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ought not under any circumstances to support. It states,

1827. in terms, that the grand jury,“ upon their oath present," The KING though it has never been before the grand jury; so that

JUSTICES of the very first and most material averment in it, is palpa- SOMERSETbly and absolutely false. No man ought to be put upon his trial except upon an indictment found on oath. I am sorry to hear that the custom as set out in the affidavit has prevailed so long; it is clearly unjust and illegal, and must be discontinued.


The other Judges concurred.

Rule absolute for quashing the presentment (a).

(a) And see Rex v. Fylingdales, ante, 176.

after his ap

Caddy, an infant, by her next friend, v. Barlow. THIS

was an action for a malicious prosecution, tried In an action before Vaughan, B., at the last assizes for the county of by A. for the

nialicious proStafford (6), when a verdict was found for the plaintiff, secution by C.

of an indicta damages 1001., under the following circumstances. The

ment against plaintiff and her brother, both children of tender age, A. & B., evi

dence of the had been apprehended and tried at the Staffordshire misconduct of quarter sessions, at the instance of the defendant, on a C. towards B., charge of felony. They were acquitted, and a copy of prehension, the indictment was then applied for on behalf of the tending to

shew the bad plaintiff's brother only, and granted. Afterwards a rule motives of C.

is admissible. nisi for a criminal information against the defendant was A copy of the obtained, upon the same grounds that formed the present indictment cause of action, which was, after a full discussion of the ed to B.only,

is also admis(6) Counsel for the plaintiff, defendant, Talfourd.

sible ; and the Campbell and Whateley; for the A191

Court will not

entertain the question of its having been fraudulently obtained. A rule for a criminal information ohtained by A., and made absolute, is 'no bår to such action; nor will a new trial be granted on the ground of excessive damages.




case, 'made absolute. No information, however, was filed, but the present action was brought. Evidence was offered at the trial, of the defendant's having used improper violence and threats to the plaintiff's brother, while they were both in custody, but in the absence of the plaintiff herself, with a view to induce him to make a criminal charge against their father. This evidence was objected to by the defendant's counsel, but was received by the learned Judge. It was also objected that the copy of the indictment in the prosecution against the two children, having been applied for, and obtained, on behalf of the brother only, was not admissible as evidence in support of an action at the suit of the sister only. This objection the learned Judge over-ruled. It was further objected, that a rule for a criminal information against the defendant having been obtained, at the instance of the plaintiff, for the same cause, her right of civil remedy had been waived, and the action was not maintainable. This objection also the learned Judge over-ruled.

Talfourd now moved for a rule nisi, in the alternative, either for a new trial, or for a stay of proceedings, upon affidavits setting forth the above facts, renewing all the objections taken at the trial, and upon the further ground that the damages were excessive.

ye. He cited Rer v. Fielding (a), as decisive to shew that the action could not be maintained until the criminal proceedings were entirely abandoned. He contended, upon general principles, that evidence of the defendant's misconduct towards the brother, was not admissible to increase the damages in an action brought by the sister. He insisted that the copy of the indictment having been granted to the brother, could not be used by the sister; for to apply it to such a purpose was in effect to practice a gross fraud upon the court of quarter sessions. And he submitted that, under all the circumstances, the damages were so

(a) 2 Burr. 654; 2 Lord Kenyon, 386, S.C.

excessive, that the case ought to undergo revision by another jury.



v. Barlow.

Lord TENTERDEN, C. J.-I cannot say that I think the evidence of the ill-treatment of the brother, by the defendant, after the apprehension of the two children, was improperly received on the trial of this action brought by the sister. Its effect was to shew the nature of the conduct pursued by the defendant towards both the children, and the object of that conduct, namely, to induce them by the means of terror and alarm operating on their own minds, to accuse their father of some illegal act, which might lay a ground for his being apprehended; and thus, to substantiate against the defendant the charge of having acted throughout the transaction from malicious and unlawful motives. I think that was legitimate evidence in the cause, and, therefore, that there is no pretence for disturbing the verdict on that ground. Neither can I say that the evidence of the children's acquittal at the quarter sessions was improperly received; on the contrary, I am clearly of opinion that the learned Judge was bound to receive it. I take it to have been settled, ever since the case of Jordan v. Lewis (a), that in an action for a malicious prosecution, the copy of the indictment may be produced by the plaintiff, and is admissible in evidence, without inquiry into the mode by which he became possessed of it. There the plaintiff and another were indicted at the Old Bailey sessions for forgery, and acquitted, and a copy of the indictment granted to the other only. In an action for a malicious prosecution, the plaintiff offered the copy in evidence, and the order at the Old Bailey granting it to the other only was read by way of objection. But the Chief Justice, Lee, said, “ he could not refuse to let the plaintiff read the copy of the indictment; for an order was not necessary to make it evidence, nor was it ever produced in order to intro

