MAGEE v MARK. [Exchequer.]

• Jurisdiction: Ireland
• Judgment Date: 09 February 1861
• Date: 09 February 1861
• Court: Exchequer (Ireland)

Exchequer.

MAGEE

and

MARK.

Regina v. Stubbs 7 Cox, Cr. Cas., 48.

M'Clory v. WrightIR 10 Ir. Com. Law Rep. 514.

Thurtell v. BeaumontENR 8 B. Moore, 612; S. C., 1 Bing. 340.

Chalmers v. ShackellENR 6 Car. & P. 475.

Willmett v. HarmerENR 8 Car & P. 695.

Baker v. Rusk 15 Q. B. 870.

Davy v. BakerENR 4 Burr. 2471.

Williams v. The East India CompanyENR 3 East, 192.

The Great Northern Railway Co. v. RimellENR 18 C. B. 575.

Hall v. GreenENR 9 Exch. 247.

Cooper v. Slade 6 H. of L. Cas. 746.

M'Clory v. WrightIR 10 Ir. Com. Law Rep. 514.

Cooper v. Slade 6 H of L. Cas. 772.

Newis v. Lark Plowd. 412.

M'Clory v. WrightIR 10 Ir. Com. Law Rep. 514.

The Attorney-General v. RadloffENR 10 Exch. 84.

Thurtell v. Beaumont 8 B. Moo. 612.

Head v. HeadENR 1 Sim. & St. 150.

Legge v. Edmonds 25 L. J., N. S., Chan., 125.

Sutton v. Sadlier 3 Com. B., N. S., 87.

Twigg v. PottsENRUNK 1 Cr., M. & R. 89; S. C., 3 Tyrw. 969.

Vacher v. CocksENR 1 B. & Ad. 145.

Clarke v. Arden 1 Jur., N. S., 710.

KnightENR 2 M. & W. 894; see Lord Denman's judgement, p. 912.

Thurtell v. BeaumountENR 1 Bing. 340.

Napier v. DanielENR 3 Bing., N. C., 77.

