in the affidavit. Patteson, J.-In Hughes v. Brown of the matter.] There is no special finding in this case the point decided was, that the jurat could not be re- which can injure the prosecutors upon the trial of ferred to.] If the affidavit is false as to the fact sworn a new indictment; and there were objections taken to, the party would be indictable for perjury. Suppose at the trial, but no cross rule was moved for, on the commissioner died before the affidavit was sworn, the supposition, that the established practice of the the party would be guilty of perjury. [Coleridge, J. Court was, as stated by Lord Ellenborough, in Rex v. -Suppose the affidavit was made in 1847, and it was Wandsworth, (1 B. & A. 63, 65), not to grant a new sworn in 1848. Wightman, J.-The jurat might be trial in a criminal case where the verdict had been for sworn in 1848, and the affidavit might be of a fact in the defendant. [Coleridge, J.-The mode of suspend1847.] The Court will give credit to the commissionering the entry of the judgment adopted in that case was for administering the oath when he says he administered a novelty. Lord Denman, C. J.-It was, in fact, an it, and for complying with the rule of court, which re-evasion resorted to, upon the ground that the Court quires that the day and place shall both be stated in would never interfere with an acquittal in a criminal the jurat. [Patteson, J.-The word "instant" is in case, which is erroneous.] itself insensible, without referring to the jurat, and we cannot do so unless we overrule Hughes v. Brown, (7 Jur. 1136; 1 D. & L. 788). Lord Denman, C. J.-In that case, Maule, J., says, "The deponent may not have seen the jurat." The Court would never look out for such an objection as this; but when it is pointed out, it is evidently fatal.] The jurat is an essential part of the affidavit: there is no reason why the party making the affidavit should not see it. The Court will not require greater strictness in an affidavit than in an indictment: grand jurors do not see the caption. [Lord Denman, C. J.—The grand jurors know the day on which they are sitting.] BY THE COURT *.-Rule refused. REG. v. CRICKLADE.-Jan. 12. A new Trial may be granted in a Criminal Case after Indictment for the non-repair of a highway. Plea, not guilty. On the trial, before Platt, B., at the Spring Assizes for the county of Wilts in 1848, the defence was, that the road in question was not a highway; and the jury found a verdict for the defendants. In the following Easter Term, (April 20th), Crowder moved for a rule nisi for a new trial, on the ground of misdirection and the verdict being against the evidence. [Lord Denman, C. J.-The practice has been to move to stay the judgment until a new trial has been had.] This was an indictment preferred by order of justices; and if a second indictment was preferred, it would not be under that order; and, therefore, the prosecutors would not be entitled to costs if they succeeded upon the trial of that indictment. Lord DENMAN, C. J.-We think that you need not resort to a motion to suspend the judgment. We are not bound by the ordinary practice in this case. A motion may be made directly for a new trial, if the verdiet appears unsatisfactory. PATTESON, WIGHTMAN, and ERLE, JJ., concurred.— Rule nisi accordingly. THE COURTT, being of opinion that there had been a misdirection, made the rule absolute for a new trial.Rule absolute. EXCHEQUER CHAMBER.-TRIN. VACATION. [Error from the Queen's Bench.] THE MAYOR AND ALDERMEN OF LONDON v. REG.-June 19, 1848. By Sect. 27 of Stat. 6 & 7 Vict. c. 73, Attornies of the superior Courts of Law at Westminster are entitled to be admitted as Attornies in any inferior Court of Law in England and Wales. Mandamus to the Mayor and Aldermen of London to admit A., an Attorney of one of the superior Courts at Westminster, to be an Attorney of a "certain inferior Court within the City of London, called The Lord Mayor's Court, on signing the Roll of the said Court." Return stated the Lord Mayor's Court to be an immemorial Court of Record, having by Custom Jurisdiction as a Court of Law and a Court of Equity, with immemorial and peculiar Privileges, which were set forth; and that there had been immemorially four Attornies only, who enjoyed the exclusive Right of practising in that Court, and some of whose Duties were peculiar; and that their Offices were the Subject of Purchase and Sale, and that there was not, and never had been, a Roll for the Applicant to sign:-Held, that the Writ was bad for not stating the Mayor's Court to be an inferior Court of Law; and that the Defect was not cured by the Admission in the Return, that the Mayor's Court was a Court of Law. Quare, whether Sect. 27 of Stat. 6 & 7 Vict. c. 73, applies to all inferior Courts of Law, whether they have or have not a Roll upon which the Names of Attornies practising in them are inscribed? A writ of error was brought upon the judgment of the Court of Queen's Bench in this case. (See 11 Jur. 867, where the pleadings are fully set out). The points for argument on the part of the plaintiffs in error (the defendants below) were, That the writ of mandamus is Greenwood and Hodges now shewed cause.