Lord Porchester v Petrie
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1783 |
| Date | 03 July 1783 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 644
IN THE COURT OF KING'S BENCH
£261] lord porchester v. PETRiE(a). Thursday, 3d July, 1783. All judgments relate to the first day of the term ; and the priority of one of two judgments signed on the same day cannot be averred. A person discovering another person who is indemnified from the penalties of the stat. 2 Geo. 2, c. 24, is not a discoverer within that statute, nor indemnified. This was a writ of audita querela, and the writ set out first the record in the òaction of Petrie v. Lord Pen-Chester. The declaration in that cause stated, that on the second of September, 20 Geo. 3, a writ issued for an election at Cricklade; that on the fifth of September the sheriff issued his precept, and on the eleventh the election was had, when Benfield, Macpherson, and Petrie were candidates ; and that Macpherson was the friend of Lord Porchester. Then followed one hundred counts for bribery by Lord Porchester, or his agent Bristow, of fifty different persons, all laid on the eleventh of September. The declaration was of Easter term, 21 Geo. 3, and the cause was tried on the twenty-eighth of July, 1781, when a verdict was found for Petrie on ten of the counts. After this was stated the judgment for £5000 and £215 costs. The audita querela then stated, that before the said election, viz. on the eleventh of September, one W. Hinton did corruptly ask the said Lord Porchester (e) See Ex parte Ockenden, 1 Atk. 234; Olive v. Smith, C. B., T. 53 G. 3, 5 Taunt. 56 ; Thmias v. Da Costa, C. B., T. 58 G. 3, 8 Taunt. 345; 2 B. Moore, 386, S. C.; Ease v. Hart, C. B., T. 58 G. 3, 8 Taunt. 499; 2 B. Moore, 547, S. C.; Sampson v. Burton, C. B., T. 1 G. 4, 2 Bro. & Bing. 89; 4 B. Moore, 515, S. C.; Easum v. Colo, B. R., T. 3 G. 4, 5 B. & A. 861; 1 D. & R. 530, S. C.; Key v. Flint, C. B., M. 58 G. 3, 8 Taunt 21; 1 B. Moore, 451, S. C.; Ex parte Flint, 1 Swanst. 30. The 5 G. 2, c. 30, s. 20, is re-enacted by 6 G. 4, c. 16, s. 50. (a) S. C.; but not so fully reported, and without the arguments of counsel, 2 Saund. 148 b. n. 5tb ed.; cited Tidd's Pr. 935, n. 9th ed. S. C. fully reported, Cricklade Election Case, p. 416. 3 DOTOL. 262. LORD PORCHESTER V. PETRIE 645 to give him, &c. ; that after committing the said offence by the said W. Hinton, and after the committing of the said several offences by the said Lord Porchester, within twelve months after the election, viz. on the twenty-first of May, 1781, Lord Porchester discovered to Richards the offence of the said W. Hinton, &c., Lord Porchester not having been then convicted, &c.; that in Trinity term, 21 Geo. 3, Richards impleaded Hinton ; then followed the declaration against Hinton, containing four counts, for bribery, on the eleventh of September-the postea, twenty-eighth of July-verdict for Richards on one count for £500-the judgment against Hinton, which was Tuesday next alter the morrow of All Souls, as was also the judgment in Pelrie v. Lord Porchester ; that the said judgment continued in force, as Lord P. was ready to verify; which said offence, whereof the said W. Hinton was convicted, was the same offence which Lord Porchester so [262] discovered. " And although the said Lord Porchester, by reason of the said discovery and conviction, is, and ought to be, indemnified and discharged from the said penalties and costs so recovered against him by the said Samuel Petrie, and the disability upon the said judgment; nevertheless the said S. Petrie unjustly threatens to sue out execution," &c. The record then further stated that Lord Porchester sued out a supersedeas and process against Petrie, and the appearance; then Lord Porchester declared on the audita querela. The defendant Petrie pleaded, that before the said election, viz. on the eleventh of September, Robert Hopkins, a voter, corruptly took and received, &c. ; that after the committing of the said offence, and after the offence by Hinton, and before Lord Porchester made the discovery to Richards, viz. on the thirtieth of September, 1780, Hinton discovered to Petrie; that before Lord Porchester made the discovery to Richards, viz. on the twenty-first of May, 1781, Petrie sued out a writ against Hopkins, aud in Trinity term following declared against him. The plea then stated the proceedings in the action of Pelrie v. Hopkins, in which the Nisi Prius day was also on the twenty-eighth of July, 1781, and the judgment Tuesday next after the morrow of All Souls, 22 Geo. 3 ; that the said judgment remains in force, &e. and that the said offence is the same offence, &c. ; and the said Petrie avers that the said judgment