1853.

The QUEEN against ARCHIBALD WILSON.

Thursday, January 27th.

The defendant by the Lord don for trial

was committed

for an indecent

assault. An

found at the

Central Cri

minal Court,

was removed

into this Court

by certiorari, of the defenddefendant was convicted. The prosecu

at the instance

ant. The

The tion was con

ducted by the

SIR F. Thesiger, in this term, obtained a rule calling on the prosecutors to shew cause why a side bar rule, obtained in this prosecution, for taxing the costs to be paid by the defendant to the prosecutor or his attorney, should not be set aside. From the affidavits, on both indictment, sides, it appeared that the defendant was, in 1851, committed by the then Lord Mayor, to take his trial for an indecent assault on a boy. An indictment was preferred at the Central Criminal Court, and was removed by certiorari into this Court at the instance of the defendant. The case was tried before a special jury; and the defendant was convicted. In criminal cases, within the City, in which a failure of justice is likely to ensue the prosecution is left to the person injured, the Lord Mayor or Alderman, who commits the prisoner, usually instructs the city solicitor to conduct the prosecution; and the costs of all prosecutions thus conducted are, in practice, allowed out of the City funds. In the present case, the defendant being a person of considerable wealth, and the person assaulted a boy in humble circumstances, the Lord Mayor instructed the city solicitor to conduct the prosecution: and, in obedience to those instructions, he conducted it throughout; and the expenses were paid out of the funds of the City.

if

city solicitor, the directions

in obedience to

of the Lord

Mayor given

at the time he

committed the

defendant;

and the exdefrayed out of

penses were

d Held, that the

case was not

within stat.

5

& 6 W. & M. inasmuch as

c. 11. s. 3.,

the Lord

Mayor was not personally liable for the

expenses, and could not be

considered as a prosecutor. And a side bar rule taken out to tax the costs was set aside

1853.

The QUEEN

C.

V.

WILSON.

Hugh Hill now shewed cause. Stat. 5 & 6 W. & M. 11. s. 3. was much considered in The Queen v. - (a). In that case Lord Campbell C. J. asks: "Does not it concern those to prosecute whose duty it is to do so, though the duty be only one of imperfect obligation ?” In the present case, it can not be doubted that the Lord Mayor, the chief magistrate of the City, in directing the city solicitor to conduct this prosecution, did perform a duty, though perhaps only one of imperfect obligation. [Coleridge J. I do not find that the Lord Mayor did prosecute in this case. He directed the city solicitor to prosecute; but he did nothing to make himself personally liable for the costs. In Rex v. Cook (b), in which I was concerned when at the bar, a rule to tax the costs of a prosecution was discharged, not on the ground that it was not the duty of the officers to prosecute, but because the expenses of the prosecution were defrayed by public subscription. It would seem that the object of stat. 5 & 6 W. & M. c. 11. s. 3. was to indemnify a certain class of prosecutors; and that, to bring a case within it, there must be some such prosecutor, personally liable for those costs, to be indemnified.]

Sir Frederick Thesiger was not called upon to support

his rule.

Lord CAMPBELL C. J. I regret very much that the costs of this prosecution cannot be recovered from the defendant. There is no doubt that the conduct of the

(a) 15 Q. B. 1060.

(b) See post, p. 599, note (e).

1853.

V.

WILSON.

Lord Mayor in instructing the city solicitor to conduct the prosecution was most laudable: and, had the prose- The QUEEN cution not been so conducted, there would most probably, have been a failure of justice; but we are bound by the rules of law, and cannot give the costs of the prosecution, however laudable, unless the case is brought within stat. 5 & 6 W. & M. c. 11. s. 3. (a). The object of that statute was to indemnify a class of prosecutors against the costs of prosecutions which it was their duty to institute. In Regina v. -- (b) the prosecution was by the Guardians of the Union, who were personally liable for the costs of the prosecution, which they could not have charged to the parish. But Rex v. Cook (c) cited by my brother Coleridge, decides conclusively that, the object of the statute being to indemnify the prosecutor, there must be a prosecutor liable to the expenses, or the case is not within the statute. Now, in the present case, the Lord Mayor was not liable: therefore this case is not within the statute.

