C. CAS. R.] COBBETT T. WHEELER AND ANOTHER. [Q. B. of its provisions. That ground does not annul the verdict. The great point in Mr. Wheeler's argument is really one in arrest of judgment. The defendant was indicted for a misdemeanor supposed to have been tion, an offender was liable to an indictment an a| Ignorance of the statute is no excuse for the violation severer penalty than he would be under sect. 2. It is submitted that these are not cumulative provisions, and that the statute which creates the offence also provides the remedy. Moreover, there would have been no object in the 2nd section, if a remedy by indict-created by the 10 & 11 Will. 3, which in the 1st ment had been provided by the 1st. The reason for postponing the operation of sect. 2 was probably that the 1st section created the prohibition, and it was desirable to grant time by way of warning the public before making the penalty attach. ERLE, C.J.-Is not sect. 2 a power to common informers to sue for penalties? CROMPTON, J.-How does this point arise? Is this a proceeding in arrest of judgment? Wheeler.-The objection was taken in the ordinary way at the close of the case for the prosecution. ERLE, C.J.-We will treat this case as a motion in arrest of judgment. Wheeler. The object then was to give warning that a lottery was a common and public nuisance. Before the passing of the statute of 10 & 11 Will. 3, lotteries were common all over England. The same argument applies to the counts framed upon the 42 Geo. 3, c. 119, the 1st section of which enacts that from and after the passing of that Act, lotteries and little-goes shall be deemed a public nuisance, and in the same manner as the statute of Will. 3, the 2nd section enacts that from the 1st July 1802 persons keeping lottery offices shall be liable to a penalty, and be deemed rogues and vagabonds. CROMPTON, J.-Blackstone ranks lotteries among common nuisances, though he does not say so in so many words. Wheeler. The 1st section speaks of the thing as a nuisance, and the 2nd deals with the persons practising it. The cases of Rex v. Gregory, 5 B. & Ad. 555, and Rex v. Harris, 4 T. R. 205, and Dwarris on Statutes were then cited as to the construction of sections like these. Secondly, supposing this to have been an indictable offence, there was no evidence for the jury on which they were justified in finding the defendant guilty. There ought to be evidence of a lottery or a determination by lot brought home to the defendant. There was no evidence that the place was a place, or the game a game, within the mischief of the Act, or to connect the defendant with the distribution of prizes. An agency should have been proved against the defendant. The distribution of prizes may have been in some other manner than by lot. The third and fourth counts are not made out. There was no proof that this was a betting-house within the Act 16 & 17 Vict. c. 119. There must be evidence of a lottery to make an offence; but what evidence is there of the defendant's setting up, keeping and maintaining a lottery? The case of Ryder v. Wood, 29 L. J. 1, M. C., was then cited. No counsel appeared to argue on behalf of the pro secution. section declares that the keeping of a lottery shall be a common and public nuisance, and in the 2nd section prohibits all persons from keeping lotteries, under a penalty of 5004, at the suit of a common informer, or if not so prosecuted, makes them liable as vagrants or rogues; and the second part of the Act came into operation at a different time to the first. It was contended that that was a declaration that it was not intended that the first enactment should be the subject of an indictment, and that the proper remedy was under the 2nd section, and therefore that this indictment could not be sustained. We have attended to that argument, but we find a principle to have prevailed for a long time, that where the Legislature declares a thing to be a common and public nuisance, the person who does the act renders himself liable to an indictment. I take the case of Rex v. Gregory to be an application of that principle by a court of very great authority. That principle is an answer to the objection. We therefore hold that those counts which are framed on the Lottery Acts are not bad in point of law. The result will be, that the conviction will be affirmed on these counts. The rest of the Court concurring, Conviction affirmed. COURT OF QUEEN'S BENCH. Reported by JoHN THOMPSON, T. W. SAUNDERS, and C. J. B. HERTSLET, Esqrs, Barristers-at-Law. Saturday, Nov. 24. COBBETT WHEELER AND ANOTHER. Ejectment-Turnpike-Mortgage of tolls-Costs of nonsuit-Liability to. Plaintiff, as personal representative of a deceased mortgagee of turnpike tolls, sued the lessees of the tolls as tenants in possession of the toll-house, to recover possession of them. A trustee was let in to defend as landlord, and at the trial the plaintiff was nonsuited. Defendants afterwards signed judgment and arrested the plaintiff for the costs of the nonsuit: Held, that the plaintiff was liable for such costs under the stat. of 4 Jac. 1, c. 3. Ejectment by the plaintiff as the personal representative of a mortgagee of the tolls of a turnpike-road, in the county of Hants, to recover the toll-gates. The action was brought against the defendants as the tenants in possession, being the lessees of the tolls. Subsequently one of the turnpike trustees named Jenkins was admitted to defend as landlord, under the C. L. P. A., 15 & 16 Vict. c. 76, s. 172. Subsequently the defendants signed judgment, and took the plaintiff in execution for the costs of the nonsuit. The action was tried at the spring assizes 1856, for ERLE, C.J.