Birch v Sir William Somerville

• Jurisdiction: Ireland
• Judgment Date: 24 January 1852
• Date: 24 January 1852
• Court: Queen's Bench Division (Ireland)

Queenƒ€™s Bench

BIRCH

and

SIR WILLIAM SOMERVILLE.

Sells v. HoareENR 3 Br. & B. 232.

Allen v. Francis 4 D. & Low. 607, n.

Abbott v. ParsonsENR 7 Bing. 563.

Hill v. YatesENR 12 East, 229.

Rex v. Lord PrestonENR 1 Salk. 278.

Lord Shaftsbury v. Lord DigbyENR 2 Mod. 99.

Meers v. Lord StourtownENR 1 P. Wms. 146.

Lady Shrewsbury's caseST1 2 St. Tr. 772.

Lord Lincoln's caseENR Cro. Car. 64.

Walker v. Frobisher 6 Ves. jun. 71.

Dobson v. Groves 6 Q. B. 648.

Taylor v. PhillipsENR 3 East, 155.

Smith v. Sparrow 16 Law Jour. N. S. 139.

Manley v. Shaw Car. & Mar. 361.

Hunter v. HornblowerUNK 3 Dow. P. C. 491; S. C. 4 D. & Ry. 831.

Smith v. Sandys 5 N. & M. 59.

Dr. Cooke's case 1 Cr. & D. Cir. Cas. 187 n.

COMMON LAW REPORTS. 243 H. T. 1852. Queen's Bench BIRCH v. SIR WILLIAM SOMERVILLE. ASSURIPSIT, for goods sold and delivered, work and labour, and the money counts, brought by the plaintiff, a newspaper proprietor, against the defendant. Plea-The general issue. The action was tried before BLACKBURNE, C. J., at the Sittings after Michaelmas Term. On the part of the plaintiff, the Earl of Clarendon (the then Lord Lieutenant of Ireland) was called as a witness, and on being called, his Excellency came on the Bench by the side of the CHIEF JUSTICE ; and the Registrar of the Court, in presence of the Counsel engaged for the plaintiff and defendant, and without any objection being made, administered to Lord Clarendon the ordinary attestation on honour, instead of the usual form of oath administered to a witness. His Lordship was examined and cross-examined by Counsel, and the admissibility of the evidence was unquestioned on either side at the time of its reception, or during the remainder of the trial. The jury found a verdict for the defendant. A conditional order having been obtained to set aside this verdict, on the ground of this evidence being illegally received, same having been given without the sanction of an oath Brewster (with him .1. Perrin) showed cause. It is admitted that a Peer of the realm must be sworn in an action between party and party, if so required : but this objection comes too late ; the evidence was received unexcepted to, and if illegal, the time of its being given was the time to object to its admissiÂÂbility : Sells v. Hoare (a). The plaintiff took his chance of a verdict, and any allegation of negligence or mistake on the part of the officer of the Court cannot now be regarded : Allen v. Fran (a) 3 Br. & B. 232. 244 COMMON LAW REPORTS. H. T. 1852. Cis (a). In that case the Court refused to set aside an award, on Queen's Bench the ground that the witnesses had been examined without being BIRCH V. sworn, it appearing that the party objecting had called witnesses SOMERVILLE. in support of his case, and examined them also not upon oath; the objection there was made at the time the witness was tendered for examination ; and in Abbott v. Parsons (b), it was held that no objection to the applicability of evidence could be made unless the objection were taken before the Judge commenced his summing up ; Tindal, C. J., observing : -"It is of the first importance to the adÂÂ" ministration of justice that objections of this kind should be made "when the evidence is offered, and that the party should not lie by " to speculate on the accidents of the cause." There is no difference in this respect between parol and written evidence. Suppose the letter of a third person not a party to the action had been offered and received without objection, the plaintiff could not afterwards be beard to say he took his chance of a verdict ; and that verdict being against him, then to apply for a new trial, on the...