(SnrnpU ICam B>t\^aa\ ICibrary ■XI- «- ^- Cornell University Library KF 9640.S55 In'or'nations (criminal and quo warranto) 3 1924 019 412 109 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 941 21 09 INFORMATIONS (CEIMINAL AND QUO WAEEANTO), MANDAMUS AND PROHIBITION. BY JOHN_SHOKTT, LL.B., OF THE MIDDLE TEMPLE, BSQBIBB, BABEISTEB-AT-LAW ; AnTHOE OP "THE LAW RELATIITG TO WORKS OP LITBBATUEE AND AET ' (OOPYBiaHT, LIBEL, ETC.) LONDON: WILLIAM CLOWES AND SONS, Limited, 27, FLEET STBEBT. 1887. LOKDON : PBIKTED BY WILLIAM CLOWES AND SONS, LIMITED, STAHPOBD STREET AKD CHABING CSOSfi. PREFACE. The need has -long been felt of some trustworthy exposition of the present state of the law relating to Criminal and Quo Warranto Informations, Mandamus, and Prohibition. Very many years have elapsed since the appearance of a treatise on any of these subjects. Meanwhile the law has undergone profound modification, and the procedure has in many respects been wholly changed. The present work aims at supplying the need. How far it has succeeded in doing so is left to the candid judgment of the profession. In extenuation of such shortcomings as may be found in his book, the author would point to the wide field traversed by it, and the great number of authorities which it was necessary to consult. CONTENTS. PAQES Table of Cases ' . . . ix-xxxii PAET I. CEIMINAL INFORMATIONS. CHAPTER I. Nature op Intoemations, and the vakious kinds op them . 1-3 CHAPTEB II. Ex-oPFicio Inpoemations 4-11 CHAPTEB III. Inpoemations not Ex-officio 12-36 CHAPTER IV. Peocedukb to obtain Information 37-57 CHAPTER V. The Information and Subsequent Pleadings .... 58-74 CHAPTER VI. Pbocedube prom Close op Pleadings ..... 75-85 CHAPTER VII. Peoceedinqs subsequent to Conviction 86-107 VI CONTENTS. PAET II. QUO WARRANTO INFOEMATIONS. CHAPTER I. PAGES Obigin of the Jurisdiction ....... 108-111 CHAPTER XL Various kinds op Infobmatigns and the Statutes relating to THEM ......... 112-120 CHAPTER III. In what Cases granted ........ 121-134 CHAPTER IV. General Principles regulating Grant oe Refqsal . . 135-159 CHAPTER V. Procedure to obtain Information ...... 160-172 CHAPTER VI. The Information and Subsequent Pleadings .... 173-188 CHAPTER Vn. Procedure from Close of Pleadings ..... 180-222 PAET in. MANDAMUS. CHAPTER I. Nature and Origin of the Jurisdiction . . . _ 2''.3-226 CHAPTER II. General Rules applicable to Mandamus. . . . 2''7-251 CHAPTER III. Xatube of the Duties enforceable bt JIandamci- 25''-''7'> CONTENTS. Vll CHAPTER IV. FAOES OrFICEB IN RESPECT OF WHICH A MaNBAMTJS HAS BEEN GRANTED . 273-293 CHAPTER V. Mandamus to Inferior Tribunals . 294-321 CHAPTER VI. Mandamus to Public Bodies and to Public Officers 322-360 CHAPTER VII. Pkocedure to obtain the Writ 361-373 CHAPTER VIII. The Writ 374-383 CHAPTER IX. The Return 384-412 CHAPTER X. PaOCBEDINGS subsequent TO ReTUBN 413-425 PAET IV. PEOHIBITION. CHAPTER I. Nature and Extent of the Jurisdiction . 426-435 CHAPTER II. General Principles regulating the Jurisdiction . 436-462 CHAPTER III. Applications of the precedikg Principles 463-484 vni CONTENTS. CHAPTEK IV. PAGES Pbocbdube to obtain the Wbit ...... 485-491 CHAPTER V. Pleadings and Subsequent Pboceedings 492-498 APPENDIX. Forms 499-566 Crown Office Rules, 1886 . 566-605 Costs (Order lxv., r. 7) 606-615 Table of Court fees to be taken in the Crown Office Department , 615-618 Appendix N. to the Supreme Court Rules and Orders, 1883 . . 619-625 Appeal to House of Lords 626-644 Index 647-697 TABLE OP CASES. Aberystwith Case . 276, 291, 323 Anon : — Abingdon, R. v. 276, 386, 388, 389, 1 Barn. 155' 278, 340 394, 402, 406, 408, 422 1 Barn. 195 . 286 . 375, 408 . 232, 285 1 Barn. 227 1 Barn. 252 276, 366 . 274 Abrahams, E. v. Acason, E. «. . . 124 1 Barn. 362 381, 385 Ackworth, E. v. 303, 305, 306 1 Barn. 402 . 3 18, 326, 354 Adams, E. u. . . 278 2 Barn. 24 . 280 Adamson, E. v. . 318 2 Barn. 27 . . 22 Admiral v. Linstead . 442 2 Barn. 87 . . 22 Admiralty, Case of i .he . 432, 448 2 Barn. 129 . 281 Agardsley; E. v. 229, 234, 235, 300 2 Bam. 166 . 21 Akroyd, Be . . 477 2 Barn. 235 366, 868 Aldborough, E. v. 284, 387, 397 2 Barn. 310 . 31 Alderson, E. v. 140, 158, 172, 179 2 Bam. 340 . 166 Alderton v. Archer . 471, 472 2 Bam. 426 . 237 , E. V. . 19 2 Barn. 437 . 280 Alexander, E. v. 11, 70 1 Chitt. 164 . 306 AUen, B. v. . 249, 340, 420, 423 1 Chitt. 254 . 366 AUeyne, E. v. . 101 1 Chitt. 627 . 314 AUgood, E. V. . 267 2 Chitt. 251 340, 358 All Saints, E. v. . 342, 493 2 Chitt. 253 . 275, 279 All Souls Coll., E. V . 277, 280 2 Chitt. 254 281, 286, 340,341,364 Almon, E. v. . . 8, 41, 66 2 Chitt. 255 . 5 34, 238, 343 Alsop, E. V. . 236, 264, 280 2 Chitt. 257 . 315 Ambergate Ey. Co., E. V. 329, 391 2 Chitt. 290 . 367 Amery, E. v. . . 204 Comb. 41 . . 287 Amherst's Case . 298 Comb. 71 . . 466 Amhurst's Case . 355 Comb. 133 . . 275 Amstell V. Lesser . 490 Comb. 257 . . 270, 345 Anderson, E. v. 54, 163 Comb. 264 . 285 Andover, Case of . 377, 382 Comb. 285 . . 281 , E. V. 284, 393, 421 Free. 21 . . 284 Andrews, E. v. . 133, 159 16 Jurist, 995 . . 26 Anfild V. Peverill . 486 2 Ld. Keny. 496 . 52, 53 Anon. : — L. Eec. 0. S. 479 . 52 1 Barn. 153 . 366 1 Lev. 148 . 285 TABLE OP CASES. Anon : — Lofft. 148 . Lofift. 155 . Lofft. 184 . Lofft. 185 . Lofft. 253 . Lofft. 315 . Lofft. 390 . Maroli. 141 2 Mod. 316 5 Mod. 374 6 Mod. 139 6 Mod. 308 7 Mod. 118 8 Mod. 187 . 12 Mod. 225 12 Mod. 410 12 Mod 666 Palm. 455 . 1 P. Wms. 476 1 Ld. Bay. 442 2 Roll. 107 2 Eoll. 327 . 2 Salk. 428 . 2 Sal k. 436. 2 Salk. 551 . 2" Salk. 525. 3 Salk. 104. 3 Salk. 202. 1 Sess. Gas. 271 2 Show. 155 1 Str. 63 . 2 Str. 696 . Sty. 346 . Sty. 355 . 1 Vent. 61 . 1 Vent. 267 1 Wils. 30 . Antrobus, E. v. Apleford's Case 264, 287, 288, 403, 404 Apleford, E. r. . . 236, 288 Apothecaries' Co. v. Burt . . 477 Appleton Tithe Commutation, Be 433 . 148 94,95 . 468 PAGE . 248 . 35 . 34 . 422 . 21 36,47 . 299 . 281 284, 366 . 242 . 314 . 453 282, 283 . 35 . 110 . 410 285 289, 300 . 379 . 427 . 453 . 296 . 432 . 421 284, 377, 382 . 466 . 381 . Ill . 421 . 301 439, 470 . 316 282, 333 . 279 . 280 . 439 . 393 . 383 266, 328 Archdall, E. v. Archer, E. v. Argyle v. Hunt Armagh Municipal Petition, Be Election 158 Armstrong, Be , R. V. PAOE 132, 307 204 360 360 328 30 Armytage v. Wilkinson Arnaud, R. v. Arnold, B. V. . Arrowsmith, B. v. . Askew, R. V. 89, 224, 260, 279, 283 Aston Union, Be . . . 125 Athay, R. v. . 27, 29, 45, 46, 55 Attorney-General v. Barker 428 V. Constable . 428 V. Shrewsbury Bridge of New South Wales V. Macpherson . V. Smith Attwood, E. V. Audly's Case . Aunger, E. v. Autridge, E. v. Axbridge, E. v. Aythorp, E. v. 59 71 72 V. Eay . 117, 124, 233, 277 . 281 . 47 . 176 247, 276, 285, 289, 398 . 124 Babb, E. v. . . 191,192,267 Backhouse, E. v. 115, 116, 124, 141, 205 Badcock, B,. v. . . . 125 Baddeley v. Denton. . . 490 Badger, E.«. . . 27,28,55 Badouin, E. «. . . .53 Bagg's Casi . 284, 324, 397, 398, 402 Bagwell V. Jobson . . . 286 Baker v. Clark . . . 473 V. Dickinson . . . 432 V. Rogers . . . 469 , B..V 355 Baketon's Case . . .288 Balby Turnpike Eoad, E. v. 229, 345 Baldwin, E. v. 48, 164, 278, 358, 423 Bangor, E. v. 132, 140, 143, 292, 324 341, 356, 357, 370, 373, 380 Bankes, E. v. 122, 232, 276, 278, 291 299, 323, 365, 368, 369 Banks, B.. v. . . . .79 V. Self . . . 474 TABLE OP CASES. XI Bank of England, E. v. 231, 234, 236, 266, 329, 335 Banker's Case . . .269 Bannatyne, R. u. . . . 360 Banque de Credit Commercial v. De Gas . . . 475 Barclay, R. v. . . . 312 Barker, R. v. 27, 29, 224, 252, 275, 279, 280, 281, 282, 311, 312, 408 . 478, 479 232, 298, 340 128, 233, 255 . 283, 285 229, 230, 283 . 267, 367 . 84 . 468 393 . 310 . 55 . 66 . 39 . 468 51, 161 Barlow, V. Palmer Se . R. V. Barnarc ,'R.v. Barnard's Inn, E. v Barnes, Ex parte R-v. . V. Shore Barnstable (Case of Recorder of) Barnstaple, R. ■;;. . Barratt, R. u. . Barrington v. R. . BaiTy O'Meara, R. v. Bartlett, Ex parte . Barton, R. i;. . V. Titmarsh Barzey, B. ■!;. Basset v. Barnstaple. Bateman, R. v. 246, 315, 369, 373, 427 . 482, 490 . 161, 163 285, 289, 393 ■Be . Bath (Recorder of), R. v. Bath and Wells, R. v. Bath V. Hawley Bathurst, R. v. Baxter, E. v. . Bayley, R. v. . Bayly v. Boorne Baylis, R. v. . Beard, E. v. . Beauclerk, Ex parte Beaufort, E. v. Becke, Ex parte Bedford, E. ■;;. . 465 230, 301 278 285 280 33 298 298 27 311 33 280 257, 307 124, 276, 290, 323 Bedford Level, E. v. Bedfordshire, E. v. . Beecher, E. v. Beedle, R. v. . 129, 233, 242, 282, 293 . 303 . 315, 381 232, 291, 326 PAGE Beeston, R. ,.. . 270, 329, 356 Belfast Lunatic Asylum, R. v. . 279 Bell V. Master in Equity . . 360 , R. V. Benfield, R. v. 303, Benn, R. v. Bennett, R. v. Benney, R. v. Benson v. Paull Bentley (Dr.), Case of Berohet and Others, R. v. Berkshire, E. v. Bermondsey, E. v. . Bertrand, E. v. Best, Ex parte Bester, B,. v. . Betsworth v. Betsworth Bettesworth, E. v. . Beverley, E. v. Bew, R. V. Bewdley (Corporation of). Case of B. & P. Patent Invention Co., Ex parte . Bickerton, R. v. Biddle, R. ■;;. . Bigley, R. v. . Bingham, R. v. Binsted v. Collins Biram, R. v. . Birch, R. v. . ■ , Be . 82 14, 53, 58 312, 315 . 201 124, 152, 153 . 226 282, 287 3 306, 308 . 356 . 85 . 367 . 140 . 453 381, 388 266, 328 9 21 . 257 . 46 179, 203 6 123, 124 . 465 . 331 178, 179 442, 451 Birkbeck, Ex parte . . 137 Birmingham, &c., Ry. Co., Be . 392 , E. V. 128, 233, 277, 291, 293, 327, 340, 341, 370, 374, 381 Canal Co., R. v. 249, 253 , &c., Ry. Co., R. V. 247, 330, 380, 408 Biron, R. v. . . . 321, 362 Bishop, R. V. . . . .40 Bishopsgate (Churchwardens) v. Beecher .... 312 Bishops' Stoke, R. v. . 300, 370 Bishop Wearmouth, R. v. 344, 370 Blackborough v. Davis . . 241 Blacket V. Blizard . . 466, 469 Blackmore, Ex parte 228, 241, 263 Blacquiere u. Hawkins . 431,455 XII TABLE OF CASES. Blackwall Ry., E. v. Blackwell's (Alderman) Case Blades v. Lawrence Blaaden, E. v. Blagrave's Case Bland's Case . Bland, R. v. . Blanshard, E. v. Blatchford, R. v. Blizard, E. v. . Blooer, E. ■;;. . Blunt V. Harwood Blurton, E. V. Blythe, E. v. . Bodenham v. Eicketts PAGE 250 255 298 . 177, 180 275, 284, 404 . 279 . 370 . 316 . 179, 183 146, 147, 169 283, 285, 353 437, 450, 469 . 30 . 236 442, 446, 447, 490 324, 493 . 38 Bolton, R. 1/. . V. Allen Bond, B. V. 124, 135, 167, 229, 301 Bonham's (Dr.), Case Bonsall, B. v. . Booth, R. V. . Boreman's Case Borron, R. v. . Bossiny, Case of Boston's Case Bosworth, R. v. Boteler, E. v. . Boughey, E. v. Boulton, R. V. Bowen, Be Bower R., v. . Boyes, E. v. . Boyle, Mc parte V. Boyle Boyles, E. v. . Bradlaugh v. The Queen Bradley, E. v. V. Sylvester Brady, Bx parte Braintree, E. v. Braithwaite's Case 394, 398, 402, 403, 420 Brame, R. v. . . . 157,162 Brancaster, E. u. . . 341, 389 Brayfield, R. v. . . 284,402 Brecknock Canal Navigation, R. «. ... 248,329 . 224 . 299 . 123 . 287 26, 4.5, 55 291, 323 . 164 281,404 . 312 . 300 .. 286 . 478 324, 391 7 . 298 . 466 123, 126, 174, 179 . 100 94, 123, 199 . 128 . 359 278, 336 Brecknock (Bally, &c., of), E. v. 284, 406, 407 Breedon v. Capp . . . 488 W.Gill . . .438 Brewers' Co. v. Benson . . 267 Co., E. V. 299, 300, 387, 393 Brice, R. V. . . . 52,362 Bridge, "Ei.v. . . 126, 140, 148 Bridge v. Branch . . . 473 Bridgewater, R. v. 141, 276, 278, 303, 323 Bridgman, R. v. . . . 247 Bridgnorth, B. v. 280, 324, 367, 425 Briggs, R. r. . . . . 157 Brighton, B. j;. . . . 324 Bristol, R. V. 276, 285, 298, 363, 389, 403, 412 Dock Co., E. V. 230, 240, 241, 335, 377, 383, 388, 389, 393 , &c., Ey. Co., Re . . 247 R. V. 248, 329, 330, 332 Bristow, R. v. 238, 240, 245, 355, 356, 366 Brocas v. London (Mayor, &c.) . 195 Broderip, R. d. . . 313, 315 Bromley, 5e . . . .297 Brooke, U. v. . . . 27, 56, 79 1;. Ewers . . .298 Brooks, E. v 136 Brown, E. v. 9, 155, 166, 171, 174, 180, 311 V. Cocking . . 450, 480 • V. Pal fry Bruce's Case . Brymer v. Atkins . Buckingham, E. v. . Buckinghamshire, E. v. 303, 312, 315 Buggin V. Bennett 442, 445, 447, 459, 487 . 465 395, 398 . 438 284, 410 BuU, R. V. . BuUer, E. v. . , Ex parte Bulwer v. Hase Bumstead, E. v. Burder v. Hodgson V. Veley Burdett, E. v. 31, 50 141, 326, 354 . 258, 288 . 460, 470 . 124 . 469 437, 442, 466 94, 504 TABLE OP OASES. Xlll Burdett v. Newell . Burke v. Richmond Bridewell . Burland v. Kingston-upon-Hull Burn, E. u. . Burnaby, R. u. Burslem Local Board, R. v. Bury and Stratton Roads, R. v. . Busby, R. V. . Bushel V. Jay. Bustard v. Stukely Butler V. Palmer V. Raws PAOB 486 275 337 45 482 338 345 30 486 438 420 421 451 298 Buttei'worth v. Walker Buxton V. Singleton Byerley v. Windus 453, 456, 457, 465 Byrom, R. v.. ... 317 Cadogan, R. «. . . . 268 Oaledonian Ry. Co., R. v. . 330, 564 Calne (Case of) . . .326 Caly V. Hardy . . .310 Cambrian Ry. Co., R. v. . 331, 391 Cambridge, R. ■;;. 237, 252, 259, 270, 276, 280, 285, 287, 291, 301, 312, 314, 323, 324, 325, 352, 367, 368, 369, 374, 376, 389, 397, 401, 402, 404, 411 University, R. v. 225, 282 Cambridgeshire, R. v. 302, 303, 311 Campbell v. Maund . . 338 Campion, R. u. . . 285, 402 Cann, H. v. . . . 129, 148 Cannon v. Smallwood . . 476 Canterbury (Mayor, &c., of), R. v. 285, 337, 407 (Archbishopof), R. ■!;. 228, 229, 231, 257, 259, 260, 264, 280, 283, 284, 296, 353, 354, 365, 366 Trinity College, Cambridge 280, 368 Carden, R. ■!; 317 CardifFBridge, Caseof . . 338 Cardigan (Corporation of). Re . 324 Oarlile, E. f 7,96 Carlisle, R. v. . . . 284,396 Carlton High Dale, Ex parte 271, 310 Carmarthen, R. v. 117, 118, 276, 301, 324, 358 Carnarvon, R. v. . 302, 303, 308 Oarnatic By. Co., R. v. . , . 333 Carpenter, R. V. 110,125,127,270, 336, 342 Carpenter's Case . 405 Carslake v. Mapledoram . . 470 Carter, B,. v. . 167, 312 Cartworth, R. v. . 308 Catchin v. Wargar . . 407 Caton V. Burton . 487 Cator, R. V. . . 96 Oatten v. Barwick . . 340 Central Criminal Court, R. v. 294, 295 Central Wales Ry. Co. v Great Western Ry. Co. . . 351 Chabot V. Morpeth . . 439, 486 Chad wick v. Ball . . 451, 482 Chalk, R. ■!; 284 Chalke, R. v. 396, 398, 401, 402 Chambers v. Green . . . 444 V. Jennings . . 432 Chapman, Ex parte . . 19 , R. •;;. 277, 406, 421, 422 Chafipel, R. V. . . .49 Oharkieh, the . . 441, 451 Charlesworth, R. ■;;. . . .7, 69 Cheadle Highway (Trustees of), R. w 248 Savings Bank, R. v. . 359 Cheek, 'Si.v. ... 407 Cheltenham (Commissioners of), E.w 339 and Swansea Rail- way Carriage, &c., Co., Be . 24 Cheshire, R. ■«. . . 301, 303 Cheshunt, E. u. . . . 281 Chester, R. v. 230, 236, 254, 258, 259, 277 279, 280, 282, 283, 284, 286, 288, 352, 377, 382, 387, 388, 396, 403 (Bishop of), R. V. 233, 235, 242, 264, 279, 286 ( ) V. Harward 467 (Mayor, &c., of), R. v. 230, 233, 326 Chesterton w.Farlar. . 429,485 Chew V. Holroyd . . 475, 493 XIV TABLE OF CASES. Chichester Case , B. V. PAGE . 315 284, 297, 328, 353, 363, 412 ■ (Bishop of), R. V. ■ V. Donegal V. Harward . 253 439, 470 . 277 . 454 . 298 140, 167 . 479 . 85 . 21 271, 286, 357 83 Chickham v. Dickson Chilton, R. u. . Chitty, R. «. . Chivers v. Savage . Chorley, R. v. Chote (or Tuite) v. Fawkes Christchurch, R. v. . Christie, E. v. Church V. Inclosure Commis- sioners . . . 433,495 Cukeit, Ex pa/rte . . 286,365 Clapham, E. v. 274, 281, 354, 357 Clarke, E. v. 101, 141, 152, 179, 180, 202, 290, 311 V. Sanim (Bishop of) 233, 279 V. Leicestershire, &c.. Canal . 336, 421 Clark's Case . . 401 Clark, E. v. . 239, 270, 271, 355 190 Clay V. Snel grave . 442 Clear, E. v. . . 229, 244, 265 Clement, E. v. . 24 Clerk, E. u. . . 8,99 447 Clerk's Case . . 284 Clerkenwell, E. v. . 277 Clitheroe, E. v. 280, 281, 367, 379, 405 Coaks, E. V. . . 140 Cobhett, E. v. . 8 Cobbold V. Pryke . 476 Cockburn, E. v. . 301 CockermouthCommsisioners,E.i'. 251 Cockshaw, E. v. . 51 Codd, E. V. . . 312 Coggan, E. u. . . 299 Cohen & Jacob, E. V. . .85 Colchester, E. v. 122, 123, 232, 280, 285, 290, 326 Coldbath (Governors of), E. v. . 359 Cole, R. V. . . 167 PAGE Coleridge, H. v. . 228, 241 Coleshill, B,.v. . ■ ■ 357 College of Physicians, R. v. See R. V. Physicians (College of). of Surgeons, E. v. See E. V. Surgeons (College of). Collins' Case . . . .285 , 'R.v. . . . 124, 133 Combe v. Pitt ... 24 Commissioners of Appeal, E. v. . 350 of Customs, E. V. 235, 350 of Stamps and Taxes, E. v. . . . 350 of Excise, E. V. . 350 of Bequests, E. v. 374 of Dean Inclosure 'R.v. . . . 238,243 of Land Tax, E. v. 277, 339 of Sewers, E. v. . 246 of the Fens, B. v. 391 Compton, B. ti. . . 31, 35 Conservators of Thames and Isis, E. -y 249 Consistorial Court of London, R. v. 466 Conway, R.v. . . .6, 78 Conyers, E. v. . 295, 298, 379 Conyngham, B. v. . . 236, 295 Cooban, R. v. . . 124, 140, 159 Cook, Ex parte . . 257,297 Cooke v. Gill . . . .471 Cookson, R. V. . . . 359 Copeland v. North-Bastern By. Co. 334 Corbett, E. v. . 300, 422, 564 Cornelius, R. v. . . . 191 Cornforth, R. v. . . .25 Cornwall, R.v. . . 303, 305 Corpe V. Glyn . . . 334 Corrigal, &c., Ry. Co., E. v. . 331 Cory, E.I). . . . 285,366 Corye, R. v. . . . 379 Courtenay, E. v. . 141, 180, 202 Cousins, R.v. . . 150, 175 Coventry Case . . . 379 . R- V. 275, 284, 366, 390, 393, 394, 402, 404 Cowan, Ex parte . 428, 447, 459 TABLE OF CASES. XV Coward, B. v. . €owell, R. V. . Cox V. Copping V. Semor . Cozens, R. v. . PAQE . 123 . 154 . 267 . 498 28,55 Crawford v. Powell 326, 354, 387, 420 Crawford's Case ... 23 Crawshay, Ex parte . . 33 Crickdale, B,. v. . . .85 Crips V. Maidstone . 284, 393, 402 Crisp V. Bunbury . . . 359 Crosby v. Portescue . 300, 366 Crosby-upon-Eden, Re . . 433 Cross, R. v 133 Croydon, B. v. . 275, 287, 341 Cudlipp, R. ■«.. . . 154,155 Cumberland, B. v. 301, 310, 316, 319, 363 Cunningbam, E. i). . . . 326 Curl, B..V 7 Curser v. Smith . . .298 Customs (Collector of), E. v. 229, 230 (London Collector), B. v. 360 (Liverpool Collector), n.v.. , . . . .360 (Commissioners of), R. v. 225, 235, 350 Cutlers' Co., B. i;. . . 286,366 Dalby, R. v. . Dale, Ex parte Danser, R. v. . Dangers, E. v. Darby v. Cozens Darley v. The Queen Darlington, B v. . 341 . 19 298 . 99 454, 465, 485 113, 121, 125, 127, 129, 274 234, 262, 285, 397, 398 Dartmouth, R. v. 285, 312, 315, 324, 387, 416 Davies, R. V. . 128,157,286,897 Davis, R. « 29 V. Flagstaff Mining Co. 452, 472 V. Walton Davy, Ex parte Davy's Case . Daw V. Eley . 476 314 428 24 PAGE Dawbeny, E. v. . . 127, 128 Dawes, R. v. 122, 124, 135, 149, 157, 171, 204 Day, H.v. . . . 164, 298 Dayman, B.. v. . . . 304 DayreU, R. i; 312 Deacon, Ex parte . . . 297 Dean Inclosure Commissioners R. ". ... 238, 243 Death, Ex parte . . 440, 471 De Bode E. v. . . 229, 346 D'Eon, Kv 9 De Haber ■;;. Queen of Portugal 440, 441, 474, 485, 495 Deighton, H. v. . . . 398 De la Costa v. Eussian Co. . 282 Delamere, E. v. or Delamere V. E. . 345, 382, 383, 417 Delaval, E. v. . . .25 Denaby, &c., Co. v. Manchester Ey. Co. . . 351,462,484 Denbighshire, E. v. 229, 278, 301, 303, 314 Dendy, E. v. . Denison, Ex parte . ■ , E. t/. 299, 564 . 468 . 30 .' 461 14,46 . 334 Denne and Spark's Case Dennison, E. v. Denton Colliery Co., lie Denton v. Marshall 449, 454, 458, 459 Deptford Pier Co., E. v. 251, 269, 333, 373 Derby, R. v. 233, 271, 280, 284, 291, 382, 398, 399, 400, 401 Derbyshire, E. o. 301, 307, 331, 333 De Eutzen, E. v. Devises, case of Devon, E. v. . Devonshire v. Poote Dickenson, R. v. Dicks V. Yates Dighton V. Stratford Dighton's Case Diplock, E. V. Dixon, E. V. . V. Farrer Dodson, E. v. . Doherty, E. v. . 319 . 284 303, 309, 315 . 462 . 53 498 ■on-Avon 284,404 . 402 123, 133, 179 . 123 . 80 55, 237, 244, 296 22, 36 XVI TABLE OP CASES. PAGE Dolben'sCase . . 281,282 Dolby V. Eemington . . 465 Dolgelly, R. v. 274, 286, 287, 290, 369 Doncaster, B. o. 276, 281, 284, 395, 396, 397, 398, 402, 403 Dorchester, E. v. . . 315, 410 Dorset, E. ■!; 435 Dorsetshire, '&. v. . . . 301 Douglas, E. 1). . . .6, 82 Dover, B.«). . 284,325,381,388 Dowling, R. ■». . . . 298 Downes, E. o. . 123, 178, 205 Downton, Ex parte . . 239, 358 D'Oyley, E. v. . 277, 315, 340 Drake's Case . . . .303 Drake, B. v 310 Draper, 'R.v.. . . .54 Driver v. Driver . . . 487 Droitwich Salt Co., Be . . 334 Dublin, B. ■;;. . . . 279, 284 Dudley, B. v. 140, 141, 170, 172, 204, 205 DufBeld, Ex parte . Duffy, 'S..V. . Duggan, B. V. Dullingham, E. v. . Dulwich College, E. v. Dummer, B. v. DuncaD, E. v. Dunelm (Ep.), E. v. Dunford, Be . , Be . 282, 292 . 70 . 6,78 . 299 279, 564 . 23 . 85 . 234 . 438 . 478 . 138 462, 465 132, 285, 401 284, 289 Dursley, E. v. . . . 341 Dutens v. Bobson . 453, 466, 469 Dyer, B. v. . 124, 312, 315, 317 Earle's Case . . . .401 Bamshaw, U. v. . . . 169 East Anglican By. Co., B. v. . 371 Eastern Counties By. Co., E. v. 243,263, 329, 330, 332, 376, 391 East & West India Docks, &c.. By. Co., E. u. . . . 330 Dunn, Be V. Coates Durham, E. v. , Case of Mayor of East & West India Docks Co. v. Gattke . . . .331 236, 249, 269, 345, 369 Co., E. V. 330, 372, 373 East India Co., E. v, East Lancashire By, Eaton, E. v. . Eddowes, E. v. Eden, B. v. . Ede V. Jackson Edgar, B. v. . Edye, E. •;;. . Edyvean, E. v. Ef6nghani, B. v. Bldridge v. Fletcher Ellams, B,.v.. EUershaw, B. v. Ellis, E. V. . V. Fleming V. Watts EUissen, Ex parte Elstone v. Eose 7,310 . 124 . 47 . 485 . 175 124, 166 . 276 . 308 . 298 . 179 . 320 311, 312, 315, 365 444,472 . 479 . 317 450, 480 Ely (Bp. of), E. V. 236, 237, 258, 259, 272, 278, 280, 288, 352, 353, 354, 390, 495 Emery v. Bamett . V. Malmesbury . 476 . 280 284420 . 20 . 306 301, 304, 312 Enfield v. HlUs Epps, E. V. Erie, E. v. . Essex, E. V. . (Commissioners of), E. v. 338, 339, 390 (County Court Judge of), E. « 476 Estwick V. City of London 260, 409 Evans, B. v. 285, 304, 365, 388, 393 -, Ex parte - V. Brown - V. Gwyn Eve, B. u. . Everard v. Kendall . Bversfield v. Newman Everet, B. v. . Everett, E. v. Bverton, Overseers of, Ex parte 482, 497 Evesham, E. v. . 276, 278, 326 Excise Commissioners, E. v. . 350 465, 488 . 465 465, 468 . 52 . 476 . 488 232, 244, 354 . 476 TABLE OP CASES. XVll l^xeter (Bp.), R. v. 229, 246, 280, 283 .(Chapter), E. v. . 233, 277 (Dean), R. v. . . 284 (Mayor, &c.), R. v. 325, 390, 402, 409 V. Glide . 284, 400, 402 Exon, Kv. . . . 398, 400 Eye, E. v. 253, 254, 261, 281, 324, 325 Eyre, R. ■;; 310 FaU, R. V. 268, 342, 418, 421, 422 or Pull V. Hutcliiiis . 437, 438 Parquhar, R. v. Parrer, R. v. Parringdon, R. v. Farrow v. Hague Faulkiier v. Elger Faversham, R. v. Pelkin v. Herbert . 318 . 316 319, 336 431, 461 279, 285, 341, 420 286, 395, 397, 398, 403 . 24 Pens (Commissioners of the), R. v. 391 Pentiman, Ex parte . 26, 38 Fernandez, Ex parte . . 294 Ferrand, R. «. . . . 358 Field, 'K.v. . . . 230, 283 Fielding, R. w. . . 35, 55 Pilewood, B,.v. . . .79 Pirebrass's Case . . 431, 439 Fisher, R. v. . 24, 124, 167, 315, 367 Fishhoume, B.. v. . . . 331 Pitton V. Richardson . . 431 Fletcher, H. v. . . 57, 298 Flintshire, R. «. . . 301, 304 Plockwold, B..V.. . 253, 261 Flounders, Be ... 38 Fludier v. Lombe . . . 280 Foot V, Prowse . . . 421 Ford, Kv. . . . 34, 249 V. Welden . . . 442 Pordham v. Akers . . . . 476 Forstec v. Forster . 432, 460, 485 'Be . . . .443 Poster, R. w. . . . 171, 174 , V. Great Western Ry. Co. 483, 498 -. V. Hide . . .465 , Be ... . 427 PAGE Foster v. Temple . . . 478 Potherby v. Metropolitan Ry. Co. 330 Foundling Hospital, .^os^arfe . 367 Fountain's Case • . . .10 Fowey, R. v. 231, 251, 252, 254, 276 Fowler, R. u 89 Pox, R. t;. . . 29, 128, 359, 367 Francis, R. v. . . 123, 137, 140, 204 V. Steward . . . 465 Franklin, R. ■;;. . . 81, 140 Free v. Burgoyne 453, 467, 469, 498 Freeman v. Phillips. . . 420 French v. Trask . . 456, 465 Priar, B.v 34 Friendly Societies (Registrar of), R. V. . . . .360 Prieston, R. u. . . . 302 Frost, B,.v. . . 84, 248, 328, 363 V. Mayor, &c., of Chester . 122 Fvliev, JEx parte . . . 313 Pull or Fall v. Hutohins 437,438, 457 Pullarton, R. v. . . .84 Fuller V. Maekay . . . 477 Puller's Case . . . .498 Gadsby, R. v. Galizard v. Rigault . GaUisand o. Rigaud . Gamble, R. v. Grardnev, R. v. V. Booth V. Parker . . 364 . 465 . 466 237, 243, 330 83, 334 439, 468 . 466 . 460 . 300 . 328 . 337 286, 397 . 317 Gare v. Gapper Garland, R. v. Garrett, R. «. . Gaskarth, R. v. Gaskin, R. v. . Gateshead (Justices), R. v. Gay «.. Cross 280 General Council of Medical Edu- cation, 'R. V. . . . .264 Gent, Ex parte ... 22 Gerrard v. Sherrington . . 486 Gibbon, 'R. v 311 Gibbsv. Cann . . .432 Giles's Case 318 Gillman v. Wright . . .281 XVlll TABLE OF CASES. PAGE Ginever, n. v. . . . 179 Glide, E.'y. . . 394,398,402 GlosBop V. Heston and Isleworth Local Board . . 225, 337 Gloucester, E. v. 261, 281, 284, 285, 302, 324, 375, 393, 394, 397, 399, 400, 401 Gloucestershire, E. v. . 307, 358 Goddard's (Dr.) Case . 283, 287 Godfrey's Case . . .486 Godland's (Dr.) Case . . 224 Godmanchester, E. v. . . 337 Godolphin, E. v. 228, 314, 315, 317, 367 Godwin, n.v. . . . 167 Gold V. Turner . , . 471 Goodrich, R. v. . . . 272 Gordon, B.. v. . . . 9, 315 Gorham v. Bishop of Exeter . 431 Gosling V. Veley . . . 466 Goudge, E. v. . . . 123 Gough,E. v 89 Gould tf.Gapper 437,457,460,464 Goulson V. Wainwright . . 432 Government Stock Investment Co., E. ^?. . . . .333 Gower, E. v 289 Grampound, E. v. 233, 242, 276, 412 Grant v. Gould . . 431, 459 Grantham, E. w. . . .298 Gravesend, E. v. . . . 274 Gray's Inn, E. «. . . 237, 283 Gray v. Tench . . .381 Greame, E. v. . . . 312 Great Paringdon, E. v. . 265, 357 Great Northern Ey. Co., E. v. . 331 Great Western Ey. Co., E. v. . 234, 330, 331, 333, 372, 390, 391, 564 . V. E. . 329 V. Eail- . 483 way Commissioners ford, &c., Ey. Co. - V, Water- V. Cen- 483 tral Wales Ey. Co. . . 484 Greene, E. v. . 153, 168, 272, 354 Green, E. v. . 26, 34, 71, 340, 421 V. Colduck . . .486 V. Mayor of Durham . 282 PAGE Green v. Pope . . .421 Greenlaw Eoad Trustees, B. v. . 345 Gregory, E. v. 11, 14, 15, 17, 46, 47, 59, 71, 113, 130 w. E 97 Griffin i;. Ellis . . 460,464 Griffiths, B. V. 124, 247, 276, 289, 403, 411, 414 V. Anthony Grimes, E. v. . " . 467 . 179 Grimshaw, E. v. 116, 123, 205 GroBvenor, E. v. . . 30 Guildford, E. v. 289, 366, 397 Guise, E. v. . , . 404 Guy, E. v. . , . 404 Gixnmaiers' Co., E. v. , . 282 Gwilt, E. v. . , 22,35 Gwyn, E. V. . . . 194 Hackney District, E. v. . 249, 338 Haddock's Case . 284, 395, 401 Hadley, E. u 21 Hale, E. w. . . . 230,300 Halesowen Ey. Co. v. Grreat Wes- tern Ey. Co. and Midland By. Co 484 Halifax, E. «. . . . 238, 357 Hall, E. v. . . 116,124,205 V. Maule 466, 468, 469, 492 V. Norfolk Estuary Co. . 334 Hallack v. University of Cam- bridge Halliday v. Harris Hall's Case . Halls, E. V. . Halpin, E. v. . Halse, B. u. . Halsmere, E. v. Hammersmith, E. v, Hammond, E. v. Hampton, E. v. Hand, Be Handsley, B. v. Hankey, E. v. Hanley, E. v. . Hann, E. v. . Hants, B. v. . . 457 460, 479 . 241 233, 234, 317 . 94 . 284 . 379 341,344 . 123 . 125 . 346 311, 313 . 22 . 165 28,92 270, 305, 311 TABLE OP CASES. XIX PAGE Hard wick v. Brown . .142 Harden, R. u. . . . 298, 475 Hare, B,. v 338 Harington v. McMorris . . 474 Harland, E. ■;;. . 51, 161, 294 Harrald, R. ■». . . . 156 Harries, B.. v 40 Harrington v. Eamsay . 429, 480 Harris, R v. 6, 30, 39, 69, 78, 136, 242, 281, 340, 405 ,Be . . 128,146,148 Harrison, R. v. 9, 41, 167, 237, 281 , 357 • V. Williams Hart, R. v. . V. Marsh Hartley, R. v. V. Ayurst Harvey, R. ■«. . Harwich, R. v. Harwood, R. v. Hasleham, JEx parte Hassel's Case . Hastings, R. v. Haswell, R. v. Havering-atte-Bower, R. v. 192, 267 . 96 . 470 40, 169, 175 . 477 8, 123, 140 . 325 163, 165, 404 . 51 . 314 254, 298, 312, 327 19,46 Hawes v. Paveley . Hawkins, R. v. Hawley's (Lord) Case Haworth, R. v. Hay, R. u. . Hayward, R. v. Head, R. u. . Headley, R. v. Hearle, R. «. . Heathcote, R. v. Heaven, R. f. . Heber, R. v. . Hedges, E. «. . Hedley v. Bates . . .462 Hely, B,.v 54 Heming, B. v. . . 29, 37, 38 Henchman, R. v. . . . 282 Henderson v. French . . 467 Hendon, B. v. . . . 299 Herbert, B,. v. . . .31 Hereford, R. v. 281, 381, 387, 388 (Dean), K v. . . 279 254, 255, 298, 327 . 471 126, 140 . 411 . 341 . 242 . 124 . 195 . 164 202, 387, 388 246, 278 144, 164, 326 50 163 PAGE Herefordshire (Justices), R. v. . 129 Herford, B. v. . . 431, 432, 483 Hermitage's Case . . . 285 Hertford, E. v. 56, 111, 112, 113, 127, 175, 302 College, E. v. 228, 231, 237, 249, 277, 279, 280, 290, 293 Reward, Be . . ' . . 350 , E. V. Hewes, E. v. ' 258, Heydon, E. v. . Heywood, E. v. Heyworth v. London Hexham, E. v. Hext, E. V. Biggins, Ux parte Highmore, E. v. Hilbers, E. v. . Hildebrand's Case Hill, E. V. . , Be ■ V. E. . V. Bird . V. Manchester HUliard v. Jefferson Hillingdon, B. v. Hinchliff, B. v. Hindmarch, Ex parte Hioms, R. V. . Hitchin, Case of Hodge, E. V. . Hodges V. Atkis Hodson, E. v. . Hoey V. McParlane Holford, E. V. . HoU, E. V. . HoUand, E. o. 6 Holland & Foster, E. HoIUngshead's Case Holloway and Allen Holmes, E. v, . Holt's Case . Holt, E. V. . Home V. Camden Hooper, E. v. . Hopkins, E. v. . 253 264, 305, 306, 308 53, 276, 367 . 229 Mayor, &c., of . 450 299, 300 . 39 . 483 113, 123, 176 25,53 . 486 124, 387 . 477 . 275 . 449 . 194 . 465 . 341 . 317 137, 139, 140 . 140 . 442 . 157 . 267 . 137 477, 488 . 326 . 351 11, 33, 55, 69, 71 . 23 B.V. . 465 . 19 284, 409 375, 465 89, 175, 285 436, 494, 495 . 33 234, 298, 326, 354, 377, 382 b 2 XX TABLE OF CASES. PAGE Hopper V, Warburton . . 477 Hornby, B,. v. . . .92 Home, E. V. . . . . 8 Horsbam Case . , . 124 Horsnail v. Bruce . . . 478 Horton, B. v. . 277, 278, 314 Hoskins, E. v. . 276, 406, 408 Howell, B,.v 113 Hubbard v. Penrice . . 282 Huddersfield Corporation v. Great Nortbern Ey. Co. . . 484 , B,.v. . . . 356 Hudson, E. I). . . . 124 1;. Tootb . . .467 Hughes, E. V. 45, 55, 143, 145, 156, 163, 167, 168, 230, 253, 312, 388 Hull, E. w. . . . 280,336 (Eecorder of), E. «. . . 305 . and Selby Ey. Co., E. v. 234, 331 V. McFarlane. . . 478 Hulston, E. I). . . 124, 128 Hulton, E. «. . . . 355 Hungerford, E. «. . . . 132 Market Company, Re 333 Market, E. w. . . 333 Hunt's Case .... 306 Hunt, 'R.V.. . . 8, 78 V. G-reat Kortbem Ey. Co. 476 V. North Staffordshire Ey. Co 449,479 Huntingdon, E. t». . . . 311 Huntingdonshire, E. v. . . 301 Hurst's Case . 285, 289, 298, 355 Hurstboume Tarrant, E. v. . 342 Hutchinson, 'R.v.. . 397, 399 , Ex parte . . 433 Hutt, J£xpa/rte . . 267, 367 Hutton V. Fowke . . . 441 Hutton's Case . . .465 Huxham, B,. v. . . . 153 Hythe (Mayor of), E. i». . . 324 Ibbotson's Case . . 119, 129 Ilchester, E. v. 254, 276, 299, 327, 386 He's Case . . 279, 286, 287 Ingham, B.v 317 IngletoD, E. V. . . . 300 PAOB Ingram, E. u. . . . • 326 Inspectors of Irish Fisheries, E. v. 249 Ipswich (Bailiffs), E. v. . 280, 310 (Eecorder), B-v.. . 301 , E. V. 376, 381, 382, 386, 398, 403 Ireland, E. ». . . . . 123 Irish Land Commission, Se ■ . 433 Midland Ey. Co., E. v. . 334 Poor Law Commissioners, E. u 279 South-Eastem Ey. Co., E. v. 330 Irving V. Askew . . , 249 Isherwood, E. «. . . .24 Isle's Case . . . .289 Jackson, E.'tr. V. Beaumont 26, 27, 50, 55 442, 449, 481 . 471,473 Jacobs V. Brett James v. London and South- Western Ey. Co. . . . 432 Jarvln, E. «>. . . . . 308 Jay, E. t> 284 Jay's Case . . . 401, 409 Jefferson, E. o. . . . 165 V. Bishop of Durham 427, 435 Jennings, E. «. . . .31 Jenour, E. t» 20 Jersey (Dean of) v. Eector of . 469 Jewell V. Horwood . . . 431 Jeyes, E. v. 239, 240, 246, 271, 355, 356 Joint Stock Companies (Eegistrar of), E. V. Johnson, E. v. Jollie, E. V, . Jolliffe, E. V. . Jones, Ex parte , E. V. ■ V. Currey ■ V. James - V. Jones ■ V. Marsh ■ V. Owen ■ V. Stone . 359 79, 199, 493 39, 45 13, 23, 29, 50, 95 . 23 29, 41, 52, 82, 118, 143, 162, 167, 312 449, 479 447,481 . 477 . 38 476,481 465, 466 (Trustees of) v. Gittins 477, 479 TABLE OF CASES. XXI Jordan v. Wilcoxon Jorden, K. v. . Joseph. V. Henry Jotham, B. V, . Jukes, K. «. . PAdE . 491 . 392 450, 451, 480 . 230, 285 . 316 Julius V. Bishop of Oxford . 255 Juxon V. Byron . . 437, 438 Kadwalader v. Bryan . . 486 Kealing, E. «. . . . 497 Kelk, R. v. . . . 282,387 Kemp, ^. V. , . . . 155 Kendall, E. v. 228, 232, 279, 383, 386, 387, 411 Ken's Case . . . .283 Kensington, E. w. . . 253,357 Kent,.E. v. 9, 257, 262, 301, 302, 303, 310, 358, 363 Kerkin v. Kerkin Kesteven, E. v. Kiddy, E.?;. . Kido V. Watkinson Kimptdn v. Willey King, Ux parte V. Welby King's Case . Kingsclere, E. v. . 453 . 302, 303 . 314 . 286 454, 458, 477 230, 297, 310 . 428 . 282, 341 . 285, 289 King's Lynn, E. v., 315, 388, 389, 423 Kingston-upon-Hull, ,E. v. 281, 323, 374, 381, 382 Kinnersley, E. v. Kintoiil, E. V. Kirby, E. v. . Knapton, E. v. Knight, E. v. . , Be . Knipe w. Edwin Knowles v, Holden Kynaston, E. v. Kynaston v. Shrewsbury . . 14 . 15 . 124 . 281 58, 124, 180 . 475, 476 . 280 442, 448, 449 21, 315 . 418 Labouchere, E. v. . 14, 15, 16, 17 Lambert's Case . 281, 285, 387 Lambert & Perry, B,. v. . . 504 ■ , E. «. . . 8, 279 Lambeth, E. v. . 277, 340, 344 PAQE La Mert, JSx parte . . . 264 Lancashire, E. v. 29, 52,251,262,278, 301, 303, 309, 314, 319, 362, 422 Lancaster, B,.v. . . 124, 393 Land Tax Commissioners, E. v. 277, 339 Lane, E. v. . 123 163 , 284, 399 Langhorn, E. v. . 154 Langley, E. v. . 397 Langriville, E. v. . . 356 Larkin, B,. v. . . ■ 84 Larrieu, B.. v. . . 22 Latham, E. v. , 156 Latimer, E. v. 15,99 Law, E. «. . 257, 297 , Ex parte . 469 Lawford v. Partridge . 476 Lawless v. Commissioners of Police . 365 Lawley, E. v. . 23 Lawrence, E. v. 8,124 Lawson, E. v. 23,33 Leatham, E.- v. . 6,90 Lebeau v. General Steam Navi- gation Co. . . . 472 Lechmere, E. v. , . 356 Lechmere Charlton's Case . 23 Le Cren, JEx parte , 275, 277 Ledgard, E. v. 324, 383, 421 Lee's Case , 250, 281 Lee, B. V. , 24, 312 , Ux parte 30, 324, 329 "v. Oxenden . 237, 241 Leeds, E. v. 122, 132, 140, 141, 142, 165, 276, 280, 292, 324, 375 , &c.. Navigation v. E. . 250 Leicester, E. v. 265, 284, 311, 400, 423 (Deputies, &o., of) E. v. 258 Leicestershire, E. v. 302, 306, 309 Leigh's Case . . ' 245,288,295 Leigh, E. v. . . 21,85,178,202 Leman v. Groulty . 460, 465, 468 Le Tailleur v. South-Bastern Ey. Co 472 Lewes, B. v. . . , . . 316 Lewis, B.V. . . 50, 168, 313, 358 Lexden and Munster Union v. Southgate . . . .478 XXll TABLE OF CASES. PAGE Leyland, R. t>. . . . 323 Lichfield, E. j;. . . 257,278, 324, 325 Lilley v. Harvey . . 476, 480 Lincoln, E.i;. 237, 257, 258, 264, 281, 352, 375 (Bishop of) V. Smith . 469 Lincoln's Inn, R v. . 230, 237, 283 Lincolnshire, 'R. v. . . . 301 Lindsey, 'R. v. . . . 302 Litchfield, B. «. . . . 366 Littledale, B. u. . . 228, 360 Littleport, E. v. . . 358, 382 Littler v. Thompson . . 24 Liverpool, E. v. 270, 284, 302, 324, 368, 396, 397, 398, 482 , &c., Ey. Co., E. V. 251, 334 V. Everton . . 450 Llandillo Commissioners, E. v. 229, 344 Lloyd V. The Queen 116, 118, 123, 149, 185, 204 ,'R.v 128 V. Jones . . . 476 Local Government Board, E. v. 350, 434, 440 , Be . 434, 440 , E. V. 489 Lodge, ife . . 230,270,310 Lofthouse, E. r. . . . 153 London v. Swallow . . . 373 (Aldermen of), E. v. 275, 286 (Bishop of), E. V. . 229, 230, 246, 248, 280, 283, 285, 353 (Mayor, &c., of), E. v. 228, 230, 247, 260, 276, 280, 281, 286, 289, 301, 314, 323, 370, 389, 393, 397, 401, 411, 423 V. Cox 426, 427, 443, 444, 445, 447, 448, 451, 455, 471, 473, 474, 486, 487, 494 London Assurance Co., B. v. 232, 234, 236, 335 London and Blackwall Ey. Co., B,.v 331 London and North-Western By. Co., B.v. . . . 247, 251 London and South- Western Ey. Co., E. «. . . . .330 London Court of Bequests, B. v. 298 London Docks Co., E. v. 333, 412, 417 London General Cemetery Co., Kv.. . . .344 London Waterworks, E. v. . 288 London Customs Collector, E. v. 360 London Joint Stock Bank v. Mayor of London . . 475 Londonderry, &c., Ey. Co., B. v. 334 Long, E. V 313 , Re . . . .423 Lord V. Francis . . . 421 Love V. Bentley . . 266, 267 ,'R.v. . . . .280 Lowe, Ex pa/rte . . 282, 866 Lucas, E.V.. . . . 267 Ludlam, E. -y. . . . 281 Ludlow Union v. Birmingham . 420 Lush V. Webb . . .453 Luton Eoads Trustees, E. v. 344, 391 Lyford's Case . . . 435 Lyme Eegis, B. i;. 284,292,379,387, 388, 390, 395, 398, 402, 412, 415 Lynn, R.v.. . . .25 Macclesfield, R. v. . 320 MacDougall v. Patterson . 255 MacgiU's Case 23 Machell v. Nevinson 396 Machen, R. v. 311 Mackonochie v. Lord Penzance 460, 461, 464, 468, 470, 490 McCann, E. v. . 312, 313, 315 Macleod R. v. . . .79 Maddy, R. v 141 Magor, Be . . . .490 McGowan, E. v. . 123, 140, 141 Mahon, E. v. See E. v. O'Gorman Mahon. Maidenhall Savings Bank, E. v. 368 Maidenhead, E. v. . 327 Maidstone, E. v. 267, 299, 388 Mainwaring, E. v. . 386 Maiden, K. v. . 204, 277, 386 Malmesbury, E. v. . 371 TABLE OP CASES. XXllI PA0E Manaton's Case , 280, 387, 409 Manchester, E. v. 282, 324, 342, 366, 418 Manchester, &c., Ey. Co., E. v. 51, 161, 275, 330, 372, 391 Manley Smith, E. u. . . 360 Mann, E. u 85 Manning v. Farquharson . . 473 Manor of Old HaU, E. I/. . 295,298 Maraquita, &c., E. v. . . 333 March, B..V. . . . 404, 410 Margate Pier, E. v. 235, 376, 382, 383, 411, 421 Markam, Ex parte . . . 319 Market Bosworth, Case of 438, 465, 469 Market Street, Manchester, E. v. 333, 410 Marlborough (Duke of). Ex parte 19 Marriage v. Laurence . . 194 Marriott, B.. v. . . 315, 412 Marsden, E. v. 83, 113, 119, 127, 129 Marsden v. Wardle . 448, 481 Marshall, E. v, 26, 35, 40, 123, 157, 171 Marsh v. Dewes . . . 476 Martin's Case . . . .23 Martin, E. w 311 Martin v. Mackonoohie 430, 442, 443, 460, 464 Marylebone, E. v. Martyr, E. v. . Marwood v. Walters Mashiter, E. v. Massey v. Burton Mawbey, E. v. Mawey, Ex parte Mawey, E. v. . May, E. v. Mead, E. v. . Mears, E. v. . Medlicoat, E. v. . 265 . 311 . 475 123, 156, 165 . 488 . 95 291, 293 . 233 . 169 . 16 . 364 . 149 Medwin and Hurst, Ex pa/rte 441, 469 Mein, E. v. 49, 123, 156, 163, 164, 167 Mekins v. Minshaw . . . 432 Mendyke v. Stint . . . 447 Merchant Taylors, E. v. . 266, 267 Meredith t;.Whittingham. . 478 PAOE Metropolitan Board of Works, E. v. Metropolitan Commissioners of Sewers, E. u. Metropolitan District Ey. Co., B..V. Mews, v.'R. . B,.v. . 338 339 332 315 316 480 477 McPee, Ex parte Michael, Ex parte . Middlesex, E. v. 257, 258, 264, 278, 282, 301, 302, 303, 304, 305, 306, 309, 312, 313, 314, 315, 319, 359, 371 (Archdeacon), E. v. 249, 292, 367 Asylum, E. v. . 260 House of Correction, E. 6; 359 Middleton's Case 284, 285, 288, 289 ^Middleton V. Croft . . .453 Midhurst, B,. v. . . . 280 Mildenhall Savings Bank, E. v. . 359 Mildmay, B. v. . . . 300 Miles, B.v 46 Milner, Ex parte ■ . . . 298 Milner, E. v 160 Mills, E. V. . 263, 315, 376, 406 Milverton, E. v. 277, 298, 370, 385 Milward v. Thatcher . . 143 Mirehouse, B..v. . . 312, 315 McKay, E. v. 115, 116, 117, 123, 166, 177, 179, 205, 364 Monck, E. u. . Monday, E. v. Monmouth, E. v, Monmouthshire, E. v. Montacute, E. v. Montague, E. v. Montgomery v. Blair Montgomeryshire, E. v. Moore v. Hastings- . Morgan, Ex parte . 310 . 141 262, 276, 302, 324, 393, 395 257, 295, 301, 305, 306, 307 225, 377 . 313 . 427 . 302 . 281 237, 263, 295 E. V. 22, 55, 79, 93, 113, 124, 159, 205, 276, 312 ■ «: Cardigan . . 282 XXIV TABLE OP CASES. PAdB Morgan v, Carmarthen . . 409 Morice, E. t> 40 Morisse v. Royal British Bank . 255 Morley v. Stacker . . . 245 Morpeth, H. v. . . . 285 MoiTis, B,.v,. . . . 152 Mortlock, R. v. . . . 154 Morton, R. u. . . . 146, 169 Morton, Case of Serjeant . . 442 Mossop V. Great Northern Ry. Co. 477 MotherseU, R. w. . . . 194 Mouflet V. Washburn . . 481 Mousley, K v. . . . 129 Mountnoy v. Collier . . 475 Mulock, Be . . . .23 Munster, Ux parte ... 52 Muntz, H.v 62 Murray, J{. v 39 JNapier, Ex parte Nash, Ux parte Nathan, £e . Needham's Case 228, 345, 346 . 250, 335 235, 348, 350 .376 Nene Outfall (Conjmlssioners of), B..V, 333 Newbury, R. v. . 324, 379, 397 Newcastle, R. v. . 276, 282, 303 Newcastle (Hostmen of), R. v. 192, 266, 282 New College, R. v. . . . 280 Newoombe, B,. v. . . 169, 315 Newgate, B,. v. . . . 359 Newland, R. ■u. . . . 176 Newling, R, ■y. . . .163 Newman, R. i>. . . .95 Newmarket Ry. Co., R. v. . 330 Newport Bridge, Be . 253, 307 New River, B. v. . . . 286 New Sarum, B. v. . . . 327 Newsham, R. «. . . 291, 323 New South Wales (Atty.-Gen. of) v- Maopherson . . 59 Newton, JEx parte . , . 101 ,B.v. ... 29 New Windsor, R. v. 310, 325, 388, 389 New Zealand Kapaga Co., Be . 334 Nicholetts, R. ... 77 PAGE Nicholson, B. v. . . . 125 Nightingale v. Marshall . 282, 420 Nixon, B.V.. . . 11, 69, 71 Norfolk, E. V. 253, 257, 301, 302, 307, 339 Norris, B. v. . . 24, 36, 46, 281 . V. Carrington . . 478 Northamptoji Case . . . 282 —, B.V. . . . 308 North.British Ry. Co. v. Tod . 330 Northern Union By. Co., R. v. . 330 Northleach Roads, E. v. . 249, 345 North Midland Ry. Co., R. v. 330, 411 North Riding, R. v. . 313, 317 Northwich Bank, R. v. . 246, 359 Norton, B. v, . . .69 Norwich Case . . . 315 , R. V. 277, 279,280, 336, 375, 381, 410 : — &g., Ry. Co., E. v. 238, 244, 248 Nottingham Case . . . 315 Case of Town Clerk of ... . 326,354 Case of Sheriffs of . 355 , R. V. 265, 310, 363, 378, . 376,382,388 ■ Journal, E. v. 33, 35, 55, 168 Waterworks 235, 243, 269, 331, 333, 366, 371 Nutt, B.V 8, 9 Oakhampton, R. ■;;. O'Brien, R. v. . , Ex parte 281 56 70 O'Gorman Mahon, R. v. . 35, 97 Ogden, R. ■«. . 115,117,118,129 O'Meara, R. v. See R. v. Barry O'Meara. Oldham, R. v. . 123, 279, 357 Old Hall (Manor), R. v. 295,298,389, 411 Onslow &Whalley's Case. . 24 Opie & Others, R. ^;. . . 23 Oram v. Brearey . . 451, 482 Orde, B.V.. . 5I, 140, 167 TABLE OP CASES. XXV PAGE OrtoD, E. «.. . 228,229,233,279 Osbom, R. i;. . . . .20 Ostoume, E. «. . . , 151 Ossulton and Others, E. v. . 25 Oswestry, E. v. . 239, 245, 355 Ottery St. Mary Charities, E. v. 232 Oundle, U.v 299, 410 Ouze Bank Commissioners, E.w. 345, 378, 385, 393 Owen, B,.v.. . .9, 124, 379 Owen's Case , . . , 453 Owens, E. V 123 Oxenden, E. v. . 2§2, 287, 294 Oxford, E. ■». . . . 409, 410 (Bp. of), E. ■;;. 254, 278, 283, 285, 328, 353, 354, 376 (Mayor of), E. v. 122, 132, 232, 284, 290 (Vice-chancellor), B,.v. . 353 Eoad Trustees, E. v. . 345 (Chancellor of) v. Taylor 471, 495 Oxfordshire,. E. v. . 301,303,358 Oxon,.E. w. 285,390,393,394,398, 404 Paddington, E. v. . . 245, 251 Paget, H-v 310 Pagham Levels (Commissioners for), E. V. . Paine, B,. v. . Palmer, Be . , E. V. . V. Corn way V. Pope Papilion v. Dubois Pardee v. Price Parham, E. v. Paris Skating Eink Co., Be Parish Clerk's Case . Parker's Case . Parker v. Clarke Parkes, JSx parte . . Parkinson, E. v. Parkinson's Case Parkyn, E. v. . 338 9 333 230, 278, 314 . 431 , 486 . 280 , 229 . 123 . 225 . 283 285, 403 . 469 251, 331 . 141 236, 280, 285, 287, 288, 390 . 124, 153 Parkyns, E. v. Parlor v. Butler Parret's Case . Parry, Ex parte , E. V. PAQB 22, 141 . 432 . 399 . 129 118, 122,. 140, 141, 149, - 152, 155, 157 Pascoe, E. w 312 Pastoe's Case .... 432 Pateman, E. v. . 143, 164, 401 Patteson, E. v. ip, 143, 144, 164, 165, 175 Patrick, E. v. 225, 236, 280, 282, 285, 287, 288 Pawlett, 'B.v. . . . 301 Paxton V. Knight . . 468, 470, 487 Payn, E. v. 231, 238,. 239, 245, 354, 356, 390, 409, 410 Payne, E. v. . Paynter, E. v. Peach, E. v. . Peacock, E. v. V. Bell . 153 311, 312, 407 . 36 . 139 . 493 448, 481 . 475 Pears v. Williams Pearson v. Glazebrook V. Great Northern Ey. Co. 360 Peat's Case . . 250,279,308 Peltier, E. v. . Pembroke, E. v. Pembrokeshire, B,. v. Penrice, E. v. . 9 140, 323, 367 246, 305, 308 . 404 Penryn (Case of Mayor of) 141, 178, 180, 202, 203 Pense v. Prowse ' Pepis's Case . Pepper, E. v. . Percy, E. v. . Pering, Mc parte Perry, E. v. . Peter v. Kendal Peters v. Prideux Peterboro' Case Peterborough, E. v. Pettiward, E. v. Pewtress V. Harvey Phelps, E. V. . Philingham, E. v. Philips V. Bury 453, 470 . 404 124, 131, 163 . 321 . 349 81, 92, 340 . 145 . 486 . 315 . 364 29, 278 49^, 497 . 28 . 284 236, 258, 260, 264, 288, 403 XXVI TABLE OP CASES. Philimore, R. v. Phillips, E. V. Phippen, E. v. Physicians (College Pickles, E. v. . Pigott, Be PinkertoD, E. v. Pirehill North, E. v, Pitt, R. V. Player, E. v. . Plimsoll, E. V. Plymouth, E. v. Plympton, E. v. Pocock, E. V. . Poe, Be PoUice's Case Pomfraye's Case Pomfret, E. v. 284, Ponsford, E. v. Ponsonhy, E. v. Pontefract, E. v. Pool V. Grardner Poole, E. V. . Portsmouth, E. v. PAGE . 321 10, 23, 178, 183 142, 233, 326 of), E. ■;;. 283, 382 . 372, 373 . 101 . 95 318, 385, 386, 416, 420 24, 41, 236, 300 . 141 . 16 276, 375, 379 . 24 . 19 . 459 . 285 . 431, 432 389, 393, 400, 411 . 233, 234 144, 177, 202 303, 306, 307 . 454, 498 324, 423, 424, 425 231, 289, 323, 327 Postmaster-General, B. v. . 350 Powell, E. V. . 225, 299, 300, 301, 365, 382 — V. Harris — V. Milbank — V. Price — V. Somiet . 432 . 233, 285 . 409 . 199 Power V. Lucas . . . 124 Praed, B.. v 85 Pratt, Ex pa/rte . . . 308 Preece, B,. v. . . . 139, 166 President, &c., of the Marches, B..V. ... 286,394 Price, E. «. . . . 312, 351 Prickett v. Gratrex ... 96 Prideaux v. Arthur . . 22 Prin'sCase . . . 285,374 Prin, K u 282 Prince Frederick, The . . 441 Prince v. Huett . . .466 Priors Ditton Inclosure Commis- sioners, B,. V. . . . 248 Pritchard, E. u. . . .84 Proby, B.v.. Prohurst's Case Protector v. Craford V. Colchester PAGE 34 287 285 285 V. Kings ton-upon-Hull 284 Prynn's Case . . . . 3, 21 Purnell, Kv.. . .6, 82, 191 Quarlty v. Timmins . . 471 Quayle, E. v. 132, 157, 163, 167, 172 Eackham v. Bluck Eadnor (New), E. v. Eae, E. v. Eagsdale, E. v. Eainer, E. v. . . 467 146, 167 . 50 . 123 9 Eaines, E. v. 281, 284, 285, 286, 298, 388, 410, 411, 414, 475 Eamsden, B-v. . . 125, 165 Eathmines Commissioners, E. ■;;. 243 Eavenhil's Case . . .281 Eawlins, E. u. . . . 125 Eawlinson, E. «. . . . 310 Eawson, B. v. . . . 311 Eay, Attorney-General v. . 72 Eayner, Ihc parte . . 438, 478 Eead, B. v. . . . 58, 85 Eeceiver of Metropolitan District, B.V 231 Eees, B.V.. . 282, 340, 405 Eeeve, ^^jarfe . . 235,349 Eegistrar of Joint Stock Com- panies, B. V. . . . 359 Eegistrar of Friendly Societies, B.V 360 Eemington v. Dalby . 494, 495 Eennett, B. v. . . 245, 299 Eeynal, Ux parte . . . 331 Eeynell, B. v. . . . 127 Reynolds, B.v. . . . 290 Eicardo v. Maidenhead Local Board of Health . . 481,482 Eice, B.V 282 Eich V. Pilkington . . 420, 421 Richards, E. v. 123, 296, 298, 303 , Ex parte. . . 128 TABLE OP CASES. xxvu PAGE Richardson, R. v. 89, 96, 115, 116, 117, 176, 306, 313, 316, 386, 395, 398, 399 Richardson's Case . Richmond (Duke), R. v. Ricketts, Ex parte . ,'R.v. V. Bodenham . 471 123, 140 229, 349 122, 140 468, 470 . 300 . 294 124, 141, 284^ 375 . 314 . 276 31, 58, 90 236, 280, 287, 464 Rigge, R. •». . Rioters' Case . Rippon, R. V. . Rix, Be Robbison, R. v. Robe, R. V. Robert's Case Roberts v. Humby 431, 447, 459, 460 , R. ■;;. . . 58,90 V. Williams . . 465 Robins, Ex parte . 233, 234, 332 Robinson, R. v. 24, 36, 39, 41, 239 313, 410 • V. Emanuel . . 471 V. Lenaghan . . 478 Rochdale Road Trustees, R. v. 251, 345 Rochester,^ R. ■;;. 259, 279, 287, 324 Rogers, E. u. . — V. Jones Bolfe, R. w. . Rossett V. Hartley Rotherham, R. v. Rotherhithe, R. v. Round, R. V. . Rowland, R. v. V. Hockenhulle 31, 316 . 266 . 164, 167 . 51 . 166, 337 . 358 358, 387, 390 . 199 . 437 Rowley, R. v. . 140, 141, 152 v.R 220 Ruding «. Newell . . 285,420 RufFord, B..V. . . 278, 314 Rugby Charity Trustees, R. v. 232 Rushworth, R. v. . . 278, 298 Russell, E. V. 85, 124, 133, 307, 309, 311 Riissel's Case .... 432 Rutland ij. Bagshawe451, 456, 465,469 (Lord of) V. Greene . 435 Ryde, B.v 246 Rye, R. v. . 281, 406, 410, 417 Rynd, H. v. . . . . 331 PAGE Sabine's Case . . . . 234 Saddlers' Co., R. «. . 286,290,292, 397, 398, 402, 415, 423 Sainsbury, R. w. . . .26 Salisbury, K v. . . , . 279 Salm Kyrburg v. Pomanski . 490 Salop, R. I;. . 278,301,314,371 Sanchar, R. v. . . . 284 Sandford (Governors of), R. v. . 230 Sandwich, E. v. . 270, 324, 401 Sandys, E. •!>. . . . 123,167 , Ex parte 128, 275, 287, 314 Sargent, R v. 122, 123, 140, 167 Sarum (New), R. ti. . . 327 Satirist, R. v. Saunders, R. v. Saunderson v. Westley St. Albans, R. v. 39,46 28, 40, 149 51, 161 274, 280 -, Case of Abbot of 466 St. Andrews, E. v. 336, 356, 357, 367, 379, 381, 387, 392, 407, 410 St. Anne's, R. i;. . . .278 St. Balaunce, Case of parish of . 282 St. Bartholomew, E. v. . . 341 St. Botolph, R. i;. . . .34 St. Burians, Case of Dean of . 353 St. Catherine's Hall, R. v. 130, 131, 236, 277, 280, 288, 352 St. David's (Bp.) v. Lucy 297, 442, 498 St. Dunstan, Case of Clerk of . 282 St. James, R. v. 277, 279, 286, 336, 340 St. John's Coll., E. v. 240, 280, 289, 385, 390, 404, 406, 409 St. John's Coll. V. Teddington 277, 494, 495 St. John Westgate ana Elswiok, B.v 338 St. Katherine's Dock Co., E. v. . 269 334, 366, 410, 411 St. Luke's, E. v. 231, 254, 277, 278, 344 , Case of . . . 312 St. Margaret's, R.i;. 241, 249, 341, 344 St. Martin's, R. v. 121, 124, 125, 274, 277, 281, 286, 287, 291, 339, 341 St. Mary Abbot's, E. t). . . 282 XXVIU TABLE OP CASES. PAGE St. Mary Newington, R. v. . 336 St. Michael's, B,. v. . . . 341, 342 St. Nicholas, R. v. 274, 275, 286, 287 277, 336, 341, 344, 377, 382, 405, 423 . 271 . 341 St. Pancras, R. v. St. Paul's, R. V. St. Peter's, R. v. St. Peter's Coll., R. •». . . 279 St. Saviour's, R. v. 341, 343, 344, 357, 367, 407 . 99 . 123 . 295 , 85 277, 323 . 379 . 359 251, 270, 342, 364, 377 Scottish North-Eastem Ry. Co. V. Stewart . . . .329 Savile, R. v. . Sayer, R. v. . V. Newton Scaife, R. v. . Scarborough Case , R. V. Scott, R. V. . , Hx parte Scriveners, R. v. Scully, Be Seaford, R. v. . Serjeant v. Dale Serle, R. v. . 281, 282 . 360 . 29 454, 460, 467 . 280, 283 Severn and Wye Ry. Co., R. v. 238, 243, 244, 330 Severton, U.v. , , .85 Sewers, Commissioners of, R. v. 246 Shacklington, B,. v. . . . 30 Sharington v. Fleetwood . . 497 Sharpe, B,. v 54 Sharpness, R. w. . . 82, 95 Shaw, R.?;. . . 284,355,397 V. Perkin . . 52, 162 V. Shaw ... 23 Sheffield Gas Co. v. Overseers of Sheffield . . . 305,306 Sheffield, &c., Insurance Co., £e 335 Shell, R. « 319 SheUey, Kv. . . 191, 266, 367 Shepherd, R.u. . . . 128 Shepton Mallett, R. v. . 357, 376 Sherlock's Case . . . 279 Sherry v. Oke. . . .372 Shimmin, R. v. . . 94 Shortridge, R. i; . . .314 FAOE Shotter V. Friend . . 438,466 Shriven & Turner's Case . . 286 Shrewsbury, R. v. . 29, 38, 62, 284, 301, 394, 396, 398, 402, 406 (Mercers of) v. Hart 194 Shropshire, R. t». . . 301, 334 Sidney, B.v.. . . 146, 169 Sillifant, R. v. . 2A&, 315, 341 Simms, B.v. . . 343, 357, 366 Simpson, R. v. 128, 282, 368, 369,405 V. Scottish, &c., In- surance Co. Skipton, &c». Society v. Prince Skipworth's Case . Skircoat, R. v. Slater v. Smalebrook Slatford, R. v. Slatter, R.v.. 228 458, 478 . 24 . 307 . 469 281,404 . 163 Slythe, R. v. 124, 142, 151, 163, 165, 168 Smallpiece, R. v. Smart v. Wolff Smith's Case Smith, Ex parte . 267 . 495 201, 284 129, 130, 295 -, R. V. 15, 40, 77, 78, 81, 141, 153, 180, 237, 286, 320, 375, 397 — , Attorney-General v. . 71 — V. Armourers and Braziers 282 dreUl , • V. Davis ' V. Lakeman. V. Executors V. McGlone V. Pryse V. Sephton V. Wallett Smithson, R. v. Smyth, Re , Ex parte Snook V. Mattock Soane v. Ireland Sober, R. v, , Solgard, R. v. Somerset, R. v. Somersetshire, R. v. Southampton, R. v. 266 23 Poyn- . 439 . 477 . 478 . 493 . 486 51, 55, 161 . 230 294,430,460,461, 464, 470 . 300 . 420 . 14 . 23 338, 360 29, 302, 304, 312 234,271,371,378 TABLE OF CASES. XXIX Southampton (Mayor of) v. Graves 192, 267 South Devon Ey. Co., E. v. . 331 South-Eastern Ey. Co., E. v. 253, 333 V. Bail way Commissioners . 434, 453, 484 South Wales Ey. Co., E. v. . 330 South Weald, E. v. South Yorkshire, &c, Sparrow, E. v. Speaker v. Stygant Spearing, E.^u. Spinage, E. v. Spotland, E. v. Spriggins, E. V. Stacey, E. v. Stack, E. V. . . 125, 357 Ey. Co., Be 330 55,278,314 . 283, 289 . 138 . 24 29, 421, 422 . 30 135, 138, 147, 155 .305 Stafford, B. v. 228, 231, 233, 236, 283, 284, 285, 379, 417 Staffordshire, B. v. 26, 265, 301, 302, 308, 360, 386, 390 Stafford's Case . . .497 Stainforth Canal, E. v. 234, 235, 251 Stamford, E. v. . 270, 324, 382 Stamp's Case . . 285, 286, 289 Stamps and Taxes Commissioners, B..V.. Stanford, Ex parte . Stanger, E. d. . Staniland v. Hopkins] Stanley, E. v. Staples, B,. V. . Starling, E. v. Steel, B,. V. , Stenhowe, E. v. Stephens, E. v. 280, 387, 388, 391 Stephenson v. Eaine Stepney, E. v. Stevens, B. v. Steward, E. v. V. Eddy . 350 . 359 47, 48, 49 . 143 140, 141 15, 118 5 57,100 . 279 Stills. Booth . Stirling's Case Stirling, E. n. Stockman v. Whither Stoke Damarel, E. v. 248, 277, 286, 293, 326, 343, 366 Stokes, B.w... . . 136,138 . 476 . 336 6, 33, 341 36, 46, 47 . 242 478, 490 . 287 .385, 388, 393 . 434 128, 235, 238, PAGE . 315 . 124 . 470 . 338 . 465 . 485 , Be . 334 . 285 i, 11, 70, 71 234, 243 5 . 498 . 476 7 . 277 301, 302, 308, 371 . 59 . 478 32, 422 . 228 . 319 239i245, 262, 281,301, 303, 310, 319, 355 Sussex, E. V. . . 301, 307, 312 Sutton, E. u 8 Swansea Harbour, E. v. . 269, 333 Swansea, &0i, Co. v. Swansea, &c. By. Co 484 Swyer, E. IT. . . . 141,326 Sykes, E. w. . . .• . 318 Symmersu. E. . 156,174,175 Symmons, E. •;;. . . 151, 155 Symonds, E. w. - . . . 20 Stone, B..V. . Storrar, B. •;;. . Story, Mb parte Strand District, E. v. Stransham v. CuUington V, Medoalfs Stranton Iron and Steel Co. Stratford on Avon, E. v. Stratton, E. v. Street, E. v. . Stroude, E. v. Stroud V. Hoskins Stuart V. Jones , B. v. . Stutter V. Preston Suffolk, E. •U-. . Sulls, E. V. . Summers, Ex parte Surgeons' Co., Case of Surgeons (College of), E, Surr, E. u. Surrey, E. w Tatiner, JEx parte Tapp V. Jones Tappendon, B. v. Tarrant, B^ v. Tart, E. v. . Tate, B. v. . 40 473 282 31 123 124, 132, 163 Taunton St. James, B. v. 389,404, 411 Taverner's Case . . . 282 Tawny's Case .... 382 Taylor, B. v. 24, 46, 67, 83, 115, 117, 118, 123, 179, 284, 375, 396, 401 -y. Nicholls . . . 472 V. Jones . . . 472 XXX TABLE OP CASES. PAGE Teal, E.j< 89 Tendring, &c., Commissioners of Sewers, R. w. . . . 385 Tewkesbury, R. «. . . 293,324 Thacker,R. «. . . . 284 Thame, B.. v 275 Thames and Isis (Commissioners of), R. V. . 249, 269, 333, 371 Thatcher, R. v. . 128, 281, 293, 339 Thetford, Case of . . .409 • , B. V. 241, 276, 323, 406, 410 Thirlwind, B,. v. . . . 162 Thomas, R. v. 55, 117, 164, 165, 175, 341, 343 , Ex parte . Thompson, R. v. , Ex parte V. Goodfellow Thomson ■;;. Ingham Tichbome v. Mostyn Tidderley, B,.v. Tidd Pratt, B,. v. . Ting V. Meriwether . Tinniswood v. Pattison Tintagel (or Bossiny) Case TitheCommissioners, B.v. 254, 255,340 . 313 . 123 . 372 . 280 451, 480, 4bl . 24 . 284 . 360 . 432 . 453, 476 276, 323 , £e . .340 Tiverton (Mayor of), R. v, . 24 Tizzard, B. v. . . 143, 145 Toakley, E. ?;. ... 83 TobiQi;.R. . . . 68,177 Tod, R. ■;; 310 Todd, E. « 326 Todmorden, B. v. . . . 356 Toomer v. London, Chatham, and Dover Ry. Co. Totnes, B. v. . Tottenham, R. v. Tower, B.v.. Tower Division, E. v. Tower Hamlets, E. v. Town Clerk's Case . Townsend v. Thorpe Townsend's Case Traill, B.v. . Travanion, B.v. Treasury (Lords of), R. v. . 434, 483 289, 327, 336 . 342 . 266, 267 . 339 265, 268, 339 . 281 . 453, 469 . 281 , 313 . 192 228, 269, PAGE Treoothick, B. v. . . 311, 312 Tregony, B.v. . . 280, 375 Trelawney, R. v. 113, 124, 143, 148 Trevenen, R. v. 117, 149, 152, 154, 170 Trevor v. Wall . . . 493 Trinity College, Dublin, R. v. . 352 Trinity Chapel, Dublin, R. v. . 279 Trinity House, R. v. 110, 111, 122 Trott's Case Truebody, R. v. Truro, R. v. . Tucker, R. v. . Tugwel!, R. V. . Tuite(or Chote) v. Fawkes Turkey Co., R. v. Turmine, R. v. Turner, R. v. . , Ex parte V. Weston Twiss, B.V.. . . 443, 457 Twitty, B.V.. . 377, 387, 404 Twyford, R. v. . . 313,315 Tyrwhitt, B.v. . . .311 Tyther, B.v. . 284, 289, 397 . 286 284, 398, 400 272, 276, 292, 367 123, 301, 368 156, 165, 166 . 21 . 282 . 124 280, 290 . 23 295, 346, 347, 348, 349, 363, 368, 370 Underwood's Case . Upton St. Leonards, E. v. Urling, B. V. . Usher's Case . Usill V. Hales. Vanacre v. Spleen . Vane, B. v. . Van Sandau v. Turner Vaudry v. Pannel . Vaughan & Eyre, R. v. -, R. V. V. Gunmakers' Co. V. Lewis . 144, Veley v. Burder Verrior v. Sandwich Vicars, B. v. . Victoria Park Company, R. v. Vint, B.v. . Vintners' Co., Case of . 285 .32, 82 . 298 . 352 . 24 439,470 34 23 431 321 24 287 280, 420 438, 460 . 285 . 284 235,244 334, 335 9 . 366 TABLE OF CASES. XXXI PAGE Waddington, E. v. 7, 25, 87, 89, 90 Wadsworth v. Queen of Spain 440, 475 Waineman v. Smith . . 486 Waite, B..V 20 Wakelin, R. v. . 124, 154, 170 Wakley v. Cooke ... 56 Walcot, B,. I) 357 Walker's Case 236, 245, 288, 382 Walker, B,. v. . . . 311 V. London and Blaekwall Ry. Co 355 Wallace v. Allen . . 488, 497 Wallasey Local Board E. v. . 338 Wallingford, Ex parte . . 311 Wallis, E. w. . . 116, 123, 205 Walmsley, Ex parte . . 347 Walsh V. lonides . . 453, 481 Wandsworth, E. u. . . . 85 Wannell v. Cam. Civ. London . 281 Ward, E. v. 10, 92, 124, 150, 274, 281, 289, 376, 387, 392 V. South-Eastern Ey. Co. 334 Warden v. Eons . . 280, 401 Wardroper, E. v. . . 122, 168 Waring v. Pearman . . 206 Warlow, E. v. 124, 146, 165, 171 Warner's (or Lee's) Case . . 250 Warner v. Suckerman . 427, 431 Warnford, E. v. . . . 314 Warren's Case 275, 393, 398, 402. 404 Warren, E. v. . . . 286 Warwick, E. v. . . . 305 and Newbury, E. v. . 270 Canal Co. v. Birming- ham Canal Co. . . 434,483 Warwickshire, E. v. . 302, 305, 358 Washer v. Elliott . . .473 Wason, Ex parte . . 312, 362 Water Baton, E. v. . 372, 374, 381 Waterford, &c., Ey. Co., E. v. . 419 Watkinson, E. v. . . . 123 Watson, E. v. . . 23, 31, 34, 298 Webb, E. v 22 v. Cook . . .466 Webster, B. v. . . 29, 46, 84 Weedon Beck, E. «. . . 300 Welbeck, E. v. . . . 390 Wells, E. V. . 254, 285, 327, 403 PAGE Wellesley, E. v. . 299 Welcome v. Lake . . 466 Welshpool, E. V. . 142 Weltje, E. r. . . 19 Weobley, E. v. . 237 West Looe, E. v. 230, 251, 253, 276, 280, 289, 299, 323, 325, 327, 364, 370 Westmoreland, E. v . 278, 301, 363 Westoe, B.V 266 West Biding, E. v. 237, 262, 295, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 317, 332, 358, 373, 376, 382, 386 Weymouth, E. v. Whaley, E. v. Wharton v. Pits Whately, E. v. Wheeler, E. v. Wheelock, E. v. Whiskin, E. v. Whitacre's Case Whitaker, E. v. Whitchurch, E. v. V. Pagot White's Case . White, E. V. . 277 279, 381, 390 . 442 27, 55 231, 242, 287, 359 . 309 . 392 285, 375 . 339 . 57 . 275, 287 275, 281, 287 9, 23, 118, 149, 157, 282, 404 • V. Steele 456, 460, 467, 494, 497 Whitecross Street, E. v. Whitehouse, E. v. . Whitford, E. ■;;. V. Wilson . . 359 . 89 . 300 . 454 313, 359 Whitmarsh, Ex parte Whitstable, E. v. 234, 236, 286, 289 Whitwell, E. V. . 123, 131, 163 Wickham v. Lee . . 476, 477 Widdington's Case . . . 224 Wigan, Case of Eector of . . 299 Wigan, E. v. . 224, 276, 327, 379 Wiggen V. Arscot . . . 486 Wigon V. Pilkington . 284, 400 Wildman, E. v. . 354, 374, 381 Wilkes, E. v. 4, 7, 8, 11, 62, 69, 71, 87, 88, 92, 101 Wilkins v. Mitchell . 235, 295 Willett, E. V. . 22, 47, 48, 49, 95 Williams, Ex parte 22, 47, 51, 95, 454 xxxu TABLE OP CASES. PAGE Williams's Case . . .284 Williams, R./y. 20, 28, 31, 34, 46, 47, 94, 113, 115, 116, 126, 141, 173, 204, 205, 277, 281, 313, 340, 386, 387, 392, 404 .^ v. Gibbs . . .493 V. Jones . . . 331 V. Lister . . .432 WiUiamson, B. u. . . 49, 50, 52 Wlllim, B,.v 342 WiUingford, B. f. . . .383 WiUis, K. V. 276, 298, 299, 368, 377 "Willmer, E. w. ... 54 Wilson, K. V. . 93, 299, 300, 341 .v.Bviiler ... 81 Wilton, Kv, . . 284, 394, 398 Wilts, B. V. . 301, 307, 309, 364 Wilts, &c.,'.Navigation, E. v. 248, 249, 333 Wiltshire, E. i;. . . 261, 301, 308 Wimbledon Local Board, E. «. . 338 Win, E. ■» 274 Wincbelsea, B. r. . . .14 Winchester, E. v. . 122, 132, 141, 163, 233, 280, 282, 291, 326, 368, 370 , Case of BUhop of 456, 466 .- 245, 329 248, 281, 292, 363, 366 . 334 . 427 447, 478, 481 . 283 . 472 . 222 . 372 Witherington's Case 287, 375, 376 Witherington v. C. C. Camb. . 264 Witham, K v. . . . 359 Withers, E. ■y. . . 95, 96 Wix, B. V. . 277, 340, 367, 393, 410 Wolverton's Case . . . 279 Wood Ditton, B. v. . 240, 295, 358 Woodham Walter B. », . . 299 Woodfall, E. v. . . .8, 99 Woodrow, E. V. . . 30, 280 Woods, &c. (Commissioners of), B. V 346, 349 Windham, E. v. Winfield, Ex parte Wing, E. V. Winn's Case. . Winsor V. Dunford Winter, E. v, . Wirth V. Austin Wiseman, Ux parte , E. V. Woodward v. Bonithan WooUett, E. V. Woolmer, B. v. " The World," E. v. PAQB . 442 68, 179 49,53 . 18 Wormwell v. Hailstone . 269, 334 Worcester, E> v. . 232, 237, 264 (Bishop of), E. V. 258, 259 Worcestershire, R. ■;;. 278, 301, 307, 308, 314 357 Worthington v. Jeffries 437, 444, 445, 494 Worts V. Clyston . . 470, 485 Wrangham, Ux parte . . 277 Wrexham, B. u. . . .286 Wrexham, &c.. By, Co., Be . 484 Wright, B.«. . . 23,46,52 V. Pawcett. . 261, 281, 389 Wroughton, E. v. 21, 36, 45, 47, 55 Wrottesley, B. d. . . .341 Wycombe Ey. Co., E. V. . 330,391 Wynne, E. ». . . . . 170 Yandell, E. u. ... 66 Yarborough, 'R.v.. . . 315 Yates, B. 17. . . . .39 V. Palmer 442, 447, 459, 476 Yea, B. v. . . . 29,39 Yeates, E. i; 193 York (Archbishop of), B. v. 176, 278, 389 (Mayor of), B. v. 122, 132, 140, 180, 280, 290, 323, 327, 329, 366, 370, 411 , &c.. By. Co., E. V. 256, 329, 330 (Sheriff of), B. v. 281, 285, 298 (Justices), E. V. . 316, 334 , E. V. . 376, 388, 393, 395 , Re Dean of 454, 467, 469, 495 , &c.. By. Co. w. E. . . 329 Yorkshire (Justices), E. v. . 230 , North Biding, E. v. . 257, 261, 262 Young, E. w. . . . 23, 27 Yonnghusband, E. v. . 22, 95 Ystradgunlais Tithe Commnta- tation, Ee . . . .433 Zohrab v. Smith 478 NOTE ON EBPOKTS. The following opinions on some of the Eeports referred to in this work, which the author has met with in his researches, may not he without profit as well as interest to the professional reader : — SiDEEFIN. " This book is fit to he burned, being taken by him when a student, and unworthily done by them that printed it." — Per Dolbbn, J., 1 Show. 252. Barnaediston. " A book of doubtful authority."— Per cur. B. v. Bvller, 8 East, 393. Holt's Eepoets. " A hook of no authority." — Per Lee, C.J., 1 Wils. 15. Modern Reports. " Wonnell's case being here cited from 8 Mod. 267, the Court treated that book with the contempt it deserved ; and they all agreed that the case was wrongly stated there (I mean the old edition of that book)." — 3 Burr. 1326, margin. " Holt complained bitterly of his reporters, saying that the skimhle scamble stuff which they published would make posterity think ill of his understanding and that of his brethren on the Bench. He chiefly referred to the Modern Eeports which are composed in a very loose and perfunctory manner." — Lord Campbell, ' Lives of the Chief Justices,' vol. ii., p. 136. Ventris, Shower, Sib Thomas Jones, and Sir Thomas Eaymond. " The inaccuracies and the barbarous dialect of Ventris, Shower, Sir Thomas Jones and Sir Thomas Eaymond." — Per Lord Campbell, ' Lives of the Chief Justices,' vol. ii., p. 47. Borrow, Douglas, Cowpeb, Ddenford and East [Term Eeports]. " The very best law reporters that have ever appeared in England." — Per Lord Campbell, ' Lives of the Chief Justices," vol. ii., p. 405. P»AET I. CKIMINAL INFOEMATIONS. ' CHAPTER I. Nature of Infokmations, and the various kinds of them. What an Information is . . . 1 Various kinds 1 Origin of Jurisdiction .... 2 PAGE PAGE Distinction between Information and Indictment 3 An Information is a suggestion upon record by which, in certain What an infor- qases, the matter of a suit is allowed to be brought before the High '"*'"'° "• Court of Justice, and is so called from the words by which it gives the Court to understand and be " informed of " the facts alleged in it. Informations are, according to Blackstone (a), of two sorts, viz., (1) Various kinds, those which are partly at the suit of the sovereign and partly at that of a subject ; and (2) such as are only in the name of the sovereign. The former were usually brought upon penal statutes, imposing a penalty upon conviction of the offender, one part to the use of the sovereign and another to the use of the informer, and were a kind of qui tam actions (h), only carried on by a criminal instead of a civil process. The same authority (c) subdivides Informations exhibited in the name of the sovereign alone into two kinds, viz., (1) those which are truly and properly the sovereign's own suits, and iiled ex officio hj her own immediate ofi&cer, the Attorney-General ; (2) those in which, though the sovereign is the nominal prosecutor, yet it is at (a) Book iv. 308. was called a qui tam action, because ■ (6) Where one part of the penalty brought by a person " qui tam pro was given to the sovereign, the poor, domino rege, &c., quam pro se ipso in or some public use, and the other part htc parte sequitur " (Bl. Book iii. 162). to the informer or prosecutor, the suit (c) Bl. Book iv. 308. B 2 CRIMINAL INFORMATIONS. the relation of some private person or common informer, and they are filed by the Queen's coroner and attorney in the Coirrt of Queen's Bench, usually called the Master of the Crown Office, who is for this purpose the standing officer of the public. In Chancery also, where a suit was instituted on behalf of the Crown, or of those partaking of its prerogative or under its protec- tion, such as idiots, lunatics, or public charities, the matter of com- plaint was offered to the Court by way of Information by the proper officer of the Crown, the Attorney- or Solicitor-General : when the suit did not immediately concern the rights of the Crown alone, its officers depended on the relation of some person whose name was inserted in the Information ; and the relator was responsible for the conduct of the suit as well as for the costs of it. But a relator was in no case indispensable, and never intervened where the rights of the Crown alone were involved (d). Now, by Order t, r. 1 of the Eules of the Supreme Court of Judicature, all suits which were formerly commenced by Information in the High Court of Chancery are henceforth to be instituted by action in the ordinary way. Such suits, therefore, are no longer to be entitled Informations (e). There were also Informations, to which the rule just referred to does not apply, on the Eevenue side of the Queen's Bench Divi- sion ; the procedure as to these, for the most part, being left the same as before the Judicature Acts (/). With neither of the two last-mentioned kinds of Information does this work profess to deal. Origin. " There can be no doubt," says Blackstone (gi), " but that this mode of prosecution by information (or suggestion) filed on record by the King's Attorney-General, or by his Coroner or Master of the Crown Office in the Court of King's Bench, is as ancient as the common law itself. For, as the King was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever the grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal suit ; so, when these, his (d) Story's Eq. PI., ch. 2, § 8. amended by striking out the title (e) In Attorney-General V. Shrews- "Information.'' hury Bridge Co. (W. N. 1880, p. 23), (/) See Judicature Act, 1873, 8. 34, where the statement of claim was in- and Order Lxvni., rr. 1 2. dorsed " Information and statement of (j) Book iv. 809. claim,'' Jessel, M.R., ordered it to be NATUKE OF INFORMATIONS. 3 immediate officers, were otlierwise sufficiently assured that a man had committed a gross misdemeanor, either personally. against the King or his government, or against the public peace and good order, they were at liberty, without waiting for any further intelligence, to convey that information to the Court of ELing's Bench by a suggestion on record, and to carry on the prosecution in His Majesty's name." Notwithstanding the views of Mr. Earbery, set forth in the 20th vol. of the State Trials, pp. 856 et seq., that Informations dated no higher than theAct of 11 Hen. 7, c. 3 (^), and were never heard of before — ^founded chiefly on the argument of Sir Francis Winnington in Prynn's case (i) — ^it is not open to doubt that Informations had an existence long previous to that Act, and that their origin was not statutory. The elaborate argument prepared (though not delivered) by Sir Bartholomew Shower in the same case {j) cites many instances of proceeding by Information, going back as far as the reign of Edw. I. Holt, C. J., and all the Court were of opinion that Informations lay at common law (Jc). An Information differs from an indictment in little more than Distinguished this, that the one is found by the oath of twelve men, and the other ment. is not so found, but is only an allegation of the officer who ex- hibits it (Z). (K) This statute enabled justices of if there be any matter of record or sug- assize, and also justices of the peace, gestion or surmise upon record, or in- " upon information for the King, befure formation filed as of record for theKing, them to be made .... to hear and importing the charge of an offence ; determine all offences and contempts that this may, if the King pleaseth, committed and done by any person or serve instead of an inquest or verdict persons against the form, ordinance and either by indictment or presentment^ effect of any statute made and not re- and that the party thereupon shall be pealed," cases of treason, felony, &o., compelled to plead to it as a present- being excluded. It was under this ment. I do not mean this of treason or .statute that Empson and Dudley pro- feloUy, though there are two cases even ceeded. It was repealed by 1 Hen. 8, in that too ; nor do I mean to prove it c. 6. by new offences created by statute or J (i) 5 Mod. 459, s. c. nom. B. v. informations enacted to be for them,, Perchet and Others, 1 Shower, 106, but offences at common law, or such " The rule which I agree to," says Sir as are made de novo, and no particular Bartholomew Shower, " and lay down as mode of prosecution appointed." my foundation is this, that no man is to (j) See 1 Show. 117, 118. answer the King's suit without some (k) 5 Mod, 464. record importing his charge ; but that (J) 2 Hawk. P. C. c. 26, s. 4. " " ' ' ^ ' B 2' 6 CRIMINAL INFORMATIONS. members of the Council ; in Vl85 against several prisoners for a riot and conspiracy in the King's Bench prison and attempting to blow up the waUs thereof with gunpowder (J) ; in another case ' (k) for a riot and disturbance of commissioners acting under the Property Tax Acts; also for insulting and vilifying such com- missioners in their presence whilst acting in the execution of their of&ce, in hearing and determining appeals relating to the income tax (I) ; also for assaulting and presenting a gun at excise ofScers acting under warrants of distress (m) ; for offering to bribe Custom-' house ofiBcers to refrain from seizing forfeited goods (n) ; against a bribed Custom-house officer (o); against various persons for at- tempting to defraud the revenue (p) ; in 1791 against a pilot for not performing quarantine as directed by Order ia Council (q) ; in 1804 against certain officers of the East India Company for receiv- ing presents in India contrary to 33 Geo. 3, c. 52 (r) ; and ia 1846 against a person who had held the office of Eesident of Tanjore under the East India Company for extortion in receiving gifts (s) ; for holding a fair without any legal warrant, royal grant, ■or right whatsoever (t) ; and for spreading false rumours in order to enhance the price of hops (u). In 1748 an information was filed against the vice-chancellor of the University of Oxford for misde* meaner and inisbehaviour in the neglect of his duty, both as vice- chancellor and a justice of the peace of the university (a;). Ex-officio informations have also been filed both in Ireland and England for offences at parliamentary elections, e.g., in B. v. Duggcm (^) against a Eoman Catholic bishop for undue influence ; and in B. v. Conway (z) against a Eoman Catholic priest for obstruct- ing, assaulting, and imprisoning voters, and employing spiritual intimidation ; in .B. v. Zeatham (a) for advancing a sum of money (j) 3 Chitty's Grim. Law, 1150. General for offences committed in (A) 2 Oh. C. L. 4:90a. India, but the report does not say of (I) 3 Oh. C. L. 914. what nature the offences were. (to) 2 Ch. C. L. 127. (s) B. v. Douglas, 13 Q. B. 42. (n) 3 Ch. C. L. 693. Q) B. v. Bigley, 2 Gude's C. P. 249. (o) 3 Ch. C. L. 689. (m) 2 Ch. C. L. 527. ip) 4 Went. Prec. 442 et seq. (a) B. v. Purndl, 1 Wils. 239. (?) B. V. Hwrris, 4 T. R. 202. {y) 7 Ir. Rep. C. L. 94. (r) B. V. Stevens & Agnew, 5 East, (a) 7 Ir. C. L. R. 507. 244. B. V. Holland (4 T. R. 457) was (o) 3 E. & E. 658. also an information by the Attorney- EX-OFFICIO INFORMATIONS. 7 with intent that it should be expended in bribery at a parKamen- ftary election ; in 1861 for bribery at a parliamentary election, the information being( filed hx pursuance of a resolution of the House of Commons (&). After the general election of 1880 several prose- ;cutions were thus instituted in England .against persons who had been reported by Eoyal Commissioners as guilty of illegal and corrupt practices, and who had not obtained certificates of indem- .iiity from the Gomimssioners. ' The libels against which the Attorney-General has used this Libels, power are only those of a public character, such as blasphemous, obscene or seditious publications, or libels reflecting on persons .exercising public functions. Blasphemcnis. — -Instances of informations for blasphemous libels are famished by the cases of B. v.. Waddiington (c) ; B. v. Eaton {d); Ji. V. Carlile (e). Ohscene.^Ohscene libels (/) were thus prosecuted in the cases ;of B. V. Wilkes (g), and B, v. Ourl (h). B. v. StvMrt (i) was an .information for a " wicked and mischievous " libel by publishing in a newspaper an advertisement of a married woman offering to become a mistress. (Z>) B. V. Boyes, 1 B. & S. 311. See lawed for the offence ; yet in Easter, also B. V. Gharlesworth, 1 B. & S. 460. 6 Anne, in tlie case of Read (Fort. 98), (c) 1 B. & C. 26. who was indicted and convicted for (d) 31 How. St. T. R. 927. publishing a laacivious and obscene (e) 3 B. & Aid. 161. libel, Holt, C.J., and Powell, J., on ^ (/) " The jurisdiction of our Com- motion in arrest of judgment, were so mon Law Courts in cases of publications strongly of opinion that the offence was of an immoral nature, though now un- only punishable in the Ecclesiastical questioned, was for some time not free Courts that no judgment was pra- from doubt. After the abolition of the nounoed against the defendant. How- Star Chamber, it seems that the Court ever, the case of Bex v. Curl (2 Str. of King's Bench came to "be regarded as 789, 790), in 1 Geo. 2, settled the qijes- the custos morum of the nation, having tion in favour of the jurisdiction of the cognizance of all offences against the temporal courts: . . . Since this deci- .public morals (Sir Charles Sedley's sion the temporal character of the case, 1663. 1 Sid. 168, 2 Str. 790). offence of publishing obscene and imr But though one Hill was indicted, in moral works has not been questioned " Michaelmas, 10 WiU. 3 (2 Str, 790; (Law relating to Works of Literature Dig. L. L. 60), for,printing and pubhgh- and Art, 2nd ed., p. 382). ing some obscene poems of Lprd (jg) 4 Bm:r. 2527. Rochester, tending to the corruption of (Ji) 2 Str. 788. youth, and, on going abroad, was out- (*) 3 Gh. Cr. Law, 887. Missing Page Missing Page 10 CEmiNAL INFORMATIONS. confess a judgment in a very great sum. B. v. Ward (o)"was an ordinary case of forgery, viz., that of the Duke of Buckingham's, name to a certificate about the delivery of a quantity of alum bought by him. There are examples of Informations to be found in the time of the Commonwealth : in Hilary, 1650, Banco Superiori, an information against Mayne and two justices of the peace for not inquiring of a riot which was committed near their residence according to the statute of 2 Hen. 5, c. 5 {p) ; and in 1658 an iuformation against Charles Dudley, the titular Duke of Northumberland, for forging the entry of a marriage between Sir Eobert Dudley and Frances yavasor, lady of honour to Queen Elizabeth, in the register book of East Greenwich (q). Leave to file As the Attomey-General has himself the right, ex officio, to giren. exhibit an information in any case which he deems fitting, the Court win never grant an information on his application in cases prosecuted by the Grown, or give leave to him to file one (r), " It would be a strange thing," said Lord Mansfield, " for the Court to direct their officer to sign an ioformation which the Attorney- General might sign himself if he thought proper ; and if he did not think it a proper case, it would equally be a reason why the Couit should not intermeddle " (s). A.G. may The Attomey-General may, if he thinks fit, call on the intended givrdefenAint defendant to shew cause why the information should not be opporttmity of exhibited before he signs it (t). shewing cause. ° ^ ^ The information when signed by the Attomey-Greneral is filed without any rule of Court or recognizance. Fiat in case of Sect. 3 of the Newspaper Libel and Eegistration Act, 1881 libels. (44 & 45 Vict. c. 60), providing that no criminal prosecution for a newspaper Ubel shall be commenced without the written fiat of the Director of Public Prosecutions, does not apply to ex-offim informations filed by the Attomey-General (u). Quashing. The Court has power to quash the information upon motion (it); but it is a power which the Court wiU rarely, if ever, exexase, (o) 2 Lord Ray. 1461. (s) 4 Bmr. 2090. (p) Stiles, 245, 246 ; 1 Show. 110. • (t} Per Lord Mansfield, tJ. (?) 2 Sid. 71. (u) R. V. Tates, L. R. 11 Q. B. D. (r) R. V. Phillips & Others, 3 Burr^ 750, per totam curiam. 1565, and 4 Burr. 2090. (x) Fountain's Case, 1 Sid. 152, : EX-OFFICIO INFORMATIONS. 11 because the Attorney-Greneral, if he finds the information defective, may enter a rwlle prosequi and prefer a new charge («/), whilst the defendant's remedy is by demurrer or plea (z). A further reason is that a criminal information may be amended, almost, as of course, at any time, even after demurrer or plea (a). The Court will not restrain the Attorney- General from filing an staying ex-officio information on the ground that a criminal information has by^prlvate' already been granted on the application of a private individual ; ^dividual, but in such a case the Court has stayed proceedings by the private individual untU further order (&). (y) E. V. Stratton, Doug. 240. 2568, 2573. (z) B. Y. Nixon,! Btr. 185; B.y. (b) B.' y. AJemnder, MS. E, T. Gregory,!. Salk.] 372. 1839, cited Arch. Grim. PI. 122 (20th (a) B.Y.Hoiland,4^Tl.'&.A.5T; B. ed.). v. Waices, 4: Burr. 2528, 2532, 2566, 12 CRIMINAL INFORMATIONS. GHAPTEE III. Infoemations not Ex-officio. PA(JE Practice before 4 & 5 Wm. & M. c. 18 12 Change effected by 4 & 5 W. & M. 0. 18 12, 13 Cases in which granted . . 13, 14 Libels 14-17 Applicant resident abroad . 17, 18 Applications to obtain apology . 18 Examples of libels. . . . 19-21 PAGE Disturbances of public peace . 21, 22 Attacks on administration of -justice 23 Bribery at elections .... 24 Other cases 24-26 Ofifenoes by holders of public offices 26-33 Offences committed abroad . . 33 Grounds for refusing leave to file information 33-36 Practice before 4&5Wm.&M. c. 18. 4&5Wm.&M. c. 18. Infoemations other than the ex-officio informations treated of ia the preceding chapter can now only be filed by express permission of the Court, on application duly made to it. Before the statute 4 & 5 Wm. & M. c. 18, it was otherwise. " The power of filing informations," says Blackstone (a), " without any control then resided in the breast of the Master of the Crown OfBice, and being filed in the name of the King, they subjected the prosecutor to no costs, though on trial they proved to be groimdless. This oppressiTe use of them in the times preceding the Eevolution occasioned a struggle, soon after the accession of King William, to procure a declaration of their illegality by the judgment of the Court of King's Bench. But Sir John Holt, who then presided there, and all the judges, were clearly of opinion that this proceeding was grounded on the common law, and could not be then impeached." A few years afterwards Parliament enacted a remedy by the statute 4 & 5 Wm. & M. c. 18, which recites that " divers malicious and contentious persons have more of late than in times past pro- cured to be exhibited and prosecuted informations in their Majesties' Court of King's Bench, at Westminster, against persons in all the (a) Book iv. 310. INFdEMATlONS -NOT EX-OFPICIO. 13 counties of England for trespasses, batteries, and other mis- demeanors, and after the parties so informed against have appeared to such informations and pleaded to issue, the informers do very seldom proceed any further, whereby the persons so informed against are put to great charges in their defence ; and although at the trials of such informations verdicts are given for them, or a nolle prosequi be entered against them, they have no remedy for obtaining costs against such informers." It then enacts that " the Clerk of the Crown in the Court of King's Bench for the time being shall not, without express order to be given by the said Court in open court, exhibit, receive, or file any information for any of the causes aforesaid, or issue out any process thereupon before he shall have taken or shall have de- livered to him a recognizance from the person or persons procuring such information to be exhibited, with the place of his, her or their abode, title or profession, to be entered to the person or persons against whom such information or informations is or are to be exhibited, in the penalty of twenty pounds, that he, she, or they will effectually prosecute such informations or information, and abide by and observe such orders as the said Court shall direct," Sect. 6 contains a proviso that nothing in the Act relating to informations shall extend or be construed to extend, to any other informations than such as are or shall be exhibited by the Master of the Crown Office. So that eoc-officio informations by the Attorney-General are not affected by the statute. " That statute," said Lord Kenyon (6), " does not enumerate the Discretion founds which are sufficient to enable us to grant an information ; affected by" the but the Legislature left it to our discretion, trusting that we should ?***"*^- not so far transgress our duty as to go beyond the rules of sound ^scretion." The rules of sound discretion have, in the course of time, under- gone considerable modification, and there is no doubt that the Court would now unhesitatingly refuse to grant informations in many cases where they would formerly have been obtained. Attention will be called to these cases later on. In ;general, the kind^ of cases in which informations of this Class of cases ° in which (6) B. V. Jolliffe, 4 T. B. 290. granted. 14 CRIMINAL INFORMATIONS. character would now be granted are attacks upon and offences by public officials or persons occupying certain prominent public positions, as such. As to UbeUous attacks upon such persons, " the remedy," says Lord Blackburn (c) " had usually and properly been confined to cases of magistrates, ministers, public officers, and persons in a high position whose character was of such public importance as to require immediate vindication." In the language of two other judges (MeUor, J., and Huddle- ston, B.), the exercise of this extraordinary jurisdiction was " re- served for cases of libel upon persons in an official or judicial position, and filling some office or post which made it for the public interest necessary that such jurisdiction should be exercised for the refutation of the libellous charges made " {d). The rule laid down by Cole (e) that " the Court wUl grant leave ■to file criminal informations for gross libels on private individuals, where the imputations are of a serious nature and totally un- founded" no longer holds. There has, no doubt, been a long succession of such cases. In B. v. Benfield (/), iu 1760, an infor- mation was granted against certa,in persons for singing in the streets libellous songs reflecting upon the son and daughter of a grocer at Cheltenham ; in M. y.' Kinnersley (g), in 1761, against a newspaper proprietor for publishing a ludicrous account of the marriage of an Irish nobleman (a married man) with an actress ; in ^. v. Dennison (h) (in the year 1773) against the writer of a letter to a nobleman threateniag to accuse him of unnatural practices unless he compHed with certain demands of the writer ; in E. v. Sober (z), in 1832, against a newspaper proprietor, for publishing that a woman offered to swear her child to one of three persons, including the prosecutor ; in B. v. Gregory (k), in 1838, for a libel upon the family of a nobleman in alleging that at the time of his marriage h^ (c) R. V. Lord Winchehea, cited by libel imputing to him personal corrup- Lord Coleridge, 0. J., in iJ. v. iaJoM- tion. ■chere, L. E. 12 Q. B. D. 327. (e) Informations, 18. (d) Cited (with approval) in the (/) 2 Burr, 980. judgment in B. v. Labouchere, L. E. (g) 1 Wm. Bl. 294. 12 Q. B. D. 328 ; the language cited (h) Lofft. 148. being used in refusing an application of (i) H. T. 1832, cited Cole, 22. the Musical critic of The Times, for a (k) 8 A. & El. 907. INFORMATIONS NOT EX-OFFICIO. 15 had another wife living. A simUar case was B. v. Kintcml and Others (I), for publishing in a newspaper that " the amount of public money received by the Somersets since the late Duke of Beaufort came of age, far exceeds the value of the estates he bequeathed to the present Duke ; " and B. v. Staples (m) appears to have been a case of an ordinary libel on an alderman and justice in his private capacity. In B. v. Mead (n) the application was refused as resting on Ught and trivial grounds. The practice of granting these informations ia cases of private libels, as observed by Lord Coleridge, C.J., in B. v. Labouchere (o), appears to have reached its greatest height in the time of Lord Tenterden, who seems to have been of opinion that an information ought to be granted in every case of libel ( p). " The general dissatisfaction of the profession with this state of Modem things," says Lord Coleridge, in the same case (q), "led in the time of Lord Denman and Lord Campbell to a much stricter practice in this Court in the granting of these informations. I am quite aware that B. v. Gregory (r), B. v. Latimer (s), and a few cases of this soft occurred during this period of time ; but there can be no doubt that the cases were rare, except where some person in a public or official position was attacked, ia relation to such position, or where the attack was of so cruel and outrageous a sort as to make it, according to the view of Hawkins, a matter which interested the public and called for the interference of the. Court as representing the public and charged with the defence of its interests; So it was during the greater part of the time of Sir Alexander Cockburn, though towards the close of his life the practice of the Court became somewhat easier and laxer. I have, however, by the kindness of a learned friend, been furnished with the reports of fifty cases {t) of criminal informations, running over the years from 1860 to 1880 inclusive ; and out of these fifty cases, four only (Z) H. T. 1831 ; cited Gole, 20. him in iJ. v. Kintoul & Others, Cole, 20. (m) Andr. 228. See also E. v. ■ (j) 12 Q. B. D. 326, 327. Smith (M. T. 1831), referred to in the. (r) 8 A. & El. 907. . judgment in E. v. Ldbowhere, L. E. (s) 15 Q. B. 1077. 12 Q. B. p. 326. (0 They are not to be found in the (to) 4 Jur. 1014. usual legal reports, being cases of dis- (o) L. E. 12 Q. B. D. 325. cretion, generally turning upon the (p) See the language attributed to facts.. 16 CRIMINAL INFOEMATIONS. were cases of informations granted at the suit of persons who were not in some public office or position ; and during that time there were repeated declarations by various members of the Court, not, indeed, that as matter of law the information would not be granted at the suit of private persons, but that the Court would as a general rule leave private persons to their private remedies." Lord Coleridge added : " I am able from my own recollection to state two cases — each of them, I think, important. This Court in the time of Lord Campbell refused Sir Charles Napier a criminal ' information for a libel imputing to him great misconduct in regard to his conquest of Scinde, on the ground, amongst others, that he had ceased to be commander-in-chief in India, and was at the time of his application -to the Court only a private person. And a rule for a criminal information in the case of R. v. Plimsoll, in which I was myself counsel, was discharged after argument, for a libel ia" which a member of Parliament was accused of sending his ships to sea overloaded, in order that they might siak and he might gain , the insurances on them. The rule was discharged without costs, inasmuch as the applicant had cleared his character ; but the Court left him to his ordinary remedy as a shipowner against any one who libelled him in that character." General rule. The judgment of the Court (m) in B. v. Labouchere (x) expresses the hope that criminal informations may hereafter be granted only in cases which come fairly within the following language of Black- stone (y) : " The objects of the other species of informations filed by the Master of the Crown Of&ce upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, iatteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the Government (for those are left to the care of the Attorney-General), but which on account of their magnitude or pernicious example, deserve the most public animadver- sion " (z) — a passage sufficiently lacking in precision as to afford scope for much future discussion. (m) Consisting of the large number Q. B. D. 330. of five judges (Lord Coleridge, C.J., (x) Ih. Denman, Field, Hawkins, and Mathew, (y) Book iv. c. 23, p. 309. JJ.) " to establish, if possible, upon (z) Denman, J., added that he could unusual authority, some principles for not accept this passage from Black- our guidance in future": L. R. 12 stone, "as being quite an exhaustive INFORMATIONS NOT EX-OPPICIO. 17 The most exalted social position on the part of the applicant Libels on peers, wUl not entitle him to an information if the libel is directed private against him in his private character only. character. " I can find nowhere," said Lord Coleridge in the same judgment, "any trace of the doctrine that a peer as such, is entitled to exceptional and most important privileges in the administration of the law. If a peer is libelled as a peer for his conduct in Parlia- ment, or as lord-lieutenant (if he is one), or as magistrate, or as the holder of a public of&ce, it would undoubtedly be almost of course (all other legal conditions being fulfilled) that the Court should intervene in his behalf. But that a peer, in private matters, is entitled to any interference at the hands of this Court which the Court would not extend in favour of the humblest subject of the Queen, I respectfully but emphatically deny. I am not aware of any authority for such a proposition {B. v. Gregory (a) is certainly no such authority), and I decline to make one " (6). The information in B. v. Zdbouchere was refused on two other grounds also ; (1) because the libel was on the dead, and (2) because the applicant was neither resident nor sojourning in this country. After going through the various cases in which proceedings have Libel on dead, been taken in respect of libels on deceased persons. Lord Coleridge thus expresses the opinion of the Court : " There is no instance of an action for libel by the representative of a deceased person ; it ' must be, I think, some very unusual publication to justify an in- dictment or information for aspersing the character of the dead. If such a case should ever arise, it must stand upon its own footing" (c). As to the objection that the applicant was neither resident nor Applicant sojourning in the country, the Court said : " We do not intend to abroad.* lay it down as a rule of law that this Court will not interfere under description of the cases in which the advised, I should think it would he the Court ought to interfere. For example, duty of the Court to protect the indivi- if a newspaper or an individual were to dual by granting a rule, and even, in shew, by repeated attacks, and by wide case of further persistence,' by making circulation of those attacks, upon a it absolute " : L. E. 12 Q. B. D. 331. private individual, whether a British (a) 8 A. & E. 907. subject or a foreigner, whether resident (6) L. E. 12 Q. B. D. 329. in England or abroad, a persistent deter- (c) L. E. 12 Q. B. D. 324. mination to persecute, as at present 18 CRIMINAL INFORMATIONS. any circumstances by way of criminal information on the applica- tion of a person so situated. Cases may be put, or may actually arise, in fact, in which this Court would interfere beyond all question, if the person applying to it were an English subject or were resident in England ; and the single fact that the applicant was situated as the applicant is situated here, might not in such a supposable case be an answer to the application. But it is obvious that, if we have regard to the principles on which from very early times this Court has acted, the non-residence of the applicant in England is a very cogent argument against the interference of the Court. It makes it as a general rule very unlikely that there should be any intention to provoke a breach of the peace on the part of him who publishes the defamatory matter, and also, generally speaking, very unlikely that, in fact, any breach of the peace will follow. It is a matter, therefore, very important for the Court to consider, when the appeal is to its discretion ; a reason further why, in the exercise of that discretion, the Court should be un- willing to interfere " (d). Applications In modem times a practice sprang up of using the machinery of order to obtain the Court for the purpose merely of extorting an apology for libel, an apology, sjailo. no intention of carrying the proceedings further. The Court in later times discouraged the practice ; and what may be con- sidered as a decisive check was given to it in .B. v. " The World" (e), by the Queen's Bench Division (Cockbum, C.J., MeUor and Field, JJ.). The prosecutor (Mr. Horsman), having, on the argument of the rule, extracted what he considered a sufficient apology, was willing that the rule should be discharged, Cockbum, C. J., said : " I can quite understand that he, having vindicated his character, is not animated by any vindictive feeling ; but we stand in a different position. With us it is not a question of the vindication of character ; it is one of public justice. Here a Ubel of a most serious character is brought before us, and the question is whether we shall sanction the compromise between the parties, or whether the prosecution, having been once instituted, ought not to take its course, its object being, not the vindication of character, but the repression of scandalous libels. It has been too much the practice for the applicant to come and say he is satisfied, (d) L. R. 12 Q. B. D. 321, 322. («) 13 Cox, Crijn. Caa. 305. INFORMATIONS NOT BX-OFPICIO. 19 having obtained an apology ; but the question is whether, there being a serious offence against the law, the proceeding ought to be allowed to stop, and whether we ought to listen to any proposal to compromise so serious a case." After saying that the Court could not compel the prosecutor to go on, the Lord Chief Justice added that he hoped it would be understood that "if this Court is resorted to, in cases of flagitious libel, merely for the purpose of vindicating the character of the individual, it will be incumbent upon us, in order that our process may not be used simply for private purposes, to require, before we allow the proceedings to be instituted, an undertaking by counsel on the part of the prosecutor to proceed with the prosecution, in order to insure its being carried to its legitimate conclusion." In the foUowiag cases informations were granted for libels : — Examples of ° ° informations Memlers of Parliament. — B. v. Haswdl (/ ) for a Kbel in the for libel. Mammg Post upon the Duke of Eichmond, relating, amongst other things, to speeches made by him in the House of Lords, and imputing treasonable practices to him. Magistrates. — In 1775 for a libel on the justices of Suffolk in an advertisement respecting the expenditure of money in the hands of the comity treasurer (g); in the same year, for publishing a pamphlet charging the justices of Middlesex with ignorance and corruption in the execution of their office (h) ; but not for spoken words calling a magistrate a liar in the presence of several persons, saying he was unfit to be a magistrate, and adding that he should hear the same every time he came into the town, unless there appears an intention to provoke a breach of the peace (i) ; nor for saying of a justice " if he is a sworn justice he is a rogue and a forsworn rogue " (k), nor for spoken words imputing to a justice malversation in his office, if they were neither spoken at the time when he was acting as justice, nor tended to a breach of the peace (Z) ; nor for an assault on a mayor in the (/) 1 Doug. 387. (A) -B. V. Pocock, 2 Str. 1157 ; cf. B. (g) JR. V. Alderton, cited 5 B. & Aid. v. WeUje, 2 Camp. 142, a case of an in- 596. dictment. (A) B. V. Eolloway & AUen, cited ib. (I) Ex parte Duke of Marlborough, (j) Ex pa/rfe Ohcupman, 4 A. & El. 5 Q. B. 955. In this case Lord Demnan 773 ; cf. Ex parte Bale, 2 C. L. Rep. said : " It is clear, upon all the autho- 870. rities, that words merely spoken are not C 2 20 CEIMINAL INPOBMATIONS. execution of his office where- the mayor strack the first blow (m). An information was, however, granted for calling a mayor a scoundrel, chaUenging him to fight a duel, and threatening to post him as ^ coward if he would not fight (n). Clergy. — In 1822 for a libel upon the clergy of the diocese of Durham (o) ; and in 1831 for a publication by the church- wardens of a parish charging the clergy in general, and the in- cumbent in particular, with harshness and rigour in the exaction of tithes (p). Tovm Clerk. — An information was granted for writing to the mayor of a borough : " I am sure that you will not be persuaded from doing justice by any little arts of your town clerk, whose consummate malice and wickedness against me and my family will make him do anything, be it ever so vile " (g-). Other eases. — An information was granted (14 Geo. 2) for a libel upon the East India Company, though the imputation was, in the singular, against " an East India director " (r) ; also for a libel upon the Portuguese Jews recently come to England, sug- gesting that they were so barbarous as to bum the child of one of their women because it was begotten by a Christian (s). On a lody of persons. — ^It will be observed that in many of the foregoing cases the libels were upon a body of persons. "Where a paper is printed," says Lee, C.J. {t), "greatiy reflecting upon a the subject of a criminal infonnation may treat the words as a contempt ; . . • The exception js in those cases but in my opinion it is then far more where the words amount to a provo- expedient that this Court should inter- cation to break the peace, by their fere." A dictum of Starkie [Libel and inciting either to perscmal violence or Slander] to a different effect, does not, to a cha.llenge. "We have, however, according to Lord Denman, appear to felt some doubt as to j;hat charge which be founded on any authoriiy. imputes corruption in the character of (m) B. v. Symonds, Cas. Temp, a magistrate. . . . But we find no pre- Hardw. 240. cedent for granting acriminsJ informa- (n) 6 Went. Prec. 461. tion in such a case. It has often been (o) jB, v. Williams, 5 B. & Aid. sMd that ihe Court will not interfere, 595. except where the words are uttered at (p) B. v. Epps, cited Cole, 20. the time when the magistrate is per- (j) B. v. Waite, 1 Wils. 22. forming his duty : and the reason of (r) B, v. Jenon/r, 7 Mod. 400. that exceptiMi is that there a direct (s) B. v. Oslm-n, 2 Barnard. 138, obstruction is created to the course of 166. justice. The magistrate, in such a case, (<) B. v. Jenom, 7 Mod, 401. INPOEMATIONS NOT EX-OFPICIO. 21 certain number of people, it reflects upon all ; and readers, accord- ing to their different opinions, may apply it so. It has been the rule of this Court always to endeavour to prevent libels upon societies of men." A rule for an information was granted for disturbing the public Riotous pro- ceedingti. worship of a dissenting congregation, though it was afterwards dis- charged, with costs, on the grotrnd of a suppression of truth on the part of the applicant (u). But an information was refused for an affray of a political kind, not happening at an election but on a racecourse, between the adherents of the rival candidates (x) ; also for a refusal by churchwardens to let the parishioners meet in the church about public business in pursuance of a notice given for that purpose, the Court not thinking the offence great enough to require an information (y). A rule for an information was granted for compelling a man, by a riotous assembly and threats, to lower the price of his butter and cheese ; but it was subsequently discharged because of the contra- dictory character of the evidence (z). ' An information was granted against certain gunmakers for a conspiracy to ruin certain other gunmakers, by making riots before their house and shop, seducing their workmen, making declarations of 01 will towards them, threatening bodily injury to their agent, and attempting to do him bodily injury (a) ; also for a conspiracy to ruin an actor (Charles MackHn) in his profession, by making a riot at Covent Garden Theatre and preventing the performance of a play in which he was to act, and obliging the manager to come on the stage and discharge him (I). Informationshave been grantedfor a riotous attackupon constables and magistrates (c) ; for riotously breaking the fences and enclosures of a lord of a manor {d) ; for a riotous disturbance at an election of bailiffs and burgesses of a corporation (e). The Court discharged a rule granted for obstructing the election (tt) B. v. Wroughton, 3 Burr. 1683. 14 Geo. 3 ; 6 Went. Free. 443. (as) B. V. Kynaston, 2 Barnard. 378. (e) Anon. Lofft, 253 ; B. v. Himt, (jf) Anon. 2 Barnardist. 166. 1 Ld. Keny. 108. (z) Tuite or Chote v. Fawfces, Lofft. (d) Prynn's Case, 5 Mod. 459 ; 1 64. Show. 106. (a) if. V. Eadley and Others, E. T. (e) Cerpmution of Bewdhy's, Case, 14 Geo. 3 ; 6 Went. Preo. 439. Holt, R. 353. (i) M. T. Leigh and Others, E. T. 22 CRIMINAL INFORMATIONS. Assault. Provoking to breach of peace. of lord mayor of the City of London in a violent and tumultuons manner, it appearing that the offenders acted in the hand fide assertion of a claim of right (/). An information was in one case granted for an enormous assault ig) ; and in another case for, so far as appears from the report, a common assault (h). An application by one attorney for a criminal information against another for an assault, in conse- quence of proceedings taken by the applicant professionally, was refased on the ground that the applicant had already taken other proceedings (i). The Court refused a similar application for an assault committed with the object, which was not attained, of forcing the applicant to sign a certain paper (fc) ; but an information was granted for maliciously pressing the captain of a merchant ship to serve as a common seaman (Z). Informations have been granted for sending and for carrying a challenge (m); but an information was refused where the applicant had sent the first challenge (w) either to the person against whom he moved (o), or to some third person connected with him (jp); also where the affidavit on which the motion was made contained unnecessary imputations on the defendant {q). The Court would not in such cases grant an information merely on a prima fade case being made out (r). " It is an invariable principle in this Court," said Lord Denman, "not to grant a rule for a criminal information upon evidence which would not justify a grand jury in finding a true biU of indictment against the party for the same offence " (s). (/) B. V. Parkyns, 3 B. & Aid. 668. (g) Anon., 2 Barnard. 27. (h) R. V. Ovnlt, 11 A. & EL 587. (i) Ex parte — Gent, 4 A. & El. 576, note. (k) Anon., 2 Barnard. 87. © B. V. Webb, 1 W. Bl. 18. (to) B. v. Morgam, and Another, 1 Doug. 314. See also B. v. Tmmg- husba/nd, 4 N. & M. 850. (n) B. V. Eamkey, 1 Burr. 316. (o) lb. {p) B. V. Lwrrim, 7 A. & El. 277. (j) B. V. Boherty, Arnold & Hodge's N. T. Rep. 16. (r) Ex parte H^iTZjonw, 5 Jur. 1133. See also B. v. WiOett, 6 T. B. 294 ; B. V. Tounghusbcmd, 4 N. & M. 850. (s) Ex parte WiUiams, vhi supra. An amusing case of an application for a criminal information is mentioned by Cole (p. 37), where the attorney of one side had written without pryvdice to the attorney of the opposite side a letter threatening to horsewhip his client, on the first opporttmity, because of certain insulting pleas of his. As to an alleged challenge of an ambiguous kind, see Prideaitx v. Arthttr, Lofft. 393. INFORMATIONS NOT EX-OPFICIO. 23 Libellous attacks on the administration of justice have usually Attacks on the been prosecuted by the Attorney -General ex officio, or have been tion'oTjustioe. regarded as contempts of Court and dealt with as such (f). How- ever, in B. V. Watson and Others (u), the Court granted an infor- mation against the members of a corporation who had passed and inserted in their books a resolution that a Mr. Watson (against whom a jury had found a verdict with large damages in an action for malicious prosecution, which verdict had been confirmed by the Court of Common Pleas,) was actuated by motives of public justice and voting him a sum of money to pay his expenses («). An information was refused for a libel on Home Tooke, affirming his guilt on a charge (high treason) for which he had been tried and acq[uitted, as the alleged libel was contained in a report pub- lished by order of the House of Commons (y). Informations have been granted for a conspiracy to gain a false Attempts to verdict (z) ; for bribing a juror (a) ; for attempting to persuade a ° ^* ^"^ "'°' witness not to appear on a criminal trial (6) ; against the captain of a man-of-war for refusing permission to a coroner and his jury to go on board to view the body of a sailor who had committed suicide (c) ; against a defendant on a criminal trial, who distributed handbills in the assize town for the purpose of influencing the jury in his favour (d). In E. V. Bummer (e) an information for perjury was refused because the question put was unfair. Publications which tend to prejudice the hearing of a pending catise are dealt with summarily as contempts of Court (/). (t) As to the treatment of libels as (m) 2 T. R. 199. contempts, see 3 Inst. 174 ; Wihnot's (a;) See also R. v. Lawson, 1 Q. B. Notes and Opinions, 253 ; B. v. White, 486. 1 Camp. N. P. 359 ; Crawford's Case, (y) M. v. Wright, 8 T. B. 293. 13 Q. B. 613 ; Van Sandau v. Turner, (z) B. y. Opie & Others, 1 Saund. 6 Q. B. 773 ; B. v. Watson, 2 T. R. Rep. 300. 199 ; Lechmere Charlton's Case, 2 My. (a) B. v. Yowng, cited 2 East, 14, 16. & Or. 316; Ex parte Jones, 13 Ves. (I) 5. v. icwwZey, 2 Str. 904. Whether 237 ; Ex pa/rte Tv/rner, 3 Mont. D. & this information was ex officio or not De G. 523, 551, 558 ; Martin's Case, does not appear from the report. 2 Russ. & Myl. 674 ; MacgilVs Case, (c) B. v. Solgard, 2 Str. 1097. 2 Fow. Ex. Pr. 404 ; Smith v. Lake- (d) B. v. Jolliffe, 4 T. R. 285. Cf. man, 26 L. J., 305 Ch. ; Shaw v. Shaw, B. y. PhUlips, 3 Burr. 1564. 31 L. J. Prob. 35 ; Be Muloch, 33 L. J. (e) 1 Salk. 374. Prob. 205. (/)• See 2 Atk. 469; Per Wood, 24 CRIMINAL INFORMATIONS. Publishing the preliminary proceedings before a magistrate or coroner was formerly punishable by information, as tending to create a prejudice against the accused and to deprive him of the chance of a fair trial {c/) ; but opinion has so far changed on this subject that not even a civil action will now lie for such a publi- cation, provided it be fair and accurate (A). For bribery. Informations have been granted for bribing and for attempting to bribe at elections, parliamentary (i) and municipal (k) ; also for attempting to obtain by bribery an office from the First Lord of the Treasury (l). As to bribery at parliamentary elections, Lord Mansfield, deliver- ing the judgment of the Court in B. v. Pitt (m), said : " We have not the least doubt but that the offence, notwithstanding the statute (2 Geo. 2, c. 24), still remains an offence at conamon law." other cases. In 5 V. Norris afid Others (w), an information was granted for a conspiracy to raise the price of salt ; Lord Mansfield remarking that if any agreement was made to fix the price of any necessary of life, the Court would be glad to lay hold of an opportunity, from what quarter soever the complaint came (o), to shew their sense of the crime; and he mentioned an indictment, upon one of the V.C., Tichborne v. Mostyn, L. R. 7 Eq. would not as a rule grant an informa- 57 ; 17 L. T. N. S. 7 ; Littler v. tion until after the expiration of the Thompson, 2 Beav. 129; Fdhin v. two years within which an action might Herbert, 9 L. T. N. S. 635 ; 33 L. J. Ch. he brought for the penalty of £500, 294 ; Ee Cheltenham, and Swansea recoverable under that statute against Railway Carriage and Waggon Co., any person guilty of bribery at parlia- L. R. 8 Eq. 580 ; B. v. Clement, 4 mentary elections ; B. v. Fitt & Mead, B. & Aid. 218 ; Daw v. Eley, L. R. 3 Burr. 1335 ; 1 W. BL 380; Comhey. 7 Eq. 49 ; Onslow and Whalley's Case, Pitt, 3 Biur. 1586. L. R. 9 Q. B. 219 ; SUpworth's Case, (k) B. v. Plympton (the election of it. 230. a mayor), 2 Lord Bay. 1377 ; see also (g) B. V. Lee, 5 Esp. 123. B. v. B. v. Spinage, cited 1 W. Bl. 383 ; B. Fisher, 2 Camp. 563, was an indict- v. Mayor of Tiverton, 8 Mod. 186 ; B. ment for a similar offence. v. Robinson (election of an alderman, (V) See UsUl v. Hales, L. R. 3 where the information was refused on C. P. D. 319, and the cases there re- special grounds), 1 W. Bl. 541. ferred to. (Q B. v. Vaughan, 4 Burr. 2494. (i) See B. v. Isherwood, 2 Ld. Keny. (m) 1 W. Bl. 383. 202 ; B. V. Taylor (for offering to buy (ra) 2 Lord Keny. 300. votes), 12 Mod. 314. So long as (o) It was objected in this case that 2 Geo. 2, c. 24 was in force the Court the party applying for the information INP0EMATI6N8 NOT EX-OPPICIO. 25 last home circuits, against the bakers of the town of Farnham for such an agreement. But an information would not be granted for a similar endeavour by an individual {p). An information was, however, granted against an individual for spreading rumours to enhance the price of hops, persuading dealers, &c., not to take their hops to market and to abstain from selling for a long time, engrossing large quantities of hops by buying from many persons with intent to resell the same for an unreasonable profit, and thereby to enhance the price, and buying • large quantities with like intent {q). Lord Kenyon, after referring with approval to the salt case just cited, said : " If, then, hops are become a necessary ingredient, though only for preserving the coriimon drink of the people, they must be deemed a necessary of life and a victual, the engrossing of which, or committing any undue practices to enhance the price to the public, is an offence at common law. ... I am perfectly satisfied that the common law remains in force with respect to offences of this nature " (r). The Court granted an information (in 1733) against certain persons for forcing a woman to marry one of them against her wUl (s) ; also (12 Geo. 2), for getting a- young lady (who went volimtarily) out of the custody of her guardian assigned in Chancery, and marrying her, although the Court of Chancery had already committed the defendants for contempt {t) ; also (15 Geo. 2), for taking away a natural daughter under sixteen from the care of her putative father, the Court being of opinion that it was within sect. 3 of 4 & 5 P. & M. c. 8 (m). Where a music master, to whom a young girl had been bound apprentice by her father, assigned her to another person, nominally to learn music of him, but in reality to live with him as his mis- tress, the Court made absolute a rule for an information against the person to whom she was assigned, the music master, and the attorney who drew the assignment (aj). seemed himself to be in some respect (s) R. v. Lynn, 2 Barnard. 242. faulty, and that the application pro- (<) B. v. Osmlton and Others, 2 Str. ceeded from a selfish motive ; hut the 1107. objection was not listened to. (w) R. v. Cornforfh, 2 Str. 1162. (p) R. V. Eilbers, 2 Chitt. Rep. 163. (sc) R. v. Belaval, 3 Burr. 1434 1 (?) R. V. Waddington, 1 East, 142. 1 W. Bl. 410. * (r) Id. pp. 157, 158. 26 CRIMINAL INFORMATIONS, In B. V. Green (y), the Court granted a rule for an information against six persons for a conspiracy in taking away from his father's house a young man of fortune (aged 17), though not heir apparent to his father, and marrying him to one of the defendants, a widow of 35. In the report of this case a number of unreported cases are referred to where the Court granted informations for taking away or conspiring in taking away young girls and marry- ing them, and one case for taking away from the custody of his guardian a man who was ncm compos, and marrying him to one of the defendants. Offences by Informations have been granted against persons holding public pubUc offices, ofi&ces, for misdemeanors ia relation to the duties of their of&ces : — Cmmiy Gowrt Judges. — In iJ. v. Marshal (z) the Court was clearly of opinion that a judge who maliciously obstructed the course of justice was guilty of a misdemeanor for which an information would be granted ; but the rule in that case was discharged on the ground that the applicant had already elected another remedy, by memorializing the Lord Chancellor. A rule, was refused for an iaformation against a county court judge for committing a debtor to prison without allowing bini to give any explanation, there being nothing to shew a corrupt motive (a). Magistrates. — Though an indictment will lie against a magistiate for doing any illegal act (&), an information wiU not be granted unless it ia also shewn that he has acted from some dishonest, corrupt, or oppressive motive (c), imder which description, says Abbott, C.J. {d), fear and favour may generally be included. In respect of an Ulegal act the result of honest error an informa- tion wiU not be granted ; for, in the words of the learned judge just referred to, " to punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic rulers of an enslaved people, {y) 3 Doug. 36. 127 ; R. v. Jackson, 1 T. R. 653 ; B. v. (z) 4 El. & BL 475. Borron, 3 B. & Aid. 432 ; B. v. Justices (a) Anon. 16 Jut. 995. of Staffordshire, 1 Caiitt. R. 217. (6) B. V. Sainsbury, 4 T. R. 457 (d) B. v. Borron, 3 B. & Aid. 434 ; (per Asliurst, J.) see also Anon. 16 Jur. 995. (c) Ex parte Fentiman, 2 Ad. & El. INPOEMATIONS NOT EX-OFPICIO. 27 and is wholly abhorrent from the jurisprudence of this kingdom " («). Such also was the opinion of Lord Mansfield as to justices : " If their judgment is wrong, yet their heart and intention pure, God forbid that they should be punished; and he declared that he should always lean towards favouring them, unless partiality, cor- ruption, or malice shall clearly appear " (/). If an order nisi has been granted, the Court wOl discharge it on seeing that the magistrate did not act from the corrupt motives charged (^); but if he has acted illegally, the Court may make him pay the costs (h). But it is not necessary to shew a corrupt motive, in the ordinary sense of the word corrupt ; if a magistrate acts from " passion or opposition," that is, according to Ashurst, J. (*), " equally corrupt as if they acted from pecuniary considerations." Thus, where certain persons who had been duly committed for fourteen days by a magistrate under the Vagrant Act (17 Geo. 2 c. 5), were, on giving bail to appear at the next quarter sessions to prosecute an appeal, discharged from custody by certain other magistrates, the Court made absolute a rule for an information against the latter magis- trates, their action being considered " gross misbehaviour, which could not be imputed to mistake or ignorance of the law " (k). It must first be clearly shewn that the magistrate has acted illegally (I) ;, but the applicant for an information against him must not rely on the illegality being so manifest that the magistrate must have known of it ; a corrupt motive (in the sense above described) must be charged and shewn (m). Informations have been granted against magistrates in the follow- ing cases : — ^for refusing to grant licences to those pubKcans who had voted, at the election of members for the borough, against the candidates recommended by the magistrates, the magistrates having, before the election, threatened to withhold licences from those who (e) 3 B. & Aid. 434. B. v. Badger, referred to, post, p. 28. (/) B. V. Toung, 1 Burr. 562. (h) B. v. Whately, 4 M. & By. 431. (g) B. V. Baylis, 3 Burr. 1318 ; B. (i) B. v. Brooke and Others, 2 T. K. V. Toung, 1 Burr. 556 ; see also B. r. 195. Athay, 2 Burr. 653, where thougli the (h) Id. 195. defendant was not regularly summoned, (Z) B. v. Barker, 1 East, 186 ; B. he had been sent for by the magistrate, v. Jackson, Lofit. 147. appeared before him, and so far from (m) B. v. Jackson, 1 T. B._653. offering a defence applied for mercy : 28 CRIMINAL INFORMATIONS. should so vote (n) ; for refusing a licence to sell ale to an innkeeper merely from a motive of resentment against him for having joined in an affidavit made in support of the interest [the report does not say of what kind] adverse to that espoused by the justices and their friends (o) ; for improperly granting an ale licence to a person to whom the general meeting of magistrates had refused a licence on the ground of misbehaviour (p) ; for granting a distress warrant, in order to serve election purposes, against the occupiers of a house for poor rates, after the' landlord had tendered the amount to the overseers (q) ; for causing a woman to be publicly whipped as a disorderly person, without any view, information, or proof exhibited against her (r) ; for causing a person to be imprisoned for want of bail, in a matter not cognizable before a justice, and ordering him to be kept in close confinement, without pen, ink, or paper, or the sight of any friend (s); for wrongfully refusing, on political grounds, as bail persons unquestionably of sufficient property (f) ; for knowingly taking insufficient sureties for the appearance of a person charged with seducing manufacturers to go into foreign parts, without notice to the committing justice (u); for fraudulently refusing to relieve burgesses appealing against a poor rate (as) ; for refusing to put 1 Geo. 1, c. 13, s. 11, the law against recusancy, in (n) S. V. Williams, 3 Burr. 1317. (s) Id. p. 238. See £. v. Saunders, (o) B. V. Eann & Price, 3 Burr. 10 Q. B. 484. .1716. (0 S. V. Badger, 4 Q. B. 468; 6 (p) B. V. Sollcmd & Foster, 1 T. E. Jur. 994 ; 7 Jur. 216. The magistrates 692. In this case one ms^trate, refused on the ground that the pro- who had been present at the general posed bail (Birmingham town coun- meeting at which the licence was re- cillors) were chartist leaders, the charge fused, induced another, who had not against the accused being one of sedi- been present, to concur with him in tion. It appearing, on cause being granting the licence, by misrepresent- shewn against the rule, that the magis- ing the reason why it had been refused, trates acted only in pursuance of a The rule, as to the magistrate thus resolution previously come to before a deceived though not blameless, was general meeting of the magistrates of discharged on his paying the costs : it the county, with the sanction of the was made absolute against the other, lord lieutenant, the Court discharged B. V. Filerwood, 2 T. E. 145, was also the rule, but the magistrates had to for improperly granting an ale licence, pay the costs, as their refusal of bail but no details are given in the report, merely on the ground of personal cha- Of. B. V. Sainsbury, 4 T. R. 451, a case racter or opinions was illegal, of indictment for a similar offence. (u) 4 Went. Free. 418. (5) B. V. Cozens, Doug. 426. (a) B. v. Phdps, 2 Ld. Keny. 570. (r) 2 Chitt. Cr. L. 236. INFORMATIONS NOT EX-OPPICIO. 29 force against a person because he was a gentleman of fashion and not suspected to be against the government {y) ; for wilful absence on the part of a justice from sessions which could not be held without him (z) ; for sitting as one of the justices under 12 Ann. c. 18 to settle the amount of salvage of a vessel, of which salvage he was, as custom-house officer, entitled to a part, under the statute {a). An information would be granted against a justice for extortion under cover of his office (6) ; also for appointing overseers from a corrupt and improper motive (c). In B. V. SpotluTid (d) an information was granted against justices for making a false return to a mandamus ; but in the subsequent case of B. v. Justices of Lancashire (e), the Court expressed a doubt whether an information should be granted in such a case, unless the return was corruptly and wilfully false. A rule nisi was granted against a justice for neglecting his duty as a county magistrate by refusing to call in the military or to establish a sufficient force to repress a riot at an election ; but the rule was discharged because the requisite notice had not been given (/). An information will not be granted against a magistrate for convicting unless the applicant swears in his affidavit that he is innocent of the charge against him (gr); nor for returniag to a writ of certiorari a conviction in another and more formal shape than that in which it was originally drawn up, of which a copy had been delivered to the party convicted by the magistrate's clerk, the conviction returned being warranted by the facts (Ji) ; nor against justices acting in sessions, where they are a court of record, except in a very strong case indeed, with flagrant proofs of their having acted from corrupt motives (i). (y) B. V. Newton, 1 Str. 413. (e) 1 D. & By. 485. The subject of (z) B. V, Fox, 1 Str. 21. false returns will be further considered (a) B. V. Davis, Lofft. 62. when treating of Mandamus. (5) B. V. Yea, cited 1 Crude's Crown (/) B. v. Seming, 5 B. & Ad. 666. Practice, 111 note. See also B. v. Jones, (g) B. v. Webster, 3 T. B. 388. See 1 Wils. 7. ' also B. v. Athay, 2 Burr. 653. (c) B. V. Justicte of Somersetshire, (h) B. v. Barker, 1 Bast, 186. 1 D. & By. 443 ; B, y. JoUiffe, cited (i) B. v. Justices of Seaford, 1 arguendo, 1 Bast, 154. W. B. 432. See also B. v. Justices of (d) Cases temp. Hard. 184 ; cf. B. Shrewsbury, 2 Barnard. 272. T. Pettitua/rd, 4 Burr. 2452. 30 CRIMINAL INFORMATIONS. An information was refused against a magistrate for an assault committed by him on an attorney who had several days previously conducted certain proceediogs against him before other magistrates, the assault not being committed by him in his public and magis- terial, but in his private capacity (k). Solders of other public offices. — In one case(Z) an information was granted for refusing to undertake the office of sheriff, because the vacancy of the office occasioned a stop of public justice, and the year would be nearly expired before an indictment could be brought to trial. But the Court refused an information in a similar case against a dissenter, chosen sheriff of London, who had a conscien- tious objection to taking the sacrament according to the rites of the Church of England, there being another and a civil way of obliging persons to serve the office, vi^., by proceeding for the penalties imposed by acts of common coimcil upon refusers (m) ; also in a case where a person who did not usually reside in a borough, and whose business obliged him to be abroad for months at a time, refused to imdertake the office of mayor, the corporation, in this case, having also, by their charter, another remedy by fine (») ; and in a case where a man refused to be sworn on a coroner's jury, under a tmia fide belief that before being sworn the jury might inquire whether it was necessary to hold an inquest at all (o). In B. V. Harris (p), an information was granted against certain aldermen of Gloucester for improperly refusing to admit several persons to their freedom of the city. An information was granted, E. T., 5 Geo. 2, against an overseer who with others had forcibly removed a poor woman, who was very sick and near her confinement, from one parish to another, in order to save the expense it might occasion to the first parish if the child should be bom there (2). An information was granted in 1759 against overseers for con- (k) B. V. Arrowsmith, 2 Dowl. N. S. 2 Str. 1192 ; see also B. v. Shackling- 704 ; s. 0. nom. Ex parte Lee, see 7 Jur. ton, Andr. 201, note. 441. For a curious application (unsuo- (n) B. v. Denison, 2 Lord Keny. cessful) against a magistrate for pre- 259. tending to read the Eiot Act, see B. v. (o) B. v. Blurton, 2 Jar. 33. Spriggins, 1 W. Bl. 2. (p) 3 Burr. 1330. (0 B. V. Woodrow, 2 T. E. 731. (q) B. v. Bmby, 1 Bott. 335, pi (to) B. v. Grosvenor, 1 Wils. 18; 406 (Ed. 5). INPOBMATIONS NOT EX-OFPICIO. 31 spiring to bring about the marriage of a female pauper chargeable to their own parish in order to ease it and burthen another parish (r), and in 1767 against a single overseer for a like offence (s) ; but in 1783, for a precisely similar offence, the Court refused to grant an information against overseers and others, Lord Mansfield remarking that " great inconvenience has been felt from the practice of obliging persons in low circumstances to shew cause against informations. . . To be sure, this appears to be a very fit subject for prosecution ; but justice may effectually be done otherwise ; and it will be more proper in all such cases to take the common remedy and proceed by indictment" (t); and in B. v. Jennings (u) in 1845, an information was refused against overseers for endeavouring to induce paupers fraudulently to remove to another parish. An information was granted in 1733 against the clerk of a market for exacting fees to which he was not entitled (x). An application for an information against an attorney for practising as such whilst he was under-sheriff was refused (in 1745), because the af&davit did not state what particular acts he did, so that the Court might judge whether such acts amounted to practis- ing as an attorney (y) ; Lee, C. J., adding that an information had been granted against one Husk for a like offence. Leave to file an information against a gaoler for suffering a person committed on an attachment for non-payment of costs to go at large, was refused, the Court saying that the ordinary remedy by an action for the escape was sufficient (z). B. V. Bogers (a) stands on a peculiar footing. There the Court granted (there being no other remedy) an information against commissioners under a Turnpike Act, on a charge of not pur- suing the road mentioned in the Act, but going through part of another road, not meant to be repaired, for their own con- venience. Lord Mansfield said : " Where trustees, appointed by Act of Parliament, appear plainly to have gone beyond their power, or have acted contrary to the evident meaning of the Act, though (r) R. V. Serbert, 2 Lord Keny. (aj) Anon. 2 Barnard. 310 ; s. c. nom- 466 ; B. V. Watson, 1 Wils. 41. B. v. Bobe, 2 Str. 999. (s) B. V. Ta/rrant, 4 Burr. 2106. (y) B. v. Bull, 1 Wils. 93. (f) B. V. Gompton, Caldec. 246. (z) B. v. Williams, Sayer, 145. (m) 2 D. & L. 741. (a) 2 Lord Keny. 373. 32 CBIMINAL ENFOEMATIONS. they have not done it from corruption, or paxtiality, this Court will (if there be no other way of setting the matter right) direct an information, not to punish them crhmnally (for the fine in such a case would be merely nominal, and for form), but in order to rectify the mistake. But then it must appear that somebody was a^rieved by such misconduct ; and upon such grounds, if it be doubtful whether they have exceeded their power or not, the C!ourt will, upon makiTig such doubt appear to their satisfaction, order an information for the purpose aforesaid, and to hang over their heads till they have tried the civil right by feigned action or otherwise." An information was granted in case of a false return to a man- damus to the Surgeons Company to choose officers. Holt, C.J., said : " The Court must proceed by way of information ; for being a matter concerning public government, no particnlar person is so concerned in interest as to maintain an action ; and the informa- tion must be granted against particular persons, though the return be under their common seal; for there is no other way to try the right "(&). In JR. V. Upton St. Leonards (e) the Court of Queen's Bench, in 1847, granted a rule for an information against the inhabitants of a parish for non-repair of a road (on notice to be g^ven to the churchwardens and surveyors of the highways of the parish) on affidavits stating that an indictment had been preferred at the assizes, that it was thrown out by the grand jury, two of whom were proprietors of land in the parish, that both took an active part against the bill, and that one of them, who had acted on behalf of the parish at an earlier stage of the dispute, told the foreman of the grand jury that the road was useless. Notwithstanding affidavits from these two gentlemen denying generally that they had taken an undue or active part in opposing the finding, the Court made the rule absolute. Lord Denman, delivering the considered judg- ment of the Court, said : " We do not impute any improper motives to those who interfered in the manner described, nor express any opinion on the merits of the case ; but we think that their con- nection with the parishes indicted ought to have prevented them (6) Cam of the Surgeons Company, 1 Salk. 374. (c) 10 Q. B. 827. INFORMATIONS NOT EX-OPFICIO. 33 ffrom taking any part in the discussion whether the bills should be found by the grand jury. The statement of the inutility of the road, though it might be irrelevant, was not unlikely to influence the grand jury in their decision. . . . The circumstances appear to us to be so irregular, and so inconsistent with the due adminis- tration of justice, that this Court is bound in the exercise of its controlling power, to place the matter in a proper train for impartial investigation." In a case, Mich. Term, 5 Geo. 2 (d) the Court refused an informa- Offences com- „,,.,, ■ n mitted abroad. tion for an oSence (the report does not say of what kind) committed on the high seas, on the ground that an information is local. In the same report it is stated that an information was denied for a battery in Newfoundland (e). But this doctrine has not been applied to ex-officio informations (/). A private individual will not be allowed to proceed by informa- Offence against tion where the offence which he seeks to punish is one against the State. An application was, on this ground, refused for a criminal information against a newspaper proprietor and publisher for articles inciting to breaches of the Foreign Enlistment Act. The Court were clear that there was no precedent for a private indivi- dual coming forward to institute proceedings for an offence against the State : if there was any offence, it was for the Attorney- General, as the representative of Her Majesty, to take action. The applicant might proceed by indictment if he Hked, or bring the matter to the attention of the law officers, who would take proceedings if they thought fit (g). An information has been refused to a person libelled, where he other grounds has put himself into communication with the libeller for the purpose of retorting upon or obtaining redress from him (h) ; also where the. persons libelled, a jury, had through their foreman pub- lished a recriminating letter, commenting in violent terms on the alleged libel (i). (d) S. V. Baxter, 2 Str. 918. (g) Ex parte Crawshay, 8 Cox, C. C. (e) R. V. Hooper, cited 2 Str 356. 918. (V) Ex parf-e Beauderh, 7 Jur. 373. (/) See R. y. Stevens & Agnew, 5 («) R. v. Lawson, 1 Q. B. 486; see East, 244, aad B. y. Holland, 4 T. R. also R. v. Proprietors of Nottingham 437, cited ante, p. 6, note (r). Jowrnal, 9 Dowl. 1042. D 34 CRIMINAL INFORMATIONS. Informations have sometimes been refused on the ground of the existence of some other adequate remedy, criminal or civil. It was the opinion of Ashnrst, J., in B. v. Watson (k), that an information should not be granted against the members of a cor- poration for mis-spending corporation moneys : application in such cases should be made to the Court of Chancery. And an informa- tion was reftised against the surveyor of a public road for an unauthorized application of the funds deposited in his hands by the trustees of the road. " The defendant," said the Court, " might be liable to make good the money if he had wrongly applied it ; but it was impossible to convert a civil into a criminal remedy, in the absence of any corrupt motive" (I). An, information for embezzling moneys collected on a brief was refused (m), the prose- cutors being referred to the ordinary remedy by indictment ; also for refusing to collect money on a brief for fire, according to the Act 4 Ann. c. 14, the matter being of a public nature, wherein the revenue was concerned, besides which a penalty was given and a method for obtaining it (n) ; also for endeavouring forcibly to retake one's wife, contrary to articles, there being a proper remedy by civil proceedings if the articles were valid (o). An information was refused for burying a body found in the Medway withoixt sending for the coroner. The Court considered this mode of proceeding too heavy a punishment for such a mistake (p). An information for a nuisance in obstructing the arches of the bridge at Leeds was refused, in 1756, on the grounds that it did not appear that a request to abate it had been made, and that it had been long acquiesced in ; the Court adding that if a bill had been preferred before the grand jury at the assizes, and the nuisance proved, and the jury had notwithstanding refused to find the bfll, that might have been an inducement to the Court to grant the motion (q). Informations have also been refused on the ground that the persons against whom they were applied for were in low circum- (A) 2 T. R. 204 ; cf. Anon. Lofft. 184. (o) B. v. Vane, 1 W. BL 18 ; cf. B. (0 B. V. Friar, 1 Chitt. Rep. 702. v. WUliams, Sayer, 145. (to) B. y. St. Botolph, 1 W. Bl. 443. (p) B. v. Proh/, 1 Lord Keny. 250. («) B. V. Ford, 2 Str. 1130. / (j) B. v. Green, 1 Lord Keny. 379. INFORMATIONS NOT EX-OFPICIO. 35 stances, living in a remote part of the country, to whom it would be a great expense to come up to receive judgment (r). Informations have been refused on the ground that the applicant has already elected to pursue a different remedy, as by taking out a warrant, in case of an assault, though the applicant offered not to take further proceedings on the warrant (s) ; or by com- mencing an action for the same offence, unless, at least, the plain- tiff discontinued the action (f); or by memorializing the Lord Chancellor for the removal of a county court judge (u) ; also where the prosecutor had already indicted the defendant for the same offence, and the grand jury had found a bill, though it was quashed for insufficiency, as the prosecutor might still prefer another in- dictment (x). But where the applicant had, on being assaulted, called a police- man and given his assailant iato custody, without warrant, but on appearing before the magistrate declined to press the charge, saying he should take another remedy, he was held not to have elected his remedy so as to prevent him moving for an information (y). In general, those who apply wUl be held disentitled to an infor- mation if they do not leave themselves wholly in the hands of the Court. " If," said Lord Denman, " in any way they make attacks on the parties against whom they ask for our summary interference, they disentitle themselves to succeed in their appli- cation. There is no restrictive qualification on this rule, which has been again and again laid down in this Court " (z). Informations have also been refused on the ground that the applicants were equally guilty with those against whom they applied. Thus, an information was refused to certain members of a gang of cheats and gamblers against other members for a con- (r) Per Lord Mansfield, £. v. Comp- dant's being brought up for sentence, ton Cald. 246 ; Anon. Lofft. 155. the Court refused to pass sentence : JR. (s) Ex parte , 4 Ad. & El. 576, v. 0' Gorman Mahon, 4 A. & El. 575. note ; r/. R. v. Gwilt, 11 A. & El. 587 ; (u) R. v. Marshall, 4 El. & Bl. 475 ; see also JR. v. 0' Gorman Mahon, 4 A. 24 L. J. Q. B. 242. & El. 575. (*>) ^"'"*- 8 M°J) Ex parte Tanner, 3 Jur. 10. (2) li- (e) Jud. Act, 1873, sect. 26. PROCEDURE TO OBTAIN INFORMATION. 41 There was one case where delay was held not only reasonable but necessary, that is, where the information was for bribery at a Parliamentary election. The Court would not hear an application till after the lapse of the period within which a penal action could be brought under 2 Geo. 2, c. 24, s. 11 (no longer in force) (/). Title. — The affidavits on which the order nisi is moved for should Affidavits, be entitled : " In the High Court of Justice, Queen's Bench Division" {g) : they should not be further entitled; as, before the order nisi is granted, there is no cause or prosecution (h). On reference to the officers of the Crown Office in 1794 (i) they certified that it was the practice of the Court to receive affidavits against a rule for a criminal information without any title until the rule was made absolute. In a previous case (k) the Court allowed affidavits entitled JR. v. /. to be read on shewiug cause against the rule nisi ; being of opinion that once a rule had been granted there was a proceeding in Court between the sovereign and the defendant. In a note to this case, another case (I) is referred to where the Court held that the affidavits on shewing cause might be entitled or not ; and this may be taken to be the rule. A failure by reason only of the defective title of the affidavit would not prevent the Court from entertaining a renewed applica- tion on the same materials. " I have consulted the other judges," said Patteson, J., in a case of this kind (m), " and we are of opinion that the rule preventing a repetition of a particular application applies to cases where a party has come before the Court ia the first instance with imperfect materials, others being in existence at the time ; and not to cases where a rule has been discharged merely on the ground of the defective title of the affidavits in support of : the application." Affidavits are to be confined to such facts as the witness is able what may be of his own knowledge to prove ; except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. (/) R. \.Pitt, 1 W. Bl. 380, decided Almon, 6 T. E. 642, note. on 2 Geo. 2, c. 24, s. 11, which made (i) R. v. Harrison, 6 T. R. 60. a penalty of £500 recoverable by a (k) R. v. Jones, 2 Str. 704. common informer. (0 R. v. Robinson, 2 Str. 704, note. {g) 0. 0. E. 7. (m) R. v. Jones, 8 Dowl. 307. See Qi) R. V. Jones, 2 Str. 704 ; R. v. C. 0. E. 19, on pp. 43, 44, post. 42 CRIMINAL INFOEMATIONS. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same (n). Before whom Affidavits swom in England must be sworn before a judge, district registrar, commissioner to administer oaths, first or second class clerk in the Crown Office Department, or officer empowered under the Eules of the Supreme Court to administer oaths (o). Time and place Every Commissioner to administer oaths shall express the time beexprMsfd." when, and the place where, he shall take any affidavit or recog- nizance; otherwise the same shall not be admitted to be filed without the leave of the Court or a judge ; and every such commis- sioner shall express the time when, and the place where, he shall do any other act incident to his office (p). Affidavits All affidavits, declarations, affirmations, and attestations of honour in causes or matters depending on the Crown side may be sworn and taken in Scotland or Ireland or the Channel Islands, or in any colony, island, plantation, or place under the dominion of Her Majesty in foreign parts, before any judge, court, notary public, or person lawfully authorised to administer oaths iu such coimtry, colony, island, plantation, or place respectively, or before any of Her Majesty's consuls or vice-consuls in any foreign parts out of Her Majesty's dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public, person, consul, or vice-consul, attached, appended, or subscribed to any such affidavits, afiBrmations, attestations of honour, declarations, or to any other document (q). Form. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs ; and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a dis- tiact portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule (r). Deponent's Every affidavit shall state the description and true place of abode.^ '°° '"' abodc of the deponent (s). (n) C. 0. R. 8. (j) jd. 11. (o) JW- 9- (r) Id. 12. (p) Id. 10. (s) Jd. 13. PEOCEDUEE TO OBTAIN INFOEMATION. 43 In every aifidavit made by two or more deponents the names of By more than the several persons making the affidavit shall be inserted in the jurat ; except that, if the affidavit of all the deponents is taken at one time by the same officer, it shall be sufficient to state that it was sworn by both (or all) of the " above-named " deponents (t). Every affidavit used on the Crown side shall be filed in the Filing. Crown Office Department of the central office. There shall be indorsed on every affidavit a note shewing on whose behalf it is filed; and no affidavit shall be filed or used without such note, unless the Court or a judge shall otherwise direct (u). The Court or a judge may order to be struck out from any affi- striking out davit any matter which is scandalous, and may order the costs of matter, any application to strike out such matter to be paid as between solicitor and client (x). ' No affidavit having in the jurat or body thereof any inter- interlineations, lineation, alteration, or erasure shall, without leave of the Court or a judge, be read or made use of in any matter depending in Court, unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or if taken at the Crown Office Department, either by his initials or by the stamp of that office ; nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it (y). Where an affidavit is sworn by any person who appears to the Affidavits of officer taking the affidavit to be illiterate or blind, the officer shall blind, certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent (z). The Court or a judge may receive any affidavit sworn for the Defect in title purpose of being used in any cause or matter, notwithstanding any ^la^ty '"*' (0 C. 0. E. 14. (y) Id. 17. («) Id. 15. (2) Id. 18. (a;) Id. 16. 44 CRIMINAL INFORMATIONS. Stamping. Office copy. Before whom not to be sworn. Filing after time limited. Order made before affida- vit made and produced or filed. Additional affidavits. Affidavit of service. defect, by misdescription of parties or otherwise, in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received (a). In cases ui which by the present practice an original affidavit is allowed to be used ; it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left with the proper officer in Court or in chambers, who shall send it to be iiled (6). An office copy of an affidavit may, in all cases in which a copy is admissible, be used, the original affidavit having been previously filed, and the copy duly authenticated with the seal of the office (c). No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself (d). Any affidavit which would be insufficient if sworn before the solicitor himself shall be insuificient if sworn before his clerk or partner (e). Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court or ajudge(/). Except by leave of the Court or a judge no order made ex parte in Court, foimded on any affidavit, shall be of any force, vmless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion (g). Upon motions founded upon affidavits, either party may apply to the Court or a judge for leave to make additional affidavits, upon any new matter arising out of the affidavits of the opposite party ; but no additional affidavits shall be used except such leave shall have been first obtained (k). Affidavits of service shall state when, where, and how and by whom, such service was effected (i). (a) C. 0. R. 19. (/) Id. 23. (6) Id. 20. (g) Id. 24. (c) Id. (h) Id. 25. (O) Id. 21. (j) Id. 27. (e) Id. 22. PROCEDURE TO OBTAIN INFORMATION. 45 The affidavits should be full and frank ; every material fact Contents of should be set forth. Where the affidavit on which a rule had been granted for an in- formation against a magistrate, for refusing to take the examination of two persons on a charge against a third person, made no mention of the fact that the magistrate stated his perfect willingness to investigate the charge submitted to him if directed to do so by the King's Bench, Abbott, C.J. said that if the offer to investigate the charges, in case the Court should direct the magistrate to do so, had been disclosed by the affidavit of the applicant, most un- doubtedly the Court would not have granted a rule for a criminal information : " The suppression of the offer necessarily leads us to discharge the rule with costs, according to the usual practice in cases of this kind " {j). The affidavits should avoid all unnecessary and irrelevant charges, and especially any scandalous matter. In B. V. Burn (h) Lord Denman said : " The prosecutor has stated a sufficient case for a criminal information ; but he has, in the early part of his affidavit, introduced words irrelevant and reflecting on the character of the party against whom he applies ; and afterwards, in explanation of something which he states to have passed, he goes into a narrative of matters impertinent to the cause, and calculated only to prejudice the minds of the Court. Parties who come before the Court with affidavits are to confine themselves to the simplest statement of that which induces them to make the appli- cation, and are not to enter upon discussions like this, unless the nature of the subject renders them absolutely necessary. And we must say here that the spirit which has been shewn in framing the affidavit makes us doubt whether the spirit evinced by the pro- secutor, at the time when this party came before him, was not such as might lead to what is now complained of. The Court cannot make the rule absolute." They must satisfa,ctorily account for any delay in making the application {l)\ mere absence abroad not being a sufficient ex- (j) R. V. Borron, 3 B. & Aid. 487, (k) 7 A. & El. 193 ; an application 488. See also B. v. Athay, 2 Burr, by a magistrate for slanderous words 653, ante, p. 27 ; E. v. Wroughton, 3 spoken of and addressed to him. Burr. 1683 ; and see per Lord Tenter- (I) U. v. Jollie, 4 B. & Ad. 867 ; den, 0. J., in R. v. Hughes, 7 B. & 0. 719. and cases referred to in the note. 46 CRIMINAL INFORMATIONS. cuse (m). " It has been the persuasion," said Lord Denman, " that an affidavit cannot be made abroad as a foundation for a criminal information. We think, however, that if that question should come under our consideration such an objection would not prevail " (n). On the subject of delay generally, see the remarks already made ante, pp. 39, 40. An exculpatory af&davit from the person complaining is almost always necessary (o). Exceptions have been made in the following cases : (1) where the charge was only general, as a Kbellous charge of sodomitical prac- tices (_p), or a libel stating that a nobleman and his family were held in such general abhorrence in the Isle of Man that, if he should succeed in obtaining an Act then depending in Parliament, it would occasion a revolt (q) ; (2) when the party was abroad (r) ; (3) where the charge was against a public body of men, e.g., the clergy of a diocese (s) ; (4) where the matter was one materially affecting the public ; e.gr., a conspiracy to raise the price of salt (t). Where an exculpatory affidavit is necessary, the applicant must explicitly negative the charge against him. If he moves against a magistrate, for having wrongfully convicted him, he must distinctly swear to his innocence of the offence charged (u) ; if the offence is in respect of a libel, he must expressly deny the truth of aU the imputations contained in it (as). Where an alleged libel charged the presiding officer at a school board election with partiality in the manner in which he discharged his duty, and mentioned one specific instance where he had rejected the vote of a duly quaUfied female voter, who was politically opposed to him, the Court discharged with costs a rule obtained by the presiding officer, because his affidavit, though it (to) B. v. Editor of Satirist, 3 N. & (s) B. v. WilliaTm, 5 B. & Ad. 595, M. 532. other similar cases being referred to («) -^. arguendo. Of. R. v. Oregory, 8 A. & (o) R. V. Athay, 2 Burr. 653 ; R. v. El. 907. Easwen, 1 Doug. 387 ; R. v. Webster, (t) R. v. Norris, 2 Ld. Ken. 300 ; lb., note ,• R. v. Bickerton, 1 Str. 498 ; R. v. Steward, 2 B. & Ad. 12. R. V. Miles, 1 Doug. 284. (u) R. v. Athay, 2 Burr. 653 ; R. v. {p) R. V. Benmson, Lofft. 148. Webster, 3 T. B. 388. (q) 1 Doug. 390, note. (x) R. v. BickerUm, 1 Str. 498; (r) Per cwriam, R. v. Wright, 2 R. v. MUes, 1 Doug. 284 ; B. y. Tayhyr, Chitt. R. 162. 1 ,Jur. 53 ; B. v. EasweU, 1 Dong. 387. PROCEDURE TO OBTAIN INFORMATION. 47 denied generally the truth of all the charges, and also denied that he had refused any vote on political or improper or illegal con- siderations, did not specifically negative the charge relating to the vote of the female voter {y). The applicant must come into Court with clean hands {z). In a case, however, of a libel reflecting on several persons, the Court granted an information, though the person moving for it was not himself blameless (a). The Court also dispensed with an exculpa- tory af&davit where the libel was on a public body of men, e.g., the clergy of a diocese (&). And where the offence charged was one against the public interests, as bribery in the election of an alder- man, who would as such be a justice of the peace, the Court granted a rule on the sole testimony (uncontradicted) of a particeps criminis (c). The affidavits of the applicant should be as clear, as numerous, and as strong as possible, in the first instance, for reasons which will appear post, p. 51. They must afford such evidence against the defendant as would warrant a grand jury in finding a true bill (d). Thus it was held not sufficient to swear, not from the deponent's own knowledge, but from the information of other persons, that certain libellous writings were in the handwriting of the defendant (e). So an affidavit of the prosecutor and two other persons that a challenge (y) B. V. Aunger, 28 L. T. N. S. 630. (a) B. v. Gregory, 8 A. & El. 907. In this case Blackburn, J., said : " All (h) B. v. Williams, 5 B. & Aid. 595. persons in the position of relators are, (c) B. v. Steward, 2 B. & Ad. 12. according to the practice which has (d) Per cur. B. v. Willett, 6 T. R. existed for a long time, hound to satisfy 294. the judges, who do not act on technical (e) Ex parte Williams, 5 Jur. 1113. rules at all, but as men of the world " In B. v. Willett the rule was refused, and men of common sense, upon affi- because the statement in the afBdavit davits that they themselves are free of what the deponent had been in- from blame, and are fit and proper formed was not legal evidence .... persons to be entrusted with the pre- So that the ratio decidendi of that case rogative of this Court ; and they are was, that an affidavit made on informa- to do that in the teeth of the other tion or belief was not sufficient evi- side, who have an opportunity on a£5- dence to call upon the other side to davit of persuading the Court, if they make an answer to the charge. The can, that such persons are not so." same principle ' was acted on in Mo (z) Anon. Lofft. 315 j B. v. Eden, parte Williams."-^Per Blackburn, J., Lofft. 72 ; B.v. Wroughton, 3 Burr. 1683. B. v. Stanger, L. R. 6 Q. B. 355. 48 CEIMINAi INFORMATIONS. was delivered to the prosecutor by one of the defendant's clerks, who refused to make an affidavit of the fact, was held insufficient, as not legal evidence. The Court said that "in these cases they were placed in the room of a grand jury ; that if a bill of indict- ment were preferred before a grand jury, the affidavit or the oaths of these persons of what the clerk had said would not be legal evi- dence against the defendant ; and that this Court could only grant an information on evidence that would support a bUl of indictment ; that if they were to grant a rule calling on the defendant to shew cause why an information should not be filed against him, it would be calling on h\m either to give evidence (on the shewing cause) against himself, or leaving the rule to be made absolute on this affidavit alone, which was not legal evidence " (/). Where, on moving for an information for a newspaper libel, the affidavit stated that the defendant, "the printer of a newspaper called the Standard, on the 8th day of November instant, did insert and print in the said newspaper a certain scandalous and defamatory libel relating to this deponent in his office of mayor, &c., and a copy of which said libel is hereunto annexed," &c., this was held insufficient (cf). "There should," said Lord Denman, "be proof of publication by the defendant distinctly given. If the affidavits offered here did conta,m prima facie evidence, I do not think we should be satisfied with it where conclusive evidence is so easily attainable." Patteson, J., added : " There is an express statutory provision (h) as to the proof in such cases. K parties will not adopt that, they must shew publication by some direct proof, as that a party bought the Ubel in the defendant's shop." The fact that the affidavits of the other side admitted the publication was held by the Court, in the case just referred to, not to cure the insufficiency of the applicant's affidavits (i). But in the later case of B. v. Stanger {k) the Court took, on this point, a different view. After referring to Lord Kenyon's language (/) R. V. Willett, 6 T. B. 294. blishes a register of newspapers, in {g) R. V. Baldtoin, 8 A. & El. 168. which the names and addresses of the (h) 6 & 7 Will. 4, c. 76, the whole proprietors are to be entered, and copies of which Act is repealed by 33 & 34 of entries in or extracts from which Vict. C. 79. See now the Newspaper are made evidence, ss. 8, 9, 15. Libel and Registration Act of 1881 (i) R. v. Baldwin, tibi supra. (44 & 45 Vict. c. 60), which esta- (k) L. R. 6 Q. B. 352. PEOCEDUEE TO OBTAIN INFOEMATION. 49 in B. V. Mein (I), viz., " Upon conference with my brothers I find that it is not unusual to have recourse to the affidavits against the rule ia order to come (if possible) at the whole truth of the trans- action," and to the distinction drawn by Cole (m) between an appli- cation for a quo warranto (n), which is considered in the nature of a civil proceeding, and an application for a criminal information, Blackburn, J., said : " The distinction which he makes between a criminal and civil proceeding is not, I think, a sound one. In either case, whether the application be for a criminal information or a writ of qioo warranto, we are acting under the statute (4 & 5 Wm. & M. c. 18) ; and the question would be, are the facts such as make it right for the Court to grant the application. I think the rule laid down in B. v. Mein is the sounder. But in the present case it is not necessary to decide the point, for the defendant's affidavit says nothing as to his being the publisher ; and according to E. V. Willett (o) he cannot be called upon to answer so as to supply evidence against himself." In B. V. Stanger (p) the affidavit stated that a copy of the news- paper had been bought at the publishing office of the paper, and that by a footnote printed at the end of the said newspaper, John Stanger, was stated to be the printer and publisher thereof. The rule was discharged on the ground that the prosecutor's affidavits did not contain any evidence of a publication of the libel by the defendant. In a case of newspaper libel, the newspaper should be annexed to the affidavit and marked as an exhibit (q). On an application in respect of a challenge, an affidavit setting forth verified copies of the letters containing the challenge was held sufficient (r). On an application against a magistrate for his conduct as such, except where res ipsa loquitur, it has been held that the affidavit should state the belief of the applicant that the magistrate acted from a corrupt or improper motive (s). " There must either be," said Holroyd, J., " such circumstances as can, by possibility, lead (0 3 T. K. 597. (p) Vbi supra. ' (m) Informations, p. 52. (j) B. v. Woolmer, 12 A. & El. 422. (to) R. v. Mein was a case of this (r) R. v. Chappd, 1 Burr. 402. tind. (s) -B. V. Williamson, 3 B. & Aid. (o) 6 T. E. 294. 582. 50 CRIMINAL INFORMATIONS. but to one conclusion, or there must be, if only suspicious circTun- stances be stated, the apprehension and belief of the party applying that improper motives operated on the defendants " (t). It was held not sufficient, in a case of the latter kind, to charge that the defendants acted illegally (u). 1^0.48 of the new Crown Office Eules now provides that in applica- tions against a justice of the peace for misconduct in his magisterial capacity, the applicant must depose on affidavit to his belief that the defendant was actuated by corrupt motives, and further, if for an unjust conviction, that the defendant is innocent of the charge. The Court refased to hear a motion against a magistrate for con- victing without a summons untH the conviction was removed before them (x). The Court refused an information against a clergyman for per- jury on his admission to a living, on an affidavit alleging that the presentation was simoniacal, till he had first been convicted of the simony (^). An application against an attorney for practising as such whilst under-sheriff, was refused because the affidavits did not mention what particular acts he did as attorney, of which the Court should be in a position to judge (z). In applications against magistrates there should be an affidavit that the recLuisite notice has been given (a). Where the trial of a criminal information was postponed on the ground that the defendant had distributed handbills in the assize town tending to prejudice the trial, the affidavit on which the judge at the assizes had postponed the trial was held sufficient to enable the Court to grant another information against the same defendant (6). " AU that is required in an affidavit," said Lord Kenyon, C.J., " as the foundation for a criminal information, is that which is required in every other cause, that the affidavit be made in a judicial proceeding, where the party swears at the hazard of a prosecution for perjiuy if it be false. Now these affidavits were taken before a judge, who had authority to administer an oath ; (<) £. V. Williamson, 3 B. & Aid. (z) B. v. BiOl, 1 Wils. 93. 582. (a) See B. v. Bae, 8 Ir. Rep. C. L. (m) B. v. JacJcson, 1 T. R. 653. 524. (ac) B. V. Eeher, 2 Str. 915. (i) B. v. JoUiffe, 4 T. E. 285. (y) B. V. Lewis, 1 Str. 70. PEOCBDURB TO OBTAIN INFORMATION. 51 they were made in the course of a judicial proceeding, and relevant to the material point in issue. And the original affidavits are now before us on the files of the Court ; for they were transmitted here by the officer of the Court below." " The rule is express that a party who has a fuU opportunity of Renewed bringing his case before the Court must do so in the first instance, amended If he neglects the means of doing so, he cannot be allowed to come ^''^'i^^'*^- again and put the other party to the trouble and expense of a second attendance " (Per Curiam, B. v. Inhabitants of Barton (c). On this ground, after an order nisi for an information has once been discharged (without any collusion or improper conduct on the part of the defendant), whether on the ground of insufficiency of materials or of conflicting affidavits, the Court will not hear a second application on additional affidavits (d). According to Lord Denman (e):" The rule is, that when affidavits have been answered, the party moving is not entitled to file others in reply ; but that would, in effect, be done if we allowed the course now proposed. A party moving for a criminal information has some great advan- tages, and he may reasonably be required to collect all the neces- sary materials for his application when he first makes it. It is not suggested here that the party moved against has been guilty of any collusion or other improper conduct to obtain the discharge of the rule, but only that the prosecutor has been, in the first instance, less amply supplied with materials than he might have been. I think we ought not to grant the rule on such a ground." And the Court has refused in such a case to enlarge the order nid in order that the defects in the affidavits might be supplied (/), even where the only defect was that the place where the deponent was sworn was not mentioned in the jurat (g). The rule, however, is not without some exceptions. Where a rule for an information had been discharged merely on the ground (c) 9 Dowl. 1022. note ; B. v. Orde, 8 A. & El. 420, note (d) B. V. Smithson, 4 B. & Ad. 861 ; (a case of quo warranto) ; Ex parte cf. B. V. Marichester omd Leeds Bailway Easleham, 1 Dowl. N. S. 792. Co., 8 A. & El. 413 (an application for (e) B. v. Smithson, ubi supra. a certiwari) ; B. v. Earland, 8 Dowl. (/) B. v. Oockshaw, 2 N. & M. 378 ; 323 (an application for an attachment) ; cf. Ex parte Williams, 5 Jur. 1133. Saunderson v. Westhy, 8 Dowl. 652 ; (jr) B. v. Cockshxw, supra. Bossett V. Hartley, 7 A. & El. 522, E 2 52 CRIMINAL INFOEMATIONS. that the affidavits of the applicant had been sworn before his attorney, the Court allowed a second application on properly sworn affidavits (h). And where the defect was merely ia the title of the affidavits, Patteson, J., after consulting the other judges, held that the rule above stated did not apply, and that a new applica- tion on properly entitled affidavits might be made (i). Where the deficiency was in the affidavits on which the order nisi was moved for, the Court has allowed the application to be renewed on better affidavits (k). But unless leave to renew the application be given in the first instance, a second application on amended affidavits will not be allowed (Z). JR. V. Eve and. Another (m) was a peculiar case. There a rule for an information for a libel, which had been obtained on the sole affidavit of the applicant, was discharged on the sole affidavit of one S., who swore to the truth of the imputations in the libeL S. having in another suit made an affidavit contradicting his former affidavit in aU particulars, was indicted for perjury ; a biU was found against him and he fled the country. The Court allowed a renewal of the application for an information which had been defeated by the perjury of S. Motion. The motion must be made by counsel; it cannot be made by the prosecutor ia person. " Such a motion," said the Court, in B. V. Justices of Lancashire (n), " could only be made by the law officers of the Crown, or by a barrister who was in the nature of a public officer " (o). The motion is for an order nisi, and must be made to a Divisional Court (p). As to the time within which it must be made, vide ante, p. 39. The hearing of any motion or application may from time to time Qi) B. v. Justices of Shrewsbury, 2 having been amended, a new application Barnard. 272 ; cf. Shaw v. Perkin, 1 was made and a rule granted. Dowl. N. S. 306 (a case of certiorari). (l) Ex parte Munster, 20 L. T. N. S. (i) B. V. Jones, 8 Dowl. 307; see 612. also Anon. 2 Lord Keny. 496. (m) 5 A. &. EL 780. (k) B. V. Wright, 2 Chitt. Kep. 162 ; (n) 1 Chitt. Eep. 603. See also^non. B. V. Williamson, 3 B. & Aid. 582, 2 L. Eec. O. S. 479 (Irish), where the affidavits in the first instance (o) See also B. v. Srice 2 B. & Aid. did not allege a corrupt motive in the 606. mayor and town clerk against whom (p) C. 0. R. 48. the motion was made : the affidavits PKOCEDUKB TO OBTAIN INFORMATION, 53 be adjourned, upon such terms, if any, as the Court or judge shall think fit (q). The motion may be for one rule against several defendants, and several defendants may be included in one information (r) ; but not where several rules have been granted against them individually (s). Drawing up. — The order nisi should be drawn up " upon reading Order msf. the af&davit of," or " the several affidavits of," &c., and in case of a newspaper libel it is essential that the rule should be drawn up on reading it (t). For form of order nisi, see Appendix. Service. — The order nisi is served by leaving a copy and at the same time shewing the original order, which may be obtained from the Clerk of the Eules at the Crown Office. Personal service is not necessary (u) ; but service on the. wife of a man who was abroad was held not sufficient service of an order against the husband (x). And so as to service on a person who was formerly, but is not shewn still to be, employed by the defendants {y). No. 139 of the New Crown Office Eules now provides that wherever imder those rules, service is not directed to be personal, service at the last-known place of abode or business, with a clerk, wife, or servant, or upon such other person, or in such other manner as the Court or a judge may direct, shall be deemed to be a suffi- cient service. It is stated in Gude's Crown Practice (z) that if the prosecutor Enlarging neglects to serve the defendant with a copy of the order, or is pre- shewing cause, vented by reason of the defendant not having any fixed place of residence, the Court will, upon motion, enlarge the order, as of course, to a subsequent day. If the time is enlarged on the application of the defendant, it is usually on the terms that he shall file his affidavits with the Clerk of the Eules a certain number of days, which are specified in the order nisi (generally a week), before the next day of shewing (2) C. 0. R. 260. Lenehan, 8 Ir. L. R. 215. (r) B. V. Benfield, 2 Burr. 980 ; B. («) B. Y.Sadouin, 2 Str. 1044: and V. Eilbers, 2 CMtt. Rep. 163. see B. v. Dickenson, 10 Ir. Rej). C. L. (s)' B. V. Heydon and Others, 3 91. Burr. '1270. (a;)> Id. (t) Per Lord Denman, B. v. Wool- (y) Anon. 2 Lord Keny. 496. mer, 12 A. & El. 425 ; see also B. v. (is) Vol. i. p. 117. 