case of an order, which differs essentially in this respect from a conviction. In 2 Nolan's Poor Law, p. 299, and Paley on Convictions, p. 128, (3rd edit.), it is laid down, that no summons need appear on the face of an order-The King v. Venables (3), The King v. Clayton (4). Intendment will be made in support of an order of Magistrates. doubt this averment is introduced into the form given in the schedule to 8 Vict. c. 10, but that is merely directory.

No

F.V. Lee, contrà.-The 7 & 8 Vict. c. 101. s. 4. enacts" That no such order shall be made unless applied for at the said petty sessions within the space of forty days from the service of the summons after the birth of the bastard child, on the person alleged to be the father of such bastard child." The fact of the application being made within the forty days is therefore the very foundation of the jurisdiction of the Justices to make the order, and ought to appear. The recent act, 8 Vict. c. 10, only cures defects in orders which are set forth in the forms given in the schedule; and the form, No. 8, which is applicable to the present case, does contain this averment (5). The notice of the certiorari is a sufficient compliance with 13 Geo. 2. c. 18. s. 5; the words, or as soon after as counsel can be heard," shew that the intention was not to move until after the expiration of the six days.

66

PATTESON, J.-The case of In re Flounders is not quite in point. There a notice was given on the first day of term of an intention to move on the same day. But the notice in this case seems to me to be good on the face of it. It must mean that the motion will be made when the six days are over. With regard to the other point, without entering into the question of the petty sessional division, which might depend on the construction of the act of parliament under which the stipendiary Magistrate is appointed, it seems to me that the omission of a statement that the order was applied for within forty days from the service of the summons on the putative father, is a fatal objection, for it is quite clear that the Justices have no jurisdiction unless the order is applied for within this period, and therefore

The

it ought to appear on the face of the order, that it was made within the limited time. The form given in the schedule to the recent act was referred to; now this act was passed for the purpose of curing defects in orders made under the former statute; and it provides, that orders which are in the form given in the schedule shall be sufficient; but this order is not in fact drawn up in the form in the schedule, and therefore cannot have the benefit of the statute. form, No. 8, in the schedule, makes it clear that it was intended that the order should shew, on its face, that it was made within the period of forty days limited by the act. A distinction between orders and convictions was relied upon in the argument; and it was contended, on the authority of Mr. Paley, that intendment will be made in favour of the former though not of the latter. But we have lately decided, that orders which are of a final nature are rather to be considered in the light of convictions than of orders. I do not mean to say that such an order as the present is a conviction; but I confess I am at a loss to understand how an order fixing a party as the putative father of a bastard is not at least somewhat like a conviction. However, if this were not a question of jurisdiction I would not overthrow the order on this objection, but as it is an allegation that goes to the jurisdiction of the Magistrates, I think it must appear as much in an order as in a conviction (6).

1845. Nov. 19.

Rule absolute for a certiorari.

Conviction

THE QUEEN v. RICHARD JOHN-
SON.

- Seditious Societies Act39 Geo. 3. c. 79.-2 Vict. c. 12.

It is not necessary, in a conviction under the 39 Geo. 3. c. 79. s. 15, that the information should be in the name of the Attorney or Solicitor General.

A conviction following the form given in that statute was held sufficient, though the name of the informer (to whom by the statute half the penalty imposed is payable) nowhere appeared therein.

(6) See The Queen v. Shipston-upon-Stour, 13 Law J. Rep. (N.S.) M.C. 128.

A certiorari had been obtained to bring up the following conviction for the purpose of quashing it:-"Borough of Kingstonupon-Hull, to wit.-Be it remembered, that on the 8th day of October, A.D. 1844, Richard Johnson, of Saville-street, in the said borough of Kingston-upon-Hull, is duly convicted before us, George Cookman, Thomas Firbank, and John Barkworth, Esqs., three of Her Majesty's Justices of the Peace for the said borough of Kingston-upon-Hull, in pursuance of an act of the 39th year of the reign of King George the Third, intituled 'An Act for the more effectual suppression of societies established for seditious and treasonable practices.' For that, on the 20th day of September A.D, 1844, at the parish of Holy Trinity, in the borough of Kingstonupon-Hull aforesaid, a certain person, to wit, one Mrs. Martin, did publicly deliver a certain lecture on the subject of 'The Follies and Crimes of Christian Missions,' in a certain room in the house of one James Preston Watson, situate in the parish of the Holy Trinity aforesaid, the said house being an inn called or known by the name or sign of the White Horse Inn;' to which room aforesaid divers persons were admitted by and upon payment of money for the purpose of hearing the said lecture so delivered as aforesaid, the said house called the White Horse Inn' not being a house licensed in pursuance of the statute in such case made and provided, for the purpose of delivering for money lectures or discourses therein, and the said room in the said house not being so licensed as aforesaid; and that the said Richard Johnson, on the said 20th day of September in the year aforesaid, at the parish of Holy Trinity aforesaid, in the borough aforesaid, did unlawfully and contrary to the said act receive of and from one George Freeman the sum of 2d. for the admission of him, the said George Freeman, into the said room, to hear the said lecture during the time of the delivery of the lecture aforesaid, the said house then and there not being licensed, in pursuance of the statute in such case made and provided, for the purpose of delivering for money lectures or discourses therein, and the said room in the said house not being then and there so licensed as aforesaid; and the said Richard Johnson knowing the said room to be open for the purpose aforesaid at the time he so

