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comb and Abbott (i), the prisoners after their acquittal applied for copies of the several indictments, for the purpose of assisting them in their plea of autrefois acquit: the court, however, refused to grant them copies, but ordered the officer to read over the indictments slowly and distinctly, which was accordingly done.
The rule of the judges states, that an "action against a prosecutor cannot be maintained without a copy of the indictment, and that a copy is not to be given without an order from the court; but it is not to be inferred from this, that an order is essentially necessary for the introduction of a copy in evidence, or, if a copy were offered to be produced without an order, that it could on that account be properly rejected. The admissibility of such evidence has been determined in the late case of Legatt v. Tollervey(2). On the part of the plaintiff, in that case, the clerk of the court of quarter sessions, before which the indictment had been tried, produced a copy, which, for want of an order, was not allowed to be read; and the plaintiff was in consequence nonsuited. But the Court of King's Bench were of opinion that the evidence ought to have been received, and set aside the nonsuit. "It is very clear," said Lord Ellenborough C. J., " that it is the duty of the officer, charged with the custody of the records of the court, not to produce a record but upon competent authority, which at the Old Bailey is obtained upon application to the court, pursuant to the order that has long prevailed there; and, with respect to the general records of the realm, upon application to the Attorney-General. But if the officer, even without authority, shall have given a copy of a record, or produce the original, and that is properly proved in evidence, I cannot say that such evidence shall not be received. He may incur the penalty of his contempt of the court, and may be warned, at the time, of his peril in so doing, and a discreet officer placed in such a situation would, before he
(1) a Leach Cr. C. (i) 14East, 301.
Y 7. produced
produced the record, or gave a copy of it, apply to the court, and state the circumstances; and it cannot be doubted, that he would be saved harmless in doing, what, after such disclosure, the court should order him to do. But still I cannot help thinking, that the rule laid down by Lord Ch. J. Lee, in the case of Jordan v. Lewis (i), is the correct rule. The order made at the Old Bailey was there read by way of objection to the evidence offered, but the Chief Justice, in that case, said, that he could not refuse to let the plaintiff read the copy of the indictment, though obtained without any order of the court for that purpose."
The rule, which has been before mentioned, is confined to cases of felony. In prosecutions for misdemesnors, the defendant is still entitled to a copy of the record, as a matter of right, without a previous application to the court (2). So, in the case of a conviction by a magistrate, the defendant is entitled to a copy of the conviction, in order to defend himself against an action for the same offence; and if it should be refused, and the Defendant in consequence sue out a writ of certiorari, merely for the the purpose of procuring a copy and making his defence, the magistrate will be compelled to pay his own costs of returning the conviction (3). The conviction may be drawn up at any time, before the return to the certiorari or to the sessions, though after a commitment (4), or after the levying of the penalty (5). And the conviction returned to the sessions, or to the court of King's Bench, is the only one, of which those courts will take judicial notice. (6)
A defendant on a criminal charge, is not entitled to an inspection of the grounds, upon which the prosecution has
(1) 1 Stra. Iiz2. 14 East, 305. (3) R. v. Midlam, 3 Burr. 1711.
n. (a), S.C., reported from Mr. Ford's (4) Mastey v. Johnson, ti East, 67.
(1) Morrison v. Kelly, 1 Black. Rep. (5) R. v. Barker, 1 East, 186.
185. Evans v. Philips, reported lrum (6jlb.i88. MS. in Selw. Ni. Pri. 951.
been been instituted. In some species of treason, indeed, tha prisoner is entitled to a copy of the indictment, a privilege not allowed by the common law, but conferred by act of parliament; but neither in cases of treason, nor of felony, has he any right to a copy of the depositions of witnesses, who are to appear against him. So, when informations are filed by the Attorney-General, on depositions taken under the excise laws, the defendant is not allowed to inspect those depositions. And in a case where an information was filed against an officer of the East India Company, on charges of delinquencj' founded upon the report of a board of inquiry in India, the court of King's Bench were of opinion, that the defendant had no right to have an inspection of that report, and that the court had no discretionary power to grant it (i). "The practice on indictments at common law, and on informations upon particular statutes," said Mr. Just. Bullor on that occasion, " shews it to be clear, that the defendant is not entitled to inspect the evidence, on which the prosecution is founded, till the hour of trial." It has been observed (2), that one of the objects, which the legislature had in view, in passing the statutes relative to depositions taken by magistrates in cases of felony, was to enable the judge and the jury, before whom the prisoner is tried, to see whether the witnesses at the trial are consistent with the account, which they have given before the committing magistrate; it seems reasonable, therefore, that at the time of the trial the prisoner, on an application to the court, should be allowed to see the deposition of a witness called to give evidence against him, and cross-examine as to any variance or inconsistency in his testimony.