COMMON LAW REPORTS. 449 MAGEE v. MARK.* M. T. 1860. Exchequer. Nov. 3. H. T. 1861. Feb. 9, This was an action to recover penalties under the 'Corrupt Practices In an action for penalties, Prevention Act 1854 (17 & 18 Vic., c. 102). The summons and under the Cor rupt Practices plaint contained several counts, all founded on an alleged promise Prevention Act 1854, the by the defendant to give a bribe to the plaintiff, an elector of the bribery imput- ed the a of o promise at the election of a Member for that town, held in May 1859, money for a or if he would abstain from voting. There was no connt for vote, or to abstain from actually giving a bribe. The defences pleaded were traverses of voting-Held, that evidence the alleged corrupt agreement. The cause was tried before the of actual pay ment of money Loan CHIEF BARON, at the Sittings after Hilary Term 1860. wasadmissible. The case for the plaintiff was ultimately rested on the second The evidence for the plain- , issue, which was, whether the defendant agreed to give money tiff in support of the alleged. to the plaintiff, in order to induce him to refrain from voting? bribery, rested solely upon The plaintiff and his son swore that two sovereigns were actually the evidence of accomplices. given in part payment of the bribe; and the son swore that an Held, that the jurr direct- ct were 0 U for 18 was agreed to be given. This evidence was objected rightly ed that they to by the defendant's Counsel, upon the ground that no payment might find for the plaintiff upon such of money was alleged by the plaint ; but was received by his timony, - cor Lordship. The plaintiff's case, as to the alleged. bribery, rested thoughun upon the uncorroborated evidence of himself and his son ; and roborated. Held also-. their evidence directly conflicted with the testimony of the defend- FITZGERALD, B., dissentien- ant, and the witnesses examined on his behalf. to-that in this At the close of the case, Counsel for the defendant called upon Judge was the not action the jury, by his Lordship to tell the jury that, as the demand in the action tell bound to was founded on an offence for which an indictment would lie, analogy to the practice in crithe- p analogy to _e and, as the plaintiff and his son were accomplices in the offence, a cases, that the was to the s entitled e urinal cases jury could not safely act on their testimony without corroboration; lntit en but his Lordship refused so to do. Counsel for the defendant also benefit t io a nf the called upon his Lordship to direct the jury that, if they entertained evidence. * Before PIGOT, C. B., FITZGERALD and HUGHES, BB. VOL. 11. 57 L 450 COMMON LAW REPORTS. a reasonable doubt of the defendant's guilt, they ought to give him the benefit of the doubt, and find a verdict for the defendant. This requisition also his Lordship refused to comply with ; and, in reply to a question from a juror (at what, precise stage of the case it did not appear), whether they were to deal with the case as a criminal one, by finding for the defendant on a doubt, his Lordship told them that they were not to do so, to the extent of finding for either party upon a doubt. The LORD CHIEF BARON told the jury that, in criminal cases, though a verdict might be founded upon the uncorÂÂroborated testimony of 'an accomplice, yet Judges were in the habit of advising juries not to convict upon such evidence uncorroborated ; that, in the present case, he did not give them that advice, but that the charge was one on which an indictment might be founded, and that, on the trial of such an indictment, he would give that advice ; that the evidence of the plaintiff ought to be received with the utmost jealousy ; but that his credit was for them. He further told them that he would not advise them to give a verdict for either party upon a doubt ; but that the affirmative of the issue was on the plaintiff, and that they ought not to find for him unless they believed, and were satisfied of the fact, that the alleged promise was made. The judgment of the LORD CHIEF BARON contains a full stateÂÂment of the charge, and the evidence at both sides. The jury found for the plaintiff on the second issue, finding one penalty of 100. The other issues were found for the defendant. F. Macdonogh having obtained a conditional order to set aside the verdict, and for a new trial, on the ground of misdirection, and the reception of illegal evidence, and because the verdict was against the weight of evidence R. Armstrong and D. C. Heron showed cause. They contended that the payment of the money was evidence to sustain the allegation of a promise to give a bribe, as showing that the promise had been in fact acted upon. Secondly ; that the preÂÂsent was a civil case; and that, even if it were to be considered a criminal proceeding, a jury, as a matter of law, might act upon the COMMON LAW REPORTS. 451 uncorroborated testimony of an accomplice. That in practice juries were usually advised not to convict upon such testimony ; but that this was a rule of practice, and not of law : Regina v. Stubbs (a). That, at all events, the point was ruled in 111' Glory v. Wright (b). Thirdly ; the rule acted upon by Judges in criminal cases, in favoÂÂrem vita, that the party accused ought to have the benefit of a doubt, had no application to a civil proceeding ; that there was evidence on both sides, and that it was the duty of the jury to find a verdict upon the balance of testimony. F. ilfacdonogh, J. E. Walsh and William B. Kaye, contra, conÂÂtended that the evidence of payment of money was inadmissible upon the pleadings. Secondly ; that the jury should have been advised not to find upon the uncorroborated testimony of the informers. That the ground of the decision in III'Clory v. Wright was, that the silence of the defendant who might have been, but was not, examined, amounted to corroboration. That the action was a criminal proceeding. The statute made the offence the subject of a prosecution for a crime, or of an action for a penalty. The proceeding, in both instances, was criminal in its nature, although the consequences might be different. Lastly ; the direction of the learned Judge, that the jury were not to find for either party upon a doubt, amounted to a direction that, in a given state of facts, they were to find no verdict at all. Thurtell v. BeauÂÂmont (c) showed thaf, in a proceeding like the present, the defendant was entitled to the benefit of a doubt. The following authorities were also referred to :-Chalmers v. Skackell (d); Willmett v. Harmer (e); Baker v. .Ruir(f); Davy v. Baker (g); Williams v. The East India Company (k); The Great Northern Railway Co. v. Rimell (i); Hall v. Green (k). Cur. ad. vult. (a) 7 Cox, Cr. Cas., 48. (b) 10 Ir. Coin. Law Rep. 514. (a) 8 B. Moore, 612 ; S. C., 1 Bing. 340. (d) 6 ear. & P. 475. (e) 8 Car. & E. 695. (f) 15 Q. B. 870. (g) 4 Burr. 2471. (h) 3 East, 192. (i) 18 C. B. 575. (k) 9 Exch. 247. 452 COMMON LAW REPORTS. PIGOT, C. This case was tried before me at the Sittings after Hilary Term 1860. The action was brought under the Corrupt Practices PreÂÂvention Act 1854 (17 & 18 Vic., c. 102, s. 2), to recover penalties for 'bribery, in reference to the last election for the borough of Newry. There were several counts, but the question was narrowed at the trial to the claim, in one count, founded on an alleged proÂÂmise of the defendant to the plaintiff, an elector of Newry, that the defendant would give the plaintiff a sum of money if the plaintiff would abstain from voting for Mr. K., one of the candidates at the election. The paragraph or count which stated this promise did not, nor did any part of the plaint, allege that any money was paid. The evidence extended to very considerable length. I shall state the portions of it which appear material to the questions argued before us. The plaintiff was a labourer, and the defendant was a grocer, both residing in the town of Newry. The plaintiff deposed that a person named M., some time before the election, dent with him to the defendant's house, introduced the plaintiff to the defendant, and asked him " to do all he could for Jemmy " (meaning the plaintiff); and that the defendant said, " he would." The plaintiff further stated, that in some time after, and before the election, lie had an interview with the defendant, behind the gate of the Custom-house yard in Newry, at which, partly by a sign signifying the number 20, and partly by words which passed between them, the defendant inÂÂtimated that 20 would be given for a vote ; and that the plaintiff assented. He further deposed that, on the evening or night before the election, the defendant came to the plaintiff's house, and that it was there arranged between them that the plaintiff should go, that evening or night, to the...