Newton and Wife v Boodle and Three Others
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1848 |
| Date | 14 November 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1355
IN THE COURT OF COMMON PLEAS
S. C. 18 L. J. C. P. 73. Observation applied, In re Frankland, 1872, L. R. 8 Q. B. 24.
newton and wife v. boodle and three others. Nov. 14, 1848, [S. C. 18 L. J. C. P. 73. Observations applied, Jm re Frankland, 1872, L. E. 8 Q B. 24.] The court sitting in banco has no authority to amend the return made by the lord chief justice to a writ of error.-Although interlocutory rules for payment of money or costs, have, by force of the 1 & 2 Viet. c. 110, s. 18, "the effect of judgments in the superior courts of common law," they form no part of the record, so as to be examinable in a court of error. This was an action of trespass for an alleged false imprisonment of the female plaintiff under a writ of ca. sa. for the costs incurred by Kowe and Norman (two of the now defendants), in the defence of an action brought against them for an alleged libel upon Mrs. Newton, in which action they (Kowe and Norman) had obtained a verdict. The other two defendants, Boodle and Norcutt, were, respectively, the attorney and the agent of the defendants in that action. At the trial, which took place at the sittings in London after Hilary term, 1845, a verdict was found for the plaintiffs, upon not guilty, against three of the defendants, viz. Boodle, [530] Norcutt, and Eowe, and for the defendant Norman upon that issue; and a verdict was found for all the defendants upon certain pleas of justification. In Michaelmas term, 1846, a rule nisi for a new trial was obtained for and in the name of both the plaintiffs, on the ground of misdirection; which rule was, in the following term, discharged with costs (ante, vol. iii. p. 795). The defendants had signed judgment before the rule for a new trial was obtained; and on the 12th of January, 1847, the costs of the cause were taxed,-the master allowing costs to Kowe and Norman 751. 10s., and to Boodle and Norcutt 251. 4s. 4d., deducting 21. for the plaintiffs' costs of the issue on which they had partially succeeded. The costs of the rule for a new trial were afterwards, viz. on the 9th of March, 1847, taxed; the allowance to Eowe and Norman being 261. 14s., and to Boodle and Norcutt, 131. 5s. 4d. In Easter term, 1847, Mrs. Newton obtained a rule nisi to amend the rule dis- 1356 NEWTON V. BOODLE 6 C. B. 531 charging the rule for a new trial, by striking out so much of it as directed costs to be paid by her, on the ground that she was no party to that rule, and that a married woman suing or being sued with her husband, is not liable to costs. This rule was discharged, with costs, to be paid by Mrs. Newton. A writ of error was afterwards brought upon the judgment of this court, which judgment was affirmed by the Exchequer Chamber in Trinity vacation, 1848. Upon this judgment of affirmance, the plaintiffs below brought a writ of error, returnable in parliament. Newton now moved that the return to the writ of error directed to the lord chief justice of this court, might be amended, by adding to the transcript the rules of court made in the cause. [Wilde, C. J. The [531] writ is directed to me : the court has no jurisdiction in the matter.] The return of the chief justice is the return of the court; as appears from Bac. Abr. Error (E.) (citing Fitz. N. B. 25 A.), where it is said: "If the judges of the Common Pleas, or other judges, upon a writ of error, will not certify all the record, the party that sues the writ of error, may allege diminution of the record, and pray a writ to the justices that certified the record before, to certify the whole record." [Maule, J. Is not your proper course, to allege diminution, if any part of the record has been omitted?] Gully v. The Bishop of Exeter (b), and Hellish v. Richardson (9 Bingh. 125. 2 M. & Scott, 191, 1 Clark & F. 224), shew that the plaintiffs are entitled to have the rules returned as part of the record. [Wilde, C. J. The rules were not returned in Gully v. The Bishop of Exeter: they were set out by the defendant in the assignment of errors; and that course was reprobated,-Parke, B., saying (10 B. & C. 614), "It is the first time objections on such collateral matters have been made, and probably it will be the last."] The rule for the amendment was returned in Hellish v. Richardson: and there is the more reason for returning these rules at the present day, seeing that they have all the force of judgments (vide post, 533 (6)), by the 1 & 2 Viet. c. 110, s. 18, which enacts that "all decrees and orders of courts of equity, and all rules of courts of common law, and all orders of the Lord Chancellor or of the court of review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior courts of common law; and the persons to whom any such moneys, or costs, charges, or expenses shall be payable, shall be deemed judgment-creditors within [532] the meaning of this act; and all powers hereby given to the judges of the superior courts of common law, with respect to matters depending in the same courts, shall and may be exercised by courts of equity with respect to matters therein depending, and by the Lord Chancellor and the court of review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy : and all remedies hereby given to judgment-creditors are in like manner given to persons to whom any moneys, or costs, charges, or expenses are by such orders or rules respectively directed to be paid." Acting upon this view of the statute, Cresswell, J., has made an order at chambers, under the 14th section, charging certain stock to which Mrs. Newton is entitled under a decree of the Master of the Rolls, with the costs in question. [Maule, J. Assuming that you are right in your construction of the statute, is not the court in which the writ of error is returnable, the proper court wherein to make this application ?] The answer to the application there would be,-as in Mellish v. Richardson,-that the court of error cannot deal with mere matter of practice. wilde, C. J. This motion is directly in the teeth of all precedent. Eule refused. Nov. 18.-Newton, on a subsequent day, moved for a rule calling upon the defendants to shew cause why the plaintiffs should not be at liberty to enter the rules in question upon the judgment-roll,-with a view to a future application for an amendment of the transcript. [Maule, J. These rules were founded upon affidavits: do you seek to have them also returned as part of the record 1~\ No: only the rules themselves. In Tolson v. Dykes (8 Jurist, 565), orders of the court of Chancery for the payment of money, [533] were held, by Lord Cottenham, to constitute judgment-debts, by force of the 1 & 2 Viet. c. 110, s. 18. [Maule, J. A writ of error lies (6) 10 B. & C. 584, S. C., by its true title of The Bishop of Exeter and Another v, Gully (in Error), 5 M. & E. 457. 6C. B. 534. NEWTON V. BOODLE 1357 only upon a judgment of the court. Now, the statute does not say that the court shall give judgment, but that all decrees, orders, or rules of court shall have,.with reference to the objects that statute had in view, the force of judgments of the superior courts of common law. Suppose the rule for a new trial in this case had been simply discharged,-would that have had the effect of a judgment?] In that case, there would have been nothing to review. In Tod v. Tod (I Bligh, N". S. 639), it was held that an appeal will not lie for costs only, where costs are in the discretion of the court: but that, where the court is directed by an act of parliament to give costs, it is a proper subject of appeal, if they are not given according to the requisition of the act. [Maule, J. The 18th section of the 1 & 2 Viet. c. 110, says that "all decrees and orders of courts of equity, and all rules of...
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