-In Rex insufficient; that it does not sufficiently appear therein Y. Sutton, (5 B. & Ad. 52), which was an indictment that the Lord Mayor's Court, therein mentioned, has any for the non-repair of a bridge, Lord Denman, C. J., said, roll of attornies, or that it is a court within the meaning (p. 57)," Upon consideration of all the points that have of the act of Parliament in the writ mentioned, so as to been raised, we are not disposed at present to make the entitle the said William Henry Ashurst to be admitted precedent of granting a new trial; but we think the an attorney thereof. But if the writ be sufficient, then precedent in Rez v. Wandsworth (1 B. & A. 63) may the particular facts disclosed by the return shew that be very properly followed here by suspending the judg- the said W. H. Ashurst is not entitled, and ought not ment. Then a new indictment may be preferred; and to be admitted an attorney of the said court. The dethe points that have arisen may be discussed upon fendant in error (the prosecutor below) stated the folthat." [Lord Denman, C. J.-We made the precedent lowing points for argument:-First, that the return to in Reg. v. Chorley, (12 Jur. 822). The judgment of the writ of mandamus herein does not disclose a suffithis Court must be given upon the verdict; and we will cient answer to the claim of the said W. H. Ashurst to not give judgment upon a verdict which we see to be be admitted an attorney of the Lord Mayor's Court, wrong.] In Reg. v. Chorley there was an improper pursuant to the 6 & 7 Vict. c. 73. Secondly, that the reception of evidence. [Lord Denman, C. J.-The return is legally insufficient and informal, inasmuch as new trial in that case proceeded upon no distinction it neither traverses the allegations contained in the writ whatever, but upon what we felt to be the good sense *See Rex v. The Inhabitants of the West Riding of York*Lord Denman, C. J., Patteson, Coleridge, and Wight-shire, (2 East, 352, note; 1 Chitt. 354). ZB, JJ. + Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ. of mandamus, nor shews any defect therein or in the previous proceedings, nor sets forth any excuse for noncompliance with the writ. Thirdly, that the said return traverses matter of law, setting up a local custom in opposition to the said act of Parliament. Fourthly, that the said return is uncertain, argumentative, informal, and in other respects legally insufficient. The case was argued in Michaelmas Vacation, (Dec. 4, 1847), before Wilde, C. J., Parke, B., Alderson, B., Coltman, J., Maule, J., Rolfe, B., Platt, B., and Williams, J., by Gurney, for the plaintiffs in error, (the defendants below). The words of sect. 27 of stat. 6 & 7 Vict. c. 73, upon which this writ is founded, are affirmative and general; and such words do not take away the common law nor a former custom. (Co. Litt. 115. a.; Com. Dig. "Parliament,” R. 23, 24; Rex v. Pugh, Doug. 179; Simpson v. Moss, 2 B. & Adol. 543, upon stat. 50 Geo. 3, c. 41, s. 22; The Mayor of Leicester v. Burgess, 5 B. & Adol. 246; 2 Nev. & M. 131, upon stat. 11 Geo. 4 & 1 Will. 4, c. 64; Rex v. Pugh, 1 Dougl. 188). If it is intended to abrogate existing customs, the usual course of the Legislature is to refer to them, either expressly or by the words "any local custom or usage to the contrary not withstanding." [He cited stats. 