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- Certain creditors in an administration suit 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. Vice-Chancellor Wood. Sheppard v. Oxenford. April 24, 1855. AFTER MOTION FOR INJUNCTION AND AF- On a motion for an injunction, the defendants 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 An indictment under the 1 & 2 Wm. 4, c. 32, 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 TAXATION OF COSTS OF APPEAL TO SES SIONS AGAINST RATE BY CLERK OF THE 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 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- 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." Baileys' settlement, in re (V.C. K.) v. Powell (V. C. K.) Barford v. Barford (V.C. S.) Bazalgette v. Lowe (V. C. W.) .. 225 Steam Coal and Swansea and Loughor Rail- 225 328 .. 447 38 58 Greenwood, in re (Q. B. P. C.) 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.) 134 Hilman v. Westwood (V. C. W.) 325 Hope v. Corporation of Gloucester (V. C. s.) 588 19 Houlding v. Cross (V. C. K.) 406 225 Carter v. Smith, in re (Q. B.).. Huggett, app.; Lewis, resp. (C. P.) 283 Hughes v. Ellis (M. R.) Chaffers v. Baker (L. J.) 346 v. Paramore (L.J.); (V. C. S.) 245, 503 NAMES OF CASES NOTED, CITED, AND DIGESTED IN VOLUME XLIX. 37 13 .. 265 100 97 296 203 307 480 Clarke, exparte, in re Metropolitan Carriage 99 Aspdin v. Austin, 5 Q. B. 671.. Cohen v. Cunningham, 8 T. R. 128 443 Beav. 495 Bainbrigge v. Blair, 1 Beav. 495 Barnes v. Marshall, 21 Law J., N. S., Q. B. 388 Barrow, in re, 17 Beav. 547 Bartlett v. Harton, 17 Beav. 479 458 367 38 288 .. 307 Barton v. Whitcomb, 23 Law J., N. S., Ch., .. Beckham v. Drake, 2 H. of L. Cas. 606 Berry v. Pratt, 1 B. & C. 276.. Bettey v. Buck, 13 Jur. 368 Bingle, in re, 15 C. B. 449 Dickson v. Dickson, 1 Macq. 729 .. 306 Bodmer's Patent, in re, 8 Moore, P. C. 282 288 .. 111 v. Rossborough, 1 Kay & J. 125 Campbell v. Allgood, 17 Beav. 623 -- v. Lang, 1 Macq. 451 Cane v. Lord Allen, 2 Dow., 289 19 336 Elton v. Larkins, 5 Car. & P. 386 336 Emery v. Bartlett, Lord Raym. 1555 v. Martyn, 17 Q. B. 693 .. .. 459 .. 362 Emmens v. Elderton, 4 H. of L. Cas. 624 478 Farrar v. Lord Winterton, 4 Y. & C. 472 |