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Superior Courts: V. C. Stuart.-V. C. Wood.—Queen's Bench.

The Vice-Chancellor granted the application.

Vice-Chancellor Stuart.

505

The Vice-Chancellor said, that although the course might be very inconvenient, yet it could not be held that what had taken place amounted to a waiver by the defendants of their right to demur within the time limited by the orders.

Tucker v. Hernamann. March 8; April 21, If the motion had originated with them, it

1855.

EXCEPTIONS TO CHIEF CLERK'S CERTIFI-
CATE. ABANDONED MOTION.-COSTS.

Certain creditors in an administration suit
gave notices of motion to vary the chief
clerk's certificate, but afterwards aban-
doned the same: Held, that the plaintiff
was entitled to tax his costs, and was not
limited to the 40s. under the Order of 5th
August, 1818, there being affidavits filed in
support.

IT appeared that certain creditors had given notices of motion to vary the chief clerk's certificate in this administration suit, but that they had afterwards abandoned the same, and tendered the plaintiff 40s. each for costs, under the order of August 5, 1818, which provides, that "if a party gives notice of motion and does not move accordingly, he shall, when no affidavit is filed, pay to the other side 40s. costs, upon production of the notice of motion; but where an affidavit is filed by either the party, party giving such notice of motion and not moving, shall pay to the other side costs, to be taxed by the Master, unless the Court itself shall direct, upon the production of the notice of motion, what sum shall be paid for costs."

Bacon and Schomberg for the plaintiff, contended, that he was entitled to taxed costs, as affidavits had been filed in support, and the application was in the nature of exceptions. Cairns for the creditors, contrà.

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Vice-Chancellor Wood.

Sheppard v. Oxenford. April 24, 1855.
DEMURRER TO BILL FOR WANT OF EQUITY,

AFTER MOTION FOR INJUNCTION AND AF-
FIDAVITS FILED.

On a motion for an injunction, the defendants
filed affidavits in opposition: Held, that
they had not thereby waived their right to
demur to the bill for want of equity-such
proceeding not being a step in the cause on
their part.

THIS was a demurrer to this bill for want of equity, and which it appeared had been filed after a motion for an injunction had been granted.

Rolt and Baggallay, for the plaintiff, took a preliminary objection on the ground that the defendants, by filing affidavits on the hearing of the motion against the injunction, had submitted to the equity of the bill, and waived their right to demur.

Daniel and Toller, contrà.

might have been regarded as a step in the cause, but here they had in fact been brought into Court to defend themselves against an application by the defendant, and their having filed affidavits for such purpose, could not be considered as a waiver of their rights.

Court of Queen's Bench.

Regina v. Pratt. April 21, 1855.

INDICTMENT UNDER GAME ACT.-TRESPASS
ON LAND. EVIDENCE.

An indictment under the 1 & 2 Wm. 4, c. 32,
s. 30, charged the appellant with commit-
ting a trespass by being in the day time on
certain land, the property of B., in search
of game. It appeared he was out in the
highway, which was between B.'s property,
with a gun, and that his dog had run into
B.'s close, and started a pheasant, which
the appellant shot at: Held, that the evi-
dence supported the conviction, which was
affirmed.

ON the trial of this indictment, charging the appellant with committing a trespass, by being in the day time on certain land, the property of George Bowyer, in search of game, it appeared that he carried a gun and was walking along the public highway with his dog, when the dog ran off the road into Mr. Bowyer's land, and started a pheasant, which the appellant had fired at in crossing the road.

By the 1 & 2 Wm. 4, c. 32, s. 30, it is encommit any trespass by entering or being, in acted, that "if any person whatsoever shall the day time, upon any land in search or pursuit of game, &c., "such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money not exceedgether with the costs of the conviction." ing 21., as to the justice shall seem meet, to

Carrington and Lawrence in support of the conviction; Dowdeswell for the appellant.

The Court, after referring to the above section said, that the evidence was sufficient to support the charge, as he was bodily on the land of Mr. Bowyer by being on the highway, which clearly was his soil and freehold, notwithstanding the right of the public over it, he being the owner of the adjoining lands on both sides, and the conviction was accordingly affirmed.

