The Sun.
London, England, 1837-06-14 00:00:00

LAW INTELLIGENCE

COURT OF KING'S BENCH, JUNE 12.
THE KING V. THE CHURCHWARDENS OF BIRMINGHAM.
The ATTORNEY-GENERAL showed cause against a rule
for a mandamus to the defendants, calling on them to con-
vene a meeting of the vestry for the election of church-
wardens for the present year. The affidavits stated that
there had been a meeting in St. Martin's church for the
choke of churchwardens, when two-candidates, Brown and
Wingfield, appeared. Brown was declared elected, was
sworn in, and was in possession of the office. He sub-
mitted that this was a novel attempt to try the validity of
the election in a mandamus to elect another person. The
Learned Counsel quoted several cases, to show that a man-
damus would not lie in this case.
Mr. HILL, in support of the rule, said that there were
two questions in this case, first, whether this was a void
election, and, secondly, whether the applicants had chosen
the proper remedy. It was clearly a vo►d election, for in
the first place one of the poll clerks had solicited votes, and
. in the next the poll had been closed by the Rector without
giving notice. He then argued that a mandamus would
well lie in this case.
Lord DENMAN said that the mandamus was, under all
the circumstances, the only mode, as it appeared to hire,
for correcting that which had been improper.
The other Judges concurred.—Rule absoMte.

COURT OF COMMON PLEAS, JUNE 13.
GIDEON V. ROBINSON.
Mr. Sergeant WYLDE appeared for the plaintiff, and
Mr. Sergeant TALFOURD for the defendant.
This was an action for money had and received. The
plaintiff had taken' a house, No. 5, Pickering-place, St.
James's, hnd with a person named Sherwood and others,
had been indicted by one Jousseppe for keeping a gambling
house in that place. The present defendant, who had
acted in the character of an attorney, accompanied the po-
lice-officer to the house on the 16th of November last.
Upon their entrance they found Sherwood acting as one
of the dealers, with a bank before him, containing 1041.,
which he immed;ately pushed aside to some other person.
The police-officer drew forth a pistol, and ultimately the
money was secured, taken into the next room, where the
plaintiff was, and counted. The patties appeared at Marl-
borough-street Office the next day, and the money had
remained in the possession of the defendant, who was
now, by the present action, called on to restore it.
The defence consisted 'in disputing the right of the
plaintiff to maintain the action.
Mr. Justice VAUGHAN summed up and the Jury found
for the plaintiff—Damages, 104/. lls.
lIICKS V. THE DUKE OF BEAUFORT.
This was an action brought by the plaintiff, who was the
indorsee of a bill of exchange for 5001. which had been
accepted by the late Lord Foley, against the defendant,
who was the drawer. The bill, which had been drawn by
the defendant, payable at three months after date, and was
handed over to Lord Foley for his accommodation, became
due on the Bth of Dec., 1831, when it was dishonoured.
In May, 1832, payment was applied for, and the defendant
then admitted that if Lord Foley would not pay he must ;
but subsequently he objected to pay, on the ground that he
had not received duo notice of its dishonour. The de-
fendant had now set up the same ground on his pleas, which
likewise alleged that there had been no consideration given
for the bill.
Mr. Justice VAUGHAN charged the Jury, who, after a
fc.v minutes' consideration, returned a verdict for the de-
fendant.

DELEGAL V. nIGHLEY.
This was an action for malicious prosacution and libel,
brought by the plaintiff, against whom an accusation Lad
been preferred by the defendant before the Lord Mayor.
The defendant had published in a certain newspaper a re-
port of the proceedings taken on that charge, which was the
libel complained of. The charge brought again,t the plain-
tiff was, that he had fraudulently procured the signature of
a young man under 20, his apprentice, to two blank pieces
of pap! r, but it appearing had afterwards destroyed those
papers he was discharged. Mr. Ilobler, however, alter the
conclusion, of the proceedings, made some comment upon
tke impropriety of the plaintiff's conduct. The case had
been argued at length during the last Term_ upon a special
demurrer to the pleas.
The Cot 's this morning gave its judgment. Upon the
several pleas which had been demurred to, they must give
their judgment for the plaintiff.

SHERIFF'S COURT, RED LION-SQUARE,JuNE 13.

