Omealy against Newell
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1807 |
| Date | 02 May 1807 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 382
IN THE COURT OF KING'S BENCH.
omealy against newell. Saturday, May 2d, 1807. An affidavit of debt made by the plaintiff residing in a foreign country before a foreign magistrate, whose signature to the jurat and his authority in that country to administer oaths and take affidavits were verified by a proper affidavit in this country, is a sufficient foundation for a Judge's order to hold the defendant to special bail: and this, notwithstanding the stat. 12 G. 1, c. 29, which requires an affidavit of the cause of action by the plaintiff, (by which must be understood such an affidavit taken before a competent jurisdiction in this country, whereon, if false, perjury might be assigned :) for that branch of the statute is restrictive of the acts of plaintiffs only, and not of the Courts. But any person making or knowingly using a false affidavit so made abroad for this purpose is guilty of a misdemeanor in attempting to pervert public justice, and is punishable by indictment. The defendant, a citizen of the United States of America, who had come to this -country, was arrested and held to bail by a Judge's order, upon an affidavit of debt for 13001. contracted in America, sworn to by the plaintiff, another citizen of America, then at Paris, before a person of the name of Bonome'e, who verified the affidavit in this manner; " Sworn at Paris on (a certain day) before me, notary public, magistrate, competent in this behalf, and duly authorized by the laws of France to administer oaths and take affidavits. (Signed) D. F. C. Bonome'e." And the signature of Bonomee, and that he was a magistrate of France authorized to administer oaths and take affidavits, were verified by a proper affidavit sworn here. An application was made for the defendant's discharge in last Michaelmas term, upon the ground of the insufficiency of the affidavit to hold to bail; and the matter was debated several (a)1 4 Term Eep. 123. (J) 6 Term Eep. 361. (c) Ib. 456. (a)2 Vide Nuney v. Modigliani, 1 H. Blacv217. S EAST, 365. OMEALY V. NEWELL 383 times; when the Court, considering the question to be of very general and extensive consequence, directed the case to be set down for argument in the peremptory paper of Hilary term last, upon a [365] rule nisi for discharging the defendant on filing common bail. The point was then very fully debated by Park and Parnther on shewing cause against the rule, and by Sir V. Gibbs and Scarlett in support of it. Upon the principal question as to the existence and foundation of the practice before the statute 12 Geo. 1, c. 29, and its legality afterwards, there were cited Roberts v. Slingsby(a), Walrond v. Van Moses (V), Regula Generalis of 1654, Bios v. Belifante(c), Van Morsell v. Julian (d), Pomp v. Ludvigson (e), Ex parte Worsley(f), and Dalmer v. Barnard (g). Upon a second question, which arose incidentally, and which the Court also desired to hear spoken to, how far the making or knowingly using such an affidavit, if false, was punishable, the plaintiff's counsel referred to 2 Hawk. ch. 22, s. 1, 38 & 39, which cites Waterer v. Freeman (h). Also to Wm-sley v. Harrison (i), Bex v. Mawbey(k), Bex v. Crossley(l), and to 2 Bast's P. C. 821, which cites B. v. Blackburn, M. 36 Car. 2. Trem. P. C. 101, Upon this part of the case. Lord Ellenborough C.J, at the conclusion of the argument said, that he had not the least doubt, that any person making use of a false instrument in order to pervert the course of justice was guilty of an offence punishable by indictment. That the case of The King v. Mawbey, and Others, went the whole length of that proposition. Upon the principal point, he adverted to the practice of receiving affidavits of this...
To continue reading
Request your trial
-
Arundell v White
...585. (5)1 1 Esp. N. P. Gas. 80. (a)2 Vide Bowland v. Veale, Cowp. 18. (5)2 See this subject very fully discussed in 0'Mealy v. Newell, 8 East, 364. (of Vide 1 Tidd's Pract. eh. 4, as to the execution of mesne process. (6)3 The book cites MacJcalley's case, 9 Co. 68, and Salmon v. Percivall,......
-
French against Bellew and Cullimore
...yet it goes no farther: (a)1 5 East, 79, Roe -v. Vernon. 11 East, 58, Goodright v. Pears. 15 East, 309. Marshall v. Hopkins. ' (of 8 East, 364. 114 HOWE V. ROACH 1M. &S. 304. and therefore in such cases it is necessary to shew that their authority was exercised within its proper jurisdictio......
-
Sharp v Johnston
...of an assignment of perjury was not essential to the validity of the affidavit; French v. Bettew (1 M. & S. 302), ff Mealy v. Newell (8 East, 364), Kilby v. Stmtrn'tt Young & J. 75), Mis v. -Sinclair (3 Young & J. 273). But upon this point the Court pronounced no decision, for it appeared t......
-
Ramsbottom and Others against Buckhurst
...copy of the writ itself. In like manner upon an indictment for perjury, the postea is evidence that a trial has been had, but if the (a)1 8 East, 364. ()2 This action was in case, there were three other actions in debt against three. other tenants, in w.hieh the same point arose. . 2M.&S.56......