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1834.

REX

บ.

HOLLOWAY.

intended to provoke him to fight a duel. He accordingly applied to the magistrates there, and they required the defendant to enter into his recognizance in 5007., and to obtain two sufficient sureties in 2501. each, to keep the peace for two years towards Mr. Seymour, and all others of his Majesty's subjects. The defendant, not being prepared with the two sureties, remained in custody until the time of the assizes, when he was tried on an indictment for sending the letter in question, found guilty, and fined a shilling. Still, however, as he had been unable to procure the two sureties required, he was detained in custody. He was of course willing to enter into his own recognizance for the 500l., but he was unable to procure the sureties for the amount required. To keep him in prison until he should procure sureties, which it was impossible for him to procure, was in fact the same as condemning him to imprisonment for two years; while the offence, which gave rise to this proceeding, was only punished with a fine of one shilling. The present application, therefore, was to remove the proceedings into this Court, in order that the amount of the sureties required to be given by the defendant might be reduced. Security to a smaller amount, he might, perhaps, be able to find; but it was utterly impossible for him to find it to the amount insisted on by the magistrates.

TAUNTON, J., after having consulted the Master of the Crown Office (Mr. Robinson), said, that the present was a perfectly unprecedented application. If the proceedings were before the Court, there seemed no power to reduce the amount of the security required by the magistrates; they were the conservators of the peace, and the amount of the security which the defendant was to find was in their discretion. The Court could not interfere to control that discretion.

Rule refused.

1834.

Ex parte FENN.

MR. FENN (in person) applied for a rule to shew cause why an attachment should not issue against a certain attorney for misconduct, which the affidavit on which the motion was made imputed to him.

An attachment

for misconduct

cannot be moved for by a complainant in person, but the motion must be made by a gen

bar.

Lord DENMAN, C. J.-An application for an attach- tleman at the ment is in the nature of a criminal information, and the Court always requires that such a motion should be made by a gentleman at the bar, in order that it may have the sanction of that gentleman's name for the application. To you, therefore, who apply in person, the Court cannot grant a rule for an attachment.

Rule refused (a).

(a) See Ex parte Pitt, ante, p. 439.

Trinity Term.

IN THE FOURTH YEAR OF THE REIGN OF WILL. IV.

FRITH V. Lord DONEGAL.

ERLE moved that the service of the writ of summons, issued in this case, should be good service, if left at the residence of a Mr. Mayland, the late agent of the noble defendant. The action was for the price of certain shoes delivered on his lordship's account at the house of the agent. Various applications had been made to his lordship by letter, he being now in Ireland. To these no answers were returned. Attempts had also been made to find him at the agent's, but without success. The Statute of Limitations was about to operate, and the present sum

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1834.

FRITH

v.

DONEGAL.

mons had been issued for the purpose of saving it. The object of the present application therefore was, that the service at the agent's house might be good service, in order that the plaintiff might proceed without having his remedy injured by operation of the statute.

PATTESON, J.-It does not appear that there is any precedent for such a mode of service as that which is here sought to be adopted. As the object of issuing the process is to save the Statute of Limitations, and you cannot find the defendant's residence, you may adopt the course pointed out by s. 10 of 2 & 3 Will 4, c. 39 (a). That will answer the purpose of the plaintiff, to prevent his being deprived of his remedy.

(a) See 3 Dowl. Statutes, 151.

Rule refused.

A defendant

cited in the Ec

clesiastical

Court must ap

pear before he
can apply for
a prohibition.

Ex parte LAW.

WIGHTMAN moved for a rule to shew cause why a writ of prohibition should not issue to the Ecclesiastical Court, requiring it to cease from entertaining a certain suit proceeding in it, for the establishment of a will, on the ground that a question of law would arise in the course of the inquiry. The will had been prepared by Mr. Law, who was an attorney, and had not been paid for; he was also entitled to other money for costs out of the testator's estate. On the will, which was in his possession, he had consequently a lien. Of that claim the Ecclesiastical Court would take no notice; but would at once proceed by citation, and compel him to deliver it up. He would then be deprived of the right which at law he possessed. Mr. Law had not at present appeared.

PATTESON, J.-I do not know at present that the Court

will not allow his claim of lien, as he has not appeared. It is his business to appear, and then, if he does, and the Ecclesiastical Court will not take notice of his claim, the Court may interfere. He is at present too early in his application.

Rule refused.

1834.

Ex parte

LAW.

REX v. PASMAN and Others.

(Before the four Judges.)

has a right to

remove his indictment at any time before

trial, and the

Court has no

jurisdiction over the costs conse

quent on exer

cising that

right.

V. LEE moved for a rule to shew cause why the prose- The prosecutor cutor, Whalley, should not pay the costs of the defendants' preparation for their trial at the Middlesex Sessions, under these circumstances:-It was an indictment against the defendants for a conspiracy to strike Whalley, who was an attorney, off the roll. The bill was found at the Middlesex Sessions, and regular notice of trial given by the defendants. At the day of trial, just before the case was called on, a certiorari was produced for the removal of the indictment. Most of the defendants' witnesses were brought from the country, and, consequently, a very great and useless expense was incurred in preparing for the trial at the Middlesex Sessions. This expense was rendered useless by the vexatious proceedings of the prosecutor, and, therefore, he ought to be compelled to reimburse the defendants. A rule nisi was accordingly granted, and against that rule

Sir James Scarlett and J. Jervis shewed cause, and contended, that the prosecutor had a right to remove his indictment, by certiorari, at any time before trial. If any expenses were caused to the defendants in consequence of the exercise of that right, the Court had no authority to compel the prosecutor to reimburse them,

VOL. 11.

NN

D. P. C.

1834.

REX

v.

PASMAN.

V. Lee, in support of the rule, urged the great hardship inflicted on the defendants, by the harassing proceedings of the prosecutor, and cited Jones v. Davies and Others (a). There, a certiorari issued to remove a cause from the Court of Great Sessions in Wales, without any special ground for so doing, and without any notice to the opposite party, and was not delivered to the Judges of the Court till the day before the trial would, in course, have taken place, and after great expenses had been incurred; the Court quashed the certiorari, and directed a procedendo to issue, and ordered the party obtaining the certiorari to pay the opposite party the costs incurred by the latter in the Court below. Again, in The King v. Bartrum (b), upon an indictment for perjury, moved into the King's Bench by certiorari, it was decided, that, if the prosecutor give notice of trial to the defendant, and withdraw his record, without countermanding his notice in time, he shall pay costs to the defendant.

Lord DENMAN, C. J.-It appears to me, that, as the certiorari issued legally and regularly, the Court cannot interfere, to make the prosecutor pay any costs consequent on the issue of it.

Littledale, J.-In the former of the cases cited in support of this application, the certiorari was improperly issued on two grounds-first, that some special reason must in such cases be stated for issuing a certiorari into a Court of Great Sessions; and, secondly, that notice of it had not been given to the defendant. But here, the certiorari issued quite regularly, and, therefore, there can be no reason for visiting the prosecutor with costs consequent on a proceeding which was perfectly regular. The next case is not in point, because the objection arose at a

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