Star.
London, England, 1822-11-11 00:00:00

’had appoint an Mtoeadiiwtionsﬂtq
area-pensiblc for his aetsogll thinnest stem"
to inforétation md'lidieﬁ‘d Milt themr’stial' to ‘
put of the uiat‘was only mode vogue «defer. the
ceftiovars' t'isanive from [tendon- ~ v ‘
Mr. Justice Buy—Yes; but thisisuthe act. of an
attorney‘at’lgtncaster, without the knowledge of the ‘
persons .ga‘am whom you apply. and who may go-
tirely disapprov; of the PW. . .
Mr. Blindness—Certainly: [must in candour
admit that, for anything I know. they may feel ex-
ceedingly indignant at the malpractice of the person
whom they have em loyed; butyet. I contend that
they are responsible got hisactS—not morally respon-
sible, but responsible ¢l’gally for the ruinous eﬁ'ects
of his misconduct to en. He seems, on Wednes-
day, to have thought that there was no other moons
of delaying the me! till the oedionm’ should arrive,
’ercept by trumping up this story of the ahsencc'of a
material witness. . ’
\ The Loan Cum Josrtca—Dees your . atlidavit
state that the witness had arrived on the Thurs;
dai‘morning ? . 1
r..Baouorutst-No, my Lord: but it would be
very easy to prevent his arrival. Besides, there was
no second application made to put of the trial,whichl
it is possible, notwithstanding what passed on the
previous day, that the Learned Judge might have
‘granted. The aﬁdavits did not positively state when
the certioran' arrived, but the deponents were that,
to the best of their belief, it arrived on the Thurs-
day morning. '
Mr. Justice Barter—Your ground oi'_ application,
then, is. that the motion of Wednesday was not made
bona ﬁde on account ot the absence of .a material
Witness, but was a mere scontrivance to give time for
the ccrlioran' to arrive?
Mr. Justice Best-. That it was a mere pretence
without foundation ? s
Mr. Baouctum replied, that this was one of his
grounds shut another ground was, that the very pro-
ducing a certiorari, at such a period, was such an
abuse of the process of the Court to the oppression of
the defendant, as entitled him‘ to ask for his costs.—
Here the prosecutors gave notice of trial; they gave‘
no countermand; and therefore they brought them-‘
selves within the rule, which directed that in every‘
case of delay by a prosecutor, where there had been
no countermand in time, he shall save the defendant
harmless. It was scarcely necessary to refer to cases
on this point; but he might mention, that in the
King 0. Bartrum, 8 East. 270, where the prosecutor
removed the indictment by certiorars' without coun-
termand, Lord Ellenborough said, “that upon inquiry
it appeared to be the established practice of the Court,
if the prosecutor give notice of trial to the defendant,
and do not countermand in time, he must pay the
costs of the trial as in other cases; for otherwise de-
tcndants might be harassed and oppressed with un-
necessary expense." And in “ the king o. Haydon,”
8 Burrough's Reports, 1304, Lord Mansﬁeld, refer-
ring to numerous authetities, laid down a similar
role But the present case was one of much greater
hardship than these, for they were cases of removal
from Sessions, for which there might be abundant
reason ; but this was a mere removal from one Judge
and one side of the Court to another. ~
Mr. Justice BAYLRY inquired whether the ratio-
ran' issued from the Crown Ofﬁce at Lancaster, or

in London ? ‘
Mr. Bnouoruu said, that he was not aware the
05cc at Lancaster had the power to issue the writ.
Mr; Justice Bauer obserVed, that such a power
did exist, for he knew of one instance in which it
had been exerted.
The Loan Cum Jusrlcr asked Mr. Brougham
whether he had not better ascertain the fact before he
made his motion, as the Couit couid not interfere if
the writ were granted at Lancaster?
Mr. Bnouomm replied, that he had no doubt that
the cerliorari was obtained in London ; because, when
the writ was produced to the amazement of the Court,
he stated in the hearing of the attorney, Murray, as
part of the hardship, that the defendant would he
obligied to come up to London, and put in hail, and
won d have the expense of makin up the record.
‘ The Loan Cum Jonson—ﬁrm you were mis-
taken. When the prosecutor removes the indictment,
he must make up the record, the bail below are dis-
charged, and no hail above are required without a
fresh order. .

T'HUI-r:gin-tumult: said, that he only mentioned this
to ptove that no denial was men to the statement
that the writ was sued out in , , don. _ . _ -

The Lotto Cut" Jusrtcs said, that the only doubt
of the Court would be as to the extent of the Rule...—
Would not the ordinary rule for the costs of not pro-
ceedin to trial pursuant. to notice sufﬁce ? How
could Ste Court require Sir John Sewell and Mr. At-
kins to answer the mattets in the aﬂidgvit ? _

Mr. BnouonAM.—No, my Lord; that part of the
Rule applies only to Murray.
The Loan Cum Jus'rlol, after consulting with
the other Judges, said, you may take a Rule, calling
on the parties you have named to shew cause why the
certioran' should not be quashed, and a procedendo
issue, and why they should not pay thecosts incurred by
the defendant at the Assizes, and the costs of the ap
plication; but not requiring them to answer the mat-
ter: in the aﬂidavits. ~
Mr. BBOUOIAIL—Not as to Murray, my Lord 9
The Low Cum Juarez—No; 'we think not.
‘This will answer all the defendant's purposes.
i Mr. Baouonau assented, and took his Rule.
' m: use 17'. unset-rm. _ _

Mr. C. F. Wmuam moved that the Master should
review his nation of costs in this case. It eras an
indictment preferred by Sir Thomas SW73!!!”
Champneys against the defendant, for attempting to
submit witnesses. which stood for trial at l e Lent
Assizes for the county of Somerset. When the day
of trial approached, Sir T. S. Champneys was at
Kingston ‘Assizes on another trial. where he was a
material witness, and an application was made to:
postpone the trial of this indictment in consequence
of his absence. The trial stood over till a late period
a: the day. when Sir Thomas not having arrived, the.
record was withdrawn, and soon after’Sir Thomas
came into Court, but found that he was too late.—
The defendant moved for his costs. which were taxed
by theMastel-lat 1561. Is. 4d. After this the special
circumstances of the case were brought before the
Court. and it was referred to the Master to inquire
ibether Sir Thomas had used due dili ehce in his
joamy to the Somerset. Assiaes: but 5.: Master
would anteater into this discussion at all, because