received the said money from the said George Freeman for his admission into the said room to hear the said lecture, and also knowing that neither the said house nor the said room was so licensed as aforesaid, whereby and by force of the statute in such case made and provided, the said R. Johnson hath forfeited for his said offence the sum of 201., to be distributed as the act directs. Whereupon we, the said George Cookman, Thomas Firbank, and John Barkworth, adjudge, that he, the said Richard Johnson, do pay the sum of 201. as a penalty for his said offence in pursuance of the said act. Given under our hands and seals this 8th day of October, &c.

The following objections (inter alia) were stated:-First, that the conviction was not obtained upon any information or other proceeding in the name of Her Majesty's Attorney General or Solicitor General, pursuant to the statutes 2, Vict. c. 12. s. 4. and 39 Geo. 3. c. 79, but (as was shewn by affidavit) upon the information of one Andrew Macmanus, superintendent of police for the borough of Hull, and therefore that the Magistrates had no jurisdiction. Secondly, that the conviction was informal and defective in not shewing the name of the informer, or that the defendant was ever summoned or heard, or that any witness was examined upon oath, or that the penalty was distributed one-half to the informer and one-half to Her Majesty.

Parry, for the defendant.-The statute 2 Vict. c. 12. amends the Seditious Societies Act, 39 Geo. 3. c. 79, and repeals some of its provisions; but section 6. of the later act enacts that, except so far as therein repealed or altered, the two acts shall be construed as one act. The 2nd of Vict. does not repeal or alter the 15th section of the 39 Geo. 3. c. 79, under which section it would seem that this defendant has been convicted. The two statutes must therefore, for the present purpose, be incorporated, and read as one act. But the statute 2 Vict. c. 12. s. 4. provides that no information before any Justice against any person for the recovery of any penalty incurred under the provisions of that act, shall be prosecuted, except in the name of the attorney or solicitor-general; "and if commenced or prosecuted in the name of any other person, the same shall be null and void to all intents and purposes." As therefore,

the alleged offence of the defendant is an offence against both statutes, the information ought to have been in the name of the Attorney General, and the conviction is bad for not so stating. The objection was taken, but overruled by Patteson, J. in Ex parte Higginbotham (1). Further, the conviction is bad, inasmuch as the penalty is not distributed in it. By the statute 39 Geo. 3. c. 79. s. 36, all forfeitures imposed by the act, shall, when recovered, be applied, one moiety thereof to the informer, and the other moiety to the Crown. name of the informer nowhere appears in this conviction; the defendant was entitled to know who the informer was, in order that he might relieve himself from the liability which the penalty imposes on him; his imprisonment might otherwise be perpetual-The King v. Sarah Seale (2).

The

[WILLIAMS, J.-There was there no summary form of conivction given in the statute under which the conviction took place. But the statute 39 Geo. 3. c. 79. gives in the schedule a summary form, which appears to have been pursued in the present case.]

Although a summary form of conviction be given, there must nevertheless be no material omission in the conviction.

[WIGHTMAN, J.-Then all forms drawn according to this schedule are wrong.]

[LORD DENMAN, C.J.-It was probably taken for granted in directing the forms in the schedule, that the name of the informer had appeared in the information, or in some previous part of the proceedings.]

The King v. Helps (3) and The King v. Priest (4) were also cited.

Martin, contrà, was stopped by the Court.

LORD DENMAN, C.J.-I do not know what the general effect of construing these two acts of parliament as one may be; nor is it necessary now to inquire. The defendant has been convicted of an offence under the 39 Geo. 3. c. 79, and I am clearly of opinion that the 2 Vict. c. 12. does not apply to that offence. The act of Vict. repeals the act of Geo. 3. so far only as it relates to printing papers or books without the printer's name;

(1) 9 Dowl. P.C. 200.

