The Express.
London, England, 1846-11-20 00:00:00

Commutation Commissioners are pressing for a settlement
at the question, having many cases before them depending
CC it.

Before the ]Water of the Itolls.
COLMAN 11. EASTERN COUNTIES RAILWAY COMPANY.—
INJUNCTION.—Mr, Turner, on behalf of the plaintiff, one of
the shareholders in the Eastern Counties Railway Company,
applied, exparte, for an injunction to restrain the directors
from signing an agreement, which they were about to enter
into with the Harwich Steamacket Company, for
guaranteeing 5 per cent. on the paid-up capital of the latter
company. It was alleged to be a misappropriation of the
funds of the Eastern Counties Company. The Master of
the Rolls granted the injunction till the 26th instant, with a
view to enable the plaintiff to ask on the next seal for a
continuance of the injunction upon notice.
HAINES V. TAYLOH.—INJUNCTION.-14711ISANCE.—ME.
Kinderiley applied for an injunction to restrain the defend-
ants, who represented a new gas company called the " West-
ern Gas Company," from erecting their works on some land
they had bought at Kensal-green, and which it was alleged
would be injurious to the enjoyment, by the plaintiff, a re-
tired tailor, of a house and ornamental gardens which he
had lately huiltand constructed in the neighbourhood, at the
cost of 18,0001. There was an immense body. of evidence on
both aides ; on that of the plaintiff as to the injurious effects
of works of the above description ; and on that of the defend-
ants, showing, that from the improved mode of manufacture
intended to be adopted by the new company, no deleterious
effects to health or property would arise—in short, that the
works would not be a nuisance. The plaintiff's mansion was
represented to be on the sunny side of the banks of the
Grand Junction Canal, which was, for the facility of convey-
ance it afforded, one great attraction to the company for
choosing the locality. It was by the defendants attempted
to be shown that the neighbourhood was of a wry low cha-
racter, and, as a proof, it was stated that a beer•shop and
tea-gardens adjoined the plaintiff's grounds, which, with the
house, were alleged to be quite out of keeping with the
neighbouring houses.—The caw was not concluded.

