words of the statute. The words of this statute have been pursued, and that is enough. 1824. The KING Conviction affirmed (a). บ. Nolan and Chitty were to have argued in support of the conviction. (a) Vide Rex v. Stone, 1 East, 639. Rex v. Turner, 5 M. & S. 206. 1 T. R. 144. and 1 B. & P. 468. MARSH. GUTHRIE V. FORD. A Thursday, prisoner un der criminal process in the House of Cor rection cannot THE defendant in this case being confined in the Middlesex House of Correction, upon a criminal charge, F. Pollock, on a former day, obtained a Habeas Corpus to bring him up for the purpose of being charged in custody of be brought up the Marshal in this action, and then recommitted to his former custody. The defendant was now brought up accordingly, by the Keeper of the House of Correction, but The Court doubted its authority to grant the motion, and thought that the writ of Habeas Corpus had issued improvidently. Pollock said, that the Court had lately done the same thing under nearly similar circumstances. Morland v. Weston (a). PER CURIAM. If so, the matter must have passed sub silentio, and without the attention of the Court being called to it. In Brandon v. Davis (b) it was held, that a prisoner under a criminal process in the House of Correction, cannot be brought up by a Habeas Corpus ad respondendum for the purpose of being charged with a declaration on a bailable writ, and recommitted to his former custody so charged. (b) 9 East, 154. (a) Ante, vol. iii. 31. by Habeas Corpus, for the purpose of being charged in the custody of the Marshal upon a bailable writ, and recommit ted to bis former custody so charged. 1824. GUTHRIE v. FORD. In that case, Lord Ellenborough said, "The consequence of charging this party with a declaration, will be to make the gaoler of the House of Correction liable to the plaintiffs in case of an escape; but the Master has mentioned a case to us, where the Court, in Lord Mansfield's time, refused an application of this sort, to bring up a person in the custody of the keeper of Bridewell; saying, that this Court had no power to make a gaoler of such prisons, liable for the escape of a prisoner in civil process. The only inconvenience from the law as it stands is, that during a prisoner's confinement in these cases, he cannot be sued, when probably a plaintiff could derive no benefit from his suit; and a plaintiff may prevent the statute of limitations running upon his demand, by suing out his writ and entering continuances." This case is expressly in point, and therefore we have no authority to grant the motion. The defendant was then remanded to his former custody. Thursday, terms of an or pute to the award of an KENNARD V. HARRIS. Where by the TRESPASS for entering plaintiff's pond. At the trial der of Nisi before Burrough, J. at the last Summer Assizes for the Prius referring matters in dis- county of Devon, it was agreed between the parties, that a verdict should be entered for the plaintiff, on certain issues arbitrator, on upon the record, with one shilling damages, and that it should be referred to an arbitrator to say, how the water of the pond in question should be used in future; the defendant undertaking to pay the general costs of the cause, as if all the issues had been found against him, and also to pay the costs of the reference and award. An order of Nisi the terms of the defendant paying the costs of the cause, and of the reference and award, and the plaintiff, after having accepted the costs of Prius was drawn up upon these terms, and the arbitrator having proceeded in the reference, made an award directing the reference in what manner the water should be used in future. and of the After award, was dissatisfied with the award: Held, that he was precluded from impeaching it. the award was made, the defendant paid the plaintiff, and the plaintiff accepted the costs of the cause, and of the reference and award. E. Lawes having obtained a Rule Nisi for setting aside the award, on several grounds, mentioned in the rule, Gaselee now shewed cause, and contended that, after the plaintiff had accepted the costs of the reference and the award, he was concluded, and was not at liberty to disturb the award. The whole COURT was of this opinion, and said, that, by accepting the costs of the reference and award, the plaintiff had precluded himself from moving to set aside the award. Rule discharged. 