M. T. 1845. Rev. Exch. THE QUEEN v. THOMAS MORAN. This was CERTIORARI.-Jebb, on the part of the Crown, moved that the de- แ 4,c.55, against the defendant, for having been found in a certain place wherein the process of illicit distilla tion was then carrying on; the magistrates erroneously conceiv fendant was not found in the place, but was on a fire, and five vessels to it, and these containing thirty-six "gallons of potale in process of illicit distillation; that the said ing that the "Thomas Moran, having heard the said charge, said he was not evidence, which proved "guilty thereof; that thereupon one credible witness, to wit, William that the de"Bourke, having been duly sworn, &c., deposes and says he belongs "to the revenue police, and was out on duty on the 4th March, in "the townland of Bunratty, in this county, and saw the prisoner, "Thomas Moran, running out of a house in said townland, in which "the officer immediately afterwards seized a private still with a fire some distance "under it, and five vessels containing upwards of thirty-six gallons from the place, " was seen com ing out of it, and pursued and arrested at having during sight of him, was not suffi cient to support the infor "of potale in process of illicit distillation, and admits the prisoner resting him not was not inside the said house at the time of his arrest, he having that period lost "been several paces therefrom; but the said William Bourke deposes "that he saw him running out of said house, and did not lose sight of "him until arrested; that there was no other person inside the house; "that it appearing that the prisoner, Thomas Moran, not having been "actually arrested in the house, the magistrates were of opinion that "he was not guilty under the 19th section of the 1 & 2 W. 4, c. 55, "and that they therefore acquitted him accordingly," &c. Jebb. It is admitted that Moran was not seen in the house, nor arrested there; but it is submitted that, according to the true meaning of the mation. Rev. Exch. M. T. 1845. Act, and to the decisions in The Attorney-General v. Schiers (a), The Attorney-General v. Delano (b), the evidence was sufficient to THE QUEEN support the information, and authorise a conviction under the 19th section of this Act, and that this motion should be granted. บ. MORAN. Nov. 25. Cur. ad. vult. The COURT this day made an order, quashing the decision, and sending the case back to the magistrates to re-hear, similar to that in the preceding case. (a) 2 C. M. & R. 286. (b) 6 Price, 383. Nov. 22, 25. THE QUEEN v. GILLESPIE and others. The defend- CERTIORARI-Jebb, on the part of the Crown, moved that the ants having decision of the magistrates in this case be quashed, and that the case been arrested under the 19th be sent back to them to re-hear, and to decide on the merits, This section of 1 & 2 W. 4, c. 55, was an information under the 19th section of 1 & 2 W. 4, c. 55, in a house in against the defendants, for being found in a room wherein the process which illicit of illicit distillation was then carrying on. distillation was then car. rying on, and brought before were then ad The return to the writ stated that the defendants Terence, Mary a magistrate, and Honor Gillespie were arrested on the night of the 25th of mitted to bail December 1844 by an excise officer, in a house in which illicit under the 36th section of that distillation was then carrying on, &c.; that they were conveyed Act, to appear before a magistrate for the county, who admitted them to bail to take on a certain day before the their trials at the next Petty Sessions of the district, in pursuance of Petty Sesthe 36th section of that Act; "that at the Petty Sessions at Teeson sions. day fixed for "in the county of Sligo (to attend which they were bound over and the trial they "admitted to bail), on Wednesday the 1st of January 1845, being the appeared, and objected that On the they were not duly summoned, or any notice of trial for that day served upon them, in contravention of the terms of that section. The magistrates admitting the objection, dismissed the complaint. Held, that such summons or notice of trial was not necessary; and therefore this Court, upon certiorari, quashed the decision of the magistrates, and sent the case back to them to re-hear on the merits. "next Petty Sessions held for the district, in which the said Terence M. T. 1845. "Gillespie, Honor Gillespie and Mary Gillespie had been so arrested 66 Rev. Exch. v. GILLESPIE. "as aforesaid, the said Terence Gillespie, Honor Gillespie and THE QUEEN 'Mary Gillespie personally, as well as by their attorney Alexander "Philips, Esq., appeared before, &c., three of her Majesty's Justices "of the Peace for the said county of Sligo, and the said Terence "and Honor and Mary Gillespie having heard the charge preferred "against them by said, &c., officer of excise as aforesaid, it was 'alleged on their behalf by the said Alexander Philips, their said "attorney, that they were not bound to answer the same, inasmuch as his clients should have been either regularly summoned or have "been served with due notice to attend said Petty Sessions to “abide their trial; which objection appeared sufficient to the said "Justices not to hear or determine on the merits of the alleged "breach of the excise laws, and the case was accordingly dismissed "by them," &c. The bail-bonds were in the common form; the