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Superior Courts: V. C. Stuart.-V. C. Wood.-Queen's Bench.

The Vice-Chancellor granted the application.

Bice-Chancellor Stuart.

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The Vice-Chancellor said, that although the course might be very inconvenient, yet it could not be held that what had taken place amounted to a waiver by the defendants of their right to demur within the time limited by the orders.

Tucker v. Hernamann. March 8; April 21, If the motion had originated with them, it

1855.

EXCEPTIONS TO CHIEF CLERK'S CERTIFICATE. ABANDONED MOTION.-COSTS.

Certain creditors in an administration suit gave notices of motion to vary the chief clerk's certificate, but afterwards abandoned the same: Held, that the plaintiff was entitled to tax his costs, and was not limited to the 40s. under the Order of 5th August, 1818, there being affidavits filed in support.

It appeared that certain creditors had given notices of motion to vary the chief clerk's | certificate in this administration suit, but that they had afterwards abandoned the same, and tendered the plaintiff 40s, each for costs, under the order of August 5, 1818, which provides, that "if a party gives notice of motion and does not move accordingly, he shall, when no affidavit is filed, pay to the other side 40s. costs, upon production of the notice of motion; but where an affidavit is filed by either party, the party giving such notice of motion and not moving, shall pay to the other side costs, to be taxed by the Master, unless the Court itself shall direct, upon the production of the notice of motion, what sum shall be paid for costs.”

Bacon and Schomberg for the plaintiff, contended, that he was entitled to taxed costs, as affidavits had been filed in support, and the application was in the nature of exceptions. Cairns for the creditors, contrà.

Cur, ad. vult.

The Vice-Chancellor, after consulting the other Judges said, that the plaintiff was entitled to his taxed costs of the several motions.

Vice-Chancellor Wood.

Sheppard v. Oxenford. April 24, 1855. DEMURRER TO BILL FOR WANT OF EQUITY,

AFTER MOTION FOR INJUNCTION AND AFFIDAVITS FILED.

On a motion for an injunction, the defendants filed affidavits in opposition: Held, that they had not thereby waived their right to demur to the bill for want of equity-such proceeding not being a step in the cause on their part.

THIS was a demurrer to this bill for want of equity, and which it appeared had been filed after a motion for an injunction had been granted.

might have been regarded as a step in the cause, but here they had in fact been brought into Court to defend themselves against an application by the defendant, and their having considered as a waiver of their rights. filed affidavits for such purpose, could not be

Court of Queen's Bench.

Regina v. Pratt. April 21, 1855.

INDICTMENT UNDER GAME ACT.-TRESPASS ON LAND. EVIDENCE.

An indictment under the 1 & 2 Wm. 4, c. 32, s. 30, charged the appellant with committing a trespass by being in the day time an certain land, the property of B., in search of game. It appeared he was out in the highway, which was between B.'s property, with a gun, and that his dog had run into B.'s close, and started a pheasant, which the appellant shot at: Held, that the evidence supported the conviction, which was affirmed.

On the trial of this indictment, charging the appellant with committing a trespass, by being in the day time on certain land, the property of George Bowyer, in search of game, it appeared that he carried a gun and was walking along the public highway with his dog, when the dog ran off the road into Mr. Bowyer's land, and started a pheasant, which the appellant had fired at in crossing the road.

By the 1 & 2 Wm. 4, c. 32, s. 30, it is encommit any trespass by entering or being, in acted, that "if any person whatsoever shall the day time, upon any land in search or pursuit of game," &c., "such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money not exceeding 21., as to the justice shall seem meet, together with the costs of the conviction."

Carrington and Lawrence in support of the conviction; Dowdeswell for the appellant.

The Court, after referring to the above section said, that the evidence was sufficient to support the charge, as he was bodily on the land of Mr. Bowyer by being on the highway, which clearly was his soil and freehold, notwithstanding the right of the public over it, he being the owner of the adjoining lands on both sides, and the conviction was accordingly

affirmed.

Company. April 23, 1855.

Rolt and Baggallay, for the plaintiff, took a Regina v. Shrewsbury and Hereford Railway preliminary objection on the ground that the defendants, by filing affidavits on the hearing of the motion against the injunction, had submitted to the equity of the bill, and waived their right to demur.

Daniel and Toller, contrà.

TAXATION

OF COSTS OF APPEAL TO SESSIONS AGAINST RATE BY CLERK OF THE PEACE.-WAIVER.

