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FOTTRELL

J. D. Fitzgerald, contra, was called on by the Court.

M. T. 1847.

Exchiof Pleas. The order in this case was not for the purpose of the plaintiff's bringing an action, but to satisfy the conscience of the Court. Mr. F Kiernan was the only person except Slack who knew what had MOORE. taken place. If the plaintiff had known it, Kiernan might have transferred his shares, and next day would have been a competent witness.—[RICHARDS, B. I am not sure of that.]—The words “immediate” and “individual” in the statute are in contradistinction to corporations and persons who have minute interests in the matters in issue-[RICHARDS, B. Suppose the action had been brought for £100,000?]—In that extreme case it would be a question affecting his credit, his being so deeply interested in the Company: Sinclair v. Sinclair (a); The Liverpool Banking Company v. Page (6). In that case the Court took a different view of Joint-stock Banking Companies, they liken them to a corporation; per Tindal, C. J., citing Stewart v. Dunn (c). That case establishes the same principle. In Sinclair v. Sinclair, a prochein amy was held a competent witness.-[Pigot, C. B. In a corporation there could be no personal interest; there might be anxiety; there could be no personal pecuniary interest.]—In a mere money corporation there might be a deep pecuniary interest as well as anxiety. The test sought to be applied, of the case of an action brought for £100,000, will, if this view of the case have any weight, only go to the credit, but not to the competency, of the witness.

Suppose the case of a Railway Company having perhaps eighty thousand shareholders, what monstrous inconvenience might be produced by holding that each of those persons was incompetent. It was, I submit, the intention of the Court when making their order, that the witness should be examined, as Kiernan and Slack were the only persons who were aware of the nature of the transaction.[RICHARDS, B. That I should say was the meaning of the Court, but they were not aware of the fact of Mr. Kiernan's being incompetent, if he is incompetent in point of law.]

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Pigot, C. B.

The plaintiff appears on the record as public officer of the Banking Company, and Mr. Kiernan states that he is a shareholder in the Company. We are all of opinion that we must set aside this verdict, and that we cannot shut out from our minds the fact of the incompetency of this witness; we cannot do that indirectly which we could not do directly.

The Court postponed giving its reasons at greater length in pronouncing judgment, in order to hear Counsel in the case of Parrot v. Humfrey, in which a witness produced before an arbitrator had been objected to on similar grounds, and rejected by the arbitrator.

PARROT v. HUMFREY.

Nov. 24.

This case, which was an action upon a bill of exchange, brought by
the plaintiff as public officer of the London and Dublin Banking
Company, having been referred to arbitration, and the testimony of
a shareholder in the Company, who was produced as a witness on
behalf of the plaintiff, having been rejected-

David Lynch now moved to set the award aside.

Berwick, Otway and J. D. Fitzgerald, contra, cited Powles v. Page (d); Rex v. Corporation of London (6); Hoyle v. Coupe (c); Wilson v. Magnay (d); Sinclair v. Sinclair(e); Hart

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v. Stephens (a); Hill v. Kitching (6); Stewart v. Greaves (c); M. T. 1847.

Exch.of Pleas. an unreported case of Hunt v. Steele, in this Court, decided by

PARROT Brady, C. B., and Needham v. Law (d).

v. HUMFREY

Lynch, in reply, distinguished the case of Needham v. Law, and cited Doe d. Stafford v. Tooth (e); 1 Phil. on Evid. p. 46.

Supposing, as has been suggested by Mr. Baron PENNEFATHER, that the Company consisted of a small number, say of seven persons, and that they sued upon a bill of exchange for £70 and recovered, would not each of them have a direct interest in the action to the amount of ten pounds ?

Pigot, C. B.

We have had a good deal of assistance from the able Counsel who have argued this question ; but we are all of the opinjon, which we expressed on a former day in Fottrell v. Moore (f), that the evidence of the witness was not admissible. No case in point has been cited.

