Parker v The Bristol and Exeter Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1851 |
| Date | 17 June 1851 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 506
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 6 Railw Cas 776, 20 L J Ex 112
pakkeb v the bristol and exeter railway company Jan 20, LS51 - Hemble, the power given by the 9 & 10 Viet c 95, s 90, to remove a plaint by certioran fioin a county couit, is not taken away by the l.i & 14 Viet c 61, s 16 -Upon the application for such removal, it is necessaiy to bring before the Judge all the material facts of the case, in ordei that he may have the power of imposing such terms upon the parties as he may, in the exercise of his discretion, think fat [S C 6 Riilw Gas 776, 20 L J Ex 112] This was a rule calling upon the defendants to shew cause why a certioran, which had been issued under the 9 & 10 Viet c 95, s 90, by order of Platt, 13 , to remove the plaint in the above cause from the county court of Gloucestershire, should not be quashed, upon the following grounds first, that tbe power given by that section had been taken away by the Ibth section of the 13 & 14 Viet c 61 , and secondly, that the writ had issued improvideutly The affidavit upon which the application for the certioran was founded, stated, that the plaint had been issued to recovei ceitain sums from the defendants, as the overcharges which, it was alleged, they had made in carrying goods foi the plaintiff, who exeicised the business of a carrier , and that the plaint had come on for hearing, but that the hearing was not concluded It also alleged that the matter in issue would involve a question of right to tolls, over which the county court had no jurisdiction In support of the motion to quash the writ, the plaintiff's affidavit stated that the hearing in the county court had been continued by adjournment for nine days , and that the plaintiff, by reason of the defendants refusing to [185] admit certain facts, of which entries weie made in books belonging 6 EX 186 THA.RRATT r TREVOR 507 to them, had incurred the expense of nearly 1001 in procuting the attendance of witnesses Kinglake, Serjt, shewed cause The power to lemove a plaint by ceitioran is not affected by the 13 & 14 Viet c 61 Section 16 enacts, that no matter pending in the county couit may be removed "by appeal, motion, writ of error, jertiorai i or otherwise, into any other coutt whatever, save and except in the manner and according to the piovisions heieinbefoie mentioned," but by the 2nd Section, that Act and the 9 & 10 Viet c 95, are to be read and construed as if the several provisions in the last-mentioned statute, "not inconsistent with the provisions of this Act, were repeated and re-enacted in this Act" Now the 00th sect of the earlier Act gives the power of removing by certioran, and that enactment is not inconsistent with the provisions of the later statute He then Contended that the writ had not issued inn providently Lush in support of the rule The power of appeal having been given in certain eases, it was intended th.it the power of removal by certioidn should be abolished If this construction of the Act be not adopted, no effect whatever is given to the 16th section But it is unnecessary to argue that point, as it is clear that, if all the facts connected with this case had been brought to the attention of the leained Judge who allowed the ceitioran to issue, he would have imposed terms upon the defendants as to the payment of the costs which the plaintiff had already incurred, which he has no power to do under the 90th sect of the 9 & 10 Viet c 95 All the facts of the...
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