133 / 338
Murnaghan J. held that the affidavit was in
sufficient to comply with the terms of s. 2 of the
Fatal Injuries Act, 1956.
On appeal to the Supreme Court, it was held by
Kingsmill Moore, O'Daly and Maguire JJ. that
(i) Murnaghan J., was entitled
to regard the
plaintiff's affidavit as insufficient,
(2) It was suggested by the Supreme Court that
a practical formula where the widow is the plaintiff
would be that the affidavit should contain an aver
ment to the effect that her solicitor had read para. (&)
of s. 2, sub-s. 2, to her and explained the class of
persons referred to therein and that to the best
of her knowledge and belief the deceased had no
such offspring.
Per O'Daly J. As a claimant for compensation
a widow, if she should know of such offspring,
would be bound to disclose it to the Court; but
the common case will be that in which there are no
such offspring or none to the knowledge and belief
of the widow. In such case, when an affidavit falls
to be sworn, we see no objection to a formula being
employed which will save the widow from embar-
rasment.
For the employment of the formula it should be
required that the plaintiff's solicitor should read to
her the provisions of paragraph (£) and explain its
meaning.
In such circumstances the Court might reasonably
accept an averment from the widow that her solicitor
had read the paragraph to her and explained the class
of persons referred to therein, and that to the best of
her knowledge and belief the deceased had no such
offspring.
In saying this, we are not to be taken as attempting
to lay down what inquiries it may be proper for a
judge to make in any particular case—although save
in exceptional circumstances we see no reason to
think why the widow's averment in the terms we
indicate might not be considered adequate so far
as persons falling within the class mentioned in
paragraph
(b)
are concerned.
(O'Mahoney
p. E. S.
B. (1959) 93 I.L.T.R. 4).
An applicationfor a Habeas Corpus has no right to gofrom
judge to judge.
H., whose application for a writ of habeas corpus
directed to the governor of Liverpool Gaol had
been refused by two Divisional Courts of the Queen's
Bench Division, composed of different judges, made
a like application on the same grounds to a Divisional
Court of the Chancery Division.
Held by the Chancery Division (Vaisey and
Harman, JJ.) that the applicant had no right to go
from division to division or judge to judge of the
High Court of Justice applying for a writ of habeas
corpus, and when once the proper court according
to the rules, a Divisional Court of the Queen's
Bench Division whose order was the order of the
one High Court of Justice, had decided the appli
cation,
the matter was ended;
therefore,
the
Divisional Court of the Chancery Division had no
jurisdiction to entertain the application.
Re Hastings
(No. 2)
((1958)
3 All E.R. 625)
applied.
Note:
The decision in
Re Hastings
(No. 2)
((I 95 8) 3 All E.R. 625) distinguished between the
positions when, before
the Supreme Court of
Judicature Act, 1873, application for habeas corpus
was made in vacation or in term time. In the former
case there was a right to go from judge to judge,
as the court was not sitting in bane. It seems that,
if that right survives theoretically, it is now ineffec
tive because the judge would direct the applicant
to apply to the appropriate Divisional Court.
Per Vaisey J.
The mistake that the applicant
made is to assume that the Chancery Division is a
separate entity, a separate court, and that either
by single judges or by a Divisional Court it can deal
with the matter afresh.
The applicant uses an
expression which, I think, he must suppose to be
nattering to us who are sitting here. He says—and
I am now quoting from his own affidavit—he has
decided to come to a "
complete
hearing before a
hidierto unconnected and impartial Bench. This I
seek in the Chancery Court ". I hope that this is an
impartial Bench, but it is not an independent Bench.
Indeed, as Lord Parker, C.J., has ruled, and with,
I think, perfect accuracy, as soon as the Divisional
Court of the Queen's Bench Division has come to its
conclusion there is an end of the matter. It always
has to be remembered that an order is not an order
of any particular division of any particular Divisional
Court; an order is an order of the High Court.
It is beyond my comprehension how we here,
judges of the High Court, could be heard to overrule
or otherwise interfere with a judgment which was
the result of Lord Parker, C.J.'s hearing before his
Divisional Court—how we could be heard to say
that the conclusion and the order of our own court,
the only court which exists, the High Court of
Justice, was wrong, and to say that something else
should be done.
When Lord Parker, C.J., came to a conclusion in
the Queen's Bench Divisional Court, acting strictly
under the rules, he finally disposed of the application
of this present applicant to have a writ of habeas
corpus issued to him. I cannot see how this court,
or we who are all judges of the High Court, could
stultify a decision of the High Court of which we
are ourselves constituent parts.