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to his conviction. It is impossible that the judge tificate is a full protection to him, the witness will
The rule is of considerable an- at a certain place at a certain time. The witness
I The judge decides, as a matter of law, that a subthink the judge is bound by the witness' oath, sequent act has repealed penalties of this kind. otherwise you might exhaust all possibilities con- He will therefore compel an answer (9). sistent with a man's innocence, and so convict him In case 1 it was said: “The first point raises the of murder." And Jervis, C. J., added: “We question whether the witness is to determine the must allow the witness to judge for himself, or he law as to his liability to any penalty. I do not would be made to criminate himself entirely. There doubt the accuracy of the observation in the case is no doubt at times great difficulty in applying cited, that in a great number of instances the witthe rule, but it is impossible to help that.” In 08- ness himself must be the only person to determine born v. London Dock Co. (4), where it was argued that point, but certainly where all the facts relatthat the judge ought to decide whether the wit- ing to it are brought before the attention of the ness' reasons were sufficient for refusing to answer, court, then I am of opinion that it is for the court Alderson, B., answered: “On the other hand there to determine it, because it is a mere question of is great difficulty in saying where the limit is to be law, and such is the case upon the present occasion. drawn; for if the court were to decide improperly I therefore proceed to examine the law of the case, that a question may be put, irreparable injustice and to inquire whether the witness incurs any
liability might be done to the witness. Suppose, for in- sufficient to justify him in his refusal to answer the stance, a witness were asked whether he was in the question.” And after examining the law the court company of two other persons at a particular place held that there was no illegality about the transacat a certain hour, That seems a very innocent tion. The witness therefore was required to anquestion, and yet the answer might lead to the con- swer, and the ruling was affirmed on appeal. viction of the witness for some very serious crime. In case 3 it was said: “In relation to the priviThe witness may know the effect of the question, lege of witnesses, it is necessary to avoid these two and upon that ground he may refuse to answer it, extremes: 1. That of permitting the witness to although the court may be totally ignorant of its protect himself by his privilege by refusing to aneffect."
swer questions which cannot, from the nature of
the answers sought, criminate him. 2. That of 1. In a proceeding to wind up a company a wit- compelling him to answer, when from the nature of ness is asked whether he has bought or sold, or had the question, the answer would inevitably crimiin his possession, any of the shares of the company. nate him. In the first the court must be judge, and He declines to answer on the ground that the com- compel the answer. In the second the witness is pany is illegal, and the issue of the scrip illegal, sole judge, and may answer or refuse, as he sees thereby subjecting him to a penalty. It is for the proper. When it is evident to the mind of the judge to decide this, and if he decides that such court that the answer cannot accuse the witness, transactions are not illegal, the witness must an- the court should require him to respond to the inswer (5).
In this case it was evident 2. In England it is provided by the Corrupt from the scope of the question that an answer could Practices Prevention Act (elections), that a person not possibly infringe upon this right, and yet the giving full answers to all questions as to corrupt witness makes himself the judge, and refuses to practices committed by him shall be freed from answer.” subsequent punishment or penalty (6). A witness
JOHN D. LAWSON. who has been examined in such an inquiry, and has obtained from the tribunal a certificate of indemnity under the statute, is examined in a prosecu
VOID GRANTS OF LAND HELD ADVERSELY. tion for bribery growing out of the same election. He is asked, "did you at such a time receive a sum The system of practice inaugurated by the Code is,
in its spirit, opposed to every thing in the nature of money from the respondent?” He declines to
of legal fiction. Common sense and ordinary lananswer on the ground that his answer would crim
guage, as opposed to technicality and circumlocution, inate him. If in the opinion of the judge the cer- lie at the basis of the system and give it vitality and
(7) Ex parte Fernandez, 10 C. B. (N. S.) 4 (1861).
(9) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 330 (6) R. v. Hulme, L. R., 5 Q. B. 377 (1870).
