The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was based had not yet happened, and that the writ should be struck out.
Held: The objection was dismissed on the ground that issuing the writ was not a judicial act and therefore the rule could not apply. Each member of the Court of Appeal expressed doubts about the scope and even the validity of the rule.
Lord Coleridge CJ said: ‘I do not therefore recognise the universality of the rule even as to judicial acts’ Baggallay LJ said: ‘I do not desire to be considered as holding this to be an inflexible rule’
and Brett LJ said: ‘As for the rule that judicial acts relate back to the earliest moment of the day, I know of no principle on which it can be founded. It is an artificial rule, declared for a long number of years to be a part of common law procedure, and therefore it is assumed to be as old as the common law itself. But it is to be applied in the same way as it was applied when first promulgated.’ The issue of a writ should not be refused where it is properly endorsed.
Judges:
Lord Coleridge CJ, Baggallay LJ, Brett LJ
Citations:
(1881) 8 QBD 63
Jurisdiction:
England and Wales
Cited by:
Appeal from – Bradlaugh v Clarke HL 1883
The use of the word ‘like’ is apt to incorporate all the features of the principal subject. . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 28 May 2022; Ref: scu.219071