The Express.
London, England, 1849-12-07 00:00:00

be a delay et the assiviie of tbfe earn's Jurisdiction till the
trial. but the plaintiff bad two Wailes in his eousty since
January last, when to first bed COMO of complaint, end he
emitted at either the spring mime or the summer assizes
to take hie untidy by action. He 'build show that he
bad taken the means within hie power to stop the evil,
before he came to this court. His lordst.ie Bait the injunc-
tion mast be diseolvid, sad the plaintiff left at liberty to
Wog his
le
y. Reit said the plaiatdre advisers bad not yet decided
whether to try the matter by action or by indictment, end he
rapiested that the order ehould be to dissolve the injunction,
the motion before the Viee-Chatteellor to stand over until an
adios or Indictment shall be vied, with liberty to either
party to apply to the coon.
Tie ardor was SO said..
TDB lIIIDZWAIIIIST AND CIIBBIZZ RAILWAY CO ....
O. Two Cason& AND HOLYIINAD, TNN BOULIDIIINAD,
CILZIIIIIII AND LANCYIIIIII JUNCTION, AND TKO LON
DOX AND NOWT& WISTIDN, RAILWAY COMPANINS
COMMON RAILWAY' STATIOIL—ACCONIMODATION YOU OW

311/110•10.
kr. Malin, asked that an appeal motion, to dischazge pan
elan order Vies Commence Knight Drum (in yesterday's
Espress), dleallowiag the ascommodstiun for omnibuses
SO the laintiff: company, ia the Gammon station at Cutter,
Plight p
be in his lot dship's paper for Saturday morning. The
Matter vim pressing.
The Lord Chancellor said Saturday was not a mal
tday.
The matter was not of such important* as to Interrup the
reituler bueinees of the court to take it out of ha tura.
His Lordship, after further hearing the horsed counsel,
allowed the motion to be lint on the paper for Monday
neat.

Bestow Vics-Chowesssoft loom Boon.
FAIIIIBROTHIS C. BRAIN —WILLOW.II4I4K SILL.
Tbis ease, the hoots at which woe stated in the Es-
'west of Teesday in the report of the argument upon the
demurrer, now ease on upon a motion for leave to pay into
court the monies in the beads of the plaintiffs.
Mr. Swanson and Mr. Higop Clarke, for the plaintiffs,
said that en arrangement bad been come to between the
coutendtng parties, subject, as regaled Mr. Delatield's
entiguser, w UN COGUILI of the celnaiellio•llr acting in the
ressuties e 1 the flak
Mr. Resell mid Mr. C. Barber appeared for Mr. Beale •
Mr. Weight far Mr. Walker ; sad Mr. Chandless kr the
ten`„'
The terms el the proposed artangsseat were, " That the
stuccoes of Mr. De Wield shell nods from Me plaintiffs
1,11001 ; that the plaintiff shall pay to Mr. Walker 2,0001.,
with Stems and his este, and Awl pay: to Kr. Deals the
balsam of the SAM fk. 74., after deducting the above pay-
smuts ; the plaintiffs' costa lobe tatted, end the arrangement
to be in satisfaction of eLL claims stains them."
The motion .rood over toe • weak that the mearitimioner's
sanction might be obtained.

COURT OF QUEEN'S BENCH.—YESTERDAY.
aft 717.6 telsl ratlM—BarOlta MIL RIM= COLlallaa
nD
• armee Jeer.
Slams tr. GATIM..—ACTIOM ST • RZCZCIT WHO MAD
DISIKTSD, AGAINST • COMMAME4I4O OPTIC'S, FOS kA•
cantina sans ISITINO KIM ID CUSTODY.
This was as ern** far false impri.ogment. The defendant
pleaded " Not guilty by statute.,Mr. Y. Cambers, Mr. O'Malley, and Mr. Dergat, ap
tor the plaintiff, and the Attorney-Geaual, Mr.
Y.
rriti. and Mr. Webby, few the deleadient
it,. K. n addrened the jury for the plaktiff, and
stated that this was all actioa by a labrurieg man, a native of
lbs mealy of :Suffelk, against Meier G, of the Vital
Limn», for an unlawful imprisonment foe 18 days, on a
Glaris of desertion from her Majesty's service. In former
times great shares ex red in the enlistment of and obtain', g
recrails, and enactments had been added to the Mutiny Act,
which threw a protection over perins enlisting, and when.