Regina v. Shrewsbury and Hereford Railway
Company. April 23, 1855.

TAXATION OF COSTS OF APPEAL TO SES

SIONS AGAINST RATE BY CLERK OF THE
PEACE. WAIVER.

Where, on the taxation before the clerk of the

506

Superior Courts: Queen's Bench.-Common Pleas.

peace of the costs of an appeal to the Sessions against a rate by a railway company, they had attended by their managing clerk: Held, that they could not take an objection, on the ground of the reference for taxation to the clerk of the peace being improper.

THIS was a motion for a rule nisi to quash the order made by the Herefordshire Sessions, allowing the costs of an appeal against a rate by the above railway company. It appeared that the costs were taxed by the clerk of the peace, and that the company's managing clerk

had attended the taxation.

Scotland in support, on the ground that the taxation was improperly delegated to the clerk

of the peace.

The Court said, that the company, by attending the taxation, were prevented from taking the objection, whether it was good or not, and the rule would therefore be refused.

of Lord Mansfield, in Rex v. Wilkes, 4 Burr. 2,551.'

The Court said, that it was quite irrespective of the merits of the case whether the place was beyond or within the jurisdiction, and the parties had the opportunity on the trial of taking the technical objection, but had not done so.

The jury had found the defendants guilty of the offence, and it would be highly prejudicial to the interests of justice to grant the present application. But irrespective of the merits of this particular case, this Court had no jurisdiction to review the decision of the Attorney-General, where he had to exercise, and had exercised, his discretion in a judicial or quasi judicial office. If the Attorney-General had altogether refused to hear the application, this Court would grant a mandamus to compel such hearing, and if he had misconducted himself he was liable to be proceeded against in the proper quarter. As to the dictum cited, Lord Mansfield had himself said Sir James Burrows' reports were not al

Regina v. Newton and others. April 23, 1855. ways accurate, and it was very doubtful whe

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ther it had been uttered by Lord Mansfield. MISDE-The rule would therefore be refused.

MEANOR. ATTORNEY-GENERAL'S FIAT.

-JURISDICTION.-MANDAMUS.

Held, that this Court will not interfere with the decision of the Attorney-General on an application for his fiat for a writ of error on an indictment for a misdemeanor, where it appears he has exercised his discretion. Where the Attorney-General refuses to hear the application altogether, a mandamus will be granted to compel such hearing.

A technical objection to an indictment, on the ground that the offence charged to be within the jurisdiction of the Central Criminal Court, was not within such jurisdiction, overruled, where it had not been taken at the trial.

Semble, the dictum of Lord Mansfield in Rex v. Wilkes, 4 Burr. 2551, that "in a misdemeanor, if there be probable cause, it ought not to be denied this Court would order the Attorney-General to grant his fiat," is incorrectly reported.

THIS was a motion for a rule nisi on the Attorney-General to grant his fiat for a writ of error on this indictment at the Central Criminal Court charging the defendants with wounding with intent, &c., and on which they were found guilty of unlawfully wounding. The application to the Attorney-General for his fiat had been made on the ground that the indictment charged the offence to have been committed in the parish of Lambeth within the jurisdiction of the Central Criminal Court, whereas it was in the parish of Croydon and beyond the jurisdiction of the Court. The Attorney-General refused to grant his fiat, inasmuch as the error assigned alleged a fact in contradiction of the record.

H.J. Hodgson, in support, urged that the writ of error was ex debito justitiæ, citing the dictum

Court of Common Pleas.

Bennett v. Oriental and Peninsular Steam Na-
vigation Company. April 21, 1855.
BILL OF EXCEPTIONS. NON-SIGNATURE OF

a

JUDGE.-NEW TRIAL.

Where a bill of exceptions was not signed in consequence of the Judge being unable to attend and settle it as intended, and he afterwards was unable through ill health to undertake the matter: Held, that the arrangement having failed through the fault of none of the parties, a rule would be made absolute for a new trial.

It appeared in this action that it had been arranged for the defendants to be at liberty to tender a bill of exceptions after a motion for new trial on the ground of misdirection had been disposed of, and that upon the rule obtained accordingly being discharged a bill of exceptions as settled by counsel was sent to Lord Truro, who presided at the trial, to seal, but that not approving of the form of the exceptions, his lordship had stated his intention to settle them. The matter had not been attended to in consequence of his lordship's numerous engagements, and it appeared his state of health now prevented his being troubled with the matter.

