1848. BEFORE LORD DENMAN, C. J. An action on the stat. 9 & 10 Vict. c. 93, for compensat ing the families of persons SOPHIA TUCKER, Widow and Administratrix of GEORGE CASE on the stat. 9 & 10 Vict. c. 93, by the plaintiff as administratrix of George Tucker, deceased. The declaration stated, that the deceased was killed by a crate of goods falling upon him by reason of the negligence of the defendants' servants (a). The action was brought for the benein cases where fit of the plaintiff, as his widow. Plea, not guilty. killed by accidents, can only be maintained the deceased could have alleged to have that deceased by his own negligence or carelessness contributed to the accident, the defendant would be entitled to a verdict. The rule as to this, in ac tions on this statute, is the same as if the injured party himself had brought the action. It appeared that the deceased was a carman, and had taken a heavy crate containing goods to Hamboro' Wharf, a wharf of the defendants, where the crate was raised by means of two hooks and a chain attached to a crane. It was proved, that the hooks used on this occasion by the defendants' servants were not crate hooks, but hooks proper for raising barrels; and that, on the crate swinging round, the hooks slipped away, and the crate fell on and killed the deceased. It was further proved, that when the hooks began to slip, the defendants' men called to the deceased to get away from under the crate, which he did not do. Sir F. Thesiger, for the defendants.-If the neglect of the deceased in not getting out of the way mainly caused the accident, his widow, the plaintiff, cannot succeed in this action; as, by the provisions of the statute, the representative can only maintain the action where the deceased could have done so, if alive (b). Now, a person, who by his own negligence or default contributes to the accident, cannot recover damages against another for the negligence of the servants of that other in causing the accident. (a) The form of a declaration on this statute is given in Pearson's 2nd edit. of Chitty & Pearson's Prec. in Pleading, p. 256. 66 (6) By the stat. 9 & 10 Vict. c. 93, s. 1, it is enacted, That whensoever the death of a person shall be caused by wrongful act, Lord DENMAN, C. J., (in summing up).-The rules in actions brought under this statute by representatives are the same as in actions brought by the injured parties themselves; therefore, if the deceased, by his conduct, leads to the accident, an action under the statute does not lie. In the present case, the deceased's being under the crate at all after it was raised, might be in some degree an incautious act on his part; and it appears that he had warning to get out of the way. But then, was that warning early enough? If his not attending to the warning was his own fault, the defendants would be entitled to a verdict. But it often happens that such warnings are given when it is too late to avoid the danger; and even if there were time to escape it, the party has not always such self-possession as to attend to the warning and get out of the way. You neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." And by sect. 2 it is enacted, "That every such action shall be for the benefit of the wife, husband, pareut, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages, as they may think proportioned to the injury resulting from such death to the parties By sect. 3 it is provided, that on- 1848. TUCKER V. CHAPLIN. 1848. TUCKER v. CHAPLIN. will say, on the whole of the evidence, whether you think that the defendants' servants caused the accident by their want of caution or negligence, or whether the deceased was incautious in a degree which contributed to the accident. If you think the former, you will find for the plaintiff, if the latter, for the defendant. Verdict for the plaintiff-Damages, 100%. Lord DENMAN, C. J.-Do you find that the deceased was not in any way contributory to the accident? The Foreman of the jury.-Not at all. Shee, Serjt., and Hugh Hill, for the plaintiff. Sir F. Thesiger and Willes, for the defendants. Sittings at Westminster after Hilary Term, 1849. Feb. 13th. BEFORE MR. JUSTICE ERLE. (Who sat for the Lord Chief Justice.) In an indict- PERJURY. REGINA V TURNER. PERJURY.