The Express.
London, England, 1868-01-13 00:00:00

LAM ENTIgLICIENCE.

(THU) DAY.)

EQUITY COURT.
(Before Vioe-Chanoellor Btnert.)

WATTEB V. THE EARL OT
This cane came on this morning, to be beard upon •
motion, on behalf of the defendant, for an order directing
• Mr. Oswald Howell, who had been appointed 'saline in
bankruptcy of the plaintiff, to elect whether he would
prosecute the suit against the defendant, and take the
proper supplemental steps to effect that object ; or, In
the alternative, that from and after the 25th of this
month the defendant might be at liberty to prosecute the
decree which bad been pronounced in the cause on the
17th March, 1866, and take the inquiries and accounts
directed by it, in the name way as if the plaintiff had not
been bankrupt ; and that the suit should be received ac-
cordingly. The plaintiff had been adjudicated • bankrupt
slue the decree wan made.
Mr. Berme, C. ; Mr. Greene, Q.C. ; Mr. Kerslake,
Q.C. ; and Mr. , appeared for the several parties.
The Vi r said that this motion was altogether
wrong. The defendant should have applied wider the
Chancery Practice Amendment Act, 1852, fie°. 52, for the
usual order in such cues as this, for Milting the accounts
and inquiries between the bankrupts' saignee
and she
defendant. By so doing, the defendant would have
avoided incurring • great deal of overact ; and would
have strictly followed the authorised procedure of the
court. As it was the motion must be refused ; but, inas-
much es the respondents bad filed some improper affidavits,
without costs. The supplemental order might, however,
be now made in the proper form.

COURT OF QUEEN'S BENCH.
Sittinp in Banco—(Bilos. the lord Chief Justiat snd
Justices Blackburn and Lush).

THE QOM V. EOREIL—THE LATE CABE OP ALLEGED
ItREABON.PELONT.
Mr. Coleridge, Q.C., with whom was Mr. W. P. Mac-
donald, applied, under the 19th and 20th Vie., chap. 16,
sec. 3, for a rule nisi to remove the trial of Burke for
treason-felony from Warwick to the Central Criminal
Court.
The Lord Chief Justice—You only mak for a rule nisi!
Mr. Coleridge—Yee. For a rule Dial to show cause why
a certiorari should not issue to remove the trial to Lon-
don. Your lordships judicially know nothing about the
charge against Burke, but I will assume you are suffi-
ciently aware that he has recently been committed.
Mr. Jostles Blackburn—For treason-felony. That 11
sufficient to make us aware whet the case is.
Mr. Coleridge—l move on an affidavit for a rule to show
cause why a certiorari should not issue to bring Burke
back to London for trial. The case was heard at consider-
able length by Sir Thos. Henry at Bow-street, and amongst
other puts of the case an important part was that Burke
was said to have been connected with the pur-
chase of firearms at Birmingham, which werrito have been
sent to Ireland to be used against the government. No
doubt that is one of a penes of overt acts which make up
the events for which he is to be tried. The
prisoner's counsel strongly urged before Sir Thomas
Henry that Burke should be committed for trial
at the Old Bailey, but it was opposed by
Mr. Gift/ad, Q.C., who appeared for the crown,
and who as strongly urged that it should take
place at Warwick, the overt act with referenos to the
purchase of fire arms having taken place at Birmingham.
And so far as I am aware Sir Thomas Henry, chiefly on
that ground, committed Burke for trial at Warwick, and
he had been accordingly taken to Warwick Castle. I have
no wish to say one word more then is material to the ques-
tion. The affidavit on which I now move states that it is
extremely desirable so far as Burke is concerned and for
the interests of justice that he should be tried in London,
and on the following three short grounds ; first, it is
stated that Warwickshire as we all know has recently been
rather conspicuous for religions bean and disturbances,
especially as connected with Irishmen and with persons
more or less supposed to be mixed up—
Mr. Justice Blackburn—But surely the charge against
Burke is in no way connected with Roman catholicism.
We are all aware that Fenianism, instead of being con-
nected with Mr. Murphy or the Banish church has in
fact been exoommunicated by the latter, if I.am not mis-
taken.
Mr. Coleridge—That may or may not be. At all events
there might be persons in Warwickshire unlike your lord-
ship, unable to discrimate between one Irishmanandanother
or between • Roman catholic Irishman or • Fenian Irish-
man. Whether Roman catholic or protestant, without
wishing to say anything disrespectful of anyone likely to
take part in the trial (if it takes place at Warwick)
they might not possess your lordship's education and
judicial mind, and it is not an unfair ob-
servation to make, that in • county which has been •
great deal distinguished of late for what might be called
Irish riots to at rte that it is • fair ground for Burke to
say that it is not for the interests of justice to he tried
where the jurors might come from that part of Warwick.
shire where this religious feeling had existed. The second
ground upon which the motion is made is this: Mr. Merit-
mustbenvisoner's attorney,is &London solicitor of large prac-
tics, and he states that he has been for months conducting
Barke's defence, and as such he is able to state that Burke
is almost entirely without funds ; and he further states
that it will be extremely difficult for him to con-
duct Burke's defence at Warwick instead of London.
Burke was arrested in London, all the pro-
ceedings had been taken in London, and she COD-
vpiracy if any was to • great extent in London, and it is
suggested that it is • harsh proceeding to take him from
London and try him in Warwickshire. The words of the
statute are in the I %nest possible form.
Mr. Justice Blackburn— The words appear to have been
purposely selected so es to give us as absolute a discretion
as possible.
Mr. Coleridge—That is so, and it is u much for the in-
terest of the prisoner as f a the prosecutor that the right
discharge of the criminal law should be vindicated.
The Lord Chief Justice—We must see there is some sub-
stantial justice connected with his interest to bring him
back. lon appeal to no from the magistrate who com-
mitted him to remove Burke from the jurisdiction be had
been committed to to that of the Central Criminal Court.
Mr. Coleridge—l do not complain in a sense that Sir I
Thomas Henry is wrong, or suggest anything of the sort,
because it was hardly en act of dbcretioe. Certain overt
acts were proved to have been committed, or spoken of as
having taken place in Warwickshire. and Sir Thomas
Henry bad done what anyone else would have done under
the circumstances. It is hardly an appeal against the dis-
cretion of the magistrate.
Mr. Justice Lash—You mention the name of Burke only.
Yon do not appear for anyone else!
Mr. Coleridge—No. Only for Burke.
Mr. Justice Lush—Are not two others committed with
him
Mr. Coleridge—No doubt there are, and lam informed
that Mr. Vitas:Les Stephen will make an applica'ion on
their behalf to the court.
The Lord Chief Justice—They might prefer to be tried
at Warwick. In that case it wit be • ground of objection
to your application.
Mr. Coleridge—Yes, if it should turn out so. It may
be the crown might have no objection to the removal of
the trial. I only apply for • rule Mai. It is surely • matter
for the consideration of the court—the position in which
Burke is placed with reference to his London so-
licitor. The third grouod upon which I move is
that Burke wishes to have • larger solution—
in fact, from the whole bar—than would be open to
him for his defence if he is confined tithe Midland Circuit.
It is not for me to say that the Midland Circuit has not
more than enough members of the bar belonging to it from
which Burke might select an advocate ; but be wishes to
be unfettered in his selection in a matter of so mach