section of i t directs that writs of error “ shall lie from the judgments of the

Court of Common Pleas thereby established for such sum, and before the Corn-

iiiander-in-ch~ef of the Leeward Islands, and such number of His Majesty’s E1673

Council as His Majesty do or shall direct,” with provisions in case there shall be no

instructions upon those heads. Now the first objection to the writ of error in the

present case was, that i t did not recite the instructions to the Governor or the

Court Act, and in support of i t two precedents of writs of error containing those

recitals were cited in $he court below, and are now printed in the appendix to the

respondent’s case. There are, however, no other precedents of a similar nature

that can be found in Antigua, and in a late case, At?& v. Frisby,“ in that island,

the writ of error was precisely in the same form as in the present, and no objection

was made to it either in the court below or in the Privy Council, where the judg-

ment of the court below was reversed on appeal. In the other colonies too no

instance i s known of such recitals having been introduced into writs of error ; in

Jamaica, indeed, and many others of them, there i s no statute which alludes to

the oourt of error in the same manner as the Court Act does in Antigua. This

objection ought not therefore to be allowed to prevail. The second objection was,

that the writ was not allowed. The answer to this is, that the 160th section of the

Court Act directs, that an writs of error shall be immediately lodged in the

Secretary’s office after being sealed ; )’ and the 164th section provides, that 011 lodging

this writ in the Secretary’s office, the Secretary shall make a transcript of the

recerd, and the plaintiff in error shall assign errors within eight days after the

return. All the directions of these [I681 sections were complied with in the present

case, and the record was duly returned by the Chief Justice to the court of error.

If, indeed, there was a ~ ~ t ~ ~ ~ ~ in the ob~ection, it must be held to have been w a ~ v e ~

in the course of the subsequent proceedings. The remaining objection to it, that

the notice of bail in error was given before the writ issued, only amounts to the

* This case was heard before the Privy Council on the 16th o f April 1831. It

was an action by a residuary legatee against a debtor of his testator, and the

j u d p e n t below was reversed, on the ground that no such action could be brought.

443

._.I____ _ -^_ _-_. -

X I KNAPP, 169 ~ ~ w ~ A ~ ~ v. ~ A ~ ~ A ~ L f18333

fact, that the respondent had longer time to inquire into the sufficiency of the

ap~ellant’s securities for the prosecution of his writ than the strict rules of the

court would have entitled him to. There is nothing in the Court Act that says, a

w r i t of error shall not be sustainable for such a cause as this, and it is difficult to

imagine how it could affect it.

With regard to the bill of exceptions, the first objection which was made to i t

below waB, that the statute 2d Westminster [13 Edw. I. c. 311, by which i t was first

given, does not extend to Antigua. It cannot, however, be seriously questioned for

a moment that all the statutes in a ~ e n d ~ e n t of he law, passed before the acquisi-

tion of a colony by Great Britain, are necessarily deemed to extend to it. Some

CoIonial Legislature indeed, from extreme anxiety to avoid error upon this subject,

have re-enacted some of these statutes themsehes ; but without any such enactment

there is no doubt, that they would have formed par t of their law. In Jamaica there

i s no act of Legislature respecting bills of exceptions, and yet the Privy Council

has been constantly in the habit of receiving appeals from the decisions of the

court of error there upon them. With regard to the other objection, that the judge

was not called upon by wr i t to confess or deny his seal, it is perfectly inapplicabl~

to the method of proceeding on bills of exceptions in colonies. No mode i s indeed

pointed out by the Court [I691 Act ,of Antigua by which the-judge should be called

on to do so. It is quite clear that he could not do it before the bill g a s filed, for

then some court must have been in existence before which he must have come and

confessed his seal; but courts of error, in the colonies, from their nature, are only

convened as occasion may require. The practice i s universally, in the British

West Indies, that the bill of exceptions, after it i s sealed, is lodged in the Secretary’s

office, where it is open to inspection, and is in fact a record. There is no other mode

that could be adopted, and no instance of a oontraxy practice can be adduced.

