The Sun.
London, England, 1840-11-12 00:00:00

NOMINATION OF SHERIFFS.

of
ouncil
_ This being e of rii.artin, Privy C
kirtihl.llldth.in theCour
tmorrow ch of Exequer, for a theri se purpo of
siltst
e nation e Jdges for u the
era Ist, and judcrinjudgingofth theu excuses malldeg pto them
while on circuit.
}I
At half-past two o'clock. the Chancellor of the Ex-
e-luer. in his Robes of Office, took his seat at the head
vPthe Court; next him ant the President of the Council,
oerd Lord Chancellor, Lord Duncannon, Lard Denman,
Abinger, Lord Chief Jce Tindal.
Judger toot their seats accordmgusti to seniority. The other
There Were a few objections of the usual nature. Some
served the office previously, others pleaded poverty.
The Hon. G. C. Greville was Clerk of the Couwil.
Co4l.lem•
-kANCERY COURT (THIS DAY.)

The L CUNT V. Sinzr4T—JUDGIJENT.
tilt, °RD CIiiNQSI.4OII gave judgment this morning in
fop,.,c4let in which the bill had been filed by the plaintiff
purpos2 of having an agreement whieh he had ex-
-4,otd, giving up two-thirds of his interest in a term of
11,471, years upon an estate. The plaintiff represented
th; 'lle had been induced to enter into the agreement upon
th-taavice of a person named Snell, who had stated to him
(itia-,;11° I,ad only one-third interest in the property in
toeti,''''". His Lordship thought the plaintiff was entitled
ge °rder which he asked for—the delivering up of the
Ite,trient to be cancelled. He should, therefore, make
aecrce and the defendant must pay the costs.

WOEMALD V. MACKINTOSH.
'qv -.°aDSHIP also gave judgment in this case, which
sil,:rigued before the Court some time since, upon an
loi`,T4' from the judgment of the Master of the Rolls, al-
ag certain exceptions to the Master's report. The
tar li°ll raised upon the exceptions was whether the Mas-
Part:l4l done right in admitting certain evidence, the
%hi 'thoPiing it being interested in the case. His Lord-
ught the Master right in receiving the evidence,
hte ordered the exceptions taken to his report, which had
al:lowed by the Master of the Rolls, to be overruled.
His WILLIAMSON V. BLAIN.
tiIeb'4ORDSIIIP also gave judgment in this case, in which
s' was filed by the plaintiff for the purpose of obtain-
ettAttl:'e specific performance of an agreement to sell an
kt; 'n Cumberland for the sum of 3,0001. The defend-
-1114-thilet ted that he was intoxicated at the time of execut-
tyit:e a ?reeMeHl, and therefore that be was not bound
the deer it's Lordship thought that the defence set up
speciPerfic
t'eorrn
atioe ot the agreement, with costs.
"Tosx.Er-ouNBRAL V. THE QORPORATION OF BRIDGE-
The : - WATLR.

pet e" was filed in this case by the Attorney-
E1k4.131,,, complaining that the Corporation of Bridgewatar
°een empowered to receive certain tolls, with the
the °I building and keeping in repair a bridge, had, sinceld
the
I,ll:s!ini* of the Municipal Corporations Act, app
'lO LPlsbf ands arising from the tolls to their own mum
tltt,,,Nrposeswhich the information asserted was a breach
The; principal question for the decision of the
'01:111-‘ was whether the tolls were given to the Corporation
144: Purpose of repairing the bridge, in which case the
only; must be applied to the repair of the bridge, and that
toe. or whether they had been given to them upon the.
Whi,,Lti°,, that they should keep the bridge in repair, in
gee-e" ease the surplus funds would be applicable to the
kr4l Purposes of the Corpora ion.
kr, 'll7. appeared in support of the information, ar.d
and Mr. J. Russell on behalf of the Cur-
n. hu).
c,c,4—Orcr) CHANCELLOR doubted very much whether
good der asked by the Attorney-General would do any
Clow He thought the best course to adopt would bc.. to
Rive h`ue ease to stand over for a few days in order to
Ittatter"e Attorney-General an cpportunity to consider the
tile 4 Lordship rose shortly before two o'clock to attend
Pr°rogation of Parliament.

-z-CHANCERY.-(THIS DAY.)