COLERIDGE J. and WIGHTMAN J. concurred (d).

Rule absolute (e).

(a) Extended by stat. 5 & 6 W. 4. c. 33. s. 3. to the recognizances provided for by that section.

(b) 15 Q. B. 1060.

(c) See note (e) infra.

(d) Crompton J. was absent on account of a domestic calamity. (e) Rex v. Cook is reported in 1 Man. & Ry. 526; but at the time of the argument in the principal case it was supposed not to be reported.

Mr. Robinson, the Master of the Crown Office, has kindly furnished the reporters with the following extract from his notes of that and another

case.

1827. Rex v. Cook, on the prosecution of churchwardens &c. of parish in Exeter.

Indictment (for disinterring dead bodies) removed from sessions by certiorari. Conviction. Prosecutor held not entitled to costs under the

1853.

The QUEEN

v.

WILSON.

statute, it being shewn by affidavit that the expenses of the prosecution were defrayed by subscription: and the side bar rule taken out for taxing the costs was discharged.

Rex v. Davies. Indictment for like offence on prosecution by father of the deceased.

Prosecutor, in like manner, held not to be entitled to costs, because he was not real, but nominal, prosecutor, prosecution being carried on by subscription. And side bar rule for costs discharged. 13 May, 1830. See also Regina v. Williams, 6 Q. B. 273.

Thursday, January 27th.

At a municipal

election, a voting ticket

The QUEEN against THOMAS GREGORY.

COWLING, in Michaelmas term 1852, obtained a rule Nisi for a quo warranto against the defendant, for signed. J. exercising the office of councillor for the Abbey Ward in was rejected, the borough of Reading. Two councillors were elected for that the quali- this ward on 1st November 1852. At the election, there fication of W. J.

of K. Street'

on the ground

on the burgess were four candidates, of whom the defendant Gregory and James Philips were two. Several votes tendered

roll was described as

⚫ House in M. Street.'

It was shewn

by affidavits

and M. Street

the house in

question was

the corner

were rejected. One of the other candidates had a clear majority, and was elected. Gregory and Philips that K. Street had an equal number of the votes received; and the intersect; that presiding alderman and one of the assessors named Gregory as the person elected. The rule was obtained on the ground that the vote of a burgess called William Pearce Ivey, tendered for Philips, was improperly rejected. The voting paper was signed " William Pearce Ivey, of King Street, in the parish of St. Lawrence." On been two dis- the burgess roll, Ivey's qualification was inserted as

house; that it

was one house, with a street door in each street, con

sisting of what had formerly

tinct houses,

one in each

street, and one of them being the house in M. Street. Held: that the description was such as to be commonly understood within the meaning of stat. 5 & 6 W. 4. c. 76. s. 142., and that the vote was improperly rejected.

"House. Minster Street, in the Parish of St. Lawrence."

From the affidavits, on both sides, it appeared that Minster Street and King Street intersect. Mr. Ivey, in 1844, occupied the house No. 63 in Minster Street, which was that next to the intersection of the two streets; his name was then entered on the burgess roll by the description, which still remained unaltered. In 1848 he purchased the house No. 8 in King Street, which was the corner house in King Street and adjoining to the house No. 63 in Minster Street. He threw down the division between the two, and from that time occupied both, as one house, with two street doors, one being the door No. 63 in Minster Street, the other door No. 8 in King Street.

Phipson now shewed cause.

Stat. 5 & 6 W. 4. c. 76.

s. 32. enacts that the votes shall be given by a paper, "such paper being previously signed with the name of the burgess voting, and with the name of the street, lane, or other place in which the property for which he appears to be rated on the burgess roll is situated.” Reliance will no doubt be placed on sect. 142, which enacts "that no misnomer or inaccurate description of any person, body corporate, or place named in any schedule to this Act annexed, or in any roll, list, notice, or voting paper required by this Act, shall hinder the full operation of this Act with respect to such person, body corporate, or place, provided that the description of such person, body corporate, or place be such as to be commonly understood." The description in the voting paper is not an inaccurate description of the house 63, Minster Street, for which the voter was rated and

1853.

The QUEEN

V.

GREGORY.