54 CEIMLNAL INFOEMATIONS. cause; also that he shall appear immediately and plead within four days next after the information shall be filed, if the order nisi should be made absolute (a). In one case of an information for libel (&), the Court refused to postpone the argument of the rule until the defendant could procure an affidavit from Trinidad to prove the truth of the matters in the alleged libel ; but some of the grounds on which the defend- ant's application was refused would not now be considered good. Where the rule, though served at the office of the defendant on the 13th of the month, did not come to his knowledge tQl the 17th, and called on him to shew cause on the 18th, and the copies of the affidavits on which the rule nisi was granted, though applied for on the 15th, were not delivered until the evening of the 17th, the Court enlarged the rule (c). Application was made to the Court in one case to postpone the shewing cause against a rule for a criminal information for libel until after the trial of a civil action brought in respect of the same libel by the prosecutor against a person other than the defendant in the information proceedings, the defendant in the action justify- ing on the ground of truth ; but the Court refused the application, the defendant in the civil action being a stranger to the informa- tion proceedings (d). Office copies No person shall be allowed to shew cause against an order nisi, to be obtained .,,. by party shew- uuless he shall havc previously obtamed office copies of such order ° ^^' and of the affidavits upon which it was granted (e). Shewing The defendant's affidavits may be entitled either simply, " In the High Court of Justice, Queen's Bench Division," or with the further addition, " The Queen against A,B." K the defendant denies the truth of the charge against him he should do so in clear and express terms. A mere denial of the evidence on which the application was made is not sufficient (/). The other grounds on which the Court may be called on to dis- (fls) 1 Crude, 117, 118. Where how- cause. S. v. Anderson, 9 Dowl. 1041. ever, in a case of quo warrwnto, the (6) S- v. Draper, 3 Smith, 390. reason for enlarging the rule was the (c) R. v. ffdy, 10 Jur. 1009. prosecutor's improper delay in serving (d) B. v. WiRTner, 15 Q. B. 50. the rule nisi, the defendant was not (e) R. v. Draper, 3 Smith, 26. required to file his affidavit in the (/) R. v. Sharpe, And. Eep. 384. ordinary manner previous to shewing cause. PROCEDURE TO OBTAIN INFORMATION. 55 charge the order nisi have already been stated. They may be summed up as follows : — (1) want of notice ; (2) lateness of the application ; (3) defect in form of the affidavits ; (4) that the appli- cant has already chosen another remedy ; (5) that the applicant's own misconduct bars him ; (6) that the applicant's affidavits have suppressed material facts, or (7) do not furnish sufficient evi- dence, or (8) contain unnecessary imputations ; (9) that the offence charged is of too trivial a kind ; (10) the low circumstances of the defendant. The Court in discharging an order nisi may do so on any terms Discharging as to costs that it thinks fit. If the order is discharged on a pre- liminary objection, it is not the practice of the Court to give the defendant costs (ff) ; nor where, though the order has been dis- charged on the merits, the defendant has been guilty of improper conduct (h). In cases of this latter kind the order is discharged sometimes only on the defendant's undertaking to pay all the costs (i). Except in such cases, where the rule is discharged, it is usually with costs (k). Under the peculiar circumstances of one case, the Court in dis- charging the rule ordered the costs to be paid by the prosecutor's attorney as weU as the prosecutor (I) ; but in no case would this be done where the attorney is not a party to the application or has not joined in any affidavit ia support of it (m)'. In the year 1788 it was laid down by the Court, after consider- Civil action in ation, in the case of B. v. Sparrow (n) " as a general rule, for saLe offence, the future that when a person applies for an ioformation he is understood to waive his right to bring an action, unless the Court {g) Per curiam^ JR. v. Proprietors of Fielding, 2 Burr. 654 ; if. v. Wrough- Nottingham Jowrnal, 9 Dowl. 1043. ton, 3 Burr. 1683 ; R. v. Borron, 3 B. Qi) B. V. Whately, 4 M. & Ey. 431 ; & Aid. 432 ; B. v. Smithson, 4 B. & B. Y. Jackson, Lofft. 147 ; B. v. Field- Ad. 861 ; B. v. Hughes, 7 B. & C. 719. ' ing, 2 Burr. 719, 722 ; B. v. Biwrat, (I) B. v. Fielding, 2 Burr. 654. 2 Douc. 465. In B. v. Badger (ante. The attorney had joined in the affi- p. 28), though the rule was discharged, davit on which the rule had been ob- the magistrates against whom it was tained, and he was said to have declared moved were ordered to pay all the costs that, " if it cost him £100, he would attending the application. lay Fielding by the heels." See also (i) B. V. Morgan, Doug. 314 ; B. v, B. v. Borron, 3 B. & A. 432, 440. Cozens, Doug. 410 ; B. v. Holland, 1 (m) B. v. Ihoinas, 7 A. & B. 608 ; T. E. 692. S. Y. Dodson, 9 A. & E. 704. (70 B. V. Athay, 2 Burr. 653 ; B. v. (n) 2 T. B. 198. 56 CRIMINAL INFOBMATIONS. should, on hearing the whole matter, he of opinion that it is a proper suhject to be tried in a civil action, and should specifically give him leave to do so " (o), and they said that " if an infonnation be granted it is of course to stay the proceedings in an action for the same cause " (p). In this case, the prosecutor being called on to elect, abandoned his rule for an information, preferring to bring an action. However, the Court of Exchequer, in 1847, held that an action for libel might be brought after a rule for an information in respect of the same libel had been discharged by the Court of Queen's Bench (q). Parke, B., said: "I thought the rule in B. v. Sparrow had only applied in cases where a criminal information had been granted ; " and Piatt, B., added : " Probably all that was intended by the rule laid down in B. v. Sparrow was to prevent the oppression of a criminal and civil proceeding for the same cause of complaint, by enabling the Attomey-Greneral to enter a TwUe prosequi if necessary." Eecognizance Qn the Order being made absolute, the prosecutor must enter into absolute. the neccssary recognizance. By 4 & 5 Wm. & M. c. 18, s. 2, the sum was fixed at £20, and it was held that the Court would not require the security for a larger amount than the £20 mentioned in that statute (r). Now by the new Crown Office Eules (No. 46) the prosecutor must file at the Crown Of&ce department a recog- nizance in the penalty of £50 effectually to prosecute such informa- tion and to abide by and observe such orders as the Court shall direct, such recognizance to be entered into before the Queen's coroner and attorney or the Master of the Crown Office or a justice of the peace of the county, borough, or place in which the cause may have arisen. No process can issue before the recognizance has been entered into (s). A form of recognizance will be found in the Appendix. Every recognizance must, after the acknowledgment thereof, be transmitted to the Crown Office and filed there (t). (o) See also the Irish case of B. v. (r) £. v. Brooke, 2 T. B. 190. O'Brien, Sm. & Bat. 79. («) B. v. Mayor of EeHford, 1 (p) 2 T. R. 198. Salt. 376. (2) W(tMey V. Cooke, 16 M. & W. (t) C. 0. B. 123. 822. PKOCEDUEK TO OBTAIN INFORMATION. 57 No recognizance is henceforth to be forfeited, estreated, or put upon the estreat roll without the order of the Court or judge, nor unless an order or notice shall have been previously served upon the parties by whom such recognizances shall have been given, calling upon them to perform the considerations thereof (m). No proceedings are to be taken in the Crown Of&ce by scire facias upon recognizance (x). There is no appeal to the Court of Appeal from the decision of Appeal. a Divisional Court in granting or refusiag an order nisi for a criminal information, or in discharging or making absolute such an order. An appeal in criminal cases lies only for error on the record (y). As to proceedings in error, vide post, pp. 100 segi. (u) Id. 124. 37; 46 L. J. M. 0, 4. Of. B. v. (a;) Id. 127. Fletcher,' 1,. E. 2 Q. B. D. 43, and R. (y) See B. V. Steel, L. E. 2 Q. B. D. v. WUtchwrch, L. E. 7 Q. B. D. 584. 58 CEIMINAL INFORMATIONS. CHAPTEE V. The Infokmation ast> subsequent Pleadings. Substance of information. PAGE Substance of information. ... 58 Filing 59 Compelling appearance of defend- ant 59-62 Outlawry for non-appearance . 62 Reversal of outlawry .... 65 Order to plead 67 PAGE Defences 67-70 Demurrer 67—69 Rules applicable to pleas and de- murrers 70, 71 Amendment of information . . 71 Judgment by default .... 72 Rules as to motions . . . 72-74 In substance the information is the same as an indictment. The form is the same, too, except the beginning and the end. " What- soever certainty is recLuisite in an indictment, the same at least is necessary also in an information ; and consequently, as all material parts of the crime must be found in the one, so must they he precisely alleged in the other, and not by way of argument or recital" (a). The second and other counts are usually commenced thus — in the case of an eoi>-offi£io information : " And the said Attorney-General of our said lady the Queen, who prosecutes as aforesaid, further gives the Court here to imderstand and be informed that," &c. — in the case of an information filed by leave of the Court, " and the said coroner and attorney of our said lady the Queen who prose- cutes as aforesaid, further gives the Court here to understand and be informed that," &c. But this is not necessary ; the second and subsequent counts may begin simply with the words : " And that," &c. (6). Forms of Information will be found in the Appendix. The description of the prosecutor as Charles Frederick Augustus (a) 2 Hawk. P. C. c. 26, s. 4. See R. V. BdbeHs, Garth. 226 ; 3 Salk. 192, 201; R. V. Robe, 2 Str. 999; R. v. Knight, 1 SalL 375 ; R. v. Read, Sir T. Ray. 34; R. v. Benfidd, 2 Burr. 980. (6) R. V. Read, Sir T. Ray. 34. THE INPOEMATION AND SUBSEQUENT PLEADINGS. 59 William, Duke of Brunswick and Luneburg, was held sufficient, though he had ceased to be reigning Duke, and his family name (D'Este) was omitted (c). A criminal information having been filed by the Attorney- General of New South Wales against a member of the legislative assembly of that colony for an assault on another member within the precincts of the house, the Supreme Court of the colony allowed a general demurrer, because the information, besides averring the assault, added that it was in contempt of the assembly ; but the Judicial Committee of the Privy Council overruled this decision and held the information good, as the alleged contempt was charged only as matter of aggravation and could be rejected as surplusage (d). The draft information is usually settled by Counsel ; it is then Filing, engrossed on parchment, signed by the Master of the Crown Office and filed, along with the prosecutor's recognizance. The defendant must enter or cause to be entered in a book at Appearance by the Crown Office an appearance to the information (e). If the defendant is not under terms to appear, a subpoena to Compelling appear is usually served upon him. For form, see Appendix, post. As against any defendant to any information, the prosecutor may obtain a certificate from one of the officers of the Crown Office of the information having been filed. The certificate may be in the Form No. 41, or 42, appended to the new Crown Office Eules, or to the like effect (/). Upon production of such certificate to a judge, he may, if neces- sary, issue a warrant under his hand to apprehend the defendant and cause him to be brought before him or some other judge, or before a justice of the peace, to be dealt with according to law ; the warrant may be in Form No. 43, or 44, or to the like effect (g). If it be proved upon oath before such judge or justice of the peace that the person apprehended and brought before him is the person charged and named in such information, such judge or justice of the peace shall without further inquiry or examination (c) B. V. Gregory, 8 Q. B. 608; (J) C. 0. E.86. See these Forms in ef. E. V. Bulls, 2 Leach's C. 0. 861. the Appendix, post. (d) Attorney-General of N. S. Wales (g) Id. 87. See Form in Appendix, V. Macpherson, L. E. 3 P. 0. 268. post. (e) C. 0. E. 83. 60 CKIMINAL INFOEMATIONS. commit him to prison by a warrant, which may be in the Form No. 45, or to the like effect, or admit him to bail : provided that nothing in these rules shall affect the jurisdiction of a judge to admit any defendant to bail whether in felony or misdemeanor at any time after committal and before conviction if he shall in his discretion so think fit Qi). Appearance for When any information is filed and the defendant is under terms to appear immediately and does not enter an appearance, the prosecutor may serve a notice upon the defendant to appear within five days, and in default of appearance may move the Court ex parte for leave to enter an appearance for him, or, if the notice was personally served, for an attachment (i). Recognizance" I^ ^^ defendant on any information wishes to avoid arrest upon by defendant, g, warrant, he may give twenty-four hours' notice of bail to the prosecutor, and enter into a recognizance before a judge or justice of the peace with sufficient surety or sureties to appear and answer the information, and personally appear at the trial, and on the return of the postea if it be necessary, and so from day to day, and not depart without leave of the Court Qc). Every recognizance to appear and answer to any eaa-offido or criminal information must, unless the Court or a judge shall by order dispense therewith, contaia, besides any other condition which may be imposed, a condition that the defendant shall personally appear from day to day on the trial of the information and not depart until he shall be discharged by the Court before whom such trial shall be had (Z). For form of recognizance see Appendix. If the defendant be taken on a warrant he must give twenty- four hours' notice of bail, and enter into a recognizance as above mentioned, before he can be discharged (m). Entry of If any defendant shall be detained in any prison for want of appearance for t-i,i l c i • r. defendant in "^^> ^^^ prosecutor 01 any such information may cause a copy prison. thereof to be delivered to the gaoler of the prison for such defen- dant, with a notice endorsed thereon that if the defendant do not withia eight days after such delivery cause an appearance and a plea or demurrer to be entered to such information, an appearance (A) C. 0. E. 88. See Form of War- Qc) C. 0. R. 91. rant in Appendix, post. (q /^. X25. (0 C. 0. E. 90. (^) jrf. 92. THE INFORMATION AND SUBSEQUENT PLEADINGS. 61 and plea of not guilty will be entered for him ; and if the defen- dant do not enter such appearance and plea or demurrer -within eight days from the delivery of such copy of the information and notice, the prosecutor, upon filing an affidavit of the delivery of such copy and notice endorsed thereon to the keeper or gaoler as aforesaid, may cause an appearance and plea of not guilty to be entered for the defendant, and proceedings shall be had thereon as if the defendant himself had duly appeared and entered such plea (n). For form of notice see Appendix. Every recognizance, after acknowledgment, is to be transmitted Estreating to the Crown Office and filed there (o), and no recognizance is to '"'""'Siizance. be forfeited, estreated, or put upon the estreat roll without the order of the Court or a judge, nor unless an order or notice shall have been previously served upon the parties by whom such recognizances shall have, been given, calling upon them to perform the conditions thereof, and no default shall be considered to be made in performing the conditions of a recognizance by reason of any proceeding standing over by order of the Court or by consent in writing of the parties (p). Whenever it has been made to appear to the Court or a judge that a party has made default in performing the conditions of any recognizance into which he has entered, filed in the Crown Office, the Court or a judge, upon notice to the defendant and his sureties, if any, may order such recognizance to be estreated into the Exchequer, without issuing any writ of scire facias (q). If the defendant be committed to prison and detained for want Discharge of defendant. of bail for his appearance to the information for the space of one calendar month next following such commitment, and the prose- cutor does not proceed within that time, such defendant shall, after the expiration thereof, be discharged by order of the Court or a judge upon entering a common appearance to the information (unless good cause shall be shewn to the contrary) (r). Eight days' notice must be given by the defendant or his solicitor of his intention to apply for such order (s). If the defendant does not appear within four days after the day Attachment, named in the subpoena to answer, the prosecutor, upon filing an (n) C. 0. E. 93. (?) C. 0. E. 126. (o) Id. 123. (*•) Id. 44. O) Id. 124. (s) Id. 62 CEIMINAL INF0EMATI0N8. affidavit of due service of the subpoena to answer, may issue a writ of attachment (t). A form of affidavit of service of the subpoena will be found in the Appendix ; also a form of writ of attachment to answer. A subpoena need, not be served where, on the order nisi beLog enlarged, the defendant imdertakes to appear to the information, immediately on its being filed. In such case, as already stated, it is only necessary, on the information and recognizance being filed, to serve on the defendant or his solicitor the notice required by No. 90 of the New Crown Office Eules, and referred to ante, p. 60. A form of notice to defendant to appear to the information, in pursuance of an undertaking given on the order being enlarged, wUl be foimd in the Appendix (u). This form recLuires the defendant to cause an appearance to be entered to the information "immediately," in pursuance of his undertaking. Where the defendant had undertaken on the order nisi being enlarged " to appear and plead immediately " to the information, in case the order should be made absolute, the Court held that a reasonable time must be allowed him to do so (x). Where a pro- secutor, for this purpose, unnecessarily obtained a rule against the defendant, the Court, though it made the rule absolute, ordered the prosecutor to pay the costs of it. An order to appear, plead and try, pursuant to recognizance, may be drawn up of course at the Crown Office, without any motion for the same (y). Outlawry for If none of the preceding methods of enforcing an appearance can non-appear- ance, be followed owing to the defendant s absconding, the only other resource of the prosecutor is to make the defendant an outlaw. As, however, outlawry involves severer consequences than any misdemeanor would entail (z), the prosecutor is not likely to be (f) C. 0. E. 95. accused or convicted. It is a forfeiture (u) No. 46 of the new Crown Office of his goods and chattels, and all the Forms. profits of his real estate ; and perpetual (x) R. V. Mv/ntz, 2 Jur. 538. imprisonment with many incapadties." (J) C. O. E. 252. Nothing in the Act (33 & 34 Vict. (z) Lord Mansfield, in B. v. WUket, c. 23) to aholish forfeitures for treason 4 Burr. 2549, said : " In misdemeanors and felony " shall affect the law of for- outlawry is generally a more severe feiture consequent ^upon outlawry" punishment than would he inflicted for (s. 1). the crime of which the outlaw stands THE INFORMATION AND SUBSEQUENT PLEADINGS. 63 driven to the application of this remedy ; and the procedure (a) is seldom resorted to. The following rules now regulate the procedure in outlawry. To proceed to outlawry before judgment on an information, the prosecutor must issue a writ of venire facias at the Crown Office returnable on a day certain either in or out of the sittings (6). On the return of the sheriff that he has summoned the de- fendant, and the defendant has not appeared, the prosecutor may issue a distringas to answer, returnable on a day certain either in or out of the sittings, and if necessary alias writs of distringas, and if the sheriff return that the defendant has no goods in his bailiwick whereby he can be summoned, or distrained, a capias ad responden- dum tested, and made returnable as the writ of mnire facias, may be issued on the fourth day after the return (c). On the return of non est inventus to a capias ad respondendum, before the prosecutor can proceed further, he must issue a second writ of capias on the fourth day after the return to the first, made returnable as the first writ, and also issue a third writ of capias on the fourth day after the return of the second, tested and made returnable, as the second writ (d). (a) " The first process for this pur- And after the proper writs have issued pose [outlawry] in cases of treason or without any effect, the offender shall felony is a writ of capias ; but in mis- be put in the exigent in order to his demeanors the process is less summary, outlawry ; that is, he shall be exacted For here there is in the first place a (proclaimed or required to surrender) writ of venire facias, which is in the at five successive County Courts [the nature of a summons to cause the County Courts to which Blaokstone party to appear ; and if, by the return here refers are those which used to be to such venire, it appears that the held before the Sheriff], and a writ of party hath lands in the county whereby proclamation shall also be issued [ac- he may be distrained, then a distress cording to 31 Eliz. c. 3 ; 4 & 5 W. & infinite shall be issued from time to M. c. 22, s. 4; 7 Wm. 4 & 1 Vict, time till he appears. But if the sheriff c. 45] : and if he be returned quinto returns that he has no lands in his ixactus, and does not appear' at the bailiwick, then upon his non-appear- fifth exaction or requisition, then he auce a writ of capias shall issue, which is adjudged to be outlawed or put out commands the sheriff to take his body of the protection of the law." — i Step, and have him at the next assizes [or Black. 394, 395 (ed. 10). on the first day of the following term] ; (h) C. 0. E. 99. and if he cannot be taken upon the (c) Id. 100. first, a second and a third shall issue, (d) Id, 101. called an alias and a pluries capias. 64 CRIMINAL INFORMATIONS. Kthe defendant is dwelling in a county other than that in which the information is laid, the prosecutor must issue another second writ of capias cum proclamatione to the sheriff of the foreign county, after the return of the first writ to the sheriff of the county in which the information is laid, tested as the other writs of capias, hut not to be made returnable till such a day certain as will enable the sheriff of the foreign county, if he cannot be found, to make proclamation at two of his county courts either three months, or four months, after the issue of the writ according as the sheriff may hold his courts from month to month, or six weeks to six weeks (e). Upon a return of Tion est inventus to the third writ of capias in the same county, and, if the defendant be dwelling in another coimty, to the capias to the sheriff of such county, a writ of exigent must be issued by the prosecutor (/), Simultaneously with the writ of exigent a writ of proclamations must be issued to the sheriff of the county where the defendant is mentioned to be, or inhabit. Both writs must be tested on the day of the return to the previous process, and returnable on such a day certain during the sittings, as will admit of their being delivered to the sheriff three months before return (g). If it does not appear by the return to the writ of exigent that the defendant has been exacted five times and outlawed, the prosecutor must issue another writ of exigent with allocatu/r, com- manding the sheriff to cause him to be further exacted until he shall have been exacted five times and outlawed (h). Upon the return of the sheriff that the defendant has been exacted five times and outlawed, on application of the prosecutor judgment may be entered at the Crown Ofidce (i). After judgment has been entered, the roU of aU the proceedings may be engrossed by the prosecutor, and filed at the Crown Office (k). A writ of capias utlagatum may be issued by the prosecutor at any time the defendant is likely to be found, or a like writ special, cum breve de inqidrendo, or if necessary a writ of melius inqwirendwn may be applied for (Z). For forms of aU the above-mentioned writs, see Appendix. (e) 0. 0. R. 102. (i) C. O. R. 106. (/) Id. 103. (h) Id. 107. , (jg) Id. 104. (T) Id. 108. (A) Id. 105. THE INFORMATION AND SUBSEQUENT PLEADINGS. 65 On proceeding to outlawry after judgment on information, the prosecutor may issue a writ of capias ad satisfaciendum into the county where the information is laid, returnable on the first day of the then next sittings. One writ of capias only need be issued, and on return of non est inventus, the prosecutor may issue a writ of exigent tested on the return day of the writ of capias, returnable on the first day of the then next sittings. It shall not be necessary to issue any writ of proclamations on the return of a writ of capias ad satisfaciendum (m). After the return to the writ of exigent, the rules as to proceeding after writ of exigent^ in outlawry before judgment shall apply to proceedings in outlawry after judgment {n). ,In the county of Lancaster the capias utlagatum and all subse- quent process shall be directed to the Chancellor of the Duchy (o). It shall not be necessary for any person who shall be outlawed Reversal of before conviction for any matter or thing, except treason or felony, °" "" to appear in person to reverse such outlawry, but such person may appear by solicitor and reverse the same (p). If any person outlawed (otherwise than for treason or felony), before conviction be taken and arrested upon any capias utlagatum, the sheriff may take a solicitor's engagement under his hand to appear for the defendant, and shall thereupon discharge the defen- dant from the arrest (q). If a defendant surrenders or is taken, before outlawry is com- plete, on misdemeanor before judgment, he may give bail in such amount, and with or without sureties, as a judge may direct, to appear to the indictment, inquisition, or information, and on appear- ance apply to the Court or a judge for a supersedeas to the process of outlawry (r). If a defendant comes in on an indictment or information for misdemeanor, and reverses the outlawry before judgment, he shall plead instanter (s). To reverse outlawry after conviction the defendant shall sur- render himself into custody, and afterwards be brought into (to) C. 0. R. 110. (q) 0. 0. R. 114. (n) Id. 111. (r) Id. 115. (o) Id. 112. (s) Id. 114. (j>) Id. 113. 66 CRIMINAL INPOEMATIONS. Court to assign errors upon the judgment in outlawry, by hocbeas corpws (t). If the defendant be taken on a capias utlagatv/m, he shall deliver the writ of error into court when he appears upon the return to the capias ; he shall then move for an order to bring him up again to assign errors, and shall be committed by the Court to the Queen's Prison (m), TJntn outlawry be reversed a defendant after conviction shall not be committed, or called up for judgment upon an indictment, information, or inquisition {x). Upon the assignment of error in outlawry, the prosecutor shall join in error within eight days, and the case may then be entered in the Crown paper for argument, on the application of either party, as in error to the Queen's Bench Division from inferior Courts {y). " Outlawry," said Lord Mansfield («), " cannot be reversed without a writ of error. In the 3rd of Queen Anne, ten of the judges were of opinion ' that in all cases under treason and felony, a writ of error was not merely of grace, but ought to be granted.' Price and Smith were of a contrary opinion, ' that a writ of error was of grace only in all cases ' : the ten did not mean ' that it was a writ of course,' but that ' where there was probable error it ought not to be denied ' : it cannot issue now without a fiat from the Attorney- General (ft), who always examines whether it be sought merely for delay, or upon a probable error. ... In a misdemeanor, if there be probable cause, it ought not to be denied ; this Court would order the Attorney-General to grant his fiat ; but be the error ever so manifest in treason or felony, the king's pleasure to deny the writ is conclusive {h). If the Attorney-General confesses an error in fact, the Court wiU reverse the outlawry ; but his confessing an error in law wUl not, of necessity, have the same effect ; the Court win judge for itseK whether there is such an error " (c). As to proceedings in error, generally, vide post, pp. 100 seq. (f) C. O. B. 118. C. 0. R. 184. \u) Id. 119. (6) 4 Burr. 2550. (x) Id. 120. (c) Id. For examples of reversal of iy) Id. 121. outlawry, see BarringUm v. R., 3 T. B. (z) 4 Burr. 2550. 499; and R. v. Almon, 5 T. R. 202; (o) This is still the case : see ). Other orders. — All other orders shall, during the sittings, be made by the Court on motion supported by affidavit, but no affidavit shall be necessary for an order demandable as of right by the Crown, or where it is not necessary to state matters of fact (c). Except as may be otherwise provided by these Eules, all appli- cations on the Crown side shall be made by way of motion to a Divisional Court for an order nisi (d). Notice of, motion. — The following applications shall be made upon two clear days' notice of motion, and be brought on as if they were ex parte motions and not put into the Crown paper : — (a.) For time, enlargement, stay, or security. (6.) To strike a case out of the Grown paper. (c.) To file a special case by leave of the Court. (a) C. 0. R. 251. (c) 0. 0. R. 253. (6) Id. 252. (/) Id. 254. 74 CRIMINAL INFORMATIONS. {d.) To accelerate a case in the Crown paper on the ground of urgency. (e.) For costs to a defendant in criminal information to the amount of the recognizance (e). Service of affidavit. — ^When any motion is made under Eule 255 and founded on evidence by af&davit, a copy of such afi&davit intended to be used shall be served with the notice of motion (/). WTien leave necessary. — No order on the Crown side, except orders of course, shall be drawn up without the leave or order of the Court or a judge, or of the Queen's Coroner and Attorney, or the Master of the Crown Office (c/). Adjawrnment for notice. — If on the hearing of a motion or other application the Court or a judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court or judge may think fit to impose Qi). The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or judge shall think fit {i). Effect of non- Non-compliance with any rule of practice for the time being ia with any rule, force, is not to render any proceeding void, unless the Court or a judge shaU so direct ; but such proceedings may be set aside either wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as the Court or judge shall think fit (Jc). No application to set aside any proceeding for irregularity is to be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregu- larity (Z). Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted on are to be stated in the siimmons or notice of motion (m). Rules as to Foi the rules as to time, see pp. 76, 77, post. *""'■ (e) C. 0. R. 255. (k) C. 0. R. 303 ; Order LXX. of (/) Id. 256. Supreme Court Rules, 1883, r. 1. {g) Id. 258. (Q Order LXX. r. 2. Qi) Id. 259. (m) Id. r. 3. (i) Id. 260. ( 75 ) CHAPTEE VI. Peoceduee from Close of Pleadings. PAGE Notice of trial 75 Entry of record 76 Kules as to time 76 Impounding papers for evidence . 77 Change of venue 77 Bringing on case for trial ... 78 Trial at bar 79 Jury 80 PAGE Subpoenas 82 Discovery 82 Procedure at trial 82 Amendment of variances ... 83 Entry by associate, &c. ... 84 Filing certificate .... 84 Signing judgment 84 Acquittal 85 Aftee the similiter is added by the prosecutor the issue is made Notice of trial, up, and notice of trial is indorsed on it, and served on the opposite ■party. Notice of trial must be given before entering the record for trial {a). The notice of trial must state the place at which the trial is to be had, and the day on or after which the record is to be tried (6). If the prosecutor or relator does not, within six weeks after issue joiaed, or within such extended time as the Court or a judge may allow, give notice of trial, the defendant may give such notice, and when the defendant is bound by recognizance to give notice of trial the prosecutor may, in all cases, give notice by proviso (c). Ten days' notice of trial shall be given in all cases, unless a longer notice shall be ordered by the Court or a judge, or the party to whom it is given shall consent to take short notice of trial {d). Short notice. — Short notice of trial is to be understood to mean four days' notice or any longer period (e). (a) C. 0. E. 151. {d) 0. 0. R. 150. (6) Id. 148. (e) Id. (c) Id. 149. 76 CRIMINAL INPOEMATIONS. For Londmi or Middlesex. — Notice of trial for London or Middle- sex is not to be, or operate as for, any particular sittings, but is to be deemed to be for the day stated in the notice, or for any day after the expiration of the notice on which the record may come on for trial (/). For trial elsewhere. — Notice of trial elsewhere than in London or Middlesex is to be deemed to be for the first day of the then next assizes, at the place for which notice of trial is given (g). Countermand- No notice of trial is to be countermanded, and no record with- wUhdrawing" •l^awn except by leave of the Court or a judge, which leave may be given subject to such terms as to costs or otherwise as may be just Qi). Forms of notices of trial will be found in the Appendix. If the prosecutor or relator, after having given notice of trial for London or Middlesex, does not enter the record within six days, the party to whom notice may have been given shall be at liberty to enter it with the leave of the Court or a judge (i). The following rules as to time are by the new Crown Of&ce Bules made applicable to all criminal proceedings on the Crown side. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or the prac- tice of the Court, the same shall be reckoned exclusively of the first day and inclusively of the last day (k). Where any Umited time less than six days from and after any date or event is appointed or allowed for doing any act or takLog any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time {V). Where the time for doing any act or taking any proceeding expires on a Sunday or other days on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, as far as regards the time of doing or taking the same, be held to be duly done or taken, if done or taken on the day on which the office shaU next be opened (m). record. Entering record for trial. Bules as to time. (/) C. O. R. 152. (S) Id. 153. {h) Id. 154. (0 Id. 156. (Jc) C. 0. E. 294. Q) Id. 295. (m) Id. 296. PROCEDURE PROM CLOSE OP PLEADINGS. 77 A Court or a judge shall have power to enlarge or abridge the time appointed by these Eules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require ; and any such enlargement may be ordered at the discretion of the Court or a judge, although the application for the same is not made until after the expiration of the time appoiuted or allowed (n). In all causes in which there have been no proceedings for one year from the last proceeding had, the party, whether prosecutor or defendant, who desires to proceed, shall give a calendar month's notice to the other party of his intention to proceed. A summons of a judge, on which no order has been made, shall not be deemed a proceeding within this rule. Notice of trial, though afterwards countermanded, shall be deemed a proceeding within it (o). The Court wHl not order papers in the defendant's custody to be Impounding impounded till after the trial of an information against him. evidence at the An information being pending against a town clerk for misconduct *"*'• in his office in a matter relating to an election of town councillors, an application was made to the Court to order the voting papers in his official custody to be impounded till after the trial, as the period for which he was bound by statute to keep them would expire before the case would come on ; but the application was refused, Lord Denman, C. J., saying : " The Court never interferes in this manner to compel a defendant to produce evidence against himself. It wHL be matter of strong observation against the defendant if the voting papers are not kept and produced when called for at the trial " (p). By sect. 46 of the Crown Suits Act, 1865 (28 & 29 Vict. c. 104), change of in any cause in which the Attorney-General on behalf of the^°°"°" Crown is entitled to demand as of right a trial at bar, and the Attorney-General states to the Court that he waives his right to a trial at bar, the Court on the application of the Attorney-General shall change the venue to any county in which the Attorney- General elects to have the case tried. It was laid down by the Court of Exchequer in general terms in B. V. Smith (q) that in an ex-officio information, the defendant (n) C. 0. R. 297. (p) E. v. Nidholetts, 5 A. & B. 376. . (o) Id. 298. (?) 2 Price, 113. 78 CRIMINAL INFORMATIONS. cannot obtain a change of venue without the consent of the Attorney-General; but the authority of this decision has been much shaken by subsequent cases. In one case the Irish Court of Queen's Bench changed the place of trial of an ex-offido information, on the application of the defendant, on being satisfied that there could not be a fair trial in the place where the offence was committed, although the Attorney- General opposed the application (r). And the same Court in another case acceded to a similar application by the Attorney- General to enter a suggestion on the roll for changing the place of trial of an ex-ojffkio information (s). The application is made, on affidavits entitled in the cause, to the Court or a judge in chambers for a suggestion to be entered on the record that a fair and impartial trial cannot be had in the county where the venue is laid. The suggestion on the record need only state this fact : it need not state the facts from which the inference is drawn {t). A rule nisi is granted in the first instance, against which the other side may shew cause as in ordinary cases. Forms of suggestion will be found in the Appendix. Bringing on In ex-officio informations the defendant, by 60 Geo. 3, and case for trial. ^ q^^ ^^ ^ ^^ g 9^ jf ^^^ information is not brought on for trial within twelve calendar months after the plea of not guilty has been pleaded, may apply to the Court in which the prosecution is depending, for an order authorizing him to bring on the trial If the Court sees fit to make such order, the defendant may bring on the trial accordingly, unless a nolle prosequi shall have been entered in such prosecution. Twenty-one days' previous notice must be given to the Attomey- or Solicitor-General of the intention to make the application (m). Previously to this enactment the Attorney-General could keep the information hanging over the head of the defendant as long as (r) R. V. Buggwn, 7 Ir. Rep. C. L. 507. 94. Re Smith (ubi supra) was not re- (t) R. v. Hunt, 3 B. & AW. 444, ferred to in either the arguments or Tega.Tdeihy(yBrien,J.,'mR. y. Duggan judgments, nor was any point made (ubi supra), as overruling R. v. Harris, about the difference between ex-officio 3 Burr. 1330. and other informations. (u) 60 Geo. 3, and 1 Geo. 4, c. 4, (s) R. V. Conway, 7 Ir. L. R. N. S. s". 9. PROCEDUEE FROM CLOSE OP PLEADINGS. 79 he pleased ; and it was held that the defendant could not bring it on for trial by proviso, as proviso implied laches, which could not be imputed to the Crown (v). If a private prosecutor does not proceed to trial within a year Costs if case alter issue joined, or it he causes a nolle prosequi to be entered, the to trial. Court, on motion for the same, may award the defendant his costs to the amount of the recognizance entered into by the prosecutor on filing the information (x). The hardship of limiting the right of a successful defendant to the former small amount of £20 was strongly urged upon the Court in B. v. Filewood (y), but the Court held that it could not give more than was mentioned in the recognizance ; suggesting the advisability of in future adopting some new rule, such as refusing to grant an information unless the prosecutor undertook to pay all the costs in case he did not substantiate his charge. But the same Court, in the following term, refused to exact such an undertaking from a prosecutor, saying that any alteration must be by legislative authority (z). The amount of the recognizance has now been raised to £50 (a). No warrant of nisi prius from the Attorney-General for making up a record is necessary (6). Forms of record wiU be found in the Appendix. Except in the case of a trial at bar the trial is conducted in the Mode of trial, same way as an indictment for a misdemeanor at the assizes, but on the civil side of the Court, or at the Msi Prius sittings of the Queen's Bench Division. In ex-offido informations the Attorney-General may, if so minded. Trial at bar. demand a trial at bar (c). A trial at bar shall not be had except by order of the Court {d). An appKcation for a trial at bar shall be by motion for an order nisi except when made by the Attorney-General on behalf of the (v) See B. v. Macleod, 2 East, 202, " all causes of the Queen in this Court and the earlier cases there referred to. must he tried at The Bar, if Mr. At- (x) C. 0. R. 49. tomey will not grant a warrant of nisi (y) 2 T. R. 145. prius." Per Curiam, B. v. Banks, 6 (z) B. V. Brooke, 2 T. E. 197 ; see Mod. 247. also B. v. Morgan, 2 Str. 1042. (c) B. v. Johnson, 1 Str. 644. (a) 0. 0. R. 40. (d) C. 0. E. 160. (i) Id. 157. The old rule was that 80 CRIMINAL INPOBMATIONS. Crown, when the order shall be absolute in the first instance as of course (e). All orders are, during the sittings, to be made by the Court, on motion supported by affidavit; but no affidavit is necessary for an otder demandable as of right by the Crown, or where it is not necessary to state matters of fact (/). On making the order absolute for a trial at bar the Court may impose such terms on the applicant as to payment of costs, or otherwise, as the Court may think fit (g). Three copies of the roll upon which the trial is to take place shall be delivered by the applicant for the trial at bar at the Crown Office for the use of the judges four days before the day fixed for the trial (h). A trial at bar may be continued de die in diem, or adjourned to a subseejuent day at any time, in the discretion of the Court without any reference to the sittings of the High Court, and no formal order shall be drawn up for any such continued sitting or adjournment, nor shall any such order be entered on the roll (i). Jury in case The Court may direct the jury to be summoned from the county in which the offence was committed or from any other county not exempt by law, at any time after joinder of issue. The order for the jury shall be lodged with the sheriff of such county in suf- ficient time for the jury to be summoned six days before the trial (k). The order to summon the jury may be drawn up, of course, at the Crown Office, without any motion for the same (I). Jury in other Writs of venire facias or other writs for the summoning of juries are no longer to be used ; but the jury, whether special or common, shall be taken from the list of persons summoned for the sittings or assizes, and a panel shall be annexed to the record as in civil cases (m). Special jury. — Either the prosecutor or the defendant may obtain (e) C.O.R. 161. On the subject of the (/) C. 0. B. 253. right of the Crown in all cases, civil or (g) Id. 162. criminal, in which it is interested, ■ to (h) Id. 164. demand a trial at bar, see the learned (i) Id. 165. and interesting judgment of WUls, J., (k) Id. 163. in Dixon v. Farrer, L. R. 17 Q. B. D. (I) Id. 252. 663. (to) Id. 158. of trial at bar. cases, PROCEDURE FROM CLOSE OF PLEADINGS. 81 a special jury upon giving the like notice as is required in civil cases ; and a Court or a judge may, at the instance of either party, order that a special jury be struck as provided for by the Juries Act, 1870 (n). The order for a special jury is an order of course, which may be drawn up at the Crown Office without any motion for the same (o). A form of judge's order will be found in the Appendix. When the jury has been reduced, either party may draw up an order at the Crown Office directing the sheriff to summon that particular jury at such time and' place as may be required {p). By the Juries Act, 1870 (33 & 34 Vict. c. 77), s. 17, the old practice of nominating and reducing special jurors in London and Middlesex was altered ; but power is resel^^ed to the superior Courts or any judge thereof to order, if it seem expedient, that a special jury be struck according to the old practice {q). (n) C. 0. R. 158. (o) Id. 252. (p) Id. 158. (2) The old practice was this : The Master of the Crown Office gave an ap- pointment to nominate the jury. The rule and appointment were then served on the opposite party and on the sheriff. If both parties did not attend the appointment, after waiting half-an- hour a second appointment was made. This was peremptory, and after wait- ing an hour the jury might be nomi- nated ex parte. Forty-eight names were drawn by ballot, and each party got a copy of the list. An appointment might then be obtained to reduce the list to twenty-four (Comer, 137, 138). The appointment if obtained ex parte should be served on the other side, but not on the sheriff. The reduction was effected by each party in turn striking out one name (Cole, 89, 90). If only one party attended a peremptory ap- pointment, the Master struck out on behalf of the other. If therewere several defendants the prosecutor still struck out twelve in this manner, and each of the defendants in turn struck out one, Tintil twelve had been struck out by them. The Master would not proceed ex parte without an affidavit of service of the rrde and appointments. Where a rule for a special jury was not proceeded with by the party who had obtained it, the other party might take out a summons to shew cause why the cause should not be tried by a common jury {R. V. Smith, cited Corner, 138) ; but if the special jury had been nomi- nated and reduced the rule should be discharged, by consent or otherwise, before the cause could be tried by a common jury (Corner, 138, 139). If after a special jury had been struck the information was not tried at the next sittings, a rule to strike a new special jury could not be obtained : the cause must have been tried by the jury first appointed {R. v. Perry, 5 T. R. 453, following M. V. Franklin, Hil. 5 Geo. 2, 1731, there set out at length ; the same being held as to civil actions in Wilson V. Butler, 2 M. & Rob. 78) ; and if there was a new trial, there must have been a new jury (Corner, 138). G 82 CEIMINAL INFOEMATIONS. Warrant of tales. Snbptenas. Entry for trial. Discovery or inspection. Procedure. Right of Attorney- General to reply. A warrant of tales should be procured from the Attorney-General, in case a suf&cient number of special jurors should not be in attendance at the trial (r). Subpoenas ad testijicandum and duces tecum are served, by either party, as in ordinary actions. Forms of subpoenas will be found in the Appendix. An order for the examination of a witness resident here, but unable from illness to attend the trial, cannot be made (s). If the information is to be tried at the assizes, the record and jury process with panels annexed are delivered to the judge's associate or marshal on the commission day, and the cause entered for trial in the usual way. The proceeding being of a purely criminal character, the prose- cutor cannot obtain discovery or inspection of any documents in the defendant's possession {f). The procedure and evidence (m) are the same as in ordinary cases. The trial is on the civil side of the Court. Neither the Attorney- or Solicitor-General, nor a queen's counsel, can appear in any case against the Crown, even if the Crown be a nominal party only, without a special license {x). This is obtained, by presentiQg a petition to Her Majesty, which is left at the Home OflBice. The rule does not apply to Serjeants or counsel to whom patents of precedence have been given. The defendant need not be present at the trial (y). Matters of aggravation or extenuation are not entered into at the trial, but are reserved for the affidavits used when the defendant is called up for sentence (z). In ex-offlcio informations, but not where he appears as counsel for a private prosecutor (a), the Attorney-General is entitled to reply, though the defendant call no witnesses ; a privilege strongly but in vain opposed by Home on his trial for libel (h). (r) See Form of Warrant in the Appendix, post. (s) R. V. Upton St. Leonards, 10 Q. B. 827. (0 B. V. Pwrnell, 1 Wils. 239. (u) For an example of a naandamus to an Indian Court to examine wit- nesses on an information pending here. see R. V. Douglas, 13 Q. B. 42. ix) See R. v. Jones, 9 C. & P. 404. (y) 1 Gude, 101. (z) B. V. Sharpness, 1 T. R. 228. (a) B. V. Bdl, M. & M. 440. (h) 20 How. St. Tr.660; Cowper, 672. PEOCEDURE FEOM CLOSE OF PLEADINGS. 83 Whether a counsel who appears for the Attorney-General on an ex-offido information has the right of reply is not quite clear. Lord Tenterden held in B. v. Marsden (c) that wherever the King's counsel appears officially he is entitled to the reply {d). PoUock, C.B., and Mellor, J., have also extended the right to counsel representing the Attorney-General (e); and Kelly, C.B., at the trial of a woman named Waters at the Old Bailey for murder, decided that the learned serjeantwho represented the Attorney-General was entitled to reply, even if no evidence were called for the prisoner (/). On the other hand, Martin, B. (g), and Byles, J. (h), held that the right was confined to the Attorney-General in person ; and Martin, B., said he thought a prosecution by the Crown ought to be conducted like any other prosecution. By 9 Geo. 4, c. 15, power is given to the Court to amend the Amendment of record in any information, where any variance appears between any matter in writing or print produced in evidence, and the recital or setting forth thereof upon the record. This potrer is extended by 14 & 15 Vict. c. 100, s. 1, to any variance between the statement in any indictment (which, by s. 30, includes informations) and the evidence offered in proof tbereof, in the name or description of any matter or thing, or in the ownership of any property therein named or described, if the Court considers such variance not material to the merits of the case and that the defendant cannot thereby be prejudiced in his defence on the merits, the amendment to be made on such terms as to postponing the trial, to be had before the same or another jury, as the Court shall think reasonable ; and in case the trial is had at Nisi Prius, the order for the amendment is to be indorsed on the postea and returned together with the record, whereupon such paper, roUs or other records of the Court from which such record issued as it may be necessary to amend shall be amended accordingly by the proper officer ; and in all other cases the order for the amendment shall either be indorsed on the in- dictment, or shall be engrossed on parchment and filed together with the indictment among the records of the Court. This section also contains provisions as to respiting recognizances, &c. (e) M. & M. 439. (/) Ex relatione amid. (c?) See R. v. Gardner, 1 C. & K. 628. (jr) R. v. Christie, 1 P. & F. 75- (e) R. V. Toakleiji 10 Cox, C. C. 406. (h) R. v. Taylor, 1 F. & F. 535. u 2 84 CRIMINAL INFORMATIONS. The amendment must be made before — ^but may be made at any time before — verdict (i). An amendment once made has in the case of indictments been held final ; the indictment in its original form cannot be reverted to (k). Entry by asso- Upon cvcry trial, whether at the assizes or at the sittings in assize, or London Or Middlesex, the associate, clerk of assize or master is to ^'^^^- enter in a book to be kept for that purpose, first, the verdict of the jury and all such findings of fact, if any, as the judge may direct to be entered ; second, the directions, if any, of the judge as to judgment; third, the certificates, if any, granted by the judge ; and the sentence of the judge if then passed {V). Filing certifi- A certificate, signed by the associate, of such verdict, finding or direction, judgment or sentence, shall be filed at the Crown Office by the associate (m). A form of certificate will be found in the Appendix. Signing Judgment upon the postea may be entered at the Crown Office judgment. at any time after the expiration of the time limited for applying for a new trial, or for entering judgment rum obstante veredicto, or arresting judgment, unless otherwise ordered (n). The postea may be obtained by the party in whose favour the verdict was found from the associate, clerk of assize, or master, on the day after the last day on which a motion may be made for a new trial or in arrest of judgment, or for judgment nan obstante veredicto, unless there be an order nisi granted ; and if an order nisi has been granted, at any time after such order nisi shall have been discharged, and shall be produced at the Crown Office, where the judginent will be entered in a book and signed on the record according to the verdict, by the Queen's Coroner and Attorney, or the Master of the Crown Office (o). Porms oi postea will be found in the Appendix. Forms of entry of judgment upon verdict after acquittal, by default, on confession for want of joinder in demurrer, and on demurrer after argument will be foimd in the Appendix. (i) R. V. Larkin, Dears. 365 ; 23 a/rd, 30 L. J. M. C. 169 ; B. v. Webster, L. J. M. C. 125 ; B. v. Frost, Dears. L. & C. 77. ' 474 ; 24 L. J. M. S. 116 ; R. v. Fullcm-- (V) 0. 0. R. 171. ton, 6 Cox, C. C. 194. (m) Id. (Jc) B. V. Ba/rnes, L. E. 1 C. C. R. (n) Id. 45 J 35 L. J. M. C. 204 ; B. v. Fritch- (o) C. 0. E. 175. PROCEDURE PROM CLOSE OP PLEADINGS. 85 Should the jury acquit the defendant, the matter is determined Acquittal is _ - final. for ever ; for the Court will not grant a new trial after an acquittal upon an information or indictment, even where there has been a mis- direction (j)) ; the only exception being where the case is one in the nature of a civil action, such as an indictment for the non-repair of a highway (q). The reason of the rule was thus stated by Lord Coleridge, C.J., in E. V. Duncan (r) : — " The practice of the Court has been settled for centuries, and is that in all eases of a criminal kind where a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger has been acquitted. The one case in which a new trial was granted in a purely criminal case, on the ground of misdirection or misreception of evidence, B. v. Scaife (s), was a case not of misde- meanor but of felony. . . . But that case took no root in our jurisprudence and has not been followed. It was explained in the Judicial Committee in B. v. Bertrand (t) by Sir John Coleridge shewing that the point had not been presented to the Court of Queen's Bench, and he and Sir William Erie sitting in the Privy Council evidently felt that B. v. Scaife was a case which could not be supported, and they declined to follow it." (jp) B. V. Cohen & Jacob, 1 Stark, may grant a new trial after an acquittal 516. in all cases of misdemeanor. There (j) See per Lord Campbell in B. v. are certainly no modem cases to sup- BiisseU, 3 E. & Bl. 942, 950. See also port this view ; and so far back as the B, V. Crickdale, 3 E. & B. 947, note (6) ; 12th Car. 2 its correctness was denied. B. V. Ohorley, 12 Q. B. 515, note (a) ; See B. v. Bead (1 Lev. 9 ; see also B. V. Leigh, 10 A. & B. 398 ; B.y. 2 Burr. 665) ; B. v. Mann, 4 M. & S. Duncan, L. R. 7 Q. B. D. 198. Even 337; and B. v. Wandsworth, 1 B. & Aid, in such cases the old practice was dif- 63. ferent. See B. v. Parish of Severton, (r) L. R. 7 Q. B. D. 199. 1 Wils. 298, and B. v. Fraed, 4 Burr. (s) 17 Q. B. D. 238. 2257. Some text-books lay it down (<) L. R. 1 P. C. 520. as the better ojanion that the Court 86 CRIMINAL INFOEaiATIONS. CHAPTER VII. Proceedings subsequent to Conviction. PAGE When sentence to be pronounced . 86 Eecognizance to appear for sentence 86 Bringing up defendant for sen- tence 86, 87 New trial, when granted ... 88 „ „ time for applying . . 88 „ „ grounds for granting . 89 Nolle prosequi 89, 90 Arrest of judgment .... 90 Eespiting judgment .... 91 Difference between ex-offich and other informa- tions. Recognizance to appear for sentence. Bringing up defendant for judgment. PAGE Warrant to hold to bail ... 91 Morning for final judgment . 91, 92 Procedure on pronouncing sen- tence 92-96 Sentence 96, 97 Eespiting execution ... 97, 98 Costs 98-100 Proceedings in Error . . 100-106 Appeal to House of Lords. 106, 107 If the defendant is found guilty, then if the information be an ex- officio one, the Attorney-General may elect whether sentence shall he passed by the judge who has tried the case or shall be post- poned to the ensuing term ; whereas the sentences on all other informations must be passed by the Queen's Bench Division {a). The defendant who is found guilty, if not under recognizance to appear to receive sentence, should give notice of bail (forty-eight hours) to the prosecutor's solicitor, and enter into a recognizance to appear to receive sentence on a day named therein or whenever he shall be thereto required. The recognizance may be entered into before a judge at Chambers or a magistrate in the county, but the defendant must be present before the judge will make an order for his discharge on bail (&). Every recognizance, after acknowledgment thereof, is to be trans^ mitted to the Crown Office and filed there, (c) A form of recognizance to appear for sentence will be found in the Appendix. If the defendant, after conviction, is committed or detained for (a) See C. 0. E. 172. (c) C. 0. E. 123. (6) Corner, 152. PROCEEDINGS SUBSEQUENT TO CONVICTION. 87 want of bail, the prosecutor must cause him to be brought up for judgment within eight days after the time limited by Rule 166 for moving for a new trial (d) if the Court be then sitting, and, if the Court be not sitting, within the first eight days of the sittings next after that in which the trial was had (e). Should the prosecutor make default in causing the defendant to be brought up for judgment within the time just mentioned, or within such further time as may have been granted by the Court or a judge for that purpose, the defendant may, on application to the Court, be discharged on his own recognizance. A form of notice of motion for the purpose will be found in the Appendix, post. If judgment on the postea is for the Crown or the prose- Procedure cutor, and the defendant is not under recognizance to appear to ^^^ ^„^ ^^^^.i- receive sentence, he may be served with a four days' notice to ^cogmzauce. appear on a certain day to receive the sentence of the Court, or the prosecutor may issue a writ of capias ad satisfaciendum to take the defendant, to remain in custody without bail or mainprize until he satisfies the judgment or obtains his discharge upon writ of error (/). If the defendant be not in custody and be under recognizance to appear to receive sentence, the defendant and his bail may be served with a four days' notice, that on a day named therein the Court will be moved for judgment. Such service need not be personal (g). A form of notice will be found in the Appendix. Once arrested, the defendant will be kept in custody until final judgment and sentence, unless the prosecutor expressly consents to his being bailed ; but the Court in pronouncing sentence will take this commitment into consideration, and it will go as part of his punishment (h). The proceedings after judgment by default, in order to secure the After judg, appearance of the defendant for sentence, are the same as those "efLltf after verdict of guilty. («0 See next page. (g) C. 0. R. 177. (e) 0. 0. R. 45. (h) Per Lord Mansfield, C.J., in JS. ,(/) C. 0. R. 176. A form of writ of v. Wilkes, 4 Burr. 2539, 2545, 2574; capias ad satisfaciendum will be found see also per Lord Kenyon in B. v. in the Appendix. Waddington, 1 East, 159. 88 CRIMINAL INFORMATIONS. In case of defendant's outlawry no judgment on his conviction can be pronounced until the outlawry is reversed or set aside (i). Kew trial. ^g already stated (k), a new trial will not be granted where the defendant has been acquitted by the jury (I). Where the jury have convicted, a new trial may be moved for. How applied for. — Applications for a new trial, or to enter judg- ment non obstante veredicto, or to arrest judgment, are to be by motion for an order nisi, made to a Divisional Court of the Queen's Bench Division (m). Within wbMt time. — In cases tried in London or Middlesex, the motion is to be made within eight days after the trial, or on the first subsequent day on which a Divisional Court shall sit to hear motions on the Crown side, or if the trial has been had at the assizes, within the first seven days after the last day of the sittings on the circuits for England and Wales : the time of the vacations shall not be reckoned in the computation of time for moving (n). The time in either case may be extended by the Court or a judge (o). On making the motion, all the defendants, if more than one, who are not either in custody, or who are only liable to a fine, must be present in Court, unless the Court shall otherwise order (p). Not even the consent of the prosecutor's counsel will excuse the absence of the defendant or defendants {q). Order nisi. — The groimds upon which an order nisi is granted must be stated in. the order (r). (i) B. V. Wilkes, 4 Burr. 2532. &c., it has been done, but never yet was (Je) Ante, p. 85. done merely upon the reason that the (Z) Comer, C. P., p. 161, adds, verdict was against evidence." Postea " unless the acquittal was obtained by Mich. 10 W. 3, B. R. Per Holt, C.J. : covin or laches," but cites no autho- "In indictments of perjury we never lities. The exception is supported by do it, because the verdict is against the language of the Court in R. v. evidence, but if you prove a trick, as no Bear, 2 Salk. 646, where, on refus- notice, &c., it is otherwise." See now ing a motion for a new trial on an ante, p. 85. indictment for Ubel, the Court said (m) C. 0. R. 166. " that anciently it was never done va (n) Id. criminal cases where defendants have (o) Id. been acquitted ; latterly where it has ( jj) Id. 169. been a verdict obtained by fraud or {q) 1 Gude, 223. practice, as stealing away witnesses, (r) C. 0. R. 167. PROCEEDINGS SUBSEQUENT TO CONTICTION. 89 A copy of such order niust be served on the opposite party within four days from the time of the same being granted (s). It should also be served upon the associate in order that he may retain the postea till the order nisi is disposed of. If the Court refuse the motion or take time to consider, the defendant may be allowed to remain out on bail if the prosecutor expressly consents (t). Though no defendant can move for a new trial except within the time limited, and except aU convicted are present, the Court may, of its own accord, at any time grant a new trial if satisfied on any ground that there ought to be one (u) ; nor will it give judgment against a defendant if convinced, on any ground whatever, that he is not guilty (a;). Groimds. — A new trial may be granted for misdirection, or the wrongful reception or rejection of evidence, or on the ground that the verdict was contrary to evidence, or on the ground of sur- prise (z), or the misbehaviour of the jury (a). The motion may be made upon af&davits and upon reading the judge's notes, or the latter only, which must be previously bespoken of the clerk to the judge who tried the cause, to be in Court when the motion is made (&). The motion may be in the alternative for a new trial, or in arrest of judgment (e). The case is put in the New Trial paper and comes on in the ordinary way. If the order is made absolute, a fresh notice of trial must be Order absolute, given as if there had been no previous trial ; but continuances must be entered on the record after the plea from term to term, by award of venire and distringas, as occasion may require. There must also be a new jury {d). The Attorney-General may enter a nolle prosequi on any one Nolle prosequi. (s) C. 0. E. 168. (z) B. V. Whitehouse, Dear. C. C. 1. (0 B. V. Waddmgton, 1 East, 159. See B. v. Bichardson, 8 Dowl. 511. (u) See B. v. Teal, 11 Bast, 308 ; (a) B. v. Fowler, 4 B. & Aid. 273. and per Le Blanc, J., in B. v. Askew, See Hawkins P. C. book ii., chap. 47, 3 M. & S. 10 ; jB. v. EoU, 5 T. E. 436 ; s. 12. £. V. Qough, Doug. 766. (6) Comer, 162. (x) See B, v, Waddingion, 1 East, (c) 1 Gude, 103. 146, (d) Comer, 162. 90 CRIMINAL INFORMATIONS. or more of several counts on which the defendant has been found guilty, even after a rule nisi for a new trial has been obtained (e). A form of entry of a nolle prosequi will be found in the Ap- pendix. Arrest of As to the time within which and the manner in which a ju gmen . motion in arrest of judgment must be made, vide the remarks as to motion for a new trial, ante, pp. 88, 89. "Where the information on which a ferryman was convicted of extortion, after alleging the usual rates of charge, stated that the defendant did between such a day and such a day extort, from divers persons unknown, sums of money exceeding the ancient rate and price of passage, viz., for carrying over one man and a horse 2d., and for every score of sheep 4d. &c., it was held bad in arrest of judgment; for every extortionate taking is a separate offence, and ought to be precisely and distinctly laid, whereas in the in- formation a number of offences were accumulated under a general charge (/). Judgment was also arrested where the information against a clerk of a market, after charging specific offences of which the defendant was acquitted, charged generally that under colour of his of&ce he did illegally cause his agents to demand and receive of several other persons several other sums of money on pretence of weighing and examining their several weights and measures, and the defendant was found guilty on this general charge only (g). As already stated (h), though the defendant himself should waive any objection in arrest of judgment, the Court itself wiU arrest judgment, if satisfied that the defendant is not guilty of any offence (i). In B. V. Waddington (k) the question was raised whether the defendant might be admitted to bail whilst the Court took time to consider its judgment, the prosecutor offering no objection to the defendant's application. Lord Kenyon said that "unless the prosecutor consented to the defendant's remaining out on bail, it (e) JR. V. Leatham, 7 Jur. N. S. 674. (h) Ante, p. 89. (/) It. V. Soberts, 4 Mod. 101 ; 3 (t) Per Cur. B. v. Waddington, 1 Salk. 201 ; Shower, 389. East, 146. (g) S. V. Bobe, 2 Str. 999. (k) Ubi supra. PROCEEDINGS SUBSEQUENT TO CONVICTION. 91 was a matter of course absolutely that he should be committed ; the Court had no discretion to exercise." In any case in which judgment may be pronounced at the Respiting trial, the judge before whom the trial shall be had may either ■"" ^"™ ' issue an immediate order or warrant, for committing the defen- dant in execution, or respite the execution of the judgment on such terms as he shall think fit, and for such time as may be necessary, for the purpose of enabling the defendant to move for a new trial, or in arrest of judgment, and if imprisonment be part of the sentence, may order the period of imprisonment to commence on the day on which the party shall be actually taken to and confined in prison (Z). Forms of warrants to commit when sentenced at trial, and tO' apprehend defendant sentenced at trial, when not present at the trial, will be found in the Appendix. If a defendant be convicted and not sentenced at the trial, and Warrant to hold to bail. IS not under recognizance or under sufficient recognizance to appear to receive the sentence of the Court, or if it be made to appear on affidavit or otherwise that he is likely to abscond, a judge's warrant may be obtained at any time after verdict and before final judgment, and either from the judge at the trial or from a judge at Chambers, to hold him to bail, or to require him to give such further bail as the judge in his discretion may think fit, . upon a certificate, if he be not under recognizance, of the con- viction, to be obtained from the clerk of assize or associate,' and a certificate of his not being under recognizance, from the Crown Office, or if he be under recognizance, upon a certificate of con- viction and an affidavit of facts shewing the necessity of further bail (m). A form of warrant to hold the defendant to bail and to appear for sentence will be found in the Appendix. The postea, or if interlocutory judgment be upon confession. Moving for default, or retraxit, the entry roll, shall be in Court on moving for "* ""^ ^™™ ' final judgment, and if the defendant does not answer on being called three times, the prosecutor on an affidavit of service of notice may move (under Eule 126), to estreat the recognizance, and upon the estreat of the recognizance a judge may grant a bench (I) C. 0. B. 173. (m) C. 0. B. 174, 92 CRIMINAL INFORMATIONS. Personal appearance of defendant warrant for the apprehension of the defendant ; or the prosecutor may issue a capias and proceed to outlawry (n). If there has been a trial, the notes of the judge who tried the case should be bespoken, and an abstract or copy of the information should be prepared by the prosecutor's solicitor for the senior puisne judge who passes sentence (o). As a general rule it is indispensably necessary that the defen- dant should be personally present in Court when sentence is pro- ;ro^^rc:r ^^^^^ (v)- Special circumstances, shewn by afl&davit, may induce the Court on motion, to dispense with this necessity ; e.g., in cases where it is clear that a fine only wiE. be inflicted, in case of the sickness of the defendant, his residing a long distance from London, or the offence being of a very trifling kind (cj). The motion to dispense with the personal appearance of the defendant should be made early in term. The Court sometimes directs the order nisi to be served on the (n) 0. 0. R. 178. See as to outlawry before judgment, wnte, p. 62 seq. The following is the procedure after jvdg- ment : — one writ of capias being issued, on a return of non est inventus a writ of exigi facias is issued [a writ of pro- clamation need not be issued with it] on which the defendant is exacted five times at so many distinct County Courts, or at five hustings of pleas of land in London. On a return of his being exacted five times without surrendering himself, the outlawry is complete (Cole, 98 ; 1 Crude, 261 ; Comer, 243 ; and see R. V. Perry, 6 T. R. 573 ; R. v. Wilkes, 4 Burr. 2559 ; R. v. Ward, 2 Ld. Ray. 1462 ; R. v. Hornhy, 6 Mod. 61). On completion of the outlawry, the pro- secutor's solicitor may issue writs of capiat utlagatum, or special capiat utlagatum, under which, not only may the defendant be taken, but his goods may be seized and his lands ex- tended. (o) Cole, 102 ; Comer, 153. Ip) R. V, Eann, 3 Burr. 1786. In this case " the general doctrine laid down by the Court and agreed by the counsel on both sides, was that though such a motion was subject to the dis- cretion of the Court, either to grant or to refuse it, where it was clear and certain that the punishment would not be corporal, yet it ought to be denied in every case where it was either pro- bable or possible that the punishment might be corporaL . . . And Wilmot and Aston, JJ., thought that even where the punishment would most pro- bably be only pecuniary, yet in offences of a very gross and public nature, the persons convicted should appear in per- son, for the sake of example and pre- vention of the like offences being com- mitted by other persons; as the notoriety of their being called tip to answer criminally for such offences would very much conduce to deter others from venturing to commit the Uke."— Id. 1787. (5) 1 Gude, 107 ; Cole, 100. PROCEEDINGS SUBSEQUENT TO CONVICTION. 93 prosecutor's solicitor, and if no cause is shewn the order will be made absolute on the defendant's solicitor undertaking to pay such fine as may be imposed (r). Affidavits either in mitigation or in aggravation may be used Affidavits in when the defendant is brought up for sentence. They are entitled, aggrayation. " In the High Court of Justice, Queen's Bench Division. The Queen against B." It is not usual for either party to supply copies of these to the other. They need not be filed before the motion is made. After judgment by default, on an ex-officio information, the Court allowed to be read in aggravation, an affidavit entitled simply, " In the Queen's Bench," on which the Attorney-General had filed the information (s). Either party may make an affidavit, and so may any of the witnesses who were examined at the trial. When any defendant shall after verdict be brought up for sentence on any information, after the notes of the trial shall have been read, the affidavits produced on the part of the defendant, if any, shall be read, and then any affidavits produced on the part of the prosecution ; after which the counsel for the defendant shall be heard ; and, lastly, the counsel for the prosecution {t). When any defendant shall be brought up for sentence after judgment by default, confession, or retraxit, the prosecutor's affida- vits shall be first read, then the defendant's affidavits ; after which the counsel for the prosecution shall be heard, and, lastly, the counsel for the defendant (m). If no affidavits are produced, the counsel for the defendant shall be first heard, and then the counsel for the prosecutor {x). It is not usual to allow a defendant an opportunity of answering at a future time the affidavits of the prosecutor. Each party should come prepared to disclose all the circumstances of his case {y). But if the Court, on hearing the affidavits, should be of opinion that any point was not fully and sufficiently explained, it would give the defendant an opportunity of explaining such part of the charge (z). (r) 1 Gude, 107 ; Cole, 100. (a;) C. 0. E. 182. (s) B. V. Morgan, 11 Bast, 457 (y) Per curiam, R. v. Wilson, 4 («) C. 0- E. 180. T. E. 487. (m) Id. 181. (a) Id. 94 CRIMINAL INFORMATIONS. In a case where the prosecutor produced affidavits in aggrava- tion, to shew a continuance of the defendant's malice, by expressions used subsequently to the time of the indictment, the Court thought it reasonable to allow the defendant an opportunity of answering these affidavits, because it could not be supposed that he could come prepared to answer that which was not contained in the indictment (a). In mitigation.— The. defendant may himself make an affidavit in extenuation. A defendant convicted of publishing a libel was allowed to urge in mitigation that he was absent when the paper was published, that on reading a copy he was much hurt with the contents, immediately forbade the sale and refused to let anybody see it (6). Sir Francis Burdett was allowed to put iu an affidavit that he read statements in the newspapers, which induced him to publish the libel; but affidavits that those statements were founded on truth were refused (e). The Court has also received affidavits stating that at the time of publication the defendant believed the charge to be true, and setting forth reasonable grounds for such belief {d). In B. V. Shimrmn (not reported), a case of newspaper libel, affidavits were received from inhabitants of the town where the paper was published, to the effect that the paper had always been well conducted and had been the means of bringing about sanitary and other reforms ; but a memorial, not sworn, to the same effect was not allowed to be read. Where there had been a plea of justification under Lord Camp- bell's Act, the Court admitted, for the purpose of shewing why this plea had been pleaded, an affidavit of the defendant deposing that before and at the time of publication, and at the time of pleading, he believed the truth of the charges contained in the Ubel and plea, and that before the pleading he had received from Viterbo, in Italy an affidavit made by a person named in the plea of justification, to the effect that she had been seduced by the prosecutor vmder the (a) Id., referring to B. v. Archer, 2 see also B. v. Bradley, 2 M. & By. T. E. 20», in notes. 152. (6) B. V. WilUams, Lofft. 759. (d) B. v. IMpin, 9 B. & C. 66. (c) B. V. Burdett, 4 B. & Aid. 321; PEOCEEDINGS SUBSEQUENT TO CONVICTION. 95 circumstances mentioned in the libel (e). " This part of the affi- davit/' said Lord Campbell, C. J., " is clearly admissible under the statute to shew why this part of the plea was placed on the record ; the fact of the plea being one to be considered by the Court in apportioning the punishment." In B. V. Mawbey (f), where four persons had been indicted for conspiracy and two were acquitted, the affidavits of the two acquitted were allowed to be read in favour of the defendants who had been convicted. Aggravation. — The prosecutor may himself make an affidavit in aggravation. Affidavits in aggravation may be made by witnesses who were examined at the trial, as at the trial the only thing inquired into is the fact which constitutes the offence ; matters of extenuation or aggravation never being entered into at that time (g). The affidavits may shew that the defendant has, since the trial, by his conduct aggravated his offence ; but in such cases the defendant will be allowed time to answer the affidavits (h). Hearsay evidence has been admitted where the persons from whom it came refused to join in the affidavits, and were, in the opinion of the Court, under the influence of the defendant. In B. V. Archer (i) the Court received affidavits of persons to whom certain other persons had related expressions used in their hearing by the defendant, confirming and aggravating his guilt, the prose- cutor swearing that an application had been made to those other persons to come forward with their testimony, but that th&y had refused. The Court was of opinion in this case that the persons who had so refused were under the influence of the defendant (Jc). Where a defendant pleaded guilty to an indictment for libel on condition of being discharged on entering into his own recognisance to appear and receive judgment when called on, and of not being called on if he discontinued the publication of libels upon the prosecutor, the Court refused to pass judgment unless the prose- (e) B. V. Newrrum, 1 El. & B. 581, (i) Ubi supra. 582. (k) See also B. v. Pinkerton, 2 (/) 6 T. R. 627. East, 357 ; R. v. Willett, 6 T. E. 294 ; ((?) B. V. Sharpness, 1 T. E. 228. B. v. Younghusband, 4 N. & M. 850 ; Ev> (h) B. V. Withers, 3 T. K. 428 ; B. parte Williams, 5 Jur. 1133 ; B. v. V. Archer, 2 T. E. 203, note. Jolliffe, 4 T. E. 285. 96 CRIMINAL INFOEMATIONS. cutor produced an affidavit stating that the defendant had, since the trial, published libels respecting him {T). Notwithstanding the affidavits in aggravation, the Court will, according to Lord Kenyon, C.J. (m), "always take care not to inflict a greater punishment than the principal offence itself wiU warrant." Sentence. The sentence is, in the discretion of the Court, either a fine or imprisonnient, or both; the defendant being, sometimes, also required to find sureties to be of good behaviour for a fixed period. If the misdemeanor of which the defendant has been found guilty is the publication of a defamatory libel, the term of imprison- ment is, by Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 4, 5) not to exceed one year unless the defendant published it knowing it to be false, in which case it is not to exceed two years. The right of the Court to adjudge a misdemeanant to give security for his good behaviour, after the expiration of his imprison- ment, was discussed before the House of Lords, on a vrrit of error in 1810, and the question was put to the judges : Whether, by law, the Court of King's Bench can adjudge a person convicted of mis- demeanor to give security for his good behaviour for a reasonable time, to be computed from and after the expiration of his imprison- ment, himself in a sum named iu such judgment, with two suffi- cient sureties each in a sum therein also mentioned? The unanimous opinion of the judges was iu the affirmative {n). La case of a conviction for publishing a blasphemous or seditious libel, the Court may order all copies of the libel to be seized, and, after final judgment, to be disposed of as the Court shall direct (60 Geo. 3 & 1 Geo. 4, c. 8, s. 1) (o). The Eule of Court embodyiag the sentence when drawn up by the clerk of the rules in the Crown Office is forthwith (Z) B. V. Richardson, 8 Dowl. 511. the Court sentenced Carlile, for two (m) B. V. Withers, 3 T. E. 432. blasphemous libels, to pay a fine, to be (n) B. V. Ea/rt and White, 30 How. imprisoned for three years, and to find St. ,Tr. 1344 ; 47 H. L. Jour. 271. The sureties for good behaviour for the term question answered by the Judges, it will of his natural life: B. v. Carlile, 3 B. be observed, was as to the power of ad- & Aid. 167 ; sed vide Prickett v. judging security to be given for a Qratrex, 8 Q. B. 1029, 1030. reasonable time ; but nine years later (o) See B. v. Cator, 2 East, 361. PROCEEDINGS SUBSEQUENT TO CONVICTION. 97 lodged with the marshal or other ofiEicer in whose custody the defendant is (p). The Court refused to pass any sentence on a defendant con- victed on an information for assault, where it appeared on the affidavits that the prosecutor had commenced a. civil action for the same assault, although the prosecutor offered to discontinue the action {q). Where judgment was given that on each of four counts of an information for libel the defendant should be imprisoned ; on the first count, for the space of two months now next ensuing ; on the second count, for the further space of two months, to be computed from and after the end and expiration of his imprisonment for the offence mentioned in the first count ; on the third count, for the further space of two months, to be computed in like manner from the end of the imprisonment on the second count; and on the fourth count, for the further space of two months, to be computed in like manner from the end of the imprisonment on the third count ; and the third count was on error adjudged to be insufficient, it was held, that the sentence on the fourth count was not thereby invalidated, and that the imprisonment was to be computed from the end of the imprisonment on the second count (r). Sometimes the Court, instead of passing sentence, recommends the parties to go before the Master of the Crown Office by way of reference. If agreed to, a rule is drawn up accordingly. An appoint- ment obtained from the master is served on the solicitor of the other side. If either party intends to appear by counsel, notice to that effect should be given. The master will make his allocatur upon the rule of reference. The Court will enforce compliance with this by attachment, on an affidavit of service of the rule and allocatur and demand of compliance; or may grant and afterwards make absolute a rule ordering the defendant to pay whatever sum is awarded, on which execution may issue (s). The Court on giving final judgment or the Court of Appeal on Respiting affirmance may, if they shall so think fit, on the application oT ^^^°" '™' the defendant then present, respite the execution of the judg- (p) 1 Gude, 108. (r) Gregory v. S., 15 Q. B. 974. (q) B. V. O'Gorman Mahon,4: A. & (s) 1 Gude, 108, 109: Cole, 106, El. 575. 107. 98 CEIMINAL INFORMATIONS. ipaent for such time as may be necessary for the defendant to obtain the Attorney-General's fiat for a writ of error, or consent for an appeal to the House of Lords upon the defendant entering into a recognizance with two sufficient sureties, upon such terms as the Court may order, to render himself into custody or to prosecute his writ of error or appeal with effect, and may order the period of imprisonment, if that be part of the sentence, to commence on the day on which the party shall be actually taken to and confined in prison (f). Costs. Prosecutor's Costs. — If the sentence on the defendant consists wholly or partly of a fine, the private prosecutor is entitled, under the writ of privy seal, to a third part thereof if his costs amount to so much ; if the costs amount to more, the Lords of the Treasury may, on a petition being presented to them stating the circumstances, allow him a further part or the residue of the fine (■;*). The procedure to obtain one-third of the fine is this : — the prose- cutor's solicitor makes out and engrosses on a roll the bill of costs ; the Queen's coroner, on being satisfied as to the amount, signs a certificate to that effect on the roll ; on production of this to two judges of the Court, they will sign the allocatur, upon which the Queen's coroner will pay over the money, if it still remains in his hands (x). If the issue on a special plea of justification to an information by a private prosecutor for libel has been found for the prosecutor, he is, by sect. 8 of Lord Campbell's Act (6 & 7 Vict. c. 96), entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, to be taxed by the proper officer of the Court before which the information is tried. No. 50 of the New C. 0. Kules is to the same effect. Defendant's Cosfe.— Under 4 & 5 Wm. & M. c. 18, s. 2, a defendant found not guilty by the jury was entitled to his costs, as a matter of right, though the offence were notorious and the acquittal on a matter of form, unless the judge before whom the information was tried in open Court certified upon the record that there was reasonable cause for exhibiting the information, the effect of which was to dis- (0 1 Gude, 179. (a;) i (Juj ^q ^j, ^ j26, (m) lb. 110, 111. 127. PROCEEDINGS SUBSEQUENT TO CONVICTION. 99 entitle the defendant to any portion of his costs. This certificate must have been entered on the postea (y). Where the judge had not so certified, the awarding of costs was compulsory on the Court. In B. v. Wood/all (z), though the judge who tried the cause certified that the verdict for the defendant was against the evidence, the Court held that, in the absence of a certificate, they had no discretion to refuse the defendant his costs. It was held unnecessary, therefore, in such a case to obtain a rule calling on the prosecutor to shew cause why he should not pay the defendant his costs : the proper course was for the defendant to take out a side bar rule for taxing the whole costs ; and upon that being done, he -was entitled to so much of them as equalled the amount of the recognizance (a). Sect. 2 of 4 & 5 Wm. & M. has been repealed by 42 & 43 Vict, c. 59, s. 2 ; but by Ko. 49 of the New Crown Office Eules, " if the defendant be acquitted (unless the judge at the time of trial certifies that there was reasonable cause for the information) the Court, on motion for the same, may award the defendant his costs to the amount of the recognizance entered into by the prose- cutor on filing the information." In case, however, of an information for libel by a private prose- cutor, if judgment is given for the defendant, he is, by sect. 8 of Lord Campbell's Act, entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such information to be taxed by the proper officer of the Court before which the information is tried (h). No. 50 of the New C. 0. Eules is to the same effect. Sect. 2 of 4 & 5 Wm. & M. c. 18, was held not to apply to a trial at bar (c) ; neither did that enactment apply to ex-qfficio in- formations (d). And if of several defendants some were found guilty and others acquitted, it was held that those acquitted were not entitled to costs under the statute (e). In cases which do not come under sect. 8 of Lord Campbell's (y) Comb. 345. (c) B. v. Clerk, 7 Mod. 47. (z) 2 Str. 1131. (d) See Bac. Abridg. Informations, (a) B. V. Savih, 18 Q. B. 703. D. 2. (h) See B. V. Latimer, 15 Q. B. Ce) B. v. Danvers, 1 Salk. 194. 1077. H 2 100 CRIMINAL INFORMATIONS. Taxation of costs. Appeal as to costs. Error. Act, the prosecutor's liability does not exceed the amount of his recognizance. An appHcation for payment of defendant's costs to the amount of the recognizance must be made upon two clear days' notice of motion, and be brought on as if it were an ex parte motion and not put into the Crown paper (/). If it is intended to use an affidavit, a copy of it must be served with the notice of motion (g). Eule 27 (as to Special Allowances and General Eegulations) of Order LXV. of the rules of the Supreme Court, 1883, is, so far as it is applicable, to apply to all criminal proceedings on the Crown side. Those Eules are too lengthy to set forth here; but they will be found in the Appendix, post. By the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 47, it is enacted that " no appeal shall lie from any judg- ment of the High Court in any criminal cause or matter, save for error of law apparent upon the record." An appeal, therefore, will not lie from an order of the High Court as to costs following on a judgment for the defendant, on an information for libeL In B. v. Steel (h) the defendant having been acquitted, judgment was entered for him, and the Master of the Crown Office taxed the defendant's costs pursuant to 6 & 7 Vict, c. 96, s. 8, under a side bar rule, according to the usual practice, and the High Court discharged a rule to review the taxation. It was contended, in support of the right to appeal, that the prose- cutor being no party on the record, the question of costs was a quasi civil matter between him and the defendant ; but the Court (Xiord Coleridge, C. J., Mellish and Brett, JJ.A.) were of opinion that the order to tax was a matter of course, after judgment, although not actually part of the judgment, and that it was part of the procedure in a criminal matter, so that no appeal lay. In case of error upon the record, the matter is brought before the Court of Appeal by writ of error, returnable before that Court (i). No writ of error lies, without the fiat of the Attorney-General (/) C. 0. R. 255. (5)- Id., 256. Qi) L. R. 2 Q. B. D. (0 C. 0. R. 207 ; see Bradlaugh v. The Queen, L. R. 3 Q. B. D. 607. PROCEEDINGS SUBSEQUENT TO CONVICTION. 101 having been first obtained (k). A form of fiat will be found in the Appendix. It is now established, notwithstanding a dictum of Lord Mans- field's (0 to the contrary, that the decision of the Attorney-General as to granting or refusing his fiat is conclusive, and cannot be reviewed by the Court (m) ; though if he refused to consider the application, he might be compelled by mandamus to hear and determine it (n). " If it be made to appear to him," said Erie, J. (o), " that it ought to be granted, then ex debito justitice he is bound to grant it ; if it be miade to appear to him that it ought not to be granted, then ex debito justitice he is bound to refuse it ; but in either case his discretion is supreme and final." Though a writ of error will not be set aside on the ground Quashing writ that the error assigned is frivolous (p), the Court may quash it when satisfied that it is obtained by collusion between the parties in order to bring about a compromise of the prosecution (q). The writ is to be served by delivery at the Crown Office (r). Service of A form of writ of error will be found in the Appendix. Upon delivery of the writ of error the prosecutor is to enter Carrying in the proceedings up to judgment on the roll and carry it into the Crown Office (s). If the prosecutor does not, within a reasonable time, carry in the roU, the plaintiff in error may obtain a judge's order upon a summons to compel him to do so (t). When the roll has been carried in, the plaintiff in error, on Certificate of application to the Queen's coroner and attorney or the Master of the Crown Office, may obtain a memorandum or certificate of the allowance of the wtit of error for service upon the defendant in error or his solicitor (u). (k) C. 0. E. 184. («) Per Lord Campbell, 4 E. & B. (I) "In misdemeanors, if there be 871. probable cause, it ought not to be (o) Id. p. 872. denied ; this Court would order the (p) R. v. Clarke, 7 W. E. 601. Attorney-General to grant his fiat." — (j) B. v, Alleyne, 4 E. & B. 1 86 ; R. V. Wilkes, 4 Burr. 2551. 5 E. & B. 399. (m) Exparte Newton, 4 B. & B. 869 ; (r) 0. 0. E. 207. In In re Pigott (11 Cox, C. C. 311) the (s) Id. 208. Irish Lord Chancellor held "that he (f) Id. had no jurisdiction to review the At- («) Id. 209. torney-General's decision." error. 102 CRIMINAL INFOBMATIONS. A form of certificate will be found in the Appendix ; also form of statement of some particular ground of error to be engrossed on copy of the certificate for service. Transcript of The plaintiff in error, withiu twenty days after the allowance of record the writ of error, shall make a transcript of the record on parch- ment, and lodge it at the Crown Office, K the record be not transcribed within such time, the defendant in error may move the Court of Appeal for leave to sign judgment of non prosequitw at the Crown Office (x). When the transcript has been lodged it shall be annexed to the writ of error, and (on a return made and signed by the Lord Chief Justice of England) delivered into the Court of Appeal by the proper officer at the Crown Office (y). Assignment of The plaintiff in error is, within eight days after delivery of the record into the Court of Appeal, to assign errors thereon (?). The plaintiff in error need not assign errors in person (a). He must do so by his solicitor or in person, and if in person and in custody he must be brought up iuto Court for that purpose upon a writ of habeas corpus (J). If the plaintiff in error assigns errors in person, and is in custody, he shall be brought into Court, and assign errors, and move that counsel may be assigned to him, and shaU then deliver to the officer of the Court in writing the assignment of errors to be filed at the Crown Office (c). Upon delivery of the assignment of errors under the last pre- ceding rule, an order of Court shall be drawn up to commit the plaintiff iu error to the Queen's Prison, until the decision of the Court upon the writ (<£). If the plaintiff iu error assigns errors by his solicitor or ia person and is not in custody, he may do so by delivering the assignment of errors iu writing to be filed at the Crown Office (e). A form of assignment of errors will be found in the Appendix. Order to join An Order for the Attorney-General or Queen's coroner and attorney to join ia error within eight days after service may be (as) C. 0. B. 210. (6) C. 0. E. 187. (H) Id. 211. (c) Id. 189, 214. (z) Id. 212. (d) jd, 190, 214. (a) Id. 191. 214 \(e) Id. 188, 214. lu error. PROCEEDINGS SUBSEQUENT TO CONVICTION. 103 drawn up at the Crown Office and be served, with a copy of tne assignment of errors on the prosecutor or his solicitor (/). The order may be drawn up of course without motion {g). If no joinder be filed within eight days, the plaintiff in error Absence of being personally present in Court, upon a certificate of notice having ■''"° "' been given to the Attorney- or Solicitor-General, signed by him, or ' on his behaK, of such intended application, may move the Court for an order nisi for judgment ; and upon an affidavit of service of the order nisi upon the officer of the Court from whence error is brought, the Court may examine the record and give judgment of reversal, or such judgment as the Court from which error is brought ought to have done Qi). If no joinder be filed within eight days, and the plaintiff in error be in custody, he may be brought into Court by order if he be in the Queen's Prison, or by habeas corpus if elsewhere, and the plaintiff in error, or his counsel, may then move, on an affidavit of service of the order to join in error, and that on search made at the Crown Office it appears there is no joinder filed, for judgment for the plaintiff in error, and for the prisoner's discharge (i). A form of entry of judgment for want of joinder in error will be found in the Appendix. Joinder in error is to be filed at the Crown Office by the Filing joinder, prosecutor, and a copy served on the plaintiff in error or his solicitor (k). Upon filing of the joinder in error the case shall be put into the list of appeals for argument, upon application of either party {I). A form of joinder in error will be found in the Appendix. Two paper books for the use of the judges are to be delivered by Paper books, the plaintiff in error at the Crown Office two days before the day appointed for hearing (m). Where a writ of error has been brought by the defendant and Recognizance, not by the Attorney-General, the defendant on the indictment, on obtaining his writ of error or consent for an appeal to the House of Lords, shall have the execution of the judgment stayed, and (/) C. O. R. 102, 214. {h) 0. 0. R. 195, 214. (g) Id. 252 (c). Q) Id. 213. (h) Id. 193, 214. (to) Id. 197. (0 Id. 194, 214. 104 CRIMINAL INFORMATIONS. receive back the amount of any fine levied upon him upon the judgment, and further, if in custody, shall be entitled to be dis- charged from imprisonment on entering into a recognizance with two sufficient sureties to prosecute the writ of error in the Form No. 127 before a judge of the High Court, or justice of the peace of the county, borough, or place where the defendant may be in custody : the bail to be justified in the usual manner, on twenty- four hours' notice to the prosecutor, or on such other notice as the judge, or justice of the peace, may order ; provided that in the case of any defendant under legal disability, it shall be sufficient if two persons to be appointed to be approved of by such judge or justice shall become bound by such recognizance on behalf of such defendant (n). Every such recognizance shall be filed at the Crown Office, and the Queen's Coroner and Attorney, or the Master of the Crown Office, shall make out and deliver a certificate sealed with the seal of the office that such recognizance is duly filed of record, which certificate shall be a sufficient warrant to the gaoler having the custody of the plaiutiff in error, to discharge him out of custody and for the repayment of any fine which may have been imposed by the Court by the person having in his possession the whole or any part of the fine levied in execution of such judgment. Pro- vided that no person who shall have received any such money and have paid it over to any other person according to the course of the Exchequer shall be liable to repay to the defendant any part of the money so paid over (o). The form of recognizance wUl be found in the Appendix. Estreating. If the plaintiff iu error shall make defatdt in prosecuting the writ of error with effect or in any other way break the conditions of his recognizance, the Court may estreat the recognizance in a summary way without issuing a writ of scire facias, and order the writ of error to be quashed without any argument thereon, and in every such case the plaintiff in error shall forthwith be liable to execution upon the judgment (p). Notice of Whenever any writ of error shall be brought for the reversal of application for . , . . . judgment of any judgment in misdemeanor and error shall be assigned thereon, l-evprsal. (n) C. 0. E. 199, 214. (o) C. O. R. 200, 214. (j>) Id. 201, 214. PROCEEDINGS SUBSEQUENT TO CONVICTION. 105 no judgment of reversal shall be entered either for want of a joinder, or otherwise, without the order of the Court in which such writ of error shall be pending, pronounced in open court, and upon a certificate, signed by or on behalf of the Attorney- or Solicitor- General, that notice has been given to one of them of such intended application ; and if there be no joinder in error such Court may proceed to examine the record in error, and give such judgment thereon as the Court from which error is brought ought to have done, although no joinder in error may have been filed {q). Forms of entry of reversal and of affirmance of judgment on writ of error will be found in the Appendix. "Whenever the judgment against a plaintiff in error shall have Effect of re- been for the payment of a fine, and imprisonment until such fine fineThere be paid, either with or without imprisonment for a certain time, "^y"*!"" '^ and the plaintiff in error shall have paid the fine, or the same or any part thereof shall have been levied and shall have been received back under the provisions of rules 199 and 200, and the judgment upon writ of error brought shall be affirmed, the plaintiff in error shaU not be entitled, by reason of such payment as aforesaid, to be discharged from imprisonment, notwithstanding the expiration of any certain time of imprisonment for which the original judgment shall have been given, until the fine shall be again paid (r). When a recognizance on bail in error shall have been estreated, Warrant to or judgment been affirmed, or writ of error been quashed, on an imprison, affidavit or a certificate of the proper officer of the Court to any such effect, and that default has been made for the space of four days in rendering the plaintiff in error to prison, a judge at Chambers may issue his warrant to cause the defendant to be apprehended and imprisoned pursuant to and in execution of the judgment, on an ex parte application by the prosecutor (s). Whenever a plaintiff in error shall be committed by the Court How duration in execution of the judgment given against such plaintiff in error, ment^s'tolbe and whenever a plaintiff in error shall, by virtue of any warrant or '■«'^^<"'^<'- in other manner, be rendered to prison in execution of such judg- ment, the imprisonment (if imprisonment shall not have commenced under such execution) shall be reckoned to begin from the day (j) C. 0. B. 202, 214. (r) 0. 0. B. 203, 214. (s) C. 0. R. 204, 214. 106 CRIMINAL INFOEMATIONS. Payment of costs of apprehension, when such plaintifif in error shall be in actual custody in the prison in which he may have been adjudged to be imprisoned under such judgment ; and if the plaintiff in error shall have beeh discharged from imprisonment on giving bail in error, as in these rules before mentioned, such plaintiff in error shall be imprisoned for such further period in the same prison as with the time during which such plaintiff in error may already have been imprisoned under such execution shall be equal to the period for which he was adjudged to be imprisoned as aforesaid (t). Whenever default shall have been made in rendering a plaintiff in error to prison in execution of a judgment for misdemeanor, and a warrant shall have been issued against such plaintiff in error to enforce such render to prison, according to the provisions of these rules, such plaintiff in error shall be liable to pay the costs and charges of such render; and if the prosecutor shall, before the expiration of the plaintiff in error's imprisonment, have caused the amount of such costs and charges to be ascertaiaed by one of the masters at the Crown Of&ce, and shall have left with the said plaintiff in error, and with the keeper of the prison or his deputy, a certificate under the hand of such master, of the amount of such costs so ascertained, then the said plaintiff ia error shall not be discharged out of custody until such costs and charges shall have been paid, or until an order for such discharge has been made by a Court exercising bankruptcy jurisdiction (u). The plaintiff ia error need not have counsel assigned to him, or, if in custody, be present at the hearing of the case or when judgment is given, unless the Court shall otherwise order (x). Upon the judgment of the Court of Appeal being pronoimced in favour of the plaintiff in error, the Court may either pronounce the proper judgment, and order his discharge if in custody, or remit the record to the Queen's Bench Division, to be dealt with accord- ing to law (y). Houseof Lords. By the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), s. 11, error to the House of Lords was abolished, and an appeal by petition substituted for it (s. 4), which lies from every order or judgment of Her Majesty's Court of Appeal in England or of any Judgment of Court of Appeal. (0 C. 0. R. 205, 214. (tt) Id. 206, 214. (a;) C. 0. R. 191, 214 (y) Id. 21&. PROCEEDINGS SUBSEQUENT TO CONVICTION. 107 Court in Ireland from which error or an appeal at or immediately before the commencement of this Act lay to the House of Lords by common law or by statute (s. 1). By s. 10 an appeal shall not be entertained by the House of Lords without the consent of the Attorney-General or other law of&cer of the Crown in any case where proceedings in error or an appeal could not previously have been had iu the House of Lords without the fiat or consent of such of&cer. A form of appeal by petition to the House of Lords will be found in the Appendix. The Standing Orders of the House of Lords regulating the pro- cedure on appeals will also be found in. the Appendix. PART II. QUO WAEEANTO INFORMATIONS. CHAPTEE 1. Origin of the Jurisdiction. PAGE Origin of jurisdiction .... 108 Writ of quo warranto . . . 108 Change from writ to information . 109 Difference between ancient and modern procedure .... 110 Writ of qm warranto. Origin of juris- The jurisdiction in quo warranto is, beyond doubt, of common law origin, notwithstanding the very early statutes on the subject which some persons have regarded as creating it. The ancient writ of quo warranto (now obsolete) was, according to'Blackstone (a), "in the nature of a writ of right for the king, against him who claims or usurps any oflB.ce (6), franchise or liberty, to inquire by what authority he supports his claim, in order to determine the right." It lay also "in case of non-user or long neglect of a franchise or mis-user or abuse of it ; being a writ commanding the defendant to shew by what warrant he exercises such a franchise, having never had any grant of it, or having for- feited it by neglect or abuse " (c). (a) Book iii. c. 17, s. 5 ; Finch, L. 322 ; 2 Inst. 282. (b) The necessary quahfications of this general statement will be pointed out, post, pp. 127 seq. (c) Blackst., ubi supra. " A corpo- rate franchise is a species of incorporeal hereditament, in the nature of a special privilege or immunity, proceeding from the sovereign power, and subsisting in the hands of a body politic, owing its origin either to express grant, or to prescription which presupposes a grant. It loUows, therefore, that the sovereign power has the right at all times to inquire into the method of user of such franchise, or the title by which it is heldi and to declare a forfeiture for mis-user or non-user, if suflScient cause appears, or to render judgment of ouster if the parties assuming to exercise the franchise have no title thereto. And it may be stated as a general rule, that whenever there has been a mis-user or non-user of cor- ORIGIN OP THE JURISDICTION. 109 " The writ originally issued out of Chancery, and was made return- able before the King's Justices at Westminster {d) ; but afterwards only before the justices in eyre, by virtue of the statutes of quo warranto 6 Edw. 1, c. 1 and 18 Edw. 1, st. 2 (e). Since those jus- tices gave place to the king's temporary commissioners of assize, the judges on the several circuits, the writs of quo warranto (if brought at all) had to be prosecuted and determined before the King's Justices at Westminster (/). The judgment on the old writ of quo warranto being final and Change from writ to in- formation. porate franchises, which are of the very essence of the contract between the sovereiga power and the corporation, and the acts complained of have been repeated and wilful, they constitute just ground for a forfeiture in proceed- ings upon an information " (High's Ex- traordinary Ren:iedies, 515). (d) Old Nat. Brev. fol. 107, ed. 1534. (e) According to Coke (2 Inst. 280) the Act of 6 Edw. 1 (known as the Statute of Gloucester) was passed to re- medy certain grievances caused by the king, having, when wanting money, pre- viously yielded to the evil counsel of certain innovatores who persuaded him that few or none of the nobility, clergy, or commonalty that had franchises of the grants of the king's predecessors had right to them, for that they had no charters to shew for the same, for that in truth most of their charters, either by length of time or injury of wars and insurrections, or by casualty, were either consumed or lost ; whereupon (as commonly new inventions have new ways) it was openly proclaimed that every man that held those liberties or other possessions by grant from any of the king's progenitors, should before certain selected persons thereunto ap- pointed shew JMO Jure, quove nomine ill' retinererit, ^Ppl^^d to a claim to a corporate office which had no existence. It was unnecessary to decide the point ; but Pollock, C.B., and Bramwell, B., were very strongly of opinion that a person was equally within this statute whether he intruded into a real cor- porate office or claimed to exercise an office which in reality did not exist; and the other members of the Exchequer Chamber appear to have taken the same view (y). Littledale, J., had expressed a similar opinion in a former case : " A man may be liable to a quo warranto information for acting as if he were an officer, if the (o) E. V. WalKs, 5 T. R. 375. (y) Lloyd v. The Queen, 2 B. & S. (p) R. V. McKay, 5 B. & C. 640. 656 ; 31 L. J. Q. B. 208. The in- (2) B. V. Sichardson, 9 Bast, 469. formation was for exercising the office (r) E. V. Backhouse, 7 B. & S. 911. of mayor of Bala, and, with two other (s) B. V. Grimshaw, 5 D. & L. 249. persons, the powers and privileges of a (t) B. V. Hall, 1 B. & 0. 237. body corporate, by the name and de- (u) B. V. Williams, 1 Burr. 408. scription of the mayor and baUiffs of (js) B. V. Orimshavi, 5 D. & L. 249 ; the borough of Bala. 17 L. J. Q. B. 19. VAEIOUS KINDS OP INPOEMATIONS. 117 office, though not existing in the particular instance, is one known to the country at large, and he pretends to exercise it " (z). The Act of 32 Geo. 3, c 58, which applies also only to corporate 32 Geo. 3, c. 58. offices and franchises of a corporate nature in corporate places (a), was passed to limit the time for taking proceedings ; and it fixed the period at six years. But the whole of this Act has been re- pealed by s. 5 (Sched. I.) of the Municipal Corporations Act, 1882 (J), as to all boroughs within the latter Act. Sect. 225 of the Act of 1882 reduces the time for applying for a quo warranto information agaiast a person claiming to hold a corporate office to twelve months from the time when the defendant became dis- qualified after election ; and s. 87 substitutes another remedy in lieu of information, in cases of disqualification existing at the time of election. There are certain cases in which, though the procedure by quo what infoma- ,.«...., , , ., tions can be warranto miormation is the proper course to pursue, yet a private gjed only by relator will not obtain leave to exhibit one. *?^ Attomey- GeneiaJ. An information against a corporation as a body can only be filed by the Attorney-General ex officio (c). ■' If any number of individuals," says Lord Tenterden, " claim to be a corporation without any right so to be, that is an usurpation of a franchise ; and an information against the whole corporation as a body, to show by what authority they claim to be a corporation, can be brought only by and in the name of the Attorney- General" (^). In B. V. The Corporation of Carmarthen (e) an application for an information against the corporation as a body having been refused to a private relator on the ground just mentioned, the Court acceded to an application on his behalf for rules agaiast the several individual members of the corporation; but in the sub- sequent case of B. v. Ogden (/) the Court discharged a single rule (2) B. V. Thomas, 8 A. & E. 188. then, 2 Burr. 869 ; B. v. Ogden, 10 See the case cited from The Times, B. & 0. 230 ; S. v. Taylor, 11 A. & E. post, p. 221. 949. (a) B. V. Bichardson, 9 East, 469 ; (d) B. v. Ogden, uhi supra ; see also B. V. McKay, 5 B. & 0. 640 ; B. v. B. v. Trevmen, 2 B. & Aid. 482; Attwood, 4 B. & Ad. 481. (e) Uhi supra. (J) 45 & 46 Vict. c. 50. (/) Uhi supra. (c) jB. v. Gorporation of Carmar- 118 QUO WAERANTO INFORMATIONS. which had been obtained against five individuals by name. Lord Tenterden using the language just cited {j)). Nor will a private relator be allowed to question the validity of the corporation's charter by means of a quo warranto information against one of its officers (A). " To attack a charter granted by the Crown," said Lord Denman, C.J., " through an officer appointed under it, is a new proceeding ; and I think we ought not to call on the officer to defend the act of the Crown in granting the charter ;" and Patteson, J., pointed out the distinction between the case in which a corporation was acknowledged to exist, but the right to an office withia it only was called in question, and that in which the charter itself was called in question. It was held, however, in a later case to be no valid objection to the proceeding by an in- dividual relator against a particular member (the mayor) of a corporation that the defect charged against the defendant's title would apply equally to that of every other member of the corpo- ration {%). In this case the two earlier cases of i2. v. Corporation of Carmarthen and R. v. Ogden were distinguished, the application in the former case being in terms against the corporation itseK, and in the latter case against a number of individuals for acting as a corporation {k). It was attempted in one case (7), by quo warranto against the mayor, to attack the validity of a charter which, it was alleged, had not been granted on the petition of a majority of inhabited house- holders in the borough ; but the Court refused a rule, on the authority of B. v. Taylor, above referred to. The general rule was given a still wider application in the more recent case oiR. v. Staples (m), being extended to the case of bodies declared to be bodies corporate by Act of Parliament ; e.g., local boaras of health. " The principle," said Cockburn, J., " which has been laid down as to granting an information in the nature of a qiw warranto in the case of a corporation under charter from the {g) Bayley, J., added the farther Qi) B. v. Taylor, 11 A. & E. 949. reason that the franchise usurped was (?) B. v. White, 5 A. & E. 613. ol a mere private nature, not connected (k) See also Lloyd v. Beg., 31 L. J. with puhlic government. See also on Q. B. 209. tliis point per Patteson, J., in B. v. Q) B. v. Jones, 8 L. T. N. S. 503. White, 5 A. &. E. 618. See and dis- (m) 9 B. & S. 928, note (a). tinguish B. v. Parry, 6 A. & E. 810. VARIOUS KINDS OP INFORMATIONS. 119 Crown applies to this, which is an analogous case. When a body, whether corporate or not, is created by the Legislature for public purposes, and the statutory powers of that body are usurped, we should require the intervention of the Attorney-General " (n). In refusing an information for making a private rabbit-warren, Lord Hard wi eke said : " We do grant these informations for public usurpations on the Crown, but never for private usurpations of franchises ; but the way is to apply to the Attorney-General in such cases. So I remember my Lord Barrington's case, when I was Attorney-General, who had set up a fair, and the Court was applied to for one of those informations, but refused it, and directed an application to the Attorney-General, and they did accordingly, (sic) and I granted it ; but I would not by this be understood to give an opinion that a quo warranto lies for this, as if it was a free warren" (a). It is doubtful whether a private relator could obtain a quo warranto information for the holding of a fair ( p). The most famous historic instances of quo warranto informa- tions filed ex officio by the Attorney-General are those filed in the reign of Charles II. against the various corporations of the country which were obnoxious to the Crown, beginning with the City of London. Two misdemeanors were alleged against the corpora- tion of the city, viz. (1), the imposition, by virtue of an ordi^ nance or bye-law, of certain tolls on goods brought into the city markets, and (2) their petition to the king for the summoning of parliament and the publication of the petition throughout the country ; and a judgment of forfeiture was obtained from the King's Bench. This was followed by similar judgments obtained in numerous other cases from the judges of assize. The notorious Jeffreys in particular "made all the charters, like the walls of Jericho, fall down before him, and returned laden with surren- ders, the spoils of towns " (q). No less than eighty-one quo warranto informations are said to have been filed against municipal corpora- tions during the reigns of Charles II. and James II. The judgment against the corporation of the City of London was reversed as illegal and arbitrary, by 2 W. & M. c. 8 (sess. 1) s. 2, (n) Id. 929. O) See B. v. Marsden, 3 Burr. 1812. (o) Ibbotson's case, Gas. temp. Hard- (j) Nortli, Examen. 626. wicke, 261. 120 QUO WARRANTO INFORMATIONS. and it was declared and enacted (s. 3) that the mayor and com- monalty and citizens should for ever after continue a body corporate and without any seizure or forejudger of their franchises, liberties, or privileges on pretence of any forfeiture or misdemeanor (r). (r) " In America it is believed tliat no instances can be found where the charter or franchises of a municipal corporation have been forfeited or seized upon proceedings in quo war- ramto, on account of misconduct of corporate ofl&cers. The privileges and franchises granted by charters to muni- cipal bodies,under the American system, are deemed rather for the benefit of the people of the municipality than for its ofBcers or for the corporation as such. Hence the Courts will not permit usur- pations on the part of municipal offi- cers, or contests between such officers, as to their relative functions and powers to be used as the foundation for proceed- ings in qvo warranto to forfeit the fran- chises of the municipality " (High, § 680). ( 121 ) CHAPTEE III. In what Cases Gkanted. General rule as to cases in whicli quo warranto lies .... 121 Discretionary nature of jurisdic- tion 122 Quo warranto distinguished from mandamus 122 PAGE OfEces witHn general rule . . 123 Other franchises 126 Offices not within the rule . . 127 Claim to office without user . . 131 Proceedings to which quo warranto does not apply 132 The procedure by guo warranto information is appropriate wherever General rule, there has been an usurpation of any office, whether created by charter alone or by the Crown with the consent of Parliament; provided the office be of a public nature and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others {a). Before the case of Barley v. The Queen (6) there had been a conflict of judicial opinion on the question whether an information in the nature of a quo warranto would lie for the usurpation of an office not created by charter but by Act of Parliament. The House of Lords in that case adopted the opinion of the judges delivered through Tindal, C.J., viz., that there is no difference between an office created by charter and one created by Act of Parliament : in both cases the assent of the Sovereign is necessary ; and whether this is given by charter or by assent to an Act of Parliament passed by both branches of the Legislature is altogether immaterial (e). The rule, as previously understood, was that quo warranto was not the remedy unless there was an usurpation actually upon the Crown. This has now been altered, and a rule of much less defi- nite character, and one more difficult of application, has been substituted (d). (a) Per Tindal, C.J., in Darley v. The Queen, 12 01. «& ¥. 541, 542. {V) Ubi supra. (c) Fer Lord Lyndhurst, p. 543. (d) See per Coleridge, J., in B. v. Quardims of St. Martin's, 17 Q. B. 162. 122 QUO WARBANTO INFORMATIONS. Grant or refusal discretionary. Distinction The procedure has been most frequently employed to determine disputed questions of right to municipal offices and franchises. It may also be had recourse to in case of non-user or long neglect of a franchise, or mis-user or abuse of it («). The grant or refusal of a quo warranto information is in the discretion of the Court. In exercising this discretion regard will be had to the circumstances of each particular case. , " It would be very grievous," said Lord Mansfield (/), " if the information should go of course ; and it would be a breach of trust va. the Court to grant it as of course. On the contrary, the Court are to exercise a sound discretion upon the particular circumstances of every case" {g). The distraction between the class of cases in which the appro - Mcwranio^and priate remedy is by qybo warranto, and that in which the procedure mandamus, ^y. jn^ndamus is to be adopted, cannot be too clearly kept in mind. AVlierever the office is full de facto, the proper method of pro- ceeding is by quo warranto to oust the occupant, if he is not in possession de jure. And the office is full de. facto, though the election to it was illegal, provided it was a real and not merely a colourable election. If, on the other hand, the election was merely colourable, so as to be really no election at all, it does not confer even a de facto possession ; and the remedy of the person ousted by it is not quo warranto, but mandamus (K). "We may assume," said Wightman, J., in Frost v. Mayor of Chester (i), " that the office is not full de jure ; and for the pur- pose of the present argument we may assume that the election has been holden in a way not warranted by law, and is therefore bad, and such as could not be supported on quo warranto. But the office is not the less full de facto, and the party elected has been (e) 3 Bl. 0. 17. In an old case, the procedure was adopted to try the right of the Master and Wardens of Trinity House to take sand in the Thames for ballast under a grant from the Crown. See Reg. v. Trinity House, Sid. 86. (/) R.y. Wardroper, 4:'BuTT. 1964. (jf) See also E. v. Dawes, 4 Burr. 2022, and per Lord Kenyon, C.J., in .B. V. Sargent, 5 T. R. 467; B. v. Parry, 6 A. & E. 810. (h) See B. v. Mayor of Colchester, 2 T. R. 259 ; B. v. Mayor of York, 4 T. R. 699; B. v. Bankes, 3 Burr. 1454; B. V. Mayor of Oxford, 6 A. & E. 349 ; Frost v. Mayor of Chester, 5 E. & B. 531 ; B. V. Mayor of Winr Chester, 7 A. & E. 215 ; B. v. Mayw of Leeds, 11 A. & E. 512; B. v. Bicketts, 3 N. & P. 151. («•) 5 B. & B. 539 ; 25 L. J. Q. B. 61. IN WHAT CASES GRANTED. 123. admitted. I think, therefore, that a plenarty has been shown, and that the question can be tried only by quo warranto." The distinction will be further exemplified when dealing with " Mandamus," post. The following have been held to be public offices within the What are general rule stated at the beginning of this chapter : that of judge wHhin'the^' of county courts Qc) ; that of mayor, or alderman Q) ; that of justice "'"'^^ ™^®' of the peace of a borough (m), or of a liberty, lordship, or manor {n)\ recorder ( o) ; coroner, whether of a borough or county (j)) ; sheriff of a borough {q) ; bailiff of a borough, although not a corporate office (r), or bailiff of a borough and manor, being as such pre- scriptive officer of the court leet (s), or bailiff of a ville {t) ; town councillor (m) ; portreeve of a borough and manor, who, as such, was returning officer of the borough («) ; bridge master of a borough {y) ; master and councillor, commonalty steward, or assis- tant of a borough (z) ; constable of a borough {a), township (&), or parish (c) ; chief constable of a hundred {<£), or wapentake (e) ; governor, and also bailiff of the Company of Conservators of the Qc) E. V. Parham, 13 Q. B. 858. Q) R. V. McGowan, 11 A. & B. 869; Lloyd v. The Queen, 31 L. J. Q. B. 209 ; E. v. Bradley, 3 E. & E. 634 ; E. V. Dixon, 15 Q. B. 33 ; E. v. Harvey, 3 Q. B. 475. (m) E. V. Patteson, 4 B. & Ad. 9 ; E. V. , 2 Camp. 363. (m) E. v. Mashiter, 6 A. & El. 153. (o) TucJcer v. E. 2 Bro. Parly. Cas. 304 (turning on a point of ancient pleading) ; E. v. Mayor of Colchester, 2 T. E. 259 ; E. v. Sandys, 2 Barnard. 301 ; E. V. Marshall, 2 Chitt. 370. (p) E. V. Grimshaw, 10 Q. B. 747 ; E. V. Taylor, 11 A. & E. 949 ; E. v. Sayer, 5 T. E. 376, note ; E. v. Dip- lock, 10 B. & S. 174 ; L. E. 4 Q. B. 549. (q) E. V. Whitwell, 5 T. E. 85. (r) E. V. Eighmore, 5 B. & Aid. 771 ;. E. V. Sargent, 5 T. E. 466 ; E. V. McKay, 4 B. & C. 351 ; E. v. Duhe ofEichmond, 6 T. E. 560. (s) E. V. Bingham, 2 East, 308. (t) E. V. Boyles, 2 Str. 836 ; 2 Lord Eaym. 1559 ; E, v. Thompson, 5 T. E. 376, note. (m) See for modern examples, E. v. Ireland, L. E. 3 Q. B. 130 ; E. v. Old- ham, 10 B. & S. 193 ; E. v. Owens, 2 E. & E. 86 ; E. v. Tart, 1 E. & E. 618 ; R. V. Frauds, 18 Q. B. 526 ; E. V. Hammond, 17 Q. B. 772; E. v. Coward, 16 Q. B. 819. (a;) E. V. Mein, 3 T. E. 596; see also E. V. Eichards, 9 Bast, 469. {y) B. V. Downes, 1 T. E. 453. (z) 2 Gude, 278 ; 6 Went. 81 ; 2 Gude, 255. (a) E. V. Wallis, 5 T. E. 375, 376, note. {b) E. V. lane, 5 B. & A. 488 ; E. V. Booth, 12 Q. B. 884. (c) E. V. Goudge, 2 Str. 1213. ((^) 5. V. Eagsdcde and Baynes, 5 T. R. 376, note. (e) E. V. TFai/iinsow, 10 A. &. E. 288. 124 QUO WAREANTO INPOEMATIONS. Great Level of the Fens (/); bailiff of a court leet (g); steward of a court leet (h) ; chief clerk or deputy clerk of a court leet (i) ; registrar and clerk of a court of requests (k) ; clerk of a county court (I) ; high bailiff of a county court (m) ; gaoler or governor of a borough gaol (n) ; freeman (o), or burgess (p), or free bur- gess (q), or capital burgess (r), or a person claiming to vote by virtue of a burgage tenement (s) ; member of a local govern- ment board (t) ; a commissioner under a local improvement Act (u) ; conservator of a fishery district (x) ; member of a school board (y) ; member of the General Council of Medical Education under 21 & 22 Vict. c. 90 (z) ; clerk of the peace (a) ; clerk to the board of guardians of a union (b) and superintendent registrar of a union (c) ; vestry clerk of a parish or township (d) ; master of a city company, as that of Merchant Taylors' Company (e), or the Coopers' Company (/ ), or the Patten Makers' Company (c/) ; also master of the Company of Tailors at Lichfield (h) ; assistant of the Saddlers' Company (i) ; treasurer of the public money of the 1 (/) B. V. Bedford and Others. Barnard. 242. (g) B. V. Bingham, 2 Bast. 308. (h) B. V. Eulston, 1 Str. 62L (i) B. V. Aythrop, 2 Lord Keny. 17. (k) B. V. Hall, 1 B. & C. 237. Q) B. V. Owen, 15 Q. B. 476 ; 19 L. J. Q. B. 490; B. v. Edye, 12 Q. B. 936. (to) B. v. Dyer, 13 Q. B. 851. (n) B. V. Lancaster, 10 Q. B. 962. (o) B. V. Dawes, 4 Burr. 2022 ; B. V. Pepper, 7 A. & E. 745 ; B. v. Sill, 5 T. R. 376, note. (p) B. V. Pa/rhyn, 1 B. & Ad. 690; B. V. Warlow, 2 M. & S. 75 ; B. v. Knight, 4 T. R. 419 ; B. v. Hudson, 20 L. J. Q. B. 219. (j) B. V. Slyfhe, 6 B. & 0. 240 ; B. V. Bond, 2 T. R. 767 ; B. v. Tate, 4 East, 337. (r) 2J. V. Bermey, 2 B. & A. 684 ; B. V. Lawrence, 2 Chitt. 371 ; B. v. Trdawney, 3 Burr. 1615 ; £. v. Bond, 6 D. & R. 333. (s) See Horsham Case in note to 3 T. R. 599. (0 5. V. Backhouse, 7 B. & S. 911; 13 W. R. 846 ; B. v. iJjjipom, 34 L. J. N. S. 444 ; JJ. V. Ward, L. R. 8 Q. B. 210 ; B. V. OoUins, L. R. 1 Q. B. D. 336 ; 2 Q. B. D. 30 : B. v. Jfor^am, L. R. 7 Q. B. 26 ; B. v. CooJara, 56 L. J. M. C. 33. (m) JJ. v. Eddowes, 1 E. & E. 330. (x) Power V. Lucas, 11 Ir. Rep. 0. L. 44. (y) iJ. V. Turmine, L. R. 4 Q. B. D. 79, (z) iJ. V. Storrar, 2 E. & E. 133. (a) B. V. Hay ward, 2 B. & S. 585; B. V. BusseU, 10 B. & S. 91. (i) if. V. St. Martin's-in-the-Fidds, 17 Q. B. 149; 20 L. J. Q. B. 423; B. V. Oriffiths, 17 Q. B. 164. (c) B. V. ^casern, 2 B. & S. 795. Id) B. V. ^»ri!.y, 1 B. & S. 647. (e) B. V. ^«wood, 4 B. & Ad. 481. (/) 6 Went. Free. 63. (g) B. v.Bumstead, 2 B. & Ad. 699. (h) B. V. Wakelin, 1 B. & Ad. 50. (0 B. V. ^isAer, 4 B. & S. 575. IN WHAT CASES GRANTED. 125 county of the city of Dublin (k) ; commissioners for paving the town of Taunton, under an Act of 9 Geo. 3, empowering them to impose rates and taxes on the inhabitants (I). In the case of trustees under a private Act for enlarging and regulating the port of Whitehaven, an information was granted on the broad ground that, where any new jurisdiction or a public trust was exercised without authority, informations had constantly been granted (m). Member of Burial Board. — Whether a member of a burial board comes within the rule was incidentally considered in B. v. Overseers of South Weald (n) ; but it was unnecessary to decide the question. Poor Law Guardians. — As to poor-law guardians, judicial opinion has fluctuated. In an anonymous case, referred to in B. V. Beedle (o), a q%u> warranto information was granted against a party claiming to act as guardian of the poor in Exeter, under 28 Geo. 3, c. 76. But in the subsequent case of B. v. Bamsden (p) the Court discharged a rule which had been granted against certain governors and directors of the poor of the parish of St. Andrew, Holborn ; Littledale and Patteson, JJ., being of opinion that the information did not lie ; Lord Denman entertaining much doubt. The question came again to be considered in B. v. Carpenter (q), when the Court felt bound by its previous decision in B. v. Bamsden. The same thing happened in the matter of Aston Union (r). But the authority of these cases was, in the opinion of Patteson, J. (s), shaken by the decision of the House of Lords in the case of Barley v. The Queen (t). And more recently, in B. v. Hampton (u), the Court (Cockburn, C.J., Mellor, Lush, and Shee, JJ.) held that a quo warranto does now lie for the office of guardian of the poor. Cockburn, C.J., after referring to Barley v. The Queen, which must now be taken to be the starting-point in considering whether any office is within the scope of a q^w warranto information, said : " First, the of&ce of guardian of the poor is created by statute, and, (K) Barley v. The Queen, 12 C. & F. (?) 1 N. & P. 773. 520. (0 6 A. & E. 784. Q) R. V. Badcoch, cited 6 East, 359. (s) B. v. Guardians of Si. Martin, (m) B. V. Nicholson, 1 Str. 299. 17 Q. B. 161. (n) 5 B. & S. 407. (f) Vbi supra. (o) 3 A. & E. 476. (m) 6 B. & S. 923. See also B. v. (p) 3 A. & E. 456. Bawlins, L. B. 14 Q. B. D. 325. 126 QUO WABRANTO INFOKMATIONS. seeing that the Crown is an assenting party to every Act of Parlia- ment, it so far emanates from the Crown. Secondly, it is an office of a public nature, inasmuch as the management of the poor is a matter of public interest, so far as the large districts created for the purposes of the poor law are concerned. The third question is whether it is an office of a permanent character. That term is applied to an office (sic) in contradistinction to one from which a person is removable at pleasure. And in the cases on this point the criterion has always been whether the person was removable at pleasure, whatever the period of the office might be. Was, then, this an office of such a nature that the guardian, during the con- tinuance of the office, though appointed only for a year, is not removable at the pleasure of any one ? The board of guardians is a permanent body, and though part goes out of office every year, and is renewed de anno in annum, yet, unless in case of gross misbehaviour, there is no power to remove them." The power given to the Poor Law Board by s. 8 of 5 & 6 Vict, c. 57, to inquire into the validity of the election of a guardian was held not to take away the jurisdiction of the Court, though, as re- marked by Mellor, J., in his judgment, if that board were deahng with the question, the Court in the exercise of its discretion might refuse a writ of qtoo warranto. Other Informations have also been granted for holding a court of record within a charter borough, and presiding therein in the absence of the bailiffs, defendant not being one of them (x) ; and for holding a court leet after long disuser, without shewing a title from the original grantor (y), the Court tliinking, in the latter case, that there was ground for suspecting a defect in title, and that the matter should therefore be tried by a jury ; also for setting up a new office (bailiff of a ville) relating to the administration of public justice (z) ; and for claiming to return elisors of a borough or manor (a). In Coke's Entries we find instances of quo vjarranto informa- tions for usurping the franchises of a court leet, borough court, election of bailiffs, holding a market and taking toUs (p. 527), or a fair (p, 544) ; for claioa to waifs, estrays, and the goods of felons (a;) B. V. Williams, 1 Burr. 402. (z) B. v. Boyles, 2 Str. 836. (y) B. V. Bridge, 1 W. Bl. 46. (a) B. v. Hawkins, 5 T. R. 376, note. francUses. IN WHAT CASES GRANTED. 127 (pp. 528, 544, 549) ; for a claim of correction of others, as to have the assize of bread and beer, weights and measures (ib. also p. 551) ; to have a prison, power of arresting, &c. (p. 528), and to punish fore- stallers, regraters, and ingrossers (ib.), a claim of fines and amercia- ments, &c. (pp. 551, 561) ; of a park, warren, &c. (p. 561) ; a claim of exemption from the government of the mayor, justices. Sec, (p. 528). A quo warranto -would also lie for a claim to wreck of the sea (&). A rule was granted against a person for claiming an exclusive ferry over the Thames at a particular place ; but it was discharged on its being shewn that he only took money of passengers, and set up no exclusive right (c). In an old case (temp. 10 Will. 3) an information was granted against the mayor and aldermen of Hertford to shew by what authority they admitted persons to be freemen of the corporation who did not inhabit in the borough (d), a case much commented on without approval in the later case of B. v. Marsden (e), in which Lord Mansfield thus speaks of it : " That case goes upon the sup- position that there was no other way to try it, nor to redress the parties concerned. So does the case in Strange, i.e. B. v. Beynell" (/). The cases which have been held not to come within the general Offices not rule mentioned at the beginning of this chapter will now be noticed ; general rule, but in dealing with them we should bear in mind the remark of Tindal, C.J., in Barley v. Tlxe Queen {c/), that " the cases in which there has been a refusal to allow an information to be filed are not necessarily authorities against the validity of an information when filed, because in the cases of refusal the Courts may have proceeded on the ground that the circumstances were not such as to caU for their interference." Overseers and Churchwardens. — Overseers have been held not to come within the rule (A), on the ground that their functions are (J) 2 Eoll. Abr. 205. (e) 3 Burr. 1812, 1818. (c) B. v. Reynell, 2 Str. 1161. (/) TJhi supra. See the cases cited Whether an information can in such a from The Times, post, p. 221. case be obtained by a private relator is (g) 12 C. & F. 538. questioned in B. v. Marsden, 3 Burr. (A) See per Patteson, J., in B. v. 1816. Carpenter, 1 N. & P. 774 ; B. v. Baw- (d) B. V. Hertford, 1 Salk. 376. leny, 2 Str. 1196. 128 QUO WAERANTO INFORMATIONS. merely temporary (i) ; also churchwardens (k), and the steward of a court baron, that being (unlike a court leet) only a private right and no court of record (I). Town OlerJc. — In some old cases before the Municipal Corpora- tion Act, 1835, when the right of appointing to the office of town clerk was in a select body, it was held that a qiio warranto would lie in the case of a town clerk or clerk of the peace of a borough (m) ; but since that statute, s. 102 of which made the clerk removable at the pleasure of the justices (reproduced by s. 159 of the Mimi- cipal Corporations Act, 1882, 45 & 46 Vict. c. 50), it has been held that a quo warranto will not lie for the office (n). Clerk to a Local Government Board or School Board. — The clerk to a local government board is in a sumlar position, as every officer or servant of the board is removable at the board's pleasure (o). Cockbum, C. J., considered an application for a qiu) warranto in a case of this kind to be an abuse of the process of the Court (ji). The same reasoning would appear to apply to the clerk to a school board {q). Sexton. — The question whether a quo warranto information would lie in the case of a sexton was incidentally considered in one case (r), but it was unnecessary to decide the point. The Court, however, pointed out that there was another mode of trying the right, viz., by withholding his fees, or by paying them and bringing an action against the sexton to recover the amount. Other Offices. — It has also been held that a quo warranto would not lie in the case of the clerk of the Commissioners of Land Tax (s) ; an assistant overseer appointed by the inhabitants in vestry assembled, under 59 Geo. 3, c. 12, s. 7, whose appointment the vestry could revoke by calling another meeting {t) ; a district registrar of births and deaths, the office being held at the pleasure («■) Per Tindal, C.J., 12 C. & P. also ^ ^arfe Stmiys, 4 B. & Ad. 863. 539. (o) Ex parU Richards, L. R. 3 (k) R. V. ShfipUrd, 4 T. R. 381 ; Q. B. D. 368 ; 47 L. J. Q. B. 498. R. V. Dawbeny, 2 Str. 1196 ; R. v. Bir- {p) lb. See also Ex pa/rU Bichwds, mingJmn, 7 A. & B. 254 ; Re Barlow, 38 L. T. N. S. 684. 30 L. J. Q. B. 271. (j) See Bradley v. Sylvester, 25 L.T. (0 R. V. Eulston, 1 Str. 621. N. S. 459. (m) R. V. Lloyd,2'B&m. 310; R. v. (r) R. v. Btoke Dama/rel, 5 A. & E. Dairies, 1 M. & R. 538 ; Be Harris, 584. 6 A. & E. 183. (g) R, V. Thatcher, 1 D. & Ry. 426. (n) B. V. Fox, 8 E. & B. 939; see (<) R. v. Simpson, 19 W. R. 73. IN WHAT CASES GRANTED. 129 of the Eegistrar General (u) ; registrar of the Bedford Level Cor- poration (v) ; committeeman of the Licensed Victuallers' Association, a society having a charter from the Crown, but still of a purely eleemosynary character (x) ; a county treasurer, who is the mere servant of the justices in England (y) ; a person who sets up a rabbit warren of a private nature (s) ; and generally all cases of usurpation of franchises of a merely private nature not connected with public government (a). Fair. — The Court will not grant an information for promoting and encouraging the holding of a fair ; and it is doubtful whether it will grant one against the person who actually holds the fair (&). Court Leet. — An information has been refused in the case of a person holding a court leet in a manor within a hundred where a court was also held ; the Court considering , that a private right alone was in question, and one which could be tried in a civil action (c). Private Corporation. — A quo warranto information wiU not be granted in the case of a private corporation. B. v. Mousley (d) wds the case of a hospital and school sup- ported by funds left by wiU in 1856, for which a charter was subsequently obtained from the Crown, according to the will of the founder. The Crown, however, by the charter neither added anything to the foundation, nor reserved to itself any control over it. An Act of Parliament was passed in modern times extending the foundation, and making some alterations which by circum- stances had become desirable, but neither creating a new corpora- tion, conferring any jurisdiction of a public nature, or enjoining any duty of a like sort. The Court was clearly of opinion that a quo warranto was not applicable to such a case, and discharged a rule which had been granted (e). (u) Ex parte Pa/rry, Times, 25 May, v. The Queen, 12 C. & F. 542. 1887. (z) E. V. Lowther, 1 Str. 637 ; Ib- («) B. V. Bedford Level, 6 East, lotson's Case, Cases temp. Haidwicke, 356, 367 261. (x) Sx parte Smith, 8 L. T. N. S. (a) Per Bayley, J., B. v. Ogden, 10 458. B. & 0. 233. (y) B. V. Justices of Herefordshire, (J) B. v. Marsden, 3 Burr. 1812. 1 Chitt. 700. The distinction between (c) B. v. Cann, Andr. 14. this case and that of the treasurer for {d) 8 Q. B. 946. the county of the city of Dublin is (e) The American law in this re- pointed out by Tindal, C.J., in Barley spect differs from the English. " The K 130 QUO WARRANTO INFORMATIONS. The Court dealt similarly with an application to question the election of a committeeman of the Society of Licensed Victuallers, ■which, though incorporated, is a society of a purely eleemosynary character (/). Fellow of a College. — In B. v. Gregory (g) the case of a feUow of a college (at one of the universities), where there was no visitor, came before the Court. The case has been regarded (h) as deciding that a quo warranto will not lie ; but a careful study of the report does not justify such a conclusion. It was objected, on argument against the rule which had been granted, that the statute of 9 Anne, c. 20, did not give authority to grant informations with regard to college offices, that colleges are for private education only, and that a fellowship could not be called a royal franchise. It was unneces- sary to decide the point, as the Court discharged the rule on the merits, being of opinion that the defendant had been duly elected. But, in delivering the judgment of the Court, Lord Mansfield said: "As to this mode by information, the objection to it is propriety of an information in the nature of a quo warranto as a remedy for an unlawful usurpation of an office in a merely private corporation, was formerly involved in some doubt, but the question may now be regarded as settled in this country. This species of remedy being generally employed in England in cases of public or municipal corporations, the English precedents are inapplicable to this particular ques- tion, and its solution must be referred to the more general principles under- lying the jurisdiction in question. Tested by these principles, an intnision into an office of a merely private corpo- ration may, in this country, be corrected by information with the same propriety as in cases of public or municipal cor- porations, since there is in both cases an vmfounded claim to exercise a cor- porate franchise amounting to an usur- pation of the privileges granted by the State. Indeed, the intrusion into a corporate office created for the govern- ment and exercise of the franchise can- not in principle be distinguished from an usurpation of the franchise itself. And it would seem to be true generally that wherevera charterhas been granted, and the right to exercise an office under that charter is questioned, the Court may, in its discretion, permit an infor- mation to be filed, as in the case of trustees in a church corporation, or president and directors of an insurance company." (High, § 653). The pro- cedure in America is applied to cases of railway companies, banking companies, river improvement companies, &c. The case of ministers of religious corpora- tions seems an exception (lb., § 665). (/) Ex parte Smith, 8 L. T. N S 458. (g) 4 T. R. 240, note. Easter, 12 Geo. 3. (h) It is so treated arguendo in R- V. St. Catherine's Eall, 4 T. K. 242 ; and by Cole (on Informations), p. 165. ^ m WHAT CASES GRANTED. 131 strong, that no such information can be filed here under the statute 9 Anne, and that all other informations ought to be filed by the Attorney-General ; but those informations did exist before the statute of Anne (i) ... If a person shew here a grievance, which wants to be remedied, this Court will find a remedy. A mandamus, or an action brought by a feUow appointed by the master in right of a lapse, might have answered the same purpose " ; language which seems rather to imply that in his opinion the proceeding by quo warranto was also open to the parties. Part of the reasoning, however, on which the opinion of Lord Mansfield was based, viz., that the foundation was not a charity but a corporation, and that the power of superintending did not go to the king as visitor, but devolved on him to be exercised in the King's Bench, was expressly dissented from by the considered judgment of the Court in the subsequent case of B. v. St. Catherine's Hall (k). In this case the Court considered the foundation to be of an eleemosynary character, and that the right of visitation (in the absence of any special visitor) devolved upon the king, to be exercised by him, not in his Court of King's Bench, but by the Court of Chancery acting under the authority of the Great Seal (I). And this, it is submitted, is the correct view. A mere claim to an of&ce or other franchise, without actual user, Mere claim is not sufacient to ground an application for a quo warranto. " No not suffident. instance has been produced," says Buller, J. (m), " where the Court have granted an iuformation in nature of quo warranto where the party against whom it was applied for has not been in the actual possession of the of&ce." The fact that the defendant, who had been elected to an office, had tendered himself to be sworn in (the oath not being adminis- tered to him), was held not sufficient (m). Neither will the possibility of a new claim being made with success, after a former unsuccessful one, be enough (o). (i) Vide ante, pp. 112, 113. Court of Chancery ; but it is otherwise (k) 2 T. E. 243, 244. with eleemosyuary foundations in gene- h) " In general, corporate bodies ral." — Per Lord Kenyon, ib. 244. which respect the public police of the (m) i?. v. Whitwdl, 5 T. K. 85. country, and the administration of (n) Ib. justice, are better regulated under the (o) B. v. Pejpper, 7 A. & B. 749, per superintendence of this Court than of the Lord Denman. K 2 132 QUO WARRANTO INFORMATIONS. The mere fact of allowing one's name to continue on the burgess list, after notice of objection, is no ground for an information {p). Though a mere claim to be sworn in is not a sufficient user, a swearing in bad in law wa,s held sufficient, where the defendant thought it a good one at the time he took the oath [q). It has been held in a very recent case (r) that the making and subscribing a declaration of oflice as town councillor (under s. 35 of the Municipal Corporations Act, 1882), by a person who had not the majority of votes, did not amount to a de facto possession of the office. If actual user is proved (as, in the case of a town councillor, by shewing his acting as such), it is unnecessary to shew a formal acceptance (s). Wherever there is such a user as to make the office de facto full, a quo warranto information is the appropriate mode of challenging the title to it, and not a mandamus {t). Where pro- Sxcccding jurisdiction. — The procedure by quo warranto is not warmntoisnlt ^^^ mode by which a person exercising an office can be prevented appropriate, fj-gj^ ^QJ^g something wMch the nature of his office does not enable him to do. This must be accomplished in suitable cases by in- junction, or in case of judicial offices, by prohibition. Where one set of justices granted alehouse licenses which another set of justices claimed the exclusive right of granting, the Court refused to the latter justices a rule for a quo warranto in- formation against the former, holding that this was not the proper process for trying the right (u). Befusing to undertake office. — Neither is the procedure appropriate in case of a wrongful refusal to undertake the duties of an office, 6.fj. that of common councilman {x). Where proceeding is judicial and not ministerial. — If there is any person appointed by law to discharge, at the election to an ip) Be Armstrong, 25 L. J. Q. B. A. & E. 215. See and distinguish S. 2^^- V. Mayor of York, 4 T. R. 699 (where (q) R. V. Tate, 4 East, 337. the oflSce was not full de facto oi either (0 R. V. Bangor, L. R. 18 Q. B. D. party), and R. v. Mayor of Leeds, 11 349. A. & E. 512. (s) B. V. Qvnyle, 11 A. & E. 508. (u) B. v. Justices of Durham, 2 L. T. (0 R. V. Mayor of Oxford, 6 A. & N. S. 372. E. 349 ; B. v. Mayor of Winchester, 7 (:r) R. v. Eungerford, 11 Mod. 142. m WHAT CASES GRANTED. 133 office, any functions of a judicial character with respect to it, an erroneous decision of such person in that character cannot be questioned by quo warranto. It is otherwise as to any acts of a merely ministerial and not of a judicial nature. In B. V. Andrews (y) the election of defendant as member of a school board was held invalid, on the ground that the chairman had by mistake (1) put down votes to one candidate which had really been given to another, and (2) had omitted to reckon some vot^s altogether. The casting up of the votes being merely ministerial, the chairman's certificate on the subject was held impeachable ; but as to a third class of votes, which he held to be valid, though they were really invalid, the Court held his act to be (under 11 & 12 Vict. c. 93, s. 27) judicial, and therefore final, where no appeal was given by statute (z). Where a clerk of the peace was removed from his office by quarter sessions for alleged wilful disobedience, Cockburn, C.J., said: "We cannot go behind the judgment of the quarter sessions and inquire whether the relator was properly removed, the quarter sessions having acted within their jurisdiction, and according to the requirements of justice. Even if there were a failure of any of the essentials of justice, this proceeding (i.e. by quo warranto) could not be the proper remedy " (a). So also where it was sought to question the validity of votes given at the election of a coroner, a plea setting forth the holding of an election by the sheriff in due form, the declaration of the poll by him, and the proclamation of the defendant duly elected by a majority of votes, was held a complete answer to the informa- tion (b). " I entertain no doubt," said Cockburn, C.J., " that the sheriff in holding the county court for the election of coroner, and taking the poll of valid electors and determining which of the candidates is chosen, is exercising functions of a judicial character. He is the (y) h. K. 2 Q. B. D. 30. be tiat on a certiorari to bring up the (z) B. V. Gross, 19 L. T. 35, was a proceedings of tlie quarter sessions, ad- decisiou to a like eflect of Lord Camp- vantage miglit be taken of such a bell at Nisi Prius. See also B. v. Collins, failure : of this, however, I have 23 W. E. 325. doubts."— 76. 118. (a) E. V. Bussell, 10 B. & S. 91, (6) i?. v. Diplock, L. B. 4 Q. B. 118. Cockburn, C.J., added : " It may 549. 134 QUO WAERANTO INFORMATIONS. judge of the Court ; and, under the old system and under the old statutes, part of the business was to take a scrutiny in the course of the election ; and when any vote was disputed, very much in the same way as under the old system of election of members of Par- liament, it was the practice while the election was going on for the sheriff to inquire into the validity of votes judicially, and a judg- ment was pronounced in the matter, and the vote admitted or rejected according to the result of the inquiry. We have also the high authority of Lord Coke that the sheriff exercises judicial functions (c). I take it to be clear that when a scrutiny of this kind is practically abolished, it could not have been intended that there should be an appeal in a quo warranto to this court. ... I am very far from saying that there may not be cases in which a quo warranto information would lie as to the office of coroner : as where the candidate elected was personally disqualified, or where the election might not have been properly conducted. But when the object is simply a scrutiuy into the validity of the votes, I think we are precluded by the statement in the plea that the sheriff has duly held the court and proclaimed the defendant elected by a majority {d)." (c) 2 Inst. 175, (d) L. E. 4 Q. B. 552, 553. ( 135 ) CHAPTEE IV. General Principles regulating the Granting or Eefusing Informations. PAGE Period of limitation . . 135-138 Derivative titles 138 Grounds for moving . . 139-143 When previous amotion neces- sary 144 Non-user or misuser of franchise . 145 FAOE After defendant has ceased to hold office 146 Discretionary refusal .... 147 Disqualification of relator . . . 151 Who is a competent relator . . 156 At first, it would seem that it was never too late to attack the Period of „ „ , . limitation, usurpation oi a iranchise. In the time of Lord Mansfield (1767) the Court laid down the Tvle that, after twenty years of quiet and undisturbed possession of any office or franchise, they would not listen to an application for a quo warranto against the occupant (a). Experience shewing that this period was too long, the Court in the time of Lord Kenyon (1791), by a general rule, resolved in future to limit their own discretion in granting applications of this nature to six years, beyond which time they would not under any circumstances suffer a party who had been so long in possession of his franchise to be disturbed. In the following year, 32 Geo. 3, c. 58, s. 1, enacted that any (a) B. V. Dawes, 4 Burr. 2022, fol- lowed in B. V. Bond, 2 T. E. 771. " The next thing which the Court took into their consideration was the length of time within which they would grant informations. It was customary never to refuse informations for any length of time; but as the inconvenience and vexation of this were plainly perceived, the Court were desirous to go by a cer- tain rule; and therefore, as the time was indefinite by the! common law, and fixed by no statute, they drew a line by analogy to the Statute of Limita- tions in ejectments : they drew it for twenty years. . . . But when the Court laid down the general rule, they also said that it might be refused within twenty years upon other circumstances, &c." — Per Lord Mansfield, in B. v. Stacey, 1 T. E. 2, 3. 136 QUO WARRANTO ; IXFORMATIOXS. member or officer of any city, borough, or town corporate might plead to any qiw warranto infoitnation, even though filed by His Majesty's Attorney-General, the holding of his office for six years or more before the exhibitiag of the information (6). The whole of this Act was repealed by the Municipal Corporations Act, 1882, s. 5 (Sched. I., Part 2), as to all boroughs within the latter Act. By the last mentioned Act, s. 225 (reproducing 7 Wm. 4 and 1 Vict. c. 78, . s. 23), " an application for an information in the nature of a quo warranto against any person claiming to hold a corporate office, shall not be made after the expiration of twelve months from the time when he became disqualified after elec- tion " ; and, by the interpretation clause, " corporate office " means the office of mayor, alderman, councillor, elective auditor or revising assessor (c) : and s. 73 enacts that every municipal election (that is, by s. 7, every election to a corporate office) not called in question within twelve months after the election, shall be deemed to have been to all intents a good and valid election. The effect of these provisions is not to make sufficient an appli- cation at any time within the twelve months, but only to provide that no application shall be made after the expiration of that period. The Court in its discretion wiU refuse an application within the twelve months, if delayed too long. Except in the case of a corporate office, the limit of six years laid down by the rule of Court in Lord Kenyon's time is that which the Court adopts. And it has been held, in cases where sis years is the period of limitation, that it is not sufficient that the order wisi for an information has been granted within the sis years ; it is also necessary that the information should be filed within that period {d). Lord Denman alluded to a case of this kind where, under peculiar (6) See on these last words R. v. (d) R. v. Harris, 11 A. & E. 518 Brooks, 8 B. & C. 320. 8 Dowl. 499. This case was put in argu- (c) Sect. 7 : The corresponding clause ment wholly on the statute of 32 (Jeo. 3, in the repealed enactment (7 Wm. 4 c. 58 ; hut it is questionahle whether and 1 Vict. c. 78) had the words that statute was applicable to any " mayor, alderman, counciUor, or hur- office other than municipal See also gess." It was questioned in R. v. Pep- R. v. Stokes, 2 M. & S. 71, and R. t. per, 7 A. & E. 745, whether "free- Brooks, 8 B. & C. 320, cases decided men " came within this enactment ; but under the same statute. it was unnecessary to decide the point. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 137 circumstances, leave was given conditionally to exhibit the infor- mation on the day the rule nisi was granted («). Where a person was elected alderman in 1868, being then duly qualified, ceased to occupy any house, etc., in 1873, and was in conse- quence struck off the new burgess list in that year, but continued to act as alderman, an application for a quo warranto made within twelve months of his being struck off the burgess roll, but more than twelve months after he had ceased to occupy, was held to be too late (/). Where the disqualification consists in being interested in a con- tract with the town council, so long as the contract continues, the disqualification caused by it arises de die in diem ; and, though no application for a quo warranto can be made after the lapse of twelve months from the cessation of the contract, an application can be made at any time during its continuance (g). It may be laid down as a general rule that, as to all annual offices on which no title to any other depends, the Court in the exercise of its discretion will refuse a rule where the matter cannot be determined before the year of office expires (A). Where the defendant was put on the burgess roll which came into operation on the 1st of November, 1866, not being at the time duly qualified to be on it, and was elected town councillor in August 1867, an application on the 18th of November 1867 for a quo warranto on the ground that he was disqualified at the time of election, not being then entitled to be on the burgess list, was refused ; partly, it would seem, on the ground of delay, and partly because it was an attempt to question his title to be on the burgess list through this collateral proceeding (i). (e) 11 A. & E. 519. that time was not a ground for holding (/) Ex parte Birhbech, L. E. 9 Q. B. that he could not appear as a relator. 256 ; Blackburn, J., pointed out that Qi) S. v. Hodson, 4 Q. B. 648, u. ; Ihe party still ran the risk of penalties in which casg the motion was on the if he acted while disqualified. 29th of January for exercising, on the (g) R. V. Francis, 18 Q. B. 526 ; 21 previous 6fh of November, the office of L. J. Q. B. 304. As to the lateness of the burgess of Lichfield. Cause was shewn application in this case, Lord Campbell in Trinity Term, and the considered said that if the relator hadbeena member judgment of the Court discharging the of the council at the time the contract rule on the ground of delay, was deli- was entered into, that might have been vered on the 9th June, a ground for refusing a quo warranto ; (i) Ex parte Hindmarch, L. E. but he was not ; and his mere know- 3 Q. B. 12. ledge of the existence of the contract at tit] 138 QUO WARRANTO INFORMATIONS. Where a burgess had voted at an election of town councillors, not beiag at the time properly qualified by residence, but no steps were taken against bim until within two days of his becoming qualified, the rule nisi was discharged with costs (j"). Derirative Many attacks on the holders of offices were, in former days, grounded on the invalidity of the title of the persons who presided at the election, or who performed some ministerial act in giving admission to the offices (k). A partial remedy was supplied by 32 Geo. 3, c. 58, s. 3 (Z), which enacted that the title under any election, nomination, swearing into office or admission, should not be questioned on account of any defect in the title of the person or persons electing, nominating, swearing into office or admitting, provided these latter had been de facto in exercise of their offices six years previous to the filing of the information. As to all corporate offices a more complete remedy was provided by 7 WUI. 4 and 1 Vict. c. 78 (m) reproduced in sect. 42 of the Municipal Corporations Act, 1882, which enacts that " the acts and proceedings of a person in possession of a corporate office and acting therein, shall, notwithstanding his disqualification or want of qualification, be as valid and effectual as if he had been qualified An election of a person to a corporate office shall not be liable to be ques- tioned by reason of a defect in the title of the person before whom the election was had, if that person was then in actual pos- session of or acting in the office giving the right to preside at the election." It was held in B. v. Stokes (n) that 32 Geo. 3, c. 5, s. 3, did not apply where the defect was in the title of the party himself to a former office, which formed in part his qualification to that in question. At least, the point was held so doubtful that, although the defendant had exercised the office of town councillor for more than six years, the Court made absolute a rule for a quo warranto information against him for exercising the office of mayor, on account of a defect of title to the former office. But, as observed by Lord Denman in (j) Be Ditnn, 10 Jur. 1095. porations Act, 1882. (45 & 46 Vict. {k) See B. v. Stacey, 1 T. R. 1 ; iJ. c. 50, s 5.) v. Speaking, 1 T. R. 4, n. (m) Repealed by the Municipal Cor- (l) This statute is repealed only as porations Act, 1882, s. 5. to boroughs within the Municipal Cor- (ra) 2 M. & S. 71. GENBEAL PKINCIPLES AS TO GRANT OR REFUSAL. 139 a later case (o), no further proceedings in the case are reported, nor could it be found, upon inquiry, that the point ever came for final decision before the Court upon the record. A similar point came before the Court in the subsequent case of B. V. Preece (p), where the validity of the defendant's election as mayor was challenged on the ground that he had not been weU elected alderman, and that he had been elected mayor as such alder- man ; the application for a quo warranto being made at a time when, by statute, his right to the aldermanic office could not have been questioned. In dischargiag the rule which had been granted. Lord Denman said : " It seems to us highly objectionable that the title, which has not been questioned and cannot be questioned, to the inferior office should be impeached at a subsequent period, when the title to a higher office has been built upon it ; and that there is an absurdity iu ousting a mayor because he was not a good alderman, who upon his ouster must immediately be remitted to his office of alderman, and cannot be disturbed in it " (q). The same principle was acted on in Ux parte HiTidmarch (r), where, no steps having been taken to remove a man from the burgess list, his right to be elected councillor was attacked on the ground that at the time of election he was not entitled to be on the burgess list (s). It is now provided by sect. 73 of the Municipal Corporations Act, 1882, that " every municipal election not called in question within twelve months after the election, either by election petition or by information in the nature of a quo warranto, shall be deemed to have been to all intents a good and valid election." It is obvious that the grounds on which a person's title to an Grounds for office is liable to an attack may be of very various kinds. mormg. (o) B. V. Preece, 5 Q. B. 98 ; 12 others at wMcli the mayor ought L. J. Q. B. 335. to preside. Nor could any benefit (p) Ubi supra, result from the rule being made ab- (2) Additional reasons for the judg- solute, as no judgment of ouster could, ment in this case were thus stated with the utmost diligence, be obtained by Lord Denman : " No inconvenience against him till within a very few days can result to others from the present of the expiration of his year of office." mayor retaining his office, as the (5 Q. B. 98, 99). See also R. v. Pea- stat. 7 Wm. 4 and 1 Vict. c. 78, s. 1, cock, 4 T. E. 684. makes him a good presiding officer at (r) L. R. 3 Q. B. 12. all corporate meetings for election of (s) See per Cookburn, C. J., p. 14. 