Be'ore the Vioe-Chancellor of guidons.
MAITLAND S. INVINO.—INTLIANCE EXERCISED OVER
A. WARD BY HER GUARDIAN.—Mr. Betkell and Mr. Ba-
selgette showed cause in this case against dissolving an in-
junction which had been granted to restrain proceedings
at
law in an action against the plaintiff, upon certain s scup-
ties given under the following circumstancesplain-
tiff, Miss Maitland, a young lady whose property amounted
to about 83,0001., was placed by her father, at an early age,
under the care of one of the defendants, Mr. Donald
]('Lean, Member of Parliament for Oxford, who had
married her maternal aunt, and who was, upon her father's
death, appointed her guardian. Miss Maitland attained
the age of 21 in September, 1844. Mr. M'Lean, who had
certain coal mince in Durham, entered into an agreement
with the two defendants, Messrs. Irving and Brown,
coal-merchanta, at Wapping, to purchase from them
their business, with the plant belonging thereto,
for the sum of 5,0001. At the same time Mr. M'Lean pro-
posed to procure from the plaintiff a guarantee for the pay-
ment of this sum. It was also arranged that five promissory
notes for 1,0001. each, accepted by the defendants Irving
and Brown, should be given to M'Lean, in order that he
might raise money for hie own purposes. Upon these notes
becoming due they were dishonoured, and an arrangement
was subsequently made, by which two of the promissory
notes were given up, the coginal guarantee signed by Miss
Maitland was cancelled, and other guarantee* were given
by her for 3,0001., and 1,2001. The defendants then pro
seeded at law against the plaintiff upon these guarantees,
and obtained a verdict, and execution issued. The object
of this motion was to restrain further proceedings under
that action. In support of the injunction it was urged
that the transaction was concocted between the defendants
Irving and Brown and M'Lean, for the purpose of supply-
ing a necessitous man with money ; that the defendant well
knew M'Lean hail exercised sq influence over his ward to
induce her to sign the guarantee, and the court ought to pro-
tect her property from being further destroyed by her guar-
dian ; that M'Lean had lately become a bankrupt and had
gone abroad; and that Miss Maitland was still under his
care, and therefore under his influence. The case of Archer
and Hudson (15." Law Journal," 211) was referred to as an
authority precisely in point.
Mr. Humphrey and Mr. Bailey. for the defendants, Irving
and Brown, contended that there was nothing to show they
had colluded with M'Lean ; they had sold a coal business
for 5,0001., and had taken the guarantee of Miss Maitland,
supposing she had given it, owing to her regard for M'Lean,
in whose care she had solong resided—they were not bound
to see that the ward, in signing the guarantee, was protected
from the influence of her guardian, and there was no reason
wh_y their security should be set aside.
The Vice-Chancellor, without hearing a reply, said he
should continue the injunction. It was very possible that
there was not, in the minds of Messrs. Irving and Brown, a
correct knowledge of the principles of this court ; but it was
very extraordinary that men who were engaged in business
should have looked upon this transaction as a matter of
course—that a person Lie M'Lean should have procured
from the plaintiff an indemnity to give to them, and that
they should not have taken means of ascertaining whether
the young lady was quite a free agent to do what her guar-
dian said he would induce her to do. The language used by
the defendants was this : that upon the execution of the
conveyance of the coal business to M'Lean, he asked the
defendants to allow him a fortnight's time to pay the money,
stating that if such time were allowed him, he would obtain
the guarantee of the plaintiff for the due payment of the mo-
ney; and M'Lean further statedthat the plaintiff was his niece,
and was anxious to assist himon account of their relationship ,•
but that M'Lean did not state to the defendants that he had
any influence over her. It was very strange that these gen-
Yemen, after making such an admission respecting what
M'Lean had said about the young lady, should go on to say
38'Lean did not state be had any influence over her. It ap-
peared to his Honour that the whole transaction was based
neon the understanding that M'Lean had influence over his
ward, and would induce her to sign the guarantee, and it
was clear that Irving and Brown relied upon that influence
being exerted. His Honour considered it to be this sort of,
the the defendants, knowing the defenceless situation
of young lady, combined with M'Lean, who also well
knew it, to take advantage of her for the benefit of all three,
who, consequently, stood in the same situation. He was of
opinion that this came within the rule of the court, as to
persons exercising an influence over a ward, just after
ker attaining her majority ; and on this account the injunc-
tion ought to be continued. Upen the question whether the
money should be brought into court, his Honour was rather
inclined to think, as the young lady had gone abroad with
her guardian, and was still under his influence, that it
would be better to make the order without any direction
that the money should be brought into court.

COURT OF QUEEN'S BENCH.
BACKMAN O. BLUCK.—EROHIBITION TO ETAT EXECUTION
TINDER A SENTENCE OP FORFEITURE FOR ABSENCE PROM
A BENEFICE, ON THE GROUND THAT THE PROCZEDINOB
OUGHT TO HAVE BEEN UNDER THE CHURCH DISCIPLINE ACT.
—ln this case proceedings by civil suit had been instituted in
the Court of the Chancellor of the Diocese of Norwich, for
the recovery of one-third of the annual profits of the living
of the defendant, as and for the forfeiture which, under the
670. 3, c. 99, s. 5, he had incurred by his absence therefrom
without leave fora period exceeding three months and less than
aix months. They became the subject of an appeal to the Dean
of the Arches, and from him to the judicial committee of the
Privy Council, by each of which tribunals the original sen-
tence was confirmed. Ultimately, therefore, the sentence
was remitted for execution to the court in which the pro-
ceedings had commenced. On the last day of last term a
a rule nisi for prohibiting the bishop from executing the
sentence was obtained on three grounds; first, that as the
proceedings were for the recovery of a penalty, they were in
their nature criminal and not civil, and ought, therefore, to
have been instituted under the Church Discipline Act, 3 and
4 Viet., c. 86; secondly, that the sentence was wrong in sub-
stance, because, after adjudging that the forfeiture had been
incurred, it referred it to the registrar to ascertain the amount
of one-third of the annual profits and of the costs, instead of
Axing, by express terms, the sum forfeited and to be paid
and, thirdly, that the libel did not contain an express allega-
tion that the defendant had the cure of souls as well as the
benefice. Upon all these points the decision of the judicial
committee of the privy council had been in favour of the
plaintiff, and two questions were now raised ; first, whether
the objections could be taken as a ground of prohibition to
stay execution after an appeal to the privy council ; secondly,
whether all or any of tke objections were good.
The Attorney-General and Mr. Couch now showed muse
and Sir F. Thesiger, Q.C., and Mr. Bramwell were heard
in support of the rule.—The court postponed the decision.