Where, on the taxation before the clerk of the

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Superior Courts: Queen's Bench.-Common Pleas.

peace of the costs of an appeal to the Ses- of Lord Mansfield, in Rex v. Wilkes, 4 Burr. sions against a rate by a railway com- 2,551.' pany, they had attended by their managing clerk: Held, that they could not take an objection, on the ground of the reference for taxation to the clerk of the peace being improper.

THIS was a motion for a rule nisi to quash the order made by the Herefordshire Sessions, allowing the costs of an appeal against a rate by the above railway company. It appeared that the costs were taxed by the clerk of the peace, and that the company's managing clerk

had attended the taxation.

Scotland in support, on the ground that the taxation was improperly delegated to the clerk

of the peace.

The Court said, that the company, by attending the taxation, were prevented from taking the objection, whether it was good or not, and the rule would therefore be refused.

The Court said, that it was quite irrespective of the merits of the case whether the place was beyond or within the jurisdiction, and the parties had the opportunity on the trial of taking the technical objection, but had not done so. The jury had found the defendants guilty of the offence, and it would be highly prejudicial to the interests of justice to grant the present application. But irrespective of the merits of this particular case, this Court had no jurisdiction to review the decision of the Attorney-General, where he had to exercise, and had exercised, his discretion in a judicial or quasi judicial office. If the Attorney-General had altogether refused to hear the application, this Court would grant a mandamus to compel such hearing, and if he had misconducted himself he was liable to be proceeded against in the proper quarter. As to the dictum cited, Lord Mansfield had himself said Sir James Burrows' reports were not al

Regina v. Newton and others. April 23, 1855. ways accurate, and it was very doubtful whe

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-JURISDICTION.-MANDAMUS.

Held, that this Court will not interfere with the decision of the Attorney-General on an application for his fiat for a writ of error on an indictment for a misdemeanor, where it appears he has exercised his discretion. Where the Attorney-General refuses to hear the application altogether, a mandamus will be granted to compel such hearing.

A technical objection to an indictment, on the ground that the offence charged to be within the jurisdiction of the Central Criminal Court, was not within such jurisdiction, overruled, where it had not been taken at the trial.

Semble, the dictum of Lord Mansfield in Rex v. Wilkes, 4 Burr. 2551, that" in a misdemeanor, if there be probable cause, it ought not to be denied this Court would order the Attorney-General to grant his fiat," is incorrectly reported.

THIS was a motion for a rule nisi on the Attorney-General to grant his fiat for a writ of error on this indictment at the Central Criminal Court charging the defendants with wounding with intent, &c., and on which they were found guilty of unlawfully wounding. The application to the Attorney-General for his fiat had been made on the ground that the indictment charged the offence to have been committed in the parish of Lambeth within the jurisdiction of the Central Criminal Court, whereas it was in the parish of Croydon and beyond the jurisdiction of the Court. The Attorney-General refused to grant his fiat, inasmuch as the error assigned alleged a fact in contradiction of the record.

H.J. Hodgson, in support, urged that the writ of error was ex debito justitiæ, citing the dictum

ther it had been uttered by Lord Mansfield. The rule would therefore be refused.

Court of Common Pleas.
Bennett v. Oriental and Peninsular Steam Na-
vigation Company. April 21, 1855.
BILL OF EXCEPTIONS. NON-SIGNATURE OF

JUDGE. NEW TRIAL.

Where a bill of exceptions was not signed in consequence of the Judge being unable to attend and settle it as intended, and he afterwards was unable through ill health to undertake the matter: Held, that the arrangement having failed through the fault of none of the parties, a rule would be made absolute for a new trial.

IT appeared in this action that it had been arranged for the defendants to be at liberty to tender a bill of exceptions after a motion for a new trial on the ground of misdirection had been disposed of, and that upon the rule obtained accordingly being discharged a bill of exceptions as settled by counsel was sent to Lord Truro, who presided at the trial, to seal, but that not approving of the form of the exceptions, his lordship had stated his intention to settle them. The matter had not been attended to in consequence of his lordship's numerous engagements, and it appeared his state of health now prevented his being troubled with the matter.

Petersdorff now moved for a new trial; Prentice showed cause in the first instance.

The Court said, that as the arrangement bad failed without fault on either side, it must be treated as inoperative, and the rule would therefore be made absolute for a new trial.

