Star.
London, England, 1822-02-04 00:00:00

COURT OF KING'S URNCH.

ILLSEK V. SMITH.
The plaintiff in this case was plaintiff in error,
having been defendant in the Court below, where the
action was brought against him by Smith, for having
maliciously obtained and used a search warrant, to
seach his (Smith's) premises for stolen property, and
having procured the imprisonment of his person.—
The Jury found a verdict for the plaintiff in that case,
with damages.
Mr. CHITTY, on behalf of the plaintiff in error,
now applied io the Court for an arrest of judgment,
on two grounds—the first of which was, that the form
of action was wrong, inasmuch as it was an action on
the case, whereas it ought to have been an action of
trespass ; and, secondly, that the Magistrate's war-
rant had been issued without probable cause being
assigned by Ellsee in his information, he having only
stateJ; that he had reason to. suspect and believe that
several trees had been stolen from his Majesty's forest
of Hainault, and that the same had been conveyed to
the premises of the said John Smith, at Chigsvell.
The Craze JUSTICE—Proceed, Mr. 'Chitty; the'
declaration of the plaintiff at the trial goes on to
state, that the Magistrate genanted a warrant, and di-
rected the plaintiff's premties to be searched..
Mr. CHITTY resumed—Yes,- my. Lord ; and fur-
ther, that the constable proceeded to certain places
near the premises of the said John Smith, when cer.
tain pieces of timber lying near his said premises were
pointed out, which the constable n seized and carried
away ; but the decimation did not go en to state, that
these pieces of wood were the property of Ellsee.
,Mr. Justice BA VLEY said, it had been repeatedly
laid down, that if part of the declaration applied. it
was sufficient, though other parts did not; and here
the plaintiff below had declared for the injury his
character had sustained, and the imprisonment of his
person for twenty-four hours.
Mr. CHITTY, however, submitted, that in this case''
the judgment should be arrested. It had been laid
down in Lord Coke's Report, page 34., in the case of
I'later v. Vaughan, which was an action for breaking
the plaintiff's close, and taking away a quantity of
fish, without describing their number or nature, that
a description of the property was necessary : here was
no such description ; and upon this point, he con-
tended, he was entitled to an arrest of judgment.
His second point was, that the Magistrate could not
legally issue his search warrant, without there was a I
positive oath, on the part of the informant, that his
property had been stolen. In the case of the cele-
brated John Wilkes, as reported in 2d Wilson, page
291, the Court of Common Pleas had, in giving their
judgment, declared unanimously, in taking a general
view of the question, that to justify a Magistrate in
issuing a search warrant, there must be a positive
oath of the person on whose information the warrant
was granted, of his property having been stolen :
there was no such oath in the present case; the in-
formation only stateJ, that Ellsee had reason to sus-
pect and believe trees had been stolen from the
Kiniz's Forest, and conveyed to Smith's premises. He
had also another ground of objection, that was, that
the declaration did not allege the imprisonment to have
taken place, under the colour of the said warrant.
The CHIEF JUSTICE was decidedly of opinion, the
form of action here was right—an action on the case,
and not of trespass, being the proper form of action.
As to the other objection, that the warrant had been
granted on itnproper information, and, therefore, that
the imprisonment originated in the improper conduct
of the Magistrate, and not, as alleged, in the mali-
ciously obtaining and using the warrant by Ellsee,
his Lordship was as clearly of opinion, that, on a
party swearing he had reason to suspect his property
was stolen and conveyed to the premises of a certain
individual, the Magistrate was fully justified in grant-
ing a warrant, and ordering the property and persons
in whose possession it might be found, to be brought
before him. A person might conscientiously swear
he had reason to suspect and believe his property was
stolen, although he could not, with a safe conscience,
swear positively. This might frequently, indeed, be
the case. As regarded the loss of a horse from a
field, [or instance, a man might have very good rea-
son to suspect the animal had been stolen and con-
veyed to a certain place; but he might demur to
swearing positively to that fact—the hong might have
accidentally left the field. The same observation
would apply to various other property. In his Lord-
ship's opinion, the declaration was very well drawn,
and fully sufficient to support the judgment below.
The rest of the Court were of the same opinion,
and the verdict was ordered to be affirmed. The ap-
plication in arrest of judgment was, tuerefore, refused.
Mr. WA LiORD observed, the Court were not, per-
haps, aware that the declaration against which his
Learned Friend (Mr. Chitty) had now so ably argued,
he was himself the drawer of—( Laughter).

