Return to be forwarded to the Crown Office.]-Whatever form, however, the return assume, the clerk of the peace, if the return is from the session, or the single justice, annexes the orders to the writ, and remits them to the agent of the party applying, to be delivered by him into the crown office.

A certiorari was duly allowed for bringing up "all orders of sessions made" in the case of an appeal against an order of removal, "with all things touching the same." The clerk of the peace returned not only the order of sessions and original order of removal (q), but the notices of appeal, and statement of grounds of appeal, from which last it appeared that the appeal ought not to have been heard, or consequently the order of sessions, quashing the order of removal, made. A case had been refused. The court held that the return was irregular for stating more than the order of sessions, and would not look to the other matters returned, and decided that the return, not the writ, ought to be quashed (r). But as a new return, if properly made, viz. of the order of sessions simply, would not support a motion to quash that order, they discharged the rule for a certiorari without quashing the return (s).

Ulterior Proceedings.]-With the ulterior proceedings in the court above, we can have little concern here. It will be sufficient, by way of general information, to notice, that after the return has been thus made, the first proceeding is a motion to file the order, subsequently to which the regular course is pursued till the subject is argued by counsel. If, upon such argument, there appear any thing defective in the return, the court will make a rule that the case shall be sent back again, either generally to be re-stated, or for additional information on any particular point of it. This rule, together with the original record, is re-delivered to the clerk of the peace for inquiry at the next session, if belonging to the sessions of the peace; and the matter, if it relate to doubtful facts, must be inquired into de novo, as if nothing had passed on it before (t); but this is otherwise, if it arise from some mere informality to be corrected by the justices (u). A procedendo cannot be moved for while the certiorari is on the file of the court (v). The costs of a certiorari are treated of in the next page.

(q) Semble, the order of removal might properly be returned, see ante, p. 920.

(r) Reg. v. Abergele (Inh.), 8 Ad. & E. 394; 3 Nev. & Per. 406. In 2 Nolan, Poor L. 592, the writ was quashed. If a certiorari was quashed, a second might

issue, R. v. Hedingham Sible, 1 Burr. S. C. 114; R. v. Newton, id. 157.

(8) See R. v. Abergele (Inh.), 8 Ad. & E. 398; 3 Nev. & Per. 406. (t) Ante, p. 910; 2 Bott, 736, 743. (u) Ante, p. 910; Burr. S. C. 682. (v) 4 Burr. 2459.

SECTION IV.

OF COSTS.

Costs.]-Any attempt to compress a general dissertation on the subject of costs, within the compass of a section in a compendium of this description, would be useless; while a particular enumeration of instances respecting the allowance of them by statute, or otherwise, under all their different aspects, would mislead, because it could not be sufficiently comprehensive for universal application.

General Rules respecting Costs.]-A few general rules, and those referring to cases of ordinary occurrence before justices, are all that can be introduced consistently with the design of this work,

1st. Of costs on the removal of proceedings by writ of certiorari. 2ndly. Of costs on criminal prosecutions.

3rdly. Of costs on appeals against poor-rates.

4thly. Of costs on appeals against orders of removal.

5thly. Of costs of care and maintenance; to be indorsed upon a suspension of an order of removal.

6thly. Of costs upon appeals against overseers' accounts.

The remainder (which are not of ordinary occurrence) must be sought in the respective statutes which create, or declare, offences, regulate the modes of prosecution, and define the consequences.

1st. Of Costs of Certiorari by Defendants to Remove Indictments.] -The first statute on this subject is 21 J. I. c. 8 (w), which is (inter alia) "to prevent abuses in procuring writs of certiorari for removing indictments found before justices of the peace in their general sessions." It enacts, that certioraris shall not be thenceforth allowed to remove indictments for assaults from sessions of the peace, unless the party indicted shall become bound to the prosecutor by recognizances with sureties to pay such prosecutor, within one month after the conviction of the party indicted, such reasonable costs as the said justices in the said sessions of the peace shall assess and allow.