140 QUO WARRANTO INFORMATIONS. The following have been the most usual : — (1.) DisqualifxMtion at time of Election. — That at the time of his election he was personally disqualified (f). A person is not disqualified by reason of his holding an office incompatible with that to which he is elected, as his acceptance of the latter office vacates the former {u). (2.) No Majority of Votes. — That the defendant had not a majority of legal votes {x). It is now provided by sect. 87 of the Municipal Corporations Act, 1882 (reproducing s. 12 of 35 & 36 Vict. c. 12), that no " mimicipal election " shall be questioned on either of the two preceding grounds except by an election petition. As " municipal election " is defined (sec. 7) to mean " election to a corporate office," and " corporate office " is defined to mean that of (f) See R. V. McGowcm, 11 A. & E. 869 (the case of a person elected mayor who was alleged not to have been at the time a lawful alderman or council- lor). B. V. Earvey, 20 L. J. Q. B. 232 ; R. V. Tork, 2 Gale & D. 105 (the case of a person elected councillor who had an interest in a contract with the town council). R. v. Francis, 18 Q. B. 526 ; also the case of a town councillor interested in a contract, it heing im- material whether the contract was one binding on the council or not. See also R. V. Franklin, 6 Jr. Eep. C. L. 239. R. V. Eiorns, 7 A. & E. 960 (a person elected councillor who was ineligible as holding the ofBce of assessor). R. V. Corporation of Pembroke, 8 Dowl. 302 (decided under an enactment now repealed). R. v. Sargent (5 T. R. 46fi) ; R. V. Orde, 8 A. & E. 420, n., and R. v. Buke of Richmond, 6 T. E. 560 (where the objection was insufficient legal resi- dence within the borough). Ex parte Eindmarch, L. R. 3 Q. B. 12 (elected councillor, not being at the time quali- fied to be on the burgess list). As to the effect of bankruptcy, see R. v. Mayor of Leeds, 7 A. & E. 963 ; R. v. Ricketts, 3 N. & F. 151; R. y.Chitty, 5 A. & E. 609 ; R. v. Rowley, 20 L. J. Q. B. 198 ; R. v. Dudley, 11 A. & E. 875 ; R. V. Stanley, ib. 882 ; R. v. Alderson, 1 Q. B. 878. See R. w. Cooban, 56 L. J. M. C. 33, as to dis- qualification of a member of a local board of health under Rule 5 of Sched. II. of the Public Health Act, 1875, (38 & 39 Vict. c. 55). (u) See R. v. Bangor, L. E. 18 Q. B. D. 347, 361, distinguishing R. v. Coaks, 3 E. & B. 249. (x) As to the effect of notice of a candidate's disqualification on the vali- dity of votes subsequently given for him, see R. v. Eiorns, 7 A. & E. 960 ; R. V. Eawkins, 10 East, 211 ; 2 Dow. 124 ; R. V. Parry, 14 East, 549 ; R. v. Bridge, 1 M. & S. 76 ; Re Bester, 7 Jur. N. S. 262. As to the powers of the returning officer at an election under the Public Health Act, 1875 (38 & 39 Vict. c. 55), see Rules 51-55, in Sched. II. to that Act, and R. v. Cooban, 56 L. J. M. C. 33. Distinguish the powers of the returning officer under the Ballot Act, 1872, and the Muni- cipal Corporations Act, 1882, as to which see R. v. Bangor, L. B. 18 .Q. B. D. 349. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 141 " mayor, alderman, councillor, elective auditor or revising assessor," it follows that no election to any of these offices can now be ques- tioned by quo warranto on either of these grounds. The section does not apply to any disqualification arising after election. The effect of 47 & 48 Vict. c. 70, s. 36, is to make the foregoing observations true also of elections of (a) members of local boards, (b) improvement commissioners, (o) guardians, and (d) members of school boards. (3.) Invalidity of Election. — That the election itself was invalid by reason of someirregularity in the manner in which it was conducted (?/), (4.) Improper admission to office. — That the defendant was not properly admitted to the office (z). {y) See B. v. McGowan (11 A. & E. of the defendants to fill four vacancies, 869), where an aldernaan was elected before the mayor was. See also on this point B. V. Dudley, 11 A. & E. 875, and E. v. Parhyns, 3 B. & A. 668, and sect. 60 of the Municipal Corporations Act, 1882; R. V. Maddy and B. v. . Stanley (11 A. & E. 869, 882) as to the eligibility of an outgoing alderman for the office of mayor (now expressly made eligible by sect. 15 of the Municipal Corporations Act, 1882); B. v. Par- kinson (L. R. 3 Q. B. 11), where a person was nominated town councillor for a particular ward by a person not entitled to vote for that ward ; B. v. Mayor of Winchester (7 A. & E. 215), where proper notice of an extraordinary vacancy had not been given and the voting papers were also irregular. See also on this subject B. v. Mayor of Leeds, 7 A. & E. 963, and B. v. Bowley, 20 L. J. Q. B. 198. B. v. Monday (Cowp. 530), B. V. Player (2 B. & A. 707); as to election by lists i?. v. Smith, 2 M. & S. 583 (dfcided on the plead- ings) ; B. V. Buller (8 East, 389) and B. v. Williams (2 M. & S. 141), aa to im- proper absence of the presiding officer. On this point see also B. v. Backhouse, L. R. 2 Q. B. 16. B. v. Bippon and others, L. R. 1 Q. B, D. 217, where the election three being regular vacancies and one a casual one caused by resignation, was held invalid, because neither in the notice of election nor in the voting papers delivered to the electors was any distinction made between the regular vacancies and the casual one. Objec- tions to 'the validity of an election on the ground of the presiding officer not being legally qualified (such as in B. v. Corporation of Bridgwater, 3 Doug. 379 ; B. V. Smith, 5 M. & S. 271) were done away with by sect. 53 of 5 & 6 Will. 4, c. 76, an enactment repro- duced by sect. 42 of the Municipal Corporations Act, 1882. (z) Kg., that as mayor, &c., he had acted without being sworn in (when this was necessary). Mayor of Penryn's Case, 1 Str. 582 ; 2 Bro. P. C. 294 ; B. V. Clarke, 2 East, 75 ; B. v. Courtenay, 9 East, 246, 267: B. v. Parry, 14 East, 549 ; B. v. Swyer, 10 B. & C. 486, where the Court said that a person first became mayor when he was sworn in, not when he was elected. With the abolition of oaths the Indem- nity Acts have ceased, and the cases decided on them are no longer of im- portance. 142 QUO WAEEANTO INFORMATIONS. Sect. 35 of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), enacts that a person elected to a corporate office (i.e., that of mayor, alderman, councillor, elective auditor, or revising assessor, shall not, untU he has made and subscribed before two members of the council, or the town clerk, a declaration as in the 8th sche- dule to the Act set forth, act in the office except in administering that declaration. Though the mayor as such is not now obliged to take an oath, yet as by virtue of his office he is to be a justice for the borough (Municipal Corporations Act, 1882, s. 155), he must in the latter capacity take the oaths required by 31 & 32 Vict. c. 72, s. 6 (a). As already stated, the legality of admission is not dependent on the validity of the title of the person admitting (&). (5.) Subsequent disqualification. — That after a valid election and admission the defendant subsequently became disqualified : as, in case of a mayor, alderman, or councUlor, by bankruptcy or com- pounding by deed with his creditors ; or (except in case of illness) being continuously absent from the borough, being mayor, for more than two months, or being alderman or councillor, for more than six months ; in which case the council shall forthwith declare the office to be vacant, and signify the same by notice signed by three members of the council, and countersigned by the town clerk, and fixed on the town hall, whereupon the office shall become vacant (c). Unto, the council shall have pursued the course pointed out there is no vacancy, and, the office being full, there cannot be a new election without a quo warranto information to determine the title. But when the council has done so, the vacancy is fully established just as it would be by judgment of ouster on quo warranto {d). A somewhat similar procedure is to be adopted, and with Mke effect, in the case of resignation of any corporate office (e). (a) As to the maimer of taking them, 1883 (46 & 47 Vict. c. 52). see 34 & 35 Vict. c. 48, s. 2. (d) R. v. Phippen, 7 A. & B. 966; (6) S. V. Slythe, 6 B. & C. 240. See 3 N. & P. 151 ; R. v. Leeds, 7 A. & E. 45 & 46 Vict. c. 53, s. 42, and ante, 963. See also Eardvnck v. Brown, p. 138. L. E. 8 C. P. 406, and R. v. Welch- (c) Municipal Corporations Act, pool, 35 L. T. N. S. 594. 1882 (45 & 46 Vict. c. 50), rs. 39. See (e) See sect. 36 of the Municipal also sect. 32 of the Bankruptcy Act, Corporations Act, 1882. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 143 Acceptance of an incompatible office will work a disqualification, if the holder can resign his former office without the consent of any other person, or has obtained that consent where requisite ; but, though a ground of amotion from a corporate office, it does not ipso facto vacate the office, unless the second office is also a corporate one (/). The following have been held incompatible offices : alderman and town clerli, the appointment of an alderman to the office of town clerk being equivalent to an amotion from the former office (g) ; councillor and clerk of the Court of Eequests of a borough under a local Act and sect. 72 of the Municipal Corporations Act, 1835 (h) ; jurat and town clerk (i) ; alderman and justice of a city and treasurer of the county of the same city, the treasurer being appointed by the justices in quarter sessions (k) ; alderman and capital bur- gess (J) ; alderman and town councillor (m). The office of capital burgess was held not incompatible with that of steward of the corporation (n). The offices of clerk of the peace and town clerk were formerly held not incompatible with that of councillor (o) ; but by sect. 17 of the Municipal Corporations Act, 1882 (re-enacting a provision of the Act of 1835), the town clerk must not be a member of the council. See other disqualifications for acting in, as well as for being elected to, municipal office, enumerated in sect. 12 of 45 & 46 Vict, c. 50. The acceptance of an office incompatible with one already held, even though the acceptance be under a void election, was held to operate as a surrender of the office previously held (p). But in a later case an invalid appointment to an incompatible office, and an acting in such office, were held not to vacate the office previously held (q). (/) B. V. PaUeson, 4 B. & Ad. 9. (m) B. v. Bangor, L. R. 18 Q. B. D. (^) B. V. Pateman, 2 T. R. 777 ; B. 349. V. Tizzard, 9 B. & 0. 418. See the (n) B. v. Trelawney, 3 Burr. 1615. observations on this case, infra, p. 145. (o) B. v. Jones, 1 B. & Ad. 677. Qi) Stanilamd v. Hopkins, 9 M. & (p) See B. v. Hughes, 5 B. & 0. 886. W. 178. (?) B. V. Day, 9 B. & 0. 792 ; the (i) Milwa/rd v. Thatcher, 2 T. R. 81. previous case of E. v. Hughes not (h) B. V. Patteson, ubi supra. being referred to. (0 B. V. Hughes, 5 B. & G. 886. 144 QUO WARRANTO INFORMATIONS. When previous In the last-mentioned class of cases, and in all others where a r^uislte!^ disqualification supervenes after election and admission to a corporate office, amotion by the corporation is a condition precedent to obtaining a quo warranto information ; except where, as above- mentioned, the acceptance of an incompatible ofiBce amounts to an amotion, and in the cases which come within sects. 36 and 39 of the Municipal Corporations Act, 1882. This was so held in a case (r), where by the terms of the charter every alderman removing from the borough "thereby vacated his office." Notwithstanding these words Lord Kenyon held that non- residence did not ipso facto vacate the office, pointing out the analogy of the Statute of Westminster 2, which declared that fines levied contrary to it should be ipso jure null ; and yet it had been repeatedly determined that they were only voidable and must be reversed by writ of error. And Ashurst, J., laid down the broad proposition that " wherever a person has been once duly elected into a corporate office, and forfeits it by misconduct, his amotion by the corporation is a previous and necessary step to be taken before this Court will grant an information in nature of a quo warranto against him." The general rule on the subject is to be found in the considered judgment of the Court in R. v. Patteson (s) delivered by Parke, J. He first points out that it would be an anomaly in the law if a public officer who could not directly resign, or be amoved without the concurrence or privity of a superior authority, should be able to accomplish the same object indirectly by an acceptance of an incompatible office: a sheriff, for instance, who is indictable for not accepting and exercising his office, might relieve himself with- out the concurrence of the Crown, by being elected to the office of coroner ; and other instances of the same kind might be put. The judgment then proceeds : " These considerations lead us to doubt whether the general proposition can be supported, that under all circumstances the acceptance of an incompatible office, by whom- soever the appointment to it is made, absolutely avoids a former (r) B. V. Beavm, 2 T. R. 772, fol- &c.," which are very different from lowing Vaughan v. Lewis, Carth. 227, those above stated. See also B. v. where, however, the terms of the charter Ponsonby, Say. 245. were " non diutius remanebit in officio, (s) 4 B. & Ad. 9. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 145 office ; and upon reference to the authorities, we think that this proposition is not made out, but that it must be limited and qualified ; and that such acceptance (though it may be ground of amotion) does not operate as an absolute avoidance in those cases where a person cannot divest himself of an office by his own mere act, but requires the concurrence of another authority to his resignation or amotion, unless that authority is privy and consent- ing to the second appointment." With reference to B. v. Tizzard (t), the judgment points out that it does not appear by the pleadings in that case whether the mayor, alderman and bailiff, who appointed to the of&ce of town clerk, had or had not the power of accepting the resignation of that of alderman, " and as this objection was not stated, we do not consider the case as forming an exception to the position now laid down." As already observed, sect. 87 of the Municipal Corporations Act, 1882 (44 & 45 Vict. c. 50), does not apply to a disqualification of a town councillor arising after election. The non-user or long neglect of a franchise, as well as the mis- Non user or 1 T Tf»j_" pjipi misuser of a user or abuse of it, may also work a disqualincation lor the lurther franchise, possession of it. However long the neglect or great the abuse of a franchise, it cannot be treated as having ceased to exist until the grant is repealed by scire facias or quo warranto. " The proceeding by quo warranto supposes the party in actual though not in legal posses- sion, and therefore judgment of ouster is necessary to dispossess him " (u). Where, according to former charters, there had been a local government in a borough which was allowed to be lost through neglect, the rights of the surviving burgesses were considered, for certain purposes, still to remain ; but, " for the misconduct of the corporation," said Bayley, J., "in not keeping up the governing body, I am of opinion that it might have been dissolved by quo warranto" (x). In the time of Lord Holt, the Court granted an information against the mayor and common councU of a borough, to know by what warrant they admitted foreigners and strangers to the freedom (t) 9 B. & C. 418, supra, p. 143. 6 B. & C. 710. (m) Fer Bayley, J., Peter v. Kendal, (x) B. v. Hughes, 7 B. & C. 720. L 146 QUO WAEEANTO INFORMATIONS. of the town ; because the injured freemen of the town could have no other way to remedy themselves or to try their right (2). An information, in a case of this kind, must, as already stated {ante, pp. 117, 118) be filed by the Attorney-General. Information As a general rule the Court will not grant an information to dffinfaut after question the defendant's title to an of&ce after he has actuaUy he has ceased geasod tO hold it. to hold omce. But there are some exceptions : — First, where the office has been resigned after order nisi granted ; for, as observed by Lord EUenborough (a), a resignation is no answer, though it may regulate the discretion of the Court in im- posing the fine. Again, where the object is to try a civil right ; for, as observed in one case (of an information against an alderman four years after his office had expired), " in order to invalidate the election of other members (chosen whilst he was in office), it may be put in issue that he was not a legal officer ; and to prove that, it maybe neces- sary to produce the record of his conviction, as the judge may otherwise say, he appears to have been an officer de facto, and the right to his office is not the issue then to be tried " (6). Another exception is where the relator's object is to substitute another candidate at once in the office. Thus where there were five candidates for four vacancies at an election of town councillors, and one of the successful candidates^ as returning officer and mayor, was disqualified, the candidate last on the poll who claimed to have been elected was granted an information against the mayor, though the mayor had resigned his office as councillor immediately after the election, on being con- vinced of his disqualification. " Here," said Cockburn, C. J., " we have something more than a proceeding for the mere purpose of ousting the party from' the office which he has been holding. If (z) Anon., 12 Mod. 225. and it was merely for punishment by (a) fl. V. Wa/rlow, 2 M. & S. 75 ; fine. But a different view is expressed see also B.v. Morton, 4 Q. B. 146; inthejudgment of the Court of Queen's and B. v. Sidney, 2 L. M. & P. 149. Bench in B. v. Blizard, L. R. 2 Q. B. (6) B. V. New Badnor, 2 Ld. Keny. 55 ; and the case is also referred to with 498. Poster, J., who was of a different approval In the Matter of Harris, 6 opinion from that expressed above, said A. & E. 477. no judgment of ouster could be entered, GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 147 the purpose of these proceedings were merely to vacate the office so that a fresh election might take place, it is obvious that the resignation of the office would effect that purpose just as well as the removal of the person from the office by quo warranto. In this case, however, the relator not only denies the validity of the defendant's election, but he claims to have been himself elected into the office. ... A man cannot resign that which he is not entitled to, and which he has no right to occupy. To accept his resignation therefore, on the part of the corporate body, is to assume that he had been properly elected ; and to refuse this rule, treating the resignation as sufficient for the purpose of the case, would be to deprive the relator of the advantage which upon the information he would have, either of ousting the defendant if the proceedings are carried to their ultimate results, or of having it admitted on the record by the defendant, not only that he has no present right to the office, but that he never had any. The effect of a resignation would be simply to send the parties to a new election, while the effect of a disclaimer or judgment for the Crown upon the final issue of the quo warranto would be to displace the defendant from the first ; leaving it open — which otherwise it would not be — to the relator to claim the office to which he says he has been elected and, if he can establish that claim, upon a mandamus to be admitted into the office " (c). There are many cases in which, though the nature of the office Discretionary is such as to make the procedure by quo warranto the appropriate '* "^* ' method of testing the validity of the title to it, yet the Court ia the exercise of its discretion wiU refuse its assistance. As to such cases no precise rule can be laid down ; but, as observed by Lord Mansfield {d), all the circumstances taken together must govern the discretion of the Court. Insignificance of Office. — It will sometimes refuse on the ground of the insignificance of the office. Thus where the right to elect a petty constable was in dispute between the inhabitants of a town and the lord of the manor, the Court said : " No doubt of it, the king has a right to call any one to account, by his writ of quo warranto, for exercising any public office, be it ever so small ; yet (c) B. V, BUmrd, L. R. 2 Q. B. 58 ; 36 L. J. Q. B. 78 ; 15 L. T. N. S. 242. (a!) B. V. Stacey, 1 T. R. 3. L 2 J 48 QUO WAREANTO INFORMATIONS. we don't use to grant informations in the nature of them for such inferior offices " (e). Long User. — It has also refused where there had been a long- continued usage in favour of the combination of two of&ces (that of capital burgess and steward of a manor), which it was alleged could not be held by the same person (/). Where a man had discharged the duties of an office for some years, and made a elaun for compensation on his removal, the Court would not grant an information : it woiild be a hardship on him to be called on to prove his title after he had been turned out of an office in which he had been permitted to act for several years (gr). Other remedy. — The Court will also be influenced by the con- sideration that the question involved may be otherwise tried, as by civil action (h). A combination of the two last-mentioned reasons led the Court to refuse its assistance in B. v. Archdall (i), where the justices of the borough of Cambridge sought an information against the Vice- Chancellor of the University for granting alehouse licences, a fran- chise which had been exercised by the Vice-Chancellors without question for a very long time. "It has always been the well- established principle of our law," says the judgment of the Court, " to presTune everything in favour of long possession ; and it is every day's practice to rest upon this foundation the title to the most valuable properties. We should be departing from this prin- ciple and practice if we were now to institute the inquiry prayed for, and call upon the Yice-ChanceUor to justify the exercise of this ancient franchise. It is possible that it may rest upon no legal foundation, and that upon a full examination it may turn out to be incapable of being supported. By refusing this rule, we do not prevent the parties from raising the question, if they shall be so advised, nor prejudice its determination; we decline only to render any assistance in originating the proceeding which may imply a suspicion in our minds that what has existed unquestioned for centuries is referable only to usurpation on the Crown." (e) Anon., 1 Barnard. 279. to with approval 2 Burr. 1822. The (/) E. V. Trelavmey, 3 Burr. 1615. case seems imdistinguishable, on any (jr) In the Matter of Harris, 6 A. & other ground than that mentioned E- 475. above, from R. v. Bridge, 1 W. Bl. 46. (li) R. V. Cann, And. 14; referred (J) 8A. &E1. 281. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 149 It is difficult to gather from the report what was the exact ground of refusal in B. v. Medlicoat (Jc). Mere foolish Claim. — The Court has also refused where there was no civil right in controversy, but a mere foolish claim was asserted, such as that set up — after a corporation had been dissolved and there was in fact no corporate body in existence — by an indi- vidual to be returning officer at an election of members to serve in parliament, by virtue of his having been elected alderman, whilst the corporation existed ; a claim in respect of which, said the Court, perhaps a proceeding in poenam by the Attorney-General might be appropriate (T). Conduct or motives of relator. — ^However clear in point of law the objection may be to the defendant's title, the Court in exercis- ing its discretion will also have regard to, and be influenced by, the conduct, motives or interest of the relator (m). Consequences. — The consequences which may result from granting the information wUl also influence the exercise of the Court's discretion. Though the fact that the objection to an iudividual member of a corporation applies equally to every other member of it is not, in itself and standing alone, a sufficient ground for refusing a quo warranto (n), it is a reason for requiring a very strong case to be made out (o), and one which taken in conjunction with others may have much weight with the Court. Irregularity producing no serious harm. — Where the validity of a town councillor's election was impeached on the ground that the burgess roll had not been revised in strict accordance with the Act of Parliament (5 & 6 WUl. 4, c. 76), the Court was led by a variety of considerations to discharge the rule. " On the one hand," said Lord Denman {p), " if the rule be made absolute, the (A) 2 Barnard. 221. (o) " The Court undoubtedly have (T) R. V. Saimders, 3 Bast, 119 ; in some cases permitted these informa- see and distinguish Lloyd v. The Queen, • tions to be filed where the effect has 31 L. J. Q. B. 209. been thereby to dissolve the corpora- (m) See per Lord Denman, C.J., in tion ; but that ias been where strong R. V. Pa/rry, 6 A. & E. 320. Per cases have been made out" (^per Lord Mansfieldj R. v. Dawes, 4 Burr. Abbott, C.J., in R. v. Trevenen, 2 B. 2123. & Aid. 482). (n) R. V. White, 5 A. & E. 613 ; B. (p) R. v. Parrtj, 6 A. & E. 822. v. Parry, 6 A. & E. 820. 150 , QUO WAKRANTO INPOKMATIONS. dissolution of the corporation may at least be reasonably appre- hended ; on the other, it is remarkable that the affidavits in support of the rule impute no corrupt, fraudulent or indirect motive for the acts complained of as irregular, nor do they allege that they have produced injustice, inconvenience, or even any one result different from what would have followed the fullest compliance with the law as they lay it down. They do not go the length of suspectiug that a single vote has been won or lost, or that the burgess list would have varied in a single name. It appears moreover that the town clerk had taken the precaution of procuring, and had hona fide acted upon, the most eminent legal advice." After pointing out that the defective constitution of the Eevision Court had been in all respects an immaterial circumstance. Lord Denman added : "If these conditions would, under the old law, have been entitled to weight, they lose none from the passing of the recent statute. On the contrary the difficulties that might attend the reconstruction of corporations once dissolved, and the important functions now vested in the municipal bodies would rather induce ' iacreased circumspection in our proceedings. The inferior officers ought indeed to conform with care to the provisions of the law; the wilful departure from them this Court wUl visit with severity ; and even negligence may not always escape animadversion : but our discretion as to the issuing of quo warranto informations must be regulated by a regard to all the circumstances which attend the application and all the consequences likely to follow." This case, followed by two more recent ones (§'), may be con- sidered as establishing the rule that an irregularity not really affecting the result of the election to an office will not, in the absence of bad faith, induce the Court to grant a quo warranto. Blackburn, J., delivering the judgment of the Court in the former of these two cases said : " We think that seeing that the mistake committed here has produced no result whatever ; that the same persons have been elected who would have been elected if the election had been conducted with the most scrupulous regularity, and that the defendant's title, if bad at all, is only bad, as I may (?) B. V. Ward, L. R. 8 Q. B. 210; 42 L. J. Q. B. 124; 28 L. T. N. S. 42 L. J. Q. B. 126; 28 L. J. N. S. 116. 118; E. V. Oousins.L. E. 8 Q. B. 216; GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 151 say, on special demurrer ; we ought, in the exercise of our discre- tion, to refuse leave to disturb the peace of this district by filing this information " (r). The same learned judge in the latter case said: "The rule always acted upon is that if the right person has been elected, and it is not shewn that any one else has been kept out, nor the result of the election in any way affected, the Court will not allow the -writ to issue " (s). When an information was moved for on the ground of a disputed mode of election, which alone was in controversy at the time of the defendant's election, and which was afterwards answered on shewing cause, the Court would not make the rule absolute to try another incidental and secondary question, as to whether there were a sufficient iiiterval of time allowed between the nomination and election, no person's rights having been set aside by the accelera- tion, if the election had been really accelerated (t). Delay. — The Court has also frequently refused on the ground of delay in making the application ; vide ante, pp. 136, 137. The Court also refuses an information where the relator has dis- Disqualifica- qualified himself to act as such, or where, there beiug more relators than one, none of the relators is duly qualified. Acquiescence. — Acquiescence in the proceeding sought to be in- validated is a disqualification. " It has generally been considered a rule of corporation law," says Abbott, C.J. (u), " that a person is • not to be permitted to impeach a title conferred by an election in which he has concurred, or the titles of those mediately or im- ' mediately derived from that election." On an application against a mayor, two persons who were present at and concurred in his election were held disqualified to act as relators (x). So was another person who voted at the election of mayor the succeeding year, when]the mode of election was precisely similar to that at which the defendant was chosen (y). Where the election of a town councillor was questioned on the ground of a defect in the burgess roU, a person who, with full , . (r) L. R. 8 Q. B. p. 215. (x) B. v. Symmons, 4 T. R. 223. (s) Ih. p. 216. (y) lb. See also B. v. Slythe (uhi (t) B. T. O^howne, 4 East, 327. supra), (u) B. V. Slythe, 6 B. & C. 242. 152 QUO WABRANTO INFORMATIONS. knowledge of the objection to the burgess list, had taken part in the election by beiag himself a candidate and voter, was considered disqualified (z). So was a person who, being neither burgess nor iahabitant, took an active part as agent in the same election (a). In cases such as the above ignorance of the law will not get rid of the effect of acquiescence (6), though ignorance of the facts may (c). Acquiescence, in order to disqualify, must be acquiescence in the election to the office in question. If that has been opposed, a subsequent acquiescence or acting with the defendant in the office to which he has been elected, even with knowledge of his want of title, will be no disqualification (d). Eelators have been allowed to try the right of a defendant to the office of alderman, his election to which they had opposed, though they afterwards made no opposition to his election to the principal office of magistracy, to which his aldermanship was a necessary qualification; and even though they afterwards attended at and concurred in corporate meetings where he presided or where he attended in his official character (e). " There must be magistrates," said Lord Kenyon, " and the powers of government cannot stand stiU till the validity of a former disputed election is ascer- tained " (/). The principle which governs these cases is the acquiescence of the relator in the objectionable election at the time (ff). " The Court have on several occasions said, and said wisely, that they would not listen even to a corporator who has acquiesced, or perhaps concurred, in the very act which he afterwards comes to complain of when it suits his purpose " (h). The Court discharged a rule obtained by a relator who had on a previous occasion taken an active part in support of a candidate, to the legality of whose election the same objection was specifically made as the relator now sought to urge, notwithstanding which he (2) S. V. Pa/rry, 6 A. & E. 810. also B. v. Benney, 1 B. & Ad. 684. (a) 11. Bed vide B. v. Bowley, 21 (e) B. v. Glarhe, uU supra. L. J. Q. B. 198. (/) ih. 47. (ft) See B. Y. Trevenen, 2 B. & Aid. (g) Per curiam, B. v. Trevenen, 2 343. B. & Aid. 343. (c) B. V. Morris, 3 East, 213. (h) Per Lord Kenyon, C.J., B. v. (rf) B. V. GlarJce, 1 East, 38. See Clarke, 1 Bast, 46. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 15^ then disregarded the objection, saying that he would not avail him- self of it till Hs candidate was safe (i). An unsuccessful candidate at an election' of a local board of health obtained a rule for a quo warranto information against one of the successful candidates, on the ground that the voting papers having been left in blank (instead of being filled up as required by 11 & 12 Vict. c. 63, s. 24) the election was void. It appearing, on shewing cause, that he himself had voted with a voting paper left in blank, and had also taken part in a former election when a similar course had been pursued, and had been himseK so elected, the Court held him disqualified from being a relator (k). Where, however, the defendant's election as town councillor was attacked on the ground of an objection to the form of rating which would vitiate his title to be on the burgess roll, the fact that the relator's attorney, with the privity of the relator, had withdrawn his objection to the defendant's name being on the burgess roll, after the Eevision Court had overruled a similar objection to another name which stood on the list before that of the defendant, was held no disqualification of the relator. The case was considered to fall short of previous decisions (I). The mere fact of having formerly taken part in other elections where, though there had been the same irregularity as that now complained of, it was not noticed, has not been considered a dis- qualification (m). And where the defect which vitiated the defen- dant's title was a latent one (viz., not having taken the sacrament within a year before his election as mayor, as required by 13 Car. 2, st. 2, c. 1), acquiescence in the election was held not to dis- qualify (n). The legal adviser of the defendant, who had repeatedly advised him that he had been duly elected alderman, was held not to be a proper relator (o). The same was held of a town councillor who, in that capacity, administered to the defendant the declaration required by 5 & 6 Will. 4, c. 76, s. 50, with knowledge of the objection to his election (jp). («■) B. V. Parhyn, 1 B. & Ad. 690. (m) B,. v. Benney, 1 B. & Ad. 684. (k) B. V. Lofthouse, L. R. 1 Q. B. (w) B. v. Smith, 3 T. R. 573. 433 ; 7 B. & S. 447 ; 35 L. J. Q. B. (o) B. v. Payne, 2 Ohitt. 369. 141. (p) B. V. Greene, 2 Gale & Dav. 24. (I) B. V. Buxham, 4 Jur. 1133. 154 QUO WARBANTO INFOBMATIONS. It was objected to a relator who sought to question the election of a mayor as being contrary to a bye-law of the corporation, that he was party to an agreement made by the corporation not to enforce that bye-law, and that if the franchise of any person should be impeached in consequence of it, he should be defended at the public expense ; and the Court on this, ground discharged with costs the rule which he had obtained {g). Where a person had already twice obtained rules nisi for informa- tions against the mayor of a borough, which had been discharged on cause shewn, the Court refused to grant him an information against the succeeding mayor on an objection the same as that iuYolved in the former application {r). Similar defect of Title. — Another preliminary objection has always been held fatal in cases to which it applied, viz., that the persons making the application all stand in the same situation as the defendant, and that they have no title to their respective offices, if the objections to the defendant's election were to prevail (s) ; and in such a case the length of time during which the relator has been holding his office "will be no answer to the objection that he has been holding it under the same defect which he now seeks to bring home to the defendant {t). Effect of poverty. — ^A person in low and indigent circumstances, suspected of acting under the influence of or in collusion with some stranger, not before the Court, who is actuated by vindictive- ness towards the defendant, is not a proper relator, at any rate in a case where the success of the proceeding would have the effect of dissolving the corporation (u). The Court will not, however, refuse its assistance merely on the groimd that the relators are poor and that the proceedings are iastigated, and the funds for them supplied, by a stranger to the corporation {x). The Court distinguished such a case from that last referred to, on the ground that there the stranger had threatened that unless the defendant would belong to his poli- tical party he would take measures to dissolve the corporation ; (2) R. V. Mortloch, 3 T. R. 300. (0 R. v. Oowdl, 6 D. & Ey. 336. (r) R. V. Langhorn, 2 N. & M. 618. (u) R. v. Trevmen, 2 B. & Aid. 339. (s) R. V. Cudlipp, 6 T. B. 503 ; see (a;) R. v. Wakdin, 1 B. & Ad. 50. per Lord Kenyon, p. 508. aENEEAL PRINCIPLES AS TO GRANT OR REFUSAL. 155 and the corporation would have been dissolved if he had succeeded in displacing the persons against whom proceedings were taken. " It may indeed be convenient," said Lord Tenterdeh, " to allow persons not members of the corporation, to lend their assistance in these cases ; for if that were not to be permitted, corporations would in many cases go on from year to year, from century to century, acting irregularly and not according to the laws by which they are established, because members themselves will rarely choose to be at the expense of entering into a contest to be sustained between them and their own body generally." In this case, however, the Court required security for costs. Mere stranger. — A mere stranger to a corporation prowling into other men's rights will not receive assistance from the Court (2/). In a case of this kind Lord Mansfield asked : " "Why do such persons come for redress ? There is no individual among those who apply to the Court at present who says my franchise is hurt. Who are you ? What concern have you with the corporation ? Only one of the king's subjects : I have no concern. What do you come for? To dissolve the corporation and to disturb its peace. Then what is to be taken advantage of here ? A mere blunder, &c." (2). The Court did not, however, consider the fact of the relator being a stranger to the corporation a sufficient objection where the object was to enforce a general Act of Parliament, such as that of 13 Car. 2, St. 2, s. 1 (about receiving the sacrament within twelve months before election (a)). If any one of the relators is duly qualified that is sufficient (6). He must, however, not be a person merely put forward as a nominal relator for the purpose of supplying the defects in the qualifications of the real prosecutors (c). Prima facie case not made (mt.—The, Court has also refused to grant an information where the relator has not made out a suffi- ciently Aqw prima facie case. (y) R. V. Kemp, 1 East, 46, n. B. v. Parry, 6 A. & E. 810. (z) B. V. Stacey, 1 T. R. 3. (c) See per Lord Kenyon, R. v. Oud- (ffl) B V. Brown, 3 T. R. 574, n. lipp, 6 T. E. 509. (b) B. V. Symmons, 4 T, R. 223; 156 QUO WAREANTO INFOEMATIONS. Thus where a justice of the peace was elected (under charter) by " the tenants and inhabitants," an application by an unsuccessful candidate for a quo warranto, on affidavits aUegiug that the votes of " inhabitants " not actually householders had been rejected and that a sufficient number of such votes had been tendered on his side to give him a majority, was refused, chiefly on the ground that his affidavits did not shew what class of persons were entitled to vote as " inhabitants not householders " {d). The reasons for the decision are most clearly stated in the judgment of Coleridge, J. : " Here it appears that the relator would have had a majority by the recep- tion of persons who were inhabitants but not householders. Then it is contended that the word ' inhabitants ' by itself, unless restrained by custom or the context of the grant has, in law, a definite meaning, and that it must here be taken in the full legal sense. If this be so, perhaps a case is made out for granting the rule. But I cannot go along with these propositions. Any lawyer, who was asked the interpretation of the word ' inhabitants ' would say, ' I must see where it is used, for by itself it has no definite meaning.' If its signification varies, we must resort to the context for explanation. Then it is contended that according to the context of this grant, the word must mean aU persons being in the place animo morandi. But in the first place, if that be so, the affidavits ought to have shewn that the applicant had a majority by the votes of persons, not merely passing through, but inhabiting ammo morandi, in which case the party opposing the rule might have given a direct answer to that allegation ; and secondly, I do not think the context of this charter clearly shews that the interpretation suggested is the proper one." In some cases a rule was enunciated that the Court would not (except where there was no other mode of trying the title of the person elected («) ) allow the title of electors to be questioned by attacking the title of the person elected by them (/). In case of municipal corporations the fact of being on the burgess roU was considered decisive of the title of an elector {g). Questions of this (i) B. V. Mashiter, 6 A. & E. 153. (g) S. v. Tugwell, L. R. 3 Q. B. 704; (e) B. V. Mein, 3 T. R. 596. Symmers v. B., Cowp. 489, 507; sed If) B. V. Latham, 3 Buvr. 1487 ; E. vtde B. v. Earrald, L. R. 7 Q. B. 361. V. Hughes, 4 B. & C. 368. GENERAL PEINCIPLES AS TO GRANT OR REFUSAL. 157 kind with reference to corporate ofi&ces cannot now arise in qibo warranto informations Qv). He alone is a competent relator who has some interest, other than Who is a duly such as may belong to the community at large, in the CLuestion to ^a'tor. ° be tried by the quo warranto (i), and who has not, by anj'' of the modes already adverted to (k), disqualified himself from acting as prosecutor. Any inhabitant who is subject to the government of town councillors is a competent relator on a qtu) warranto information against one of the councillors : it is not necessary that the relator should be a burgess (I). So any owner of rated property within a borough is a com- petent relator in a qito warranto for exercising the office of town commissioner, the election to which is by the body of the rate- payers (m). A person who is disqualified as a relator may make an affidavit in support of the application (n). As already stated, it is not a ground for refusing an information against- a member of a corporation that the objection to his title applies equally to every other member of the corporation (o). It has been considered no objection that the proceeding by quo warranto is a friendly one, because it may be the only mode whereby a party who is in office can disclaim (p). The Court in the same case permitted certain persons to come in and defend the defendant's title, he being unwiUing to do so himself (q). In one case the person who had intended moving for a quo war- Management of ranto information, against several persons for exercisiug the office of P™^^™*'""- alderman, complained to the Court that he had been improperly displaced by political opponents who had moved for the rules (h) Vide post, p. 158. (to) B. v. Briggs, 11 L. T. N. S. («■) See per Ashurst, J., 5. v. Brown, 372. 3 T. E. 574, note (J). (n) B. v. Brame, 4 A. & B. 664. (k) Ante, p. 151-155. (o) B. v. White, 5 A. & B. 613. (0 B. V. Parry, 6 A. & B. 810; B. \p) R. v. Marshall, 2 Chitt. 370. V. Quayle, 11 A. & E. 508; B. v. (j) The same thing was done also Eodge, 2 B. & Aid. 344, n. ; Of. B. v. in B. v. Dawes, 4 Burr. 2277. Bavies, 1 M. & Ry. 538. 158 QUO WARRANTO INFORMATIONS. coUusively with the defendants, making as relator a person in low circumstances and in the employment of the attorney prosecuting the rules, and that the attorney had employed the same agents in London to instruct counsel for and against the rules ; and on these grounds he asked for the management of the prosecutions. The Court, though of opinion that the facts did not shew collusion or a design on the part of the prosecutors to obtain any undue advantage, on making the rules absolute, directed that the management of the prosecutions should be transferred to the applicant (r). Lord Denman said : " I do not see what unfair advantage can be con- templated by these parties ; but it is so important in proceedings of this kind that no suspicion should attach to them, that we think it the safest course to forbid the carrj'ing on of the prosecutions by the original relator, and to make the rules absolute for giving the management of them to the party now applying." Cases in which The wholc of the 4th part of the Municipal Corporations Act, qSioMd" ^^ 1882 (45 & 46 Vict. c. 50), viz., ss. 77-104, being, by 47 & 48 Vict, t^n pewtion. °- '^^' ^- ^^ 0-^^ Sched.),made applicable to elections for the follow- ing of&ces, viz. : (1) Member of local board, as defined by the Public Health Act, 1875 ; (2) Member of improvement commis- sioners, as defined by the Public Health Act, 1875 ; (3) Guardian elected under the Poor Law Amendment Act, 1834; (4) Member of School Board : and as by s. 87 of the Municipal Corporations Act, 1882, a municipal election is only to be questioned by election petition on any of the following grounds, viz. : (a.) that the election was avoided by general bribery, treating, undue influence, or personation ; or (6.) that it was avoided by corrupt practices or offences against the fourth part of the Act ; or (c.) that the person whose election is questioned was at the time of the election disqualified ; or (d.) that he was not duly elected by a majority of lawful votes ; it follows that, as to all the above-mentioned offices, a quo warranto will not lie to question the election to it on any of the four grounds specified (s). (r) S. V. AUerson, 11 A. & E. 3. tion Petition, 4 Ir. L. R. Q. B., &c., (s) See Ee Armagh Municipal Eke- Divisions, 196. GENERAL PRINCIPLES AS TO GRANT OR REFUSAL. 159 Such a case as B. v. Morgan (t), where the Court made absolute a rule for a quo warranto information against the defendant on the application of a person who had a majority of votes over the defen- dant, but who had been declared not elected on the ground that his nomination was void, whereas it was in reality good, would now be tried on. election petition. (f) L. R. 7 Q. B. 26 ; and so would L. J. M. 0. 33), the procedure by quo a. V. Andrews, L. R. 2 Q. B. 30. In warranto seems to have heen rightly the recent case of B. v. Codban (56 adopted. 160 QUO WAEEANTO INFOEMATIONS. CHAPTEE V. Peoceduee to obtain Infoemation. FA6E Application for order nisi . . 160 When notice necessary . . . 160 Time within which application must be made 161 Title of affidavits 162 Contents of affidavits .... 162 Order nisi 165 Service of order 166 Shewing cause ...... 166 Eeversed application .... 167 PAGE Costs 168 Order absolute 168 Security for costs 170 Eecognizance 170 Subsequent interference of Court. 171 Permitting defence against defen- dant's wish 171 Consolidation of several orders nisi 171 Substitution of new relator . . 172 Application for Theee being a duly qualified relator or relators, and the period of order nist. limitation not having expired, the first step is to move for an order nisi calling on the defendant to shew cause why an information in the nature of a quo warranto information should not be exhibited against him to shew by what authority he exercises the particular of&ce or franchise. Every application for an information in the nature of a qiu) warranto must be by motion to a Divisional Court for an order nisi, unless the same be ex officio or be made in respect of a corporate office within the meaniag of 45 & 46 Vict. c. 50, s. 225 (a). A corporate office within the meaning of this enactment is that of " mayor, alderman, councillor, elective auditor, or revising assessor." A " burgess " was held not to be a corporate officer, within the meaning of 6 & 7 Vict. c. 89, s. 5 (b), and he is clearly not within s. 225 of 45 & 46 Vict. c. 50. In respect of a corporate office within the last-mentioned statute, the application must be preceded by notice of motion to the person (a) C. 0. E. 51. (h) R. V. Milner, 5 Q. B. 589 ; 13 L. J. Q. B. 186. Where notice of motion necessary. PROCBDUBE TO OBTAIN INFORMATION. 161 affected thereby, to be served not less than ten days before the day specified in the notice for making the application (c). The notice must set forth the name and description of the appli- cant, and a statement of the grounds of the application {A). The applicant must deliver with the notice, on service thereof, a copy of the affidavits whereby the application will be supported (e). Tor form of notice see Appendix. The time within which an application for a, quo warranto must be Time, made has already been pointed out ante, pp. 136, 137. No order for filing any information in the nature of a quo warranto Relator, is to be granted unless, at the time of moving, an affidavit be pro- duced by which some person shall depose upon oath that such motion is made at his instance as relator ; and such person shall be deemed to be the relator in case such order shall be made absolute and shall be named as such relator in such tuformation in case the same shall be filed, unless the Court shall otherwise prder (/). As to the competency of a relator, vide ante, pp. 151 seq. The affidavits should set forth fully all the material facts of the Affidavits, case ; for where the order nisi has been discharged on the ground of insufficiency in the affidavits, a renewed application on better materials has not been permitted (g). (c) C. 0. R. 52. To a like effect is thefirstinstance against the application, s. 225 of 45 & 46 Vict. c. 50. " In the " If sufficient cause is not shewn, the case of such an application, or of an Court on proof of due service of the application for a mandamus to proceed notice, statement and copy of affidavits to an election of a corporate officer, used in support of the application, may, the apphcant shall give notice in writ- if it thinks fit, make the rule for the ing of the application to the person to information or mandamus absolute, be affected thereby (in this section "The Court may, if it thinks fit, called the respondent) at any time not direct that any issue of fact on an in- less than ten days before the day in formation be tried by jury in London the notice specified for making the or at Westminster." application. W ^- 0- R- 53- " The notice shall set forth the name (fi) Ih. and description of the applicant, and a (/) C. 0. B. 54. statement of the grounds of the appli- (ff) See B. v. Sarzey, 4 M. & S. 253 ; cation. Of- ^- '^- Sarion, 9 Dowl. 1021'; B. v. "The applicant shall deliver with the Manchester, &c., Bailway Company, notice a copy of the affidavits whereby 8 A. &. E. 413 ; B. v. Smifhson, 4 B. & the application wiU be supported. Ad. 51 ; B. v. Harland, 8 Dowl. 323 ; " The respondent may shew cause in Saunderson v. Westley, id. 652. M 162 QUO WAREANTO INFORMATIONS. Title of affi- davits. Contents of affidavits. ■yVTiere affidavits were defective only ia the title Qi) or jurat («'), the Court permitted a renewed application. But a renewed appli- cation would now be unnecessary, as by the New Crown Office Kules (No. 19), the Court or judge may receive any affidavit sworn for the purpose of beiQg used in any cause or matter, notwithstand- ing any defect by misdescription of parties or otherwise iu the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received. For the general rules as to the framing and swearing of affidavits, vide ante, pp. 42-44 The affidavits, on moving for the order nisi, should be entitled merely : " In the High Court of Justice, Queen's Bench Division." The affidavits should set forth fully all the material facts, and pledge the deponent's belief to the truth of the various allega- tions. It should appear from them, iu the first place, that the relator is duly qualified. On an application against a town councillor, an affidavit of " A. B. of C, tailor," was held insufficient, as it did not shew that he was a burgess, or subject to the jurisdiction of the town council (Jc). But it is no objection to a deponent that he is himself estopped from being a relator (J) ; and the affidavit of such a person may supply the chief ground of the application, there being another competent relator (m). It is sufficient, as before observed, if any one of the relators is duly qualified. An affidavit of a person that he " has directed an application to be made " for the rule, and that the motion " vsill be made at the instance of this deponent as relator, and that this deponent shall be deemed to be the relator in case such rule shall be made abso- lute, and shall be named as such in such information in case the same shall be filed, unless the Court shall otherwise order," was held (A) R. V. Jones, 8 Dowl. 307. (i) Shawy. Perhin, 1 Dowl. N. S. 306. (k) R. V. Thirlmnd, 33 L. J. Q. B. 171 ; 9 L. T. N. S. 731. (Z) B. V. Brame, 4 A. & E. 664. " We find no authority," said the Court, " for saying that a person who cannot himself be a relator may not make afiBdavit in support of an application for a quo warranto." (m) lb. PROCEDURE TO OBTAIN INFORMATION. 163 sufficient under Eeg. Gen. M. T. 3 Vict. (»). But an affidavit stating that in case the Court should order the information to be exhibited, it was the deponent's intention to be and to become really and lona fide, the relator therein, was held not sufficient (o). See now C. 0. E. 54, ante, p. 161. The affidavits must shew that the defendant not only claims, but has actually taken upon himself the office in question (y) : it is not enough to say that he has " accepted " the office, without shewing how he has done so {g), as, in the case of a town councillor, by attending meetings of the council (»•). But an affidavit stating the deponent's " information and belief" that the person moved against has exercised the office, is sufficient (s). After long years of exercise of the office of mayor, an affidavit stating the relator's belief that the mayor had not been duly sworn in, was held insufficient (<). The affidavits should shew the mode of election («) : and if an immemorial custom is relied on, the affidavit must state the depo- nent's belief that it is immemorial ; it is not enough to state facts from which such a conclusion could be drawn (x). If the objection to an election is that it was not in conformity with a charter, the affidavits should state that the charter was accepted, or that the usage had been in conformity to the charter {y). (w) E. V. Anderson, 2 Q. B. 740; 2 said (p. 717) : " It is said that there G. & D. 113. should have been a public meeting [of (o) R. V. Hedges, 11 A. & E. 163 ; the burgesses], and a vote upon the 9 Dowl. 493. question whether it should be accepted (p) R. V. Whitwell, 5 T. R. 85 ; R. or not; and if that was absolutely neces- V. Pejyger, 7 A. & E. 745. sary, the charter certainly has not been (j) R. V. Slatter, 11 A. & B. 505 ; accepted. But no instance of any such R. V. Mayor of Wmchesier, 7 A. & E. meeting has been shewn, nor has any 215 ; R. V. Tafe, 4 East, 337. authority or dictum that such a meet- (r) R. V. Quayle, 11 A. & E. 508. ing was necessary been adduced. It (s) R. V. Slythe, 6 B. & C. 240; R. has long been the received opinion V. Earwood 2 Bast 177. ^^^^ there must be an acceptance ; but (05.v.JVeM)?JK^,3T.R. 310. Seethe the mode of proving it has always cases referred to by Buller, J., at p. 311. been left open. In general this accept- (tt) R. V. Mein, 3 T. R. 598. ance of a charter has been proved by (x) R. V. Lane, 5 B. & Aid. 488. evidence of acting under it, and that is (y) R. V. Barzey, 4 M. & S. 253. evidence in the case of a new as well As to what amounts to an acceptance as of an old charter." Littledale, J., of a charter, see R. v. EugUs (7 B. & added : " I am of opinion that any C. 708), where Lord Tenterden, C. J., unequivocal act of the parties shewing M 2 164 QUO WARRANTO INFORMATIONS. Where there is a- charter, the question will be determined by a consideration of its terms alone, imless the affidavits specify a usage (z). If the ground of application be the acceptance of an office incom- patible with one already held, the affidavits must shew, not only ' an acceptance and actual exercise of the second office, but also a valid appointment to it (a). They should also shew that the two are in fact incompatible (b), and that the defendant could by his own mere act divest himself of the former office ; or, if the concur- rence of another person was requisite, that such concurrence had been obtaiaed (e). Where an actual amotion is requisite to vacate an office, the affidavits should state that such amotion has taken place (d). The grounds of objection to the validity of an election should be clearly stated, e.cf., the absence of due notice (e). The affidavits should state when the defendant was elected, and establish a prima facie case referable to that time; a relator cannot say to the Court that whenever the defendant was elected, he was not duly elected (/). In such a case the defendant is not bound to answer for the proceedings of any other day than that specified by the relator (g). Where a relator's affidavit had omitted to state in whom the right of election to the office of portreeve was, the deficiency was (on argument of the rule) allowed to be supplied by the defendant's affidavit, disclosing the mode of election (h). If the objection be that the person moved against had not a majority of legal votes, the affidavits should shew who are entitled their assent to accept and be governed (a) E. v. Daj/, 9 B. & C. 702 ; cf. by the charter is sufficient." Two Boston's case, cited Noy. 78. hundred and sixty-two burgesses (6) S. v. Pateman, 2 T. R. 777. having voted at an election to the (c) See per Parke, J., E. v. Patte- oifice of town sergeant, under the son, 4 B. & Ad. 2-t. charter, and 129 more having signed a (d) E. v. Heaven, 2 T. R. 772. paper giving their assent to the accept- (e) E. y. Thomas, 8 A. & E. 183. ance of the charter, the sum of these (/) Per Lord Denman in E. v. two amounting to a majority of the Eolfe, 4 B. & Ad. 842. entire number of burgesses, this was (g) Ih. held by the Court to be a sufficient Qi) E. v. Mein, 3 T. R. 598 ; as to acceptance of the charter. Ih. criminal informations, vide E. v. BcM- (z) E. v. Herirlhy, 7 B. & C. 49G. win, 8 A. & E. IGS, ante, p. 48. PEOCEDUEE TO OBTAIN INFOEMATION. 165 to vote, and that another person had a majority of such votes (i). It is not enough that the affidavits shew that a large number of persons voting were not qualified ; they must shew for whom the votes of such persons were given (k). A relator's affidavit stating his information and belief that the defendant has usurped the office in question, if not contradicted by the defendant's on shewing cause, will be sufficient to induce the Court to grant the information (Z). As to hearsay and belief in affidavits, it makes a great difference whether the matter of hearsay and belief goes to the validity of the title, or merely to the fact of the party having exercised the office ; it is not considered sufficient in the former case, though it may be m the latter (m). The various rules of Order xxxviii. of the Supreme Court Eules and Orders as to affidavits and depositions are made applicable to qtoo warranto proceedings (Order LXVni., r. 2). For the mode of framing and swearing affidavits, &c., in or out of England, the mode of filing and stamping them, the striking out of scandalous matter, the making of alterations, the affidavits of illiterate persons, &c., vide ante, pp. 42-44. ■ Forms of affidavits will be found in the Appendix. An order will not be granted, in the alternative, for a qiw warranto Order nisi. or a mandamus (■»). One order may be granted in respect of several offices (o). A single order may be granted agaiast several defendants (p). Every objection intended to be made to the title of a defendant on an information in the nature of a q^w warranto must be spe- cified in the order to shew cause or notice of motion, and no objec- tion not so specified can be raised by the relator on the pleadings without the special leave of the Court or a judge (q). This is a reproduction of a Eeg. Gen. of Hil. T., 7 & 8 Geo. 4 (r). (i) R. V. Mashiter, 6 A. & E. 153. See also .8. v. Patteson, 4 B. & Ad. 9. \h) R. V. Jefferson, 5 B. & A. 855. (p) See R. v. Warlmo, 2 M. & S. (0 R. V. Earwood, 2 Bast, 177 ; R. 75 ; R. v. Rwmsden, 3 A. & E. 456 ; V. Slythe, 6 B. & C. 240. R. v. Hanley, 3 A. & E. 463, note. (to) Per curiam, 6 B. & C. p. 243. (?) 0. 0. E. 55. (n) R. V. Mayor of Leeds, 11 A. & (r) The reason of the rule is thus B. 512. stated by Blackburn, J., in R. v. Tug- (o) jB. v. Thomas, 8 A. & E. 183. welh " When the Court, being satisfied 166 QUO WAREANTO INFORMATIONS. Where all the rule nid stated was that the party against whom the application was made was not entitled to be appointed to the office, and that the relator was, the Court considered that the objec- tion to the defendant's title was insufficiently stated (s). This strictness applies only to the pleadings ; the rule does not prevent the relator at the trial of the information taking objections not specified in the order nisi (t). It does not say that no evidence shall be given of any objection not specified in the order, nor does it contain any regulation as to evidence. The effect of it is that if, without the leave of the Court or a judge, the relator raises on the record any objections to the title of the defendant not specified in the order nisi, the replications wUl be struck out (u). Service of The mode of serving the rule, when drawn up, is the same as in the case of criminal informations, as to which vide ante, p. 53. See form of order nisi in Appendix. Shewing caose. No person is allowed to shew cause against an order nisi unless he has previously obtained office copies of such order and of the affidavits on which it was granted («). As to enlarging the rule when the defendant is not ready to argue it, see the remarks made ante, pp. 53, 54, which are applicable to quo warranto informations also (y). that there was a good objection, in to the defendant's traverse, and thirty the exercise of its discretion granted special replications setting up various leave upon one point, the relator customs as to the election or appoint- might start a number of other objeo- ment of bailiff of the borough, which tions which the Court never intended ofBce the defendant was aUegedtohave to be raised, and on which, in its usurped. The object of the Reg. Gen. discretion, it would not have given was to provide a remedy for this abuse " leave to file the information ; and, the (9 B. & S. 375). As to the previous Crown not being subject to the rule practice, see M. v. Brovm, 4 T. R. 276. against duplicity in pleading, there (s) R. v. Edye, 12 Q. B. 936 ; see R. were replications without stint, travers- v. Preece, 5 Q. B. 94. ing aU the allegations in the plea and («) R. v. Tugwdl, 9 B. & S. 367 ; raising all kinds of objections, to the L. R. 3 Q. B. 704. great expense and annoyance of the {u) Per Blackburn, J., ib. ; cf. R. person holding the office in question. v. Preece, 5 Q. B. 95, note Qi). The books swarm with instances of ~ (x) C. 0. R. 26. This was also the this abuse; and R. v. McKay (4 B. & rule previously; see R. v. Inhabita/nts C. 351) is an instance where there were of Rotherham, 12 L. J. M. C. 17. sixteen general replications putting in (jj) See also Anon., 2 Barnard. 340. issue the facts stated as inducement PROCEDURE TO OBTAIN INFORMATION. 167 The defendant's affidavits may be entitled either simply "In the High Court of Justice, Queen's Bench Division," or with the addition " The Queen against A. B." (z). As to the various grounds on which the Court may discharge the order, let it suffice to say in general (1) that all the grounds already given for refusing an order nisi in the first instance are also grounds for dischajging it if granted ; (2) that the suppression of any material fact in the affidarvits on which the order was granted will be a reason for discharging it (a) ; and (3) that the Court will not discharge the order on the merits, wherever a fair doubt ia law exists, which ought to be raised on the pleadings, or where there is a conflict of testimony as to facts which a jury is the proper tribunal to settle (b). Where, however, the case set up by the relator's affidavits is completely answered by those of the defendant, the Court wiU discharge the order nisi (e). As to the motives of the relator, vide ante, pp. 149, 157, 158. The Court will not discharge the order merely on the ground that a similar attack had previously been made on the defendant's title and abandoned (d) ; even though the order had been obtained on an affidavit made by the same deponent (e) ; unless both appli- cations are at the instance of the same relator (/). An appeal lies to the Court of Appeal from either the grant Appeal. or refusal of an order nisi by the Divisional Court, as well as from its decision in discharging or making absolute the order nisi (g). Where the order nisi has been discharged, the same relator will Kenewed ap- • 1 ro 1 ■ 1 • • T- plication to not be permitted, on new atndavits explammg or contradictmg DivisioDal those used on shewing cause, to attack the defendant's title for the °^^*" same alleged defect; for this would be to encourage parties to (z) B. V. Jones, 1 Str. 704 ; B. v. (c) B. v. Bolfe, 4 B. & Ad. 840 ; see Harrison, 6 T. R. 60 ; B. v. Cole, 6 also B. v. Orde, 8 A. & E. 420, note ; T. R. 640. B. V. Sargent, 5 T. R. 466, and B. v. (a) See per Lord Tenterden, B. v. Ohitfy, 5 A. & E. 609. Of. B. v. Hughes, 7 B. & 0. 719. Fisher, 4 B. & S. 575. (V) See per Lord Kenyon, in B. v. (d) B. v. Bond, 2 T. R. 767. Mein, 3 T. R. 598 ; B. v. Quayle, 11 (e) B. v. Alderman of New Badnor, A. & E. 508 ; B. v. Carter, Cowp. 58 ; 2 Lord Keny. 498. B. V. Sandys,. 2 Barnard. 301; B. v. (/) iJ.v. OrcZe, 8 A. & E. 420, n. lb. Godwin, 1 Doug. 897. () See per Lord Denman, B. v. relator had been compeUed to go to the Dudley, 7 DowL 701. See, for an ex- "West Indies on business. ample of such a case, B. v. Alderson, 11 ( 173 ) CHAPTEE VI. The Infoemation and subsequent Pleadings. PAGE •The Information 173 One information against several persons 175 Filing information 175 Amending and quashing informa- . mation 175 Appearance of defendant . . . I75 Disclaimer 175 Order to plead .;.... 176 Defence 176 Demurrer 179 PAGE Pleadings subsequent to defence . 180 Close of pleadings 181 General rules as to pleadings . . 181 Amendment 184 Special case 184 Judgment by defaulter . . . 185 Neglect by solicitor .... 186 Rules as to time 186 Effect of non-compliance with rules 188 The observations made ante, pp. 58, 59, as to criminal informa- The infor- tions apply equally to quo warranto informations. mation. In informations filed by leave of the Court, the information invariably states that " A. B., coroner and attorney of our present Sovereign Lady the Queen, in the Queen's Bench Division, &c., knd for our Lady the Queen, at the relation of C. D.," &c. ; but in •cases which do not come within the statute of 9 Anne, c. 20, it would seem that the mention of a relator is not necessary {a). • The second and other counts are usually commenced thus ; ia the case of an ex-officio information : " And the Attorney-General of tour said Lady the Queen, for our said Lady the Queen, further giveth the Court here to understand and be iaformed that,"- &c. ; or, in iaformations filed by leave of the Court : " And the said coroner and attorney of our said Lady the Queen, for our said Lady the Queen, further giveth the Court here to understand and be informed," &c. The information need not state that it is filed by leave of the (a) Denison, J., speaking of this fore will not hurt the common law class, says: " The mention of a relator judgment." B. v. Williams, 1 Burr, is no more than surplusage, and there- 408). 174 QUO WAERANTO INFORMATIONS. Court (&). "The Court gives the order, and the information is filed ; but such leave never appears on the record " (c). It is not necessary to allege whether the office is by charter or by prescription, if it appears to be one which concerns the public. An information calling on the defendant to shew by what autho- rity he claimed to be baHifE" of the village of Southwold was demurred to on the ground that it did not appear that Southwold was a cor- poration, so as to make this a usurpation upon the Crown; the office might be only a private one as bailiff of a manor. Sed per cwriam : it is said to be an ancient town, and that this is a pubKc office, an office of great trust and pre-eminence within the town relating to the administration of public justice : all of which was confessed by the demurrer. Therefore judgment was for the Crown {d). Oneinforma- There may be one information against several persons, and several persons against the Same persons for different usurpations («). and for sereral j^j.^ Mansfield was of Opinion that an information for different usurpations. ^ usurpations would have been good at common law ; but if not good at common law, it was within 19 Geo. 2, c. 12, s. 4 (/). In dealing with the objection to an information that it was against different persons, the same judge said : " The answer is, that the Act of Parliament gives a discretionary power to the Court to grant one or more informations according to the nature and circumstances of the case : and to suppose extravagant cases, or that the Court would be absurd enough to join two franchises in different corpora- tions, is to suppose a case that cannot exist. The Legislature trusts the Court with the discretion of joining them ; and, upon an appli- cation for leave, the Court goes into the nature of the question to be tried. In this case, nothing could be more proper than to join the several defendants and the respective franchises they claim, which are three. The right of election is exactly the same, the question is the same, and the evidence is the same " {g). There are many instances of an information being granted in (J) Symmers v. B., Cowp. 489. E. v. FosUr, 1 Burr. 573 ; R. v. Brotm, (c) Per Lord Mansfield, Tb. 3 T. E. 574 n. (d) B. V. Boyles, 2 Str. 836. (/) /ft. 500_ (e) See Symmers v. B., Cowp. 489 ; (g) lb. THE INFORMATION AND SUBSEQUENT PLEADINGS. 175 Trespect of two or more distinct offices, though this is not the usual practice {h). Forms of information will be found in the Appendix. The information (which is usually settled by counsel) is engrossed Filing, on parchment, signed by the Master of the Crown Office, and then filed. Though it may be filed before the relator's recognizance has been entered into, no process can issue before the recognizance is filed (i). Ex-officio informations are, when signed by the Attorney-General, filed without any order of the Court or recognizance. Leave -to amend has almost always been given, even after the Amending, information has been demurred to. The Court wiU not quash a quo warranto information on motion, Quashing, though both parties consent (Ic). But, where both parties consented, it has allowed the recognizances on both sides to be discharged {I). All the rules as to the appearance of the defendant and the mode Appearance, of compelling it, set forth ante, pp. 59 seq., in dealing with criminal informations, apply also in the case of quo warranto informations. If a defendant on an information in the nature of a quo warranto Disclaimer, does not intend to defend, he may, to prevent judgment by default, enter a disclaimer at the Crown Office Department and file a copy there, and deliver another copy to the relator or his solicitor. Upon the disclaimer being filed judgment of ouster may be entered at the Crown Office Department, and the costs taxed as in judg- ment by default (m). In an old case the Court, under peculiar circumstances, allowed a disclaimer to be entered by the defendant without costs {n) ; but the rule just quoted appears to give the relator a right to costs (o). See, however, Order Lxv., r. 1, of the Supreme Court Eules, 1883, and C. 0. K. 300. For form of disclaimer see Appendix. (A) See B. v. Pattesm, 4 B. & Ad. Cousins, 7 A. & E. 285. 9 (alderman and justice of the peace) ; (i) C. 0. B. 46 ; B. v. Mayor of B. V. Thomas, 8 A. & El. 183 (town Hertford, 1 Salk. 376. clerk and clerk of the peace) : 2 Gude, (Jc) B. v. Edgar, 4 Burr. 2297. 258 (recorder and justice of the peace) ; (0 lb. 2 Gude, 259 (deputy recorder and jus- (m) 0. 0. E. 59. tice of the peace) ; Symmers v. if., (n) B. v. Holt, 2 Chitt. 366. Cowp. 489 ; Coke's Entries, 527 ; B. v. (o) See B. v. Hartley, 3 E. & B. 143. 176 QUO WARRANTO INFORMATIONS. Pleadings. Defence. Order to plead. On the appearance of the defendant, an order to plead may be drawn up at the Crown Office by the prosecutor or his solicitor (p). This is an order of course (q). Every pleading (other than a plea of guilty or not guilty) is to be intituled : " In the High Court of Justice, Queen's Bench Division," and shall be dated of the day of the month and the year when the same was pleaded, and shall bear no other time or date. It shall be written or printed on paper, and a copy shall be delivered to the opposite party and be filed at the Crown Office (r). The defendant may plead to the information within such time and in like manner as if the information were a statement of claim in an action (s); that is, within ten days from the service of the information, or from the time limited for appearance, which- ever shall be last, unless such time is extended by the Court or a judge (0. No plea in abatement is allowed (u). The time to plead may be extended, on application by summons to a judge at chambers, upon such terms and for such time as the judge in his discretion may think fit (x). Before the Act of 32 Geo. 3, c. 58, a defendant could not plead double to a quo warranto information (y). Sect. 1 of that statute enabled the defendant to plead such several pleas as the Court on motion should allow (2). The whole of this Act has been repealed by 45 & 46 Vict. c. 50, s. 5, as to boroughs within the latter Act. As, however, the defendant's plea, as well as aU subsequent plead- ings, are now to be had and taken as if in an action (a) ; and the defendant in an action not only may, but must (6), raise by his pleading aU such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, it would seem to Pleading double, or seTeral matters. (p) C. O. R. 132. (q) lb. 252. (r) lb. 128. (s) lb. 134. (f) Order xxi., r. 6. (u) Older xxi., r. 20. Pleas in abatement to informations and indict- ments had been practically abolished by 7 Geo. 4, c. 64, s. 19. (x) 0. O. R. 133. (y) B. V. Newland, Sayer, 96 ; if. V. Archbishop of Torh, Willes, 533. (2) An unsuccessful attempt was made in R. v. Autridge, 8 T. B. 467, to limit the statute to cases where the defendant had held office for six years. It applied only to franchises of a cor- porate kind : R. v. Richardson, 9 East, 469 ; R. V. Bighmore, 5 B. & A. 771. (a) C. 0. R. 134. (6) Order xix., r. 15. THE INFOEMATION AND SUBSEQUENT PLEADINGS. 177 follow that he may, without leave, plead several matters by way of defence. The provisions of No. 252 of the new Crown Of&ce Eules as to pleading double or several matters (in cases coming within which an application, by way of motion to a Divisional Court, for an order nisi under r. 254 appears to be necessary), though r. 250 makes it applicable to all proceedings on the Crown side, will probably be held not to apply to quo warranto proceedings; on the ground that leave to plead several matters is not now necessary in quo warranto. As to the Crown, it is clear, according to WOles, J. (e), that at common law the Crown was not precluded from pleading double, or pleadiQg and demurring. "I speak with the sanction of the highest authority," says that learned judge, " when I say that the right of the Crown to plead double was unaffected by any of the statutes or rules of Court relating to pleading and procedure " (d). Every allegation not denied specifically or by necessary impHca- Mode of tion, or stated to be not admitted, is to be taken as admitted (e). allegations of The plea should not deny generally the grounds alleged iu the '°f°'^™»*""»- information, but each allegation of fact not admitted should be specifically dealt with (/). The same principles were acted on under the old system of pleading. Where the information described the office in question as an office " of great trust and pre-eminence within the borough touching the rule and government of the borough, and the election and return of burgesses to serve for the Commons in Parliament for the said borough," it was held that the plea admitted every part of this description which it did not specifically deny (g). A defendant was not allowed to plead not guilty, or that he did not usurp the office or franchise in question ; for if he had at aU exercised the office or franchise his plea must shew by what authority he had done so (A). But a plea that he did not exercise or use the office or franchise Examples of ■*- defences. would be good (i). (c) ToUn V. B., 14 0. B. N. S. 522. (h) See B. v. Blagden, 10 Mod. 211, (c[) lb. 296. (e) Order xrs., r. 13. (i) B. v. Ponsonby, Sayer, 245 ; (/) Id., r. 17. 1 Lord Keny. 1 ; 2 Bro. P. C. 311. (g) B. V. McKay, 4 B. & C. 351. N 178 QUO WAREANTO INFOEMATIONS. A plea that the defendant was duly elected or appointed to the office in question, without shewing how he was elected or appointed and how he was admitted to or took upon himself the office, woxild be considered bad (h). So strict was the necessity for the defendant to set forth fuUy and accurately his title, and to put it on the right ground, that in one case where in his plea the defendant grounded his title on a claim of prescription, which was found against him, the Court gave judgment of ouster, though it appeared on the face of the record that the defendant had a good title under a charter ; and a repleader was refused {l). In another case, where .the defendant's njistake eonsistpd in a defective setting forth of a really good title, a verdict against him was set aside on his paying the costs, and liberty to amend his plea was given (m). To a quo warranto for exercising the office of common council- man of a borough, the defendant pleaded a charter of WUl. 3 to the borough directing that the common council men should be elected in such manner as was used before a former charter of Chas. 2 ; and that before the charter of Chas. 2, the mayor, baUififs, and burgesses used to elect, except at those times when there was any bye-law to regulate the mode of elections. The Court held the plea bad on demurrer, as not shewing what in fact was the usage before the charter of Chas. 2 : the plea amounted merely to a statement that councUmen were elected by mayor, &c., except when they were elected in some other manner (n). If the defendant succeeded on any plea which was a complete bar to the information, he was entitled to judgment ; but if he only partially succeeded in proving such a plea, the judgment was one of ouster (o). Further, if the only plea pleaded was bad, and shewed no title to the franchise, judgment of ouster might be given upon it as con- fessing an usurpation (j>). (h) See per Lord Mansfield, B. v. (m) B. v. Philips, 1 Burr. 292. Leigh, 4 Burr. 2144. (w) B. v. Birch, 4 T. E. 608. (0 Ih. So the facts seem to have (o) B. v. Dovmes, 1 T. E. 4^3 ; B. been regarded by Lord Mansfield and v. Philips, 1 Str. 394 ; B. v. Penryn, Yates, J. But Aston, J., thought it 1 Str. 582 ; 2 Bro. P. C. 294. did not appear that the defendan,ts (p) B. v. Philips, ubi supra. could have made a title at all. THE INFORMATION AND SUBSEQUENT PLEADINGS. 179 The defence may be partial in respect of time. Partial A defendant may plead as to part of the time he is alleged to ' ™°*' have usurped the ofiBoe or franchise, a confession of the usurpation, a;nd as to the residue a justification on the ground of due election and admission. K as to part of the time he establishes his justifi- cation, the judgment is not of ouster, but merely that he be fined for the usurpation confessed (q). He may, of course, plead that as to part of the time he did not exercise the of&ce or franchise, and a justification as to the rest of the time. As to amending the defence, see " Amendment," post, pp. 183, 184 (r). As by No. 134 of the New Crown Office Eules the defendant's Demurrer, plea and all subsequent pleadings are (subject to the rest of those rules) to be as if in actions, and in like manner as if the information were a statement of claim ; and, as in actions, demurrers are abo- lished (s), and every party is entitled to raise by his pleading any point of law ; which is to be disposed of by the judge who tries the cause at or after the trial, unless by consent of the parties or by order of the Court or a judge on the application of either party, it is set down for hearing and disposed of at any time before the trial (t), it would seem that the procedure substituted for demurrer in the case of actions is also to be adopted in the case of quo warranto informations («). It is clear, however, that whether a defendant can or cannot (j) B. V. Biddle, 2 Str. 952 ; B. v. side. A demurrer admitted the truth Taylor, 2 Barnard. 238, 280, 316, 320; of the allegations in the pleading de- B. V. Olarke, 2 Bast, 75. murred to : see B. v. Boyles, 2 Str. (r) Under the old system leave to 836 ; 2 Lord Eaym. 1559 ; and B. v. amend was easily obtained (B. v. McKay, 4 B. & C. 351. The Crown Grimes, 4 Burr. 2147), even after the might at the same time demur to a plea had been demurred to, and a plea and traverse the allegatiohs in it : concilium moved for (B. v. Mlams, B. v. Biploch, 10 B. & S. 174, n. ; B. 7 Mod. 220), and after argument of v.Gmewer, 6T.E. 732, 733, n. It seems such a demurrer {B. v. Birch, 4 T. B. doubtful whether the old pleading rule 608 ; B. V. Blatchford, 4 Burr. 2147). (H. T. 4 Will. 4), which requijed the (s) Order xxv., r. 1. grounds of demurrer to be stated in (t) lb. r. 2. *^^ margin, applied to quo wa/rranto {u) 0. 0. R. 250, 252 (c), leave proceedings : 5. v. Woolhtt, 2, Or. M. some doubt on the point, being appli- & E. 256; B. v. Alderson, 1 Q. B.- cable to all proceedings on the Crown 883, note (6). N 2 180 QUO WAERANTO INFORMATIONS. demur to the mformation, he is not obliged to do so, and that he can raise in his statement of defence any legal objection to the information which might be raised by demurrer. Pleadings sub- All Subsequent pleadings are also to proceed in like manner as sequent to . . defence. in an actiou (y). Reply. The reply is to be deUvered within twenty-one days after the defence has been delivered, imless the time is extended by the Court or a judge (z). No objection to the defendant's title can be raised on the plead- ings without the special leave of the Court or a judge, other than the objection or objections specified in the order to shew cause or notice of motion (a). The prosecutor, in answer to a plea that the defendant has held or executed the office or franchise for six years before the exhibit- ing the information, may reply any forfeiture, surrender, or avoid- ance by the defendant within the six years (b). Under the old procedure a replication which merely denied an inference of law from the facts stated in the plea, but not the facts themselves, was considered bad (c). The following are examples of replications : that the defendant was, at the time of the election relied on in his defence, disqualified to be elected (d) ; that he was not duly elected (e) ; that he was not lawfully admitted (/) ; that there was a former judgment of ouster against him after the election pleaded by hiTn (y). Pleadings sub- No pleading Subsequent to reply, other than a joinder of issue, sequent to , t t i • i reply. is to be pleaded without leave of the Court or a judge ; and such pleading is to be then pleaded only on such terms as the Court or judge shall think fit (h). Subject to this rule, every pleading subsequent to reply must be (y) C. 0. E. 134. alleged new matter not consistent with (z) Order xxm., r. 1. the defendant's plea: S. v. Knight, 4 (a) C. 0. E. 55, repeating in sub- T. E. 419. stance a Beg. Gen. of H. T., 7 & 8 (d) R. v. York, 2 G. & D. 105. Geo. 4; previously to which the rule (e) R. v. Smith, 2 M. &S. 583. was different: see R. v. Brown, 4 (/) Mayor of Fenryn's case, 1 Str. T. E. 276. 582; R. v. Clarke, 2 East, 75 ; R. v. (6) C. 0. E. 135. Courtenay, 9 East, 246. (c) R. V. Blagden, 10 Mod. 211, (g) R. y. Clarke, 2 East, 75. 296. So also was a replication which (h) Order xxm., r. 2. THE INFORMATION AND SUBSEQUENT PLEADINGS. 181 delivered within four days after the delivery of the previous plead- ing, unless the time is extended by the Court or a judge (i). One order only to plead, reply, rejoin, or plead subsequent pleadings is to be given, and such order may be drawn up and served as well during the sittings as in vacation ; and every such order shall expire as follows, that is to say, every order to plead, in ten days next after service thereof, unless the time be extended by order of the Court or a judge, and every order to reply, rejoin, or plead subsequent pleadings in eight days next after service thereof, unless the time be extended as aforesaid (Jc). As soon as any party has joined issue upon the previous pleading close of of the opposite party simply, without adding any further or other pl^^'^'^g'- pleading thereto, or has made default m delivering any pleading after defence, the pleadings are to be deemed to be closed (T). Specific denial — Every allegation of fact in any pleading, if not General rules denied specifically or by necessary implication, or stated to be not pfj'adings! *° admitted, is to be taken as admitted (m). Performance of conditions precedent. — Any condition precedent, the performance or occurrence of which is intended to be contested, must be specifically denied ; and subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of either party is to be implied in his pleading {n). All points relied on to he raised. — ^Each party must raise by his pleading all such grounds of defence or reply as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings (o). No pleading is, except by way of amendment, to raise any new ground of claim, or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same (p). Joinder of issue. — The reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined ; but it may except any facts (i) Order xxm., r. 3. (m) Order xix., r. 13. Ik) C. 0. R. 131, (n) Id., r. 14. (I) Order XXIII., r. 5 ; Order xxxvn., (o) Id.,T. 15. r. 13. (p) Id., r. 16, 182 QUO WARRANTO INFORMATIONS. which the party may be w illin g to admit, and shall then operate as a denial of the facts not so admitted {q). Mode of denial. — -When a party in any pleading denies an allega- tion of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. And so when a matter of fact is alleged with different circumstances, it shall not be sufficient to deny it as alleged with these circumstances, but a fair and substantial answer must be given (r). Contents of documents.-— Whexesrex the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, imless the precise words of the document or any part thereof are. material (s). Allegation of notice. — ^Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material (t). FoAits unnecessary to be alleged. — Neither party need in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side, imless the same has first been specifically denied («), Technical o'bjection. — No technical objection is to be raised to any pleading on the ground of any alleged want of form (x). Unnecessary or scandalous matter. — The Court or a judge may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scan- dalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action ; and may in such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client (y). Amendment with Leave. — The Court or a judge may, at any stage of the proceedings, allow either party to amend his pleadings in such manner and on such terms as may seem just; and all such amendments shall be made as may be necessary for the purpose of (?) Order xrs., r. 18. (a) Order xk., r. 25. (r) Id., r. 19. (a;) 7^.^ ,. 26. (s) Id., r. 21. (y) ja.^ j_ 27. (0 Id., r. 23. THE INFORMATION AND SUBSEQUENT PLEADINGS. 183 determining the real questions or question in controversy between the parties (z). Even under the old practice. Lord Mansfield considered it reasonable that if a defendant discovered before trial that he had pitched on the vn-ong defence, he should be at liberty, on proper terms, to quit it and insist on another which would better support his claim (a). In another case, after trial and verdict for the Crown, the Court set aside the verdict and gave the defendant leave to amend his plea on payment of costs where, owing to a mistake, the plea did not accurately set forth the defendant's case (h). Application for leave to amend. — Application for leave to amend any pleading may be made by either party to the Court or a judge in Chambers, or to the judge at the trial ; and such amendment may be allowed upon such terms as to costs or otherwise as may seem just (c). Amendment hy writing or reprint. — A pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the document diffi- cult or inconvenient to read ; in either of which cases the amend- meiit must be made by delivering a print of the document as amended {d). Failure to amend after order. — If a party who has obtained an order for leave to amend does not amend accordingly, within the time Umited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge (e). Marking pleading ' as amended. — Whenever any pleading is amended, the same when amended shall be marked with the date of the order, if any, under which the same is so amended, and of (z) Order xxvin., r. 1. (c) Order xxviil., r. 6. (a) R. Y. Blatchford, 4 Burr. 2147. {d) Id., r. 8. (6) B. v. Philips, 1 Burr. 292. (e) Id., r. 7. 184 QUO WAEEANTO INFORMATIONS. the day on which such amendment is made, in manner following, ■viz. : " Amended day of pursuant to order of dated the of " (/). Delivery of amended fUadvtig. — ^Whenever a pleading is amended, such amended pleading shall be deHvered to the opposite party within the time allowed for amending the same {g). Clerical mistakes. — Clerical mistakes in judgments or orders, or errors arising therein, arising from any accidental slip or omission, may at any time be corrected by the Court or a judge on motion or summons without an appeal Qi). General power of amendment. — And, generally, the Court or a judge may at any time and on such terms as to costs or otherwise as the Court or judge may think just, amend any defect or error in any proceedings ; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings ({). Service of pleadings. — The rules as to the mode of service of pleadings and as to the obtaining of copies from the Crown Office referred to ante, p. 71, when dealing with criminal informations, apply also to quo warranto proceedings. Special case. The parties may concur in stating the questions of law in the form of a special case for the opinion of the Court Qc). Further : even without the consent of the parties, if it appear to the Court or a judge, either from the pleadings or otherwise, that there is a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or judge may deem expedient ; and all such further proceedings as the decision of such question of law may render imnecessary may thereupon be stayed (J). Form. — Every special case is to be divided into paragraphs which, if) Order xxvm., r. 9, {I) Order xxsiv., r. 2. Rule 9 as (?) I^-' r. 10. to the trial of issues of fact without Qi) Id., r. 11. pleadings is also, so far as applicable, (j) Id., r. 12. to apply to quo warranto proceedings (Jc) C. 0. E. 140. (C. 0. E. 140). ^^ THE INFOEMATION AND SUBSEQUENT PLEADINGS. 185 as nearly as may be, are to be confined to a distinct portion of the subject, and every paragraph is to be numbered consecutively. The taxing officer is not to allow the costs of drawing and copying any special case not substantially complying with this rule, without the special order of the Court (m). It must state concisely such facts and documents as may be necessary to enable the Court to decide the questions raised (n). Every special case is to be printed by the plaintiff, and signed by the several parties or their solicitors, and filed by the plaintiff. Printed copies for the use of the judges are to be delivered by the plaintiff (o). Upon the argument the Court and the parties are to be at liberty to refer to the whole contents of the documents referred to ; and the Court is to be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial (p). Where any pleading is not entered within the time limited, judg- judgment by ment as for want of such a pleading may be entered at the opening ''^^*"'*- of the office on the next following morning after the expiration of the time limited, upon filing an affidavit of service of the order to plead, reply, &c., as the case may be ; unless an order of the Court or a judge extending such time shall have been obtained and served, in which case judgment shall not be signed until the day after the expiration of the time granted by such order (q). In a case of judgment by default it will be assumed, against the defendant, that the office he is charged with usurping in a borough is a corporate office within the statute of Anne (r). The rules as to motions and other applications set forth ante, Motions and pp. 72-74, are applicable to all proceedings on the Crown side (s). tio^^ ^^^ '"*" Besides these the various rules of Order lii. of the Supreme Court Eules, 1883, are, so far as applicable, to apply to all civU proceedings on the Crown side. The two sets of rules are substantially the same. To substitute new relator. — An application to substitute a new relator for the original relator must be made upon two clear days' (m) 0. 0. R. 142. (q) C. 0. B, 170. (n) Order xxxiv., r. 1. (r) Lloyd v. The Queen, 31 L. J, (o) Id., r. 3. Q. B. 208. (p) Id., r. 1. (s) 0. 0. B. 250. 186 QUO WARRANTO INFORMATIONS. notice of motion, and be brought on as if it were an ex parte motion, and not put into the Crown paper (t). Neglect by Where upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper neces- sary for the use of the Court or judge, and which according to the practice ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the Court or judge shall think fit to award {%). In causes and matters commenced since these rules came into operation, solicitors are entitled to charge and be allowed the fees set forth in the column headed " lower scale " in Appendix N". to the Supreme Court Eules, 1883, in aU causes and matters ; and no higher fees are to be allowed in any case, except such as are by Order Lxv. otherwise provided for {x). Time. By Ifo. 293 of the new Crown Office Eules, Order LXiv. of the Eules of the Supreme Court, 1883, is, so far as applicable, to apply to aJl civil proceedings on the Crown side. The rules of this order which are applicable are the following : — Interpretation of " inonth." — Where by these rules, or by any judgment or order given or made after the commencement of the principal Act, time for doing any act or taking any proceeding is limited by months, and where the word " months " occurs in any document which is part of any legal procedure under these rules, such time shall be computed by calendar months, unless otherwise expressed. (E. 1.) When Sunday, tfec, excluded. — ^Where any limited time less than sis days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday, shall not be reckoned in the -computation of such limited time. (E. 2.) Time expvring on Simdai/ or close day. — ^Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof such act or proceeding caimot be done or taken on that day, such (0 C. 0. R. 255. („) Order ksv., r. 5. (as) Order lxv., i. 8. THE INPOEMATION AND SUBSEQUENT PLEADINGS. 187 act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open. (E. 3.) Long Vacation.— ^0 pleadings shall be amended or delivered in the long vacation, unless directed by a Court or a judge. (E. 4.) The time of the long vacation shall not be reckoned ia the computation of the times appointed or allowed by these rules for filing, amending, or delivering any pleading unless otherwise directed by the Court or a judge. (E. 5.) Time for giving security for costs. — The day on which an order for security for costs is served, and the time thenceforward until and iacludiug the day on which such security is given, shall not, be reckoned ia the computation of time allowed to plead, answer interrogatories, or take any other proceediag in the cause or matter. (E. 6.) Enlarging or abridging time. — A Court or a judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require ; and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appoiated or allowed. (E. 7.) Enlarging time ly consent. — The time for delivering, amending or filing any pleading, answer, or other document may be enlarged by consent ia writing, without application to the Court or a judge. (E. 8.) When service to he effected. — Service of pleadings, notices, sum- monses, orders, rules and other proceedings shall be effected before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two ia the afternoon. Service effected after six in the afternoon on any week day except Saturday shall, for the purpose of computiag any period of time subsequent to such service, be deemed to have been effected on the foUowiag day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the followiag Monday. (E. 11.) When time reckoned exclusively. — In any case in which any particular number of days, not expressed to be clear days^ is 188 QUO WAEEANTO INFOEMATIONS. Effect of non- compliance with rules. Setting aside proceedings for irregula- rity. prescribed by these rules, the same shall be reckoned exclusively of the first day and inclusively of the last day. (E. 12.) Cessation of -proceedings for a year. — In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this rule. (E. 13.) Non-compliance with any of the rules is not to render the pro- ceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular or amended, or otherwise dealt with iu such manner and upon such terms as the Court or judge shaU think fit {y). No application to set aside any proceeding for irregularity is to be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregu- larity (2). Where an application is made to set aside proceedings for irregu- larity, the several objections intended to be insisted on are to be stated in the summons or notice of motion {a). Where a summons is taken out to set aside any process or pro- ceeding for irregularity with costs, and the summons is dismissed generally without any special directions as to costs, it is to be imderstood as dismissed with costs (6). (2/) C. 0. E. 303; Order lxx., r. 1. (z) Order lxx., r. 2. (a) Order lxx., r. 3. (6) Id., r. 4. ( 189 ) CHAPTEE VII. Peoceduee feom Close of Pleadings. PAGE Notice of trial 189 Mode of trial 189 Entering record 190 Venue 190 Discovery and inspection . . . 191 Onus of proof 192 Witnesses 193 Documentary evidence . . .193 Adjournment of trial . . . .195 Mode of giving evidence at trial . 195 Production of documents . . , 198 Disobedience to order .... 198 Expenses of witnesses. . . . 198 Amendment . . . . . . 198 Speeches to jury 199 PAGE Verdict 199 Judgment at trial or subsequently 199 Motion for judgment .... 199 Judgment of ouster .... 201 Where judgment of ouster is im- proper 202 Setting aside judgment of ouster . 204 New trial 204 Costs 204 General rules as to costs . . . 207 Appeal 210 Procedure on appeal .... 212 Costs of Appeal 221 Execution 221 Appeal to House of Lords . . . 222 All the rules as to notice of trial set forth ante, pp. 75, 76, when Notice treating of criminal informations, apply equally in the case of quo " *"* ' warranto informations. As, by the new Crown Of&ce Eules (No. 134), all proceedings Time for subsequent to the defence are to be had as if in an action ; notice ^"'"^ of trial may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial (a). If no place of trial is named, the place of trial is, unless the Venue. Court or a judge shall otherwise order, to be the county of Middlesex (6). Either party may obtain a trial with a jury, on application for it ; Mode of trial, otherwise the mode of trial will be by a judge without a jury (c). But the Court or a judge may at any time (without application (a) Order xxxvi., r. 11. (6) Id., r. 11. (c) Id., rr. 6 and 7. 190 QUO WAERANTO INFOEMATIONS. Trial at bar. Special jury. Entering re- cord. Warrant of tales. Queen's counsel. Venue. made) order the trial to be by a judge with a jury or by a judge sitting with assessors, or by an ofSdal referee or special referee, with or without assessors (d). The Court or a judge may also, at any time or from time to time, order that different questions of fact arising ia the cause be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoiat the place or places for such trial or trials, and ia all cases may order that one or more issues of fact be tried before any other or others (e). Every trial of any question or issue of fact by a jury is to be held before a single judge, unless such trial be specially ordered to be held before two or more judges (/). As to trial at bar, see the rules set forth ante, pp. 79, 80. As to the mode of obtaining a special jury, vide mvte, p. 81. As to entering the cause for trial, vide ante, p. 82. There is now (strictly speaking) no nisi jprivs record ; but the pEuty entering the case for trial must deliver to the proper officer two copies of the whole of the pleadings, one for the use of the judge at the tiiaL Such copies are to be in print, except as to such parts (if any) of the documents as are, by the Kules of the Supreme Court, 1883, permitted to be written (g). No warrant of nisi privs from the Attorney-General is any longer necessary (h). But it seems that his warrant for a tales should still be pro- cured (i). Where the defendant is desirous of securing the advocacy of a Queen's counsel, the same course has been adopted as in the case of Criminal Informations. On this subject see the remarks made arde, p. 82. The Court has power to change the venue. A suggestion on the record that the trial might be "more con- veniently had" in the county of the substituted venue was considered to shew a sufficient ground for the change (f) ; being regarded as (d) Order xxxvi., r. 7. (e) Id., r. 8. (/) Id., r. 9. (jg) Id., t. 30. Qi) C. 0. E. 157. (0 See Form of Warrant in the Appendix, jjorf. if) Cla/rk V. B., 3 E. & E. 147; affirmed in House of Lords, 9 H. L. Gas. 84 ; 31 L. J. Q, B. 175. TEOCEDUEE PROM CLOSE OP PLEADINGS. 191 pquivalent to a statement that the trial could not fairly be had in the county of the original venue (k). 6 & 7 Vict. c. 89, s. 5, enabled the Court, in any quo warranto information in respect of a corporate of&ce in a borough, to order .that the venue should be laid in the first instance in Middlesex or London ; but this enactment has been repealed by s. 5 of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 60). The right to discovery exists, strictly speaking, only in the case Discovery and of civil proceedings ; but quo warranto proceedings have long been foreTria'r considered civil, so far as this right is concerned (0- Application should be made to the custodian of the documents which it is desired to inspect, for liberty to do so. Should per- mission be refused, the ordinary procedure is to apply to the Court for an order to compel him to grant inspection. AU orders are, during the sittings, to be made by the Court on motion which must be supported by af&davit, except in the case of orders demandable by the Crown as of right, or where it is not necessary to state matters of fact (m). To enforce discovery and inspection, the Court might grant a mandamus, or an order entitled in the cause, which the Court would enforce by attachment. The authorities do not lay down any precise line between the kinds of cases in which the Court would act in the one way or in the other. An order was in one case made in favour of relators to inspect the Court roUs and books of a manor (n) ; and, in another case, in favour of relators to inspect aU the public books, records, and papers of and belonging to a particular borough "in whose custody soever they are," and to take copies of them or any part of them, on delivering and leaving with the town clerk a copy of the rule, at the same time shewing him the original (o). In another case a relator obtained a rule absolute in the first (k) See per Lord Campbell in the Informations, where no inspection of House of Lords, lb. Lord Chelmsford documents in the defendant's possession said that to sustain the proceedings in will he granted. See B. v. Purnell, error, something more than an irregu- 1 Wils. 239, and B. v. Cornelius, re- larity should be shewn : the defendant ferred to at pp. 241, 242 of the same ought to have demurred to the sugges- volume. Vide ante, p. 82. tion, instead of allowing.the trial to go (m) C. 0. E. 253. on without objection. (») -B- v. Shelley, 3 T. E. 141. (I) Unlike, in this respect, Criminal (o) B. v. BaW, 3 T. E. 579. 192 QUO WAERANTO INFORMATIONS. instance for a mandamus to inspect the books of a corporation, on the ground that a quo warranto was depending {p). Lord Kenyon makes a distinction between an application for the inspection of corporation books by a member of the corporation and a similar application made by a stranger, that though it might be right in the former case to make an order for inspection of all papers relating to the corporation, yet in the latter case the rule should be confined to the inspection of such papers only as respect the subject matter in dispute {q). Further, Lord Kenyon was of opinion that the application by a member of the corporation should be for a mandamus, whereas in a guo vjarranto proceeding the application should be for a rule entitled in the case ; as the Court could not grant a rule for the inspection of papers imless there was a cause in the Court (r) As to the time for making the application, Ashurst, J., said : " There does not appear to be any reason why we should grant a rule for inspection till the rule for the guo warranto information is made absolute. It may be time enough to grant the rule for in- spection after leave to file the information is granted, and before the trial of it. For I believe that many of these applications are made by way of experiment to see whether the corporation cannot be thrown into confusion " (s). This question does not appear to have been considered in any other case. No. 134 of the new Crown Office Eules seems now to make applicable to qm warranto proceedings the various rules of Order xxxi. of the Supreme Court Eules, 1883, as to discovery and inspectioiL Onns of proof. If the defendant does not deny that he has exercised the office or franchise in question,'the oniis probandi is on him, and he must begin. If the defendant denies that he has exercised the office or franchise, the onus is on the prosecutor, and he must begin. In a case in 1824, before Parke, J., the question- which the judge considered a new one— arose whether at the trial the relator or the defendant should begin ? The judge aUowed the defendant to begin, as, on the pleadings, the affirmative of the issue was upon (p) B. v. Travwnion, 2 CMtt. 366. v. WiUiams, 3 B. & C. 162; Mayor of {q) S. V. Babb, 3 T. B. 580 ; cf. B. Sowihampton v. Graves, 8 T. B. 590. V. Fraternity of Hoslmen in Nevj- (r) lb. casUeon-Tyne, 2 Str. 1223 ; Harrison (g) /J. PROCEDURE PROM CLOSE OP PLEADINGS. 193 him : if, on the pleadings, the affirmative had been on the relator, he would have had the right to begin (t). Many of the cases decided as to the title to exercise municipal offices have ceased to be of importance, as a quo warranto informa- tion will not now lie wherever the municipal election may be ques- tioned by an election petition (vide ante, p. 158) ; and an election petition can determine the title ia all cases except where the disquali- fication arises subsequently to the election (45 & 46 Vict. c. 50, s. 87). When persons interested were incompetent as witnesses, the witnesses. relator in an information, as being personally responsible for costs, was considered an incompetent witness for the Crown. Incapacity on the ground of interest was abolished "Tjy Lord Denman's Act (6 & 7 Vict. c. 85, supplemented by 14 & 15 Vict. c. 99, s. 1), in all proceedings civil and criminal. Minutes. — A minute of proceedings at a meeting of a town Documentary council, or of a committee, signed at the same or the next ensuing ^" meeting by the mayor or by a member of the council or of the committee, describing himself as, or appearing to be chairman of the meeting at which the minute is signed, is to be received in evidence without further proof (u). Until the contrary is proved, every meeting of the council or of a committee, in respect of the proceedings whereof a minute has been so made, is to be deemed to have been duly convened and held, and aU the members of the meeting are to be deemed to have been duly qualified ; and where the proceedings are proceedings of a committee, the committee are to be deemed to have been duly constituted, and to have had power to deal with the matters referred to in the minutes (z). Bye-laws. — The production of a written copy of a bye-law made by a municipal council under any statute, if authenticated by the corporate seal is, until the contrary is proved, sufficient evidence of the due making and existence of the bye-law, and, if it is so stated in the copy, of the bye-law having been approved and con- firmed by the authority whose approval or confirmation is required to the making or before the enforcing of the bye-law (a). (t) R. V. Teates, 1 C. & P. 323. and take copies of the minutes, sees. 233. (u) Municipal Corporations Act, (z) Id., s. 22. 1882, s. 22. As to the right to inspect (a) Id., s. 24. 194 QUO WABEANTO INPOEMATIONS. Charters. — Charters are most conveniently proved by the pro- duction of the originals under the great seal, the privy seal, or the Eoyal sign-manual ; but as these are matters of public record {h), they might also, it seems, be proved by exemplifications under the great seal, or by examined copies (c). Other documents. — Apart from statutory enactments, entries in the books of corporations publicly kept as such are admissible in evidence if made by the proper officer, or, in case of his absence or illness, by some person acting on his behalf or in his place {c[) ; but they must be shewn to come from the proper custody («). Where the prosecutor produced in evidence a book which ap- peared to be only minutes of some corporate acts ten years previous, all written by the prosecutor's clerk, who was no officer of the corporation, and it was objected to by the other side, as having never been kept amongst or esteemed as one of the corporation books in which the entries were always made by the town clerk; there being some suspicion that the book was not genuiae, the judge required an account where it had been kept for these ten years, and whether anybody had seen it before ; and not getting a satisfactory explanation, he rejected it ; and the Court upheld his ruling (/). A copy of a letter fifty years old, found in one of the corpora- tion's chests, was not allowed to be given in evidence {g) ; nor will an entry in the public books of a corporation be received in evi- dence if the entry is not of a public nature, but relates only to the private transactions of the corporation Qi). But every document of a public character may be proved by an examined copy, i.e., a copy proved to have been examined with the original, and to correspond with it. (6) 2 Bl. Com. 346. tion, and (7A, p. 1572) whether the (c) 2 Tay. on Evid. 1304. attesting witness must not be caUed in (d) Per cwiam, R. v. MotherseU, the case of deeds under the corporation 1 Str. 93. seal. (e) Mercers of ShrewsTmry v. Hart, (g) R. v. Qvjyn, 1 Str. 401. 1 C. & P. 114. . (^) Marriage v. Lawrence, 3 B. & (/) lb. It is stated in Taylor on Aid. 142. As to the admissibility of Evidence (p. 112, last ed.) to be still the corporation books in evidence in an nndecided whether the rule as to a deed action between the corporation and one thirty yeara old proving itself, applies of its members, see Bill v. Manchester to a deed under the seal of a corpora- &c., Co., 5 B. & Ad. 875 ' PEOCEDURE FROM CLOSE OP PLEADINGS. 195 Where, in order to prove the defendant a freeman, a copy upon stamped paper was produced of a loose paper upon a file, which the witness said was also on a stamp, and was kept with other similar stamped entries on a file among the corporation papers ; and it appeared there was also a book in which the acts of the corpora- tion were kept, and where there was an entry more at large of the freeman's admission, made when he was originally admitted, but there was no stamp in the book ; it was held that the loose paper being the only effectual act, and as having that which the law re- quired, viz. the proper stamp, must be looked upon as the proper and original act of the corporation, and that a copy of that was good evidence (i). Production of original documents. — Wherever a copy is evidence, the Court will not order the production of an original document, unless some special reason is shewn, as a rasure or new entry (k). Writs, records, pleadings, &c. — Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice are admissible in evidence in all causes and matters, and between aU persons or parties, to the same extent as the original would be admissible if). As the trial is to proceed as if in an action, the following pro- visions of the Supreme Court Eules, 1883, are applicable : — The judge may, if he think it expedient for the interests of Adjom-nment justice, postpone or adjourn the trial for such time, and upon such ° terms, if any, as he shall think fit (m). In the absence of any agreement between the parties, and Mode of giving subject to the Supreme Court Eules, the witnesses at the trial trials, shall be examined viva voce and in open court ; but the Court or a judge may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit ; or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or judge may think reasonable; or that any witness whose attendance in Court ought for some suffi- cient cause to be dispensed with, be examined by interrogatories or (■j) Fer Noel, J., -Bea; v. Bead, 1 Str. 307. Peake's Ev. 87. (0 Order xxxvii., r. 4. Qi) Brocas v. Mayor, &c., of London, (m) Order xxxvi., r. 34. 2 196 QUO WARRANTO INFORMATIONS. otherwise before a commissioner or examiner (n) ; provided that where it appears to the Court or judge that the other party bond (n) The procedure in such a case is regulated by the following rules of Order xxxvn. : — Where any witness or person is ordered to be examined before any oflBcer of the Court, or before aoy per- son appointed for the purpose, the per- son taking the examination shall be furnished by the party on whose appli- cation the order was made, with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the person taking the exami- nation of the questions at issue between the parties (10). The examination shall take place in the presence of the parties, their coun- sel, solicitors, or agents, and the wit- nesses shall be subject to cross-exami- nation and re-examination (11). The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not ordi- narily by question and answer, but so as to represent as nearly as may be the statement of the witnesses, and when completed shall be read over to the witness and signed by him in the pre- sence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The ex- aminer may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the wit- ness as to the meaning of any answer or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinions thereon to the counsel, soli- citor, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question (12). If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Cen- tral Office, and thereupon the party requiring the attendance of the witness may apply to the Court or a judge ex pwrte or on notice, for an order direct- ing the witness to appear, or to be sworn, or to answer any question, as the case may be (13). If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court or a judge (14). In any case under the two last pre- ceding rules, the Court or a judge shall have power to order a witness to pay any costs occasioned by his refusal or objection (15). When the examination of any wit- ness before any examiner shall have been concluded, the original depositions authenticated by the signature of the examiner, shall be transmitted by him to the Central Office, and there filed (16). The person taking the examination of a witness under these Rules may, and if need be shall, make a special report to the Court, touching such ex- amination, and the conduct or absence PROCEDURE PROM CLOSE OP PLEADINGS. 197 fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affi- davit (o). Deposition. — The Court or a judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before any officer of the Court or judge, or any other person, and at any place, of any witness or person ; and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct {p). Except where allowed by Order xxxvii. of the Supreme Court Eules and Orders, 1883, no deposition is to be given in evidence of any witness or person thereon, and tlie Court or a judge may direct such proceedings and make such order as upon the report they or he may think just (17). Any officer of the Court, or person directed to take the examination of any witness or person, may administer oaths (19). Any party in any cause or matter may by svhpoena ad testificandum or d/uces tecum require the attendance of any witness before an officer of the Court or other person appointed to take the examination, for the purpose of using his evidence upon any proceed- ing in the cause or matter in like manner as such witness would be bound to attend and be examined at the hear- ing or trial ; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter, shaU be bound on being served with such subpoena to attend before such officer or person for cross-examination (20). Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial (21). The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial, shall extend and be applicable to evi- dence taken in any cause or matter at any stage (22). The practice of the Court with re- spect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hear- ing or trial, shall be subject to any special directions which may be given in any case (23). , No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court or a judge be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf (24). (o) Order xxxvii., r. 1. {p) Id., r. 5. 198 QUO WAEBANTO INFORMATIONS. Production of 4octimeiits. Disobedience to order. Expenses of witnesses. Amendment. at the trial without the consent of the party against whom it may be offered, unless the Court or a judge is satisfied that the deponent is dead or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the trial ; in any of which cases the depositions certified under the hand of the person taking the examination, shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certi- ficate {q). For form of commission to examine witnesses, see Form No. 36 in Appendix K. to the Supreme Court Eules, 1883. The Court or a judge may at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order, which the Court or a judge may think fit to be produced ; provided that no person shall be compelled to produce imder any such order any writing or other document which he could not be compelled to produce at the hearing (r). Any person wilfully disobeying any order requiring his attend- ance for the purpose of being examined, or produciug any docu- ment, is to be deemed guilty of contempt of Court, and may be dealt with accordingly (s). Any person required to attend for the purpose of being examined, or of producing any document, shaL. be entitled to the like conduct money, and payment for expenses and loss of time, as upon attend- ance at a trial in Court (t). All evidence taken at the trial may be used in any subsequent proceedings in the same cause or matter (u). The provisions of Order xxvm. of the Supreme Court Eules, 1883, as to amendment, are also made applicable to quo warranto proceedings {x). By rule 1 of this Order the Court or judge may now at any stage of the pleadings, allow either party to alter or amend his pleadings in such manner and on such terms as may seem just, and aU such amendments shall be made as may be necessaiy for (j) Order xxxvn., r. (r)'Id.,T.T. (s) Id., 1. 8. (0 Id., r. 9. 18. (m) Order xxxvn., r. 25. (x) See Order lxviii., r. 2, C. 0. R. 299. PBOCEDURE PEOM CLOSE OF PLEADINGS. 199 the purpose of determining the real questions in controversy between the parties (y). Upon a trial with a jury, the addresses to the jury are to be Speeches to regulated as follows : the party who begins, or his counsel, shall ■'"'^" be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time, for the purpose of summing up the evidence ; and the opposite party or his counsel shall be allowed to open his case, and also to sum up the evidence, if any ; and the right to reply shall be the same as heretofore {£). The judge may in all cases disallow any questions put in cross- Restrictions on examination of any party or other witness which may appear to yo^^f '***™ him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter (a). The jury may in, aU cases give a general verdict. Verdict. Where the finding upon one issue rendered the other issues immaterial the judge might always, without the consent of the parties, discharge the jury from giving a verdict upon the issues thus become immaterial (6), As to entering the verdict and aU findings of fact, see No. 171 of the new Crown Office Eules, ante, p. 84. The judge may at, or after a trial, direct that judgment be Judgment at entered for any or either party, or adjourn the case tor turtner joumment for consideration, or leave any party to move for judgment (c). sideratioT" No judgment shall be entered after a trial without the order of a Court or judge {d). For form of judgment, see the Appendix, -post. As to entering judgment, see the rules set forth ante, p. 84, when dealing with crimiaal informations, which apply also to quo warranto proceedings- Unless where otherwise provided, the judgment of the Court is Motion for judgment. to be obtained by motion for judgment (e). (y) The point in E. v. Rowland, (a) Order xxxvi., r. 38. 3 B. & Aid. 130, would now be dealt (5) B. v. Johnson, 5 A. & E. 488 ; with under this rule. c/. Powell v. Sonnet, 1 Bligh, N. S. 552. (z> Order xxxvi., r. 36. As to the (c) Order xxxvi., r. 39. advisability of the prosecutor opening (d) lb. his whole case in the first instance, see (e) Order XL., r. 1. B. V. Bradley, 3 L. T. N. S. 853. 200 QUO WABKANTO INFORMATIONS. Where no judgment at trial. — ^Wliere at the trial the judge or referee abstains from directing any judgment to be entered, the plaiatifif may set down the case on motion for judgment. If he does not so set it down and give notice thereof to the other parties within ten days after the trial, any defendant may set it down on motion for judgment, and give notice thereof to the other parties (/). Where finding wrongly entered. — ^Where at, or after, a trial with a jury the judge has directed that any judgment be entered, any party may apply to set aside such judgment, and enter any other judgment, on the ground that the judgment directed to be entered is wrong, by reason that the finding of the jury upon the questions submitted to them has not been properly entered (g). Where judgment wrongly entered on findings. — Where at, or after a trial, by a judge, either with or without a jury, the judge has directed that any judgment be entered, any party may apply to set aside such judgment, and to enter any other judgment, upon the ground that upon the finding as entered, the judgment so directed is wrong (A). Where application to Court of Appeal. — An application under either of the two last preceding rules must be to the Court of Appeal unless, where there has been a trial with a jury, there is also a motion for a new trial, in which case it shall be to the Divisional Court by which such motion shall be heard (i). Application to set down where some issues tried. — ^Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or ques- tions of fact have been tried or determined, any party who con- siders that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be post- poned, may apply to the Court or a judge for leave to set down the action on motion for judgment, without waiting for such trial or detenmnation. And the Court or judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other questions of fact {k). (/) Order xl., r. 2. gC) Order xi,., i. 4. .(jr) Id., I. 3. (j) la r. 5. (k) Id., r. 8. PEOCEDUKE FROM CLOSE OP PLEADINGS. 201 Time for setting down — No motion for judgment shall, except by leave of the Court or a judge, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do {I). Power of Court on Motion. — Upon a motion for judgment, or for a new trial, the Court may draw all inferences of fact not incon- sistent with the finding of the jury ; and, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly; or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit (m). Where the judgment is for the relator, judgment of ouster may Judgment of be entered for him in all cases {%). ""^ ^^' Judgment of ouster could not be given at common law. " In the case of B. v. Bennett (Triu. 4 Geo. 1), the judges were equally divided in opinion upon the question whether judgment of ouster ought to be given at the common law, in an information in the nature of a quo ivarranto. As the judges were in that case (I) Order XL., r. 9. tlie king for a liberty wliicli is usurped, (m) Id., r. 10. it is quod extingiuitur, and that the (ji) C. 0. E. 134. The judgment on person who usurped such a privilege, the ancient writ was that the franchise libertat, &c., nullatenus intromittas, he seized into the king's hands; that on &c., which is the judgment of ousfer ; an information being that the defen- but the quo warranto must be brought dant be fined and ousted from the par- against particular persons. But where ticular franchise. The case against it is for a liberty claimed by a corpora- the corporation of the City of London tion, there it must be brought against in the time of Charles II. was an ex- the body politic ; in which case there eeption in this respect, the judgment may be a seizure of the liberties, which being that the franchises, &c., be seized will not warrant either the seizure or into the king's hands (3 Harg. St. Tr. dissolving of the corporation itself." 545). So far as appears, this is the For these reasons it was held that the only case in which such a judgment judgment had not the effect of dissolv- was given in a quo warranto informa- ing the corporation (Sir James Smith's tion, and its effect was held not to dis- case, 4 Mod. 58). The judgment as solve the corporation ; neither to extin- already observed, ante, p. 119, was an- guish or dissolve the body politic, nulled as illegal and arbitrary by 2 " Wherever any judgment is given for W. & M. Sess. 2, c. 8. 202 QUO WARBANTO INFORMATIONS. equally divided ia opinion, and as there lias not since been any determination upon the point, we are of opinion," said Eyder, C. J., in B. V. PoTisonhy (o), " that judgment of ouster ought not to be given in an information in the nature of a quo warranto, unless the case of the person found or adjudged to be guilty be within the statute " (p). Whether there can be a judgment of ouster qiwusque the happening of some event, or whether a judgment of ouster must not in aU cases be of ouster absolute, was made a question in some cases. In B. V. Clarke (q) Lord Kenyon seems to have been of opinion that there might be a judgment quousque, and Eeynolds, J., was of a like opinion in B. v. Hearle (r). In B. v. Courtenay (s) it was argued that if the defendant had been well elected, but not duly sworn in, the judgment should be of ouster until he should be legally sworn in : the Court found it unnecessary to decide the point ; but Lord Ellenborough, in delivering the judgment, said : " K it had arisen it is enough for us to say that, after diligent search, we can find no precedent of a judgment of ouster quottsque upon the files of this Court" (t). If any one material issue is found for the Crown, the Crown must have judgment (u). The judgment of ouster is conclusive against the defendant. He will not be allowed to set up as a defence to a second information for exercising the same of&ce that he had been duly elected before the first information and judgment of ouster, and that he was after- wards sworn in by virtue of a peremptory mandamus (v). For cases in which judgment of ouster will be given notwith- standing that the defendant has ceased to exercise the office or franchise in question, vide ante, pp. 146, 147. (o) Sayer, 247. (u) Per Lord Mansfield, B. v. Leigh, (jp) Before the statute there had, 4 Burr. 2146. however, been some instances of such a (y) E. v. Clarke, 2 East, 75. The judgment {II. 246, 247). mandamus in this case must have been (?) 2 East, 84. granted per incwHam ; for in the pre- (r) 1 Str. 628. vious case of R. v. Hearle, 1 Str. 625, (s) 9 East, 246, 267. it was held that the Court would not (t) See also Mayor of Penryns grant a mandamus to swear a man in Case, 1 Str. 582 ; 2 Brown's P. C. 294 ; after ju^ment of ouster against him. and R. v. Clarke, uhi supra. PROCEDURE PROM CLOSE OP PLEADINGS. 203 If the defendant confesses a usurpation as to part of the time when judg- charged in the information, but shews a good election as to the i^^'prope ^^^^"^ residue, the judgment is not one of ouster, but only one imposing a fine for the usurpation confessed. In R. V. Biddle and Taylor (w), where the information charged a usurpation from the 20th of August to the first day of Hdary Term, and the defendant confessed a usurpation from the 20th of August to the 29th of September, and from thence insisted on an election, a special verdict being found, the prosecutor entered up judgment of ouster according to the opinion given in the Mayor of Fenryn's case (x) ; but the Court ordered all the judgment to be expunged except that of a capiaturpro fine, such being the proper punishment for the defendant's acting before he was duly elected : it would be hard that a subsequent good election should be done away, as it would be by the judgment as entered. In the case of an information under the statute of Anne filed Fine, at the instance of a private relator, the fine is always merely nominah The following is the enactment of 9 Anne, c. 20, s. 5, on the Judgment subject of the judgment to be given : " In case any person or per- c. 20. sons against whom any information or informations in the nature of quo warranto shall in any of the said cases [i.e., cases of corporate offices] be exhibited in any of the said Courts, shaE. be found or adjudged guilty of an usurpation or intrusion into, or unlawfully holding and executing any of the said offices or franchises, it shall and may be lawful to, and for the said Courts respectively, as well to give judgment of ouster against such person or persons of and from any of the said offices or franchises, as to fine each person or persons respectively, for his or their usurping, intruding into, or unlawfully holding and executing any of the said offices or fran- chises ; and also it shall and may be lawful to and for the said Courts respectively to give judgment that the relator or relators, in such information named, shall recover his or their costs of such prosecution ; and if judgment be given for the defendant or defen- dants in such information, he or they, for whom such judgment (w) 2 Str. 952 ; 2 Barnard. 238, 280, (x) 1 Str. 582 (where the party was 316, 320. elected but not sworn). 204 QUO WARRANTO INFORMATIONS. shall be given, shall recover his or their costs therein expended against such relator or relators." Though a judgment may be wrong as a statute judgment, so much of it as is good at common law will stand. Thus, where, in a case not within the statute of Anne, judgment of ouster was given with costs, though the part of the judgment as to costs was wrong, the other (the common law) part was held good (y). Setting aside The Court may set aside a judgment of ouster at the instance of ju gme . ^ party other than the defendant, e.g., where a mayor had sub- mitted to such judgment by default, though offered a complete indemnity by corporators who desired to try a substantial question by means of the information against hiTn (a). New trial. As to the manner of moving for a new trial, the time for moving and extending the time, service of order nisi, &c., see the rules set forth ante, pp. 88, 89. The old rule as to the time for moving was that the motion could be made at any time before judgment was signed, but not afterwards (a). Jndgment no« The procedure on applying to enter judgment Twn obstante dicto. veredicto is the same as in moving for a new trial (6). Arrest of jndg- The procedure on moving in arrest of judgment is of a like kind (c). Coste. It was the opinion of all the judges in B. v. Ameri/ (d) that the Court, in giving judgment for the relator in an information under the statute of 9 Anne, c. 20, was bound to give judgment that the relator shall recover his costs of such prosecution. If, in a case within the statute of Anne, the judgment for the relator said nothing about costs, he was entitled to sign judgment for his costs («). In Lloyd v. The Queen (/), where the defendant let judgment go by default, it was held that it must be taken as against him that the office he was charged with usurping was a corporate office within the statute; and therefore the relator was held entitled to his costs. (2^) M. V. WaUams, 1 Burr. 402. (c) Id. (z) B. v. Dawes, 4 Burr. 2277. (d) 1 Anstr. 183. (a) B. V. Armstrong, 2 Str. 1102 ; (e) B. v. Dudley, 4 Jur. 915. see also B. v. Frmms, 2 T. E. 484, (/) 2 B. & S. 656 ; 31 L. J. Q. B. and B. v. Maiden, 4 Burr. 2135. 209. (6) C. 0. E. 166. PEOCEDURE PEOM CLOSE OP PLEADINGS. 205 The question was argued in this case whether the statute of Anne applied to a claim to exercise a corporate ofifice where no corpora- tion in fact existed. The Exchequer Chamber was of opiaion that it did. Bramwell, B., said : " If a man claims to exercise a cor- porate ofiice and faUs either because it is not a corporate office, or because there is not a corporation, the case is to my mind equally within the Act." Pollock, C.B., said : " I have a strong impression that the meaning of statute 9 Anne, c. 20, is that if a person in- trudes himself into an office and claims it as really existing, he is within the statute whether there is a corporation or not." It was held in the same case that if a judgment were entered without costs, it could not be altered in a subsequent term. But the Court or a judge may now, at a%y time, on such terms as are deemed just, amend any defect or error in any proceedings (g). It was formerly held (A) that if the relator succeeded on any one issue he was entitled to costs on all the issues, even of those on which he failed ; but this would not be so now, as Order Lxv. (of the Supreme Court Eules, 1883), as to costs is made applicable to quo warranto proceedings (*). It was also held that there was no power to give costs in any case not coming within the statute of Anne (j), i.e., in the case of a franchise not of a corporate kind, either to the relator {K), or to the defendant (0 ; at any rate beyond the period of the relator's recognizance under 4 & 5 W. & M. c. 10 ; but rule 1 of the order just referred to now gives the Court or judge a discretionary power as to the costs of and incident to all proceedings in the Supreme Court. Order LXV., r. 1, of the Supreme Court Eules, 1883 (which, by Discretion i T 1 1 i -\ L *" costs. Order Lxviii., r. 2 (m), is made, so far as applicable, to apply to quo warranto proceedings), now provides that, subject to the provisions of the Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court or judge ; . . . Pro- {g) Order xxvii., r. 12, made appli- (*) -B. v. Wallis, 5 T. B. 375, 379 ; cable to quo wa/rranto pleadings by -R. v. Griimhaw, 5 D. & L. 249 ; R. v. Order lxviii., r. 2. McKay, 5 B. & 0. 640 ; B. v. Back- (h) B. V. Downes, 1 T. R. 453; B. house, 7 B. & S. 911; B. v. Morgan, V. Budley, 4 Jur. 915. 26 L. T. N. S. 790. (0 Order lxviii., r. 2 ; 0. 0. R. 65. (0 B. v. Ball, 1 B. & 0. 237. Ij) B. V. Williams, 1 Burr. 402. (m) See also C. 0. R. 300. 206 QUO WARRANTO INFORMATIONS. vided, that where any action, cause, matter, or issue is tried by a jury, the costs shaU foUow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court, shall for good cause otherwise order. A similar power is given to the Court of Appeal by Order LVin., r. 4. The word " event " has been held to mean the final result of the entire litigation; so that in case of a new trial, the party who succeeds in it is, in absence of an order to the contrary, entitled to the costs of both trials («-). It has also been held that the word may be construed distribu- tively, where there are several issues (o). The wide discretion given by this rule — so wide as to enable the Court or judge to compel a successful plaintiff to pay all the costs of the imsuccessful defendant (jp) — ^will, probably, be held not to take away the right given by the statute of Anne to a successful relator to have judgment for his costs ; but it would seem to do away with the effect of the decisions (q) which restricted an unsuccessful relator's liability to the amount of his recognizance. In any case of a corporate franchise it was held to be within the equity of the statute of Anne that a relator who gave notice of trial and did not proceed to trial should pay the defendant's costs (r). If the prosecutor did not give notice of trial, and neglected to proceed to trial for one whole year after issue joined, he was also held liable to costs ; but, in this case, not to costs generally, as under the statute of Anne, but only to the amount of his recog- nizance under 4 & 5 W. & M. (s). In ex-offido informations no costs are payable, as the Crown neither receives nor pays costs. (n) Creen v. Wright, L. R. 2 C. P. (r) Anon., Sayer, 130 ; see also S. D.B5i; Waring V. Fearman,S2'W.'R. v. Eeydon, 3 Burr. 1304; R. y. 429. Powell, 1 Str. 33, and E. v. James, (o) Myers v. Befries, L. E. 5 Ex. D. Gas. temp. Hardw. 159. Mr. Cole 180 ; Ellis V. Denlva, L. R. 6 Q. B. D. thinks the costs allowed in these cases 521. were only the usual costs of the day (p) Harris v. Petherick, L. R. 4 (p. 240). Q. B. D. 611; Fame v. Fane, L. R. 13 (g) B. v. Morgan, 2 Str. 1042; E. Ch. D. 228. V. Howell, Cas. temp. Hardw. 247. (g) Ante, pp. 56, 205. PROCEDURE PROM CLOSE OP PLEADINGS. 207 The Statute of Anne does not give a right to costs in respect of all offices of a corporation, but only in respect of all offices of a similar kind to those mentioned in the Act, viz., mayor, bailiff, and portreeves " within cities, towns corporate and places ;" by which is to be understood places of a similar kind with those before- mentioned. It does not extend to offices of a quasi corporate character, where there is no municipal corporation (t). This statute is applicable only where the place is a corporate place and the office is also a corporate office. The statute does not, therefore, apply to any office in a town which is not a corporate one, nor to any office which is not a corporate one though it be an office in a corporate town (u). The successful relator in an information against a member of a local board of health is therefore not entitled to his costs under the statute of Anne (x). Disclaimer. — A disclaimer was allowed to be entered without costs in a case where the defendant was a very young man, who had not acted and had no intention of acting (y). But see now No. 59 of the New Crown Office Eules. Taxation. — The costs are taxed by the Master of the Crown Office in the ordinary way. By Order LXV. of the Eules of the Supreme Court, 1883, which, by General rules Crown Office Eule 300, is, so far as applicable, to apply to all civil *^ *" "°^'^' proceedings on the Crown side, it is further provided, with respect to costs, as follows : — Costs against solicitors. — Where upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court or judge, and which according to the practice ought to have been delivered, such solicitor shall personally pay to aU or any of the parties such costs as the Court or judge shall think fit to award (z). (0 Cockburn, O.J., and per Black- (x) Id., followed in B. v. Morgan, bum, J., B. Y. Backhouse, 7 B. & S. 26 L. T. N. S. 790. 921. (v) B. V. Salt, 2 Cbitt. 366. (u) Vide ante, pp. 115, 116, and the (z) Order lxv., r. 5. cases there cited. 208 QUO WABEAlfTO INFOEMATIOXS. Security for Costs. — In any cause or matter in which security for costs is required, the security shall be of such amount and be given at such times and in such manner and form as the Court or a judge shall direct {a). Bcmd. — Where a bond is to be given as security for costs, it shall, unless the Court or a judge shall otherwise direct, be given to the party or person requiring the security, and not to an officer of the Court (6). Higher arid lower scaZe.— Solicitors shall be entitled to charge and be allowed the fees set forth in the column headed "lower scale " in Appendix N". [to the Judicature Eules and Orders] in all causes and matters, and no higher fees shall be allowed in any case, except such as are by Order Lxv. otherwise provided for (c). See this Appendix N". set forth in the Appendix to this work, post. The fees set forth in the column headed " higher scale " in Ap- pendix TS. may be allowed, either generally in the cause or matter, or as to the costs in any particular application made, or business done in any cause or matter, if, on special grounds arising out of the nature and importance, or the difficulty or urgency of the case, the Court or a judge shall, at the trial or hearing, or further con- sideration of the caiise or matter, or at the hearing of any applica- tion therein, whether the cause or matter shall or shall not be brought to trial or hearing or to further consideration (as the case may be), so order ; or if the taxing officer, under directions given to him for that purpose by the Court or a judge, shall think that such allowance ought to be so made upon such special grounds as aforesaid {(£). Upon any reference to a taxing officer to tax a bill of costs of a solicitor for the purpose of ascertaining the amount due to such solicitor in respect thereof from the person to be charged therewith if such bin shall include charges for business done in any cause or matter, the taxing officer may aUowthe fees set forth in the column headed " higher scale " in Appendix N., in respect of such cause or (o) Order lxv., r. 6. (c) u., r. 8. (6) Id., T. 7. ((i) j^_^ ^ 9 PROCEDURE PROM CLOSE OP PLEADINGS. 209 matter or in respect of any particular application made or business done therein, if on such special grounds, as are in the last preceding rule mentioned, he shall think that such allowance ought to be so made (e). If in any case it shall appear to the Court or a judge that costs have been improperly or without any reasonable cause incurred or that by reason of any undue delay in proceeding under any judg- ment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court or judge may call on the solicitor of the person by whom such costs have been so incurred, to shew cause why such costs should not be disallowed as between the soUcitor and his cliedt, and also (if the circumstances of the case shall require), why the solicitor should not repay to his client any costs which the client may have 'been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require. The Court or judge may, if they or he think fit, refer the matter to a taxing officer for inquiry and report ; and direct the solicitor in the .first place to shew cause before such taxing officer, and may also, if they or he think fit, direct or authorize the official solicitor of the Supreme Court to attend and take part in such inquiry. Such notice (if any) of the pro- ceedings or order shall be given to the client in such manner as the Court or judge may direct. Any costs of the official solicitor shaU be paid by such parties, or out of such funds as the Court or a judge may direct ; or, if not otherwise paid, may be paid out of such moneys (if any) as may be provided by Parliament (/). Mtice of Taxation. — One day's notice of taxing costs, together with a copy of the bUl of costs, and affidavit of increase (if any), shall be given by the solicitor of the party whose costs are to be taxed to the other party or his soUcitor, in all cases where a notice to tax is necessary (g). Notice of taxing costs shall not be necessary in any case where the defendant has not appeared in person, or by his solicitor or guardian (h). (e) Order lvx., r. 10. (g) Order lxv., r. 16. (/.) Id., r. 11. W -W., r. 17. P Appeal. Appeals re- hearing. Notice of motioD. Service of notice. Length of notice. Powers of Court of Appeal. Fresh evi- dence. 210 QUO WARRANTO INFORMATIONS. Gross Bum jar Costs.— U^on interlocutory applications, where the Court or a judge shall think fit to award costs to any party, the Court or judge may by the order direct payment of a sum ia gross in Keu of taxed costs, and direct by and to whom such sum in gross shall be paid (i). Order Lvm. of the Supreme Court Eules and Orders, 1883, as to Appeals to the Court of Appeal, is made applicable to quo warranto proceedings (k). All appeals to the Court of Appeal are to be by way of rehearing and to be brought by notice of motion in a summary way, and no petition, case, or other formal proceeding other than such notice of motion is necessary (Z). The appellant may by the notice of motion appeal from the whole or any part of any judgment or order ; and the notice of motion shall state whether the whole or part only of such judgment or order is complauied of, and in the latter case shall specify such part (m). For form of notice of appeal, see Appendix, post. The notice of appeal shall be served upon all parties directly affected by the appeal, and it shaU. not be necessary to serve parties not so affected ; but the Court of Appeal may direct notice of the appeal to be served on aU or any parties to the proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may seem just ; and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties (n). Any notice of appeal may be amended at any time as to the Court of Appeal may seem fit (o). Notice of appeal from any judgment, whether final or interlo- cutory, shall be a fourteen days' notice, and notice of appeal from any interlocutory order shall be a four days' notice (p). The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of (i) Order lxv., r. 23. (m) Order Lvm., r. 1. (k) C. 0. R. 316. („) Id., r. 2. (Z) Order Lvm., r. 1. (g) u. ip) Id., V. 3. PEOCEDURE FROM CLOSE OF PLEADINGS. 211 fact ; such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commis- sioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeal from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shaU be admitted on special grounds only, and not without special leave of the Court (g ). The Court of Appeal shall have power to draw inferences of fact Judgment, and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require (r). The powers aforesaid may be exercised by the said Court, not- withstanding that the notice of appeal may be that part only of the decision may be reversed or varied ; and such powers may also be exercised in favour of aU or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision (s). ' If upon hearing of an appeal it shall appear to the Court of Power to order Appeal that a new trial ought to be had, it shall be lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside and that a new trial shall be had (t). It shall not under any circumstances be necessary for a respon- Cross appeal, dent to give notice of motion by way of cross appeal ; but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should- be varied, he shall within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention («). ■ The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs (v). (j) Order lviii., r. 4. (0 Order lviii., r. 5. (r) Id. (m) Id., V. 6. (s) Id. (v) Id. P 2 Length of such notice by respondent. Entry of appeal. Ex parte application. Manner in which eTidence to be adduced in Court of Appeal. Printing evidence. 212 QUO WAKBANTO PROCEEDINGS. Subject to any special order which may be made, notice by a respondent under the last preceding rule shall in the case of any appeal from a final judgment be an eight days' notice, and in the case of an appeal from an iuterlocutory order a two days' notice (x). The party appeaHng from a judgment or order shall produce to the proper officer of the Court of Appeal the judgment or order or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed ; and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals ; and it shall come on to be heard according to its order in such list, unless the Court of Appeal or a judge thereof shaU otherwise direct, but so as not to come iuto the paper for hearing before the day named in the notice of appeal (y). For form of entry of appeal see Appendix, post. Where an ex parte application has been refused by the Court- below, an application for a similar purpose may be made to the Court of Appeal ex parte within four days from the date of such refusal, or within such enlarged time as a judge of the Court below or of the Appeal Court may allow, (z). When any question of fact is involved in. an appeal, the evidence taken in the Court below bearing on such question shall, subject to any special order, be brought before the Court of Appeal as follows : (a.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed; (6.) As to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the Court may deem expedient (a). Where evidence has not been printed in the Court below, the Court below or a judge thereof, or the Court of Appeal or a judge thereof, may order the whole or any part thereof to be printed for the purpose of the appeal (l). (x) Order Lvm., r. 7. Cv) Id., r. 8. (6) Id., r. 12. (z) Order Lvin., r. 10. (a) Id., r. 11. PROGEDUBB PEOM CLOSE OF PLEADINGS. 213 '' Anj party printing evidence'for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order (c). If, upon the hearing of an appeal, a question arise as to the ruling Qaestion as to or direction of the judge to a jury or assessors, the Court shall havfi iot^settred."^ regard to verified notes or other evidence, and to such other mate- rials as the Court may deem expedient (d). No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may seem just (e). No appeal from any iaterlocutor^ order, or from any order, Time within whether final or interlocutory, in any matter not being an action ^ust'be^^ shall, except by special leave of the Court of Appeal, be brought ^i-ougiit. after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year (/). The said respective periods shall be calculated, in the case of an appeal from an order in Chambers, from the time when such order was pronounced, or when the appellant first had notice thereof, and in all other cases from the time at which the judg- ment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal (g). An appeal shall not operate as a stay of execution or of stay of 1 1 • • lie J- execution. proceedings under the decision appealed from, except so tar as the Court appealed from, or any judge thereof, or the Court of Appeal, may order; and no intermediate act or proceeding shaU be invalidated, except so far as the Court appealed from may direct (h). Wherever under these rules an application may be made either when appUca- to the Court below or to the Court of Appeal, or to a judge of the made to Court Court below or of the Court of Appeal, it shall be made iu the first ^*^''^- instance to the Court or judge below (i). (c) Order Lvni., r. 12. (/) Order Lvni., r. 15. (d) Id., r. 13. (g) Id. ' (e) Id., r. 14. (A) Id., r. 16. (i) Id., r. 17. 214 QUO WARKANTO INFOEMATIONS. Applications to be by motion. Execution. Every appKcation to a judge of the Court of Appeal shaU he by motion, and the provisions of Order Ln. shall apply thereto (k). Execution in qito warranto proceedings is also to be had and taken as if in an action (l) ; and Order XLn. of the Eules of the Supreme Court, 1883, is, as far as applicable, to apply to all civil proceedings on the Crown side (m). The following are the rules of this order • — Uffed of service qfjvdgment or order. — ^Where any person is by any judgment or order directed to pay any money or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same' without demand. (E. 1.) Jvdgment or order upon condition. — ^Where any person who has obtained any judgment or order upon condition does not perform or comply with such condition, he shall be considered to have waived or abandoned such judgment or order so far as the same is bene- ficial to himself; and any other person interested in the matter may, on breach or non-performance of the condition, take either such proceedings as the judgment or order may in such case warrant, or such proceedings as might have been taken if no such judgment or order had been made, unless the Court or a judge shall otherwise direct. (E. 2.) Recovery of money. — A judgment for the recovery by or payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any Court whose jurisdiction is transferred by the Principal Act might bave been enforced at the time of the passing thereof. (E. 3.) Payment into Court. — A judgment for the payment of money into Court may be enforced by writ of sequestration, or in cases in which attachment is authorized by law, by attachment. (E. 4) Recovery of property. — ^A judgment for the recovery of any pro- ;perty other than land or money may be enforced : By writ for delivery of the property : By writ of attachment : By writ of sequestration. (E. 6.) Qc) Order lviii., r. 18. (I) C. O. R. 134. (to) C. 0. E. 217. PROCEDURE PROM CLOSE OF PLEADINGS. 215 Judgment to do or forbmr.—K judgnient requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal. (E. 7.) Meaning of " writ of execution " and " issuing execution."— In these rules the term " writ of execution " shaU include writs of fieri facias, capias, elegit, sequestration, and attachment, and all subsequent writs that may issue for giving effect thereto. And the term " issuing execution against any party " shall mean the issuing of any such process against his person or property as under the preceding rules of this order shall be applicable to the case. (E. 8.) Judgnient for conditional relief. — Where a judgment is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency, the party so en- titled may, upon the fulfilment of the condition or contiagency, and demand made upon the party against whom he is entitled to relief, apply to the Court or a judge for leave to issue execution against such party. And the Court or judge may, if satisfied that the right to relief has arisen according to the terms of the judgment, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried. (E. 9.) Documents to be produced before issue of execution. — No writ of execution shall be issued without the production to the of&cer by whom the same shall be issued of the judgment or order upon which the writ of execution is to issue or an office copy thereof shewing the date of entry. And the officer shaU be satisfied that the proper time has elapsed to entitle the judgment creditor to execution. (E. 11.) Prcecipefor writ. — No writ of execution shall be issued without the party issuing it, or his solicitor, iiling a prcedpe for that purpose. The prcecipe shall contain the title of the action, the reference to the record, the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties against whom, or of the firm against whose goods the execution is to be issued ; and shall be signed by or 216 QUO WARRANTO INFORMATIONS, on behalf of the solicitor of the party issuing it, or by the party issuing it, if he do so in person. The forms in Ap- pendix (G) may be used, with such variations as circumstances may require. (E. 12.) Indorsement on writ. — Every writ of execution shall be indorsed with the name and place of abode or ofi&ce of business of the soKcitor actually suing out the same; and when the solicitor actually suing out the writ shall sue out the same as agent for another solicitor, the name and place of abode of such other soHcitor shall also be indorsed upon the writ; and in case no solicitor shall be employed to issue the writ, then it shall be in- dorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's or defendant's residence, if any such there be, (E. 13.) Dcute of ivrit. — Every writ of execution shall bear date of the day on which it is issued. The forms in Appendix (H) hereto may be used, with such variations as circumstances may require. (E. 14) Mepenses of execution. — In every case of execution the party entitled to execution may levy the poundage, fees and expenses of execution, over and above the sum recovered. (E. 15.) Indorsement of direction to sheriff. — ^Every writ of execution for the recovery of money shall be endorsed with a direction to the sheriff or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £4 per cent, per annum from the time when the judgment was entered up, provided that in cases where there is an agreement between the parties that more than £4 per cent, interest shall be secured by the judgment, then the iadorsement may be accordingly to levy the amount of interest so agreed. (E. 16.) Fi. fa. or elegit.— Every person to whom any sum of money or any costs shall be payable under a judgment or order shall, so soon as the money or costs shall become payable, be entitled to sue out one or more writ or writs of fieri facias or one or more PEOCEDUEE FEOM CLOSE OF PLEADINGS. 217 writ or writs of d^egit to enforce payment thereof, subject, neverthe- less, as follows : — • (a.) If the judgment or order is for payment within a period therein mentioned, no such writ as aforesaid shaU be issued untU after the expiration of such period. (&.) The Court or a judge may at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit. (E. 17.) Separate writs for mioney and, costs, — Upon any judgment or order for the recovery or payment of a sum of money and costs there may be, at the election of the party entitled thereto, either on& writ or separate writs of execution for the recovery of the sum and for the recovery of the costs ; but a second writ shaU only be for costs, and shall be issued not less than eight days after the first writ. (E. 18.) Time for execution. — A party who has obtained judgment or an order, not being a judgment for payment of money or costs, or for the recovery of land, may issue execution in fourteen days, unless the Court or a judge shall order execution to issue at an earlier or later date with or without terms. (E. 19.) Cwrrency of writ and renewal. — ^A writ of execution, if imexe- cuted, shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided ; but such writ may, at any time before its expiration, by leave of the Court or a judge, be renewed by the party issuing it, for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked with a seal of the Court bearing the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his attorney, and bearing the like seal of the Court ; and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof. (E. 20.) Proof of renewal. — The production of a writ of execution, or of the notice renewing the same, purporting to be marked with such seal as in the last preceding rule mentioned, shewing the same to have been renewed, shall be sufficient evidence of its having been so renewed. (E. 21.) 218 QUO WAEBANTO INFORMATIONS. Execution mthin six years. — As between the original parties to a judgment or order execution may issue at any time within six years from the recovery of the judgment or the date of the order. (E. 22.) After six, years. — In the following cases, viz. : — (a.) Where six years have elapsed since the judgment or date of the order, or any change has taken place by death or otherwise iu the parties entitled or liable to execution ; (6.) Where a husband is entitled or liable to execution upon a judgment or order for or agaiost a wife ; (c.) Where a party is entitled to execution upon a judgment of assets in futv/ro ; (d.) Where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against such company, or against a public officer or other person representing such company, the party alleging himself to be entitled to execution may apply to the Court or a judge for leave to issue execution accord- ingly. And such Court or judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties, shall be tried in any of the ways in which any question in an action may be tried And in either case such Court or judge may impose such terms, as to costs or otherwise, as shall be just. (E. 23.) Execution on order. — Every order of the Court or a judge in any cause or matter may be enforced in the same manner as a judgment to the same effect. (E. 24.) By or against a person not a party. — ^Any person not being a party to a cause or matter, who obtakis any order or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter ; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be en- forced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to such cause or matter. (E. 26.) PROCEDURE FROM CLOSE OF PLEADINGS. 219 Avdiia querela abolished. — No proceeding by audiia querela shall hereafter be used; but any party against whom judgment has been given may apply to the Court or a judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded ; and the Court or judge may give such relief and upon such terms as may be just. (E. 27.) Saving of previous rights. — Nothing in this order shall take away or curtail any right heretofore existing to enforce or give effect to any judgment or order in any manner or against any person ox property whatsoever. (E. 28.) Order of writs. — ^Nothing in this order shall affect the order m which writs of execution may be issued. (E. 29.) Maindatory judgment, &c. — If a mandamus, granted in an action or otherwise, or a mandatory order, iujunction, or judgment for the specific performance of any contract be not complied with, the Court or a judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the Act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court or judge, at the cost of the disobedient party ; and upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a judge may direct, and execution may issue for the amount so ascertained, and costs. (E. 30.) Corporations. — Any judgment or order against a corporation wil- fully disobeyed may, by leave of the Court or a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other ofiicers thereof, or by writ of seques- tration against their property. (E. 31.) Discovery in aid of execution. — "When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the Court or a judge for an order that the debtor liable under such judgment or order, or in the case of a corpora- tion that any officer thereof be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what property or means of satisfying the judgment or order before a judge or an officer of the Court as the 220 QTJO WAEEANTO INFORMATIONS. Court or judge shall appoint; and the Court or judge may make an order for the attendance and examination of such debtor; or of any other person, and for the production of any books or documents. (E. 32.) In case of any judgment or order other than for the recovery or payment of money, if any difficulty shall arise in or about the execution or enforcement thereof, any party interested may apply, to the Court or a judgej and the Court or j'udge may make such order thereon for the attendance and examination of any party or otherwise as may be just. (E. 33.) The costs of any application under the last-mentioned rule and of any proceedings arising from or incidental thereto, shall be in the discretion of the Court or a judge (n). Costs. — The costs of any application under the last two preceding rules or either of them, and of any proceedings arising from or incidental thereto, shall be in the discretion of the Court or a judge, or in the discretion of such ofi&cer as in r. 32 mentioned, if the Court or a judge shall so direct. (E. 34.) Costs of Tiie Court of Appeal is empowered to make such order as to the whole or any part of the costs of the appeal as may be just (o). Security for Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal (p). On the subject of security for costs, see further, ante, p. 170. Appeal to From the judgment of the Court of Appeal there may be a House of Lords. „ , , further appeal to the House of Lords. Por the procedure on appeal to the House of Lords, vide arUe, pp. 106, 107, and the Standing Orders of the House of Lords ia the Appendix, post. (k) Order xin., r. 34. Chamber on writ of error, the relator (o) Order Lvm.,r.4. Under the old was held not entitled to the costs of procedure, the judgment of the Court the proceedings in error: Bowleyv. B., below, in fayour of the relator with 6 Q. B. 668. costs, being affirmed by the Exchequer (p) Id., r. 15. PKOCBDURE FROM CLOSE OF PLEADINGS. 