-We have considered this case, and are the county of Hampshire, before Crowder, J., when the of opinion that the evidence bearing on the counts plaintiff, failing to give sufficient evidence of the relating to horse-racing was not sufficient to sup-existence of the mortgage, was nonsuited. port those counts. With respect to the counts on the Lottery Acts, we are of opinion that there was evidence for the jury which justified them in coming to the conclusion they did. This was virtually the purchase of a ticket in a lottery, in the expectation of drawing a prize. The defendant was concerned both in selling the ticket and delivering out the prizes to the purchaser, and the jury were well justified in inferring that he was intimately connected with the lottery. The objection that there was no evidence to support those counts therefore fails. We have looked at the verdict of the jury recommending the defendant to mercy, as perhaps he was not acquainted with the law, and we are, nevertheless, of opinion that the conviction is valid. On a former day in this term the plaintiff obtained a rule nisi to set aside the judgment, so far as related to costs, on the ground that the statute of 4 Jac. 1, c. 3, giving defendants costs in cases of nonsuit, did not apply to the case of the defendants, who are sued under the Genera! Turnpike Act in respect of matters relating to the trust. Lush and Thring showed cause.-On the part of the plaintiff it is said that no costs are payable in case of a plaintiff suing turnpike trustees. [HILL, J.-It was said that the defendants, as trustees, were not liable to costs, and that therefore the plaintiff was not.] The case of Wormwell v. Hailstone, 6 Bing. 658, which was cited for that proposition, was a case where the trustees of a turnpike-road were sued in the name of the defendant their clerk, according to the 3 Geo. 4, c. 126, s.74, which enacts that the trustees may sue and be sued in the name of their clerk, and it was held that the property of the clerk was not liable to be taken in execution to satisfy the judgment. That Was so held upon a proviso in sect. 74 in these words :"Provided always, that every trustee, commissioner, clerk or clerks, shall be reimbursed and paid out of moneys belonging to the turnpike-road for which he or they shall act, all such charges, costs and expenses as he or they shall be put unto or become chargeable with, or liable to by reason of his or their being so made plaintiff or plaintiffs, defendant or defendants." The present case is distinguishable. This action is brought against the lessees of the tolls, and necessarily so, because they are the tenants in possession; and if the trustee had not come in to defend, there could be no doubt but that the defendants would be entitled to their costs. Then why are they to be deprived of them, because it happens that another person is let in to defend? But sects. 186 and 187 of the C. L. P. A. 1852, seem to provide for the defendant's costs in ejectment in such a case as this. This case, however, is certainly not within that of Wormwell v. Hailstone. Then, as to the statute of 4 Jac. 1, c. 3, it is submitted that this case falls within it, and that the defendants are entitled to their costs of nonsuit in pursuance of it. The provision in the statute of Jac. 1 is, that if any person shall commence or sue in any court of record, or in any other court, any action, bill, or plaint of trespass, or ejectione firme, or any other action whatsoever, wherein the plaintiff or defendant might have costs (in case judgment should be given for him), and the plaintiff is nonsuited, or the defendant has a verdict, the defendant is to be entitled to his costs. This statute only defines the class of actions in which defendants shall be entitled to their costs, and does not limit that right in the way contended for by the plaintiff. The plaintiff in person supported the rule. COCKBURN, C.J.