RADFORD V. BIRLEY.

Mr. EVA NS moved to have this Rule made absolute.

Mr. LITTI.FDALE said, the Court had expressed a
wish that all these cases should come on at the same.
time; and a Learned Friend of his, concerned in
some of them, was at present absent.
The CMS, JUSTICIL-4t Is desirably we should have all these
cases before us at une time.

Mr. F.vszts.—Will your Lordship be pleased to Dante a day?
The CHAU Juslice.--Me will take them at as early a day
as possible.
Mr. EVANS.—Your Lordships will see that delay is very incon-
•enient to us. We are anxious to bring these questions to trial.
Mr. Justice Ray tsr.—That you can do, if you are beard any
day in the present Term.
Mr. Eraxs.—Your Lordships are aware that one of our
Rules is for a reference to the Master?

The Corer Ju..vicc.—The Court will take care not to delay
you unnecessarily, Mr. Evans; but it is not convenient to hear
you now. We wish it to be brought on when the Court is full.

PRIVILEGIL.-JANUARY 31.

Mr. Hata made application to the Court to order that Dr.
Batten. who was Laken in execution, be discharged, on the
ground that he wa% privileged from arrest, he being one of the
Gentlemen of the King's Privy Chamber. The Learned CoUll
eel quoted ieveral in which the King's domestics bad been
discharged by the ('outs.

Mr. Justice Ihruir —ls that an office which can be executed
by Deputy ?
Mr. Dura—ft is not, my Lord.
Mr. Justice Besr—it c.nuot, for this reason—there M nothing
fora Deputy to do.
Mr. hose—lt certainly does not appear, from the alfittavit,
tip' Dr. Batten ever did Any ditty except Walking in the proem.
stun on the day of the Coronation, but I submit that liability Is
ac,uc is sufficient to entitle Dr. Batten to a discharge.
Mr.Justioe 13Avt.zr was of opinion that a mama holding a
Itituution without fees, similar to that held hy-Ur. Ilattenecasild
not naake.this application, but the . King might, if he philaal

lame a writ of privilege. He thought unless the Coast Wet
satisfied by affidavit that the appliegn had real duties to performs
the non-appearance of which would diminish the dignity of the
Crown, it would be outrageous to grant what was prayed foe
Mr. Justice Bevr—ff it appeared from the affidavit that Dr.
Batten had some specific duty to perform. ineh-as sleeping near
the King's chamber, the Court would, withoit the Kings issuing
a writ of privilege; accede to the application ; bat in the present
case there was no ground for such an application, as it appeared
from the affidavit of Di. Batten, that althobgh be bad been ap-
pointed for many years, he had never been called upon to do say
duty, except th# arduous one of eating a Coronation dinner !
FEBRUARY 1.
This day) Mr. Hots renewed his application on bebjf of Dr.
Batten. the former application was nude, the Judges
required proof that Dr. Batten performed services which brought
him within the description of the Kings servants, and in default
of that proof they refused to discharge him. His affidavit in
this instance stated, that be had been sonnuotted.to attend the
late Coronation. and that he actually walked in the procession
after the Judges. This was all the service he had ever done,
and the Court held that he was not entitled to the privilege he
applied for. If the extraordinary service of eating a Coronation
dinner could entitle him to protection against arrest, all the
Knights of the Bath might claim it.—Discharge refused.