condition being, that if the defendants should "be and appear at the next Petty "Sessions to be held at Teeson, on Wednesday the 1st of January next, in and for said county, to answer such matters and things in "her Majesty's behalf as shall be there objected against (them) by "J. T. Kennedy, Esq., and the revenue police, and not to depart the "said Court without license, then the said recognizance (should) be "void; otherwise," &c. Jebb. The parties having been arrested, and having given bail before the magistrates to appear at the Petty Sessions at Teeson on a certain day to answer the matters which should then be objected against them, they thereby had sufficient notice to appear on that day, and no further summons or notice of trial was necessary. The previous portion of the 36th section, requiring the party to be summoned to appear before the magistrates, clearly refers to a proceeding against a party who has not been arrested or otherwise brought within the jurisdiction of the Court, and does not refer to the case of a party who has already been arrested and held to bail. On this ground it is submitted that the decision of the magistrates requiring proof either of a regular summons on the defendants for that day, or a notice to attend on that day to abide their trial, was erroneous, and their judgment must be quashed. The case of Regina v. Kavanagh (a) (a) 1 Jebb & Sym. 419. M. T. 1845. is in point, to show that the application now made by the Crown is Rev. Each the proper one under the circumstances of this case. THE QUEEN V. GILLESPIE. Nov. 25. Per Curiam. Cur. ad. vult. Ordered that the decision of the magistrates of the Petty Sessious of Teeson, in the county of Sligo, be quashed, and that the case be sent back to them to enter continuances thereon, and then to proceed and determine the case on the merits, giving to the defendants six clear days' notice of the time and place of hearing. H. T. 1846. Jan. 12. WATERHOUSE v. HATFIELD and others. (Exchequer of Pleas.) In case for J. D. FITZGERALD moved for liberty to substitute service of the libel against three defend- capias ad respondendum on the principal defendant in this case, by ants, two of serving Edward Hopper, his agent in Dublin. whom resided in England and one here, who was the agent of the other two, the Court refused The plaintiff resided in Dublin, and carried on the trade of a silversmith. The defendants Hatfield and Lawson resided in Sheffield in England, and carried on the same trade as the plaintiff; they had a place of business in Dublin, over which Hopper their to substitute agent had the management, and was a co-defendant in the suit. The service on the defendants out cause of action was for publishing and issuing in Dublin a malicious of the jurisdic- libel against the plaintiffs, in the form of a printed placard; it was issued by the defendants through the instrumentality of their agent, Hopper. The capias was personally served upon Hatfield and the co-defend- Lawson in Sheffield, and upon Hopper, the co-defendant in this country. country. Phelan v. Johnston (a), in this Court, is an authority to support this application. tion by a service upon them and on their agent, ant in this BRADY, C. B. That was a case of great necessity, where a failure of justice otherwise must have resulted. You can go on with your action against the defendant, served here; he cannot put in a plea of abatement. No rule. (a) 7 Ir. Law Rep. 527. H. T. 1846. DOE, Lessee of BRENNAN, v. MULLINS. J. D. FITZGERALD, on behalf of the defendant, moved to make absolute a conditional order of last Term to enter up judgment as in case of a nonsuit, notwithstanding cause shown. This was an ejectment brought as of Hilary Term 1844, under Jan. 26. Where the defendant had become insol vent after ac- enter up judg ment as in case having refused a stet processus the statutes for non-payment of rent; defence was taken by the of a nonsuit defendant Mullins on the 2nd of February 1844, and notice of trial with costs, the was refused for the Limerick Spring Assizes served on the 13th of February defendant 1844, which was withdrawn on the evening of the 1st of March. On the 15th of April a rule to stay proceedings till the costs of the notice of trial were paid was entered in the office; and on the 23rd of November a rule to vacate that rule was duly entered by the defendant. Coppinger, contra. Brennan, the lessor of the plaintiff, swears that since the service of the ejectment in this cause, Mullins has been discharged as an insolvent debtor. A stet processus was offered out of Court to the defendant, which he refused. Holland v. Henderson (a) shows this motion must be refused with costs. Fitzgerald, in reply. The Court cannot force the defendant to consent to a stet processus. The practice in this country is this: whenever a defendant consents to a stet processus, he is not made to pay the costs. Here he consents to the stet processus being entered, and therefore he ought not to pay the costs. CHIEF BARON. If you wished to avoid the costs, you should have consented to the offer made out of Court. PENNEFATHER, B. It is true, we cannot force the defendant to consent to a stet processus, but if he do not consent, we can refuse his motion for judgment as in case of a nonsuit with costs. (a) 4 M. & Wels. 587; and see Smith v. Badcock, 5 Dow. P. C. 91. offered out of Court. |