COURT OF EXCHEQUER, JUNE 12.
OAKES AND WIFE V. WOOD.
This was an action for assaulting the female plaintiff and
ill-treating, beating, and wounding her with a truncheon,
and pushing her down, whereby her thigh was broken. The
defendant pleaded, Ist, not guilty ; 2d, that he kept a
public house, in which she was making a great noise and
disturbance, and obstructing the business and annoying his
customers—that he asked her to leave, and upon her refu-
sal to do so he gently laid his hands upon her to remove
her, &c. The plaintiff replied de injuria, but did not new
assign. The cause came on to be tried before Mr. Justice
Bosanquct at the last assizes for the county of Chester,
when the jury found for the plaintiff, with 20/. damages. Mr.
Jervis had, in the course of last Term, obtained a rule to set
aside this verdict, on the ground of misdirection. Cause
having been shown the Court took time to consider. The
case excited much interest in the profession, as it involved a
very nice and complicated question of pleading, the decision
upon which in the Court was expected to clash with the
judgment of the House of Lords in the case of " Lucas
and Nockell," Ist Clarke and Finnelly, 7 Bligh and 10
Bingham, in affirmance of a previous judgment in the Ex-
chequer Chamber. In that case Mr. Baron Parke, then a
Judge of the King's Bench, alone and single-banded main-
tained his own opinion against the whole of the Judges in
England, to the number of 13, among whom were the late
Lord Tenterden and Mr. Baron Bailey, the present Lord
Wynford, Mr. Justice Littledale, &c. The latter Learned
Judge has since retracted his former opinion, and now
agrees with Mr. Baron Parke, who has at length succeeded
in carrying his point, and in virtually over-ruling, or at least
neutralizing, the effect of the decision of the House of
Lords and of the majority of the Judges in Lucas and
Rockell. The case of Mills and Barber was, it will be re-
collected, an example of similar perseverance and similar
success.
The judgment of the Court in the present case was now
declared by
Mr. Baron PAaKE—This was an action of trespass for
assaulting plaintiff's wife, in which the declaration contained
a distinct allegation of ill-treating and also of wounding the
wife with a truncheon, and pushing her on the ground, so
that her leg was broken. There were two sorts of pleas—
first, not guilty ; secondly, nwlliler Mania imposuit, which
said nothing of the wounding and pushing on the ground,
but justified the ill-treating and beating. To this there was
the general replication de injuria, but no new assignment.
It is clear that this plea does not attempt to justify either
the blows with the bludgeon, or the thrusting the female
plaintiff down with it. Consequently, if these facts were
proved to the satisfaction of the jury the plaintiff was en-
titled to damages for them on the plea of not guilty. Con-
sequently, supposing the Learned Judge to have been
wrong id his direction to the -jury, and that it was not
competent upon the issue of de injuria, &c., to inquire
into the motive or intention with which the violence was
inflicted by the defendant, and that, therefore, the special
plea ought to have been for the defendant, still the plaintiff
is entitled to his verdict, and the damages, on the plea of
not guilty ; and if the plaintiff will consent to allow the ver-
dict to be entered on the special plea for the defendant no
new trial ought to be granted. We cannot help thinking
that the Learned Judge was not right in the opinion he
expressed. Before the case of Lucas and Ncakell, there
could have been no doubt but that, under the general tra-
verse, the only question to be tried would have been whe-
ther the defendant was authorised to lay his hands upon
and remove the plaintiff from his house—that is, whether
the house was the defendant's--whether (if it were a public-
house) she was behaving herself in the manner described by
the plea ; was requested to depart, and refused. The de-
fendant's motive for using force to turn her out, whether it
was from a previous feeling of hostility, or from a sudden
transport of passion excited by the blow of the husband,
could not, have been made the subject of inquiry, If more
than necessary violence had been used on that occasion, it
ought to have been the subject of a special replication, and
would have made the defendant a trespasser, ab initio. The
whole difficulty as to the law upon the question arises from
the case of Lucas and Nockell, by the decision of which we
are bound. And if that case had established the general
proposition that the motive and intention with which an
authority given by law was exercised, could have been in-
quired into under the general replication de injuria,
we must have held that such course must be pursued in all
cases, though it might be at variance with the supposed
rules of law existing before. But we do not find any such
general proposition established either by the opinion of the
majority of the Judges, or the judgment of the House of
Lords. The case of Lucas and Nockell cannot, therefore,
be considered as an authority for the general proposition,
that motive and intention can be the object of inquiry on
the general traverse. We, therefore, think that the rule
must be discharged on the terms before mentioned, but that
neither party ought to have the costs of the present rule,
each having succeeded in his application. The costs of
the case will, of course, follow the finding of the issue.—
Rule discharged.

LIBEL.-MAGINN IL COX.
Mr. Sergeant TALYouao said that the plaintiff in this
case was Dr. Maine, who appeared before them to sue
compensation in damages for a libel which had inflicted se-
rious injury upon his -character. The defendant was the
printer of the Metropolitan Conservative Journal, and the
libel of ‘vhich Dr. Maginn had to complain appeared in