BAIL COURT.
Ex PARTE VANHOTIN.—HABEASCORPUS.--SMCOOLING.
—Yr. Lush moved for a habeas corpus to bring up the appli-
cant from the house of correction at Louth. He had been
oonviLted under the Bth and 9th Vic., c. 87 (the Customs
Act) for an alleged smuggling. It was contended the war-
rant of commitment was bad, on the ground that the justices
bad no jurisdiction, as this was not a case that came within
the sth section of the act, which makes any person found on
board a vessel, within one league of the coast, with contra-
band goods on board, a smuggler. It was an offence on the
high seas, and any such person must be taken before the
magistrates of the place where he first landed ; and it was a
question whether that fact was sufficiently averred in the
warrant, which was n , as had been laid down in " Reg.
e. Peerless " (1 Queen's Bench Reports). The warrant did not
show that an offence had been committed at all; for, being a
foreign vessel, it did not appear but that she might have been
detained within •leagueof the coast by stress of weather. By
the 50th sect., certain officers named were authorised to take
and detain persons accused ofriauggling,and bring them before
the magistrates, who must hear the case when brought before
them. In this case, the prisoner was taken before the magis-
trates on the 21st August, and afterwards confined in gaol
till the 31st, when he was brought before them again ; but
his case was postponed till the next day. At the hearing
then, an objection was taken to the jurisdiction of the magis-
trates—it was contended that the imprisonment during the
period of the adjournment of the case was illegal ; that he
could not be said to have been in custody; for, if detained,
be ought to have been in the keeping of the person who
took him, such being the intention of the act. The magis-
trates, therefore, had no jurisdiction to deal with the case.
The writ was granted on the latter point only.
Tan QUEEN O. THE TOWN-CLIRI Or ST. ALBAN'E.—
MANDAims.—Mr. Serjeant Shee, with whom was Sir Jobn
Bayley, showed cause against a rule obtained b Mr. Webby
ogling on Mr. Blau, the town clerk of St. Albans, to show
cause why a mandamus should not issue, compelling him to
to produce to one Henry Williams the voting pen used on
the election of town councillors of the boro , and the list
a/burgesses, so that it mightbe compared with certain does-
=wte of the applicant, and marked by him. It appeared
that there was a dispute as to the election of one Russell to
the office of town councillor, who was stated to have had a
moaner number of votes than one Gibson, who had not been
elected. Williams was a check-taker at the election for the
pray to which Gibson belonged, and he applied to the town

clerk to examine the voting-papers and burgess lists, in
order to compare them with books cf his own, and make
memoranda ; and he stated that he was not allowed to do so,
and that he bad not been permitted to make such an inspec
tion as the act of parliament allowed him. The affidavits of
the town clerk and the clerk of the peace averred that he
Lad been allowed to examine the voting-papers and a copy
of the burgess lists, and had made marks upon them.—Mr.
Welsby contended that he had only seen • printed copy of
the burgess lists, and had not been permitted a careful in-
spection.
Mr. Justice Patteson said the applicant had had all he
wanted. lie did not see what be could complain of, for he
had seen the list and made memoranda upon it. The affida-
vita on which the motion had been made did not di-close all
the ease, for if it had the motion would have been refused.
The rule must be discharged with costs.

ARCHES COURT.
TEE OFFICE OP THE JUDON PROMOTED DT FARRELL 0.
Tan Ray. ME. CRAIG.—A responsive plea was offered in
this ease by Mr. Craig, denying certain charges brought
against him, including acts of general immorality, and the
question before the court was as to the admissibility of this
plea.—Drs. Haggard and Jenner appeared to oppose, and
Drs. Addams and R. Phillimore to support the plea; the
latter contending that every opportunity should be afforded
to the rev. gentleman to clear his character.—Sir H. J. Find
ordered the plea to be amended.

