The King against Jolliffe
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1791 |
| Date | 25 June 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 1022
IN THE COURT OF KING'S BENCH
Referred to, Dixon v. Farrer, 1886, 17 Q. B. D. 668; 18Q. B. D. 43; R. v. Tibbits [1902], 1 K. B. 86.
[285] casks argued and determined in the court of king's bench, in trinity term, in the thirty-first year of the reign of george III. the king against jolliffe. Saturday, June 25th, 1791. A criminal information having been granted against the defendant, he before the trial at Nisi Prius, distributed hand-bills in the assize town, vindicating his own conduct, and reflecting on the prosecutor's; this matter being disclosed to the Judge at Niai Prius by an affidavit, was held a sufficient ground to put off the trial.-And that affidavit being returned to this Court, they granted another information on it against the defendant; considering the affidavit, taken at Nisi Prius, as taken under the authority of this Court. [Referred to, Dixon v. Famr, 1886, 17 Q. B. D. 668; 18 Q. B. D. 43; E. v. Tibbits [1902], 1 K. B. 86.] An information having been granted against the defendant in Michaelmas term last for a misdemeanour, as a magistrate, it went down to be tried before Gould, J. at the last Surry Assizes; when an application was made to him to put off the trial upon the affidavits of Mr. Smith, Dr. Weller, and Mr. Barnes. The first of whom deposed, that three days before, the defendant at Kingston, where the assizes were held, gave him four printed papers, one of which was annexed, arid asked him whether he had seen any of those papers. That when the deponent received them he was about to read one, when the defendant desired he would put them in his pocket; which he did ; and that he afterwards delivered one of them to Dr. Weller at his request; but had not till the present occasion had any conversation with any person concerning the contents. The affidavits of Dr. Weller and Mr. Barnes confirmed the receipt of the paper by the former from Mr. Smith, in the manner stated by Mr. Smith ; and it also appeared from Dr. Welter's affidavit that he had delivered the papers so received from Mr. Smith to Mr. Barnes, solicitor for the prosecutor, without knowing the contents. The substance of the paper so delivered was a vindication by the defendant of his conduct [286] upon the charge contained in the information then pending, and an imputation of malicious motives in the prosecutor. Upon these affidavits the trial was put off, on the motion of the prosecutor's counsel, suggesting that the papers had been published with a view of prejudicing the trial; and the affidavits were returned into this Court by the associate. In the last term an application was made to this Court and a rule nisi was granted for another information against the defendant, upon the affidavit of Mr. Barnes, stating, tkat the former trial had been postponed on the ground of the matters disclosed in the above affidavits of Mr. Smith and Dr. Weller, which were annexed thereto, together with the printed paper in question, and that Mr. Smith and Dr. Weller when requested to make affidavits to the same effect as before for supporting this application to the Court had declined doing it. Mr. Barnes then deposed, as before, that he had received the printed paper annexed to the affidavit sworn at the assizes from Dr. Weller, who said he had received the same from Mr. Smith, and that he had heard Smith say what he had afterwards sworn in Court, that he had received four of the said printed papers from the defendant at Kingston. There was also the usual affidavit from the prosecutor Mr. Fanshawe, denying the suggestions contained in the paper as far as respected himself, and that he did not make the application from any malice against the defendant. Piggott, Shepherd, and Adam, now shewed cause against the rule, on two grounds ; first, that the affidavits of Smith and Weller could not now be taken into consideration, because they were not made in this Court, nor in this cause. They were not made in this Court, but before the Judge at Nisi Prius, who does not derive his authority from this Court, but from the Stat. Westm. 2 (a). In Bullock v. Pars(ms(b), Lord (a) 13 Ed. 1, e. 30. (5) Salk. 454. 4T.R.M7. THE KING V. JOLL1FFE 1023 Holt said, "The authority of the Judge at Nisi Prius is not by the distringas, but by the commission of assize;" and though the Judge, by possessing the power of trying the cause at Nisi Prius, has also incidentally the power of deciding a preliminary question whether or not the cause shall be tried, and consequently of taking an affidavit for the purpose of enabling him to decide that point, yet such his incidental authority ia confined to the particular question then discussed before him, and be has no jurisdiction to take an affidavit for...
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