THE KING against THE REV. JOSHUA KING and another. 1820. 1st Feb. indictment for THIS HIS was an indictment found against the de- It is no reason for changing fendants at the last Knuttsford quarter sessions the venue in an for the county of Chester, for an alleged conspiracy a conspiracy to to poison, by means of arsenic, the cattle of Sir destroy foxes Thomas Stanley, Bart.; the indictment having been min, that the removed into this Court by certiorari. Starkie now moved to change the venue from Cheshire to Lancashire, upon an affidavit, suggesting that the ground of the supposed conspiracy imputed to the defendants, was the circumstance of the defendant Mr. King having placed in his lands the noxious drug in question, for the purpose of destroying foxes and other vermin, which had injured his property; that the noblemen and gentlemen of Cheshire, who were likely to serve upon the jury summoned to try the indictment, were much addicted to fox-hunting; and that several injurious statements having appeared in the public newspapers upon the. subject of the charge imputed to the defendants, prejudicial to their character and motives, deponent for these reasons verily believed, that he should not have a fair and impartial trial in the county of Chester. THE COURT said they could not assume that all the gentlemen of the county of Chester, who might be summoned to discharge their duty as jurors, would do injustice to the defendant, by reason of the pleasure they took in the amusement of fox-hunting; and as no suggestion was advanced that the prosecutor was the author of the injurious publications complained of, there was no ground for changing the venue. Rule refused. and other ver gentry of the county in which -the indictment was found are addicted to foxhunting INQUIRY. 1820. 4th Feb. aside an inqui THIS WILLIAMS against REEVES. Motion to set HIS was a rule obtained on the last day of last Term, calling on the plaintiff to shew cause why the inquisition in this case should not be set aside, on sition for exces sive damages, must be made on affidavits, to the ground of excessive damages (a). F. Pollock now shewed cause, and contended that the rule must be discharged, with costs, having been moved for without any affidavit whatever, and drawn up afterwards, as of the last day of last Term, upon an affidavit sworn several days after the Term, before a judge at chambers. It was quite irregular to draw up a rule upon an affidavit which had not existence at before a judge the time the rule was granted. drawn up on an affidavit sworn in vacation, the Court in this Term discharged the rule with costs. J. Evans, in support of the rule, stated that the writ of inquiry had only been executed at three o'clock in the afternoon of Saturday, the 27th of November, and on the Monday following the motion was made; so that every indulgence ought to be allowed for the inadvertence of omitting then to produce an affidavit, supposing it to have been necessary, which he submitted it was not; because this being a writ of inquiry issuing out of this Court, any injustice done to the defendant would entitle him to relief, without any affidavit. The action was for a common assault, and the jury gave 250l. damages. The defendant, in pursuance of the order made last (a) Vide ante, 1 Vol. 729. Term, had paid 100/. into Court, as the condition of drawing up the rule nisi, and therefore the Court would hardly deprive him of the benefit of the rule, upon this preliminary objection, that no affidavit was produced at the time the motion was made. BAYLEY J. (the only judge in Court at the time the rule came on) said, it was utterly impossible to grant such a motion as this, without an affidavit. Had the defendant's counsel stated at the time he moved, that he was not then furnished with an affidavit, probably the Court might have allowed him to apply to a judge at chambers, or have permitted him to draw up the rule, upon producing the requisite affidavit. The only indulgence that could be now allowed the defendant was, to permit him to draw up the rule as of the first day of the present Term, on the affidavit sworn in vacation. Pollock said he would not resist this indulgence, provided the defendant was ordered to bring the whole damages into Court, as he understood that the defendant had now left the country. BAYLEY J. said this was but reasonable, under the circumstances stated, and ordered that the whole money should be brought into Court within two days, otherwise the rule to be discharged with costs. The case was afterwards mentioned to the Court, Evans complaining of the hardship of these terms; when THE COURT said, that he ought to have come with proper instructions in the first instance; and as he had not, no indulgence could be allowed. Rule discharged, with costs. 1820. WILLIAMS against REEVES. 1820. 4th Feb. It seems that a notice of executing a writ of inquiry in this Court can be continued or countermanded but once, the K. B. concurring with C. P. as to the practice; but where several notices and countermands of en quiry had been served, and at length there was a fresh, and not a con tinuing notice served, it was held, that the inquisition un der it was regu lar. MOTI BURGESS against ROYLE. OTION to set aside the inquisition in this case, for irregularity; the alleged irregularity being, that there were two notices of executing the writ of inquiry, and two countermands. Notice of executing the writ of inquiry was given on the 1st for the 10th of December. On the 9th it was countermanded for the 14th, and on the latter day it was again countermanded and continued for the 15th. Fresh notice was again given on that day for the 23d, when in fact the inquiry was executed. Abraham now, in support of the rule for setting aside the inquisition, contended, from analogy to the practice in giving notice for trial in causes where the parties have joined issue, that the notice could be continued but once, whereas here there have been two several notices, and the like number of countermands; and he referred to Tidd, 609. 6th ed. where it is laid down," that notice of inquiry may be continued or countermanded, in like manner as notice of trial;" and it is there said, "that in the Common Pleas a notice of inquiry can be continued but once (a).”. It is not competent for a party in the case of a trial to continue his notices, and go on successively countermanding and continuing. Therefore, from analogy to the case of notice of trial, there can be but one continuance, and one countermand. The practice in this respect did not appear to be distinctly laid down by Tidd, but as the rule prevailed in C. P., it was to be hoped that the practice of both Courts might be concurrent upon so material a point. HOLROYD J., before whom alone the question was (a) Barnes, 297. mooted, said he would mention the case when the Court was full, which he did accordingly; and ABBOTT C. J., referring to what was laid down in Tidd, 609, said there appeared to be strong analogy between the case of a notice of trial and a notice of executing a writ of inquiry; for in both cases a jury is impanelled, although in the latter the office of the jury is confined to the question of damages. It is said in the Common Pleas, that a notice of inquiry can be continued but once; but it was not said that such was the practice in this Court. Adverting, however, to the analogy between notice of trial and notice of inquiry, and the Court being anxious to conform its practice with that of the Common Pleas as nearly as they could, in an established rule, it seemed to be expedient to adopt the rule referred to in the Common Pleas. This rule, however, for setting aside the inquisition, must be made absolute without costs. Walford, for the plaintiff. It turned out in the result, that the last notice of inquiry served was a fresh, and not a continuing notice. The Court, therefore, said that the objection fell to the ground; and they Discharged the rule, with costs. 1820. BURGESS against ROYLE. |