ever • penes was enlisted cr supposed to be enlisted, it could
ally be done by recruiting sergeants, or men who had
been themselves enlisted, or by pensioners, and they
could give the enrolling shilling. After tree shilling hid
been tee ived, the sSth sic ion at the Malley Act came into
°pension, which abated that persons reenvieg enlistment
mosey fr ea persons in the recruiting genic*, were to be
asked if they belonged to the Militia, and hue, within 12
hours, their names and Ones of abode taken down in writing,
and within four days he taken before a justice acting tor the
divirion, district, or place, where the recruits wen enlisted;
and if they declared that they had voluntarily enlisted, the
junks gave tie CATtiacate of enlistment. la order to enable
a recruit to pet his elinherge when he bad been enlisted
impraperle, another section of the set enabled him to go
before a mafetrate, whine four days, and obtain his ef.s•
charge. With regard to the appreheasion of recruits,
alleged to have deserted, there were clauses in the set which
required that the eatery authorities should not decide who.
there men was a deserter or not ; but if a recruit had de-
serted before he joined a regimes' or deellt, he should be
taken beton a magis:rate, and if he was shown to be a
deserter, the magistrate was to determine whether
be was to be committed. The fats of this case were
thew —On 16th April, 1848, as it was alleged,
the plaintiff enlisted et Button, his native place.
Sutton was eighteen miles trent leswieh, in the Wood-
bridge district, where there was a petty sessions held every
Wednesday, and a quarter sessions also. Woodbridge lies
between Sutton and Ipswich in the direct read, and angle
testes lied in the Leighbourhood. On the Wednesday alter
he had enlisted, hie Loewy took him to Wo 41:ridge before
the magistrates there, and he was discharged; therefore he
was so longer a recruit, and could pot be a deserter. On
Thursday be was arrested by two men of the Royal Artillery
sad taken to Ipswich, and pat in the gaol there, where he
remained till the following Saturday, when an attempt was
made to get the boroueh 'Quietest 's to attest him or commit
him at a deserter, but they said they had no power to do so,
and he was again taken back to the gaol. Oa the S iturday
his friends applied to Mr. Pannell, an attorney at Ipewich,
to interfere. Mr. Po ;mall went first to the gaol, and then
to the muiscrates' onto, and, having reason to believe that
the pleintiff hail been unlawfully placed into custody
by Muir Gavin at toe cavalry barracks, he deemed
it his euty to see Major Gavin, when he stated
the circumstances, and told Dim If he detained
the men it would be illegal. Mein Gavin received him with
courtesy and listened to him with tespeet. Mr. Purnell told
him that be knew Mr. Cobbeld, the member for Ipswich,
who bad been an enemy, and he advised him to see that
gentleman and get his advice. Major Gavin told him to call
ague, which he did in two hours, when be heard that the
man had been taken to the barracks, and Major Gavin said
it hid not been reported to him. Mr. Pownall then wrote a
letter to Major Gavin to the effect that " the recruiting was
illepal, leasmuch as the payment of the shilling was made
me Saaday that theca had been no legality if the man was
is the militia; that his place of abode had not been stated
in 13 hours, or in wrideg ; that he had not been taken
within four days before the magistrates for the division of
**county ; that he went on the Wednesday following his
enlistment before the proper magistrates at Woodbridge and
had been discharged; that he had been apprehended at
Button, sixteen miles treat Ipswich, and brought be-
ton the magistrates of that bor nigh, pawing the houses
of county magistrates, and notwithstanding they said they
had no jastedletiOn, a certificate of el, section was obtained
from one of them (not &county magistrate); that en Saturday
an applicetios was male to the magistrates at Woodbridge
ter his commitment as a deserter, which was relined; that
the governor of the gaol, actin under the advice of the
Week to the magistrates, had ntused to detain him, and was
about to art him at liberty, and asking his immediate dis-
charge."
If Major Gavin had mete the slightest inquiry before the
plaintiff was put into military custody he would have ante
'wined that he was dung an illegal set. Mr. Pownall tried
agaia to see Major Gavin, but did not succeed. He tried
to get the pleintiff discharged, but could not even see him.
The meristsates were applied to, but it was ineffectual. Mr.
Formal ands a communisation to the Horse Guards, and
also to Captain Preen, of the artillery, who commanded
the manikin, party, but without effect. Mr. Pownall then
obtained a habeas corpus to bring up the mac, and the re-
turn to which would have stated the reason of his detention.