The recognizance to be taken before allowing a certiorari to a defendant for removing indictments, must be certified into the queen's bench with the certiorari and indictment, to be there filed, and the name of the prosecutor, if he be the party grieved or injured, or some

(w) Amended and continued by 8 & 9 W. III. c. 33.

public officer, to be indorsed on the back of the said indictment (x). And if the defendant prosecuting such writ of certiorari is convicted of the offence for which he was indicted (y), then the court of queen's bench shall give reasonable costs to the prosecutor, (if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, headborough, tithingman, churchwarden, or overseer of the poor, or any other civil officer, who shall prosecute on account of any fact committed or done, that concerned him as officer,) to be taxed according to the course of the said court, who shall for the recovery thereof within [viz. after the lapse of (z)] ten days after demand and refusal of payment, on oath, have attachment awarded, and the recognizance not to be discharged till the costs are paid (a); and the sureties (called manucaptors in sect. 2, ante, p. 921) must pay the prosecutor his costs, though there is no undertaking to that effect in the recognizance, or express provisions directing it in 4 & 5 W. & M. c. 11, s. 3 (b).

To satisfy the above description of "a party grieved," there must be some actual injury sustained (c).

The words "as officer," mean in the actual execution of the duty of an office, and that the party must bona fide be a prosecutor ex officio (d), and not a mere voluntary prosecutor, though in an office (e). The prosecutor's name need not be indorsed on the indictment, if he is a public officer, and that fact appears on affidavit (ƒ). Who is the prosecutor is often uncertain where there are more names than one on the back of the indictment, and must always be the business of the sessions to inquire and decide (g). Accordingly, in a case on the old highway act, 13 G. III. c. 78, s. 64, where the sessions found C. and E. to have been the prosecutors of an indictment for not repairing a road, the queen's bench would not interfere with the order of sessions intituled as in a prosecution by C. and E., and ordering them to pay the costs, though the names of two constables in whose presentment the indictment originated were on the back of it, while those of C. and

(x) 5 & 6 W. & M. c. 11, s. 2.

(y) That is, effectually convicted; for no costs can be taxed if judgment is arrested, R. v. Turner, 15 East, 570. (z) R. v. Ireland, 3 T. R. 512. (a) 5 & 6 W. & M. c. 11, s. 3. (b) Reg. v. Besant, 7 D. P. C. 680. (c) R. v. Ingleton, 1 Wils. R. 139. See R. v. Incledon, 1 M. & S. 268; R. v. Dewhurst, 5 B. & Adol. 405; 2 Nev. & Man. 253; R. v. Williamson, 7 T. R.

32; R. v. Taunton St. Mary, 3 M. & S. 465 (as stated by Littledale, J., 3 B. & Adol. 940).

(d) R. v. Williams, 1 T. R. 32; R. v. Dewsnapp, 16 East, R. 194; R. v. Shuttleworth, 5 T. R. 33.

(e) R. v. Sharpless, 2 T. R. 47. (f) R. v. Smith, 1 Burr. 55; and see R. v. Kettleworth, 5 T. R. 33.

(g) Per Lord Ellenborough, 4 M. & S. 207, citing R. v. Incledon, 1 M. & S. 268.

E. were not; and the sessions were held right in ordering the costs to be paid to the solicitor of the parish indicted (ƒ), no objection being made by them at the time.

Compelling Payment of Costs where Order or Judgment of Quarter Sessions is confirmed in Queen's Bench.]-If the party who removes an order of sessions by certiorari obtains the judgment of the court above, and thus makes his rule absolute, the recognizance is discharged as a matter of course (g). He is not entitled to receive costs; though, if his rule is discharged, he must pay them as taxed by the master of the crown office (h), before the recognizance can be discharged (i). The amount is not confined to the sum mentioned in the recognizance (j). For, by 5 G. II. c. 19, s. 5, if the order or judgment (viz. of the sessions) shall be confirmed by the court, the person entitled to the costs for the recovery thereof within (i. e. at the expiration or after the lapse of (k)) ten days after demand made on oath of such demand, and refusal of payment, shall have an attachment for the contempt, and the recognizance given on the allowance of such certiorari shall not be discharged till the costs are paid, and the order so confirmed complied with.