One or two of the cases which have been cited do not appear to me to be in the least applicable.

As to the case cited from 6 Adol. & Ell. p. 937, it would seem to me that the action was not brought as here on the immediate behalf of the witness. There was in that case a mere possibility of the witness being interested in the result.

But what is the condition of the person examined here? He is in every respect, save so far as the Act of Parliament alters his position, in the position of an ordinary partner ; his interest as a partner in this fund is direct and immediate: with the interest of the partner in this fund which belongs to the Company the Act of Parliament does not deal ; it deals with the mode of arranging and adjusting the liability of the partners.

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M. T. 1847. We have then in this case a person, in whose immediate interest Exch.of Pleas.

and behalf this action has been brought by the public officer of the PARROT

Company, examined as a witness. What would be the result of HUMFREY. holding that he is not an incompetent witness ? The subject of the

action may be a sum of £100,000; and would it be contended that in an action in which the party possessed an interest to the extent of £10,000 he could be examined ? It seems to me impossible that it could. We cannot import qualifications into the statute ; the Legislature could have so done if it had desired it; but we must hold that this party, who was a shareholder, was improperly produced at the trial, and therefore there must be a new trial in the one case, and in the other the award of the arbitrator must be confirmed.

PENNEFATHER, B.

I think that the case of a shareholder falls within the exception of the Act of Parliament. The person in this case must have been, but for the Act, made a party to the action; the statute was merely passed for the ease of shareholders; but for the statute the action should have been brought in the name of the witness as well as others, and we think that there must be held to be an individual interest in the person who, but for this Act, must have been a plaintiff on the record ; we, therefore, think him an incompetent witness.

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RICHARDS, B., concurred.

LEFROY, B.

I concur in the judgment which has been pronounced in this case, which has been extremely well argued, but from the time when it was first opened upon the simple statement in the declaration, I was surprised how it could be maintained ; but by a great deal of ingenuity and argument calculated to raise a doubt, it was contended that the witness was not incompetent. This shareholder avails himself of an Act of Parliament which enables him to sue in the name of the public officer, and it would have been wholly impossible for him to assert his right in any other way than as a plaintiff

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PARROT

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but for the statute. The Legislature have declared who the persons M. T. 1847.

Exch.of Pleas. are who are to be excepted from the operation of the statute ; those are, “any party to any suit, action or proceeding individually named “on the record, or any lessor of the plaintiff or tenant of premises HUMFREY. “ sought to be recovered in ejectment, or the landlord, or any other “person in whose right any defendant in replevin may make cog“nizance, or any person in whose immediate and individual behalf “ any action may be brought, wholly or in part, or the husband or " wife of such persons respectively.” Unless we expunge those words from the Act, we cannot help holding that the case comes within the incompetency mentioned in the Act.

BORBIDGE v. FREEMAN.

Nov. 22, 23,

24. Butt moved that the defendant be discharged from custody under The plaintiff

having obthe writ of ca. sa. which had issued in this case. The plaintiff tained a judg.

ment against having died in Vacation, after the plaintiff's death, without a scire

died in Vacafacias having been issued, a ca. sa. was sued out on foot of the

tion; the des judgment and tested as of the preceding Term, and the defendant fend

fendant was

in the same arrested thereon: Earl v. Brown (a); 2 Saund. p. 6.

Vacation ar

rested upon a There is a statute against over-marking writs; if in this case the ca. sau, issued

on foot of the writ was over-marked, who could be held liable? If it be the settled judgment after

the plaintiff's practice of the Court I cannot resist it, but there is no case in the decease, but

tested as of the books to support it. Where a defendant is arrested, and the plaintiff preceding,

Term, without dies, then, unless within a certain time a personal representative is the judgment

having been raised, the defendant is discharged from custody.

revived. The

Court discharged the defendant from custody, holding such proceeding to be both irregular at Common Law, and in contravention of the provisions of the statute 6 Anne, c. 7.

(a) I Wil. 302.

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