N. return was made to the writ, nor was he brought
sop, but he was discharged from custody on the very
morning he was to hove been brought up, sad
no such statement wee nude. A motion was made
for an attachment autiost Major Gavin f.r not making a re-
turn to the writ, and be made an affidavit that he had no in-
tention of committing a contempt of court by not making a
return, and the rule was discharged. The plaintiff had been
isjared by ao return being made, which maid have stated
the guinalle of bb detention. The injury he had received
wee pert, end mins puiperly explained, entitled him to
/wavy damegen. Me (Kr. Chambers) was glad Major Gavin
appeared by tbe eslisitor to the Treasury, sad was represented
by the law Amu of the carom, because it was his duty to
press ter been damages. He had been detained for 18 days,
Impinged in the guardhouse, was eked up in the black hole
Maw tbo 'debt, had no bed or beddiag, had a *entry placed
over Um, was kept in the strictest is closest custody, was
net slowed to me hie friends, and was treated in every fe-
west ea • deserter. There were no cionimstances of ositigs-
lios. as Major °aria was as 'Aker of great experience sad
isestmeitaad a istinetioe and not a young and inexperienced
=M, set was well aware that he was proceeding illegally,
is eassemsnce of hie communication with Yr. Pownall
Me (Mr. Chambers) called on him therefore to give mastic-
mourn= for this great constitutional grievance.
Bellowing witnesses were then called:
Themes Churchyard—l am a solicitor at Woodbridge.
There me magie'rstes there. Petty sessions are held every
Werbeariey.
The' Atterney.General—As far as Major Gavin is con.
armed this is irrelevant. He had nothing to do with the
enlistment ; it was in a different regiment.
Mr. Chambers—l will not press any evidence objected to.
Witsese-1 know the parish of Suttee ; it is 13 mile.
from Irish. There is no way from Sutton to Ipswich but
throng Woodbridge. Two meaty magistrates live there.
It is in the aunty of ff affdk.
James Hay Angier—l am a surgeon at Ipswich. I know
Mr. Powaell the atrney. In April or , 1848, I
saw Mr. Pownall ictoing towards the Camdry
Ipswich. He appeared in a hurry. I walked with him
Bards the barracks. Major Gavin was not them then, he
was out with the troops. He is major of 18th Learews.
We stayed in the orderly room till he came beck. Hs Now
la there. Durant what Mr. Pownall said. He aid be bed
waited es bin on account of a person brag bus .erred
. and Visually detained. He wished Major Gavin ad to Mr
brier% as he understood he would kayo an applicatie• Ar
as smut to convey him to the County Gaol. He oil be
bad so such application. Ile lira entered into a disennekis ,
with Maim Gavin, say ing ke eheeld be earry to eater late bid
t7iage with • centimes in Major Gavin's pedant.
Ilid would be his duty to di so if he persisted, eiblibe
let. to commit wi • produmlemel &deicer- wide whin Ile.
Powsall might confethr. Ho maimed lir. Osbbii, ILP.
ler Simi*. He km boa eilistaey. Thin le des

Act
Kr. Cobbeld sow an . The Mutthy
OM leaned la ; wassticesslAsa of and dimussed.
21Olivia Maned se is a very gentlemanly manner, and
1:e had loud selhisi it the caw. I don't no Meet it
myth's. was add abauteellisgtn. I had known Major
Gavin by same he em sse
s bef re. He had been is
sommand at Ipwiek about II swaths.
Na numb= was put to this witness in erose-examisation.
Benjamin Frank-1 us a laid tioneltelzrich. I
west to the lierraess oa lit May, ,by of Mr.
Pewee& I had a letter to give to Wolcott. I asked to
speak to him. I wee net allowed to us him. I went seals
UN or three days. I sever
saw the plain
to I trent ohe
mewing of 7th May with a wasp to Minor Gavin.
Alm swiss the °afoul a the gurd I inquired for Major
Owns. I saw bin is the wean beset. I wished to know
If4thee Mr. Purnell or I scald ese Welton. Mato Gavin
aid se, he could not allow mew say one else to have any
esseissaisation with him. That was ell. sad I went away.
I wont two or three days after. I saw Major Gavin on pa•
ads, and asked if I could see Woken. The only answer
wee" No." I went several time., but did not on him.
Crow xemined—l first saw Major Gavin on the 7th of
May. I thiek is the orderly room. It is in the officer's
hone. lam sure it was Major Gavin, not Captain Burton.
I know him by sight. I applied for myself or Poweall to
see Woken. The cower was, " No, he could not allow me
or say one else to have -aril communication with him."
That was all that passed. I made a memorandum, by
which I know it was the 7th of May. I recollect distinctly
that I saw Major Chitin on that day. lam
_prepared to
swear to it. I gave the memorandum to Mr. rownall. It
is two years ago, and a date might slip my memory.