However, if the certiorari is superseded quia improvide emanavit, the party suing it out is not liable to costs, for they were occasioned by an improvident act of the court (1). So if he succeeds in quashing a removed order of removal in part (m). But he will not have costs where the removal was unnecessary and consequently vexatious; e.g. where the party was not affected by the act of the sessions which was quashed, though it might eventually make him liable to costs (n).

Again, if an order is sent back to sessions to be re-stated, and is returned amended, the party removing it originally is not liable to pay costs (o), unless he disputes the amended order, instructing counsel, and taking the chance of a judgment of the court in his favour on it (p).

(f) R. v. Commerell and Ellis, 4 M. & S. 203.

(g) R. v. Bray, Burr. S. C. 687. (h) R. v. Dore, Andrews, 252; 2 Nol. 4th ed. 621.

(i) R. v. Edgeworth, 4 T. R. 218. (j) R. v. Dore. "Costs and damages" in an act, mean costs as between attorney and client. Per Probyn, J., S. C. (k) R. v. Ireland, 3 T. R. 512, ante,

p. 935.

(1) R. v. Wakefield, Sayer on Costs, 306.

(m) R. v. Madley, Stra. 1198. Order of removal of man, wife, and daughter confirmed at sessions; orders quashed in K. B. as to the daughter, and confirmed as to man and wife.

(n) S. C. Sessions had made an order reserving a question of costs in case of a new removal. The court affirmed their order on the point of appeal, but quashed the reservation.

(0) R. v. Hitcham, Burr. S. C. 504; R. v. Bray, Burr. S. C. 687.

(p) R. v. Edgeworth, 4 T. R. 218.

The expense of maintaining the pauper between the times of giving judgment at sessions and in the queen's bench, cannot be allowed in the latter court, nor will they send back the original order of removal to the sessions, in order that they, by quashing it, may give the appellant those costs under 9 G. I. c. 7, s. 9 (q); but these costs would probably be directed to abide the event, if the judges did not decide it in the term in which the case came on to be argued (r).

By 5 G. II. c. 19, s. 5," the recognizance (ante, p. 921, 926) shall be certified to the king's bench, and there filed with the certiorari, and order or judgment removed thereby; and if the said order or judgment shall be confirmed by the court, the persons entitled to such costs, for the recovery thereof, within ten days after demand made of the person who ought to pay the said costs, upon oath made of such demand and refusal, shall have an attachment for such contempt, and the recognizance so given upon the allowance of such certiorari shall not be discharged until the costs shall be paid, and the order so confirmed, complied with and obeyed.

2ndly. Of Costs on Criminal Prosecutions.]--In former times, it was a subject of frequent complaint by judges that they had no power to order a remuneration to the prosecutor and witnesses in cases of serious crime (s). Several statutes were from time to time passed to give such power in proper cases of felony, whether the party accused was convicted or acquitted; and by 7 G. IV. c. 64, that power has been extended to a large class of misdemeanours. That act now contains almost the entire law on the subject of costs on criminal prosecutions, when payable out of public funds; having, with one or two exceptions, superseded all previous provisions.

Costs in Cases of Felony, whether Bill preferred or not-and Certificate of Magistrate.]-By 7 G. IV. c. 64, s. 22, "the court before which any person shall be prosecuted or tried for any felony, is hereby authorized and empowered, at the request of the prosecutor, or of any other person who shall appear on recognizance or subpoena to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor shall incur in preferring the indictment, and also payment to the pro

(g) R. v. Moor Critchell, 2 East, 222; and R. v. West Cranmore, 2 Nol. 623, n.

(r) See Overnorton v. Salford, 1 Bla.

Rep. 436.

(s) 2 Hale, 282; Hawk. B. 2, c. 46, s. 173.