Exch. of Pleas, 1838. LANCASTER บ. WALSH. ALDERSON, B.-I am of the same opinion. According to the proper meaning of the English language, the term "first information" is a tautologous expression. Information means the communication of material facts for the first time. What is more common than when a man is told a piece of old news, to say "this is no information?” Therefore the word is so to be understood in the declaration. Now, is there any thing in the hand-bill which alters the sense? On the contrary, any other construction makes nonsense of it. Then the plaintiff is not the party who first communicated material facts which led to the conviction of the offender. The direction of the learned Judge was therefore right, and the verdict equally right. And I quite concur that a communication to an authorized party, such as a constable, is sufficient. Rule discharged. Where a verdict was taken at Nisi Prius, and entered in the associate's book (but not on the record), subject to a reference, and the time limited for making the award expired before the order of reference was delivered to the arbitrator, when the defendant refused to proceed with the HALL and Others v. Rouse. THIS cause came on for trial at the Liverpool Summer Assizes, 1837, when a verdict was taken, and entered by the associate in his minute-book, for 10007., the damages laid in the declaration, subject to the award of a barrister, to whom the cause and all matters in difference between the parties were referred by order of Nisi Prius, and who was to have power to reduce the damages, or to vacate the verdict and to enter a nonsuit; the award to be made and published on or before the 1st of November then next, with power to the arbitrator to enlarge the time as he should think fit. The order of Nisi Prius was obtained reference; whereupon the plaintiff, without making any application to the Court, took the cause down again to trial, and obtained a second verdict:-Held, that the latter trial and verdict were irregular. Held, also, that the irregularity was not waived by the defendant's attorney attending and cross-examining a witness, under an order obtained by the plaintiff's attorney (after the other party had refused to go on with the reference) for the examination of the witness on interrogatories, under the 1 Will. 4, c. 22, s. 4. 1838. HALL V. ROUSE. from the associate by the plaintiffs' attorney, but he Erch. of Pleas, omitted to deliver it to the arbitrator until after the expiration of the time within which the award was to be made. The parties, however, subsequently met before the arbitrator, but the defendant refused to proceed. It was then stated that the cause would be set down again for trial; and on the 18th November, the plaintiffs' attorney obtained an order, under the 1 Will. 4, c. 22, s. 4, to examine a witness of the name of Howard, who was very ill, upon interrogatories. Examiners were accordingly appointed, and the defendant's attorney attended and cross-examined the witness, whose examination was concluded. No award was made, and no judgment was entered upon the record on the former verdict. The plaintiffs afterwards gave notice of trial for the Spring Assizes, 1838, and entered and tried the cause. The counsel for the defendant objected to the proceedings, but the trial being pressed on, they offered no further defence, and the cause was taken as an undefended one. On a former day in this term, Cresswell obtained a rule to set aside the second verdict, on the ground that the trial was irregular, so long as the first verdict remained on the record, which had not been in any way vacated or set aside. Hoggins now shewed cause.-Even if there has been an irregularity in this respect, the defendant has no right. to complain of it, having consented to waive it by the steps he has taken since he knew that the arbitrator had not the power to make an award, and had himself refused to proceed with the reference. By attending under the order for the examination of the witness Howard, and cross-examining him on that occasion-which could only have reference to a second trial of the cause-the defendant has expressly recognised the propriety of its being sent down again to trial. But in the next place, the proper course has been 1838. HALL v. ROUSE. Erch. of Pleas, pursued under the circumstances. No award having been made within the time limited, the plaintiff had a right to take down the cause again: Harper v. Abrahams (a), Hall v. Phillips(b). [Parke, B.