(4) 10 Ex. 700 (1855).
consistency. The administration of justice is no longer seuted to him, would content himself with ascertainto be hedged about with mysterious and vapory ing as a fact whether at the time of the grant to his legal terms. It is to find the fulfillment of its mission client, the property sought to be recovered was held less in the theoretical than in the real status of the adversely. He would thereupon institute proceedings parties. The veil of the temple of justice has been in the name of the grantor of his client, and not until rent in twain, and the language of the layman instead he was met at the trial by a more learned and philoof the mysterious circumlocution of the priest is to be sophic opponent, would he discover that in addition to heard at the altar. The practice of law, as respects the the single preliminary query which he propounded at litigation of cases in our courts, has been made a prac- the outset, there were two other elements in the case tical matter. It is not so much a problem in algebra, which he had quite overlooked. They may be started with many and complex signs and symbols, which con- as queries, thus: First. Did the grantee derive title fuse the uninitiated, as an example in simple arithme- direct from the grantor, or indirectly through judicial tic, the statement of which the merest tyro may proceedings ? Second. Was the adverse holding under comprebend.
a claim of title, or was it a mere adverse possession ? In Among other provisions of the Code, framed in this short, if either of these elements were involved in the spirit, is that contained in section 449, which provides case, then the grantee, and not the grantor, would be that every action must be prosecuted in the name of the proper party plaintiff, since the courts have held the real party in interest. Speaking generally, there that the statute which declares void all grants of land would seem to be but little oocasion for any judicial | held adversely does not contemplate cases where the interpretation or construction of this provision, and trausfer is made by operation of law, and not by the wbatever questions respecting its scope and meaning direct act of the grantor, nor cases where the dispute may have been raised, have long since been placed at is not concerning the title, but the right of possession rest. But connected with this provision and section growing out of disputed boundaries. 1501 we find a clause which has more than once in- In the first class of cases the statute originated in volved courts and litigants in doubt and obscurity. By the ancient doctrine of champerty. Its purpose was this clause it is provided that an action may be main- to prevent a sale of disputed rights, which was contained by a grantee of land in the name of the grantor | trary to public policy. Says Hawkins: “It seemeth to
when the conveyance under which he holds be a high offense at common law to buy or sell a doubt is void because the property conveyed was held ad- ful title to lands known to be disputed, to the intent versely to the grantor.
that the buyer may carry on the suit which the seller By the provisions of the Revised Statutes (2 Rev. doth uot think it worth his while to do. And it seemStat. 1120) “every grant of land shall be absolutely eth not to be material whether the title so sold be a void if at the time of the delivery thereof such lands good or bad one, or whether the seller were in possesshall be in the actual possession of a person claiming sion or not, unless his possession were uncontested." under a title adverse to that of the grantor."
1 Hawk. P. C. (Curw. ed.) 470. And Bishop, under Here then is discovered a class of cases wherein the the head of “Champerty” (2 Cr. Law, 137), says: real party in interest, namely, the grantee of such * This is one of the sources of the rule that a convey. “void" grant may not sue in his own name. That he ance of land held by another adversely to the grantor is the real party in interest is unquestioned, for al- is void." though the grant is declared to be void, it is The foundation of the rule and of the statute having so only sub modo and between the
gran- thus been made clear, it did not take the courts a great tee and third parties. As between him and the while to see that when a man's property was taken grantor the transfer is perfectly legitimate. So that from bim by judicial decree or by operation of law, the sense of the Code provision to which I have re- and transferred to auother-even though at the time ferred would be something like this: A. has executed held adversely—the transfer did not come within the and delivered to D. a conveyance of certain real prop- mischief contemplated by the enactment, and in acerty. But at the time of the conveyance this property cordance with a familiar legal maxim, the reason of was in the actual possession of C., wbo claimed to hold the rule having ceased, the rule no longer applied. it adversely. B. is the real party in interest in any The first case in which this doctrine was clearly stated litigation to recover the possession from C. But as the was Tuttle v. Jackson, 6 Wend. 224, in which Chancel. statute makes the grant void as respects C., the only lor Walworth uses this language: party who can prosecute the action is A. But as be- “I am satisfied that the statute against buying and tween A. and B. the latter has a valid conveyance, the selling pretended titles cannot apply to judicial sales. Code permits him to use A.'s name iu the action It is merely an affirmance of the common law, and brought to recover possession. This looks a little like that has never contemplated preventing change of title circumlocution to the lay understanding. But is is clear by operation of law or by sale by a proper officer under that if B. were to be permitted to sue in his own name, a bona fide decree. It does not come within the misthe statute making void such grants would be rendered chiefs intended to be guarded against by the statute." ineffective.