(2) 8 East, 568.

(3) 3 Mau. & Selw. 331. (4) 6 Term Rep. 540.

NEW SERIES, XV.-MAG. CAS.

and, in the second section, imposes a penalty of 51. upon persons so printing any paper or book without the name and place of abode of the printer. Then, in the fourth section, it is provided, that no proceedings for penalties under that act, that is, for printing without the printer's name, shall be prosecuted except in the name of the Attorney General. There might have been more force in the argument on the part of the defendant if there had been no offence mentioned in the act of Victoria, but as there is such an offence specified, the provision as to using the name of the Attorney General applies to that offence only. As to the second objection raised, I think this conviction is good. It follows the form given in the schedule to the 39 Geo. 3. c. 79; and, generally speaking, the rule is, that a conviction must necessarily be good which follows the form prescribed by the act of parliament. The Court, however, has found it necessary to impose some restrictions on this general rule, because, where an offence is created by act of parliament, and the form given in the schedule does not state the words in which the offence shall be described, it is then impossible for the Court to say that a conviction which merely follows the form shews that any offence has been committed. But this exception to the general rule does not apply here. The conviction would have been defective if the offence had not been described in it. But it is described in it with accuracy, and so that description of the offence becomes a part of the form of conviction prescribed in the act of parliament. And, though one may perhaps regret, that in not requiring that the name of the informer, to whom the half of the penalty is to be paid, should appear, the form prescribed may be insufficient for the protection of the party convicted, still the act of parliament has expressly said that such a form shall be sufficient; and in practice, probably, no real difficulty can have arisen from the omission.

WILLIAMS, J.-As to the last objection, had there been no summary form given in the statute, there would have been great difficulty in holding this conviction to be sufficient. But the distinction between this case and those which have been cited is this-that here a summary form is given; there, there was none. It has been long

C

enough settled, that the offence must appear on the face of the conviction, and when the form given has been (as here) an introduction and a conclusion only, with a direction, "Here set out the offence," we know by experience, that such a form gives very little assistance, because the real difficulty in these cases always is, to state properly the ingredients of the offence. Here the offence is properly set out, but it is said, the conviction is bad for not shewing the name of the informer. But the form given does not require it; and, whatever may be the consequence of this omission, I, for one, do not think that it involves the probability of that eternal imprisonment of his client which Mr. Parry would seem to anticipate. As to the other objection, I agree that the statute 2 Vict. c. 12. does not apply to the present case.

WIGHTMAN, J.-I see no difficulty whatever in the first objection, because, giving the fullest effect to the argument that these two statutes are to be read as one, the result will be, that there are certain offences and penalties created by each statute. Then the statute of Victoria contains a clause, the effect of which is, that a common informer cannot sue for the penalties thereby inflicted. But that restriction is applicable only to so much of the amalgamated statute as refers to the offence of printing without the printer's name. As to the second objection, I quite agree with the rest of the Court. The statute gives a precise form of words for the commencement of the conviction, and the adjudication at the close of it. Both have been followed in the present case, and no objection is raised to the statement of the offence in the body of the conviction,

any defendant in misdemeanour :-Held, a judicial order properly removable by certiorari.

Held, also, that such an order was illegal, it appearing that a table of fees payable to the clerk of the peace, including certain fees payable by defendants in misdemeanour, had been settled by the Sessions, and ratified by the Judges of Assize in 1826, in the manner prescribed by the stat. 57 Geo. 3. c. 91, and was still in force at the time of the order.

The stat. 8 & 9 Vict. c. 114, abolishing certain fees in future, does not apply to defendants convicted, or to fees payable upon traverses.

The affidavit of Mr. Coles, the clerk of the peace, upon which the certiorari was granted, stated that from his appointment to the office in 1810 down to 1826, he had been in the receipt of such fees belonging to that office as had been taken by his predecessors, amongst which were certain fees paid by defendants in misdemeanours. That, under the stat. 57 Geo. 3. c. 91, a table of fees to be taken by the clerk of the peace for the county of Somerset was, at the Somersetshire Michaelmas Sessions, 1825, ascertained, made and settled; that at the following sessions the same was approved, and at the following Lent Assizes, 1826, was laid before the Judges of Assize for the county, pursuant to the statute; and by them (Gaselee, J. and Burrough, J.) was ratified and confirmed, with certain alterations. That such table had been acted on up to the time of the order of sessions now complained of (1). A copy of the table of

(1) Stat. 57 Geo. 3. c. 91. s. 1. recites, that doubts have arisen touching the fees and allowances due and to be made to clerks of the peace; and enacts for the removing of such doubts, that from and after the 1st day of July next, it shall and may be lawful for the Justices of the Peace in every county, &c., at their respective General Quarter Sessions of the Peace, to ascertain, make and settle a table of fees and allowances to be taken by the clerk of the peace for such county, &c., and such

fees was annexed to the affidavit, and it appeared that certain fees therein mentioned were payable by defendants in misde

meanour.

