Costs.

General business.

tion of costs, and consider the proper sum to be awarded." The principal, therefore, upon which the sessions should act in those cases in which they decide upon awarding costs, is to give such an amount as in their discretion they think just and reasonable, with reference to the particular case itself. The costs, when granted, are either fixed by the bench at a sum certain, or the clerk of the peace is directed to tax the costs during the sessions, and the bench then award the balance.

Although the foregoing is a correct review of the principal stages in an appeal, there is a variety of collateral and incidental proceedings which occasionally arises: such as the entering and respiting, and adjourning of appealsquashing orders, or convictions for non-appearance of respondents-making a special entry where the order is quashed, not upon the merits -amending statements of grounds of removal or appeal, or the order of removal-amending poor rates, &c. ; which, inasmuch as they involve no difficulty in practice, and are to be thorougly comprehended alone by practical experience, may well be dismissed without further notice. Upon the subject generally of the quarter sessions, it may be observed, that no amount of book-teaching will convey anything like a clear conception of the business itself, which, to be learnt, as alone it can be, thoroughly and practically, the quarter sessions must themselves be patiently and carefully attended. The young justice will rarely be called upon to take any active steps in the performance of the legal portion of the business of the sessions, which will be confided to magistrates of considerable seniority, and great practical experience. At the sessions themselves, then, should the inexperienced justice seek for information; not, however, neglecting the study

of books of practice, which, though they cannot effectually convey a perfectly accurate knowledge of the subject, will, nevertheless, impart to him an amount of information highly useful in the course of his inquiries.

CHAPTER XXV.

THE WRIT OF MANDAMUS.

HAVING, in the preceding chapters, considered the various duties which either in or out of sessions justices may be called upon to perform, we now come to the discussion of that highly important branch of magisterial law which has for its object, either the enforcing of these duties when neglected, or restraining their performance when they are being exceeded.

will issue to

Whenever a duty is cast upon a justice, the when a law requires that he shall promptly fulfil it; and mandamus if, being properly requested to perform any act justices. within the scope of his authority as a justice, he, without any sufficient reason, declines to do so, the Court of Queen's Bench, on application for the purpose, will interpose to compel him to do his duty. The means which the court above uses for this purpose, is that of a writ of mandamus, which has been well described as 66 a high prerogative writ issuing from the Court of Queen's Bench, directed to the judges of inferior courts of judicature, corporations, public bodies, and others upon whom the law casts a public duty, alleging that complaint had been made of their refusal to perform that duty upon some particular occasion, and commanding them, in

When a mandamus will issue.

When it will not issue.

the Queen's name, to do it, or that they show cause to the contrary thereof, lest in their default the same complaint should be repeated."

Whenever, therefore, either collectively or individually, whether in sessions or out of sessions, justices are required by law to do an act and they refuse to perform it, the Court of Queen's Bench will thus interpose by its writ of mandamus to compel them to do the act required. So comprehensive is this proposition, that it applies to every class of duties coming within the scope of the justices' functions, and there is not a single instance of which we are aware that forms an exception to this general rule. If, therefore, a matter is properly brought under the attention of justices, whether they be acting collectively at sessions or individually, they have no right to decline to interfere, but are bound to enter into the subject, and to the best of their judgments adjudicate upon it.

It must not, however, be supposed that a justice is bound to be always in the way in order to carry out the particular purposes of the law. No restriction is imposed upon him in this respect, and he is free to attend to his duties or not as is most convenient to himself, unless he is specially required by some legislative or judicial direction to attend to perform a particular act. Thus, if a justice have left the division in which he usually acts, or has altogether quitted the locality of his jurisdiction, no mandamus would require him to return to fulfil any particular duty. It is only when being in the locality in which his assistance is required, and upon a request and refusal to act, that the Court of Queen's Bench will interfere to compel him.

But to render a justice subject to the compulsion of the writ of mandamus, it must be clearly shown that the parties requiring him to act have done all that is necessary to give the

justice power to do it; since to warrant this writ When it will in issuing, it must be clearly shown that the not issue. justice not only had jurisdiction, but that there was no reasonable ground for his declining to act. If there be any well-founded doubt as to whether or not in the particular case the justice has power to entertain the question, or if, from defect in the proceeding, he cannot further proceed without incurring personal risk, the court will not interfere; and these rules apply with equal force to cases where the justices act as a body (as at their quarter sessions), as when acting individually.

Nor will the court interfere with the determination of justices when it has been come to in the exercise of a discretion vested in them, however opposed that determination may be to the view the court above would have taken if the matter had originally come before them for their consideration, the Superior Court not sitting as a Court of Appeal to review the decisions of justices, but as a tribunal only to see that inferior bodies perform the functions with which they are invested. If the justices have power to decide in any given case, and they do decide, the court above cannot interfere with that decision, notwithstanding it may be unwarranted by the facts or opposed to good sense. The general rules upon this point are well explained in the case of Reg. v. Bolton (1 Q. B. 66), where all the cases upon the subject are reviewed, and from which it is to be gathered that when a conviction or order of justices is returned into the Queen's Bench, and the proceedings are regular in form and in practice, and the case is one over which the justices had jurisdiction, the court will not hear affidavits impeaching the justices' decision on the facts, nor, if they return the evidence, will it review their judgment thereupon, for that the test of jurisdiction

is whether or not the justices have power to enter upon the inquiry, and not whether or not their conclusions in the course of it are true or false.

Whenever, therefore, justices have a wellfounded doubt as to whether or not they have jurisdiction over the subject-matter brought before them, or whether or not all the facts exist which are requisite to warrant them in proceeding, they will do well to pause.

But whilst the court above will interfere in cases in which the justices have jurisdiction and decline to exercise it, the justices themselves should hesitate to proceed in all cases where a doubt overhangs the question, to the end that they may not, by proceeding in a case where that jurisdiction fails, involve themselves in difficulties which may result in much pecuniary loss. Whenever justices have a substantial doubt as to whether or not they have jurisdiction over the subject-matter brought before them, or whether or not all the facts exist which are necessary to justify them in proceeding, they will do well to pause, and to decline to act until the opinion of the court above is taken, in the shape of an application for a writ of mandamus. This course is, in many cases, a most convenient one; for it thus enables the justices to obtain the opinion of the Superior Court upon the subject, and affords them a protection in the discharge of their duties, and this, too, without necessarily putting them to any cost, since the party to show cause against the application for the mandamus is usually the one who denies the jurisdiction of the justices, and who, therefore, is interested in opposing the issuing of the writ; or, where the justices themselves oppose the application, their costs, if they are successful, are almost invariably awarded to them.

The proceedings, in order to obtain a writ of