The Sun.
London, England, 1840-11-23 00:00:00

QUEEN'SiBENCH-(THIS DAY.)

THE QUEEN V. WILLIAM BAINES —CHURCH- RATER•
(Continued from our First Edition.)
The ATTORNEY- GENERAL submitted that that would not
help the case at all. Evidence could not be taken in a
case to supply a defective allegation. The allegation was
that he had refused to pay a sum of 21. 55., to which he was
rated and assessed, it then went on to say that this was in a
suit of subtraction o f Church-rate, but that was only evi-
dence to support a defective allegation ; but if the allega-
tion was defective, no evidence whatever could support it.
There was a case in point in the 2d Salthill, p. 681. By
the Ist of William and Mary, it Lad been enacted,
that if any Clerk of the Peace should misdemean
himself in his office, the Court of Quarter Session should
have power to remove. Now in a case which occurred, a
certain A. D. was charged with misdemeaning himself, and
the Court of Quarter Session removed him, the writ stating
bat he had been charged with misdemeaning himself, and
that it appeared he had misdernearied himself in his office,
by extorting from one A. P. the sum of ss.
but the allegation was defective, and Holt, Chief Justice,
together with seven other of the Judges, determined that
the order of sessions must be quashed as insufficient,
inasmuch as it did not appear that the misdemean-
our charged related to his office. And in this in-
stance L. contended that the allegation ought to have
shown that it was for the non-payment of a sum of
money to which the defendant had been assessed for a
Church-rate for the repair of his parish church. The
case might be a cause of subtraction of Church-rate,
and yet not a Church-rate which he had been or-
dered to pay. It was not sufficient that their
Lordships should imagine what might probably be the
case ; they had no right to suppose anything, and the juris.
diction ought to have been expressly shown in the allege.
tion. He had two other objections to make
before he came to a conclusion of his argument, Ist
in the schedule of the Act 55, George 111., Chapter 31,
the form in: which the writ to the Sheriff was to
run was expressly given. Now where the liberty of the
subject was concerned, it was of the utmost importance
that all these forces should be du), observed. In the case
of Richards and Stuart, 10 Bingham, p ,;19, a defendant
had been held to bail on an action of trespass. He had
been arrested on a wan ant of capias for 12,0001. The
Court discharged the bail bond on his putting in a common
appearance, on the ground that the defendant bad been
held to bail in an action of trespass, instead of on premises.
Now, it was most fit that the rule laid down in that case
should be rigidly adhered to. Chief Justice Tyndal in
that case had said that it would be always more safe and con-
venient that writs should run in the very words directed
as then there could be no room to indulge in conjecture,
and no doubt could possibly arise on the subject, and in
i hat opinion Mr. Justice Bosanquet had concurred. Now
the words of the schedule were, " Whereas it aepeara that
of in your county, is manifestly contuma-
cious," &c. Now the writ in this instance was not in the
words of the statute. It stated, " Whereas one William
Baines, of the Market-place, in the borough of Leicester,
hatter and hosier, a parishioner and inhabitant of the
parish of St. Martin, in the said borough of Leicester, in
the county of Leicester, is manifestly oontutnacious,"
&c. Now it changed the language of the schedule ;
it did not say in your county, it said in the county of
Leicester. Now, it did not necessarily follow that the
whole of the borough of Leicester, iri the county of Leices-
.er, should be in his bailiwick. In the Ludlow case their
Lordships had granted a mandamus concerning the ad-
mission of Mr. Lechmere Charlton, as a burgess of the
borough of Ludlow, in the county of Salop, as residing
at Ledford, within the borough of Ludlow, in the county
of Salop. Now, although such was the designation of
the borough, yet Ludford was actually in the county of
Warwick, and therefore not within the jurisdiction of the
Sheriff of Salop, as not being within his bailiwick.
Mr. Justice COLERIDGE— Would not " in the county of
Leicester" be a sufficieut description ?
The ATTonsev-GENERAL--71 would ask why depart
from the words of the Act—the piece of the residence of
Baines, although within the borough of Leicester fright
not be within the county ? He would now come to the last
objection; by the statute of 53(.1 George 111. it was
enacted that the statute of 5 El iz buth should
be still applicable. Now by the sth Elizabeth
it was enacted teat the writ of excommunicatione cit-
piendo should be open, and so delivered to the Sheriff
in the presence of the Judge—this was a caution
It was to be open,
ethte Judges, in order that
they might have an opportunity of forming
an opinion as to
red
Now it did not appear
rit had been deliwaed
endto p rdontleicv
et liberty etrht
the presence
oftli e s bnjif.
tance the
proceeding.t
that r
ieng
tuhlaeriptyreosfentthiens
open at all. It had merely been delivered, but not open,
so that the Judges could have no i:pportunitv
jr f„rri'dng
any opinion as to its validity- Here a form 'interposed by
the law for the benefit of the subject ha,, riot been observed,•
and the proceedings connected wio
.0 the arest could not be
considered other than illegal
Losish; further He would not trouble their
p, out
4oultil submit that ;on the grounds