Petersdorff now moved for a new trial; Prentice showed cause in the first instance.

The Court said, that as the arrangement had failed without fault on either side, it must be treated as inoperative, and the rule would therefore be made absolute for a new trial.

"In a misdemeanor, if there be probable cause, it ought not to be denied; this Court would order the Attorney-General to grant his fiat."

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Baileys' settlement, in re (V.C. K.)
Baker v. Bradley (V.C.S.)
Banks v. Davies (V. C. K.)

v. Powell (V. C. K.)

Barford v. Barford (V.C. S.)
Bartlett v. Salmon (V. C. W.)

Bazalgette v. Lowe (V. C. W.)

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225

Steam Coal and Swansea and Loughor Rail-
way Company (L. J.)

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225

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447
39, 168
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58 Greenwood, in re (Q. B. P. C.)
168 Griffenhoof v. Danbus (Q. B.)..
408 Griffiths v. Teeching (C. P.)
448 Gurney v. Gurney (V. C. K.)
v. Womersley (Q. B.)
207 Halsey v. West (V.C.K.)
484 Hammerton v. Milnes (V. C. S.)
78 Hatwill v. Rimell (V. C.S.)
Hamilton v. Bell and others (Exch.)
Harris's Patent, in re (L. C.) ..
Haggitt v. Stiff (V. C. K.), (L. J.)
Hawkins' Hospital, Chatham, exparte
vernors of (V. C. W.)
Hammond, in re, ex parte Hammond (L. J.).
v. Ward (V. C. K.)
446 Harris v. Willis (C. P.)

Beavan v. Earl of Oxford (V. C.S.)

Bebb v. Bunny (V.C. W.)

Beeching v. Lloyd (V. C. K.)

Begnill v. Rose (V. C. K.)

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134 Hilman v. Westwood (V. C. W.)
116 Hinde v. Poole (V. C. W.)
151 Hinton v. Mead (Exch.)
225 Hislop v. Wickham (V. C.K.)
59 Hodges, in re (L. C.)
385 Holsgrove v. Hedges (V. C. K.)
134 Honeyball v. Blumer (Exch.) .

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325 Hope v. Corporation of Gloucester (V. C. s.) 588
v. Hope (L. C.) ..

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Houlding v. Cross (V. C. K.)

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406

225

Carter v. Smith, in re (Q. B.)..

Huggett, app.; Lewis, resp. (C. P.)

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283

Hughes v. Ellis (M. R.)

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Chaffers v. Baker (L. J.)

346

v. Paramore (L.J.); (V. C. S.) 245, 503

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NAMES OF CASES

NOTED, CITED, AND DIGESTED IN VOLUME XLIX.

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37

13

.. 265

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100

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97

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296

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203

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307

480 Clarke, exparte, in re Metropolitan Carriage
Company, 1 Kay & J. 22

99

Aspdin v. Austin, 5 Q. B. 671..
Attorney-General v. Birmingham and Oxford
Junction Railway Co., 4 De G. & S. 490.. 480
v. Lord Carrington, 6 Beav.

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Cohen v. Cunningham, 8 T. R. 128
Coleman v. Mellersb, 2 M'N. & G.314
Collins v. Shirley, 1 Russ. & M. 638..
51 Colson v. Colson, 2 Atk. 246 ..
Colvill, app.; Wood, resp., 2 C. B. 210
Cooper, exparte, 14 C. B. 663..
Cope v. Rowlands, 2 M. & W. 149
Copeland v. Lewis, 2 Stark. N. P. 33..
Cornes v. Taylor, 10 Exch. R. 441
Cradock v. Piper, 1 M N. & G. 673..
Craig v. Duffus, 5 Bell, 308
Crossley v. Parker, 1 Jac. & W. 460..
Daggett, exparte, 1 L. M. & P. 1; 9 C. B. 218 306
Dansey v. Richardson, 2 Com. Law Rep. 1467 130
Darby v. Darby, 18 Beav. 412
Davis v. Prout, 7 Beav. 288
Dawson v. Dawson, 11 Jur. 984

443
v. Simcox, 1 Exch. R. 749.. 468
v. York, Archbishop of, 17

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Beav. 495
257
Attwood, exparte; Ayles v. Cox, 17 Beav.584 258
Ayles v. Cox; exparte Attwood, 17 Beav. 584 258
Bailey, in re, 18 Beav. 415
Baily v. Lambert, 5 Hare, 178

Bainbrigge v. Blair, 1 Beav. 495
Balfour v. Watt, 8 Moore, P. C. 190.

