Superior Courts: King's Bench.

83

Lord Denman, C. J.-The case now stated amounts to no more than this, that the sessions have committed a mistake in point of law. We have not the power to interfere to correct that mistake. The conviction cannot be brought up here by certiorari, the right to do that is taken away from the appellant by statute. No authority has been produced to shew that we can interfere in the way now desired. They have heard the appeal; and whether right or wrong, their decision is for this purpose final.

sary that the justices should proceed according | troduced with observations on the part of the to the directions of the statute which gave them | advocate. I think that this Court has no these extensive powers. The 30th section jurisdiction to interfere in such a case." The of the act declares the penalty to be imposed justices here did not refuse to hear in a parupon persons trespassing in the daytime upon ticular manner: they refused to hear at all. lands in search of game; and it contains this There appeared to be a magic in the word proviso: "Provided always, that any per- poaching," which was improperly employed son charged with any such trespass, shall be at on the occasion, that at once decided their judgliberty to prove by way of defence any matter ment. Yet this appellant was no poacher; he which would have been a defence to any action was a wine merchant at Oxford, who had given at law for trespass ;" and further that the notice of his intention to go upon this land in lord or steward of the Crown of any manor, pursuit of rabbits for the express purpose of lordship or royalty, or reputed manor, &c. trying his right, as a tenant of the manor, to shall be deemed to be the legal occupier of the shoot on the wastes of the manor. If any land of the wastes or commons within such person had a right to complain of the trespass, manor, lordship or royalty." The 44th sec-it was the Earl of Abingdon, and not the tion gives the party the right to appeal to the president and fellows of St. John's College. quarter sessions, and the 45th, as already stated, The justices have not followed the directions takes away the certiorari. The 30th and 45th of the statute, and this Court must therefore sections must be taken together, and as the exercise its authority to cause those provisions certiorari is taken away, the most perfect to be observed. liberty inust be allowed to a defendant to enter upon his defence, and to prove in an information under the act, anything which he might have proved had an action of trespass been brought against him. On the occasion of this appeal coming on at the sessions, the respondent's counsel was about to prove the trespass, when the appellant's counsel with a view to save time, admitted that the rabbit had been shot in the place in question. [Lord Denman, C. J.,You admitted the trespass in fact?] Not exactly so. The appellant admitted shooting the rabbit, but denied the trespass; for his defence was, that the land where the rabbit was shot, was part of the waste of a manor of which the Earl of Abingdon was the lord, and of which he the appellant was a tenant, and * But see Rex v. Cumberland Justives, Monover which he had by the custom of the manor day, Feb. 1, Hil. Term, 1836. A rule had a right of sporting. [Lord Denman, C. J.-been obtained for a mandamus, commanding Then in fact you are moving for a new trial? the justices of Cumberland to enter continuA man named Can you find any authority for such a motion?] ances and hear an appeal. There is no authority directly in point. The Beaumont had been convicted under the 5 G. case that will perhaps be referred to, is that of 4, c. 83, for refusing to maintain his wife and Rex v. Justices of Carnarvon, The judg-children. His defence was, that he had never ment of Mr. Justice Bayley in that case, appears to be opposed to the present application. But there is a wide distinction between the two cases. The judgment there proceeded upon the peculiar circumstances brought before the Court, from which it appeared that the complaint was against the justices, not for not having heard, but for having pursued a certain course on the hearing. In this instance they have not heard the appellant at all. The judgment of Mr. Justice Holroyd there, is clearly in favor of this application. That learned Judge said, "If it had appeared in this case that the sessions had heard one side, and had altogether refused to hear the other, I should have thought it the same as if the case had not been heard at all, and I should then have been of opinion that this mandamus ought to issue; but in this case it appears to me that this was merely a question as to the practice of the sessions, who have determined that the evidence tendered ought not to have been in

Rule refused.* -The King v. The Justices of Berks, T. T. 1837. K B. F. J.

been legally married to the woman. The magistrates on appeal against the conviction, heard part of the evidence, and then saw that that they had no power to try a question of the validity of a marriage, which must be decided in the Ecclesiastical Court.

Mr. Alexander and Mr. IV. C. Rowe shewed cause against the rule. When the magistrates have good reason to believe that their decision on the matter submitted to their consideration may subject them to an action, they have a right to refuse to decide it; and this Court will not compel them by mandamus to

do so.

Rex v. Somersetshire, Hall v. Dyer.d [Lord Denman, C. J.-Have they heard all the evidence?] No, they have not. [Lord Denman, C. J.-Then can it be said that the case has been heard?] The right of the magistrates to act in this manner, depends chiefly upon the general principle already stated. The words in the statute are not compulsory upon them. The words in the statute giving the

c1 Harrison & Woll. 82.

d Ibid 83.

Superior Courts: Common Pleas.

Tindal, C. J.-I do not see how the Court can distinguish this case from those already decided, of Hartley v. Case, and Solarte v. Palmer, without drawing subtle and refined distinctions, which will render the rule incapable of general practice. This letter certainly does not amount to such a notice as that the defendant is bound to see from it, that payment of the note has been refused. The Act of the 9 and 10 W. 3, c. 17, s. 1, contains a form of protest, in which the two important points of notice of dishonour and non-payment are contained.

Park, J.-I am quite satisfied that any ordinary person would know what the full extent of notice intended to be conveyed by this letter, and but for these two cases, I should think the We cannot, however, get notice sufficient. over the decisions to which our attention has been pointed.

