The Sun.
London, England, 1854-01-20 00:00:00

THE QUEEN V. WOOD.-CERTIORARI.

It this case a rule nisi had been obtained for a certio-
rari to remove into this court an order of a magistrate to
execute a warrant of a distress upon the goods of George
Stanley, dated Ist of June, 1853, to enforce the pay-
ment of 221., the arrears of a highway rate with the costs.
The Court of Quarter Sessions of Staffordshire had upon
appeal allowed the rule against Stanley, and it was to
enforce this order that the defendant had issued his war-
rant.

Mr. Pashley now showed cause against the rule, on
the ground that the proper remedy against the magis-
trate was by an action of trespass for an unlawful dis-
tress, and that a warrant of this description was not re-
moveable by certiorari.
Mr. Scotland, in support of the rule, contended that
no action would lie against a magistrate for any proceed-
ings which had not first been quashed either on appeal
or by certiorari, under the 11th or 12th Vict., c. 44,
sec. 2.

Lord Campbell was of opinion that there was sufficient
ground for questioning the validity of the warrant, and
therefore the certiorari must go, and they would consi-
der hereafter whether the warrant was valid or invalid.
Mr. Pashley would not then be exclnded from arguing
that a certiorari would not lie. The important ques-
tion would be, whether the order unquashed would be
answer to an action against a magistrate.
Rule absolute for a certiorari.
EX PARTE LATHOM.-CERTIORARI.-THE RECENT COLLI-
SION ON THE EASTERN COUNTIES RAILWAY.
Mr. Palmer moved for a certiorari directed to Mr.
Crisp, commanding him, as the coroner for the county
of Norfolk, to return to this court the depositions taken
by him upon an inquisition on the bodies of three per-
sons, named Hampton, Stevenson, and Smith, at a sta-
tion on the Eastern Counties Railway, on the 7th inst.;
and also for a rule nisi to admit to bail one John Lothom,
against whom the coroner's inquest had returned a ver-
dict of manslaughter. The case arose out of the recent
collision on the Eastern Counties Railway.
Lord Campbell asked what was imputed to the de-
fendant ?
Mr. Palmer said it was carelessness in driving on to a
line on which he ought not to have driven.
Mr. Justice Coleridge said the application ought to
have been made at chambers.
Lord Campbell said it must be understood that an ap-
plication of this kind could and ought to be made to a
judge at chambers ; but in this instance, for the sake of
the liberty of the subject, the court would grant a rule,
cause to be shown at chambers.
Rule nisi.
THE QUEEN V. MYERS.-CERTIORARI.-ALLEGED MAN-
SLAUGHTER.
Mr. Huddlestone moved for a rule for a certiorar to
bring up the depositions in the case, and to admit the
prisoner to bail. The learned counsel said he had
already applied to Mr. Justice Erle at chambers, when
the learned judge had given him leave to apply to the
full court. The defendant on whose behalf he applied,
had been committed by the magistrates for a burglary,
which it was alleged lie had committed at Leighton
Buzzard, in November last, when property was stolen to
the value of 8001. from the shop of a watchmaker and
jeweller. The only point against the defendant was that
a short time after the burglary had been committed he
had offered some of the property which had been
stolen for sale, but he explained this circumstance
by stating that he had offered the property to a
tradesman to whom he was well known, and had re-
fused to take less that 71. the Nr market price for
it. The defendant also stated that he would be able to
call three respectable persons who could prove that he
had obtained possession of the property in an open and
proper manner.
Mr. Justice Erle said that when there was a proba-
bility of conviction, and the offence was transportable,
he thought it his duty always to refuse bail.
Lord Campbell asked if these three respectable per-
sons hid made an affidavit.
Mr. Huddleston replied that they had not. The affi-
davit on which he made the application set forth that
the defendant was subject to illness, which would be
much aggravated by confinement.
Mr. Justice Erle—You ought to mention to the court
that that illness is indigestion. (Laughter.)
The court refused to grant the rule.
(Before Vice-Chancellor Kindersley.)
WELLESLEY V. WELLESLEY:-MORNINGTON V. MORNING-
TON.---PRACTICE.
A. motion was made in this case for liberty to enrol a
decree, notwithstanding the time fixed by the orders of
August, 1852, had expired. By these orders power was
reserved to the court to extend the time for enrolment
under special circumstances.
Mr. Freehng, in support of the application, said that
a sale had taken place, under the Incumbered Estate
Act, of Lord Mornington's Irish estates, and that the
object of getting the decree enrolled was, that it might
have priority as a charge upon those estates. There
appearing to be no opposition,
The Vice-Chancellor made the order.
(Before Vice-Chancellor Sir John Stuart.)
IN RE THE NORTHERN AND SOUTHERN CONNECTING
RAILWAY COMPANY-IN RE MERCER.
Mr. Mercer having been applied to to admit his signa-
ture to a deed, had declined to make the admission, upon
which a summons, granted by the Master under the
63d section of the Winding-up Act, 1848, requiring Mr.
Mercer to appear and give evidence before him, was
served on Mr. Mercer personally. That gentleman
made default in obeying the summons ; the default was
certified by the Master.
Mr. Roxburgh now moved that Mr. Mercer might be
committed to the Queen's Bench Prison, according to
the provisions of the 63d section, upon notice given to
Mr. Mercer. He admitted that no travelling expenses
had been tendered to Mr. Mercer. The 63d section
authorised the Master " to summon before him any per-
son whether a contributory of such company or not,"
and to examine every such person, and then concludes
with enacting, as the penalty of disobedienne, committal
to the Queen's Prison. The provision is general ; but
section 64 provides that every person who shall be sum-
moned before the Master "as a witness sh;ll be entitled
to such costs and charges as are by law allowed 'to wit-
nesses," but it proceeds to enact that " where any per-
son who at the time of the order absolute was a contri-
butory of such company shall be summoned as aforesaid,
every such person shall have such costs and charges only
(if any) as the Master, in his discretion, shall think fit ;
and the section concludes with the following general
proviso : "But in all such cases the Master may sus-
pend the payment of such costs until such time as he
shall think reasonable." Mr. Mercer having been slim-
moned as a contributory, was not entitled to have any
costs tendered to him, and he is liable to be committed.
Mr. Daniel and Mr. Hetherington, for Mr. Mercer,
were not called on.
The Vice-Chancellor said the question was one of
great importance, because on the one hand his decision
might throw on the official manager the burthen of ten-
dering his expenses to the parties summoned before the
Master, whilst, on the other hand, the liberty of the in-
dividual was endangered. The 64th section related first
to the case of a mere witness, and, secondly, to that of
a contributory, or alleged contributory. Mr. Roxburgh's
contention was that every alleged contributory came
within the second branch of the clause, but he was of
opinion that until liability as a contributory had been
determined the individual summoned was in the more
favourable situation of being a witness, and when a wit-
ness lived at a distance, and was required to undertake
a journey, his travelling expenses must be tendered to
him with the subpoena, or he could not be compelled to
attend. The other costs and charges of a witness were
not given to him until afterwards, and the court must
hold that the words costs and charges in she latter part
of the section included only such costs and charges as
the witness would be entitled to after he had attended
in that character. In the present case an individual had
been summoned as a contributory, and had refused to
attend, and the question now raised was not as to what
costs or charges he is to be entitled to, but whether a
contributory contending that he was only a witness was
entitled to have his travelling expenses tendered to him.
His Honour thought Mr. Mercer was entitled to have
such expenses tendered to him. The motion must be
refused, and the costs of Mr. Mercer and of the official
manager be paid out of the estate.
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