With regard to the irregu~arities s u b s ~ u e n t l y allowed by the court of error

li7elow, it would hardly be permitted to a judge in this country, to dispute the

correctness of that document to which he had affixed his seal and signature; but

even his explanation and notes, as received by that court, a r e mort) in favour of

the appcllants than the respondents. From both the bill of exceptions and the

judge’s explanation of it and notes, it is dea r that, there was no evidence to go to

the jury; and i f he suffered it to go to them at all, the judge ought t o have directed

them that there wa,e no evidence to prove a contract between the a p p e ~ ~ a n t and the

respondent. The judgment, therefore, of the court of errors below ought to have

been, to direct a venire de novo, and it is to be hoped that your Lordships will avail

yourselves of the power given to you by the recent Act (3 and 4 Will. IV. e. 41, ss. 8

and 13), and direct that court to issue one. It i s impossi~le to reconcile with any

principles of justice a verdict which would charge the appellants with the emplop-

ment of a, person with whom he was totally [I703 unconnected, and who was actually

employed by another ; for the old patentees of offices in the colonies have, as i s well

known, no c o n n ~ t ~ o r ~ with their offices, except by being liable for the breaches of

duty by the persons who actually execute them. In Antigua the deputy provost is,

in obedience to the provisions of a provincial Act of 1696, sworn in before the

governor, and gives a bond in &BOO cur ren~y for the due performance of h i s office,

which he executes in his own name: he is the only person known aa provost in the

island, and to him the persons employed in his oace must look for payment.

Follett, for the Respondents.-It i s not denied that the bill of exceptions did not

contain all the evidence, and that Et omitted most material parts of it; that it stated

that the judge told the jury the evidence was conclusipe, when in point of fact he

told them, that although there was evidence for them, yet the inclination of his

own mind was in favour of the defendant, and that he sealed the bill upon the

supposition that. it had been agreed to by the counsel on both sides, when in point

of fact it had not been so agreed to. When all these facts were sworn to in an

affidavit, and brought before a court of error in the regular mode, on an application

t o quash the writ, could tha t court have acted o ~ ~ e r ~ i s e than has been done by the

couk of Antigua 1

[Lord Chancellor [Lord Brougham1.-Is there any instance in which a court of

error has ever set aside a writ in the face of the acknowledged seal of the judge,

444

POWNALL w. MASCALL [18:33] I1 KNAPP, 172

upon an afidavit that it had been obtained by surprise, or in any ether manner,

when the judge ought not to have sealed it 21

[171] No instance is known in England, but there are many instances in which

writs of error have been quashed.

[Mr. Justice J. Parke.-They ought to have aniended the bill, not set it, aside.]

[Lord Chancellor [Lord Brougham1.-The judge stated it was incorrect, which

was a very good ground for amending it, but not for taking it, off the file.]

The Appellants made no application for that by motion. Probably they knew

that i f they had amended it, they would-have had no ground for a new trial.

[Mr. Justice d. Parke.-If they had amended the bill according to the judge’s

notes, the objection would have been a t an end.]

They could not amend without an app~ication; and parties are not to be put to

the expense of having a writ of error brought back, when no application was made

to the court below to amend.

[Lord Chancellor [Lord Brougham1.-There is an application to take the bill of

exceptions off the file; and the court below, upon that application, refer to the

judge’s notes, and the ground given for producing the judge’s notes are stated upon

affidavit to the court, and instead of taking the exceptions off the file, and quashing

the writ, they might have aniended the bill of exceptions by the matter not denied

in the affidavit, and called for the judge’s notes.]

No doubt they might ; but I apprehend the party who brought the writ of error

did not choose to ask for that. If such a case had occurred in England, the court

would have i n t e r f e r ~ in some may or other ; but it would have been a matter of

discretion in what [I721 way they would have interfered-whether they would have

aniended the bill, or have ordered it to have been taken off the file. But matters in

the discretion of the court &re not subjects of appeal. In iWe2tish Y. ~ ~ ~ ~ i ~ ~ d s ( ~ n

(7 B. and Cres. 535, and 1 Clarke and Fin. 231), the record was amended by the

King’s Bench; and the facts relating to the amendments were set out on the record,

in order to have the opinion of the court of error whether the amendments were

properly made or not; but the Rouse of Lords, after taking the opinion of the

judges, refused to examine the propriety of them, because orders for amendment

were matters of practice, which belonged by lam to the exclusive discretion of the

court below, and cons~uen t ly did not form proper subjects of appeal. Rluch,

too, might have passed before the court below of which your Lordships are ignorant ;

for instance, the counsel for the appellant might have declined to have had the bill

altered, and in such a case that court could not have acted otherwise than they have

done.

