Lewis v Padwick
| Jurisdiction | England & Wales |
| Judgment Date | 17 January 1850 |
| Date | 17 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 879
IN THE COURT OF COMMON PLEAS
lewis v. pad wick. Jan. 17, 1850. The court will not set aside a judge's order for a distringas, on the ground that the affidavit on which it was obtained is false.-If the motion is founded on the insufficiency of the affidavit used at chambers, the court will require the defendant to negative the facts that would have justified the order. A distringas to compel the appearance of the defendant issued under an order of Talfourd, J., dated the 1st instant, upon affidavits which stated the required appointments and calls at the defendant's residence, on the 19th, 21st, and 22nd of December, 1849, and that a copy of the writ of summons was left there on the last occasion, and negatived appearance by the defendant. J. Brown now moved for a rule nisi to set aside the judge's order, the distringas, and all subsequent proceedings thereon, with costs, on the ground that the affidavits upon which the order was granted were insufficient and false. The motion was founded upon affidavits of the defendant, the defendant's son, his clerk, and one of his domestic servants. The defendant's affidavit stated, amongst other things, that the defendant was absent from home, on business in London, on the 19th of December, 1849, and the three following days; that, upon his return, he-was informed by his son that some person had been, to leave a paper "about Lewis's matter," and that it had been used by his [225] (the defendant's) daughter, by mistake, to light a candle with; that, from the description of the paper given to him by his son, the defendant concluded that it must have been the copy of a writ; that this was the only intimation he had of an action having been commenced against him ; and that he had never avoided service of the said process. The other affidavits severally denied material statements in the affidavits upon which the order was granted. [Wilde, C. J. It certainly is very inconvenient, upon a motion of this sort, to discuss the truth or the sufficiency of the affidavits upon which the judge has exercised his discretion. It seems to me, that, where perjury has been committed, it would be better to leave the party to the ordinary remedy.] Motions of this sort have been repeatedly entertained : Cooper v. Foulkes (1 M. & G. 942, 2 Scott, N. E. 200, 9 Dowl. P. C. 46); Toms v. Nash (2 Scott, N. B. 598); Brough v. Eis&nb&rg. (19 Law Journ., N. S., Q. B. 22); Archbold's...
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Thorne v Simmons
...roll kept pursuant to the directions of the 6 & 7 Viet. c. 73, s. 27; and there, it will be perceived, that the rule is framed accordingly. 9C-B. 224. LEWIS V. PAD WICK 879 day of term (c); but a rule may be obtained, on motion, to stay proceedings till the ensuing term (d); and, in one ins......