221 Note. The cab committee of a town council adopted the following course of proceeding, in cases of offences against the bye-laws made by the council for the regulation of cabs, hackney carriages, and other licensed Tehicles : — On any complaint being made against a cabdriver, the committee issued a summons (having the city arms at the top, and the name of the town clerk at the bottom), calling on him to appear before them, and answer the complaint. On the party appearing, and the com- plaint being considered well founded, a fine was imposed : if the fine were not paid, no attempt was made to enforce it, but the cabdriver was summoned in the ordinary way before justices for breach of the bye-laws. An application for an order nisi for a quo warranto information against the committee, for this usurpation of jurisdiction, was made to a Divisional Court and refused ; apparently on the ground that it was understood to be a jurisdiction by way of arbitration, voluntarily submitted to, and not compulsory or judicial in its character. But on appeal the Court of Appeal granted an order nisi ; on the argument of which the committee agreed to discontinue their proceedings, with- out the necessity of issuing an information, in case the Court of Appeal should consider their proceedings unwarranted. The Court of Appeal were unanimously of that opinion. Lord Esher, M.E., said he was sure that these gentlemen had believed that in doing what they had done, they had acted for the public advantage. But if they had acted as a Court, though from the best motives, and they had usurped an authority which no private person could legally assume, the Court could not tolerate it, merely because it had been done with the best motives. Nor was it a ques- tion what these gentlemen had intended, but what they had done. The question was whether they had acted as a Court; and that depended primarily and principally upon the so-called summonses, issued under the arms of the city and the signature of the town clerk, and calling upon the parties summoned to appear before the committee and " answer the complaint " against them. There was every symbol of authority ; everything that could indicate that the summonses were issued by authority ; and they ran in the form usual in magistrates' summonses : — " You are hereby required to attend before the com- mittee." And if the parties appeared they were heard, and the matter was " decided ;" and orders were made for the payment of 222 QUO WARRANTO INFORMATIONS. fines " imposed," or smiis of money " adjudged " or awarded. And if the party summoned did not appear, orders were made npon him in his absence for the payment of money. The forms of summonses issued shewed that consent was not required ; and what was done shewed that it was not arbitration, but that the committee acted as a court, and so usurped a judicial authority or jurisdiction which they had no right to assume. That being so, the Court were not at liberty to consider whether it was beneficial or otherwise to the public, and were bound to hold it illegal : JE!x parte Wiseman, Be Cab Committee of the Council of the Corporation of Manchester, Times, 27th October, 1886. PAET III. MANDAMUS. CHAPTEE I. Nature and Oeigin of the. Jurisdiction. Bladcstone's definition of manda- mus . , 223 Meaning of " prerogative writ " . 223 Origin of the writ 224 Granted where no other remedy . 225 Not against Crown or its servants 225 Distinguished from other kinds of mandamus 225 Granted only by Queen's Bench Division 225 " A WRIT of mandamus " in the words of Blackstone (a), " is, in Biackstone's general, a command issuing in the King's name from the Court of mandamus! King's Bench, and directed to any person, corporation, or inferior Court of Judicature within the King's Dominions, requiring them to do some particular thing therein specified, which appertains to their of&ce and duty, and which the Court of King's Bench has previously determined, or at least supposes to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature . . , and issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance." By the phrase " high prerogative writ," is meant a writ issuing, Meaning of not as ordinary writs, of strict right, but at the discretion (6) of the ^rit." . (a) 3 Com. 110. - (6) This is not, of course, an arbi- trary discretion, but one guided and limited by fixed principles which will be enumerated hereafter. " When the make an order by way of peremptory mandamus, it is no more in the power of that Court than of any other Court to direct that to be done which is not lawful. Upon a prerogative writ there Court of Queen's Bench is invited to arise many matters of discretion which 224 MANDAMUS. Origin. Sovereign acting through that Conrt, in which the Sovereign is supposed to be personally present. "A mandamus," says Lord Mansfield (e), "is certainly a pre- rogative writ, flowing from the King himself, sitting in this Court, superintending the police and preserving the peace of this coimtry, and will be granted wherever a man is entitled to an ofi&ce or a function, and there is no other adequate legal remedy for it." But the Court ought to be satisfied that they have ground to grant a mandamus ; " it is not a writ that is to issue of course, or to be granted merely for asking " (d). The origin of the writ (e), and the various changes which it underwent before attaining its present form and character, have been made the subject of some learned disquisitions of historical but not practical interest. Suffice it to say that instances of its being granted by the Court of King's Bench may be found in very early times ; according to some authorities, so early as the reigns of Edward II. and Edward III. (/), though its systematic use may may induce the judges to withhold the grant of it, matters connected with delay, or possibly with the conduct of the parties ; and when the judges have exercised their discretion in directing that which is in itself lawful to be done, I apprehend that no other Court can question their discretion in so directing. But, with regard to that which is in it- self not lawful to be done, they are open to correction, as every other Court is by the Court of Appeal or by a higher authority." — Per Lord Hatherley, B. v. Wigcm, L. E. 1 App. Cas. 622. (c) S. V. Barker, 1 W. Bl. 352. (d) Fer Lord Mansfield, B. v. As- kew, 4 Burr. 2189. (e) " It seems ranginally to have been one of that large class of writs or mandates by which the sovereign of England directed the performance of any desired act by his subjects ; the word 'mandamus' in such writs or letters missive having doubtless given rise to the present name of the writ. These letters missive or mandates, to which the generic name of mandamus was applied, were in no sense judicial writs, being merely commands issuing directly from the sovereign to the snlv ject, without the intervention of the Courts; and they have now become entirely obsolete. The term mandamus, derived from those letters missive, seems gradually to have become con- fined in its application to the judicial writ issued by the King's Bench, which has by a steady growth developed into the present writ of mandamus." — Higb, Extraordinary Bemedies, 5. (/) See Dr. GodlaruTs case, referred to in Widdrington's case, 1 Lev. 23, and B. v. Askevj, 4 Burr. 2186, where Lord Mansfield says: "In a MS. book of reports which I have seen the re-^ porter cites (in reporting Dr. Bonham's case) a mandamus in thetimeof Ed. IIL, directed to the University of Oxford, commanding them to restore a man that was hannitus ; which shows both the antiquity and extent of this remedy by mandamus." But, according to NATURE AND ORIGIN OP THE JURISDICTION. 225 be said to date from about the close of the seventeenth century. Since that time it has been the recognized ordinary method of compelling the performance of public duties, where no other legal method of enforcing them existed. In one case, where it was questioned whether a mandamus was Granted where the proper remedy, Lord Mansfield said: "No other has beenr°^e*dy! suggested ; and if there is no other, then this Court is bound to interpose by the prerogative writ of mandamus ; if the office be of consequence and value" {g). In another case, Lee, C.J., said: " Where a man has jus ad rem, it would be absurd, ridiculous, and a shame to the law, if he could have no remedy; and the only remedy he can have [i.e., in that particular case] is by man- damus " (K). It is never granted against the Crown, or the officers or servants Not against of the Crown as such. " That there can be no mandamus to sln^ts. the Sovereign there can be no doubt, both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment " {i). In the opinion of the present Master of the Eolls (shared by the Granted only late Lord Justice James), the high prerogative writ is, under the Bencrt^Ti- Judicature Act, as it was before, a remedy that can be granted *'™" only in the Queen's Bench Division (k). By way of general introductory observation, it need only be Distinguished -., . ■(. 1 /.i-i from other added that the high prerogative writ of mandamus, oi which we kinds of man- are about to treat, must be carefully distinguished from the manda- '^™"^- mus which could be granted by any of the superior Courts at Westminster, under 13 Geo. 3, c. 63, s. 44, to examine witnesses Windham, J., in an earlier case (iJ. v. 1 W. Bl. 552. Patrick, 2 Keb. 167), most, if not all, Qi) B. v. Montacute, 1 W. Bl. 64. of the early mandamuses were aucto- («') Per Lord Denman, P. v. Powell, ritate Parliamenti, by petitions pre- 1 Q. B. 361 ; B. v. Gommissioners of sented to the King and Parliament, Customs, 5 A. & E. 380. from which the House of Lords was (k) Olossop v. Eeston & Isleworth then distinct, and a court of judicature. Local Board, L. R. 12 Oh. D. 122. Of. and the King gave present answers the language of James, L.J., at pp. 115, wnica voce, without an Act of Parlia- 116; see Be Paris Skating Bink Co. ment. L- K- 6 Oh. D. 731. {g) B. V. University of Cambridge, Q 226 MANDAMUS. in India ; or to examine witnesses in any other place under the Sovereign's dominions in foreign parts, under 1 Will. 4, c. 22, s. 1; also from the mandamus which could be claimed by action undet the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, ss. 68-77 (l) ) ; and, finally, from the mandamus which, by s. '25, sub-s. 8 of the Supreme Court of Judicature Act, 1873, may be granted, by an interlocutory order of the High Court, in all cases in which it shall appear to the Court to be just or convenient that such order should be made. " I think," said Brett, M.E., " the mandamus spoken of in the 8th sub-section of the 25th section of the Judicature Act is not ■the prerogative mandamus, but only a mandamus which may be granted to direct the performance of some acts, of something to be done, which is the result of an action where an action will lie " (m) ; whereas, as will be more clearly seen hereafter, the prerogative writ is only granted in eases where the performance of the duty sought to be enforced could not be compelled by action. (I) The ideas of Lord Campbell, C. J., mxist be confined to such duties as on this point appear to have been a might be enforced by " the prerogative little confused. In the case of an action writ of mandamus," adding : " The Act (Benson v. Fault, 6 E. & B. 273), facilitates the obtaining of such a writ, brought soon after the passing of the and extends the powers of granting it Act, for a mandamus to compel the tootherCourtsas well as to the Queen's granting of a lease pursuant to contract. Bench." ' his Lordship said that the enactment (to) L. R. 12 CL D. 122. ( 227 ) CHAPTEE IL General Eules applicable to Mandamus. General rules as to grant of man- damus 227, 228 Legal right to performance of public duty .... 228-231 Dutymust be of apublio nature 231, 232 No otter effective means of en- forcing it .... 232-241 Where matter more appropriately dealt with elsewhere . . . 241 Where matter is being litigated elsewhere .... 241, 242 Where other remedy not so effec- tual ...... 242-244 FAQE Cumulative remedy .... 244 Where other remedy would operate harshly . . ... . . 245 Where mandamus unnecessary . 245 G-ranted only where practically effective 246, 247 Demand and refusal necessary 247-249 Granted only to compel the doing of something 250 Effect of delay in applying 250, 251 Application premature . . . 251 Motives of applicant .... 251 The principal general rules as to the cases in which the high General rules prerogative writ of mandamus will be granted are the followiag ; — mandamu" . ° (1.) The applicant must have a legal right to the performance of some duty of a public and not merely private character. (2.) There must be no other effective lawful method of enforcing the right. (3.) The Court must be convinced that the remedy by mandamus wO be practically effective to secure the object aimed at. (4.) There must have been a demand made upon the person or body on whom the performance of the duty sought to be enforced is incumbent, and a neglect and refusal by such person or body to perform it. (5.) The application must be to compel the performance of some duty which has not been done ; it must not be to order the undoing of an act which has been done. (6.) The application must be made in proper time : i.e., it must not have been delayed too long ; neither, on the other hand, must it be made prematurely ; and Q 2 228 MANDAMUS. (7.) The Court must be satisfied as to the propriety of the motives of the applicant. Where, ia accorcZance with these principles, a mandamus is not obtainable, the Court will not grant it, though all objection should be waived (a). Legal right to 1. There must be a legal right on the part of the applicant to rpnbikTd^y the performance, by the person or body against whom he applies, requisite. ^£ some duty of a public and not merely private character. " There ought in all cases," said Lord Ellenborough, " to be a specific legal right as well as the want of a specific legal remedy, in order to found an application for a mandamus " (6). The right of the applicant may arise from, and the duty which he seeks to enforce may be imposed by, either (1) statute (e) ; (2) charter ; or (3), the common law or custom (d), as, e.g., the right of burial in the parish churchyard (e). No authorities need be cited in proof of the proposition that a right must exist ; for " the existence of a legal right or obligation is the foundation of every writ of mandamus " (/). But the Courts held also that a mandamus would not be granted to enforce a right not of a legal but of a merely equitable character, however extreme the inconvenience to which the applicant might be put by having to seek his relief in a Court of Equity (g). In refusing a mandamus. Lord EUenborough said : " There being no legal right in the present applicant, without which there can (a) Per Lord Campbell, CJ., B. v. appoiDtmentof auditor of the chamber- Lords of Treasiwry,'l& Q. B. 359. Iain's and bridgemaster's accounts. (6) B. V. Archbishop of Canterbury, (e) See Ex parte Slackmore, 1 B. & 8 East, 220. Ad. 122. B. v. Coleridge, 1 Chitt. 588. (c) " It is settled that where an en- (/) Per Lord Campbell, Ex parte tirely new right is given by statute, Napier, 18 Q. B. 695. See the obser- mandamus is the remedy, though it vations of the Court in B. v. Hertford is otherwise where an old right only College, L. E. 3 Q. B. D. 701 ; see also is enforced :" per Wood, V.C, Simpson R. v. LUOedale, Ir. L. R. 12 Q. B. &c. V. Scottish, &c.. Insurance Co., 1 H. & Div. 97. M- 629. (g) See per Lord Denman, C J., in B. (d) Sec B. V. College of Surgeons, 2 v. Godolphin, 8 A. & E. 347, and per Burr. 892, where the custom set up Lord Kenyon, C. J., in B. v. Stafford, was to have a duly qualified apprentice 3 T. E. 651, post, p. 233, note (z) ; B. v! admitted and bound ; B. v. Mayor of Orton, 14 Q. B. 139, where it is jwinted London, 1 T. E..423, where the ques- out (p. 146) that in B. v. KendaU, 1 tion was as to the custom regulating the Q. B. 366, the point was not taken. GENERAL RULES APPLICABLE TO MANDAMUS. '229 be no claim on the Court to exercise its jurisdiction, I think we ought not to grant the application Qi)." In the language of another learned judge {i), the writ of mandamus cannot issue, unless the applicant has a specific legal right to that which he prays for, and this at the hands of those from whom he requires it : a complete legal right must exist. A mortgagee of turnpike tolls under 3 Geo. 4, c. 126, s. 81, having oiJLy an equitable right (h) was held not entitled to a man- damus to compel the trustees of the road to pay the interest on his mortgage (Z). No instance is to be found in our books of any attempt by a clergyman, even after presentation, to obtain a writ of mandamus to compel his institution to a presentative benefice ; and for this •plain reason, that there is a legal remedy open to those who present him, by guars impedit, and he has himself no legal right what- ever (m). A mandamus to register a ship was refused because the title of the applicants was founded on a sale to them by the survivor of two trading partners, in which the personal representative of the deceased partner had not joined (n). The Court refused a mandamus to compel the lord of a manor to admit the applicant, where his title was clearly barred by lapse of time (o) ; also to compel trustees under a road Act to repair a part of it turned through an enclosure, where their legal liability to repair it was not proved (p). If the application is to enforce the provisions of an Act of Parlia- ment, the Court must see clearly that the case is one which falls , within the meaning of the Act (q). (h) B. V. Bishop of Exeter, 2 East, (Z) B. v. Balby Turnpihe Rood, 22 466 ; see also B. v. Bishop of London, L. J. Q. B. 124. 1 Wils. 11 ; B. V. Barnard's Inn, 5 (m) Per cur., B. v. Orton, 14 Q. B. A. & E. 17 ; B. Y. Archbishop of Can- 146. terhwy,8'E,a.st,219; Ex parte Bicketts, (n) B. v. 'Collector of Customs, 2 4 A. & B. 999 ; B. v. Bond, 6 A. & E. M. & S. 223. 905. (o) B. V. Agardsley, 5 Dowl. 19. («•) Coleridge, J., Be Be Bode, 6 Ip) B. v. Llandilo Commissioners, 1 Dowl. 789. T. R. 232. (ft) See Pmdoe v. Price, 11 M. & W. (j) Per Le Blanc, J., B. v. Eeywood, 427 ; 12 L. J. Ex. 285 ; 14 L. J. Ex. 1 M. & S. 630 ; B. v. Justices of Den- 212 '; 16 L. J. Ex! 192. Ughshire, 14 East, 285 ; R. v. Clear, 7 230 MANDAMUS. If a statute authorizes the doing of any act which causes an injury to the Queen's subjects at large, the only appropriate remedy viz., by indictment, is taken away ; and where there is no legal right to compensation, a mandamus will not be granted (r). If the alleged right is founded on immemorial custom, prima facie proof of the existence of the custom must be given («). " Where an application is made for a mandamus, and the question turns upon a custom which the parties litigating desire to have tried, the Court will grant the writ for that purpose, or they will direct an issue to be tried. But in such cases, a foundation must be laid before them, and they must see that there is some ground for the application. It will not be granted merely for asking " (t). And where the right sought to be vindicated by mandamus is opposed to a long-established custom, the Court will require the right to be very strictly made out (m). If a mandamus is sought to restore or admit to an of&ce, the applicant must make out a. prima fade title to the office, and shew, at least, that he has complied with all the forms necessary to con- stitute his right (oj). If the application is made to compel a new election, on the ground that the election which has taken place is void, the Court must be enabled to see clearly the iavalidity of the election which has taken place (y). No member of the public has an enforceable right to be admitted a member of any of the Inns of Court (z) ; and the same is true as to a College (a). If either of these bodies acts capriciously in refusing admission, the Court can give no remedy ; because there D. & B. 393 ; Ex parte King, 7 East, in B. v. West Looe, 3 B. & C. 684, 91 ; R. V. Justices of N. R. Yorkshire, 685. See also jB. v. Field, 4 T. R. 125, 2 B. & C. 286 ; Re Smyth, 4 A. & E. and R. v. Bale, 9 A. & E. 339. 976 ; R. V. Recorder of Bath, 9 A. & (u) R. v. Chester, 1 M. & 8. 101 ; E. 871 ; R. V. Hughes, 3 A. & B. 425 ; R. v. Mayor, &c., of London, 1 T. R. Re Lodge, 2 A. & E. 123 ; R. v. Col- 423 ; R. v. Palmer, 8 East, 426. lector of Customs, 1 M. & S. 262. (a;) R. v. Jotham, 3 T. R. 575. (r) R. V. Bristol Dock Co., 12 East, (jj) Per Lord Denman, C.J., R. v. 428. Governors of Sandford, 1 N. & P. 338. (s) R. V. Bishop of London, 1 T. R. (z) R. v. Lincoln's Inn, 4 B. & C. 331' 855 ; cf. R. v. Barnard's Inn, 5 A. & («) Per Lord Mansfield, Id., p. 333, E. 17. 334. Cf. the langu^e of Abbott, C.J., (o) Per Bayley, J., 4 B. & C. 860. GENERAL RULES APPLICABLE TO MANDAMUS. 231 has been no violation of any legal right (h). The same was held as to admission as an advocate of the Court of Arches (e). A mandamus to compel payment of his superannuation allowance to a metropolitan police constable was refused, because the allow- ance was not payable as of right, and might at any time be revoked at the discretion of the Secretary of State (d). , In former times a mandamus was held to lie only to compel the performance of a ministerial duty; but modern cases have gone much further, and a mandamus will now be granted, when requi- site, to compel the performance of any public duty (e). But the existence of the duty must be clearly established. A man- damus to compel the residence within their borough of aldermen was refused, where such residence was not shewn to be necessary to the discharge of the duties of the office or required by charter (/): ! Where the duty to act is conditional on the approval of another person or body being obtained, there, is no right to a mandamus until such approval has been given (g). The duty must be of a public, and not merely private, character. Duty must be , " The reason why we grant these writs," said Lord Hardwicke (h), nature! " is to prevent a failure of justice, and for the execution of the common law, or of some statute, or of the king's charter ; and never as a private remedy .... N"ay, the old cases went so far as to refuse a mandamus in all cases where an assize lay ; and though the Court is not so strict nowadays, yet it shews in what light these writs are considered : now here there don't appear to be any failure of justice, but only a dispute about a private right j" and on tha,t ground the mandamus was refused (i). " The Court," said Bayley, J., in a later case (h) " never grants this writ except for public purposes and to compel the performance of public duties." As a mere trading corporation differs materially from those (6) Per Bayley, J., 4 B. & C. 860. (/) B. v. Portsmouth, 3 B. & C. (c) B. V. Archbishop of Canterbury, 152. 8 Bast, 213 ; B. v. Hertford College, (g) B. v. St. Luke's, Chelsea, 31 L. E. 3 Q. B. D. 693, L. J. Q. B. 50. {d) B. V. Beceiver for Metropolitan (h) B. v. Wheeler, Cas. temp. Hard. Police District, 4 B. & S. 593, 99. (e) Per Best, J., iJ. v. Fowey, 2 (i) Cf. B. v, Stafford, 3 T. K. 646. B. Sc C. 596. See also per Denman, C. J., {h) B. v. Banh of England, 2 B. & B. V. Payn, 6 A. & E. 399. Aid. 622. 232 MANDAMUS. which are entrusted with the government of cities and towns, and as such have important public duties to perform, a mandamus has been refused to compel such a mere trading corporation to pro- duce their accounts for the purpose of declaring a dividend of the profits (Z). On the same ground a mandamus was refused to compel an insurance company to transfer shares, standing in the name of a bankrupt, into the names of his assignees (m). It is not, however, necessary that the institution in connection with which the duty is to be performed should be public. It was held no objection to the granting of a mandamus to compel the performance of a duty in connection with a charity, that the institution was a private one, supported by lands left to private individuals in trust for the poor of a certain parish (n). But it is an objection that the granting of a mandamus would amount to an interference with the funds of such a charity (o). In some cases where the legal right of the applicant was some- what doubtful, the Court, not wishing to determine the point on motion, granted a mandamus, in order that it might come before them on the return (p). No other 2. There must be no other effective lawful means of enforcing the effective means . of enforcing right. the ng t. „ j^ jg ^gjj settled that where there is a remedy equally conve- nient beneficial and effectual, a mandamus will not be granted. This is not a rule of law, but a rule regulating the discretion of the Court in granting writs of mandamus " (q). Quo warranto. — It has frequently been held a decisive answer to an application for a mandamus that there was another remedy by information in the nature of a qtio warranto (r). (0 I parte Elackmore, 1 B. & Ad. 122. Charing Cross for rope- dancing, was See also JJ. v. Thetford, 5 T. R. 364. sent for into court, where some of the See and distinguish B. v. St. Mar- inhabitants being present said that it garefs, Leicester, 8 A. & E. 889. did occasion broils and fightings, &c. (I) See per Bayley and Littledale, Hale, C. J., told HaU that he understood J J., Ex parte Blackmore, 1 B. & Ad. it was a nuisance to the parish, and 123, and jier Abbott, C.J., B.r. Oole- that in the 8th Chas. 1st, Noy came ridge, 1 Chitt. 597. into court and prayed a writ to pro- (m) Lee v. Oxenden, 3 Salk. 230. hibit a bowling alley near St. Dunstan's (n) BhuMorough v. Davis,! Salk. Church, and had it. 38. (0 B. V. Bristol Dock Co., 12 East, (o) B. v. St. Margarets, 4 M. & S. 429. 250. 242 MANDAMUS. cation for a mandamus to the judge of the prerogative court of Canterbury to grant probate of a will, as to the validity of which a suit was at the time pending in the spiritual court (p) ; and in a case where a mandamus was sought to compel the granting of administration to a next of kin, where the existence or non- existence of a will was being litigated in the same court (£) ; and in a case similar to the last-mentioned, where the judgment against a will was under appeal (r). But the rule on this point is not inflexible. Thus in one case the Court, induced by a variety of considerations, granted a mandamus to compel the mayor and capital burgesses (eight in number) of a corporation to fill up two vacancies caused by the death of two of the capital burgesses, though there was depend- ing at the time a quo warranto information questioning the title of the mayor (s) : — the prosecutor did not appear to be the_ same in both cases; the quo warranto proceeding might, for aught that appeared, be merely collusive, and for the purpose of delaying the proceeding by mandamus ; great inconvenience might result from the number of capital burgesses being reduced too low ; and if the mayor's title turned out to be good, then the elections ordered would be good also, whilst if it turned out otherwise the persons elected under the mandamus might disclaim (t). And where a mandamus had been granted to the commissary of a consistorial court to swear in certain persons named, as church- wardens, a return that there were two causes pending before himself to try the validity of the election of the persons named was held a bad return (u). Where other The existence of another remedy, where that remedy is not so ""ffeJtuir* effectual and convenient as a mandamus, will not be a sufficient ground for refusing the mandamus (x). (p) n. V. Hay, 4 Burr. 2295. See in no case grant a mandamus. There also iZ. V. TT^eeZer, Gas. temp. Hard. 99. may,. I conceive, be occasions where (j) Jnon., 5 Mod. 374. the latter might be deemed the more (r) Steward v. Eddy, 7 Mod. 143. proper remedy." (s) B. V. Grampound, 6 T. B. 301. (u) B. v. Harris, 3 Burr. 1420. (0 And in B. v. Corporation of Bed- (x) Some cases were referred to, ar- ford Level, 6 East, 367, Lawrence, J., guendo, in B. v. Bishop of Chester (1 said : " I do not know that it is a uni- T. R. 399), in which the Court granted a versal rule that where such an informal mandamus though theparty had another tion [quo warranto] lies, the Court will special legal remedy, such as an assize GENERAL RULES APPLICABLE TO MANDAMUS. 243 Thus where a railway had been laid down in pursuance of an Act of Parliament which provided that the public should have the beneficial enjoyment of it, and the railway company afterwards took it up, the Court (in B. v. Severn and Wye Railway Co. (y) ) granted a mandamus to reinstate and lay down the railway again. Abbott, 0. J., said : " I have entertained considerable doubts during the discussion whether the Court ought to grant a mandamus to compel the doing of an act, the omission to do which may be prosecuted by indictment. I am now, however, satisfied by the authorities cited in the course of the argument, that there is no reasonable ground for that doubt. If an indictment had been a remedy equally convenient, beneficial and effectual as a mandamus, I should have been of opinion that we ought not to grant the mandamus ; but I think it is perfectly clear that an indictment is not such a remedy ; for a corporation cannot be compelled by in- dictment to reinstate the. road. The Court may indeed, in case of conviction, impose a fine, and that fine may be levied by distress ; but the corporation may submit to the payment of the fine and refuse to reinstate the road ; and at all events a considerable delay may take place " (z). A similar opinion had previously been expressed by Lord EUen- borough in B. v. Commissioners of Bean Enclosure {a), on an appli- cation to compel the Commissioners to obey an order of sessions to set out a road as a public road. But it seems that this doctrine will not be extended. " I beKeve," said Lord Denman, C.J., in a later case (&), "it is generally thought for ofBce; but, as observed by Buller, J. B. 565, 566, to tbe objection that the (p. 404), that remedy had become ob- prosecutor had a remedy by indictment solete, and the offices were in general for disobedience to an Act of Parlia- created by letters patent; and it was ment: "This argument appears to prove peculiarly the duty of the Court of too much; as it would prevent the Court Queen's Bench to see that the powers from acting in all cases where an Act created by the king's charters were of Parliament is contravened. Besides, properly exercised. the indictment does not compel the (y) 2B.&Ald. 646. See R.-v. Bath- performance, but only punishes the mines Commissioners, 16 Ir. 0. L. Rep. neglect of duty." See also B. v. Not- (N.S.) 532. tingham Old Water Works, 6 A. & E. (z) 2B.&Ald.,650. (y. the answer 355. given by Lord Denman, C.J., in B. v. (a) 2 M. & S. 85. Eastern Counties Bailway Co., 10 A. & (i) B. v. Oamble, 11 A- & E. 72. R 2 244 MANDAMUS. that the decision in B. v. Hie Severn and Wye Railway Go. went quite far enough." According to the same learned judge, in another case (c), the doctrine will only apply where the other remedy is not in its nature so complete as a mandamus, without reference to any circumstances peculiar to the case in which it is to he applied. Therefore a man- damus was refused to compel a company, which appeared to have no assets, to pay the amount of debt and costs recovered against it in an action. " For this," said Lord Denman, C. J., " an execu- tion by /. fa. is a perfect remedy in its nature ; and, if we were to issue the writ because in this particular case there are no corporation chattels seizable, it would be difficult on principle to refuse to issue it in any case where the sheriff should return nulla bona, whether the writ had issued against a corporation or an individual ; for in principle there is no distinction between the two " (d). However, where the Court of Arches had wrongfully refused to entertain an appeal from a sentence by the bishop under the Church Disciphne Act, 3 & 4 Vict. c. 86, the Court issued a mandamus to the judge of that Court, notwithstanding that an appeal from his refusal lay to the Privy Council ; as the Privy Council would not remit the case to the Arches Court, but decide it itself as a court of appeal, and so the appellant would lose the benefit which the Legislature intended he should enjoy by the intermediate appeal to the Arches Court («). Cumulative The existence of another remedy is sometimes regarded as merely cumulative, in which case it will be no bar to the granting of a mandamus, e.g., where a statute gave a right to parishioners to inspect the accounts of the churchwardens and overseers of the poor, and imposed a penalty for wrongfully refusing inspection (/). The existence of a right to pull down an accommodation work which a railway company was not erecting in the manner required by Act of Parliament, and to erect a proper one at the expense of the company, was not considered a sufficient ground for refusing a mandamus to the company (g). (c) B. V. Victoria Pwrk Co., 1 Q. B. 4 B. ) 11 0. B. 755 ; a case as to the («) 1 Vera. 152 ; where the words allowance of costs to a successful plain- of the statute being that the Chancellor tiff in a county court. " may grant a commission " of bank- (c) 1 C. B. N. S. 67 ; as to the ruptoy. Lord Keeper North held that right of a judgment creditor of a joint he was bound to exercise the power for stock bank to execution against a share- the benefit of creditors. holder. (z) 2 Salk. 609 ; an indictment on (d) 14 Q. B. 459 ; as to confirma- 14 Car. 2, c. 12, against churchwardens tion by the Tithe Commissioners of for not making a rate to reimburse agreements for commutation of tithe. 256 MANDAMUS. than this, that where a power is deposited with a public officer for the purpose of beiag used for the benefit of persons who are speciiically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised " («). Lord Penzance, if the matter were to be decided by previous defini- tions, would have preferred to the so-called axiom above-mentioned, what was said by Jervis, C. J., in E. v. York arid North Midland Railway Co. (/), that words such as " it shall be lawful " were to be understood as permissive only unless some " absurdity or injustice " would follow from giving them their natural meaning (g). Lord Selborne added his opinion that the meaning of such words is the same whether there is or is not a duty or obligation to use the power which they confer, and " they are potential, and never in themselves significant of any obligation. The question whether a judge or a public officer to whom a power is given by such words is bound to use it upon any particular occasion, or in any par- ticular manner, must be solved aliimde ; and in general it is to be solved from the context, from the particular provisions, or from the general scope and object of the enactment conferring the power" (h). Difference be- In Compelling the performance of a public duty by an inferior ^d ministerial office or tribunal the Court wOI consider carefully whether the duty. duty is of a judicial or of a merely ministerial character. K the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way ; not where it is done in one way rather than another, erroneously instead of properly. In other words, the Court will only insist that the person who is the judge shall act as such ; but it will not dictate in any way what his judgment should be. If, however, the pubUc act to be performed is of a purely minis- terial kind, the Court wiU by mandamus compel the specific act to be done in the manner which to it seems lawful. The distinction is clearly put by Lord Hardwicke in dealing (e) L. B. 5 App. Gas. 225. (A) U. 235. See also the judgment (/) 1 E. & B. 861. of Lord Blackburn, p. 241. (^) L. E. 5 App. Gas. 230. NATURE OP THE DUTIES ENFORCEABLE BY MANDAMUS. 257 with an application for a mandamus to a bishop to grant a licence to a person elected usher of a free grammar school : — " If the bishop here acts judicially, a mandamus lies not to compel him to grant a licence, but only to determine the one way or the other ; as we often grant them to give sentence, generally, without directing them what sentence to give : so to give judgment in inferior Courts. But if he acts ministerially, and it appears to us that the person applying for the mandamus is qualified for the office he prays to be admitted to, then a mandamus goes requiring his admission " (i). The opinion of the Court of Chancery that the duty was minis- terial only would not induce the Court of Queen's Bench to grant a mandanlus, where it considered the duty judicial (k). The Court will not by mandamus order quarter sessions to quash a rate ;' for quashing a rate is a judicial act, and the Court will not by mandamus dictate the judgment which another Court shall give (I) ; nor will it interfere with any exercise of a discretion vested in the inferior tribunal, as, for example, in acceding to or refusing an application for postponement (m). . So where a magistrate has heard a case and exercised his discre- tion in either convicting or acquitting, the Court will not by mandamus compel him to rehear the case, or to return the proceed- ings which had taken place before him (n). So also with regard to an exercise of discretion in disallowing a certain charge of a coroner (o). If any duly constituted tribunal is the proper judge of the matter How far ded- in question, the High Court of Justice will not interfere by man- tribnnaiVin""^ ■ damns ; fexcept, as already stated, so far as may be necessary to put ^* compelled that tribunal in motion. If, however, there has been on the part of the proper tribunal (i) R. V. Bishop of Lichfield, 7 Mod. (l) See per Littledale and Coleridge, 218; cf. per -liori Ellenbovough in J3.,mS.v.Middlesex,9Ad.&'E.54:6. B. V. Archbishop of Canterbury, 15 ("») Ex parte Becke, 3 B. & Ad. 704. East, 139 ; per Best, J., in B. v. North See also B. v. Norfolk, 1 D. & B. 74 ; Biding of Yorkshire, 2 B. & C. 291 : B. v. Monmouthshire, 1 B. & Ad. 89.5 ; and per Littledale, J., B. v. Middlesex, 3 Dowl. 306. 9 A. & B. 546. See also B. v. Lincoln, (n) Ex parte B. & F. Patent Inven- 2 T. R. 338, note (a), tinn Co., 7 Dowl. 614. (k) See Ex parte Cook, 2 E. & E. (o) B. v. Justices of Kent, 11 East, 586 ; B. V. Law, 7 E. & B. 366. 229. 258 MANDAMUS. what, in the opinion of the Court, amounts to a refusal to act, a mandamus to compel it to do so will be granted, even in the case of private charities {p). A good illustration of this distinction is afforded by the case of B. V. The Deputies of the Freemen of Leicester (g-), where the election of two deputies A. and B., being disputed, the four days' notice required by statute was served on A.'s wife; and evidence was given of its having been served personally on B. The deputies, who were the legal tribunal to determine the validity of the elec- tion, having erroneously decided that the service on A. should have been personal, and having also held as a fact on the evidence that there had not been personal service on B., refused to inquire into either election. The Court held that, as regarded A.'s case, there had been a refusal to exercise jurisdiction, and a mandamus to compel the deputies to exercise it was granted; but that, as regarded B.'s case, the deputies had exercised their jurisdiction, and a mandamus was refused. Though the High Court may refer it to an inferior court to consider what judgment it should pronounce, it will not dictate by mandamus the judgment which the inferior court should give (r). The Court may send a mandamus to an inferior court to do its duty in general terms, but not to do a particular thing (s). A mandamus to sessions to hear and enter continuances is of the former kind, and is granted where the sessions have declined to hear at all ; it is not granted for the purpose of prescribing to them in what manner they shall direct their inquiry (t). The same is true of the visitor of a college : aU the High Court can do is to put the visitor in motion ; having done so it cannot review his decision (m), provided, that is, he has acted within his jurisdiction {x), and the accused party has had an opportunity of (p) See R. V. Bislwp of Worcester, T. R. 338, note (a). 4 M. & S. 415 ; B. v. Uncoln, 2 T. R. (<) Per Williams, J., 3 A. & E. 732 338, n. As to refusal, vide ante, pp. («) Per Coleridge, J., Mc parte Bvl- 248, 249. ler, 1 Jur. N. S. 709. See the judg- (?) 15 Q. B. 671. ment of Holt, C. J., in PhiUips v. Bury, (r) Per Littledale, J., 5. v. Mdd?e- 2 T. R. 351 et seq.; R. v. Chester, sex, 9 A. & E. 546. 1 Wils. 206. («) Per Patteson, J., B. v. Eewes, (x) Seejjer Ashurst, ,J., i?. v. Bishop 3 A. & E. 732; cf. R. v. Uncoln, 2 of Ely, 2 T. R. .336. NATURE OP THE DUTIES' ENFORCEABLE BY MANDAMUS. 259 being heard {y). But it will, if necessary, compel the visitor to hear and determine an appeal which properly lies to him («). The High Court will not dictate the method of procedure to be pursued by the inferior court, or the form in which evidence is to be given (a) ; provided the essentials of justice are complied with, and a man has not been condemned without an opportunity afforded him of being heard either in person or by counsel (I). But the ordinary tribunal may sometimes become incapacitated Where exist- to deal with the matter ; as where the principle applies that no v^sUor will not one can be a iudge in his own cause. prevent grant " ° or mandamus. In a case of this kind a visitor cannot be such judge, unless the founder expressly makes him so. Where a bishop who was visitor of a college claimed a right, on a vacancy of its mastership, to appoint not, as provided by the statutes of the college, one of the two persons presented to him by the fellows, but a third person nominated by himself, a mandamus was granted to compel him to appoint one of the two presented by the fellows (c). The existence of a visitor was held, under the circumstances of the case, to be no objec- tion to the granting of a mandamus ; as the visitor had an interest and asserted a right, which was the very matter complained of. So where the visitor (a bishop) was also the head of a college, a mandamus to admit a chaplain was directed to him ; as, the two of&ces being in the same person, the visitatorial power must be considered as temporarily suspended [d). It was sought to extend this doctrine to a case where the master of a grammar school, annexed to a cathedral, had been removed by the dean and chapter for publishing a pamphlet reflecting on the bishop as visitor as well as on the dean and chapter; but the Court refused to consider the bishop as having any interest unfitting him to act as visitor ; and, on the ground of the existence of such visitor, refused a mandamus (e). " Those who contend for the disqualifi- cation," said Lord Campbell, " might just as well say that if the master had been removed for a Ubel on the judges of the Queen's Bench, we should for that reason have had no jurisdiction" (/). (2/) Per Lord Kenyon, B. v. Cam- 1 E. & E. 545. hridge, 6 T. R. 104. (c) B. v. Bishop of Ely, 2 T. R. 290. (z) B. V. Worcester, 4 M. & S. 415. (a!) B. v. Chester, 2 Str. 797. (a) B. V. My, 5 T. R. 475. (e) B. v. Bocliester, 17 Q. B. 1. (b) B. V. Archbishop of Canterbury, (/) Id. 34. s 2 260 MANDAMUS. Ejtercise of dis- K the right of approving a fit and proper person for an office is poweT"^^ vested in any particular individual or tribunal, though the High Court of Justice will not sit on appeal from the decision arrived at by such individual or tribunal, it will see that in arriving at that decision a deliberate and considerate judgment has been exercised. The discretion must, in the language of Lord Mansfield (g), be exercised in a manner " fair, candid, and unprejudiced," and not " arbitrary, capricious, or biassed, much less warped by resentment or personal dislike." Where the right of approving a fit and proper person to be appointed to an endowed lectureship, was by statute vested in the bishop of the diocese, the duty of the bishop was described by Lord EUenborough thus (h) : — " to exercise his conscience duly informed upon the subject; to do which he must didy, impartially, and effectually inquire, examine, deliberate, and decide. If the Court have reason to think that anything is defectively done iu this respect, it will interpose its authoritative administration." But, although the Court wUl insist on a conscientious judgment being used in the exercise of a discretionary power of choosing or rejecting, of approving or disapproving, it will not compel a disclosure of the grounds on which the result is arrived at (i). And the Court will not substitute its own conscience for that of the other tribunal, or its own sense of fitness for the approval or disapproval of that other tribunal. " For if a matter is left to the discretion of any individual or body of men, who are to decide according to their own conscience and judgment, it would be absurd to say that any other tribunal is to inquire into the grounds and reasons on which they have decided, and whether they have exercised their discretion properly or not" (k). (51) B. V. Askew, 4 Buit. 2189. v. Archbishop of CanterJmry, 15 East, " Wheresoever a person hath power to 142, and per Lord Tenterden, R. v. do a thing at his discretion, it is to be Mayor of London, 3 B. & Ad. 269. understood of sound discretion and See also per Holt, C.J., Phillips v. according to law, and this Court hath Bury, 2 T. R. 356. power to redress things otherwise done." (k) Per Lord Tenterden, C.J., .B v. Ber Bacon, J., Estwick v. City of Mayor, &e., of London.SB. &Ai.271. London, Styles, 43. See also per Lord EUenborough, R. v. Qi) B. V. ArchUshtp of Canterbury, Archbishop of Ccmterbwry, 15 East, 15 East, 139. 157 ; B. v. Visit warranto. The principles above stated have also been applied to a case where the charter of a borough directed that, when it should happen that any of the capital burgesses should dwell out of the borough, it should be lawful for the remainder to elect others into their place. no opportunity of being heard ; and in Beedle, 3 A. & E. 467. order to give Mm an opportunity of (m) JR. v. St. Martin-in-the-Fields, heing heard, and for no other reason, a 1 T. R. 146. jMo warranto is necessary. (o) B. v. Gamhridge, 4 Burr. 2008. (0 Caseof^5erys«i«i«A, 2Str. 1157; (jp) B. v. Birmingham,! A. & E. Case of Bossiny, 2 Str. 1003; B. v. 254. Newsham, Say. 211. {q) Ex parte Mawey, 3 E. & B. 718. (to) B. v. Gamhridge, 4 Burr. 2010 ; (r) J?, v. Winchester, 7 A. & E. 215. B. V. Banhes, 3 Burr. 1454. See B. v. See also B. v. Derby, 7 A . & B. 419. TJ 2 292 MANDAMUS. It was argued that, as the power of amotion existed, it would be a useless ceremony to make it necessary for the corporation (who stated their readiness to consent to any rule) to do a mere formal act prior to the granting of the mandamus ; but the Court would not depart from the general practice not to grant a mandamus to elect, unless the party in possession of the office were previously amoved from it (s). A person may be elected to, and in actual possession of; an office, though his election has been obtained by a false and fraudulent statement made by him; and he cannot be lawfully removed from it without being heard in his defence (t). Where the returning officer at a municipal election under the Ballot Act, 1872, declared a person duly elected councillor who had not the majority of votes, on the ground that his competitor was disqualified for election by the fact that he was at the time an alderman ; and the person so declared elected made and subscribed the declaration of acceptance of office required by sect. 35 of the Municipal Corporations Act, 1882, he was considered by the present Master of the Eolls (u) not to have been properly elected either in form or substance ; and in the opinion of the Court of Appeal he did not obtain de facto possession of the office (x). Another distinction is to be observed. If a person has in due form been declared elected by the proper officer, he is from that moment in de facto possession. Should another person be subse- quently declared elected on the ground of a supposed error in counting the votes, the person first declared elected is entitled to a mandamus; the proceedings subsequent to the declaration of his election being merely void (y). And the Court wOl grant a rule absolute for a mandamus to compel the swearing in of the person actually elected, though the validity of the election is questioned; the validity not being a matter which wiU be considered at this stage (z). A mandamus to restore such a person has also been granted (a). (s) M. V. Truro, 3 B. & Aid. 590. (y) R. v. Maycyr of Leeds, 11 A. & (t) B. V. Saddler^ Co., 10 II. L. Cas. E. 512. 404. See also per Blackburn, J., pp. (z) E. v. Archdeacon of Middlesex, 420-423. 3 A. & E. 615 ; Ex parte Duffield, 3 (u) JR. V. Bangor, L. E. 18 Q. B. D. A. & E. 617 ; Ex parte Winfield, 3 365. A. & E. 614. (») Id., pp. 367, 368. (a) B. v. Lyine Regis, 1 Douf;. 79. OFFICES IN RESPECT OP WHICH MANDAMUS GRANTED. 293 Further, if the person who had the greatest number of votes was disqualified and ineligible {e.g., a mayor, whilst such, to be elected town councillor), a mandamus would be granted to admit the person next on the poll, if it could be shewn that so many votes had been given for the former, after notice of his disqualification, as to reduce the number of legal votes given to him below that given to the next on the poll (b). Finally, if from the nature of the office or otherwise, the ques- Where ques- tion cannot be tried by quo warranto or by any other mode, the otherwise Court, if satisfied that an election is void, will grant a mandamus *"^'^' for a new election ; provided the circumstances are such, in other respects, as to warrant the granting of the writ (e) ; and sometimes where the invalidity of the first election is not quite clear {d) ; and even after one of the claimants has actually been sworn into the office (e). But if there is any other mode of trying the title to the office, a mandamus will not be granted (/). (6) R. V. Tewkesbury, 9 B. & S. tlie more proper remedy (p. 367). 683. (d) B. V. Birmingham, 7 A. & E. (c) Per Patteson, J., B. v. Stohe 254 ; Be Barlow, 30 L. J. Q. B. 271 ; Damarel, 5 A. & B. 590 ; B. v. Bed- B. v. Hertford College, L. E. 3 Q. B. D. J-ord Level, 6 East, 356. In this case 704. Lawrence, J., said he did not think it (e) E. v. Bedford Level, ubi supra. a universal rule that where a quo war- (/) B. v. Thatcher, 1 D. & E. 426. ranto lies the Court will in no case See and distinguish Ex parte Mawey, grant a mandamus. There might be 3 E. & B. 718, cmte, p. 291. cases where the latter might he deemed 294 MANDAMUS. CHAPTEE V. Mandamus to Inferior Tribunals. General rule. To what Conrts not granted. PAGE To County Courts and other local Courts 298 To Courts Leet 298 To Customary Courts . . . .299 To Q'larter Sessions .... 301 To Petty Sessions and Justices . 310 Rule instead of Mandamus . . 320 PAGE General rule ...... 294 To what Courts not granted . . 294 Scope of mandamus when granted 295 To Ecclesiastical Courts . . . 296 To Insolvency and Bankruptcy Commissioners 297 To Mayor's Court 298 A MANDAMUS issues, says Blackstone, to " the judges of any inferior Court commanding them to do justice according to the powers of their office, wherever the same is delayed : for it is the peculiar business of the Court of King's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the Crown or the Legislature has invested them, and this not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice " (a). A mandamus has never been issued to any of the superior Courts (h) ; though, before the Judicature Acts, it would have been granted to a judge of assize, where he refused to perform a duty obligatory upon him and not merely discretionary (c). Sect. 16 of the Judicature Act, 1873, now vests in the High Court the jurisdiction exerciseable by the Courts created by Commissioners of Assize, of Oyer and Terminer, and of Gaol Delivery (see also sect. 37). Neither is there any instance of a mandamus to the Judicial Committee of the Privy Council (d). (a) 3 Com. 110. Mandamus has 826. But cf. Ex parte Fernandez, for this purpose superseded the old original writ oi procedendo ad judiciuw, which issued out of Chancery. (h) See5. V. Oxenden, 1 Show. 21S; Rioter's case, 1 Vem. 175. (c) See R. v. Earland, 8 A. & E. 10 C. B. N. S. 3 ; 30 L. J. C. P. 321, and the judgments in R. v. Central Criminal Court, L. R. 11 Q. B. D. 483, 484. (rZ) Ex parte Smyth, 3 A, & E. 719. MANDAMUS TO INFERIOR TRIBUNALS. 295 The Court refused to issue a mandamus to the Court of Ad- miralty (e), or to the Central Criminal Court (/). Wherever granted it is to compel the exercise of a jurisdiction Scope of the which the inferior tribunal possesses but refuses to exercise ; never ^j^en to compel the exercise of such jurisdiction in any particular manner ; g''*"*^''- or by way of appeal from its actual exercise. A mandamus to a judicial officer differs in this respect from one directed to a purely ministerial officer, which may be and usually is to order the doing of some particular act and in a manner prescribed. A mandamus is never granted to compel the re-hearing of a case already decided (g) ; or by way of appeal (h) ; or to interfere with rules of practice which are not in the opinion of the High Court unreasonable (i). If the tribunal ordained by law have heard and determined, however erroneously, the superior Court \vill not interfere by mandamus (h) Neither will a mandamus be granted to enforce the judgment of an inferior Court where that Court can do so itself (Z) ; or where there is any other method of enforcing it (m). With reference to inferior tribunals, it is also to be observed that a mandamus is never granted against any of the subordinate officers to compel a performance of their duties. "Of&cers are incident to aU courts, and must partake of the nature of those several courts in which they attend ; and the judges, or those who have the supreme authority in such courts, are the proper persons to censure the behaviour of their own officers ; and if they should be mistaken the Queen's Bench cannot reheve " (n). (e) Sayer v. Newton, cited Gas. t. {k) See B. v. Lords Commissioners Hard. 217. of the Treasury, 10 A. & B. 179 ; *'. v. (/) i?. V. Central Criminal Court, S. 10 A. & E. 374; £. v. Manor of L. B. 11 Q. B. D. 479. Old Ball, 10 A. & E. 248. (g) Per PattesoD, J., Ex parte Q) B. v. Conyers, 8 Q. B. 981, Smith, 3 A. & E. 722; Ex parte 999. Morgan, 2 Chitt. 250 ; B. v. Monmouth- (m) Wilkins v. Mitchell, 3 Salt. shire, 7 D. & R. 334 ; 4 B. & 0. 844. 229. See B. v. Oonyngham, 1 D. & B. (h) B. V. West Biding, 1 A. & E. 5fi3 ; 529. B. V. Manor of Old Hall, 10 A. & E. (») Per curiam, Leigh's case, 3 Mnd. 248; cf. B. v. West Biding, 7 T. R. 335; B. v. Conyers, 8 Q. B. 981. See 467. B. V. Wood Ditton, 18 L. J. M. C. 218. (i) See post, pp. 301, 302. 296 MANDAMUS. But if an inferior Court abstain from entering upon the merits of a case, in consequence of its arriving at a wrong decision upon a preliminary point of law, this will be regarded as a refusal to hear ; and a mandamus to hear and determine wiU be granted (o). Ecclesiastical A mandamus issued in early times to compel Ecclesiastical Courts. Courts to assoO an excommunicated person who wished to conform to the orders of the Church {p) ; and to a bishop to absolve an excommunicated person {q). Down to 1857 the Ecclesiastical Courts had jurisdiction in relation to the grant and revocation of probates, wills, and letters of administration ; and the reports are full of cases, now obsolete, in which mandamuses were granted in order to compel those tribunals to gi-ant probate or administration to persons entitled. The Court of Probate Act, 1857 (20 & 21 Vict. c. 77), put an end to the jurisdiction of the Ecclesiastical Courts in these matters, and transferred it to a court created by that Act, called the Court of Probate. The jurisdiction of this court was, by the Judicature Act, 1873, s. 16, transferred to the High Court of Justice, and is to be exercised by the Probate, Divorce, and Admiralty Division of it (s. 31). A mandamus was granted to compel the judge of the Court of Arches to hear an appeal from a sentence on a clergyman under the Church Discipline Act, 3 & 4 Vict. c. 86 (r). "Whether the functions discharged by the Court held by commis- sioners appointed by the metropolitan for the confirmation of a person elected bishop, in pursuance of letters missive and conge d'elire, are judicial or merely ministerial, was made the subject of long and learned discussion in the case (s) relating to Dr. Hampden. The commissioners having refused to hear the objections of certain opposers, and having confirmed the election in the form usual where no opposition is made, a mandamus was applied for to compel the archbishop or his vicar-general to hold a court for hearing the objections. Patteson and Coleridge, JJ., were in favour of granting a mandamus, on the ground that the objections should (o) See per Coleridge, J., B. v. the parson of a parish the chrism, or liiclia/rds, 20 L. J. Q. B. 3.52. oil for baptizing. {p) Per Montague,.!., case of Pang/i (j) Anm., 2 Roll. 107. of St. Balaunce, 1 Paliri. 5\. In the (r) p. v. Lodson, 7 E. & B. 315 same case it is said that a mandamus («) R v. Archbishop of Canterbur,/, issued to compel a bishop to send to 11 Q. B, 48S. MANDAMUS TO INFERIOR TRIBUNALS. 297 have been heard, or at any rate that the case was sufficiently doubtful to require a return. But Lord Denman, C. J., and Erie, J., were so strongly of opinion that 25 Hen. 8, c. 20, made it impera- tive on the metropolitan to confirm without hearing objections, that the rule for a mandamus was discharged. The Court were in this case unanimously of opinion that if there had been a duty to hear the objections, a mandamus would be the appropriate remedy for a refusal. Where, pending a suit against a bishop before his metropolitan, the bishop appealed to the delegates, a mandamus to compel the latter to admit his allegations was refused (t). Under the Church Discipline Act of 3 & 4 Vict. c. 86, the bishop has a discretion as to issuing a commission to inquire into charges against a clergyman ; and where the bishop declined, after inquiry, to issue a commission to inquire into charges against the rector of a parish, preferred by a stranger to it, the Court refused a mandamus to compel him to do so (w). A mandamus also lay to the Commissioners of the old Court of insolvency . and Bank- Insolvent Debtors (x) ; but not by way of appeal from any judicial mptcy Com- , , ... missioners. determination. A decision that a deed of assignment, under which a person claimed the surplus of the insolvent's property, was invalid as against the other claimants, was held a judicial determination. And even after the validity of the deed had been upheld by the Lord Chan- celLor and Lords Justices, the Court of Queen's Bench still held the refusal of the commissioners to make an order vesting the surplus in the assignee under the deed, to be a judicial act with which they would not interfere by mandamus ; notwithstanding the opinion of the Chancery Court that, after the validity of the deed had been established, the functions of the commissioners had become minis- terial only («/). A mandamus lay also to commissioners under the old Bankruptcy Acts (z) ; but not to exercise in any particular way a discretion vested in them (a). (t) Bishop of St. Davids v. Lucy, 759. 1 Ld. Ray. 544. ' (y) B. v. Law, 7 B. & B. 366 ; Ex (u) B. V. Bishop of Chichester, 2 E. parte Gook, 2 E. & B. 586. & E. 209. (z) -Re Brnmhy, 3 D. & R. 310. (k) Ex parte Deacon, 6 B. & Aid. (a) Ex parte iCing, 7 East, 91, note. 298 MANDAMUS. Mayor's Court. and other local courts. It lay also to the mayor's court to give judgment (b). As to compelling the admission of an attorney to practise there, see B. V. Mayor of London (e). County courts Before 1856 (d) it lay to judges and officers of county courts, to compel the performance of any act relating to the duties of their office; but 19 & 20 Vict. c. 108, s. 48, abolished the procedure by mandamus, and substituted a rule or order of the Superior Court, directing the act to be done (e). This applies to the City of London Court (/). A mandamus also lay to Sheriffs Courts (g) ; to Courts of Be- quests, e.ff., to compel them to hear and determine a suit insti- tuted (h) ; and, by mandamus in the nature of a procedendo ad judicium, to the various local courts, to proceed with causes insti- tuted there (i) ; and also to compel the holding of such courts, even after long disuse (4). As to a forest court, see JR. v. Conyers and Others (J). Mandamuses have been granted to courts leet; to compel the holding of such courts, and the doing and transacting of all their lawful business (m), though after long disuse (n) ; to enforce the Courts leet. (Jo) Amhersfs case, Sir T. Ray. 214, 1 Vent. 187; R. v. Bushworth, W. Kelynge, 287. See Buxton & Single- ton, 3 Keb. 432. (c) 13 Q. B. 1. (d) See Eldridge v. Fletcher, 3 Dowl. 588; B. V. Harden, 2 E. & B. 188; B. V. Baines, 1 E. & B. 855 ; B. v. Dowling, 2 E. & B. 196 ; Ex parte Boyle, 2 D. & E. 13 ; B. v. Bichards, 20 L. J. Q. B. 351. See and distin- guish Ex pa/rte Milner, 15 Jur. 1037. See B. V. Fletcher, 2 E. & B. 279 ; B. V. ChUton, 15 Q. B. 220. (e) See B. v. Bayley, L. E. 8 Q. B. D. 411. (J) Blades v. Laivrence, L. E. 9 Q. B. 374. (g) See B. v. Sheriffs of York, 3 B. & Ad. 770 ; B. v. Bristol, 1 D. & R. 389 ; B. V. Urling, Port. 198 ; Bayly V. Boorne, 1 Str. 392 ; B. v. Day, Say. 202. (h) B. V. Court of Bequests of City of London, 7 East, 292. See also B. v. Hopkins, 1 Q. B. 161, and R. v. Wat- son, 2 N. & P. 595. (i) Cwrser v. Smith, 1 Bam. 59 (mandamus to the bailiffs and steward of the Court of Andover); Hurst's case, 1 Sid. 94 (Court of the City of Canterbury) ; Brooke v. Ewers, 1 Str. 113 (local Court of Sandwich) ; B. v. Banser, 6 T. E. 242 (the Court Baron of the manor of Ecclesall in Yorkshire) ; B. V. Mayor and Jurats of Hastings, 1 D. & E. 148 ; .B. v. Old Hall, 10 A. & R. 248 (Manor Court). (k) See B. v. Steward, &c., of the Manor of Havering-atte-Bower, 5 B. & Aid. 691. (0 8 Q. B. 981. (m) R. V. Milverton, 3 A. & E. 284 ; B. V. Willis, Andr. 279 ; B. v. Gran- tham, 2 W. Bl. 716. (n) B. V. Havering-atte-Bower, 5 B. & A. 691 ; B. V. Mayor of Hastings, 1 D. & R. 148. MANDAMUS TO INFERIOR TRIBUNALS. 299 attendance at such a court of the burgesses of a town in order to form a jury (o), though a mandamus to the jury by name will not be granted {p); to the steward to hold a court leet and swear a jury [q), and charge the jury to make proper presentments {r) ; and to restore a steward improperly removed (s) ; to compel the borough authorities to allow the use of the guildhall, as had been accustomed, for the holding of a court {t) ; and it would lie also to compel the enrolment and swearing in, as resiant and burgess, of a person who had a clear right (m). A mandamus was refused to compel the holding of a court for the purpose of administering the oath of allegiance, where there was no necessity for it {x). A mandamus has been granted, in the case of customary courts, Customarj to compel admission to a copyhold or customary estate, even of a person claiming by descent (y) ; and before payment of the fine claimed («) ; but, where there was a claim of a previous fine due in respect of the ancestor from whom the applicant claimed, only on payment of such fine (a) ; and, later, it was held that the heir must pay the fine due in respect of the descent to MmseK before a surrender would be enforced by mandamus (6) ; also to admit two (o) Eecior of Wigan's Ciise, 2 Str. 0. 172 ; B. v. BonsaU, 3 B. & C. 173 ; 1207. B. V. Oundh, 1 A. & E. 283 ; B. v. (p) E. V. Bankes, 1 W. Bl. 452. Wilson, 10 B. & 0. 80 ; B. v. Hexham, (q) B. V. Willis, Andr. 279, 7 Mod. 5 A. & E. 559 ; B. v. Hendon, 2 T. R. 261. 485 ; B. v. Woodham Walter, 10 B. & (f) B. V. Willis, ubi supra. 11 Geo. S. 439. See the previous case of B. 1, c. 4, s. 3 (repealed as to all boroughs v. Bennett, 2 T. R. 197. See B. v. within the Municipal Corporations Act, Bendy, 1 E. & B. 829. " These writs 1882,bys. 5of that Act), gavearemedy of mandamus do not appear to have by mandamus to compel the holding been issued prior to the years 1772 or of courts lee f, where mayors, bailiffs, or 1773; before that time, even in the other chief officers are to be nominated, case of a private person who wished to elected, or swum there. be admitted to a customary or copy- (s) See cases cited ante, p. 285, hold tenement, he was to proceed by note (m). bill in Equity to compel an admission " (<) B. Y. Bchester, 2 D. & R. 724. (per Lord Denman in B. v. Powell, 1 (u) E. v. West Looe, 3 B. & 0. Q. B. 363). 677. (z) B. V. Wellesley, 2 E. & B. 924. (cc) B. V. Maidstone, 6 D. & R. (a) B. v. Coggan, 6 East, 431. 334. (J) B. V. Bullingham, 8 A. & E. {y) Anon., Lofft, 390 ; B. v. Powell. 858. A different rule was applied in 1 Q. B. 352 ; B. v. Brewers' Co., 3 B. & B. v. Hendon, 2 T. R. 484. 300 MANDAMUS. adverse parties claiming title as devisees to the same copyhold tenement (c) ; and to admit the purchaser under a power of sale given by a testator to his executors (d). Devisees in trust of a copyhold estate were refused a mandamus to compel the admittance of the infant customary heir, as this would be to deprive the lord of the double fine to which he would be entitled if the two devisees had been admitted (e). A mandamus to hold a court and accept a customary surrender was granted (/) ; but not in a case where the Court of Chancery had already acted and had full power to do what was necessary (g) : also to compel the entry on the Court Edlls of a deed of disposition under 3 & 4 Wm. 4, c. 74, s. 53 (h). The mandamus to accept a surrender should be to the lord and steward, not to the steward alone ; in order that the interests of the lord should be protected (i). With respect to a mandamus to compel the lord and steward to allow inspection of the Court EoUs, see " Inspection of Public Documents," ante, pp. 265-268. A mandamus was refused where it was clear that the claimant's title was barred by lapse of time (h) ; also where the surrenderor had forfeited his tenements to the lord (I) ; also to swear in the steward, he being a private officer to do service for the lord (m) ; also where the surrender had not been prepared by the steward or his deputy, in accordance with a valid custom to that effect (n) ; and there is no instance of a mandamus to the lord to license under any circumstances (o). (c) B. V. Eexham, 5 A. & B. 559. Oorbett, 1 E. & B. 836. (d) M. V. Wilson, 3 B. & S. 201. (g) B. v. Pitt, 10 A. & E. 279. (e) B. V. Garland, L. R. 5 Q. B. {h) Crosby v. Fortescue, 5 D. 273. 269. B. V. Wilson (10 B. & 0. 80) See and distinguish B. v. Ingleton, 8 D. was distinguislied on the ground that 693, as to customary freeholds. there was no trust, and as the devisees (j) B. v. Whitford, 7 D. 709 ; B. v. disclaimed, the heir was entitled to Powell, 1 Q. B. 352. admittance. (k) B. v. Agardsley, 5 D. 19. (/) B. V. Boughey, 1 B. & C. 565 ; Q) B. v. Mildmay, 5 B. & Ad. B. V. Whitford, 7 D. 709; B. v. 254. Brewers' Co., 4 D. & R. 492 ; B. v. (m) Anon., 12 Mod. 666. Weedon Bech, 13 Q. B. 808 ; cf. B. v. (n) B. v. Bigge, 2 B. & A. 550. Bishop's Stoke, 8 D. 608 ; Snook v. (o) B. v. Hale, 9 A. & E. 339. Mattock, 5 A. & E. 239. See B. v. M^DAMUS TO INPEKIOR TRIBUNALS. 301 A iMaJtomus will not be granted where the manor belongs to tW^own (jp). Mandamuses have been granted to compel quarter sessions to Quarter hear and determine a case, within their jurisdiction, which on any grounds they have declined to adjudicate upon at all {q) ; to enter continuances and hear an appeal (r), provided a right of appeal exists (s), and in the party applying (t), and the right of having the appeal heard has not been lost (w), and the applicant was prepared to prosecute it in proper time (x) ; notwithstanding non- compliance on his part with some rule of practice (as to notice or otherwise) laid down by the sessions {y) ; unless the rule be such as commends itself to the High Court (2). But the mere fact that the High Court does not consider the rule {p) R. V. Powell, 1 Q. B. 352. {q) B. V. Kent, 14 East, 395, with which, compare (and distinguish) R. v. Owmherlcmd, 1 M. & S. 190; R. v. Tmcker, 5 D. & R. 441 ; 3 B. & C. 544 ; ■ R. V. Suffolh, 1 B. & A. 640 ; R. v. Flintshire, 7 T. R. 200; R. v. Wor- cestershire, 3 D. & R. 299. (r) R. V. Gamhridge, 2 A. & E. 370 ; R. V. Carmarthen, 7 A. & E. 756 ; R. V. Westmoreland, Sayer, 282 ; R. v. Salop, 4 B. & Aid. 626 ; S. v. 8., 2 B. & Ad. 145 ; a. V. Cheshire, 5 B. & Ad. 439 ; R. V. Middlesex, 11 A. & E. 809 ; R. V. Dorsetshire, 15 Bast, 200 ; R. y. Sussex, id. 206 ; R. v. London, id. 632 ; £. V. Suffolk, 1 B. & A. 640 (in which case the mandamus was to hear the appeal on certain only of the speci- fied grounds of appeal) ; R. v. Denbigh- shire, L. R. 15 Q. B. D. 451 ; B. v. Surrey, L. R. 6 Q. B. D. 100 ; R. v. Kent, 7 B. & S. 394 ; R. v. West Riding, id. 14 ; R. V. Middlesex, 9 L. J. M. C. 59 ; R. T. Huntingdonshire, L. R. 1 Q. B. 36 ; R. v. West Riding, 10 B. & S. 840. See and distinguish R. v. Derbyshire, 4 T. R. 488, where by an inclosing Act the justices were bound to receive the appeal but not to respite it. (s) See R. Y. Kent, 9 B. & C. 283 ; R. V. West Riding, 1 Q. B. 624 ; R. v. Surrey, 2 T. B. 504 ; R. v. Recorder of Ipswich, 8 Dowl. 103 ; R. v. Oxford- shire, 1 B. & C. 279 ; R. v. Lincoln- shire, 3 B. & 0. 548 ; B. v. Gloucester- shire, 2 D. & R. 426 ; B. v. Oxfordshire, 5 D. 116; B. V. Shropshire, L. R. 6 Q. B. D. 669; R. v. Wiltshire, 4 Q. B. D. 326 ; R. v. Gochhwrn, 4 E. & B. 265 ; B. v. Shrewsbury, 1 E. & B. 711. (0 B. V. Middlesex, 16 East, 310 ; B. V. Bond, 6 A. & E. 905; R. v. Recorder of Bath, 9 A. & E. 871. (u) Anon., 1 Sess. Oas. 271. (cc) R. V. West Riding, 4 M. & S. 327. {y) R. V. Lancashire, 7 B. & 0. 691 R. Y. Wiltshire, 10 East, 404 ; B. v. Surrey, 1 M. & S. 479 ; B. v. Essex, 1 B. & Aid. 210; B. v. Norfolk, 5 B. & Ad. 990 ; B. V. Staffordshire, 4 A. & B. 842 (with which cf. B. v. Cheshire, 9 L. J. M. C. 88) ; B. v. Wilts, 8 B. & 0. 380 ; B. V. Lincolnshire, 5 D. & R. 347 ; see B. v. Pawlett, L. R. 8 Q. B. 491. (z) B. V. Essex, 2 Chitt. 385 ; B. v. West Riding, 5 B. & Ad. 667 ; R. v. Monmouthshire, 1 B. & Ad. 895. 302 MANDAMUS. of practice of quarter sessions to be the most convenient one will not, of itself, be a sufficient reason for granting a mandamus (a) ; and in one case Q>) it was said (by Wightman, J.) that the Court woxild not interfere with such rules of practice, unless they were so unreasonable as to be Ulegal (c). A rule which conflicts with an' Act of Parliament would, of course, be held imreasonable (d). And hearing one side only, and altogether declining to hear the other side, would amount to the same thing as declining to hear the case at all («). Preliminary objection. — Where, on a preliminary objection, the sessions wrongly decide, on a point of law, against hearing the appeal at all, a mandamus to enter continuances and hear will be granted (/) ; but not where, on the hearing, they reject certain evi- dence, on a preliminary objection taken to its admissibility (g). " We are not aware of any instance in which the Court has inter- fered by mandamus where the sessions have heard the appeal, because they have not received all the evidence which the party thinks ought to have been received " (Ji). When decision on a preliminary point is conclusive. — If, however, on such an objection to the admissibility of a particular piece of evidence, they decline to hear the case further, their decision is conclusive only where the point involves matter of fact merely, not if it involves a point of law (i). (a) B. V. Suffolk, 6 M. & S. 57 ; R. tershvre, 15 Q. B. 88 ; S. v. Liverpool, V. Montgomeryshire, 3 D. & L. 119; 15 Q. B. 1070; S. v. Kent, L. K. 6 S. V. Warwickshire, 6 Q. B. 750. Q. B. 132, disapproving R. v. Cam- (b) R. V. Montgomeryshire, 3 D. & hridgeshire, 1 L. M. & P. 47 ; 19 L. 129. L. J. M. C. 130 ; R. v. West Riding, (c) See R. v. Norfolk, 5 B. & Ad. L. E. 11 Q. B. D. 417 ; R. v. Siafford- 990; R. V. Carnarvon, 4: K & Aid. 86. shire, L. B. 7 Q. B. 288. Of. R. v. (d) R. V. Kent, 6 M. & S. 258. Middlesex, L. R. 2 Q. B. D. 516 ; (e) Per Holroyd, J., R. v. Car- R. v. Frieston, 5 B. & Ad. 599 (per narvon, 4 B. & AH. 88. Patteson, J.) (/) R. V. Gloucester, 1 B. & Ad. 1 (gr) R. y. Frieston, ubi supra ; £x (in which case the preliminary objec- parte QUI, 53 L. T. N. S. 728. See tion was taken after one witness had and distinguish R. v. West Riding 5 been called). Per Coleridge, J., R. v. B. & Ad. 1003. Somersetshire, 16 L. J. M. C. 87 ; R. v. (A) Per cur. R. v. Cambridgeshire, 1 Lindsey, 6 M. & S. 379 ; R. v. Eert- D. & E. 325. ford, 4 B. & Ad. 561 ; cf. R. v. Mon- (i) B. v. Kesteven, 3 Q. B. 810 ; cf. mouth, L. R. 5 Q. B. 251 ; B. v. Leices- B. v. Somersetshire, 16 L. J. M. C. 86. MANDAMUS TO INFERIOR TRIBUNALS. 303 The question whether an examination or statement of grounds of appeal gives sufficient information to the opposite party, is of the former kind {k). And so is the question whether the appellant "immediately" upon giving notice of appeal, had entered into the recognizances required by 35 & 36 Vict. c. 94, s. 52 (Z). A question as to the sufficiency of the notice of appeal is of the latter, kind (m) ; and if quarter sessions refuses to hear an appeal on the ground of the insufficiency of the notice, the Court, if satisfied of its sufficiency, will grant a mandamus (n). So also where they erroneously hold the notice not to have been given in time (o). Where quarter sessions declined to hear an appeal from a refusal of a license, on the erroneous ground that the applicant was not a new tenant of the house, in respect of which a license had previously been refused, a mandamus to hear and determine the appKcation was granted {p). A mandamus will not be granted to compel them to receive any particular evidence which, in hearing a ease, they have rejected as inadmissible {q). Where on an appeal against an order of justices to pay a highway board a sum of money for expenses incurred in repairing certain See per Coleridge, J., R. v. Richards, Court, considering the question sub- 20 L. J. Q. B. 352, and R. v. Lanca- stantialiy one of fact, refused a man- sUre, L. E. 6 Q. B. 97. damus. (k) R. Y. Kesteven, uU supra. The (m) R. v. Newcastle-on-Tyne, 1 B. cases of R. v. Gamarvon, 2 Cj. B. 325 & Ad. 933 ; R. v. Devon, 1 M. & S. (a decision of Williams, Coleridge, and 411 ; R. v. West Riding, 4 B. & Ad. Wightman, J J.), and R. v. West 688; R. v. Surrey, 3 T). &h. 515; R. Riding, 2 Q. B. 331 (a decision of v. Denbighshire, 9 D. 509 ; R. v. West Lord Denman,C.J.,Patteson, Williams, Riding, 3 D. & L. 152 ; R. v. Middle- and Coleridge, JJ.), were considered seoo, id. 745 ; R. v. Cornwall, 5 A. & and deliberately departed from as wrong B. 134 ; R. v. Oxfordshire, 4 Q. B. 177 ; by the Court (Lord Denman, C.J., R. v. Redfordshire, 11 A. & E. 134 ; Patteaon, Williams, and Wightman, R. v. Cheshire, id. 139 ; R. v. Oxford- JJ.), in this case. See also -B. v. Pomfo- shire, 4 Q. B. 177; R. v. Kent, L. R. fract, 2 Q. B. 548 ; R. v. Bridgwater, 8 Q. B. 305 ; R. v. Buckinghamshire, 10 A. & B. 693 ; Ex parte Ackworth, 4 E. & B. 259, note. 3 Q. B. 397. (") lb. (I) R. V. Berkshire, L. R. 4 Q. B. D. (o) Drake's case, L. R. 5 Q. B. 33. 469. In this case quarter sessions {p) R.Y.Middlesex, L.'R,. 6 (i.'B.181. held that a recognizance entered into (j) R. v. Cambridgeshire, 1 D. & R. four days after notice of appeal was not 325. a compliance with the Act; and the 304 MANDAMUS. highways, quarter sessions, wrongly holding that the highway board had been dissolved for all purposes, refused the board a loms standi ; and then, treating the appeal as unopposed, quashed the order, a mandamus was granted to compel the sessions to enter continuances and hear the appeal (r). Where a case is dismissed by sessions on a question of fact, e.g., whether a particular township did or did not maintain its own poor, the Court wiU treat the decision as final and refuse a mandamus (s). Where, on appeal to quarter sessions against a conviction under the Vagrant Act, 5 Geo. 4, c. 83, s. 4, for " unlawfully using certain subtle craft, means, and device " without adding the words of the statute " by palmistry or otherwise," the sessions quashed the con- viction on the ground that the omission of these words made the conviction bad; this was held not to be a decision merely on a preliminary point, but a hearing and adjudication upon the merits ; and a mandamus was refused {t). Lush, J., pointed out that a decision on the merits may be either upon the legal merits or the merits of the matters of fact {u). iTistances of maTidamuses granted. — A mandamus lies to compel quarter sessions to pay over to the highway authority of a par- ticular area one-half the expense of maintaining a road within such area, under section 13 of 41 & 42 Vict. c. 77 {x). A mandamus was granted to restore to his office a clerk of the peace, appointed quaTndiu se bene gesserit, who had been wrongfully removed {y). A mandamus was also granted to compel quarter sessions to erase an entry manifestly false, and made without jurisdiction (2) ; but a mandamus would not, according to Patteson, J., be granted (r) B. V. Essex, L. E. 11 Q. B. D. 704. Cas. 781. (s) R. V. Flintshire, 15 L. J. M. C. (y) R. v. Evans, 12 Mod. 13. 55. See also R. v. Somersetshire, id. (z) R. v. West Riding, 3 G. & D. 86. 170 ; 5 Q. B. 1. Quarter Sessions have (0 R. V. Middlesex, L. E. 2 Q. B. D. no authority of themselves to make the 516. erasure; but they derive the power (u) Id., p. 521. Cf. on this point R. from the Court when called on by man- V. Dayman, 7 E. & B. 672. damns to exercise it {per Patteson, (a;) .B. V. West Riding, L. E. 8 App. .J., 3 G. & D. 175). MANDAMUS TO INFERIOR TRIBUNALS. 305 to erase a wrongful entry when made within their jurisdiction (a) ; nor, according to the same judge, one which is perfectly harmless and cannot be used prejudicially to either party, when explained by proper evidence (6); nor would a mandamus be granted to compel them to correct a clerical error in a recognizance (c). A mandamus has been granted to compel them to issue the necessary process for the enforcement of the judgment of a pre- vious (Quarter sessions, where there has been no unreasonable delay in making the application (d) ; also to grant costs, where it is imperative upon them to do so (e) ; and to issue a distress warrant for levying the costs awarded by them (/) ; to allow fees to which a coroner is entitled {g) ; also to make up a record of the proceed- ings against a person convicted by them, for the purpose of enabling him to plead autrefois convict Qi) ; and, under special circum- stances, to state a case which they have granted {i) ; but not where, from the circumstances of the case, the proceeding could lead to no result, as where the only case which the sessions would agree to sign would have excluded the point of law relied on by the party demanding it {k). A mandamus was granted to compel quarter sessions to make an order for one of the petty constables of constabulary to raise and levy by rate a sum of money, to reimburse him money paid for his district towards the county rate, under 12 Geo. 2, c. 29 (T) ; also to compel a recorder to examine the accounts of an inspector of weights and measures (under 5 & 6 "Wm. 4, c. 63, s. 17), and to make an order for reasonable remuneration to him (m). (a) R. V. Achworth, 3 Q. B. 397. (/) ^- v. Eants, 1 B. & Ad. 654. See also JR. v. Hewes, 3 A. & B. 725, (g) R. v. Warwick, 5 B. & 0. 430. where tlie Court refused a mandamus Qi) R. v. Middlesex, 5 B. & Ad. to alter the minutes of a verdict, on a 1113. " The prisoner has a right to representation that the verdict was have the record of the proceedings erroneously entered at the trial. which passed at sessions correctly made (6) R. V. Cornwall, 5 Q. B. 9, note. up and to make any use of it that he (c) R. V. Stach, 12 L. J. M. 0. can." Per Lord Denman, id. 1116. 5g (i) R. V. Pembrokeshire, 2 B. & Ad. (d) R. V. Warwickshire, 2 A. & B. 391. 768. (^) ^'^■ (e) R. V. Monmouthshire, 1 D. & L. (l) R. v. West Riding, 12 East, 116. 145 ; R. V. West Riding, 2 B. & S. (m) R. v. Recorder of Hull, 8 A. 811 ; cf. Sheffield Gas Co. v. Overseers & E. 638. of Sheffield, 12 Jur. N. S. 162. 306 MANDAMUS. A mandamus was granted to quarter sessions to make com- pensation to a sheriff for the abolition of his fees under 55 Geo. 3, c. 50 (n) ; and to make them compel the treasurer of the county to reimburse a constable certain extraordinary expenses (o). So where they refused to hear an appeal from a conviction of a tenant of a public-house, coupled with a forfeiture of his license, (imder 35 & 36 Vict. c. 94, s. 9), for making an internal commu- nication between his licensed and unlicensed premises, on the erroneous ground that the appeal clauses of 9 Geo, 4, c. 61, were not incorporated in the Act of 1874, a mandamus to enter con- tinuances and hear the appeal was granted ( p). Erroneous determinaiion. — If quarter sessions hear the case and determine it, however erroneously, a mandamus will not be granted {q). This is so even though the decision be arrived at by wrongfully counting fhe vote of one of the justices who made the order appealed against (r) ; or, though the chairman should give a decision which is not that of the majority of the justices, where that decision is recorded without objection from the dissentient justices (s). Especially is this so where their decision is by statute rendered final and conclusive {f). And the exercise of a discretion properly belonging to quarter (n) E. V. Middlesex, 3 B. & Ad. granted a mandamus to justices to 100. compel them to come to any par- (o) Svmfi case, 1 Str. 93. See B. ticnlar decision." Per Abbott, C.J., V. Erie, 2 Burr. 1197. 4 B. & Aid. 300. " It is unnecessary," (p; 2J. V. We&t Siding, L. R. 11 said the same judge in another case, "to Q. B. D. 417. say whether the judgment pronounced (2) B. V. MidMesex, 4 B. & Aid. by the Court of Quarter Sessions was 298 ; R. v. Eewes, 3 A. & E. 725 ; B. erroneous or not ; because we are of V. Leicestershire, 1 M. & S. 442 ; B. v. opinion that even if it were so, we have Richardson, 1 Wils. 21 ; B. v. Car- no jurisdiction to compel them to narvon, 4 B. & Aid. 86 ; B. v. Cam- correct it." See also B. v. Monmouth- hridgshire, 1 D. & K. 32.5 ; B. v. Berk- shire, 4 B. & C. 849. shire, L. B. 4 Q. B. D. 469 ; Anon., 1 (r) B. v. Leicestershire, 1 M. & S. Chitt. 164 ; Sheffield Gas Co. v. Over- 442 ; if. B. v. Monmouthshire, 4 B. seers of 8heffidd, 12 Jur. X. S. 162 ; Be & C. 844, and B. v. Monmouthshire, 8 Pratt, 7 A. & E. 28 ; B. v. Pontefract, B. & C. 137. 2 Q. B. 548 ; Ex parte Ackworth, 3 (s) B. v. Middlesex, L. E. 2 Q. B. D. Q. B. 397; B. v. West Biding, 7 T. E. 516. 467. " There is not an instance that (t) B. v. West Biding, 5 B. & Ad. can be cited, where the Court have 1003. MANDAMUS TO INFERIOR TRIBUNALS. 307 sessions will never be interfered with (m). This includes their determination as to granting or refusing a postponement of the hearing, or as to respiting an appeal, on the ground of the absence of material witnesses, or for any other reason (x). But if quarter sessions decline to exercise such a discretion, under the mistaken notion that they have no power to do so, a mandamus would be granted (y). The same rule has been applied to their determination that certain inquests, charged for by the county coroner, should not have been holden. The Court will not review such a decision by mandamus (z). A mandamus will not be granted to compel quarter sessions to enter an appeal anew for the purpose of quashing an order, right in itself, on a purely technical objection founded on the reason given for making it (a). Where the facts of several appeals were the same, and the counsel on both sides agreed that the decision of the sessions on one case should be binding on the parties in the other cases ; and the sessions decided for the respondent in the first case, a man- damus to enter continuances and hear the other appeals was refused (&). On the other hand, where two orders had been made for the removal of a father and son from one parish to another, and it was agreed between the parishes that only one appeal should be pro- secuted, the determination as to the father to govern the case of the son ; the sessions having quashed the order as to the father, and the defeated parish having refused to take back the son in pursuance of the agreement, a mandamus was granted to the sessions to receive and determine the appeal against the order removing the (u) See^jer Bayley, J., B. v. Norfolk, B. v. Wilts, 13 Bast, 352 ; B. v. Skir- 1 D. & R. 74 ; Be Newport Bridge, coat, 2 B. & E. 185 ; B. v. Sussex, 4 2 E. & E. 377 ; Ex parte Pontefract, B. & S. 966. 3 G. & D. 188 ; B. v. Monmouthshire, (y) B. v. Wilts, 10 East, 404. 1 B. & Ad. 897 ; B. v. West Biding, 2 (z) B. v. Gloucestershire, 7 E. & B. B. & 0. 286. Cf. B. Y. Bussell, 1 Dowl. 805. N. S. 544 ; B. v. Derbyshire, 4 T. R. (a) B. v West Biding, 2 Q. B. 705 ; 488. See Be Armstrong, 14 Ir. C. L. E. 1 G. & D. 630. N. S. 97. (P) ^- ^- Worcestershire, 9 D. & E. (x) Ex parte Becke, 3 B. & Ad. 704 ; 210. X 2 308 MANDAMUS. son at a subsequent sessions, the appeal to be entered nwne pro tunc with proper continuances (e). Grant of a Case. — A mandamus will not be granted wherever the sessions have granted a case, as the party aggrieved has thereby another sufficient remedy for any miscarriage at sessions {d) ; even though the case gi-anted be not brought up (e). But the mere offer, not accepted, to grant a case will not prevent a mandamus being issued to enter continuances and hear an appeal which had been dismissed on a preliminary point (/). The Court will refuse a mandamus to grant a case, that being a matter purely for the discretion of quarter sessions {g) ; but, under special circumstances, a mandamus may issue to compel them to state a case which they have granted Q>.). AVliere quarter sessions decided, subject to a case for the opinion of the Superior Court, the terms of which the justices could not agree upon for several sessions, a mandamus to enter continuances and hear the appeal was granted; the conditional order of sessions being no decision (i). But a mandamus was refused where the appellant had been guilty of laches in not suing out the certiorari (Jc). Rehearing Appeal, &c. — A mandamus will not be granted to compel quarter sessions to rehear an appeal, though admissible evidence was rejected (1) ; nor to review certain evidence sub- mitted to them on a matter of appeal, on the ground that the con- clusion drawn by them was not warranted by the facts proved (m) ; nor to alter the minutes of a verdict according to the facts (w) ; (c) R. V. Wiltshire, 1 East, 683. (h) See per Lord Tenterden in S. v. (rl) R. V. West Riding, 1 A. & E. Effingham, cited 9 Dowl. 121 ; R. v. 606; R. V. Oartw'yrth, 1 D. & L. 837. Pembrokeshire, 2 B. & Ad. 391; Ex See and distinguisli R. v. Suffolk, 1 D. parte Jarvin, 9 Dowl. 120. 163, where the justices did not grant a (i) R. v. Suffolk, 1 Dowl. 163. case. (Jc) R. v. Staffordshire, I Dowl. 484. (e) R. V. Suffolk, 6 A. & E. 109 ; (0 R. v. Carnarvon, 4 B. & Aid. R. V. Northampton, id. Ill, note. 86 ; Ex parte Pratt, 2 N. & P. 102. (/) R. V. West Riding, 11 L. J. (to) R. y. Worcestershire, 1 Chitt. M. C. 84. 649. See R. v. Berkshire, L. E. 4 (g) Per Parke, J. (after consultation Q. B. D. 469. with the other judges), in R. v. Suf- (n) R. v. Hemes, 3 A. & E. 725. folk, 1 Dowl. 103; R. v. Jarvin, 9 Dowl. See also if. v. West Riding, 3 N. & M. 120; c/. Peat's case, 6 Mfjd. 229. 802. MANDAMUS TO INFERIOR TRIBUNALS. 309 nor to alter a judgment as entered by mistake (o) ; nor to alter their judgment as recorded, by making a special entry of the reasons of the judgment {p). Even where it appeared by affidavit that the sessions quashed an order of removal merely on the ground of informality, but refused a special entry of the grounds of their decision for the purpose of preventing a second removal, the Court would not grant a mandamus ta compel them to enter their reasons on the order to, quash {q). The Court has never interfered by mandamus to dismiss an appeal {r). Mandamus to apprehend.— The Court refused a mandamus to a chairman of quarter sessions to compel him to issue process for the apprehension of certain persons against whom a bill of indict- ment had been found at those sessions a year previously (s) : " I am not aware," said WUliams, J., " of any instance of a mandamus being directed to a justice for such a purpose " (t). To quash a rate. — A mandamus to quash a rate was refused, as that would be to dictate what judgment the inferior Court should give (u). Unwarranted order as to costs. — Where an order is made by con- sent of the parties to refer the matter to an arbitrator, the order not providing in any way for the costs of the reference and award, a subsequent court of quarter sessions has no power to make any (o) iJ. V. Leicestershire, 1 M. & S. (j) JR. v. Lancashire, 3 Q. B. 367. 442. " If any error was made in the Patteson, J., regretted that the Court entry of the clerk of the peace, that could not order the entry to be -made, errorshould have been pointed out at the but considered that it had no power sessions, while the Court was sitting to do so, according to E. v. Wheelock and competent to reform its own errors (5 B. & C. 511), where the Court had and to draw out a more correct judg- also refused; Bayley, J., remarking that ment. If this application were enter- the respondents were not concluded by tained, the consequence would be that the judgment of the sessions, but might, this Court would have on all occasions on the trial of another appeal against to look, not to the record alone, but to another order of removal of the same extraneous matter, in order to see how pauper, explain by evidence to the the judgment of the justices at sessions sessions the particular ground on which was obtained." Per Lord EUenborough, the former order of removal was id. 444. quashed. (jp) B. r. Devon, 1 Chitt. 34. "The (r) R. v. Wilts, 2 Chitt. 257. wonder is that a rule misi was granted (s) B. v. Russell, 1 Dowl. N. S. 544. in that case " (jper Lord Denman, (f) Ih. R. V. West Riding, 5 Q. B. 5). (m) R.w. Middlesex, 'd^.&:'&.rAO,rA&. 310 MANDAMUS. order as to these costs; and a mandamus to compel it to order payment of the successful party's costs was refused (x). To put bond in suit. — A mandamus to compel them to put in suit the bond of a chief constable of a riding was refused, partly on the ground that it contained a condition not warranted by statute, and partly because the applicants were not the riding but a number of individuals who alleged that they had been cheated of their money (z). A mandamus to compel the putting in suit of a bond given by the high constable, who, in disobedience to an order of quarter sessions, had levied excessive rates on a parish, was also refused ; as the procedure might occasion the magistrates costs for which they had no means of reimbursing themselves (a). There are instances of mandamuses to quarter sessions imder the old Insolvent Debtors Acts (h) ; but these are now of no value as precedents. Petty sessions The principles applicable to petty sessions and justices are and justices. . ., , i- -, ■ ■, Similar to those applied m the case of quarter sessions. A mandamus would be granted wherever justices improperly refuse or neglect to hear and determine a case within their juris- diction (c). They must give a judgment of some sort (d). Thus, where a person proceeded against before them, for refusing to maintain his wife and child, denied his marriage, which the over- seers offered to prove had been a valid Gretna Green one ; and the justices dismissed the summons, on the ground that the question of the marriage was too important to be decided in this summary manner, the Court held that, having decided to hear the case, the justices were bound to hear the whole of the evidence offered ; and a mandamus to compel them to determine the case was granted (e). {x) R. V. West Biding, 6 B. & S. 531. 190 ; R. v. L(mg, 1 Q. B. 740 ; R. v. (z) Re Lodge, 2 A. & E. 123. Rawlinson, 6 B. <& C. 23; R. v. Not- (a) Ex parte Carlton High Dale, tingham, 2 Barn. 56 ; R. y. Eaton, 4 N. & M. 312. L. R. 8 Q. B. D. 158 ; R. v. Paget, Q>) R. y. Bailiffs of Ipswich, TEast, L. B. 8 Q. B. D. 151; R. v. New 84; Ex pwrte King, id. 91; R. v. Windsor, L. R. 1 Q. B. D. 152, 2 Smrrey, 6 T. R. 76. Q. B. D. 544 (nmn. R. v. Mrmck) ; R. v. (c) Caly V. Eardy, Holt, 407 ; R. v. Eyre, L. E. 4 Q. B. 487. Barnstaple, 1 Bam. 137; R. v. Drake, (d) R. v. Tod, 1 Str. 530. 6 M. & S. 116 ; R. v. Kent, 14 East, (c) R. v. CumherUnd, 4 A. & E. 395; R. V. CumberlarwI., 1 M. & S. 695. MANDAMUS TO INFERIOR TRIBUNALS. 311 But in a later case this decision was considered by Lord Campbell inconsistent with principle ; as, in his opinion, the determination of the justices was on the very essence of the question before them (/). A mandamus was also granted where a justice refused to proceed upon an information under the Pawnbrokers Act of 39 & 40 G-eo. 3, c. 99, on the erroneous ground that it was not a case for a ' summary conviction in a penalty within the statute {g). So where justices dismissed a summons taken out by the collector of the borough rate against a ratepayer in arrear, on the erroneous supposition that one of the sitting magistrates was, being a town councillor, disqualified from adjudicating upon the summons Qi) ; also where they dismissed a summons against one of tlie owners or managers of a colliery, for an offence under 18 & 19 Vict. c. 108, s. 11, of which he was clearly guilty, on the erroneous ground that the other owners should have been charged with him (i); also where they refused to hear and determine an application for a bastardy order, on the erroneous supposition that they had no jurisdiction (h), or that the proceeding was not in time (I), or that a similar application had already been made and refused (m), or that the information should have been laid before two jus- tices {n) ; also to compel them to issue distress warrants for poor- rates (o), or for any other object, where the duty to issue is im- perative {p) ; but not otherwise, and not where the legal liability (/) B. V. Leicester, 15 Q. B. 674, (Jc) Ex parte Wallirigford, 9 Dowl. 675. 987 ; B. v. Martyr, 13 East, 55. See (g) B. V. Beard, 12 East, 673. also B. v. Walher, 3 D. & L. 131 ; B. (h) B. V. Handsley, L. R. 8 Q. B. D. v. Oambridgtshire, 7 A. & E. 480. 383. See the observations (p. 386) on (I) B. v. TyrwUtt, 15 Q. B. 249. the conflicting case of B. v. OMon, (m) B. v. Machen, 14 Q. B. 74. L. R. 6 Q. B. D. 168 ; cf. B. v. Hwnt- (m) B. v. Bussell, 13 Q. B. 237. ingdon, L. R. 4 Q. B. D. 522. The (o) B. v. Ellis, 2 Dorwl. N. S. 361. proper course for justices who think. As to the issue of a distress warrant to but are not sure, that they are, on the levy the coats of the prosecution of a ground of interest, incompetent to act, highway indictment, see B. v. Martin, is to refuse to do so, leaving the ques- 2 Q. B. 1037, n. tion to be determined on an application {p) B. v. Paynter, 7 Q. B. 255 ; B. for a rule or mandamus ; they ought v. Trecothich, 2 A. & B. 405 ; B. v. not to state a case under 21. & 22 Vict. Barher, 6 A. & E. 388 ; B. v. Hants, c. 43 : Bu^. Bawson, 6 13. & S. 803. 1 B. c^ Ad. 654 ; B- y..W<^rtin,lZ Ij. J. (i) B. v. Brown, 7 B. & B. 757. 51. C. 45; B. v. Clarke, id. 91. 312 MANDAMUS. was doubtful (^) ; also to compel them to commit for non-payment, by the putative father, of a sum ordered to be paid by him in respect of a child chargeable to the parish (r) ; and to award costs to a party entitled to them by statute (s) ; but not to compel them to make an order of maintenance on any particular parish, as that would be dictating to them the particular decision to which they should come {t). A mandamus or rule would be granted to compel them, in the case of any indictable offence, to receive an information and take the recognizances of the prosecutor and transmit them to the Court in which the indictment is to be tried ; but not where the charge brought before them is not cognizable by the criminal law (m). To issue distress warrants. — Mandamuses have frequently been granted to compel justices to issue distress warrants for rates under various Acts (x) ; where the legality of the rate was clear {y), and the party having first been summoned had an opportunity of being heard {%), and where the duty was imperative {a) ; also to examine overseers' and churchwardens' accounts, pursuant to 50 Geo. 3, c. 59, s. 1 (since repealed) (6) ; also, if necessary, to issue a distress warrant against overseers to compel them to pay over a balance of money in theii' hands (c) ; and for the payment of expenses incurred by overseers for the maintenance of a pauper under a (j) R. V. Hughes, 3 A. & B. 425; cher, 8 Mod. 10; R. v. Price, L. R. R. V. Morgan, 2 A. & E. 618, n. ; iJ. 5 Q. B. D. 300; E. v. McCann, L. H. V. Greame, 2 A. & E. 615 ; R. v. Mire- 3 Q. B. 141, 677. house, 2 A. & E. 632. (y) R. v. Dyer, 2 A. & E. 606 ; R. (r) R. V. Codd, 9 A. & E. 682. v. Dayrdl, 1 B. & C. 485 ; .R. v. Mire- rs) R. v. Eastings, 6 Q. B. 141 ; R. home, 2 A. & E. 632. See S. v. Jones, V. Recorder of Exeter, 5 Q. B. 342. 2 Barn. 239 ; R. v. Lee, L. R. 4 Q. B. L>. (i) iJ.v. A'eWZesaK, 4B. &A1(1.298. 75; R. v. SoTnersetshire, 1 H. & W. (m) JEx parte Wctson, 10 B. & S. 582. 82. {x) R. V. Trecothick, 2 A. & E 405 ; (z) R. v. Barclay, L. R. 8 Q. B. D. R.v. Morgan, id. 618, n.; R.v. Barter, 306, 486; R. v. Benn, 6 T. R. 198. 6 A. & E. 388 ; 5. v. Ellis, 2 D. N. S. (a) R. v. Hughes, 3 A. & E. 42i^, 432. 361. See R. v. Middlesex, 5 N. & M. Contrast case of St. Luke's, 1 Wils. 126 ; 5. V. S., 2 D. N. S. 385 ; R. 133. V. Buckinghamshire, 1 N. & P. 503 ; (i) ^. v. Cambridge, 8 D. 89. R. V. Paynter, 7 Q. B. 255 ; S. v. ,S'., (c) R. v. Carter, 4 T. R. 246 ; R. v. 13 Q. B. 399 ; R. v. Sussex, 3 N, & M. Essex, ?, B. & Ad 941 ; R. v. Pascoe, 266; R. V. Bofeler, 4 B. & S. 9.=i9; 2 M. & S. 343; R. v. Dartmouth, 5 Churchwardens of Bishopsgaie v. Bee- Q. B. 878. MANDAMUS TO INPEEIOE TRIBUNALS. 313 suspended order of removal (d) ; but to ground an application for a mandamus, there must have been a refusal to pay, and such refusal must have been made known to the justices (e). Justices, in issuing their warrant to enforce a poor-rate, are per- forming a ministerial act ; and, on an application to them for that purpose, an objection cannot be set up which might be tak^n on appeal against the rate (/). But it is different if there was no jurisdiction to make the rate ; such a point may be taken before them, and on their refusal to issue a warrant, the procedure by mandamus and return is a convenient way of raising the question and obtaining the opinion of the Court (g). Where justices have thus to act ministerially they cannot impose any conditions which will impair the efficacy of the warrant, as, e.^., directing their clerk to keep it unexecuted for three months (h). Lord Denman said he did not know of a case in which a man- damus had been granted to compel magistrates to issue a warrant of commitment for the purpose of enforcing a conviction ; the case of a mandamus to issue a distress warrant being different, as there it is necessary that the rate should be collected without delay (i). Where the conviction was for unlawfully killing a salmon, the Court in its discretion refused a mandamus to compel the issue of a warrant of commitment, saying that the case was one in which the parties might well wait till another offence was committed (k). A mandamus lay to compel the performance by justices of their duties under the statutes for the summary recovery of premises by landlords (I) ; to take security on articles of the peace exhibited (m); to put in execution the statute of forcible detainer (») ; and to (d) R. V. North Riding, 6 L. T. (h) lb. N. S. 351. (0 R. V. Richardson, 1 Wils. 21 ; (e) Ex parte Whitmarsh, 8 D. 431. Hx parte Fulder, 8 D. 535. See and (/) PerB\s.^hmn,i.,R.v.M'Gann, distinguisli R. v. Traill, 12 A. & E. 9 B. & S. 43. 761. {g) Ih. (m) R. V. Lewis, 2 Str. 835. On (A) R. V. Handsley, L. R. 7 Q. B. D. affidavit that the applicant was so in- 398 ; R. V. Middlesex, 12 L. J. M. C. firm that his life would be endangered 36. by coming to town to give security, tlie (i) R. V. Williams, 9 Q. B. 976 ; mandamus directed the justices of the s. c. nom. Ex parte Thomas, 16 L. J. county where he resided to take his M. C. 58. See R. v. Robinson, 2 surety : R. ^. Lewis, 1 Barn. 166. Smith, 274 ; R v. Broderip, 7 D.& R. (re) R. v. Montague, 1 Barn. 72 ; R.y. 861 ; R. v. Twyford, 5 A. & E. 430. Long, 1 Barn. 82. 314 MANDAMUS. inquire of a forcible entry (o) ; though in a more recent case {p) a mandamus was refused on the gronad that there was no instance in which such an interference of magistrates had taken place ; also to hear and determine a dispute between a Friendly Society and one of its members {q) ; to pay the amount, apportioned by the Com- missioners of the Treasury, of the annuity awarded to a retired governor of a prison (r) ; to examiae and allow the accounts of overseers under 50 Geo. 3, c. 69, s. 1 (s) ; to appoint a surveyor of highways as required by statute {t), and overseers (w) ; to make a rate to reimburse a surveyor of highways for moneys expended by him as such (x) ; also to set out on the record of a conviction the evidence on which the conviction was founded, as nearly as possible in the words of the witnesses (y) ; to amend their return to a certiorari by adding the information on which the conviction was founded ; and to compel a justice to produce certain deposi- tions taken before him, for the purpose of enabling the party charged to found an indictment for perjury against the depo- nents (2) ; but the Court refused a mandamus to compel a magis- trate to deliver copies of the depositions to a person conmiitted, not finally for trial, but only for re-examination (a). A mandamus to restore their clerk was refused ; as he holds ofiBce at their pleasure (5). Before the statute 6 & 7 Vict. c. 67, s. 3 (giving protection to every person acting in obedience to a peremptory writ of manda- mus), the Court was extremely cautious in granting a mandamus, wherever there was any doubt whether the justices had the jurisdic- (0) Anon., 6 Mod. 1 39, 164. Palmer, 8 East, 416 ; R. v. W(yrcester- (p) Ex parte Davy, 2 Dowl. N. S. shire, 12 A. & E. 28 ; B. v. Salop, 24. Per Wightman, J. 3 B. & Ad. 910 ; R. v. Rufford, 1 Str. (2) See R. V. Shortridge, 1 D. & L. 512 ; R. v. Lancashire, 1 D. & R. 485 ; 855 ; R. V. Oodolphin, 8 A. & B. 338 R. v. Sparrow, 7 Mod. 393. (in both of which cases the mandamus (x) Hassel's case, 1 Str. 211. was refused, as the particular societies (y) Re Rix, 4 D. & H. 352 ; R. v. were held not to come within the Wan/ord, 5 D. & E. 489. See also Acts). R. V. Kiddy, 4 D. & R. 734. (r) R. V. Middlesex, L. R. 11 Q. B. D. (z) An and distinguish Ex parte Ellissen, re- (y) Be Justices of Gateshead, 6 A. ferred to In Folkard's Starhie, 592. & E. 550, note. (c) 44 & 45 Vict. c. 60, s. 4. 318 MANDAMUS. In one case, which it would be difficult to reconcile with strict principle, the Court granted a mandamus to justices to compel them to hear and detennirie an application for a summons against certain persons for unlawfully conspiring to break the peace and do grievous bodily harm ; though there was no misapprehension of the law, and the justices heard all the evidence offered before they declined to issue the summons ; and though the words of the Act of Parliament (11 & 12 Vict. c. 42, s. 9) were that the justices " may if they shall think fit " issue a summons. The Court proceeded on the groimd that the evidence given in support of the applica- tion was so strong as to induce a belief that the justices must have acted upon a consideration of something extraneous and extra- judicial, which ought not to have affected their decision, and that this amounted to a declining of jurisdiction {d). Incensing Justices. — Licensing justices have not heard and deter- mined a case until they have specified on which of the four grounds mentioned in 32 & 33 Vict. c. 27. s. 8, they have refused a license. Should they decline to state it, an application to compel them to hear and determine will be granted (e). As the holder of a license is entitled to notice of intended oppo- sition to its renewal, where the justices adjourned the hearing of several cases, giving notice in Court of the adjournment to a day fixed, an applicant, in one of the adjourned cases, to whom know- ledge of the adjournment was not brought, obtained a mandamus to compel the justices to hold an adjourned meeting (though the proper time had gone by), and, after notice to him, to hear and determine his application (/). A mandamus was granted to compel justices to hold an adjourn- ment of the general annual licensing meeting, and to hear and determine an application for the renewal of a license or certi- ficate (gf). A mandamus was refused to compel licensing justices to grant an alehouse license (h), though the ground of their refusal was the (d) B. V. Adamson, L. E. 1 Q. B. D. 258. 201. Blackburn, J., gave his assent (g) R. v. PirehiU North, L. R. to the decision with considerable re- 13 Q. B. D. 696. luctance. (A) B. v. Farquhar, L. E. 9 Q. B. (e) B. V. Sykes, L. E. 1 Q. B. D. 52. 258 ; Anon., 1 Barn. 402 ; Gile^ case, (/) B. v. Farquhar, L. E. 9 Q. B. 2 Str. 881. MANDAMUS TO INFERIOR TRIBUNALS. 319 mistaken notion that there was no authority, under the circum- stances, to grant a license (i). A mandamus to rehear an applica- tion for a license, at a time beyond that Umited by statute, was also refused (k). Where justices refused a license on the ground that they were not satisfied that the value of the house was suf&cient to qualify it according to law, and the chairman read out a minute to that efiect iu the presence of the applicant, the Court refused a mandamus to hear and determine on the ground that the justices had' not " specified in writing to the applicant the grounds of their decision," as required by 3 & 4 Vict. c. 61, s. 1 : if the applicant had asked for a copy and been refused, the matter might have been different (I). In several cases the Court appears to have considered the func- tions of licensing justices as ministerial only; and mandamuses have been granted where they have not determined according to law, though they have heard and determined (m). To state a case. — The duty of justices, under 20 & 21 Vict. c. 43, to state a case, on the application of either party to the proceeding before them, arises only where such party is dissatisfied with the determination of the justices " as being erroneous in point of law." Where a magistrate, holding that a particular lane was not a " street " within the meaning of the Metropolis Local Management Acts, refused to state a case, a mandamus to compel him to do so was refused ; as the determination of the magistrate was a finding of fact and not a decision of a point of law (w). A magistrate will be compelled to state a case, though the groimd of legal objection to his decision was not taken at the,ttme, but only when application was made to him to state a case (o). (i) E. V. Farringdon Without, 4 D. been refused by them. B. v. Lan- & R. 735. cashire, L. R. 6 Q. B. 97, where the (k) B. V. Surrey, 5 D. & R. 308. ground for the mandamus was the (Z) B.v.Cumherlandjh.'R.SQ.'B.'D. rejection of evidence to shew that, 372. from the number of licensed houses (m) See B. v. Be Butzen, L. R. already in the neighbourhood, it was 1 Q. B. D. 55. if. V. Middlesex, L. R. undesirable to grant an additional 6 Q. B. 781, where the justices had license. erroneously decided that the applicant (m) B. v. Sheil, 50 L. T. N. S. 590. was not a new tenant of a house in (o) JEx parte Marhham, 34 J. P. respect of which a license had already 150. 320 MANDAMUS. But a magistrate will not be compelled to state a case merely because he has improperly rejected evidence, unless it is also shewn that his final decision was wrong (p). The application for a mandamus or rule is rightly made to a Divisional Court, and not to the Divisional Court of Appeal from inferior courts (q). A mandamus will not be granted where there is a right of appeal to quarter sessions (r). Enle instead A new, less dilatory and less expensive method of proceeding, to compel the performance of the duties of their office by justices, was provided by 11 & 12 Yict. c. 44, s. 5. After reciting that "it would conduce to the advancement of justice, and render more effective and certain the performance of the duties of justices, and give them protection in the performance of the same, if some simple means, not attended with much expense, were devised by which the legality of any act to be done by such justices might be considered and adjudged by a Court of competent jurisdiction, and such justice enabled and directed to perform it without risk of any action or other proceeding being brought or had against him," the section enacts "that in all cases where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices, it shall be lawful for the party requiring such act to be done to apply to Her Majesty's Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also the party to be affected by such act, to shew cause why such act should not be done ; and if, after due service of such rule, good cause shall not be shewn against it, the said Court may make the same abso- lute, with or without or upon payment of costs, as to them shall seem meet ; and the said justice or justices, upon being served with such rule absolute, shall obey the same, and shall do the act required; and no action or proceeding whatsoever shall be commenced or prosecuted against such justice or justices for having obeyed such rule, and done such act so thereby required as aforesaid." (p) E. V. Macclesfield, 2 L. T. N. S. 481. 352. (r) B. V. Smith, L. E. 8 Q. B. (?) Be Ellershaw, L. E. 1 Q. B. D. 146. MANDAMUS TO INFERIOR TRIBUNALS. 321 This was interpreted, in R, v. Percy (s), to apply only to cases where the justices would need protection, if they did the act required. Accordingly, where justices refused to go iato the matter of an information against an unlicensed person for having, contrary to 35 & 36 Vict. c. 94, s. 11, a board over his door stating that he was licensed to seU beer, &c., the Court held that the method of pro- ceeding to compel the justices to hear and determine the complaint must still be by mandamus (t). So, also, where a magistrate declined to hear a charge against a governor of a colony under 11 & 12 Vict. c. 42, s. 2 {u). But B. V. Percy, so far as it decided that the Act applies only where the justices require protection, was dissented and departed from in a subsequent case (x) by Lord Coleridge, C.J., Cave and Williams, JJ., who said : " We are clearly of opiaion that such a construction narrows the operation of the statute too much. But also we are not prepared to say that, because the statute may apply to other cases than those in which the justices require protection, there may not be many such cases where the Court may properly grant a mandamus." The Court expressed its willingness to take either course in the case before it, which was an application to compel justices to hear and determine an information for unlaw- fully encroachiag upon a highway. The same view of the statute was taken by Grove and Smith, J J., in a later case (y). (s) L. R. 9 Q. B. 64. See also B. V. Vaughan and Eyre, 9 B. & S. 329, 335. (f) R. Y. Percy, ubi supra. (u) B. V. Vaughan and Eyre, ubi supra. (a;) R. V. PhiUimore, L. R. 14 Q. B. D. 474, note ; 51 L. T. N. S. 205. (y) B. V. Biron, L. R. 14 Q. B. D. 474; 51 L. T. N. S. 429. 322 MANDAMUS. CHAPTEE VI. Mandamus to Public Bodies and Public Officees. PAGE PAGE Mandamus to public Iwdies : — East India. Company . . 345 Municipal corporations . . . 323 Servants of the Crown . . 346 Corporations generally . . 329 Election commissioners . 350 Bailway companies . . . 329 Postmaster-General . . . . 350 Companies generally . . 333 Eailway commissioners . . . 351 Poor law guardians . , . 336 Universities and colleges . , 352 Local boards . . . . 337 Bishop and archbishop . 353 District boards . . . 338 Mandamus to public officers : — Burial boards , . 338 Lord Lieutenant . . . . 355 Commissioners of sew srs and Sheriff 355 drainage commissione rs . . 338 Treasurer of a county or town . 355 Inclosure commissioners . . 340 Parish officers 356 Tithe commissioners . . 340 Surveyors 358 Churchwardens . . . 340 Parish clerks 358 Vestry .... . . 344 Graolers 358 Church trustees . . . 344 Savings bank managers, direc- Koad trustees . . . . 344 tors, and registration officers 359 Eiver trustees . . . 345 Masters of the High Court . . 360 1. To Public Bodies. General rule. MANDAMUSES have also been granted to compel the performance, by various public bodies, of duties which there was no other, or no equally efficacious, mode of enforcing. But the rule applies in their case as in that of aU inferior courts, that if, being the legally constituted tribunal for the determination of the matter in ques- tion, they have actually heard and determined, however erroneously, a mandamus will not be granted ; whereas if they refuse or neglect to hear and determine, they will be compelled to do so by mandamus. Mandamuses have been issued to municipal and other corpora- tions, to railway and other companies, to poor law guardians, to local boards, to district and burial boards, to sewer, drainage, inclosure and tithe commissioners, to churchwardens and vestries, MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 323 to road and river trustees, to railway commissioners, and other public bodies. Municipal corporations have been compelled by mandamus to Municipal assemble and do the business of the corporation {a) ; to elect '^°^^°^^ '°°*' burgesses and aldermen (6) ; to proceed to the election of bailiffs, coroners, chamberlains, and the other annual ofiBicers of the cor- poration (c). If a municipal election is not held on the appointed day or within the appointed time, or on the day next after that day or the expiration of that time, or becomes void, the municipal corporation is not thereby dissolved or disabled from electing ; but the High Court may, on motion, grant a mandamus for the election to be held on a day appointed by the Court (45 & 46 Vict. c. 50, s. 70). A mandamus has been granted to elect a mayor (d) ; to proceed to another election of a person as mayor, after a void election (e) ; a mere colourable election beiug considered a void one (/); to swear in the mayor {g) ; to compel a person duly elected to take upon himself the of&ce of mayor (K) ; to elect, to admit, and swear into the office of alderman (i), and to enforce performance of the duties of the office (k) ; to restore an alderman improperly removed (Z) ; to put the corporate seal to the certificate of the election of re- corder according to the vote of the majority (m) ; and to 'restore a recorder improperly removed {n) ; to admit to the office of coun- (a) B. v. Kingston-upon-SuU, 11 be sworn, see Eawlinson on Municipal Mod. 382 ; s. 0. 8 Mod. 209 ; B. v. Corporations, 8tli ed., p. 126. Liverpool, 1 Barnard. 82. (h) B. v. Leyland, 3 M. & S. 184. (6) B. V. Bridgwater, 2 Chitt. 256 ; But see now 45 & 46 Vict. c. 50, s. 84. B. V. Thetford, 8 East, 270. (i) B. v. Mayor, &c., of London, 9 (c) Scarhorough case, 2 Str. 1180. B. & C. 1 ; B. v. Mayor, &o., of Cam- (d) See oases ante, p. . Jrridge, 14 L. J. Q. B. 82, and cases (e) B. V. Corporation of Pembroke, cited ante, p. 276, note (c). An alder- 8 Dowl. 302. man, too, was formerly compellable by (/) See per Lord Mansfield, B. v. mandamus to serve the office if elected ; Bankes, 3 Burr. 1454 ; B. v. Mayor of but sea now 45 & 46 Vict. c. 50, s. 34. Cambridge, 4 Burr. 2008 ; Case of {k) See B. v. Portsmouth, 3 B. & C. Bossiny alias Tintagel, 2 Str. 1003 ; 156, 157. Case of Aberystwith, 2 Str. 1157 ; B. v. (I) See the cases cited ante, p. 284, Newsham, Say. 211 ; B. v. Corporation note (o). of Bedford, 1 East, 79; B. v. West (m) B.v. Mayor of York,4:T.}{. 699. Looe, 3 Burr. 1386. (») See cases cited ante, p. 285, (g) See cases cited ante, p. 276, note note (e). (b). As to whether a mayor need now Y 2 324 MANDAMUS. cillor (o), and to receive and count the vote of one duly elected (^) ; and to compel an elected councilman to accept the office {q) ; to elect a burgess (r) ; to compel the assessment of compensation for loss of of&ce, under 5 & 6 Wm. 4, c. 76 («), but not where the amount of compensation would be merely nominal (t) ; to pay the fees of the clerk to the justices, properly payable out of the borough fund {u) ; to pay the costs of the prosecutor in a writ of mandamus, which had directed them to proceed to the election of an alderman in place of one who had been ousted on qtio warranto (x) ; to elect (under 45 & 46 Vict. c. 50, s. 70) auditors and assessors in a borough, it having been discovered that the original election was invalid (j/) ; to hold a court for the revision of the burgess lists (z) ; to compel the mayor and assessors who, at the revision Court, wrongly refused to inquire into the qualifications of a large number of persons (thinking the notices of objection invalid) to hold a court for the revision of the lists, even after the time limited had expired (a) ; to enter an adjournment (when necessary) to a day subsequent to the charter-day, and then hold a meeting (6) ; to restore one of the capital burgesses improperly amoved (c) ; to admit as a (o) R. V. Mayor, &c., of Leeds, 7 A. & B. 963. See R. v. Tewkeilywry, L. B. 3 Q. B. 629. (y) R. V. Mayor of Leeds, 11 A. & E. .512 ; cf. R. V, Bangor, L. K. 18 Q. B. D. 349. (j) R. V. Bower, 2 D. & R. 842; but see now 4.5 & 46 Vict. c. 50, s. 36. (r) See cases referred to ante, p. 276. («) B. V. Mayor, &c., of Newbury, 10 A. & E. 386; 1 Q. B. 751 ; R. v. Mayor, &c., of Cambridge, 12 A. & E. 702 ; R. V. Mayor, &c., of Stamford, 6 Q. B. 433 ; E. v Mayor, &c., of Sand- wich, 10 Q. B. 563. See also R. v. Mayor, &c., of Manchetier, 5 Q. B. 402 R. V. Mayor, tic., of Poole, 1 Q. B. 616 R. V. Liverpool, 8 A. & E. 176 R. y. Brighton, 7 E. & B. 249 ; R. v. lArJifidd, 16 Q. B. 78]. Cf. R. Manchester, 9 Q. B. 458 (a claim to compensation under 5 & 6 Vict, c. 111. (0 Ex parte Zee, 2 N. & P. 63. (m) R. t. Mayor, &c., of Qloucenter, 5 Q. B. 862. (a;) R. v. Mayor, &c., of Carrihridge, 14 L. J. N. S. Q. B. 82. A man- damus in such cases should simply enjoin payment, leaving the corpora- tion to apply the necessary means : R. V. Ledgard, 1 Q. B. 616. (y) Re Corporation of Cardigan, Kawl. on Corporations, 8th ed., p. 158. (2) R. V. Mayor of Rochester, 7 E. & B. 910; E. B. & E. 1024; R. v. Dartmouth, 7 E. & B. 917, note. (o) R. V. Mayor, &c., of Monmouth, R. V. Mayor, &c., of Bolton, L. R. 5 Q. B. 251. Cf B. V. Maym- of Eye, 9 A. & E. 670; B. V. Mayor of Eythe, 5 A. & E. 832 ; B. v. May) B. v. Torh, 1 B. & B. 588. . (v) B. V. Wigan, L. E. 14 Q. B. D. <<=) B. v. Mayor, &c., of Wells, 4 gOg Dowl. 562 ; B. V. Mayor, &c., of Bast- (z) B. X. Maidenhead, L. E. 9 Q. B. D. ing^, 1 D- & B- 148 ; B. v. Eavering- 494. It was held no objection that atte-Bower, 5 B. & Aid. 691; B. v. the Lords Commissioners had cancelled llchesfer, 2 D. & E. 724. their first certificate, and subsequently (d) B. v. Mayor, &c., of WeUs, vM sent another to the borough treasurer. supra. • 328 MANDAMUS. The Court refused the application of a freeman for a mandamus to compel the late mayor and one of the councillors of a borough to pay over to the borough treasurer all moneys received on account of the rents of the corporation : the application for a mandamus, if necessary, should have been made by the treasurer ; and, so far as appeared from the facts of the case, the money would have been paid to the treasurer if he had asked for it (e). An application having been made for a mandamus to compel the mayor of a borough to propose a resolution to the burgesses in guild assembled, for the repeal of certain bye-laws, on an allegation that the right of making laws and orders at these guilds was an ancient privilege which the mayors of late years had refused to recognize, the Court doubted whether the matter was not one for the discretion of the mayor, and, in the absence of any precedent, refused a mandamus (J). A mandamus to allow inspection of the books, charters, and muniments of the corporation was refused to a freeman who desired inspection on behaK of a defendant who was being tried for not, as sheriff, executing a criminal (g). But, in a litigation between the freemen of a borough and the new corporation, as to the right of cutting down trees on certain pastures, a mandamus was granted at the instance of the freemen to permit them to inspect the deeds, &c., relating to the pastures in question (h). Before the Ballot Act, the town clerk was compellable by mandamus to grant inspection of the voting papers at an election of town councillors, to any burgess who brought a list of his own to be compared with them (k). For the general principles regulating the granting of mandamuses to compel the allowance of inspection of public documents, vide ante, pp. 265-268. Corporations Corporations sole, as well as corporations aggregate, have been compelled by mandamus to perform duties of an imperious nature incumbent upon them ; but, if there is no imperious duty but only a discretionary power, the Court will not interfere by mandamus (I). (e) R. V. Frost, 8 A. & E. 822. Warrmer v. Giles, 2 Str. 954. (/) Ex parte Qa/rrett, 3 B. & Ad. (Jc) B. v. Arnold. 4 A. & E. 657. 252. \V) R. V. Bishop of Oxford, L. E. (g) R. V. Antrobm, 2 A. & E. 789. 5 App. Cas. 214; R. v. Bishop of Chv- (h) R. V. Beverley, 8 D. 140.; r/. chesler, 2 E. & E. 209. Bole, MANDAMUS TO PUBLIC BODIES AND PUBLIC OPPICEES. 329 See the cases relating to bishops and archbishops referred to :post, pp. 353, 354. The Court will, if necessary, compel the person who has the Corporations custody of the corporate seal to affix it to any act accordiag to ^^^^^"' ^' the vote of the majority (w). Where a discretion is vested in a corporation as to the surrender of its charter and the disposition of its property, the Court will not interfere by mandamus, in case a dispute should arise amongst the members of the corporation as to the way in which they should exercise this power (o). A member of a mere trading corporation would not be granted a mandamus to compel his partners to divide their property {p). Mandamuses have been granted to compel railway companies Railway to construct their Line wherever (which is rarely the case) the '"'™P''"'°'' ■ language of their special Act is imperative, and there has been a distinct refusal or neglect to do- so, or unreasonable delay {q) ; but not if the words of the Act are merely enabling or per- missive, and no obligatory duty can be collected from the general purview of the whole statute {r), though the company may have exercised some of their powers and made part of their , (n) Per Lord Kenyon, C.J., R. v. ways Act, 1850, 13 & 14 Vict. c. 83, Beeston, 3 T. E. 594, citing and ap- s. 19. But it seems that the provisions proving R. v. Windham, Cowp. 377. of the Acts for abandonment of railv?ays See also R. v. Mayor of Yorh, 4 T. E. apply only to railways authorized to be 699. constructed by an Act of Parliament (o) Ex parte Lee, ,E. B. & B. 863. passed prior to the EaUway Companies {p) R. V. Bank of England, 2 B. & Act, 1867. (See arguendo. Re Bir- Ald. 620. mingham, &c.. Railway Co., L. E. 18 (j) R. v. Eastern Counties Railway, ■ Ch. D. 156). 10 A. & E. 531, 9 L. J. N. S. Q. B. (r) Tork, &c.. Railway Co. v. Reg., 303; B. V. Bristol Railway Co., 4 IE. &B1. 858; 16 Q. B. 864; Great Q. B. 170, 172 ; R. v. Brecknock Canal Western Railway Co. v. Reg., 1 E. & Navigation, 3 A. & B. 223 ; R. v. Lan- Bl. 874, dissenting from R. v. Lan- cashire and Yorkshire Railway Co.,. cashire and Yorkshire Railway Co., 1 E. & B. 228 ; R. v. York and North id. 228 ; see pp. 861-3. But though Midland Railway Co., 1 E. & B. 178. a railway company is not bound to See R. V. Ambergate Railway Co., 17 exercise the powers given it by Q. B. 362 ; 1 B. & Bl. 372. The war- statute, it may by agreement bind rant of the Board of Trade may release itself to do so (per Lord Wensleydale, a railway company from the liability Scottish North Eastern Railway Co. imposed even by imperative words in v. Stewart, 3 Macq. 414.) their Act. See Abandonment of Rail- 330 MANDAMUS. line (s) : also to make a branch authorized by an extension Act (t) ; and, in one case, to compel them to reinstate and lay down again a line which they had constructed and afterwards taken up, though there might also exist a remedy by indictment in such a case (u) ; but this case was, in a later one (x), considered to have carried the doctrine as far as the Court would go : also to make an arch over a public road conformably to the provisions of their Act (y) : to carry a public highway and carriage road over the rail- way, or the railway over the road by means of a bridge (2) : to make watering-places for cattle as required by their Act (a) : to make and restore, according to the statute, such part of a turnpike road as was carried over their railway (&) ; but not to make a bridge and carry the road over it at the rates of inclination delineated on the plans deposited, unless there is something in their special Act, or in the general Acts with which it is incorporated, which requires that the plans should be followed (c) : to remove obstructions made by them in a highway (d) : to compel them to proceed after giving a notice to treat (e) : to issue their warrant to a sheriff to summon a jury to assess the amount of compensation for lands taken or injuriously affected (/) : to take up an award and pay the arbitrator's (s) See per Jervis, C.J., 1 E. & Bl. (c) B. v. Caledonian Railway Co., 870. 16 Q. B. 19, 30 ; North British Bail- (*) B. V. Oreat Western BaiVway way Co. v. Tod, 12 CI. & F. 722. 1 B. & Bl. 253, 774. (d) B. v. Newmarket Bailway Co., (u) B. V. Severn and Wye Bailway 15 Q. B. 702. Co., 2 B. & Aid. 646. The writ was (e) B. v. Birmingham, &c., Bailway directed to be to reinstate and lay down Co., 15 Q. B. 634 ; B. v. South Wales again, but not to maintain. Bailway Co., 14 Q. B. 902. See B. v. (a;) See per Lord Denman in B. v. London and South Western, Bailway Gamble, 11 A. & B. 72. Co., 12 Q. B. 775 ; B. v. Eastern Coim- (y) B. V. Eastern Counties Bailway ties Bailway Co., 2 Q. B. 347 ; B. v. Co., 2 Q. B. 569. Northern Union Bailway Co., 8 Dowl. (2) B. Y. Wyeombe Bailway Co., 8 329. B. & S. 259 ; L. E. 2 Q. B. 310. Cf. B. (/) Be South Yorkshire amd Goole V. East and West India Docks, &c.. Railway Co., 18 L. J. Q. B. 333 ; B. Railway Co., 2 B. & B. 466. v. Irish South Eastern Railway Co., (a) R. V. York, &c.. Railway Co., 1 Ir. L. B. N. S. 119 ; and see Fotherby 14 L. J. N. S. Q. B. 277. v. Metropolitan Railway Co., L. E. 2 (J) R. V. Birmingham, Railway Co., 0. P. 188 ; R. v. North Midland RaU- 2 Q. B. 47. Cf. B. V. Manchester, &c., way Co., 2 Ey. Cas. 1; B. v. East Bailway Co., 3 Q. B. 528; B. v. Lancashire Bailway Co., 9 Q,. B. Q80. Bristol Bailway Co., 4 Q. B. 162. MANDAMUS TO PUBLIC BODIES AND, PUBLIC OPPICEES. 331 fees {g), provided the land alleged to have been injuriously affected was so within the meaning of the statute Qi); and to furnish a copy of the award to the claimant {i) : and, at one time, when it was thought that an action would not lie for the purpose, to pay the amount of compensation assessed or awarded (A) ; but it is now settled that there is in such a case a complete remedy by action, and therefore a mandamus will not be granted {I). The application against a railway company should not be made too soon. The applicant ought to wait tUl the company has done all the damage it is likely to do, and then a jury would assess the compensation for the whole ; provided the temporary cessation of the works is not mala fide on the part of the company (m). A mandamus to a company to pay the costs of the compensation inquiry was refused, on the double ground that the sheriff had not taxed them, and that the Act gave a remedy by distress {%). A mandamus, it seems, lies to compel the arbitrator to settle the costs of the arbitration under the Lands Clauses Consolidation Act, 1845, in accordance with the rights of the parties (o). Where the landowner agreed to refer his claim against the company to arbitration, neither the deed of reference nor the award making any mention of the costs of the reference, a mandamus to compel payment of those costs was refused (^p). A mandamus was granted to compel a railway company to give inspection of the register of shareholders to a judgment creditor {q). Where an inquisition has been duly taken, a mandamus will ' (jg) B. V. Great Northern Bailway (J) JR. v. HvM and Selby Bailway Co., L. B. 2 Q. B. D. 151 ; R. v. South Co., 6 Q. B. 70 ; Corrigal v. London Devon Bailway Co., 15 Q. B. 1043. and Blackwall Bailway Co., 5 M. & Gr. As to a mandamus to the arbitrator, 219 ; Williams v. Jones, 13 M. & W. see B. V. Bynd, 16 Ir. C. L. E. N. S. 628 ; East and West India Bock Co. 29, and B. v. Fishbourne, 17 Ir. C. L. v. Gattke, 3 Mac. & G. 173. E. N. S. 148. (m) See Ex parte Parkes, 9 D. 614> (h) B. v. Cambrian Bailway Co., (n) B. v. London and Blackwall 10' B. & S. 315. Bailway Co., 3 D. & L. 399. (i) B. V. Cambrian Bailway Co., (o) B. v. Biram, 17 Q. B. 969. L. E. 6 Q. B. 422. {p) Ex parte Begnal, 16 L. J. Q. B. (k) See B. v. Great Western Bail- 304. .way Co., referred to 6 Q. B. 72; B. v. ( r f drainage lormauce ot the duties of commissioners of sewers and drainage commissioners; e.g., to compensate for injuries done by their works (g) ; to make rates under their Acts {h) ; to apportion the (a) R. V. Wimhledon Local Board, B. & S. 710. L. E. 8 Q. B. D. 459 ; of. CampMl v. (/) R. v. St. John, Weslgate and MaiMid, 5 A. & E. 880. Mswick, 2 B. & S. 703. (6) R. V. Wallasey Local Board, (g) R. v. Commissioners for Pa^ham L. R. 4 Q. B. 351 ; 10 B. & S. 428. Levels, 8 B. & C. 355, and per owr. case (c) R. V. Burslem Local Board, 1 of Cardiff Bridge, 1 Salk. 146 ; of. E. & E. 1077, 1088. R, v. Commissioners of Essex, 1 B. & C. (d) R. V. Hackney District, L. E. 8 477. ^- ^- ^^^- W -B- V. Commissioners of Essex, (e) R. V. Strand District, 4 B. & S. 2 Str. 763 ; R. v. Commissioners of 551. For an example of mandamus to Somerset, 9 East, 111 ; R. v. Ea/re, 13 the Metropolitan Board of Works, see East, 189. R. V. Metropolitan Board of Works, 3 commissionc-s. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 339 sums necessary to be raised amongst the several parishes, town- ships, and places within their district (i) ; to grant inspection of aU entries of rates and other matters relating to any particular parish aggrieved by a rate imposed {k) ; to make a rate to reim- burse the legal representatives of their deceased clerk the costs and expenses incurred by him in opposing a bill in Parliament, which the commissioners, boTid fide and with discretion and prudence, had instructed him to do (I). A mandamus was granted to the commissioners of sewers for the levels of Essex commanding them to reimburse a frontager the expenses incurred by him, in compliance with orders of the commissioners, in repairing the damage done to a sea wall by an extraordinary storm and high tide, and to make and levy such rates as might be necessary for such reimbursement (m). A mandamus to the Metropolitan Commissioners of Sewers to decree compensation for damages under sects, 69, 70 of the Metro- politan Sewers Act, 1848, was refused in a case where the liability to make any compensation was denied (n). Mandamuses have also been granted to commissioners of land Land tax tax : e.g., to proceed to the election of a clerk (o) ; to admit to the ' office of clerk (ja) ; to meet and cause the proportion of land tax charged on their division to be equally assessed within the said division, according to the best of their judgment and discretion, pursuant to statute (q). Where the commissioners, in shewing cause against a rule for a mandamus to make an equal assessment for the year (on a suggestion that they had made their assessment on an old and disproportionate estimate), deposed that they had made the assessment for the year according to the best of their judgment and discretion, the Court discharged the rule (r). («) R. V. Whitaker, 9 B. & C. 648. (n) B. v. MetropoUtcm Commis- (k) B. V. Commissioners of Tower sioners of Sewers, 1 B. & B. 694. Hamlets, 3 Q. B. 670. (o) B. v. St. Martin's, 1 T. R. (0 B. V. Norfolh, 15 Q. B. 549; 146. 28 L. J. Q. B. 121. For an application (jp) B. v. Thatcher, 1 D. & E. 426. against paving and lighting commis- (?) B. v. Commissioners for Tower sioners, see B. v. Commissioners, &c.. Division, Middlesex, 2 E. & B. 694. of Cheltenham, 4 Jur. 1060. {r) B. v. Commissioners of Land (to) B. v. Commissioners for Essex, Tax, 16 Q. B. 381. L. R. 14 Q. B. D. 561. Z 2 commissioners. 340 MANDAMUS, inciosure A mandamus was granted to compel inclosure commissioners to commissioners. . . .. , ■, / \ mquire it there was a modus {s). Tithe A mandamus was granted to compel the tithe commissioners for commissioners. j;^g^^^ ^^^ ^g^jgg jo ^iesiT and determine differences, between certain landowners of a parish and its vicar, as to the claim of exemption of certain lands from tithes (t). Where a tithe commissioner proceeded to inquire into the validity of a modus imder 6 & 7 Wm 4, c. 71, s. 45, but post- poned making his award until the determination of certain suits pending for the recovery of tithes, the Court refnsed a mandamus to compel him to make his award (u). Church- Mandamuses have been granted commanding those to whom the right belonged to elect churchwardens. A mandamus has been issued, for this purpose, to the inhabitants of a parish (a?) ; to the rector and existing churchwardens (y) ; to a perpetual curate and the churchwardens or alleged churchwardens, a perpetual curate being tho minister of the parish within the meaning of canon 89, with which the custom of the parish was in conformity (z) ; to the rector («) ; to justices for an extra parochial place (b). And a mandamus was granted in order to give the parties impugn- ing an election an opportunity of trying its validity, as qiio warranto does not lie for the ofi&ce of churchwarden, and there was no mode of trying the right by action, the of&ce not being one of profit (c); although another person was in de facto possession of the of&ce (d). Mandamuses have also been granted to compel admission to the office (e) ; and swearing in (/). (s) Anon., 2 Chitt. 251. 513 ; R. v. Perry. 3 E. & E. 640. (<) M. V. Tithe Commissioners, 18 (J) Anon., 1 Bam. 155. Q. B. 156. See also S. v. S., 15 Q. B. (c) B. v. Birmingham, vbi supra ; 620. cf. B. V. Lambeth, ubi supra. (u) Be Tithe Commissioners, 1 Dowl. (d) Be Barlow, 30 L. J. Q. B. 271 ; N. S. 810 ; cf. B. v. Tithe Commis- 5 L. T. N. S. 289. sioners, 14 Q. B. 459. (e) B. v. Williams, 8 B. & C. 681. {x) B. V. Wix, 2 B. & Ad. 197. (J) Anon., 2 Chitt. 254 ; B. v. (y) B. V. Birmingham, 7 A. & E. Earns, 3 Burr. 1420, where there were 254. See also B. v. St. JameS, West- cross mandamuses, and Lord Mansfield minsfer, 5 A. & E. 391 ; B. v. iam- held that the officer to whom they were beth, 8 A. & E. 356; B. v. D'Oyly, directed was hound to ohey hoth, the 12 A. & E. 139. office of swearing in being ministerial (z) B. V. Allen, L. R. 8. Q. B. 69. only. See further on this point, B. v. (a) B. V. Oreev, L. R. 1 App. Cas. Bees, 12 Mod. 116 ; Catten v. BarivicTc, MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICEES. 341 A mandamus was granted to compel churchwardens to call a meeting of the parishioners for the purpose of considering the propriety of making a rate {g), though not to compel the church- wardens to make such a rate QC) : to make and raise one or more rates to pay principal and interest of money borrowed, on the credit of the parish and church rates under the Church Building Acts, 58 Geo. 3, c. 45, and 59 Geo. 3, c. 184 (*) ; but not where it was attempted to charge the rates retrospectively {k) : also to call a meeting of the parishioners for the election of a perpetual curate according to a custom (l) ; and for the election of churchwarden (m) ; and for the establishing a select vestry under 59 Geo. 3, c. 12 (n) ; and for the election of a surveyor of highways (o) ; and would be granted in a proper case to compel them to elect a vestry and auditors of accounts under 1 & 2 Wm. 4, c. 20 {p) ; but not to admit a vestry clerk (g), or to command restoration to that office (r) ; to compel churchwardens to assemble a meeting (under 10 Anne, c. 11, s. 24) for the purpose of agreeing upon and ascertaining the rates to be assessed for the repair of the church (s), and for the purpose of making a rate, in pursuance of certain statutes, for the expenses of the parish church (t) ; and to convene one for a similar purpose under a local and personal Act (u) ; to concur with the other parish of&cers in making a rate (a;) ; to pay the arrears of salary to which a clergyman was entitled under a local 1 Str. 145; Ei'ng's case, 1 Keb. 517, Q) Faulkner Y.Mger, 61). SsH. 517. 521 ; -B. V. Stevens, 3 B. & S. 333. (m) B. v. Birmingham, 7 A. & B. See also the cases referred to ante, 254. p. 281 note (d). (n) B. v. St. Barfholomew, 2 B. & (jr) B. V. St. Margaret's, West- Ad. 506; B. v. St. Martin-in-the- minster, 4 M. & S. 250. Fields, 3 B. & Ad. 907. Qi) Id. ; B. V. St. Peter's, Thetford, (o) B. v. Hillingdon, 18 Q. B. 718. 5 T. B. 364 ; B. v. Wilson, 5 D. & E. O) B. v. St. Pancras, 1 A. & E. 80. 602 ; c/. B. V. Thomas, 3 Q. B. 589, (y) B. v. Croydon, 5 T. E. 713. and B. v. Dalby, id. 602. (r) Vide ante, p. 275. (i) B. V. Brancester, 7 A. & B. 458 ; (s) B. v. St. Margaret's, West- B. V. St. Michael's, 5 A. & E. 603 ; cf. minster, 4 M. & S. 250. B. V. Bangor, 10 Q. B. 91. See further (t) B. v. St. Saviour's, Southwarh, on the subject of church rates, B. v. 7 A. & E. 925. Eaworth, 12 East, 555; B.y. Wrottes- (u) B. v. St. Saviour's, 7 A. &'E. ley, 1 B. & Ad. 648 ; B. v. Silli/ant, 925 ; B. v. Hammersmith, 3 B. & S. 4 A. & B. 354. 504, note. {k) B. V. Dursley, 5 A. & E. 10. {x) Anon., 2 Chitt. 254. 342 MANDAMUS. Act (2/) ; to pay (and if necessary make a rate for the purpose) a sum borrowed more than twenty years previously, and charged on the rates (z) ; to compel churchwardens, overseers and rate col- lectors to produce the parish rates and books at the scrutiny of a poll, which had been taken for the election of churchwardens over- seers and surveyor (a) ; and to compel them to swear in overseers of the poor under a local Act (6). A mandamus was granted to compel payment of a sum advanced more than twenty years previously, notwithstanding sect. 59 of 58 Geo. 3, c. 59, where the sum borrowed was made a charge upon the rates (c). But where the Act under which the sum was bor- rowed empowered churchwardens to make rates for repayment by instalments " within the period of twenty years at farthest," it was held by theHouse of Lords (confirming the decision of the Exchequer Chamber, which had reversed that of the Queen's Bench), that after the expiration of the twenty years, there was no power to make a rate for the purpose of repayment, and that a mandamus to compel the churchwardens and overseers to make one could not be sus- tained (d). In parishes created under the Church Bmlding Acts for eccle- siastical purposes only, and not separately maintaining their own poor, it was held unnecessary to give notice of a vestry meeting in the manner required by 58 Geo. 3, e. 69, s. 1 ; and a mandamus to compel the vicar and churchwardens of a parish to do so was refused (e). The Court refused a mandamus to compel the vicar and church- wardens to insert, on the notice paper of the next vestry, a notice of motion by a ratepayer for changing the hour for holding vestry meetings ; as the right of determining the hour of meeting rests with the vicar or churchwardens (/). A mandamus was refused to compel the churchwardens to caU a (y) MxparteScott.S D. 328. E. v. St. Michael's, Southampton, (z) B. V. St. Michael's, Soufhamp- 6 E. & B. 807. Cf. R. v. Hurstbourne ton, 6 'E.& B. 807. Cf. B. v. Willim, Tarrant, E. B. & E. 246. 16 Q. B. 1, as to an unauthorized bor- (d) B. v. All Saints, Wigan, L. K. rowing. 1 App. Cas. 611. (a) B. V. Fall, 1 Q. B. 636. (e) B. v. Barrow, L. E. 4 Q. B. 577. (6) B. V. Manchester, 7 D. 707. (/) R. v. Tottenham, L.E. 4Q. B. D. (e) R. V. Carpenter, ij A. & E. 704 ; 367. MANDAMUS TO PUBLIC BODIES AND PUBLIC OPPICEES. 343 meeting for the election of a sexton, the right of election being disputed, as the right to the office might be tried in an action (g) ; also to allow inspection . of their accounts, under 17 Geo. 2, c. 38, s. 1, where the applicant did not shew some public ground for desiring the inspection (A). A mandamus was refused to compel churchwardens to summon the parishioners for the purpose of taking a poll on a motion which had been carried by show of hands, when it appeared that the motion was for an application of funds in breach of trust (i) : if a man- damus were granted, and the result of the poll should be an affirm- ance of the illegal resolution, it might then be said that the poll was taken under the authority of a mandamus from the Court (k). Where, at a vestry meeting for the election of waywardens for several townships, the candidates were successively and separately nominated, proposed and seconded, and after a show of hands declared by the chairman to be duly elected waywardens for each township ; and then an elector demanded a poll iu respect of two of the townships (neither of them the last in order), a mandamus to compel the vicar, churchwardens and inhabitants to reassemble the meeting and proceed to an election of waywardens for the two townships was refused ; on the ground that there was not one election for all the townships, but a separate election for each, and that the demand for a poll in respect of any particular township should have been made immediately after the declaration of the show of hands as to it (I). A mandamus was also refused to compel churchwardens to give up the custody of the vestry book to the vestry clerk. Lord EUenborough observing that, if it belonged to him as annexed to his office, he might bring an action of detinue or trover (m). A mandamus to compel the old churchwardens to deliver the parish books to the new was refused, on the ground that a contest between parish officers as to the right to keep those books ought to be tried upon a feigned issue (w). {g) B. V. Stohe Barnard, 5 A. & E. (I) S. v. Thomas, L. R. H Q. B. D. 584. 282. (h) B. V. Clear, 7 D. & E. 393. (m) Anon., 2 Chitt. 255. (i) B. V. St. Saviour's, 1 A. & E. {n) B. v. Street, 8 Mod. 99. As to 380. a similar application against overseers, (k) Per Lord Denman, ik see B. v. Simms, i D. 294. 344 MANDAMUS. As to repairing a disused burial-ground, see B. v. Bishop Wear- mouth (o). Vestry. A mandamus was granted to compel a vestry to take up an award, made under a local improvement Act (which incorporated the Lands Clauses Consolidation Act, 1845), assessing compensation for injuriously affecting the access to a house by raising the level of a street (p) ; against the select vestrymen of a parish under a local and personal Act, to compel them to levy church rates (q) ; also to compel a metropolitan vestry to weU and sufficiently light a part of VauxhaU Bridge, under 18 & 19 Vict. c. 120 (r). A mandamus was refused to compel the inspectors of votes at an election of vestrymen to return a person not duly qualified, though he had the majority of votes (s). A vestry, under the Metropolis Local Management Act (18 & 19 Vict. c. 120), has a discretion, in making the necessary sewers, as to the order m which the works are to be executed ; and they may judge of the exigency and pressing necessity for the works in one district as compared with another. La order to compel the vestry by mandamus to execute the works in any particular district, it must therefore be shewn that a reasonable time for doing so has elapsed, or that there is a present duty to drain that particular district at once {t). As to the manner in which the sense of a vestry may be taken, and the right to demand a scrutiny, see B. v. Vicar and Church- wardens of HammersTniih {u). Church A mandamus was granted to compel church trustees, appointed under a local Act, to produce their accounts before the parochial auditors appointed under the Vestry Act, 1 & 2 Wm. 4, c. 60 {x). Road trustees. Mandamuses have been granted to compel trustees of turnpike roads to fence certain roads as required by statute {y) ; but not to (o) L. R. 5 Q. B. D. 67. L. J. Q. B. 50; 5 L. T. N. S. 744; 10 (p) R. V. St. Luke's, Chelsea, L. R. W. R. 293. 7 Q. B. 148. (u) 3 B. & S. 504, n. (q) R. V. St. Margaret's, Leicester, (x) R. v. St. Fancras, 6 A. & E. 8 A. & B. 889. Of. R. v. St. Saviour's, 314. See also 3 A. & E. 535. 7 A. & E. 925. (y) B. v. Trustees of Roads from (r) R. V. Lambeth, 3B. & S. 1. Luton, &c., 1 Q. B. 860. Cf. R. v. («) R.\. St. Pancras, 7 E. & B. 954. ' Commissioners of Llandao District, (/) R. V. St. Luke's, Chelsea, 31 2 T. R. 232. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFPICEES. 345 repair a road (z) ; also to compel them to call a meeting for establish- ing a uniform rate of tolls under 59 Geo. 3 (a) ; and to pull down a toll-house and remove the materials, as having become useless and no longer required for the purposes of the road, within 4 Geo. 4, c. 95, s. 57 (6). Where the applicant for a mandamus to compel the trustees of a turnpike road to make a new piece of road, or diversion, had allowed twelve years to elapse (and seven after the expiration of the trustees' compulsory powers) before making his application, a mandamus was refused (c). A mandamus would be granted to compel road trustees to give inspection of their books of accounts to persons entitled to see them {d). As the claim of a mortgagee of turnpike tolls, imder 3 Geo. 3, c. 126, s. 81, is equitable only, a mandamus will not be granted against the road trustees to pay the interest on the mortgage (e). A mandamus was granted to compel the trustees of the Eiver Eirer trustees. Weaver Navigation to assess compensation (imder 33 Geo. 2, c. 49, s. 13, and 10 Geo. 4, c. 70) to a landowner for injury to his salt works caused by a certain lock, weir, and sluices, under the control of the trustees, not being raised to a sufficient height (/). A mandamus was granted to compel the Ouze Bank Commis- sioners, acting under a local and personal Act, to proceed to put the banks in a permanent state of stability and security, in accordance with the requirements of the Act (g). A mandamus lay to the old East India Company ; e.g., to send East India out to the Governor-General in Council a despatch as altered by ""P^y- the Board of Control (h), a legal obligation imposed upon the directors by 33 Geo. 3, c. 52, s. 12 (i). But a mandamus would (z) B. V. Trustees of Oxford, &c., (e) E. v. Bally Turnpike Boad, 22 Boads, 12 A. & E. 427. Cf. Anon., L. J. Q. B. 164. Comb. 257. (/) B. v. I)elamere,L. E. 2 E. & I. (a) B. V. Bury and Slratton Boads, App. 419. 6 D. & R. 368. (g) B. v. Ouze Bank Commissioners, (h) B. V. Greenlaw Boad Trustees, 3 A. & E. 544. L. R. 4 Q. B. D, 447. (h) B. v. East India Co., 4 B. & Ad. (c) B. V. Bochdale and Halifax, 12 530. See also S. v. S., 4 M. & S. Q. B. 448. 279. {d) B. V. Northbeach Boads, 5 B. & (i) See per Lord Campbell, Ex parte Ad. 978. ' Napier, 18 Q. B. 701. 346 MANDAMUS. not lie to compel them to discharge arrears of pay to one of their officers ; as there was no legal right to such pay (k). Servants of ^g g, mandamus wiU. not lie to the Crown, it would seem to the Crown. e -i ri follow as a necessary consequence that the servants ot the Orown, as such, are also exempt from the writ. This principle has not, however, been consistently adhered to, though it has been reaffirmed in the most recent cases on the subject. Lords of the Treasury. — In B. v. The Lords Commissioners of the Treasury (J) a mandamus was granted to compel the Lords of the Treasury to pay a retiring allowance to a public officer imder 3 Geo. 4, c. 113, where they had submitted a vote for the purpose to Parliament, which passed it ; but the pension was not specifically mentioned in the Appropriation Act, which, however, directed a gross sum to be applied in discharge of retiring allowances. The application for a mandamus was considered as in no way against the Crown or against officers with whom, for this purpose, the Crown had anything to do ; but against public officers, having money iu their hands to be paid to an individual {per Lord Denman, C. J., and Patteson, J.), of which money the Crown was not in possession ; it having been appropriated by an Act of Parliament, and being at the time ia the power of a public board {per Coleridge, J.). In a case of Be Hand (m), which followed soon after. Lord Denman observed that all the Court said in the former case was that the Lords of the Treasury must make a return and shew why the money was not paid over, and that no decision had been given on the point of law. And in a subsequent case {%) Coleridge, J.— after declaring the rule established, that against the servants of the Crown as such and merely to enforce the satisfaction of claims upon the Crown a mandamus will not Ke — endeavours to reconcile B. v. The Lords Commissioners of the Treasury case with the above-stated principle in the same way. But in a later case (o) Lord Denman said: "I can scarcely have meant {In re Hand] that no decision was given on the point of law, as to the Lords of the Treasury being liable there to a (k) Ex parte Napier, 18 Q. B. 692. (n) Be Be Bode, 6 D. 792. (0 4 A. & E. 286. (o) B. v. Commissioners of Woods, (m) 4 A. & E. 996. tfec, 15 Q. B. 770. MANDAMUS TO PUBLIC BODIES AND PUBLIC OPPICEES. 347 mandamus ; for the Attorney-General rested his opposition to the rule on that ground; and I thought we decided against him, and were right." And in another case (p) still later, relating to Queen Adelaide's annuity, under 1 & 2 Wm. 4, c. 11, it was the opinion of the Court that that statute cast a specific duty on the Lords of the Treasury to grant a warrant for the amount due, and that a mandamus might be granted to them for the purpose (q). But in Hx parte Walmsley (r), notwithstanding the words of 19 & 20 Vict. 0. 108, s. 85, that the expenses of supplying county courts with books, stationery, &c., "shall be paid by the Com- missioners of Her Majesty's Treasury out of any moneys to be from time to time provided by Parliament for such purpose ;" and not- withstanding that, by the Appropriation Act, a sum for the purpose was voted, the Court held that a mandamus would not lie to the Commissioners to pay the amount of a printer and stationer's bill. And in the case of an application for a mandamus, made in 1872 against the Lords Commissioners of the Treasury, to issue a Treasury minute authorizing the paymaster of civil contingencies to pay to a county treasurer out of the money granted by the Ap- propriation Act " for prosecutions at assizes and quarter sessions " sums which had been disallowed for the costs of certain prosecu- tions, the Court, consisting of Cockburn, C. J., Blackburn, MeUor, and Lush, JJ., though unanimously of opinion that the sums had been improperly disallowed, held that a mandamus would not lie to the Lords of the Treasury for the purpose of compelling payment. Cockburn, C. J., said that the case above cited of B. v. The Lords Commissioners of the Treasury was one of very doubtful authority, and it was decided (wrongly in his opinion) on the authority of a statute which had since been repealed (s). " Over the sovereign," said the Chief Justice, " we can have no power. In like manner, where the parties are acting as servants of the Crown, and are amenable to the Crown whose servants they (p) B.v. Lordsof Treasury, WQ.B. doubtfiil, when one comes to look at 357, the words, whether they were not mis- (3) On this Blackburn, J., remarks : understood." (L. E. 7 Q. B. 399.) " It was not much argued, nor is it (r) 1 B. & S. 81. necessary to inquire whether that was (s) R. v. Lords Commissioners of mistaken or not ; but it does seem the Treasury, L. 11. 7 Q. B. 387- 348 MANDAMUS. are, they are not amenable to us in the exercise of our prerogative jurisdiction." " The general principle," said Blackburn, J., " not merely appli- cable to mandamus, but running through all the law, is, that where an obligation is cast upon the principal and not upon the servants, we cannot enforce it against the servant so long as he is merely acting as servant The same principle applies to man- damus, if the duty is by statute, though perhaps ' duty' is hardly the word to employ with regard to Her Majesty. Where the intention of the Legislature shews that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus, merely because the sovereign happens to be the principaL" And the matter was thus put by Lush, J., with his usual terse precision : — " I think that the applicants have failed to make out that which is essential to entitle them to a writ of mandamus, namely, that there is a legal duty imposed upon the Lords of the Treasury — a duty as between them and the applicants — to pay over this sum of money. The only statute which can be brought to aid at aU is the Appropriation Act ; and that, as it seems to me, clearly shews that the money is voted to the Crown upon trust that the Crown wiU. dispense it for certain specified purposes. When the money gets to the hands of the Lords Commissioners of the Treasury, who are responsible for dispensing it, it is in their hands as servants or agents of the Crown ; and they are account- able, theoretically to the Crown, but practically to the House of Commons ; and in no sense are they accountable to this or any other court of justice." And in the latest case (in the Court of Appeal) bearing on the point (t), Brett, L.J., said : " I must say frankly that, sitting here, I consider that the case of B. v. The Lords Commissim&rs of the Treasury (u) cannot be maintained on any ground;" an opinion concurred in by Bowen, L.J. The Lords of the Treasury as an appeUate tribunal to determiae the amount of compensation to which persons were entitled for the aboUtion of their offices by the Municipal Reform Act of 5 & 6 (0 He Nathan, L. K. 12 Q. B. D. 476, 480. (u) 4 A. & E. 286. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 349 Wm. 4, c. 76, would have been liable to a mandamus if they refused to hear an appeal (x). Lords of the Admiralty. — A mandamus to the Lords of the Admiralty, as servants of the Crown, would now doubtless be refused on grounds similar to those above stated, though there is no express authority to this effect. The Court refused a mandamus to compel them to pay to the administratrix of a deceased naval officer sums alleged to have been wrongfully deducted by them from his half -pay ; but only on the ground that there was no legal right to the half-pay — not on the broad ground that no mandamus would lie (y). A mandamus to compel them to settle the prices at which the patentee was to supply them with a patented article was also refused ; but only on the grounds that the application was not warranted by the terms of the patent, and that a mandamus would not lie to a public board to carry a contract tato efifect (z). Commissioners of Woods arid Forests. — The point was again distinctly raised in the case of an application against the Com- missioners of Woods and Forests, for a mandamus to compel them to summon a jury under 9 & 10 Vict. c. 38, s. 15, to assess com- pensation for the land of a person which they had given him notice of their intention to take under that Act, for the purpose of forming Battersea Park ; but the Court evaded the point, and decided the case on another ground, viz., that in the case of com- missioners for the pubUc, having a limited power of taking land, provided the required quantity can be taken for a given sum, a notice to treat is not Kke one given by a private company; it only opens a treaty, and does not complete a contract (a). A mandamus to compel them to pay a poor rate, in respect of certain lands held by them, was refused on the ground that the lands were in their possession either as private individuals or for the sovereign : in the former case, the remedy was by distress warrant ; in the latter case the. lands were not rateable (6). Commissioners of Customs. — So also with respect to Commissioners (x) See -B. v. Lords of Treasury, (a) B. v. Commissioners of Woods 10 A. &E. 374; 2 P. & D. 502. and Forests, 15 Q. B. 761; 19 L. J. (y) Ex pa/rte BicJcetts, 4 A. & B. Q. B. 497 ; 17 L. J. Q. B. 341. 999. (6) Ex parte Reeve, 5 D. 668. (z) Ex parte Bering, 4 A. & E. 949. 350 MANDAMUS. Postmaster- General. Election com- missioners. of Customs. A mandamus was refused to compel them to deliver up goods detained for payment of the full duty, which the applicant contended had been tendered (c). Lord Denman said that if the officer was not justified in what he did, mandamus was not the proper remedy ; and Littledale, J., added that the goods being in the hands of ofiBcers of the Crown, a mandamus to them would be like a mandamus to the Crown, which could not be granted. Commissioners of Inland Bevenue. — On the same ground a man- damus was refused to compel the Commissioners of Inland Eevenue to repay to the applicant the amoimt of probate duty alleged to have been overpaid by him ; the remedy, if any, being by petition of right {d). Commissioners of Excise. — The point was raised in one case as to Commissioners of Excise, but it became unnecessary to decide it (e). A mandamus was granted to Commissioners of Appeal in matters of excise to hear an appeal from a conviction by Commissioners of Excise (/). Local Government Board. — ^A mandamus was granted to the Local Government Board (who made an objection to the method of procedure by mandamus) to entertain and determine an application for a provisional order, declaring a distumpited road to be an ordinary highway, under sect. 16 of 41 & 42 Vict. c. 77 {g) ; also to inquire into, assess and make an award of compensation to a person for the loss of his office, by reason of the operation of the Metropolitan Poor Act, 1867 (30 Vict, c. 6) Qi). A mandamus was granted to the Postmaster-General to compel him to assess compensation to a clerk belonging to one of the telegraph companies, whose undertakings were purchased by the Postmaster-General, under 31 & 32 Vict. c. 110, s. 8 (i). A mandamus was in one case granted to compel commissioners appointed to inquire into the existence of corrupt practices in a (c) 5.V. Commissioners of Customs, (J) B. v. Commissioners of Appeal, 5 A. & E. 380. &c., 3 M. & S. 133. id) Re Nathcm, L. E. 12 Q. B. D. 461 ; cf. R. V. Commissioners of Stamps and Taxes, 9 Q. B. 637. (e) B. V. Excise Com/missioners, 6 Q.B.981,note(J). SeeS. v.S.,2T.E. 381, and Re Heward, 2 D. & L. 753 ; 14 L. J. Q. B. 113. (g) R. V. Local Government Board, L. R. 15 Q. B. D. 70. (h) R. V. Local Government Board, L. R. 9 Q. B. 148. (i) R. V. Postmaster- General, L. R. 1 Q. B. D. 658, 3 Q. B. D. 429. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 351 parliamentary borough, to give a certificate of iademnity to a witness who, under 26 & 27 Vict. c. 29, s. 7, had been required to answer questions, the answers to which might criminate or tend to criminate him, and had answered all such questions (k). In a later case {I), a similar application was refused ; but only on the ground that, in the opinion of the Court, the witness had equivo- cated and had not answered as required by statute. The question came finally before the Court of Appeal in R. v. JIoll (m), where a mandamus was refused, on the broad ground that the decision of the commissioners in declining to grant a certificate is conclusive. Bramwell, L.J., there points out the nature of the certificate to be given by the commissioners : " The certificate is to be a certificate stating that such a witness was required to answer questions, the answers to which criminated or tended to criminate him, and had answered all such questions. That means ' and had triily,' that is to say ' honestly,' answered all such questions. But for them to certify that the man has truly answered all such questions is to certify that, in their opinion and judgment, he has done so. It is not certifying to a mere matter of fact, which requires no opinion or judgment upon it, as that the man was sworn, or that he gave his evidence in a black coat, or anything of that sort ; but it is the expression of a judgment or opinion that he had bona, fide answered all those questions, the answers to which criminated or tended to criminate him. It cannot be otherwise. If the certificate of the commissioners is to bean expression of their judgment and opinion, how can you substitute the judgment and opinion of any other tribunal ? " Wherever there is a right to have a case stated by the Eailway Railway Commissioners a mandamus would lie to compel them to state ™"""issioners one (n). (k) R. V. Price, L. E. 6 Q. B. 411. quiry under the mandamus whether (I) S. V. Bvjrrows, L. R. 7 Q. B. D. the witness had or had not honestly 577, note. The Court said they did not answered the questions, consider this case as conflicting with (to) L. R. 7 Q. B. D. 575. R. V. Price, as in that case the exami- (n) See Denahy, &c., Co. v. Man- nation before the commissioners had Chester, &c.. Railway Co., 3 N. & M. not been conducted in a satisfactory Ry. Cas. 426, 441 ; Central Wales, &c., manner,andtheCourt therefore thought Railway Co.w. Great Western Railway it proper that there should be an in- Co., 2 N. & M. Ry. Cas. 200, 201. 352 MANDAMUS. Whether a railway company does or does not give an undue preference is a question of fact and not of law, for the determina- tion of the commissioners (o). Universities There are instances in early times of mandamuses to restore a and colleges. pgjgQjj Vanished from a university {p), a scholar suspended (§■), and a person deprived of his degrees (r) ; also to remove a scholar for being a Lollard (s) ; and in one case {t) it was said that a man- damus would be granted to compel admission to a degree for which the applicant had duly qualified himself But it may now be considered established that the Court will not interfere in any matter which is properly the subject of cognisance by the visitor or visitors, and which has in due form been adjudicated upon by him or them. See the remarks ante, pp. 237, 258, 280, and the cases there referred to. Nor win the Court interfere with the mode of procedure adopted by the visitor or the form in which evidence is given (m). But if a visitor refuses to hear and adjudicate upon an appeal properly brought, he may be compelled to do so by mandamus (a;). And where the visitor was also the head of the college, the visitatorial power was held to be suspended, and a mandamus was granted to admit a chaplain {y). A mandamus was held to lie to the keepers of the common seal of a university, commanding them to put it to the instrument of appointment of their high steward, pursuant to a grace passed in senate («). In the case of a college where there was no special visitor appointed by the founder, the Court refused to interfere by mandamus to compel the college to proceed to an election of a fellow ; the right of visitation in such a case devolving upon the Crown, to be exercised by the great seal (a). But the Court has power to review by mandamus the decision of (o) I^- (a;) -ffi. V. Lincoln, 2 T. E. 338, note. (p) Vide write, p. 224, note (/). It. v. Ely, 5 T. R. 474 ; Usher's case, (q) See Sir T. Kay. 110. 