With respect to the evidence, the appointment of Mr. Nanton as the appellant’s

deputy, and the bond of indemnity from Mr. Nanton to his agent, are not men-

tioned in the bill of exceptions, and are not before this board. The marshal’s books

were, in fact, by the provisions of the 94th and 95th sections of the Court Act, the

records of the court, and could not be obtained without a special order from it.

They were returns made to the court by its provost-marshal of sales made under

its authority, and therefore good evidence for the respondent, (who claimed from

that provost”marsha1 a per-centage on the amount of those sales,) in the same way

as a return by his officer would be evidence 11731 a ainst a sheriff in England.

There might. therefore have been very good evidence f o go to the jury, and their

verdict might have been quite right ; but whether it was so or not, this board have

no power of knowing.

If evidence was improperly suffered to go to the jury, the proper mode of

objection would have been by demurring to the evidence, and not by bill of cx-

ceptions. The law is stated in these terms by Tidd on Practice (Tidd, e. 35, vol. ii.

p. 851, 5th edition). If a judge allow the matter to be evidence, but not con-

clusive, and so refer it to the jury, no bill of exceptions will lie; us if a man producr

the probate of a will to prove the devise of a term for years, and the judge leave

it to the jury; because though the evidence be conclusive, yet the jury may hazard

an attaint if they please ; and the proper way would have been to have demurred to

the evidence.’’ And this is fully borne out by the case of Chichester v. Phz&ps (Sir

Thomas Raymond, 401), t o which Mr. Tidd refers.

445

I1 KNAPP, 174 POWNALL v. MASGALL [1833]

[Mr. J. ~ o s a n q u e t . - ~ e r e must have been evidence to prove the seal of the

ordiitary in that case, and therefore evidence to go t o the jury.]

It seenm from the report that it was objected that the judge left to the jury what

he ought not to have left. A bill of exceptions is directed against the judge ; if he

decides anything, i t lies, i f he does not, it does not lie; for it cannot be directed

against a finding of the jury. The court below therefore were right in directing

the bill in the present case to be taken off the file, on the ground that it was im-

properly filed.

If, however, the court berow were even mistaken on this ground, their decision

would have been correct on E1741 the ground that there was no law by which bills

of exceptions could be brought in Antigua. It is a colony originally acquired by

conquest (Antigua was finally ceded t o England by the 12th Article of the Treaty of

Ureda, in 1668); only so much of the English law would prevail therefore in it as

wae established by the King’s proclamation, or by subsequent enact men^ of its pro-

vincial assemhlies; a t any rate, no more of it than was applicable to its own situa-

tion and condition. 1 Black. Comm. (vol. i. s. 4,. p. 107); A t ~ ~ ~ e y - G e ~ e r a l v.

S ~ e ~ u ~ ~ ~ (2 &fer. 143). But although the 37th section of the antigua court act

provides that all the English statutes regarding jwfails and amendments shall

be extended there, yet no part of it provides for bills of exceptions, which are a

mode of proceeding owing their origin to the statute 2 Westminster [13 Ewd. I.

c. 311, and not pari of the common law of the land. They are, indeed, onIy appli-

cable to the particular courts existiiig in England, and not to those in the eolonie8,

where the courts of error are composed of a very different description of persons

to what they are in England.

[Parke, J.-It is the only mode of appealing from the judges who have miscon-

ducted themselves; for all the proceedings in the colonies are in the nature of trials

at bar, and therefore if you are right, you could only appeal from the judges at

nisi prius to the same judges in bank.]

[Lord Chancellor [Lord Brougham1.-The judge seems to have signed the hill

without hesitation.]

If the statute of Westininster, however, is held t o extend to this island, i t must

do so in all its branches, and then one of its principal provisions has not been

complied with; for the Chief Justice was never called 11751 upon by writ to con-

fess o r deny his seal. This is one of the indispensable: formalities attending a pro-

ceeding of this kind ; Tidd’s Practice (cap. -35, vol. ii. p. 553) ; Mosey v. Lmeh

(3 Bur. 1693). The bill of exceptions and the writ of error are quite separate pro-

ceedings; and the foriner will be held to have been waived, unless the judge’s

signature has been obtained to it before the writ has been brought; Dillon v.