USBALDESTON V. BOWLEG AND ANCTIIER.
thi
litee s Case our readers will recollect that sometime
d
-eferid his Honour granted an injunction restraining the
from cants from proceeding to recover the sum of 9,000/.
the o,baldtston, on the ground that the notes for
tfe-41°Lint had been given by Mr. Osbaldeston in respect
Inge:tali' gambling transactis. Mr. Jacob, this morn-
-I,lPlied for the dissolutionon of that injunction, which
COURT, after hearing Counsel, refused to do.

QUEEN'S BENCH-(THIS DAY.)

(Sittings in Banco.)

THE QUEEN V. QUAIL.
The ATTORNEY-GENERAL had been instructed to show
'44
,11! against the rule obtained in this case for a quo war-
n the defendant to show by what autho-
rity 1:all calling
r claimedutoo be a Councillor of the borough of Li-
Vae 1/1°,,,l on the ground that he had not been legally elected,
'1:11 °:t• another candidate, Frances Shandy had a majority
ti.."3„aabla'''tes- The form of the rule wes in itself objec-
"ich tote 't did not follow the words of the statute,
else the er: to show by what authority he claimed to exer-
,thepurnncluee of Councillor. The application was not for
I:.,aYeef,ie of settling any general legal principle, but it.
mgavits
,„-,r a scrutiny. His first objection was that the af-
4ti di not show that the defendant had done any act
tient
town-Councillor, it was not, he apprehended, suffi.fied.
'Wit}, resat' that he had acted unless the act wasfsvpoetceis,
he
tillsteci,gkard to the second point of a scrutinyF
°Peni,„'"eir Lordships would not sanction t .c °principle of
Qntail a registry of several thousand votes, which would
the Croß,r,,e,,at xpense, and, in fact, delay the result until
al -ill during which the defendant was entitled to atchteares
nec'r tied passed away. It was alleged that
lt,'d bile" nati n )Of votes on the defendant s
that but even rferthsoat weore established it would be showo
111: rittrober of fictitious votes had been given for e
1144ehelia'adidates that Mr. Quail was, still in a majority.
vit
a been said about personation in Ireland, but he
B°lll,t° say it existed in that country also Monaad at thte
tltetli' Borough election it was carried
-o:3d
Irk,-,"'ENataN--Is that the first time you heard of it,
ThQ'rneY ?—( Laughter. )
The t:('arned Counsel having concluded his argument,
114 t er,,C•oitT said that upon one part of the case they did
14,1 -settain the slightest doubt namely, that the circ
14tleaae allidavgit having been made that the defendant
—`e,' as a Councillor vvas sufficient to establish
they
.qrai„ With regard to the other point of a scrutiny,
.
'4attid that the inconvenience would be great, but it
th he a still greater inconvenience to exclude the power
tQ hne Court
Queen's Bench. They had seen enough
tiar clhow necessary the superintendence of the Supe
Coour essary
's was over the bodies by whom the Tovvri
Ali°e'Ors were elected. The Court, however, must de--
r,:a,410g the course of striking names off the burgess
"1,11 ,gen the part was not previously called on to defendi
give ‘se. and they cyould not ascertain what answer he might
44 Such a proceeding would be most inconvenien
t,
)t°14°,414 bably lead to great injustice. The Cour
' itowe,r, take time to consider the whole question.
In th. THE QUEEN V. SMITHIES.
PrOse,hs case a rule had been obtained, calling upon the
TQtl„-ter to show cause why Charles Smithies, the de-
th—'`; should not be admitted to bail before two Justices
hi e t'eace there being no probab'e cause for charging
twith felony.
41;4% ToraLimsoN now appeared to show cause against
to ,I;_ule• The defendant had been charged with coming
I),tilao house of his father-in-law, Danie. Salt, and stab-
4. himwith sharp instrun.a.. There was no
stab-
pr "m
in orfourd on
tL. of any weapon being seen the hands .h.
vr" Person of the defendant, but the affidavits which
kiere now before the Court, distinctly stated that the felo-
°us act had been perpetrated.
After referring at some length to the affidavits,
The COURT said there was no ground for granting the
141;cation to bail the prisoner.
1115 Q EES V. TI'LL EASTERN COUNTIES RAILWAY COMPANY.
In this case a rule had been obtained, calling on the de-
V'tlants to show cause why a mandamus should not issuee
u'r,etod to them, and commanding them to make e n
is.tr!'all for certain damage done to the property of James
lee and
,others.
The ALEXANDER now showed
cause against the rule.
not egaestion was one of some importance, as the case did
Datarrie within the provisions of the Railway Act for ern-
Portg juries and assigning damages; and it was im•
Of dant also that the Company should have an opportunity
ra,r,elending themselves from the charge of having da-
111°tb :d Property which their railway did not at all touch.
vras was no description of the mode in which the damage
aria `°ne, or of the place where the property lay, and if
tai, ground of complaint existed, the proper remedy
t the Company was by action.
opinjoet stating the facts of the case, the Court was of
the deo, that the rule should be made absolute, reservingeto
orn.
do
the right to state their answer to the
plaint
When the return was made.

lIAIL COURT.-(THIS DAY.)