5 Mod. 453 ; B. v. Visitors of Trinity (r) See R. v. Cambridge, 8 Mod. 148. College, Dublin, 9 Ir. C. L. E. 41. («) Sir T. Eay. 110. (y) R. v. ChesUr, 2 Str. 797. («) 8 Mod. 151. See also Sir T. Q,) 5. v. aar"7»-.w„. q t».,„ '^^y- 110- (a) R. V. S («) R. V. Ely, 5 T. E. 475. t. R. 233, 245 MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 353 the Hebdomadal Council in revising the register of " residents," under 17 & 18 Vict. c. 81, ss. 14-16 (i). In one case a mandamus is said to have gone to command a Bishop and bishop to confirm children (c). " "" °^' And in a case relating to a curate of a chapel donative, who had been wrongfully dispossessed. Lord Mansfield said that if the bishop had refused without cause to license him, he might have had a mandamus to compel the ordinary to license him (d). But the decision of the bishop as to the personal fitness of the candidate for any office under his control is never interfered with (e). It seems that it is imperative on the archbishop, under 25 Hen. 8, c. 20, to confirm the election of a person who, in pursuance of letters missive and conffS d'elire, has been elected bishop by the dean and chapter; and a mandamus to compel the hearing of objections to the confirmation of the appointment was refused (/). . A mandamus was granted to compel a bishop to allow inspection of his register of presentations and institutions to a living in his ' diocese, by a person claiming the right of patronage against the bishop (g). A bishop to whom complaint is made against a clergyman for an offence under the Church Discipline Act, 3 & 4 Vict. c. 86, s. 3, has a discretion whether he will issue a commission under that Act; and the Court will not interfere by mandamus with the exercise of that discretion, whether the complaint be made by a parishioner of the clergyman or by. a stranger to the parish and diocese (h). (6) a. V. Vice-Uhancdlor of Oxford, was argued before Lord Campbell, C.J., L. E. 7 Q. B. 471. Wightman, Erie, and Hill, JJ.; but (c) Case of Dean of Si. Swrian's, before judgment was delivered Lord Fitz. N. B. 200 ; 2 Keb. 66. Campbell had become Lord Chancellor, (d) B. V. Blooer, 2 Burr. 1045. and Erie, J., Chief Justice of the Com- (e) R. V. Archbishop of Canterbury, mon Pleas. The judgment of Wiglit- 15 East, 117, 124 ; JJ. v. Bishop of man, J., proceeded on the ground that London, 13 'Einst, 418. See the other the bishop had a discretion which could cases cited, ante, pp. 260, 261. not be controlled by mandamus ; that (/) JB. V. Archbishop of Canterbury, of Hill, J., on the ground of want of 11 Q. B. 483. personal interest in the applicant. (g) B.\. Bishopof Ely, S^.&G.lli. Though the assent of Lord Campbell (h) B. V. Bisliop of Oxford, L. R. 5 and Erie, C.J., is stated to have been Ap. Cas. 214 ; B. v. Bishop of Chi- given to the decision of the Court, it is Chester 2 E. & E. 209. The latter case not stated on which ground they con- 2 A 354 MANDAMUS. When the bishop had issued a commission under this Act, and the complainant desired to proceed against the accused, it was held that the bishop was bound, under ss. 9 and 11, to rec[nire the appearance of the accused, and to hear and pronounce sentence ; and a mandamus to compel him to do so was granted (i). A mandamus was also granted to compel an archbishop to hear and determine, under 1 & 2 Vict. c. 106, s. 98, the appeal of a curate whose license had been revoked by his bishop (k). Con- firming or annulling the revocation merely upon the statements made by the curate in his petition of appeal, and the written documents referred to in such petition, but without giving the appellant an opportunity of being heard either in person or by counsel, was held not to be a hearing and determining of the appeal (0- 2. To Public Obticees. Mandamuses have also been granted to compel the performance of their duties by public officers, even where they are liable to a penalty for neglect (m) ; e.g., to compel public officers to deliver to their duly appointed successors the books, records, &c., belonging to the office (n). And there is no doubt that the Court would compel a public officer to deposit a public document in the place where any statute directs it to be deposited (o). Municipal For examples of mandamus to municipal officers, see " Municipal Corporations," ante, pp. 323 et seq. curred ; and it appears that Erie, and the appellant made no request for C. J., subsequently disclaimed having an oral hearing, acted on the groimd relied on hy Wight- (m) H. v. Everet, Cas. t. Hard. 261. man, J. (see the judgment in B. v. (n) E. v. Bulkr, 8 East, 389 Bishop of Oxford, L. R. 4 Q. B. D. 25.3, (mayor) ; cf. B. v. Greene, 6 A. & E. 254), whereas Lord Campbell appears to 548; B. v. Clapham, 1 Wils. 305 have agreed with Wightman, J. (See (overseers); B. v. Wildman, 2 Str. judgment in same case, on appeal, L. R. 879 (clerk to Blacksmiths' Company) ; 4 Q. B. D. 548, and in the House of Crawford v. Powell, 2 Burr. 1013 (town Lords, L. R. 5 App. Cas. 239.) clerk), and see Tovm Clerk ofKotting- (0 B. v. Archbishop of Canterhwry, ham's case, 1 Sid. 31 ; Anon., 1 Bam. 6 E. & B. 546. 402 (as to books belonging to the Black- (k) B. V. Archbishop of Canterbury, smiths' Company, London), and if. v. 1 E. & E. 545. Hopkins, 1 Q. B. 161 (as to the hooks (0 lb. Contrast B. v. Bishop of of a court of requests). Ely, 5 T. R. 475, where all the parties (o) Per Coleridge, J., B. v. Payn, 6 agreed to conduct the appeal in writing, A. & E. 402. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 355 A mandamus was granted to compel a lord lieutenant to declare Lord lien- vacant commissions in the militia {p). Also to compel a sheriff to execute a compensation inquiry sheriff. under the Lands Clauses Consolidation Act, 1845 (g) : and to compel old sheriffs to deliver over the rolls to the new ones (r). A mandamus was granted to compel the treasurer of the County Treasurer of a Palatine of Lancaster to pay the amount required by order of special town, sessions, under 1 & 2 Wm. 4, c. 41, s. 13, for the services of certain special constables called out and appointed (s) ; also to compel a county treasurer to pay to the clerk of the sessions money to which he was entitled under an Act of Parliament (t). The practice of the Courts has not been uniform with regard to compelling a county or borough treasurer to pay the costs of a prose- cution, pursuant to an order of sessions or of a judge of assize. In B. V. Surrey (u), and B. v. Jeyes (x), a mandamus for the purpose was refused, on the ground that the proper remedy was by indict- ment. In B. V. Cla7-k [y) the mandamus appears to have been refused solely on the ground that the judge had, under sect. 95 of 5 & 6 Wm. 4, c. 50, only directed in general terms that the costs should be paid, and that a mandamus could not go for a sum not ascertained. In the later case of B. v. The Treasurer of Oswestry (2), where the order-of the judge of assize (under sect. 24 of 7 Geo. 4, c. 64), for the payment by a borough treasurer of the costs of a prosecutor and his witnesses, does not seem to have been for any ■ ascertained sum, a mandamus to compel the treasurer to pay was granted. The treasurer of a county or town has in several cases been regarded as an inferior of&cer, amenable to others, and his dis- obedience as an offence for which the appropriate remedy is by indictment (a) ; but those were cases in which an order had been (^p) 1 Gude's 0. P. 206. (x) 3 A. & B. 416. (2) Walker, v. London & Blackmail {y) 5 Q. B. 887. Bailviay Co., 3 Q. B. 744 ; cf. Am- (z) 12 Q. B. 239. hursfs case, 2 Keb. 871. (a) R. v. Surrey, 1 Chitt. 650, citing (r) Case of Sheriffs of Nottingham B. v. Johnson, 4 M. & S. 515. See also cited, Burst's case, 1 Keb. 387. B. v. Jeyes, 3 A. & E. 416 ; B. v. (s) B. V. Eulton, 13 Q. B. 592. Bristow, 6 T. R. 168 ; B. v. Shaw, (0 B. V. Baker, 7 A. & E. 502. 5 T. K. 549. (tt) 1 Chitt. 650. 2 A 2 356 MANDAMUS. given him by the proper authority, which order he had disobeyed. Where no order has been issued to him, or where the magistrates, equally with himself, have made a mistake, a mandamus may be granted, e.g. to compel the treasurer to deposit with the clerk of the peace the books of entries of sums received and paid by him (S). "The result of the cases cited," said Coleridge, J. (c), "appears to be merely this : that where we find a public officer who has received an order from his masters or any competent authority, and who upon disobeying that order will be liable to indictment, we do not proceed by mandamus; not because the party is too low, but because he has received an order from competent autho- rity. Here the magistrates have issued no order ; and this distin- guishes the case from B. v. Bristowe and B. v. Jeyes, in one of which there was an order by the magistrates, and in the other an order by the judge of assize." As to payment of compensation to coroners for loss of emolu- ments arising out of changes made by 7 & 8 Vict. c. 92, see B. v. Lechmere (d). Parish officers. A mandamus would be granted to compel overseers to alter certain rates in conformity with the amendment of the assessment com- mittee (e) ; but not to compel them to make and send to the assess- ment committee a provisional list under sect. 47 of the Valuation (Metropolis) Act, 1869, on the alleged ground, that the value has been increased or diminished during the year, if the overseers are of opinion that no such alteration in value has taken place (/). A mandamus was granted to compel them, under 9 Geo. 1, c. 7, s. 4, to pay money contracted to be paid to the applicant for maintaining and employing the poor of a parish (g) ; to compel overseers of a parish in a union to pay to its treasurer the amount to be contributed by the parish, and in case they had not in hand sufficient funds for the purpose, forthwith to do what was necessary for having a rate made, collected, and levied for the purpose (h) ; to compel them to obey an order of the burial board (6) S. V. Payn, 6 A. & B. 392. (g) E. v. Be.eston, 3 T. R. 592. («) Id. 401. (A) R. V. Todmorden, 1 Q. B. 185; id) 16 Q. B. 284. It, V. St. Andrew, Holhorn, 10 A. & E. (e) R. V. Langriville, L. R. 14 736. See and distinguisli R. y. Ban- ^- ^- ^- ^3- gor, 16 L. J. M. C. 68 ; R. v. Hudders- (/) B. V. Bermondsey, L. R. 14 field, 1 B. & S. 961 Q. B. D. 351. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 357 of a consolidated chapelry for the payment of a proportion of the expenses incurred in respect of the burial ground (i) ; to pass their accounts (k), but not to furnish particulars of them to the auditor, as he has the remedy in his own hands, by disallowing charges of which particulars are not given (I) ; to compel them to appoint a returning officer for an election of guardians, in obedience to an order of the Poor Law Commissioners (m) ; to compel the overseers, churchwardens, and inhabitants generally of a parish to call a vestry and make a rate for the repair of a parish church under a local Act (n) ; to compel them to allow a rated parishioner inspection of the parish books of accounts of receipts and expen- diture (o) ; to compel the officers of a parish included in a union to pay a sum out of the poor rates collected by them to the treasurer of the union (p) ; and to account to an auditor appointed by the Poor Law Commissioners (q) ; to compel the old overseer to deliver over the parish books and moneys to his successor (r) ; to compel overseers to restore a collector of rates improperly removed (s) ; but not to produce their own appointment for the inspection of a rated inhabitant, the application being a merely fishing one to find out defects (i) ; nor to compel them to certify (under 3 & 4: Vict. c. 61, s. 2) that a particular person applying for a license to retail beer in a dwelling-house is the real resident, holder, and occupier of the house, as they have a discretion in the matter (u). As to making a rate to provide for the expenses of a survey of the parish ordered by the Poor Law Commissioners, see E. v. The Churchwardens and Overseers of Bangor (x). The Court refused a mandamus to compel the churchwardens, (i) B. V. South Weald, 5 B. & S. C. 541. 391; B. V. Coleshill, 2 B. & S. 825; (p) B. v. St. Andrews, 10 A. & E. 4 B. & S. 667. See also B. v. Walcot, 738. 2 B. & S. 555, 571. (j) Id. 13 L. J. Q. B. 841. (A) B. V. Shepfon Mallett, 5 Mod. (r) B. v. Olapham, 1 Wils, 305; B. 421. See B. v. Worcestershire, 3 D. & v. Simms, 4 D. 294. B. 299. (s) B. V. Christchurch, 7 E. & B. Q) B. V. Halifax, 10 L. J. M. C. 81. 409. (m) B. V. Oldham, 10 Q. B. 700. (<) B. v. Harrison, 16 L. J. M. C. (ji) R. V. St. Saviour's, 7 A. & E. 33. 925. (?0 B. V. Kensington, 12 Q. B. 654. (o) iJi V. Great Faringdon, 9 B. & (a;) 10 Q. B. 91. 358 MANDAMUS. Surveyors. Coroners. Gaolers. overseers, &c., of a parish to make a rate to reimburse a former overseer moneys of his own expended for the reUef of the poor ; during his continuance ia office he ought to have got a rate for the relief of the poor, and reimbursed himself thereout (y). And a mandamus would not be granted to compel parish officers to receive a pauper in obedience to an order of removal, the proper remedy being by indictment (z). Mandamuses have issued to compel a surveyor of highways to pay money due to the prosecutor, under contracts with road trustees, for the rent of lands taken by them (a) ; to compel a surveyor, who had improperly allowed the time for producing and passing his accounts to elapse, to produce and pass them (6) ; to compel the surveyor of highways of a parish to deliver up, at the expiration of his office, to the proper custody (i.e., the church- wardens of the parish) the books of accounts, assessments, rates, and other documents relating to the highways (c) ; to compel a surveyor and commissioner under an inclosure Act to inquire into the existence of a modus (d) ; to compel him to make a road pursuant to a plan annexed to an order of quarter sessions (e). A mandamus to compel a coroner to proceed with an adjourned inquest was refused, where the inquest had been taken not su2)er visum corporis, and therefore not in the manner required by law (g) ; the Court being of opinion that the proceediag was irregular from its commencement. A mandamus will lie to quarter sessions to compel the allowance of a coroner's proper charges (h), where the disallowance is not in the exercise of a discretion properly belonging to that body (i); but not where it is (k). A mandamus, peremptory in the first instance, was granted to compel a gaoler to deliver up to the executors of the deceased (y) B. V. Littleport, 6 Mod. 97 ; R V. Botherhithe, 8 Mod. 339. (z) ibj parte Downton, 8 E. & B 85G. (a) B. V. Baldwin, 8 A. & E. 947. (6) B. V. Lewis, 1 D. 530. (c) B. V. Bownd, 4 A. & E. 139. (d) Anon., 2 CHtt. 251. (e) B. V. Wood Ditton, 18 L. J. M. C. 218. {g) B. V. Ferrand,Z B. & A\i. 260. Qi) B. V. Carmarthenshire, 16 L. J. M. C. 167. See also B. v. Kent, 11 East, 229 ; B. v. Warwickshire, 5 B. & C. 430; B. V. Oxfordshire, 2 B. & Aid. 203 ; and distinguish B. v. West Biding, 7 T. R. 52. (i) lb. (k) B. \ . Gloucestershire, 7 E. & B. 805. MANDAMUS TO PUBLIC BODIES AND PUBLIC OFFICERS. 359 the body of a prisoner who died in gaol (I). A mandamus would be granted to compel a gaoler to receive a prisoner whom he improperly refused to receive (m) ; but not to compel him to make allowances to a prisoner out of funds specified in 5 & 6 Vict. c. 22, these funds being under the control of the Secretary of State (n). A mandamus was granted to compel the trustees and managers SaTinra bank of a savings bank to appoint an arbitrator under the repealed Act dired;o"^'&c. 57 Geo. 3, c. 130 (o). A mandamus was granted to compel a collector of excise to Collector of administer the oath entitling the shipper of beer, under 38 Geo. 3, ®'"''^^' c. 54, s. 4, to obtain a drawback (p). A mandamus would, if necessary, be granted to compel the Registration register of deeds in the Eegister Counties to register the memorials °^''"^- of deeds, wills, &c. (q) ; and to compel the registrar of joint stock companies to register a company properly coming within the Com- panies Acts (r), but not to register under a new name a company already completely registered (.?). But the Court has no power to order a district registrar of births and deaths to erase even the fraudulent entry of the birth of a sup- posititious child (t). Nor will a mandamus be granted to compel the superintendent registrar of marriages to grant a certificate for a marriage out of his district (u). A mandamus was granted to compel a person who had been registrar of a consistory court, to deliver over all the public books and records to his successor (x). Under the repealed Act 8 & 9 Vict. c. 89, a mandamus was (I) B. V. Fox, 2 Q. B. 24:6. It seems 418, n. See also B. v. Witham, 1 A. that the gaoler might also be indicted & E. 321 ; 3 N. & M. 416 ; B. v. North- for his refusal. B. v. Scott, id. 248. wich, 9 A. & E. 729 ; and cf. Crisp v. (m) See -ffi. v. Governors of Middle- Bunhury, 8 Bing. 394. sex Bouse of Correction, 2 N. & M. (p) B. v. Coohson, 16 East, 376. 138; B. V. Governors of Coldbath (q) See B. v. Middlesex, 7 Q. B. Fields, 6 B. & S. 352 : B. v. Whitecross 156 ; S. v. 8., 1 E. & E. 322. Street, and B. v. Newgate, 6 B. & S. (r) B. v. WJiitmarsh, 15 Q. B. 600, 372, 379. 14 Q. B. 803. (n) Be Long, 14 L. J. Q. B. 23, (s) B. v. Begistrar of Joint Stock 146. Companies, 10 Q. B. 839. (o) -ffi. V. Mildenhall Savings Bank, (f) Ex parte Stanford, 1 Q. B. 886. 6 A. & E. 952 ; B. v. Olieadle Savings (u) Ex parte Brady, 8 D. 332. Bank, 1 A. & E. 323, n. ; 3 N. & M. (x) B. v. Wheeler, Cas. t. Hard. 99. High Court. 360 MANDAMUS. granted to compel the registration by the proper officers of a British ship (y). As to the duty of the registrar of friendly societies, see B. v. Registrar of Friendly Societies (2). For an example of mandamus to the registrar of the Pharma- ceutical Society of Great Britain, see 6 E. & B. 138. Friendly A mandamus was granted to compel the secretary of a friendly society. society to convene a meeting for the purpose of altering or rescinding rules, in compliance with a requisition duly signed under 10 Geo. 4, c. 56, s. 9 (a). Masters of the Mandamuscs have been granted to compel Masters of the High Court of Justice to tax the costs of the party entitled to them under sect. -51 of the Lands Clauses Consolidation Act, 1845 (&). (jy) R. V. Arnaud, 9 Q. B. 806, 16 12 East, 280; B. v. Somerset, 1 N. & L. J. Q. B. 50. An appeal from the M. 252. refusal of the registrar is now given to (a) B. v. Bannatyne, 17 Q. B. 524. the Commissioners of Customs. See (V) B. v. Mardey Smith, L. B. 12 also B. V. London Customs Collector, Q. B. D. 481 ; Pearson v. Great Nor- 1 M. & S. 262 ; B. v. Liverpool Cus- thern Bailway Co., L. E. 7 Q. B. 785, n. toms Collector, 2 M. & S. 223. Cf. Armytage v. Wilkinson, L. R. (2) L. E. 7 Q. B. 741. See also B. 3 App. Cas. 355 ; Bdl v. Master in V. Tidd Pratt, 6 B. & S. 672, and B. Equity, id. 2 App. Cas. 563. See the V. Littledale, Ir. L. E. 12 Q. B. D. 97. Irish case of Be ScuMy, 11 Ir. C. L. E. Before the central system of registra- 292, where Crampton, J., said that tion was established, the enrolment by there never was a case in which the quarter sessions of the rules of friendly Court issued a mandamus to its own societies was enforced, when necessary, officer, by mandamus ; see B. v. Staffordshire, ( 361 ) CHAPTER VII. Peocedure to obtain the Writ. PAGE 361 362 362 363 363 Application how to be made By whom to be made When to be made .... When notice must be given . Who may apply Again-st whom application to be made . . . . . . . 364 Affidavit by prosecutor . . . 365 What the affidavits must shew . 365 Title, &c., of affidavits ... 366 Order absolute in first instance . 366 Order nisi 367 Service of order 368 PAOE Enlarging the order .... 369 Amending the order .... 369 Shewing cause 369 Affidavits in opposition to order. 369 Order Jitsi discharged. . . . 370 Order nisi made absolute. . . 370 Settling form of order absolute . 371 Security for costs .... 371 Amending order absolute . . 372 Service of order absolute. . . 372 Renewing application for manda- mus 372 Appeal against order .... 373 By No. 60 of the New Crown Office Eules, an application for a Application prerogative writ of mandamus (a) must, during the sittings, be made, made to a Divisional Court of the Queen's Bench Division by motion for an order nisi. But this does not apply to an applica- cation for a writ of mandamus to proceed to the election of a corporate offic.r under the Municipal Corporations Act, 1882 (6). As, by Order LXVlil., r. 2, of the Supreme Court Eules and Orders, the provisions of Order Lll. are made applicable to manda- mus, and rule 2 of Order lii. saves the practice then existing of a rule or order being in some cases made absolute ex parte in the first instance, it will doubtless be held that (notwithstanding the wording of the new Crown Office Eule above set forth) the Court may stUl, if so minded, grant an order absolute in the first instance. (a) An application for an order in the nature of a mandamus to justices, or to a county court .judge, or to justices to state and sign a case, shall be by motion for an order nisi, in the same manner as is provided in Bule 60 (C. 0. R. 80). (b) Id. 362 MANDAMUS. By whom to be made. When to be made. In the vacation the application may be made to a Judge in Chambers (c) for a summons to shew cause, upon its being shewn to the satisfaction of such judge, that the matter is urgent {d). The leave of a judge must be obtaiued before the summons issues (e). In aU proceedings on the Crown side at Chambers, the summons is to be issued from, and the order drawn up at the Crown Office (/). It was laid down by the Court in 1819 {g), as a general rule applicable to aU proceedings in the name of the sovereign, that no private individual would be heard as an advocate in a court of justice ; and this rule has often been acted on since in cases of application for a criminal information. On the other hand, though I can find no reported case where a prosecutor in person has been allowed to move for a mandamus (A), the rule has not been applied where the application is against justices for a rule to hear and determine {i) ; and it is doubtful whether the old rule will be rigidly enforced in future. The general rule is that the application must be made within a reasonable time after demand and refusal. It may be refused if made too soon (vide ante, p. 251), and has frequently been rejected on the ground of unexplained delay (vide ante, p. 250). A person whose claim has been rejected or name expunged at the revision of burgess lists must make his application for a mandamus within two months after the last sitting of the revision Court (k). Every application for a writ of mandamus to justices to enter continuances and hear an appeal must be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time be allowed (c) " Judge at Chambers,'' includes a judge at Chambers in London or else- where (C. 0. R. 306). (d) C. 0. E. 60. (e) Id. 305. (/) Id. 304. {g) B. V. Lancashire, 1 Chitt. 602, where the application was for a criminal information against justices. See also B. V. Brice, 2 B. cfe Aid. 606, and ante, p. 52. (h) In Ex parte Wason (see 10 B. & S. 582), the applicant who moved in person was a member of the Bar. (i) See B. v. Biron, L. R. 14 Q. B. D. 474; 51L. T. X. S. 420. (k) 45 & 4H Vict, c- 50, s. 47. PROCEDUEE TO OBTAIN THE WRIT. 363 by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court (I). Notice of the intended application must be given in certain Notice, cases. Thus, in the case of an application for a mandamus to proceed to an election of a corporate officer, the applicant must give notice iu writing of the application to the person to be affected thereby (the respondent), at any time not less than two days before the day in the notice specified for making the appKcation; which notice must set forth the name and description of the applicant, and a statement of the grounds of the application (m). The appli- cant in such a case must also serve with the notice a copy of the affidavits, whereby the application will be supported (n). In those cases in which a rule absolute in the first instance was desired, notice was usually given to the party applied against, and the fact of its having been given verified by affidavit (o). Only those who have a direct interest in having the duty per- who may formed, and as to, or towards whom, the party proceeded against is ^P^'^" under an obligation to perform it, are considered entitled to apply for a mandamus (p). The duty may, however, be such as is owed to all the rate- payers of a town, hamlet, or district (q) ; or to a body of men, as the millers (r), or weavers (s) of a county. A person outlawed cannot obtain the writ until his outlawry has been reversed (t). One of those to whom the writ is to be directed may be prose- cutor. Thus one of two overseers and churchwardens of a parish, where the other had wrongfully refused to concur in making a (Z) C. 0. R. 79. The former rule {q) See B. v. Westmoreland, 1 Wils. will be found in E. B. & E. 255. 138. (m) 45 & 46 Vict. c. 50, s. 225. (r) B. v. Kent, 14 East, 395 ; and (ra) Id. cf. B. V. Nottingham, BuU. N. P. (o) See Ex parte Winfield, 3 A. & E. 201. 614. (s) B. V. Cumberland, 1 M. & S. (p) See B. V. Frost, 8 A. & E. 822 ; 190. B. V. Lords of Treasury, L. R. 7 Q: B. (r!) B. v. Bristol, 1 Show. 288 ; 387 ; B. V. Bishop of Chichester, 2 B. Garth. 199. & E. 209. 364 MANDAMUS. rate, obtained a mandamus addressed to the overseers and church- wardens to make the rate (u). The successful prosecutor of a qioo warranto information has been held entitled to priority over the defendant in moving for a mandamus for a new election; but if the prosecutor does not move within a reasonable time, then the defendant may make the application (x). Where, on the single affidavit of the clerk of one of the two solicitors to a bill for the construction of waterworks in a borough, a rule for a mandamus was moved for, to compel the mayor to hold a second meeting of the ratepayers, on the ground that he had wrongfully refused a poll at the previous meeting (which passed a resolution that the bOl should be opposed at the charge of the ratepayers), Blackburn, J., in the BaU Court refused the rule, on the ground that the party " should, in the first instance, shew that he is really applying in the interests of the owners and ratepayers ; it ought also be shewn by affidavit who is the real applicant, in order that he may be made responsible for costs " (y). A single mandamus should not be applied for by several persons for the enforcement of several claims, although they have occupied in succession the same ofi&ce in respect of which the claims arise (z). Against whom ^g to the persons against whom the application should be made, to be made. no more precise rule can be laid down than this : All those should be applied against on whom the duty of obeying the writ will be cast, should a mandamus be granted ; even though the application be made by some of them (a). If certain of the magistrates present at a special sessions take no part in the decision of the sessions, they ought not to be brought before the Court on an application for a mandamus in respect of that decision (b). It is not necessary to bring before the Court aU the magistrates who actually do take part in a decision ; but if the Court sees that (w) B. V. Gadsly, 1 N. & P. 572. Burr. 1386. See also Anon., 2 Chitt. 254, where (y) B. v. Peterbor(mgh, 44 L. J. Q. B. the Court said that this had often been 85. done. (z) Ex parte Scott, 8 Dowl. 328. (x) R. V. McKay, 4 B. & C. 658 ; (o) See Anm., 2 Chitt. 254. B. V. Hears, id. 659 ; R. v. West Loe, (b) R. v. Wilts, 8 Dowl. 717. PROCEDURE TO OBTAIN THE WRIT. 365 some are selected and some omitted for an improper purpose, it would require that all who were parties to the decision should be joined (c). The lord of the manor and the steward should both be made parties, where the application is to compel acceptance of a cus- tomary surrender (d). So should all the justices of the county, where the application is to enforce the performance of a duty by quarter sessions (e). The application to restore a parish clerk should be against the incumbent, not the churchwardens (/). The actual occupant of an office should be made party to a rule to compel a new election to it (g). N"o order for the issuing of any writ of mandamus shall be Affidavit by granted unless, at the time of moving, an affidavit be produced by P'™^''" "' which some person shall depose upon oath that such motion is made at his instance as prosecutor ; and, if the writ be granted, the name of such person shall be endorsed on the writ as the person at whose instance it is granted (h). The affidavit or affidavits in support of the motion should contain What the affi- a statement of everything necessary to shew (1) a legal right on shJw! ""^ the part of the applicant to have the duty performed (i) ; (2) a demand by him to have it performed ; (3) a refusal to perform it by the party moved against, either expressly or by equivalent conduct (k) ; (4) that notice has been given, where notice is neces- sary : and (5) it should also appear that the application has not, on the one hand, been unduly delayed (I), nor, on the other hand, been made prematurely (m) ; and (6), when the application is for the purpose of obtaining inspection of public documents, it is well to state the object with which inspection is sought (n). In brief, they should state facts sufficient, according to the principles already explained, to establish s. prima facie right to the relief asked for. (c) R. V. Ellis, 2 D. N. S. 361. pp. 228 et seq. (d) R. V. Evans, 1 Q. B. 355 ; 7 D. (k) As to demand and refusal and 709 ; R. V. Powell, 1 Q. B. 352. what amounts to each, vide ante, (e) See the cases referred to ante, pp. 247-249. pp. 301 et seq. (0 ^'de ante, p. 250. (/) Ex parte Cirkett, 3 D. 327. (to) Vide ante, p. 251. \g) R. V. Banhes, Burr. 1453. (n) Vide ante, pp. 265-267, and (A) C. O. R. 76. LawUss v. Gommissioners of Police, 13 (i) See for example iB. v. ^re^iMqp Ir. C. L. R. 367. of Canterburtj, 8 East, 213, and ante, 366 MANDAMUS. The affidavits need not state that the applicant has no other effective remedy ; hut the facts stated should be such as to shew this, or at least to render it doubtful whether any other legal remedy exists (o). When necessary, the charter of a corporation (p), or the statutes of a college, must be brought before the Court (q) ; and if the office, in respect of which the application is made, is one of which judicial cognizance will not be taken, the nature of its duties should be sufficiently described (r). It is best to annex a copy of every document of importance (s). According to the obscure reports of some old cases, where a mandamus is prayed in a matter of right, as to restore a man to his office, an affidavit of the fact of his having been possessed of it and removed therefrom is not necessary ; but an affidavit is necessary of a failure of duty on the part of justices {t). Title, &c., of As to the title, form, and contents of affidavits, the manner, time, swearing' and placc of swearfng and filing them, &c., see the various rules set filing, &c. £^j,^j^ ^^^g^ pp 41-44, which are applicable to aU proceedings on the Crown side. See also the various rules of Order xxxvin. of the Supreme Court Eules, 1883, which, so far as applicable, are to apply to all civil proceedings on the Crown side {u). Affidavits to be used in moving for the order nisi should be entitled simply, " In the High Court of Justice, Queen's Bench Division" {x). Order absolute In somc cases the Court has been accustomed to grant an order instance. absolute in the first instance {y), such as the following : to admit or swear into an office a person clearly entitled to it (z),- but not (o) R. V. Bristow, 6 T. E. 168 ; R. (f) R. v. C(rry , 3 Salk. 230 ; R. v. V. St. Katharine's Dock Co., IB. & Ad. CuUers' Co., Cas. t. Hard. 129: per 362 ; R. V. Stohe Damard, 5 A. & E. Lee, J., Anon., 2 Bam. 235. .'584 ; R. V. Nottingham Old Water- (u) C. 0. E. 5. works, 6 A. & E. 355. (sc) Id. 7. (p) See case of Vininers' Company, (y) See the remarks ante, p. 361. Bull. N. P. 196. (z) Anon., 1 Bam. 227; Anon., 1 (gr) R. V. Archbishop of Canterbury, Chitt. 254. JEx parte Lowe, 4 D. 15; 7 Mod. 220. R. v. Manchester, 7 D. 707 ; Ex parte (r) See R. v. Ouildford, 1 Lev. 162 ; WinfiM, 3 A. & E. 614 ; R. v. Anon., 1 Barn. 153; Anon., 2 Mod. Coventry, 3 Doug. 236; R. v. lAtch- 316. field, 5 N. & M. 42 ; R. v. May(n; ic, (s) See R. v. Simms, 4 D. 294; cf. of York, 4 T. E. 699, 700. Crosby v. Fortescue, 5 D. 273. PROCEDURE TO OBTAIN THE WRIT. 367 where the application was to restore to ofSce (a) ; to compel justices to allow a poor-rate (6), and to compel churchwardens and over- seers to make one (c) ; to allow persons interested to examine parish or corporation books (d), or the roUs of a manor (e) ; to compel the reception by overseers of a deserted pauper child (/) ; to compel a gaoler to give up for burial the body of a debtor who died in prison (g) ; also where a mayor held over (h), or there was a vacancy by death (i), or where the election was absolutely void (k). The order nisi calls on the party or parties to shew cause why Order nisi. a mandamus should not issue to compel the performance by him or them of the particular duty. The rule may include any number of persons, provided the duty is one to be performed by all of them (I) ; e.g. the justices of a county (m) ; the " inhabitants " of a parish (w) ; " the churchwardens, overseers and inhabitants " of a parish (o) ; " the churchwardens and overseers of the poor of the parish of X., and the principal inhabitants thereof" {p); "the bailiffs" of a town {q); "the keepers of the common seal " of a university (r). And it should call on them to shew cause why " a writ," not " one or more " writs, of mandamus should not issue (s). Where the application is to compel some public officer to perform a duty, it is best to use his official title, and not the name of the individual {t). (a) Buller, N. P. 199. («) lb. lb) B. V. OodolpMri, 13 L. J. M. C. {/c) £. v. Pembrohe, 8 Dowl. 302. 57; R. V. Eeydon, Say. 208. (J) See for example -H. \ . Archdeacon (c) R. V. St. Andrews, 7 A. & E. of Middlesex, 3 A. & E. 615. 281 ; B. V. Fisher, Say. 160. (m) See the cases against justices (d) Anon., 2 Chitt. 290 ; B. v. referred to ante, pp. 301 et seq. ShdUy, 3 T. R. 141. (n) R. v, Wix, 2 B. & Ad. 199. (e) R. V. SMley, 3 T. R. 142, per (o) R. v. St. Saviour's, 7 A. & E. Buller, J. ; 2 W. Bl. 1030, 1031, note ; 925. 1 Reg. Gen. H. 2 Wm. 4, s. 102, 3 (p) 2 B. & Ad. 199, note. B. & Ad. 389 ; 1 D. 197 ; Ex parte (?) R. v. Olitheroe, 6 Mod. 133. Eutt, 7 D. 690 ; Ex parte Barnes, 2 (r) R. v. Cambridge, Burr. 1647. D. N. 8. 20 ; cf. Ex parte Best, 3 D. 38. (s) R. v. Bridgnorth, 10 A. & E. 70. (/) Ex parte Fowndling Hospital) 5 See note (c). D. 722. ' (t) See B. y. Cambridge, BavT. 2011, (g) B. V. Fox, 2 Q. B. 246. where it was directed to be to " the (h) B. V. Mayor of Truro, 2 Ohitt. late mayor " (without giving his name) 257. of a borough. 368 MANDAMUS. The order nisi should state with sufBcient particularity the object of the writ (u). It should state the day on which cause is to be shewn. The ordinary time was five days from its date (x) ; but a shorter time was given in cases of emergency (y). And the time might always be enlarged (z). The order is drawn up by the master of the Crown OiEce. An order nisi in the alternative for a mandamus or a quo warranto would be improper (a). Notice is to be given by the order nisi to every person who, by the affidavits on which the order is moved, shall appear to be interested in or likely to be affected by the proceedings, and to any person who, in the opinion of the Court or judge, ought to have such notice (6). Every order is to be dated of the day of the week, month and year, on which the same was made, unless the Court or judge shall otherwise direct, and shall take effect accordingly (c). Service of Order. — ^The order nisi must be served upon each person to whom notice is given by the order, as well as upon the party whom the order requires to shew cause {d). Whenever service is not directed to be personal, service at the last known place of abode, or business, with a clerk, wife, or ser- vant, or upon such other person, or in such other manner as the Court or a judge may direct, shall be deemed to be a sufficient service (e). After service is effected, an affidavit of the fact should at once be made. An affidavit of service must state when, where, how and by whom such service was effected (/). («) See E. V. WiUis, 7 Mod. 261 ; 215, 219. R. V. Liverpool, 1 Bam. 82. (6) C. 0. B, 61. See R. v. Maiden- (x) See Archbishop of Canterbury v. hall Savings Bank, 6 A. & E 954 • R. Trinity College, Cambridge, 1 Barn. v. Tucker, 5 D. & R. 434- R. v. 19*- Bankes, Burr. 1453; R. v. Simpson, (y) See Anon., 2 Bam. 235, where Burr. 1467 ; R. v. Commissioners of the Court granted a mle for a man- Treasury, 10 A. & E. 374. damns unless cause were shewn next (c) C. O. E. 4. •^y- (d) Id. 62. As to service in case of (z) R. V. Cambridge, 8 Mod. 148. a mandamus to Petty Sessions, see R. See now No. 297 of the New Crown v. Tucker, 5 D. & B. 434. Office Rules. (e) C. O. B. 139. (a) See R. v. Winchester, 7 A. & E. (/) Jd. 27. PROCEDURE TO OBTAIN THE WRIT. 869 Enlarging the Order. — The Court has always, for sufficient cause shewn, enlarged the time for shewing cause against the order nisi (g). An application for enlargement is by motion, of which two days' notice must be given, and is brought on as if it were an ex parte motion, and not put into the Crown paper (h). The hearing may be adjourned on such terms, if any, as the Court or judge thinks fit (i). The Court sometimes enlarges the time in order that the order Amending nisi should be amended (k). Any person, whether he has had notice or not, who can make it Shewing appear to the Court or judge that he is affected by the proceeding " for a ^rat of mandamus, may shew cause against the order nisi or summons, and shall be liable to costs in the discretion of the Court or a judge if the order should be made absolute, or the prosecutor obtain judgment (I). But no person is allowed to shew cause against an order nisi unless he has previously obtained office copies of such order and of the affidavits upon which it was granted (m). In the case of an application for a mandamus to proceed to an election of a corporate officer, the respondent on receiving the notice before mentioned (ante, p. 363), may shew cause in the first instance against the application (n). All affidavits used before the order has been made absolute are Affidavits in properly entitled simply " In the High Court of Justice, Queen's OTder ni^. Bench Division." The affidavits filed in opposition to the motion should state all such facts and refer to aU such documents as tend to disprove the applicant's title to a mandamus. All the affidavits used must be filed in the Crown Office Depart- ment of the Central office (o). (g) B. V. Simpson, Burr. 1467 (to Bateman, 4 B. & Ad. 554 (to give time give notice to an interested person); for an affidavit of compliance with B. V. Bcmhes, Biirr. 1453 (in order to certain statutory requirements), add another name in the rule) ; B. v. Qi) 0. 0. R. 255. Dolgelly Union, 8 A. & B. 563 (appa- (i) Id. 260. rently to allow a particular piece of (k) See B. v. Bankes, Buit. 1453. evidence to be brought before the Q) C. 0. R. 63. Court) ; B. v. Cambridge, Burr. 2008 (m) Id. 26. (enlarged by consent); B. v. Ikst India (n) 45 & 46 Vict. c. 50, s. 225. Go., 4 M. & S. 279 (to allow time for (o) C. 0. R. 15. an appeal to the Privy Council) ; B. v. 2 B 370 MAITOAMUS. On every affidavit is to be endorsed a note shewing on whose behalf it is filed, and no affidavit is to be filed or used -without such note, unless the Court or a judge shaU otherwise direct {p). In B. V. Lards of the Treasury (q), the Attorney-General, as representing the Crown, claimed a right to be heard in reply; but the question of his right was left undecided. Order msi Where the applicant fails to make out his title to the relief discharged. gigimed, the order nisi will be discharged, with or without costs, in the discretion of the Court or judge. The Court refused to allow an order uisi for a mandamus to be argued at the same time with one for a quo warranto, in respect of the same matter (r). Order absolute. If no cause is shewn,the order nisiis made absolute, on affidavit of service. The Court will also make the order absolute where the applicant makes out a clear title to a mandamus. It generally did so also where, the applicant having 2. prima fade right, there were disputed questions of fact or doubtful points of law to be determined, which might be more satisfactorily dealt with on a return to the writ (s). But this reason for malriTig absolute the order for a mandamus may, as observed by the present Master of the EoUs (t), become obsolete by reason of the Judicature Acts and Orders : Where the case was one of general interest and there was considerable doubt as to the law, the Court invariably allowed the mandamus to go and a return to be made, in order that the case might be taken to a Court of Error; but now, as every order is appealable (u), there may be an appeal to the Court of Appeal and thence to the House of Lords upon the discretion of the Court in granting a mandamus ; it being no longer necessary (p) C. 0. B. 15. curiam, B. v. MUverUm, 3 A. & E. (2) 16 Q. B. 360. 286. See a concise statement of the (r) R. V. Wincheiter, 7 A. & E. rule on which the Court acts, per Cole- 215. ridge, J., in R. v. Bishop's Stoke, 8 D. («) B. V. West Looe, 3 B. & C. 685 611. QjerBayley, J.). See also^er Lord Den- (t) R. v. Bislwp Wearmouth, L. R. man, B. v. Birmingham, 7 A. & E. 5 Q. B. D. 73. See also the remarks 259 ; per Lee, C.J., B. v. Bland, 7 of the same learned judge in R. v. Mod. 356 ; per curiam, B. v. Mayor of Bangor, L. R. 18 Q. B. D. 360. York, i T. R. 700 ; B. v. Mayor, &c., (a) See per Jessel, M.R., L. E. 5 of London, 5 B. & Ad. 237. Per Q. B. D., p. 69. PROCEDURE TO OBTAIN THE WRIT. 371 that the facts should appear upon the record for the purpose of giving an appeal. The Court on making the order absolute has sometimes ordered that the writ should not issue without an order from a judge for the purpose (x). The order absolute is drawn up by the master of the Crown Of&ce. As the writ must follow the order absolute, the latter should be Settling form settled with care, and this may sometimes require the omission or °„te! "'^ ^°' modification of something contained in the order nisi {y). Where the order absolute could not be drawn up, owing to the defendant's solicitor not filing the affidavits used by him in shewing cause, the Court peremptorily ordered him to produce them at the Crown Office the next day, in order that they might be filed (s). The costs of the order usually abide the ultimate event (a) ; but Costs, this is not invariably the case (6). The costs are in the discretion of the Court or judge (c). Security for costs may be ordered to be given {d). Security for The Court has refused to consider the poverty of an interested prosecutor a sufficient reason for ordering security for costs to be given, merely on an allegation that he was induced by others to apply for a mandamus (e). The Court has sometimes allowed a mandamus to be prosecuted by persons other than the nominal prosecutors, on the latter being indemnified, to the satisfaction of the Court, against all costs (/). The amount of such indemnity may be subsequently increased by the Court {g) Any amendment which may be required in the order should be Amending order- absolute, (a;) See Be Bromley, 3 D. & R. against the rule, and it appeared that 310. the litigation was substantially at an (y) See^. V. Nottingham Old Water end. Wwks Co., 6 A. & E. 371 ; B. v. &uf- (c) C. 0. R. 300, Order lxv., r. 1. folk, 1 B. & A. 646. {d) 0. 0. H. 800, Order lxv., r. 6. (z) B. V. Middlesex, 1 Chitt. 368. (e) B. v. Malmesbury, 9 D. 359. (a) B. V. Salop, 6 D. 34, 35 ; B. v. Williams, J., mentioned a case in which Fall 1 Q. B. 636. the application for the writ was made (6) See B. v. Commissioners of in forma pauperis {Id. 361). Thames and Isis, 8 A. & B. 905 ; B. (/) B. v. Southampton, 6 B. & S. V. East Anglian Bailway Co., 2 E. 407. & Bl. 475, where no cause was shewn (jf) Id. 2 B 2 372 MANDAMUS. applied for before the writ is issued. The Court has several times Qi) refused to amend the order absolute after the writ had issued ; though in one case {i) they allowed the prosecutor to make a second application for an order for a mandamus in the terms of the first mandamus. Clerical mistakes or errors arising from any accidental slip or omission may at any time be corrected by the Court or a judge on motion or summons without appeal (k). Amendment generally. — On the subject of amendment generally, see now Order xxviii. of the Kules of the Supreme Court, 1883, which are, so far as applicable, to apply to all civil proceedings on the Crown side {V). Service of The order absolute for a mandamus need not be served ; but the or er a so u e. ^^^ ^^ servicc of the Order may be allowed, in the discretion of the taxing officer, where the writ is not issued {m). Renewing The general rule of practice is that the Court will not allow a mandamus. party to succeed on a second application who has previously applied for the very same thing, without coming properly prepared (n) ; and this applies to public officers as well as to individuals (o). The only exception said to exist is where the alteration would be simply in the form of a title or jurat, and reswearing the affida\dt would clearly leave parties in the same situation in which they were before {p). Where a rule was discharged on the ground that there had been no demand and refusal, the Court refused to listen to a second application on fresh materials, shewing that a demand had since been made followed by a refusal {q). But the general rule above mentioned has not been consistently acted upon. Where a rule for a mandamus to a railway company, to pay the (A) B. V. WaUr Eaton, 2 Smith, 54; (m) C. 0. E. 64. B. V. Wiseman, 1 Barn. 405 ; B. v. (ji) Per Lord Denman, B. v. Man- East Lancashire Bailway Co., 16 L. J. chester, &c., Bailway Co., 8 A. & B. Q- B. 127. 427 ; B. v. Great Western Bailway Co., (i) B. V. East Lancashire Bailway 5 Q. B. 601. Co., ubi svpra. (o) B. v. Pickles, 3 Q. B. 599. {k) C. 0. R. 299, Order xxviii., (p) B. v. Oreat Western Bailway •■• •'••'•• Co., uhi supra, disapproving Skerry v. (0 C. 0. R. 299. See especially r. 12 Oke, 3 D. 349, 360. of Order xxviii. (g,) Ex parte Thompson, 6 Q. B. 721. PROCEDURE TO OBTAIN THE WRIT, 373 amount of compensation assessed for lands taken by them, was discharged, because the af&davit of the applicant stated only that he was not in a situation to complete the title, he was allowed, on an amended afSdavit, shewiag that he had endeavoured to obtain a complete title, to renew his application ; and the Court granted a rule absolute (r). A renewed application has also been permitted where the party came with suf&cient materials in the first instance, but by mistake of counsel or an officer of the Court, the rule had not been properly drawn up (s). And where the mandamus which issued was defec- tive, a new mandamus was granted (t). Where, on shewing cause against the rule for a mandamus, it was agreed that the matters in dispute should be tried on feigned issues at the assizes; after verdict for the prosecutor, he was allowed to renew his application ; and the Court made absolute a rule for a mandamus (u). In case of a renewed application the attention of the Court should be called to the fact that a former one had been refused (x). The Court sometimes enlarged the rule in order to allow the applicant to make a further af&davit of necessary facts (y). The order absolute, as well as the order nisi, may be appealed Appeal against to the Court of Appeal (z), and thence to the House of Lords. (r) B. V. Dept/ord Pier Co., 8 A. & (u) B. v. West Biding, 12 East, E. 910. See also B. v. Nottingham,, 116. 1 W. Bl. 59, where, after a mandamus (x) B. v. Pickles, 3 Q. B. 601. had been granted, the Court listened to (y) See jB. v. Bateman, 4 B. & Ad. an application for another mandamus. 554. (s) B. V. East Lancashire Bailway (z) See B. v. Bangor, L. R. 18 do., 16 L. J. Q. B. 127. Q. B. D. 349, and the remarks of Lord (<) London v. Swallow, 2 Keb. 76. Esher, M.R., at p. 360. 374 MANDAMUS. CHAPTER VIII. The Wkit. PAGE Form of writ 374 Direction 375 Body of writ 376 The command 377 Date and teste 378 Indorsement 378 Issue of writ 378 Where returnable .... 379 Amending writ 379 Cross or concurrent writ . . . 379 Alias or pluries writ .... 379 Service of writ 380 Writ peremptory in first instance 380 Filing writ 381 Superseding writ 381 Quashing writ 381 Form of writ. Aftee the order 7d$i has been made absolute, the next thing is for the prosecutor to prepare the writ, which must not go beyond the terms of the order. It is to be in the form set forth in the appendix to the New Crown Office Eules, with such variations as circumstances may require (a). See Form in Appendix, posL It must strictly conform to the terms of the order absolute. If it goes beyond them in any material respect, it is liable to be quashed or superseded (6). It is directed to the persons mentioned in the order absolute, i.e., to all those on whom the duty lies of executing the writ (vide ante, p. 364). In a case of difficulty the Court has sometimes pointed out the persons to whom it should be directed (c). The first word " Whereas " should be followed by a short state- ment of the facts (without the evidence to prove them) which con- stitute the prosecutor's right to have the particular duty performed (a) C. 0. R. 68. g>) B. V. Water Eaton, 2 Smith, 54; R. V. Wildman, Str. 879 ; B. v. Kings- ton-upon-Hull, 8 Mod. 209, 11 Mod. 382 ; B. V. Birmingham, 11 A. & B. 27, n. (o) See^erLordEllenborough,^. V. Commissioners of Bequests, 7 East, 295; B. V. Cambridge, Burr. 1659, 1660; id. Burr. 2011; Prints case, 1 Keb. 686. THE WBIT. 375 by the defendant or defendants. The writ should then allege a demand to have the duty performed, and a neglect and refusal by the defendant or defendants to perform it. A command follows to do the act or acts specified, or to shew cause to the contrary thereof, and to make known to the Sovereign at her Eoyal Courts of Justice how the writ has been executed, forthwith then returning the said writ. Great strictness has been required in naming the body, person. Direction, or persons to whom the writ is directed. Writs addressed to corporations have been held bad for inaccu- rately giving the title of the corporation (d). Such writs should be addressed to the corporation as a whole by its proper corporate title, or, in case the duty is one to be performed by part only of the corporate body, either to such part or to the entire corporate body (e). It seems that a corporation by prescription might have several names by reputation, any one of which might be sufficient (/). Care should be taken not to include any persons whose concur- rence in the act to be done is not necessary (g). "When several duties are to be performed by distinct parts of the body corporate, a writ commanding the performance of all by the entire body will be construed reddendo singula singulis (h). The observations already made, when dealing with the question of parties to the order, apply also to the manner in which the writ (d) E.g.,> a writ addressed to the instead of " Gipwic " (Ipswich), 2 Salk. " aldermen and commonalty " of a 434. See also -ffi. v. Norwich, X Str. 55 ; borough, the proper title of the corpora- HoWs case, Sir T. Jones, 51, denied to tion being "the mayor and common- helaw in case of ^&i»ig'cio»i, Carth. 501, alty," though the office of mayor was 2 Salk. 699; Witheringtonh osse,l^e\). at the time vacant, B. v. Smith, 2 M. 61, 68 ; B. v. Taylor, 3 Salk. 231 ; & S. 598 ; one addressed to " the B. v. Plymouth, 1 Barn. 81. Gf. B. v. mayor, aldermen, and commonalty," Leeds, 1 Str. 640. whereas the corporate title was "mayor, (e) See B. v. Abingdon, 2 Salk. 699. burgesses and commonalty," B, v. Per Powell, J., B. v. Gloucester, Holt, Bippon, 2 Salk. 433 ; one addressed to 451. the " mayor, &c., of the city of Lin- (/) Whitacre's case, 11 Mod. 67. coin, in the county of Lincoln," instead (jr) See per Lord EUenborough, B. v. of " in the county of the city of Lin- Smith, 2 M. & S. 598. coin," B. V. Lincoln, 12 Mod. 190 ; and Qi) B. v. Tregony, 8 Mod. Ill, 127. one addressed "ballivis, &c., Gippi," 376 MANDAMUS. should be directed to justices (*) ; and to officers by their official appellation (k). A misdirection of the writ may be taken advantage of in the return (t). On the other hand, the misdirection may be waived by a return made in the right name (m). See now the large powers of amendment referred to ante, p. 372. If the facts stated do not shew a title on the part of the prose- cutor, the writ is liable to be quashed or superseded (n) ; but the right may be stated generally, and no precise form is necessary (o). Body of writ. The facts which shew that the duty sought to be enforced rests upon the defendant should also be stated (p). A custom, where the right depends on it, should be fully stated (q). Where the consent of a particular person to an appointment is necessary, the giving of such consent must be alleged (r). So should the lapse of a reasonable time for the performance of the duty sought to be enforced (s). The demand for the performance of the duty should be expressly alleged (t), as well as the neglect and refusal to perform it. It has been said by more than one judge (u) that the writ ought to state distinctly that the prosecutor has no other remedy, and that, if it does not, the defendants are deprived of the power of traversing that most material fact ; but many precedents shew that no express allegation of the absence of other remedy is necessary. It must however appear from the facts stated, or the nature of the case, that no other remedy does exist (x). (t) Vide write, pp. 365, 367. (j) See Needham'g case, Trem. 469, (Je) See, for exampk, per Lord cited 7 East, 350. Mansfield, B. v. Cambridge, 1 W. BL (r) E. v. Bishop of Oxford, 7 East, 353. 352. (0 Witherington's case, 1 Keb. 68 ; (s) B. v. Eastern Counties Bailway B. V. Ipsimch, 2 Salk. 434. Co., 10 A. & E. 568, 569. (m) See per Keeling, J., B. v. Mills, (t) See B. v. Ward, 1 Bam. 411. 1 Keb. 623 ; per Lord Kenyon, B. v. (m) See per Abbott, C. J., B. v. Mar- Tork, 5 T. E. 74. B. v. Ipsvnch, vbi gate Pier Co., 3 B. & A. 224. See also »i^pra- per Bolt, C. J., in B.v.SheptonManett, 53. (n) B. V. West Biding, 7 T. B. 50, 5 Mod. 421. (i) See B. V. Margate Pier Co., ubi (o) Per Lee, C.J., B. v. Nottingham, supra, an application for a mandamus Say. 37. to compel payment of a rate, where (jj) See per Lord EUenborough, in there was an absence of averment that B. V. Bishop of Oxford, 7 East, 352. the defendants had no effects on which THE WRIT. 377 The mandatory clause must correctly state the duty to be The command. performed, and not in wider terms than the law justifies (y). A defect in this respect is not cured by a properly limited requisition in the recital (2). The duty may consist of several acts, e.g., to enter continuances, and hear an appeal (a). And where the object to be attained requires the doing of several acts by different persons, the same writ may command the doing of all ; e.g., to a lord to hold a court baron, and to certain of the suitors to compose a homage and present certain conveyances (&). But several rights cannot be joined in the same writ (c). In the case of a ministerial act, the command is specific, e.g., to admit, swear in, or restore A. B. to a particular office ; in the case of a judicial act, it is general, e.g., to hear and determine, without prescribing what decision is to be given. A command to directors of a dock company, " to make such alterations and amendments in the sewers as were necessary iu consequence of the floating of the harbour," was held sufficiently definite without mention of any specific alteration ; the mode of remedying the evil being left to the discretion of the Dock Com- pany by their Act of Parliament (d). Where the writ commanded the defendants to take measures for obtaining and recovering certain dock dues, and to pay over a certain portion of them to the prosecutors, it was objected that the writ should have pointed out with particularity what measures the defendants were to take, and that the prosecutors could not ask the defendants to take legal proceedings without an offer of indemnity. The House of Lords, as advised by the majority of the judges, held that the writ was sufficient; that it was not necessary in the a distress could be levied ; B. v. Hop- Wils. 283. Cf. E. v. Wmis, 7 Mod. 261. kins, 1 Q. B. 169, where, on the facts (c) See S. v. Chests, 5 Mod. 10 ; stated, trover or detinue would have Anon., 2 Salk. 436 ; case of Andover, lain. 2 Salk. 433 ; Mc parte Scott, 8 Dowl. (y) See B. V. St. Pancras, 3 A. & E. 328. See B. v. TwiUy, 2 Salk. 434, 535 ; S. V. S., 6 A. & E. 326-328. where the same writ commanded the (2) B. V. St. Pwncras, 6 A. & E. admission of two persons as church- 326, seq. wardens. (a) Vide ante, p. 301. (^0 B, v. Bristol Dock Co., 6 B. & C. (6) B. V. Montacute, 1 W. Bl. 60, 1 181. 378 MANDAMUS. first instance to make an offer of indemnity, or to point out what proceedings should he taken ; that the writ of mandamus necessarily assumed a general form, leaving it to those who were called on to make a return to state in their return such difficulties, if any, as existed in the way of what was required to be done (e). When the writ commands the defendant " forthwith " to perform the duty named, the Court does not thereby mean that everything must be done instantly, but that the defendant must set about the matter directly and do what he can (/). Date and teste. Every Writ of mandamus shall bear date on the day when it is issued (g), and shall be tested at the Eoyal Courts of Justice, London, in the name of the Lord Chief Justice of England (h). The writ may be made returnable forthwith, or time may be allowed to return it, either with or without terms, as the Court thinks fit (i). iDdorsemcnt. The Writ is to be endorsed as follows : " By order of Court " [or of Mr. Justice J At the instance of This writ was issued by, &c. [The soKcitors for the prose- cutor, or the prosecutor in person], lasneofwrit. The Writ is issued at the Crown Office Department of the Central Office (k). Every writ shall be prepared by the solicitor or party suing out the same, and shall be written or printed on parchment (Z). Every writ shall, before being sealed, be endorsed with the name and address of such solicitor or party ; and, if sued out by the solicitor as agent, with the name and address of the principal solicitor also (m). (e) J?. V. S(w«Aampton,L. R. 4 E. & least between the teste and return Ir. App. 449, 475. where the Act was required to be done (/) Per Patteson, J., R. v. Ouze in London or within forty miles of it. Commissioners, 3 A. & E. 550. and fourteen days in all other cases. (g) The former practice was that the But the Court sometimes shortened writ bore date the same day as the rule the time, absolute. (i) c. 0. E. 229. (h) C. 0. R. 68, 231. Q) Id. 230. (i) Id. The former rule required (m) Id. that there should be eight days at THE WRIT. 379 All writs issued at the Crown Office are to be entered in a book to be there kept for the purpose (w). The writ is made returnable in the Queen's Bench Division of where the High Court, or in vacation may be made returnable before a '■«*^™a''i»- judge at Chambers (o). Even before the large powers of amendment given by the Amending Common Law Procedure Acts and the Judicature Acts, the Court ^''" sometimes allowed the writ to be amended, and occasionally during argument on the validity of the return (p). By rule 12 of Order xxvni. (the whole of which, so far as applic- able, is to apply to all civil proceedings on the Crown side (q) ), the Court or a judge may, at any time, and on such terms as to costs or otherwise as the Court or judge may think just, amend any defect or error in any proceedings ; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings. The Court has sometimes granted a cross or concurrent writ. Cross or con- where there was reasonable ground for thinking that the person '^"^^^*' '""*'• or persons who had obtained the first writ did not lond fide intend to prosecute it (r). But mere delay in executing the former writ has not been considered a sufficient reason for granting another (s). The procedure to obtain it is the same as that already described. An alias writ was sometimes granted where the first writ had Alias or been superseded for some technical defect (<); or where a better ^ ""*' ^" ' return was required (m) ; and when necessary a pluries writ was also granted (v). Any person by law compellable to make any return to a writ of mandamus must make his return to the first writ (a;). (m) 0. 0. K. 230. (0 See B. v. 8t. Andrew's, EoTborn, (o) Id. 232. 7 A. & E. 281. Ip) E. y. Newbmy, 1 Q. B. 759. (m) See B. v. Corye, Sty. 87, the See B. V. Stafford, 4 T. R. 689 ; B. v. case of a writ of restitution to restore Clitheroe, 6 Mod. 133, note ; B. v. the recorder of Norwich. Lyme Begis, 1 Doug. 135, note (/) ; B. {v) See B. v. Owen, Skin. 669 ; cf. V. Conyers, 15 L. J. Q. B. 300. Coventry case, 2 Salk. 429 ; Anon., (2) 0. 0. R. 299. Palm. 455. (r) See per Lord Mansfield, B. v. (a;) C. 0. R. 69. See the similar Wigan, 2 Burr. 784 ; B. v. Salsemere, provision of 9 Ann. c. 23, as to muni- Say. 106; -ffi. V. Plymouth, 1 Bam. cipal offices, made applicable to all 130. writs of mandamus by 1 Wm. 4, c. 21, (s) B. V. Scarborough, Say. 105. a. 3. 380 MANDAMUS. Service of If the writ of mandamus is directed to one person only, the ""'■ original must be personally served upon such person ; but if the writ be directed to more than one, the original is to be shewn to each one at the time of service, and a copy served on all but one, and the original delivered to such one (y). When a writ of mandamus is directed to companies, corporations, justices or public bodies, service shall be made upon such and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons ; except where by statute service on the clerk or some other officer is made sufficient service (2:). Writ may be The writ is Usually first granted in the alternative form above fn Tiw firi^ set forth, i.e., commanding the person to whom it is directed to do instance. ^j^g act or acts Specified ; or to shew cause to the contrary thereof, which is done by the return. The Court or a judge may, however, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance (a). This, in former times, was only done in cases where, upon the argument of the order nid, the facts were placed beyond dispute and the law was clear. Where there was any doubt as to either, the alternative writ only was issued, and the respondent was allowed to make a return. "That course was taken because in olden days no writ of error would lie from a mandamus, the grant- ing of it being purely discretionary ; and the Court therefore gave the defendant an opportunity of appearing and arguing, on the return, the question whether the mandamus ought to have been granted. But the reasons for declining to issue a peremptory mandamus, where the Court has doubt and hesitation, have now gone ; because any order for a mandamus may now be instantly appealed against " (6). Where there is no real dispute about the facts, the proper course now, in the opinion of Lord Esher, M.E. (c), is not to inflict a prolongation of litigation upon the parties by issuing a mandamus (y) C. 0. E. 65. (6) Per Lord Esher, M.B., B. v. (2) Id. 66. See R v. Birmingham, Bangor, L. R. 18 Q. B. D. 360. &c.. Railway Co., 1 E. & B. 293. (c) 11. (o) C. 0. R. 67. THE WEIT. 381 to which a return must be made, but to make the writ peremptory in the first instance. The writ when returned must be filed at the Crown Ofiice, along Filing wri*:. with the return. If returnable before a judge it is to be so filed after his decision thereon, with the return and any order made thereon, or a copy of such order (d). Writs have been superseded, on motion, for various reasons : — Superseding as beiag complicated and not agreeing with the order absolute, e.g., where the order absolute being to a mayor to assemble and do the work of a corporation, the writ was for an assembly and to admit all persons having a right to their freedom who should appear and demand it (e) ; as being misdirected (/) ; on the ground that the matter was being litigated before another com- petent tribunal (g) ; because there was not the proper interval between the teste and the return (h). But the Court will supersede a writ only where there is some manifest fault in it (i) ; and not on any ground which is properly the subject matter of a return (k). The application must be by way of motion (supported by affidavits) to a Divisional Court for an order nisi (I). Notice of motion. — Unless the Court or a judge give special leave to the contrary, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing it (m). A copy of the affidavit intended to be used must be served with the notice of motion (n). The Court has on various grounds quashed the writ, on motion : Quashing the e.g., on the ground of its being misdirected (o) ; as varying in some ^" ' material respect from the order absolute {p) ; as not shewing a title (d) 0. 0. E. 233. (») R. y. Ipswich, 1 Barn. 407; B. (e) JR. V. Kingston-upon-Hull, 1 v. Beecher, 8 Mod. 335. Str. 578; B.v. Wildman, 2 Str. 879. (k) Anon., 1 Barn. 362; B. v. (/) See B. V. Norwich, 1 Str. 55, Whahy, 7 Mod. 308. where ultimately, no supersedeas went, (Z) 0. 0. R. 253, 254. as it was agreed to try the matter in (ro) Id. 250. a feigned issue. (n) Id. 256. {g) Gray v. Tench, Comb. 454 ; c/. (o) Anon., 2 Salk. 525 ; B. v. Here- B. V. Bettesworth, 7 Mod. 219. ford, 2 Salk. 701. (A) B. V. St. Andrew's, Eolborn, 7 (jp) B.v. Water Ilaion, 2 Smith, Si; A. & E. 281, where the Court had B. v. Birmingham, 11 A. & E. 27, 28, granted a rule absolute in the first in- note, stance. See B. v. Dover, 1 Str. 407. 382 MANDAMUS. to the relief claimed {q) ; or not shewing by the facts alleged that there was no other remedy (r) ; or shewing on the face of it the existence of a visitor who had jurisdiction over the matter («) ; or where it commands the doing of what cannot be done legally {t), or the performance of a statutory duty in terms wider than those of the statute (w) ; or where it directs one person to command another to do something {x). So where the mandamus to admit to a copy- hold tenement was addressed to the steward only, omitting the lord (y) ; also where one writ was to admit or restore several persons to their offices {z), unless the several persons formed but one officer (a). " It is contended," said Lord Denman in one case (J), " that the requisition of the writ may be partly good and partly bad, and that the valid part may be enforced . . . We must enforce it in the terms in which it was issued, or not at all" It was held that if, on the face of the mandamus, there was no ground for the writ, the defect could not be supplied by matter appearing in the return (c). The Court has refused to quash a mandamus on grounds which might have been shewn against making the order absolute ; e^., that a suggestion on which the motion was made was untrue {d). There is an important distinction between the defective state- ment of a valid claim, and the statement of a defective claim. The former may be cured by a verdict which necessarily involves proof of the facts defectively stated (e). Where the writ commanded the master of a corporation to put the corporate seal to a particular instrument, an objection to the (3) B. V. Eopkim, 1 Q. B. 161 ; B. (m) B. v. St. Fancras, 6 A. & E. 314. V. West Biding, 7 T. R. 48 ; B. v. Col- (x) B. v. Derh/, 2 Salk. 436. lege of Physicums, 5 Barr. 2740 ; B. v. (y) B. v. PmveU, 1 Q. B. 365. St. Pcmcras, 3 A. & B. 535; B. v. (2) B. v. Chester, 3 Salk. 230; 5 Powell, 1 Q. B. 352. Mod. 10 ; Anon., 2 Salk. 436 ; cf. B. (r) B. V. Margate Pier, 3 B. & A. v. Kingstortr^pon-EuU, 1 Str. 578; 220. and case of Andover, 2 Salk. 433. (s) Walker's case, Cas. t. Hard. 218, (a) See B. v. Ipsvnch, 1 Bam. 407. In such a case the writ is said by (6) B. v. St. Pancras, 3 A. & E. Lord Hardwicke to be/eZo de se. 542. (t) Tawny's case, 2 Salk. 531 ; B. (c) B. v. Hopkins, 1 Q. B. 161. V. LitUeport, 6 Mod. 97; B. v. Not- (d) B. v. Stamford, 6 Q. B. 433, tinghim, 2 Bam. 56 ; B. v. St. Pancras, (e) See Delamere v. Beg., L. R. 2 3 A. & E. 535. E. & 1. App. 419. THE WEIT. 383 writ, that it did not sufficiently shew the defendant's control over the seal, was held too late after a return admitting that he had refused to afl&x the seal and claimed the right to withhold it (/). But, as a general rule, the objection to the writ may be taken at any time ; as the Court will, before a peremptory mandamus issues, suffer itself to be informed and examine whether the writ is so framed as to give them jurisdiction {g). As to the motion and notice of it, vide ante, p. 381 Qi). (/) B. V. Kendall, 1 Q. B. 384. Go., 6 B. & 0. 181, 190; per Lord (^) Per Abbott, C. J., B. v. Margate Chelmsford, C, Delamere v. Beg., L. B. Pier Co., 3 B. & A. 224. See B. v. 2 B. & I. App. 426. d, 2 Barn. 132 ; B. v. Led- (K) The Court always required ga/rd, 1 Q. B. 624 (disapproving B. v. notice to be given. See Anon., 1 Wils. Torh, 5 T. E. 66) ; B. v. Brisixil Dock 30. 384 MANDAMUS. CHAPTEE IX. The Eettjen. PAGE 384 384 385 Eetvim must be to first writ Various kinds of return . Ketum of obedience . Obedience to part . . . . 386 Denial of material facts alleged . 386 Alleging new facts .... 388 Sufficiency of return. . . . 390-395 Eetum justifying amotion . 395-397 Eetum justifying suspension . 397 Return justifying amotion from municipal offices . . . 398-402 Customary power of removal . 402 Election obtained by fraud . . 402 Facts justifying removal should be stated 402 Eemoval by part of governing body 403 Irregular removal .... 403 PAGE 403 404 Eetum where there is a visitor . Office held at pleasure . . . Justifying refiisal to admit to office Eeturn in nature of demurrer . When return to be made By whom return to be made 405, 406 Eetum by persons other than those to whom writ is directed Disavowing return . How return is to be made Piling return . Taking return off file Compelling return Quashing return . Objection by demurrer Present procedure Amending return 404 405 405 407 408 408 409 409 409 410 411 412 412 writ. Varions kinds of return. Rctnrn to first Any person by law compellable to make any return to a writ of mandamus sball make his return to the first writ (a). The return to the writ may be (A), that the thing commanded has been done, or (B), to the effect that the mandatory part should not be enforced, either (1) because certain material facts alleged in the writ are denied, this being called traversing the suggestion or supposal of the writ ; or (2), because certain additional facts are af&rmed, this being likened to a plea in confession and avoidance ; or (3), because the writ on the face of it shews no legal right to have the alleged duty performed ; this last beiag in the nature of a demurrer to the writ (6). (a) C. 0. E. 69. (b) " It's an uncontroverted maxim that every subject ought to return the writ [executed] or excuse it." — Per Keeling, C.J., 2 Keb. 168. " It is the duty of the person to whom a man- THE EETUEN. 385 When the return is of obedience (c) to the writ, the words of Obedience, the mandatory part of the writ should be recapitulated in the past, instead of the future, tense, adding, " as by the said writ we are commanded " (d). Even where the thing has been done before the writ issued, this fact must be returned (e). Where it is intended to obey the writ, but the mandate cannot be completely executed by the day fixed for the return, the return should state what has been done by way of compliance, and that the defendants are proceeding with the rest (/). Where a statute imposed on commissioners the duty of executing all such works, &c., " as should from time to time be deemed necessary, proper, or expedient for putting certain banks and bridges in a permanent state of stability and security," and a mandamus was granted ordering them to proceed " to put the banks of the river in a permanent state of stability and security, and to construct the forelands and slopes of the said banks as far as practicable, upon one uniform system," &c., a return that the de- fendants had from time to time and at all times from the passing of the Act, proceeded to execute aU such works " as should be or were from time to time deemed necessary, proper, or expedient for putting the banks in a permanent state of stability and security, and for constructing the forelands and slopes of the banks, as far as practicable upon one uniform system," was held a bad return. If the return had stated that the commissioners thought such and damus is directed to obey the writ, or peremptory mandamus, and I cannot to return a cause for not obeying it," find any authority for saying that a &c. — Per Eyder, 0. J., B. v. Stirling, return of compliance is not a return of Say. 175. See B. v. St. John's Col- compliance within the meaning of the lege, Skin. 359. statute of Anne." (c) In B. V. Justices of Pirehill (d) See form in Appendix. North (L. B. 14 Q. B. D. 13) it was (e) Anon., 1 Bam. 362 ; cf. B. v. argued that a return of obedience to the Tendring,&c., Commissioners of Sewers, alternative writ was not a " return " pro- Lord Ray. 1479. Where the respondent perly so called within the stat. 9 Ann. obeyed the writ and made no return, c. 20 s. 2, but merely a certificate of the Court made absolute a rule against compliance. To which Lindley, L.J., him to pay the costs of the mandamus replied: " I can see nothing in the Act and of the application. B.y. Milverton, or books of practice to justify any such 3 A. & E. 286, note (d). distinction. We are not dealing here (/) See B. v. Ouze Bank Commis- with a return of compliance with a sioners, 3 A. & E. 549, 550. 2 C 386 MANDAMUS. Obedience to part of writ. Denial of material facts alleged. such things necessary, and that they had done them, that would have been sufficient ; it did not state that they had done all they could ; and it was consistent with it that they had done nothing at aU (g). Where the writ commanded the steward of a court leet to hold a Court, impanel and swear a jury, and charge them to elect and swear some person into the office of portreeve, a return that the steward had holden a court leet and impanelled and sworn a jury, and had charged them to elect and swear some person into the office of portreeve, and that the jury found that a person had already been duly elected and sworn into the office, and therefore no person could be elected and sworn into the office as commanded by the writ, was held sufficient ; the steward having obeyed the writ so far as it was in his power by his own acts to do so (h). A return to a mandamus to quarter sessions, to give judgment against certain persons convicted, alleging that the sessions had given judgment, and setting forth the judgment given, is sufficient, though the judgment be erroneous (i). To a mandamus to hear and determine a complaint, a return by justices that they have heard and determined has been held sufficient (k). But where it is desired to make such a return to the first writ, the proper course is to state what the justices have in fact done, and so leave it to the Court to say whether what they have done is or is not a hearing and determination (Z). The return may be of obedience to a part of the mandatory clause, and of new facts which furnish an answer to the rest of it (m). Every material allegation of the writ which is not denied in the return is to be taken as admitted («). Any material allegation intended to be traversed should be expressly denied, and not in a doubtful or circuitous manner (o), (9) lb. (h) B. V. Waiiams, Say. 140. (0 R. V. West Riding, 7 T. R. 467. (h) R. V. Richardson, 1 Wils. 21; R. V. Mainwwring, E. B. & E. 474, 27 L. J. M. C. 278. (T) See per Brett, M.B., R. v. Pire- hill North, L. E. 14 Q. B. D. 18. (m) See R. v. Staffordshire, 6 A. & E. 84. (») See R. V. Ipsimch, 2 Salk. 434; R. V. Maiden, 2 Salk. 431. See per Bayley, J., R. v. Ilchester,4,D. & R. 330. (o) See the judgment in R. y. Keitn doll, 1 Q. B. 383, 384; R. v. Ming- don, 2 Salk. 432. THE RETURN. 387 or argumentatively (p). The return must answer, not the words but the materiaKty of the writ ; a return which seems to be guarded and not to deny the substance is bad (q). A return to a mandamus to admit a person as duly elected, which set forth facts and documents shewing that there was no right in the electors, was held sufficient ; though it did not in direct terms deny the right, as it ought to have done (r). But a return to a mandamus to admit the heir to a copyhold tenement, which did not deny that he was heir, except argumentatively, was held bad (s). To a writ commanding a surveyor of highways to deliver up books which the writ suggested were now in his possession, and which he had refused to deliver up though demanded from him, a return that the defendant had not on the day of the teste of the mandamus, nor since, nor now, nor when they were demanded from him, any books in his possession, was held good ; though it did not state whether he had them in his possession between the times of the demand made and the issuing of the writ, nor what he had done with them (t). Where the writ is to swear in one duly elected, a return that he was not duly elected is good (u) ; though it has been said that the return would have been better without the word " duly " (x). The addition of the reason why he was not duly elected makes no difference (y). (p) i?.v.S«epAe?is, Sir T.Jones, 177; (u) See It. v. Williams, 8 B. & 0. B. T. Brewers' Co., 4 D. & R. 492. 681 ; per Lord Demnan, B. v. St. An- ' (g) Per Lord Mansfield, B'. v. Lyme drew's, 10 A. & E. 739 ; B. v. Twitty, Begis, 1 Doug. 85. 2 Salk. 434, referred to B. v. Ward, (r) B. V. Kendall, 1 Q. B, 366, 382. 2 Str. 894 ; B. v. Sill, 1 Show. 253 ; "We are not prepared to say that a B. v. Kelk, 12 A. & E. 559; Oraw- returnis necessarily bad by reason of ford v. PowBll,BmT. 1013. Also i?. v. this defect, if such facts should be set Wa/rd, 2 Keb. 284 ; B. v. Hereford, forth as fully to conTince the Court, in 1 Keb. 660. point of law, that the right does not (x) Lambert's case, Garth. 170. B. exist as claimed" (per Lord Denman, v. Chester, 5 Mod. 11 ; B.r. Hereford, C. J., p. 382). Cf. B. V. Hearle, 1 Str. 1 Keb. 716 ; Cf. Manaton's case, Sir T. 625. Eay. 365. (s) B. V. Brewers' Co., 4 D. & R. (y) B. v. Aldborough, 10 Mod. 102, 492. per Powell, J. See a return of "no (f) B. V. Bound, 4 A. & E. 139 ; such ofBce in that corporation," B. v. but the Court refused the defendant Dartmouth, 3 Salk. 229. his costs. 2 C 2 388 MANDAMUS. A return that on a quo vjarranto information there had been judgment of ouster against the prosecutor, and that he had never since been elected, was aLso held good («). A return that the prosecutor was not duly elected, admitted, and sworn in, was held bad ; where a similar return, with the word " or " substituted for " and," would have been good (a). To a writ to restore a person elected and admitted as coroner, a return that though duly elected, neither at the time of his said election, nor since that time, nor is he yet admitted or sworn into the ofi&ce, was held good, as a sufficient denial of a material allega- tion of the writ (6). To a mandamus to insert the prosecutor's name on the burgess list, a return that he was not duly qualified was held sufficient (c). One part of the return may not deny a fact which another part has admitted {d). The traverses in the return should be of matters of fact, not of law («). The traverse need not be in terms more precise than those in which the title is asserted in the writ (/). Alleging new K new facts are alleged they must be alleged with certainty {g), and not inferentially or argumentatively Qi). To constitute a good return they must completely answer the mandatory part of the writ. Thus, where the writ commanded the defendants to maintain and repair certain parts of the south bank of a channel, a return that as near as circumstances would admit they had maintained the new course of equal depth and breadth at the bottom, and with equal inclination of the sides, was held bad, as not answering the mandatory part of the writ, but (z) R. V. Eearle, 1 Str. 625. 2 Q. B. 64 ; 5. v. Nottingham, Say. (a) R. V. Lyrn^ Regis, 1 Doug. 85. 37. The allegation in the ahove return is (/) R. v. Dover, 11 Q. B. 260, 278. an instance of a negative pregnant. See (g) See R. v. Ahingdm, 2 Salk. 432 ; also R. V. York, 5 T. R. 75 {per Bui- R. v. Chester, 5 Mod. 10. ler, J.); R. v. Maidstone, 1 Keh. (A) R. v. Stirling, Say. 174; ^jer ""'^^ Hohoyd, J., R. v. Hughes, 4 B. & C. (6) R. V. King's Lynn, Andr. 105. 379 ; R. v. Hereford, 6 Mod, 309; R. (c) R. V. New Windsor, 7 Q. B. v. Stephens, Sir T. Jones, 177 ; R. v. *^- Raines, 3 Salk. 233 ; per Lord Mans- (<£) R. V. Bettesworth, 1 Bam. 299. field, R. v. Lyme Regis, 1 Doug. 181. (e) See R. v. Bristol Dock Co., See R. v. Evans, 1 Show. 282. 733 908 THE BBTUBN. 389 only dealing with matter stated in the writ as a consequence of the omission to repair (i). The return may set forth any number of causes for not obeying the command of the writ, provided they are not inconsistent with each other ; the sufficiency of any one being enough to stop the issue of a peremptory writ (k) : e.g., (1) a denial of the borrowing, and (2) the bankruptcy of the prosecutor, where the mandamus was for the payment of money (I) : that a certain person was not a burgess, (2) that he was not eligible to the office of council- man, and (3) that he was not elected (m) : that a particular person was not duly elected, and (2) that a tribunal authorized to decide upon the election had adjudged it to be void (n) : that S, was elected alderman by a majority of votes and returned as so elected to the court of mayor and aldermen, (2) that a petition having been presented against him the court of mayor and aldermen, having examined into the matter, determined that he was not a iit person to be elected and was not duly elected, and (3) that he was not in fact duly elected (o) : that the applicant was not duly elected, and (2) that there was a custom for the in- habitants to elect and remove at pleasure, and that the applicant was removed pursuant to the custom (p). Where the writ commanded restoration to an office, a return that neither at the time of his election, nor since, has the prose- cutor been admitted, nor is he yet admitted, was held good (q). Though several causes of amotion may be returned they must not contradict one another (r). A return of outlawry of the applicant is good (s). (») B. V. Bristol Dock Co., 2 Q. B. (n) Per Lord Tenterden, B. v. Lon- 64. don, 9 B. & C. 26. (k) See per Lord Kenyon, B. v. (o) jB. y. London, 5 B. & Ad. 233, ArehUshop of York, 6 T. E. 493 ; pffr 2 N. & M. 126. Parke, J., B. v. London, 3 B. & Ad. (p) B. v. Taunton, St. James, 1 271 ; B. V. Old Hall, 10 A. & B. 248 ; Cowp. 413. B. V. New Windsor, 7 Q. B. 917 ; (j) B. v. King's Lynn, Andr. 105, Wright v. Fawcett, 4 Burr. 2041 ; B. 106, distinguishing B. v. Abingdon, V. Cambridge, 2 T. B. 461, 462; B. v. 2 Salk. 432. Tavmton, St. James, TCowp. 413. (r) B. v. Pom/ret, 10 Mod. 108. Q) B. V. Bramcaster, 7 A. & E. See also TFJ-igrA* v. ii'as«;ce«. Burr. 2041; 458. cf. B. V. London, 9 B. & 0. 1. (m) B. V. Cambridge, 2 T. K. 456. (s) B. v. Bristol, 1 Show. 288. ^90 MANDAMUS. To a mandamus to appoint overseers for a particular place, imder 13 & 14 Car. 2, c. 12, it was held a good return that the place was not a village or township (t). A return shewing the existence of a visitor by whom the matter is cognizable will be suficient (u). If the office is one held at will, the return should state a deter- mination of the office by the will of the competent authority (x). The return may be of new facts to part of the mandatory clause and of obedience to the rest of it (y). A matter or inference of law need not be alleged : e.g., the power of amotion by a corporation (s). Sufficiency of In Order to be good the return must shew a sufficient reason for not obeying the mandatory clause of the alternative writ. The Court will not presume for or against its suf&ciency (a). Any one sufficient reason will be enough to sustain the return, though the return should allege other insufficient reasons (6). Impossibility of obedience is a sufficient return : e.g., that the defendant has not got possession of books which he is commanded to deKver up (c) ; that the commission of the defendants as Com- missioners of Sewers expired in four days after the delivery of the writ, and therefore there was not time to make the rate conunanded (d) ; that a railway company's compulsory powers had expired before the mandamus was applied for or issued, and the company could not acquire the land by voluntary convey- ance (e) ; or that without any default on their part they never have been and are not in a situation lawfully to exercise those (0 B. V. WeUeck, 2 Str. 1143. were cited to shew that the party, in (u) See -ffi. V. WTwZey, 2 Str. 1139 ; his return to such a mandamus, is Parkinson's case, 3 Mod. 265 ; 1 Show, hound to shew what he has done with 74 ; R. V. St. John's College, Comh. the thing demanded, this return might 238; R. V. My, 1 Wils. 209, 266. he objectionahle ; but no such autho- (x) R. V. Oxon, 2 Salk. 429 ; .B. v. rity has been cited, and I think none Coventry, id. 430. such exists."— /rf. 142, 143. Cf. R.y. (y) See R. v. Staffordshire, 6 A. & Payn, 6 A. & E. 403-406. ^- °^- id) -B. V. Essex Commissioners of (z) R. V. Lyme Regis, 1 Doug. 149. Sewers, 2 Str. 763. (o) Per Lord Mansfield, R. v. Lyme (e) B. v. Qreat Western BaHway Begis, 1 Doug. 158. Co., 1 E. & B. 780; cf. B. v. Lmidon. (6) See R. v. Exeter, Comb. 197. and North Western RaUtvay Co., 1 E. (c) R. V. Round, 4 A. & E. 139. & B. 199, note (a). Patteson, .J., said : " If any authority THE RETUEN. 391 powers (/). But a return that the capital for the undertaking had not been subscribed, without shewing that the company had tried and failed and was unable to, have it subscribed, was held bad {g). And a bare return of want of funds to discharge a statu- tory duty incumbent on a public body, which did not shew why they were without funds or how they had disposed of their funds, was not considered sufficient (A). Where a mandamus ordered a railway company to lower a turnpike road, in accordance with a statutory obligation, a return to the effect that the existing state of the road was more convenient to the public, was held bad {i). So as to a return justifying, acts of diversion not necessary to the construction of the railway, though they would save expense and inconvenience to the' company (k). To a mandamus to a railway company to take up an award, it is a good return that the land alleged to have been injuriously affected, was not so affected within the meaning of the Lands Clauses Consolidation Act, 1845 (l). In an old case (m), where a writ issued commanding a mayor to swear a person into office, a return that before the emanation of the writ this person was removed from the office, and that another person was elected, admitted, and sworn into it, was held insufficient as not answering the gist of the writ ; for, by procuring another person to be chosen before the party elected can procure a writ, any officer might be l^ept out of his office. When the writ commanded the defendant to take upon himself the office of councilman, a return setting forth a bye-law by which persons refusing to fill the office were subject to a certain fine, which the defendant had paid, was held insufficient ; as the bye-law did not state that the party paying it should be exempt from serving the office, or that the fine was to be in lieu of service (n). (/) B. V. Ambergate, &c.. Railway Railway Co., 2 Q. B. 47, 3 Q. B. 528. Co., 1 B. & B. 372, 381. (i) B. v. Manchester and Leeds (jg) B. V. Great Western Railway Railway Co., 3 Q. B. 528. Co., 1 E. & B. 253. Qe) R. v. Wycombe Railway Co., (h) R. V. Luton Trustees, 1 G. & D. 8 B. & S. 259. 248, 251 ; cf. B. t. Commissioners, &c., (J) R. v. Cambrian Railway Co., of the Fens, 10 A. & E. 557, note (5) ; 10 B. & S. 315. R. V. Eastern Counties Railway Co., (to) R. v. Stephens, Sir T. Eay. 431. 10 A. & E. 531 ; R. v. Manchester, &c., (re) R. v. Bower, 1 B. & C. 585. 392 MANDAMUS. To a writ to admit a person to the freedom of a town, a return that there were five certain court days kept yearly upon which all persons entitled have been admitted, and that notice had been given to the applicant of certain days on which he might have been admitted, notwithstanding which he did not appear, was held bad ; as it did not state that a person could not be admitted except on those five days (o). Where the writ ordered the defendants to pay moneys collected for the relief of the poor, under an order of the Poor Law Commis- sioners, to a board of guardians of a union, described in that order as duly appointed, a return that the guardians were not duly appointed was held bad {p). The defect in their title, if any, ought to have been distinctly set forth, " but the statement that, for some undisclosed reason, the parties charged with a plain duty refused to perform it, because they chose to say, in general terms, that those to whom they are bound are not duly appointed to their of&ce, is wholly insufficient " {q). The case last referred to was distinguished by the Court from the cases where a return of " not duly elected " was held sufficient, in the writs commanding admission to corporate offices. In such cases the person elected has no right to compel admission without shewing a good title in omnibus, and he must be prepared to prove it; if his election, de facto made, is bad in law for any defect, it would be wrong to admit him ; but here the Commissioners had power to form unions, the board to whom the money was ordered to be paid was in fuU exercise of its authority, and the orders of the Commissioners, as to the payment of moneys collected for the use of the poor, had the force of law (r). Where a mandamus commands the admission of any person to an office, a return of plenarty would be improper, as the writ does not determine the question of right (s) ; but a return that such person refused to be admitted was held good {t). Where an amotion is only justifiable on written charges beiug exhibited against the officer, a return to a writ to restore him (o) R. V. Whiskin, Andr. 1. (r) 76. (jp) R. V. St. Andrew, Eolborn, 10 (s) See R. v. Ward, 2 Str. 893. Dis- A. & E. 736. tinguish R. v. Williams, Say. 140. («?) Per Lord Dcnman, id. p. 739. (t) R. v. Jorden, Bull. N. P. 201. THE EETUEN. 393 alleging that " articles " were exhibited against him, but not stating that they were in writing, was held insufficient (u). The return may be bad as relying on a custom not good in law (x). If a custom to remove at will is relied on, the existence of such custom should be positively asserted in the return (y). To a mandamus to restore to an office, it was held a bad return that the defendants did not know that the prosecutor had ever been elected to it (z). As to the sufficiency of returns justifying amotion from office and refusal to admit to it, see farther, post, pp. 395 et seq. Where the exercise of a discretion vested in the defendants is sought to be enforced, it is a sufficient return that they have exercised such discretion (a). The return need not state the reasons why the discretion was exercised as it was, or the grounds of the decision ; " for if a matter is left in the discretion of any individual or body of men, who are to decide according to their own conscience and judgment, it would be absurd to say that any other tribunal is to inquire into the grounds and reasons on which they have decided, and whether they have exercised their discretion properly or not ; if such a power is given to any one, it is sufficient in common sense for him to say that he has exercised that power to the best of his judgment " (&). The Courts have exacted from the defendant the utmost definite- ness and certainty in the allegations of his return, and this not only before but also since the statute 9 Anne, c. 20 (c). A return to a mandamus to restore, " qiu)d non constat nobis " that the prosecutor was ever elected, was held insufficient (d). (u) E. V. JEvwns, 1 Show. 282. v. Bishop of Gloucester, 2 B. & Ad. 158. (a;) S. V. Wix, 2 B. & Ad. 197 ; (c) B. v. York, 5 T. E. 69 ; B. v. Warren's case, Cro. Jao. 540 ; Crips Stirling, Say. 174. Per curiam, B. v. V. Maidstone, 1 Keh. S12. Pom/ret, 10 Mod. 108; B. v. Mon- (y) B. V. Oxon, 2 Salk. 428 ; B. v. mouth, 4 B. & Aid. 496. See B. v. Coventry, 2 Salk. 430. Lancaster, 2 Barn. 430 ; B.y., (z) Basset v. Barnstaple, 1 Sid. 286. Co., 4 D. & E. 492 ; B. v. Bristol Bock (a) See B. v. London, 3 B. & Ad. Co., 9 D. & E. 309, which shews that 255. the old mode of pleading by a protes- (6) Per Lord Tenterden, C. J., id. tando was bad in a return. 271. See also per Lord Denman, B. v. (d) Case of Becorder of Barnstaple, Ouze Commissioners, 3 A. & E. 544 ; Sir T. Bay. 153. See also Anon., B. V. Andover, Lord Bay. 710. ' Cf. B. 1 Vent. 267. 394 MANDAMUS. A return that the prosecutor did not account for corporation moneys received by him, was held bad, as not alleging a request and refusal («). So was a return justifying an amotion on the ground of a specified offence " and other crimes," without specify- ing them (/) ; also a return alleging that the party had been heard in common council, without saying before whom (^) ; and that an " order " was made, disfranchising him, not saying that it was under the corporate seal (h). A return to a writ to restore a deputy, that " non fuit consti- tutus" deputy at the time of the writ, was held bad, as not alleging that he was not then deputy (i). A return by a mayor and corporation that the prosecutor did not take the oath of allegiance " coram nobis " was held bad, as he might have taken it before two justices (k). Where the office removed from was one held during the pleasure of the corporation, a return which shewed this only by a recital, and did not expressly allege that the corporation had the power claimed, was held insufficient Q). As to the manner of alleging that the prosecutor had been summoned, before his amotion for misconduct, see R. v. Glide (m) and JR. v. Wilton (n). As the act of the mayor and a majority of the corporation is the act of the whole, the return should allege the act as that of the mayor and corporation (o). An amotion by them need not he said to be under seal (jp). Where the mandamus was to restore to the office of capital burgess, a return alleging as ground of amotion the non-attendance of the prosecutor at a meeting to which he was summoned for the election of a capital burgess, and averring that the right of such election is in the capital burgesses being the common council, was held bad for uncertainty: it did not definitely assert that the (e) B. V. Wilton, 5 Mod. 259. (I) B. v. Coventry, 2 Salk. 430. (/) Jb. (m) 12 Mod. 28. See also Braith- (jg) lb. waiters case, 1 Vent. 19. (K) Ih. See also B. v. Gloucester, (n) Ubi supra. 3 Bulst. 189. (o) B. V. Shrewsbury, 7 Mod. 203 ; (i) B. V. President and Council of cf. B. v. Abingdon, 2 Salk. 431. the Marches, 1 Lev. 306, 2 Keb. 742. (p) Bighton v. 8tratford-(m-Avon, (k) B. V. Oxon, 2 Salk. 429. 2 Keb. 641. THE RETURN. 395 prosecutor had a right to concur in the election, and ought to have obeyed the summons ; and it was consistent with what it did aver that he had no such right, as it did not appear that all the burgesses were members of the common council {q). Where the writ commanded a mayor to convene a meeting to iill up five vacancies in a select body, consisting of fifteen chief burgesses, a return that no election could be had because there were not within the borough eight legally elected chief burgesses by whom the election could be made, was held bad ; as, though there might not be eight who were legally elected, some of those not legally elected might from lapse of time have obtained unim- peachable titles, so as to leave a majority qualified to elect (r). A return admitting that a meeting of the corporation was valid for some purposes, and averring that it was not a legal assembly for the purpose of electiug a recorder, was held bad for not shewing in what respect they were not a legal assembly for that purpose (s). A return justifying amotion from office, except where the office is Justifying held at pleasure, should, in order to be good, shew (1) a power to remove, actually exercised >by the body which possesses it ; (2) the cause of removal and the existence of such cause ; and (3) that the person amoved was heard in his defence before removal. 1. In the case of a corporation the existence of a power of removal for reasonable cause need not be expressly stated in the return, because such a power is judicially recognised as incident to the corporation, and quite apart from charter or prescription (t). But where the right of removal is claimed and exercised by a select part of the corporation, the return should allege this and state whether it is given by charter, or prescription, or bye-law made by the body having the power to make it (u). If the power claimed by the corporation is to remove ad libitum (2) B. V. Lyme Begis, 1 Doug. 177. ter. Say. 38 : " Such a power is, in- (r) B. v. Monmouthj 4 B. & Aid. deed, incidental to every corporation ; 496. but it never can be exercised by a part (s) See per Lord Kenyon, B. v. of a corporation, unless it is vested in York, 5 T. H. 74. that part by charter or prescription." (*) B. V. Lyme Begis, 1 Doug. 149 ; The same applies to other bodies as Bribe's case, 2 Str. 819 ; B. y. Bichard- well as corporations ; see per Lord son, 1 Burr. 517, 539 ; Haddock's case, Kenyon, C.J., B. v, Faversham, 8 T. R, Sir T. Ray. 439. 356. (u) See per Lee, C. J., B. v. Doncas- 396 MANDAMUS. the return should also shew that the body possessing the power of removal was duly assembled, and exercised it in the proper manner, e.g., by an order under the common seal, where that is necessary (x). The neglect of a subordinate official to summon any member of a municipal corporation was formerly held to invalidate the proceed- ings of the meeting {y). And on this point of being duly assembled, great strictness was required in the return. An allegation that the common council were duly or ia due manner met and assem- bled was held insufficient, for not stating that they were all summoned (2). In one case a return that the prosecutor was removed by thirty of the common councilmen "in the council chamber assembled" was held insufficient, as not shewing that they were then and there assembled as a common council ; for they might be there to feast, or for other purposes (a). Where the power of removal is vested in a select part of the entire body, the return should shew that they have been particu- larly summoned for the purpose (b). 2. Except where there is a power of removing ad libitwrn, the return must set forth the cause of removal, in order that the Court may pronounce upon its sufficiency ; and must also shew that such cause actually existed. The return, according to Lord Mansfield, must set out all the necessary facts precisely, to shew that the person is removed in a legal and proper manner, and for a legal cause ; it is not sufficient to set out conclusions only ; the facts themselves must be set out precisely that the Court may be able to judge of the matter ; the cause of amotion should also be set out in the same manner, that the Court may judge of it (c). Where neglect of duty is the ground of amotion, the return (x) See R. v. Chdllee, Lord Ray. 226. 3 Bulst. 189. {y) See B. v. 8hrewabv/ry, 2 Str. (6) R. v. Carliah, X Str. 385 ; cf. 1051. It is now provided by 45 & 46 Machell v. Kevimon, 11 East, 84, Vict. c. 50, 2nd sched. 7, that " want note (a), and R. v. Dmcaster, 2 Burr, of service of the summons on any mem- 738. her of the council shaU not affect the (c) R. v. Liverpool, 2 Burr. 731; R. vaUdity of the meeting." v. Shrewsbury, 7 Mod. 201; R. v. {z) R. V. Liverpool, 2 Burr. 731. Chester, 5 Mod. 10. (a) R. V. Taylor, 3 SalL 231. THE RETURN. 397 must not allege a general neglect and omission, but must shew the particular instances of neglect and omission, that the Court may judge whether they are a good cause of removal (d). A return that a man obstinately and voluntarily refused to obey several orders and laws made for the good of the borough, was held insufficient, because it did not shew the particular orders or laws disobeyed (e). Where the misconduct had no reference to the particular office from which the prosecutor was removed, the return in that respect has sometimes been held insufficient ; e.g., where the removal was from the office of capital burgess for misconduct in the character of chamberlain (/). Bankruptcy was no ground for removing a corporator at common law (g). The return should also satisfy the Court that the charge has been proved (A). It is not enough to state that the prosecutor was present when the charge was made and did not deny it (i). Suspension. — There appears to the author to be no valid ground of distinction, as regards the foregoing principles, between the case of amotion and that of a suspension for a time (k). 3. It must appear from the return that, before removal on the ground of misconduct, an opportunity was given to the party removed of answering the charges against him (I). " The want of a summons," it is said in one case (m), " is an (d) Per Lee, C.J., B. v. JDoncaster, 2 T. R. 182. Say. 39. (0 ■B^S'^'s case, 11 Ooke, Rep. 99 b ; (e) B. V. Doncaster, Lord Ray. 1566 ; B. y. Gloucester, 3 Bulst. 189 Qper cf. B. V. Shaw, 12 Mod. 113. Coke, O.J.) ; B. v. Aldborough, 10 (/) B. V. Doncaster, Lord Ray. 1564; Mod. 101 ; B. v. Gaskin, 8 T. R. 209 ; cf. B. V. Hutchinson, 8 Mod. 99, and B. v. Smith, 5 Q. B. 614 (both ca.ses B. Y. Newhwry, 1 Q. B. 751, 762, as to of a parish clerk and sexton), and B. misconduct which would justify re- v. Dairies, 9 D. & R. 234 ; B. v. Dar- moval from the office of town clerk. lington, 6 Q. B. 682 ; B. v. Langley (g) See per Lord Mansfield, jR. v. 5 Q. B. 619, note (ff), and the cases re- Liverpool, 2 Burr. 732. See now 45 & ferred to id. p. 622, notes (c) and (d); B. 46 Vict. 0. 50, s. 89. v. Saddlers' Go., 10 H. of L. Cas. 404. (h) B. V. Faversham, 8 T. R. 356. (m) B. v. Cambridge, 8 Mod. 164 ; («') lb. 1 Str. 567 : per Portescue, who refers (k) See however B. v. Guildford, I to the earliest possible precedent on the Keb. 868, 880 ; B. v. Tyther, 2 Keb. point. 250 ; and per Ashurst, J., B. v. London, 398 MANDAMUS. objection that can never be got over." There are, however, some exceptions. As the only object of the summons is to give the accused an opportunity of clearing himself from charges which are the ground of his removal, where a summons is unnecessary for that purpose, its absence will not invalidate a removal; as, e.g., where the accused appears and is heard in his defence {n) ; or where he had positively declared that he would no longer perform the duties of the of&ce (o) ; or where the cause of removal is permanent non- residence (p). Of course it is not necessary in the case of an office determinable at will {q), or by exercise of discretion (r). No particular form of summons is necessary ; but it ought to be such as to give the prosecutor sufficient notice of the charges which he is called on to answer, so that he may come prepared to meet them (s). Even though election and admission to the office have been obtained by the fraud of the prosecutor, his removal without being heard in his defence will not be excused (t). Justifying As already stated, a power of amotion is incident to every amotion irom . / ^ -r . t titij- ^ii/\ municipal Corporation (m). It is necessary, according to Lord Mansfield {x), ° ''^^' to the good order and government of corporate bodies, that there should be such a power as much as the power to make bye-laws. According to the same authority (y) — repeating the judgment in an earlier case — there are three sorts of offences for which an (m) See per Holt, C. J., JR. v. Chalhe, iury, 7 Mod. 202 ; Braithwaite's case, Lord Eay. 226 ; s. c. nam. B. v. 1 Vent. 19. Wilton, 2 Salt. 428. (0 See R. v. Saddlers' Co., 10 H. of (o) See jB. v. Axbridge, 2 Cowp. L. Cas. 404. 523. (u) See per cur. Bracks case, 2 Str. (i)) See B. V. Exon, 1 Show. 259 ; 819 ; per Lee, C. J., B. v. Doncaster, B. V. Truebody, 11 Mod. 75 ; Lord Say. 38, ante, p. 395 ; per Lord Ken- Eay. 1275 ; B. v. Shrewshu/ry, 7 Mod. yon, C.J., B. y. Faversham, 8 T. JR. 356. 201 ; B. V. Lyme Begis, 1 Doug. 149. (x) B. v. Bichardscm, 1 Burr. 539, (?) B. V. Oxon, 1 Str. 115 ; B. v. dissenting from what is stated in Deighton, 2 Keb. 656 ; Warren's case, Bagg's case (11 Kep. 99a.) that there Cro. Jac. 540 ; cf. B. v. Ipswich, 2 can be no power of amotion imless Salk. 435. given by charter or prescription. (r) See per Lord Denman in B. v. (y) B. v. Bichardson, 1 Bmr. 538, Darlington, 6 Q. B. 695, 696. 539 ; B. v. Liverpool, 2 Burr. 732. -(s) See B. V. Glide, 12 Mod. 28. See also i?. v. Der6^, Cas. t. Hard. 154, Per Lord Hardwicke, B. v. Shrews- 155. THE RETURN. 399 officer or corporator may be discharged, viz. : (1) such as have no immediate relation to his office, but are in themselves of so infamous a nature as to render the offender unfit to execute any public franchise ; (2) such as are only against his oath and the duty of his office as corporator [and are to the prejudice of the corpora- tion (2)], and amount to breaches of the tacit condition annexed to his franchise or office ; (3) offences of a mixed nature, as being an offence not only against the duty of his office, but also a matter indictable at common law. Misconduct which is not of the first kind, and has no relation to the duties of the office, will not justify an amotion. A return of an offence of the first mentioned kind should shew that there has been a conviction for the offence ; for, according to Lord Mansfield (a), " it is now established that though a corpora- tion has express power of amotion, yet for the first sort of offence there must be a previous indictment and conviction " ; e.g., cases of general perjury, forgery, libelling, &c. (b). In such cases it is the loss of credit which is the ground of forfeiture, and therefore conviction, which is the ground of infamy, ought to precede the disfranchisement (c). Bribing a burgess to vote for a member of parliament (c?) has been held an offence of the first kind, and therefore requiring a conviction in order to a good return. As to the second class of offences, viz., those against his oath and the duties of his office, no conviction need be stated in the return («). Indeed, as observed by Lord Mansfield (/), where the offence is merely against his duty as a corporator, he can only be tried for it by the corporation. (z) Per'Lov6.'H.3.riwioke,B.Y. Derby, B. v. Gloucester, Holt, 450. Cas. t. Hard. 154. (d) Parret's case, cited Cas. tj Hard. (a) if. V. Richardson, ubi swpra. 155. But in B. v. Hutchinson, 8 Mod. (6) It was held in a previous case 99 ; the Court were divided in opinion (^Anon., 2 Show. 183) that where a as to the necessity of a conviction, conviction disabled a man from holding where the prosecutor had brihed one of the oflSce of alderman, a return of the the corporation to vote for a mayor, offence without stating a conviction for (e) See B. v. Derhy, Cas. t. Hard, it, was good. 154, 155 ; B. v. Hutchinson, 8 Mod. (c) See judgment in B. v. Derby, 99. Cas. t. Hard. 154, 155; B. v. Lane, (/) B. v. Richardson, 1 Burr. 539. Lord Ray. 1304. See per Holt, C.J., 400 MANDAMUS. Under this head seem properly to come returns that an alder- man deserted his office, and absented himself from the council (£) ; and that contrary to his oath spoliavit et dilaceravit certain Court records (A). A return of an absenting himself from sessions which did not hinder the holding of a Court or the validity of the acts of the Court, was held bad (i). A return which did not shew a total desertion, but only a temporary absence from the borough of which a man was alderman, was held bad {k). That an alderman had lent money to young men by the hands of his wife was held an insufficient ground of amotion (Z). A return setting forth an offence of the third kind is also good, without a previous conviction. Some difficulty on this point was caused by a passage in Baggfs case, that " if a party be convicted of an offence against his duty, and to the prejudice of the corporation, it is good cause to remove him," which would seem to imply that a previous conviction is necessary ; but, according to Lord Hardwicke (m), this is not so, " for if the whole paragraph be considered, it is plainly spoken only of such cases where there is no power of amotion," A return was held good which justified amotion on the ground of the prosecutor having, when the council met, with several other persons riotously assembled in the street over against the common hall, to the disturbance of the council, and did then and there assault the constables and an alderman as he was going to the common haU, and prevented him and several other persons from going to {g) City of Exeter v. Glide, 4 Mod. shall forthwitli declare the office to be 33, 36 ; Comb. 197 ; cf. B. v. Leicester, vacant and signify the same by notice 4 Burr. 2087, and B. v. Truebody, 11 signed by three members of the conncil Mod. 75. 45 & 46 Vict. c. 60, s. 39, and comitersigned by the town clerk now provides that "if the mayor, or an and fixed on the town hall, and the alderman, or councillor is (except in office shall thereupon become vacant." case ofilhiess) continuously absent from Qi) Wigan v. PakmgUm, 1 Keb, the borough, being mayor for more 597. than four months, or being alderman (i) B. v. Pomfrel, 10 Mod. 108. or councillor for more than six months, (it) B. v. Exmi, 1 Show. 258 ; B. v. he shall thereupon immediately become Leicester, 4 Burr. 2087. disquaUfied and shaU cease to hold the (Q B. v. Gloucester, 3 Bulst. 189. office. In any such event the councU (m) if. v. Derby, Cas. t. Hard. 155. THE RETURN. 401 the business of the corporation, &c. ; that he had been summoned to shew cause why he should not be disfranchised, and did not appear : and an objection that there should have been a previous conviction was overruled (n). A return justifying amotion on the ground of erasing the books of the corporation, which did not aver that the entry erased was such as it should be, or that the rasure was to the detriment of the corporation, was held insufficient (o). It has been said that slanderous words may justify amotion from a town council; but, in order to do so, they must have reference to the corporation, and not to the character of a particular member of it, as e.g., an alderman (p). Some kinds of misconduct which have been held to justify removal are not easily ranged under any of the three heads men- tioned by Lord Mansfield, e.g., that, in case of an alderman, he was a common drunkard (q). Other grounds which have been held sufficient, in returns justi- fying amotion from corporate offices, are, that the prosecutor was not elected (r) ; or that he was not elegible for election (s) ; or non-performance of some condition precedent, as that he did not take the oaths required by statute (t) ; or that he has taken another office incompatible with that from which he was removed (w) ; or that he was elected for a Umited period which has expired (x). But it was held that if the return alleged the ground of invalidity in the election, and that ground was insufficient, the return was bad (y). In one case it was held a bad return that the prosecutor was (n) R. V. Derby, uhi sv/pra. Had- (r) B. v. Cambridge, 2 T. E. 456. dock's case, Sir T. Bay. 435, was a (s) S. v. Cambridge, ubi supra. somewhat similar case. (0 -B. v. London, 12 Mod. 17 ; S. (o) B. V. CMke, Ld. Bay. 226. See v. Love, 12 Mod. 601. this case commented on, Cas. t. Hard. («) See B. v. Sandmch, 2 Keh. 92 ; 155. B. V. Pateman, 2 T. E. 777. ( p) Jay's case, 1 Vent. 302. A (x) See B. v. Du/rham, 10 Mod. 146, custom to disfranchise for speaking where in the case of an annual office a opprohrious words of an alderman was return was held had which alleged that held had in Clark's case, 1 Vent. 327. the prosecutor was anrmatim eligibilis. See also per cur. Earle's case, Garth, instead of saying eligibilis pro uno 176. anno tantwn. (q) B. V. Taylor, 3 Salk. 231 ; 3 (y) Warden v. Bous, 7 Mod, 323. Bulst. 189 (nom. £. v. Oloy£ester). 2 D 402 MANDAMUS. Customary power of removal. Election ob- tained by frand. Facts justify- ing amotion should be stated. incapable of being elected alderman on account of non-residence {z) ; but this decision would probably not now be followed {a). The return of a custom to remove ad libitum was held good in the case of a counciLLor (h) ; but bad in the case of an alder- man (c). Such a power of removal ad libitum, has sometimes been conferred by letters patent {(!). A return was upheld which shewed a customary right for each mayor to remove the existing town clerk, and appoint a new one {e). It seems that a body corporate cannot itself remove a corporator on the ground that his admission was procured by fraud practised on itself; for, as observed by Blackburn, J. (/), it would, in exercising such a power, necessarily act as judge in its own cause, with every conceivable temptation to judge partially. The return justifying amotion from municipal offices or privi- leges should set out the particular facts precisely, to shew that the person is removed in a legal and proper manner, and for a legal cause {g). The matter should be so alleged that the Court may be able to judge of it and determine whether it be a sufficient, cause or not {h). The return must also shew that the party has been summoned to answer for his misconduct {i) ; or at least has been heard in his defence (Jc) ; and that the removal has taken place at a properly convened meeting {t). When the ground of removal is non-residence, the return need not shew a previous summons to come and reside (m). (z) B. V. Doncaster, Say. 40. (a) See B. v. Cambridge, 2 T. K. 456, as to councillors. (b) S. V. Coventry, 2 Salk. 430; Warren's case, Cro. Jac. 540. (c) Crips V. Maidstone, 1 Keb. 812 ; Warren's case, uii supra. (d) See Dighton's case, 1 Vent. 82 (the case of a town clerk). (e) a. V. Campion, 1 Sid. 14, 15. (/) J?. V. Saddlers' Co., 10 H. L. ,Cas. 423. See also per Crompton, J., p. 437, 438 ; per Ciockbuin, C. J., p. 455, 456. See also the judgment of Lord Chelmsford. It was unnecessary ex- pressly to decide the poiut in this case. (^) Per Lord Mangfield, B. v. Liver- pool, 2 Burr. 731. (A) Per Holt, C.J., B. v.Ahingdon, 2 Salk. 432 ; Sraithwait^s case, 1 Vent. 20 ; Crips v. Maidstone, 1 Keb. 812 ; Warren's case, Cro. Jac. 540. (i) See Exeter v. Glide, 4 Mod. 37 ; Bagg's case, 11 Bep. 99 ; per Holt, C. J., B. V. Exeter, Ctomb. 198 ; B. v. Bray- Jield, 2 Keb. 488 ; B. v. Glide, 12 Mod. 28. (A) B. V. Chalke, Lord Kay. 225. (0 See B. V. Shrewsbwry, 2 Str. 1051. See now, as to corporations, 45 & 46 Vict. c. 50, 2nd sched. 7. (to) B. v. Lyme Begis, 1 Doug. 149. THE EETURN. 403 Where the power of amotion was by charter in the mayor, bailiffs, and such burgesses as had been mayors, a return justifying an amotion "per Twajorem et iurgenses, autJwritate et secundum chartam " was held sufficient ; as it would be intended that all the burgesses were present and agreed (n). A return justifying amotion from such an office as that of recorder, on the ground of not attending to the duties of the office, in order to be good, should shew a general neglect or refusal ; a determined neglect, a wilful refusal (o). Where a person was removed from his freedom of a company for misconduct, a return stating the misconduct, and alleging that the prosecutor, being present at a meeting of the company, was called on to shew cause why he should not pay certain forfeitures imposed by the company's bye-laws, but that he did not shew any cause nor ask for time to enable him to do so, but declared that he would not pay the forfeitures, was held bad, as not shewing that the charge against the prosecutor was proved (p), A return justifying the suspension of an attorney from practising in a Court within the County Palatine of Chester, on the ground of contemptuous words spoken to the presiding officer, who there- upon suspended him, was held good (q). Where a power of removal is not given to any particular part of Removal by a body, it rests with the body at large ; and a return justifying j^g body!^^"'' amotion should shew that this was the act of the whole body. If the amotion was by a part of the body, a return to be good must shew that such part had the power of removing (r). If the return shews that the prosecutor was removed in an irregular , , J -n J. 1, i J -i? but iustifiable irregular manner, a peremptory mandamus will not be granted, if removal, the return shews also that there was good ground of amotion (s). Where there is a visitor, who has jurisdiction in the matter, the Return where return need not shew the cause of amotion (t). " Should it ever yig^ton * (ji) Braithwaite's case, 1 Vent. 19, (r) See per Lord Kenyon, R. v. 20. Faversham, 8 T. K. 356 ; per Lee, C. J., (o) Per Lord Mansfield, B. v. Wells, B. v. Doncaster, Hay. 38. 4 Burr. 2004; cf. B. v. Bristol, 1 (s) B. v. Griffiths, 5 B. & Aid. Show. 288. B. V. Ipswich (^Serjeant 731. Whitaher's case), 2 Salk. 434. («) See B. v. Chester, 15 Q. B. 513, (p) B. V. Fishermen of Faversham, 519; per Holt, C.J., Philips v. Bury, 8 T. R. 352. 2 T. B,. 356 ; Apiphjord's case, 1 Mod, (q) ParJcer's case, 1 Vent. 331. 82. ■ ■' 2d 2 404 MANDAMUS. Office held at pleasure. happen that there is a cause of amotion over which the visitor has not jurisdiction, it lies upon the party to shew it who seeks to take it ad aliud exaTnen " (u). In the case of colleges, &c., where there is a visitor, if a manda- mus to restore is granted, a return of a sentence of deprivation for enormous crimes (without specifying them) affirmed by the visitor, is sufficient (x). Where an office is held at pleasure, a return that by an exercise of such pleasure the prosecutor was removed, is sufficient (y). The return need not state the manner nor the cause of his removal (2) ; nor that he was previously summoned (a). Justifying A retum, to a mandamus to admit, that the prosecutor was not admit to office, elected or not duly elected to the office to which he seeks admission has been held sufficient, without specifying in what particular respect his title to it is defective (6). So has a retum that he has failed to perform any preliminary to his admission required by law, e.g., the taking of the oaths required by statute (c). Where the writ commanded the admission and swearing in of a churchwarden who " had been duly nominated, elected and sworn," a retum that he was not duly elected into the place and office of churchwarden was held good (d). But to a writ which merely stated that he had been elected, a retum that he had not been duly elected was considered bad (e). Where the writ was to swear in two churchwardens as " dtMe decti," a return that they were not duly elected, which did not add nee cdiqwis eorum, was held insufficient (/). (u) Per Lord Campbell, 15 Q. B. 519, 520. (x) Appleford's case, 2 Keb. 861 ; 1 Mod. 8 ^Bqiily, &c., of Brecknook, I (i) B. v. CMek, 16 L. J. M. C. 65, k^b. 33. 9 Q. B. 942. (/) Pe- Lord Denman, B. v. 8t. {k) B. v. Payider, 14 L. J.. M. 0. Andrm's, 7 A. & E. 284. Distinguish 182. 408 MANDAMUS. Efiect of death, resignation or removal of person to whom writ is directed, in such a case. Disavowing rrtnm. How to be made. The appKcation is made by motion, supported by affidavit, to a Divisional Court, for an order nisi (I). Where xmder the rule just cited, the return to a writ of man- damus is expressed to be made on behalf of some person other than the person to whom the writ is directed, the proceedings on the writ shall not abate by reason of the death, resignatim, or removal from office of that person, but they may be continaed or carried on in his name ; and, if a peremptory writ is awarded, it shaU be directed to the successor in office or right of that person (m). Where the return was not really that of the person or persons from whom it professed to come, the Court has allowed him or them to come in and disavow it (n), and to make alother return (o). The application was made before the return was filed, and vas to stay the filing of it (p). But where a mayor made a return which was not that of the majority of the corporation, the practice appears to have b;en not to allow them to disavow it, but to leave them to their femedy against the mayor by criminal information (q). The return might be withdrawn by leave of the Court (tJ. The return is usually made on a separate parchment mnexed to the writ, the latter being indorsed as in the form of retim given in the Appendix, post. A short return, such as of obedience, &c., may be madi on the back of the writ itseH (s). When made by anybody other than a corporation aggregate, it should be signed with the name or names of the person o" persons (0 C. 0. R. 253, 254. The case is not one of those mentioned in r. 255, in which notice is necessary. It would be prudent, however, to give all parties notice. (to) C. O. E. 74. 1 Wm. 4, c. 21, ss. 4 and 5, contained provisions of a somewhat similar kind. (n) See per Holt, C. J., B. v. Abing- don, Holt, 440, 2 Salk. 431. (o) Id. (p) Id. At the time these cases were decided, the return coild not be filed without obtaining the lave of the Court. (q) B. V. Abingdon, ubi upra ; B. V. Boskins, Cas. t. Hard. 181 Of. case of Abingdon, Garth. 499. (r) B. V. Barker, Burr. 1279. (s) In B. V. Birmingham,^., Bail- way Co:, 1 E. & Bl. 294, Cokidge, J., said : " Mr. Corner, of the Crc^n Office, telk us that returns are Aequently made on copies:" THE RETURN. 409 making it; but a return not so signed but indorsed, "the answer of A. B., &c.," was in one case held suificient {t). The return of a corporation aggregate is most appropriately made under its common seal ; but this is not necessary (m). In former days the Court sometimes required a return on oath {x). If the writ is returnable in Court, the writ and return are to be Filing return, filed in the Crown Office. If the writ is returnable before a judge, it is to be filed after the decision of the judge thereon, with the return and any order made thereon, or a copy of such order (y). It is filed, when left at the Crown Office, by the proper officer. It must be filed within the time limited in the writ, unless an extension of such time is obtained. It is irregular to file a return after the death of the person who makes it (z) ; but this does not apply to the death of the person to whom the writ is directed, where another person is allowed to make the return {a). After filing it cannot be amended or altered without leave of the Court (&). The Court has ordered a return improperly filed to be taken off the Taking return file, e.g., where filed after the death of the person who made it (c). " " ^• But the validity of a return or the truth of its contents will not be determined in this summary way {d). If the writ be not returned according to the exigency thereof, Compelling the prosecutor may obtain an order of course (e) at the Crown '^*'"™- Office to return it, which order shall require the return to be made within four days next after service of the order, if served in London or Middlesex, and within eight days in all other cases (/). Should this order be disobeyed, an application may be made for an attachment, on affidavit of service of the order and non-com- pliance therewith (^). (0 B. V. St. John's College, Skin. (y) C. 0. R. 233. 368 ; B. V. Oxford, Palm. 451. (z) See B. v. Holmes, Burr. 1641. (u) Powell V. Price, Comb. 41 ; B. (a) 0. 0. R. 74. V. St. John's College, id. 279 ; case of (b) London v. Estwick, Styles, 33, Thetford, 1 Salk. 192 ; B. v. Exeter, 35 ; B. v. Holmes, 3 Burr. 1644. 12 Mod. 126. Contra, Mmgan v. Car- (c) B. v. Holmes, 3 Burr. 1641. marthen, 3 Keb. 350. (d) See B. v. Payn, 6 A. & B. 403. (sc) See for example, Jay's case, (e) C. 0. R. 252 (i). 1 Tent. 303 ; per Hale, C. J., Manaton's (/) Id. 233. case, Sir T. Ray 365. {g) Where the writ was served per- 410 MANDAMUS. The application for an attachment for contempt is by niotion for an order nisi ; and the order nisi must be personally served (A.).' Such an application, it seems, may be made without an order having been obtained or served to return the writ, on proof of personal service of the writ (i). Should an ofi&cer, upon disallowance of one return, make a second bad one, the Court in former times woidd have granted an attachment (k) ; also where the return was of a frivolous kind made to avoid the justice of the Court (I). An attachment would probably now be granted only where the return was intended to be of a contemptuous character. Quashing. If the retum, taken as a whole, did not supply a justification for disobedience to the mandatory clause of the alternative writ, it might, according to the old practice, .be quashed on motion, on the ground of insuf&ciency (m). The return might also be quashed on the ground of the incon- sistency or repugnancy of the causes returned, e.g., that a person was elected alderman, but not having received the sacrament within a year he was refused admission by the mayor and aldermen, &c., and, at the end of the return, quod non fuit electus (n) ; or where the retum (1) alleged as cause of amotion of a burgess that he did sonally, personal service of the rule was Latch. 229). not required ; but where the writ was (m) See if. v. St. Andrevfs, Bolbom, not personally served, the Court, before 10 A. & E. 736 ; R. v. Oundle, 1 A. & granting an attachment, reqviired per- E. 283 ; R. v. Market Street, Man- sonal service of the rule (1 Gude's C. P. Chester, 4 B. & Ad. 333, note (a) ; R. v. 184; Comer's C. P. 227, 228). March, 2 Burr. 999; R. v. Wix, Qi) C. 0. E. 261. 2 B. & Ad. 197. Per Lord Denman, (i) 1 Gude's C. P. 184, 185. As to R. v. St. Katharine's Dock, 4 B. & Ad. the old practice, see per curiam, R. v. 363. The Court sometimes granted an Thetford, 6 Mod. 25 ; R. v. Rye, attachment for making a frivolous 2 Burr. 798. return to a mandamus (iJ. v. Robin- (k) See per Holt, C.J., Anon., 12 son, 8 Mod. 336. See R. v. Payn, 6 A. Mod. 410. & E. 405), or a shuffling retum [r. v. (0 B. V. Robinson, 8 Mod. 336. In Dorchester, cited 1 Bam. 82). Ab 1 Keb. 101, the case of a bishop of officer was also liable to be amerced for Durham is referred to, who was fined a bad return (per Holt, C.J., Anon., £2C00 for not returning a mandamus. 12 Mod. 410 ; see R. v. Raines, 2 Salk. And a mayor was fined £5, besides 233. having an attachment granted against (») R. v. Norwich; Ld. Kay. 1244. him, for a similar cause (R. v. Oxford, Cf. R. v. Buckingham, 10 Mod. 173. • THE RETURN. 411 not attend at the sessions according to his duty, and (2) alleged matter proving that he had never been elected, so that he had no right to attend (o) ; or where a return by a corporation denied that there was a valid meeting of the corporation on the day in question, and at the same time set forth various acts done at it on which the corporation relied as legal and valid acts ( p). But an inconsistency, where the matter was merely surplusage, was regarded as immaterial {q). A return justifying an amotion on the grounds (1) that the prose- cutor was not duly elected (r) ; (2) that there was a custom to remove at pleasure, and that he was removed pursuant to such custom, was held not ' to be inconsistent or repugnant. " There is no repugnancy," said Lord Mansfield, "in saying that he was not duly elected, but that being in fact elected, they had, according to an ancient custom, removed him from the ofi&ce " (s). And the Court might quash parts of the return, and leave the prosecutor to plead to the rest {t). A return was never quashed because filed too late ; being once on the file, it stood (w). On shewing cause against a rule to quash his return, the defen- dant might urge any objection shewing that the writ ought never to have issued («). On the return being quashed, a peremptory mandamus generally issued ; but this was not always the case {y). All the instances above cited of quashing a return were before Objection by the statute 6 & 7 Vict. c. 67. By sect. 1 of that Act it was pro- vided that wherever the prosecutor wished or intended to object to (o) B, V. Pomfret, 10 Mod. 108. {u) Per Lord Denman, R. v. Ken- i^p) B. V. Mayor of York, 5 T. E. doll, 1 Q. B. 374. 66, 74. (k) See per Parke, J., R. v. St. (j) Lord Hawley's case, 1 Vent. Katharine's Dock Co., 4 B. & Ad. 363 ; 144. per ABbott, C.J., B. v. Margate Pier (r) Of. B. V. Old Hall, 10 A. & E. Co., 3 B. & Aid. 223, 224. It was not 248. necessary to serve the order absolute to (s) B. V. Taunton, St. James, 1 quash ; it was drawn up aud entered Cowp. 413. at the Crown Office. (t) See B. V. Cambridge, 2 T. R. {y) See per curiam, B. v. Baines, 456, 461, 462. Cf. per Lord Denman, 3 Salk. 233. Cf. B. v. Griffiths, 5 B. & jB. v. North Midland Bailway Co., Aid. 731, and B. v. Mayor of London,, 11 A. & E. 955, note (c). 2 T. li. 177. 412 MANDAMUS. Present pro- tedare. Amending. the validity of a return, he should do so by way of demurrer to the writ, in such and the like manner as was practised and used respectively in personal actions. Previously to this enactment objection to the validity of the writ coidd not have been taken by demurrer ; and the object of the Act, as stated in the preamble, was to substitute for the existing pro- cedure, by which the legal sufficiency of returns was determined, another procedure on which error could be brought (z). The procedure by demurrer has in turn been abolished (a) ; and objection to the suf&ciency of the return is now to be taken by the prosecutor's reply. \ He post, p. 416. Leave to amend an insufficient return was sometimes given after motion to quash (&). Amendments of clerical mistakes and, generally, amendments " tending to the furtherance of justice " have long been freely per^ mitted (c). The Court would not, however, at the instance of the prosecutor compel the defendant to amend his return {d). See now the large powers of amending given by r. 12, Order xxvm., of the Supreme Court Eules and Orders (e). (z) Comer, C. 0. Pr. 230 (1st ed.), is of opinion that the power of the Court to quash a return was not taken away by the Act. (a) Order xxv., rr. 1 and 2, C. 0. E. 136. See next Chapter. (6) See B. v. London Bock Co., 5 A. & E. 163, note (o). (c) E. V. Chichester, 1 Show. 273; -B. V. Lyme Regis, 1 Dong. 136, 137 (see note 4) ; B. v. Marriott, I D. & E. 166; B. V. Bristol, 1 Show. 288; rf. B. V. Orampond, 7 T. E. 699. (d) B. V. Marriott, ubi supra. (e) C. 0. E. 299. ( 413 ) CHAPTER X. PllOCEEDINGS SUBSEQUENT TO EeTURN. PAGE PAGE 413 Obtaining copies of proceedings . 417 Trial 417 413 Verdict 417 414 Damages 417 Signing judgment .... 418 414 New trial 418 415 Efi'ect of death of prosecutor 418 415 Costs 419 416 Costs, mode of application for . 419 416 Error 420 416 Appeal 420 416 Protection to persons obeying writ 420 416 Action for false return . 420 417 Information for false return . 421 417 Peremptory mandamus . 422 417 Quasbing or setting aside peremp- 417 toiy writ 423 417 Execution 424 417 Against wbom attacbment issues 425 417 Practice previous to 9 Anne, c. 20 Practice under 9 Anne, c. 20, and 1 Wm. 4, c. 21 . . . New procedure ..... Discretionary refusal of peremp- tory writ New writ Pleadings subsequent to return . Non-compliance with rules . Powers of amendment . Demurrer Where no issue of fact involved . Where issue is one' of fact . Interpleader Special case Directing an issue .... Settlement of issues .... Admissions of fact .... Notice of trial, &c Notice to admit, &c Peeviously to the statute 9 Anne, c. 20, s. 2, applicable to Muni- Practice cipal ofi&ces only, extended to all other cases by 1 Wm. 4, c. 21, 9™nne^^'°20. s. 3, the prosecutor was not allowed to traverse, by pleading, the truth of the return. His only remedy was an action on the case (or, where the right involved was not a private but a public one, a Criminal Information) for the false return; and this he was not permitted to bring before the sufficiency in law of the return had been first determined. These statutes not only enabled the prosecutor to plead to, or under 9 Anne, traverse^ all or any of the material facts alleged in the return, but ^ ^^^"^^ 21 also allowed the person or persons making the return to reply, take issue, or demur to the prosecutor's pleas ; and the proceedings were otherwise assimilated to those in an action. If the prosecutor succeeded in his action for a false return, or 414 MANDAMUS. on the pleadings substituted for it by 9 Anne, c. 20, 8. 2, and 1 Wm. 4, c. 21, s. 3 (repealed by 46 & 47 Vict. c. 49, s. 3), he was entitled to a peremptory mandamus ; but, in order to obtain it, he had to apply to the Court on motion, supported by affidavits stating the facts of the case. The motion was for a rule nisi for a peremptory mandamus, against which cause might be shewn ; and the peremptory writ was granted only after the rule had been made absolute. Two exceptions were introduced by 6 & 7 Vict. c. 67, ss. 1 and 2, viz. (1) where the Court overruled a demurrer to a return, it might by its judgment award that a peremptory man- damus should issue ; and (2) in case a writ of en-or was brought, the Court of Error might also by its judgment award that a peremptory writ should issue. New procedure. This cumbrous procedure has now given way to one simpler and more expeditious, by which the prosecutor, whenever he obtains judgment on an issue of law or fact going to the root of the return, may by the judgment obtain forthwith the issue of a peremptory mandamus. Yiiepost, p. 416. By 'No. 136 of the new Crown Office Eules, when any return is made to the first writ of mandajnus, the applicant may plead to the return within such time and in like manner as if the return were a statement of defence delivered in an action ; and, subject to these rules, this pleading and all subsequent proceedings, including pleadings, trial, judgment and execution, shall proceed and may be had and taken as if in an action. But, as already stated, the Court or a judge may, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance (a). Discretionary The Court retains to the last its discretionary power of refusing refusal. ^, . •. • , , , the peremptory writ, even in cases where the prosecutor succeeds in his traverses of the return, or the return itseK is held bad : e.g., where the mandamus was to restore, and immediately after restoration the applicant might again be removed (b) ; or where it appears from the return that, from any other cause, he ought not to be restored (c). (a) C. 0. E. 67. See B. v. Fox, 2 (c) See per curiam, JR. v. Raines, Q. B. 246. 3 Salk. 233, (12). (6) B. V. GriffitJts, 5 B. & Aid. 731. PEOCEEDINGS SUBSEQUENT TO RETURN. 415 The opinion of Blackburn, J., given in 1863 (d), was opposed to this. " Though on the rule," he remarked, " the Court may refuse to grant a mandamus, if upon the whole the judges think it clear that no good end could be obtained, because at that stage of the pro- ceedings the Court can exercise discretion, and has the means of ascertaining all the facts which should guide it in the exercise of its discretion ; yet when the writ has issued, the peremptory writ ought to be granted or refused according to what appears to be the legal right on the record ; for then the Court must give a judgment on which error may be brought, and therefore must proceed on those grounds which may be brought into the Court in error ;" and he pointed out that there were no means of bringing to the know- ledge of the Court in error those collateral matters which might shew whether it was or was not discreet to issue the writ. For these reasons he was of opinion that " judgment ought to be given in any case of mandamus according to what appears on the record to be the legal right, and not according to discretion." But cessanfe ratione, cessat ipsa lex : for the Court of Error exist- ing at the time this opinion was delivered is now substituted a Court of Appeal, which rehears the whole case, on notice of motion in a summary way, with full discretionary power to receive further evidence (e). Where there was a mistake in the peremptory writ, the Court New writ, permitted a new one to issue (/). As to the pleadings subsequent to return, the time for delivering Pleadings them, &c., see the rules set forth ante, pp. 181-184, when dealing with t" re^Yrn" qtw warranto ; all of which apply to the case of mandamus also {g). TJnder the old system of pleading in mandamus, the prosecutor met the defendant's return by a plea, to which the defendant might reply, the prosecutor rejoining, &c. ; the nomenclature of the pleadings being thus the reverse of that in ordinary actions. Now, as the return is treated as a statement of defence (A), the prosecutor will meet it with a reply, to which the respondent may rejoin, &c. ; so that the names of the pleadings are the same as those in an action. (d) R. V. Saddlers' Co., 10 H. L. Gas. referred to 1 Gude, C. P. 191. 423, 424. (ff) 0. 0. E. 293. (e) Order lviii., rr. 1, 4. (A) Id. 136. (/) E. V. Lyme Regis, 20 Geo. 3, 416 MANDAMUS. Where the return to the alternative writ was one of uncondi- tional compliance, it was argued, on the construction of Order Lin., r. 9, of the Supreme Court Eules, 1883, that the prosecutor could not traverse the return by pleading, and that his only remedy was by action for the false return ; but it was held, by a Divisional Court and the Court of Appeal, that the prosecutor coidd plead to such a return, denying its truth (i). Eule 136 of the new Crown Office Eules expressly applies to all returns to the first writ of mandamus. Demurrer. As all pleadings and proceedings subseq^uent to the return are to be as in an action (k), a demurrer is no longer allowed (l). Any point of law may be raised in the reply to the return (m) ; and by consent of the parties or by order of the Court or judge it may be set down for hearing and disposed of (n). Where no issue Where a point of law is raised in answer to a return or any only a 'point of Other pleading in mandamus, and there is no issue of fact to be ^^- decided, the Court shall, on the argument of the point of law, give judgment for the successful party, without any motion for judg- ment being made or required (o). Where judgment is so obtained the applicant shall be entitled forthwith to a peremptory writ of mandamus to enforce the com- mand contained in the original writ ; and the judgment shall direct that a peremptory writ do issue (j?). Where the Where the issue joined is one of fact, and the prosecutor obtains ac . j^(jgjjigQ^^ jjg jg alsQ entitled forthwith to a peremptory writ ; and the judgment shall direct that it do issue (q). Delay. Where the prosecutor, after return made, unreasonably delayed taking any further step, the Court made absolute a rule to pay the costs of opposing the issue of the writ unless, within a given time, the prosecutor proceeded to traverse or impeach the return (r). Jion-com- The rules set forth, ante, p. 74, as to the effects of non-com- p lance. pliancc, are applicable to the case of mandamus (s). Amendment. As to the powers of amendment which the Court now possesses, (i) R. V. PirehOl North, L. R. 13 (o) C. 0. B. 70. Q. B. D. 696, 14 Q. B. D. 13. (p) Id. 71. (k) Id. 136. (q) Id. 71, 136. (0 Order XXV., r. 1. (r) B. v. Dartmouth, 2 Dowl. N. S. (m) Id., r. 2. 980. (") Id. (g) c. O. R. 303. PROCEEDINGS SUBSEQUENT TO RETURN. 417 vide aTite, pp. 182-184; all the rules there set forth being applicable in the case of mandamus {t). Whenever a proceeding by interpleader would be proper, the interpleader, provisions of Order LVii. of the Supreme Court Eules, 1883, are to apply (m). These rules enable the Court or a judge, where the question is Special case. one of law, to order that a special case be stated for the opinion of the Court (x). As to special cases generally, vide ante, p. 84 {y). The rules also empower the Court or a judge to direct the trial Directing an issue. of an issue of fact (z). As to the settlement of issues where they are not suf&ciently Settlement defined, see Order xxxiii., r. 1. As to admissions of fact and judgment thereupon, see Order Admissions. XXXII., rr. 4 and 5. All subsequent proceedings up to and including trial, judgment, Notice of trial, and execution, are to be the same as in an action (a). See the rules set forth ante, pp. 189 et seq., all of which (substituting " prosecutor " for " relator ") are applicable to mandamus. As to notices to admit and produce, and as to discovery, in- Notice to admit, &c. spection and interrogatories, vide ante, pp. 191 et seq. Copies of the mandamus and return, and traverse or other plead- Obtaining ings thereupon shall, when required, be made at the Crown Office ceedings. and delivered to the respective parties or other parties requiring the same on payment of the proper charges (h). As to the various modes of trial, the obtaining a trial at bar. Trial, making up the record, the jury process, &c., vide ante, pp. 79 et seq. The verdict may cure a defective statement of a valid claim in Verdict. the writ (c). By the statutes 9 Anne, c. 20, ss. 2, 3, and 1 Wm. 4, c. 21, s. 3 Damages. (which allowed the return to be traversed), in case of a verdict for the prosecutor, or judgment given for him on demurrer, or by nil dicit, (t) C. 0. E. 299. under the old practice, see R. v. Bye, (tt) Id. 75. Burr. 798. Ix) Order Lvn., r. 9. (a) G. 0. R. 136. (y) For examples of special cases, see (6) Id. 138. See Appendix, post, R. V. London Dock, 5 A. & E. 163 ; pp. 615 et seq. R. V. Stafford, 7 East, 521. (c) See Delamere v. R., L. R. 2 E. (z) Order LVII., r. 7. For an example & I. App. 419. 2 E 418 MAXDAilUS. or for want of replication or other pleading, he might recover his damages and costs in such manner as he might have done in an action on the case for a false return ; and in case any damages should be so recovered against any person or persons making the return, such person or persons should not be liable to be sued in any other action or suit for the making of such return. Both of these enactments are repealed by 46 & 47 Vict. c. 49, s. 3 ; but it has been held that the procedure under them is preserved by Order lxxii., r. 2, and Order lxviil, r. 1, of the Supreme Court Eules, 1883, in all cases where no other procedure is substituted for it (d). The method provided by these repealed statutes for enabltug the prosecutor to obtain damages and costs being thus preserved, it is not necessary to bring an action for a false return, according to the old common law method of proceeding. It was contended in one case (e) that damages and costs were recoverable under these statutes only where the prosecutor might have recovered damages in respect of a particular injury in an action on the case for a false return ; and that they were not recoverable in cases where no private but only a public right was concerned, and where, consequently, the remedy before the statutes was not by action but by criminal information. But the Court (of Queen's Bench, af&rmed by the Exchequer Chamber) held that a successful prosecutor was entitled to his damages and costs in all cases, whether an action for a false return on the ground of a particular injury sustained by him would lie or not. Where no injury to a private right has been done, the damages can, of course, be only nominal ; and where the jury in such a case omitted to find damages, the judge who tried the cause was held entitled to order, from his recollection, the verdict to be entered on the postea for nominal damages (/). Without damages, according to Lord Denman (cj), there could be no costs. As to the mode of entering judgment, vide ante, pp. 199, 200. A new trial may be moved for as in an action. For the pro- cedure, vide ante, pp. 88, 89 (/i). {d) See R. v. PirehiU, L. R. 14 of Lords to be a nullity : KynasUm v. Q. B. D. 20. Shrewsbury, 2 Str. 1051. (<) R. V. FalJ, 1 Q. B. 636. (^) B, y. Fall, vin supra. (/) Ih. A verdict for the Crown (A) For an example see R. v. Man- without damages was held bv the House dester, 9 Q. B. 464. PEOCEEDINGS SUBSEQUENT TO RETURN. 419 The new Crown Office Rules have no provision relating to the Effect of death death of the prosecutor ; though they deal (i) with the case of the ^"^'^"'^ "''■ respondent dying, where he claims no right or interest in the subject-matter, or where his functions are merely ministerial. The Irish Court of Queen's Bench held that they had no power to grant the personal representative of the deceased prosecutor liberty to continue the mandamus proceedings (j) ; but this was in 1855. Of necessity, the proceedings must in many cases abate by reason of the death of the prosecutor ; as where a mandamus is asked to compel his election, admission, or restoration to an office. But where the right sought to be enforced is not of this purely personal kind, there is no reason why the death of the prosecutor should cause an abatement ; e.g., in the case of a claim to compensation for lands compulsorily taken. And as all the proceedings subsequent to return are now to be as in an action (k), the provisions of r. 1 of Order xvil. of the Supreme Court Eules, 1883, are applicable in all cases where the duty sought to be enforced is one which the respondent owes also to the prosecutor's representative or successor. The costs of and incident to all proceedings are now in the dis- Costs. cretion of the Court or judge ; provided that where any matter or issue is tried with a jury, the costs shall follow the event, unless the judge by whom it is tried, or the Court, shall for good cause otherwise order (I). As to the costs of proceedings in the name of a person whose functions are merely ministerial, see No. 73 of the new Crown Office Eules, and ante, p. 407. And, generally, on the subject of costs, see the rules set out in the Appendix, ^os^, all of which are applicable to the case of mandamus. Every application for the costs of a mandamus shall, unless the When and how- Court or a judge shall otherwise order, be made before the fifth day ^^^te to'b? ^°' of the sittings next after that in which the right to niake such "'^'*^- application accrued, and shall be upon notice of motion to be served eight days before the day named therein for moving (m). (i) 0. 0. R. ralis of Trinity Term, 1867, ordered (J) B. V. Waterford, &c.. Railway that application for the costs of a man- Co., 4 Ir. C. L. R. N. S. 249. damns should be made within two {k) C. d. R. 136. terms of the obeying of a writ (7 B. & (i!) OrderLXV.,r.l; OrderLxvin.,v.2. S. 399). The following cases dealt with (ot) C. 0. R. 77. A Segula Gene- 2 E 2 420 MANDAMUS. Error. Appeal. Protection to persons obey- ing writ. Action for false return. The party moving must leave, at the Crown Office Department, a notice for the production in Court of all the affidavits filed in support of and in opposition to the original order (n). Proceedings in error, as well as bOls of exceptions, have been abolished; and an appeal to the Court of Appeal, by notice of motion in a summary way, substituted (o) ; no petition, case, or formal proceeding other than such notice of motion being henceforth necessary. All the rules of Order Lvm. of the Supreme Court Eules and Orders, 1883, apply to mandamus {p). See these various rules set forth ante, pp. 210-212. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof {q). The old common law procedure by action on the case (r) for a false return referred to ante, p. 413, has not been abolished, and may still be had recourse to (s) ; though the changes introduced by 9 Anne, c. 20, enlarged by 1 Wm. 4, c. 21, and continued by Crown Office Etde 134, will probably render it obsolete. As a return might be quashed if bad in law, or if merely frivolous, the action has been held maintainable only in respect of a return which had been held good in law {t). An action would lie for a return true in words but false in substance (u). If the prosecutor obtained judgment in the action, he was entitled (on motion to the Court for the purpose) to a peremptory man- damus, if the action had been brought in the Queen's Bench, but the question of costs : R. v. Allen, L. R. 8 Q. B. 76 ; LvMow Union v. Bir- mingham Union, 31 L. T. N. S. 587. («) C. 0. R. 78. (o) Order Lvni., r. 1. Error weis held to be a supersedeas to a peremptory man- damus : Ending v. Newel, 2 Str. 983. O) C. 0. R. 216. (ry) Id. 72. (r) See for examples Crawfc/rd v. F(yu>ell, 2 Burr. 1013; Rich v. Pilh- ington, Carth. 171 ; L'utler v. Palmer, 1 Salk. 190; Enfield y. HiUs, Sir T. Jones, 116 ; Vaughan v. Lewis, Carth. 227 ; -Soane v. Ireland, 10 East, 2.59 ; Freeman v. Phillips, 4 M. & S. 486; Nightingale v. Marshall, 2 B. & C. 313; Faulkner v. Elger, 6 D. & B. 517. (s) See the judgments in B. v. Pirehai NoHh, L. B. 14 Q. B. D. 17- 21. (0 Com. Dig. Mandamus (D. 6); Enfield v. Hills, 2 Lev. 236. (tt) Braithv}aite^s case, cited 1 Doug. 159. PROCEEDINGS SUBSEQUENT TO KETUBN. 421 not if brought in any other Court (x). On reversal, however, of its own judgment for the defendant (by the Exchequer Cham- ber or House of Lords), the Court granted a peremptory man- damus (y). All who joined in the mandamus might join in the action for a false return (z) ; and the action, being one of tort, might be brought against any of the persons who made the return, without joining the others (a). It was confined to cases of private right, the remedy in cases of a public right being a criminal information (6). The action was local and must have been laid, at the election of the plaintiff, in the county where the return was made, or in the county where the Court in which it was recorded, sat (c). But local venue for the trial of any action is now abolished, except where otherwise provided by statute (d). Production of the writ and return filed in the Crown Office was held sufficient proof of the return having been made by the defendant (e). And, where the action was brought in any other Court than the Queen's Bench, the propriety of issuing the mandamus was not allowed to be questioned in the action (/). Where a public right only was involved, and consequently no Criminal action could be brought for individual injury sustained by the f°^.''J.^g''/°° prosecutor, the only common law method of proving the return return, false, and thereby entitling the prosecutor to a peremptory man- damus, was a criminal information against the person or persons who made the false return (g). (x) See per Holt, O.J., B. v. Green, Anon., 12 Mod. 515. Skin. 670 ; Anon., 2 Salk. 428. (d) Order xxxvi., r. 1, of the Su- (y) Foot V. Prowse, 2 Str. 697. preme Court Rules and Orders. (z) See Oreen and Others v. Pope, (e) See B. v. Chapman, 6 Mod. 152. Lord Ray. 125; Anon., 3 Salk. 202; (/) Green and Others v. Pope,Lori cf. B. V. Andover, 12 Mod. 332 ; Butler Bay. 125, 126. See and distinguish V. Bews, id. 349, 371. Clarke v. Leicestershire, &c., Canal Co., (a) Bich V. Pilkington, Carth. 171 ; 6 Q. B. 898, 902. See also B. v. Mar- cf. the fifth ruling in B. v. Chapman, gate Pier Co., 3 B. & Aid. 220, and 6 Mod. 152. B. V. Ledgard, 1 Q. B. 616. (6) See per Lord Hardwicke, B. v. (g) " Here there cannot he an action, Spotland, Cas. t. Hard. 184; B. v. for a false return, because no one is Fall, 1 Q. B. 636. particularly interested ; so there is no (c) Lord V. Francis, 12 Mod. 408 ; remedy but an information, and there 422 MAXDAMUS. After verdict for the Crown, a fine was imjxjsed on the defendant, and a peremptory mandamus was obtainable on motion. The information was granted against particular persons, even where the return was under the common seal of a corporation (h). Since the decision in E. v. Fall (i) in 1841, that the statute 1 Wm. 4, c. 21,4iad in effect done away with the distinction between matter of public interest and matter of individual damage, so far as regards the remedy by mandamus (k), prosecutors have been able to traverse the truth of the return in cases relating to public as weU as to private rights ; and the remedy by information has become unnecessary. Peremptory The peremptory vmt is in the same form as the alternative writ man amus. ^^^^ granted, with the omission of the words " or that you shew us cause to the contrary thereof." like the alternative writ, it is issued at the Crown Office De- partment of the Central office (I). It is to be prepared by the solicitor or party suing it out, and to be written or printed on parchment ; and, before being sealed, it must be indorsed with the name and address of such solicitor or party, and if sued out by the solicitor as agent, with the name and address of the principal solicitor also ; and it is to be entered at the Crown Office in a book to be kept for the purpose (m). It must also bear date on the day on which it is issued, and be tested at the Eoyal Courts of Justice, London, in the name of the Lord Chief Justice of England (n). The peremptory writ should not differ from the alternative writ in any material particular. The Court has in days of greater strictness refused to grant a peremptory writ in a form at all different from that of the alternative writ; saying that the writ being a direct contrariety in the aifi- against justices, if. v. Pettiward, 4 davits, it is the course of the Court to Burr. 2452 ; cf. R. v. Lancashire, 1 grant an information lo try the fact." D. & R. 485 ; R. v. Corbett, Sayer, Per Lord Hardwicke, R. v. Spotland, 267. Ca.s. t. Hard. 185. (i) 1 Q. B. 636 ; ante, p. 418. (h) See case of the Surgeons' Co., 1 (k) See per Lord Denman, C.J., 1 Salk. 374 ; and for examples of infor- Q. B. 649. mations against mayors, R. v. Chap- (J) C. O. B. 229. man, 6 Mod. 152 ; R. v. Abhigdon, 12 (m) Id. 230. Mod. 308 ; Anon., Lofft, 185 ; and (n) Id. 231. PROCEEDINGS SUBSEQUENT TO RETURN. 423 must be. enforced in the terms in which it first issued, or not at all (o). Service. — It is issued and served in the same manner aS' the alternative writ (p). Beturn. — The only permissible return to the peremptory writ is one of obedience. The Court will not even allow a return stating an attempt to comply with the writ and the causes of failure {q). An order of course to return the writ may be drawn up at the Crown Office without motion for the same (r). The Court may quash the peremptory writ if convinced, on any Quashing or ground, that it ought not to have issued ; e.g., if it appears that the peremprory defendant has no power to do that which the mandamus requires ^"*- him to do (s). And the Court has allowed the validity of the peremptory writ to be questioned, even on an application for an attachment for not obeying it (t). If, after judgment for the Crown, the defendants voluntarily perform the duty sought to be enforced, the issue of a peremptory writ is unnecessary, a mere waste of time and expenses ; and the Court will quaSh it on motion {u). A peremptory writ has also been set aside where it issued whilst cross rules, as to how the verdict should be entered, yet remained to be argued (x). The peremptory writ will not, however, be denied merely on the ground that the defendants are no longer occupants of the office which would enable them to obey it, when they might have obeyed the first writ whilst in office (y). " Though it may be a very good reason for not proceeding against them for disobedience, that they are now out of office, it is no reason why the writ should not go so as to entitle the prosecutor to his costs " {z). (o) See the judgments in B. v. St. (t) iJ. v. PooZe,! Q.B. 616 ; IG.&D. Pcmcras, 3 A. & B. 542, 543; B. v. 728. London, 13 Q. B. 1, 41 (per Parke, B.), (u) B. v. Saddlers' Co., 4 B. & S. it is different as to the rule, id. ; B. v. 570; 32 L. J. Q. B. 337 ; B. v. King's Leicester, 7 D. & B. 373. Lynn, Gude's C. P. 192. {p) Vide ante, p. 380. (a;) B. v. Baldwin, 8 A. & B. 947. (?) B. V. Poole, 1 Q. B. 616. \y) B. v. Allen, L. R. 8 Q. B. 69 ; (r) C. 0. R. 252 (i). ' 42 L. J. Q. B. 37. (s) See In the matter of Long, 14 (z) Per Blackburn, J., L. R. 8 Q. B. L. J. Q. B. 146. 76. 424 MANDAMUS. Execution. Execution is to proceed as in an action (a). See the various rules as to execution set forth ante, pp. 214- 220. The judgment may be enforced by writ of attachment or by committal (6). Attachvunt. — A writ of attachment cannot be issued without the leave of the Court or a judge. It must be applied for on notice to the party against whom the attachment is to be issued (c), who is thus entitled to shew cause in the first instance (d). The application should be supported by an affidavit of service of the peremptory writ. On the application for an attachment, objection may be taken to the validity of the peremptory mandamus (e). Seqioestration. — Any judgment or order against a corporation wilfully disobeyed may also, by leave of the Court or a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by writ of sequestration against their property (/). Preecipe. — ^As to the necessity of filing a prmcvpe before issuing any writ of execution, the mode of doing so, and the manner of endorsing it, vide ante, p. 215. As to the mode of issuing, preparing, sealing, and testing writs, vide ante, pp. 215, 216. The Court or a judge, besides or instead of proceeding against the disobedient party for contempt, may direct that the act re- quired to be done may be done, so far as practicable, by the party by whom the judgment or order has been obtained, or some other person, appointed by the Court or judge, at the cost of the dis- obedient party; and, upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a judge may direct, and execution may issue for the amount so ascertained and costs (g). (a) C. O. R. 136. shewn against the rule, which was dis- (b) Order XLii., r. 7, C. 0. K. 217. charged or made ahsolute in the ordi- (c) Order XLiv., r. 2, C. 0. E. 217. nary way. See 1 Gude's C. P. p. 185. (ri) The old practice was to move for (e) See R. v. Foole, 1 G. & D. 728 ; a rule nisi for an attachment, on affi- 1 Q. B. 616. davits of service of the peremptory (/) Order xlu., r. 31. mandamus. Cause was subsequently (g) Order xlii., r. 30, C. 0. E. 217. PROCEEDINGS SUBSEQUENT TO RETURN. 425 The general rule is that all those to whom the writ is directed Against whom are liable to attachment for disobedience to it ; but there is an igs„es_ exception in the case of a corporation : an attachment will not be granted against the whole body, but only against those individual members of it who refuse to execute the writ Qi). A writ has been directed to the inhabitants of a parish gene- rally ; and those inhabitants on whom it should be served would be liable to punishment for disobedience (^). An attachment was, in one case (Ic), granted against the two bailiffs of a borough, though one of them was desirous of obeying the writ, but was unable to do so owing to the action of the other j the reason being that they were both to be considered as one of&cer (V). (h) £. Y. Poole, 1 Q. B. 616 ; 1 G. against all, though when they are before & D. 728. " Where a mandamus is the Court the punishment will be pro- directed to a corporation to do a cor- portioned to their offence." B. v. porate act and no return is made, the &Zqp, Buller's N. P. 201, cited 1 Gude, attachment is granted only against ; C. P. 189. those particular persons who refuse to (i) Per Lord Tenterden, C.J., B. v. pay. obedience to the mandamus ; but Wix, 2 B. & Ad. 203. where it is directed to several persons (k) Case of Bridgnorth, 2 Str.. 808. in their natural capacity, the attach- (Z) S. o. 1 Barn. 53. ment for disobedience must issue PART IV. PROHIBITION. Object of the jurisdiction. Whence the writ i CHAPTER I. Nature axd Extent of the Jueisdiction. Object of the jurisdiction Whence the writ issued . To what Courts issued Prohibition to Privy Coiincil PAGE . 426 . 426 . 427 .'429 PAGE Enumeration of Courts prohibited 431 Prohibitions to public bodies . . 433 Ancient writ to prohilrit waste . 434 " As all external JTirisdiction, whether ecclesiastical or civil, is derived from the Crown, and the administration of justice is com- mitted to a great variety of courts, hence it hath been the care of the Crown that these courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ of prohibi- tion was framed " («). A prohibition, according to Blackstone (b), is a writ .... directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof ; upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. Though the writ issued most frequently (and, according to Blackstone, properly only) out of the Court of Queen's Bench, it might also issue out of the Court of Chancery, the Court of Common (a) Bac. Abr., tit. Prob. " All lawful usurpation of the prerogative, and a jurisdiction is derived from and must resort to force unwarranted by law." be traced to the royal authority. Any Fer Willes, J., Mayw, &c., of Ixmdoa exercise, however fitting it may appear, v. Cox, L. Pi. 2 E. & I. App. 254. of jurisdiction not so authorized, is an (6) 3 Cum. 112. NATURE AND EXTENT OF THE JURISDICTION. 427 Pleas, or the Court of Exchequer (c) ; but, whenever issued out of the Court of Chancery, it was either not returnable at all, or return- able only in the Queen's Bench or Common Pleas (d). In former times it could be obtained from a Court of Common Law only in term time, whereas the Court of Chancery could grant a prohibition in vacation as well as in term time (e). Lord Eedes- dale, in the Irish Court of Chancery (/), refused to entertain an application for a prohibition in term time, when the Common Law Courts were open, saying that Lord Thurlow had also refused to do so (g). The Petty Bag Act of 12 & 13 Vict. c. 109, s. 48, gave the control of the writ, when issued out of Chancery, to the Courts of Common Law (h). In the opinion of Lord Coke, there was no court which might To what not be restrained by prohibition. " We here in this court," said he, in one case (i) " may prohibit any court whatsoever, if they transgress and exceed their jurisdiction. And there is not any court in Westminster Hall but may be by us here prohibited, if they exceed their jurisdictions ; and all this is clear and without any question." This view of the matter appears to have lasted some time, though I can find no reported case in which a prohibition was actually granted by the Queen's Bench to any of the courts of common law at Westminster (k), or to the Court of Chancery (Z). (c) It is said in 2 Roll. Abr. 318, (g) See also Be Foster, 3 Jur. N. S. that the courts of law in Chester might 1238 ; He Bateman, L. R. 9 Eq. 660. grant a prohibition to the spiritual Qi) Per WlUes, J., Mayor, &c., of court there; and in Com. Dig. Prohib. 3, Londonv. Cox, L. R. 2E.&I. App.291. it is said that the Com't of Great Sessions (i) Warner v. Suckerman, 3 Bulst. in "Wales might do the same, referring 120. to Winn's case, 1 Sid. 92, where the (k) In the Year Book 38 H. 6, 14, reporter adds a qusere. there is a case beginning thus : " A (d) Accordiug to Coke (4 Inst. 81), prohibition was sued out of Chancery- it was not returnable ; but if not obeyed directed to the justices of the Common the Court of Chancery granted an Bench to make attachment, &c.'' But attachment returnable in B. R. or C. P. Eyre, C.J., says with reference to it : In Bacon's Abr. tit. Prohibition (A) it " The first line of that case, after all is said to have been returnable in B. II., the pains we have taken, remains alto- or C. P. ' gether unintelligible " (Jefferson v. (e) Anon., 1 P. Wms. 476, case 135. Bish>p of Durham, 1 Bos. & P. 126). (/ ) Montgomery V. Blair, 2 Sch. & (0 The Exchequer Division made Lef. 135j 136. an order restraining an action brought 428 PROHIBITION. In one case (m), temp. 25 Car. 2, a defendant at law, against whom judgment had been recovered, having filed his bill in Chancery to be relieved from this judgment, and the Court of Chancery having overruled the plaintiffs plea of the judgment, the plaintiff moved to have the Court of Chancery prohibited. Hale, C.J., directed that the plaintiff should move the Court of Chancery to have the plea set down again to be heard, and when it should be overruled again, then the Court would consider whether a prohibition should be granted. But nothing more is told us of the case. In a later case (n), a prohibition was moved for by a pei-son claiming as purchaser of certain lands, to stay a sequestration of them under a decree in a Chancery suit against the defendant in that suit. Holt, C.J., refused, on the ground that the appH- cant might bring his action at Common Law, if turned out of possession ; adding, that if the motion for a prohibition had been made on behalf of the defendant in the Chancery suit, it would be another question. In 1819, an application was made for a prohibition to be directed to the Lord Chancellor sitting in bankruptcy ; but it became un- necessary to decide the question whether a prohibition would lie, as the Court was of opinion that there had been no excess of juris- diction (o). In delivering the judgment of the Court, Abbott, C. J., said : " We wish not to be understood as giving any sanction to the supposed authority of this Court to direct a prohibition to the Lord Chancellor sitting in bankruptcy. We do not decide against such an authority, because we have not heard the question fully argued. It will be time enough to decide that question when it necessarily arises, if ever it shall do so ; which is not very pro- in the Chancery Divisioa and re- for a similar reason, been restrained moving it into the Exchequer Divi- by injunction ; the Attorney-General sion, on the ground that the matters in having filed an information on the question in the action concerned Her revenue side of that Division, involv- Majesty's revenue and privileges ; s. 24, ing the same questions as those in the sub-s. 5, of the Judicature Act, 1873, action (Attorney-Generai v. Barker, being held to be not binding on the L. R. 7 Ex. 177. Crovm (Attorney-Oeneraiv. Constable, (m) King v. Welby, Sir T. Kay. L. R. 4 Ex. D. 172). An action of 227. trespass brought on the plea side of (n) Davy's case. Lord Bay. 531. the Exchequer Division had previously, (o) Ex parte Cowan, 3 B. & A 123. NATURE AND EXTENT OF THE JURISDICTION. 