Bosanquel, J.-I am of opinion also that the case cannot be distinguished from those already decided.

|
Coltman, J.-I am of the same opinion. I
do not know, however, that our decision is so
unfavourable as might be conceived for mer-

Superior Courts: Common Pleas.

cantile men, for it is proper that they should draw their notices in a proper form.

Rule absolute.-Boulton v. Welch, E. T. 1837. C. P.

FINES AND RECOVERIES ACT.-COSTS.

Charges for business done under the Fines and Recoveries Act, in preparing an affidavit of verification of the certificate of acknowledgment of a married woman, and procuring it to be sworn, &c., are not taxable.

85

that the Court would put a liberal construction on the act, and would, if possible, draw charges within the operation of what had been called a beneficial statute. It was provided by the 89th section of the particular act, having reference to this case, that the Court of Common Pleas should make certain regulations for the mode married woman, as well as the matters to be of proceeding, and for the examination of mentioned in the certificates and affidavit verifying the same, and touching the fees and charges to be paid for copies of the same, and "also the fees and charges to be paid for taking acknowledgments of deeds, and for examining married women, and for the proceedings, matters, and things required by this act to be had, done, and executed, for completing and giving effect to such acknowledgments and examinations." This provision clearly embraced the present case.

Hoggins had obtained a rule, calling on John Branson, an attorney of the Court of King's Bench, to shew cause why his bill of costs delivered to the person on whose behalf the application was made, should not be referred to the prothonotary to be taxed. The bill amounted to about 60%., and the items, by Park, J.-That section refers to the fees to which it was contended that it was made tax-be paid to the commissioners, which are reguable, were charges for business done in pre-lated by the rule of H. T., 4 W. 4. paring an affidavit verifying the certificate of the taking an acknowledgment of a married woman, under the statute 3 & 4 W. 4, c. 74, (the Fines and Recoveries Act.)

Wilde, Serjt., shewed cause and admitted that charges for such business, done under the old practice, would undoubtedly have rendered the bill taxable, because it was supposed that they were proceedings done in a cause, but the peculiar jurisdiction formerly possessed by the Court in such matters, would not in any way affect the proceedings under the new act. All business done in Court, must be conducted by an attorney; such proceedings as those charged for, might be carried on by any person, not an officer of the Court.

Tindal, C. J., said, the rule must be discharged. The first statute relating to attor neys was the 3 Jac. 1., c. 7, s. 1, by which all attorneys were required to give a true bill of their charges to their masters and clients, or their assigns, concerning the suits which they had for them, subscribed with their hands, before they should charge them with any of the same fees. The statute of 2 G. 2, c. 23, s. 23, declared that certain things should be done before any attorney should commence or maintain any action for the recovery of any "fees, charges, or disbursements at law, or in equity," from his client. These statutes, it was evident, referred to charges incurred in the course of a suit, and the Court seemed rather to have stretched their power in holding in ex parte Hoggins, in support of his rule, submitted, Prickett, 1 N. R. 266, that a charge for suing that the material question for the consideration out a writ of dedimus potestatem for the acknowof the Court was, whether these were proceed-ledgment of a fine, was within the meaning of ings "at law or in equity," which were the words used by the act of parliament (2 G. 2, c. 23, s. 23). Charges for drawing and engrossing an affidavit of debt, to hold a party to bail, and for money paid for swearing &c., had been held to be charges which were within the statute, Winter v. Payne, 6 T. R. 645. The charges here were of a similar description: they were for drawing and engrossing an affidavit of acknowledgment; and for attending Park, J., said that there could be no doubt the married woman before the commissioner; that the statute of 2 G. 2, c. 23, was a beneand attending to get the affidavit sworn; forficial statute; that he was of opinion that the money paid for the oath and exhibit, as well as Court had already carried its authority in its defor attending to bespeak an office copy of the cisions upon it to the very utmost verge. inrolment. These were charges for business present case was not a suit at law, or in equity, done in Court, and were therefore at law.and was not within the act. Many deeds were The inrolment of the certificate of taking an inrolled in the Court, but that was only for acknowledgment, and of the affidavit of verifi- their proper and safe custody, and their inrolcation, were charges done in Court by the ment did not come within the meaning of the 85th section of the Fines and Recoveries Act. Tindal, C J.-Charges for inrolling a deed, in the Court, will not make a bili taxable.

Hoggins, went on to cite Fearne v. Wilson, 6 B. & C. 86; Smith v Wattleworth, 4 B. & C. 354; and Lethbridge v. Luxmore, 1 D. & R. 511; the effect of the decisions in which was,

the statute. The Act under which this application was made, was entitled, " An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple modes of assurance," a title which clearly shewed that the charges in this bill were not taxable. Although the deed was inrolled in Court, yet that was not a proceeding in a suit, but was merely a conveyance from one person to another.

statute.

The

Bosanquet, J., and Coltman, J. concurred. Rule discharged.-In re Branson, E. T. 1837. C. P.

Superior Courts: Exchequer.

Superior Courts: Exchequer.-Parliamentary Proceedings.

is in fact a direction that the verdict shall be entered for the plaintiff with 277. damages.

Rule refused.-King v. Earl of Dundonald, To establish Local Courts... Mr. Roebuck. E. T. 1837. Excheq,

the application came too late. Hippesley v. To repeal the Septennial Act, 1 G. 1, c. Luying, 4 B. & C. 363.