1411,„ (Before Mr. Justice COLERIDGE.)
IIJANDANIUS.
kATTER OP THE JUSTICES OF SUPPOLE.--
5rt:.1).,1,141..rt applied for a rule, calling on the Justices
istiiie 'out to show cause uhy a mandamus should not
or',,crnmanding them to hear a certain appeal against
13td 'TI. for the removal of a paer. It appeared that an.
tbeepr:ad been issued bv two Justices for the removal of
Treat'4" in question,'
'a
widow woman, from Ipswich to
,1 Yarmouth. This order had been appealed against.
15ee "earing tr, of the appeal had, from time to time,
v
- the j dela -Je., and when it at last came on the clerk.
14. (14tices objected to the hearing of it on the ground tatt,,it informal and the Justices, in consqucnce, re-
the inc ° bear it. The Learned Counsel contended that
Iver '"rrnality was of no consequence, and that the Justices
e,ib°4rid to hear the appeal.—Rule nisi granted.
1, litikry
hl r, V. REY. SIR HENRY RIVERS.—CERTIORARI.
toorkRSOORPF applied for a writ of certiorari to re.
ti, indictments found against the reverend. defendant 11,er '"fe limb sessions ir to this Court. The indictments
eiteer,'°r 4 libel alleged.
to be contained in certain
in
b." ,written by Ole Reverend Sir Henry Rivers,
Roe ""ich he said that if a certain person
hie certain evience in a certain cause,
.ho
let) Would bed under the necessity of showing that evi-
//beeth„°, be false. A very grave question arose as
it
"Li point of law, this was a libel; and therefore

was desirable that the cause should be tried before a Judge
of one of the Superior Courts.
Mr. Justice COLERIDGE said he knew the Recorder of
Bath to be a very able lawyer.
Mr. PETERSDOEFF said that a great prejulice existed
against the defendant in Bath, in the minds o! that class
from which Juries were commonly taken.
Mr. Justice COLERIDGE would read the affidavit, and
consider of his decision.

IN TUE MATTER OF TIIR CORPORATION OE BEDFORD.

iciANDAINiII.

Mr. Sergeant NIEREWETHER applied for a rule for a
mandamus,, calling upon the Corporation of Bedford to
proceed to the election of three Town Councillors for the
Western Ward. The tov,n of Bedford is divided into two
wards, the eastern and the western. The election for
Town Councillors was conducted regularly in the Eastern
Ward, on the last occasion but, in the Western Ward, the
Alderman and one Assessor only attended, whereas the
Act requires the attendance of the two Assessors. Therea-
son of this non-attendance was the absence of the other
A,,sessor from Bedford at tha time. Several of the bur-
gesses objected to this proceeding, but the Aldermen and
Asseasor proceeded to the election. The same objection
was then taken before the Mayor, who admitted its validity
and refused to declare the state of the poll, so that the
Western Ward was now unrepresented.
Mr. Justice COLERIDGE granted a rule absolute in the
first instance.

COMMON PLEAS-(THIS DAY.)

(Sittings in Banco.)
CASSIDY U. STUART.

Mr. Serge'nt SPANKIE, in this case, obtained a rule to
show cause why the Judge's order to set aside the outlawry
against the defendant should not be rescinded, on the
ground that the reason assigned, namely, that the defen-
dant (Mr. R. Stuart, M. P. for Stirling), was a Member
of Parliament, was insufficient, inasmuch as the privilege
of Parliament /vas available to Members only in protecting
them from arrest.

BOWLER V. WHITE.

Mr. Sergeant HALCOMBE applied to the Court for leave
to set down the trial in this case (which is an action for
false imprisonment), for the first sittings in next term
( Hilary 1841), on the ground that an important witness
had nut hitherto been reached.

Mr. Sergeant BOMPAS opposed the application.
The COURT ordered the cause to be put down peremp.
torily for trial in the sittings after this term. Further
postponement might, if necessary, be asked for.