-I am of opinion this rule ought to be discharged. Several questions arise: first, whether the case is within the statute 4 Jac. 1, c. 3, which gives costs to a defendant on the nonsuit of the plaintiff? Whether the words "any other action wherein the plaintiff or the demandant might have his costs in case judgment should be given for him" apply only to the class of actions immediately before referred to, or only serve to define another class of actions to which the statute of Henry the Eighth is extended. It is a grave question whether Mr. Lush's construction of the statute is not the right one; but I will assume that Mr. Cobbett's argument is right. Then arises the question upon sect. 74 of the General Turnpike Act. Does that give immunity for costs to the defendants? Mr. Cobbett relies on the case of Wormwell v. Hailstone. If it were necessary to decide this case on the words of the proviso at the end of sect. 74, I should consider it incumbent to reconsider the case of Wormwell v. Hailstone. I own it appears to me that the effect of the proviso is not to divest the adverse party of his right to look to the other party, whoever he may be, for his costs, but merely to give that party, when the costs have been paid, an indefeasible right to compensation for them out of the funds of the turnpike trust. [Q. B. cessful, might have had his costs. Turning to sect. 48 of the General Turnpike Act, it is clear that Mr. Cobbett, if he had been successful, would have been entitled to his costs, and he would have been entitled to sign judgment and take out execution for his costs; and the trustees must have satisfied them before he would have been bound to give up possession of the toll-houses. There is another serious difficulty in the way of the plaintiff'; that is, in this case there are two other defendants necessarily made defendants-the lessees of the tolls, who were entitled to have execution for their costs. They would have been liable to Mr. Cobbett in costs if he had succeeded, and therefore, on the other hand, they are entitled to execution for their costs, he having failed. This rule must be discharged. HILL, J.—I am of the same opinion. Assuming Mr. Cobbett's argument on the statute of James to be right, still the ground of his motion wholly fails, for if he had succeeded he would have been entitled to sign judgment for recovering possession of the toll-gates, and also for his costs of suit; and therefore the defendants are entitled to the costs of the nonsuit. Rule discharged. Wednesday, Nov. 28. SIBBET (appellant) v. AINSLEY (respondent). Father neglecting to maintain child· Paternity denied-Evidence-5 Geo. 4, c. 83, s. 3. A. was summoned before justices, under 5 Geo. 4, c. 83, At the hearing of the information it was admitted that the respondent had been duly married to his present wife Sarah; that three years ago they had separated, and that since such separation the respondent had resided in Newcastle-upon-Tyne, and it was proved to my satisfaction that they had not since lived together; that the child in question was the child of the wife of the respondent; that was born in Durham Gaol on the 23rd Aug. last, that on the 20th April last it became and still is chargeable to the parish or parochial chapelry of St. John; that the respondent is able to work and maintain himself and his family; and that since the separation of the respondent and his wife she had lived in Newcastle, except for short periods of time. It was proved by the evidence of four poli ce officers, that during the last two years the wife of the respondent had led a very disreputable and profligate life; that during that period she had been seen frequently at all hours of the night in company with men other than her husband, alone in passages, lanes, and however, that the effect of the proviso is to com-retired places, and that she had been seen in brothels. pel the plaintiff suing a person who defends on behalf (Two specific instances of adultery were then stated as of the trustees to resort to the trust-funds to recover proved.) his costs. Still, to bring the case within the statute of James, the condition is, that the action must be one wherein the plaintiff or demandant might have costs in case judgment is given for him. That brings us to the question, whether the plaintiff in this case, if suc I will assume, That on another occasion within the last two years she was found one night in a passage alone with a man, not her husband, by a police officer, other than the last two mentioned, and was taken cut of it by him and sent away. It was also proved before me, that the Q. B.] Ex parte ANDERSON. respondent has been perfectly well aware of the sort of life his wife has been leading during the last two years. That in consequence he had most anxiously and constantly avoided her. That during that period she had very frequently annoyed him by hanging about the outside of his house, and shouting at and abusing him. That he has always done his utmost to keep her away from him, and has frequently sent for the police and ordered them to remove her, which they have done. It was contended on behalf of the appellant that, as the respondent had since his separation from his wife lived in the same town as that in which she had resided for the most part during that period, access