In Hoyt v. Thompson, 1 Seld. 345, Ruggles, C. J., The question which I wish to present at this junc. said: “A change of property by operation of law or ture is this: Must the grantee of real property in all sale by a proper officer under a bona fide judgment cases use the name of his grantor in actions to recover does not come within the mischief of the statute." the same as against one holding adversely at the time And in the same case Paige, J., added: "The princiof the grant? Having in view the phraseology of the ples of the common law and statutes do not apply to Code, and giving it a literal construction, the answer judicial sales or sales made under a decree, etc." would appear to be in the affirmative. But the courts, The same principle was enunciated in 14 N. Y. 289; drawing inspiration from the spirit which animates and Stevens v. Hauser, 39 id. 302. our modern system, and at the same time bearing in In the second class of cases the authorities simply mind the reason of the rule which avoids such grants, adopt a sensible construction of the literal words of have held that these statutes, clear and unambiguous, the statute. It is not every grant of land held adas they appear to be, are nevertheless subject to cer- versely which is void, but only such grants as are held tain exceptions.
by adverse title. There must be not only a claim of Naturally enough, the pleader, pot having these ex- possession, but it must be founded on a title adverse. ceptions before him, would be governed by the plain Consequently when two parties claim under the same terms of the Code provision, and when a case was pre- description or under the same grant, but there is a
question of boundary, the case is not within the Most of the authors on evidence evidently adopt the statute. A fortiori, must this be so where the claim- view that the testimony is admissible when offered by ant has mere naked possession without any title what
State. Although but little authority is ad
duced to support their statements, and the doctrine is As was said by the court in Allen v. Welch, 18 Hun, not very clearly or positively stated in some instances, 226: “It would be unreasonable to say that if one of still such a general concurrence of favorable exprestwo adjoining neighbors entered on and took posses- bion has much weight upon the question. It goes far sion of a strip between two disputed boundaries, the to show the common opinion and practice. Hawking other could not make a valid sale of his land until the P. C., book 2, ch. 46, § 90; 1 Hale P. C. 305; 2 Starkie end of a litigation and the removal of the intruder." Ev. 11; Roscoe Crim. Ev. (9th ed.) 130, 140; 2 Russell
In that case each party admitted that the other was Crimes, 957. Mr. Wbarton says: “An accomplice is owner up to the line, wherever the line might be, and a competent witness for the prosecution, although his the judgment of the court was that for this reason the expectation of pardon depends upon the defendant's doctrine and statute of champerty did not apply. conviction, and although he is a co-defendant, pro
ED. J. MAXWELL.
vided in the latter case his trial is served from that of YONKERS, N. Y.
the defendant against whom he is offered.” Whart. Cr. Ev. (8th ed.), $ 439. Mr. Greenleaf states the same
rule. He says: "The usual course is, to leave out of CRIMINAL LAW-MURDER--C0-DEFENDANT MAY the indictment those who are to be called as witnesses; TESTIFY.
but it makes no difference as to the admissibility of
an accomplice, whether he is indicted or not, if he has MAINE SUPREME JUDICIAL COURT.
not been put on his trial at the same time with his companions in guilt." 1 Greenl. Ev., $ 379.
The counsel for the defendant places especial reliSTATE V. BARROWS.*
ance on Mr. Bishop as an opposing authority. That On the separate trial of one of two persons jointly indicted for
learned commentator evidently attaches more weight murder, the other defendant, even while the indictment
to that side of the question than other writers do. 1 is still pending against himself on a plea of not guilty,
Bish. Cr. Proc. (3d ed.), SS 1020, 1166. But Mr. Bishop may with his own consent be called as a witness and al
states that all the cases are not in accord with his text, lowed to testify against his co-defendant.
and also says, in a note to the section cited supra, that (N exceptions.
the late English doctrine seems to differ from the rule
recognized by him. We find it to be so. Late English Indictment against Oscar E. Blaney and Mary E. cases are quite emphatic to that effect. Queen v. Barrows for the murder of Thomas Barrows at Kit
Thompson, L. R., 1 C. C. 378; Queen v. Winsor, L. R., tery, on the 14th of November, 1883. The respondents
1 Q. B. 390; Queen v. Payne, L. R., 1 C. C. 349; Queen severally pleaded not guilty. On motion of Mary E. v. Deeley, 11 Cox. C. C. 607. The defendant's counsel Barrows a separate trial was granted her and she was
however in their able and exhaustive brief contend first put on trial.
that the late English cases are based upon acts of ParThe opinion states the question presented by the ex
liament in amendment of the common law. It cannot ceptions.
be so, for Chief Justice Cockburn in Queen v. Payne,
supra, declares the rule to be according to the law "as Henry B. Cleaves, attorney-general, and Frank M.
it has existed from the earliest times," and other Higgins, for State.
judges gave their opinion that the new enactments Ira T. Dreu, William Emery, and John B. Donovan, were not intended to apply to criminal cases. See for defendant.
cases, supra. PETERS, C. J. Mary E. Barrows and Oscar E.