—The indictment stated, "That heretofore, ment for perjury, it was alleged, that A. made his will, and thereby appointed B. his executor :-Held, that the production of the probate was the proper proof of this allegation; but, that, if it had been necessary to prove that A. had devised real estates, the original will must have been produced and one of the attesting witnesses called. In an indictment for perjury, it was averred, that a suit was instituted in the Prerogative Court by C. against B., to dispute the validity of a codicil to a will:-Held, that the produc tion of the original allegations of both parties in the suit, signed by their advocates, and proof of the advocates' signatures, and that they acted as advocates in that court, such allegations being produced from the registrar of that court, was sufficient proof of the averment, and that the caveat need not be produced. to wit, on the 16th day of May, 1829, one William Turner, since deceased, made and published his last will and tes On the trial of an indictment for perjury, assigned on an affidavit sworn in the Queen's Bench, proof of the defendant's signature to the affidavit, and proof, that, under a jurat, "sworn in open court at Westminster Hall, the 10th day of June, 1846," the words, "By the Court," are in the handwriting of one of the Masters of the Court, is sufficient evidence of the swearing of the affidavit in the Court of Queen's Bench, without any further proof that the Master was in Court when the affidavit was sworn. tament, and thereby appointed one John Turner, together with certain other persons, that is to say, John Hornblow Turner, William Binns Wood, and William Taylor Abud, the executors thereof." [It then stated the making of a codicil of the 11th of August, 1829.] "And that a certain suit, on or about the 25th day of May, 1844, was instituted, and thereupon prosecuted, in the Prerogative Court of the Archbishop of Canterbury, in which suit Matilda Sarah Meryweather, in the proceedings and said suit described as Matilda Sarah Meryweather, otherwise, Maud Sarah Meryweather, was plaintiff, and the said John Turner, John Hornblow Turner, William Binns Wood, and William Taylor Abud, were the defendants, and in which said suit the validity of the said codicil was disputed; and that Marcus Meryweather Turner did, on or about the 20th day of May, 1846, print and publish a certain pamphlet of and concerning the said codicil, and of and concerning the said proceedings so instituted by the said Matilda Sarah Meryweather, as aforesaid, in the said Prerogative Court as aforesaid." The indictment went on to state, that the defendant made an affidavit before the Court of Queen's Bench, and caused application to be made to that Court for a criminal information against Mr. Marcus Meryweather Turner, and produced this affidavit, for the purpose of obtaining a rule to shew cause why such information should not be filed. On this affidavit perjury was assigned. To prove the allegation in the indictment, that Mr. William Turner made his will, and appointed the four executors named in the indictment, Cockburn, for the prosecution, proposed to put in the probate of Mr. William Turner's will. Shee, Serjt., for the defendant.-I submit that the original will must be produced, and one of the subscribing witnesses called, as the will of the testator applies to lands as well as personal property. 1849. REGINA V. TURNER. 1849. REGINA v. TURNRR. ERLE, J.-A will may in law have two operations—the one as to realty, respecting which the ecclesiastical courts have no jurisdiction; the other, as to personalty and executors; in which the ecclesiastical courts have sole jurisdiction; and therefore, with respect to the latter, the evidence of the attesting witnesses is not necessary here. If all the matters in this indictment relate to personalty and executors, the probate is the proper proof; but, if there is any question here raised as to whether the testator devised lands, the original will must be produced, and one of the attesting witnesses called. But, if it is only to be shewn that the deceased made a will, and left certain persons executors of it, I shall hold the production of the probate to be the proper proof. The probate was called for, under a notice to produce, (the defendant being one of the four executors); and it was produced, and so much of it read as shewed the date of the will and the names of the executors to be as stated in the indictment. To prove the suit in the Prerogative Court, as stated in the indictment, an officer, from the Registrar's Office in that court, produced from that office the original allegation put in on the behalf of Miss Matilda Meryweather Turner, and the original allegation put in on behalf of the executors in answer to it. Shee, Serjt.-The caveat should be put in. Henniker, for the prosecution.-The caveat is a mere notice. Shee, Serjt.-The caveat is the first step in the suit, when a will or codicil is to be contested in the ecclesiastical courts. The averment in the indictment is, that a suit was instituted; but the caveat by which it was commenced is not produced, neither is any document produced under the seal of the ecclesiastical court. |