-Those cases were before the new statute, and in one of them the arbitrator had died; but now, although the time have expired, it may be enlarged on application to the Court under the 3 & 4 Will. 4, c. 42, s. 39; and if you can go on with the reference, it is difficult to see how the verdict can be got rid of unless by the plaintiffs' consent, or by some waiver.] There has been no entry of the verdict on the postea; the act therefore does not apply. Cresswell and J. Henderson, in support of the rule.Evans v. Davies (c) is a distinct authority, that where a verdict has been taken subject to a reference, it is irregular to take the cause down again to trial, without applying for leave to do so, while that verdict is in existence. It makes no difference that the verdict has not been entered on the record, which could not be done until the award was made. [Alderson, B., referred to Bacon v. Cresswell (b), as an authority to the same effect.] Secondly, there has been no waiver of the irregularity. It is clear that the order of reference has not become a nullity by the expiration of the time, inasmuch as either party might have applied to the Court to have the time enlarged, even after it had expired: Potter v. Newman (e), Burley v. Stephens (f). The order of reference therefore being still in existence, the attending and cross-examining the witness on interrogatories implied no consent to the subsequent irregularity: an order of that kind is made prospectively, and it is assumed that the party obtaining it (a) 4 Moore, 3. (c) 3 Dowl. P. C. 786. (d) Hodges, 189. 1838. will do all that is necessary to put himself in a position to Erch. of Pleas, use the examination regularly at a subsequent trial. No doubt the examination is good, and the evidence taken. under it will be receivable on a new trial. PARKE, B.—I am of opinion that the rule ought to be absolute to set aside the verdict, and for a new trial. I was certainly impressed at first with the idea that there had been a waiver of the irregularity, and indeed had some doubt whether there was any irregularity at all, there being no entry of the verdict or the record; I think, however, that makes no substantial difference; the order of reference is an admission that there has been a verdict: then the case of Evans v. Davies is a clear authority that that verdict must be got rid of before the cause can be tried again. There has therefore been an irregularity, unless both parties have agreed to waive it. The plaintiffs have undoubtedly shewn every disposition to do so; and if there had been any act done by the defendant shewing his assent-not a mere non-feasance, but such a one as necessarily imported that a second trial was to take place I should have thought he had waived the irregularity also, and that the verdict ought not to be disturbed, or at all events only on payment of all costs. At first I was struck with the argument that the cross-examination of the witness under the order was such an act done by the defendant; but that argument proceeds on the assumption that no valid order could be made for such examination, while the former verdict remained. But on looking at the statute, it seems to me that an order for the examination of a witness on interrogatories would not necessarily be invalid, although a former verdict still stood; -being made prospectively with reference to a new trial, in case the verdict should be set aside. If it were otherwise, it would be invalid if made after a rule nisi for a new trial was granted, and while it was pending. The act HALL V. ROUSE. HALL Exch. of Pleas, contains no words of restriction whatsoever. It seems to 1833. me, therefore, that there was no waiver: and the rule must be absolute to set aside the verdicts, and for a new trial, in which the depositions of the witness Howard are to be read in evidence, and his examination to be considered as taken under a valid order. V. ROUSE. BOLLAND, B., concurred. ALDERSON, B.-I am of the same opinion. The proper and regular course, as appears from the case of Bacon v. Cresswell, would have been to apply to the Court for leave to retry the cause at the next assizes, notwithstanding the former verdict. But that regular course may be waived by consent of the parties. In this case I do not think the cross-examination of the witness by the defendant's attorney was any waiver of the irregularity of the second trial. It may have taken place on the tacit condition that the plaintiffs should put themselves into a position to try the cause regularly at the next assizes; and a valid order might be made on that supposition, although the former verdict was pending. GURNEY, B., concurred. Rule absolute. Before the new rule of Hilary Term, a motion for arrest of judg THIS THOMAS V. JONES. was an action of debt for wages, and came on for trial before Williams, J., at the last Carnarvon Assizes. 2 Will. 4, s. 65, After a full jury had appeared, the defendant challenged the array, on the ground that the plaintiff's attorney was venire de novo, the under-sheriff, and had summoned the jury. The ment, or for a must, in this Court, have been made within the four first days of the term next after the trial. The new rule applies to trials out of term as well as in term. All such motions, therefore, in any of the Courts, must now be made within the four first days of term which next occur after the trial. |