The question before us does not appear in any reBlaney were jointly indicted for murder. She was
ported case in this State. State y. Jones, 51 Me. 125, separately tried. Blaney, without any further dispo- approaching the question nearer than any other case, sition of the indictment as to him than his plea of not
merely decides that when two are indicted, and one guilty, was called as a witness against her. The bill of
pleads guilty, his testimony is admissible for the other exceptions presents the question, whether if two are
defendant. Kent, J., says in the opinion: indicted jointly, and one pleads not guilty, his tes
to be settled that he cannot be thus called whilst the timony, if he consents to be a witness, is admissible
charge in the indictment is pending and updisposed of for the State on the separate trial of the other defend
against him. And this whether he is to be tried sepant.
arately or jointly.” That is, the defendant cannot be In this state it is a question to be decided upon the
called by the co-defendant. The latter remarks are a principles of the common law as amended or modified
correct statement of the law of New York, and New by statutory provisions.
York cases are cited in support of it. See 17 Alb. L. As a question simply at common-law, although there
J. 421. In 1876 however the privilege of calling a cois a contradiction in the cases, the preponderance of
defendant to testify, before that time possessed by the authority seems to favor the admission of a co-defend.
prosecution only, was extended by a legislative enactant, not on trial as a witness, if called by the prosecu
ment to all parties. 18 Alb. L. J. 160. The case of tion. There is very much less authority allowing bim
Lindsay v. People, 63 N. Y. 143, relied upon by the to be sworn as a witness for the defense. Whether the
defendant's counsel, upon a correct understanding distinction be a sensible one or not, it has prevailed
of it, does not contradict previous decisions in that
State. extensively. There are really but a fow adjudged
The argument against the admission of such evicases upon the point whether such testimony is admissible for the State, for the reason, probably, that a
dence does not strike us with much force. It is almost prosecuting attorney can avoid the question by omit
universally admitted that an accomplice separately inting to indict one party, or by obtaining separate in
dicted may be a witness for the State, and any distincdictments. The defendant having no such election,
tion arising between trials on a joint indictment and the cases affecting the testimony in his behalf are more
" It seems
trials on separate indictments is not readily appreciated. The crime is supposed to be jointly committed
in either case. If there are separate indictments, the * S. C., 76 Me. 401.
fact of joint criminality is not withheld from the
ACTION on a firm note. The opinion states the
jury. It is not improper to aver it by way of recital from the dock to the witness stand, but a companion
Exceptions overruled. per with a charge against the culprit whose trial is in Walton, Virgin, Libbey, Emery and Haskell, JJ., progress."
concurred. The reason at first given for not allowing a party to testify was his interest. The old common law shuddered at the idea of any person testifying who had the
MARRIAGE-HUSBAND AND WIFE - PARTNERleast interest. But that reason failed sometimes. In
SHIP many civil cases a party had no interest. Then it was decided that public policy or expediency prevented CITY COURT OF BROOKLYN, GENERAL TERM, 1685. the reception of the testimony. A party to the record was not permitted to testify, whether interested or
NOEL V. KINNEY. not. If only a nominal plaintiff, he could not testify
'A married woman is not authorized to form and carry on a either for the plaintiff or defendant. Kennedy v. Niles 14 Me. 54. Without much reasoning upon the subject,
business partnership with her husband, and she is not
liable on a note given in the course of the business the law prouounced against it. The rule was general.