Sir F. Thesiger (Attorney General), Sir F. Kelly (Solicitor General) and M. Smith shewed cause.-This is not an order removable by certiorari. It is not a judicial order, but a mere direction by the Court of Quarter Sessions to their officer as to the mode in which he shall conduct himself in his office in the receipt of fees. The writ of certiorari lies only to remove judicial proceedings-The King v. Lediard (2), The King v. E. P. Lloyd (3).

[COLERIDGE, J.-Suppose the Magistrates were to make an illegal order for a payment out of the county rate, would not that be the subject of a certiorari? Yet it would be an administrative-not a judicial act.]

The certiorari would not lie in such case, unless it be given by some express statutable enactment. In Tomlin's Law Dictionary, tit. 'Certiorari,' the whole uses of the writ are mentioned, but no instance is

table of fees and allowances, when so made, shall be subject to the approbation of the Justices of the Peace, at the then next succeeding General Quarter Sessions; and such table of fees, when so approved, shall be laid before the Judges of Assize, at the next assizes for such county, &c.; and the said Judges are thereby authorized to ratify and confirm such tables, either as settled and approved as aforesaid, or with such alterations, additions and improvements, as to such Judges shall appear to be just and reasonable; and it shall be lawful for the said Justices of the Peace, at their respective Quarter Sessions of the Peace, from time to time in like manner to make other tables of fees and allowances, instead of or in addition to the tables of fees and allowances before made, which shall be approved and afterwards ratified and confirmed in like manner; which fees and allowances contained in such tables respectively, when so made and approved and afterwards ratified and confirmed as aforesaid, shall be the only fees and allowances which shall be taken by the clerks of the peace of the several counties for which such tables respectively shall be so made, approved, ratified and confirmed, from and after such ratification and confirmation thereof respectively; anything in any act of parliament, or any law, usage or custom to the contrary in anywise notwithstanding.

Sect. 2. imposes a fine of 51. upon any clerk of the peace or other person acting as such for taking any fee or allowance other or greater than the fees or allowances ascertained, ratified and confirmed as aforesaid.

(2) Sayer, 6. (3) Cald. 309.

given of a certiorari, except in some judicial proceeding, in some stage of a cause either criminal or civil.

[COLERIDGE, J.-In Williams v. Lord Bagot (4), a certiorari issued to an inferior court to return the practice of the court, in order that it might appear on the record which was going into a court of error.]

That was a proceeding auxiliary to a cause in this court, and to assist the Court in doing justice in a cause then before them. There is no cause now before this Court, and no one asking for justice. The order complained of, if not legal, is a mere nullity, and in that case Mr. Coles may continue to take fees as before. If an indictment were brought against him for extortion in so doing, this order would be no evidence against him.

[COLERIDGE, J.-Is it for those who issue it, and who now return it to this court, to say that it is a nullity?]

Secondly, assuming this to be an order properly removable by certiorari, it is good on the face of it, and it is for those who impeach its validity to shew that it is illegal. This can only be done by establishing that fees can lawfully be taken from defendants in misdemeanour. Reliance is placed upon the fact that such fees are to be found in the table framed by the Sessions, and sanctioned by the Judges, under the stat. 57 Geo. 3. c. 91. But it was not competent to the Sessions to introduce into that table any fees payable by defendants, and the table is therefore illegal and invalid, so far as it relates to such fees. The stat. 57 Geo. 3. c. 91. nowhere refers to defendants, and there is nothing in it authorizing the imposition of any liability which did not The right to receive previously exist. them must therefore have arisen in one of the four following ways:-first, at common law; second, by prescription; third, by custom, or, fourthly, by statute. First, it does not rest on common law; for "at common law no officer whose office related to the administration of justice could take any reward for doing his duty, but what he was to receive from the king. And this fundamental maxim of the common law is confirmed by the stat. Westminster 1. c. 26,"

(4) 4 Dowl. & Ryl. 315; s. c, 2 Law J. Rep. (N.S.) K.B. 152.