429 bable, as no such question has arisen since the institution of proceedings in bankruptcy, a period little short of 300 years. If ever the question shall arise, the Court whose assistance may be invoked to correct an excess of jurisdiction in another will, without doubt, take care not to exceed its own " (p). The matter is now one of merely historic interest, as the Courts of Chancery, Common Pleas, Exchequer, and Bankruptcy, have ceased to possess a separate existence, being all merged in the High Court of Justice by the Judicature Act, 1873, and the Bankruptcy Act, 1883 ; and by sect. 24, sub-sect. 5, of the former Act, it is pro- vided that, " no cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction." The fusion has put a stop also to the scandal of going from one court to another, and repeating in one court an application which had been refused, on the same materials, by other courts of co-ordinate jurisdiction (q). The case of the Judicial Committee of the Privy Council stands Privy Council, in a like position to that of the Court of Chancery before the Judi- cature Acts. The authority to restrain by prohibition any excess of authority on its part is several times asserted ; but we find the Courts always evading an express decision of the point ; nor is any case reported in which the asserted authority has ever been actually exercised. In 1838 the Court of Queen's Bench was asked to prohibit the Privy Council from proceeding with an appeal from the Arches Court on a question of church rates, on the ground that the rate was bad ; but the Court refused the application. Lord Denman, C.J., say- ing: "If, in the progress of the cause, the Ecclesiastical Court should commit any error, if they do anything against common law or Act of Parliament, we may then interfere " (r). The case of the Judicial Committee of the Privy Council, as now (p) lb. 130. no other superior court or judge should (g) See per Lord Campbell, in Ear- grant the writ, unless the second applica- rington y. Ramsay, 2 B. & B. 669. tion were on grounds difierent from In the case of applications for prohi- those on which the first apphcation was bitions to county courts, sect. 44 of founded. 19 & 20 Vict. c. 108, provided that on (r) Chesterton v. Farlar, 7 A. & E. refusal by any superior court or judge 713. 430 PROHIBITION. the ultimate Court of Appeal in ecclesiastical matters — having transferred to it (by 2 & 3 Wm. 4, c. 92) the jurisdiction of the old Court of Delegates — ^was very fully considered by almost all the judges in the recent case ot Martin v. Mackonoehie (s) ; and the weight of judicial opinion, as expressed in the Court of Appeal, was strongly against the existence of a jurisdiction to prohibit such a tribunal, though it was unnecessary to decide the point. Cockburn, C. J., indeed, in the court below, asserted the existence of the jurisdiction in language as uncompromising as that of Lord Coke (ante, p. 427) : " It is the province of this Court to restrain all tribunals not forming part of the High Court of Justice, or having appellate jurisdiction over it, within the limits of their respective jurisdictions; and among the tribunals so within its restraining authority are the Ecclesiastical Courts. Of these, the Judicial Committee of the Privy Council, in its character of a court of appeal from these Courts, forms a part, and is therefore, as such — however high its position and authority in other in- stances — so long as it is exercising ecclesiastical jurisdiction, sub- ject to our controlling jurisdiction by way of prohibition " (t). In the Court of Appeal, Brett, L. J., said (u) : " Whether in any case prohibition would lie to the Privy Council, or to any litigant or officer who should be about to execute an order made in council upon the advice of the members of the Judicial Committee, I think it is unnecessary to determine. It seems very difficult to say that it would lie. I am unwilling to say, without further argument, that it would not." Cotton, L.J. (x), also expressed himself as " not of opinion " that a prohibition could issue against the Judicial Committee. And Lord Coleridge said: "I am quite unable to accede to the position that the Judicial Committee of the Privy Council can be prohibited, in the exercise of its functions, by the judges of any portion of the Supreme Court " (y). Thesiger, L.J. (z), declined to express an opinion on the point, as it was not argued and it was unnecessary to do so ; but a perusal of his judgment (8) L. E. 3 Q. B. D. 730 ; 4 Q. B. D. (x) Id. 741. 697 ; 6 App. Cas. 424. (y) Id., p. 783. See the reasoning (0 L. R. 3 Q. B. D. 747. See also on p. 784. Ex parte Smyth, 2 C. M. & R. 748. (z) Id., p. 722. (a) L. R. 4 Q. B. D. 755. NATURE AND EXTENT OF THE JURISDICTION. 431 leaves the impression tliat his opinion was the same as that of Lord Coleridge. In the House of Lords neither Lord Selborne, Lord Cairns, or Lord Watson made any reference to the point ; but Lord Black- burn, after remarking that when the appeal from the Ecclesiastical Courts was transferred to such a body as the Judicial Committee, it might have been thought that the restraining jurisdiction of the temporal Courts was no longer needed, added : " the Legislature has not thought fit to take away the prohibition to the Ecclesiastical Courts." And later in his judgment he remarked (a) : " I think, if we can suppose such a thing, a sentence of the Judicial Committee imposing imprisonment or the pillory, would be such a novelty that the Court, in prohibition, would be justified in saying that it was wrong, and, disregarding its authority, to grant [sic] a pro- hibition " (&). Prohibitions have been issued to Ecclesiastical Courts of every Courts to kind (c) ; to Convocation (d) ; to the Palatine Courts (e) ; the uois^^vf'"' Duchy Courts (/) ; the Vice-Chancellor's Court at the Universities ; 's™«d. the Mayor's Court of the city of London (g) ; county courts (h) ; courts martial, naval and military (i) ; the Courts of the Stan- naries (k) ; to the railway commissioners ; to coroners (I) ; Quarter . Sessions (m) ; justices ; courts of request (n) ; and to the Salibrd Hundred Court (o). (a) L. E. 6 App. Gas. 452. (g) See post, pp. 471 e( seq., and Blac- (6) In Qorham v. Bishop of Exeter, quiere v. Hawkins, 1 Doug. 378. 15 Q. B. 52 (where the ground of (h) Seepost,-p either a prohibition or an injunction, the latter and not the lormer should be granted, where it is a shorter and cheaper mode of attaimng the same end (6). Where deci- jf g, party appeals to a superior Court from the determination sion of inferior ir ./ jr j: j. Court has been of an inferior tribunal, and the superior Court afarms the existence HigTcourt. ° of jurisdiction on the part of the inferior Court, can he apply for a pi^ohibition to any other division of the Supreme Court ? The point arose in an Irish case (c), in which the existence of juris- diction on the part of justices to determine a complaint in a summary way was affirmed (on a case stated) by the Court of Queen's Bench. The judgment of the Queen's Bench having been pleaded to a declaration in prohibition ordered by the Lord Chan- cellor (Lord O'Hagan), his Lordship, on demurrer, held the plea bad, notwithstanding 20 & 21 Vict. c. 43, s. 6 ; considering the judgment of the Queen's Bench not of such force and finality as of itself to nullify the jurisdiction of the Court of Chancery ; that an ineffectual exercise of the right of appeal did not, in a fit case, forbid a prohibition; and that failure before one Court was no sufficient bar to access to another {d). But this decision of the Lord Chancellor was reversed by the unanimous judgment of the Irish Court of Exchequer Chamber (e). (a) Per Brett, L. J., Denaby, &c., (c) Devonshire v. Foote, Ir. L. B. 5 Co. V. Manchester Railway Co., 3 Nev. Eq. 314. & M. By. Cas. 443. {d) Page 318. (6) Eedley v. Bates, L. E. 13 Ch. D. " (e) Devonshire v. Foote, Ir. L. B. 7 502. In one case, in the time of Lord Eq. 365. The report only states the Hardwicke, the application was for an fact of the reversal of the Lord Chan- injunction instead of a prohihition ; cellor's decision. Dimn V. Coatee, 1 Atk. 288. ( 463 ) CHAPTEE III. Applications of the peeceding Peinciples. PAGE Ecclesiastical Courts : — General rules as to prohibition 463 Antiquity of jurisdiction . . 464 Matters not triable by Ecclesi- astical Court .... 464 Where part of matter only beyond jurisdiction . Prohibition after sentence . . 468 When existence of question as to custom is not ground of prohibition 469 Offence punishable also tem- porally 469 Submission to ji^risdiction . 470 Mere irregularities of procedure 470 Appeal distinguished from pro- hibition 470 Yice-Chancellor's Court at Uni- versities 470 Mayor's Court of City of Lon- don: — An inferior Court .... 471 Where cause of action does not arise within City . . . 471 PAQB Prohibition after removal of judgment into superior Court 472 Effect of s. 15 of Mayor's Court Act, 1857 473 Custom of foreign attachment 473 County Courts : — Matters excluded by statute 475-478 Errors in procedure . . . 478 Errors corrigible on appeal . 479 Where jurisdiction depends on contested facts .... 479 Acquiescence disentitling to prohibition 481 Other Courts : — Quarter Sessions .... 482 Salford Hundred Court . . 482 Liverpool Court of Passage . 482 Justices 482 Coroners 483 Railway Commissioners . . 483, 484 Where remedy by appeal, not prohibition 484 1. Ecclesiastical Couets. Theee is a want of precision in the language of the Courts when General rules deciding as to the cases ia which a prohibition lies to the Ecclesias- tion^to'eoole- tical Tribunals. The following appears to be the result of the cases siasticai on the subject. (1.) A prohibition will lie where the Ecclesiastical Court enter- taias a matter in which it has no jurisdiction at all. (2.) In a matter purely of ecclesiastical cognizance, and where no question triable at the common law incidentally arises, the temporal 464 PROHIBITION. Antiquity of jurisdiction. Matters not triable by ec- clesiastical courts. Court will not interfere, however erroneous the decision of the Ecclesiastical Court may be, and however irregular its procedure, provided it he not in violation of natural justice ; and this whether an appeal does or does not lie (a). (3.) In a matter properly of ecclesiastical cognizance, where a question triable at the common law incidentally arises, the Ecclesiastical Court is not precluded from deciding it ; but it is bound to decide according to the rules of the common law ; and if the Ecclesiastical Court decide it otherwise, a prohibition wHl lie (6). (4.) If a subordinate Ecclesiastical Court commits an error, other than the misconstruction of an Act of Parliament, which is cor- rigible on appeal by a higher ecclesiastical tribunal, it will be pre- sumed that the higher tribunal will correctly administer the law ; and not till after its sentence should a prohibition be moved for (c). (5.) It is not necessary, to entitle to a prohibition, that the temporal Court should have cognizance of the matter dealt with in the Ecclesiastical Court ; it is enough that the latter Court exceeds its jurisdiction (d). The jurisdiction to prohibit Ecclesiastical Courts has been con- tinuously exercised from the earliest times (e). The remonstrances of the clergy against the frequent interference by prohibition with the action of the Ecclesiastical Courts were embodied by Arch- bishop Boniface in the ArticuU Cleri of 51 Hen. 3. The statute of Circumspecte Agatis, 13 Ed. 1 st. 4, recognized the right of the Courts Christian to deal with a number of matters enumerated in it, " r^id prohibitione non obstante ;" and this enactment (repealed in some particulars by the Statute Law Eevision Act of. 1863, 26 & 27 Vict. c. 125) still marks the boundary line between the temporal and ecclesiastical jurisdictions. Matters of freehold and the rights of inheritance are only deter- (a) See per Littledale, J., Ex parte Smyth, 3 A. & B. 724; per Lush, J., Martin v. Mackonochie, L. B. 3 Q. B. D. 739 ; per Lord Blackburn in Mobckono- chie V. Lord Penzance, L. B. 6 App. Cas. 440, and per Lord Watson, id., 458, 459. (6) See per cv/r. Sohert's case, Cro. Jao. 270; the judgment in Gould v. Oapper, 5 East, 362 seq. ; and the cases referred to post, (c) Griffin v. Ellis, 3 P. & D. 398, 403. (d) Com. Dig. Prohib. F. 1. (e) Glanville (who wrote about 31 H. 1), notices two instances of prohibi- tions to the Ecclesiastical Courts. APPLICATIONS OF THE PRECEDING PRINCIPLES. 465 minable in the temporal courts ; so that if the Ecclesiastical Court intermeddles with them, a prohibition lies (/). A prohibition was granted to the Ecclesiastical Court, where the issue raised there was as to the existence of a prescriptive right to seats in the body of a parish church (g) ; also where a modus was pleaded, and the question was as to its existence (h) ; provided the plea was not bad on the face of it (i). So a prohibition would lie where the question is whether a particular place is or is not a parish (k) ; or what are the boundaries of a parish (I) ; or whether a church is a parochial church or a chapel of ease (m) ; or whether a custom does or does not exist (n) ; or whether a way to church is a highway or not (o) ; or as to the validity of institution after induc- tion (p); or where the defamation proceeded for consists of tem- poral offences only {q) ; or where, after compelling churchwardens to deliver in their accounts, the spiritual Court proceeded to decide on the propriety of the charges (r) ; or where the citation disclosed no spiritual offence (s). Where the existence of the custom or modus was not traversed (/) Bac. Abrid. Proh. L. 2. F. N. B. 40; 2 Roll. Abrid. 286; Cro. Jac. 270 ; Oro. Car. 65 ; 2 KoU. Abrid. 285, 286, and authorities tlifire referred to. HUlia/rd v. Jeffreson, Ld. Ray. 212; Binsted v. Collins, Bunb. 229. (^) Bytrley v. Windus, 5 B. & C. 1 ; Be Bateman, L. R. 9 Eq. 660. See the form of order made by the Court fully set out at the end of this case. (h) Darby v. Oozens, 1 T. R. 552, 556 ; French v. Trask, 10 East, 348. (t) Bohertsv. Williams, 12 East, 33. (k) Butland v. Bagshaw, 14 Q. B. 869; Brown v. Palfry, 3 Keb. 286; 2 Roll. Abr. 291, tit. Proh. L. 3. Q) Foster v. Hide, 1 Roll. 332; Stransham v. OuUington, Cro. Eliz. 228 ; per Hale, C. J., 3 Keb. 286 ; 2 Roll. Abridg. 291. (to) See 2 Boll. Abr. 291. (to) See Churchwardens v. Sector of Market Bosworth, 1 Ld. Ray. 435. The reason being, according to Holt, C.J., because the spiritual Court has " dif- ferent notions of customs, as to the time which creates them, from those that the common law hath. For in some cases the usage of ten years, in some twenty, in some thirty years, makes a custom in the spiritual Court ; whereas by the common law it must be time whereof," &c. (lb.). See also Dunn v. Coates, 1 Atk. 288 ; Dolby v. Bem- ington, 9 Q. B. 179. Cf. Jones v. Stone, 2 Salk. 550. (o) 2 Roll. Abr. 287 ; 1 Bulst. 67. See also 2 Roll. Rep. 41, 287. (p) Huttoris case, Hob. 15 ; HoWs case, 1 Bulst. 179. (q) See HolUngshead's case, Cro. Car. 229; Evans v. Ghvyn, 5 Q. B. 844; Ft, parte Fvans, 7 Jur. 420. Cf. Evans V. Brown, 2 Ld. Ray. 1101, and see Oalizard v. Bigault, 2 Salk. 552. (r) Lewian v. Ooulty, 3 T. R. 3. (s) Francis v. Steward, 5 Q. B. 984. 2 H 466 PROHIBITION. when alleged, or not pleaded in the Ecclesiastical Courts, a pro- hibition was refused {t). A prohibition was granted to stay a suit in the spiritual court for breaking open a chest in the church and taking away the title deeds to the advowson {u). A prohibition was also obtainable if the spiritual court proceeded against a man for publishing a libel (a;) ; or to punish him for treason, felony, or any other offence punishable in the temporal courts («/) ; or to try a question which had been already determined by the temporal court (2). So also wherever an offence, per se triable in the Ecclesiastical Court, was accompanied by any circumstances triable only by the temporal court (a) ; or where, as to any matter not within their original juris- diction, but arising collaterally before them, they required or admitted evidence other than that required or admitted by the temporal courts (&). Where churchwardens libelled a parishioner in the spiritual court for payment of a rate, which appeared on the face of the pro- ceedings in that court to be illegal and void, a prohibition was granted (c). A prohibition was granted also where the invalidity of the rate was shewn to the spiritual judge in the course of the proceedings (d) ; but in this case it was assumed that the spiritual Court had come to an erroneous decision on the statutes 58 Geo. 3, c. 45, and 59 Geo. 3, c. 30 : whether or not the spiritual Court was only in progress of considering the question seems not to have been discussed (e). If the subject of the validity of the rate were stUl under the consideration of the spiritual Court a prohibition would not be granted (/ ). Where an appeal from the Arches Court to the Judicial Com- (t) Jorws V. Stone, 2 Salk. 550 ; Abbot of St. Jlban's case (22 Ed. 4) Dutens v. Robson, 1 H. Bl. 100 ; Anon., there referred to. 2 Salk. P51 ; differing from Bishop of (b) See Hholter v. Friend, 3 Mod. Winchester's case, 2 Rep. 45. 28fc> ; Prince v. Buett, 1 Sid. 161. (u) Gardner v. Farker, 4 T. \\. 351, (c) Burder v. Veley, 12 A. & E. 233 ; distinguisliiiig Welcome v. Lahe, 1 Sid. see also Oosliny v. Veley, 7 Q. B. 406. 221, 2 Keb. 21. (i) Blacket v. Blizard, 9 B. & C. (x) Anon., Comb. 71. 851. {y) See Bac. Abr. Proh. L. 3. ' (e) Per hoxA Penman in Hall v. (z) Boyle v. Boyle, 3 Mud. 164; Maule, 1 A.. & E. 129. Webb V. Cooh, Cro. Jac. 535. (/) n. See also R.m. Consistorial (a) See, for example, OalUsand v. Couii of London, 2 B. & S. 339. Eigaud, 2 Ld. Ray. 809, and the APPLICATIONS OP THE PRECEDING PEINCIPLBS. 467 mittee of the Privy Council, in a suit for non-payment of church rates, was pending, an application for a prohibition, on the ground that the rate was bad and appeared to be so from facts stated on the pleadings, was refused ; the matter being properly one of ecclesiastical jurisdiction and no erroneous step having been taken. A prohibition was granted to a consistory court for refusing to admit a responsive allegation that at the vestry, on the propriety of whose action the validity of a rate depended, a poll had been duly demanded and refused (g) ; also where a consistory court proceeded to hear exceptions to an inventory exhibited by an executor (h) ; also where the judge appointed under the Public Worship Act, 1874 (37 & 38 Vict. c. 85, s. 7), heard a case outside the limits defined by the requisition of the archbishop (i) ; and where a proceeding under the same Act was set in motion against an incumbent by the bishop, who was also patron of the benefice or preferment held by the incumbent (k). An archbishop having, in the exercise of his general authority as visitor of an ecclesiastical body, passed sentence depriving a dean of his dignity and place, &c., for simony, without any .such formal proceeding as is required by 3 & 4 Vict. c. 86, in the case of criminal suits or proceedings against clerks in holy orders (s. 23), a prohibition was granted (I) ; also where a bishop, wrongly claim- ing a right to present by lapse to a residential canonry, not only cited the dean and chapter (in whom the right of election lay) to appear before him and shew cause why the bishop should not by his visitatorial authority fill up the vacancy, but afterwards issued a mandate to the dean and chapter to admit the person appointed by him into actual residence (m) ; also where a suit was instituted in the EccleBiastical Court against a clergyman after the period limited by statute (n). (g) White V. Bteele, 10 C. B. N. S. (0 Re Dean of York, 2 Q. B. 1. 383. Compulsory church rates were Distinguish Backham v. Bluck, 9 Q. B. abolished by 31 & 32 Vict. c. 109. 691, where it was held that a proceed- (K) Henderson v. French, 5 M. & S. ing in the Cor.sistorial Court to recover 406 ; Griffiths v. Anthony, 5 A. & E. penalties for non-residence under 1 & 2 g23. Vict. c. 106, ss. 32, 114, was not a (i) Hudson v. Tooth, L. R. 3 Q. B. D. criminal suit within 3 & 4 Vict. c. 23. 46 • 47 L. J. Q. B. 18. See also Ser- (m) Bishop of Chester v. ffarward, V. Dale, L.B.. 2 Q. KB. 55S. 1 T. R. 650. (k) Serjeant v. Dale, uhi supra. (n) FreeY. Burgoyne, 5 B. &C. 400. 2 H 2 468 PROHIBITION. The refusal of the Mshop of a diocese to grant letters of request is not ground for prohibiting the archbishop from issuing a com- mission under 3 & 4 Vict. c. 86, s. 24 (o). The Court will not interfere by prohibition with the decision of a bishop under 1 & 2 Vict. c. 106, s. 54, as to whether a spiritual person has " any legal cause of exemption from residence " {p). A prohibition was refused to stay a suit, for officiating in an unlicensed chapel without the license and against the monition of the bishop of the diocese, brought against a person who had been ordained a priest, but who had subsequently become a dissenter {q). Where a person was sued out of his diocese, in a matter properly of ecclesiastical cognizance, it was held in the time of Holt, C.J., that a prohibition would not be granted unless applied for before sen- tence ; because, though the matter did not belong to that spiritual court, it did to some other, and not to the temporal court (r). The same rule has been held to apply wherever the ground of application does not appear on the face of the proceedings {s). It is not necessary, however, that the absence of jurisdiction should appear on the face of the libel ; it is sufficient, after sentence, if it appears that the spiritual court has misconstrued an Act of Parliament (f). Construing Act The misconstruction of any Act of Parliament by the Ecclesias- tical Court was always ground of prohibition (m). Eut it is no ground for prohibition that the spiritual court would have to determine the effect of an Act of Parliament which, until an erroneous decision is actually given, it will be presumed that the Court will construe correctly (a;). (o) Ex parte Denison, 4 E. & B. Q. B. 814 ; Ricktts v. Bodenham, 4 292. Consult this case also as to what A. & E. 441. tied vide contra, PaxUm amounts to an adjudication by the v. Knight, 1 Burr. 314. bishop on a charge against a clergy- {t i Oould v. Qapper, 5 East, 345. inan- . (u) See Oould v. Qapper, 5 East, {p) Ex parte Bartlett, 12 Q. B. 345, and the various cases referred to in 488. the judgment. See also per Lord Wat- (j) Barnes y.Shore,SQ,.B. 640. See son, MacTconochie v. Lord Penzance, now 33 & 34 Vict. c. 91. L. R. 6 A pp. Gas. 458, 459. (r) Gardner v. Booth, 2 Salk. 549. (a;) Sail v. Maule, 7 A. & E. 721. (s) Argyle v. Hunt, 1 Str. 187 ; c/. In Cockburn v. Harvey, 2 B. & Ad. per U. Kenyon, Leman v. OouUy, 3 797, where a prohibition was granted, T. R. 4. See also Evans v. Gwyn, 5 this point does not appear to have APPLICATIONS OP THE rEEOBDING PRINCIPLES. 469 Where the spiritual court has no original jurisdiction, it is Prohibition never too late io apply for a prohibition (y). And the same is the ^ *' ^*° ^°™' case where the excess or want of jurisdiction appears on the face of the proceedings. And in some cases a prohibition cannot properly be moved for before sentence has been pronounced, e.g., where a sentence of deprivation is the only part of the proceeding beyond the jurisdic- tion of the Court to be prohibited (z). , Though the Court Christian cannot try the existence of a custom. When question there is no ground for a prohibition if the alleged custom be ^^t ground for wholly immaterial, so that it is perfectly indifferent which way it pr"'"'^'*"'". is found (a) ; or if it is not denied (&) ; nor, according to a case in the time of Lord Hale, where the spiritual court negatived the existence of a custom on which the libel was founded (c) ; and a suggestion that the Ecclesiastical Court is likely to entertain a question not triable by them is insufficient (d). That an offence is punishable temporally is not ground for pro- Ofifence also hibiting an Ecclesiastical Court proceeding in respect of the same temporally, offence, e.g., a proceeding in respect of forgery, or for obscenity, or unnatural offences, for the purpose of deprivation only (e) ; neither is the fact of a temporal loss resulting from it (/). Neither is it sufficient ground for prohibition that the bishop of the diocese is interested (by guaranteeing to the promovent his expenses) in a cause before the chancellor of the diocese, in the consistorial court of the diocese (g). been taken ; the judgment dealing only cf. Blunt v. Harwood, 3 N. & P. 577 ; with, the question as to the proper con- and Buiens v. Bobson, ubi supra. struction of the Act of Parliament. (e) See Slater v. Smalebrooh, 1 Sid. See Blachet v. Blizard, 9 B. & C. 851, 217 ; 1 Lev. 138, and Townsend v. distlQO'uished in Sail v. Maule, 7 Thorpe, 2 Ld. Bay. 1507, referred to in A. & B. 729. the judgment of the House of Lords in (y) Parher v. Glarhe, 3 Salk. 87. Free v. Bwrgoyne, 2 Bligh. N. S. 79, (z) See Be Bean of York, 2 Q. B. 80. 8eea]aoBurderY.Hodyson,4:'Notes 40. of Cases, 488, and Bean of Jersey v. (a) Per cur. Butland v. Bagshaw, Sector of , 3 Moo. P. C. 229. 14 Q. B. 889. (/) Baker r. Bogers, Cro. Bliz. 789. (6) Butens v. Bobson, 1 H. Bl. 100. (g) Ex parte Medwin & Hurst, 1 E. (c) Churchwardens v. Sector of & B. 609. See also Bishop of Lincoln Market Bosworth, 1 Ld. Eay. 435. v. Smith, 1 Vent. 3, where Key ling and (d) Ex parte Law, 2 A. & E. 45 ; Twisden, JJ., refused to prohibit a 470 PROHIBITION. Where part of the matter is cognizable by Ecclesiastical Court. Submission to jurisdiction. Mere irregu- larities in procedure. Appeal dis- tinguished from prohibi- tion. If the proceeding in the Ecclesiastical Court is in respect of two distinct things, one of which is of ecclesiastical cognizance and the other not, a prohibition will be granted qvA)ad that which is of temporal cognizance Qi). But, after sentence, in such a case, it will be presumed that the Ecclesiastical Court has proceeded only upon the matters within its cognizance, unless the opposite be clearly shewn (i). After sentence, absence of jurisdiction had always to be clearly shewn (/«). Where a party resident out of the jurisdiction of the Ecclesias- tical Court was cited and appeared and pleaded without objection, an intervener was refused a prohibition (I). But a plaintiff in the Ecclesiastical Court might obtain a pro- hibition to stay his own suit where the defendant raised some point out of the jurisdiction (m). As already stated, mere irregularities in the procedure of an Ecclesiastical Court, not amoimting to a contravention of natural justice, are not considered ground of prohibition (n) : the proper course is to apply to the Court which has dominion over its own practice, or to a superior tribunal by way of appeal (o). The jurisdiction in prohibition " does not enable the temporal court to act as a Court of Appeal from the Court Ecclesiastical, so as to correct any irregularity or even injustice which may have been done by the Ecclesiastical Court, if done in the exercise of their jurisdiction " (p) ; vide ante, pp. 460, 461 (q). proceeding by a bishop in his own court, for a pension. The distinction between the Chancellor and the Com- missary is pointed out by Lord Camp- bell in 1 E. & B. 616. (h) Per cur. Fense v. Prouse, 1 Ld. Bay. 59. (0 EaH V. Marsh, 5 A. & B. 602 ; cf. Eicketts v. Bodenham, 4 A. & E. 441. (h) Oarslake v. Mapledoram, 2 T. B. 473. (I) Chichester v. Donegal, 6 Mad. 375. See also Vanacre v. Spleen, Carth. 33, and Anon., 2 Show. 155. (to) Worts V. Clyston, Cro. Jac. 350, 3 Inst. 607 ; Paxton v. Knight, 1 Burr. 314. in) Ex parte Story, 8 Ex. 195. (o) Per Parke, B., id. 202. See also Ex parte Smyth, Tyr. & Gr. 222, and Machonochie v. Lord Pemamce, L. B. 6 App. Cas. 431, 459. {p) Per Lord Blackburn, Machono- chie V. Lord Penzance, L. K. 6 App. Cas. 444. See also per Lush, J., in the Court below, L. B. 3 Q. B. D. 739. (2) See also Bulwer v. Hose, 3 East, 217. APPLICATIONS OF THE PRECEDING PRINCIPLES. 471 2. Vice-Chancelloe's Couet at Univbesities. The Chancellor's Court of the University of Oxford having adjudged, ordering that a person who had brought an action at common law against a resident memlDer of the University should stay his action and pay costs, and on default should be arrested, a prohibition was granted (r) ; there being no power in the University Court to mulct in costs a person not a member of the University and to enforce payment by arrest. A prohibition was granted (26 Car. 2) to the Court of the Vice- Chancellor of Cambridge on the application of a person who had a libel preferred against him in that court for proceeding, by informa- tion in the King's Bench, against divers persons who had committed a riot within the jurisdiction of the Vice-Chancellor's Court (s). But the proceeding to be prohibited must be of a judicial kind. Discommuning a tradesman is not such {t). 3. Mayor's Court oe City of London. The Mayor's Court of the city of London is an inferior court Mayor's Court within the meaning of the general rule as to prohibitions (m) ; and court. a prohibition will be granted where the cause of action has not arisen within its jurisdiction (v). Where only part of the cause of action arises within the City, Where cause and the defendant neither resides nor carries on business within not t , arise it, a prohibition will be granted (aj). '^"'^ " ^"y- The Mayor's Court has jurisdiction, under sect. 12 of the Mayor's Court Procedure Act, 1857, in aU cases not exceeding £50, where the defendant dwells or carries on business within the City, and a part of the cause of action arises there {y). (r) Chancellor, &c., of Oxford v. L. R. 20 Eq. 1 ; Goohe v. QUI, L. R. Taylor, 1 Q. B. 952. 8 0. P. 107. (s) Bichardson's case (26 Car. 2), (a) Gold v. Turner, L. R. 10 C. P. cited Bac. Abrid. Proh. L 149. (*) Ex parte Death, 18 Q. B. 647. {y) Eawes v. Pavdey, L. R. 1 C. P. (u) See opinion of the judges in D. 418, by tbe Court of Appeal, over-. Mayor, &o., of London v. Oox, L. R. ruling,t]iedeoisionof -tie Court of Com- 2 E. & I. App. 256-258, and the autho- men Pleas. And see the previous cases rities there referred to. of Quarlty v. Tvmrrdns, L. R. 9 C. P. (v) See also Alderton v. Archer) 416, and Bohinson v. Emanuel, L. R,, L. R. 14 Q. B. D. 1 ; Jacobs v. Brett, 9 C. P. 414. ' . 472 PBOHIBITION. An account stated within the City is sufficient to give juris- diction (2). And a prohibition will not be granted to restrain an action on a cheque drawn on a bank out of the jurisdiction, under circum- stances which render unnecessary presentment by the indorsee (a). 'Not where goods ordered by letter, posted in the City, were also delivered there to the defendant (6). Neither would a prohibition lie to restrain the Mayor's Court from re-trying an action on the ground of surprise and fresh evi- dence, after a rule to enter a nonsuit had been obtained and disposed of in the superior Court, under sect. 10 of the Mayor's Court Procedure Act, 1857 (c). A prohibition will not be granted to restrain the Court from adjudicating upon a counterclaim in respect of matters beyond the jurisdiction, to the extent necessary to meet the claim of the plaintiff (d). Where the counterparts of a lease were signed by the vendor and purchaser respectively in the city of London and in Middle- sex, then exchanged, and the deposit paid at the office of the pur- chaser's solicitor in the City, an action in the Mayor's Court for the balance of the purchase-money was prohibited, on the groimd that no part of the cause of action arose within the juris- diction ; the defendant having signed in Middlesex (e). Where part of the plaintiffs cause of action did not arise within the city of London, but, on shewing cause against a rule for a prohibition, the plaintiff abandoned wholly this part, the Court discharged the rule for a prohibition, but without costs (/). A prohibition was granted where the defendants, being a railway company, had their principal station outside the City, though they had one of their stations within it (g). Also to restrain the making of orders or committing to prison (z) Taylor v. NichoUs, L. E. 1 L. E. 3 C. P. D. 228. Vide ante, pp. C. P. D. 242. 4.51, 452. (a) Wirth v. Austin, L. B. 10 C. P. (e) Alderton v. Archer, L. R. 14 689. Q. B. D.l; 53L. J. Q.B. 4. (6) Taylor v. Jcmes, L. E. 1 C. P. D. (/) EHis v. Fleming, L. R. 1 C. P. D. 87. 237. (c) Lebeau v. General Steam Navi- (g) See Le Taillear v. South Eastern potion Co., L. E. 8 C. P. 129. Bailvjay Co., L. E. 3 C. P. D. 18. (d) Davis v. Flagstaff Mining Co., APPLICATIONS OP THE PEECEDING PRINCIPLES. 473 under sect. 5 of the Debtors Act, 1869, where the judgment debtor was not at the time of issuing the summons resident or carrying on business witliin the City Qi). A judgment signed at the Queen's Bench office in the Temple, on a judgment of the Supreme Court of China and Japan, for money lent in China, was held not to be a debt arising witliin the city of London as to give jurisdiction to the Mayor's Court to attach moneys of the defendant in the City ; and a prohibition was granted (i). A prohibition will be granted even after the judgment of the Prohibition Mayor's Court has been removed into the superior Court, under of Judgmen™ sect. 48 of 20 & 21 Vict. c. clvii. (the Mayor's Court Procedure 1,°^^"'^'™'' Act, 1857) {h). It may now be taken as settled, notwithstanding the decision in Effect of s. 15 Manning v. Farquharson (I) (followed in Baker v. Clark) (m), that Court Act, sect. 15 of the Mayor's Court Act, 1857 (w), does not prevent the ^' defendant to an action in that Court from moving for a prohibition. That decision was disapproved in the opinion of the Judges (o), de- livered by Willes, J., to the House of Lords in Mayor, &c., of London V. Cox {p) ; and has been expressly dissented from by Jessel, M.R, in Jacobs v. Brett (q), and by Lord Coleridge, C. J., Brett and Archi- bald, J J., in Bridge v. Branch (r) ; all of whom concurred in holding that sect. 15 of the Mayor's Court Procedure Act, 1857, applies only to the modes of objecting before that Court to its jurisdiction, and that it has no application to the High Court. It had previously been decided that the section did not affect the right of a garnishee to apply for a prohibition (s). To a declaration in prohibition, the Mayor's Court pleaded an Custom of foreign attach- (h) Washer v. Mliott, L. E. 1 C. P. D. (m) L. R. 8 C. P. 121. ™™*- 169. (m) This section enacts that " no (») Tapp V. Jones, L. R. 9 C. P. defendant shaU be permitted to object 418. to the jurisdiction of the Court by any (k) Bridge v. Branch, L. B. 1 C. P. D. proceeding whatever, except by plea." 633. (o) Willes, Blackburn, Shee, and (T) 80 L. J. Q. B. 22 ; a decision of Smith. JJ., and Pigott, B. Orompton, J., in the Bail Court, subse- (p) L. B. 2 E. & I. App. 259. quently approved by the judgment of (?) L. E. 20 Eq. 1. the Exchequer Chamber delivered by (r) L. E. 1 C. P. D. 633. the same learned judge, in Mayor, &c., (s) Mayor, &c., of London v. Cox, of London v. Cox, 2 H. & C. 409. L. R. 2 E. & I. App. 239. 474 PROHIBITION. immemorial custom iq case of any plaint of debt levied in the Mayor's Court, followed by process and a return of nihil, then to attach the defendant by any debt [wherever arising] due to him from any other person " found within the jurisdiction of the said Court," and after four defaults of the defendant, then to award execution against the garnishee to pay the plaintiff, he giving security by sufficient pledges to restore to the defendant the sum attached if he within a year and a day comes into court and dis- proves or avoids such debt, &c. ; — in short, claiming jurisdiction because the debtor of the debtor was found within the City, though none of the parties resided therein, and though there was no juris- diction in respect of the original cause of action. This plea was, on demurrer, held bad " because the custom relied upon trans- gresses the local limits ; and the customary proceeding is avowedly accessory to a limited jurisdiction, and is iucongruous and therefore void, as setting tip an accessory more extensive than the prin- cipal .... And if the custom set up did in fact prevail before the Statute of Westminster the First, it was not only void by the common law, but was also by that statute declared to be illegal" {t). The custom of foreign attachment, like other customs, must be local in order to be valid ; and a summons issued for a debt not arising within the jurisdiction, is one which the Court has no warrant to issue (m). (<) Mayor, &c., of London v. Cox, the City of his owu head, create a L. K. 2 E. & I. App. 253-255. " It jurisdiction against his creditor, the appears to be in accordance with autho- custom as pleaded is bad, and the plea rity and good sense to hold that a man is no answer to the declaration." — II., who could not be sued iu London by pp. 274, 275. his own creditor cannot by the mere (u) See per Wales, J., L. E. 2 K & act of using the Queens highway I. App. 265, 266 ; per Lord Campbell, through the City, whether on his own C. J., De Haber v. Qtieen of PaHugd, business or the Queen's, as a juryman 17 Q. B. 213. The cases of Banks ». at the Centra! Criminal Court, or a Self (5 Taunt. 234), and Earington mtness at Guildhall (for the custom as v. McMorris (ib. 228), only shew the aUeged includes aZZ) become Uable to be course of pleading in the case of a stayed there under the custom of the garnishee, who, without collusion, and place by the alleged creditor of his in igDorance of the want of jurisdiction, creditor. Both upon this latter ground, has paid under compulsion of the af^ and also upon the distinct ground that tachment, and is afterwards sued by the debtor, not liable to be sued in his own creditor (per Willes, J., L. K London, of a creditor not liable to be 2 E. & I. App. 269). sued in London, cannot, by entering , APPLICATIONS OP THE PRECEDING PRINCIPLES. 475 To give jurisdiction, the garnishee must not only be " found " within the City, but must also be resident within the City (x). A garnishee does not, by pleading nil hahet in the Mayor's Court, disqualify himself from applying for a prohibition {y). In granting a prohibition on the application of a garnishee who had done so, Lord Campbell said : " He was bound to put in a plea that he might avoid judgment ; and, before the trial of the issue upon that plea, and within a reasonable time after pleading it, he applies for a prohibition to prevent further proceedings in an. action which ought never to have been commenced. Hoc statu, a stranger might successfully apply for a prohibition, and surely so may the garnishee " {z). The custom of foreign attachment as it existed in this court for about 200 years (a custom which, as observed by Bramwell, L.J., enabled a man to enforce ex parte a claim, without giving him against whom it was made notice that it was so made), received its death-blow from the decision of the Court of Appeal, in the case of the London Joint Stock Bank v. Mayor of London (a), where a prohibition was granted to stay all proceedings against the garnishee. 4. County Courts. The jurisdiction of the modern county courts being fixed by Matter statute, a prohibition will be granted wherever they deal with their cogni- any question excluded from their cognizance by Act of Parlia- 11°^^^^^ ment. Thus wherever (except in actions of replevin (&) or any other case where a special jurisdiction is given by statute (c)), there is reasonable evidence that title to land is in question (d); but a (aj) See opinion of the judges above question, see B. v. Baines, 1 E. & B. cited, L. R. 2 E. & I. App. 273, 274, 855 ; Fordham v. Akers, 4 B. & S. and the authorities there referred to. 578. (y) Wadsworth v. Queen of Spain, (c) See B. v. Harden, 2 E. & B. 17 Q. B. 217. 188. (z) 76. (d) Lilley v. Earvey, 17 L. J. Q. B. (a) L. R. 5 C. P. D. 494. See also 357 ; Marwood v. Waters, 13 0. B. BoMque de Credit Commercial v. De 820 ; Chew v. Edlroyd, 8 Exoh. 249 ; Qas, L. B. 6 0. P. 142. Mountnoy v. Collier, 1 E. & B. 630 ; (6) As to the jurisdiction to try re- Pearson v. Glazelrookj L. R. 3 Ex. 27 ; plevin actions though title should be in Be Knight, 1 Exch. 802. ' 476 PROHIBITION. mere assertion of title by the defendant, even though sworn to by him, does not necessarily oust the jurisdiction (e). Where title to land being reaUy in question, the county court judge nonsuited and awarded costs to the defendant, a prohibition was gi-anted ; as there was no jurisdiction to give costs in such a case (/). Prohibitions have also been granted where the title to a toll was in question (g) ; or the title to an office such as that of parish clerk (h) or bailiff of a city (i). But a claim of a profit a prendre, though bond fide, will not oust the jurisdiction (k) ; nor a claim of a custom (I) ; nor a claim to recover a local rate (m). A prohibition would be granted where the question relating to the delivery up of premises under 9 & 10 Vict. c. 95, s. 122 arose, not between landlord and tenant, but between a tenant and the mort- gagee of the landlord (n) : so if a county court judge should, since the Judicature Act, 1873, grant an injunction to restrain an action in the High Court of Justice (o) ; also to restrain an exercise of Admiralty jurisdiction in a case of collision, where the Court of Admiralty would have had no jurisdiction (p) ; and to prevent a levying of execution for interest on a county court judgment, such judgments not coming under secjt. 17 of 1 & 2 Vict. c. 110 (q). A prohibition to a county court having Admiralty jurisdiction, in a case of claim for necessaries, being applied for on the ground that the shipowner was domiciled in England, the High Court refused it, as the county court had jurisdiction, under 24 Vict. c. 10, s. 5, and 31 & 32 Vict. c. 71, s. 3, sub-s. 2, unless it were " shewn (e) Lilley v. Harvey, uhi supra. See 243. Cf. Cannon v. Smallwood, 3 Lev. also Wickkam v. Lee, 12 Q. B. 521 ; 203. Ernery v. Barnett, 4 C. B. N. S. 423. (h) Lloyd v. Jones, 17 L. J. C. P. Sed vide. Marsh v. Dewes, 17 Jur. 206. 558. (I) Davis v. Waltrni, 8 Exch. 153. (/) Lawford ^.Partridge, 1 H. & N. See also Re Knight, 1 Exch. 802. 621 ; 26 L. J. Ex. 147. See also Yates (m) Stuart v. Jones, 1 E. & B. 22. V. Palmer, 6 D. & L. 283. (re) Jones v. Owen, 5 D. & L. 669. (g) B. V. Everett, 1 E. & B. 273. (o) Cohbold v. Pryke, 49 L. J. Of. Sunt V. &reat Northern Bailway Q. B. 8. Co., 10 C. B. 900. (p) Everard v. Kendall, L. R. 5 C. P. (h) Stephenson v. Baine, 2 E. & B. 428. '^^^- (q) B. V. Cownty Court Judge of (i) Tinniswood v. Pattison, 3 C. B. Essex, L. E. 18 Q. B. D. 704. APPLICATIONS OP THE PRECEDING PRINCIPLES. 477 to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner was domiciled in England or Wales ;" and the domicile of the owner was not shewn until after judgment had been given (r) : besides, the domicile of the owner might have been a disputed fact which the county court judge might have had to decide whilst both parties were before him (s). A prohibition was granted to restrain an action against an ad- ministrator, with the will annexed, who resided out of the county court district; the grant, of letters of administration having also been made outside the district (t). Also where the plaintiff had (contrary to 9 & 10 Vict. c. 95, s. 58) divided his cause of action, which was for an amount beyond the jurisdiction, so as to bring several actions for smaller amounts (u). It is an excess of jurisdiction on the part of a county court judge for which a prohibition will lie, after making an entry of judgment for the defendant in an action, to alter such judgment after the Court had broken up and the defendant had left, and to order a new trial (x) ; and so also it would seem if, after hearing and refusing an application for a new trial, the judge should hear and accede to a renewed application on a subsequent day (y) ; or if a new judge should receive, and enter up as his own judgment, a written statement of his decision sent him by the deputy of the late judge («). So if, without the plaintiff's consent, the judge should reduce the claim to £50 in order to give himself jurisdiction (a) ; or if, the particulars of the plaintiff's claim not disclosing a case within the jurisdiction, the judge should amend them so as to bring the case within his jurisdiction (b) ; or if the judge should make a second order of commitment for the same default in paying an (r) Ex parte Michael, L. R. 7 Q. B. (x) Jones v. Jones, 17 L. J. Q. B. g5g_ 170. Of. Trustees of Jones v. Gittins, (s) Id., per Cookburn, C. J., p. 660. 51 L. T. N. S. 599 ; Smith v. McGlone, {t) Fuller V. Mackay, 2 E. & B. 573. 8 Ir. L. R. Q. B., &) Hopper v. Warhurton, 32 L. J. Co. V. 'surt, 5 Ex. 363. Q- B- 104. 478 PROHIBITION. instalment of a debt (c) ; or should exercise jurisdiction in Friendly Society disputes, where the statutory condition to the existence of jurisdiction had not been fulfilled (d), or on the application of persons not entitled to institute proceedings (e). Errors in The reception of improper evidence is not ground of prohibi- proSre."'^ tion (/) ; nor any error, legal or otherwise, in the decision {g) ; nor a mistake as to the time within which process should be delivered in Qi). " I never heard," said Grove, J., " that prohibition would lie where a question of time merely was involved : all the practice has been to the contrary " (i). That the county court bailiff had seized in execution goods of the judgnrent debtor greater in value than the amoimt over which the county court had jurisdiction, was held no ground for pro- hibition (k). The sufficiency of proof of service of the summons has been held to be a question for the determination of the county court judge ; and a prohibition was refused where he had determined the question (Z). Where a judge, in order to prevent a claim being barred by the Statute of Limitations, directed a fresh summons to issue bearing the same date and number as one already served, which, by mistake of an of&cer of the court, had wrongly described the defendant, the High Court refused a prohibition (m). And where a judge wrongly committed, on default in paying an instalment, a debtor who had been discharged from the debt in question by the Insolvent Debtors Court, this was held to be at most an erroneous exercise of his powers as judge, which might entitle the defendant to his discharge, but not a ground of pro- hibition {n). (c) Horsnail v. Bruce, L. B. 8 C. P. Smthgate, 10 Exch. 201 ; Meredith v. 378. Whittingham, 1 C. B. X. S. 216. (rf) Smith T. Pryse, 7 E. & B. 339. (h) Barker v. Palmer, L. K. 8 DistiDguish Shipton, &c.. Society v. Q. B. D. 9. PHtux, 33 L. J. Q. B. 323. (i) Id. 11. (e) HvU V. McFarlane, 2 C. B. X. S. (A) Ex parte Summers, 2 C. L. B. 796. 3284. (/) Be Dunford, 12 Jur. 361 (in {!) Zohrab v. Smith, 17 L. J. Q. B. Court of Exchequer); WinsorY.Burn- 174; Bobirvcm v. Lenaghan, 11 L. J. ford, 12 Q. B. 603. Ex. 174. (g) Norris v. Carrington, 16 C. B. (m) Foster v. Temple, 5 D. & L. 655 ; N. S. 396 ; Ex parte Bayner, 5 D. & L. 17 L. J. Q. B. 230. 342 ; 5 C. B. 162 ; Be Bowen, 15 Jur. (n) Stile v. Booth, 1 L. M. & P. 1196 ; Lexden and MnnxUr rnion v. 440; 19 L. J. Q. B. 521. APPLICATIONS OP THE PRECEDING PRINCIPLES. 479 Where a party applied for a new trial, but did not give the seven clear days' notice of his intention to do so, required by Order xxviii., r. 1, of the County Court Eules, 1875, and the judge in the absence of the other party granted a new trial, a prohibition was refused ; on the ground that the proper course was to have applied, at any rate in the first instance, to the county court judge to set aside as irregular the order made by him for a new trial (o). A prohibition was refused also where a wrong form of sum- mons was used, viz., that prescribed on a judgment de, honis testatoris, instead of that appropriate to a judgment quando acciderint (p). The same would apply if, in dealing with a case over which lie had jurisdiction, e.g., an action for false imprisonment, the judge should in his judgment use expressions as if he was giving damages for a malicious prosecution, as well as for the trespass (q). But where it appeared from the plaint itself or the particulars Action sub- that the action was one substantially for a malicious prosecution, o/j^ui-LdLtiin. there being no assault except the constructive one by giving into custody, a prohibition was granted (r). So also where the action was nominally for the recovery of moneys paid and for loss of time and attendance before magistrates, on a complaint and information of the defendants which was heard and dismissed, the Court held that the plaint was in substance for a malicious prosecution, and a prohibition was granted (s). Wherever the error of the county court is matter of appeal, a Where error ,.,...,-,„, is corrigible on prohibition will be refused. appeal. Where the summons though served upon the defendant within the time required by Order viii., r, 7, of the County Court Eules, 1875, had not been delivered to the county court bailiff within the time therein specified, and the county court judge held the service good and tried the cause, the High Court was of opinion that the proper remedy was by appeal from the ruling of the judge, and not by application for a prohibition (t). A prohibition would be refused where the facts on which the Where juris- diction depends (o) Trustees of Evan Jones v. Gittins, (s) Hunt v. , North Staffordshire on contested 51 L. T. N. S. 599. Railway Co., 2 H. & N. 451. ''*<='^- {p) Ellis V. Watts, 8 0. B. 614. (0 Barker v. Palmer, L. R. 8 (q) Chivers v. Savage, 5 E. &B. 697; Q. B. D. 9 ; 51 L. J. Q. B. 110. See 25 L. J. Q. B. 85. also Ealliday v. Harris, L. R. 9 C. P. (r) Jones v. Currey, 2 L. M. & P. 474. 668, 680. 480 PROHIBITION. jurisdiction depended rested upon conflicting evidence, which it was for the county court to determine (u) ; unless the High Court were convinced that the decision was perverse and not the result of an honest exercise of judgment upon the evidence {x). Where, however, a judge wrongly held that a question of title to land was not involved, a prohibition was granted {y). And if, in arriving at a finding of fact on which the jurisdiction depends, the judge proceeds on a wrong principle, his decision is not conclusive, and a prohibition may be granted (z) ; e.g., where in ascertaining the annual value of premises, so as to give or exclude jurisdiction to try an action of ejectment, the judge deducted from the rent paid by the tenant to the landlord the amount of ground rent paid by the latter. So where, after judgment and execution, an interpleader summons was issued, and the judge erroneously held that the claimant had given an insufficient description of his address, a prohibition was granted to stay execution in the original plaint (a). In no case where the jurisdiction depends on the existence of disputed facts is the finding of the judge on those facts absolutely conclusive ; but, though not conclusive, " for practical purposes," said Blackburn, J. (h), " a strong and peculiar case must be made out to justify us in reversing it and coming to the conclusion that he was wrong." According to the learned judge just cited (c), the rule as to prohibition is nowhere better stated than by Patteson, J., deliver- ing the judgment of the Court in Thompson v. Ingham (d), as follows : " The judge had clearly jurisdiction, prima fade, to try a plaint for use and occupation. The pleadings, if there were any in the county court, would not shew that the title is in question : the point whether it is or not must of necessity arise upon the evidence ; and, as soon as it appears that it is, the jurisdiction of (m) Joseph V. Benry, 1 L. M. & P. 9 B. & S. 503, where the question was 388 ; 19 L. J. Q. B. 369 ; Brown v. solely one of evidence as to annual Cocking, 9 B. & S. 503. value, see also Harrington v. Sammy, (x) See per Cockbum, C. J., Elstone 2 E. & B. 669 ; 22 L. J. Ex. 326. V. Rose, 9 B. & S. 513. (a) Ex parte McFee, 9 Exch. 261. (y) Thompson v. Ingham, 1 L. M. (6) Elstone v. Hose, uU supra. & P. 216 ; 14 Q. B. 710, and seelAlley (c) Speaking in 1868. Elstone v. V. Harvey, 17 L. J. Q. B. 357. Hose, ubi supra. (z) Elstone v. Hose, ubi supra. See (rf) 14 Q. B. 718. and distinguish Brown v. Cocking, APPLICATIONS OF PRECEDING PRINCIPLES. 481 the county court ceases. The judge must, of necessity, determine that point for the time, because on it depehds whether he hears the case on the merits. Is then his determination conclusive ? We think that it is not. The objection is analogous to a plea to the jurisdiction in other courts, which is indeed determined in the first instance by the Court in which it is pleaded, but is subject to a writ of error. The Covinty Court Act (9 & 10 Vict. c. 95) gives no writ of error, or appeal of any sort (e) ; but then it is presumed that the Court deals only with matters within its jurisdiction. If a doubt arises as to that question, we think it impossible to con- tend that any of the provisions of the Act makes the solution of that doubt by the Court itself final. If so, the question must be open to one of the superior courts on motion for a prohibition." The prohibition, as already stated, may be partial only (/ ), and Partial subject to the power of the county court to amend (cf). '' ° ' The prohibition may be granted after judgment and seizure in Prohibition execution, though the excess of jurisdiction does not appear on the * ^'•'" ^™^° ' face of the proceedings (h). The defendant, by appearing and giving notice of a special Acquiescence defence, may lose his right to a prohibition (k). proMjitiof. *° "Where the defendant had assented to the making of an order to remit the case to a county court for trial under 19 & 20 Vict. c. 108, s. 26, a prohibition was refused (I). But obtaining a case for the opinion of the superior Court from the judge below will not disentitle to a prohibition, where the jurisdiction of the inferior Court had been objected to (m). The enactment in 19 & 20 Vict. c. 108, s. 42 (n), that " when Appeal to an application shall be made to a superior Court or a judge thereof Appeti" for ^, writ of prohibition to be addressed to a judge of a county court, the matter shall be finally disposed of by rule or order, and (e) This was in 1850. Q. B. 257. Of. Winsor v. Dunford, (/) Vide ante, pp. 452, 453. 18 L. J. Q. B. 14. \g) See Walsh v. Jonides, 1 E. & B. (I) Mouflet v. WasMurn, 54 L. T. 383. N. S. 16. (h) See judgment in Marsden v. (m) Jackson v. Beaumont, 11 Ex. Wardle, 3 E. & B. 695 ; Thompson v. 300. See also Bicardo v. Maidenhead Ingham, 14 Q. B. 710 ; Jones v. Owen, Local Board of Health, 2 H. & N. 5 D. & L. 669 ; Pears v. Williams, 2 257. L. M. & P. 515. Vide ante, p. 454. (n) And see 39 & 40 Vict. c. 59, (k) See Jones v. James, 19 L. J. s. 20. 2 I 482 PROHIBITION. no declaration or further proceedings in prohibition shall be allowed," does not take away the right of appealing in such a case from a Divisional Court to the Court of Appeal : it only relates to procedure (o). As to the effect of ah order nisi or a summons for a prohibition, and as to the course to be pursued by the party who obtains the writ of prohibition, vide post, pp. 488, 489, 496. 5. Other Courts and Public Bodies. Quarter ^ prohibition was issued to quarter sessions to stay further Sessiona. proceedings on an appeal which had not been commenced within the time limited by statute (p). Liverpool A' prohibition was granted to restrain the Liverpool Court of PaTsage. Passage from further proceeding on an order made by its registrar, requiring a plaintiff to give security for costs on the ground that his action was frivolous and vexatious ; the rule of practice enabling the registrar to make such order being held invalid and not in exercise of the power given by sect. 4 of 6 & 7 Wm. 4, c. cxxxv. (q). Salford A defendant in the Salford Hundred Court of Record cannot Court"^' move for a prohibition unless he has pleaded the want of juris- diction (r). Justices. An application for a prohibition to justices was made (in a case where they had convicted for unlawfully taking fish in a private fishery), on the ground that the applicant had asserted a public right of fishery, and demanded production of the alleged owner's title deeds, which the magistrates refused; and reliance was placed on the following language attributed to Lord Holt (s) : " Now this conviction is come hither [on certiorari] no prohibition can go ; whereas, upon putting in such a suggestion as this while the conviction remained below, the parties might have a prohibi- tion after conviction, to stay the justice from proceeding upon it ;" to which Lord Denman replied : " No other judge ever said so, and 1 doubt whether Lord Chief Justice Holt ever said so ; " and the (o) Barton v. Titma/rsh, 49 L. J. , (q) R. v. Mayor, &c., of Liverpool, Q. B. 573 ; 42 L. T. N. S. 610. 56 L. T. N. S. 314. (p) Ex pwrte Overseers of Everton, (r) Chadvnck v. BaU, L. R. 14Q.B.D. L. E. 6 C. P. 245. See also Ricardo 855 ; overruling Oram v. Brearey, V. Maidenhead Local Boa/rd of Health L. R. 2 Ex. D. 346. 2 H. & N. 257. (s) R, V. Bwrnaly, 2 Ld. Ray. 901. APPLICATIONS OP PEECEDING PRINCIPLES. 483 Court refused a prohibition; as the justices had, under 7 & 8 Geo. 4, c. 29, s. 34, jurisdiction to try the title of the informant {t). A prohibition was granted to prevent a coroner from holding an Coroners, inquisition respecting the origin of a fire {%), he having no ex -officio jurisdiction at common law to hold any other inquisition than one on a dead body, super visum corporis (x). A prohibition was granted to prevent the Eailway Commis- The Railway sioners from enforcing orders requiring two companies to act jointly gioners. " in doing what neither could do separately (y) ; also where they granted an injunction to restrain a railway company from making charges for the conveyance of passengers in excess of those autho- rized by their special Acts, but without any undue preference (2) ; also where they undertook an arbitration between two railway companies under sect. 8 of 36 & 37 Vict. c. 48, the specific differ- ence between the two companies not being required or authorized by any general or special Act to be referred to arbitration (a) ; also where, a railway company having guaranteed to a canal com- pany that if the income of the latter in any year was insufficient to pay a dividend of 4 per cent, the railway company would make up the deficiency, the Commissioners, without the consent of the railway company, and without hearing it, made an order allowing through rates for goods traffic between two points, the effect of which would be to reduce the tolls of the canal company below the maximum allowed by its Acts, which toUs the canal company was prohibited from reducing or varying without the consent of the railway company (&)., A prohibition was also granted to stay further proceedings upon a taxation of costs ordered by the Commissioners to be paid by a successful defendant to an unsuccessful applicant (c). The jurisdiction of the Commissioners to grabt mandatory in- (0 Ex parte Eiggins, 10 Jur. 838 ; N. S. 206. 8 Q. B. 149, note (d). (a) Great Western Railway Co. v. (u) R. V. Herford, 3 E. & E. 115. Waterford, &c.. Railway Co., L. E. 17 (x) Id. Ch. D. 493 ; 50 L. J. Chy. 513 ; 44 (y) Toomer v. London, Chatham, L. T. N. S. 723. and Dover Railway Co., L. R. 2 Ex. (6) Warwick and Birmingham Canal Div. 450. Cb. v. Birmingham Canal Navigation, (z) Great Western Railway Go. v. L. E. 5 Ex. Div. 1. Railway Commissioners,lj.'S,.lQ,.K'D. (c) Foster v. Great Western Rail- 182 ; 50 L. J. Q. B. 483; 45 L. T. way Co., 3 B. & M.'s. Ey. Gas. 58. 2 I 2 484 PEOHIBITION. junctions compelling railway companies to afford all reasonable facilities for the receiving, forwarding, and delivering of traffic upon and from the several lines and canals belonging to or worked by them, was more recently very fully discussed by the Court of Appeal in the case of South Eastern Railway Co. v. Railway Com- missioners (d), where the limits of their jurisdiction in this respect are pointed out. Where remedy To the general question "what would cause an order of the is by appeal . ........ and not prohi- Commissioners, or part of it, to be beyond their jurisdiction, as dis- tinguished from being erroneous ?" Brett, L.J., thus replied : " If no part of the order could legally be made under any circumstances in any form, the whole is beyond jurisdiction. If there are separate parts which could under no circumstances in any form be legally made, those parts are beyond jurisdiction. But if the whole, or any part, could under some circumstances be properly made, though they would be improperly made under the circumstances of the particular case, that would be error and not excess of jurisdic- tion" (e). An erroneous decision by the Commissioners that there was some evidence of breach of sect. 2 of the Eailway and Canal Traffic Act, 1854, would be an error in law on a matter within their jurisdiction, and not a ground for prohibition (/ ). As to tithe commissioners and enclosure commissioners, vide ante, p. 433. (d) L. B. 6 Q. B. D. 586. The Q.B.473. See also Swansea, &c., Co. v. question of practice on demurrers, as to Swansea, &c.. Railway Co., 3 N. &M.'s whicli Brett, L.J., dissented from the Ky. Cas., 339 ; Oreat Western Railway other members of the Court has now Co. v. Central Wales Railway Co., ceased to be of importance, vide ante, L. R. 10 Q. B. D. 231; 52 L. J. Q. B. p. 416, and 0. 0. E. 137. Other ex- 211 ; 48 L. T. N. S. 234 ; Budders- amples of prohibition to the Railway field Corporation v. Oreat Northern Commissioners will be found in Re Railway Co., 50 L. J. Q. B. 587. Wrexham, &c.. Railway Co., 4 B. & (e) L. R. 6 Q. B. D. 599. M.'s Ey. Cas. 69 ; Halesowen Railway (/) Denaby, &c., Co. v. Manchester, Co. V. Oreat Western Railway Co. and &c.. Railway Co., 3 N. & M.'s By. Cas. Midland Railway Co., id. 224 ; 52 L. J. 426. ( 485 ) CHAPTEE IV. Pkoceduee to obtain Weit. PAGE By whom application to be made 485 Against whom application to be made 486 Time for applying .... 486 Change in procedure .... 486 How application to be made . . 487 Affidavits 487 Order nisi 488 Order nisi, in case of County Courts 488 PAGE Order absolute in first instance . 489 Shewing cause 489 Appeal from Decision of Divi- sional Court 489 Eenewed application for prohibi- tion 490 Setting aside writ .... 490 Time for appealing from Decision at Chambers 490 Motions 491 The application for a prohibition may be made not only by either By whom of the parties to the proceeding in the inferior Court (a), but also ^^j^^ made, by a stranger (h), and even by a foreigner resident abroad (c) ; the reason being that where an inferior Court exceeds its jurisdiction, it is chargeable with a contempt of the Crown as well as a grievance to the party (d). The party who has appealed to a Court of Appeal is not thereby precluded from applying for a prohibition (e). Applications by strangers not interested in the subject-matter of the suit, or aggrieved by the excess of jurisdiction, have not been encouraged in recent times (/) ; except in the case of the Mayor's Court of the City of London. (a) 2 EoU. Abr. 312; Worts v. Clyston, Cro. Jac. 350 ; Stransham v. Medcalfs, 1 Leon. 130. (J) 2 Inst. 607 ; Com. Dig. Prohibi- tion (E). (c) See De Haher v. Queen of Por- tugal, 17 Q. B. 171, 214. (d) Per Lord Campbell, 17 Q. B. 214, citing Ude v. Jackson, Fort. 345. (e) Darhy v. Cozens, 1 T. E. 552. See also per Littledale and Coleridge, JJ., in GAesterton v. Farlar, 7 A. & E. 718. (/) See per Cockburn, C.J., P. y. Twiss, L. E. 4 Q. B. 413, and Forster V. Forster, 4 B. & S. 198, 203. 486 PROHIBITION. For separate suits against several individuals, there should be separate applications for prohibitions {g). Against whom The application may be made either against the other party to may'lw made, the suit, or the judge to be prohibited, or both. In modem practice the application ia the first instance is made in form against the party and the Court ; but it is usually the party, and very rarely the Court, that opposes the application (h). A prohibition does not lie to the Sovereign or her executive officers for anything done by them as such (i), nor to a sheriff or other judicial officer iu respect of any proceeding as to which he is completely /mtic^ms officio (Jc). Time. As to the proper time for applying, vide ante, pp. 449, 453, 454. Change in A mere surmise or suggestion of the ground for prohibition was, procednre. •/-...,• t ^ at first, enough to put the superior Court in motion. And, except in cases within 2 & 3 Ed. 6, c. 13 (I), the applicant was not bound to verify his suggestion or surmise before declaring in prohibition ; but as this occasionally led to false surmises for the purpose of delay, the Courts, so early as the time of Elizabeth, " took order that no prohibition should be granted upon such a surmise without great probability of the truth of the surmise " (m). The practice fluctuated {%) till the time of Lord Holt, when it became the rule not to interfere upon a hare suggestion without a plea in the court below (o). By the time of Lord Mansfield the practice, so far as con- (g) Oerrard v. Sherrington, 1 Leon. (to) Per Clench, J., Wiggen v. Ancot, 286 ; Kadwalader v. Bryan, Cro. Car. 2 Leon. 213. 162. («) See Palmer v. Pope, Hob. 79 a; (A) Per Willes, J., Maycyr, Ac., of Anfild v. Feverill, 1 Roll. 61 ; EOde- London v. Cox, 2 E. & I. App. 280. brand's case, id. 285 ; Godfrey's case, (i) See Chabot v. Morpeth, 15 Q. B. Lateh. 11 ; Bushel v. Jay, 1 Keb. 153 ; 446. Green v. Colduck, id. 786 ; Waineman (k) Ih. V. Smith, Sid. 464 ; 7\imer v. Weston, (I) This statute required the sugges- 2 Lutw. 1023 ; Burdett v. Newell, 2 tion to be proved true by two honest Ld. Ray. 1211. and sufficient witnesses at the least, (o) The truth of the suggestion was within six months after the granting traversable, and the Court would look of the prohibition, and gave the de- into it, and see what foundation it had. fendant in prohibition an action for See per Holt, C.J., Smith v. Wallett, the recovery of double costs and Ld. Bay. 587 ; Peters v. Prideuai, 3 damages, if the suggestion should not Keb. 332 ; 2 Inst. 611. be proved true within the six months. PEOCEDURE TO OBTAIN WRIT. 487 cerned the Common Law Courts, was established that, except in the cases where the Court below has no jurisdiction to deal with the matter at all, there must be either an affidavit or a plea in the court below, either being sufficient (p) ; and the practice so remained up to the passing of 1 Wm. 4, c. 21, when it became necessary to have an affidavit in all cases. Sect. 1 of that Act, after reciting that " the filing a suggestion of record on application for a writ of prohibition is productive of unnecessary expense," enacts that " it shall not be necessary to file a suggestion on any application for a writ of prohibition, but such application may be made on affidavits only." According to No. 81 of the New Crown Office Eules, an applica- How applica- tion for a writ of prohibition on the Crown side is to be made by ^"^e." * motion to a Divisional Court for an order nisi in all criminal causes or matters ; and in civil proceedings on the Crown side by motion for an order nisi or by summons before a judge at chambers (q). Before this rule a judge at chambers might, under 13 & 14 Vict. c. 61, s. 22 (amended by 38 & 39 Vict. c. 66), hear and determine applications for writs of prohibition to judges of county courts ; and, under 15 & 16 Vict. c. Ixxvii., s. 32, similar applications to the judge of the City of London Court ; the decision of the judge at chambers being liable to be discharged, varied, or set aside by the Court. The jurisdiction of a judge at chambers now embraces all civO. proceedings on the Crown side. No summons to shew cause before a judge at chambers is, in a case of prohibition, to be issued without the leave of a judge, upon &n, ex parte application (r). Prohibitions are excluded from the jurisdiction of a master (s). The affidavit or affidavits should set forth, with sufficient detail, Affidavit."' the circumstances shewing an absence or excess of jurisdiction on the part of the Court below ; making an exhibit of the pleadings where there are any and, where there are no pleadings shewing (p) Per Willes, J., Mayor, &c., of 330. See also Paxton v. Knight, 1 London v. Cox, L. R. 2 E. & I. App. Burr. 307. 288-290 ; referring to Buggin v. (q) C. 0. E. 81. Bennett, 4 Burr. 2035 ; Driver v. (r) Id. 305. Driver, Andr. 304 ; Hinds-v. Thomson, (s) Order liv., r. 12 (g). Andr. 299; Gaton v. Burton, Cowp. 488 PROHIBITION. Order nisi. how the question arose which ousts the jurisdiction of the inferior tribunal. Except by leave of the Court or a judge, no order made ex parte founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion (t). The affidavit is to be entitled only " In the High Court of Justice, Queen's Bench Division ' (u). As to affidavits generally, and the rules of practice with reference to them, vide ante, pp. 41 seq. It is not necessary that the order nisi should state the ground of prohibition (aj). Service. — Where the order for a prohibition to a county court was directed to be served on the plaintiff and the judge, service on the judge and the attorney of the plaintiff was held insufficient {y). Suspension. — ^Where an excess of jurisdiction was committed by a county court judge per incuriam, and the issue of a prohibition might be an obstacle to his proceeding to another judgment in the same matter, the order nisi for a prohibition was suspended, in order to allow of an application to the judge to strike out the judgment entered per incuriam and to proceed to a rehearing of the plaint (2). Order nisi in In the casc of county courts, the grant of an order nid or a the case of . i • n county conrts. Summons to shew cause why a wnt of prohibition should not issue, shall, if the superior Court or a judge thereof so direct, operate as a stay of proceedings in the cause to which the same shall relate, until the determination of such rule or summons, or until such superior Court or judge shall otherwise order ; and the judge of the county court shall from time to time adjourn the hearing of such cause to such day as he shall think fit until such determina- tion or until such order be made. But if a copy of such rule or summons shall not be served by the party who obtained it on the (t) C. 0. B. 24. (m) C. 0. R. 7. See Wallace v. AUan, 44 L. J. C. P. 351 ; Ex parte Evans, 2 D. N. S. 410; Breedonv. Cojpp, 9 Jur. 781. (x) Eversfleld v. Nevjman, 4 C. B. N. S. 418. (y) Massey v. Burton, 3 Jur. N. S. 1108. (z) Soey V. McFarlane, 4 C. B. N. S. 718. PROCEDURE TO OBTAIN WRIT. 489 opposite party and on the registrar of the county court two clear days before the day fixed for the hearing of the cause, the judge of the county court may, in his discretion, order the party who obtained the rule or summons to pay all the costs of the day, or so much thereof as he shall think fit, unless the superior Court or a judge thereof shall have made some other order respecting such costs (a). The order may be made absolute ex parte in the first instance on Order absolute special circumstances being shewn, in the discretion of the Court instance, or judge (b). Cause is shewn on affidavit or otherwise as the circumstances of Shewing cause, the case require. No person can shew cause against an order nisi unless he has previously obtained office copies of the order and of the affidavits upon which it was granted (c). In the result the order nisi for a prohibition is either discharged or made absolute, and with or without costs as to the Court seems just (d) ; or the Court may order the delivery of pleadings. It is, according to Brett, L. J., not sufficient ground for discharging an order nisi that it asks for too extensive a prohibition ; in such case the Court should mould the prohibition, and limit it to such part as is well founded (e). There is now an appeal to the Court of Appeal from the grant Appeal from of an order nisi, as well as from an order of the Divisional Court refusal of discharging or making absolute the order nisi (/). °'' *'" 19 & 20 Vict. c. 108, s. 42, does not take away, in cases of pro- hibition to county courts, the right of appeal to the Court of Appeal from the decision of a Divisional Court (ff). The rules of Order lviii. of the Supreme Court Eules, 1883, are to apply to all civil proceedings on the Crown side including prohibition (h). " Formerly, in order to take the opinion of a Court of Appeal it would have been necessary to have the applicant declare in pro- hibition, to which declaration the other side cotdd plead, and then (a) 19 & 20 Vict. c. 108, s. 40. L. R. 10 Q. B. D. 320. (6) 0. O. R. 82. (/) Jud. Act, 1873, s. 19. (e) Id. 26. \g) Vide ante, pp. 481, 482. \d) C. 0. R. 300, Order Lxv., r. 1. Qi) C. 0. R. 216, (e) B. V. Local Government Board, 490 PROHIBITION. Renewed application. Setting aside writ. Time for appealing against issue of writ at chambers. the matter being put on the record and disposed of in the court below, by judgment on the verdict, if the issues taken were issues in fact, or on demurrer if the issues taken were issues in law, error would lie on that judgment. Now there may be an appeal against the rule " (i). The Court refused to allow a second application for a prohibition on new affidavits stating matter existing at the time of the former application (k). As to county courts, it is now provided by statute (I) that where a superior Court or judge has refused a prohibition, no other superior Court or judge shall grant it ; but this is not to afPect the right of appealing from the decision of the judge of the superior Court to the Court itself, or to prevent a second application to the same superior Court or the judge thereof on grounds different from those on which the first application was founded. It is obvious that a writ which issues out of the Petty Bag Office on a mere formal affidavit that the action in the inferior court is not within its jurisdiction, must often issue improvidently ; in which case it may be set aside either by the Court on motion or by a judge at chambers (m). Before the Judicature Acts the practice was to move before a single judge sitting iu the Bail Court (n). It has now been held that since those Acts a judge at chambers has jurisdiction to set the writ aside (o). Formerly when a judge at chambers granted a prohibition the rule was that an application to set aside his order should be made (i) Per Lord Blackburn, Mackono- chie V. Lord Penzance, L. R. 6 App. Cas. 444. See also Barton v. Titmarsh, 49 L. J. Q. B. 573 ; 42 L. T. N. S. 610, and cf. the remarks of Lord Esher, M.R., cited ante, p. 380. (le) Bodenhamv. Bicketts, 6 N. & M. 537. (0 19 & 20 Vict. c. 108 s. 44. (m) And it could be set aside either by the Court of Chancery or by a Court of Common Law. See Re Mayor, 1 Tnr. & R. 314. The application in this case was that the prohibition issued might be set aside for irregularity, or that a writ of consultation might issue to the prohibited court. (n) See Stai v. Booth, 1 L. M. & P. 440, and Baddeley v. Denton, 7 D. & L. 210, where it was held that the insertion of the name and address of the suppli- ant's attorney in the book at the Petty Bag Office, pursuant to 12 & 13 Vict, c 109, 8. 44, was not a condition precedent to obtaining a rule for a prohibition. (o) Amstell v. Lesser, L. R. 16 Q. B. D. 187, following Sahn Kyrhwrg v. Posnanski, L. R. 13 Q. B. D. 218. PEOCEDUKE TO OBTAIN WEIT. 491 not later than the end of the term next following the making of the order (jp). Now by rule 24 of Order Liv., in the Queen's Bench Division, every appeal to the Court from any decision at chambers is to be by motion, and must be made within eight days after the decision appealed against, or, if no Court to which such appeal can be made shall sit within such eight days, then on the first day on which any such Court may be sitting after the expiration of such eight days. As to motions generally, see the various rules set forth ante, Motions. pp. 72-74. (p) See Jordan v. Wilcoxon, 3 E. & B. 193, 492 PROHIBITION. CHAPTER V. Pleadings and Subsequent Pkoceedings. PAGE Pleadings in prohibition . . . 492 None in cases of prohibition to County Court 493 What pleadings must shew . . 493 Declaring in prohibition . . . 493 Order to plead is discretionary . 494 Trial, new trial and appeal . . 496 Issue of writ 496 Procedure when writ issues to 496 County Court 496 Execution 496 Costs 497 Consultation 498 Pleadings. Wheee pleadings in prohibition are ordered, the pleadings and subsequent proceedings, including judgment and assessment of damages, if any, are to be as nearly as may be the same as in an ordinary action for damages (a) ; that is, the party who would formerly declare in prohibition will deliver a statement of claim, setting forth the facts (without the evidence in support of them) on which the claim to a prohibition is based (6) ; the defendant, in like manner, setting forth in a statement of defence the grounds why the writ should be refused, including any objections of law which would formerly have been raised by demurrer (c) ; the plaintiff replying, &c. Previously to 1 Wm. 4, c. 21, the defendant could not plead more than one plea, as the sovereign, being a party to the suit, was not bound by the statute of Anne ; but since that statute (enacting that the " declaration shall be expressed to be on behaK of such party only, and not, as heretofore, on the behalf of the party and of his majesty ") the defendant was allowed to plead several pleas (d). See the rules as to pleading set forth ante, pp. 181-184. (a) C. 0. E. 137. (6) Order xix., r. 4. (c) Order xxv., rr. 1, 2. (d) Eall V. MauU, 5 N. & M. 455 ; 4 A. & E. 283. PLEADINGS AND SUBSEQUENT PROCEEDINGS. 493 In the case of prohibitions to county courts, the matter is to be None in case finally disposed of by rule or order, and no further proceedings in to county' '"" prohibition are to be allowed (e). ^ °°"'*^- Whatever is necessary to shew a jurisdiction in the inferior what plead- court should be expressly stated, because the " rule for jurisdiction shfw™"^ is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to , be within the jurisdiction of an inferior court but that which is so expressly alleged" (/). And it is an unquestioned rule that "in inferior courts and proceedings by magistrates the maxim omnia prcesu- muntur rite esse acta, does not apply to give jurisdiction " (c/). A further distinction between the superior Court and an inferior tribunal is this, that whoever pleads to the jurisdiction of the superior Court must shew what other Court has jurisdiction (h), and that the defendant dwelt there or had whereby to be attached there (i), so as to shew that the exercise of the general superin- tending jurisdiction of the superior Court is unnecessary; but such a form of plea would be unnecessary and out of place in an inferior court, and also in the superior court, when the objection is ) that the limits of a local jurisdiction are transgressed (k). In nice and difficult cases it was usual to direct the plaintiff to Declaring in declare on his prohibition, and so proceed to issue, that the merits ^^'' ' ' '°"' of the case might be brought before the Court with the greater exactness, and they thereby might be the better enabled to judge of the reasonableness of granting or refusing the prohibition (I). The action was in form to recover damages for proceeding after a writ of prohibition had been obtained and delivered to the defen- dant ; but as the plaintiff would have no ground to complain of the proceeding after writ of prohibition delivered, as an injury to (e) 19 & 20 Vict. c. 108, s. 42. (A) S. v. Johnson, 6 East, 583. (/) Peacock v. Bell, 1 Wms. Saund. (i) Smith v. Sephton, Comb. 115. 101, n., cited with approval, L. E. 2 E. Qc) Per Willes, J., L. R. 2 B. & I. & I. App. 259. Cf. Trevm- v. Wall, App. 260, 261, and authorities there 1 T. R. 151 ; Williams v. Qibls, 5 A. referred to. & E. 208. (0 S*o. Abr. Prohib. F. referring to (g) Per Holroyd, J., S. v. All Ld. Ray. 236 ; Cro. Bliz. 736 ; 4 Mod. Saints, Southampton, 7 B. & C. 785 ; 151, 152 ; Lev. 125 ; Ray. 88 ; Stile's. R. V. Bolton, 1 Q. B. 66 ; Ohew v. Eol- Pract. Leg. 473. royd, 8 Exch. 249. 494 PROHIBITION. him (though it might be a contempt against the sovereign), unless he could shew that the writ had issued properly, and that he had a just right to claim the benefit of it, this went at once to all the merits of the prohibition, and made the legal ground of it the gist of the action ; in which action, in the shape of a question whether such a prohibition as was moved for ought to hcuue lem granted, the real question, namely, whether such a prohibition ought to he granted, was solemnly considered and determined {m). The action cannot, Kke an ordinary action, be resorted to as a. matter of course, but only by direction of the prohibiting Court; and then not without the concurrence of the defendant, who may allow the prohibition to go in the first instance without even the expense of shewing cause (n). The action is in effect nothing more than an issue directed in a disputed case, only to inform the conscience of the Court whether the Court below has power to proceed ; both parties are actors, and no damages can be recovered therein, unless the plaintiff in the inferior court proceeds after a previous prohibition (o). Order to plead As the declaration in prohibition was for the purpose of inform- is Q.isCT6~ tionary. ing the conscience of the Court, that is to say, of making the Court clear, in case o'f doubt, as to the law or the facts or both, it follows that, where the Court is already clear, it may issue its writ without directing any further step to be taken by pleadings or other- wise {p). It was contended in a modern case {q) that if the Court be about to prohibit, the defendant in prohibition has a right to an order of the Court to the plaintifi' in prohibition, calling upon him to declare in prohibition ; on the authority of certain dicta to that efi'ect of Lord Mansfield and Lord Denman, the former in the case of St. John's College v. Teddington, as reported in 1 Burr. 198, and the latter in the case of Remington v. Dally, as reported in 9 Q. B. 476 ; but the Court held that no such right exists, and that it is always in the discretion of the Court to say whether the plaintiff (to) Per Eyre, C.J., Home v. CaTn- (o) Per Willes, J., tihi supra, re- den, 2 H. Bl. 533, 534. ferring to Buller's N. P. 219, and White (m) Per Willes, J., Mayor, &c., of v. Steele, 13 C. B. N. S. 231, 234. London v. Cox, L. R. 2 B. & I. App. (p) See L. R. 10 C. P. 385. 278 ; referring to Pewtress v. Ean-vey, (j) Worthington v. Jeffries, L. R. 1 B. & Ad. 154. 10 C. P. 379. PLEADINGS AND SUBSEQUENT PROCEEDINGS. 495 in prohibition shall or shall not be put to declare ; and that when the Court is clear, both in fact and law, that the inferior Court is acting in excess of or without jurisdiction, the writ of prohibition should issue without the plaintiff in prohibition being put to declare. In the judgment it is pointed out that the dicta of Lord Mans- field and Lord Denman, as contained in the reports above referred to, are differently reported elsewhere {r), and acknowledge in the defendant only " a sort of right ;" and in both cases, and in the cases which were then arising before the Courts, where the juris- diction claimed, being that of a proprietary court, was a valuable property, and where each jurisdiction claimed was by virtue of a different grant, it seemed appropriate to say that the person whose jurisdiction was attacked had almost a right, or a sort of right, to have the matter discussed in the most solemn form, and subject to appeal (s). In two other cases the expressed opinion of Lord Denman was that, where the Court entertained no doubt, it would not put the complainant to declare in prohibition (t) ; and in a later case (u) Lord Campbell, delivering the judgment of the Court, said : " If we had entertained any grave doubt upon the subject, we should have directed the applicant to declare in^prohibition ; but being clearly of opinion that there is an excess of jurisdiction in the court below, of which he is entitled to complain before us, it is our duty simply to make the rule absolute." Though the applica- tion in these cases was made by the Court below, it is, as observed by Brett, J. (x), impossible that such phraseology, without any notice of any distinction, would have been so often used if the suggested right had existed (y). (r) St. John's College v. Teddington, (x) L. R. 10 C. P. 387. as reported worn. R. u. Ely , 1 W. Bl. 81 ; (y) In the opinion of the j udges given and Bemington v. Dalhy, as reported to the House of Lords in Hotm v. Gam- in 14 L. J. Q. B. 6. den (2 H. Bl. 534, 535), by Eyre, C.J., (s) L. R. 10 0. P. 386. X it is said : " So long as the temporal (f) Chancellor, &c., of Oxford v. Courts direct parties to declare in pro- Taylor, 1 Q. B. 97^, note (a) ; Re Dean hibition, a prohibition cannot arbi- of York, 2 Q. B. 40, 41 ; Church v. In- trarily issue, nor upon any but the most closwre Commissioners, 11 C. B. N. S. solid and substantial grounds, &o." 682. See also per Lord Kenyon in Sma/rt v. (te) Be Eaber v. Qiieen of Portugal, Wolff, 3 T. R. 340. 17 Q. B. 220. 496 PROHIBITION. Trial. New trial. Appeal. Issue of writ of prohibition. Form of writ. Procedure when writ issues to county court. Execution. There is now less need than before for any pleadings in prohibi- tion, as since the Judicature Acts an appeal lies from every order of the High Court of Justice to the Court of Appeal, and thence to the House of Lords; and if all the materials requisite for deciding the case are brought before the Court on the argument of the order nisi, no advantage can arise from pleadings ia pro- hibition (z). As to the various proceedings up to and including the trial, vide ante, pp. 189 et seq. As to a new trial, the mode of obtaining it and the grounds on which it is granted, vide ante, pp. 88, 89. To Court of Appeal. — As to appeals to the Court of Appeal, vide ante, pp. 210-213, To Souse of Lords. — As to appeals to the House of Lords, vide ante, pp. 106, 107. As to the mode of preparing, testing, issuing, &c., the writ of prohibition, see the various rules set forth ante, pp. 378—381. A form of writ of prohibition wOl be found in the Appendix. Where a writ of prohibition addressed to a judge of a county court is granted by a supreme Court, or a judge thereof, on an ex parte application, the party who obtains it should lodge it with the regis- trar and give notice to the opposite party that it has been issued, two clear days before the day fixed for hearing the cause to which it shall relate (a). K in doing so default is made by the party who obtains the writ, the judge of the county court may, in his discretion, order him to pay all the costs of the day, or so much thereof as he shall think fit, unless the Supreme Court or a judge shall have made some order respecting such costs (&). Although by No. 137 of the New Crown Office Eules it is not provided, as in the corresponding rules (Nos. 134, 136) relating to qiM warranto and mandamus, that execution following upon plead- ings in prohibition is to be had as in an action (c), yet by No. 216 of the same rules. Order XLii. of the Supreme Court Kules, 1883, relating to execution, is, so far as it is applicable, made to apply to (z) See per Lord Blackburn, L. R. 6 App. Gas. 444. (a) 19 & 20 Vict. c. 108, s. 41. (6) Id. (c) Of. C. 0. R., IT. 134, 136, 137. PLEADINGS AND SUBSEQUENT PROCEEDINGS. 497 all civil proceedings on the Crown side, amongst whieh prohibition is included. See the various rules of Order XLii. set forth ante, pp. 214-220. An attachment for disobedience to a writ of prohibition may issue against both, judge and party ; and a party may be attached not only for persisting in the cause prohibited, but also for insti- tuting a new suit for the same thing {d). As to attachment for contempt, see C. 0. RE. 261 et seq. 1 Wm. 4, c. 24, s. 1, enacted that " the party in whose favour Costs, judgment shall be given, whether on nonsuit, verdict, demurrer, or otherwise, shall be entitled to the costs attending the applica- tion and subsequent proceedings, and have judgment to recover the same." This was held by Patteson, J. (e), not to apply to a case where the rule for a prohibition was made absolute without pleadings ; following the old practice under 8 & 9 Wm. 3, c. 11, s. 3 (/). This decision was followed in a recent case (g), Bovill, C.J., remarking that the Act does not apply except where there is a judgment in the legal sense of the word, that is on pleadings." But though the Court is not bound to award costs on making absolute or discharging the order, it may do so if it thinks proper (A). Costs incurred by the plaintiff in prohibition, in his defence to the suit in the inferior Court, were held not to be recoverable as damages under 1 "Wm. 4, c. 21 (i). Order LXV. of the Supreme Court Eules and Orders, 1883, as to costs is now, so far as it is applicable, to apply to all civil proceed- ings on the Crown side (/ ). See the various rules of this Order set forth ante, pp. 207 seq. On the proper interpretation of Order LV., giving the Court what is called an absolute discretion as to costs, see the judgment of Lord Justice James in Witt v. Corcoran (k) ; the judgments of (d) See Stafford's case, 1 Leon. Ill ; L. R. 6 C. P. 245. Sha/rington v. Fleetwood, Moore, 599 ; (h) Wallace v. Allen, L. R. 10 C. P. Bro. Attachment sur Prohibition, pi. 3, 607. 5, 7, 9, 11. F. N. B. 40. {k). (i) White v. Steele, 13 0. B. N. (e) B. V. Kealing, 1 Dowl. 440. 231. (/) See Pewtress v. Harvey, 1 B. & {j) C. 0. R. 300. Ad. 154. W L. R. 2 Ch. D. 69. ((/) Ex parte Overseers of JEverton., 2 K 498 PHOHIBITION. Lords Justices Brett and Cotton in Foster v. Great Western Railway Co. (l), and per Jessel, M.E., in Dicks v. Yates (m). Consultation. If after issuB of the writ of prohibition it was made to appear to the Court that it ought not to have issued, a consultation was awarded, i.e., a writ in the nature of a procedendo, addressed to the pro- hibited Court, signifying to and commanding it that it might law- fully proceed in the cause notwithstanding the prohibition. This writ of consultation owed its origin to the Statu turn de Consultatione of 18 Ed. 1 (n), which in terms refers only to ecclesiastical courts; but it became the practice to grant it also to temporal courts of inferior jurisdiction (o). It was provided by 50 Ed. 3, c. 4, that once a consultation had been duly granted the ecclesiastical judge might proceed, notwith- standing any other prohibition, provided that the matter of the libel was not enlarged or otherwise changed. But this was held to apply only where the consultation had been granted on the merits of the thing in question, and not for mere defects of form (p). It could not be granted out of term, nor by any judge out of court (q). This was formerly, after the writ had issued, the only method of questioning its propriety ; for a writ of error did not lie to the Exchequer Chamber (r), or to the House of Lords (s). (0 L. E. 8 Q. B. D. 518 seq. v. HosJcins, Cro. Car. 208 ; Sir W. Jones, (to) L. E. 18 Ch. D. 76. 231 ; Pool v. Gardner, Garth. 463. (n) Sometimes also attributed to tlie (?) Fuller's case, 12 Eep. 42. 24th year of Ed. I. (r) Free v. Burgoyne, 5 B. & C. (o) See a writ addressed to the Earl 765. Marshal, 2 Lilley's Entries, 562. (s) Bishop of St. David v. Lucy, (i>) Cox V. Serrwr, Yelv. 102 ; Strovd 1 Ld. Ray. 539. APPENDIX. FORMS. Notice to a Justice of the Peace of Intention to apply for a Criminal Infoemation. To A.B., Esquire, one of Her Majesty's Justices assigned to hear and determine divers crimes, trespasses, and other offences committed •within the county of Take notice, that the Queen's Bench Division of Her Majesty'a High Court of Justice will be moved on the day of , or so soon after as counsel can be heard on behalf of G.D., for an order to shew cause why an information should not be exhibited against you for certain misdemeanors, in unlawfully, maliciously, and corruptly, and contrary to your duty as such justice of the peace [liere set out the nature of the offence^ Dated, &c. (Signed) H.I., Solicitor for the said CD. Notice to several Justices. Commence, as above, and continue why one or more information or informations should not be exhibited against you or some or one of you, &c., as above. [No. 29 of Crown Office Forms, 1886.] Affidavit of Service of Notice. In the High Court of Justice, Queen's Bench Division. [When in a cause on the Crown side of the Court, insert the title of the cause, but not otherwise.] I, A.B., of &c., make oath and say : — 1. That I did on lie day of , serve CD., one of the When not persons to whom the notice hereunto annexed is directed, with the P^'^""'' • 2 K 2 500 APPENDIX. said notice, by delivering a copy of the said notice to , and leaving the same with [the wife, clerk, or servant of'\ the said at the residence of the said , situate at in the county of When per- 2. That I did On the day of , also serve B.F., another ^""^ ' of the persons to whom the said notice is directed, with the said notice, by delivering a copy of the said notice personally to the said at , in the county of Sworn, &c. [C. 0. Forms, 199.] Order Nisi for a Criminal Information. The day of , a.d. In the High Court of Justice, Queen's Bench Division. „ , ,. 1 Upon reading [the several affidavits of and , I and the paper writing thereto annexed, and also part of a printed paper thereto annexed beginning with the words , and ending with the words], It is ordered, that day of , in these sittings [or as the case may be], be given to J.S. to shew cause why an information should not be exhibited against him for certain misdemea;nors [adding in libel cases, " in printing and publish- ing certain scandalous libels "], upon notice of this order to be given to him in the meantime. On the motion of Mr. By the Court. Affidavit of Personal Service of Order. [Heading as in Affidavit of Service of Notice.] I, A.B., of &c., make oath and say : — That I did on the day of , 188 , personally serve CD. mentioned in the order hereunto annexed, with the said order, by delivering a true copy of the said order to the said CD. personally at , in the county of . And at the same time shewing to the said CD. the said original order. Sworn, &c. [C. 0. Forms, 200.] FORMS. 501 Affidavit of Service of Order not Personal. [^Heading as in last.'^ I, A.B., of &c., make oath and say : — That I did on the day of 188 , serve G.D. men- tioned in the order hereunto annexed, with the said order, by deliver- ing a true copy of the said order to , and leaving the same with [the wife, clerk, or servant] of the said CD., at the dwelling-house [or office] of the said CD. situate at , in the county of . And at the same time shewing to the said the said original order. Sworn, &c. [C. 0. Forms, 201.J Enlarged Order for a Criminal Information. day the day of , a.d. 188 . In the High Court of Justice, Queen's Bench Division. 1 Upon [reading the affidavits of and upon] hearing J counsel on both» sides, It is ordered that the day of the next sittings [or, whatever day is fixed] be further given to to shew case why an information should not be exhibited against him for certain misdemeanors [in printing and publishing, &c., or as the case may be] ; the said hereby undertaking, in case the said information shall be exhibited, to appear and plead thereto within [four] days afterwards, or in default that the prose- cutor may sign judgment against him for want of a plea ; and it is further ordered that all affidavits to shew cause be filed before the day of shewing cause. Mr. , for the prosecutor. Mr. , for the defendant. By the Court. Order discharging Order Nisi for a Criminal Information. The day of , a.d. London. s Upon hearing counsel on both sides. It is ordered the prose'cu- / ^^^^ [upon payment of all costs (sometimes as between tion of > solicitor and client), by the defendant to the prosecutor aeains^ ' I '^^' ^^® solicitor, or as the case may be] the order made CD., / the of last, that the said CD. should shew 502 APPENDIX. cause why an information stould not be exhibited against him for certain misdemeanors [in printing and publishing certain scandalous libels] be discharged. Mr. , for the prosecutor. Mr. , for the defendant. By the Court. Order Absolute for a Criminal Isformation. The day of , a.d. „ ' } Upon reading the several affidavits of [A.B., CD., ) &c., and the paper wntmg thereto annexedj, and upon hearing counsel on both sides, It is ordered. That an information be exhibited against J.S. for certain misdemeanors [in libel cages say, " in printing and publishing certain scandalous libels."] Mr. , for the prosecutor. Mr. , for the defendant. By the Court. Eecognizance to prosecute Information (CEmiNAL). Be it remembered, that on the day of , 188 , before Frederick Cockbum, Esquire, Queen's coroner and attorney, in the Queen's Bench Division of Her Majesty's High Court of Justice, before the Queen herself, cometh A.B. {the prosecutor) of &c., and acknow- ledges to owe to CD. [the defendant] the sum of fifty pounds upon condition to prosecute with effect a certain information exhibited against the said CD. by the said coroner and attorney, before the Queen herself, in the said Court for certain misdemeanors, and abide by and observe all such orders and things as the said Court shall direct in that behalf. Taken, &c. (Signed) F. Cockburn, (Queen's coroner and attorney). (C. O. Forms, 27.1 Criminal Information not Ex-OFFiao. Middlesex, to wit. Be it remembered, that Frederick Cockbum, Esquire, coroner and attorney of our present Sovereign Lady the Queen, in the Queen's Bench Division of Her Majesty's High Court of Justice, before the FORMS. 503 Qiieen herself, who for our said Lady the Queen in this behalf pro- secutes in his own proper person, comes here into Court, before the Queen herself, at the Eoyal Courts of Justice, London, on [the day the order was made absolute]. And for our said Lady the Queen gives the .Court here to understand and be informed, that [state offence and therp proceed in the same manner as if it were an indictment]. Second Count. — And the said coroner and attorney of our said Lady the Queen, for our said Lady the Queen, further gives the Court here to understand and be informed that, &c. [To conclude.] Whereupon the said coroner and attorney for our said Lady the Queen prays the consideration of the Court here in the premises, and that due process of law may be awarded against him, the said^.G^., in this behalf to make him answer to our said Lady the Queen touching and concerning the premises aforesaid. (Signed) F. COCKBURN, (Queen's Coroner and Attorney). [0. 0. Forms, 30.] Information Ex-officio. Information by the Attorney General or Solicitor General, ex officio. In the same form, using the name of the Attorney General [or Solicitor General] instead of the Queen's coroner and attorney, thus — Sir A.B., Knight, Attorney General [or Sir G.D., Knight, Solicitor General] of our present Sovereign Lady the Queen, who for our said Lady the Queen in this behalf prosecutes, whereupon, &c., the said Attorney General, &c., as in the prayer. [G. 0. Forms, 31.J Information for a Seditious Libel. [Commencement as before.] That Sir F. Burdett, late of Westminster, in the county of Middle- sex, Baronet, being a seditious, malicious, and ill-disposed person, and unlawfully and maliciously devising and intending to raise and excite discontent, disaffection, and sedition among the liege subjects •of our Lord the present King, and amongst the soldiers of our said Lord the King, and the more to excite the liege subjects of our said 504 APPENDIX. Lord the King to hatred and dislike of the Government of this realm, and to insinuate and cause it to he believed by the liege subjectB of our said Lord the King, that divers of the Uege subjects of our said Lord the King had been inhumanly cut down, maimed, and killed by certain troops of our said Lord the King, heretofore, to wit, on &c., at Loughborough, in the county of Leicester, unlawfully and mali- ciously did compose, write, and publish, and cause to be composed, written, and published, a certain scandalous, malicions, and seditious libel of and concerning the Government of this realm, and of and con- cerning the said troops of our said Lord the King, according to the tenor and effect following [that is to say] : " To the Electors of West- minster. Gentlemen, on reading the newspapers this morning, &c. What ! kill men unarmed, unresisting ! and, gracious God, women too disfigured, maimed, cut down, and trampled on by dragoons (meaning the said troops of our said Lord the King, and meaning thereby that divers liege subjects of our said Lord the King had been inhumanly cut down, maimed, and killed by our said Lord the King). Is this England," &c., in contempt of our said Lord the King and his laws, to the evil example of all others and against the peace of our said Lord the King, his Crown and dignity. [Conclusion as before.] [From B. v. Burdett, 4 B. & A. 115-117. See also B. v. Lambert and Perry, 31 How. St. Trials, 335 ; and 2 Chitt. Gr. L. 890.] Ex-OFFicio Information foe an Obscene Libel. First count. Middlesex, to wit. " That late of being a person of a wicked and depraved mind and disposition, and most unlawfully, wickedly, and impiously devising, contriving and intending to vitiate and corrupt the morals of all the subjects of our said present Sovereign Lady the Queen, and to debauch, poison and infect the minds of the youth of this kingdom, and to bring them into a state of wickedness, lewdness, debauchery and impiety, on &c., at &c., did unlawfully, wickedly and impiously publish and sell, and cause and procure to be published and sold, a certain wicked, nasty, filthy, bawdy, impious and obscene libel, entitled , in which said libel are contained, amongst other things, divers wicked, false, feigned, lewd, impious, impure, gross, bawdy and obscene matters, that is to say, in one part thereof, according to the tenor following, viz. \here set out libel]. And in another part thereof, accord- ing to the tenor following, viz. [here set out the other libellous part] to the high displeasure of Almighty God, to the scandal and reproach of the Christian religion, in contempt of our said Lady the Queen and FORMS. 505 her laws, and to tlie great offence of all civil governments, to the evil and pernicious example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. " And the said Attorney-General of our said Lady the Queen, who Second count, for our said Lady the Queen in this behalf prosecutes, further gives the Court here to understand and be informed, that the said , being such person as aforesaid, and most unlawfully, wickedly and impiously devising, contriving and intending as aforesaid, and the sooner to accomplish, perfect and bring to effect his said most unlaw- ful and wicked purposes, afterwards, that is to say on &c., at &c., did unlawfully, wickedly and impiously publish and sell, and cause and procure to be published and sold, a certain other wicked, nasty, filthy, bawdy, impious and obscene libel entitled , in which said last- mentioned libel are contained, amongst other things, divers wicked, false, feigned, lewd, impious, impure, unnatural, bawdy and obscene prints, representing and exhibiting men and women with their private parts, in most indecent postures and attitudes, and representing men and women in the act of carnal copulation, in various attitudes and postures, and also representing and exhibiting men in the act of com- mitting the detestable crime of sodomy, to the high displeasure, &c." [Conclusion as before.] [Adapted from indictment 2 Chitt. Cr. L. 44. See also 3 Chitt. C. L. 887.] Ex-oFFicio Infoemation fok a Blasphemous Libel. Middlesex, to wit. " That Daniel Isaac Baton, late of , bookseller, being an evil- First count, disposed and wicked person, and disregarding the laws and religion of this realm, and wickedly and profanely intending to bring the Holy Scriptures and the Christian religion into disbelief and contempt among all the liege subjects of our said Lord the King, did heretofore, to wit on the &c., at &c., unlawfully and wickedly print and publish, and cause to be printed and published, a certain scandalous, impious, and blasphemous and profane libel of and concerning the Holy Scrip- tures and the Christian religion, containing therein, amongst other things, divers scandalous, impious, blasphemous and profane matters of and concerning the Holy Scriptures and the Christian religion, in one part thereof according to the tenor and effect following (that is to say) : ' But the case is, that people have been so long in the habit of reading the books called the Bible (meaning that part of the Holy Bible called the Old Testament) and Testament (meaning the New Testament) with their eyes, shut,' &c. And in another part thereof 506 APPENDIX. according to the tenor and effect following (that is to say), ' I forbear making any remark on this ahominahle imposition of Matthew (mean- ing the Holy Evangelist Saint Matthew), the thing glaringly speaks for itself,' &c. To the high displeasure of Almighty God, to the grfeat scandal of the (christian religion, to the evil example of all others, and against the peace of our said Lord the King, his crown and dignity. Second count. ^jj^ ^jjg ga,id Attorney-General of our said Lord the King, who for our said Lord the King in this behalf prosecutes, further gives the Court here to understand and be informed, that the said Daniel Isaac Eaton further impiously and profanely devising and intending as aforesaid, did afterwards, to wit, on the same day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, unlawfully and , wickedly print and publish, and cause to be printed and published, a certain other scandalous, impious, blasphemous and profane libel of and concerning the Holy Scriptures and the Christian religion, to the tenor and effect following (that is to say), &c. Whereupon the said Attorney-General, &c. [Conclusion as before.] , [2 Chitt. Crim. L. 14.] For a Libel (m a Foreign Tongue) on a Foreign Eulek. [Commencement as before.] " That before and at the time of the printing and publication of the scandalous, malicious and defamatory libels and libellous matters and things hereinafter next mentioned, there subsisted- and now subsists friendship and peace between our sovereign Lord the King and the French Eepublic, and the subjects of our said Lord the King and the citizens of the said republic, and that before and at those times citizen Napoleon Bonaparte was and is yet first consul of the said French Eepublic, and as such the chief magistrate of the same [to wit, at the parish of St. Anne, within the liberty of Westminster, in the county of Middlesex], and the said Attorney-General of our said Lord the King further giveth the Court here to understand and be informed that Jean Peltier, late of Westminster, in the county of Middlesex, gentle- man, well knowing the premises aforesaid, but being a malicious and iU-disposed person, and unlawfully and maliciously devising and intending to traduce, defame and vilify the said Xapoleon Bonaparte, and to bring him into great hatred and contempt, as well among the liege subjects of our said Lord the King as among the citizens of the said republic, and to excite and provoke the citizens of the said republic by force and arms, to deprive the said Napoleon Bonaparte FOBMS. 507 of hi,s consular office and magistracy in the said republic, and to kill and destroy the said N. B. ; and also , unlawfully and maliciously devising as much as in him the said Jean Peltier lay, to interrupt, disturb and destroy the friendship and peace subsisting between our said Lord the King and his subjects and the said N. B., the French Eepublic, and the citizens of the same republic, and to excite animosity, jealousy and hatred in the said N. B. against our said Lord the King and his subjects, on &c., unlawfully and maliciously did print and publish,, and cause and procure to be printed and published, a most scandalous and malicious libel, containing therein, amongst other things, divers scandalous and malicious matters in the French lan- guage, of and concerning the said N. B. (that is to say), in one part thereof to the tenor following, to wit, ' Quelle tempetes,' &c. \Jiere state a part of the libellous matter in French] and in another part thereof to the tenor following, i.e., ' Deja dans sa rage,^ &c. \Jiere state another part of the libellous matter in French] which said scandalous and malicious words in the French language, first above-mentioned and set forth, being translated into the English language were and are of the same signification and meaning as these English words following, viz., ' What frightful tempests,' &c. [here set forth the translation], and which said scandalous and malicious words in the French language last above-mentioned and set forth, being translated into the English language were and are of the same signification as these English words following, that is to say, ' Already in his insolent rage the despot [meaning the said Bonaparte] desires,' [here set forth the transla- tion], &c., to the great scandal, disgrace and danger of the said N. B., the French Eepublic and the citizens of the said republic, to the evil example of all others in the like case offending, in contempt of our said Lord the King and his laws, and against the peace of our said Lord the King, his crown and dignity." ^x-OFFicio Information for Bribery at a Parliamentary Election. Kent, to wit. Be it remembered that , Knight, Attorney-General of our First count, sovereign Lady the Queen, who for our said Lady the Queen prose- cutes in this behalf, in his proper person comes here into Court before the Queen herself, at the Eoyal Courts of Justice, London, on the day of , in the year of our Lord 188 . And for our said Lady the Queen gives the Court here to understand and be informed that heretofore, to wit, on the day of in the year of our Lord 188 , at the borough of in the county of Kent, a certain electioni was had and held for theelectirigand choosing of a burgess 508 APPENDIX. Second count. to serve in this present Parliament for the said borongh of , and that before and at the time of the committing of the several offences hereinafter mentioned, A. B. Tvas a candidate to be elected and re- turned at the said election as a burgess to serve in Parliament for the said borough of . And the said Attomey-General of our said Lady the Queen further gives the Court here to understand and be informed that G. D. was guilty of bribery at the said election against the form of the statute in that case made and provided, and against the peace of our said Lady the Queen, her crown and dignity. And the said Attomey-General of our said Lady the Queen, for our said Lady the Queen, further gives the Court here to understand and be informed that heretofore and before the said election in the first count of this information mentioned was so had and held as therein mentioned, to wit, on the day of , in the year of our Lord 188 , the said C. D. unlawfolly, wilfully and corruptly did advance and pay, and cause to be advanced and paid, to wit, to one E. F. certain money, to wit, the sum of £ , with the intent that such money or some part thereof should be expended in bribery at the said election, in contempt of our said Lady the Queen and her laws, to the evil example of all others in the like case offending, against the form of the statute in that case made and provided, and against the peace of our said Lady the Queen, her crown and dignity. And the said Attomey-General, &c., that heretofore and before the said election in the first count in this information mentioned was so had and held as therein mentioned, to wit, on the day of , in the year of our Lord 188 , the said C. D. unlawfully, wilfully and corruptly did advance and pay, and cause to be advanced and paid, certain money, to wit, the sum of £ to the use of certain other persons, to wit G. H., I. J., &c., with the intent that such money, or some part thereof, should be expended, to vsit, by the persons afore- said, in bribery at the said election, in contempt, &c. Fourth count. And the said Attomey-General, &c., that heretofore and before the said election in the first count of this information mentioned was so had and held as therein mentioned, to wit, on the ' day of in the year of our Lord 188 , the said C. D. unlawfully, wilfully and corruptly did directly by himself give and agree to give certain money, to wit, £ to a certain person, to wit, K. L., then being a voter having a right to vote at the election aforesaid, in order to induce the said K. L. to vote at the said election ; against the form of the statute in that case made and provided, and against the peace of our said Lady the Queen, her crown and dignity. And the said Attorney-General, &c., that heretofore and before the said election in the first count of this information mentioned, was so had and held as therein mentioned, to wit on the day of , Third count. Fifth count. POEMS. 509 an the year of our Lord 188 , and on divers days and at divers times, both before that day and before and at the time of the said election ■was so had and held as aforesaid, to wit, at the said borough of , the said C. D. with K F., M. N., X. Y., and divers other persons whose names are to the said Attorney-General unknown, did unlaw- fully and wickedly conspire, combine, confederate and agree to commit bribery at the said election, in contempt of our said Lady the Queen, &c. And the said Attorney-General, &c., that heretofore and before the Sixth count, said election in the first count of this information mentioned was so had and held as therein mentioned, to wit, on the day of , in the year of our Lord 188 , and on divers days and at divers times before and at the time the said election was so had and held as afore- said, to wit, at the said borough of , the said G. B., with one E. F., and divers other persons whose names to the said Attorney- General are unknown, unlawfully and wickedly did conspire, com- bine, confederate and agree unlawfully and corruptly, to procure the said A. B., so then being a candidate to be elected and returned at the said election, as in the first count of this information mentioned, to be thereat elected and returned by bribery at the said election, to the evil example of all others in tlie like case offending, and against the peace, &c. And the said Attorney-General, &c., that beretofore &c., to wit, on Seventh count, the day of , in the year of our Lord 188 , and on divers days and at divers times before, both before and at the time the said election was so had and held as aforesaid, to wit, at the said borough of , the said G. B., with one K F., and divers other persons whose names to the said Attorney-General are unknown, unlawfully and wickedly did conspire, combine, confederate and agree to bribe and cause to be bribed, divers persons whose names to the said Attorney-General are unknown, these being persons having respec- tively a right to vote at the said election of a burgess to serve in Parliament for the said borough of corruptly to give their votes at the said election to tbe said A. B., then being a candidate as afore- said thereat to be elected and returned, to the evil example, &o., and against the peace, &c. And the said Attorney-General, &c., that heretofore &c., to wit, on Eighth count. &c., and on divers days and at divers times before and at the time the said election was so had and held as therein mentioned, to wit, at tbe said borough of , the said G. B., with one E. F. and divers other persons whose names to the said Attorney-General are unknown, did unlawfully and wickedly conspire, combine, confederate and agree unlawfully and corruptly to advance and cause to be advanced, to wit, to K. L., M. N., X. Y., and divers other persons whose names to 510 APPENDIX. the said Attorney-General are unknown, certain money, to wit, the sum of £ , with the intent that such money, or some part thereof, should be expended, to wit, by the persons last aforesaid in bribing 850 persons whose names are to the said Attorney-General unknown, these being persons having respectively a right to vote at the said election for the said A. B., so then being a candidate to be elected and returned at the said election as in the first count of this Informa- tion is mentioned, to be thereat elected and returned, to the evil example, &c., &c. And therefore the said Attorney-General, &c. [Conclusion as before (a). J [The above is from one of the Informations filed after the General Election of 1880.] For other examples of Criminal Informations see the following : — Ex-offido. — For libels on the Koyal Family and Prince Eegent (2 Chitt. Cr. L. 88 ; 3 Chitt. Cr. L. 882) ; for Hbels on foreign ambassadors (2 Chitt. Cr. L. 64 ; 4 Went. Prec. 10 ; 3 Chitt. Cr. L. 882) ; for riot and breaking open the house of a foreign ambassador and taking goods therefrom (2 Chitt. Cr. L. 58) ; for a libel on the judges (3 Chitt. Cr. L. 878) ; for seditious libels (2 Chitt. Cr. L. 90, 91) ; for seditious words (2 Chitt. Cr. L. 96, 97); for obstructing excise and custom house officers in the execution of their duties (2 Chitt. Cr. L. 126-141 ; 4 Went. Prec. 386-391) ; for attempting to bribe government officers (3 Chitt. Cr. L. 693, 695) ; for accepting bribes (3 Chitt. Cr. L. 689, 697) ; for riotous disturbance of and insults to property tax commis- sioners in the execution of their duties (2 Chitt. Cr. L. 490 ; 3 Chitti Cr. L. 914) ; for violating and attempting to evade various Acts of ParUament (4 Went. Prec. 437-546). Not ex-offido.— For libels (3 Chitt. Cr. L. 884, 898 ; 4 Went. Prec. 449); for sending challenges (3 Chitt. Cr. L. 848-852, 854-857, 869); for attempting to bribe the First Lord of the Treasury in order to procure the reversion to an office (3 Chitt. Cr. L. 683); for conspi- racies of various kinds (2 Chitt. Cr. L. 494, 627 ; 3 Chitt. Cr. L. 1164; 6 Went. Prec. 439); for offences by magistrates (2 Chitt. Cr. L. 236, 239, 244, 249, 263) ; against a gaoler for extortion in office and (a) Where an indictment (since the the indictment was defective, and on Corrupt and Illegal PracticesPrevention application before verdict mig lit. have Act, 1883, 46 & 47 Vict. c. 51) charged been quashed ; but (by Lord Coleridge, only that the defendant was " guilty C.J., and Field and Mathew, JJ. ; dis- of corrupt practices against the form of senfientibus Denman and Day JJ.), the statutes in that case made and that the defect was cured by the verdict provided," it was held by Lord Cole- of guilty.— [L. E. 17 Q. B.D. 327; 55 ridge, C.J., and Denman, Mathew and L T. N. S. 122.] Day, JJ. (Field, J., dissenting), that FORMS. 511 permitting an escape (2 Ohitt. Cr. L. 297) ; for compounding a qui tarn action (2 Chitt. Cr. L. 223). Certificate of Indictment found ok Infoemation filed in the Queen's Bench Division. In the High Court of Justice, Queen's Bench Division. (^Middlesex.) The Queen V. J.J. I hereby certify that J.J. stands charged hy indictment found [or information filed] against him in this division on the day of , 1886, with [here shortly state the offence'] and that the said J.J. has not appeared or pleaded to the said indictment [or information] nor is he under any recognizance so to do. Dated, &c. (Signed) F. COCKBURN, (Queen's Coroner and Attorney). [or other proper officer of the Crown Office.] [C. O. Forms, 41.] Notice to Defendant to appear to Information in pursuance of UNDERTAKINa IN ENLARGED OrDER. [Copy the enlarged Order containing the undertaking to appear, and write the following notice at the foot.] In the High Court of Justice, Queen's Bench Division. [Somersetshire.] The Queen V. B.B. Take notice, that in pursuance of the above Order, an information has been filed in the Queen's Bench Division of Her Majesty's High Court of Justice against the above-named defendant for certain mis- demeanors. And that he is hereby .required to cause an appearance to be entered in the said Court thereto immediately in pursuance of his undertaking contained in the above Order. And in default thereof the said Court will be moved on the day of or so soon 512 APPENDIX. after as counsel can be heard, that the prosecutor be at liberty to enter an appearance thereto for the said defendant, and to sign judg- ment against him [or that an attachment may issue against him for his contempt in not performing his said undertaking]. Dated, &c. (Signed) M.N., of L., agent for G.K, of T., solicitor for the prosecution. To B.B., the above-named defendant, and to , his solicitor or agent. If it is intended to apply for an attachment, this notice must be served personally. [C. 0. Forms, 46.] Weit of Subpoena, to answer on Infoemation. ViCTOEiA, by the Grace of God, &c., to A.B. : We command you that, laying aside all pretences and excuses whatsoever, you be and appear in the Queen's Bench Division of Our High Court of Justice before Us at the Royal Courts of Justice, London, on the day of 188 , to answer to Us of and concerning such matters and things as shall then and there be objected against you on Our behalf, and, farther to do and receive all and singular such matters and things as Our said Court shall then and there consider of concerning you in this behalf. And this you are not to omit under the penalty of one hundred pounds, to be levied upon your goods and chattels, lands and tenements, if you shall make default in the premises. Witness, &c. Indorsem,ent when on Criminal or Ex-offido Information. Frederick Cockbum, Esquire, Queen's Coroner and Attorney, in the Queen's Bench Division of Her Majesty's High Court of Justice, before the Queen herself [or, if ex officio, Eichard Webster, Knight, Attorney-General of our Lady the Queen], for our said Lady the Queen, prosecutes this writ against the within-named A.B., upon an information exhibited against him by the said Frederick Cockbum [or Sir Eichard Webster] in the said Court for certain misdemeanors whereof he is impeached. [C. O. Forms, 51.] FORMS. 513 Affidavit of Service of Subpcena to answer to an Information. In the High Court of Justice, Queen's Bench Division. (Middlesex.~) — The Queen against A.B. I, CD., of, &c., make oath and say : That I did on the day of 188 , serve A.B., the above- named defendant, with the writ of subpoena to answer in this pro- secution hereunto annexed, and of the indorsement thereon, by delivering a true copy of the said writ and indorsement thereon to, and leaving the same with [a servant of the said] A.B., at the house or residence [or ofS.ce] of the said. A.B., situate at , in the county of . And at the same time showing to the said [servant of the said] A.B. the said original writ of subpcena ; and which said writ appeared to this deponent to be duly and regularly issued out of and under the seal of this honourable Court. Sworn, &c. (Signed) CD. Filed on behalf of the prosecutor [or relator]. In cases against the Printers and Publishers of Newspapers. Say [as ahove], by delivering a true copy of the said writ of subpoena and indorsement thereon, to, and leaving the same with, a clerk or servant of the said defendants, at the office of the said defen- dants, called or known as the office of the newspaper, situate at , in the county of . And at the same time, &c. [as above^. ' [C. 0. Terms, 53.] Warrant of Arrest. In the High Court of Justice, Queen's Bench Division. England, to wit. "Whereas it is certified to me by the proper officer in that behalf that [as in certificate No. 41]. These are, therefore, to command you forthwith to apprehend the said A.B., and to bring him before me or some other Judge of the High Court, or before some one or more of the justices of the peace 2 L 514 APPENDIX. in and for the said [county] of , to be dealt with according to law. Dated, &c. To Mr. [Lewis] tipstaff of the Queen's Bench Division of the High Court of Justice, and to all constables and other peace officers whom it may concern. [C. 0. Forms, 43.] (Signed) COLEEIDGE, (Lord Chief Justice of England). Waeeant to admit to Bail on Information filed in Queen's Bench Division. In the High Court of Justice, Queen's Bench Division. England, to wit. Whereas it is certified to me by the proper officer in that behalf that [as in certificate No. 41]. These are, therefore, to command you forthwith to apprehend the said A.B., and to bring him before me or some other Judge of the High Court of Justice in Chambers at the Eoyal Courts of Justice, London, or before one or more justice or justices of the peace near to the place where he shall be taken, to the end that he may find suf- ficient sureties for his immediate appearance in this Court, and forth- with to plead to the said indictment, " and to try the same at the then [or next] sittings of the said Court," and personally to appear in the said Court on the trial of the said indictment [or information], and also upon the return of the postea, if he shall be convicted, and be further dealt with according to law. Dated, &c. (Signed) Coleridge, f Lord Chief Justice of England). [C. 0. Forms, 44.J Notice of Bail to avoid Arrest. [Heading as in No. 46.] Take notice that the above-named defendant will appear before a Judge in Chambers at the Eoyal Courts of Justice, London [or before FOEMS. 515 a justice of the peace in and for the county of at ,J on the day of 188 , at the hour of in the noon, and ■will then enter into his own recognizance, and put in bail to appear in this Court on the day of 188 , to the indictment found against him in this prosecution for certain misdemeanors, and to plead thereto and try the same at the present [or next] [Trinity'] sittings of the High Court [omit words in italics if indictment not found in this Court] and personally to appear at the trial of the said indictment [or information], and on the return of the postea, if it he necessary, and so from day to day, and not to depart without leave of the Court. And the names and descriptions of such bail are A.B. of, &c. and CD., of &c. Dated, &c. (Signed) . M.N., of T., agent for X.T., of S., solicitor for the above-named defendant. To CD., the prosecutor, or to Mr. F., the solicitor or agent for the prosecutor. [C. 0. Forms, 47.] Eecogwzance to answer Information. Be it remembered, that on the day of 188 , A.S., CD., and E.F., come before me, G.H., Esquire, one of Her Majesty's Justices of the Peace for the county of , and acknowledge to owe our Sovereign Lady the Queen the several sums following (that is to say) : — The said A.B. the sum of pounds, the said CD. and the said E.F., the sum of pounds each of lawful money of Great Britain, to be levied upon their several gnods and chattels, lands and tenements, to Her Majesty's use, upon condition that if the said A.B. shall appear in the Queen's Bench Division of Her Majesty's High Court of Justice, at the Eoyal Courts of Justice, London, forthwith, and answer an indictment [or information] against him for certain [misdemeanors] according to the course of the said Court, and try the same at the present [or next] sittings of the said Court [omit words in italics if indictment found elsewhere than in this Court], or so soon after as the case can be heard, and shall personally appear from day to day on the trial of the said indictment, and not depart until he shall be discharged by the Court before whom such trial shall be had, and shall appear from day to day on the return of the postea in the said Court, if it be necessary, and not depart until discharged by such last-mentioned Court, then this recognizance to be void or else to remain in full force. Taken, &c. [C. 0. Forms, 48.] 2 L 2 516 APPENDIX. Notice to be indorsed on Copy Information, to be served on a Defendant in Prison for want of Bail to answer. In the High Court of Justice, Queen's Bench Division. [Devonshire.] The Queen against J.J. Take notice, that unless you shall, within the space of eight days next after the delivery hereof, cause an appearance, and also a plea or demurrer to be entered in this Court to the within information [or indictment], an appearance, and a plea of Not Guilty will he entered thereto, in your name, pursuant to the rule in that case made and pro- vided, and that the issue to he joined thereon will be tried at the next Assizes to be holden in and for the county of , [or at the present [or next] [Hilary] sittings of the High Court of Justice. Dated, &c. (Signed) M.N., oi L., agent for XF., of 5., solicitor for the prosecution. To J.J., the above- named defendant. [C. 0. Forms, 49.] Affidavit of Service of Copy Information, with Notice indorsed, ON Defendant in Gaol. [Heading as in 10^1.] I, A.B., of, &c., make oath and say, — That I did on the day of 188 , deliver to the above- named Defendant, then a prisoner in Her Majesty's prison at , in and for the county of , at the said prison, a copy of the paper writing hereunto annexed marked with the letter [annex a copy of the information and notice indorsed], and of the indorsement thereon. Sworn, &c. [C. 0. Forms, 50.] Writ of Venire Faclis, to answer. Victoria, by the Grace of God, &c., to the Sheriff of Lancashire, greeting : We command you that you cause to come before Us, in the Queen's Bench Division of Our High Court of Justice, at the Eoyal FORMS. 517 Courts of Justice, London, on the day of 188 , A.B., to answer to Us for certain misdemeanors whereof he is indicted, and have yon then there this writ. Witness, &c. This writ was issued by, &c. [C. 0. Forms, 52.] Wbit of Attachment to answer an Infokmation. Victoria, by the Grace of God, &c., to the sheriff of , greeting : "We command you that you attach A.B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice, at the Eoyal Courts of Justice, London, on the day of , to answer to Us for certain misdemeanors whereof he is impeached, and that you have then there this writ. Witness, &c. [C. 0. Forms, 54.J Writ of Capias to answer Information. Victoria, by the Grace of God, &c., to the sheriff of , greeting : We command you that you take A.B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice at the Eoyal Courts of Justice, London, on the day of , 188 , to answer to Us for certain misdemeanors [or felonies] whereof he is indicted [or impeached]. And have you then there this writ. Witness, &c. \_For writ of capias ad satisfaciendum after judgment, see No. 144.] [C. 0. Forms, 57.] Writ of Capias ad Satisfaciendum after Judgment. Victoria, by the Grace of God, &c., to the sheriff of , greeting : We command you that you take A.B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice, on the day of 188 , to satisfy Us concerning his redemption by reason of certain whereof he is indicted, and thereupon by a jury of the country taken between Us and the said A.B. [or by his own 518 APPENDIX. default or confession] he stands convicted, as in Onr said Court before Us it appears upon record. And have you then there this writ. Witness, &c. [0. O. Forms, 144.] Writ of Capias cum Pkoclamatione. Victoria, by the Grace of God, &c., to the sheriff of , greeting : Whereas by Our Writ of Exigent, having the same day of teste and return as this Our Writ of Proclamation, We have commanded you that you cause to be exacted [or, of in London, demanded] A.B., from county court to county court [or if in London, from hustings to hust- ings] until he shall be outlawed, according to the law and custom of England, if he shall not appear. And if he shall appear, that then you take him, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice at the Eoyal Courts of Justice, London, on the day of , 188 , to answer to Us for certain whereof he is indicted [a» in the Exigent]. We therefore command you that you cause three procla- mations to be made according to the rule in that case made and pro- vided, in the form following, that is to say, one of the same proclama- tions in the open county court of and in your county, and one other of the same proclamations to be made at the general quarter sessions of the peace in those parts where the said A.B., at the time of the said exigent awarded, was dwelling, and one other of the same procla- mations to be made one month at least before the fifth time exacted by virtue of the said Writ of Exigent, at or near to the most usual door of the church or chapel of that town or parish where the said A.B. was dwelling at the time of the said exigent so awarded. And if the said A.B. was dwelling out of any parish, then in such place as aforesaid of the parish in your county next adjoining to the place of the dwelling of the said A.B., and upon a Sunday immediately after divine service and sermon, if any sermon there be. And if no sermon there be, then forthwith immediately after divine service, that he, the said A.B., render himself unto you before or at the time when he shall be the fifth time exacted by virtue of the said Writ of Exigent. So that you may have his body before Us in the said Queen's Bench Division, on the day of 188 , to answer to Us for the aforesaid, whereof he is indicted. And have you then there this writ. Witness, &c. \_To have the same teste and return as the Exigent, next succeeding form.] [C. 0. Forms, 58.] FORMS. 519 Writ of Exigent befoke Conviction. ViCTOEiA, by the Grace of God, &c., to the sheriff of , greeting : We command you that you cause to be exacted A.B., from County Court to County Court, until he shall be outlawed, according to the law and custom of England, if he shall not appear. And if he shall appear, that then you take him, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice, at the Eoyal Courts of Justice, London, on the day of 188 , to answer to Us for certain whereof he is indicted, and whereupon you have before returned unto Us that the said A.B. was not found in your bailiwick. And have you then there this writ. "Witness, &c. If in London.— InstesA of " exacted," say " demanded," and instead of " from County Court to Court," say " from busting to busting." If against a woman. — Say " waived " instead of " outlawed." If against a man and woman. — Say " outlawed and waived." [C. 0. Forms, 59.] Weit of Capias cum Peoclamatione into a Poeei'^n County. VicTOEiA, by the Grace of God, &c., to the sheriff of , greeting : We command you that you take A.B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice at the Eoyal Courts of Justice, London, on [three or four months between teste and return, as the case may he'], the day of next, to answer to Us for certain [misdemeanors] whereof he is indicted ; and if you cannot find the said A.B. in your bailiwick, that then you make public proclamation in two County Courts of your county before the return of this writ, that he be before Us at the aforesaid day to answer to Us concerning the premises according to the rule in that case made and provided, and have yoii then there this writ. Witness, &c. This writ was issued by, &c. [C. 0. Forms, 60.] Weit of Exigent with Allocatue. ViCTOEiA, by the Grace of God, &c., to the sheriff of , greeting : We command you that allowing the County Courts at which was exacted and did not appear as you returned to Us on the day of last, you cause him to be further exacted at your 520 APPENDIX. next County Court, and so from County Court to County Court, until he shall be outlawed, according to the law and custom of England if he shall not appear. And if he shall appear, that then you take him and him safely keep, so that you may have his body before Us in the Queen's Bench Division of Our High Court of Justice at the Eoyal Courts of Justice, London, on the day of 188 , to satisfy Us concerning his redemption by reason of certain whereof he is indicted, and thereupon by his own confession [or by a jury of the country], he stands convicted as in our Court before Us it appears upon record [or to answer to Us for certain whereof he is in- dicted.] And whereupon you have before returned unto Us that the said was not found in your bailiwick, and have you then there this writ. Witness, &c. In London. — Say " hustings " instead of " County Court," and " demanded " instead of " exacted." [To he tested on the day of the return of the previous writ, and made returnable on the first or last day of the following sittings. Alias writs of Allocatur Exigent to issue if necessary, to make up the quinto exact, i.e., until the defendant has been exacted at five County Courts. [C. O. Forms, 61.J Weit of Capias Utlagatum. Victoria, by the Grace of God, &c., to the sheriff of , greeting : We command you that you take A.B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us, in the Queen's Bench Division of Our High Court of Justice, at the Eoyal Courts of Justice, London, on the day of 188 , to stand right in Our Court, before Us, upon a certain outlawry against him, at Our suit, for certain whereof he is indicted, &c., and thereupon he is declared outlawed in your county, and have you then there this writ. Witness, &c. [C. 0. Forms, 62.] Writ of Capias Utlagatum, Special, cum breve de Inquirendo. [Same as the preceding.] [And after the words " declared outlawed in your cmnty," add : — We also command you that you diligently inquire by the oath of good and lawful men of your bailivnck, what goods and chattels, lands and tenements, the said A.B. had on the said day of 188 EOEMS. 521 [the date of capias utlagatum] in your said bailiwick ; and those goods and chattels, lands and tenements, into whose hands soever they may have come, in your hailiwick, you cause to he taken, seized into Our hands, and appraised according to the full value thereof, to Our use so that you may certify, at the aforesaid time, the true value of the same goods and chattels, lands and tenements, under their seals, or the seal of some of them, by whose oath the inquisition aforesaid shall be taken, then returning to Us this Our writ. Witness, &c. [C. 0. Forms, 63.] Writ of Melius Inquirendum. Victoria, by the Grace of God, &c., to the sheriff of , greeting : We command you that you again and more diligently inquire, &o. [continue as in preceding Form.] [C. 0. Forms, 64.] Writ of Exigent after Judgment. [Same as No. 59, ante, p. 519.] [Except instead of to answer say : — ] To satisfy Us concerning his redemption by reason of certain whereof he is indicted, and thereupon by a jury of the country [or by his own confession or default], he stands convicted. As in Our Court before Us it appears upon record. And whereupon, &c. [as in No. ]. [C. O. Forms, 65.] Writ of Error to reverse Outlawry. Victoria, by the Grace of God, &c. : To Our right trusty and well-beloved John Duke, Baron Coleridge, Our Chief Justice of England, President of the Queen's Bench Division of Our High Court of Justice and our other Justices of Our High Court attached to the said Queen's Bench Division of Our said High Court, greeting : Forasmuch as in the record and process, as also in the pub- lication of an outlawry against J.W. on a certain indictment [or information] against the said J. W. for [here shortly state nature of offence], whereof the said J. W. is indicted [or impeached], and thereupon by a jury of the country is convicted, as it is said, manifest error hath intervened, to the great damage of the said J.W., as by his complaint We are informed. We being willing that the said error (if any there 522 APPENDIX. be) be duly amended, and full and speedy justice done to tbe said J. W. in this behalf, do command you, that if the said outlawry be returned before Us, as has been said : then inspecting the said record and process, you cause further to be done therein for annuUiug the said outlawry as of right and according to the law and custom of England shall be meet to be done. Witness Ourself at Westminster, the day of in the forty-eighth year of Our reign. (Signed) BSHEE, (Master of the EoUs.) ¥or indorsement gee No. [C. 0. Forms, 66.] Assignment of Ereoe upon Judgment in Outlawry. In the High Court of Justice, Queen's Bench Division. Middlesex. — J. W., Plaintiff in error, against The Queen, Defendant in error. And hereupon the said J. W. {or by A.B. his solicitor] comes in his proper person, and says, that in the record and process, and also in the publication of the aforesaid outlawry, there is manifest error in this that there is no sufficient information [or indictment] exhibited [or filed] against the said J. W. whereon to ground the process of the outlawry aforesaid. By reason whereof, the said outlawry is void, and of no effect or force whatever. There is also error in this \Jiere set out any other errors there may 6e]. Therefore ia that there is manifest error. Wherefore the said J.W. prays that the outlawry aforesaid for the errors aforesaid, and other errors appearing in the record and process aforesaid, may be reversed and held for nothing ; and that he may be restored to the common law, and to all which he has lost by occasion of the outlawry aforesaid. Dated, &c. (Signed) [C. 0. Form, 67.] Joinder in Error upon Judgment in Outlawry. [Heading as in the last.'] And Sir E. W. Knight, now Attorney-General of our present Sovereign Lady the Queen [or Frederick Cockbum, Esq., coroner and FORMS, 523 attorney of our Lady the Queen] present here in Court in his proper person, having heard the matters aforesaid above assigned for error for our said Lady the Queen, says that neither in the record and process aforesaid, nor in the publication of the aforesaid outlawry, is there any error; and he prays that the Queen's Bench Division of Her Majesty's High Court of Justice, now here may proceed to the exami- nation as well of the record and process aforesaid as of the matters aforesaid above assigned for error, and that the outlawry aforesaid may in all things be affirmed. [C. 0. Forms, 68.] BAIL. Writ of Habeas Corpus to being up Pkisoner to be bailed. Victoria, by the Grace of God, &c., to , greeting : We command you that you have in the Queen's Bench Division of Our High Court of Justice [or before a Judge in Chambers], at the Eoyal Courts of Justice, London, immediately after the receipt of this Our writ, the body of A.B. being taken and detained under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called, to undergo and receive all and singular such matters and things as Our said Court [or Judge] shall then and there consider of concerning him in this behalf ; and have you there then this Our writ. Witness, &c. To he indorsed. By order of Court [or of Mr. Justice ]. This writ was issued by, &c. [C. 0. Forms, 69.] Summons to admit to Bail on -a Criminal Charge. In the High Court of Justice, Queen's Bench Division. The Honourable Mr. Justice in Chambers. [If indictment or information found in this Court insert title.] Upon reading the affidavit of , &c., filed the day of 188 , and upon hearing counsel [or the solicitor] for A.B. It is ordered that all parties concerned attend the Judge in Chambers on the day of 188 , at the hour of in the noon. 524 APPENDIX. on the hearing of an application on hehalf of the said A.B. to be admitted to bail. Dated, &c. Notice. — To he served upon the committing magistrates or coroner and prose-- cutor, or in case of murder or manslaughter on the widow or next of km of the deceased, or as the Judge may direct. [C. 0. Forms, 70.] Oeder to admit Prisoner to Bail. In the High Court of Justice, Queen's Bench Division. The Honourable Mr. Justice in Chambers. [If indictment or information in this Court insert title.] Upon reading the affidavit of filed the day of 188 , and upon hearing counsel [or the solicitor] for . It is ordered that upon A.B. giving security by his own recognizance in the sum of with [two] sufficient sureties in the sum of each before one of Her Majesty's Justices of the Peace in and for the county of -[or before a Judge in Chambers] for the personal appearance of the said A.B. at the next assizes and general session of oyer and terminer [and general gaol delivery] [or the next general quarter sessions of the peace] to be holden in and for the said county of then and there to answer to all such matters and things as, on Her Majesty's behalf, shall be objected against him, he the said A.B. be discharged out of the custody of the Governor of Her Majesty's prison at in the said county as to his commitment for [here shortly state the offence as in commitment.] Dated, &c. (Twenty-four hours' notice of the namss and descriptions of the proposed sureties must he given to the prosecutor unless the Judge order otherwise.^ [C. 0. Forms, 71.] Affidavit of Service of Summons, to admit to Bail, on the Com- mitting Magistrates, and Next of Kin of Deceased, or the Prosecutor. In the High Court of Justice, Queen's Bench Division. [If indictment or information in this Court, insert name of cause, not otherwise.] I, A.B., of, &c., clerk to CD. of , solicitor for [insert name of prisoner], make oath and say— FORMS. 525 1. That I did on tlie day of 188 , serve I. J., Esquire, one of the committing justices mentioned in the summons hereunto annexed with the said summons, by delivering a true copy of the said summons to a servant of the said I.J., at the house of the said I.J., situate at in the said county. 2. That I did on the day of also serve K.L., Esquire, the other committing justice also mentioned in the said summons, by delivering a true copy of the said summons to a servant of the said K.L. at the house of the said K.L., situate at in the said county of 3. That I did on the day of 188 , also serve E.F., gentleman, one of the coroners of and for the county of , also named in the said summons, with the said summons, by delivering a true copy of the said summons to a clerk [or servant] of the said E.F., at the ofQce [or house] of the said B.F., situate at in the said county. 4. That I did on the day of 188 , also serve G.M. [the widow or the next of hin of deceased, or the pro8ecutor~\ mentioned in the said summons with the said summons by delivering a true copy of the said summons to the said [the widow or next of kin or prosecutor'] at in the county of Sworn, &c. [C. 0. Forms, 72.] Notice of Bail, upon Order of Judge, without Habeas Corpus. Whereas the Honourable Mr. Justice has made an order bearing date the day of 188 , tha,t [recite the order : see No. 71]. Now take notice that in pursuance of the said order the said and [four] sufficient sureties will enter into such recognizance as afore- said before [as in the order] at on the day of at the hour of in the noon. And that the dates and descriptions of such sureties are Dated, &c. (Signed) M.N. of L. agent for G.H. of T., solicitor for the said To the prosecutor [or widow or next of kin] and to the com- mitting magistrates [or coroner] [C. 0. Forms, 73.] 526 APPENDIX. Notice of Bail upon Habeas Coepus. Whereas the Honoiirable Mr. Justice has granted a writ of habeas corpus, directed to the gaoler of Her Majesty's prison at of and for the , commandrag him to have the body of before the Queen's Bench Division of Her Majesty's High Court of Justice [m- before a judge at Chambers] immediately to undergo, &c. [as in Form 69]. Now take notice, that by virtue of the said writ, the said will be brought before Her Majesty's said Court [or before a judge at Chambers at the hour of in the noon] on the day of 188 , in order that he, the said , may be admitted to bail personally to appear at the next session of oyer and terminer and gaol delivery to be holden in and for the county of \or oiherwige as the case may 6el, then and there to answer to all such matters and things as on Her Majesty's behalf shall be then and there objected against him, and so from day to day, and not depart that Court with- out leave. And, further, take notice that the names and descriptions of the several persons who will offer themselves as bail or sureties for the said are A.B., of , C.B., of , E.F., of , and G.E. of Dated, &c. [C. O. Forms, 74.J Eecognizasce to appeab at Assizes, or Sessions of the Peace. Be it remembered, that on the day of 188, [insert the names and descriptions of defendant and bail], come before me, , one of Her Majesty's Justices of the Peace in and fur the county of , and acknowledge to owe our Sovereign Lady the Queen the several sums following (that is to say) : — The said the sum of pounds, and the said and the sum of pounds each of lawful money of Great Britain, to be levied upon their several goods and chattels, lands, and tenements, to Her Majesty's use, upon condition that if the said shall personally appear at the next assizes and session of oyer and terminer and general gaol delivery [or at the next general quarter sessions of the peace], to be holden in and for the county of , and then and there answer to all such matters and things as on Her Majesty's behalf shall then and there be objected against him, and so from day to day, and not depart that Court with- out leave, then this recognizance to be void, or else to remain in fiill force. Taken, &c. [C. 0. Forms, 75. "i FORMS. 527 Entry of Plea of Not Guilty or Guilty to Information. In the High Court of Justice, Queen's Bench Division. \_Middlesex.] — The Queen A.B. Enter plea of Not Guilty [or Guilty] for the above-named defen- dant A.B. to the indictment [information or inquisition] in this pro- secution by CD., his solicitor [or in person]. Dated, &c. (Signed) CD., of L., Agent for G.H., of Y., solicitor for the said A.B. [C. 0. Forms, 78.J Demurrer to Information. [Heading as in last preceding.] And now, that is to say, on the day of 188 , before our said Lady the Queen, in the Queen's Bench Division of Her Majesty's High Court of Justice at the Eoyal Courts of Justice, London, comes the said A.B. by , his solicitor [or in his own proper person], and having heard the said indictment [or information] read, says that our said Lady the Queen ought not further to prosecute him, the said A.B., by reason of the premises in the said indictment [or information] mentioned, because he says that the said indictment [or information], and the matters therein contained, are not sufficient in law to compel him, the said A.B., to answer thereto ; and this he is ready to verify. Wherefore he, the said A.B., prays judgment, and that by the Court here he may be dismissed and discharged from the said premises in the same indictment [or information] speciiied. (Signed) [C. 0. Forms, 80.] Plea of Not Guilty and Justification Pursuant to 6 & 7 Vict. c. 96, s. 6. [Same heading.] And now, that is to say, on the day of 188 , before our said Lady the Queen, in the Queen's Bench Division of Her Majesty's 528 APPENDIX. High Court of Justice at the Eoyal Courts of Justice, London, comes the said A.B. by , his solicitor [or in his own proper person], and having heard the said indictment read, he says that he is not guilty thereof, and hereupon he puts himself upon the country. And Frederick Cockbum, Esquire, coroner and attorney of our said Lady the Queen, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes, does the like. And for a further plea the said A.B., pursuant to the statute in that behalf, says that our said Lady the Queen ought not further to prose- cute the said indictment [or information] against him, because he says that it is true that [here allege the truth of every libellous part of the puh- lication set out in the indietment.l And the said A.B. further says, that before and at the time of the publication in the said indictment [or information] mentioned [here state facts which rendered the publication of benefit to the public'] ; by reason whereof it was for the public benefit that the said matters so charged in the said indictment [or information] should be published, and this he, the said A.B., is ready to verify. Wherefore he prays judg- ment, and that by the Court here he may be dismissed and discharged from the said premises in the said indictment [or information] above specified. (Signed) [C. 0. Forms, 81.] Ekplication to Plea of Justification puksuant to 6 & 7 Vict. c. 96, s. 6. [Same heading.] And as to the plea of the said A.B. by him secondly above pleaded, Frederick Cockbum, Esquire, coroner and attorney of our said Lady the Queen, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes, says that by reason of anything in the said second plea alleged, our said Lady the Queen ought not to be precluded from further prosecuting the said indictment against the said A.B., because he says that he denies the said several matters in the said second plea alleged, and says that the same are not, nor are, nor is any or either of them, true, and this he, the said Frederick Cockbum, prays may be inquired of by the country, and the said A.B. does the like. Therefore let a jury come. [C. 0. Forms, 83.] FORMS. 529 Demurrer by Prosecutor to Defendant's Plea. [5ame heading.] And Frederick Cockbum, Esquire, coroner and attorney of our said Lady tte Queen, who, for our said Lady the Queen, in this behalf prosecutes, having heard the said plea, of the said A.B., by him, in manner and form above pleaded in bar, for our said Lady the Queen says, that the said plea, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not suffi- cient in law, and that he, the said coroner and attorney for our said Lady the Queen, is not bound by the law of the land to answer the same, and this he, the said coroner and attorney, is ready to verify. Wherefore, for want of a sufficient plea in this behalf, the said coroner and attotaey for our said Lady the Queen prays judgment, and that the said A.B. may be convicted of the premises above charged upon him. (Signed) [C. 0. Forms, 84.] Joinder in Demurrer by Prosecutor, \_Same heading.] And Frederick Cockbum, Esquire, coroner and attorney of our said Lady the Queen, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes, says that our said Lady the Queen ought not to be barred from prosecuting the said indictment [or from having her aforesaid information], against the said A.B., because he says, that the said indictment [or information] and the matters therein contained are good and sufficient in law to compel him, the said A.B., to answer thereto. Therefore he, the said coroner and attorney for our said Lady the Queen prays judgment, and that the said A.B. may be convicted of the premises charged upon him in and by the said indictment [or information]. [C. 0. Forms, 85.] Joinder in Demurrer by Defendant, [iSiawe heading.] And the said A.B. by says that the said plea and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar or preclude our said Lady the Queen from having her aforesaid information against him, the 2 M 530 APPENDIX. said A.B., and that he is ready to verify and prove the same, as the Court shall award. Wherefore, inasmnch as the said coroner and attorney has not answered or denied the said plea, nor in any manner replied to the same, he the said A.B. prays judgment, and that he may be discharged by the Court here, of and from the premises by the said information above charged upon him. [C. 0. Forms, 86.] Entey of Plea of Guilty or Confession. [^Instead of " says he is not guilty "] says he cannot deny but that he is guilty of the premises in the indictment within specified and charged upon him, and confesses and acknowledges the premises aforesaid, in manner and form as in and by the said indictment is within alleged against him ; and hereupon he puts himself upon the mercy of our said Lady the Queen. [C. 0. Forms, 113.] Entry of Eetraxit of Plea, and Judgment thereon. And on the day of before our said Lady the Queen in the Queen's Bench Division of Her Majesty's High Court of Justice at the Eoyal Courts of Justice, London, comes the said Frederick Cockbum, who for our said Lady the Queen in this behalf prosecutes as the said A.B., by CD., his solicitor [or in his own proper person], and the said A.B. having withdrawn his plea by him above pleaded, in manner and form aforesaid, our said Lady the Queen remains against him the said A.B. without defence in this behalf. Whereupon all and singular the premises being seen and fully understood by the said Queen's Bench Division now here, it is considered and adjudged by the said Court here that he, the said A.B., be convicted of the trespass and offence aforesaid, and that he be taken, and so forth. [C. 0. Forms, 114.] Order to extend Time for Pleading. In the High Court of Justice, Queen's Bench Division. The Honourable Mr. Justice , Judge in Chambers. [Middlesex.]— The Queen against A.B. Upon reading the affidavit of filed the day of 188 , and upon hearing : FORMS. 531 It is ordered that tlie defendant [or prosecutor] shall have days further to plead to the [indictment] in this prosecution [upon the following terms, viz. : — ] Dated, &c. [C. 0. Forms, 87.] Notice of Trial in Middlesex ok London. In the High Court of Justice, Queen's Bench Division. Middlesex [or London'] — The Queen against CD. Take notice of trial of the issue joined in this prosecution in Middlesex [or London], for the day of next, at the Eoyal Courts of Justice, London. Dated, &c. [C. 0. Forms, 89.] Notice of Teial foe the Assizes. In the High Court of Justice, Queen's Bench Division. [Surrey.] — The Queen against A.B. Take notice of trial of the issue joined in this prosecution for the next assizes to be holden at in and for the county of on the day of 188 . Dated, &c. [C. 0. Forms, 90.] Eecord of Information (Criminal) for Trial. Pleas before our Lady the Queen, in the Queen's Bench Division of Her Majesty's High Court of Justice, at the Eoyal Courts of Justice, London, in the year of our Lord one thousand eight hundred and eighty- Amongst the Pleas of the Queen EoU. . i ii T u C [Middlesex.}— "Be it remembered that Fred- Amongst the Informa- . , ^ , , t^, . •■ , , . ■ J? , on -KT s erick Cockburn, Esquire, coroner and attorney tions of 188 , No. I -a t )i \ n • ^i, r. . lof our said Lady the Queen, m the Queen s 2 M 2 532 APPENDIX. Bench Division of Her Majesty's High Court of Justice, before the Queen herself, who for our said Lady the Queen in this behalf pro- secutes in his proper person, came here into the Queen's Bench Divi- sion of Her Majesty's High Court of Justice, before the Queen herself, at the Eoyal Courts of Justice, London, on the day of one thousand eight hundred, &c. And for our said Lady the Queen, brought into the said Court, before the Queen herself, a certain information, against CD., which said information follows in these words, that is to say \here set out the information verbatim]. * These words * [Wherefore the sheriff of the county of was commanded mnrtted if ^'^^^ ^^ should cause him, the said A.B., to come to answer to our said process not Lady the Queen touching and concerning the premises aforesaid.] actuallyissued. ^^^ ^^^^ ^j^^^^ jg ^ ^^^ ^^ ^^^ g^^^ ^^ ^ ^j^^ ^^^^ ^^ ^^^ Lord one thousand eight hundred and eighty-five, before our said Lady the Queen, at the Eoyal Courts of Justice, London, comes the said A.B., by his solicitor, and having heard the said informa- tion read, says, that he is not guilty thereof, and hereupon he puts himself upon the country, and Frederick Cockbum Esquire, coroner and attorney of our said Lady the Queen, in the Queen's Bench Divi- t Should plea sion of Her Majesty's High Court of Justice, before the Queen herself, mdef'stattt? ^^° ^°^ °^^ ^^^^ ^^^'^ *^® Queen in this behalf prosecutes, does the be entered it like.f Therefore let a jury thereupon come. must be added ^„ „ „ here. [C. 0. Forms, 92.] Eecoed of Infoemation (ex-officio) for Trial. [Sa/me as last.] [Using the name of (he Attorney or Solicitor General, instead of that of the Queen's coroner and attorney. Thus:] Sir Eichard Webster, Knight, Attorney General of our present Sovereign Lady the Queen, who for our said Lady the Queen in this behalf prosecutes, came here into the Queen's Bench Division, &c. [C. 0. Forms, 93.] Suggestion that a fair and impartial Trial cannot be had. And hereupon the said says that a fair and impartial trial of the issue joined in this prosecution cannot be had by a jury of the county of , and that it is convenient that the said issue be tried by a jury of the county of , which is a county next adjoining to the said county of , and for that reason he the said prays FORMS. 533 that a jury may come before our said Lady the Queen, out of the body of the said county of , to try the issue aforesaid. And because the said does not deny the said allegation, nor say anything against the same, and because it appears to the said Court, before the Queen herself, that the said allegation is true, therefore let a jury of the said county of thereupon come. [C. 0. Forms, 94.] SUGHJESTION UNDER 38 GeO. 3, C. 52, TO TRY IN AN ADJOINING CoUNTY TO A Town and County of the Town. And hereupon the said , coroner and attorney of our said Lady the Queen, who prosecutes as aforesaid, by virtue of the statute in such case made and provided, prays the said Court now here to direct that the said issue so joined upon the said indictment may be tried by a jury of the county of [ybrZ;], being the county next adjoining to the town and county of the town of IKingston-upon-HuU], And the said Court thinking it fit and proper so to do, therefore let a jury of the said county of [ Tor¥\ thereupon come. [ When on behalf of the defendant insert the defendant's name in the place of the Quern's coroner and attorney. 1 [C. 0. Forms, 96.] Sugsestion in Berwick-upon-Tweed. And because the borough of Berwick-upon-Tweed is a place where the burgesses of the said borough, by reason of their privilege, ought not to be put upon a jury to try the said issue out of the said borough, but the said issue ought to be tried by a jury of the county of North- umberland, which is the next adjacent county to the said borough of Berwick-upon-Tweed. Which allegations of the said A.B. are not denied by the said F.G., Esquire, therefore let a jury of the said county of Northumberland thereupon come. [C. 0. Forms, 97.] Suggestion in one of the Cinque Ports. And hereupon the said F.G., Esquire, who prosecutes as aforesaid, says, that the said town of Deal is one of the ancient towns of the Cinque Ports ; and that the inhabitants within the same town, and also the inhabitants within the liberty of the Cinque Ports, have such 534 ArPENDIX. franchiseB, that no justice, or any other minister of our said Lady the Queen can or ought to enter the town to execute any office there, nor ought the freeholders or residents within the liberties of the said Cinque Ports to go out of the same, to make or constitute any jury without the said liberties. And therefore he prays that a jury may come before our said Lady the Queen, out of the body of the county of Kent, in order to try the issue aforesaid. And because the said [defendant] does not deny the said allegation ; and because it appears to the said Court that it is fit and proper so to do, the same is granted to him. Therefore let a jury thereupon come out of the body of the said county of Kent. [C. 0. Forms, 98.] Suggestion where the Sheriff is Defestdant. And because the aforesaid A.B., the defendant above-mentioned, now is one of the sherifis of the said where the supposed offence in the said information [or indictment] is mentioned to be committed, and therefore is concerned in interest in the event of the trial of the issue ; therefore the coroners of the said county are commanded that they cause to come. [C. 0. Forms, 99.] Judge's Order to strike Spectal Jury as provided by "The Juries Act, 1870." In the High Court of Justice, Queen's Bench Division. The Honourable Mr. Justice in Chambers. [Middlesex.] — The Queen against A.B. Upon reading and upon hearing counsel on both sides [or as the case may 6e}— It is ordered at the prayer and instance of the [prosecutor], that the issue joined in this prosecution be tried by a special jury of the county of , and that the sheriff of the said county or his under sheriff do attend at the Crown Office with the juror's book and the special jurors' Ust of the said county, and the numbers referring to the names in such list, written upon distinct pieces of parchment or card. And that the proper officer at the Crown Office shall nominate forty-eight men qualified to serve on special juries within the said county, and the solicitor or agent for the said prosecutor shall strike FORMS. 