thereof. But as stringent as the rule was, it did not apply to indictments to its full extent. The parallel between civil and criminal cases was not kept up. If a man
. was indicted and pleaded guilty, he could testify for N. P. O'Brien, for plaintiff. his co-defendaut. State v. Jones, supra. If however he was sued for the same cause, and became defaulted,
G. Storm Carpenter, for defendant. he could not testify for his co-defendant. Gilmore v. REYNOLDS, C. J. The respondent and her husband Bowden, 12 Me. 412. Courts seemed inclined not to are sued as partners upon a note signed by her husregard a co-defendaut in a criminal case as a party, band in the firm name of J. P. Kinney & Co. As the unless " a party to the issue on trial.” That distinc-complaint is now framed, the action is not upon the tion is taken in the English cases before cited. To be consideration for which the note was given, nor are incompetent to testify, the defendants must be in any facts alleged for the purpose of cbarging the decharge of the same jury. Mr. Starkie struck the fendant as a married woman, but the claim rests same key, who declared that "an indictment against simply upon the written instrument, and the case several is several as to each.” It is plainly seen that therefore presents the question whether a married there is much authority and reason for regarding an woman may carry on business as a partner with her indictment of two or more persons as in effect husband. As this question has been ruled both ways, a joint and several indictment; joint when the ac- and able and exhaustive opinions have been given, it cused are tried jointly; and several when tried sep- will only be necessary for us to give a general state. arately.
ment of our reasons for the conclusion at wbich we But as before intimated, we are not to look upon have arrived. the question before us as exclusively one at common It must be conceded that at common law the unity law. Our statutory euactments bear upon it. They of husband and wife was such as to preclude the exhave weakened if not abrogated the argument of pub- istence of a business co-partnership between them; lic policy. It was no doubt the design of the Legisla- and such is still th rule unless it has been changed by ture that the objection to the competency of parties some statute. Tie only statutes claimed to have efas witnesses should be removed in both civil and fected such a result are the married woman's act of criminal cases. In civil cases the door is opened 1848, as amended by chapter 375 of the Laws of 1849, wide. In criminal cases the provision is this: “In and the act of 1860 as amended by that of 1862. all criminal trials the accused shall, at his own re- The idea of a co-partnership involves the holding of quest, but not otherwise, be a competent witness. property in common, and the transaction of business
* The husband or wife of the accused is a com- together by the partners. First as to property. The petent witness." R. S., ch. 134, $ 19. While this enact- provisions pertinent to the question are section 3 of ment does not cover the present question with literal the act of 1848 as amended, and section 1 of the act of exactness, it approaches it, affects and influences it, 1860. The vote in suit was made before the passage of and requires us to examine the matter in the light of the act of 1884. the legislative polics declared by it. If both defend- By these statutes" any married female may take by ants were on trial at the same time, either could tes- inheritance, or by gift, graut, devise or bequest from tify. Com. v. Brown, 130 Mass. 279. If the argument any person other than her husband aud hold to her sole for the defendant is sound, then the common-law rule and separate use, and convey aud devise real and perbas become reversed. Defendants can testify against sonal property, and any interest or estate therein, and each other when tried together, and cannot so testify the rents, issues or profits thereof, in the same manner wheu tried apart. We do not assent to such a propo- and with like effect as if she were unmarried, and the sition.
same shall not be subject to the disposal of her husband The admission of the evidence did no injustice. It por be liable for his debts" (1848). bore less heavily upon the defendant than it would “The property both real and personal which apy have if the witness had not been himself indicted. As married woman now owns as her sole and separate Lord Hale says, the indictment against him " 'doth property; that which comes to her by descent, derise, much weaken and disparage his testimony.” It would bequest, gift or grant; that which she acquires by her present a singular inconsistency in criminal proce-trade, business, labor or services carried ou or perdure, if even one's wife may be compelled to testify formed on her sole or separate account” shall remain against him, and a co-defendant ou trial inay be called her sole and separate property, not subject to the cou
(commenting on the acts of 1848, 1849 and 1860): “The statutes referred to touch a married woman in her reJations to her husband only so far as they relate to her separate property and business, and the labor she may perform on her sole and separate account.'.
It may be as contended by Judge Brown in the case referred to, that a married woman can carry on a partnership with a person other than her husband, but if she can do so with him, the words “sole and separate in the statutes we have been considering, seem to have little or no use.
Some of the views above expressed, and others equally conclusive, are so fully and forcibly presented by Judge Westbrook in Fairlee v. Bloomingdale, 14 Abb. N. C. 341; 29 Alb. L. J. 285, that a further discussion would seem to be out of place.
Exceptions overruled and judgment for defendant, Frederica M. Kinney, with costs.
trol of her husband or liable for his debts; except in one case, not material to be considered here (1860).