(a) 2 Stra. 1122.




duce it." . And the copy of the indictment was lac cordingly read, and à verdict found for the plaintiff, which the Court afterwards refused to distúrb. So, here, though the copy of the indictment may have been granted by the court of quarter sessions for a different purpose than that for which it was used at the trial, still as it was produced by the plaintiff, it was receivable in evidence, without inquiry then into the circumstances under which it was obtained; nor can we now make that inquiry, with a view to grant a rule for setting aside the verdict which has been found for the plaintiff. Neither do I consider that the fact of a criminal information being pending against the defendant, on the prosecution of the plaintiff, and for the same subject matter, is a ground for staying the proceedings in the action. I am aware that in Rex v. Fielding (a), an information was refused, until an action, which had been commenced for the same offence, was discontinued (6); and properly; because, there the Court seeing that the party, having brought an action, was in progress to obtain a civil remedy for the injury he supposed he had sustained, might think it unnecessary to interpose their extraordinary and special jurisdiction in his behalf: but here the party's first application was for an information; and if it was afterwards thought proper to abandon that prosecution, and to resort to a civil remedy, I do not see upon what principle we can interfere to prevent her from reaping the fruits of her verdict. The damages which she has obtained are large; larger, perhaps, than we may think altogether called for by the circumstances of the case :

(a) 2 Burr. 654; 2 Lord Kenyon, bring it. So, Mr. Tidd, in his 386, S.C.

Practice, (eighth edit. p. 8), says, (b) In Rer v. Sparrow, 2 T. R. “ It is a rule that the party ap198, it is, however, said, that a plying for an information, shall party applying for an information be understood to have made his must waive his right of action ; election, and waived his remedy but if the Court, on hearing the by action, whatever may be the fate whole matter, are of opinion that of the motion for the information, it is a proper subject for an action, unless the Court think fit to give they may give the party leave to him leave to bring an action."




but it is impossible to forget that the defendant's conduct has been in many respects extremely culpable; and as the whole transaction was fully before the jury, I do not feel myself at liberty to say that they have exercised an improper discretion in awarding the damages they did. Upon the whole, therefore, I am of opinion that no rule ought to be granted in this case.


1. Bayley, J.-I am entirely of the same opinion. It is quite clear that the evidence, both of the boy's ill treatment, and of the copy of the indictment, was properly received at the trial; the first, as being part of the res gesta, and tending strongly to shew the malus animus of the defendant: and the second, because the plaintiff having once obtained it, had a right to produce it, without explaining by what means, or for what purpose,

it came into her possession. Upon the other point of the case I see no ground for our interference; and in an action of this particular kind, where all the circumstances have been fully detailed before a jury, I think it would be highly dangerous to disturb a verdict, which they in the exercise of their sound discretion, and of their

peculiar province, have found.

HOLROYD, J., and Littledale, J., concurred.

Rule refused (a).

(a) It appears that originally all thereunto; which was the ancient judicial records of the King's law of England, and so is deCourts were open to the public clared by an act of Parliament in without restraint, and were pre- 46 Edw. 3, in these words : served for that purpose.

Lord Also the Commons pray, that, Coke, in his preface to 3 Co. Rep. whereas records, and whatsoever 3, speaking on this subject says, is in the King's Court, ought of “ these records, for that they con- reason to remain there, for perpetain great and hidden treasure, are tual evidence and aid of all parties faithfully and safely kept, (as they thereto, and of all those whom in well deserve), in the king's trea- any manner they reach, when they sury. And yet not so kept but have need ; and yet of late they rethat any subject may for his neces- fuse, in the Court of our said Lord, sary use and benefit have access to make search or exemplification

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