Swift v Swift

• Jurisdiction: Ireland
• Judgment Date: 04 June 1853
• Date: 04 June 1853
• Court: Queen's Bench Division (Ireland)

Queen's Bench

SWIFT

and

SWIFT

Bonsor v. ElementENR 6 C. & P. 230.

Anonymous case 3 Law Rec., O. S., 73.

Hopper v. SmithENR 1 M. & M. 115.

Edge v. Wandesforde 9 Ir. Law Rep. 161.

Lee v. Butler Arm. Mac. & Ogle, 93.

218 COMMON LAW REPORTS. T. T.[1853. Queen'sBench SWIFT v. SWIFT. (Queen's Bench.) June 4. After the FITZGIBBON, on a former day, had in this case obtained a rule. plaintiff's case has been stated nisi, to enter a nonsuit, pursuant to leave reserved at the trial to the jury, and a fatality before the LORD CHIEF JUSTICE, at the last Hilary Sittings. arises owing to the absence of The action was for the recovery of a bill of costs, and it be--a witness, the Judge has no came necessary to examine a gentleman officially engaged in Has- sdiction to ter Brooke's office. He had not been served with a subpoena,' allow the plaintiff to and at the trial was unavoidably absent. Thereupon, after the withdraw the record ; the jury were sworn, and the plaintiff's case stated, Connsel for the plaintiff must submit to be plaintiff applied to withdraw the record, owing to this fatality ; nonsuited.- (CRAMPTON, and the other side, having contended it was too late so to do, J.,.dubitante.) insisted on a nonsuit, or that a verdict be entered for the deÂfendant. The CHIEF JUSTICE allowed the record to be withdrawn, reÂserving liberty to the defendant to move the Court. Against the rule nisi, cause was now shown by Lynch and J. E. Walsh. It was in the discretion of the Judge to permit this course to be followed, and to objection can be taken to it when it results from sheer fatality.-[CRAmprox, J. If the practice were adopted there would be an end of nonsuiting.]-Admitting then that the plaintiff has no right to withdraw the record, there is no strin gent rule that, once a jury is sworn, they cannot be discharged until they come to a finding on some of the issues : Bonsor v. Element (a).-[CRAMPTON, J. In that case the defendant did not appear, and the course taken was but an adjournment of the case.-PERRIN, J. Is it sworn the witness was subpoenaed?]- (a) 6 C. & P. 230. COMMON LAW REPORTS. 219 It is not ; but if a plaintiff, after a jury is sworn, may elect to T. T. 1853. Queen' sBench. be nonsuited, why may he not withdraw his record ?-{MoonE, J. A defendant by appearing intimates he has rights to maintain.] SWIFT v. -At all events, the permission given was in the discretion of the SWIFT. Judge, and that the Court cannot control. Fitzgibbon...