535 out twelve, and the solicitor or agent for the defendant shall in like manner strike out twelve of the said forty-eight, and that twenty- four, the remainder of the said forty-eight, shall he returned for the trial of the issue joined in this prosecution. Dated, &o. [C. 0. Forms, 100.] "Warrant of Tales. Middlesex. Sir Eichard "Webster, Knight, Attorney-General of our present Sovereign Lady the Queen [for our said Lady the Queen [omit these words if the tales is prayed for the defendant'] prays a Tales de Circumstantihus to he granted by the Court here according to the' form of the Statute in such case made and provided for the trial of the issue joined between our said Lady the Queen and A.B. upon an indictment [or information] for certain [misdemeanors] lest the jury to be taken in this behalf do remain untaken for default of jurors. Dated, &c. (Signed) E. "Webster, Attorney-General. [C. 0. Forms, 102.] Associates Certificate after Trial. In the High Court of Justice, Queen's Bench Division. Middlesex. — The Queen against A.B. I certify that this [indictmeni] was tried before the Honourable Mr. Justice at and a [special] jury of the county of on the day of 1886. The jury found the defenda,nt guilty [or not guilty, or guilty on such and such counts, and not guilty on such and such counts, enumerating them]. That the Judge sentenced the defendant to pay a fine of, &c. That the Judge certified [that the case was proper to he tried by a special jury or other certificate, as the case may he]. Dated, &o. (Signed) X.7. [Title of officer.] [C. 0. Forms, 103.] 536 APPENDIX. PosTEA ON Trial in Middlesex ok London, Afterwards on the day of 188 , before the Eight Honourable John Dnke, Baron Coleridge, Lord Chief Justice of England (or the Honourable Mr. Justice ) come as well the within-named F.C., Esquire, who for our said Lady the Queen in this behalf prosecutes as the within-named A.B., by his solicitor within mentioned, (A) and a [special] jury of the within county, to wit \here insert the names and descriptions of the jurors who attended^, being sum- moned and called come and are sworn upon the said jury. Whereupon public proclamation is made here in Court for our said Lady the Queen, as the custom is, that if there be any one who wiU inform the aforesaid Chief Justice [or Judge] the Queen's Attorney-General or jurors of the jury aforesaid, concerning the matters within contained, he should come forth and should be heard, and hereupon, J.P., Esquire, one of the counsel of our said Lady the Queen [or of counsel learned in the law] offers himself on behalf of our said Lady the Queen to do this. Whereupon the Court here proceeds to the taking of the inquest aforesaid (B) by the jurors aforesaid, now here appearing for the purpose aforesaid, who being chosen, tried, and sworn to speak the truth touching and concerning the matters within contained [when convicted'] say upon their oath, that the said A.B. is guilty of the prerdises in the [if in some counts only, say : second and third counts of the] indictment [or information] within specified and charged upon him in manner and form, as in and by the said indict- ment [or information] is within alleged against him. [When acquitted] say upon their oath that the said A.B. is not guilty of the premises in the indictment within specified and charged upon him, in manner and form as the said A.B. has, by pleading for Mm- self, alleged. If a tales has heen prayed — A. And a [special] jury of the within county being summoned and called, some of them, that is to say [name such of the jurors as appeared at the trial] come and are sworn upon the said jury ; and because the rest of the jurors of the said jury do not appear, therefore others of the bystanders being chosen by the sheriff of the within county, at the request of the said A.B. [or of the said Frederick Cockbum] and by command of the said Chief Justice [or Judge] are newly appointed, whose names are added to the panel according to the form of the statute in such case made and provided, which said jurors so newly appointed, to wit, [insert the names and descriptions of the talesmen] being called likewise come, and are sworn upon the said jury. B. As well by the jurors aforesaid first impanelled and sworn, as FORMS. 537 by the other jurors now here appearing, who, together with the jurors aforesaid first impanelled and sworn, being chosen, tried, and sworn to speak the truth, &c. [C. 0. Forms, 104.J ' POSTEA AT THE AsSIZES. Afterwards on the day of 188 , [the commission day] at in the county of before the Honourable Mr. Justice and the Honourable Mr. Justice , justices of our said Lady the Queen assigned to hold the assizes in and for the county of within-mentioned, according to the form of the statute in such case made and provided, come [do. as in No. 104]. [C. 0. Forms, 105.] Wareant to apprehend Dependant sentenced at Trial when not PRESENT at the TeIAL. Whereas the aboye-named defendant A.B. was on the day of , 188 , at the sittings of the High Court of Justice, in the county of [Middlesex] before me the Honourable Mr. Justice tried, and by a jury of the country convicted of certain misdemeanors [or felonies], whereof he is indicted, and it was thereupon considered and adjudged and ordered by me that for the offences whereof he was so convicted as aforesaid he the said A.B. should be imprisoned in Her Majesty's prison at in and for the county of for the space of [three calendar months]. These are therefore to command you to apprehend and take the said A.B. and lodge him at the said prison at aforesaid, there to be imprisoned and kept in safe custody by the gaoler of the said prison in execution of the said judgment. Dated, &c. [C. 0. Forms, 106.] Warrant after Conviction to hold Defendant to Bail to appear FOR Sentence. In the High Court of Justice, Queen's Bench Division. England, to wit. Whereas it is certified to me by [one of the clerks in the Crown Office]^ that, [as in certificate]. Tiiese are therefore to command you in Her Majesty's name to 538 APPENDIX, apprehend and take the said A.B. before one of the Judges of the' High Court of Justice, if taken in or near the cities of London or Westminster, if elsewhere before some justice of the peace near to the, place where he shall be taken, to the end that he may become bound by his own recognizance in the sum of pounds, with two sureties in the sura of pounds each [or say, with sufScient sureties], for his personal appearance in the Queen's Bench Division of Her Majesty's High Court of Justice on the day of 188 , in order to receive the judgment of the said Court for his said offence, and to be further dealt with according to law. Dated, &c. (Signed) COLEEIDSE, (Lord Chief Justice of England). To Mr. L., tipstaff of the Queen's Bench Division. To all constables and all other peace officers whom it may concern. [C. 0. Forms, 107.] Order to commit when Defendant sentenced at Trial. In the High Court of Justice, Queen's Bench Division. [GhesMre.y—The Queen against A.B. The defendant A.B. being present here in Court, and being by a jury of the country convicted of certain misdemeanors [or felonies], whereof he is indicted in this prosecution, it is ordered that he, the said defendant, [do pay a fine to our Sovereign Lady the Queen of pounds of lawful money of Great Britain, and further that he be imprisoned until the said fine he paid; and the said defendant is now here in Court committed to the custody of the gaoler of Her Majesty's prison at until the said fine be paid, or as the case may be]. Dated, &c. By the Court. [C. 0. Forms, 108.] FORMS. 539 Certificate of Conviction from Clerk of Assize or Associate for Application for Warrant. [Heading as in No. 103.] I hereby certify that the above-named defendant A. B. was, on the day of, at , tried before the Honourable Mr. Justice and a [special] jury, upon an indictment against him for [here state offerux], that the jury found the said defendant guilty, and that the Judge sentenced the said defendant to [here insert sentence"]. Dated, &c. (Signed) X.Y. [Title of officer.] . [C. 0. Forms, 109.] Warrant of Arrest after Conviction and Eecosnizances estreated. England, to wit. Whereas it is certified to me by one of the Masters of the Crown OfiBce that at the assizes [or as the case may be] holden in and for the county of , on the day of , an indictment for certain [misdemeanors] was found by the grand jury of the said county against A.B., which said indictment was afterwards by writ of certiorari issuing out of the Queen's Bench Division of Her Majesty's High Court of Justice, removed into the said Court, and thereupon the said A.B. gave a recognizance to answer the said indictment, and not depart the said Court without leave, and that the said A.B. having appeared and pleaded not guilty to the said indictment, was at , on the day of last, in and for the county of Middlesex, before the [naming the Judge] and by a jury of the country convicted of the said offence charged upon him in and by the said indictment ; and it is further certified that on the day of last the said A.B., having been three times publicly called in the said Court upon his said recognizance and not appearing, it was ordered by the said last-mentioned Court that his default should be recorded and the said recognizance estreated into the Exchequer ; and it is further certified that the said A.B. hath not appeared in the said Queen's Bench Division of Her Majesty's High Court of Justice, in order to receive the judgment of the said Court for the said offence, nor is he now under any recognizance so to do. This is therefore to command you, in her Majesty's name, to appre- hend and take the said A.B., and if he shall be apprehended during 540 APPENDIX. the sittings of the said last-mentioned Court, to bring him into the Queen's Bench Division of Her Majesty's High Court of Justice, at the Koyal Courts of Justice, London, to receive the judgment of the said Court for his said offence ; or if he shall be apprehended in vaca- tion, forthwith to convey him to the common prison of the county, city, or place where he shall be apprehended, there to remain without bail or mainprise until he shall be discharged by due course of law. Dated, &o. [C. 0. Forms, 110.] Waeeant of Aeeest on Contiction by Default to hold Defendant TO Bail. England, to wit. Whereas, &c. (as in No. 110). And it is further certified that the said defendant having suffered judgment to pass against him by default'upon the said information [or indictment], judgment has been thereupon signed against him, and it is further certified that the said defendant has not as yet received the sentence of the said Court for the said offence, nor is he under any recognizance in the said Court so to do. These are, therefore, to command you and every of you on sight hereof to apprehend and take the said A.B. and bring him before me or one other of the Judges of the Queen's Bench Division of the High Court of Justice if taken in or near the cities of London and West- minster, if elsewhere before some justice of the peace near to the place where he shaU be herewith taken, to the end that he may become bound with sufScient sureties for his personal appearance in the Queen's Bench Division of Her Majesty's High Court of Justice on the day of in order to receive the sentence of the said Court for the said offence and be further dealt with according to law. Dated, &c. [C. 0. Forms, 111.] Entry or Judgment Eoll on Indictment. A.B. [the defendant's name']. As yet of 1 88 . The Queen. Amongst the In- j Middlesex.— Some time ago, that is to say [here dictments of | copy the caption of the indictment, and the indictment 188 , No. j verbatim, according to the office copy, omitting the wit- POEMS. 541 nesses' names], whicli said indictment our said Lady the Queen after- Award of wards for certain reasons caused to be brought before her, to be tms rau"t be determined according to the law and custom of England.] omitted when Wherefore the sheriff of the said county of was commanded |;''fo|f„Jt"thfs that he should cause him the said A.B. [the defendant] to come to Court. answer to our said Lady the Queen, touching and concerning the ■*-'"f™ °5 premises aforesaid. \If a capias has been issued say instead of " cause capias to him the said A.B. to come," " take him."] ^°'''''^- And now, that is to say, on the day of in the year of Issue. our Lord one thousand eight hundred and eighty-six before our said p°Jas seaVos. Lady the Queen in the Queen's Bench Division of Her Majesty's High 79 to 86 and Court of Justice at the Eoyal Courts of Justice, London, comes the {^^^ f™^' said A.B. by CD., his solicitor, and having heard the said indictment change of read, he says that he is not guilty thereof, and hereupon he puts him- ^^ g"^°' "^^ self upon the country. And .Frederick Cookburn, Esquire, coroner and attorney of our said Lady the Queen, in the said Queen's Bench Division of Her Majesty's High Court of Justice, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes, does the like. Therefore let a jury thereupon come. And afterwards, that is to say, on the day of in the Postea. For year of our Lord one thousand eight hundred and eighty-sis at the °*^ nos'To4 Eoyal Courts of Justice, London, before the Eight Honourable John and 105. Duke, Baron Coleridge, Lord Chief Justice of England, come as well the aforesaid Frederick Cockburn, Esquire, who for our said Lady the Queen in this behalf prosecutes as the said A.B. by CD., his solicitor above-mentioned, and the jurors of the jury being summoned and called, to wit [here insert the names and descriptions of the jurors, and if a tales, add the necessary words froin No. 104], come and are sworn upon the said jury. Whereupon public proclamation is made here in Court for our said Lady the Queen, as the custom is, that if there be any one who will inform the aforesaid Chief Justice, the Queen's Attorney General, or the jurors aforesaid, concerning the matters within contained, he should come forth and should be heard ; and hereupon F.T., Esquire, one of the counsel of our said Lady the Queen, offers himself on behalf of our said Lady the Queen to do this. Whereupon the Court here proceeds to the taking of the inquest aforesaid, by the jurors aforesaid, now here appearing for the purpose aforesaid, who being chosen, tried, and sworn, to speak the truth touching and concerning the matters aforesaid, say upon their oath that the said A.B. is guilty of the premises in the second and third counts of the indictment within specified and charged upon him in manner and form as in the said indictment is alleged against him, and that he the said A.B. is not guilty of the premises in the first and fourth counts of the said indictment specified and charged upon 542 APPENDIX. him in manner and form as the said A.B. has by pleading for himself alleged. Entry of Whereupon all and singular the premises being seen and fully ierl"™ft"er° "i^derstood by the Queen's Bench Division of Her Majesty's High conviction. Court of Justice now here, it is considered and adjudged by the said Court here that he the said A.B., for his offences aforesaid be taken, and so forth. And afterwards, that is to say, on the day of in the year last aforesaid, before our Lady the Queen in the Queen's Bench Division of Her Majesty's High Court of Justice at the Eoyal Courts of Justice, London, come the said F.V., who for our said Lady the Queen in this behalf prosecutes. And the said A.B., being present here in Court, it is considered and adjudged and ordered by the said Court here, that he the said A.B., for his offences aforesaid, &c. [Copy the sentence from the Order of Court.'] [C. 0. Forms, 112.] Final judg- ment. EoLL FOR Trial at Bar. [Same as laBLl Entry of Judgmknt upon Verdict after Acquittal. [After the Postea.] — ^Whereupon all and singular the premises being seen and fully understood by the Queen's Bench Division of Her Majesty's High Court of Justice now here, it is considered and adjudged by the said Court here, that he, the said A.B., do depart hence without day in this behalf. [C. 0. Forms, 116.] Entry of Judgment by Default. And now, that is to say, on the day of in the year of our Lord one thousand eight hundred and eighty-five, before our said Lady the Queen in the Queen's Bench Division of Her Majesty's High Court of Justice at the Eoyal Courts of Justice, London, comes the said A.B. [ly O.D., his solicitor], and having heard the said indictment read, he prays a day to answer thereto, until on the day of . And it is granted to him. The same day is given as well to F.C., Esq., coroner and attorney of our said Lady the Queen, who for our said Lady the Queen, in this behalf prosecutes, as to the said A.B. On which said day of before our said Lady the FORMS. 543 Queen comes the said F.C, who prosecutes for our said Lady the Queen in this behalf in his proper person. And the said A.B., although being solemnly called to answer, does not come, nor does he say any- thing in bar, or in abatement of the said indictment, nor does he in any manner answer to the said indictment, or to the premises in the said indictment specified above charged upon him. Wherefore our said Lady the Queen remains against him the said A.B., without defence in this behalf. Whereupon all and singular the premises being seen and fully understood by the said Court now here, it is considered and adjudged by the said Court here that the said A.B. be convicted of the trespass and offence aforesaid, and that he be taken, and so forth. [C. 0. Forms, 116.] Entry of Jddgment on Confession. [See Confession or Plea of Guilty, ante, p. 530.] Whereupon all and singular the premises being seen and fully understood by the Queen's Bench Division of Her Majesty's High Court of Justice now here, it is considered and adjudged by the said Court here, that he, the said A.B., be convicted of the trespass and offence aforesaid. And that for his offences aforesaid he be taken, and so forth. [C. 0. Forms, 117.] Entey of Judgment foe want of Joindee in Demueeee. Whereupon all and singular the premises being seen and fully understood by the Queen's Bench Division of Her Majesty's High Court of Justice now here, for that no one comes on behalf of our said Lady the Queen [or on behalf of the said A.B., as the case may 6e], further to inform the Court here of the premises, or to join in demurrer with the said A.B., it is considered and adjudged by the said Court here, that the said A.B. be dismissed and discharged of and from the premises above specified in the said indictment, and that he depart hence without day in this behalf. [The above is in case of demurrer to indictment; in case of demurrer to other proceedings, judgment after conviction, or acquittal, or for the Grown or prosecutor, or for defendant, must he substituted, as the case may be.] [C. 0. Forms, 118.] 544 APPENDIX. Entry of Judgment on Demurrer after Argument. Whereupon all and singular the premises being seen and fully understood by the Queen's Bench Division of Her Majesty's High Court of Justice now here, it is considered and adjudged, by the said Court here, that the said plea of the said A.B. is bad, and insufficient in law to bar or preclude our said Lady the Queen from further pro- secuting the said A.B. upon the said information [or indictment], and therefore that the said A.B. for want of a sufficient plea in this behalf, be convicted of the premises in the information [or indictment] within specified, and charged upon him in manner and form as in and by the said information [or indictment] is within alleged against him. And that for his offences aforesaid he be taken, and so forth. [The above form applies to judgment of conviction upon demurrer to plea to indictment or information. In case of judgment on demurrer to any other proceeding or pleading, the form must he varied accordingly — substituting a judgment of acquittal. '\ [C. 0. Forms, 119.] Entry of a Nolle Prosequi. Afterwards on the day of , before our said Lady the Queen at the Eoyal Courts of Justice, London, come as well the said coroner and attorney of our said Lady the Queen, in the Queen's Bench Division of Her Majesty's High Court of Justice, who for our said Lady the Queen in this behalf prosecutes in his proper person, as the said A. B., by his solicitor. And the said coroner and attorney for our said Lady the Queen says that he will not further prosecute the said A.B. upon the information [or indictment] aforesaid. Whereupon all and singular the premises being seen and fuUy understood by the Court now here, it is considered and adjudged, by the said Court here, that all proceedings upon the said information [or indictment] against the said A.B. be altogether stayed, and that the said A.B. be dis- charged of and from the said information [or indictment). [In the case of an information filed by the Attorney General, his name must he used instead of that of the Queen's coroner and attorney.] [C. 0. Forms, 120.] Eecognizance to appear for Sentence. Be it remembered, that on the day of 188 , [insert names amd descriptims of the defendant and hail, if hail required], come before me one of Her Majesty's justices of the peace in and for the county of and acknowledge to owe our Sovereign Lady the FORMS. 545 Queen the several sums following (that is to say), the said the sum of pounds, and the said and the sum of pounds, each of lawful money of Great Britain, to be levied upon their several goods and chattels, lands and tenements, to Her Majesty's use upon condition that if he the said shall personally appear in the Queen's Bench Division of Her Majesty's High Court of Justice on the day of next, or whenever he shall thereto be re- quired in order to receive the sentence of the said Court for certain whereof he is indicted [or impeached], and by a jury of the country [or by his own default or confession] convicted, and so from day to day, and not depart that Court without leave, then this recog- nizance to be void, or else to remain in full force. Taken, &c. [C. 0. Forms, 121.] - Notice to call a Defendant on Eecognizance to appear for Sentence. In the High Court of Justice, Queen's Bench Divison. [Middlesex.] — The Queen against A.B. Take notice that the Queen's Bench Division of Her Majesty's High Court of Justice will be moved on the day of 188 , or so soon after as counsel can be heard for the judgment of the said Court against the above-named defendant for certain [conspiracies] whereof he (with others) is indicted and by a jury of the country [or by his own default or confession, as the case may he] convicted. And that he, the said defendant, is hereby required personally to attend the said Court in order to receive judgment as aforesaid. And in case the said defendant does not then attend, the said Court will be moved that his default may be recorded, and that the recognizance of the said defendant and of his bail, entered into in this prosecution, be estreated into the Exchequer. Dated, &c. (Signed) M.N. [Solicitor for the prosecutor.] To A.B., the above-named defen- dant; and also to CD., of, &c., and E.F., of, &c., his bail. [C. 0. Forms, 122.] 2 N 546 APPENDIX. Eecognizance to prosecute Writ of Error. Be it remembered, that on tlie day of 188 , T.H., late of , in the county of , hut now a prisoner in the custody of [the gaoler of Her Majesty's prison at , in and for the county of ], and E.K., of , {merchant] and F.S. of , [farmer], come before me [one of Her Majesty's justices of the peace for the county of (or as the cage may 6e)], and acknowledge to owe to our sovereign Lady the Queen the several sums following ; that is to say, the said T.H. the sum of pounds, and the said H.K. and F.S. the sum of pounds each, of lawful money of Great Britain, to be levied upon their several goods and chattels, lands and tene- ments, to Her Majesty's use, upon condition that the said T.H. do prosecute with effect a writ of Error [or appeal to the House of Lords ; or, if writ not obtained, any writ of Error which may hereafter be] issued to reverse the judgment given against the said T.H. at [the last general quarter sessions of the peace in and for the county, holden at on or as the case may 6e], upon an indictment for certain mis- demeanors, and personally to appear in the Queen's Bench Division of Her Majesty's High Court of Justice [or in Her Majesty's Court of Appeal] on the day whereon judgment shall be given upon the said writ of Error. And also, if so ordered by the said last-mentioned Court or by a Judge thereof, four days' notice being given either to the said T.H. or his solicitor, or to the bail personally, or by leaving the same at his or their last known place of abode, on the days and times appointed for any proceedings upon the said writ of Error, and so from day to day and not to depart that Court without leave, and forthwith to render the said T.H. to prison according to the said judg- ment, in case the said judgment shall be affirmed, then this recogni- zance to be void or else to remain in fuU force. Taken, &c. [C. 0. Forms, 127.] Assignment of Ereoes. [Heading as in No. 128, post, p. 645 (a).] And now, that is to say, on the day of , in the year of our Lord one thousand eight hundred and eighty-six, before our said Lady the Queen, at the Eoyal Courts of Justice, London : Comes the said A.B. [in his own proper person], or, by [CD., his solicitor], and says, that in the record and proceedings aforesaid, and also in the giving of the judgment against the said A.B., there is (a) Accidentally omitted here. FORMS. 547 manifest error in this, to wit : — That [here set out the first cause of error"] therefore in that there is manifest error. There is also error in this, to wit : That [set out the second cause of error, and so on, specifying all the assignments of error, commencing and concluding each assignment in the game form as above ; and lastly, as general assignments, may he added as follows'] : There is also error in this, to wit : That the indictment and proceedings aforesaid and the matters therein contained are not sufS- eient in law to warrant the said judgment so given against the said A.B., or to convict him of the trespasses, contempts, nuisances, or offences aforesaid [as' the case may he], or any or either of them, there- fore in that there is manifest error. There is also error in this, to wit : That the judgment aforesaid in form aforesaid is given for our said Lady the Queen. Whereas the said judgment by the law of this realm ought to have been given against our said Lady the Queen and for the said A.B., therefore in that there is manifest error, and the said A.B. prays that the judgment aforesaid for the said errors, and other errors appearing in the record and proceedings aforesaid may be reversed, annulled, and wholly held for nothing, and that he may be restored to all things which by reason of the judgment and pro- ceedings aforesaid he has lost. (Signed) X.T. [C. 0. Forms, 129.] Joinder in Error. [Same heading.] And Frederick Cockburn, Esquire, coroner and attorney of our said Lady the Queen, in the Queen's Bench Division of Her Majesty's' High Court of Justice, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes, being present here in Court and having heard the matters aforesaid above assigned for error in manner and form aforesaid for our said Lady the Queen says, that neither in the record and proceedings aforesaid nor in the giving of judgment aforesaid is there any error, therefore the said coroner and attorney of our said Lady the Queen, for our said Lady the Queen, praj's that the Court now here may proceed to examine as well the record and proceedings aforesaid, and the judgment thereon given as aforesaid, as the matters above assigned and alleged for error, and that the judgment aforesaid may be in all things afBrmed. [C. 0. Forms, 130.] 2 N 2 548 APPENDIX. Attoeney-Geneeal's Fiat foe Wkit op Eeeoe on Inpoemation, oe Indictment, in Queen's Bench Division, &c. \_IIere insert name of county.] Let a writ of Error on behalf of E. T., issue directed to the Eight Honourable John Duke, Baron Coleridge, Lord Chief Justice of England, and the Honourable the other justices of Her Majesty's High Court attached to the Queen's Bench Division, upon a certain information [or indictment] filed in the said Queen's Bench Division, against the said E.T. for certain misdemeanors whereof he is impeached [or indicted] and by a jury of the county aforesaid [or for want of a sufScient plea] convicted, as it is said. And whereupon judgment has been pronounced against him. Dated, &o. [C. 0. Forms, 134.] Weit op Eeeoe on Infoemation filed, or Indictment pound, in Queen's Bench Division. ViCTOEiA, by the Grace of God, &c. To Our right trusty and well-beloved John Duke, Baron Coleridge, Our Chief Justice of England, the President, and others Our justices of Our High Court attached to the Queen's Bench Division of Our said High Court, greeting : Forasmuch as in the record and proceedings and also in the giving of judgment upon a certain information ex- hibited in [or upon a certain indictment found and filed in] Our said Court before TJs against J.W., for certain [misdemeanors], where- upon by a jury of the [county of Middlesex] taken between Us and the said J.W. before [you the said John Duke, Baron Coleridge, Our Chief Justice aforesaid] [or if before some other judge here insert his name] he is convicted, as it is said, manifest error has intervened to the great damage of the said J.W., as by his complaint We are informed. "We, therefore, being willing that the said error (if any there be) be duly amended, and full and speedy justice done to the said J.W. in this behalf, do command you that if judgment be given thereupon, then you send to Us distinctly and openly forthwith under your seal] or the seal of one of you to Our Lords Justices of Appeal in Our Court of Appeal, a transcript of the record and proceedings of the informa- tion [or indictment] aforesaid, with all things touching the same and this writ, that the said transcript and proceedings being inspected, viewed, and examined by Our Lords Justices of Appeal aforesaid,' they may cause further to be done thereupon what of right, and FORMS. 549 according to the law and custom of England shall be meet to be done. Witness Ouiself at Westminster the day of in the year of Our reign. (Signed) ESHER, (Master of the EoUs). Indorsement. By Sir A.B., Knight, Attorney-General for Our Lady the Queen. [C. 0. Forms, 135.] Memorandum op Allowance of Writ of Error. In the High Court of Justice, Queen's Bench Division. Middlesex — The Queen against A.B. I have allowed a writ of Error in this prpsecution this day of 188 (Signed) G.D. [Title of officer.] [C. 0. Forms, 136.] Statement of some particular Ground of Error to be engrossed ON Copy of above for Seevicb. One of the grounds of error intended to be argued is [here state par- ticular ground.] [C. 0. Forms, 137.] Writ of Subpcena ad testificandum or Duces Tecum; General Form, Victoria, by the grace of God, &c., to and to every of them, greeting : We command you and every of you, that laying aside all excuses and pretences whatsoever, you and every of you personally be and appear before on the day of instant [or next] at the hour of in the noon at in Our said there to testify the truth and give evidence. * And this you or any of you are not to omit, under the penalty of one hundred pounds, to be levied on the goods and chattels, lands and tenements of such of you as shall fail herein. Witness, &c. * If duces tecum, here add : And that you or such of you in whose 550 APPENDIX. custody or power the same be do bring with you and produce before [Our justice or justices] aforesaid [here describe the document, &e.] To he indorsed. This writ was issued by M.N., of L., agent for O.E., of Y., solicitor for the prosecutor [or defendant]. [C. 0. Forms, 151.] Weit of Subpcena at Sittings of High Couet. ViCTOEiA, by the grace of God, &c., to and. to every of them, greeting : We command you and every of you, that laying aside all excuses and pretences whatsoever, you and every of you personally be and appear at the [Hilary, or as the ease may 6e] Sittings of the Queen's Bench Division of Our High Court of Justice to be holden at the Eoyal Courts of Justice, London, on the day of at the hour of in the forenoon of the same day, and so from day to day during the said sittings until the indictment [or information] hereia- after mentioned is tried, there to testify the truth and give evidence, [if for prosecution on Our behalf against A.B. If for the defence between TJs and A.B.\ upon an indictment [or information] for felony [or mis- demeanor] [and if for defence add : on behalf of the defendant], and so from day to day during the said sittings until the above indictment [or information] is tried. * And this you or any of you are not to omit, under the penalty of one hundred pounds, to be levied on the goods and chattels, lands and tenements of such of you as shall fail herein. Witness, &c. * If duces tecum here add : And that you or such of you in whose custody or power the same be do bring with you and produce before Our Chief Justice aforesaid [h&^e describe the document, dc.]. [G. O. Forms, 153.] Weit of Subpcena at Assizes on the Civil Side. Victoria, by the grace of God, &c., to and to every of them, greeting: We command you and every of you, that laying aside all excuses and pretences whatsoever, you and eveiy of you personally be and appear before Our justices assigned to hold the assizes in and for Our [county] of on the day of at the hour of in the forenoon, at in Our said county, there to testify and give evidence [as in No. 153, substituting assizes for sittings]. [C. 0. Forms, 154.] FORMS. 551 "Writ op Subpcena at Assizes in the Crown Court. Victoria, by the grace of God, &c., to and to every of them, •greeting : We cottimand you and every of you, that laying aside all excuses and pretences whatsoever, you and every of you personally be and appear before* Our justices of oyer and terminer, and general gaol delivery,'!" ^^^ justices assigned to hold the assizes in and for Our [county] of on the day of at the hour of in the forenoon, at in Our said [county], there to testify thp truth and give evidence [if for ike prosecution] on Our behalf against A.B. [or if for the^ defence between us and A-B.] upon an indict- ment for felony [or misdemeanor] on behalf of the defendant [if so], and so from day to day during the said assizes until the above cause is tried. And this you or any of you are not to omit under the penalty of one hundred pounds to be levied on the goods or chattels, lands and tenements, of you or such of you as shall fail herein. Witness, &o. * Or if before the Grand Jury, before the Grand Jury of and for Our said county, on Our behalf against A.B. upon an indictment for felony [or misdemeanor], and also upon the trial of the said A.B. for the said offence. f If for winter or spring assize counties, say : in and for Our winter [or spring] assize county, No. [seventeen], and omit "and justices assigned, dc." [C. 0. Forms, 157.] Writ op Subpcena at Central Criminal Court. Victoria, by the grace of God, &o., to and to every of them, greeting : We command you and every of you, that laying aside all excuses and pretences whatsoever, you and every of you personally be and appear before Our justices of oyer and terminer and gaol delivery, at the sessions of oyer and terminer and gaol delivery, to be holden for the jurisdiction of the Central Criminal Court, at Justice Hall in the Old Bailey, in the suburbs of Our city of London, on the day of at the hour of in the forenoon of the same day, there to testify the truth and give evidence [as in No. 157]. [0. 0. Forms, 158]. 552 APPENDIX. Weit of Habeas CoRrus to bring up a Prisoner to plead to an Indictment or foe Tpjal. Victoria, &c., to the gaoler of Our prison at in and for Our said , greeting : We command you that you have hefore [descrip- tion of Court] at on the day of at the hour of in the noon the body of being committed and detained in Our prison under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called, then and there to answer to \or to fake his trial upon] an indictment against him for . And so from day to day until he shall have answered as aforesaid [or taken his trial as aforesaid]. And to be further dealt with according to law. And have you then there this writ. Witness, &c. [C. 0. Forms, 188.] Weit of Habeas Corpus to being a Prisoner to the Crown Office TO attend the Nomination, &c., of a Special Jury. ViCTORLi, by the grace of God, &c., to the gaoler of Our prison of greeting : We command you that you have the body of , being detained in Our prison under your custody, before Frederick Cockburn, Esquire, Queen's coroner and attorney in the Queen's Bench Division of Our High Court of Justice before Us on the day of at the hour of in the noon, at the Crown Office, Eoyal Courts of Justice, London; there to attend the nomination of forty-eight good and lawful men out of the book or list of persons qualified to serve on special juries within the county of , as and for a jury to be taken between Us and the said upon an information exhibited against him in Our Court before Us, by the said Frederick Cockburn, Queen's coroner and attorney as afore- said, for certain [or upon an indictment against him for certain ;] and so from day to day until the same jury shall be reduced, and when the said shall have so attended the nomination and reduction of the said jury, that then you cause him to be brought back without delay to Our said prison, and cause him to be detained therein under safe custody until he shaU be from thence discharged by due course of law. Witness, &c. [C. 0. Forms, 189.J FOEMS. 653 Weit of Attachment, Victoria, by the grace of God, &o., to the sheriff of , greeting : We command you to attach CD., so that you may have him before TJs in the Queen's Bench Division of Our High Court of Justice, at the Royal Courts of Justice, London, on the day of 188 , to answer to Us for certain trespasses and contempts brought against him in Our said Court ; and have you there then this writ. Wit- ness, &c. [C. 0. Forms, 190.] Affidavit for Habeas Corpus to brino up a Prisoner to be charged with Attachment. In the Queen's Bench. England. — The Queen against A.B. I, G.H., of, &c., clerk to I.J. of, &o., the solicitor for the prosecutor in this cause, make oath and say : — 1. That on the day of last, a writ of attachment was granted by, and duly issued out of, this honourable Court, directed to the sheriff of against the above-named defendant for his contempt in not [describe the nature of the contempt']. 2. That the said defendant is a prisoner for now confined in Her Majesty's prison at of and for 3. That the prosecutor is desirous that the said defendant should be brought before this honourable Court [or a Judge in Chambers at the Eoyal Courts of Justice, London], in order that he may be charged with and committed upon the said attachment. Sworn, &c. [C. 0. Forms, 191.J Writ of Habeas Corpus on Eetukn of Cepi Corpus. Victoria, by the Grace of God, &c., to the sheriff of , greeting : We command you that you have the body of before Us in the Queen's Bench Division of Our High Court of Justice, at the Eoyal Courts of Justice, London, forthwith after the receipt of this Our writ, to answer to Us for certain trespasses and contempts brought against him in Our said Court before Us, and whereof by your return sent to Us you have charged yoursdf. And have you then there this writ. Witness, &c. [C. 0. Forms, 192.] 551 APPENDIX. Affidavit of Personal Service of Writ. [Heading as in No. 199, ante, p. 499.] I, A.B., of, &o., make oath and say : — That I did on the day of , personally serve CD. named in the writ of hereunto annexed with the said writ, and which said writ appeared to this deponent to be duly and regularly issued out of, and under the seal of this honourable Court, by delivering a true copy of such writ to the said personally, at in the county of . And at the same time showing to the said O.D., the said original writ. Sworn, &o. [C. 0. Forms, 202.] Affidavit of Service of Subpcena. [Same Heading.] I, A.B., of, &o. make oath and say : — That I did on the day of personally serve CD., one of the persons to whom the writ of subpcena hereunto annexed, marked (A.), is directed, with the said writ, by delivering a true copy of the said writ to the said CD. at in the county of . And at the same time showing to the said C D. the said original writ. And at the time of such service gave to the said CD. the sum of for conduct money. Sworn, &c. [C. 0. Forms, 203.] Affidavit of Service of Order and Master's Allocatur and Demand and Non-Payment of Money, to estreat Eecognizance. In the High Court of Justice, Queen's Bench Division. [Middlesex.] — The Queen against X.T. I, A.B., of &c., make oath and say : — 1. That I , did, on the day of 188 , personally serv^ named in the order of Court hereunto annexed, with the said order and the allocatur of the Queen's coroner and attorney in this Court [or of the master of the Crown Office] for the sum of FORMS. 555 ,made thereon, by delivering a true copy of the said order and allocatur to the said at in the county of , and at the same time showing to the said the said original order and the said allocatur. And I did, at the same time, demand of the said the said sum of , the amount of the said allocatur ; hut the said did not then pay the same, or any part thereof, to this deponent; nor has he, the said , at any time since paid the same, or any part thereof, to the prosecutor in this cause, or to any one on his ,behalf, as I have been informed by the said prosecutor, and verily believe. And the said sum of still remains due and unpaid to the said prosecutor, or to me, his solicitor. 2. And that I did also, on the day of 188 , personally serve one of the bail of the said defendant in this cause, with the said order and allocatur, by delivering a true copy of the said order and allocatur to the said at the residence of the said at in the county of and at the same time showing to the said the said original order and allocatur. And I did, at the same time, demand of the said the said sum of , but the said did not then pay the same, or any part thereof, to this deponent, nor has he, the said , at any time since, paid the same, or any part thereof, to me, or to the prosecutor in this cause, or to any one on his behalf, as I have been informed by the said prosecutor, and verily believe. 3. That I did on the day of 188 , personally serve the other bail of the said defendant, with the said order and allocatur, by delivering a true copy of the said order and allocatur to the said , at in the county of and at the same time showing to the said the said original order and allocatur. And I did, at the same time, demand of the said the said sum of but the said did not then pay the same, or any part thereof, to me, nor has he, the said , at any time since paid the same, or any part thereof, to this deponent, or to the said prosecutor, or to any one on his behalf, as I have been informed by the said prosecutor, and verily believe. And that the said sum of still remains unpaid. Sworn, &c. [C. 0. Forms, 204.] Notice of Motion foe an Information Quo Warranto for Corporate Office within 46 & 46 Vict. c. 50, s. 225. In the High Court of Justice, Queen's Bench Division. Take notice, that the Queen's Bench Division of Her Majesty's High Court of Justice will be moved on the day of 188 , 556 APPENDIX. or 80 soon after as counsel can be heard, on tehalf oi A.B., of , mercliant [or as the case may he], that an information in the nature of a quo warranto be exhibited against you, CD., to show by what authority you claim to exercise the office or franchise of a of , on the ground : — That [here shortly state the grounds of the a^lication]. And further take notice, that in support of this application will he read the affidavits of E.E. and another and GG., sworn respectively the day of May, 183 , and the exhibits therein referred to, copies of which are served herewith. Dated, &c. (Signed) X.Y., of Z., agent for M.N., of 8., solicitor for the jAbove-named A.B. To CD. of r. [C. 0. Forms, 34.] Oeder Nisi for a Quo Warranto Information. The of A.D. 188 . In the High Court of Justice, Queen's Bench Division. [Somerset.'] Upon reading the affidavits of it is ordered that day the day of next, be given to to show cause why an information in the nature of a quo warranto should not be exhibited against him to show by what authority he claims to exercise the office or franchise of , upon the grounds [here set forth all the grounds relied on. See 0. 0. Bule, 55], upon notice of this order to be given to him in the meantime. On the motion of Mr. By the Court. Affidavits of Service op Order Nisi. [See the Forms, ante, ji. 500.] Order discharging or making absolute Order Nisi. [These can be adapted from the Forms, ante pp. 501, 502.] FORMS. 557 EECOGNIZANC35 TO PROSECUTE InFOKMATION QuO WARRANTO. {^Similar to No. 27, except that the information must be described as] a certain information in the nature of a quo warranto exhibited against the said CD. by the said Frederick Cockburn on the relation of the said A.B. in the said Court to show by what authority he claims to exercise the office of a [member of the Local Board for the district of in the county of or as the case may be] whereof he is im- peached and to abide by and observe all such orders and things as the said Court shall direct in that behalf. Taken, &c. [C. 0. Forms, 28.] Information Quo Warranto against a Member of a School Board. Cheshire, to wit. Be it remembered, that Frederick Cockburn, Esquire, coroner and attorney of our present Sovereign Lady the Queen, in the Queen's Bench Division of Her Majesty's High Court of Justice before the Queen herself, who for our said Lady the Queen in this behalf prose- cutes, in his own proper person comes here into Court before the Queen herself at the Royal Courts of Justice, London, on the day of , in the year of our Lord one thousand eight hundred and eighty , and for our Lady the Queen at the relation of A.B. of Date of order , according to the form of the Statute in such case made and absolute. provided, gives the Court here to understand and be informed that [the parish of , in the county of , is a school district within the meaning of the Elementary Education Acts, 1870 and 1873. And that within the said parish and school district of , pursuant to the provi- sions of the said Acts, divers, to wit nine members [or as the case may be] are to be elected for and as the school board for the said parish and school district, in manner by the said Acts provided, and in accordance with the rules, orders, and regulations of the Lords of the Committee of the Privy Council on Education in that behalf dated (the third day of October one thousand eight hundred and seventy-thvee),] and that the place and office of [member of the school board of the said parish and school district] is a public office and place of great trust and pre-eminence within the said [parish and school district], touching the rule and government of the said [school district], that is to say, at the [parish] of afore- said, in the county aforesaid. And tliat C.B., of , in the said county [merchant, or as the case may be], heretofore to wit on the day of in the year of our Lord one thousand eight hundred and ^eighty-six, at the [parish] aforesaid in the county afore- 558 APPENDIX. said, did use and exercise and from thence continually afterwards to the time of exhibiting this information has there used and exercised, and still does there use and exercise, without any legal warrant, authority, or right whatsoever, the office of [memher of the school hoard, of the said parish and school district of ], in the county aforehaid, and for and during all the time last ahove-mentiuned, has there claimed and still does claim to be a [member of the said school hoard of the said parish and school district], and to have, use, and exercise all the privileges and perform all the duties belonging and appertaining to the said office of [member of the said school hoard], which said offices, privileges, and duties he, the said CD., for and during, all the time last above mentioned, upon our said Lady the Queen without any legal warrant, authority, or right whatsoever has usurped and still does usurp, that is to say, at the [parish] of , in the county aforesaid, in contempt of our said Lady the Queen to the great damage and prejudice of Her royal prerogative and against Her Crown and dignity. Whereupon the said coroner and attorney of our said Lady the Queen for our said Lady the Queen prays the consideration of the Court here in the premises. And that due course of law may be awarded against him, the said CD., in this behalf to make him answer to our said Lady the Queen, and show by what authority he claims to have, use, and enjoy, and perform the office, liberties, privi- leges, and duties aforesaid. (Signed) F. COCKBURN, (Queen's Coroner and Attorney.) [C. 0. Forms, 32.] Infoematios Quo Wareanto against MuNiaPAi Coepoeate Officers. Borough of , to wit. Be it remembered that, &c. [proceed as in last form.] That the borough [or city] of is a borough subject to the provisions of the Municipal Corporations Act, 1882 [if subject to the provisions of any other Act it slwuld he stated], and that within the said borough [or city] pursuant to the provisions of the said Act there of right ought to be one mayor, [six] aldermen and [eighteen] councillors, to be elected in the manner in the said Act specified ; and that the place and office of [mayor] [aldermen] [or a councillor] of the said borough is a public office, and a place and office of great trust and pre-eminence within the said borough, touching the rule and govern- ment of the said borough [and the administration of public justice within the same], that is to say, at the borough of , in the said county. FOBMS. 559 And that G.D., of the borough aforesaid, in the county aforesaid, [merchant], heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and eighty , at the horough of aforesaid, in the county aforesaid, did use and exercise and from thence continually afterwards to the time of exhibiting this information has there used and exercised, and still does there use and exercise, without any legal warrant, royal grant, or right whatsoever, the office of of the said borough, and for and during all the time last above mentioned had there claimed, and still does there claim, without any legal warrant, royal grant, or right whatsoever, to be of the said borough, and to have, use, and enjoy all the liber- ties, privileges, and franchises, to the office of of the said borough, belonging and appertaining, which said office, liberties, privileges, and franchises, he the said G.D. for and during all the time last above-mentioned upon our said Lady the Queen, without any legal warrant, royal grant, or right whatsoever, has usurped and still does usurp, that is to say, at the borough of aforesaid, in the county aforesaid, in contempt of our said Lady the Queen, to the great damage and prejudice of Her royal prerogative and also against Her Crown and dignity. "Whereupon the said coroner and attorney of our said Lady the Queen, for our said Lady the Queen, prays the consideration of the Court here in the premises. And that due process of law may be awarded against him the said CD., in this behalf to mate him answer to our said Lady the Queen, and show by what authority he claims to have, use, and enjoy, the office, liberties, privi- leges, and franchises aforesaid. (Signed) F. COCKBURN, (Queen's Coroner and Attorney). [C. 0. Forms, 33.] l^TMs form can he easily adapted to the case of a.Toum Clerk or Becorder.'] Disclaimer upon an Information Qtro Warranto. In the High Court of Justice, Queen's Bench Division. [Lincolnshire.'l — The Queen on the relation of A.B. ' against CB. And now, that is to say, on the day of 188 , comes the above-named CB. by his solicitor [or in his own proper person], and says that he altogether disclaims and disavows the office, liber- 560 APPENDIX. ties, privileges, and franchises in the said information above specified, and cannot deny but that he has usurped upon our said Lady the Queen, without any legal warrant, royal gi-ant or right whatsoever, the said office, liberties, privileges, and franchises in the said in- formation above mentioned, and confesses and acknowledges the said usiirpation, in manner and form as in the said information is above alleged. (Signed) CD. [or iy his Counsel.^ [C. 0. rorms, 35.] Writ of Subpcena, to answer on Information. [See C. O. Forms, 51, ante, p. 512.] Writ of Subpcena on Trial of. Issues on Quo Warranto Information. [As in No. 153 or No. 154, ante, p. 550.] But instead of " upon an indictment for " say : upon an information in the nature of a quo warranto exhibited against him the said in the [said] Queen's Bench Division of Our High Court of Justice before Us, to show by what authority he claims to be whereof he is impeached. Judgment of Ouster on Disclaimer to Quo Warranto. [Heading as in last.l The day of 188 . The defendant having, on the day of 188 entered a disclaimer upon this information, It is this day adjudged that he, the said CD,, do not in any manner intermeddle, &c. [proceed as in form for judgment on quo warranto form 123.] [C. 0. Poi-ms, 36.] FORMS. 561 Judgment foe the Crown on Quo Warranto after Trial with a jurt. In the High Court of Justice, Queen'8 Bench Division. [Middlesex.] — The Queen, on the relation of A.B., against CD. 15th April, 188 . The information in this prosecution having, on the 12th and 13th days of April 188 , been tried before the Honourable Mr. Justice with a [special] jury of the county of , and the jury having found [state findings as in officer's certificate], and the said Mr. Justice having ordered that judgment be entered for the Crown with costs [or as the case may he] : Therefore it is adjudged that the defendant G.D. do not in any manner intermeddle with or concern himself about the office, libei'ties, privileges, aad franchises in respect of which the said information has been filed, but that he be absolutely forejudged and excluded from exercising or using the same or any of them for the future. And that the said A.B., the relator above-men- tioned, do recover against the said G.D., his costs in this behalf to be taxed. The above costs have been taxed and allowed at £ , as appears by the master's allocatur dated at the day of 188 . [C. O. Forms, 123.] Notice of Motion on Appeal to Court of Appeal. In the Court of Appeal. [ TorksMre.] — The Queen on the relation of A.B. against CD. Take notice that this Honourable Court will be moved on [ day] the day of next, or so soon thereafter as counsel can be heard by Mr. of counsel for the above-named defendant CD. [or relator A.B.] on his behalf, that the judgment [or order] of the Queen's Bench Division of the High Court of Justice made herein and dated the day of 188 , [or */ only part of the judg- ment or order is appealed from,, say, " that so much of the judgment (or order) of the Queen's Bench Division of the High Court of Justice made herein and dated, &c., as adjudges (or directs or orders, as the case may he) that. [here, set out the. part ^or parts ..of the judgment 2 562 APPENDIX. or order which are appealed from] may te reversed [or rescinded], and that [here set mt the relief or remedy, if any, sought, as for instance "that it may be adjudged {or ordered) that," &c., as the ease may he. Dated this day of 18 . Yours, &c., M.N., Solicitor [or Agent for X.Y., solicitor] for the above-named defendant [or relator]. To A.B., the above-named relator [or iequivalent], and to Mr. O.P., his solicitor or agent. [Adapted from Chitty's Forms (11th Ed.), pp. 453-456.] For forms of (1) Notice of motion for leave to appeal after time has expired ; (2) Notice of motion to dismiss appeal in default of security for want of prosecution ; (4) Notice of motion to stay proceedingB pending appeal; (6) Notice by respondent of intention to contend that the decision of the court below should be varied ; and (6) Notice of intention to apply for leave to produce fresh evidence at the hear- ing of the appeal, see Chitty's Forms (11th Ed.), pp. 455-460. The alterations requisite to be made in these forms will appear from the form of notice of motion on appeal above set forth. Writ of Mandamus. Victoria, by the grace of God, &c. to of greeting. Whereas by [here recite Act of Parliament, or Charter, if the act required to he done is founded on either one or the other]. And whereas We have been given to understand and are informed in the Queen's Bench Division of Our High Court of Justice before Us, that [in»ert necessary inducement and averments']. And you the said were then and there required by [insert demand], but that you the said well knowing the premises, but not regarding your duty in that behalf then and there wholly neglected and refused to [insert refusal] nor have you or any of you at any time since in con- tempt of Us and to the great damage and grievance of as We have been informed from their complaint made to Us. Whereupon We, being willing that due and speedy justice should be done in the premises as it is reasonable, do command you the said and FORMS. 563 every of you firmly enjoining you that you [insert command] or that you show Us cause to the contrary thereof, lest by your default the same complaint should be repeated to Us. And how you shall have executed this Our writ make known to Us in Our said Court at the Eoyal Courts of Justice, London, forthwith then returning to Us this Our said writ, and this you are not to omit. Witness, &o. To he indorsed. By order of Court [or of Mr. Justice J. At the instance of This writ was issued by, &c. [C. 0. Forms, 37.] Mandamus to elect to Municipal Office. Victoria, by the Grace of God, &c. to the mayor, aldermen and burgesses (a) of Our borough of in the county of , greeting. Whereas Our said borough of is a borough subject to the provisions of the Municipal Corporations Act, 1882 [if subject to the provisions of any other Act, state it also], within which said borough, according to the provisions of the said Act of Parliament there of right ought to be one mayor, aldermen and councillors, to be elected in the manner in the said Act specified. And whereas We have been given to understand and are informed in the Queen's Bench Division of Our High Court of Justice before Us that on the day of now last past, the of the said borough went out of ofSce in pursuance of the provisions of the said Act of Parliament. And that no due election of any persons to be or of any person to be an of the said borough in the place and stead of such who had so gone out of oflSce or of any of them was had or holden the day of . Nor hath any election of any or of an of the said borough, in the place and stead of such who has so gone out of office as afore- said been since at any time made whereby the places- and offices of of the said borough since the day of have been and still are vacant, to the manifest hindrance and obstruction of the public government of the said borough. Whereupon We, being willing that due and speedy justice should be done in. the premises, as it is reasonable, do command you the said mayor, aldermen and burgesses of the said borough of and every of you, firmly enjoining you that you and every of you having a right to vote or (a) In the case of a city, the title of the corporation is " the mayor, aldermen; and citizens " (Municipal Corporations Act, 1882, s. 8.) 2 2 564 APPENDIX. to do any other act necessar}' to be done in order to the election of of the said borough do upon the day of , meet and assemble yourselves together in the Guildhall of the said borough. And that being so assembled you or such of you to ■whom the same doth of right belong, do then and there proceed to the election of in the place and stead of of the said borough, who have so gone out of office as aforesaid, according to the directions of the said Act of Parliament. And that you or such of you to whom the same doth of right belong, do administer or cause to be adminis- tered to the several persons who shall be so elected of the said borough, the oath [or declaration] (a) in that behalf enacted by the said Act to be made and subscribed. And that you admit or cause to be admitted the same several persons respectively into the office of of the said borough, together with all the liberties, privileges and franchises to the said places and offices respectively belonging and appertaining. And that you and every of you do every Act necessary to be done by you or any of you in order to the due election and admission of of the said borough, according to your authority in that behalf respectively, or that you shew Us cause to the contrary thereof, lest by your default the same complaint should be repeated to Us. And how you shall have executed this Our writ, make known to us in ' the Queen's Bench Division of Our High Court of Justice at the Eoyal Courts of Justice, London, forth- with then returning to Us this Our said writ, and this you are not to omit. Witness, &c. To he indorsed. By order of Court [or of Mr. Justice J. At the instance of This writ was issued by, &c. [For form of Mandamus to a railway company to purchase the necessary lands to complete their line, see B. v. Great Western By. Co., 16 Q. B. 864, 1 B. & B. 263. See also form of Eeturn in the same case. Form of Mandamus (and Eeturn) to a railway company to make a bridge and carry the road over it : B. v. Caledonian By. Co., 16 Q. B. 19. Mandamus (and Eeturn) to admit to the office of warden of a college: B. v. Dulwich, 17 Q. B. 600. Mandamus (and Eeturn) to a lord of a manor and his steward to admit a copyholder : B. v. Corbett, 1 E. & B. 836 ; B. v. Bendy, 1 E. & B. 829.] (a) Only such municipal officer as is to act as a justice of the peace is now obliged to take an oath or make a declaration. See 31 & 32 Vict, c. 72, ss 6- and 9 and Shed. Fart II. ■ ■ ' FORMS. 565 Eeturn to Wmt of Mandamus. The return may either he indorsed on the hack of the original writ, or engrossed on a separate parchment schedule. When indorsed on the hack of the original writ: The answer of [the parties to whom the writ is directed] to this writ. We, the, &c. [the defendants'] to whom this writ is directed, do most humbly certify that and return to our Sovereign Lady the Queen at the time and place in this writ mentioned, that we have, &c. [when the return is an obedience to the writ, the words of the mandatory part of the writ should he recapitulated in the past instead of the future tense']. As by the said writ we are commanded. ( To he signed hy the parties making the return, or a suficient. number to form a quorum, unless they he a corporate body, in which case it is sufficient to attach the corporate seal.) When the return is engrossed on a separate schedule. Indorse the miginal writ [or the copy served] thus : The return of to this writ [or if the return is obedience, say, the execution of this writ] appears in the schedule hereunto annexed. The answer of To he signed or sealed as above.] [C. 0. Forms, 38.] [For a return in the nature of a demurrer : see B. v. St. Pancras, 6 A. & B. 316.] [For other forms of return, see cases referred to p. 664.] JUDOMENT FOR THE CrOWN ON MANDAMUS AFTER TrIAL WITH A JuRY. In the High Court of Justice, Queen's Bench Division. [Insert name of county] — The Queen, on the prosecution of A.B., Plaintiff. against C.D., Defendant. 30th March, 188 . The issue on this writ of mandamus having on the day of 188 , been tried before the Honourable Mr. Justice , with a [special] jury of the county of , and the jury having found [state findings as in officer's certificate] and the said Mr. Justice having ordered that judgment be entered for the Crown with costs 566 APPENDIX. [or as the case may he]. Therefore it is adjudged that a peremptory writ of mandamus be awarded in this behalf, and that the plaintiff do recover against his costs to be taxed. The above costs have been taxed and allowed at £ , as appears by the master's allocatur dated the day of 188 . [C. 0. Forms, 124.] Writ of Subpcena on Trial of Issue on Mandamus. [As in No. 153 or 154, ante, p. 550 ] And after the word " evidence " insert : — between the Queen on the prosecution oiA.B., plaintiff, and CD. and E.F., &c., defendants, upon the trial of certain issues joined between the said parties upon the return to Our writ of Mandamus lately issued out of the [said] Queen's Bench Division of Our High Court of Justice directed to the said commanding them [or him] to [We shortly set out mandatory part of 2m<] on behalf of the plaintiff [or defendant.] Writ of Prohibition. Victoria, by the Grace of God, &c., to [the keepers of Our peace and Our justices assigned to hear and determine divers crimes, trespasses, and other offences committed vnihin Owr county of ], greeting. Whereas We have been given to understand that you the said [justices have entered an appeal by A.B. against, dc] And that the said has no jurisdiction to hear and determine the said by reason that [here state facts showing want of jurisdiction]. We therefore hereby prohibit you from further proceeding in the said Witness, &c. This writ was issued by, &c. [C. O. Forms, 39.] CEOWN OFFICE EULES, 1886. The following Orders and Eules may be cited as the Crown Office Eules, 1886. They shall come into operation on the 28th day of April, 1886, and shall also apply, so far as may be practicable (unless otherwise expressly provided), to all proceedings taken on or after that day in all matters then pending. 1. All existing rules or practice on the Crown side inconsistent CROWN OFFICE EULES, 1886. 567 with these Eules are hereby repealed, and the following Eules shall ■henceforth be in force. 2. No order or rule annulled by any former order shall be revived by any of these Eules, unless expressly so declared ; and where no other provision is made by these Eules, the present procedure and practice remain in force. Custody of Eecokds. 3. The Queen's coroner and attorney, and the master of the Crown OfBce, Queen's Bench Division, shall have the care and custody of the records and other proceedings on the Crown side. Date of Proceedings. 4. Every order and other proceeding on the Crown side shall be dated of the day of the week, month, and year on which the same was made, unless the Court or a judge shall otherwise direct, and shall take effect accordingly. Affidavits. 5. Order xxxviii. (affidavits) of the Eules of the Supreme Court, 1883, shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following Eules shall apply to all proceedings on the Crown side. 6. Upon any motion or summons evidence may be given by affi- davit; but the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit. 7. Affidavits used on the Crown side shall be intituled "In the High Court of Justice, Queen's Bench Division." 8. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. 9. Affidavits sworn in England shall be sworn before a judge, dis- trict registrar, commissioner to administer oaths, first or second class 568 APPENDIX. clerk in the Crown Office Department, or officer empowered under the Eules of the Supreme Court to administer oaths. 10. Every commissioner to administer oaths shall express the time when, and the place where, he shall take any affidavit or recogni- zance ; otherwise the same shall not he admitted to he filed without the leave of the Court or a judge ; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office. 11. All affidavits, declarations, affirmations, and attestations of honour in causes or matters depending on the Crown side may be sworn and taken in Scotland or Ireland or the Channel Islands, or in any colony, island, plantation, or place under the dominion of Her Majesty in foreign parts, hefore any judge, court, notary public, or person lawfully authorized to administer oaths in such country, colony, island, plantation, or place respectively, or hefore any of Her Majesty's consuls or vice-consuls in any foreign parts out of Her Majesty's dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature, as the case may he, of any such Court, judge, notary public, person, consul, or vice-consul, attached, appended, or subscribed to any such affidavits, affirmations, attestations of honour, declarations, or to any other document. 12. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall he numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule. 13. Every affidavit shall state the description and true place of abode of the deponent. 14. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of aU the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the " above-named " deponents. 15. Every affidavit used on the Crown side shall be filed in the Crown Office Department of the Central Office. There shall be indorsed on every affidavit a note shewing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the Court or a judge shall otherwise direct. 16. The Court or a judge may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. CROWN OFFICE RULES, 1886. 569 17. No affidavit having in the jurat or body thereof any interlinea- tion, alteration, or erasure shall, without leave of the Court or a judge, be read or made use of in any matter depending in Court, unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or if taken at the Crown Office Department, either by his initials or by the stamp of that office ; nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialed in the margin of the affidavit by the officer taking it. 18. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent. 19. The Court or a judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof; and may direct a memorandum to be made on the document that it has been so received. 20. In cases in which by the present practice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be deli- vered to and left with the proper officer in Court or in Chambers, who shall send it to be filed. An office copy of an affidavit may, in all cases in which a copy is admissible, be used, the original affidavit having been previously filed, and the copy duly authenticated with the seal of the office. 21. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself. 22. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner. 23. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court or a judge, 24. Except by leave of the Court or a judge no order made ex parte 57(3 APPENDIX. in Court founded on any afBdavit shall be of any force, unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion. 25. Upon motions founded upon affidavits, either party may apply to the Court or a judge for leave to make additional affidavits upon any new matter arising out of the affidavits of the opposite party ; hut no additional affidavits shall he used except such leave shall have been first obtained. 26. No person shall be allowed to shew cause against an order nisi, unless he shall have previously obtained office copies of such order and of the affidavits upon which it was granted. 27. Affidavits of service shall state when, where and how and by whom, such service was effected. [28 — 42 relate to Certiorari.] Indictments and Informations. 43. Every indictment found by the grand jury in the Queen's Bench Division may, if necessary, be certified to a judge, in order that such judge may (if he thinks proper) immediately issue his warrant for the apprehending of the defendant. 44. If any defendant in any indictment or information depending in the Queen's Bench Division shall be committed to prison, and detained for want of bail for his appearance, to such indictment, or information, for the space of one calendar month next following such commitment, and the prosecutor of such indictment or information, shall not proceed within that time, such defendant shall after the expiration thereof be discharged by order of the Court or a judge upon entering a common appearance to the said indictment or information (unless good cause shall be shown to the contrary). Eight days' notice shall be given by the defendant or his solicitor of his intention to apply for such order. 45. If any such defendant shall be convicted upon any such indict- ment or information as in the last preceding rule mentioned, and shall be afterwards committed or detained for want of bail, the pro- secutor shall cause him to be brought up for judgment within eight days after the time limited by Eule 166 for moving for a new trial if the Court be then sitting, and if the Court be not sitting, within the first eight days of the sittings next after that in which the trial was had, and in default of his doing so within that time, or within such CEOWN OFFICE RULES, 1886. 571 further time as may have been granted by the Court or a judge for that purpose, the defendant may on application to the Court be dis- charged on his own recognizance. 46. With the exception of ex-officio informations filed by the Attorney-General on behalf of the Crown, no criminal information or information in the nature of a quo warranto shall be exhibited, received, or filed at the Crown Office Department without express order of the Queen's Bench Division in open Court, nor shall any process be issued upon any information other than an ex-officio information, until the person procuring such information to be exhibited shall have filed at the Crown Office Department a recog- nizance in the penalty of £50 effectually to prosecute such infor- mation and to abide by and observe such orders as the Court shall direct, such recognizance to be entered into before the Queen's coroner and attorney or the master of the Crown Office, or a justice of the peace of the county, borough, or place in which the cause may have arisen. 47. No application shall be made for a criminal information against a justice of the peace for misconduct in his magisterial capacity unless a notice containing a distinct statement of the grievances, or acts of misconduct complained of, be served personally upon him, or left at his residence, with some member of his household, six days before the time named in it for making the application. 48. The application for a criminal information shall be made to a Divisional Court by a motion for an order nisi, within a reasonable time after the offence complained of ; and if the application be made against a justice of the peace for misconduct in his magisterial capacity, the applicant must depose on affidavit to his belief that the defendant was actuated by corrupt motives, and further, if for an unjust conviction, that the defendant is innocent of the charge. 49. If the prosecutor on any information not ex-officio does not proceed to trial within a year after issue joined, or if the pro- secutor causes a nolle prosequi to be entered, or if the defendant be acquitted (unless the judge at the time of trial certifies that there was reasonable cause for the information), the Court, on motion for the same may award the defendant his costs to the amount of the recognizance entered into by the prosecutor on filing the infor- mation. 50. If, on any indictment in the Queen's Bench Division, or infor- mation by a private prosecutor', for the publication of any defamatory libel, judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defen- dant by reason of such indiotmrait or information; and upon a special plea of justification to such indictment or information, if the 572 APPENDIX. issue be found for the proBecntor, he shall be entiiled to recover from the defendant the costs sustained by the prosecutor by reason of such plea. Quo Waeeanto. 51. Every application for an information in the nature of a quo warranto shall be by motion to a Divisional Court for an order nisi, unless the same be ex-officio or be made in respect of a corporate office within the meaning of 45 & 46 Vict. c. 60, s. 225. 62. In respect of such a corporate office as in the last preceding Eule mentioned, the application shall be by notice of motion to the person affected thereby, to be served not less than ten days before the day specified in the notice for making the application. 53. The notice shall set forth the name and description of the applicant, and a statement of the grounds of the application, and the applicant shall deliver with the notice, on service thereof, a copy of the affidavits whereby the application will be supported. 64. No order for filing any information in the nature of a quo warranto shall be granted, unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as relator ; and such person shall be deemed to be the relator in case such order shall be made absolute, and shall be named as such relator in such information in case the same shall be filed, unless the Court shall otherwise order. 55. Every objection intended to be made to the title of a defendant on an information in the nature of a guo warranto shall be specified in the order to shew cause or notice of motion ; and no objection not so specified shall be raised by the relator on the pleadings without the special leave of the Court or a judge. 66. The Court may discharge an order nisi for an information in the nature of a quo warranto with or without costs, and in its discretion may, upon such notice as may be just, direct the costs to be paid by the solicitor or other parties joining in the affidavits in support of the application, although he be not the proposed relator. 57. A new relator may by leave of the Court, on notice of motion, be substituted for the one who first enters into the recognizance, on special circumstances being shewn. 58. Where several orders nisi for informations in the nature of quo warranto have been granted against several persons for usurpation of the same offices, and all upon the same grounds of objection, the Court may order such orders to be consolidated, and only one information to be filed in respect of all of them ; or may order all proceedings to be stayed upon all but one, until judgment be given in that one;' CEOWN OFFICE RULES, 1886. 573 proyided always that no order be made to consolidate or stay any proceedings against any defendant unless he give an undertaking to disclaim, if judgment be given for the Crown, upon the information which proceeds. 59. If a defendant on an information in the nature of a quo warranto does not intend to defend, he may to prevent judgment by default enter a disclaimer at the Crown Office Department and file a copy there, and deliver another copy to the relator or his solicitor. Upon the disclaimer being filed judgment of ouster may be entered at the Crown Office Department, and the costs taxed as in judgment by default. Mandamus. 60. Application for a prerogative vs^rit of mandamus shall, during the sittings, be made to a Divisional Court of the Queen's Bench Division by motion for an order nisi ; and in the vacation to a judge in cham.bers for a summons to shew cause, upon its being shewn to the satisfaction of Buch judge that the matter is urgent. Provided that this rule shall not apply to any application for a writ of mandamus under 45 & 46 Vict. c. 50, s. 225. 61. Notice shall be given by the order nisi for a mandamus to every person who, by the affidavits on which the order is moved, shall appear to be interested in or likely to be affected by the proceedings, and to any person who in the opinion of the Court or judge ought to have such notice. 62. The order nisi shall be served upon each person to whom notice is given by the order, as well as the party whom the order requires to shew cause. 63. Any person, whether he has had notice or not, who can make it appear to the Court or judge that he is affected by the proceeding for a v^rit of mandamus, may shew cause against the order nisi or summons, and shall be liable to costs in the discretion of the Court or a judge if the order should be made absolute, or the prosecutor obtain judgment. 64. The order absolute for a mandamus need not be served, but the cost of service of the order absolute may be allowed in the discretion of the taxing officer, where the writ is not issued. 65. If the writ of mandamus is directed to one person only the original must be personally served upon such person, but if the writ be directed to more than one, the original shall be shewn to each one at the time of service, and a copy served on all but one, and the original delivered to such one. 66. When a writ of mandamus is directed to companies,- corpora- 574 APPENDIX. tions, justices, or public bodies,' service shall be made upon such, and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons, except where by- statute service on the clerk or some other officer is made sufficient service. 67. The Court or a judge may, if they or he shall think fit, order that any ■writ of mandamus shall be peremptory in the first instance. 68. Every writ of mandamus shall bear date on the day when it is issued, and shall be tested in the name of the Lord Chief Justice of England. The writ may be made returnable forthwith, or time may be allowed to return it, either with or without terms, as the Court thinks fit. A writ of mandamus shall be in the Form in the Appendix Ko. 37, with such variations as circumstances may require. 69. Any person by law compellable to make any return to a writ of mandamus shall make his return to the first writ. 70. Where a point of law is raised in answer to a return or any other pleading in mandamus, and there is no issue of fact to be decided, the Court, shall, on the argument of the point of law, give judgment for the successful party, without any motion for judgment being made or required. 71. Where under Eules 70 and 136 the applicant obtains judgment he shall be entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ, and the judgment shall direct that a peremptory writ do issue. 72. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof. 73. When it appears to the Court that the respondent claims no right or interest in the subject matter of the application, or that his functions are merely ministerial, the return to the writ, and all sub- sequent proceedings down to judgment shall still be made and pro- ceed in the name of the person to whom the writ is directed, and, if the Court thinks fit so to order, may be expressed to be made on behalf of the persons really interested therein. In that case the persons interested shall be permitted to frame the return and conduct the subsequent proceedings at their own expense ; and if judgment is given for or against the applicant it shall likewise be given for or against the persons on whose behalf the return is expressed to be made ; and if judgment is given for them, they shall have the same remedies for enforcing it as the person to whom the writ is directed would have in other cases. 74. Where, under the last preceding rule, the return to a writ of mandamus is expressed to be made on behalf of some person other CROWN OFFICE RULES, 1886. 575 than the person to whom the writ is directed, the proceedings on the writ shall not abate hy reason of the death, resignation, or removal from office of that person, but they may be continued and carried on in his name ; and if a peremptory writ is awarded, it shall be directed to the successor in office op right of that person. 75. In any case of mandamus, in which a proceeding by way of interpleader may be proper, the provisions of Order ltii. of the Eules of the Supreme Court, 1883 (Interpleader), shall be applicable, so far as the nature of the case will admit. 76. No order for the issuing of any writ of mandamus shall be granted, unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as prosecutor ; and if the writ be granted the name of such person shall be endorsed on the writ as the person at whose instance it is granted. 77. Every application for the costs of a mandamus shall, unless the Court or a judge shall otherwise order, be made before the fifth day of the sittings next after that in which the right to make such appli- cation accrued, and shall be upon notice of motion to be served eight days before the day named therein for moving., 78. The -party moving for costs shall leave at the Crown Office Department a notice for the production in Court of all the affidavits filed in support of, and in opposition to, the original order. 79. Every application for a writ of mandamus to justices to enter continuances and hear an appeal shall be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time be allowed by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court. Orders in the Nature of Mandamus. 80. An application for an order in the nature of a mandamus, to justices, or to a county court judge, or to justices to state and sign a case, shall be by motion for an order nisi (in the same manner as is provided in Eule 60). Prohibition. 81. An application for a writ of prohibition on the Crown side shall be made by motion to a Divisional Court for an order nisi in all criminal causes or matters ; and in civil proceedings on the Crown 576 APPENDIX. side by motion for an order nisi or by summons before a judge at chambers. 82. The order may be made absolute ex parte in the first instance on special circumstances being shewn, in the discretion of the Court or judge. Appearance to Indictment, Information, and Inquisition. 83. A defendant to any indictment, information, or inquisition in the Queen's Bench Division, or removed into the said division by writ of certiorari or otherwise, must enter or cause to be entered in a book at the Crown Office an appearance to such indictment, information, or inquisition ; except that in treason or felony the defendant must appear in person in open court unless the Court or a judge shall order that the defendant be at liberty to appear and plead by solicitor, in which case the appearance may be entered as above stated. 84. If an indictment has been removed at the instance of the defen- dant, the prosecutor may draw up an order at the Crown Office to be served upon such defendant or his solicitor to appear, plead, and try according to the conditions of the recognizances entered into on I'emoving such indictment. 85. In case such defendant shall not so appear, plead, and try, application may be made to the Court to estreat the recognizances so entered into, and for a writ ot procedendo to carry back the indictment to the Court from whence it came ; or if such writ oi procedendo be not applied for, the Court or a judge, upon a certificate of one of the officers of the Crown Office of such de&ult, may issue a warrant as provided in Eule 87. The certificate may be in the rorm No. 40, or to the like effect. 86. As against any defendant to any indictment, information, or coroner's inquisition, other than a defendant at whose instance a writ of certiorari may have been awarded to remove such indictment or inquisition, the prosecutor may obtain a certificate from one of the officers of the Crown Office of an indictment, information, or coroner's inquisition having been filed. The certificate may be in the Form No. 41 or 42, or to the like effect. 87. Upon production of such certificate to a judge, such judge may, if necessary, issue a warrant under his hand to apprehend the defen- dant and cause him to be brought before him or some other judge or before a justice of the peace to be dealt with according to law. The warrant may be in Form No. 43 or 44, or to the like efiect. 88. If it be proved upon oath before such judge or justice of the peace that the person apprehended and brought before him is the person charged and named in such indictment, information, or inqui- CROWN OFFICE RULES, 1886. 577 sition, such judge or justice of the peace shall without further inquiry or examination commit him to prison by a warrant, which may be in the Form No. 45 or to the like effect, or admit him to bail. Provided that nothing in these rules shall affect the jurisdiction of a judge to admit any defendant to bail whether in felony or misde- meanor, at any time after committal' and before conviction, if he shall in his discretion so think fit. 89. When an indictment has been removed into the Queen's Bench Division, and the defendant has previously been held to bail in the court below, the judge shall not issue his warrant under the last pre- ceding rule unless special circumstances be shewn upon affidavit, such as it being known to be his intention to abscond. 90. When any information is filed and the defendant is under terms to appear immediately and does not enter an appearance, the prose- cutor may serve a notice upon the defendant to appear within five days, and in default of appearance may move the Court ex parte for leave to enter an appearance for him, or if the notice was personally served for an attachment. 91. If the defendant on any indictment or inquisition for misde- meanor, or information, wishes to avoid arrest upon a warrant, he may give twenty-four hours' notice of bail to the prosecutor, and enter into a recognizance before a judge or justice of the peace with sufficient surety or sureties to appear and answer the indictment, inquisition, or information, and personally appear at the trial, and on the return of the postea if it be necessary, and so from day to day and not depart without leave of the Court. 92. If the defendant be taken on a warrant he shall give twenty- four hours' notice of bail, and enter into a recognizance as in the last preceding rule mentioned before he can be discharged. 93. If any defendant to an indictment or inquisition for misde- meanor, or information, shall be detained in any prison for want of bail, the prosecutor of any such indictment, inquisition, or informa- tion, may cause a copy thereof to be delivered to the gaoler of the prison for such defendant, with a notice endorsed thereon that if the defendant do not within eight days after such delivery cause an appearance and a plea or demurrer to be entered to such indictment, inquisition, or information, an appearance and plea of not guilty will be entered for him ; and if the defendant do not enter such appearance and plea or demurrer within eight days from the delivery of such copy of the indictment, inquisition, or information and notice, the prosecutor, upon filing an affidavit of the delivery of such copy and notice endorsed thereon to the keeper or gaoler as aforesaid, may cause an appearance and plea of not guilty to be entered to the indict- ment, inquisition, or information for the defendant ; and proceedings 2 p 578 APPENDIX. shall be had thereon as if the defendant himself had duly appeared and entered such plea. 94. When any indictment has heen found in, or removed into the Queen's Bench Division at the instance of the prosecutor, or of one or more of several defendants, the prosecutor may, instead of applying for a -warrant under Eules 85, 86, 87, issue a writ of venire /ados against such defendants as are not parties to the removal of the indictment, or defendants under recognizance to answer ; or in the case of an information may issue either a subpoena to answer, or a venire facias if it is intended to proceed to outlawry. 95. If the defendant does not appear within four days after the day named in the subpoena to answer, the prosecutor, upon filing an affidavit of due service of the subpoena to answer, may issue a writ of attachment. 96. If a defendant fails to appear within four days after the sheriff has returned to the court on the venire facias that he has summoned the defendant, the prosecutor may issue a writ of distringas. 97. If a defendant fails to appear within four days after the sheriff has returned to the court that he has distrained the lands and chattels of the defendant, the prosecutor may issue a writ of capias ad respon- dendrnn, and if necessary further proceed to outlawry as hereinafter provided by these rules ; provided alwa3S that in felony, if the defen- dant has not been admitted to bail, the prosecutor may issue a writ of capias in the first instance. 98. The process against a body corporate, or inhabitants of a county, borough, parish, or place, to compel an appearance shall be by writs of venire facias and distringas. If such defendants do not appear within four days after the sheriff has returned that he has distrained the defendants' land and chattels, alias and pluries writs of distringas may be issued with such increased amounts upon each succeeding writ as the Court or a judge may order. Outlawry. 99. To proceed to outlawry before judgment on an indictment for misdemeanor, or an information, the prosecutor must issue a writ of venire facias at the Crown Office returnable on a day certain either in or out of the sittings. 100. On the return of the sheriff that he has summoned the defen- dant, and the defendant has not appeared, the prosecutor may issue a distringas to answer, returnable on a day certain either in or out of the sittings, and if necessary alias writs of distringas ; and if the sheriff CROWN OFFICE RULES, 1886. 579 return that the defendant has no goods in his bailiwick whereby he can be summoned, or distrained, a capias ad respondendum, tested and made returnable as the writ of venire facias, may be issued on the fourth day after the return. 101. On the return of non est inventus to a capias ad respondendum, before the prosecutor can proceed further he shall issue a second writ of capias on the fourth day after the return to the first, made returnable as the first writ, and shall issue a third writ of capias on the fourth day after the return of the second, tested and made returnable as the second writ. 102. If the defendant is dwelling in another county than where the indictment was found, or where the information be (««c) laid, the prosecutor shall issue another second writ of capias aim proclamatione to the sheriff of the foreign county after the return of the first writ to the sheriff of the county in which the indictment was found, or in- formation laid, tested as the other writs of capias, but not to be made returnable till such a day certain as will enable the sheriff of the foreign county, if he cannot be found, to make proclamation at two of his county courts either three months, or four months, after the issue of the writ ; according as the sheriff may hold his courts from month to month, or six weeks to six weeks. 103. Upon a return of non est inventus to the third writ of capias in the same county, and if the defendant be dwelling in another county to the capias to the sheriff of such county, a writ of exigent must be issued by the prosecutor. 104. Simultaneously with the writ of exigent a writ of proclama- tions shall be issued to the sheriff of the county where the defendant is mentioned to be, or inhabit ; both writs must be tested on the day of the return to the previous process, and returnable on such a day certain during the sittings, as will admit of their being delivered to the sheriff three months before return. 105. If it does not appear by the return to the writ of exigent that the defendant has been exacted five times and outlawed, the prosecutor must issue another writ of exigent with allocatur, commanding the sheriff to cause him to be further exacted until he shall have been exacted five times and outlawed. 106. Upon the return of the sheriff that the defendant has been exacted five times and outlawed, on application of the prosecutor judgment may be entered at the Crown Office. 107. After judgment has been entered, the roll of all the proceed- ings may be engrossed by the prosecutor, and filed at the Crown Office. 108. A writ of capias utlagatum may be issued by the prosecutor at any time the defendant is likely to be found, or a like writ special, 2 P 2 580 APPENDIX. cam, hreve de inquirendo ; or if necessary a writ of melius inquirendum may te applied for. 109. All tlie rules as to proceeding to outlawry on indictment in misdemeanor before judgment, shall apply to indictment for felony ; except that in felony the prosecutor may issue a writ of capias ad respondendum at once, instead of a venire facias to answ^er. 110. On proceeding to outlawry after judgment on indictment, for felony or misdemeanor or information, the prosecutor may issue a writ of capias ad satisfaciendum into the county where the indictment is found, or information laid, returnable on the first day of the then next sittings. One writ of capias only need be issued ; and on return of non est inventus, the prosecutor may issue a writ of exigent tested on the return day of the -writ of capias, returnable on the first day of the then next sittings. It shall not be necessary %o issue any writ of proclamations on the return of a writ of capias ad satisfaciendum. 111. After the return to the writ of exigent, the rules as to proceed- ing after writ of exigent in outlawry before judgment shall apply to proceedings in outlawry after judgment. 112. In the county of Lancaster the capias utlagatum and all subse- quent process shall be directed to the Chancellor of the Duchy. Keversal of Outlawey. 113. It shall not be necessary for any person who shall be outlawed before conviction for any matter or thing except treason or felony to appear in person to reverse such outlawry, but such person may appear by solicitor and reverse the same. 114. If any person outlawed otherwise than for treason, or felony, before conviction be taken and arrested upon any capias utlagatum, the sheriff may take a solicitor's engagement under his hand to appear for the defendant, and shall thereupon discharge the defendant from the arrest. 115. If a defendant surrenders or is taken before outlawry is complete on misdemeanor before judgment, he may give bail in such amount, and with or without sureties, as a judge may direct, to appear to the indictment, inquisition, or information, and on appear- ance apply to the court or a judge for a supersedeas to the process of outlawry. 116. If a defendant comes in on an indictment or information for misdemeanor, and reverses the outlawry before judgment, he shall plead instanter. 117. On an indictment or inquisition for felony, or in any case after judgment, a defendant who surrenders or is taken before the CROWN OFFICE RULES, 1886. 581 outlawry is complete, shall be committed to answer the indictment or inquisition or to satisfy the judgment, but may supersede the outlawry process. 118. To reverse outlawry after conviction the defendant shall surrender himself into custody, and afterwards be brought into court to assign errors upon the judgment in outlawry, by habeas corpus. 119. If the defendant be taken on a capias utlagatum, he shall deliver the writ of error into court when he appears upon the return to the capias: he shall then move for an order to bring him up again to assign errors, and shall be committed by the Court to the Queen's Prison. 120. Until outlawry be reversed a defendant after conviction shall not be committed, or called up for judgment upon an indictment, information, or inquisition. 121. Upon the assignment of error In outlawry the prosecutor shall join in error within eight days, and the case may then be entered in the Grown paper for argument on the application of either party, as in error to the Queen's Bench Division! from inferior courts. Bail. 122. Applications for bail in felony or misdemeanor, where the party is in custody, shall be in the first instance by summons before a judge at chambers for writ of habeas corpus, or to shew cause why the defendant should not be admitted to bail either before a judge at chambers or before a justice of the peace, in such an amount as the judge may direct. Eecognizances. 123. Every recognizance acknowledged on the removal of an indict- ment, order, or other proceeding, or to prosecute any information granted by the Queen's Bench Division, or for the appearing or answering of any party in the said Division, or for good behaviour, or for any other purpose, shall, after the acknowledgment thereof, be transmitted to the Crown Office and filed there. 124. No recognizance shall henceforth be forfeited, estreated, or put upon the estreat roU without the order of the Court or a judge, nor unless an order or notice shall have been previously served upon the parties by whom such recognizances shall have been given, calling upon them to perform the conditions thereof; and no default shall be considered to be made in performing the conditions of a recognizance by reason of the trial of any indictment or presentment or the argu- 582 APPENDIX. ment of any order or conviction or other proceeding having stood over, where such indictment Has heen made a remanet, or such indictment or order has stood over by order of the Court, or by consent in writing of the parties. 125. Every recognizance to appear and answer to any indictment found in the Queen's Beiich ' Division or removed into the same, or to any ex-officio or criminal information, shall, unless the Court or a judge shall by order dispense therewith, contain, besides any other condition which may be imposed, a condition that the defendant shall personally appear from day to day on the trial of such indictment or information, and not depart until he shall be discharged by the Court before whom such trial shall be had. 126. "Whenever it has been made to appear to the Court or a judge that a party has made default in performing the conditions of any recognizance, into which he has entered, filed in the Crown Office, the Court or a judge, upon notice to the defendant and his sureties, if any, may order such recognizance to be estreated into the Exchequer without issuing any writ of scire facias. SciEE Facias. 127. No proceedings shall be taken in the Crown Office by scire facias upon recognizance. Pleadings. (A.) — Pleadings on Indictment, Information, or Inquisition. 128. Every pleading other than a plea of guilty or not guilty to an indictment, information, or inquisition shall be intituled : " In the High Court of Justice, Queen's Bench Division," and shall be dated of the day of the month and the year when the same was pleaded, and shall bear no other time or date. It shall be written or printed on paper, and a copy shall be delivered to the opposite party and be filed at the Crown Office. 129. All the proceedings shall be entered on the record made up for trial, and on the judgment roll, under the date of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the Court or a judge. 130. Every special plea or demurrer shall be in writing and if settled by counsel signed by him, and if not so settled shall be signed by the solicitor or the party if he defends in person. CROWN OFFICE RULES, 1886. 583 131. One order only to plead, reply, rejoin, join in demurrer or in error, or plead subsequent pleadings in all prosecutions by way of indictment, inquisition, or information shall be given , and such order may be drawn up and served as well during the sittings as in vacation ; and every such order shall expire as follows, that is to say, every order to plead, in ten days next after service thereof, unless the time be extended by order of the Court or a judge, and every order to reply rejoin, join in demurrer, or in error, or plead subsequent pleadings, in eight days next after service thereof, unless the time be extended as aforesaid. 132. In indictments for felony or treason the defendant shall plead in open court in the Queen's Bench Division, unless he has obtained a judge's order upon special circumstances, for liberty to appear and plead by solicitor in • the Crown Office. On the appearance of a defendant to any indictment, inquisition, or information, an order to plead may be drawn up at the Crown Office by the prosecutor or his solicitor. 133. Time in which to plead may be extended on application by summons to a Judge at Chambers, upon such terms and for such time, as the judge in his discretion may think fit. (K.) — Pleadings in Quo Warranto. 134. When any information in the nature of a quo warranto has been filed, the defendant may plead to such information within such time, and in like manner as if the information were a statement of claim delivered in an action ; and, subject to these rules, this pleading and aU subsequent proceedings, including pleadings, trial, judgment, and execution, shall proceed and may be had and taken as if in an action ; and where the judgment is for the relator judgment of ouster may be entered for him in all cases. 135. The prosecutor in answer to a plea that the defendant has held and executed the office or franchise for six years before the exhibiting the information may reply any forfeiture, surrender, or avoidance by the defendant within the said six years. (C.) — Pleadings in Mandamus. 136. When any return is made to the first writ of mandamus, the applicant may plead to the return within such time and in like manner as if the return were a statement of defence delivered in an action ; and, subject to these rules, this pleading and aU subsequent proceedings, including pleadings, trial, judgment, and execution, shall proceed and may be had and taken as if in an action. 584 APPENDIX. (D.) — Pleadings in Prohibition. 137. Where pleadings in prohibition are ordered the pleadings and subsequent proceedings, including judgment and assessment of damages, if any, shall be, as nearly as may be, the same as in an ordinary action for damages. Copies of Peoceedings and Service. 138. Copies of all informations, indictments, or presentments, and of all pleadings thereupon, and of mandamus and return and traverse or other pleadings thereupon, and of convictions, orders, and every other proceeding filed in the Crown Office shall, when required, be made at the Crown Office and delivered to the respective parties or other parties requiring the same on payment of the proper charges. 139. Whenever under these rules service of any writ, notice, plead- ing, order, summons, warrant or other document, proceeding, or written communication, is not directed to be personal, service at the last known place of abode, or business, with a clerk, wife, or servant, or upon such other person, or in such other manner as the Court or a judge may direct, shall be deemed to be a sufficient service. Special Cases and Demueeers. 140. Order xxxiv. of the Eules of the Supreme Court, 1883 (special case), shall as far as it is applicable, apply to all civil proceedings on the Crown side. The following rules shall apply to all criminal proceedings on the Crown side : — 141. Demurrers and special cases shall be entered at the Crown Office for hearing at the request of either party, without any order for a concilium, eight clear days before the day on which they are set down for argument, and notice thereof shall be given forth vsdth to the opposite party. 142. Every special case shall be divided into paragraphs, which as nearly as may be shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively. The taxing officer shall not allow the costs of drawing and copying any special case not substantially complying with this rule without the special order of the Court. CROWN OFFICE RULES, 1886. 585 Paper Books. 143. In all cases entered for argiifaent in the Crown Paper, where paper books are required, the party or solicitor entering shall, two days before the day appointed for argument, deliver two paper books of the proceedings for the use of the judges at the Crown Office. 144. Such paper books shall be marked " for the use of the judges in the Queen's Bench Division," and not with the name of any par- ticular judge. 145. Such paper books shall contain, where the party is seeking to quash any order or conviction, together with the copies of the pro- ceedings, a copy of the order nisi to quash. 146. If paper books are not delivered the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default ; and the party making default shall not be heard until he shall have paid for such copies, or deposited at the Crown Office a sufficient sum to pay for the same. In default of both parties the case shall be struck out, unless otherwise ordered. 147. On the argument of any case entered in the Crown Paper, where the Court has granted an order nisi, the counsel for the parties shewing cause shall begin; but on an order nisi to quash an order or conviction, and in every other case the counsel for the appellant or party desirous of displacing' the status quo shall begin. Notice of Teial. 148. Notice of trial shall state the place at which the trial is to be had, and the day on or after which the record is to be tried. 149. If the prosecutor or relator does not, within six weeks after issue joined, or within such extended time as the Court or a judge may allow, give notice of trial, the defendant may give such notice, and when the defendant is bound by recognizance to give notice of trial the prosecutor may, in all cases, give notice by proviso. 150. Ten days' notice of trial shall be given in all cases, unless a longer notice shall be ordered by the Court or a judge, or the party to whom it is given shall consent to take short notice of trial, which shall be understood to mean four days' notice or any longer period. 151. Notice of trial shall be given before entering the record for trial. 152. Notice of trial for London or Middlesex shall not be, or operate as for, any particular sittings, but shall be deeihed to be for the day 586 APPENDIX. stated in the notice, or for any day after the expiration of the notice, on which the record may come on for trial. 153. Notice of trial elsewhere than in London or Middlesex shall he deemed to be for the first day of the then next assizes, at the place for which notice of trial is given. 154. No notice of trial shall be countermanded, and no record with- drawn except by leave of the Court or a judge, which leave may be given subject to such terms as to costs or otherwise as may be just. Continuances. 155. No continuance by way of imparlance, curia advkari vult, vicecomes non misit Ireve, or otherwise, shall be necessary, nor shall any entry thereof be made, upon any record, or roll whatever, or in the pleadings. Enteeing Eecoed foe Teial. 156. If the prosecutor or relator, after having given notice of trial for London or Middlesex, does not enter the record within six days, the party to whom notice may have been given shall be at liberty to enter it with the leave of the Court or a judge. 167. No warrant of nisi p-ius from the Attomey-G-eneral for making up a record shall hereafter be necessary. JUEY. 158. Writs of venire facias, or other writs for the summoning of juries, shall no longer be used, but the jury, whether special or common, shall be taken from the list of persons summoned for the sittings or assizes, and a panel shall be annexed to the record as in civil cases. Either the prosecutor or the defendant may, except in case of felony, obtain a special jury upon giving the like notice as is required in civil cases, and the Court or a iudge may, at the instance of either party, order that a special jury be struck as provided for by " The Juries Act, 1870." And when the jury has been reduced either party may draw up an order at the Crown Office directing the sheriff to summon that particular jury at such time and place as may be required. View. 159. Upon any application for a view there shall be an affidavit stating the place at which the view is to be made, and the distance CROWN OFFICE RULES, 1886. 587 thereof from the office of the under sheriff ; and the sum to be deposited with the under sheriff shall be £10 in case of a common jury, and £16 in case of a special jury, if such distance do not exceed five miles, and £15 in case of a common jury, and £21 in case of a special jury, if it be above five miles. And if such sum shall be more than suffi- cient to pay the expenses of the view, the surplus shall forthwith be returned to the solicitor of the party who obtained the view. If such sum shall not be sufficient to pay such expenses the deficiency shall forthwith be paid by such solicitor to the under sheriff, and the under sheriff shall pay and account for the money so deposited, according to the scale at the end of the Appendix to these Bules. Trial at Bae. 160. A trial at bar shall not be had except by order of the Court. 161. An application for a trial at bar shall be by motion for an order nisi except when made by the Attorney-General on behalf of the Crown, when the order shall be absolute in first instance as of course. 162. On making the order absolute for a trial at bar the Court may impose such terms on the applicant as to payment of costs, or other- wise, as the Court may think fit. 163. The Court may direct the jury to be summoned from the county in which the offence was committed or from any other county not exempt by law, at any time after joinder of issue. The order for the jury shall be lodged with the sheriff of such county in sufficient time for the jury to be summoned six days before the trial. 164. Three copies of the roll upon which the trial is to take place shall be delivered by the applicant for the trial at bar at the Crown Office, for the use of the judges, four days before the day fixed for the trial. 165. A trial at bar maybe continued, de die in diem, or adjourned to a subsequent day at any time, in the discretion of the Court, without any reference to the sittings of the High Court ; and no formal order shall be -drawn up for any such continued sitting or adjournment, nor shall any such order be entered on the roll. New Trial. 166. Applications for a new trial, or to enter judgment non obstante veredicto, or to arrest judgment, where such applications may by law be made, shall be by motion for an order nisi. Such motion shall be 588 APPENDIX, made to a Divisional Court of tbe Queen's Bench Division ; and in cases tried in London or Middlesex within eight days after the trial, or on the first subsequent day on which a Divisional Court shall sit to hear motions on the Crown side, or if the trial has been had at the assizes, within the first seven days after the last day of the sittings on the circuits for England and Wales : the time of the vacations shall not be 1 eckoned in the computation of time for moving. 167. The time in either case may be extended by the Court or a judge. The grounds upon which the order was granted shall be stated in the order. 168. A copy of such order shall be served on the opposite party within four days from the time of the same being granted. 169. On moving for a new trial on indictment, information, or in- quisition, all the defendants, if more than one, who are not either in custody or who are only liable to a fine, must be present in Court, unless the Court shall otherwise order. Judgment by Default. 170. In case no plea, replication, rejoinder, joinder in demurrer, or other pleading (except joinder in error by the prosecutor) shall be entered within the time limited, judgment as for want of such plead- ing may be entered at the opening of the office on the next following morning after the expiration of the time limited, upon filing an affi- davit of service of the order to plead, reply, &c., as the case may be, unless an order of the Court or a judge extending such time shall have been obtained and served, in which case judgment shall not be signed until the day after the expiration of the time granted by such order. Judgment. 171. Upon every trial, whether at the assizes or at the sittings in London or Middlesex, the associate, clerk of assize, or master shall enter in a book to be kept for that purpose, — 1st, the verdict of the jury and all such findings of fact, if any, as the judge may direct to be entered; 2nd, the directions, if any, of the judge as to judg- ment ; 3rd, the certificates, if any, granted by the judge : and the sentence of the judge if then passed. A certificate, signed by the associate, of such verdict, finding, or direction, judgment, or sentence shall be filed at the Crown Office by the associate ; and judgment upon the postea may be entered at the Crown Office at any time after the expiration of the time limited for applying for a new trial, of for CROWN OFFICE RULES, 1886. 589 entering judgment non obstante veredicto, or arresting judgment unless otherwise ordered. 172. Oh all trials for felonies or misdemeanors in the Queen's Bench Division, except upon informations filed by leave of the Court and ex- offieio informations where the Attprney-General shall pray that the judgment may he postponed, judgment may be pronounced during the sittings or assizes at which the trial has taken place by the judge before whom the verdict has been taken, as well upon the defendant who shall have suffered judgment by default or confession as upon those who shall have been tried and convicted, and whether such persons be present or not in court. 173. The judge before whom the trial shall be had may either issue an immediate order or warrant for committing the defen- dant in execution, or respite the execution of the judgment on such terms, as he shall think fit, and for such time as may be neces- sary, for the purpose of enabling the defendant to move for a new trial, or in arrest of judgment ; and, if imprisonment be part of the sentence, may order the period of imprisonment to commence on the day on which the party shall be actually taken to and confined in prison. 174. If a defendant be convicted and not sentenced at the trial, and is not under recognizance or under sufficient recognizance to appear to receive the sentence of the Court, or if it be made to appear on affidavit or otherwise that he is likely to abscond, a judge's warrant may be obtained at any time after verdict and before final judgment, and either from the judge at the trial or from a judge at chambers, to hold him to bail, or to require him to give such further bail as the judge in bis discretion may think fit, upon a certificate, if he be not under recognizance, of the conviction to be obtained from the clerk of assize or associate, and a certificate of his not being under recognizance from the Crown Office ; or if he be under recognizance, upon a certificate of conviction and an affidavit of facts shewing the necessity of further bail. 175. The postea may be obtained by the party in whose favour the verdict was found from the associate, clerk of assize, or master on the day after the last day on which a motion may be made for a new trial, or in arrest of judgment, or for judgment non obstante veredicto, unless there be an order nisi granted ; and, if an order nisi has been granted, at any time after such order nisi shall have been discharged ; and shall be produced at the Crown Office, where the judgment will be entered in a book and signed on the record, according to the verdict, by the Queen's coroner and attorney or the master of the Crown Office. 176. If judgment on the postea is for the Crown or the pro- 590 APPENDIX. secTitor, and the defendant is not under recognizance to appear to receive sentence, he may he served -with a four days' notice to appear on a certain day to receive the sentence of the Court ; or the prosecutor may issue a writ of capais ad satisfacienchm, to take the defendant, to remain in custody without hail or mainprize until he satisfies the judgment or obtains his discharge upon writ of error. 177. If the defendant he not in custody and be under recog- nizance to appear to receive sentence, the defendant and his bail may be served with a four days' notice that, on a day named therein, the Court will be moved for judgment. Such service need not be personal. 178. The postea, or if interlocutory judgment be upon confession, default, or retraxit, the entry roll, shall be in Court on moving for final judgment ; and if the defendant does not answer on being called three times the prosecutor, on an affidavit of service of notice, may move under Eule 126 to estreat the recognizance ; and upon the estreat of the recognizance a judge may grant a bench warrant for the appre- hension of the defendant ; or the prosecutor may issue a capias and proceed to outlawry. 179. The Court on giving final judgment or the Court of Appeal on affirmance may, if they shall so think fit, on the application of the defendant then present, respite the execution of the judgment for such time as may be necessary for the defendant to obtain the Attorney-General's fiat for a writ of error, or consent for an appeal to the House of Lords upon the defendant entering into a recognizance with two sufficient sureties, upon such terms as the Court may order, to render himself into custody or to prosecute his writ of error or appeal with effect ; and may order the period of imprisonment, if that be part of the sentence, to commence on the day on which the party shall be actually taken to and confined in prison. 180. When any defendant shall, after verdict, be brought up for sentence on any indictment or information, after the notes of the trial shall have been read, the affidavits produced on the part of the defen- dant, if any, shall be read, and then any affidavits produced on the part of the prosecution ; after which the counsel for the defendant shall be heard, and lastly, the counsel for the prosecution. 181. When any defendant shall be brought up for sentence after judgment, by default, confession, or retraxit, the prosecutor's affidavits shall be first read, then the defendant's affidavits; after which the counsel for the prosecution shall be heard, and lastly the counsel for the defendant. 182. If no affidavits are produced the counsel for the defendant shall be first heard and then the counsel for the prosecutor. CROWN OFFICE RULES, 1886. 591 Eerok. 183. Error upoii a judgment shall lie to the Queen's Bench Division. 184. No writ of error shall lie without the fiat of the Attorney- General haviag been first ohtained. 185. The writ of error upon judgment given in inferior courts, with the return thereto, shall be filed at the Crown Office. 186. Eule 179 shall apply to all judgments upon writs of error. 187. The plaintiff in error shall assign errors in person or by his solicitor, and, if in person and in custody, shall be brought up into court for that purpose upon a writ of habeas corpus. 188. If the plaintiff in error assigns errors by his solicitor or in person and is not in custody, he may do so by delivering the assign- ment of errors in writing to be filed at the Crown Office. 189. If the plaintiff in error assigns errors in person and is in custody he shall be brought into court, and assign errors, and move that counsel may be assigned to him, and shall then deliver to the officer of the court in writing the assignment of errors to be filed at the Crown Office. 190. Upon delivery of the assignment of errors under the last pre- ceding Rule an order of Court shall be drawn up to commit the plaintiff in error to the Queen's Prison, until the decision of the Court Upon the writ. 191. In misdemeanor the plaintiff in error need not assign errors in person, or have counsel assigned to him or, if in custody, be present at the hearing of the case or when judgment is given, unless the Court shall otherwise order. 192. An order for the Attorney-General or Queen's Coroner and Attornej' to join in error within eight days after service may be drawn up at the Crown Office and be served, with a copy of the assignment of errors, on the prosecutor or his solicitor. 193. If no joinder be filed within eight days, the plaintiff in error being personally present in court, upon a certificate of notice having been given to the Attorney or Solicitor-General, signed by him, or on his behalf, of such intended application, may move the Court for an order nisi for judgment ; and upon an affidavit of service of the order nisi upon the officer of the court from whence error is brought, the Court may examine the record and give judgment of reversal, or such judgment as the Court from which error is brought ought to have done. 194. If no joinder be filed within eight days, and the plaintiff in error be in custody, he maybe brought into court by order if he be in the Queen's Prison, or by habeas corpus if elsewhere, and the plaintitf in error or his counsel may then move, on an affidavit of service of the 592 APPENDIX. order to join in error, and that on search made at the Crown Office that it appears there is no joinder filed, for judgment for the plaintiff in error, and for the prisoner's discharge. 195. Joinder in error shall he filed at the Crown Office hy the prosecutor, and a copy served on the plaintiff in error or his solicitor. 196. At any time after filing of the joinder in error the case may he put into the Crown paper for argument, upon the application of either party. 197. Two paper books for the use of the judges shall he deliTored by the plaintiff in error at the Crown Office two days before the day appointed for hearing. 198. On judgment being given, an order, either for remanding the prisoners to undergo the remainder of their sentence, or for their discharge, shall be drawn up and lodged with the gaoler by the pro- secutor. 199. Where a writ of error has been brought by the defendant and not by the Attorney-General, the defendant on the indictment on obtaining his writ of error, or consent for an appeal to the House of Lords shall have the execution of the judgment stayed, and receive back the amount of any fine levied upon him upon the judgment, and further if in custody shall be entitled to be discharged from imprisonment on entering into a recognizance with two sufficient sureties to prosecute the writ of error in the Form No. 127 before a judge of the High Court, or justice of the peace of the county, borough, or place where the defendant may be in custody. The bail to be justified in the usual manner, on twenty- four hours' notice to the prosecutor, or on such other notice as the judge, or justice of the peace, may order. Provided that in the case of any defendant under legal disability, it shall be sufficient if two persons to be appointed to be approved of by such judge or justice shall become bound by such recognizance on behalf of such defendant. 200. Every such recognizance shall be filed at the Crown Office, and the Queen's Coroner and Attorney, or the Master of the Crown Office, shall make out and deliver a certificate sealed with the seal of the office that such recognizance is duly filed of record, which certificate shall be a sufficient warrant to the gaoler having the custody of the plaintiff in error, to discharge him out of custody, and for the repayment of any fine which may have Vieeu imposed by the Court by the person having in his possession the whole or any part of the fine levied in execution of such judgment. Provided that no person who shall have received any such money and have paid it over to any other person according to the course of the Exchequer CROWN OFFICE RULES, 1886. 593 sliall be liable to repay to the defendant any part of the money so paid over. 201. If the plaintiff in error shall make default in prosecuting the ■writ of error with effect or in any other way break the conditions of his recognizance, the Court may estreat the recognj.zance in a sum- mary way without issuing a writ of scire facias, and order the writ of error to be quashed without any argument thereon ; and in every such case the plaintiff in error shall forthwith be liable to execution upon the judgment. 202. Whenever any writ of error shall be brought for the re- versal of any judgment in misdemeanor and error shall be assigned thereon, no judgment of reversal shall be entered either for want of a joinder, or otherwise, without the Order of the Court in which such writ of error shall be pending, pronounced in open court, and upon a certificate, signed by or on behalf of the Attorney or Solicitor-General, that notice has been given to one of them of such intended application ; and if there be no joinder in error such Court may proceed to examine the record in error, and give such judgment theveon as the Court from which error is brought ought to have done, although no joinder in error may have been filed. 203. Whenever the judgment against a plaintiff in error shall have been for the payment of a fine, and imprisonment until such fine be paid, either with or without imprisonment for a certain time, and the plaintiff in error shall have paid the fine, or the same or any part thereof shall have been levied and shall have been received back under the provisions of Eules 199 and 200, and the judgment upon writ of error brought shall be affirmed, the plaintiff in error shall not be entitled, by reason of such payment as aforesaid, to be discharged from imprisonment, notwithstanding the expiration of any certain time of imprisonment for which the original judgment shall have been given until the fine shall be again paid. 204. When a recognizance on bail in error shall have been estreated, or judgment been affirmed, or writ of error been quashed, on an affidavit or a certificate of the proper officer of the Court to any such effect, and that default has been made for the space of four days in rendering the plaintiff in error to prison, a Judge at Chambers may issue his warrant to cause the defendant to be apprehended and imprisoned pursuant to and in execution of the judgment, on an ex parte application by the prosecutor. 205. Whenever a plaintiff in error shall be committed by the Court in execution of the judgment given against such plaintiff in error, and whenever a plaintiff in error shall, by virtue of any warrant oi in other manner, be rendered to prison in execution of such judgment, 2 G 594 APPENDIX. the imprisonment (if imprisonment shall not have commenced under such execution) shall be reckoned to hegin from the day when such plaintiff in error shall he in actual custody in the prison in which he may have been adjudged to be imprisoned under such judgment ; and if the plaintiff in error shall have been discharged from imprisonment on giving bail in error, as is in these rules before mentioned, such plaintiff in error shall be imprisoned for such further period in the same prison as with the time during which such plaintiff in error may already have been imprisoned under such execution shall be equal to the period for which he was adjudged to be imprisoned as aforesaid. 206. Whenever default shall have been made in rendering a plaintiff in error to prison in execution of a judgment for misdemeanor, and a warrant shall have been issued against such plaintiff in error to enforce such render to prison, according to the provisions of these rules, such plaintiff in error shall be liable to pay the costs and charges of such render ; and if the prosecutor shall, before the expiration of the plaintiff in error's imprisonment, have caused the amount of such costs and charges to be ascertained by one of the masters of the Crown OfBce, and shall have left with the said plaintiff in error, and with the keeper of the prison or his deputy, a certificate under the hand of such master, of the amount of such costs so ascertained, then the said plaintiff in error shall not be discharged out of custody until such costs and charges shall have been paid, or until an order for such discharge has been made by a Court exercising bankruptcy jurisdiction. Error upon Judgments in the Queen's Bench DmsiON. 207. Every writ of error from a judgment of the Queen's Bench Division of the High Court, shall be made returnable before the Court of Appeal, and served by delivery at the Crown Office. 208. Upon delivery of the writ of error the prosecutor shall enter the proceedings up to judgment on the roll, and carry it into the Crown Office ; and if the prosecutor does not, within a reasonable time, cany in the roll, the plaintiff in error may obtain a judge's order upon a summons to compel him to do so. 209. When the roll has been carried in, the plaintiff in error, on application to the Queen's Coroner and Attorney or the Master of the Crown Office, may obtain a memorandum or certificate of the allowance of the writ of error, for service upon the defendant in error or his solicitor. 210. The plaintiff in error, within twenty days after the allowance of the writ of error, shall make a transcript of the record on parch- ment, and lodge it at the Crown Office ; and if the record be not tran- CROWN OFFICE RULES, 1886. 595 scribed within such time, the defendant in error may move the Court of Appeal for leave to sign judgment of non prosequitur at the Crown Office. 211. When the transcript has been lodged it shall be annexed to the writ of error, and (on a return made and signed by the Lord Chief Justice of England) delivered into the Court of Appeal by the proper officer at the Crown Office. 212. The plaintiff in error shall, within eight days after delivery of the record into the Court of Appeal, assign errors thereon. 213. Upon filing of the joiader in error the case shall be put into the list of appeals for argument, upon application of either party. 214. The rules as to assigning errors and subsequent proceedings up to judgment in the Queen's Bench Division shall apply to the Court of Appeal. 215. Upon the judgment of the Court of Appeal being pronounced in favour of the plaintiff in error, the Court may either pronounce the proper judgment and order his discharge if in custody or remit the record to the Queen's Bench Division, to be dealt with according to law. Appeals. 216. Order lviii. of the Eules of the Supreme Court, 1883 (Appeals), shall apply to all civil proceedings on the Crown side, including Mandamus, Prohibition, and Quo Warranto. Execution. 217. Order xlii. of the Eules of the Supreme Court, 1883 (Execu- tion), shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following Kules shall apply to all criminal proceedings on the Crown side : — 218. A judgment or order requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal. 219. No writ of execution shall be issued without the party issuing it or his solicitor filing a praecipe for that purpose. The praecipe shall contain the title of the proceeding and the date of the judgment or order on which it is founded, the names of the parties against whom the execution is to be issued, and shall be signed by or on behalf of the solicitor of the party issuing it, or by the party issuing if he do so in person. 2 Q 2 596 APPENDIX. 220. Every writ of execution shall he endorsed with the name and place of abode, or office of business, of the solicitor actually suing out the same ; and when the solicitor actually suing out the writ shall sue out the same as agent for another solicitor, the name and place of abode of such other solicitor shall be endorsed upon the writ; and in case no solicitor shall be employed to issue the writ, then it shall be endorsed with a memorandum expressing that the same has been sued out by the party in person, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such residence, if any such there be. 221. Every writ of execution shall be made returnable immediately after the execution thereof. 222. In every case of execution the party entitled to execution may levy the poundage, fees, and expenses of execution over and above the sum recovered. 223. Every writ of execution for the recovery of money shall be endorsed with a direction, to the sheriff or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered, with interest at the rate of £4 per cent, per annum from the time when the judgment was entered up or from the date of the order. 224. Every person to whom any sum of money or any costs shall be payable under a judgment shall, immediately after the time when the judgment was duly entered, be entitled to sue out one or more writ or writs of fieri facias, or one or more writs of elegit to enforce payment thereof. 225. Every order of the Court or a judge in any cause or matter may be enforced in the same manner as a judgment to that effect. 226. A writ of execution, if unexecuted, shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided ; but such writ may, at any time before its expiration, by leave of the Court or a judge, be renewed by the party issuing it, for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked with a seal of the Court bearing the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his solicitor, and bearing the like seal of the Court ; and a writ of execution so renewed shall have effect and be entitled to priority according to the time of the original delivery thereof. 227. The production of a writ of execution or the notice renewing the same, purporting to be marked with such seal as in the last pre- ceding rule mentioned, shewing the same to have been renewed, shall be sufficient evidence of its having been so renewed. CROWN OFFICE RULES, 1886. 597 228. Writs oi fieri facias and of elegit shall have the same force and effect as the like -writs have heretofore had, except that a writ of elegit shall no longer extend to the goods of the debtor, and shall be executed in the same manner in which the like writs have heretofore been executed. Weits. 229. All writs on the Crown side shall be issued at the Crown OfldLce Department of the Central Office.- 230. Every writ shall be prepared by the solicitor or party suing out the same, and shall be written or printed on parchment. Every writ shall, before being sealed, be endorsed with the name and address of such solicitor or party ; and, if sued out by the solicitor as agent, with the name and address of the principal solicitor also. With the exception of writs of suhposna ad testifieandum, all writs issued at the Crown Office shaU be entered in a book to be there kept for the purpose. 231. Every writ, except as hereinafter by these rules provided, shall bear date on the day on which the same shall be issued, and shall be tested at the Eoyal Courts of Justice, London, in the name of the Lord Chief Justice of England. 232. Every writ, unless by these rules otherwise provided, issued by the Queen's Bench Division, when returnable in Court, shall be made returnable forthwith in such Division ; and such of the aforesaid writs as may be made returnable at chambers, shall be made return- able forthwith before a judge at chambers, unless otherwise ordered ; provided that every vrrit of habeas corpus ad subjiciendum shall be made returnable immediately. 233. Every order to return a writ shall require such return to be made within four days next after service of such order, if served in London or Middlesex, and within eight days in all other cases. Every writ returnable in Court shall, together with the return thereto, be filed in the Crown Office, and every writ returnable before a judge shall after the decision of the judge thereon, be so filed, with the return and any order made thereon, or a copy of such order ; provided that any writ of certiorari to remove inquisitions and depositions taken before a justice of the peace, or a coroner, upon the commitment of any person charged with any offence, shall, as soon as the Court or a judge shall have exercised their or his discretion thereon, be trans- mitted to the clerk of assize or clerk of the peace, or other officer (as the case may be) of the county, borough, or place from which they have been received. 234. Every writ to compel an appearance shall require the appear- 598 APPENDIX. ance to be entered in the Crown Office on a day certain ; and in case no appearance shall he entered at the end of four days, exclusive of the return day thereof, further process may issue to compel an appear- ance, which further process shall be tested on the return day of the previous process ; and every writ of capias ad satisfaciendum shall have eight days at least between such teste and return. Habeas Coepus. A. — Ad gubjiciendwm. 235. Aja application for a writ of habeas corpus ad sulgiciendum may be made to the Court or- a judge. 236. If made to the Court the application shall be by motion for an order, which, if the Court so direct, may be made absolute ex parte, for the writ to issue in the first instance ; or if the Court so direct they may grant an order nisi. 237. If made to a judge he may order the writ to issue ex parte in the first instance or may direct a summons for the writ to issue. 238. Provided that no application for a writ of habeas corpus on a warrant of extradition shall be made to a judge at chambers, during the sittings. 239. The writ of habeas corpus shall be served personally, if possible, upon the party to whom it is directed ; or if not possible, or if the writ be directed to a gaoler or other public official, by leaving it with a servant or agent of the person confining or restraining, at the place where the prisoner is confined or restrained, and if the writ be directed to more than one person, the original delivered to or left with such principal person, and copies served or left on each of the other persons in the same manner as the writ. 240. If a writ of habeas corpus be disobeyed by the person to whom it is directed, application may be made to the Court, on an affidavit of service and disobedience, for an attachment for contempt. In vacation an application may be made to a judge in chambers, for a warrant for the apprehension of the person in contempt to be brought before him, or some other judge, to be bound over to appear in court at the next ensuing sittings, to answer lor his contempt, or to be committed to the Queen's prison for want of bail. 241. The return to the writ of habeas corpus shall contain a copy of all the causes of the prisoner's detainer endorsed on the writ, or on a separate schedule annexed to it. 242. The return may be amended or another substituted for it by leave of the Court or a judge. 243. When a return to the writ of habeas corpus is made, the return CEOWN OFFICE EULBS, 1886. 599 shall first be read, and motion then made for discharging or remand- ing the prisoner, or amending or quashing the return. 244. On the argument of an order nisi for a writ of habeas corpus the Court may in its discretion direct an order to be drawn up for the prisoner's discharge, instead of waiting for the return of the writ, which order shall be a sufficient warrant to any gaoler or constable or other person for his discharge. 245. Upon the argument before the Court, on the return of a writ of habeas corpus, the party in whose favour judgment is given shall forthwith draw up an order in accordance with the decision of the Court at the Crown Office ; and the writ, and return, and affidavits, shall be filed there. When the order has been made by a judge at chambers, the writ, and return, with the affidavits and a copy of the judge's order, shall be forthwith transmitted to the Crown Office to be filed. B. — Other writs of Habeas Corpus. 246. Applications for writs of habeas corpus ad testificandum, ad respon- dendum, or ad deliberandum and recipias, must be made on affidavit to a judge at chambers. 247. An application to bring up a prisoner to give evidence on any cause or matter civil or criminal before any court, justice, or other judicature, may be made to a judge, on affidavit for an order. 248. An application for habeas corpus ad deliberandum and recipias shall be for two writs, the writ ad deliberandum to the gaoler to deliver the prisoner, and the writ recipias to the other gaoler to receive him. 249. When a prisoner is brought up by habeas corpus the counsel for the prisoner shall be first heard, and then the counsel for the Crown, and then one counsel for the prisoner in reply. Motions. 250. Order m. of the Eules of the Supreme Court, 1883 (Motions), shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following rules shall apply to all proceedings on the Crown side. 251. Unless the Court or a judge give special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing it. 252. The following orders of course may be drawn up at the Crown Office without any motion for the same : — (a.) To appear, plead, and try (pursuant to recognizance), (6.) To plead (except pleading double or several matters). 600 APPENDIX. (c.) To demtir, join in demurrer, plead any sulosequent plea. (d.) To assign error. (e.) To joia in error. (/.) To bring in body of prisoner under commitment from Queen's Bencb Division, where a writ of habeas corpus is not necessary. (g-.) For habeas corpus in cases where process has issued from the Queen's Bench Division ; or where upon writ of error the attendance of the party is necessarily required in court, or chambers, or at the Crown Office by the Court itself. (A.) To a sheriff on a return of cepi corpus to bring in a prisoner within the proper time. (i.) To return writs. (y.) To tax costs. (i.) To return re-stated cases. (Z.) To supersede attachment, or other process for compe lling appear- ance where appearance has been entered. (to.) For certiorari by consent for orders of sessions where a case hag been stated, on such consent being signed by the solicitor or agent for the opposite party. (m.) For an order nisi to quash orders or convictions removed by certiorari. (o.) To make submission to reference an order of Court. (^.) To make any other proceeding when necessary an order of Court. (g.) For a view. (r.) To summon a special jury. («.) To summon a jury on trial at bar. 253. All other orders shall, during the sittings, be made by the Court on motion supported by affidavit; but no affidavit shall be necessary for an order demandable as of right by the Crown, or where it is not necessary to state matters of fact. 254. Except as may be otherwise provided by these rules, all applications on the Crown side shall be made by way of motion to a Divisional Court for an order nisi. 255. The following applications shall be made upon two clear days' notice of motion, and be brought on as if they were ex parte motions and not put into the Crown paper. (a.) For time, enlargement, stay, or security. (6.) To strike a case out of the Crown paper. (c.) To file a-special case by leave of the Court. (dJ) To accelerate a case in the Crown paper on the ground of urgency. (e.) To substitute a new relator on an information quo warranto for the original relator. CROWN OFFICE RULES, 1886. 601 (/.) For costs to a defendant in criminal information to the amount of the recognizance. 256. When any motion is made under Eule 255 and founded on evidence by affidavit, a copy of such affidavit intended to be used shall be served with the notice of motion. 257. All cases of conviction and of orders, removed into court from any inferior jurisdiction, shall be entered for argument upon an order to shew cause why the conviction or order should not be quashed. 258. No order on the Crown side, except orders of course, shall be drawn up without the leave or order of the Court or a judge, or of the Queen's Coroner and Attorney, or the Master of the Crown Office. 259. If on the hearing of a motion or other application the Court or a judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court or judge may think fit to impose. 260. The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or judge shall think fit. Attachment foe Contempt. 261. An application for an attachment for contempt shall be by motion for an order nid. The service of an order nisi for an attach- ment shall be personal. 262. Every writ of attachment for contempt shall be made return- able in the Queen's Bench Division on a day certain during the sittings. In case of a return of non est inventus thereon one or more writs may issue tested on the return day of the previous writ. 263. If the sheriff returns cepi corpus, on application at the Crown Office, an order shall be drawn up for a writ of habeas corpus to issue to bring in the body of the defendant. 264. When the defendant is brought before the Court on the attach- ment, a motion may be made by the prosecutor, or if he does not make it, by the defendant, that he may be sworn to answer such questions or interrogatories as may be put to him by the prosecutor, and must give such bail to answer them before the Queen's Coroner and Attorney, or the Master of the Crown Office, as the Court may think fit, and for the master to proceed to examine the matter and report to the Court thereon. 265. In default of bail the defendant shall be committed to the 602 APPENDIX. Queen's Prison ; but if at any time after he be prepared to give it, he may he brought before the Court or a judge on an order on the person in whose custody he is, which order shall be drawn up on application at the Crown Office for that purpose. 266. On the defendant being sworn an order may be drawn up at the Crown Office, and served on the prosecutor to file interrogatories within four days after the service thereof. If no interrogatories are filed at the end of the fourth day, on obtaining a certificate from the Queen's Coroner and Attorney, or Master of the Crown Office to that effect, the defendant shalj be discharged out of custody by an order of the Court or a judge. 267. The answers to the interrogatories shall be signed by the defendant and also acknowledged by him before any Commissioner to administer oaths in the Supreme Court of Judicature. 268. On an intimation to one of the parties that the master is pre- pared with his report, a motion may be made on a four days' notice to be served on the other party, that the master on a day certaia do make his report to the Court. 269. The defendant shall be present in court on the master's report being made. If he be in the Queen's Prison under process from the High Court, an order may be drawn up on application at the Crown Office for the Governor of the Queen's Prison to bring him iuto court ; but if he be in custody in any other prison, or under pro- cess from any other court, the order shall be for a writ of haheag corpas, which order may be drawn up in like manner and such writ issued thereon. 270. If the defendant be out on bail, the prosecutor shaU, if pos- sible, give notice to the defendant and his bail that the defendant is required personally to attend the court on the report, and that if he does not so attend the Court will be moved to estreat the recog- nizance. 271. If the defendant be reported in contempt, the Court after hearing the parties on the report may either pronounce sentence at once or commit him to the Queen's Prison until some future day for that purpose, when an order shall be drawn up at the Crown Office directing the Governor of the Queen's Prison to bring the defendant into court. 272. On proceeding to sentence, affidavits in mitigation or aggra- vation may be read, and the defendant or his counsel heard, and the prosecutor's counsel be heard in reply. 273. If the defendant be sentenced to imprisonment, the order for sentence shall be lodged with the gaoler of the prison to which he is committed. 274. If the defendant is reported not to be in contempt, the Court CEOWN OFFICE EULES, 1886. 603 may order him and his recognizances to be discharged, and with costs if the Court shall be of opinion that the prosecutor's complaint was groundless, and the attachment vexatious, 275. All interrogatories in writing on attachments shall be signed by counsel. 276. It shall be lawful for the Queen's Coroner and Attorney or the Master of the Crown Office to disallow any question or interrogatory that he considers irrelevant or otherwise improper. Time. 293. Order lxiv. of the Eules of the Supreme Court, 1883 (Time), shall, as far as it is applicable, apply to all civU proceedings on the Crown side. The following Eules shall apply to all criminal proceedings on the Crown side : — 294. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or the practice of the Court, the same shall be reckoned exclusively of the first day . and inclusively of the last day. 295. Where any limited time less than six days from and after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time. 296. Where the time for doing any act or taking any proceeding expires on a Sunday or other days on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, as far as regards the time of doing or taking the same, be held to be duly done or taken, if done or taken, on the day on which the office shall next be opened. 297. A Court or a judge shall have power to enlarge or abridge the time appointed by these Eules, or fixed by any order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require ; and any such enlargement may be ordered at the discretion of the Court or a judge, although the application for the same is not made until after the expiration of the time appointed or allowed. 298. In all causes in which there have been no proceedings for one year from the last proceeding had, the party, whether prosecutor or defendant, who desires to proceed, shall give a calendar month's notice to the other party of his intention to proceed. A summons of a judge, on which no order has been made, shall not be deemed a proceeding within this Eule. Notice of trial, though afterwards countermanded, shall be deemed a proceeding within it. 604 APPENDIX. Amendment. 299. Order xxviu. of the Eules of the Supreme Court, 1883 (Amendment), shall, as far as is applicable, apply to all civil pro- ceedings on the Crown side. Costs. 300. Order lxv. of the Eules of the Supreme Court, 1883 (Costs), shall, as far as it is applicable, apply to all civil proceedings on the Crown side. 301. Order lxv. of the Eules of the Supreme Court, 1883 (Costs), special and general regulations, Eule 27, shall, as far as it is applicable^ apply to all criminal proceedings on the Crown side. Notices. 302. Order lxvi. of the Eules of the Supreme Court, 1883 (Notices), shall, as far as it is appKcable, apply to all civil proceedings on the Crown side. Non-Compliance. 303. Order lxx. of the Eules of the Supreme Court, 1883 (Effect of non-compliance), shall, as far as it is applicable, apply to all proceed- ings on the Crown side, civU. or criminal. Applications at Chambebs. 304. In every proceeding, civil or criminal, on the Crown side at chambers, the summons shall be issued from, and the order drawn up at, the Crown Office. 305. No summons to shew cause before a judge at chambers shall be issued in the following matters without the leave of a judge upon an ex parte application : — (o.) For a writ of mandamus. (6.) For a writ of certiorari, (c.) For a writ of habeas corpus. (d.) For a writ of prohibition, (e.) For bail in felony. CEOWN OFFICE RULES, 1886. 605 Intekpeetation Clause. 306. In these Eules, unless repugnant to the context, the singular number shall include the plural, and the plural number shall include the singular. " Crown side " means the Crown side of the Queen s Bench Division. " Judge at chambers " shall include a judge at chambers in London and elsewhere. " Judgment " shall include order and conYiction. Eepeal. 307. Order Liii., Part II., of the Eules of the Supreme Court, 1888 (Prerogative Mandamus), is hereby repealed. FOEMS. 308. The forms in the Appendix when applicable, and where not applicable forms of the like character as near as may be, shall be used in all proceedings on the Crown side. '(Signed) Halsbuet, C. COLEEIDGE, C.J. ESHEE, M.E. Jahes Haknen, Prest., P.D.A. Nathl. Lendley, L.J. Edw. Fet, L.J. C. E. Pollock, B. H. Manisty, J. December 18, 1885. 606 APPENDIX. COSTS. Preparation of special documents. Copy of docu- ment for use. Instructions to sue or defend. Affidavits. Attendances to settle affidavits. Services. Perusals. Separate answers or proceedings by the same solicitor. Ordee LXV., R. 7. Special Allowances and General Provisions (made, so far as applicable, to apply to all Proceedings Givil and Criminal on the Grovm side by a 0. BB. 300, aoi). 1. As to writs of STimmons reqiiiring special indorsement, original special cases, pleadings and affidavits in answer to interrogatories, and other special affidavits, when the higher scale is applicahle, the taxing officer may, in lien of the allowances for instructions and preparing or drawing, make such allowance for work, labonr, and expenses in or ahout the preparation of such documents as in his discretion he may think proper. 2. As to drawing any pleading or other document, the fees allowed shall include any copy made for the use of the solicitor, agent, or client, or for counsel to settle. 3. As to instructions to sue or defend, or the preparation of briefs, if the taxing officer shall consider the fee in either scale inadequate, he may make such further allowance as he shall in his discretion consider reasonable. 4. As to affidavits, when there are several deponents to be sworn, or it is necessary for the purpose of an affidavit being sworn to go to a distance, or to employ an agent, such reasonable allowance may be made as the taxing officer in his discretion may think fit. 5. The allowances for instructions and drawing an affidavit in answer to interrogatories and other special affidavits, and attending the deponent to be sworn, include all attendances on the deponent to settle and read over. 6. As to delivery of pleadings, services, and notices, the fees are not to be allowed when the same solicitor is for both parties, unless it be necessary for the purpose of making an affidavit of service. 7. As to perusals the fees are not to apply where the same solicitor is for both parties. 8. Where the same solicitor is employed for two or more defendants, and separate pleadings are delivered or other proceedings had by or for- two or more such defendants separately, the taxing officer shall consider in the taxation of such solicitor's biU of costs, either between party and party or between solicitor and client, whether such separate COSTS. 607 pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, the same shall be disallowed. 9. As to evidence, such just and reasonable charges and expenses as Evidence. appear to have been properly incurred in procuring eAridence, and the attendance of witnesses, are to be allowed. [See Machley v. Chillingworth, L. E. 2 C. P. D. 273 ; Turnbull v. Janson, L. E. 3 0. P. D. 264.J 10. As to agency correspondence, in country agency causes and Agency cor- matters, if it be shewn to the satisfaction of the taxing officer that '"'^P'"' '''^'^*- such correspondence has been special and extensive, he is to be at liberty to make such special allowance in respect thereof as in his discretion he may think proper. [11 refers to Chancery proceedings.] 12. As to attendances at the Judges' Chambers, where, from the Attendances length of the attendance, or from the difficulty of the case, the judge ^* J'^'Jg^s' or master shall think the highest of the fees an insufficient remunera- tion for the services performed, or where the preparation of the case or matter to lay it before the judge or master in chambers, or on a summons, shall have required skill and labour for which no fee has been allowed, the judge or master may allow such fee in lieu of the fee of 11. Is. above provided, not exceeding 21. 2s., or where the higher scale is applicable 31. 8s., or in proceedings to wind up a company 61. 5s., as in his discretion he may think fit ; and where the prepara- tion of the case or matter to lay it before a judge at chambers on a summons shall have reqiiired and received from the solicitor such extraordinary skill and labour as materially to conduce to the satis- factory and speedy disposal of the business, and therefore shall appear to the judge to deserve higher remuneration than the ordinary fees, the judge may allow to the solicitor, by a memorandum in writing expressly made for that purpose and signed by the judge, specifying distinctly the grounds of such allowance, such fee, not exceeding 10 guineas, as in his discretion he may think fit, instead of the above fees of 21. 2s., HI. 3s., and 51. 6s. 13. As to attendances at the Judges' Chambers, where by reason of Abortive the non-attendance of any party (unless it be considered expedient to ^.ttendance at proceed ex parte, or where by reason of the neglect of any party in not being prepared with any proper evidence, account, or other pro- ceeding), the attendance is adjourned without any useful progress being made, the judge may order such an amount of costs (if any) as he shall think reasonable to be paid to the party attending by the party so absent or neglectful, or by his solicitor personally ; and the party so absent or neglectful is not to be allowed any fee as against aiiy other party, or any estate or fund in which any other party is interested. 608 APPENDIX. Length of a folio. Consnlting counsel. Attendance of connsel at chambers. Inspection of docmnents. Copies of documents in possession of another party Disallowance of costs of nnnecessary proceeding. 14. A folio is to comprise seventy-two words, every figure comprised in a column or authorized to be nsed being connted as one word. 15. Snch costs of procuring the advice of counsel on the pleadings, evidence, and proceedings in any cause or matter as the taxing officer shall in his discretion think just and reasonable, and of procuring counsel to settle such pleadings and special affidavits as the taxing officer shall in his discretion think proper to be settled by counsel, are to be allowed ; but as to affidavits a separate fee is not to be allowed for each affidavit, but one fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time. 16. As to counsel attending at Judges' Chambers, no costs thereof shall in any case be allowed, unless the judge certifies it to be a proper case for counsel to attend. 17. As to inspection of documents under Order xxxi., rule 14, no allowance is to be made for any notice or inspection, unless it is shewn to the satisfaction of the taxing officer that there were good and sufficient reasons for giving such notice and making such inspection. 18. As to taking copies of documents in possession of another party, or extracts therefrom, under Eules of Court or any special order, the party entitled to take the copy or extract is to pay the solicitor of the party producing the document for such copy or extract as he may, by writing, require, at the rate of fourpence per folio ; and if the solicitor of the party producing the document refuses or neglects to supply the same, the solicitor requiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitied to any fee in respect thereof. [19 relates to Chancery Divigion.^ 20. The Court or judge may, at the hearing of any cause or matter, or upon any application or procedure in any cause or matter in court or at chambers, and whether the same is objected to or not, direct the costs of any pleading, affidavit, evidence, notice to produce, admit or cross examine witnesses, account, statement, procuring discovery by interrogatories or order, applications for time, bills of costs, service of notice of motion or summons, or other proceedings, or any part thereof, which is improper, vexatious, unnecessary, or contains vexa- tious or unnecessary matter, or is of unnecessary length, or caused by misconduct or negligence, to be disallowed, or may direct the taxing officer to look into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, vexa- tious, or to contain unnecessary matter, or to be of unnecessary length; and in such case the party whose costs are so disallowed shaU pay the costs occasioned to the other parties by such unnecessary proceeding, matter or length, or caused by misconduct or negligence ; and in snch case the party whose costs are so disallowed shall pay the costs COSTS. 609 occasioned thereby to the other parties : and in any case where such question shall not have been raised before and dealt with by the Court or judge, it shall be the duty of the taxing ofiScer to look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so ; and in the Queen's Bench Division the Master shall make such order as may be required to effect the object of this regulation. 21. In any case in which, under the last preceding regulation, or Set-off of any other rule of Court, or by the order or direction of a Court or ™***" judge, or otherwise, a party entitled to teceive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-off, or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay ; or such officer may allow or certify the costs to be paid, and direct payment thereof, and the same may be recovered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered. [22 relates to Chancery Dividon,.'] 23. Where any party appears upon any application or proceeding in Unnecessary court or at chambers, in which he is not interested, or upon which, at^^^^mbers according to the practice of the Court, he ought not to attend, he is toot to be allowed any costs of such appearance unless the Court or judge shall expressly direct such costs to be allowed. 24. The costs of applications to extend the time for taking any pro- Costs of ceedings shall be in the discretion of the taxing officer, unless the ext'enTtime*" Court or judge shall have specially directed how the costs are to be paid or borne. The taxing officer shall not allow the costs of more than one extension of time, unless he is satisfied that such extension was necessary, and could not with due diligence have been avoided. The cost of a summons to extend time shall not be allowed in cases to which rule 8 of Order Lxiv. applies, unless the party taking out such summons has previously applied to the opposite party to consent, and he has not given a consent to a sufficient extension of time, or the taxing officer shall consider there was a good reason for not making such application ; and in case the taxing officer shall not allow the costs of such summons and shall consider that the party applying ought tp pay the costs of any other party occasioned thereby, he may direct such payment or deal with such costs in the manner provided by Eegulation 21. 