3 Geo. 3, c. 8; 56 Geo. 3, c. 7; 11 Geo. 4 & 1 Will. 4, c. 70, s. 10; 5 & 6 Will. 4, c. 76, ss. 1, 14, 119.] There is no provision in stat. 6 & 7 Vict. c. 73, similar to that in sect. 118 of the Municipal Corporations Reform Act, 5 & 6 Will. 4, c. 76, which gave power to the judge of the court of record in boroughs to make such rules for regulating the practice of his court as were necessary, in consequence of the change introduced by the proviso in sect. 119 of that statute, which opened those courts to all attornies. The rule applies more strongly to the customs of the city of London than to those of any other corporation. In The case of the City of London, (8 Co. 121 b), Lord Coke says, (129 a), "In London, a citizen and freeman may, by their custom, devise in mortmain, notwithstanding the Statute of Mortmain be to the contrary; and so in other like cases: for all the customs of London are established and confirmed by act of Parliament:" citing stat. 9 Hen. 4, which is not now in the roll of Parliament. In Vin. Abr. "Statute," E., pl. 10, citing The Mayor of London v. Barnardiston, (1 Lev. 14), it is said, "The customs of London are of such force, that they shall stand against negative acts of Parliament." [He also referred to Kelynge, C. J., in Hasting's case, (1 Mod. 23); Gillman v. Wright, 1 | Sid. 410); Rex v. The Chamberlains of Worcester, (2 Ld. Ken. 472); Rex v. Tollin, (1 Roll. 11); Rex v. Bagshaw, (Cro. Car. 347); Appleton v. Stoughton, (Id. 516); and The Salters' Company v. Jay, (3 Q. B. Rep. 109), upon stat. 2 & 3 Will. 4, c. 71, s. 3, which contained the words "any local custom or usage to the contrary notwithstanding."] The stat. 6 & 7 Vict. c. 73, does not manifest any intention on the part of the Legislature to abrogate the immemorial custom prevailing in the city of London, by which the number of attornies in the Lord Mayor's Court is limited to four. The title and the preamble shew that its object was to simplify and amend the laws relating to attornies and solicitors; and there is a schedule of statutes repealed, but among them there are none relating to or founded upon custom or usage. By stat. 6 & 7 Will. 4, c. 76, which did not affect the city of London, all inferior courts in other corporate towns were thrown open; and the object of stat. 6 & 7 Vict. c. 73, was to make regulations according to which attornies should be admitted in those courts. Further, it appears that it was not the intention of the Legislature to include the Mayor's Court. The words in sect. 27 are, "upon signing the roll of such court, but not otherwise ;" and there never has been a roll of attornies in the Mayor's Court. In the judgment of the Court of Queen's Bench it is said, "This objection, if available, would have the effect of taking a great proportion of the inferior courts of England and Wales wholly out of the operation of the 27th section of the act, as there can be no doubt but that a very great number of inferior courts never had a roll of attornies, or any other roll, upon which the name of the applicant for admission under that section could be inscribed." But stat. 2 Geo. 2, c. 23, which is one of the statutes repealed by stat. 6 & 7 Vict. c. 73, required that there should be a roll of attornies in every court of record in England, excepting, by sect. 26, the Mayor's Court and the Sheriff's Court in London. Again, nearly all the statutes by which courts of requests are established inflict penalties upon attornies practising in them; but those courts, not being courts of record, have no rolls. Can it be contended that those statutes are repealed, though not mentioned in the schedule of repealed statutes? [Parke, B.—A court of requests is neither a court of law nor a court of equity: the 27th section is only intended to apply to inferior courts of law.] In Re Gedding, (2 D. & L. 915, nom. Re Gedge, 3 Jur. 470), it was held, that the general words of sect. 37 of this statute, as to referring bills to be taxed, did not apply to bills for agency business. [Maule, J.-That is because the business was not done as attorney or solicitor, which must be the meaning of the statute.] Lastly, the writ states that the Mayor's Court is an inferior court-not that it is an inferior court of law or an inferior court of equity; and the return states, that it is a court of law and equity, and such a court is not within stat. 6 & 7 Vict. c. 73. The statute requires distinct examinations for attornies and solicitors before they shall be admitted as such; and if this mandamus can be supported, a person who was an attorney only would be entitled to practise on the equity side of the Mayor's Court, without having submitted to the examination prescribed for solicitors by the statute. Pulling, contra. First, there can be no immemorial custom, limiting the number of attornies entitled to practise in the Mayor's Court. (Littledale, J., in Rex v. The Sheriffs of York, 3 B. & Adol. 770, 778). There was no attorney before the Statute of Merton, (20 Hen. 3), c. 10, which first gave the right to appear by attorney: before that statute, it could only be done by license from the Crown. [Maule, J.