We cannot carry her powers or liabilities beyond these statutes. The essential ideas of co-partnership property seem to be carefully excluded so far as her husband is concerned as to him, her property must be sole and separate and held to her sole and separate use, not subject to his control or disposal or liable for his debts. But the interest of oue partner is not sole or separate from the others, nor held to the separate use of such partner, nor free from the control or disposal of the other or from liability for his debts.
In Bertles v. Nunan, 92 N. Y. 152, the court says the statutes have not gone so far as to destroy the conmon-law unity of husband and wife, and make them substantially separate persons for all purposes. Judge Earl says: “So the common-law incidents of marriage are only swept away by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly authorized to do by the statute." And in that case it was held that under a couveyance to a husband and wife jointly, they take not as tenants in common, or as joint tenants, but as tenants by the entirety. This is not the way partners take or bold.
Second, as to the carrying on of business. “A married woman may bargain, sell, assigu, and transfer ber separate personal property, and carry on any trade or basiness, and perform any labor or services, on her sole and separate account, and the earnings of any married woman from her trade, business, labor, or services shall be her sole and separate property, and may be used or invested by her in her own bame.” Laws of 1860, ch. 90, $ 2.
This is the enabling statute from which the married woman derives wbatever power she has to carry on a trade or business. Where is the provision which au
husbized her to enter into co-partuership with her. The plaintiff was a cab-driver, and while he was driv
husband? She may sell her "separate personal property,” not the partnership property, as she might have occasiou to, from day to day in the course of trade.
She may carry ou trade or busines or perform labor or services on her sole or separate account; not on joint account with her husband partner. Judge Brown in the case of Graff v. Kinney (Kings Co. Special Term), suggests that the words “sole and separate relate to “ labor or services" and not to "trade or business." I think this is a mistake. The second section should be construed in connection with the first of the same act. The first declares that what she acquires by ber trade or business carried on, on her separate account, shall be her sole and separate property. This plainly refers to the following section which goes on to authorize her to carry on trade or business. One section was plainly intended to be as broad as the other.
The first meant to give her as her separate property all her acquisitions from the business authorized by the second, and yet the first only operates upon what she gaius in business conducted on her sole and separate account. Besides it is only upon this construction that the latter part of section 2 can be made harmonious with the former part of the section or with section 1. Trade, business, labor, and services are there all joined together without a repetition of the qualifying words, and it is declared that her earnings from all these sources shall be her sole and separate property, meaning, I think, in the language of section 1, "trade, business, labor, or services carried on or performed on her Bole and separate account.” Any other coustruotion makes confusion in the act. In Coleman v. Burr, 93 N. Y. 17, Judge Earl says
BRUNSDEN V. HUMPHREY.* Plaintiff sued defendant to recover damages for injury done
to plaintiff's cab in a collision caused by the negligence of
defendant's servant, and obtained judgment. Afterward plaintiff sued defendant to recover dainages for
personal injury which he had suffered in the same col
lision. Held, that the damage to the cab and the personal injury con
stituted two distinct causes of action, and therefore the judgment recovered for injury to the cab was no bar to the subsequent action for the personal iujury, and plaint
ifl was entitled to recover. ПНЕ
ing his cab a two-horse van driven by the defendant's servant came into collision with the oab, and the plaintiff was thrown from the box.
The plaintiff sued the defendant iu the Whitechapel County Court to recover the amount of the damage done to the cab.
The defendant paid the amount claimed, and costs, into court.
Afterward the plaintiff discovered that he had sus. tained more serious personal injury owing to the collision than he had at first been aware of, and he wrote to the defendant asking for compensation; his request was refused, and he thereupou commenced the present action in the High Court to recover damages for the personal injury which he had suffered by being thrown from the box of the cab in the collision.
At the trial before Grove, J., the jury found a verdict for the plaintiff for 3501. damages.
A rule was afterward obtained calling on the plaintiff to show cause why there should not be a new trial or judgment entered for the defendant, on the ground of misdirection in not holding that the proceedings in the County Court were a bar to the present action.
On the 5th of July, 1883, the Divisional Court (Pollock, B., and Lopes, J.,) made the rule absolute to render judgment for the defendant,and from this decision the plaintiff now appealed.
Waddy, Q. C., and Crispe, for plaintiff.
BRETT, M. R. It was argued on behalf of the defendant that the plaintiff could not succeed in the second action because he had already recovered damages in respect of the collision, and no person can gue twice
* S. C., 51 L, T. Rep. (N. S.) 529.