COURT OF COMMON
Sittings In Banos.
REGISTRATION APPRALS.-ADT, APPELLANT, V. HILL,
REarosrosmr.—Upon this case being called on for argument,
Mr. Cockburn, in support of the appeal, stated that, inas-
much as the appellant laboured under a misunderstanding as
te the proper time of giving notices of appeil, he trusted
their lordships would consent to postpone this and other
cases of the like nature until next term.
The Lord Chief J ustice, after some consultation with the
other learned judges, said tie court had considered with
great anxiety what was the true construction of the statute
which authorised the granting of appeals. It was the duty
of the court to attend with etrietneas to these enactments.
The Commons, by this act of parliament, had parted with a
great deal of its constitutional power, and had delegated it to
the Court of Common Pleas, but they had thought fit to guard
the delegation by express enactments and restrictions. It would
have been competent to the Reuse of Commons to give the
court discretion in various particulars ; but in reference to
the present question it had been precise and distinct, and
had thought fit to say that the decisions of the revising bar-
risters shall be conclusive, subject to the power of appeal,
under certain conditions. One of those conditions was, that
the person who sought to revise the decision of a revising bar-
rister by an appeal to this court, should give ten days' notice
of his appeal; and in order to render this enactment more
emphatic, the words " at least " .were added to the time spe-
cified. When the legislature, upon a subject of this nature,
was, for the first time, giving power to a court of law to
decide upon the elective franchise, it was a state of things
which bound the court to attend strictly to the terms of the
act. It would be much mom fitting, if the law was found
too stringent, that it should be left to the legislature to relax,
than that the court should assume a judicial power of ex-
tension and indulgence in those cases in which the act of
Parliament was distinct, poeitive, and precise. The court
was of opinion that the true construction to be put upon
the enactment, in respect of the ten days' notice, was, that
the words " at lute " were intended to signify that the
period should be ten days, exclusive of the first day and of
the last, and not nine days, with parts of two other days.
That being, according to their judgment, the meaning of
the act of Parliament, it was the duty of the court to
consider whether or not the appellant in this case had
performed the conditions upon which the right of
appeal had been given. They were of opinion
that he had not done so, and that therefore the
appeal could not be heard. The security of the elective
franchise appeared to the court to depend a great deal upon
the proper construction of the act of parliament. Upon the
ground, therefore, that the act was distinct and precise upon
this subject, giving the power to appeal only on certain con-
ditions, which in this case had not been complied with, and
considering that the court had no power to relax, the appel-
lant had no right to be heard. Unless the appellant could
prove that he had given to the respondent ten clear days'
notice of his appeal, he could not claim the privilege granted
by the statute. A postponement of the case until the next
Una would have no effect in removing the difficulty. A
day had been appointed for the commencement of
{Assn inquiries, and therefore the difficulty which had arisen
in consequence of due notice not having been given previous
to that day, would exist in its full force at any future period.
Under these circumstances the appellant was not entitled
to a tearing, and the decision of the revising barrister must
accordingly remain undisturbed.—Other cases were called
on, but in consequence of this decision, the learned counsel
stated that the appellants, not having complied with the
provisions of the act as to the ten days' notice, must neces-
sarily withdraw their appeals.
Theme v. FIELD.—This was an appeal from the decision
of the revising barrister for the borough of Warwick. The
respondent claimed a right to vote as a scot and lot voter,
though in the year 1843, he had not paid the rates de-
manded of him on the 31st July, and thereupon the revising
barrister expunged the name from the register. Since that
period he had paid the rates, and at the last revision it
was objected that inasmuch as he was disqualified to be put
Upon the register on the 31st July,lB 15, the continuity of his
qualification had been broken, and therefore his right to
vote was destroyed under the 33rd section of the Reform
Act. The revising barrister, however, retained the vote,—
and hence the present appeal.
Mr. Hayes appeared to day in behalf of the appellant, and
Mr. Mellor for the respondent.—The court, in giving judg-
ment, said that the section reserving rights to scot and lot
voters, &c., enacted that every person having a right to vote
for any borough shall retain such right so long as he shall
be qualified according to the usages and eust,ras of such
borough. In the case of a voter not having paid his rates
on the 31st of July the penalty was that he should not be
entitled to have his name inserted in the register for that
year, but be might resume his right tote put upon the regis-
ter,lay fulfilling, at a subsequent period, the requirements
of the act. In the present cue the voter had paid the rates
since the 31st July, 184.5, in sufficient time to preserve the
continuity of the qualification, and therefore the decision of
the revising barrister was right, and ought to be affirmed.—
Decision affirmed accordingly.