Welter Robertson—ln 1848 1 was one of Mr. rawaall's
clerks. About the lit May he sent me to the barracks with
a letter. I delivered it to Major Gavin's servant. He was
in his room. He said Tell him to wait." I waited half
an hour, and then the earns' came out and said there was
no answer. Two or three days after I went to see Major
Gavin. I saw him in front of the (Awn' house. I asked
it Powsalleould see Wolton. said " No, I can't allow
any one."
It was proposed to read, the letter, the substance of which
has been already stated in the speech of Mr. Chambers.
The Attorney-General objected to its being admitted an
evidence.
It was revolved and read,
Jobs Saerwood—l am a corporal in the 16th Lancers. I
was at Ipswich when Wolton was in the guard-house. I
was on guard. I was not guard when he was brought in.
I was four or five days after. lie was confined in the
gaud room. Tbe bomeadier of Artillery took him sway at
night. • dof 16th Lassen and one of the recruiting
party ed during the day. Re could nut have escaped.
do not know how long he was there. He was kept there
as a deserter. I don't know there is a black-hole ; I call it
a prison. Deserters are generally in the guard-room. He
was locked up at night in a place called toe cell. He was
locked up at Line or half-pest at night, and let out at six.
I sever was in the cell. I was on guard twice while Walton
I was there. The second time was five or oil hours after the
But. He was still guarded by our men the second time. I
did not see him in the guard-house except I was on duty.
The guard-house is at the gate. I saw him. I went
on pan about every si: dep. I was not on dt.ty a third
rime while be was there. I sever beheld in the cell, and
do sot know what furniture is in it. I did not allow any
one to vas him; it is not allewed—not even his own rela-
tions. I had spiking to do with the food. A deserter is
allowed as mask a day. I don't know what it is. His friends
are set allowed to bring his' any. Ido not know if it is six.
pries a day. I sever had the pleasure of being in that situs
ties. I have been in the regiment 22 years. Mejur Gavin
has bees in it about that time. There were two troops at
Ipswich at that tame—Major Gavin commanding.
Cress examined—The cell is the place where deserters are
generally confined at night. Wolton was treated like other
deserters. I don't know who brought him.
Charles John Junes—ln May, 1848, I was clerk to Mr.
Taylor, agent to Mr. Pownall. I knew of a habeas corpus
being applied for. 1 attended at the judge's chambers
when the habeas was returnable. No return was moue. I
have Mr. Footen's bill for conducting that business. There
are charges for that "habeas corpus" and "attachment."
That business was dons. The charges are reasonable and
proper-461. 134.6 d. is the amount.
The writ of " habeas corpus" and affidavit of Major Gavin
in reply to the attachment were put in.
I The affidavit was read. It was to the effect that, on re-
eel the writ of habeas cups, he went to the authorities
I at the Guards and War-office, and communicated with
thus, and by their direction d.scharged Wolton ; and that,
eappoeing the only return he could niche was to bring up
the body of Wien, which he could nut do after the
dis-
charge of the man ; and that he had no intention of commit-
I tiog a contempt of court.
The whines was then crosesexamioed, and asked to show
how much of the bill referred to attendances before naafis-
train, Re , previous hi the let of May.
Re-examined—Mr. Potent& did come to London to attend
to the return to the habeas corpse.
Walter Robertson recalled. He had looked through the
bill. The country buskins was done.
A letter of 19th May, from Mr. Pownall to Major Gavin,
was put is, to the effect that his duty einpelied him to press
for a return to the habeas corpus and asked for a reference to
his solicitor, in order that he might be Relieved from personal
service.
This was the plaintiff's case.
The Attorney General addreteed the jury. He did net
deny that Major Gavin was the officer in command at Ips-
wich, was legally liable if anything illegal bad been done,
bat the oily evidence to fix him was an admission said to
be male by him on the 74 of May, what it would be
that on that day he was not in slpswich.
ru:i esaid it was the duty of Major Gavin to listen to the
=as of Mr. Poweall, but be (the Attorney. G. octal)
t any commanding officer had any such duty, but
was bound by the Aricles of War, without inquiry, to re.
ohm every prisoner committed to his charge, and he might
have been tried by a court-martial it he had acted otherwise,
sad he was not therefore legally liable. The tuts were, that
ea the 16th of April a person el the name of Bathhouse, who ,
bad bun resident at Suites. had known Wolton all his life,'
end had recently enlisted in the Royal Artillery, received
seam rem Bombardier Hutchinson, commanding the re.