"In a misdemeanor, if there be probable cause, it ought not to be denied; this Court would order the Attorney-General to grant his fiat."

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Augier v. May (V. C. W.)

Baileys' settlement, in re (V.C.K.)
Baker v. Bradley (V.C.S.)
Banks v. Davies (V. C. K.)
v. Powell (V. C. K.)

Bazalgette v. Lowe (V.C. W.)

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208 Farebrother and others v. Welchman (V. C. K.) 305 187 Fenton's Trust, in re, exparte London and North-Western Rail. Company (V. C. W.) 388

136

114 Forbes v. Smith (Exch.) 407 Fozard's Trust, in re (L. J.) 188 Fudge v. Pitt (V. C. S.) 347 Gibson v. Sturge (Exch.) — v. Woollard (L. J.) Gittens v. Symes (C. P)

97

366 Goatley v. Emmott (C.P.) 58 Gore v. Bowser (V. C. S.)

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465 Goss' Estate, in re (V.C. S.)..

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187 Green, exparte, in re Cameron's Coalbrook Steam Coal and Swansea and Loughor Railway Company (L. J.)

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427

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244

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58 Greenwood, in re (Q. B. P. C.) 168 Griffenhoof v. Danbus (Q. B.).. 408 Griffiths v. Teeching (C. P.) 448 Gurney v. Gurney (V. C. K.) v. Womersley (Q. B.) 207 Halsey v. West (V.C.K.) Hammerton v. Milnes (V. C. s.) Hatwill v. Rimell (V. C. S.). Hamilton v. Bell and others (Excl.) Harris's Patent, in re (L. C.).. Haggitt v. Stiff (V. C. K.), (L. J.) Hawkins' Hospital, Chatham, exparte Go

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Bewlay v. Great Northern Railway Company (Q.B.)

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Bewley v. Nickels; Nickels v. Hancock (V. C. W.).

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Bloor v. Huston (C. P.)

Bold v. Hutchinson (M. R.) Boyse v. Colclough (V. C. W.)

Breed v. Caffell (V. C. W.)

Brewer v. Jones (Exch.) Brian v. Twigg (V. C. K.)

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Broadwood and others v. Granara (Exch.) Broughton v. White (V. C.S.)

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Bruton, exparte Perpetual Curate of (V.C. K.)
Buckley v. Cook (V. C. W)
Burrowa v. Walls (L. C.)
Cabell, in re (V.C.S.)

Callendar v. Teesdale (V. C. K.)

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152 Hammond, in re, ex parte Hammond (L. J.).. 244 v. Ward (V. C. K.)

79 446 Harris v. Willis (C. P.) 225 Hatch v. Hatch (M. R.) 327 Henniker v. Chaffey (M. R.) 408 Hill v. Swift (Exch.)

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134 Hilman v. Westwood (V. C. W.) 116 Hinde v. Poole (V. C. W.) 151 Hinton v. Mead (Exch.) 225 Hislop v. Wickham (V. C. K.) 59 Hodges, in re (L. C.) 385 Holsgrove v. Hedges (V. C. K.) 134 Honeyball v. Blumer (Exch.) .

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325 Hope v. Corporation of Gloucester (V. C. s.) 388

v. Hope (L. C.) ..

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Houlding v. Cross (V. C. K.)

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225

Huggett, app.; Lewis, resp. (Č.P.)

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283

Hughes v. Ellis (M. R.)

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346

v. Paramore (L.J.); (V. C. S.) 245, 503

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188

Hutchinson v. Marker (Q.B.) Ince v. Robinson (V. C. S.) Jefferies v. Mitchell (M. R.) Jenkins v. Betham (C. P.)

485

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Littledale, exparte, in re Pearse (Court of Ch.) 365

Devon United Miuing Co., in re (V.C. W) 368 London and North Western Railway Company

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NAMES OF CASES

NOTED, CITED, AND DIGESTED IN VOLUME XLIX.

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37

13

.. 265 .. 100

97

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4 De G. & S. 547

Aspdin v. Austin, 5 Q. B. 671..

Attorney-General v. Birmingham and Oxford Junction Railway Co., 4 De G. & S. 490.. - v. Lord Carrington, 6 Beav.

454

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18 Beav. 223..

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v. Magdalen College, Oxford,

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480

443

468

660

..