between them being possible must be presumed, and that any child she might have whilst they were so living must be considered to be the child of the respondent and legitimate. And the case of R. v. Mansfield, 1 Q. B. 144, was relied on. [Q. B. The Superior Courts in England have a right to issue writs of habeas into the colonies, to bring up persons illegally imprisoned, unless their jurisdiction is taken away by statute. This court therefore issued a writ of habeas corpus to Canada, its jurisdiction to do so not being taken away by statute. Edwin James (Flood and Gordon Allen with him). moved for a writ of habeas corpus, to be directed to the governor of the province of Canada, to the sheriff of Toronto, and the keeper of the gaol there, to bring up the body of one John Anderson, together with the cause of his detention. COCKBURN, C.J.-Why is the name of the governor introduced? James, Q.C.-The reason is, because in the St. Helena case the name of the governor was introduced as well as that of the keeper of the gaol. The affidavit is made in the following terms :-"I, Louis Alexis I, the undersigned, being of opinion that access Chamerovzow, of No. 27, New Broad-street, in the between a man and his wife when living separate, city of London, Secretary of the British and Foreign though both residing in the same town, at the same Anti-Slavery Society make oath and say: I say, time, need not necessarily be presumed, even in cases 1. That John Anderson, of the city of Toronto, in her where the same is possible, where circumstances are Majesty's province of Canada, a British subject domiproved tending to the inference that no such inter-ciled there, now is, as I verily believe, illegally detained course in fact took place, and being also of opinion upon the foregoing facts that the respondent, though he has been living in the same town as his wife since their separation, had not had access to her during that period, and that her child, born on the 23rd of August last, was not the child of the respondent, but an ille gitimate child, considered that he was not liable to maintain it, and that he ought not to be punished under the 5 Geo. 4, c. 83, s. 3, for neglecting to do so. And I dismissed the information, and the respondent was discharged. The opinion of the Court of Q. B. is desired as to whether I was right in point of law. C. F. HAMMOND. Davison for the appellant.-The decision of the magistrate was wrong. The presumption of law is, that where a man and his wife live in such circumstances that access is possible, and a child' is born, he is to be taken to be the father. The reasons given are not sufficient to warrant the magistrate in finding that the husband had not access to his wife during the necessary period. It is not enough to rebut the presumption to show that the wife has been guilty of adultery during the time: (Banbury Peerage case, 1 Sim. & Stu. 155; Hargreave v. Hargreave, 9 Beav. 552.) In Morris v. Morris, 5 Cl. & Fin. 163, it was laid down that the evidence must be such as to leave no reasonable doubt that the husband is not the father of the child. So in Goodright v. Saul, 4 T. R. 356. in the criminal gaol of the said city there, against his will, not having been legally accused, or charged with, or legally tried, or sentenced for the commission of any crime, or for any offence against, or recognised by the laws in force in the said province, or in any other part of her Majesty's dominions, or not being otherwise liable to be imprisoned, or detained, under or by virtue of any such laws. 2. I verily believe that, unless a peremptory writ of habeas corpus shall immediately issue by this honourable court, the life of the said John Anderson is exposed to the greatest and to immediate danger." The Crown has issue the writ of habeas corpus into power to a corpus went any part of her Majesty's possessions. Canada is Liddell, contra, was not called upon. WIGHTMAN, J.-There is no doubt about the rule of law, that when a child is born of a married woman during wedlock, and the parties are so situated that the husband might have had access to his wife during the necessary period, the husband is presumed to be the father of the child. But that presumption may be rebutted by other evidence, showing that access has COCKBURN, C. J.-In Lower Canada the French not in fact taken place. The question therefore is, law prevailed; but Toronto was an English colony whether there was such evidence to rebut the presump-in Upper Canada. tion. [His Lordship then recapitulated the facts.] HILL, J.-The 14 Geo. 3, c. 83, recites that it was These circumstances satisfactorily prove that intercourse ceded to this country by the Treaty of Paris in 1763. did not take place between the husband and wife during The 8th section reserves civil matters for the old law the time. I therefore think the magistrate came to a but, by the 11th section, the criminal law of England right conclusion, and I should have come to the same prevailed through the whole of Canada. conclusion myself. HILL and BLACKBURN, JJ. concurred. James, Q. C.