DANIELL V. SEA DELL AND OTHERS.

Mr. Sergeant CHANNELL obtained a rule nisi for an at-
tachment against one of the defendants, for not having
paid the costs of an award.

HAY V. BUSU.

This was an action brought for assault and false impri-
sonment, the particulars of which have already been fully

given.
The Loan CHIEF JUSTICE, in giving judgment, said
—lt appears to me, that neither in the cases quoted,
nor in the circumstances of this case itself, can
such a justification as has been set up be allowed
by law. Now, there is no doubt that in a
civil action, a writ issued to the Sheriff against one person
would not warant the arrest of another person, although it
should be the one intended. In the case of Acquila Cole,
which appears in 3 Barnwell, 628, it was held to be no
justification. It was pleaded that Acquila Cole had been
usually called Richard Cole, in which name he was ar-
rested.
And it was further pleaded, that in the Court of
Common Pleas, a distringas was issued to the Sheriff, or-
dering him to distrain Richard Cole, meaning Acquila
Cole, by which it was assumed that there was an identity in
the name. But those pleas were not held to be a justification.
In a case which followed that, and is reported in " East's
Reports, 525, the Court held that the plea of justification
under those circumstances, would not be good, unless
it had been proved that the person arrested was known as
generally by the one name as by the other. Well, if this
is the law in civil actions, what is the difference with
respect to criminal cases ? If the writ will not justify ar-
rest in one case, why should the warrant of a Magistrate
justify it in the other, under the same circumstances. The
object of the warrant in the one case is the same
as in the other—namely, to identify by his name the indi-
vidual who is the subject matter of the process. In the
6th Term Reports, Justice Law shows that, in his mind,
no such difference as has been assumed in this case could
be made. He quoted the authority of Justice Foster, in
the same Reports, 612, in which be states that if a crimi-
nal process be defective in the form of it—if there be a
mistake in the name or description of the person against
whom it issues—or if the name of the officer he.vieg been in-
serted after the issuing of the process—if in such a case the
officer should be killed it would amount to no more than
manslaughter. Upon this case Lawrence observed that
the reason was, that under those circumstances the officer
was, in strict law, a trespasser. In the Ist Ryan and
Mudie's reserved eases, 389, there is the case of Wood. In
that, it was stated in the warrant that the process was is-
sued against " Wood, one of the sons of George
Wood, the elder, by whatever name he may be known."
The Judge there held that this was no warrant against
George Wood the younger, inasmuch as he was not named
in it. The warrant should give a particular authority against
the person intended. Now, in that very case, there was a
person named 'Brown who bad witnessed the whole tran-
saction out of which the process arose, and he pointed out
to the constable this George Wood as the person who com-
mitted the misdemeanour. I think therefore that the cases
I have stated show that there is no distinction to be made
between civil and criminal cases. But it has been argued
here that it would be a very dangerous thing if
constables were subject to this liability, and that
persons guilty of felony must be permitted to escape.
But I must say against that argument, that
it would be a very dangerous thing, if one man was to he
taken upon a warrant issued against another; and if the
constable, who is merely a ministerial officer, were to sit
as a judge upon the case committed to him for the exami-
nation of the process, and take it upon himself to say that
one man was intended although another was named. In-
deed in a case where the constable himself was aware that
the party was guilty of felony, he might, on finding the
individual within his jurisdiction, throw aside his
warrant, and act on his own responsibility, rather than al-
low the felon to escape. In that case the law protects
him. But there was no such justification in this case.
The statute has been referred to, as exempting constables
from liability in obeying the warrant of a elagis-
trate. But in this case the warrant of the Ma-
gistrate ordered the constable to arrest John Hay,
and he arrested Richard Hay. Certainly it can-
not be said that this was done in obedience to the
warrant. lam of opinion, therefore, that the verdict for
the plaintiff was well found, and that the rule should be
discharged. kr
Justices Bosanquet, Coltman, and Maule, gave their
judgment to the same effect, at considerable length, and
the rule was discharged.

PRICKER V. TOMLINSON'.
In this case the Under- Sheriff, reserved a point, under
the statute of frauds, that there had been no memorandum
or note of sale.
Mr. Sergeant TALFOURD obtained a rule nisi for a non-
suit, against whichiMr. Sergeant Gaselee now showed cause
upon affidavit that there was a note of sale, that is, an
entry in the books of the plaintiff, with knowledge of the
defendant's factor.