-The Statute of Merton says, that every freeman which oweth suit to the county, &c. may freely make his attorney to do those suits for him. It seems to assume that an attorney was known at that time. Parke, B.-By the common law a suitor could not make an attorney until he had appeared; then the Statute of Westminster 2, (13 Edw. 1), c. 10, enabled him to appoint a general attorney to sue for him; (Beecher's case, 8 Co. 58 b; Com. Dig. "Attorney," B. 4); but attornies might exist at common law.] The custom as to the number of attornies practising in the Mayor's Court was not immemorial, but a regulation only. In Rex v. The Sheriffs of York, (3 B. & Adol. 770), which was a mandamus under the repealed stat. 2 Geo. 2, c. 23, it was held, that a bye-law, limiting the number of attornies who should practise in a borough court, was valid as a municipal regulation; and it is a general principle, that all courts, inferior as well as superior, have a right to regulate their own proceedings, and who shall appear to practise in them; (Collier v. Hicks, 2 B. & Adol. 663); but regulations excluding attornies from practising in any court cannot be made since stat. 6 & 7 Vict. c. 73. In Rex v. The Sheriffs of York, (3 B. & Adol. 770), Lord Tenterden (p. 777) mentions this regulation as to the number of attornies allowed to practise in the Mayor's Court, as confirmed by act of Parliament; which statute was the 2 Geo. 2, c. 23. There was originally a general right to appear by attorney in the Mayor's Court; that right was afterwards given to foreigners as well as others, by the 9th charter of Hen. 3, granted in the 52nd year of his reign, which confirmed the right of the city to hold a court of hustings. (4 Inst. 253). That charter is confirmed by stat. 7 Rich. 2, (4 Inst. 250, 253), which confirmed all the customs of the city of London; and, as it affects a public right, the Court will take judicial notice of it, and of the statute which confirms it. (The case of The Islington Market Bill, 3 Cl. & Fin. 513, 518*). The custom, as alleged in the return, is objectionable for want of certainty; in alleging that," from time whereof, &c., there of right have been, and still of right ought to be, certain clerks or attornies of the said court." Further, there cannot be a custom in the negative; and that four attornies only had a right to exclusive audience in the Mayor's Court would be matter of prescription. Secondly, assuming it to be a good custom in its origin, and that the allegation of it is unobjectionable, it cannot avail against the general words of sect. 27 of stat. 6 & 7 Viet. e. 73. Sir Edward Coke was Recorder of London, and his statements relating to the customs of the city must be received with caution; he has adopted from text-books statements respecting them which are not supported by authority. The passage cited in Vin. Abr. "Statute," E., 6, pl. 10, from The Mayor of London v. Barnardiston, (1 Lev. 14), is at most an extrajudicial dictum, because no question of a negative statute arose in that case. The general principle is, Posteriores leges priores contrarias abrogant. In 2 Inst. 200, Lord Coke thus expresses the rule as to affirmative and negative statutes: "A statute made in the affirmative, without any negative, expressed or implied, doth not take away the common law;" and Mr. Hargrave (Co. Litt. 115. a., note 153) says, "This seems to be the justest way of stating the rule, both as to common law and customs." [He also cited note 154.] If it appears, upon an examination of an act of Parliament, that it is the obvious intention of the Legislature to repeal a previous law, that law must be repealed; and the best test of the intention of the Legislature is, whether the previous law is inconsistent with the new statate or not. In Harcourt v. Fox, (1 Show. 506), Eyre, C. J., said, (p. 520), "Statutes introductive of a new law, penned in the affirmative, do always repeal former statutes concerning the same matter, as implying a negative." He cited Rex v. Cator, (4 Burr. 2026); Ex parte Carruthers, (9 East, 44); Paget v. Foley, (2 Bing. N.C.679); Rex v. The Trustees of the Northleach and Witney Roads, (5 B. & Adol. 978); Burns v. Carter, (5 Bing. N. C. 429).] Magna Charta, which prohibits mortmain under certain circumstances, and the Statute of Mortmain, 23 Hen. 8, c. 10, s. 5, contain an express exemption in favour of the customs of London. The object of stat. 9 Hen. 4, cited by Lord Coke, in The case of the City of London, (8 Co. 128 a), was to con*Pulling also referred to a book in the Inner Temple Library, intituled, "The City Law, or Course of Practice of all Manner of Judicial Proceedings in Hustings in Guildhall, London. Englished out of an ancient French Manuscript, 1642." On the title-page is added, in a note, said by Mr. Hargrave to be Sir Martin Wright's, "called Dunthorne, an ancient book in French, in which the customs were registered;" probably so called from the town-clerk of that time. It was allowed to prove one of the customs of the city of London, in Tyley v. Seed, (Skinn. 