Pcwker (1 Bing. 17). Inde~endently of all these objections to the bill of exceptions,

a writ of error, not lying at common law, would be held irregular in its form in

this country, unless it recited the special authority under which it was issued;

and the same principle must apply to writs issuing (as the one now in question)

under the special authority of the King’s instruei.ions to the Governors in the

colonies. On all these grounds, therefore, it i s trusted that the judgment of the

court below will be a f f i ~ e d .

Burge, in reply.-There was no connection proved between the parties in this

case, to make the books kept in the marshal’s office evidence against, the appellant;

they were kept in his deputy Nanton’s name, and not in his, according to the

statukes of tlie islnnd. This is the first time that it has h e n questioned in this

court, that bills of exception do not extend to the colonies. If they do not extend

to Antigua, they do not t o Jamaica, or any of the other West Indian colonies; and

yet, in point of fact, it has been usual to tender them in all the colonies, and to

come before this Board upon appeal from decisions made upoa them, All statutes

of Great Britain, indeed, passed in amendment or in aid of the common law, or in

relation to trade or commerce [176] (without resorting to any specific enactment

on the subject), are deemed to extend to the colonies, and are adopted accordingly.

It has always been held to be the right of subjects residing in the colonies to present

a petition tu His Majesty upon any decision upon any point; and in the ease of

446

POWNALL v. MASCALL [1833] I1 KNAPP, 177

Howell v. East,* this Board entertained an appeal from an interlocutory motion

from a court below. With regard to the objection to the judge not having been

called upon by writ to confess or deny his seal, it is sufficient to say that it is a

mere formality, sufficiently complied with in substance by the judge having lodged

the bill, signed and sealed by himself, with the secretary, who was the registrar of

the court of errors, and which, from the constitution of the court of errors, consist-

ing of a governor, who might be absent in the other islands under his government,

i t would be frequently impossible to comply with.

Lord Chancellor [Lord Brougham1.-In this case their Lordships are of opinion,

that the court below has acted wrongly in two respects. First, we think it ought

not to have quashed the writ of error in whatever way it came before them. We

should not, however, be disposed to remit the case back on that ground solely, if

we thought that when we had so remitted it, no further proceedings could be had

beneficial to either party. Such, however, is by no means the opinion to which we

have come upon the evidence in this case. It becomes therefore necessary to con-

sider the next error into which the court below has [I771 fallen; namely, their

manner of dealing with the bill of exceptions; and upon that par t of the case, we

are of opinion, that the court below was wrong in ordering the bill to be taken off

the file in respect of the peculiar circumstances under which the seal or the signa-

ture of the judge were obtained, instead of ordering it to be taken off the file to be

amended by the means within their competency, that is, the judge’s notes. !C’hey

were wrong, therefore, in our opinion, on two points; first, in ordering it to be

taken off the file without more; and secondly, in not giving the relief which the party

sought by having it amended in substance by reference to the judge’s notes

Our opinion upon the first error complained of by the appeal, the quashing the

writ of error, is an answer to the objection taken on the part of the respondent,

namely, that there was no application to the court below to amend the bill of excep-

tions; for instead of that, we think that the court ought of themselves to have

directed without more, that it shouId have been taken off the file for the purpose of

being amended.

The next question then for us to consider, is the state in which the case will

stand before the court below when our directions shall have been complied with

(that is to say), when the writ of error which has been improperly quashed shall

have been revived, and the bill of exceptions in its amended state shall have been

restored to the file. If we were to take the evidence that appears upon that bill to

have been the only evidence in the cause, or the only evidence upon which the jury

could have proceeded when they gave their verdict, then we should be disposed to

think, that no good would come from remitting this caBe back, inasmuch as there

appears (as f a r as we can see) to [178] have been no evidence to support the ver-

dict; but there are two documents which.we have not before us, but which appear

to have been before the court below, one or the other, or perhaps both of which

might possibly have led us to think, that there was sufficient evidence to have sup-

ported it; one of these documents is the bond of indemnity, a step in the proof

upon which perhaps there is no great probability that anything would have arisen

to have supported the verdict ; the other is the deputation, upon which the proba-

bility is much stronger.