Barnes v. Marshall, 21 Law J., N. S., Q. B.

388

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Barrow, in re, 17 Beav. 547

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Bartlett v. Harton, 17 Beav. 479

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458

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367

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38

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288

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307

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Barton v. Whitcomb, 23 Law J., N. S., Ch.,
523
Baskett v. Cafe, 4 De G. & S. 588
Bass, exparte, in re Stephen, 2 Phill, 562
Beamish, app.; Overseers of Stoke, resp. 11
C.B. 29

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Beckham v. Drake, 2 H. of L. Cas. 606
Benn v. Stupart, Doug. 11
Bensusan v. Nehemias, 4 De G. & S. 381
Benthall, exparte, 6 M. & G. 722; 1 D. & L.
747; 7 Scott, N. R. 407
Bentley v. Dawes, 10 Exch. R. 347

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Berry v. Pratt, 1 B. & C. 276..

Bettey v. Buck, 13 Jur. 368

Bingle, in re, 15 C. B. 449

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Dickson v. Dickson, 1 Macq. 729
Dinning v. Henderson, 3 De G. & S.
Law J., N. S., Ch. 273
Doe d. Mence v. Hadley, 17 Q.B. 571
Dorrett v. Meux, 15 C. B. 142
Douthwaite v. Spensley, 18 Beav. 74..
Dowdell v. Australian Royal Mail Steam Na-
97 vigation Company, 3 Ellis & B. 902
99 Dowling v. Hudson, 17 Beav. 248
99 Dudgeon v. Thomson, 1 Macq.714, 724
479
467, 468, 486, 487
Dunn v. Calcraft, 1 S. & S. 55
v. Dunn, 3 Drewry, 377
v. Sayles, 5 Q. B. 685
94 Duval v. Mount, 35 L. O. 260..
307 East v. Twyford, 4 H. of L. Cas. 517 ..
459 Edinburgh, University of, v. Lord Provost of
Edinburgh, 1 Macq. 485

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306
.. 296

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Bodmer's Patent, in re, 8 Moore, P. C. 282
Borradaile v. Nelson, 14 C. B. 655
Borrows v. Colquhoun, 1 Macq. 691 ..
Bougleux v. Swayne, 3 E. & B. 829..
Boulton v. Beard, 3 De G., MN. & G. 608
Boyse v. Colclough, 1 Kay & J. 125

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288
487, 488
235
Water Co. v. Hay, 1 Macq. 682 228
468 Edwards v. Griffith, 15 C. B. 397

.. 111

v. Rossborough, 1 Kay & J. 125
Bridger v. Penfold, 1 Kay & J. 28
Buckley v. Hann, Exch. R. 43
Burdon, exparte, in re Lawrence, 2 Smale &
G. 367

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Campbell v. Allgood, 17 Beav. 623

-- v. Lang, 1 Macq. 451

Cane v. Lord Allen, 2 Dow., 289

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336 Elton v. Larkins, 5 Car. & P. 386

336 Emery v. Bartlett, Lord Raym. 1555

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v. Martyn, 17 Q. B. 693
v. Meyrick, 2 Hare, 60

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.. 459
.. 357

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.. 362 Emmens v. Elderton, 4 H. of L. Cas. 624
.. 307 Ewart v. Williams, 3 Drewry, 21
Eyre, in re, 10 Beav. 569

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478 Farrar v. Lord Winterton, 4 Y. & C. 472
258 Fawcett v. Cash, 5 B. & Ad. 904
467, 488 Fenn's Case, 22 Law J., N. S., Ch., 692
.. 442 Fentum v. Pocock, 5 Taunt. 197

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