1824. KENNARD v. HARRIS. The KING v. The COUNTY CLERK of MIDDLESEX. Thursday, The County dleser is enti tled to take of suits in his ON a former day a rule was obtained, calling on the County Clerk of Middlesex to shew cause why an information should not be filed against him for alleged misconduct in his office. It was alleged, among other matters, that he the following fees upon the had exacted greater fees, in a cause in which Joseph Brock hearing and was the plaintiff, and James Hulme was the defendant, than determination are authorized by the statute 23 Geo. 2. c. 33. the defendant Court, viz. in that case having been charged 8s. 10d. for his costs of upon the apsuit, contrary to the said act. Cause was now shewn against both parties the rule upon affidavits of considerable length, in which the upon the first alleged misconduct of the County Clerk was completely determination negatived; and as to that part of the case which imputed Ss. 6d.: upon the exaction of illegal fees, the practice of the County Court, an order nisi from the year 1772 down to the present time, was stated to quence of the pearance of summons and of the cause, in conse non-appear ance of the defendant upon the first summons, 2s.; and upon execution on a judgment against the defendant, 3s. 4d.; which sums include the fees to the county clerk, bailiffs, and criers. 1824. The KING 0. The COUNTY CLERK of MIDDLESEX. upon be this: The plaint being entered, a warrant is issued, which the defendant is summoned to appear on a given day. If the plaintiff and defendant both appear on being called on the day appointed, the defendant's appearance is entered, the cause is heard, and an order made and entered according to the verdict; and the whole cost of a suit thus terminated amounts to 3s. 6d., including county clerk's, bailiff's, and crier's fees. But if the defendant does not appear on being called, the plaintiff is heard as to the amount claimed, and an order nisi is made and entered for judgment on a future day. This order nisi is served on the defendant, and if he appears on the second day appointed, the case is heard as before, and an order absolute is made according to the verdict. The whole cost of the suit in the last-mentioned case amounts to 5s. 6d.; and if the defendant does not appear on the second day, an order absolute is made, and entered for judgment by default; and the whole cost in that case is 5s. 4d.: such costs in each of the two last-mentioned cases including the fees of the county clerk, bailiffs, and criers. But the cost occasioned by the defendant not appearing on the summons, amounting to 2s. or 2s. 2d. according to criers, is always paid and borne by the defendant, as being his default; and if the debt and costs are not paid on the day or days specified in the said orders absolute, the plaintiff has a right, at any time within a year, to demand an execution against the defendant, the cost of which is 3s. 4d., that is to say, 4d. to the county clerk, for the execution, and 3s. to the bailiff executing the same. In the present case the defendant had been summoned for a debt under 40s., but not appearing on the day appointed, an order nisi was made upon him to attend the Court on a second day, when he attended accordingly, and the cause being heard, a verdict was found by the jury against him, and execution awarded for the debt and costs, the amount of the latter being 8s. 10d. which sum was composed of the following items, 3s. 6d. for the order, 2s. for the order nisi, and 3s. 4d. for the execution, according to the practice of the court as above set forth. The county clerk stated in his affidavit that previously to his appointment to the said office, one Peter Hardy, together with certain other freeholders of the county of Middlesex, presented a petition to the Lord High Chancellor in pursuance of the power given by section 16 of 23 Geo. 3. c. 33. complaining of the then practice of the Court, and that other or greater fees were exacted by the then county clerk than the said act allowed; that the said petitioners then proceeded in their said petition to state the practice of the court, as it now exists, and as is above set forth, and the fees taken for each particular proceeding in the Court, which fees so set forth and complained of, were in every respect the same fees as are now taken by the present county clerk; that the matter of the said petition had been fully heard before Lord Ellenborough, C. J. and Gibbs, C. J. and after hearing all parties, they adjudged as follows:-"We have considered the within petition, together with the affidavit of the within-mentioned Peter Hardy and Thomas Leach, and the papers thereto annexed, and have been attended by the respective attornies of the said P. H. and of the said T. L. and we are of opinion that the fees which are stated to have been received by the said Thomas Leach and the other officers of the said County Court for Middlesex, held under the 23 Geo. 2. c. 33. are justified by a fair construction of that act; and we are also of opinion, that upon the facts submitted to us, and upon our view of the said act of parliament, there is no ground for criminating the said Thomas Leach in respect of any thing which appears to have been done by him in the execution of his office of County Clerk; but we think that the warrant, in obedience to which the summons in each case is stated to issue, and which we consider to be analogous to the Sheriff's precept to his bailiff for the summons in the old County Court, ought, in point of fact, to have issued, and should issue hereafter in each case as an authority to the bailiff for the summons." 1824. The KING v. The COUNTY CLERK of MIDDLESEX. |