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REPORTS OF CASES

ARGUED AND DETERMINED

IN

The Court of King's Bench.

BY S. NEVILLE, Esq.,

OF THE INNER TEMPLE,

AND

W. M. MANNING, Esq.,

OF LINCOLN'S INN, BARRISTERS AT LAW.

VOL. III.

CONTAINING CASES IN HILARY, EASTER AND TRINITY TERMS, 1834.

CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

Hilary Term,

IN THE FOURTH YEAR OF THE REIGN OF WILLIAM IV.-1834.

Ex parte ALLEN.-p. 35.

A. is charged with a felony before three magistrates, who, upon hearing evidence, admit him to bail, and afterwards, upon additional evidence, commit him to gaol. A. is not entitled to a habeas corpus to be discharged out of custody.

CROWDER applied for a rule to show cause why a writ of habeas corpus should not issue to bring up the body of Richard Allen, confined in Fisherton gaol, in Wiltshire.

Allen had been taken before three magistrates, charged with a felony, and after evidence of the felony had been gone into was admitted to bail, upon his giving his own recognizance and that of two other persons, each in 2001., for his appearance at the next assizes. He was afterwards apprehended again and brought before two of the same magistrates, when further evidence was gone into, and he was committed to Fisherton gaol.

Crowder in support of the application. The magistrates having had the case regularly brought before them, and having decided, after hearing the evidence, that the party should be admitted to bail, had no right to issue a warrant for his apprehension on the same charge, and then to commit him to gaol. Under 7 Geo. 4, c. 64, s. 1, the magistrates were authorised either to dismiss the charge or to hold the party to bail, or to commit him to prison. Their decision was to admit him to bail, and they accordingly took bail for his appearance. This then was an adjudication by the three magistrates before whom the case was first heard. [DENMAN C. J. There was no adjudication at all when bail was taken. What is there in that act to deprive them, or any other magistrates, of the power to commit upon hearing fuller evidence of the felony?] They decided upon the middle course of admitting to bail, and the party was put to the trouble and expense of procuring sureties for his appearance. He ought not then to be harassed by a second apprehension; nor is there any necessity that such a power should reside in the magistrates; for it is their duty, and indeed their constant practice, when not satisfied with the evidence adduced before them, to remand the prisoner for a further examination. Such a course ought to have been pursued on the present occasion.

DENMAN C. J.-It appears to me that the magistrates have taken the very course which it was most proper for them to adopt. The whole matter is not fully investigated in the first instance; subsequently fresh evidence is pro

cured, and the party is committed. It is necessary, for the ends of justice, that the magistrates should possess and exercise this power. There must be no rule.

LITTLEDALE J.-Suppose there had been but slight evidence given the first time the party was before the magistrate, then under the act he is to be admitted to bail; but nevertheless if afterwards further evidence is discovered, he may be fully committed by the magistrates. The magistrates do not remand except where further evidence of the crime is expected. Here it may be that the evidence which was afterwards produced was not at all anticipated. TAUNTON J. and PATTESON J. concurred. Rule refused.

PARKER v. BURGESS.-p. 36.

To ground a motion for a contempt in disobeying a rule of court, it is not sufficient to show the party the original rule, without personal service of a copy of such rule. HEATON moved for an attachment against T. C. Wright, the attorney for the plaintiff, for the nonpayment of a sum of money, in obedience to a rule of court made in this cause, and the Master's allocatur thereon. His motion was grounded upon an affidavit, which stated that the defendant did, on the 26th November last, serve T. C. Wright with a copy of the rule of court, by leaving the same with a servant at the office of the said T. C. Wright, and did, on the 29th of the same month, produce to and show to the said T. C. Wright the said rule, with the Master's allocatur thereon, and at the same time did demand of him the money, which he refused to pay. He contended that the rule requiring a personal service of the copy of the rule of court had been substantially complied with, by showing the original at the time when the demand was made, the object of that rule being merely that the court might be certain that the party sought to be attached knew of the rule which he was called upon to obey; and he observed that it is not laid down in the books of practice, that the copy must be personally served.

The court however said, the service of the copy of the rule is not sufficient. The rule of practice is well known to us, and is of every-day occurrence. There must be a personal service of the copy of the rule, as well as a personal demand of the money. Rule refused.

The KING v. The Justices of BUCKINGHAMSHIRE.—p. 68.

