[capias set aside for irregularity – costs, judges disagree]

Drury v. Eaton

Supreme Court of Van Diemen’s Land, In Banco

Pedder C.J Montagu J., 21 and 25 May 1841

Source: Hobart Town Courier and Van Diemen’s Land Gazette, 28 May 1841[1]

            Mr. S. Stephen moved for a rule to show cause why the capias which had been issued in this case against the defendant should not be set aside for irregularity and the defendant discharged.

            The learned counsel proceeded to explain that, in accordance with some recent arrangement, writs were now signed by a Commissioner of the Supreme Court, of whom Mr. Crouch was one; that in the present case the writ was not so signed, nor by any officer of the Supreme Court, neither was it dated; it was also misdirected, the defendant being styled Worm Bacon instead of Worm Eaton.

Mr. Justice Montagu was much surprised at the new arrangements respecting the appointment of Commissioners, of which he was quite ignorant; it would be better at once to establish a Court of Arrest, with a right of appeal to the Supreme Court.

The rule was granted, and made returnable on Tuesday.

Tuesday, 25th May

The Court rose at eleven; in the case of Drury v Worm Eaton, the capias was discharged, and their Honors would decide on Friday (this day) by whom the costs should be paid: His Honor the Chief Justice being of opinion that the Sheriff should pay them, but Mr. Justice Montagu thought the plaintiff should do so.

Pedder C.J Montagu J, 28 May 1841

Source: Hobart Town Advertiser, 1 June1841

            As their Honors remained undecided as to which of the parties ought to pay the costs, both have been exempted.