Sinclair v Sinclair
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1845 |
| Date | 23 January 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 268
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 14 L. J. Ex. 109.
268 SINCLAIR V. SINCLAIR 13 M. & W. 640. [640] sinclair v. sinclair. Jati. 23, 1845.-A prochein amy is not a, party to the suit, but simply a person appointed by the Court to look after the interests of the infant and manage the suit for him, and therefore he is not within the exception to the general enactment in the stat. 6 & 7 Viet. c. 85, s. 1, as a party individually named in the record : and though he be liable to the costs, yet as that statute takes away all objection on the ground of interest, he is a competent witness for the plaintiff. [S. C. 14 L. J. Ex. 109.] This was an action of assumpsit by an infant, who sued by his next friend and father, against his uncle, a card-maker and paper-cutter, for the value of his services as a clerk and general manager. The declaration commenced by stating, " that Charles Sinclair the younger, the plaintiff in this suit, by Charles Sinclair the elder, who is admitted by the Court here to prosecute for the said Charles Sinclair the younger, who is an infant within the age of twenty-one years, as the next friend of the said Charles Sinclair the younger, complains," &c. The defendant pleaded tion assumpsit, and also, amongst others, a plea of set-oft', which commenced thus:-"The defendant says, that the plaintiff, before and at the commencement of the suit, was, and from thence hitherto hath been and still is indebted to the defendant in a large sum of money, to wit, 70, for meat, drink, washing, and other necessaries," &o. At the trial, before liolfe, B., at the Middlesex sittings after last Trinity term, the procheiu amy and his wife, the plaintiff's father and mother, being offered as witnesses foe the plaintiff, to prove the contract of hiring and service, were objected to by the defendant as being inadmissible witnesses. His Lordship, however, held that they were competent, arid a verdict was found for the plaintiff. Jervis, in Michaelmas term last, moved for a rule to shew cause why there should not be a new trial, on the ground that a guardian or prochein amy was incompetent, on account of his interest in the event of the suit, as, in case the defendant succeeded, they would be liable for the costs; and he contended that the recent statute, (i & 7 Viet. c. 85, did not render them competent, inasmuch as they came within the exception contained in that act, as being parties to the suit individually named in the record. [641] He cited James v. Hatfeild (1 Stra. 548). The Court having grunted a rule, Horn now shewed cause. This question depends on the construction which is to be put upon Lord Denman's Act, (i & 7 Viet. c. 85, s. 1 : viz., whether a prochein amy is S, party to the suit within the meaning of the proviso. That statute enacts, that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, but that every person so offered shall and may be admitted to give evidence, notwithstanding that such person may or shall have an interest in...
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Elizabeth Melhuish, an Infant, by John Melhuish, her Next friend, against Collier
...amy was inadmissible as a witness. On the last point, the Court (Coleridge, Wight-man and Erie Js.) held that Sinclair v. Sinclair (13 M. & W. 640), was decisive. Wightman J. observed that the prochein amy stood in the same situation, for this purpose, as an attorney. On this point a rule w......
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