It is true, that a deputation from an officer constituting another his deputy,

certainly would not by itself enable that deputy ta charge his principal with the

employment of any person to perform the business of his office, for the deputy who

employed that person must charge himself in that respect; but if i t should turn out

that this deputation gives the deputy authority not only to perform the functions

of his office (I state this as a possible, although perhaps not a very likely case), but

also to employ persons in performing those duties a t the cost of his principal, he

thereby derives from his deputation such an authority a8 enables the persons so

employed to charge his principal, and thus a privity would be constituted, which

* This was a n appeal from an order of the Supreme Court in Jamaica, quash-

The proceedings in the court below are re- ing a writ of vendi t ioni exponas.

ported in Grant’s Jamaica cases, 230.

447

11 179 LE GROS 'U. LE BRETON [1833]

is wanting in the evidence as it now stands, between the persons so employed and

the principal. As therefore it is possible, to say no more, that one or both of these

pieces of evidence may have existed in the cause, and, if so, have justified the ver-

dict, and may still be produced so as ultimately to support it, it is impossible to

say that some frui t may not be derived from remitting this cause back, and that

some truth may not be derived from a venire de novo, which in all probability the

[I791 court below will direct. If we were to state the impression on our minds a s

to the probability, we should say, upon the whole it is most likely that the court

below will grant a venire de novo, and it is equally probable that a fresh trial will

not be had recourse to.

The judgment therefore will be, to set aside the order quashing the writ of error,

with directions to restore the bill of exceptions to the judge's file, and amend the

same according to' the judge's notes, and then to give judgment thereupon. We

think i t right to add, that in case the court below shall give judgment upon the bill

of exceptions so amended in favour of the objection, that ought to conclude the

parties. We will add, that i n case they should think upon deciding on the bill of

exceptions, that the evidence objected to at the trial was inadmissible, or, if ad-

missible, insufficient to support the verdict, that they should grant a cenire de noco.

That will remove all doubt.

Burge suggested, that if the Court below arrived a t the conclusion, that the

evidence given a t the trial was insufficient to entitle the plaintiff to maintain the

action, then they should reverse the judgment entirely, without awarding a venire

de novo.

With respect to the

question a s to a demurrer to the evidence or bill of exceptions, that is whether the

want of sufficient evidence to support the verdict ought to be made the ground of a

demurrer to the evidence or bill of exceptions, it ie a point of some nicety even here,

upon which the courts have not acted a great deal; much more therefore is it a

ground (the distinction being very technical, and rather subtle) upon which, looking

as we do rather to substance than form, in order to do [180] substantial justice,

upon which we should not be willing to found our judgment, but we shall direct

them to do that which is sufficiently safe in point of form, and secure in point of

substance; that is to say, if the court of errors shall not deem the evidence suffi-

cient to support the verdict, they should direct a venire de novo. I should say it

was quite clear that there ought to be judgment for the defendant below, unless

there is a venire de novo.

Lord Chancellor [Lord Brougham1.-No, we think not.

[On point (i.) as to application of -English Statutes to Colonies (2 Knapp, 174), cf.

Canterbury (Mayor, etc. , o f ) v. Wyburm and The MeTbourne Hospintd (1895))

A.C. 89, where a number of authorities are collected; and of Reg. v. Jnmeson,

1896, 65 L.J.M.C. 218. (ii) As to Judicial Committee paying regard rather to

substance than to form (2 Knapp, 179-180), see Girdnree Simg v. Koolahul

,%g, 1840, 2 Moo. Ind. App. 349; M o k d i m of Kwdmwaddy v. Enamdar

Brahmins of Soor@l, 1845, 3 Moo. Ind. App. 392.1

Cl811 ON APPEAL FROM JERSEY.

THOMAS LE GROS, WILLIAM CHARLES AHIER and Others,-Appellants;

THOMAS LE BRETON, FRANC'IS GODFRAY, and PHILIP DE QUETTE-

VILLE,--Respondents [Dec. 4, 18331.

A remonstrance or petition is presented to a court consisting of 10 members,

praying that a certain '' Acte )' or Decree of that Court might be annulled,

o r for such other relief as the Court might deem fit. Four of the members

were of opinion, that the remonstrance ought not to be received, three that

the I' Acte )' in question ought to be modified, and three that the " Acte )) ought

to be annulled.

448