William Mellish, - Plaintiff in Error; George Richardson, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 6 E.R. 900
FROM THE COURT OF KING'S BENCH.
Mews' Dig. i. 352; xi. 488, 602; S.C. 6 Bli. N.S. 70; and, in Courts below, 2 Bing. 229; 3 Bing. 334; 7 B. and C. 819. Cited with approval, on point as to amendments, in Tetley v. Wanless, 1867, L.R. 2 Ex. 279; and Scott v. Bennett, 1871, L.R. 5 H. L. 243. See also Davies v. Davies, 1887, 36 Ch. D. 364.
WRIT OF ERROR from the court op king's bench. WILLIAM MELLISH,-Plaintiff in Error; GEORGE RICHARDSON,-Defendant in Error. [Mews' Dig. i. 352; xi. 488, 602; S.C. 6 Bli. N.S. 70; and, in Courts below, 2 Bing. 229 ; 3 Bing. 334; 7 B. and C. 819. Cited with approval, on point as to amendments, in Tetley v. Wanless, 1867, L.R. 2 Ex. 279; and Scott v. Bennett, 1871, L.R. 5 H. L. 243. See also Dames v. Davies, 1887, 36 Ch. D. 364.] This House will not postpone the hearing and decision of any Appeal on account of the absence of counsel, but will call on the counsel on either side in attendance to proceed with the argument. 900 HELLISH V. RICHARDSON [1832] I CLARK & FINNELLY. A Court of Law has authority over its own record, which it may amend, even after error brought. A Court of Error will not inquire into the propriety of amendments made in the Court below, but, though such amendments be made after error brought, will consider them as part of the original record subjected to their revision. This was a writ of error brought by the Defendant below from a judgment of the Court of King's Bench at Westminster, affirming a judgment of the Court of Common Pleas at Westminster, in favour of the Plaintiff below. The declaration was on a special contract, and contained four special counts and the money counts. The Defendant pleaded the general issue. The cause was tried at the London Sittings after Hilary [225] Term, 1824, before the Eight Hon. Lord Gifford, then Lord Chief Justice of the Court of Common Pleas, and a special jury, and a verdict was recorded for the plaintiff on all the counts, with £7500 damages. Judgment was given for the Plaintiff by the Court of Common Pleas upon, the whole declaration after a motion for a new trial or in arrest of judgment, for the damages, and £274 taxed costs. A writ of error was brought in the Court of King's Bench; special errors were assigned, and the case was argued at the sitting before Michaelmas Term, 1825. Before the Court of King's Bench gave any judgment, the Plaintiff below applied to the late Lord Giffo rd, then Master of the Rolls, to amend the po\stea, by entering the verdict for the Plaintiff on the first count only, but his Lordship declined to interfere, as he doubted whether he had any authority, having ceased to fill the office of Chief Justice, but he certified to the Court, that he should have made the amendment had he possessed the authority to do so. On the 10th of November 1825, a rule nisi was granted by the Court of Common Pleas for amending the postea. On the 24th of November, the rule was made absolute, and the nisi prius record was amended accordingly; and on the next day a rule nisi was obtained from the Court of Common Pleas for amending the Judgment-roll, conformably to1 the amended postea, which rule was made absolute on the 26th of November, and the Judgment-roll remaining in the Common Pleas was amended accordingly. While these proceedings were pending in the Common Pleas, namely, on the 25th of November, the Court of King's Bench gave judgment upon the ori-[226]-ginal transcript, reversed the judgment of the Court of Common Pleas, and directed a venire de novo, intimating an opinion, that the first and second, counts of the declara^ tion, which set forth the whole of the agreement between the parties, were good, but that there was not a sufficient consideration to support the third and fourth counts. That reversal was entered of record on. the next day. Upon the amendment being made by the Court of Common Pleas, an application was made to the Court of King's Bench to amend the transcript; and the Court of King's Bench, in the same Michaelmas Term, 1825, amended the transcript in the same way, and gave judgment for the Plaintiff below, affirming the judgment of the Court of Common Pleas, with £106, 10s. for the costs in error. Upon this judgment the Defendant below brought the present writ of error. Upon counsel being called to the bar (25 June), Mr. Campbell appeared on behalf of the Defendant in Error, and stated to their Lordships that there was no counsel present for the Plaintiff. The Agent for the Plaintiff said that he had taken every possible means to ensure the attendance of counsel, but that he had been unable to do so, on account of their being engaged in very important business elsewhere, and he expressed a hope that their Lordiships would allow the case to stand over. Mr. Campbell could not consent to any further delay. Lord Tenterden said, that it had never been the practice of that House to allow causes to stand over on account of the absence of counsel. Other Courts might do so for the convenience of that House, but that House could not do so for their convenience. He remembered an instance in which, when at the bar, [227] he had been engaged in a cause in the Court of King's Bench, and on the day appointed for the trial, an appeal, in which he had been retained as counsel, came on to be heard in that House ; he mentioned the circumstance to' Lord Ellenborough, who at once allowed him to quit 901 I CLARK & FINNELLY. HELLISH V. RICHAKDSON [1832] the Court of King's Bench, in order to proceed with the argument before that House. Ho did not however think it was fit to dismiss...
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