so given against the said Robert Hopkins was, in fact, given before the said judgment was given, &c. against the said W. Hinton, in the said action so commenced against him by the said G. Richards, whereby Hinton was indemnified ; and the said J. Petrie further saith, that the said W. Hinton, twelfth February, 22 Geo. 3, sued out a writ of audita querela against Richards, which is now depending. Verification. To this plea Lord Porchester replied, that the judgment against Hinton, in the action by him against Richards, was given before the judgment against Hopkins, and traversed that the judgment against Hopkins wag given before the judgment against Hinton; and this ha is ready to verify. Petrie rejoined, that the judgment against Hopkins was given before the judgment against Hinton and this Petrie prays may be inquired of by the country. To this rejoinder Lord Porchester demurred, and assigned for cause, that it appears by the proceedings in this cause, [263] that the judgment against Hopkins and the judgment against Hinton were given at one and the same time, that is to say, on the same Tuesday after the morrow of All Souls, and therefore the averment that the judgment against Hopkins was given before the judgment against Hinton is wholly inadmissible, or if it were admissible, yet that the matter therein averred, being matter of record, ought to have been verified by the record of the said judgment, and to have been determined by the Court here; whereas the said Petrie hath endeavoured to put the same in issue to be tried by the country ; and for that the said Petrie hath not offered to verify his plea, and the matter therein alleged by the record of the said judgment, or by any record whatever. The defendant joined in demurrer. The case was argued in Hilary term by Baldwin for the plaintiff, and by Wood for the defendant. Baldwin, for the demurrer.-There are two objections in point of form assigned as causes of demurrer. 1. Matter has been put in issue to be tried by the country which is matter of record, and to be tried by the Court. It will be in the recollection of the Court, that several motions were made in these causes, and that all the rules were dismissed; the Court directing that judgment should be entered up in all the causes, in the same manner as if the motions had never been made (b). Judgment (b) See the Cricklade Case, p. 410. 646 LORD PORCHESTBR V. PETRIE 3 DOUOL. 284. was therefore, in fact, given at the time of that direction, and the accidental priority of one judgment will not be material. The Court did not mean that the parties should run a race for judgment. It is averred that judgment was given first, not signed first, in Hinton's case. This is no matter of fact. 2. The averment of one judgment being given before the other, is inadmissible as the record stands, for both are stated to have been on the same day. Every judgment, unless for some particular purpose, refers to the first day of the term. Hutchinson v. Thomas (c), Jackson, q. t., v. Gisling (d). The Courts have always avoided fractions of a day, to pre-[264]-vent confusion, and have permitted them only for the purposes of justice. Pye v. Cook (e), Johnson v. Smith (/). Having disposed of the special causes of demurrer, the substance of the plea is to be considered. The plea alleges that Hinton discovered to Petrie, who thereupon sued and obtained judgment, but that an audita querela is depending. There are two objections to this plea: 1. That by the defendant's own showing it appears that Hinton's audita querela is still depending, and that therefore it is uncertain whether he is liable or not; and secondly, that supposing the plea to be true, and that Hinton will succeed in his audita querela, still Lord Porchester is entitled to his exemption, under the clause in the Act. The moment judgment was obtained, on Lord Porchester's discovery and information, his exemption was complete. Suppose that the King should pardon an offender, in a case where a reward is annexed to the conviction, the right of the informer would not be thereby divested. In all cases of rewards on convictions, the right attaches immediately in the verdict. In Gunn's case, tried at Salisbury, the defendant was permitted to give in evidence the record of a judgment against Bristow ; and it was held sufficient, although Bristow was entitled to his audita querela, and on bringing it would be exempted. Wood, contra.-The Court will dismiss from their memory every thing that is not on the record. Lord Porchester ought to have taken the objection to the plea earlier. He cannot now take it, after having offered a traverse. [Lord Mansfield and Buller, J...
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