-In the case of The Canadian Prisoners, 9 A. & E. 782, Lord Denman said: "The difficult questions that may arise touching the enforcement in England of foreign laws are excluded from this case entirely; for Upper Canada is neither a foreign State, nor a colony with any peculiar customs. Habeas corpus-Colonies-Jurisdiction of Superior Here are no mala prohibita' by virtue of arbitrary Ex parte ANDERSON. Courts in England. enactments; the relation of master and slave is not Q. B.] Ex parte ANDERSON. [Q. B. recognised as legal; but Acts of Parliament have de- | possession of a distant country, and settled in it, it clared that the law of England, and none other, shall became a part of the parent State; and Grotius de there prevail." By the 11th section of the statute Jure Belli ac Pacis, b. 2, c. 9, is to the same effect. In the 14 Geo. 3, c. 83, the criminal law of England 2 Peere William's Rep. 74, 75, it is said: "Memois in force through the whole of Canada, and, beyond randum, the 9th of August 1722.—It was said by the all question, a British subject in Canada is within a Master of the Rolls to have been determined by the portion of her Majesty's dominions. It is matter of Lords of the Privy Council, upon the appeal to the right and clear law that, as soon as a country becomes King in Council from the foreign plantations, That if portion of her Majesty's dominions, more especially there be a new and uninhabited country found out by if, like Canada, it becomes so by conquest or cession, British subjects, as the law is the birthright of every the writ of habeas corpus issues into it, upon the subject, so wherever they go they carry their laws with ground that her Majesty has a right to know what has them, and therefore such new found country is to be become of any one of her subjects. No instance can governed by the law of England.'" Reg. v. Crawford, be found of the writ going into Canada, and therefore 13 Q. B. 613, was an application for a writ of habeas it is necessary to rely upon analogous cases. That the corpus ad subjiciendum to the Isle of Man, in which it writ lies and runs into every part of her Majesty's was held that the writ would run into that island since dominions is laid down in Bac. Abr. tit. "Habeas the 5 Geo. 3, by which the island was vested in the Corpus" (B), in these terms:-"2. To what places Crown, and formed part of its dominions. Campbell v. it may be granted. It hath been already obser- Hall, Cowp. 204, was then cited. Various writs ved that the writ of habeas corpus is a prerogative issued from this country to Calais; in 1363 a writ of writ, and that therefore, by the common law, it lies to amoveas issued to that place; in 1364 a writ of attachany part of the King's dominions; for the King ought ment against the mayor of Calais, and in 1374, a writ to have an account why any of his subjects are im- of inquisition respecting the goods of a felon. prisoned, and therefore no answer will satisfy the writ, CROMPTON, J.-The question is, whether the but to return the cause with paratum habeo corpus, courts in Westminster-hall have now a concurrent c. Hence it was holden that the writ lay to Calais jurisdiction with the local courts in granting this writ. at the time it was subject to the King of England." In Cowle's case, 2 Burrow's Rep. 834, Lord Mansfield said: "Writs not ministerially directed (sometimes called prerogative writs because they are supposed to issue on the part of the King), such as writs of mandamus, prohibition, habeas corpus, certiorari, are restricted by no clause in the constitution given to Berwick; upon a proper case they may issue to every dominion of the Crown of England. There is no doubt of the power of this court where the place is under the subjection of the Crown of England; the only question is as to the propriety. To foreign dominions which belong to a prince who succeeds to the throne of England this court. has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the Electorate; but to Ireland, the Isle Man, the Plantations and (as since the loss of the duchy of Normandy they have been considered as annexed to the Crown in some respects) to Guernsey and Jersey we may, and formerly it lay to Calais, which was a conquest, and yielded to the Crown of England by the treaty of Bretigny." Copies of the writs which have been issued to Calais in 1387 and 1389 may be seen in 8 Rymer's Foedera, 15. There was a writ issued from the Crown of England to Calais to bring up the body of Thomas, Duke of Gloucester, who was banished for treason to Richard II. The writ was attested at Westminster in 1389, and was issued by the H. of L., sitting as a court of judicature. BLACKBURN, J.—It was not effectual, for the duke was put to death. James, Q.C.