Clarke, exparte, in re Metropolitan Carriage
Company, 1 Kay & J. 22

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Cohen v. Cunningham, 8 T. R. 128
Coleman v. Mellersh, 2 M'N. & G. 314
Collins v. Shirley, 1 Russ. & M. 638..
51 Colson v. Colson, 2 Atk. 246..
Colvill, app.; Wood, resp., 2 C. B. 210
Cooper, exparte, 14 C. B. 663..
Cope v. Rowlands, 2 M. & W. 149
Copeland v. Lewis, 2 Stark. N. P. 33..
Cornes v. Taylor, 10 Exch. R. 441
Cradock v. Piper, 1 M'N. & G. 678..
Craig v. Duffus, 5 Bell, 308
Crossley v. Parker, 1 Jac. & W. 460..
Daggett, exparte, 1 L.M. & P. 1; 9 C. B. 218 306
Dansey v. Richardson, 2 Com. Law Rep. 1467 150
Darby v. Darby, 18 Beav. 412
Davis v. Prout, 7 Beav. 288

443
v. Simcox, 1 Exch. R. 749.. 468
v. York, Archbishop of, 17

Attwood, exparte; Ayles v. Cox, 17 Beav.584
Ayles v. Cox; exparte Attwood, 17 Beav. 584 258
Bailey, in re, 18 Beav. 415
Baily v. Lambert, 5 Hare, 178

Bainbrigge v. Blair, 1 Beav. 495
Balfour v. Watt, 8 Moore, P. C. 190..

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Barnes v. Marshall, 21 Law J., N. S., Q. B.

388

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Barrow, in re, 17 Beav. 547

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257

258

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458

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440

367

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167

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Dawson v. Dawson, 11 Jur. 984

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176, 207

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Dearden, exparte, 5 Exch. R. 740; 1 L. M. &

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258 Dinning v. Henderson, 3 De G. & S.
Law J., N. S., Ch. 273
Doe d. Mence v. Hadley, 17 Q.B. 571
Dorrett v. Meux, 15 C. B. 142
Douthwaite v. Spensley, 18 Beav. 74..
Dowdell v. Australian Royal Mail Steam Na-
vigation Company, 3 Ellis & B. 902
Dowling v. Hudson, 17 Beav. 248
99 Dudgeon v. Thomson, 1 Macq. 714, 724

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362

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148

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467, 468, 486, 487

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523
Baskett v. Cafe, 4 De G. & S. 588
Bass, exparte, in re Stephen, 2 Phill, 562
Beamish, app.; Overseers of Stoke, resp. 11
C.B. 29

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Beckham v. Drake, 2 H. of L. Cas. 606
Benn v. Stupart, Doug. 11
Bensusan v. Nehemias, 4 De G. & S. 381
Benthall, exparte, 6 M. & G. 722; 1 D. & L.
747; 7 Scott, N. R. 407

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Bentley v. Dawes, 10 Exch. R. 347

Berry v. Pratt, 1 B. & C. 276..

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Dunn v. Calcraft, 1 S. & S. 55 v. Dunn, 3 Drewry, 377 v. Sayles, 5 Q. B. 685 94 Duval v. Mount, 35 L. O. 260.. 307 East v. Twyford, 4 H. of L. Cas. 517 99, 100 Edinburgh, University of, v. Lord Provost of Edinburgh, 1 Macq. 485

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459

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288 235

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v. Rossborough, 1 Kay & J. 125
Bridger v. Penfold, 1 Kay & J. 28
Buckley v. Hann, 5 Exch. R. 43
Burdon, exparte, in re Lawrence, 2 Smale &
G. 367

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487, 488
Water Co. v. Hay, 1 Macq. 682 .. 228
468 Edwards v. Griffith, 15 C. B. 397
v. Martyn, 17 Q. B. 693
--- v. Meyrick, 2 Hare, 60

19
336 Elton v. Larkins, 5 Car. & P. 386
336 Emery v. Bartlett, 2 Lord Raym. 1555

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. 362 Emmens v. Elderton, 4 H. of L. Cas. 624
307 Ewart v. Williams, 3 Drewry, 21

Eyre, in re, 10 Beav. 569

478 Farrar v. Lord Winterton, 4 Y. & C. 472
258 Fawcett v. Cash, 5 B. & Ad. 904
467, 488 Fenn's Case, 22 Law J., N. S., Ch., 692
442 Fentum v. Pocock, 5 Taunt. 197

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