649). He read the following ex tracts: "Item.-Every alderman of London may, by usage, record attornies in pleas depending in the Sheriff's Court, and especially in the hustings and in the chamber." (P. 54). That is, the Lord Mayor's Court, held in the chamber in Guildhall. "That all general attornies made and received within the compter of the Sheriff of London are held to be upon record, s well as if they were taken in the courts held at Guild. hall, and such attornies are not to be entered in the paper of the aldermen and sheriffs." firm the customs of London, which had been infringed upon by previous acts of Parliament. In sect. 40 of stat. 5 Eliz. c. 40, upon which Rex v. Bagshaw (Cro. Car. 347) was decided, there was an express reservation of the customs of London. In Simpson v. Moss, (2 B. & Adol. 543), and The Mayor of Leicester v. Burgess, (5 B. & Adol. 246; 2 Nev. & M. 131), the Court construed the old law to be not inconsistent with the new statute. [Alderson, B.-The question is, whether the stat. 6 & 7 Vict. c. 73, and the custom, are inconsistent. Parke, B.-This custom must be considered as having the force of an act of Parliament, because all the customs of the city that have existed from time immemorial are confirmed by acts of Parliament.] Many general statutes, though they do not contain a non obstante clause, must apply to London, as stat. 36 Edw. 3, c. 15, which enacts, that all pleadings shall be in English. (Grisling v. Wood, Cro. Eliz. 85). So, the acts for regulating weights and measures. (Noble v. Durell, 3 T. R. 271). [Maule, J.-Those acts were passed for the very purpose of putting an end to customs according to which weights and measures varied in different parts of England.] The stat. 6 & 7 Vict. c. 73, is a general act relating to the laws previously existing as to attornies. [Maule, J.If the statute intends only to consolidate the acts of Parliament and other general laws relating to attornies, it may not apply to London.] The stat. 33 Hen. 6, c. 7, which enacted, that there should be but six attornies in Norfolk and Suffolk, and two in Norwich, must have been repealed. [Alderson, B.-There are several sections in stat. 6 & 7 Vict. c. 73, such as those which relate to taxation of bills, which could as properly apply to the attornies practising in the Mayor's Court as to any others.] The 4th section of the Statute of Frauds, 29 Car. 2, c. 3, though it does not contain a non obstante clause, must have repealed the custom of London, by which an action of debt would lie against sureties without writing. [Maule, J.-It was the general custom of the realm before the Statute of Frauds, that a surety by parol might be sued.] Again, the custom in London to pass houses and lands by parol (2 Inst. 675) cannot prevail against the 3rd section of the Statute of Frauds. The 36th section of stat. 3 & 4 Will. 4, c. 27, which abolished all real and mixed actions, expressly mentions the writ of right in London. But there are many forms of action which might have been commenced in the Court of Hustings; can it be contended, that they may still be brought notwithstanding that section, though not mentioned in it? There is a custom in London by which a freeman may wage his law even in actions of trespass; is not that abolished by sect. 13 of stat. 3 & 4 Will. 4, c. 42, by which it is enacted, "that no wager of law shall be hereafter allowed?" There is also a custom in London as to fines and recoveries. (Beckwith's case, 2 Co. 57; Needler v. The Bishop of Winchester, Hob. 220, 225; Lusher v. Baubong, 3 Dy. 290 a). Is not that custom altered by sect. 2 of stat. 3 & 4 Will. 4, c. 74, which enacts, that "any fine or common recovery which shall be levied or suffered contrary to this provision shall be absolutely void?" By the custom of London, a creditor may, before the day of payment, arrest his debtor, and oblige him to find surties to pay the money on the day it shall become due," (Bac. Abr. "Customs of London," G.), if he is suspected and likely to become fugitive. (Horton v. Beckman, 6 T. R. 760). Is not that custom abolished by stat. 1 & 2 Vict. c. 110? [Parke, B.