-Yes; and afterwards a writ issued against Halle (the governor of Calais-castle and the murderer of the duke), who was brought over to England, tried and beheaded, and his head was sent back to Calais and exhibited there to the people. Writs down to a much later period have been issued to places subject to the Crown of England, and with regard to Canada, which was called the "Plantations," they were held as of the manor of East Greenwich, of Windsorcastle and Hampton-court, and so on, which gave rise to the argument used on a former occasion in the House of Commons, that there was representation as well as taxation of the Canadians in the British Parliament. Lord Mansfield, in Cowle's case, said that the writ would issue to "every dominion of the Crown or England;" and that this court could send the writ to Ireland, to the Isle of Man and to the "Plantations." Vattel's Law of Nations, b. 1, c. 18. s. 210, is an authority for the position that where a nation took COCKBURN, C.J. In the Berwick case, Berwick was not subject to the law of Scotland, and therefore there was no superior court which could send a habeas corpus to prevent an illegal imprisonment, unless this court took upon itself jurisdiction. But is that the case in Canada? James, Q.C.-The fact that Canada has both a separate legislature and judicature makes no difference. The Superior Courts in England have a concurrent jurisdiction with the courts in Canada as to issuing writs of habeas corpus. CROMPTON, J.-You may contend that this is a right of the Crown. James, Q.C.-The affidavit shows that this is the case of a subject who is illegally in custody, and who has never been tried; it is not the case of a man who has been tried in Canada, or who is under the sentence of a court which has power to sentence him. The mere institution of a local jurisdiction will not oust the Queen of the right which she has to ascertain whether any of her subjects are illegally imprisoned. In the case of the Isle of Man, there are local courts which have the power to issue writs of habeas corpus, and so also in the St. Helena case (Ex parte Lees, Ell. Bl. & Ell., 28). In this case a writ of habeas corpus was very recently granted, after a writ of error had issued. CROMPTON, J.-I issued the writ as ancillary to the writ of error, it being necessary that the party should be here when the writ of error was disposed of. James, Q. C.-If this court refuses a writ of habeas corpus the party has a right to go in succession to each of the Superior Courts, and to the Court of Chancery; and if this court should refuse their writ, he would have a right to go to every court in Westminsterhall, and it would be no answer in the other courts to say that the writ had been refused by a court of coordinate jurisdiction. That is a strong argument to show that this court has a concurrent jurisdiction with the Canadian courts. COCKBURN, C.J.-The question is, whether it is within the ambit of this court's jurisdiction, or whether the power of granting the writ is not vested by the Crown in another jurisdiction. James, Q. C.-The right is in the Crown, and the mere establishment of such a jurisdiction in a local court cannot limit the rights of the Crown without the authority of an Act of Parliament. COCKBURN, C. J.-By the conquest or cession of Canada the law of England attached, and this court Q. B.] this court. EMPSON . THE METROPOLITAN BOARD OF WORKS. CROMPTON, J.-The Legislature may do that. James, Q. C.-It is open to a party in this country to apply for the writ of habeas corpus to any court of co-ordinate jurisdiction. That is by the common law, and is peculiar to the writ of habeas corpus. HILL, J.-There is one other case in which the subject has a similar right, that of prohibition. [Q. B. has the power to issue writs of habeas corpus into that | Coke, Lord Mansfield, Blackstone, J., and Bacon's country, unless the Crown has either expressly or by Abridgment-that these writs of habeas corpus have implication taken away that power. The question is, been issued, and are to be issued into all the domiwhether by the establishment of a local judicature, nions of the Crown of England wherever it is sugand committing to it the duty of protecting the gested to this court that one of the Queen's subjects is subject by issuing writs of habeas corpus, the Crown illegally imprisoned. Not only have we these authohas not by implication taken away the jurisdiction of rative dicta of the most eminent judges, and assertions of text writers, but we have the practical exercise of this prerogative from the earliest period down to modern times. The most remarkable cases are those where the writ was issued to the Island of Jersey, to the Isle of Man, and to St. Helena, and all these in very modern times. When we find that, upon these authorities, the power has been not only asserted but carried into effect as a matter of practice, even where a local legislature and judicature were established, nothing short of a legislative enactment expressly depriving us of this jurisdiction would warrant us in omitting to carry it into effect, when called upon to do so for the protection of personal liberty. It may be that the Legislature has thought proper to leave this concurrent jurisdiction in our courts, in this respect, even where local jurisdictions are established, to be exercised in the same way as it is exercised in the various courts of Westminster-hall. We can only act on the authorities, and we feel that we should not be doing our duty, under the authority of the precedents to which our attention has been called, if we did not issue this writ; therefore the writ must go. Writ granted. James, Q. C.