The right of inspecting the proceedings of inferior juris- Proceeding* dictions is more limited. It cannot be necessary for the of inferior interests of the public, that they should be open for inspcc- j11^"dut",n,* tion to all persons without distinction; but, on the other hand, it seems reasonable, that, in any suit, where the re
(1) R. v.Holland,4 T. R.69r. (a) See ante, p. 179.
Y 3 gularity
gularity of those proceedings may come into question, a party should have the power of taking a copy of such, as have been instituted against himself. In an action of trespass and false imprisonment, brought by the plaintiff, who had been sued in the court of conscience in London, the court of King's Bench allowed the plaintiff to inspect the proceedings, so far as they related to the suit against himself, on the ground that every one has a right to look into the proceedings to which he is a party (i). In another case, where the plaintiff, having been fined for neglect of duty, as an under-officer to the commissioners of lieutenancy for the city of London, brought an action of trespass against the defendant for distraining upon him, the court granted the plaintiff a rule for inspecting and taking copies of the rates and assessments made by the commissioners (2). On the same principle, in an action for a malicious prosecution and false imprisonment, the plaintiff may obtain a rule for a copy of the information, upon which he was committed; and, as the original itself ought to be produced at the time of the trial, the court will also grant a rule, calling upon the committing magistrate to cause it to be produced. (3)
A different rule, however, was adopted by the court in the case of Dr. Groenvelt v. Dr. Burwell (4), and in Abery v. Dickenson (5). The first of these cases was an action for false imprisonment against the defendants, who justified as censors of the college of physicians by virtue of their charter, by which charter they have power to fine and imprison pro non bene utendo faciiitate medicinee; they then set forth, that the plaintiff at such a time and place had administered unwholesome medicines to A. B, and so justified the taking and imprisoning. The counsel for the plaintiff moved, that the register of the college should permit the
(1) Wilton v.Rorers, 2 Sir. 1241. Moody v. Thurston, t Stra. 304; and
(*> Edwards v. Vesey, Rep. temp. R. v. Commissioners of Land-tax, 2T.
Hard. u8. R. 134.
(3) R. v. Smith, I Stra. 116. Welch (4) 11.d. Raym. 253 454. Carth.
v. Richards, Barnes, 468. S. P. See 421. 491. S. C.
also Herbert v. Asburner, 1 Wik.297; (5) Say. 25c.
plaintiff plaintiff to have copies of the proceedings and judgment, to enable him to reply to the defendant's plea in justification; and, in support of the application, it was said, that the plaintiff was a party to the judgment, and therefore had a right to a copy, and that it is the usual practice, if an action is brought for a false return to a mandamus, upon which the party is returned to be disfranchised, that the King's Bench will make an order for the plaintiff to have recourse to the public books. But the court refused a rule, saying, (as Lord Raymond reports the case,) " that they could not oblige the college of physicians to permit the plaintiff to have a copy of their proceedings, for they act in a judicial manner, by authority of an act of parliament; and therefore it shall be presumed, that they have done right." The report of this case by Carthew differs materially from that by Ld. Raymond. Carthew reports, that the court admitted the rule, for inspecting the proceedings, to be usual for the sake of evidence, after issue joined, but not by way of assisting the party to plead. The reason given in Ld. Raymond's report, (namely, " that the proceedings must be presumed to be regular, since the college acted in a judicial manner, by authority of an act of parliament,") seems to proceed upon the supposition that the proceedings were truly and correctly set out in the defendant's plea; and on a demurrer, (which admits all the facts in justification,) that, reason would have been conclusive; it might then have been justly said against the demurrer, that, the defendants having shewn their authority over the plaintiff, and the fact, for which he had been punished, being within their jurisdiction as censors, and not traversable in this collateral suit, they could not be liable to an action for what they had done within the limits of their jurisdiction, and in the discharge of their judicial powers. But if, instead of demurring, the plaintiff, in such a case, had admitted the warrant under which the defendants arrested him, and replied that " they had committed the trespass of their own wrong and without the residue of the cause alleged in their plea," it would then have been competent for him to shew,