-That is an act for abolishing arrest on ferred to in that custom is not on mesne process,—it is mesne process, except in certain cases. The arrest rea process by which a creditor is entitled to get a better security from a surety. It is doubtful whether that is repealed.] At any rate, it is partially repealed by stat. 19 Geo. 3, c. 70, which enacts, "that no person shall be arrested or held to special bail upon any process issuing out of any inferior court where the cause Kerry v. Bower, Cro. Eliz. 186). It cannot grant a of action shall not amount to the sum of 107. or up- new trial. (Blacquiere v. Hawkins, 1 Dougl. 378, 380), wards." At the time of the passing of stat. 6 & 7 Vict. The Mayor's Court had no power to compel the attendc. 73, there were laws in the city of London relating to ance of jurors, before stat. 29 Geo. 2, c. 19. The courts attornies and solicitors. The stat. 2 Geo. 2, c. 23, con- at Westminster exercise control over the Mayor's Court tained general provisions for the regulation of attornies, by writs of mandamus, prohibition, habeas corpus, and applying to all courts of record; and, therefore, to the certiorari. (Jordan v. Cole, 1 H. Bl. 532). The obMayor's Court. Stat. 6 Geo. 2, c. 27, enacted, that per-servations of Lord Mansfield, in Rex v. The Chamberlains sons admitted attornies in the courts at Westminster of Worcester, (2 Ld. Ken. 469, 472), apply to the pracshould be capable of being admitted to practise in any tice of removing civil causes by writ of habeas corpus inferior court of record, provided they were capable cum causâ. In Bulmer v. Marshall, (5 B. & A. 821; 1 D. and qualified, according to the usage and custom of & R. 537), it was held, that a judgment upon foreign atsuch inferior court; and it reserved the rights of attachment was not within sect. 4 of stat. 19 Geo.3, c. 70, betornies in the Mayor's Court. Other statutes are re- cause it is not a final judgment, and confers no right to the cited in stat. 6 & 7 Vict. c. 73, and repealed, and their property attached. (Wetter v. Rucker, 1 B. & B. 491; provisions are re-enacted without the exception or re- Holt v. Murray, 1 Sim. 484). The Mayor's Court is an servation contained in the latter. If the 27th section inferior court, though, by custom, it has some incidents of stat. 6 & 7 Vict. c. 73, does not apply to the Mayor's not belonging to an inferior court, and though it has Court, the sections which require certain qualifications equitable jurisdiction, as the Mayor's Court of York has. in persons to be admitted attornies do not apply. The (Martin v. Marshall, Hob. 63). In Clifford v. Beeston, return does not state that any qualification is necessary, (1 Dick. 33), and The Mayor of London v. Dormer, nor that the Court of Aldermen have any control over (Carey, 60), the Court of Chancery interfered with the their admission, but only a power of dismissal, which, Mayor's Court of Equity, which is a distinct court, held the clerk or attorney's office being a corporate office, before the Lord Mayor, called The Court of Conscience. would only be exercised for some cause recognised by the (4 Inst. 248). There are two distinct courts. The writ common law as to corporations, and not for such causes properly describes the Mayor's Court as an inferior court, as this court would notice. [Parke, B.-Supposing the and the applicant could not traverse the allegation in applicant to be a solicitor in the Court of Chancery, the return, that the Mayor's Court is a court of law and would he be entitled, in equity matters, to practise in a court of equity, because the courts at Westminster the Mayor's Court?] He would be entitled to practise will take notice as to what courts are inferior; it is in like manner as if he had been sworn in as an attorney matter of law. (Laughton v. Taylor, 6 Mee. & W. 695). of the court. [Alderson, B.-There is an oath to be Further, it is an inevitable consequence of its being a taken upon admission*, which binds the party to many court of law and a court of equity, that it mixes up and things, and, among others, to keep secret the books confounds law and equity. [Rolfe, B.-Before the aboconcerning the customs of the city.] The statute does lition of the Courts of Great Sessions in Wales, they were not prescribe the mode in which the party shall be courts of law and equity. Maule, J.