smiting party, to enlist any ene he could at Sutton. Bear
home met Wolton, and Wolton pre seii him to enlist him in
the Artillery. He refu-ed then, but subsequently, on the
~nag of that day, he did enlist. The enlistment was not
veld because the shilling was given on a Sunday. Oa that
day Woken promised to meet Backbones on the nee.. morn-
ing lobe attested, but he did not do so. Backbones reported
tins to Hutchinson, and on Tuesday, the Dith, he went and
served Wolton with a notice to attend at Ipswich on the
20th to be attested. Walton accompan ed Backhouee
to Ipswich on the 19th and had his billet given
to him as a soldier, but he absconded, and did not
appear on the 20th—on 21st a search was made for him at
Sutton. Oa 22nd he was reported as a deserter to Captain
Freese, of the Royal Artillery commanding the recruiting
party at Norwich. Captain Freese applied to hea !quarters
fur instruction, and received for answer that there could be
no doubt that the enlistment on Sunday was good, and he
was directed to take proceedings for Lis capture, and he was
ultimately delivered, on lot May, to Major Gavin at the
cavalry barracks at Ipswich. The question was, whether
Moja Gavin had exceeded his authority by receiving Wol-
toe, and keeping his in custody. By the Mutiny Act,which
was passed annual'', the crown had power to make articles
of war, and one of the articles of war wan, that no tit ier
commanding a guard shall refuse or keep any prisoner com-
mitted to his charge by any officer, or non commicion
officer, which officer shall deliver an account, in writicg,
the crime with which the prisoner is charged." This was
done by Hatchineon, and it was the duty of Gavin to
receive the prisoner. By the 69. h section cf the Mutiny
Aet, it was enacted that if a man had been enlisted,
and went before a rasgistrate within feur days, he
might he attested ; and by the 60th section he
might p before a magistrate, and having paid
the smart-money, be discharged. Bat he was re:
to go before a justice alone, without any person
ceeneeted with the recruiting party. By the 69th section,
say person who have knowingly received enlistment money,
abounded or refused to go before a magistrate, or absented
himself from his party, and did not go voluntarily before a
justice within four days, he should be deemed enlisted and a
soldier fully and to all intents aid purposes as it attested,
and should be punished u a deserter. In this case all ilk. se
circumstances occurred, and the attestation was unnecessary.
Sven if he was not deser er, Major Gavin had no power or
discretion to refuse to receive a prisoner. If that prisoner
was brought improperly into his castony, the persons who
brought him were liable.
Mr. Chambers wished to know on which section of the
Mutiny Act the Attorney-General relied, to introduce the
evidence which he had offered ?
The Attorney.Geogral said that by 94th section of the
Mutiny Ant, in cases like this the defendant was entitled to
plead not guilty, and could give evidence of special matter
under that plea. By the let section the judges were dirties d
to take judicial notiee of the articles of war.
Mr. Chambers objected to the reception of evidence
vele as the Attornej•General was about to call.
Hie Lordship decided to receive it, subject to leave to

move.
The following wee the evidence for the defence:
(The article of war, 20, was taken as read.)
James Backhouse—ln April, 1848, I was a gainer in the ,
Royal Artillery. I know Bombadier Hutchison. I re-
ceived directions from him to go to Sutton. I came from
Sutton. My friends live there. I was there on the 15th of
' April. I had been directed to enlist any persons I could
there. On the nest day (Sunday) 1 saw Wolton at Sunni.
at a public house. He asked me to enlist him. It was at
half-put four. Church was not over. I paid I would not
enlist him, because it was during service, and on Sunday.
We remained there till Mont seven o'clock. He urged to
be enlisted. Church was over. I gave him the shilling. I
asked him if he was free, and able and willing to serve the
Queen for 12 years. lie said yes, and I gave him the shil-
ling. I knew him before, all may life. f, had very lately er
tered the service. Re saw me enlist- I knew he was a
labouring man in the I had only entered a few
weeks. I made an appointment to meet Ma at
Sutton, at the Plough, at nine o'clock, on Mon-
day morning, to ge along with me to the bon-
Win at Ipswich, for the purse of being attested.
I west at 9 o'clock. He did not come. He wee quite sober
vim 1 ealle:ed him. I waited tut hour and a halt, and then
west to his father's house. I found him. He told me he
would not go. He gave no resift. I went to Ipswich and
told Hutchinson what bad occurred. I gave the name of
' the recruit and where he lived, sad that he would net come
with me to be attested. The nertday I wag directed by Hutch-
, Goon to go to Button with another gunner who took •
I paper. We found Withal& worklas in the field. The paper
, was ',edema to him. He went back with us to Ipunek in
; the afternoon. Whoa he arrived we all three west to the
bombedier, who got him a billet and he west to quarters.
Creseelansined—l had bees enlisted three weeks co a
ocittai. I sever best mat es Mad-turtles. I bad Men