The court will not issue a mandamus to magistrates to do an act subjecting them to an action, of which the event may be doubtful.

Whether the owner of a farm composed partly of grass land, who, upon the determination of a lease, takes possession of the farm by a servant, who occupies it for the purposes of protection, but without dealing with the land, is liable to be rated ratable to the poor as a party beneficially occupying: quære.

The KING v. The Inhabitants of CHIPPING SODBURY.-p. 104. Held, that a judge's order or fiat for a certiorari to issue in vacation can only be granted

nisi.

By an order of justices, Martha Williamson (wife of Joseph Williamson), and her five children, viz., George, aged nine years; Samuel, aged seven years; Hannah, four; Thomas, three; Emma, two; were removed from Chipping Sodbury, in the county of Gloucester, to North Nibley, in the same county. This order was appealed against at the Gloucester Michaelmas sessions, 1832, and after the merits of the case had been heard, the counsel for

the appellants objected, first, that there was no adjudication, that the two eldest children had not gained settlements in their own right; secondly, that the adjudication should have been that the settlement of the husband was in North Nibley, and not, as was stated in the order, that the settlement of the wife and children was there; thirdly, that the children were removed as the children of the wife, and not as the children of the husband. Upon these objections the Court of Quarter Sessions quashed the order as defective in form, and not upon the merits, and the order of the Court of Quarter Sessions expressly so stated. A certiorari was sued out in Trinity vacation, 1833, under the fiat of the Lord Chief Justice, upon an affidavit of the above facts. The order of removal and the order of sessions having been returned with the certiorari, in Michaelmas term, Greaves, upon a statement in court of the above facts, and referring to several cases, (a) obtained a rule nisi to quash the order of sessions, on the ground that it quashed, for defect of form, an order that was perfectly good on the face of it.

W. J. Alexander was about to show cause, when the Lord Chief Justice inquired whether there had been a rule to show cause why the certiorari should not issue. It was stated at the bar, that the certiorari had been obtained on the fiat of the Lord Chief Justice in vacation in the first instance. Greaves, in support of the rule, stated that the invariable practice had been, that if a certiorari be applied for in vacation, where no case is stated by the sessions, it is granted on the fiat of a judge, and issues immediately; but if it be applied for in term time, a motion is always made in open court, for a rule to show cause why the certiorari should not issue; and that where a case has been stated, the rule nisi for the certiorari is obtained on counsel's signature only. He stated further, that in this case the practice had been inquired into at the Crown office, and the certiorari applied for and issued in pursuance of the information there obtained.

DENMAN C. J.-The rule for the certiorari cannot be granted out of term absolutely in the first instance. The rule to quash the order of sessions must be discharged. Rule discharged.(b)

(a) Rex v. Higher Walton, Burr. S. C. 162; Rex v. Ryton, Cald. 39, &c.

(b) As to the practice of issuing a certiorari in vacation, without a rule to show cause, upon a judge's fiat, see 1 Gude, 116; 2 Nol. P. L. 582. In Rex v. Newton, Burr, S. C. 157, Chapple J. granted his fiat for a certiorari to remove an order of sessions, but refused to grant it in respect of the original order. Afterwards the court said, "Here was a regular application to a judge within time, and with due notice as to the order of the sessions, and he was granted a fiat for a certiorari to return it." Both orders were quashed. And see Regina v. White, 1 Salk. 150; S. C. Holt, 132; 5 & 6 W. & M. c. 11, s. 4.

JAMES v. WILLIAMS.-p. 196.

"As you have a claim on my brother for 5l. 178. 9d. for boots and shoes, I hereby undertake to pay the amount within six weeks from this date. 14th January 1833." Held, that no action lies on this undertaking, inasmuch as no consideration appears upon the face of the instrument. (a)

(a) But in 3 Brod. & Bingh. 21, Jenkins v. Reynolds, Park J. says, "I do not go into the question whether the fact was well decided in Wain v. Warlters, because there may be different opinions as to whether or not a consideration did appear on the instrument, which was there the subject of discussion." And in the same case, (6 B. Moore, 106,) Richardson J. says, "I agree with my brother Park, that it is not necessary for us to give any opinion as to whether a consideration appeared on the face of the instrument in Wain v. Warlters, but that we may decide on the principle there contained, viz., not only that the promise must be in writing, but that the consideration for the promise must be shown."

It seems to be questionable whether after acceptance of a guarantee in the form given VOL. XXVIII.-39

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