Hopper v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 1827 |
| Date | 03 December 1827 |
| Court | High Court |
English Reports Citation: 173 E.R. 1100
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
[115] in K B at the sittings after michaelmas term, 8 geo [V 1827 Adjourned Sittings at Westminster Westminster, Dec 3, 1827 hoppeb v smith (The counsel for the plaintiff has a right on the cause being called on to have a witness called on his subpo3na without swearing the jury.) Upon this cause being called on, F Pollock, for the plaintift, proposed to call a witness on his subpoena, in order to withdraw the record in case he should not appear. Brougham, for the defendant, objected to this, unless the Jury were sworn (a) See also 2 Roll. Rep. 255, an anonymous case to the same effect. * The same difficulty and conflict of opinions has existed also in the civil law on this subject In Dig lib xlvii 7, 6, 2, we find, " Si radicibus vicini arbor aletur, tameu ejus est, m cujus fundo origo ejus fuerit " ; a passage with some inaccuracy in the wording of the first part of the sentence, but which clearly corresponds with the doctrine held by Littledale J On the other hand, in the Instit. lib. n. 1, 31, we find '' Si vicini arbor ita terrain Titii presserit, ut in ejus fundum radices egerit, Titii effici arborem dicimus . ratio emm non permittit, ut altenus arbor esse mtelhgatur, quam cujus in fundum radices egerit. Et ideo prope confinmui arbor posita, si etiam in vicini fundum radices egerit, commums fit." And there is another passage to the same effect, and nearly in the same words, in Dig lib xli 1, 7, 13 And the commentators on these different passages appear also to disagree on the question In the new Code Civil...
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Mullett and Another v Hunt
...the Court had no authority to call a witness on his subpoena until the cause was called on, and the jury sworn. Now, in Hopper \. Smith (M. & M. 115), it was decided that the plaintiff had a right to have a witness called upon his subposna without having the jury sworn ; and Lord Tenterden ......
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