COURT OF EXCHEQUER.
Sittig. in Banco.
ELLIS O. ORIFTITHS.—ILIGHT TO DETAIN A DEFENDANT
IN CUSToDT, ALTHOUGH THE PLAINTIFF DIED BEFORE
THE EXECUTION OF THE WRIT.—A writ of capita ad ovals-
faciendum was issued in this ewe to the Sheriff of Carnarvon
on the 13th of October ; the plaintiff died upon the 12th, and
the defendant was arrested upon the 14th of October. Mr.
Martin now moved for a rule to show cause why the defen-
dant should not be discharged out of custody. There being
no person to whom payment of the debt could be made, as
the plaintiff's administrator had no right to proceed upon
the judgment without being made a party to the prooeedings
by scire facia*, and it would therefore be a great hardship to
detain the defendant. That course was not taken here, and
no person had a right to act upon or was the legal owner
of the judgment upon which the defendant was arrested.—
Mr. Welsby, who appeared to show cause in the first in-
stance, wax stopped by the court, who intimated that there
should be no rule. The sheriff was right in obeying the
mandate of the writ, and could not discharge the defen-
dant upon notice of the plaintiff's death. If the defendant
had a right to be discharged, because there was no person
legally. entitled to receive payment of the debt, the same
reasoning would apply almost in every instance where a
plaintiff died during the detention of a defendant, and he
might insist upon hts release, even though arrested before
the death of the plaintiff; that would not only be an incon-
venient course, but altogether without precedent. The
rule should, therefore, be refused.
BreiNese or THE COURT.—The Lord Chief Baron inti-
mated, at the sitting of the court this morning, that the
special paper would be taken again on Monday next, and
not until then.

SHERIFF'S COURT.
Before Mr. Under-Sheriff BurehelL
WOOLFE O. MATIIEWB.—ASSESSMENT OF ♦ TAILOR'S
BlLL—This was an action brought by a tailor, named
Woolfe, against the defendant, Mr. Charles Mathews, the
well-known comedian. The amount claimed was 401.-
271. of which was secured on a promissory note, 111. was
an 1 0 U, and the remaining 21. was alleged to be due for
work done and goods supplied. Judgment having. been,
allowed by default, the present was a writ of inquiry to
assess the plaintiff's claim. It was proved by a witness,
named Levy, that the I 0 U and the promissory note were in
the handwriting of the defendant, and another witness, a
young man in the plaintiff's service, proved the delivery to
the defendant, in September last, of a pair of trousers at
the Princess's Theatre. This was held sufficient to entitle
the plaintiff to a verdict, which was accordingly given under
the direction of the learned under-sheriff, with costs.
JULLIEN AND ANOTHER O. BELIZLEY.—THE PRIER
OF PRIVATE BOEES.—This action was brought to recover
the sum of 111. 2.1. 6d., and, as in the preceding case, judg-
ment having been allowed by default, the present was a writ
of inquiry. The plaintiffs are Louis George Inllien, the con-
ductor of the Concerts at Covent Garden Theatre, and Apollo
Marie Rose Barret, the mnsieseller ; and the defendant is
Captain James Bulkeley, R.N. The plaintiffs claimed nine
guineas for the hire of a private-box at Her Majesty's
Theatre, one guinea and a half for the hire of a private-box
at Covent Garden Theatre, and two shillings for a book of
the opera of " Don Pasquale." James Bennett, a clerk to
Monsieur Jnllien, proved the defendant to have hired the
boxes and the supply of the book, and a verdict was given
with costs.