25. The taxing officers of the Supreme Court, or of any division General powers thereof, shall, for the purpose of any proceeding before them, have "^'^^^"^ power and authority to administer oaths, and shall, in relation to the 2 E 610 APPENDIX. Neglect or refusal to bring in costs. Taxations between party and party. Work and labour not specially provided for. Costs occa- sioned by amendments of plaintifTs pleadings. Defendant's costs where plaintiS's amendment disallowed. taxation of costs, perform all sncli duties as have heretofore been, or are hy general orders directed to be performed by any of the masters, taxing masters, registrars, or other officers of any of the courts whose jurisdiction is by the Act transferred to the High Court of Justice or Court of Appeal, and shall, in respect thereof, have such powers and authorities as previous to the commencement of the Act were vested in any of such officers, including examining witnesses, directing pro- duction of books, papers, and documents, making separate certificates or allocaturs, requiring any party to be represented by a separate solicitor, and to direct and adopt aU such other proceedings as could be directed and adopted by any such officer on references for the taxa- tion of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith as may be directed by the Court or a judge. [26 and 27 relate to peculiar cases.^ 28. When any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the same to be taxed, and thereby prejudices any other party, the taxing officer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect. 29. As to costs to be paid or borne by another party, no costs are to be allowed which do not appear to the taxing officer to have been necessary or proper for the attainment of justice or defending the rights of the party, or which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party. 30. As to any work and labour properly performed and not herein provided for, and in respect of which fees have heretofore been allowed, the same or similar fees are to be allowed for such work and labour as have heretofore been allowed. 31. Where the plaintiff is directed to pay to the defendant the costs of the cause, the costs occasioned to a defendant by any amend- ment of the plaintiff's pleadings shaU be deemed to be part of such defendant's costs in the cause (except as to any amendment which shall appear to have been rendered necessary by the default of such defendant); but there shall be deducted from such costs any sum which may have been paid by the plaintiff according to the course of the Court at the time of any amendment. 32. Where upon taxation a plaintiff who has obtained a judgment with costs is not allowed the costs of any amendment of his pleadings on the ground of the same having been unnecessary, the defendant's costs occasioned by such amendment shall be taxed, and the amount COSTS. 611 thereof dedueted from the costs to be paid by the defendant to thd plaintiff. 33. Where an action or petition is dismissed with costs, or a motion Taxation , is refused with costs, or any costs are by any general or special order T "j-^^Lssed directed to be paid, the taxing officer may tax such costs without any with costs. order referring the same for taxation, unless the Court or a judge upon the application of the party alleging himself to be aggrieved prohibits the taxation of such costs. 34. Where it is directed that costs shall be taxed in case the parties Proceedings differ about the same, the party claiming the costs shall bring the bill ^irecterto^e of costs into the office of the proper taxing officer, and give notice taxed in case of his having so done to the other party, and at any time within eight ^^^ '°^ ' "' days after such notice such other party shall have liberty to inspect the same without fee, if he thinks fit. And at or before the expi- ration of the eight days, or such farther time as the taxing officer shall ia his discretion allow, such other party shall either agree to pay the costs or signify his dissent therefrom, and shall thereupon be at liberty to tender a sum of money for the costs ; but where he makes no such tender, or where the party claiming the costs refuses to accept the sum so tendered, the taxing officer shall proceed to tax the costs ; and where the taxed costs shall not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs. 35. Where any costs are by any judgment or order directed to be Total amount taxed and to be paid out of any money or fund in court, the taxing ^h^^e^ costs officer in his certificate of taxation shall state the total amount of to be paid out all such costs as taxed without any direction for that purpose in such "p^"" "^ judgment or order. 36. The allowances in respect of fees to the Conveyancing Counsel Allowances of the Court, and to any accountants, merchants, engineers, actuaries, for scientifo; and other scientific persons to whom any question is referred, shall be regulated by the taxing officers, subject to appeal to the Court or judge, whose decision shall be final. 37. The rules, orders, and practice of any Court whose jurisdiction Application of is transferred to the High Court of Justice or Court of Appeal, relat- ordTrs'^and'^' ing to costs, and the allowance of the fees of solicitors and attorneys, practice, and the taxation of costs, existing prior to the commencement of the principal Act, shall, in so far as they are not inconsistent with the principal Act and these Eules, remain in force and be applicable to costs of the same or analogous proceedings, and to the allowance of the fees of solicitors of the Supreme Court and the taxation of costs in the High Court of Justice and Court of Appeal. 38. As to all fees or allowances which are discretionary, the same Discretion of are, unless otherwise provided, to be allowed at the discretion of the ^^'"^ ° taxing officer, who, in the exercise of such discretion, is to take into 2 K 2 612 APPENDIX. Objection to taxation. Review of taxation by taxing officer. Review of taxation by judge. Evidence tliereon. Retainer. Allowances of counsel's consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the canse or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other circum- stances : and where a party is entitled to sign judgment for his costs, the taxing officer, in taxing the costs, may allow a fixed sum for the costs of the judgment. 39. Any party who may be dissatisfied with the allowance or dis- allowance by the taxing officer, in any bill of costs taxed by him, of the whole or any part of any item or items, may, at any time before the certificate or allocatur is signed, deliver to the other party inter- ested therein, and carry in before the taxing officer, an objection in writing to such allowance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or part thereof, objected to, and may thereupon apply to the taxing officer to review the taxation in respect of the same. 40. Upon such application the taxing officer shall reconsider and review his taxation upon such objections, and he may, if he shall think fit, receive further evidence in respect thereof, and, if so required by either party, he shall state either in his certificate of taxation or allo- catur, or by reference to such objection, the grounds and reasons of h^s decision thereon, and any special &cts or circumstances relating thereto. 41. Any party who may be dissatisfied with the certificate or allo- catur of the taxing officer, as to any item or part of an item which may have been objected to as aforesaid, may, within fourteen days from the date of the certificate or allocatur, or such other time as the Court or judge, or taxing officer, at the time he signs his certificate or aUooatur, apply to a judge at chambers for an order to review the taxation as to the same item or part of an item, and the judge may thereupon make such order as to the judge may seem just ; but the certificate or allocatur of the taxing officer shall be final and conclu- sive as to aU matters which shall not have been objected to in manner aforesaid. [See Sparrow v. Hill (L. E. 7 Q. B. D. 362).] 42. Such application shall be heard and determined by the judge upon the evidence which shall have been brought in before the taxing officer, and no further evidence shall be received upon the hearing thereof, unless the judge shall otherwise direct. [43 refers to District Begistries.] 44. No retaining fee to counsel shall be allowed on taxation between party and party. 45. Fees for conferences are not to be allowed- in any cause or COSTS. 613 matter in addition to the solicitor's and counsel's fees for drawing fees for and settling, or perusing any pleadings, affidavits, deeds, or other settling, &c. proceedings or abstracts of title, or for advising thereon, unless it shall appear to -the taxing officer for some special reason that a con- ference was necessary or proper. 46. In any case in which under Eule 12 of this Order the scale of One counsel costs in county courts is applicable, the costs of briefing more than '° county *^ A i ' cj coQi't cases, one counsel shall not be allowed, unless the taxing officer shall, for special reasons, be of opinion that briefing more than one counsel was proper. 47. Where the costs of retaining two counsel may properly be Allowance of allowed, such allowance may be made although both such counsel c^nsel"*"^ may have been selected from the outer bar. 48. As to refresher fees, when any cause or matter is to be tried Refreshers. or heard upon viva voce evidence in open court, if the trial shall extend over more than one day, and shall occupy either on the first day only, or partly on the first and partly on a subsequent day or days, more than five hours, without being concluded, the taxing officer may allow, for every clear day subsequent to that on which the five hours shall have expired, the following fees : — To the leading counsel . . from 5 to 10 guineas. To the second, if three counsel . „ 3 to 7 „ , To the third, if three counsel, on the second, if only two . . „ 3 to 5 „ The like allowances may be made where the evidence in chief is not taken viva voce, if the trial on hearing shall be substantially prolonged beyond such period of five hours, to be so computed as aforesaid, by the cross-examination of witnesses whose affidavits or depositions have been used. 49. Where a cause or matter shall not be brought on for trial or Premature hearing, the costs of and consequent on the preparation and delivery v^|'f°'^ of briefs shall not be allowed if the taxing officer shall be of opinion that such costs were prematurely incurred. 60. Where a cause or matter which stands for trial is called on to Where cause be tried, but cannot be decided by reason of a want of parties or other ^*'^"°'*^ ""*• defect on part of the plaintiff, and is therefore struck out of the paper, and the same cause is again set down, the defendant shall be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the cause or matter. 51. The following fees are to be allowed to counsel's clerks : — Fees to £j counsel's »• ^- clerks. Upon a fee under 5 guineas .026 5 guineas and under 10 guineas .050 10 guineas and under 20 guineas , 10 614 APPENDIX. £ s. d. 15 1 2 10 5 2 6 5 10 6 2 6 Voucher of counsel's fees necessary. Office copies of affidavits when unnecessary. Office copy of affidavit of discovery unnecessary. Solicitor personally to pay costs of neglect or improper conduct. Suspension of taxation in certain cases. Extension of time for taxation. 20 guineas and tinder 30 guineas . 30 guineas and under 50 guineas . 30 guineas and upwards per cent. On consultations, senior's clerk On consultations, junior's clerk On conferences .... On retainers (where allowed) : — General retainer .... Common retainer 52. No fee to counsel shall be allowed on taxation unless vouched by his signature. 52. In cases in which an original af&davit can be used, and to which Order xrxvin., Eule 15, applies, it shall not be necessary to take an ofSce copy. • 54. It shall not be necessary to take an office copy of an affidavit of discovery of documents, and the copy delivered by the party filing it may be used as against such party. 55. Where, in proceedings before the taxing officer, any party is guilty of neglect or delay, or puts any other party to any unnecessary or imprpper expense relative to such proceedings, the taxing officer may direct such party or his solicitor to pay such costs as he may think proper, or deal with them under Kegulation 21. 56. Where in any cause or matter any bill of costs is directed to be taxed for the purpose of being paid or raised out of any fund or property, the taxing officer may, if he shall consider there is a reason- able ground for so doing, require the solicitor to deliver or send to his clients, or any of them, free of charge, a copy of such bill, or any part thereof, previously to such oEB.cer completing the taxation thereof, accompanied by any statement such officer may direct, and by a letter informing such client that the bill of costs has been referred to the taxing officer, giving his name and address for taxation, and will be proceeded with at the time the officer shall have appointed for this purpose, and such officer may suspend the taxation for such time as he may consider reasonable. 57. The taxing officer shall have power to limit or extend the time for any proceeding before him, and where, by any general order, or any order of the Court or a judge, a time is appointed for any pro- ceeding before or by a taxing officer, unless the Court or judge shall otherwise direct, such officer shall have power from time to time to extend the time appointed upon such terras (if any) as the justice of the case may require, and although the application for the same is not made until after the expiration of the time appointed, it shall not COSTS. 615 be necessary to make a certificate or order for this purpose, unless required for any special purpose. 58. Every bill of costs which shall be left for taxation shall be indorsement endorsed with the name and address of the solicitor by whom it is so "^ '"^' °^ ™'*^" left, and also the name and address of the solicitor, if any, for whom he is agent, including any solicitor who is entitled or intended to par- ticipate in the costs to be so taxed. TABLE OF COUET FEES TO BE TAKEN IN THE CEOWN OFFICE DEPAETMENT. £ s. d. 1 5 5 Writs and Summonses. 1. On sealing a writ of mandamus .... 2. On sealing a writ of subpoena for witnesses, not exceeding three persons ..... 3. On sealing every other writ ..... 4. On sealing or issuing an originating summons, under the Act 6 & 7 Vict. o. 73, for the taxation of a soli- citor's biU. of costs within twelve months after delivery, or delivery of a bill of costs by a solicitor, including the order to be made thereon 5. On sealing any other originating summons 6. On amending the same ...... 7. On sealing or issuing a summons for directions under Order xxx. ....... 8. On sealing or issuing any other summons Appearances and Pleas. 9. On entering an appearance, for each person 10. On entering a plea, for each person .... Copies. 11. On a copy of a written deposition of a witness to enable a party to print same, for each folio . .004 12. On examining a written or printed copy and marking or sealing same as an office copy, for each folio . 2 13. On making a copy and marking same as an office copy, for each folio . . . . . .006 ^ . „ . , J The actual 14. On a copy in a foreign language . . . .•) 10 10 5 10 3 2 5 616 APPENDIX. £ 8. d. 15. On a copy of a plan, map, section, drawing, photo- j The actual graph, or diagram . . . . • \ cost. Attendances. 16. On an application, with or without a subpoena, for any officer to attend as a witness, or to produce any record or document to be given in evidence (in addition to the reasonable expenses of the ofiScer), for each day or part of a day he shall necessarily be absent from his ofSce . ^ . . .10 The officer may require a deposit of stamps on account of any further fees, and a deposit of money on account of any further expenses, which may probably become payable beyond the amount paid for fees and expenses on the application, and the officer ^or his clerk taking such deposit shall there- upon make a memorandum thereof on the appli- cation. The officer may also require an undertaking in writing to pay any further fees and expenses which may become payable beyond the amounts so paid and deposited. Oaths, etc. 17. On taking an affidavit or an affirmation or attestation upon honour in lieu of an affidavit or a declaration, for each person making same . . . .016 18. And in addition thereto, for each exhibit therein referred to and required to be marked . . .010 Filing. 19. On filing a special case 10 20. If on appeal from an inferior court . . . . 10 21. On filing an affidavit, writ of execution with return, recognizances, and every other proceeding or docu- ment required to be filed 2 6 Certificates. 22. On a certificate of appearance, or of a pleading, affi- davit, or proceeding having been entered, filed, or taken, or of the negative thereof, unless otherwise provided 2 6 23. Or if a certificate of proceedings pursuant to Order Lxi., Eule 24 5 COSTS. 617 Searches and Inspections. £ 24. On an application to search, for an appearance and inspecting same . . . . . .010 25. On an application to search an index and inspect a pleading, judgment, order, or other record, unless otherwise expressly provided for by any Act of Parliament, for each hour or part of an hour occupied . . . .,. . . .026 26. Not exceeding one day . . , . . . 10 Hearing. 27. On entering or setting down, or re-entering or re- setting down, an appeal to the Court of Appeal, or a cause, matter, or proceeding required to be entered in the Crown Paper, but not any inter- locutory motion or application arising, out of any cause, matter, or proceeding in respect of which such fee shall have been previously paid by the party entering . . . . . . .200 28. If an appeal from an inferior court to the High Court 10 Judgments and Orders. On drawing up and entering Judgments and Orders : — 29. If an order made in Court ordering a judgment to be entered, or an order in the nature of a judgment, or on the hearing of a special case, unless otherwise directed . . . . . . . .10 30. If on an appeal from an inferior court . . . 10 31. If on any application to the Court of Appeal . .10 32. If an Order of Course, under the Act 6 & 7 Tict. 0. 73, to tax a solicitor's biU of costs within 12 months after delivery, or for delivery of a bill of costs by a solicitor where fee No. 4 (on the sum- mons) is not applicable . . . . . 10 33. If an Order of Course or any other Order . .050 34. On signing a note or memorandum of an Order pur- suant to Order lii., Eule 14, when required for pro- duction, where no Order is drawn up . . .080 On Proceedings before a Master. 35. On every reference, investigation, or inquiry, including examination of witnesses, if any, for every hour or part of an hour the officer is occupied . . . 10 618 APPENDIX. Taxation of Costs. 36. On taxing a bill of costs, where the amount allowed does not exceed £4 ..... . 37. Where the amount exceeds £4, for every pound allowed or a fraction thereof .... These fees, nnless otherwise provided, shall be taken on signing the certificate, or on the allow- ance of the bUl of costs as taxed ; but the fees shall be due and payable, if no certificate or allocatur is required, on the amount of the bill as taxed, or on the amount of such part thereof as may be taxed, and the solicitor or party suing in person shall in such case cause the proper stamps (the amount thereof to be fixed by the officer) to be impressed on or affixed to the bUl of costs. The taxing officer may require a deposit of stamps on account of fees before taxation, not exceeding the fees on the fuU amount of the costs as submitted for taxation, and the officer or his clerk on taking such deposit shall make a memo- randum thereof on the bUl of costs. £ s. d. 2 10 MlSCELLANEOtTS. 38. On an allowance of a table of fees 39. On a fiat of a judge 40. On taking a recognizance or bail 41. On a commitment . 42. On signing an information 43. On nominating and reducing a jury pursuant to the County Juries Act, 1825, and the Juries Act, 1870 We concur in respect of the above fees, 1 5 10 5 10 10 CHAELES DALRTMPLE, W. H. WALROND, (Signed) Two of the Commissioners of Her Majesty's Treasury. COSTS. 619 APPENDIX N. TO THE SUPKEME COUET EULES AND OEDEES, 1883. COSTS. Higber Scale. Lower Scale, Writ of mandamus Or per folio.. Writ of subpoena ad testificandum or duces teau/m And if more tha;n four folios, for .each folio beyond four Writ or writs of suhpcena ad testificandum for any number of persons not exceeding three, and the same for every additional number not exceeding three Writ of distringas, pursuant to statute 5. Vict. c. 5 Writ of execution, or other writ to enforce any judgment or order .. And if more than four folios, for each folio beyond four Procuring a writ of execution or notice to the sheriff, marked with a seal of renewal .. Notice thereof to serve on sheriff Any writ not included in the above These fees include all indorsements and copies, or prsecipes, for the officer sealing them, and attendances to issue or seal, except where .otherwise provided, but not the Court fees. Summonses to attend Judges' Chambers Or if special, at taxing officer's discretion, not exceeding Copy for the judge, when required Urperfolio.. Sebvicbs and Notices. Service or filing in lieu of service, of any writ, summons, warrant, interrogatories, petition, order, or notice on a party who has not entered an appearance, and if not ; authorized to be served by post If served at a distance of more than two miles from the nearest place of business, or, oflficQ of the solicitor serving the same, for each mile beyond such two miles therefrom Where, in consequence of the distance of the.party to be served, it is proper to effect such service through an agent (other than the London ageAt), for correspon- dence in addition ... ... , .. Where more than one^ attendance is necessary to effect service, , or to grouijd ^n application, for substituted £ s. d. 110 14 6 8 14 6 8 13 4 10 14 6 8 5 10 5 10 7 £ s. d. 10 14 6 8 14 6 13 7 1 6 8 4 7 6 8 3 1 1 13 4 2 2 4 4 5 10 7 620 APPENDIX. Higher Scale. Lower Scale. service, sucli further allowance may be made as the taxing officer shall think fit. For service out of the jurisdiction such allowance is to be made as the taxing officer shall think fit. Service where an appearance has been entered on the solicitor or party Or if authorized to be served by post Where any writ, order, and notice, or any two of them, have to be served together, one fee only for service is to be allowed. In addition to the above fees, the following allowances are to be made : — As to writs, if exceeding two folios, for copy for service, per folio beyond such two As to summons to attend at the Judges' CHiambers, for each copy to serve Orperfolio.. For preparing notice to produce on the trial or hearing of an action, or notice to admit If special or necessarily long, such allowance as the tax- ing officer shall think proper, not exceeding per folio And for each copy, such. allowance as the taxing officer shall think proper, not exceeding per folio For preparing notice of motion .. Orperfolio Copy for service Orperfolio.. Or if special, and necessarily exceeding three, folios, for preparing same, for each folio beyond three . . And for each copy for service per- folio beyond such three Copies for service of interrogatories and petitions, and of orders with necessary notices (if any) to accompany, per folio .. Except as otherwise provided, the allowances for services include copies for service. "Where notice of filing affidavits is required, only one notice is to be allowed for a set of affidavits filed, or which ought to be filed, together. Where any appointment is or ought to be adjourned, service of a notice of the adjournment, or next appoint- ment, is not to be allowed. Appeakanoes. Entering any appearance .. If entered at one time, for more than one person, for every defendant beyond the first Instbuctions. To sue or defend .. For statement of claim or special case .. .'. For indorsement of writ of summons when no further statement of claim £ s. d. 2 6 16 4 2 4 7 6 10 4 6 8 2 13 4 2 2 110 £ s. d. 2 6 16 4 10 4 5 8 4 4 5 3 1 1 1 1 4 4 1 1 4 4 4 6 8 10 6 8 13 4 13 4 COSTS. 621 Higher Scale. Lower Scale. For defence or further defence .. .. .. For reply when defendant sets up a counterclaim For reply or further reply in any other case with or without joinder of issue For confession of defence .. For joinder of issue without other matter For special petition, any other pleading (not being a summons), and interrogatories for examination of a party or witness To amend any pleading For affidavit in answer to interrogatories, and other special affidavits .. To appeal against order of Court or judge and to appear thereon .. To add parties by order of Court or judge For counsel to advise on evidence when the evidence in chief is to be taken orally Or not to exceed For counsel to make any application to a Cotirt or judge where no other brief For brief on motion for special injunction For brief on hearing or trial of action upon notice of trial or notice for judgment given, whether such trial be before a judge, with or without a jury, or before an official or special referee, or on trial of an issue of fact before a judge, commissioner, or referee, or on assess- ment of damages For such brief, and for brief on the hearing of an appeal when vritnesses are to be examined or cross-examined, such fee may be allowed as the taxing officer shall think fit, having regard to all the circumstances of the case, and to other allowances, if any, for attendances on witnesses and procuring evidence. The fees for instructions for brief are to apply to a hearing on further consideration in court only where an order for accounts and inquiries was made without such hearing or trial, as above mentioned. Deawing Plbadings and othbe Documents. Statement of claim .. Or per folio .. Defence Or per folio .. Counterclaim Or per folio .. Beply, with or without joinder of issue, confession of defence, joinder of issue without other matter, and any other pleading (not being a petition or summons) and amendments of any pleading Or per folio .. Particulars, breaches, and objections, when required, and one copy to deliver Or such amount as the taxing officer shall think fit, not exceeding per folio £ s. 13 1 1 13 13 13 13 13 6 8 1 1 13 6 1 1 10 110 2 2 £ s. d. 6 8 13 4 6 8 6 8 6 8 6 8 6 8 6 8 13 4 6 8 6 8 110 6 8 13 4 110 1 1 1 10 1 1 1 1 10 1 6 8 1 10 5 10 5 8 622 APPENDIX. Higher Scale. Lower Scale. If more than one copy to be 4Qlivere^ for each other copy, per folio Special case, whether original or in an action, afiSdavits in answer to interrogatories and other special affidavits, special petitions, and interrogatories, per foUo, Brief, on trial or hearing of cause, issue of fact, assess- ment of damages, examination of witnesses, special case and petition before a Court or judge, sheriff, com- missioner, referee, examiner, or officer of the court, when necessary and proper in, addition to pleadings. Including necessary and proper observations, per foUo Brief on application to add parties Or per folio.. Brief on further consideration, per sheet of 10 folios Accounts, statements, and other documents for the Judge's Chambers, when required, not exceeding per folio Advertisements to be signed by judge's clerk, including attendance therefor .. Bills of costs for taxationi including copy for the taxing officer Copies. Of pleadings, briefs, and other documents where no other provision is made, at per folio .. Where, pursuant to Bules of Court any pleading, special case or petition of right, or evidence is printed, the solicitor of the party printing shaU be allowed for a copy for the printer (except when made by the officer of the court), at per folio And for examining the proof print, at per folio .. And for printing the amount actually and properly paid to the printer, not exceeding per folio .. And in addition for every 20 beyond the first 20 copies, at per folio And where any part shall properly be printed in a foreign language, or as a fac-simile, or in any unusual or special manner, or where any alteration in the documeut being printed becomes necessary after the first proof, such further allowance shall be made as the taxing officer shall think reasonable. These allowances are to include all attendances on the printer. The solicitor for a party entitled to take printed copies shaU be allowed, for such number of copies as he shall necessarily or properly take, the amount he shall pay therefor. In addition to the allowances for printing and takiu'' printed copies, there shall be allowed for such printed copies as may be necessary or proper for the following, but for no other purposes (videlicet): Of any pleading for delivery to the opposite party, or filmg in default of appearance. Of any special case for filing. £ s. d. 4 10 10 10 6 10 6 8 10 13 4 8 4 4 2 10 1 £ s. d. 4 10 10 6 8 6 8 10 8 6 8 8 4 4 2 10 1 COSTS. 623 Of any affidavit to be sworn to in print. And of any pleading, special case, petition of right, or evidence for the use of counsel in court, and in ' country agency causes when proper to be sent as a close copy for the use of the country solicitor, at per folio Such additional allowances for printed copies for the Court or judge, and for counsel, are not to be made where written copies have been made previously to printing, and are not in any case to be made more than once in the progress of the cause Close copies, whether printed or written, are not to be allowed as of course, but the allowance is to depend on the propriety of making or sending the copies, which in each case is to be shown and considered by the taxing officer. Inserting amendments in a printed copy of any pleading, special case, or petition of right, when not reprinted .. Or per folio .. Pebttsals. Of statement of claim, defence, reply, joinder of issue, and other pleading (not being.a petition in a pending cause or matter, or summons other than an originating summons), by the solicitor of the party to whom the same are delivered .. Or per folio .. ... .... Of amendment of any such pleading in writing .. Or per folio If same reprinted .. Or per folio of amendment ^ .. Of interrogatories to be answered by a party by his solicitor .. .. .. .. Or per folio Of special case by the solicitor -of any party except the one by -whom it is prepared Or per folio Of copy order to add parties, notice of defendant's claim against any person not a party to the action under Order xvi., rule 49, and of defendant's defence and counteMaim served on a person not a party under Order xxi., rule 13, by the solicitor of the party served therewith, and in these several cases the perusal of the plaintiff's statement of claim is also to be allowed' unless the solicitor has been previously allowed such perusal .. Or per folio Of notice to produce on trial or hearing of action, and notice to admit by the solicitor of the party served .. Or (if to admit facts) under Order xxxii., rule 4, per folio Of affidavit in answer to interrogatories by the solicitor of the party interrogating, and of other special affidavits by the solicitor of the party against whom the same can be read, per folio Higher Scale. £ s. d. 3 5 4 4 Lower Scale. £ s. d. 2 10 4 13 4 6 8 4 4 6 8 6 8 0, 4 4 jO 13 4 6 8 4 4 13 4 6 8 4 4 13 4 6 8 4 4 13 4 6 8 4 4 13 4 6 8 1 1 624 APPENDIX. Higber Scale. Lower Scale. Attendances. To deliver, or file in lieu of delivery, any pleading (not being a petition or summons) and a special case To inspect, or produce for inspection, documents pui- : suant to a notice to admit Or per hour.. To examine and sign admissions .. To inspect, or produce for inspection, documents referred to in any pleading, notice in lieu of pleading, or affidavit, pursuant to notice under Order xxxr., rule 14 Or per hour To obtain or give any necessary or proper consent To obtain an appointment to examine witnesses On examination of witnesses before any examiner, com- missioner, officer, or other person Or according to circumstances, not to exceed i Or if without counsel, not to exceed On deponents being sworn, or by a solicitor or his clerk to be sworn, to an affidavit in answer to interrogatories or other Special affidavit On a summons at Judges' Chambers Or according to circumstances not to exceed On counsel with brief or other papers — If coimsel's fee one guinea If more and under five guineas . . If five guineas and under 20 guineas If 20 guineas If 40 guineas or more On consultation or conference with counsel To enter or set down action, special case, or appeal, for hearing or trial .. .. .. ,. .. .. In court on motion of course and on counsel and for order To present petition for order of course and for order In court on every special. motion, each day On same when heard each day Or according to circumstances, not to exceed On special case, or special petition, or application ad- journed from the Judges' Chambers, when in the special paper for the day, or likely to be heard On same when heard Or according to circumstances, not to exceed .. .'. On hearing or trial of any cause, or matter, or issue of fact, in London or Middlesex, or the town where tho solicitor resides or carries on business, whether before a judge with or without a jury, or commissioner, or referee, or on assessment of damages, when in the paper When heard or tried .. .. .. Or according to circumstances not to exceed When not in London or Middlesex, nor in the town where - the solicitor resides or carries on business, for each day (except Sundays) he is necessarily absent And expenses (besides actual reasonable travelling ex- penses) each day, including Sundays .. Or if the solicitor has to attend on more than one trial or assessment at the time and place, in each case £ s. d. 6 8 10 110 3 3 3 3 110 1 11 6 £ s. d. 3 4 13 6 13 4 8 4 6 6 6 8 8 8 6 6 6 6 8 8 8 8 6 6 6 6 8 8 8 8 13 2 2 3 3 4 13 2 2 3 3 4 6 6 1 1 8 8 6 6 1 1 8 8 6 6 13 1 1 2 2 13 8 8 4 4 3 6 6 13 13 4 8 8 4 4 6 13 13 13 13 2 2 8 4 4 4 4 6 10 10 6 13 2 2 8 8 4 10 1 1 2 2 6 13 2 2 8 4 10 13 4 3 3 3 3 1 1 1 1 COSTS. 625 Higher Scale. Lower Scale. The expenses in such case to be rateably divided. To hear judgment when same adjourned .. Or according to circumstances To deliver papers (when required) for the use of a judge prior to a hearing If more than one judge On taxation of a bill of costs Or according to circumstances, not to exceed Unless the same shall necessarily occupy so much time that the taxing oflacer shall consider such amount inadequate, in which case he may allow such further fee as he shall think proper. To obtain or give an undertaking to appear To present a special petition, and for same answered . . On printer to insert advertisement in Gflszeiffe On printer to insert same in other papers, each printer.. Or every two KoTE. — An order of course means an order made on an ex parte application, and to which a party is entitled as of right on his own statement and at his own risk. Oaths and Exhibits. Commissioner to take oaths or affidavits. For every oath, declaration, affirmation, or attestation upon honour in London or the country .. The solicitor for preparing each exhibit in town or country The commissioner for marking each exhibit Tbbm Fbbs." For every term commencing on the day the sittings in London and Middlesex of the High Court of Justice commence, and terminating on the day preceding the next such sittings, in which a proceeding in the cause or matter by or affecting the party, after appearance entered, shall take place And further, in country agency causes or matters, for letters .. Where no proceeding in the cause or matter is taken which carries a term fee, a charge for letters may be allowed, if the circumstances require it. In addition to the above an allowance is to be made for the necessary expense of postages, carriage and trans- mission of documents. £ s. d. 13 4 110 6 8 13 4 6 8 2 2 15 6 £ s. d. 6 8 13 4 6 8 13 4 6 8 6 8 6 8 6 8 6 8 6 8 6 8 — 6 8 1 6 1 6 1 1 1 1 15 6 2_S 626 APPENDIX. APPEAL TO HOUSE OF LORDS. APPELLATE JURISDICTION ACT, 1876. Form of Appeal, method of Procedure, and Standing Orders ap- plicable to all Appeals presented to the House of Lords on and after the Ist day of November, 1876. Form of Ap- peal (Standing Order No. 1). Sate. The Schedule must set out the Title of, and parties to the cause or matter : and the decrees, orders, judg- ments, or inter- locutors ap- pealed against, and where the appeal is not against the whole decree the part ap- pealed against must be defined. Standing Order No. II. (Sig- nature of Counsel). To the Eight Honourable the House of Lords. The humble petition and appeal of A. (set forth, the address of the appellant^. Your petitioner humbly prays that the matter of the order (or orders, or judgment, or interlocutor) set forth in the schedule hereto (or, so far as therein stated to be appealed against) may be reviewed before Her Majesty the Queen in her Court of Par- liament, and that the said order (or, so far as aforesaid) may be reversed, varied, or altered, or that the petitioner may have such other relief (if specific relief be desired it can he so stated in the prayer) in the premises as to Her Majesty the Queen, in Her Court of Parliament, may seem meet ; and that (here name the respondents) mentioned in the schedule to the appeal may be ordered to lodge such printed cases as they may be advised, and the circumstances of the cause may require, in answer to this appeal ; and that service of such order on the solicitors in the cause of the said respondents may be deemed good service. To he signed hy two counsel, (a) (Here insert schedule.) Form of Schedule. " From Her Majesty's Court of Appeal (England:). " In a certain cause (or matter) wherein A. was plaintiff and B. was defendant. (The names of all parties to the appeal, whether original plaintiffs or defendants in the cause or added hy suhsegueat orders must be here set forth). " The order of (state Court and date of order) appealed from is in the words following, viz. (set forth, in italics throughout, the whole of the order appealed from (h) ) (or, when the order is appealed from in part only,) (a) In the event of the autograph signatures not being subscribed to the parchment appeal, the draft containing them must be shown to the clerks of the Judicial Depart- ment at the time of lodging the appeal. («) Where several Orders are appealed from, each Order must be headed with a state- ment of the Court and the date of the Order. APPEAL TO HOUSE OP LORDS. 627 The order of (state Court and date of order) referred to in the above prayer is in the words following, the portion complained of being printed in italics (set forth order, the portion complained of heing printed in italics, the portion not complained of heing printed in Boman type)." We humbly conceive this to be a proper case to be heard before Standing Order your Lordships by way of appeal. ficat"'of "*'' To he signed hy two counsel, (a) Counsel). I , clerk to Messrs. , of , solicitors for the appel- Certificate of lants within named, hereby certify that on the day of I "pondents'^to served Messrs. , of , solicitors for , the within-named be written on respondents, with a correct copy of the foregoing appeal, and with a the /arcte»« notice that on the day of , or as soon after as conveniently appeal. may be, the petition of appeal would be presented to the House of Lords on behalf of the appellant. DiEECTIONS FOR AGENTS. N.B. — All documents must he lodged in the Parliament Office hefore three o'clock on the day of presentation. Method of Procedure. 1. The appeal must be printed on parchment (gwarfo sj2e). Presentation 2. Two clear days' notice of the intention to present the appeal, ^^^ appeal- together with a correct copy of the appeal, (&) must be served on the respondents or their solicitors prior to presentation, and a certificate of such service entered on the appeal as above. 3. The appeal, together with four printed paper copies, may then be lodged in the Parliament Office ; (c) and if the House be then sitting, or if not, on the next ensuing meeting of the House, the appeal will be presented to the House, and an order made requiring the respon- dents to lodge cases in answer to the appeal. This order will be Order of issued (d) to the appellants' agent for service on the respondents or their standin~0^d solicitors, and the same, together with an affidavit (e) of due service No. III. entered thereon, must be returned to the Parliament Office within the (a) See note (a) on p. 626. (6) It will be found conTement that the appellants' agent should supply the other side with at least fire additional printed copies of the appeal. (6) See also paragraph 9. (d) In Scotch Appeals, when the " Order of Service " is desired on the day of presenta- tion for the purpose of staying execution below, the appeal must be lodged in the Parliament office not later than one o^clock on the day of presentation, accompanied by a letter from the agent stating that the " Order " is required for th^ purpose of staying execution. (e) Affidavit to be sworn before a commissioner duly appointed_to administer oaths in England or Ireland or a justice of the peace in Scotland. 2 s 2 628 APPENDIX. period granted to the appellant for lodging his printed cases nnder Standing Order No. V. 4. The several periods limited by the Standing Orders take eflfect from the date of the presentation of the appeal to the House, which is the date at the head of the order of service. Security for 5_ Security for costs is given by recognizance to the amount of £500, Standing ^nd a bond for £200. In lieu of the bond, payment must be made of Order No. IV., £200 into the Fee Tund of the House of Lords within one week after the ing Order presentation of the appeal to the House. (All drafts and cheques to be No. VII., with made payable to " House of Lords Fee Fund," and to be crossed " Bank expiry of time of England, Western Branch.") during recess. g_ fhe recognizance must be entered into by each appellant, where Eeoognizance. ^jjiere are more than one. (It is usual to issue the recognizance for execution by the appellant at the time of the issue of the bond.) In the event of a substitute being proposed, the name of such substitute, together with a certificate of sufficiency by the solicitor or agent of the appellants, must be lodged in the Parliament Office within one week after the presentation of the appeal to the House ; two clear days' notice of the name so proposed, together with a copy of the certificate, having been previously given to the solicitor or agent of the re- spondents. For form of certificate, see Appendix A. (a) ^°^^- 7. The bond must be entered into by two sufficient sureties to the satisfaction of the clerk of the parliaments. The names of the pro- posed sureties, together with a certificate of sufficiency by the solicitor or agent of the appellants, must be lodged in the Parliament Office within one week after the presentation of the appeal to the House ; two clear days' notice of the names so proposed, together with a copy of the certificate, having been previously given to the solicitor or agent of the respondents. For form of certificate, see Appendix A. (a) to raffidCTc *' ^' ■'■* ^ ^^^ *^*^ °^ *^® solicitor or agent of the appellants, on giving of sureties, &c. tte respondent's solicitor or agent notice of the names proposed as to be given to sureties or substitute, to furnish him with such information as will respondents -ui !_• a • t n. • agent. enable Imn to ascertam the sufficiency of the proposed sureties or substitute. 9. Whenever possible, it will be found convenient to lodge the above certificates, &c., relating to the recognizance and bond at the time of lodging the appeal. When this cannot be done, the appel- lant's agent should be prepared to state whether the recognizance is to be entered into by the appellant in person or by substitute, and whether a bond will be executed or the £200 deposited. Execution of 10. At the termination of one week from the lodgment of the retognizanoe v _j.-/; . i_ i and bond. above certificates, the bond and recognizance are issued to the solicitor or agent of the appellants for execution before a commissioner (a) Forms to be filled up can be obtained on application to the Judicial Department. APPEAL TO HOUSE OF LOEDS. 629 appointed to administer oaths in tlie Supreme Court of Judicature in England or in Ireland, or before a justice of the peace in Scotland. 11. The bond and the recognizance (whether entered into by the Return of appellants or by a substitute) must be returned to the Parliament recognizance Office within one week from the date of the issue thereof to the solicitor or agent of the appellants. 12. If objection be taken by the respondent to the sureties or Objection to substitute proposed by the appellant, the respondent's agent must substitute, address a letter to the Clerk of the Parliaments setting forth the nature of the objection. This letter must be lodged in the Parliament OfS.ce within one week from the lodgment of the certificates of sufficiency in the Parliament Office. 13. In the event of the clerk of the parliaments requiring a justifi- Justification cation of the sureties, the appellants' agent must within one week ga^'titute^ from the date of an official notice to him to that effect, lodge in the Parliament Office an affidavit or affidavits by the proposed sureties setting forth specifically the nature of the property in consideration of which they claim to be accepted as sureties in respect of the bond, and also declaring that the property in question is unincumbered. A copy of the affidavit or affidavits must be served on the agent of the respondents before lodging the same in the Parliament Office. If the respondents desire to file counter affidavits, the same should be lodged with as little delay as possible, copies having been served on the agent of the appellants. 14. If on perusing and considering these affidavits, the clerk of the parliaments deems the proposed sureties not satisfactory, the appel- lant is required to pay into the Pee Fund of the House the sum of £200 as security for the costs of the appeal within four weeks from the date of an official notice by the clerk of the parliaments intimating his dissatisfaction with the proposed sureties. In default of such payment within the period aforesaid the appeal will stand dismissed. 15. The like practice is to be observed with regard to the substitute for the recognizance, with this exception, that in the event of the substitute being deemed by the clerk of the parliaments not satis- factory, the appellant or appellants are required to enter personally into the usual recognizance. 16. The solicitors of those respondents who purpose lodging printed Appearance on cases in answer to the appeal should attend at the Parliament Office °enalf of for the purpose of ascertaining the due execution of the recognizance and bond, and entering their names in the appearance book. (Only solicitors who have thus entered appearance in the cause are entitled to notice of the meeting of the appeal committee). 17. Petitions presented in incidental applications are required to be Incidental engrossed on foolscap, booTewise ; with regard to petitions in which an pe'''"">s. 630 APPENDIX. Duplicate assent cannot be obtained, two clear daya' previous notice of the "Mentis To't'™ intention to present, together with a copy of the petition, must he given. served on the opposing agent, and a duplicate of the petition must be lodged in the Parliament Office, together with the original petition. The form of a petition for extension of time to lodge the appellant's cases is given in Appendix C. 18. Forms of petitions (subject to modification, if required), for the restoration of an appeal, for leave to sue in forma pawperis, for revivor, and for withdrawal of an appeal, can be obtained from the Judicial Department. It will be found advisable in exceptional cases to submit a draft of the petition to the clerks of the Judicial Department. Appeal com- 19. Counsel are not heard before the appeal committee. All affi- mittee. davits intended to be used in the appeal committee must be lodged heard. with the opposing agent within a reasonable time before the meetrog Affidavits. ^£ ^j^g committee, but are not to be filed in the Parliament Office. Printed cases 20. In English appeals six weeks' time, and in Irish and Scotch *°^ fPF^"*^'^ appeals eight weeks' time, from the date of the presentation of the down "cause appeal, is granted to all parties to lodge printed cases and the ^°^ ^'^""S' appendix thereto. These periods, when expiring during a recess of Order No. V. ; the House, are extended by Standrag Order No. VII. Petitions for 1°** ^l^" - , extension of time, lodged during the prorogation of Parliament (unless No. VII. the House of Lords be sitting for judicial business), in cases in. which time has been already extended on petition, do not prevent the dismissal of an appeal. 21. In appeals in which the parties are able to agree in their state- ment of the subject-matter, it is optional to lodge a joint case with reasons pro and con., following the practice heretofore in use in common law appeals on a special case. 22. It is obligatory on the appellant, within the respective periods so limited as above, to lodge his printed cases, or the joint case before mentioned, and a printed appendix consisting of such documents, or parts thereof, used in evidence in the court below, as may be necebsaiy for reference on the argument of the appeal in support of his case. This appendix will be for the use of both parties on the hearing of the appeal. (See following paragraph with regard to the printing of additional documents by the re.^pondent.) Preparation 23. It is the duty of the appellant, with as little delay as possible o appen ix, ^^^^^ ^^^ presentation of the appeal, to furnish to the respondent a list of the proposed documents, and in due course a proof copy of the appendix. The proof is to be examined with the original docu- ments bj' the respective solicitors of the parties. (Ten copies of the appendix, as soon as printed, to be delivered to the solicitor of the respondent.) The respondent is allowed to print any additional APPEAL TO HOUSE OF LOEDS. 631 documents, used in evidence in the court below, which may be Respondent's additional documents. necessary for the support of his case on the argument of the appeal, "'W'*'"""' such documents to be paged consecutively with the appendix, in order that the same may be eventually hound up with the appendix, and form one document for the use of the House on the hearing of the appeal. (The proof to be examined, as aforesaid, by the respective solicitors, and prints delivered to the solicitor of the appellant.) Shorthand notes of arguments in the courts below must not be printed by either party. 24. The costs incurred in printing the appendix will, in the first instance, be borne by the appellant, and the cost of the additional documents by the respondent, but these costs will ultimately be subject to the decision of the House with regard to the costs of the appeal. 25. The printed case must be signed by one or more counsel who Signature of shall have attended as counsel in the court below, or shaU. purpose „ase,— see attending as counsel on the argument at the bar. Standing Order 26. The case and appendix must be printed quarto size, with seven ' or eight letters down the margin, and the title page of the appellant's panted case, case must contain, at the top, a reference to the report of the cause Reference to below, if reported, or, if not reported, "catch words" or " index ™P<"'j^ °f <=^"s« words" similar to those prefixed to reports of causes in the Law Eeports. The case and appendix should be submitted in proof to the clerks in the Judicial Office. 27. Where reference is made to a document printed in the appendix, the case must contain a marginal note of the page of the appendix containing such document. The appendix must contain an index to the documents therein. 28. Forty copies of each case and appendix are required to be lodged Number of in the Parliament Office to comply with Standing Order No. V. ; and Peq^uired^tobe subsequently, on the lodgment of the respondent's case, ten hound lodged by the copies (see directions in the Appendix hereto as to hinding printed cases, ^PP* ^° ^ appendix, additional documents, and printed copies of the appeal for the use of the House on the hearing of the appeal). 29. A respondent can only be heard at the bar upon lodging a Setting down printed case. If the respondent's case is not ludged within the time ^"' hearing specified in the order of service, the cause is, on the lodgment of the Subsequent appellant's case and the appendix, " set down for hearing ex, parte;" lodgment of but the respondent may nevertheless at any time afterwards lodge his case. printed case, and thus put himself in the same position as if he had lodged it within the time specified in the order of service. When, however, the lodgment has been delayed until a day for hearing the cause has been actually appointed, the respondent is jequired to peti- tion for leave to lodge his printed case, and submit to whatever order the House may make on his petition. 632 APPENDIX. Exchange of printed cases. Setting down cause for hearing. Causes under compTomise. Hearing of the appeal. Documents printed in the case and appendix. Irish appeals. Scotch appeals, 30. After the lodgment of the printed cases by the appellants and respondents, the respective cases are to be exchanged at the offices of the solicitors ; the respondent's agent supplying the appellant's agent with the additional number of cases required for the hound copies. 31. As soon as the printed cases of all parties and the appendix thereto have been lodged, it is optional for either side to set down the cause for hearing, but it is obligatory on the appellant, upon the lodg- ment of his printed cases and the appendix, to set down the cause for hearing within the time limited by Standing Order No. V. (ea; jparte as to those respondents who have not already lodged printed cases, upon proof, by affidavit, of the due service of the before-mentioned " order of service " upon the respondents or their solicitors). A respondent who has lodged his printed cases is at liberty to set down the cause for hearing on the first sitting day after the expiration of the time limited by the standing order for lodging printed cases. 32. The cause will then be ripe for hearing, and will take its position on the effective cause list. 33. Causes the hearing of which has been postponed on the ground of their being under compromise are placed at the bottom of the effective cause list in the event of no compromise being arrived at. 34. On the hearing of an appeal, the agents are required to have the originals (or such copies thereof as were accepted in evidence in the court below in lieu of the originals) of aU. documents set forth in the printed case and appendix in readiness below the bar, in case the House desires to refer to such originals or accepted copies (see following paragraphs as to exception with regard to Irish and Scotch Appeals). 36. In Irish Appeals in cases in which the original documents are filed in the Irish Courts, and cannot be readily procured, office copies, duly signed by the proper officer of the court from whence they issue, as certifying the correctness of the same, must be in readiness below the bar on the hearing of the appeal (subject always to the production of the originals if required by the House). 36. In Scotch Appeals a copy of the record, duly certified by the proper officer of the court below, must be lodged with the pursebeaver of the Lord Chancellor a few days before the hearing of the appeal. Subject to special direction by the House, the originals of documents contained in the record are not required to be at the bar. Order immediate notice should be given by letter addressed to the Clerk of «o. VIII. the Pariiaments, and lodged in the Judicial Office. The letter must APPEAL TO HOUSE OP LOEDS. 633 state whether the appeal abates or does not abate by reason of the death in question. An appeal is held to abate through death when it becomes necessary to add a new party or parties to the appeal to represent the deceased person's interest. An appeal is held not to abate through death when the interest of the deceased-person is represented by any of the surviving parties to the appeal. In appeals from England and Ireland, in which it is necessary to add new parties to the appeal, an order must be first obtained in the court below making such persons parties to the cause, and an office copy of the order must be annexed to the petition for revival presented to this House. In appeals from Scotland, the record being closed in the court below, the petition for revival is presented directly to the House, and a certified copy of the confirmation of the executors of the deceased person must be annexed to the petition. In the case of appeals which do not abate through death it is neces- sary in the printed cases to print the words " (since deceased) " against the name of the deceased person in the title of the appeal. In the case of an appeal which becomes defective through the bank- Defect through ruptcy of any of the parties, a letter must be addressed to the Clerk of se*g"standmg~ the Parliaments, and lodged in the Judicial Office, stating the fact of Order such bankruptcy, and to this letter must be annexed an office copy of the order of the Court adjudicating bankruptcy. The effect of abatement, or of defect through bankruptcy on the procedure of the appeal, the period within which steps must be taken for a revival of the appeal, or for rendering the same effective, and regulations for the lodgment of supplemental cases, are set forth in Standing Order No. VIII. 38. Forms of bills of costs relating to appeal cases may be obtained Costs, see at the office for the sale of printed papers, House of Lords. Standing Order 39. In all cases where the appellant has paid in the sum of £200 as directions as to directed by Standing Order No. IV., and where the House shall make *^® taxation " of costs any order for payment of costs by the appellant to the respondent. Appendix E. the clerk of the parliaments or clerk assistant shall pay over to the Directions as respondent or his agent the said sum of £200, or so much thereof as *„°'i!* ^™ °^ ... ° 1 , 1 „ 1 £200 under Will liquidate the amoxmt reported to the clerk of the parliaments or Standing Order clerk assistant by the taxing officer, as being due from the appellant ^°- ^^^ to the respondent in respect to the appeal. And in all cases where ^^ j the amount so reported by the taxing officer shall exceed £200, the clerk of the parliaments or clerk assistant shall in his certificate credit the appellant with the £200 so paid over to the respondent. And where there be two or more respondents entitled to their sepai;ate 634 APPENDIX. Appeals reversed- Appeals dis- missed for want of pro- secution. costs, the said £200 shall be divided between the respondents in pro- portion to the amount of costs reported by the taxing officer to be due to each respondent. And where, after satisfying the order of the House, there be any sum remaining, part of the said £200, the same shall be paid back to the appellant or his agent upon a proper receipt for the same being given to the clerk of the parliaments or clerk assistant. 40. In aU cases in which the appellant is not ordered to pay the costs of the appeal, the clerk of the parliaments or clerk assistant shall, on receiving a proper receipt for the same, pay back to the appellant or his agent the said sum of £200. 41. In cases in which an appeal is dismissed for want of prosecution, the appellant shall be at liberty to serve a notice of such dismissal according to the form set forth in Appendix D. upon the agent of the respondents (such service to be verified, if necessary, by affidavit), and unless the respondent shall, within four weeks from the date of such service, if the House be sitting at the expiration of the said four weeks, or, if not, then not later than the third sitting day of the next ensuing sittings of the House, lodge in the office of the taxing officer of the House a copy of his bill of costs, the clerk of the parUa- ments or clerk assistant shall, upon a proper receipt for the same being given, repay to the appellant or his agent the said sum of £200. In the event of the respondent so lodging his biU of costs as aforesaid, the taxing officer may, if the sum demanded by the respondent he less than £200, tax the same, and the clerk of the parliaments or clerk assistant shall pay over to the respondent or his agent so much of the said sum of £200 as will liquidate the amount reported to the clerk of the parliaments or clerk assistant as being due from the appellant to the respondent in respect of the appeal, and the remaining portion of the said sum of £200 shall be paid back to the appellant or his agent upon a proper receipt for the same being given to the clerk of the parliaments or clerk assistant. Summary of Ordinaey Procedure ix Appeals. (For full instructions see foregoing " Directions for Agents " and the Standing Orders.) 1. A proof copy of the petition of appeal may, when deemed neces- sary, be submitted to the clerks of the Judicial Department. 2. Lodgment of appeal, printed on parchment, together with four paper copies thereof, in the Parliament Office for presentation to the House, — intimation with regard to recognizance and bond. APPEAL TO HOUSE OP LORDS. 635 3. Issue to appellant's agent of " Order of Service." 4. Payment of £200, or lodgment of certificate with regard to bond; and lodgment of certificate witli regard to substitute for recog- nizance. 5. Issue to appellant's agent of recognizance and bond for execu- tion. 6. Eeturn of recognizance and bond. 7. Attendance of respondent's agent to enter appearance, and inspect recognizance and bond. 8. Eeturn of " Order of Service," with, affidavit entered thereon. 9. Lodgment of forty printed cases and appendix. A proof copy of the case may, when deemed necessary, be submitted to the clerks of the Judicial Department. 10. Setting down cause for hearing. 11. Lodgment of ten bound cases, &o., by appellant. 12. Hearing of appeal, directions as to original documents. 13. Directions with regard to abatement by death, or defect by bank- ruptcy. 14. Directions with regard to the taxation of costs, &c. Standing Orders applicable to all Appeals peesSbnted to the House OF Lords on or after the 1st day of November, 1876. Standins Ordee I. (Sta/ndiT^ Order I. is only applicable to Decrees, &c., pronounced on and after the 1st day of November, 1876.) Ordered, that, except where otherwise provided by statute, no Time limited petition of appeal be received by this House unless the same be lodged presenting in the Parliament Office for presentation to the House within one year from the date of the last decree, order, judgment, or interlocutor appealed from. In cases in which the person entitled to appeal be within the age of one and twenty years, or covert, non compos mentis, imprisoned, or out of Great Britain and Ireland, such person may be at liberty to present his appeal to the House, provided that the same be lodged in the Par- liament OflSce within one year next after full age, discoverture, coming of sound mind, enlargement out of prison, or coming into Great Britain or Ireland : But in no case shall any person or persons be allowed a longer time, on account of mere absence, to present an appeal, than five years from the date of the last decree, order, judg- ment, or interlocutor appealed against. 636 APPENDIX. Appeals to be signed and certified by connsel. « Order of service." Standing Oeder II. Ordered, that all petitions of appeal be signed, and the reasonable- ness thereof certified, by two counsel who shall have attended as counsel in the court below, or shall purpose attending as counsel at the hearing in this House. Standing Order HI. Ordered, that the " order of service " issued upon the presentation of an appeal for service on the respondent or his solicitor, be returned to the Parliament Office, together with an affidavit of due service entered thereon, withia the time limited by Standiag Order No. V. for the appellant to lodge his printed cases, unless within that period all the respondents shall have lodged their printed cases ; in default, the appeal to stand dismissed. Standing Order IV. Security for ORDERED, in aU appeals that the appellant or appellants do give "'^*^" security to the clerk of the parliaments by recognizance to be entered into, in person or by substitute, to the Queen of the penalty of five hundred pounds, conditioned to pay to the respondent or respondents all such costs as may be ordered to be paid by the House in the matter of the appeal ; and farther, that the appellant or appellants do pro- cure two sufficient sureties, to the satisfaction of the clerk of the parliaments, to enter into a joint and several bond to the amount of two hundred pounds, or do pay in to the account of the Fee Fund of the House of Lords the sum of two hundred pounds : such bond, or such sum of two hundred pounds, to be subject to the order of the House with regard to the costs of the appeal : Ordered, that within one week after the presentation of the appeal the appellant or appellants do pay in to the account of the Fee Fund of the House of Lords the said sum of two hundred pounds, or submit to the clerk of the parUa- ments the names of the sureties proposed to enter into the said bond ; and, in the event of a substitute being proposed to enter into the said recognizance, the name of such substitute ; two clear days' previous notice of the names so proposed for bond and recognizance to be given to the solicitor or agent of the respondent : Ju.-tification of ORDERED, that, in the event of the clerk of the parliaments requiring snUtitutT * justification of the sureties, or substitute, the appellant's agent shall, within one week from the date of an official notice to him to that effect, lodge in the Parliament Office an affidavit or affidavits by APPEAL TO HOUSE OF LORDS. 637 the proposed sureties, or substitute, setting forth specifically the nature of the property in consideration of which they claim to. be accepted as sureties in respect of the bond, or as substitute in respect of the recognizJance, and also declaring that the property in question is unincumbered : Ordered, that, in the event of such sureties not being deemed satisfactory by the clerk of the parliaments, the appellant or appellants shall, within four weeks from the date of an o£B.cial notice by the clerk of the parliaments to that effect, pay into the account of the Fee Fund of the House of Lords the sum of two hundred pounds, to be subject to the order of the House with regard to the costs of the appeal; and, in the event of such sub- stitute not being deemed satisfactory by the clerk of the parliaments, the appellant or appellants shall enter into the usual recognizance in person : Ordeeed, that the said bond and the recognizance (whether entered Period for into by the appellants or by a substitute) be returned to the Parlia- ''*''"'" °^^.'""* "L ^ ^ •' ' and recogni- ment OfiBoe duly executed within one week from the date of the issue zance to thereof to the solicitor or agent of the appellant or appellants. offic'^"*"' On default by the appellant or appellants in complying with the above conditions, the appeal to stand dismissed. Standing Order V. 1. Ordered, that in English appeals the printed cases and the Printed cases, appendix thereto be lodged in the Parliament OfSce within six weeks i™? limited from the date of the presentation of the appeal to the House ; in Scotch and for setting and Irish appeals, within eight weeks ; and the appeal set down for ^"'^ ^^f "^^^^ hearing on the first sitting day after the expiration of those respective periods (or as soon before, at the option of either party, as all the printed cases and the appendix shall have been lodged) ; on default by the appellant the appeal to stand dismissed. 2. Ordered, that in all appeals from Scotland the appellant alone, in Scotch appeals, his printed case or in the appendix thereto, shall Jay before this House a printed copy of the record as authenticated by the Lord Ordinary ; together with a supplement containing an account, without argument or statement of other facts, of the further steps which have been taken in the cause since the record was completed, and containing also copies of the interlocutors or parts of interlocutors complained of; and each party shall in their cases lay before the House a copy of the case presented by them respectively to the Court of Session, if any such case was presented there, with a short summary of any additional reasons upon which he means to insist ; and if there shall have been no case presented to the Court of Session, then feach party shall set 638 APPENDIX. Printed cases to be signed by counsel. forth in Ms case the reasons upon which he founds his argument, as shortly and succinctly as possible. 3. Ordered, that all printed cases he signed by one or more counsel, who shall have attended as counsel in the court below, or shall purpose attending as counsel at the hearing in this House. Standing Order VI. Cross appeals. ORDERED, that all cross appeals be presented to the House within the period allowed by Standing Order No. V. for lodging cases in the original appeal. Expiry of time dnrins; recess. Standing Order VII. Ordered, with regard to appeals in which the periods under Stand- ing Orders Nos. III., IV., V., and VI. expire during the recess of the House, that such periods be extended to the third sitting day of the next ensuing meeting of the House. Abatement or defect. Revivor, &c. Supplemental cases to be delivered in where appeals are revived or parties added. Standing Order VIII. Ordered, that in the event of abatement by death or defect through bankruptcy, an appeal shall not stand dismissed for default under Standing Orders No. III., IV., V., provided that notice of such abatement or defect be given by letter addressed to the clerk of the parliaments, and lodged in the Judicial Office prior to the expiration of the period limited by the standing order under which the appeal would otherwise have stood dismissed. Ordered, that all appeals marked on the cause list of the House as abated or defective shall stand dismissed unless within three months from the date of the notice to the clerk of the parliaments of abate- ment or defect, if the House be then sitting, or, if not, then not later than the third sitting day of the next ensuing sittings of the House, a petition shall be presented to the House for reviving the appeal or for rendering the same effective. Ordered, that where any party or parties to an appeal shall die pending the same, subsequently to the printed cases having been lodged, and the appeal shall be revived against his or her representar tive or representatives as the person or persons standing in the place of the person or persons so dying as aforesaid, a supplemental case shall be lodged by the party or parties so reviving the same respec- tively, stating the order or orders respectively made by the House in such case. APPEAL TO HOUSE OP LORDS. 639 The like rule shall be observed by the appellant and respondeat respectively, where any person or persons shall, by leave of the House, upon petition or otherwise, be added as a party or parties to the said appeal after the printed cases in such appeal shall have been lodged. Standing Order IX. Ordered, that when any petition of appeal shall be presented to this Scotch appeals. House from any interlocutory judgment of either division of the Lords Certificate of of Session in Scotland, the counsel who shall sign the said petition, or ^n^e ^f opinion two of the counsel for the party or parties in the court below, shall to be signed by sign a certificate or declaration, stating either that leave was given by appeals, that division of the judges pronouncing such interlocutory judgment to the appellant or appellants to present such petition of appeal, or that there was a dijBference of opinion amongst the judges of the said division pronouncing such interlocutory judgment. Standing Order X. Ordered, that the clerk of the parliaments shall appoint such Taxation person as he may think fit as taxing officer, and in all cases in which this House shall make any order for payment of costs by any party or parties in any cause without specifying the amount, the taxing officer may, upon the application of either party, tax and ascertain the amount thereof, and report the same to the clerk of the parliaments or clerk assistant: And it is further ordered, that the same fees shall be demanded from and paid by the party applying for such taxation for and in respect thereof as are now or shall be fixed by any resolution of this House concerning such fees; and the taxing officer may, if he think fit, either add or deduct the whole or a part of such fees at the foot of his report : And the clerk of the parliaments or clerk assistant may give a certificate of such costs, expressing the amount so reported to him as aforesaid, and in his certificate regard shall be had to the sum of £200 where that amount has been paid in to the account of the Fee Fund of the House as directed by Standing Order No. lY. ; and the amount in money certified by him in such certificate shall be the sum to be demanded and paid under or by virtue of such order as afore- said for payment of costs. 640 APPENDIX. APPENDIX A. Certificate of Sufficiency of Sureties, &c. Lodged in the Parliament Office on the day of 18 . In the House of Lords. " A. and others v. B. and others." In compliance with Standing Order No. IV., I (we) submit the names of (/mH name) of (address) and (full name) of (address) I as fit and proper sureties K ^^^^ ^^^ ^^J bond j \ or, as a fit and proper substitute ( ( recognizance J thereby required : and I (we) certify that, in < ^^ >• belief, the said (full name) and the said (full name) ) jg f worth upwards of { iiz } -- ^-^ ^^°^« 1 *Sf } j"^* ^^^*^- This certificate may be signed by the Couiitrt solicitor or agent of the appellants. I (we) certify that a copy of the above certificate, with two clear days" notice of the intention to lodge the same in the Parliament OfSce, has been served on the solicitors or agents of the respondents. To be signed by the London solicitor or agent of the appellants. APPENDIX B. Directions for Bindino Printed Cases and Printed Copies of the Appeal foe the use of the Law Lords. 1. Ten copies bound in purple cloth ; two of the ten to be inter- leaved, as regards the cases only. 2. vShort title of cause on the back. 3. Label on side, stating short title of cause and contents of the volume, thus : — " A. and others ». B. and others." Printed copy of the appeal. Appellants' case. Respondent B's case. Respondent C's case. Appendix (consisting of the appendix lodged by the appellant, and the additional documents, if any, lodged by the respondent). APPEAL TO HOUSE OP LOEDS. 641 The volume to be indented, and the names of the parties written on the indentations to their respective cases. The bound copies to be lodged immediately after the respon- dents' cases are delivered in. In dealing with bulky cases, it may be found advisable to bind the appendix as a separate volume. It is the duty of the appellants' agent to carry out these direc- tions. APPENDIX C. Petition for Extension of Time to lodge Cases, &o. (To he engrossed on foolscap jpaper, and lodged in the Parliament Office, if assented to hy respondent's agent. If not assented to, a copy, and two clear days' notice of intention to present, must he given to respondent's agent, and the original petition and a duplicate thereof, lodged in the Parliament Office. ) In the House of Lords. {Insert Short Title of Cawse.) To the Eight Honourable the House of Lords. The humble petition of the appellant Sheweth, That your petitioner presented petition of appeal on the day of complaining of (insert dates of Orders or Inter- locutors complained of). That the tinie allowed by Standing Order No. V. ( (or) extended by your Lordships' order oFthe (state date) ) for the appellant to lodge his printed cases and the appendix will expire on the (state date). That your petitioner (set forth cause of delay). Your petitioner therefore humbly prays that your Lordships will be pleased to grant him an extension of time until (specify the date to which extension of time is required) to lodge his printed cases, and the appendix, and set down the cause for hearing. And your petitioner will ever pray. Agents for the appellant. We consent to the prayer of the above petition. Agents for the respondents. 2 T 642 APPENDIX. APPENDIX D. Form of Notice to the Eespondent oe his Agent with eegaed to THE Application of the Appellant for eepatment of the sum OF £200 UNDER Standing Order No. IV. In the House of Lords. A. Appellant. B. Eespondent. (Appeal lately depending in the House of Lords.) Take notice that the above appeal has been dismissed for want of prosecution, and that the appellant intends to apply to the clerk of the parliaments for repayment of the sum of £200 paid by him into the House of Lords Pee Fund under Standing Order No. IV. The respondent is required by the rules of the House, if any costs have been incurred by him in respect of the appeal, to lodge with the taxing officer of the House a copy of his bill of costs within four weeks from the date of the service of this notice upon the respondent or his agent, if the House of Lords be then sitting, or not later than the third day on which the House shall sit after the expiration of the said four weeks ; and in default, the clerk of the parliaments will be at liberty forthwith to repay to the appellant the said sum of £200. To APPENDIX E. Taxation of Costs. Costs taxable by the Taxing Officer of the House of Lords, and Mode of Proceeding. Private Bills, The costs taxable by the taxing officer of the House of Lords are : — Ordcrs"''&c. -^^^ costs, charges, and expenses, including the expenses of -witnesses, of and incidental to the preparation, bringing in, and carrying through Parliament any railway or other local and personal bill and any estate or other private bill, or any Provisional order or provisional certificate, and the costs, charges, and expenses incurred in opposing any such bill, provisional order, or provisional certificate. — Such costs are taxed either under the provisions of the 12 & 13 Vict. c. 78, and the 28 & 29 Vict. c. 27, or upon a requisition of one of Her Majesty's Principal Secre- taries of State, or hy the Local Government Board, or upon a requisition from either of the Courts in England, Ireland, or Scotland, or at the request of the parties interested in the same. APPEAL TO HOUSE OF LORDS. 643 All costs, charges, and expenses of or incidental to appeal cases in Appeal cases. the House of Lords. — Such costs are taxed under an order or judgment of the House, and in pursuance of a standing order, or upon a requi- sition from either of the Courts, or at the request of the parties in- terested in the same ; such costs being taxed either as between Pa/rty and Party, or as between Solicitor and Client, as the case may require. All costs, charges, and expenses, including the expenses of witnesses. Expenses of of and incidental to establishing claims to peerages and claims to "^'^"^^^e^' .... claims to vote. — Stich costs are taxed upon a requisition from either of the peerages, &c. Courts or at the request of the parties interested in the same. The Mode of Proceeding. When the costs are to be taxed under the provisions of 12 & 13 Vict, c. 78, a copy of such costs, with an indorsement thereon stating that a copy of such costs had been duly served upon A. and B., who are the parties liable to pay the same, and requesting an appointment to tax, must be deposited in the taxing ofSce of the House of Lords, and due notice of an appointment to tax will be sent from the taxing office to each party. When costs are to be taxed under the provisions of 28 & 29 Vict, c. 27, a copy of such costs (with an indorsement thereon stating that the provisions of section 3 of the above Act so far as the same relate to the de- livery of the hill of costs to the party chargeable with the same, have been complied with, and requesting an appointment to examine and tax the same) must be deposited in the taxing office ; and such application must be made to the taxing officer within the time limited by the said section of the said Act. The bills of costs which are referred by either of the Courts are usually exhibits in the court by which they are referred, in which case there is endorsed on the back of the original bill a requisition in the following words : The Master of the Bolls, Chief Clerk, Taxing Master of the Chancery Division of the High Court of Justice (or as the case may be) requests the Taxing Officer of the House of Lofds to tax the within bill of costs, and to report to him the amount at which he has allowed the same. (Signed) A. B. Notice. Any parliamentary agent, attorney, solicitor, or other person apply- ing for the taxation of any bill of costs, charges, and expenses incurred by him in promoting or opposing any private bill, provisional order, or provisional certificate in Parliament, is desired to deposit in the office of the taxing officer, at the time of making such application, a copy of such bill of costs, charges, and expenses, with the several 2 T 2 644 APPENDIX. items added up and the amount ascertained and set out, together with a declaration signed by him stating that such hill of costs, charges, and expenses has heen duly delivered to the parties charged therewith (naming the parties), in conformity with the Taxation of Costs Acts, 1847 and 1849, or the Act for Awarding Costs, 1865, as the case may be. Any application for such taxation should, in the first instance, he made to the taxing officer of the House in which the bill to which the same relates commenced, or opposition had, or in which costs have been awarded in pursuance of the Act for Awarding Costs, 1865, Taxing Office, House of Lords, February 1st, 1876. Costs relating to Appeals taxed under a Judgment oe Oedie of the House and Standing Order No. X. Applications must be made by depositing in the office of the taxing - officer a copy of the bill of costs, with an endorsement thereon stating that " a copy of this bill of costs was on the. day of served upon A.B., the agent for the appellant or the respondent, as the case may be, and we hereby request that an appointment may be made to tax the same. Dated this day of 187 . A.B., Agent for the appellant or respondent, as the case may be. To the Taxing Officer of the House of Lords." Note. — The taxing office is open throughout the session, and from the first Monday in the month of December in each year. Taxing Office, House of Lords, B. S. K. ADAM, 10th June, 1879. Taxing Officer. Printed forms of bills of costs, to be adopted by attorneys and solicitors having charge of appeal cases in the House of Lords may be obtained at the office for the sale of printed papers. House of Lords. FORMS. 645 Affidavit for Habeas Coepus to assign Errors. In the High Court of Justice, Queen's Bench Division. \_LincolnsMre.] — A.B., Plaintiff in Error, against The Queen, Defendant in Error. I, CD., of , make oath and say : — 1. That at [the general quarter sessions of the peace], held at , in and for the county of , A.B. was convicted upon an indict- ment agaiast him for , and sentenced by the said Court of [quarter sessions], to be [imprisoned, or as the case may be]. 2. That a writ of Error has been granted by the Attorney-General and issued, returnable in this Court on the day of 188 , at [as the case may Be]. And that it is necessary that the said A.B. should be brought before this honourable Court in order that he may assign errors on the return of the said writ. Sworn, &c. [C. 0. Eorms, 128. ( 647 ) INDEX. ABATEMENT, plea in : see Plea. ACQUIESCENCE, wlien a disqualification in a relator, 151-154 effect of, in cases of prohibition, 446-449 ACQUITTAL, is final in cases of criminal information, 85 ACTION, by person applying for criminal information, 55, 56 where there is a remedy by, mandamus not granted, 233, 234 ADMIEALTY, whether mandamus lies to lords of, 349 prohibition lay to Court of, 432 ADMISSION to office, in what cases mandamus granted to compel, 279-282 refused to compel, 283 effect of mandamus to compel, 289, 290 ADMISSIONS OP PACT, 417 ADVOCATE of Court of Arches, mandamus to admit, not granted, 283 APPIDAVITS, title of, when applying for criminal information, 41 what may be deposed to, 41, 42 before whom to be sworn, 42 time and place of swearing to be expressed, 42 made abroad, 42 form of, 42 must state deponent's description and abode, 42 made by more than one deponent, 43 filing, 43 striking out scandalous matter, 43 interlineations, alterations, or erasures in, 43 of illiterate or bUnd persons, 43 defect in title, or other irregularity, 43, 44 stamping, 44 office copy admissible, 44 before whom, not to be sworn, 44 filing after time limited, 44 order made before affidavit made and filed, 44 648 INDEX. AFFIDAVITS— conimweci. leave to file additional, 44 of service, 44 what they should contain on application for criminal information, 45-51 when an exculpatory affidavit not necessary, 46 renewed application for criminal information on amended, 51-53 in mitigation and aggravation after conviction on criminal information, 93-96 title of, on application for quo warranto, 162 what they should contain in appUcations for quo warranto, 162-165 deficiency in relator's, supplied by defendant's, 164 of prosecutor, in mandamus, 365, 366 on application for prohibition, 487, 488 Forms : affidavit of service of notice in cases of criminal information, 499 personal service of order nisi, 500 service not personal, 501 service of subpoena to answer information, 513 copy information on defendant in prison, 516 summons to admit to bail, 524 for habeas corpus to bring up prisoner to be charged with attachment, 553 personal service of writ of, 554 for habeas corpus to assign errors, 645 service of subpoina, 554 service of order, and master's allocatur and demand, and non-payment of money, to estreat recognizance, 554 AGGRAVATION, affidavits in, after conviction on criminal information, 95, 96 ALDEEMAN, quo warranto lies in respect of office of, 123 mandamus granted to elect, 276 admit and swear in, 280 restore, 284 ALMSMAN OR ALMSWOMBN, mandamus to restore, not granted, 287 AMENDMENT of criminal information, 71, 72 of variances at trial of criminal information, 83 in cases of qxu) warranto information, 175, 182, 183, 198 in cases of mandamus, 379, 412, 416 AMERICAN LAW as to quo warranto informations against corporations, 120 as to discretionary grant of prohibition, 446 AMOTION, where necessary, before a quo warranto will be granted, 144, 145 return to mandamus justifying, 395 et seq. from municipal office, return justifying, 398-402 customary power of, 402 facts justifying, must be stated in return, 402, 403 INDEX. 649 AMOTION— coBimaed by part of governing body, 403 irregular, but justifiable, 403 cause of, need not be shewn where there is a visitor, 403 power of, incident to corporations, 395 APPEAL, none from decision of Divisional Court in granting or refusing criminal information, 57 or as to costs, 100 to House of Lords, 106, 107 from ail orders of Divisional Court in civil matters, 167, 272 exists in quo warrcmto, 210-213 where there is a remedy by, mandamus not granted, 236, 237 in cases of mandamus, 373 in cases of prohibition, 481, 496 See CouKT of Appeal. APPBAEANCE of defendant to criminal information, 59 compelling appearance of defendant, 59, 60 outlawry for non-, 62-65 notice to appear in pursuance of undertaking in enlarged order, form of, 511 of defendant to jmo warranto information, 175 APPOINTMENT to office, in what cases compelled by mandamus, 278 in what case mandamus refused, 275, 276 ARCHBISHOP, duty of, under 25 Hen. 8, c. 20.. 353 mandamus refused to compel, to hear objections against confirmation of person chosen bishop, 353 compellable by mandamus to hear appeal of curate against revocation of his license by bishop, 354 ARCHDEACON, mandamus granted to admit, 279 restore registrar of, 285 ARREST, warrant of, 513 notice of bail to avoid, 514 of judgment in cases of criminal information, 90 warrant of, after conviction and recognisances estreated, 539 on conviction, by default to hold defendant to bail, 540 ASSAULT, criminal information for, 22 ASSESSORS to revise burgess lists under 7 Wm. 4, and 1 Vict. c. 78, mandamus to elect, granted, 277 ATTACHMENT of defendant for non-appearance to criminal information, 61, 62 form of writ of, to answer an information, 517 writ of, for contempt, 553 650 INDEX. ATTACHMENT— cowimitei. in case of disobedience to mandamus, 424 against whom it issues, 424, 425 to proWbition, 497 for contempt, rules as to, 601-603 ATTORNEY, mandamus granted to admit to practise in inferior Court, 281 of a corporation, mandamus granted to restore, 285 ATTORNEY-GENERAL, right of reply in cases of criminal information, 82 fiat of, necessary before proceedings in error, 100, 101 warrant of tales from, 82 what informations must be filed by : see Bx-officio Infobmations. AUDITORS OF ACCOUNTS, mandamus to elect, granted, 277 BAIL, warrant to admit to, on information filed, 514 notice of, to avoid arrest, 514 summons to admit to, 523 affidavit of service of, 524 habeas corpus to bring up prisoner to be bailed, 523 order to admit prisoner to, 524 notice of, upon order of judge, without habeas corpus, 525 upon habeas corpus, 526 BAILIFF, of borough, &c., quo warranto in respect of office of, 123 mandamus granted to elect, 276 admit or swear in, 280 of a manor, mandamus to admit, not granted, 283 BANKRUPTCY commissioners, mandamus to, 297 whether cause of amotion from municipal office, 397 BAR, trial at, 79, 80 BARRISTER, mandamus to admit, not granted, 283 restore, not granted, 287 trying election petition, mandamus to corporation to pay expenses of, 327 BEDFORD LEVEL CORPORATION, quo warranto does not lie for office of registrar of, 129 mandamus granted to restore receiver of, 286 admit registrar of, 282 BISHOP, mandamus to, to license curate, 353 decision of, as to personal fitness, not interfered with, 353 mandamus to compel, to allow inspection of register of presentations, 353 INDEX. 651 mSRO?— continued. has a discretion as to issuing a commission, under 3 & 4 Vict. c. 86 . . 353 wliere commission issued, and complainant desires to proceed, mandamus granted to, 354 BLASPHEMOUS LIBEL, ex-officio criminal information for, 7 form of iuformation, 505 BLIND PBESONS, affidavits of : see Affidavits. BOAED : see Local GfovEBNMBNT Board ; Local Boaed ; District Board ; Burial Board. BOND, security for costs by, 208 BBIBEET, criminal information for, 7, 24 at a parliamentary election, form of criminal information for, 507 BEIDGBMASTEE, quo warranto in respect of office of, 123 BURGESS, quo warranto in case of, 124 mandamus granted to elect, 276 admit or swear in, 280, 325 restore, 284, 325 BUEIAL BOAED, whetlier quo warranto lies in respect of membership of, 125 mandamus to compel maintenance of burial-ground, 338 BYE-LAWS of municipal corporation, evidence of, 193 CANONS, cathedral, mandamus to elect, 277 admit, 279 mandamus not granted where there is a visitor, 286 CAPIAS to answer form of writ of, 517 ad satisfaciendum after judgment, form of, 517 cvm, proclamiatione, form of, 518 into a foreign country, 519 utlagatum, writ of, 520 special cum breve de inquirendo, 520 CASE, where justices compelled to state a, 319, 320 See also Special Case. CATHEDEAL, mandamus not granted to restore canon of, where there is a visitor, 286 or chorister of, where there is a visitor, 286 or master of grammar-school annexed to it, where there is a visitor, 286, 287 652 INDEX. CENTRAL CRIMINAL COURT, mandamus not granted to, 295 prohibition to, 432 CERTIFICATE of criminal informations filed, form of, 511 of findings, &c., at trial by associate, clerk, or master, 84 form of, 535 of allowance of writ of error, 101 memorandum of allowance, 549 of conviction from clerk of assize, 539 CHAMBERLAIN, mandamus to elect, granted, 276 admit or swear in, granted, 280 CHAPELWARDEN, mandamus granted to admit, 282 CHAPLAIN of workhouse, mandamus granted to appoint, 278 of a gaol and house of correction, mandamus granted to appoint, 278 . of a college, rnandamus granted to admit where no visitor, 279 but not where there is, 283 mandamus to restore refused where there is a visitor, 287 CHARTERS, evidence of, 194 should be brought before Court where necessary, 366 discretion as to surrender of, 329 CHARTERED COMPANY, mandamus as to election of master and wardens, 277 to compel division of property not granted, 329 CHURCHWARDENS, quo warranto does not lie for office of, 127, 128 mandamus granted to elect, 277 appoint, 278, 340 admit 281, 340 restore, 285 compel to call a meeting for purposes of a rate, 341 and for other purposes, 343 compel repayment by, of money charged on rates, 342 produce books at scrutiny of a poll, 342 power of, to determine hour of meeting, 342 mandamus to compel old, to deliver parish books to new, not granted, 343 CITIZEN, mandamus granted to restore, 284 CITY OFFICES, mandamus to restore to, 286 CLERK of County Court, qiLO warranto in case of, 124 of the peace, quo warranto in case of, 124 mandamus granted to admit, 281 restore, 285 INDEX. 653 CL EEK — continued. of poor law guardians, quo warranto in case of, 124 mandamus granted to elect, 277 admit, 281 restore, 286, 287 of vestry, quo warranto in case of, 124 to a local government board, quo warranto does not lie for, 128 to a school board, quo warranto does not lie for, 128 of commissioner of land tax, quo warranto does not lie for, 128 town, mandamus granted to admit, 281 restore, 285 of land tax commissioners, mandamus to elect, granted, 277 admit or swear in, granted, 281 of fines in marcbes of Wales, mandamus granted to adinit, 281 of trustees under General Turnpike Acts, mandamus granted to admit, 281 parisb, mandamus granted to admit, 282 of city works, mandamus granted to restore, 286 and comptroller of Bridge House estates, mandamus granted to restore, 286 to company of butchers, mandamus to restore refused, 287 to justices, mandamus to restore refusei^, 287 to dean and chapter, mandamus to restore refused, 287 in office of Gustos Brevium, mandamus to restore refused, 287 vestry, mandamus to restore, refused, 287 See Town Cleek. COLLECTOR of rates, mandamus granted to restore, 286 of excise, mandamus to, 359 COLLEGE: see Visitor, Fellow, Master, EB&njs Peoeessok, Libbabian, SoHOLAK, Chaplain, Physicians. COLOURABLE ELECTION, distinguished from illegal election, 290-293 COMMISSIONERS, local improvement, quo warranto in case of, 124 pavement, g«o warranto in case of, 125 under Local Drainage Act, mandamus gr£^nted to admit, 282 of sewers, mandamus to compel performance of duties by, 338, 339 drainage, mandamus to compel performance of duties by, 338, 339 land tax, mandamus to elect and admit clerk of, 339 equally assess land tax, 339 inolosure, mandamus to inquire into existence of a modus, 340 prohibition to, 433 tithe, mandamus to determine claim to exemption, 340 prohibition to, 433 of woods and forests, whether mandamus lies to, 349 of customs, whether mandamus lies to, 349, 350 of inland revenue, whether mandamus lies to, 350 of excise,.whether mandamus lies to, 350 election, whether mandamus lies to, 350, 351 654 INDEX. COMMISSIONERS— coji«m«e(?. railway, mandamus to state a case, 351 prohibition to, 434 improvement, prohibition to, 433 Irish land, prohibition to, 433 COMMONEE, of a borough, mandamus granted to admit, 280 COMPANY, city, quo warranto in case of master of, 124 liveryman of city, mandamus granted to admit, 282 freeman of, mandamus granted to admit, 282, 336 restore, 286 clerk of masons, mandamus granted to restore, 286 of traders to Bermudas, mandamus granted to restore member of, 286 of Sadlers, mandamus granted to restore assistant of, 286 mandamus where land taken compulsorily by, 333 to admit or swear in director of a chartered, 282, 333 give inspection of register, 333 register stock in name of married woman, 333 pay money recovered against its treasurer, 334 whether mandamus grantable to register transfer or rectify register, 334 mandamus to compel directors to make a caU, 334 not granted to compel taking seal off register, 335 not granted to compel registration of new name after complete registration, 335 not granted to compel private, to grant inspection of accounts, 335 to compel dock and canal company to perform statutory duties, 335, 336 COMPENSATION, when mandamus to give, not granted, 339 inquiry, mandamus to sheriff to execute, 355 CONSEEVATOR (fishery), quo warranto in case of, 124 CONSOLIDATION of several orders nisi in quo warranto, 171 CONSTABLE, of borough, township, or parish, quo warranto in respect of office of, 123 mandamus to elect, granted, 277 admit or swear in, 281 restore, 284 CONSULTATION, writ of, in cases of prohibition, 498 CONTEMPT, rules as to attachment for, 601-603 COPY : see Office Copy. COEPORATION, quo warranto information against, can only be filed by Attorney-General 117-119 does not lie in case of a private, 129 INDEX. 655 COUPOBATIO'S— continued. mandamus granted to restore steward of, 284 and sword-bearer to, 285 to compel af&xing seal of, 329 See Municipal Coepoeations. trading, mandamus to divide property of, not granted, 329 See also Company. CORPORATE OFFICE, meaning of, in Municipal Corporations Act, 1882 . . 140, 141 form of mandamus to elect to municipal, 563 amotion from, 398-402 See Amotion and Peocbdueb (Mandamxts). CORONER, quo wa/rranto lies in respect of office of, 123 mandamus granted to elect, 277 mandamus to compel performance of duty by, 358 prohibition to, 483 COSTS, of successful prosecutor in cases of criminal information, 98 defendant in cases of criminal information, 98-100 taxation of, 100 no appeal as to, in cases of criminal information, 100 of apprehension, payment of, 106 on discharging order nisi in juo warranto, 168 on making absolute order nisi in quo warranto, 168-170 security for, in gito warranto, 170, 208 in case of disclaimer, 175, 207 under 9 Ann. c. 20, 204, 205 in discretion of Court, 205, 206 what is meant by absolute discretion as to, 497, 498 taxation of, 207 against solicitors, 207 security for, 208 by bond, 208 higher and lower scale, 208 notice of taxation, 209 gross sum for, 210 of discovery in aid of execution, 220 of appeal to Court of Appeal, 220 security for, 220 security for, in mandamus, 371 Order lxv. r. 7, as to, 606-615 table of court fees to be taken in Crown Office Department, 615-618 COUNCILLOR (TOWN), quo warranto lies in respect of office of, 123 mandamus granted to elect, 276 admit or swear in, 280 restore, 284 656 INDEX. COUNSEL, motion for criminal information must be made by, 52 COUNTY COURTS, mandamus formerly granted to judges of, 298 rule or order now substituted, 298 prohibition to, 475-482 : see Pbohibition. COUNTY COURT JUDGE, criminal information against, 26 quo warranto in respect of oflSce of, 123 COURT OF APPEAL, writ of error returnable before, in case of criminal information, 100 judgment of, in case of error, 106 See Eeboe. powers of, in cases of qiio warranto, mandamus and prohibition, 210-21 appeal is a rehearing, 210 brought by notice of motion, 210 service of notice of motion, 210 length of notice of motion, 210 powers of, as to fresh evidence, &c., 210, 211 judgment of, 211 may order new trial in civil cases, 211 cross appeal unnecessary, 211 but respondent should give notice of intended objections, 211 length of such notice, 212 entry of appeal, 212 ex parte applications to, 212 manner of adducing evidence in, 212 printing evidence, 212, 213 question as to judge's ruling, how settled, 213 time within which appeal must be brought, 213 stay of execution, 213 when applications must be made first to Court below, 213 how applications to be made to, 214 appeal to, from all orders of Divisional Court in civil matters, 167, 272 appeal to, from grant or refusal of prohibition to county courts, 481, 482 notice of motibn on appeal to, 561 COURTS OP JUSTICE, modes of punishing libeUous attacks upon, 9 COURT LEET, quo warranto for holding, 126, 129 mandamus granted to, 298 COURT BARON, quo warranto does not lie for office of steward of, 128 mandamus to admit steward of, not granted, 283 sed vide, 289 CRIMINAL INFORMATIONS, 1-107 ex-officio, 4-11 not ex-officio, 12-36 INDEX. 657 CRIMINAL INFORMATIONS— coraimMeci. ex-offioio — Attorney-General may file for any misdemeanor, 4 or Solicitor-General during vacancy of Attorney-Generalship, 4 for what kinds of offences, 5 instances, 5-7 for what classes of libels, 7 •blasphemous, 7 obscene, 7 seditious, 8, 9 on Houses of Parliament, 9 courts of justice, 9 foreign rulers, 9 formerly in cases where Attorney-General would not now interfere, 9, 10 leave to file not given, 10 Attorney-General may first give defendant opportunity of shewing cause, 10 provision as to fiat in newspaper libel, &o.. Act, 1881, does not apply, 10 quashing, 10, 11 may be filed though a private person has already obtained one against same defendant, 11 not ex officio — practice before 4 & 5 Wm. & M. c. 18 .. 12 effect of 4 & 5 Wm. & M. c. 18 .. 12, 13 grant of, discretionary, 13 general rule as to class of cases in which granted, 13, 14 for libels, old practice, 14, 15 modem practice, 15, 16 libels on peers, &c., in their private capacity, 17 the dead, 17 where applicant resident abroad, 17, 18 application merely to obtain apology, 18, 19 for libels on members of Parliament, 19 magistrates, 19, 20 clergy, 20 town clerk, 20 for other forms of libels, 20 libels on a body of persons, 20 for riotous proceedings, 21, 22 for assault, 22 for provoking to breach of peace, 22 for attacks on administration of justice, 23 for attempts to defeat justice, 23 for bribery, 24 for other offences, 24-26 against holders of public offices, 26-33 for offences committed abroad, 33 for false return to a mandamus, 421 not for' offences against the State, 33 2 u 658 INDEX. CBIMINAL INFORMATIONS— co««mMe(i. grounds for refusing information, 33-36 procedure to obtain, 37-57 : see Pbocbdukb (CEiMisrAL Ikfobmatidn). the information and subsequent pleadings, 58-74 : see Pbocedube (Cbiminal Ikfoemations). procedure from close of pleadings, 75-85 : see Peoceduee (Ceimmal Infoemations). proceedings subsequent to conviction, 86-107 : see Pbocedube (Cbi- MiNAL Infoemations). forms of, informal, 502-510 CROSS APPEAL, unnecessary, 211 procedure substituted for, 211 CROWN OFFICE RULES, 566-605 CURATE, second, mandamus to license refused, 279 perpetual, mandamus to admit, granted, 279 of chapel donative, mandamus to restore, granted, 285 CUSTOMARY COURTS, mandamus granted to, 299, 300 to compel admission, 299, 300 gusere, whether before payment of fine, 299 not where previous fine unpad, 299 refused to admit devisees in trust for infent heir, 300 granted to compel entry on rolls of deed under 3 & 4 Wm. 4,c 74, s. 53.. 300 compel allowance of inspection, 300 refused where claimant barred by time, 300 tenements forfeited, 300 deed not prepared in accordance with valid eastern, 300 not granted where manor belongs to Crown, 301 CUSTOMS, whether mandamus lies to commissioners of, 349 Ecclesiastical Court prohibited from trying existence of, 465 when question as to, not ground of prohibition, 469 DAMAGES, in cases of mandamus, 417, 418 DEAD, criminal information for libel upon, 17 DEATH of prosecutor in mandamus, effect of, 419 of person required to make return to mandamus, effect of, 408 DEFENCES to criminal information, 67 DEGREE at university, mandamus to admit to, 282, 287, 288, 352 INDEX. 659 DELAY, effect of, in applications for criminal informations, 39, 40 in applications for quo warrcmto, 135-138 mandamus, 250, 251 prohibition : see Acquiescence DEMAND AND EEFUSAL, necessary to entitle to mandamus, 247-249 DEMUEEER to criminal information, 67-69 form of, 527 to defendant's plea, form of, 529 joinder in, by prosecutor, 529 defendant, 529 rules applicable to, 70 in cases oiquo warranto, 179, 180 in cases of mandamus, 416 judgment for want of joinder in, 543 judgment on, after argument, 544 DEPOSITION, when admissible evidence at trial, 197 DEPEIVATION of oflSce, mandamus not granted to bring about, 289 DEPUTY, mandamus to appoint or admit, 274, 281 of parish clerk, mandamus to admit not granted, 283 DERIVATIVE TITLE, quo wwrranto on ground of invalidity of, 138, 139 DIEECTOES of chartered company, mandamus granted to admit, 282, 333 mandamus to, to make call on shareholders, 334, 335 of savings banks, mandamus to, 359 DISAVOWING return to mandamus, 408 DISCLAIMER, in quo warranto, 175 form of, 559 costs in case of, 175, 207 judgment of ouster on, 560 DISCOVERY, not allowed in cases of criminal information, 82 in cases of a civil nature, 191, 192 in aid of execution, 219, 220 DISCRETION, of Court, grant of criminal information is in, 13 quo wa/rranto information is in, 122 manda,mus is in, 223 whether grant of writ of prohibition is in, 441 et seq. mandamus to exercise, 260 arbitrary or unjust rules for exercise of, 261 exercise of, maliciously, or from interested motives, 262 9 TT 9 660 INDEX. DISCRETION— conimwei. compulsory exercise of, 262 distinction between particular and general, 262, 263 of Court as to costs, 205, 206, 497, 498 mandamus not granted to review exercise of, by quarter sessions, 307 or justices, 317 DISQUALIFICATION, at time of election, quo warranto in respect of, 140 subsequent to election, quo warranio in respect of, 142, 143 course to be pursued by town council in case of, 14 of relator in quo warranto, 151-157 DISTRESS, where there is a remedy by, mandamus not granted, 235 warrants, mandamus to justices to issue, 312, 313 DISTRICT BOARD, mandamus to compel repair of road, granted, 338 pay proportionate amount of expenses for repair of street, 338 DOCUMENTS, mandamus to compel inspection of public, 265-268 DRAINAGE, mandamus to compel local board to provide a proper system of, 337 commissioners, mandamus to compel performance of duties by, 338, 339 BAST INDIA COMPANY, mandamus to, 345, 346 ECCLESIASTICAL COURTS, mandamus granted to, 296, 297 prohibitions to, 463-470 : see Prohibition. ELECTION, when it may be questioned by quo warranto, 140, 141 when questionable only by election petition, 140, 141, 158, 159 to office, in what cases mandamus granted to compel, 276-278 in what cases mandamus refused, 275, 276 mode or times of, will not be prescribed by mandamus, 277 distinction between colourable and illegal, 290-293 municipal, effect of not holding at proper time, 323 form of mandamus to compel holding of municipal, 563 commissioners, whether mandamus lies to, to compel grant of certificate of indemnity, 350, 351 obtained by fraud, corporation cannot itself remove on account of, 402 ELECTION PETITION, cases in which title to office can only be questioned by, 140, 141, 158, 159 EQUITY, where there is a remedy in, mandamus not granted, 235, 236 ERROR, proceedings in, in cases of criminal information, 100-107 Bee Pboobdubb (Cbiminal Informations). form of writ of, to reverse outlawry, 521 form of assignment of, upon judgment in outlawry, 522 INDEX. 661 BEEOE — continued. joinder in, upon judgment in outlawry, 522 recognizance to prosecute writ of, 546 assignment of errors, form of, 546 joinder in, 547 Attorney-General's fiat for writ of, 548 form of writ of, 548 memorandum of allowance of writ of error, 549 statement of some particular ground of error to be indorsed on copy of memorandum, 549 appeal substituted for, in civil cases, 210 ESTEBATING EEOOGNIZANCE : see EBCoaNiZANOB. EVIDENCE, of witnesses in civil cases, 193 documentary, 193-195 minutes of town council, 193 bye-laws of town council, 193 charters of town council, 194 other documents, 194 production of original documents, 195 writs, records, pleadings, &c., 195 mode of giving, at trial, 195-198 when deposition admissible, 197 Court of Appeal may hear fresh, 210, 211 how adduced in Court of appeal, 212 printing, 212, 213 EXCISE, whether mandamus lies to commissioners of, 350 mandamus to collector of, 359 EXCULPATOEY AFFIDAVIT : see Affidavit. EXECUTION, stay of, how obtained, 213 in civil proceedings, 214-220 by sequestration against a corporation, 219 discovery in aid of, 219, 220 where there is a remedy by, mandamus not granted, 235 EXIGENT, before conviction, writ of, 519 with allocatur, writ of, 519 after judgment, 521 EX-OFPICIO INFOEMATIONS, criminal, 4-11 quo warranto, 117-119 by whom filed, 4, 117 FAIE, quo warranto in respect of, 129 662 INDEX. FALSE EBTUEN TO MANDAMUS, action for, 420 criminal information for, 421 PEES, table of Court, to be taken in Crown Office Department, 615-618 FELLOW OP A COLLEGE, quo warranto in respect of office of, 130, 131 mandamus to elect refused where there is a visitor, 277 restore refused where there is a visitor, 287 admit refused where there is a visitor, 279 of College of Physicians, mandamus to restore, not granted, 287 PEERY, quo wa/rranto in respect of, 127 PIAT, provision in Newspaper Act of 1881, does not apply to ex-ojffkio informa- tions, 10 nor to informations filed by order of Court, 38, 39 necessary before proceedings in error, 100, 101 PILING, information may be filed by Attorney-General without leave, 10 leave not given to Attorney-General to file, 10 of affidavits : see Affidavits. of criminal information, 59 certificate of, 511 of quo warranto information, 175 of return to mandamus, 409 certificate of findings, &c., at trial, by associate, 84 POBEIGN ATTACHMENT, custom of, 473, 474 POREIGN RULERS, criminal informations for libels upon, 9 FORMS : see under the varioiis titles. FREEMAN, quo warranto in case of, 124 mandamus granted to admit, 280, 325, 326 FRIENDLY SOCIETY, mandamus to secretary of, 360 GAOLER, quo warranto in case of, 124 mandamus to compel delivery up of body of deceased prisoner, 358, 359 him to receive prisoner, 359 GOVERNOR of gaol, mandamus granted to restore, 286 GRAMMAR SCHOOL, endowed, mandamus granted to restore master of, 285 and under master, 285 but not if annexed to a cathedral where there is a visitor, 286, 287 GUARDIANS (POOR LAW), quo warranto lies in respect of, 125, 126 INDEX. 663 GUARDIANS (POOE hKW)— continued. mandamus granted to elect, 277, 336 elect clerk to, 277 admit clerk to, 281 restore clerk to, 286 compel them to appoint chaplain, 336 obey order of justices, 336 pay money, 336 allow inspection of accounts, 336 appoint master, and auditor, 336 account to poor law auditor, 336 GUILTY, plea of, to information, 67 form of, 530 HBAESAY, in affidavits, 165 HEBDOMADAL COUNCIL, decision of, in revising register of residents, may be reviewed on mandamus, 352, 353 HIGH STEWARD of a borough, mandamus granted to admit, 280 HIGHWAY, when jastices compellable to direct indictment for non-repair of, 316 HOSPITAL, quo warranto does not lie in respect of a private, 129 surgeon of, mandamus to admit, not granted, 283 restore, not granted, 287 HOUSE OP LORDS, appeal to, 106, 107 procedure, 626-644 ILLITERATE, affidavits of: see Affidavits. IMPRISONMENT, after sentence, how duration of, to be reckoned, 105, 106 payment of costs of apprehension, 106 INCOMPATIBLE OFFICES, what are, 143 when amotion is necessary, notwithstanding acceptance of, 144, 145 INDICTMENT, how it differs from information, 3 where there is an effective remedy by, mandamus not granted, 238-240 INFORMATIONS, why so called, 1 various kinds of, 1, 2 origin of, is common law, 2, 3 how differing from an indictment, 3 See Criminal Infobmations, and Quo Wareakto Infokmatioxs. 664 DTDEX. INLAND REVENUE, whether mandamus lies to commissioners o^ 350 INN of Court, mandamus to admit to, not granted, 237, 283 Barnard's, mandamus to admit to, not granted, 283 INSOLVENCY COMMISSIONERS, mandamus granted to, 297 INSPECTION, not allowed in cases of criminal informations, 82 in other cases, 191, 192 of puhlic documents, mandamus to compel allowance of, 265-268 of accounts of private company, mandamus to compel, not granted, 335 INTERPLEADER in mandamus proceedings, 417 IRREGULARITY, setting aside proceedings for, 188 ISSUE, directing an, 417 settlement of issues, 417 JUDGE of sheriff's court, mandamus granted to admit, 280 of county court, criminal information against, 26 qiM) warromto in respect of office of, 123 JUDGMENT, on demurrer to criminal information, 69 form of, 544 signing, after trial, 84 acquittal is final in cases of criminal information, 85 form of, of entry of judgment on acquittal, 542 motion in arrest of, in cases of criminal information, 90 respiting, in cases of criminal information, 91 moving for final, in cases of criminal information, 91, 92 of Court of Appeal, in error, 106 by default, 185 form o^ 542 at trial, or postponed for further consideration, 199 motion for, 199, 200 roU, 540 of ouster, 201, 202 when improper, 203 of fine, 203 under 9 Anne, c. 20, 203, 204 setting aside, 204 non ohgtante veredicto, 204 arrest of, 204 on confession, 543 for want of joinder in demurrer, 543 of ouster on disclaimer to quo wwrranto, 560 for Crown, in quo vxirranto after trial, 561 mandamus after trial, 565 INDEX. 665 JUDICATURE ACTS, effect of, on grant of mandamus, 272 JUDICIAL COMMITTEE of Privy Council : see Petvy Council. JUEAT, of a corporation, mandamus granted to admit, 281 of affidavit, error in, 44, 45 JURISDICTION, quo warranto does not lie for exceeding, 132 mandamus to compel exercise of: see Mandamus. prohibition to restrain excess of: see Pbohibitiok. JURY, in case of trial at bar, 80 in other cases, 80, 81 JUSTICE, criminal information for attacks on administration of, 23 attempts to defeat, 23 JUSTICES, criminal information against, 26-32 only granted in cases of dishonest, corrupt, or oppressive motive, 26 applicant must swear to his innocence, 29 quo warranto lies in respect of office of, 123 JUSTICES AND PETTY SESSIONS, mandamus issued to, 310-320 to hear and determine, 310, 311 to commit for non-payment, 312 to award costs, 312 but not to make an order of maintenance on any particular parish, 312 to receive an information and take recognizances, 312 to issue distress warrants, 312, 313 procedure to be adopted by them, where legality of rate is contested, 313 cannot impose conditions, where they act ministerially, 313 mandamus to issue warrant of commitment to enforce a conviction refused, 313 compel performance of other duties, 313-316 when compellable, to direct indictment for non-repair of a highway, 316 mandamus refused, where they have heard and determined, however erro- neously, 316 except, semble, in cases as to licenses, 319 exercise of discretion, not interfered with by mandamus, 317 mandamus refused, where other justices may more fittingly act, 317 also where applicant has another remedy, 317 when bound to hear evidence of truth of a libel, 317 compellable to state grounds of refusal of a licence, 318 when compellable to state a case, 319, 320 mandamus to, not granted where there is an appeal to quarter sessions, 320 procedure by rule substituted for mandamus, 320, 321 prohibition to, 482, 483 : see Prohibition. 666 INDEX. JUSTIFICATION, plea of, in informations for libel, 69, 70 form of plea, 527 LAND TAX, commissioners of, mandamus to, 339 LECTUREE, endowed, mandamus granted to elect, 277 admit, 280' if unendowed, or dependent on voluntary contributions, mandamus not granted, 283 or if rector may refuse use of pulpit, 283 LIBELS, kinds of, for which criminal informations have been filed ex-officio, 7-9 on individuals, old practice as to granting informations for, 14, 15 modem practice, 15, 16 general rule as to granting informations for, 16 upon peers, &c., in their private character, 17 upon the dead, 17 where applicant for criminal information resides abroad, 17, 18 on members of Parliament, 19 on magistrates, 19, 20 on clergy, 20 on town clerk, 20 on a body of persons, 20, 21 plea of justification in cases of, 69, 70 form of, 527 form of replication to such plea, 528 demurrer to plea, 529 joinder in demurrer by prosecutor, 529 by defendant, 529 forms of information for, 503 et seq. LIBRARIAN of a college, mandamus granted to admit, 280 LICENSED VICTUALLERS ASSOCIATION, quo warranto does not lie for office of committeeman of, 129 LIMITATION, period of, in applications for quo warranto, 135-137 LIVERYMAN of city company, mandamus granted to admit, 282 LOCAL BOARD, mandamus to compel provision by, of proper drainage, 337 chairman of, to certify election of member, 337 making a rate, 337 carrying out of Public Libraries Act, 337, 338 compensation for lands injuriously afi'ected, 338 LOCAL GOVERNMENT BOARD, whether mandamus lies to, 350 prohibition to, 433, 434 quo warranto in case of member of a, 124 INDEX. 667 LORDS, HOUSE OP, appeal to, 106, 107 standing orders as to appeals, 626-644 LOED LIEUTENANT, mandamus to, to declare vacant militia commissions, 355 LORDS OF ADMIRALTY, wlietlier mandamus lies to, 349 LORDS OF TREASURY, whetlier mandamus lies to, 346-349 MAGISTRATES : see Justices. MANDAMUS, 223 Blackstone's definition of, 223 meaning of " prerogative writ," 223 origin of the writ, 224 granted where no other remedy, 225 not against Crown or its servants, 225 only by Queen's Bench Division, 225 distinguished from other kinds of mandamus, 225, 226 general rules applicable to, 227-251 there must be a legal right to performance of a public duty, 228-231 duty must be of a public nature, 231 there must be no other effective means of enforcing the right, 232 et seq. as by quo warranto, 232 or action, 233, 234 or petition of right, 235 or execution, 235 or distress, 235 or remedy in equity, 235, 236 or appeal, 236, 237 or a remedy in one's own hands, 237, 238 or by indictment, 238-240 refused where matter can be more appropriately dealt with elsewhere, 241 or where it is being litigated elsewhere, 241, 242 not refused where other remedy not so effectual, 242-244 is merely cumulative, 244 would operate harshly, 245 refused where unnecessary, 245, 246 must be practically effective to secure object aimed at, 246, 247 there must have been a demand and refusal, 247-249 granted only to compel the doing of something, 250 application must not be unduly delayed, 250, 251 premature, 251 Court must be satisfied as to motives of applicant, 251 nature of the duties enforceable by mandamus, 252-272 duty must be of an imperious character, 252 meaning of permissive words in a statute, 254-256 difference between judicial and ministerial duty, 256, 257 668 . INDEX. UAlfCDAMUS— continued. nature of the duties enforceable by mandamns— continued. how far decision of an inferior tribunal will be compelled by man- damus, 257-259 where existence of a visitor will not prevent grant oT mandamus, 259 mandamus in case of exercise of discretionary powers, 260 arbitrary or unjust rules for exercising discretion, 261 exercise of discretion maliciously or from interested motives, 262 compulsory exercise of discretion, 262 distinction between particular and general discretion, 262, 263 mandamus not granted to review erroneous judgment, 263, 264 granted to allow inspection of public documents, 265-268 but not accounts of a private company, 335 mandamus to pay money, 268-271 deliver up public books, &c., 271 take legal proceedings, not granted, 271 nor to command another person to do something, 271 cases in which mandamus would formerly but not now be granted, 271, 272 effect of Judicature Acts on grant of mandamus, 272 offices in respect of which a mandamus has been granted, 273-293 enumeration of offices, 273, 274 offices in respect of which mandamus has been refused, 275 discretionary refusal, 276 offices in respect of which mandamus to elect, granted, 276, 277 appoint, 278 admit or swear in, granted, 279-282 refused, 283 restore, granted, 283-286 refused, 286-289 mandamus not granted to deprive of office, 289 effect of mandamus to admit or swear in, 289, 290 distinction between remedy by mandamus and by jmo warranto, 290-293 mandamus granted where question cannot be otherwise tried, 293 to inferior tribunals, 294-321 general rule applicable to, 294 to what courts not granted, 294, 295 scope of mandamus when granted, 295 , distinction between mandamus to judicial and to ministerial officer, 295 not granted to compel rehearing, or by way of appeal, 295 nor to enforce judgment of inferior Court, 295 nor against subordinate officer of inferior Court, 295 to ecclesiastical courts, 296, 297 insolvency and bankruptcy commissioners, 297 Mayor's Court, 298 county courts and other local courts, 298 courts leet, 298, 299 INDEX. 669 MANDAMUS — continmd. to inferior tribunals — continued. to customary courts, 299, 300 quarter sessions, 301-310 : see Quarter Sessions. petty sessions and justices, 310-320 : see Petty Sessions and Justices. rule instead of mandamus, 320, 321 to public bodies and public officers, 322-360 public bodies, 322-354 general rule, 322 municipal corporations, 323-328 : see Municipal Oobporation. corporations sole, 328 corporations generally, 329 railway companies, 329-336 : see Railway Company. companies generally, 333 poor law guardians, 336, 337 : see Guardians. a local board, 337, 338 : see Local Board. district board, 338 burial board, 338 sewage and drainage commissioners, 338, 339 land tax commissioners, 339 enclosure commissioners, 340 tithe commissioners, 340 cburch wardens, 340-344: see Churchwardens. vestry, 344 : see Vestry. church, trustees, 344 road trustees, 344, 345 river trustees, 345 East India company, 345 servants of the Crown, 346-350 lords of treasury, 346-348 admiralty, 349 commissioners of woods and forests, 349 customs, 349, 350 inland revenue, 350 excise, 350 local government board, 350 postmaster-general, 350 election commissioners, 350, 351 railway commissioners, 351, 352 universities and colleges, 352, 353 bishop and archbishop, 353, 354 to public officers, 354-360 municipal officers, 323 et seq. a lord lieutenant, 355 sheriff, 355 treasurer of a county or town, 355, 356 parish officers, 356-358 670 INDEX. MANDAMUS — continued. to public ofSoers — continued. surveyors, 358 coroners, 358 gaolers, 358 savings bank managers, directors, &c., 359 collector of excise, 359 registration officers, 359 secretary of friendly society, 360 masters of High Court, 360 MANOR, mandamus to admit bailiff of, not granted, 283 MARKET, quo warranto in respect of, 126 MASTER, of a city company, quo warranto in case of, 124 college, mandamus to appoint, granted, 278 grammar school, mandamus granted to appoint, 278 mandamus granted to restore, 285 but not if school annexed to a cathedral having a visitor, 286, 287 under, of endowed grammar school, mandamus granted to restore, 285 of a college, mandamus to restore not granted where there is a visitor, 287 of High Court, mandamus to, 360 MAYOR, quo warranto lies in respect of, 123 mandamus granted to elect, 276, 323 admit and swear in, 280, 323 MAYOR'S COURT, mandamus granted to, 298 prohibitions to, 471-475 MEDICINE, mandamus to license to practise, refused, 279 MELIUS INQUIRENDUM, form of writ of, 521 MINISTER of endowed dissenting chapel, mandamus granted to admit, 279 and to restore, 285 MINUTES (of corporation) evidence of, 193 MISUSER of a franchise, quo warranto for, 145, 146 MITIGATION, affidavits in, after conviction on criminal information, 94, 95 MONEY, mandamus to compel payment of, 268-271 MONTH, interpretation of, in rules as to time, 186 MOTIONS, rules as to, 72-74 MOTIVES of applicant for mandamus, 251 MUNICIPAL CORPORATION, quo warranto in respect of corporate offices, 116, 123 form of information, 558 INDEX. 671 MUNICIPAL COEPOEATION— coraWnited in what cases remedy is, not by quo warranto, but by, election petition, 140, 141, 158, 159 course to be pursued by, in cases of disqualification after election, 142 mandamus to, 323-328 assemble and do work of corporation, 323 elect officers of corporation, 323, 324 form of, 563 effect of omission to hold election at proper time, 323 mandamus to elect mayor, aldermen, &o., 323 admit mayor, aldermen, &o., 323 compel mayor or alderman, 323 restore alderman, 323 recorder, 323 admit councillor, 323, 324 compel councillor to undertake duty, 324 hold revision court, 324 admit and restore burgess, 324, 325 admit freeman, 325, 326 town clerk, 326 or restore town clerk, 326 compel old mayor to deliver mace, books, &c., to new, 326 delivery up of seal, records, &c., 326 removal of a corporator, 326, 327 declare vacant ofl&ce of councillor, 327 repay to treasury expenses of election petition barrister, 327 compel holding of local Courts, 327 repeal of bye-laws, 328 allow inspection of charters, &c., 328 has incident to it a power of amotion, 395. See Amotion. MUNICIPAL ELECTION, meaning of, in Municipal Corporations Act, 1882, 140, 141 MUNICIPAL OFFICE, returns justifying amotion from, 395 et seq. NEWSPAPER LIBELS, provision as to fiat in Act of 1881 does not apply to ex-officio criminal infor- mations, 10 nor to informations filed by order of the Court, 38, 39 NEW TEIAL, in cases of criminal information, 88, 89 NOLLE PROSEQUI, in criminal informations, 89, 90 form of, 544 NON-USER of a franchise, quo warranto for, 145 NOTARY, mandamus granted to admit, 281 NOTICE of intention to apply for criminal information, 37 form of, 499 672 INDEX. NOTICE— continued. of intention to apply for criminal information — continued. service of, 38 affidavit of service, 38 form of, 499 to defendant on criminal information, to appear in pursuance of undertaking in enlarged order, form of, 511 of trial of criminal information, 75, 76 form of, 531 of application for judgment of reversal, 104, 105 ' when necessary before applying for quo warranto, 160, 161 form of, 555 of motion to substitute new relator, 185, 186 taxation, 209 motion on appeal to Court of Appeal, 210 forms of, 561, 562 intended objection to judgment of Divisional Court by respondent on appeal, 211 , bail to avoid arrest, 514 to be indorsed on copy, information served on defendant in prison for want of bail to answer, 516 affidavit of service of, 516 of bail upon order of judge without habeas corpus, 525 habeas corpus, 526 to call a defendant on recognizance to appear for sentence, 545 manner of service of, 38 OBEDIENCE to writ of mandamus must be returned, 385 OBSCENE LIBEL, ex-officio criminal information for, 7 form of, 504 OPPICBS criminal information against holders of public, 26 et seq. in respect of which quo warranto lies, 123 et seq. quo warranto does not lie, 127 et seq. mandamus has been granted 273, 274 refused, 275 to elect, granted, 276, 277 appoint, granted, 278, 279 admit and swear in, 279-282 refused, 283 restore, granted, 283-286 refused, 286-289 • mandamus to deprive of, not granted, 289 effect of mandamus to admit or swear in, 289, 290 distinction between remedy by mandamus and by quo warranto, 290-293 mandamus granted where no other way of trying question, 293 to compel performance of duties of holders of public, 354 et seq. INDEX. 673 OFFICE COPY of afEdavits admissible, 44 ^UCjf^affidavits to be obtained by party sbewihg cause, 54, 166, 369 ORDER ABSOLUTE ' ^ in criminal informations, form of, 502 whether grantable in first instance in case of mandamus, 361 ORDER JNI8I, in cases of criminal information, 53 form of, 500 enlarging, 53 form of enlarged order, 501 shewing cause against, 53-55 discharging, 55 form of order discharging, 501 in cases of quo warranto, 165-167 consolidation of several, in quo warrcmto, 171 in cases of mandamus, 367 et seq. ORGANIST of parish church, mandamus refused as to, 277 OUSTER, judgment of, 201, 202 when judgment of, not proper, 203 after judgment of, against applicant, mandamus to admit not granted, 283 judgment of, on disclaimer, form of, 560 after trial with a jury, form of, 561 OUTLAWRY of defendant for non-appearance to criminal information, 62-65 Crown Oface Rules as to, 578-580 reversal of, 65, 66 Crown Office Rules as to, 580, 581 writ of error to reverse, 521 assignment of error upon judgment in, 522 joinder in error upon judgment in, 522 OVERSEERS, quo warranto does not lie for office of, 127 mandamus granted to elect, 277 appoint, 278 admit, 281 PARLIAMENT, criminal information for libels upon Houses of, 9 PARISH CLERK, mandamus granted to appoint, 278 admit, 282 PARISH OFFICERS, mandamus to, to perform various duties, 356-358 PAYMENT of money, mandamus to compel, 268-271 PEACE, criminal information for provoking to breach of, 22 See Clerk and Justices. 2 X 674 INDEX. PEEKS, &c., criminal information for libels on, 17 PERMISSIVE WOEDS, meaning of, in statutes, 254-256 PETITION OP RIGHT, where there is a remedy by, mandamus not granted, 235 PETTY SESSIONS : see Justices and Petty Sessions. PHYSICIANS, mandamus to admit to college of, not granted, 283 restore a fellow of college of, not granted, 287 PLEA of guilty to criminal information, 67 form of, 530 in abatement, 67 of not guilty to criminal information, 69 form of 527 entry of plea of guilty or not guilty, 527 of justification in cases of libel, 69, 70 form of, 528 rules applicable to pleas and demurrers, 70, 71 entry of retraxit of, and judgment thereon, 530 PLEADINGS, See Pkocedube general rules applicable to, 181-184 order extending time for, in criminal cases, 530 mode of service of, 71 rules as to time, 186-188 POOR LAW GUARDIANS : see Guakdians. PORTREEVE, quo warranto in respect of office of, 123 mandamus granted to elect, 277 admit or swear in, 281 POSSESSION, actual, necessary in cases of mandamus to restore, 283 et seq. what constitutes de facto, 290-293 POSTUA on trial in Middlesex or London, 536 at the assizes, 537 POSTMASTER-GENERAL, mandamus to, 350 POVERTY, when a disqualification in a relator, 154, 155 PREBENDARY, mandamus granted to admit, 279 PREROGATIVE WRIT, meaning of, 223, 224 PRIVY COUNCIL, mandamus has never been granted to, 294 whether restiainablc by prohibition, 429-431 INDEX. 675 PROCTOR, mandamus to restore, refused, 287 PROSECUTOR, who may be, in mandamus, 363, 364 affidavit of, 365, 366 effect of death of, 419 PROVOST OF ETON, mandamus granted to admit. 279 PROCEDURE (CRIMINAL INFORMATION), mode of application, 37 notice of intended application, 37 form of, 499 service of notice, 38 affidavit of service, 38 form of, 499 adjournment for notice, 38 fiat, 38 time vfithin vphich application must be made, 39-41 title of affidavits when applying, 41 what may be deposed to, 41, 42 affidavits, 41-51 : see Affidavits. renewed application on amended affidavits, 51, 52 motion must be made by counsel, 52 order nisi, drawing up of, 53 form of, 500 service of, 53 affidavits of service, 500, 501 enlarging time for shewing cause, 53 form of enlarged order, 501 office copies of affidavits to be obtained by party shewing cause, 54 discharging order nisi, 55 form of order discharging, 501 civil action in res^ject of same offence, 55 recognizance on order being made absolute, 56 form of order absolute, 502 form of prosecutor's recognizance, 502 no appeal from decision of Divisional Court, 57 information to close of proceedings, 58-74 substance of information, 58 form of information not ex officio, 502 ex officio, 503 for a seditious libel, 503 for an obscene libel, 504 for a blasphemous libel, 505 for libel on a foreign ruler, 506 for bribery at parhamentary election, 507 for various other offences, 510 fiUngvinformation, 59 form of certificate of information filed, 511 appearance by defendant, 59 2x2 676 INDEX. PROCEDURE (CRIMINAL INFORMATION)— coraimMei. information to close of proceedings — continued. compelling appearance of defendant, 59 entering appearance for defendant, 60 form of notice to appear in pursuance of undertaking in enlarged order, 511 recognizance by defendant, 60, 61 form of, 515 entry of appearance for defendant in prison, 60 estreating defendant's recognizance, 61 discharge of defendant, 61 subpoena to answer, 61 form of, 512 affidavit of service of, 513 attachment of defendant, 61, 62 form of writ of, 517 outlawry for non-appearance, 62-65 reversal of outlawry, 65, 66 form of writ of error to reverse outlawry, 521 order to plead, 67 plea of guilty, 67 form of, 530 defences, 67 entry of plea of guilty or not guilty, 527 plea in abatement, 67 demurrer, 67-69 to information, form of, 527 to plea, form of, 529 joinder in demvirrer, 68 form of, 529 entry of demurrer, 68 paper books, 68 judgment on demurrer, 69 plea of not guilty, 69 justification in cases of libel, 69, 70 form of, 527, 528 form of replication to plea of, 528 entry of retraxit of plea and judgment thereon, 530 pendency of another prosecution no defence, 70 rules applicable to pleas and demurrers, 70 71 procuring copies of pleadings, &c., 71 mode of service of pleadings, &c., 71 amendment of information, 71, 72 joinder of issue, 72 striking out or accelerating case, 72 motions, rules as to, 72-74 efifect of non-compliance with rules, 74 rules as to time, 76, 77 procedure from close of pleadings, 75-85 INDEX. 677 PROCEDURE (CRIMINAL INFORMATION)— cowimued procedure from close of ■plea.imgs—contintted. notice of trial, 75, 76 forms of, 531 coimtermanding notice, 76 withdrawing record, 76 forms of record, 531, 532 entering record for trial, 76 rules as to time, 76, 77 impounding papers for evidence at trial, 77 change of venue, 77, 78 forms of suggestion, 532-534 bringing on case for trial, 78, 79 defendant's costs where prosecution does not proceed, 79 mode of trial, 79 trial at bar, 79, 80 jury in case of trial at bar, 80 jury in other cases, 80, 81 form of judge's order to strike special, 534 warrant of tales, 82 form of, 535 subpoenas ad testificandv/m and duces tecum, 82 forms of, 549-551 entry for trial, 82 discovery or inspection not allowed, 82 procedure at trial, 82 attorney-general's rigljt to reply, 82, 83 amendment of variances at trial, 83, 84 entry of findings, &c., by associate, clerk, or master, 84 form of associate's certificate, 585 filing certificate of findings, &c., 84 form of certificate, 535 signing judgment, 84 acquittal is final, 85 postea on trial in Middlesex or London, 536 at the assizes, 537 proceedings subsequent to conviction, 86-107 difference between time for sentence in ex-offiaio and other informa- tions, 86 order to commit when defendant' sentenced at trial, 538 recognizance to appear for sentence, 86 form of, 544 bringing up defendant for judgment, 86, 87 notice to caU a defendant on recognizance to appear for sentence, 545 procedure where defendant not under recognizance, 87 after judgment by default, 87 warrant of arrest after conviction and recognizance estreated, 539 on conviction by default to hold defendant to bail, 540 entry or judgment roll, 540 678 INDEX. PROCEDURE (CRIMINAL INFORMATION)-comtoM€d. proceedings subsequent to conviction — continued. entry of judgment upon verdict after acquittal, 542 by default, 542 on confession, 543 for want of joinder in demurrer, 543 on demurrer after argument, 544 new trial may be moved for, 88 how applied for, 88 witbin what time, 88 order nisi, 88 grounds for, 89 order absolute, 89 nolle prosequi, 89, 90 form of entry of, 544 arrest of judgment, 90 respiting judgment, 91 warrant to bold to bail, 91 form of, 537 moving for final judgment, 91 personal appearance of defendant when sentenced pronounced, 92 affidavits before sentence, 93-96 in mitigation, 94 in ^gravation, 95, 96 sentence, 96, 97 respiting execution, 97 prosecutor's costs, 98 successful defenda,nt's costs, 98-100 taxation of costs, 100 rules as to, 606-615. no appeal as to costs in cases of criminal information, 100 proceedings in error, 100-107 fiat of Attorney-General must be obtained, 100 form of, 548 writ of error may be qiiashed, 101 form of writ of error, 548 service of writ of error, 101 carrying in roU of error, 101 certificate of allowance, 101 form of, 549 statement of some particular ground of error, 549 transcript of record, 102 assignment of error, 102 form of, 546 order to join in error, 102, IQZ form of joinder, 547 effect of absence of joinder, 103 filing joinder, 103 paper books, 103 INDEX. 679 PROCEDURE (CRIMINAL INFORMATION)— coniinjted proceedings in error— continue. recognizance on defendant obtaining writ of error, 103, 104 estreating, 104 notice of application for judgment of reversal, 104, 105 effect of repayment of fine where conviction afiBrmed, 105 warrant to apprehend and imprison, 105 how duration of imprisonment to be reckoned, 106, 107 judgment of Court of Appeal, 106 See also Affidavits and Eeroe. PROCEDURE {QUO WARRANTO), 160-172 application for order nisi, 160 when notice of motion necessary, 160, 161 form of notice, 555 within what time application must be made, 136, 137, 161 aflBdavit of relator necessary, 161 what affidavits should contain, 161, 162-165 renewed application where affidavits defective, 162 title of affidavits, 162 order nisi, 165, 166 form of, 556 must specify every objection, 165, 166 service of, 166 form of affidavit of, 556 shewing cause against, 166, 167 appeal from grant or refusal, and from discharge or making absolute, 167 second application by same relator, 167, 168 costs on discharging order nisi, 168 making order absolute, 168-170 form of order discharging or making absolute order nisi, 556 when security for costs ordered, 170 recognizance to be entered into, 170 form of, 557 subsequent interference by Court, 170, 171 permitting defence against defendant's wish, 171 consolidation of several orders nisi, 171, 172 substitution of new relator, 172 the information and subsequent pleading, 173-188 form of information, 173, 174 examples of forms, 557-559 one information against several persons, 174 filing information, 175 amending information, 175 quashing information, 175 compelling appearance, 175 writ of subpoena to answer, 560 disclaimer by defendant, 175 680 INDEX. PKOCEDUBE {QUO WARRANTO}— cmdinued. disclaimer by defendant — continued. form of, 559 judgment of ouster on, 560 order to plead, 176 pleadings, 176 defence, 176 pleading double or several matters, 176, 177 mode of traversing allegations of information, 177 examples of defences, 177, 178 defence may be partial as to time, 179 demurrer, 179, 180 pleadings subsequent to defence, 180 reply, 180 pleadings subsequent to reply, 180 close of pleadings, 181 general rules applicable to pleadings, 181-184 special case, 184, 185 directing an issue, 417 settlement of issues, 417 admissions of feet, 417 judgment by default, 185 motions and other applications, 185, 186 neglect by solicitor, 186 fees cbargeable by solicitors, 186 rules as to time, 186-188 effect of non-compliance with rules, 188 setting aside proceeding for irregularity, 188 procedure from close of pleadings, 189-220 notice of trial, 189 time for giving, 189 venue, 189 mode of trial, 189, 190 trial at bar, 190 special jury, 190 entering record, 190 warrant of tales, 190 retaining Queen's counsel, 190 changing venue, 190, 191 discovery and inspection, 191, 192 onus of proof at trial, 192 witnesses, 193 documentary evidence, 193-195 adjournment of trial, 195 mode of giving evidence at trial, 195-198 : see Evidence. ordering production of documents, 198 consequence of disobeying such order, 198 expenses of witnesses, 198 INDEX. 681 PROCEDUEE {QUO WARItANTO)— continued. procedure ftom close of pleadings — continued. powers of amendment, 198, 199 speeches to jury, 199 ' restriction on cross-examination, 199 verdict, 199 judgment at trial or adjournment for further consideration, 199 motion for judgment, 199-201 judgment of ouster, 201, 202 form of, 561 when improper, 203 fine, 203 under 9 Anne, c. 20, 203, 204 setting aside judgment, 204 new trial, 204 judgment non ohstante veredicto, 204 arrest of judgment, 204 costs, 204-210 : see Costs. appeal to Court of Appeal, 210-213 : see Court of Appeal. execution, 214-220 : see Execution. appeal to House of Lords, 220 PEOOEDIJEE (MANDAMUS) application for mandamus, how to be made, 361 order in nature of mandamus, how to be made, 361 whether order absolute in first instance may be granted, 361 application, how to be made in vacation, 362 by whom to be made, 362 when to be made, 362 when notice of, to be given, 363 who may be prosecutor, 363, 364 against whom application to be made, 364, 365 afiBdavit must be made by prosecutor, 365 what affidavit must shew, 365, 366 title, &o., of affidavits, 366 : see Affidavits. cases in which order absolute in first instance granted, 366, 367 order nisi, to whom directed, 367 notice to be given by, 368 service of, 368 enlarging, 369 amending, 369 shewing cause against, 369 affidavits in opposition to, 369 discharging, 370 order absolute, 370, 371 settling form of, 371 costs of, 371 amending, 371 service of, 372 security for costs, 371 682 INDEX PBOCEDUKE (MA]^'DAMUS)—cmtmutd. renewing motion for mandamus, 371 appeal, 373 the writ, 374-383 form of, 374, 562, 563 direction of, 375, 376 body of, 376 mandatory part of, 377, 378 date and teste, 378 indorsement of, 378 issue of, 378 where returnable, 379 amending, 379 cross or concurrent, 379 alias or pluries, 379 service of, 380 may be peremptory io first instance, 380 filing, 381 superseding, 381 quashing, 381-383 the return, 384-412 form of, 565 return must be to first writ, 384 various kinds of, 384 of obedience, 385, 386 of obedience to part, 386 denying material facts, 386-388 alleging new fects, 888-390 sufficiency of, 390 et seq. justifying amotion, 395-398 from municipal office, 398-402 by customary power, 402 on ground of fraudulent election, 402 must set forth the fects, 402, 403 by part of governing body, 403 where removal justifiable, though irr^nlar, 403 need not shew cause of, where there is a visitor, 403 from office held at pleasiire, 404 refusal to admit, 404, 405 in nature of demurrer, 405 when to be made, 405 by whom to be made, 405-407 by persons other than those to whom writ is addressed, 407, 408 effect of death, &c., of person to whom writ is directed, 408 disavowing return, 408 how return to be made, 408, 409 filing return, 409 taking return off file, 409 compelling return, 409 INDEX. 683 PROCEDURE (MANDAMUS)— cowimaeA retiirn must be to first -wiit— continued. quashing return, 410, 411 present procedure instead of quashing, 412 amending return, 412 proceedings, subsequent to return, 413-425 practice before 9 Anne, c. 20, 413 under 9 Anne, c. 20 and 1 Will. 4, c. 21, 413, 414 new procedure, 414 discretionary refusal, 414, 415 issue of new writ, 415 pleadings subsequent to return, 415-416 where only an issue of law, 416 issue is one fact, 416 delay by prosecutor, 416 non-compliance with rules, 416 amendment, 416 interpleader, 417 special case, 417 directing an issue, 417 settlement of issues, 417 admissions of fact, 417 notice of trial, &c., 417 notice to admit, &o., 417 obtaining copies of proceedings, 417 writ of subpoena on trial of issues, 566 trial, 417 verdict, 417 damages, 417, 418 signing judgment, 418 form of judgment for Crown after trial with a jury, 565 new trial, 418 effect of death of prosecutor, 419 costs, 419 ~ when and how application for, to be made, 419, 420 error, 420 ' appeal, 420 protection to persons obeying writ, 420 false return, action for, 420, 421 criminal information for, 421, 422 peremptory mandamus, 422 quashing or setting aside, 423 execution, 424 attachment, against whom, 424, 425 PROCEDUEB (PROHIBITION), by whom application for prohibition may be made, 485 against whom application may be made, 486 time for applying, 486 684 INDEX. PEOCEDUKE (PROHIBITION)— corafiKjied. changes in procedure, 486, 487 how application to be made, 487 what affidavits should contain, 487, 488 order nisi, 488 service of, 488 suspending issue of writ, 488 order nisi in case of county cotirts, effect of, 488, 489 order absolute in first instance, 489 shewing cause against order nisi, 489 appeal from grant or refusal of order, 489, 490 renewed application for prohibition, 490 setting aside writ, 490 time for appealing from Chambers, 490, 491 pleadings in prohibition, 492 et seq. none, in case of prohibition to county court, 493 what they should shew, 493 declaring in prohibition, 493, 494 order to deliver, is discretionary, 494—496 trial, new trial, appeal, &c., 496 mode of issuing writ, 496 form of writ, 496, 566 procedure when writ issued to county court, 496 execution, 496, 497 costs, 497 consultation, 498 PKOHTBITION, 426 nature and extent of the jurisdiction, 426-435 object of the jurisdiction, 426 whence the writ issued, 426, 427 to what Courts issued, 427-433 quatre, to Privy Council, 429-431 public bodies prohibited, 433, 434 ancient writ to restrain waste, 434, 435 general principles regulating the jurisdiction, 436-462 general rule as to prohibition, 436 exception, 437, 438 reason of, 438 what is not ground of prohibition, 438 only judicial proceedings prohibited, 440 proceedings against foreign sovereign, 440, 441 where judge below is interested, 441 agreement cannot give jurisdiction, 441 whether grant of writ is discretionary, 441-445 grant not obligatory in all cases, 445, 446 effect of acquiescence, 446-449 not granted quia timet, 449 how soon prohibition granted, 449 INDEX. 685 VWBISITIO'S— continued. general principles regulating the jurisdiction — continued. substance of cause below, and not form considered, 449, 450 where jurisdiction depends on contested facts, 450, 451 a doubtful point, 451 where point out of jurisdiction is immaterial, 451 statutory bar in some cases to prohibition, 451 effect of ss. 89, 90, of Jud. Act, 1873 ..451, 452 prohibition may be partial, 452, 453 sometimes only quousgue, 453 time for applying, 453-455 when exception must first be taken below, 455, 456 application premature, 456-458 too late, 458, 459 after judgment, 459 question between prohibition and appeal, 460-462 prohibition or injunction, 462 whether granted, after one division of Superior Court has affirmed juris- diction of inferior Court, 462 applications of the general principles, 463-484 in case of Ecclesiastical Courts, 463-470 general rules, 463, 464 what matters not triable in Ecclesiastical Courts, 464 et seq. misconstruction of statute, a ground of prohibition, 468 prohibition after sentence, 469 when question as to existence of custom is not ground of prohibi- tion, 409 effect of offence being punishable temporarily also, 469 where part of the matter is cognizable by Ecclesiastical Court, 470 effect of submission to jurisdiction, 470 mere irregularities in procedure not ground of prohibition, 470 appeal distinguished from, prohibition, 470 Vice-ChanceUor's Court at Universities, 471 Mayor's Court of City of London, 471^75 after removal of judgment into Superior Court, 473 effect of s. 15 of Mayor's Court Act, 1857 .. 473 custom of foreign attachment, 473 county courts, 475-482 matters excluded from their cognizance by statute, 477 not granted for errors in procedure or judgment, 478 granted, where action is substantially outside their jurisdiction, 479 not where error is corrigible on appeal, 479 or where jurisdiction depends on contested facts, 479-481 what conduct will disentitle to prohibition, 481 right of appeal to Court of Appeal, 481, 482 quarter sessions, 482 Salford Hundred Court, 482 686 INDEX. PBOH IBlTJO'S—contimted. applications of the general principles — continued. Liverpool Court of Passage, 482 justices, 482 coroners, 483 the Kailway Commissioners, 483, 484 where remedy is by appeal, 484 QUARTER SESSIONS, mandamus to, 301-310 granted to hear and determine, 301 notwithstanding non-compliance with rule of practice, 301 unless rule commends itself to High Court, 301, 302 where they refuse to hear on a preliminary objection, 302 when their decision on a preliminary point is conclusive, 302, 303 not compelled to receive any particular evidence, 303 what is a decision on the merits, 304 mandamus to restore clerk of peace, 304 to erase a false entry made without jurisdiction, 304, 305 to compel issue of process to enforce judgment, 305 to do various other acts, 305 not granted, where there is a determination, however erroneous, 306 or in any case of exercise of discretion, 307 where sessions give a case, 308 but granted where there is only an offer of a case not accepted, 308 refused, to grant a case, 308 granted, where terms of case could not be agreed on, 308 not granted, to rehear an appeal, 308 or to review evidence, 308 or to alter minutes of verdict, 308 or to alter judgment as entered, 309 or to apprehend, 309 or to quash a rate, 309 where unwarranted order made as to costs, 309 mandamus refused, to compel putting in suit a bond, 310 prohibition to, 482 QUASHING, Court wUl not quash ex-officio criminal information, 10, 11 writ of mandamus, 381-383 return to writ of mandamus, 410-412 QUEEN'S COUNSEL, retaining, in cases of criminal information, 82 quo warranto information, 190 QUO WARRANTO INFORMATIONS, 108-222 origin of jurisdiction, 108 \mt of quo warranto, 108 INDEX. 687 QUO WARRANT INFOEMATIONS— con^mMed change from writ to information, 109, 110 difference between ancient and modern procedure, 110 procedure now wholly civil. 111 kinds of information, 112 statutes relating to them, 113-117 to what oflSces the statute of Anne applies, 115, 116 applies to claim of office [which does not exist, 116 to what offices 9 Geo. 3, c. 58, applies, 117 what informations can be filed only by Attorney-Greneral, 117-119 general rules as to offices for which quo warranto lies, 121, 147, 148 grant or refusal of information is discretionary, 122 distinction between cases where quo warranto and where mandamus is proper remedy, 122, 290-293 enumeration of public offices to which quo warranto applies, 123-126 other franchises in respect of which quo warranto lies, 126, 127 offices in respect of which quo wwrranto does not lie, 127-131 mere claim without user not sufficient, 131, 163 what amounts to a user, 131, 132 cases to which procedure by quo warranto does not apply, 132-134 does not apply to case of exceeding jurisdiction, 132 nor to a refusal to take office, 132 nor to a proceeding judicial and not ministerial, 132, 133 general principles regulating grant or refusal of informations, 135-159 period of limitation for applying, 135-137 quo warranto on the groupd of derivative title, 138, 139 various grounds of attack on title to office, 139-142 disqualification at time of election, 140 no majority of votes, 140 invalidity of election, 141 improper admission to office, 141, 142 subsequent disqualification, 142, 143 in what cases remedy is by election petition, 140, 141, 158, 159 what are incompatible offices, 143 when amotion necessary before applying for quo warranto, 144, 145 for non-user or misuser of a franchise, 145, 146 cases in which granted after defendant has ceased to hold office, 146, 147 cases of discretionary refusal, 147-157 , on account of insignificance of office, 147 long user, 148 existence of other remedy, 148 mere foolish claim, 149 conduct or motives of relator, 149 consequences which would result, 149 mere irregularity producing no serious harm, 149, 150 delay in applying, 151 disqualification of relator, 151-157 : see Rblatob. prima facie case not made out, 155, 156 who is a duly qualified relator, 157 688 INDEX. QUO WARRANTO INFORMATIONS— conimwrf. management of prosecution taken from relator, 157 procedure to obtain information, 160-172 : see Peocedube (Quo Waebahto). substitution of new relator, 172 the information and subsequent pleadings, 173-188 : see Phoceduee (Quo Wareanto). RABBIT WARREN, of a private nature, quo warranto does not lie for, 129 RAILWAY COMPANY, mandamus to, 329-336 to construct their line, 329, 330 to reinstate line, 330 to carry roads over railway, or railway over roads, 330 but not at rates of inclination on plans deposited, 330 to remove obstructions in highway, 330 to proceed, after giving notice to treat, 330 to issue their warrant to sheriff, 330 to take up award, and pay arbitrator's fees, 330, 331 formerly, but not now, to pay amount of compensation awarded, 331 application for, should not be made too soon, 331 where deed of reference or award makes no mention of costs, 331 to give inspection of register of shareholders, 331 to compel carrying of applicant's goods, not granted, 332 to pay to overseers deficiency in assessment of rates caused by taking land, 332 where company fails to carry out agreement for purchase, 332 where company has option of doing one of two things, 332, 333 See also Company. RAILWAY COMMISSIONERS, mandamus to state a case, 351 prohibition to, 434, 483, 484 RECEIVER, of Bedford Level, mandamus granted, to restore, 286 RECOGNIZANCE, by prosecutor, on order absolute for criminal information, 56 form of, 502 by defendant, to criminal information, 60 form of, 515 estreating defendant's, 61 of relator, in quo warranto, 170 form of, 557 to appear at assizes or sessions, 526 INDEX. 689 EECOGNIZANC K—contimied. to prosecute writ of error, 546 afSdavit of service of master's allocatur and demand, and non-payment to estreat, 554 RECORDER, quo warranto lies in respect of office of, 123 REdORD of criminal information for trial, 531 REFUSAL, necessary, to entitle to mandamus, 247-249 what amounts to, 248, 249 REGISTER of joint stock company, whether mandamus grantable to rectify, 334 REGISTRAR, superintendent of a union, quo warranto in case of, 124 does not lie for office of district, 128 nor for office of registrar of Bedford Level Corporation, 129 of archdeacon, mandamus granted to admit, 281 restore, 285 of bishop's court, mandamus granted to restore, 285 deputy of archbishop's court, mandamus granted to admit, 281 of Bedford Level, mandamus granted to admit, 282 REGISTRATION OFFICERS, mandamus to compel performance of duties by, 359, 360 REGIUS PROFESSOR, mandamus to appoint, granted, 278 RELATOR, necessity of, in applications for quo warranto, 161 what constitutes disqualification of, 151-157 when acquiescence disqualifies, 151-154 when similar objection to his own title, 154 effect of poverty of, 154, 155 a mere stranger to the corporation, 155 who is a duly qualified, 157 sufficient if any one relator is qualified, 155 when a new one substituted, 172 notice of motion to substitute new, 185, 186 REPLICATION to plea of justification in libel, 528 RESPITING judgment in cases of criminal information, 96 sentence in cases of criminal information, 97 RESTORATION to office, when mandamus granted to compel, 283-286 refused to compel, 286-289 mandamus to restore granted only where there has been actual possession, 283, 284 mandamus to restore not granted, where party can immediately afterwards be removed, 289 on application for mandamus to restore, Court examines strictly applicant's, right, 289 2 Y 690 INDEX. EETURNING OPPICEE, mandamus granted to appoint, 278 EETUEN to writ of mandamus : see Pbocbddbe (Mahdamus). EIOTOUS PEOCEEDINGS, criminal information for, 21 EIVEE TEDSTEES, mandamus to compel performance of duties by, 345 EOAD TEUSTEES, mandamus to compel performance of duties by, 344, 345 EULE instead of mandamus to justices, 320, 321 or order instead of mandamus to county court judges, 298 EULES, effect of non-compliance with, 74 SAVINGS BANK, mandamus to managers, directors, &c., of, 359 SCANDALOUS MATTEE in affidavits : see Affidavits. SCAVANGERS, mandamus granted to appoint, 279 SCHOLAE of a college, mandamus granted to admit, 280, 352 SCHOOL BOAED, quo warraaito lies in respect of membership of, 124 but not for clerk of, 128 form of information, 557 SECUBITy FOE COSTS, in qvo warranto, when ordered, 170 time for giving, 187, 208 where bond given, 208 of appeal to Court of Appeal, 220 in mandamus, 371 SEDITIOUS LIBELS, various kinds of, 8 ex-offido criminal informations for, 8, 9 example of, 503 SENTENCE, after conviction on criminal information, 96, 97 respiting execution of, 97, 98 recognizance to appear for, 544 notice to call defendant on recognizance to appear for, 545 SEQUESTEATION, enforcing judgment s^ainst a corporation by, 219, 220 SEEVICE, affidavit of : see Affidavit. of order nisi, in cases of criminal information, 53 in quo warranto, 166 of pleadings, mode of, 71 of order nisi in mandamus, 368 of order absolute, 372 of writ of mandamus, 380 SERJEANT-AT-MACE, removable at pleasure, mandamus to admit, not granted, 283 secus if office be for life, 284, 285 INDEX. 691 SEXTON, quo wa/rranto in respect of office of, 128 whether mandamus lies, 277, 285 SEWERS, commissioners of, mandamus to compel performance of duties by, 338, 339 SHERIFF, quo wa/rranto in respect of office of, 123 mandamus granted to admit, 280 mandamus to, to execute compensation inquiry, 355 SIDESMEN, mandamus to elect, granted, 277 SOLICITOR-GENERAL may file ex-officio information during vacancy of Attorney-Generalship, i and record need not aver the vacancy, 4 SPECIAL CASE, in quo warranto, 184, 185 in mandamus, 417 STAMPING of affidavits : see Affidavits. STATE, for offences against, criminal information not granted on application of private person, 33 STATUTES, misconstruction of, when ground for prohibition, 461, 462 prohibiting Ecclesiastical Courts, 468 6Edw. 1, c. 1..109 18Edw. 1, St. 2.. 109 llHen. 7, c. 3..3 1 Hen. 8, c. 3 4&5P. &M. c. 8..25 43Eliz. 0. 2..315 13 Car. 2, st. 2, c. 1 ..153, 155 13 & 14 Car. 2, c. 12.. 390 15Car. 2, c. 17..237 4 & 5 W. & M. c. 18 .. 12, 13, 36, 49, 56, 98, 99, 113, 206 ' 4 Ann. c. 14.. 34 9 Ann. c. 25 (or c. 20 Ruff.), 113, 115, 116, 203, 204, 393, 413, 414, 420 IGeo. 1, c. 13..28 9Geo. 1, c. 7..356 2Geo. 2, c. 24..24, 41 12Geo. 2, c. 29..305 17 Geo. 2, c. 5 .. 27 , c. 38 .. 265, 343 19Geo. 2, c. 12..174 33Geo. 2, c. 49..345 12Geo. 3, c. 21..325 ISGeo. 3, c. 63..225 22Geo. 3, c. 83..336 32 Geo. 3, c. 58 .. 117, 138, 176 692 INDEX. STATUTES— con "^ - f Qft Q97 6 & 7 Vict. 0.67.. 3 14, 411 -r- ftq Ifin 1Q1 -c. 96.. 67, 69, 96,98 7&8 Vict. 0. 92.. 356 8 & 9 Vict. 0. 18 (L. 0. C. Act, 1845) ..331, 344, 355, 360, 391 c. 20.. 332 0.89. .359 0.118.. 433 9 & 10 Vict. o. 38.. 349 11 & 12 Vict. 0. 42 ..318, 321 0.44. .320 0. 63 .. 153, 338 INDEX. 693 STATUTES— conimwei. 11 & 12 Vict. c. 112 (MetropoUtan Sewers Act, 1848) ..339 14&15 Vict. 0.99.. 193 —c. 100.. 83 17 & 18 Vict. c. 31 (Eailway and Canal Traffic Act, 1854) . . 434 c. 81. .353 c. 125 (C. L. P. Act, 1854) .. 226, 272 18&19 Vict. c. 108..311 c. 120.. 338, 344 19 & 20 Vict. c. 108 .. 298, 347 20&21 Vict. c. 43..319, 462 c. 77. .296 21&22 Vict. c. 90, s. 29..264 25&26 Vict. c. 61, s. 18..316 c. 89, s. 35 (Companies Act, 1862) .. 334 26 & 27 Vict. c. 29, s. 7 .. 351 28 & 29 Vict. c. 104, s. 46 (Crown Suits Act, 1865) .. 77 c. 126 . ; 316, 327 30 Vict. c. 6 (Metropolitan Poor Act, 1867) .. 350 31&32 Vict. 0.72, s. 6.. 142 c. 110. ,350 32&33 Vict. c. 27, s. 8..318 c. 67, s. 41 (Metropolitan Local Management Act, 1869) . . 356 33 & 44 Vict. c. 77, s. 17 (Juries Act, 1870) .. 81 — c. 93 (Married Women's Property Act, 1870) .. 333 ; 35&36Vict. c. 12..140 c. 33 (Ballot Act, 1872) .. 292 c. 94, s. 9 . . 303, 306 36&37 Vict. c. 48..434 c. 66 (Judicature Act, 1873) .. 100, 294, 296, 429, 451 ' - 39 & 40 Vict. c. 59 (Appellate Jurisdiction Act, 1876) ..106, 107 40 & 41 Vict. c. 21, 316 41 & 42 Vict. c. 77 ..253, 304, 350 42&43 Vict. 0.59, s. 2..99 44&45 Vict. c. 49..433 ^ c. 60..10 ' 45 & 46 Vict. c. 50 (Municipal Corporations Act, 1882) .. 117, 128, 132, 136, 138, 139, 140, 142, 143, 158, 160, 191, 193, 292, 323-327 46 & 47 Vict. c. 49, s. 3 .. 414, 418 47 & 48 Vict. c. 61, s. 15 .. Ill c. 70, s. 36 . . 141, 158 STAYING PROCEEDINGS by private individual in cases of criminal information, where Attorney- General files an ex-officio information,, 11 staying execution, 213 STEWARD OF COURT LEET, quo warranto lies in respect of- office of^ 124 . , / 694 INDEX. STEWAED OF COURT LE^T— continued. of court baron, jmo warranto does not lie for office of, 128 mandamus to admit not granted, 283 sed vide, 289 SUBPCENA to answer criminal information, 61, 62 form of, 512 form of affidavit of service of, 513, 554 ad testificandum, and diices tecum, 82 general form of, 549 of subpoena at sittings of High Court, 550 assizes, 550 in the Grown Court, 551 at Central Criminal Court, 551 on trial of issues in quo warranto, 560 mandamus, 566 SUBSTITUTION of new relator in quo warranto, 172 SUFFICIENCY of return to mandamus, 390 et seq. SUGGESTIONS for change of venue, forms of, 582-534 SUMMONS to admit to bail, 523 affidavit of service of, 524 SURGEON, hospital, mandamus to admit, not granted, 283 restore not granted, 287 SURVEYOR of highways, mandamus granted to appoint, 278 mandamus to compel performance of duty by, 358 of New River conipany, mandamus granted to restore, 286 of city works, mandamus granted to restore, 286 SUSPENSION from office, whether distinguishable from amotion, 397 SWORDBEARER to a corporation, mandamus granted to restore, 285 ' TALES, WARRANT OF, 82 form of, 535 TAXATION OF COSTS, 100, 606-615, 618 notice of, 209 TIME, rules, as to, 76, 77, 186-188 order extending, for pleading, 530 TITHE COMMISSIONERS, mandamus to, 340 ' prohibition to, 433 TITLE OF AFFIDAVITS: see Affidavits. tNDEX. 695 TOWN CLERK, criminal information for libel upon, 20 quo warranto does not lie for office of, 128 mandamus granted to elect, 277 admit or swear in, 281 restore, 285 TOWN COUNCILLOR: see Councillor (Town). TREASURY, LORDS OP, wKether mandamus lies to, 346, 349 TREASURER, quo warranto in case of, 124, 125 not in case of a county treasurer, 129 of New River company, mandamus granted to restore, 286 of county or town, mandamus to, to pay money, 355, 856 TRINITY HOUSE, mandamus granted to restore Brother of, 286 TRIAL of criminal information, notice of, 75, 76 : see P,rocbdubb (Criminal Infor- mation). at bar, 79, 80 forms of notice of, 531 TRUSTEES under private Act, quo warranto with respect to, 125 for lighting, watching, &c., mandamus granted to elect, 277 of poor of parish, mandamus granted to admit, 282 church, mandamus to produce their accounts before parochial auditors, 344 road, mandamus to compel performance of statutory duties, 344, 345 allowance of inspection of their accounts, 345 river, mandamus to compel performance Of statutory duties, 345 TYTHING MEN, mandamus granted to elect, 277 UNIVERSITY : see Colleob ; Fellow ; Degree ; Regtos Professor ; Visitor ; Hebdomadal Council ; Vice-Chancbllor. USHER of free grammar school, mandamus granted to appoint, 278 VACATION (LONG), delivery of pleadings in, 187 computation of, in time, 187 application for mandamus in, 362 VARIANCES, amendment of, at trial of criminal information, 83, 84 VENIRE FACIAS to answer to information, form of, 516 VENUE, change of; in cases of criminal informations, 77, 78 quo warranto informations, 190, 191 suggestions for, 532-534 VESTRY CLERK, quo wa/rranto in case of, 124 mandamus to restore, refused, 287 696 INDEX. VESTRY, mandamus granted to elect, 277 compel performance by, of various duties, 344 has a discretion as to order in which necessary sewers are to be constructed, 344 proper manner of taking sense of, 344 VICAR, mandamus granted to admit, 279 VICE-CHANCELLOR, Court of Universities, prohibition to, 471 VISITOR, decision of, not interfered with by mandamus, 237 provided he acts judicially, and accused is heard, 237 will be compelled to decide somehow, 258, 352 in what cases existence of, will not prevent graut of mandamus, 259, 352 mandamus to admit, refused, where there is a, 280, 352 has jurisdiction to restore after amotion, 288 though there has not been admission, 278 existence of, must be made known to the Court, 288, 289 mode of procedure adopted by, not interfered with, 352 right of visitation, where there is no special, 352 WARDEN of Dulwich College, mandamus granted to admit, 279 WARRANT of arrest, form of, 513 to admit to bail in criminal information, 514 to hold to bail, after conviction on criminal information, 91 form of, 537 to apprehend and imprison in execution of sentence, 105 of tales, 535 to apprehend defendant sentenced at trial, 537 of arrest after conviction, and recognizances estreated, 539 WITNESSES, in civil cases, 193 expenses of, before examiner, 198 WOODS AND FORESTS, whether mandamus lies to commissioners of, 349 WRIT of subpmna to answer an information, 512 venire facias to answer, 516 attachment to answer, 517 capias to answer, 517 capias ad satisfaciendum, after judgment, 517 ca^pias cum proclamatione, 518 exigent before conviction, 519 capias cum proclamatione into a foreign county, 519 exigent with allocatur, 519 capias utlagatvm, 520 special, cv/m, breve de inquirendo, 520 INDEX. 697 WRIT — continiied. of melius inquirendum, 521 exigent after judgment, 521 error to reverse outlawry, 521 habeas corpus to bring up prisoner to be bailed, 523 svhpoena ad testificandum or duces tecum, general form, 549 at sittings of High Court, 550 at assizes, 550 in tbe Crown Court, 551 at Central Criminal Court, 551 attachment, 553 mandamus, 562 prohibition, 566 subpoena on trial of issues in quo warranto, 560 mandamus, 566 haieas corpus to bring up prisoner to plead, 552 attend nomination of a special jury, 552 on return of cepi corpus, 553 of consultation, 498 2 Z LONDON : PRINTED BY WLLLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS,