Taylor against Willans
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1831 |
| Date | 11 November 1831 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 1357
IN THE COURT OF KING'S BENCH.
[845] taylok against willans. (In Error.) Friday, Nov. llth, 1831. In an action for maliciously indicting A. for perjury, it appeared that the defendant B., in 1824, preferred the indictment, and gave evidence before the grand jury, that the bill was found, removed into K. B., and tried in 1827; and that B. who was then in custody, was brought into Court under a habeas corpus obtained by his attorney, on the ground that he was a material witness; but he did not give evidence, and A. was acquitted. The Judge in his direction told the jury, that if the defendant did not appear at the trial as a witness from a consciousness that he had no evidence to give which would support the indictment, then there was a want of probable cause, and they should find for the plaintiff; but if his non-appearance did not proceed on that ground, then there was no proof of want of probable cause, and they should find for the defendant. The defendant offered no evidence, and the jury found for the plaintiff: Held, upon error, and a bill of exceptions, whereby the objection stated to the summing up was, that the Judge himself ought to have determined, upon the facts; whether there was probable cause, without leaving any question to the jury : that under the circumstances, the motive which induced the defendant not to appear as a witness, was a question of fact for the jury, and they might be directed to conclude that there was or was not probable cause, and to find for or against the defendant, according to their opinion of the motive. A. being taken before a justice of peace to be bailed, the defendant's attorney objected, that the justice had no power to bail him. A letter, proved to have been written by a Judge's clerk, purporting to be by authority of the Judge, but without proof of such authority, was given in evidence for the purpose of-shewing that the justice was induced, by such letter, to bail A,: Held, that the letter was admissible for that purpose. An affidavit made by the attorney's clerk was put in,' as shewing that those who conducted the prosecution had taken means to prevent a person becoming bail for A. This was held to be admissible, without calling the clerk to prove an authority from his master to make the affidavit. Error on a judgment in the Common Pleas. The action was brought for falsely and maliciously, and without probable cause, indicting Willans, the plaintiff below, for ;perjury alleged to have been committed by him on the trial of an action against Taylor for penalties under the Gaming Act, 9 Ann. c. 14; and the evidence on which perjury was assigned, was to the effect, that Willans had lost to Taylor, at a gaminghouse kept by him, at rouge et rioir, various sums of money at different times ; and that certain entries made by him, Willans, on a paper which he produced, were made by him as the transactions occurred. On the trial of the indictment, in February 1827, Willans was acquitted. Taylor pleaded to the present declaration, not guilty, [846] and the cause came on for trial before Best C.J. who nonsuited the plaintiff. That nonsuit was set aside by the Court of Common Pleas, and a new trial granted (a), and the case was again tried before Tindal C.J., at Westminster, in December 1829, when a verdict was found for the plaintiff. A bill of exceptions was tendered to the Chief Justice on his reception of evidence, and on his charge to the jury. Judgment having been signed, a writ of error was brought thereon, and the record removed into this Court; and the bill of exceptions was attached to it after the removal (b). (a) See 6 Bingh. 183. (&) See 6 Bingh. 512. The bill of exceptions not having been ready when the record was removed, a rule nisi was obtained afterwards for tacking the bill of exceptions * to the record nunc pro tune. Cross Serjt. cited Dillon v. Parker, 1 Bingh. 17, to shew that it could not be done after the record was removed. Denman Attorney-General and White argued that the present case was distinguishable, because the bill of exceptions had been delayed by the fault of the plaintiff below. The rule was made absolute on condition of the defendant below paying all the costs, and bringing the amount of the judgment into 'Court. Mich. V1830. 1358 TAYLOR V. WILLANS 2B.&AD.847. The bill of exceptions stated the following facts: Evidence was produced on the trial of the cause to prove that a bill of indictment for perjury had been preferred against Willans at the Middlesex Sessions in February 1824, and ignored : that it had the names of several witnesses on the back, but not that of Taylor: that a similar bill was preferred at the following sessions, and found, and removed into the King's Bench, on the back of which bill were the names of (among others) Taylor and Staniland: that a Judge's warrant was obtained by Staniland, the clerk to Taylor's attorney, for the apprehension of Willans, who was thereupon taken into custody, and was afterwards, on the 16th,of September 1824, brought before [847] Sir Richard Birnie at Bow Street to be bailed, Staniland being there at the time, and counsel to oppose the bail: that an objection was made before Sir E. Birnie to the bail being taken by him, because the arrest was in Middlesex; but a letter was produced to Sir E. Birnie as having come from Lord Tenterden, which letter was written by John Waters, clerk to Lord Tenterden, who was then (September 1824) with Lord Tenterden at Bristol. The bill of exceptions then stated, that upon this letter being put in, at the trial of the cause, the defendant's counsel objected that it was not admissible; but the Chief Justice (Tindal) over-ruled the objection, and it was read, and was as follows:-"To Mr. W. Willans. Sir,-The Lord Chief Justice has directed me to inform you, that he has received your letter, and in answer thereto, desires me to say, that if Sir Eichard Birnie thinks fit to take bail, he, the Chief Justice, sees no objection to his doing so in the absence of the Judges from London :" that the plaintiff's counsel afterwards proposed to withdraw the letter; but this was refused, as it had been read to the jury. It was also...
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