1843.

VELEY and

JOSLIN against GOSLING.

majority of the parishioners, but it has not yet been March 25th. decided, that they cannot make a rate under the circumstances in which this rate was made, where the majority have refused to make any rate at all. It may hereafter be a question whether the Legislature ought not to take some steps to enforce the repair of parish churches. I think the judgment of the Court below is erroneous, and, therefore, I reverse it, retaining the cause, and reserving the question of costs.

KEED v. EVERARD.

1843.

January 11th.

An interested

had been examined and re

witness who

peated, ordered to be re-ex

Addams moved, for leave to re-examine a witness under the following circumstances. The witness, a solicitor, had retained the proctor in the cause, and considered himself responsible for costs; the proctor was now ready to release the witness; publication tion before pub had not passed.

Phillimore and Haggard, contrà.

SIR HERBERT JENNER FUST.

The present application is for leave to have reproduced, re-sworn, and re-examined, a witness who has been already examined, and who, as I am informed, is an important witness in the cause. This person is a solicitor, and he has retained the proctor in the cause, and, as I suppose in answer to an interrogatory, has admitted that he considers himself responsible to the proctor for his costs. A release is now tendered to the party, and the Court is moved to permit him to be re-examined, and I see no reason for supposing that this measure has arisen from a disclosure of any portion of the evidence given by the witness in the cause, save as to his having admitted his responsibility for costs. I know of no instance where such a motion has been refused, when made before publication; it is a very different thing when it is made after publication, and the reason for the difference is self-evident; when once the evidence is published and known to the proctor, or to the parties, it would be very in

VOL. III.

Ꮓ

amined on mo

lication.

1843.

convenient if parties could add to the evidence; but

January 11th. this reason does not apply to an application before publication. The Court is disinclined to shut out the evidence of any party, more especially of important witnesses.

against EVERARD.

Motion granted.

COURT OF PECULIARS.

1843.

January 11th.

WOOLLEY V. MORGAN, falsely calling herself
WOOLLEY.

In this case a citation had issued, calling on Mary Ann Morgan, falsely calling herself Woolley, and the wife of John Woolley, "to appear personally or by proctor, at a certain place, on a certain day and hour, then and there to answer to the said John Woolley in a cause of nullity of marriage."

The party cited appeared under protest.

Addams in support of the protest.

A sentence must be conformable to the citation, and to the libel, and more especially to the citation. There may be precedents in which citations have issued in a similar form to the present, but there is no recorded case where an objection to such a citation has been taken by protest; it would be too late to take such an objection after appearance. A party

1843.

is entitled to know the particular grounds of the offence for which he is cited, Wright v. Ellwood. (a) January 11th.

The Queen's Advocate and Robinson contrà.

A citation must contain the name of the Judge, of the plaintiff, of the defendant, the cause of suit, the time, and the place of appearance. The object of the citation is to procure the attendance of the party cited in this Court; it is analogous to the writ of the Common Law and the subpoena in Chancery. A party may be compelled to answer to matter not contained in the citation, Barrett v. Barrett. (b) A citation in a suit for subtraction of tithes never specifies whether the particular subtraction is of corn or of hay; so, in causes of perturbation of seat, the particular acts of perturbation are never set out; in a suit for dilapidations the citation does not mention whether the dilapidations exist in the parsonage house or in the out-buildings. In a suit for defamation, a party is cited "to appear in a certain cause of defamation or slander;" this last is a strong instance, because this Court has not exclusive cognizance of defamatory words, whereas it has in causes of marriage. In the cases of Ruding v. Smith, (c) and Cope v. Burt, (d) the citations were in the same form as in the present case. Wright v. Ellwood, (e) only shews that a party may in a citation elect to bind himself as to the explicit grounds of his charge.

Addams in reply. In neither of the two cases mentioned did the parties cited appear under pro

WOOLLEY

against MORGAN.

(a) 1 Curt. 49.

(b) 1 Hagg. 22.

(c) 2 Cons. 371.

(d) 1 Cons. 434.

(e) 1 Curt. 49.

1843. test. There is no analogy between a citation and January 11th. the Common Law writ or Chancery subpoena; this is a Court of very limited jurisdiction, and a citation must shew that the Court is not about to transgress it.

WOOLLEY against MORGAN.

Judgment.

SIR HERBERT JENNER FUST.

A citation ought to contain the grounds for which, and the matter to which, the party is called to answer; but when nullity of marriage is stated as the causa ob quam, this Court having general jurisdiction over all grounds of nullity of marriage, and there being no inveterate practice the other way,indeed, examples to the contrary are shewn,-I think that this citation is sufficient. I see no inconvenience which can result from the party being compelled to appear to this citation. The case of Wright v. Ellwood in no way militates against this; there the party had elected by the terms of the citation to confine the causes of nullity to certain particular grounds. It may perhaps be convenient, in many instances, to set forth the particular grounds of nullity on which the libel is to be founded; but I do not think that it is absolutely requisite to do so. In this case I must assume that the party cited has a sufficient knowledge of the cause for which she is cited to appear.

I think the instances cited at the bar, and particularly the case of a citation in a cause of defamation, bear out this view of the case.

Overrule the protest, and assign the party to appear absolutely.