-It is a common law right of the subject to go to every tribunal for this writ, and, à fortiori, the courts in this country must have a concurrent jurisdiction with the colonial courts, unless it it taken away by an Act of Parliament. COCKBURN, C. J.-Has not the right to go to every one of the courts arisen from the Habeas Corpus Act? James, Q. C.-It is by the common law. This court is asked not to interfere with any judgment, but to grant a habeas corpus to liberate a man who is in illegal custody. He is not in enstody under the commitment of any local court which has the power to try him; there is no judgment to set aside; but it is shown to the court that he is detained for no crime cognisable by the law of England. The learned counsel then referred to Carus Wilson's case, 7 Q. B. 984; and Dodd's case, 2 De G. & John., in which the writ had issued into the isle of Jersey. The case may arise when the courts in Canada might be unable to discharge their duties; that is a reason why this court should still retain the power of granting these writs. COCKBURN, C. J.-Supposing the writ should go, what means has the court of enforcing it? James, Q.C.—The court can enforce the writ by attachment; but it cannot be assumed that the Queen's writ will not be obeyed. The court can send its own officer to execute the writ. The same objection might be made in the case of the Isle of Man. Canada is a British possession, and a British colony; and the sheriff of Toronto and other officials are as much British subjects as if they were living in Yorkshire. An application has been made to the local court for a writ of habeas corpus, and refused; and it is now shown to this court that John Anderson, a British subject, is illegally detained in prison, having been guilty of no crime cognisable by the law of England. There are precedents for this application, and the mere fact that there are other courts which have a concurrent jurisdiction will not deprive the applicant of that protection for which he now prays the COCKBURN, C.J. said:-We have considered this matter, and the result of our anxious deliberations is, that we are of opinion that the writ ought to issue. We are, at the same time, sensible of the inconveniences that may result from the exercise of such a jurisdiction. We are quite sensible that it may be said to be inconsistent with that high degree of colonial independence, both in legislation and judicature, which has been carried into effect in modern times. At the same time, in establishing local legislation and judicial authority, the Legislature of this country has not gone so far as expressly to abrogate any jurisdiction which the courts in Westminster-hall might possess as to issuing writs of habeas corpus to any parts of her Majesty's dominions. We find the existence of that jurisdiction in these courts asserted in the earliest times, and exercised down to the most recent. We have it on the authority of the most eminent judges-Lord Wednesday, Jan. 16. EMPSON (appellant) v. THE METROPOLITAN BOALD Metropolis Local Management Act-19 & 20 Vict. c. rate. There is an appeal to the quarter sessions against an Where there is a rate good upon its face, and duly This was a case stated under the provisions of the 20 & 21 Vict. c. 43, by the metropolitan police magistrate for Greenwich, upon a complaint by the Metropolitan Board of Works against James Empson for nonpayment of a rate. The case stated that the complainants are the assessors appointed by the Metropolitan Board of Works under the provisions of the 168th section of the Metropolis Local Management Act, 18 & 19 Vict. c. 120, to levy the sum of 90734. 10s., being the amount neglected to be paid by the Greenwich Board of Works, in pursuance of a precept requiring payment thereof by them under the provisions of the 172nd section of the said Act. The defendant is one of the ratepayers in the parish of St. Nicholas, Deptford, in the county of Kent, and the complaint was for neglecting to pay the sum of 105, being the amount due by him on the rate made by the said assessors. The facts proved before the magistrates were the following:-The Metropolitan Board of Works, on the 3rd March 1857, made an assessment upon the Greenwich district board, amounting to the sum of 10,723l. 14s. 8d., for defraying the annual expenses of the metropolitan board, and for payment of |