-The circumsworn: he would not have to take this oath. [Alder- stance of the existence of an equitable jurisdiction and son, B.-If the oath is a good one, the party ought to a legal jurisdiction in any court shews that they may take it, or not to be admitted.] There is no duty re- exist without being confounded. Rolfe, B.-There is lating to an attorney prescribed in the oath which no precedent in this country for any court of equity would not be incumbent upon the applicant as an at- which is not also a court of law. The Court of Chantorney: the other parts of the oath apply to the office cery is both a court of law and a court of equity, though of clerk or officer of the court. [Parke, B.-The ar- it is obsolete as a court of law. So, the Court of Exgument on the other side is, that the Legislature did chequer was a court of law and equity.] If the mannot intend to interfere with a court having attornies damus had described the Mayor's Court as a court of practising in it bound by such an oath.] The granting law and a court of equity, it would have been bad for of this application will only enable the party to prac- duplicity. This Court will recognise what its jurisdictise as an attorney: it will not give him a right to be tion is, (Hollingshed v. King, 1 Leon. 284; 4 Leon. 182; a corporate officer, and perform those functions, such Bramer v. Watkins, 16 Mee. & W.77; Beswick v. Shanks, as giving security for bail, which are stated in the re- 3 Bing. 459). If any tribunals whatsoever attempt to turn as belonging to the attornies now practising in exceed the limits prescribed to them by the common the Mayor's Court; and the power which this Court law, the courts of common law at Westminster prohibit has of punishing attornies in inferior courts for miscon- them, (3 Bl. Com. 87); and they could not do so, nor duct (Evans v., 2 Wils. 382) is a better security decide other questions arising out of proceedings in them, than the power of dismissal by the Court of Aldermen. without taking notice of their jurisdiction, whether they The Mayor's Court is an inferior court. (Hale's are courts proceeding according to the course of the Analysis, by Runnington, 24, 25; Bac. Abr. "Courts," common law, or courts proceeding according to statute. D.; 3 Bl. Com. 80). [Gurney. It is admitted, that In Ex parte Kinning, (12 Jur. 451, 456), the Court of the term "inferior court" is large enough to include Queen's Bench took notice of the jurisdiction of the the Mayor's Court, but not that it has all the incidents Sheriff's Court. The term "inferior court" must of an inferior court; for instance, there is no inferior mean inferior court of law. [He cited 3 Black. Com. court which has a criminal jurisdiction by virtue of 80, 87.] As to the objection, that the Mayor's Court which an ex officio information may be filed in itt.] has no roll, the stat. 6 & 7 Vict. c. 73, impliedly directs It must appear upon the face of the proceedings, it to procure a roll, according to the maxim as to the that the cause of action arose within the jurisdiction. incidents of a general right, "Quando lex aliquid alicui (Horton v. Beckman, 6 T. R. 760, 764; Morris v. concedit, concedere videtur id sine quo res ipsa uti non Ludlam, 2 H. Bl. 362). In Com. Dig. "Abatement," potest;" and "whenever a statute gives or provides (H. 24), 9, it is said, "The pendency of a suit in anything, the common law provides all necessary remean inferior court, thus-in London, Norwich," is not dies and requisites." (2 Dwarris on Statutes, 662). allowable. A foreign attachment or other proceed- This Court will not assume that an inferior court has ing pending in the Mayor's Court is no answer to not a roll. (Clutterbuck v. Hulls, 4 D. & L.80). [Alan action in this court. (Smidt v. Ogle, 6 Taunt. 74; derson, B.-If it appear that there is no roll, how could the writ be complied with?] If the statute impliedly requires the Mayor's Court to procure a roll, it cannot set up disobedience to the statute as an answer to this See the oath set forth in the return, 11 Jur. 869. + See the jurisdiction of the Lord Mayor's Court in this respect stated in the return, 11 Jur. 868. writ. [Alderson, B.-The 2nd section, which enacts, that no person shall act as an attorney, unless he shall have been admitted and inrolled, must have been intended to apply only to the courts which had a roll.] All the statutes as to the necessity of having a roll, the first of which was 4 Hen. 4, c. 18, had been previously repealed. The stat. 33 Hen. 6, c. 7, regulating the num ber of attornies in Norfolk, Suffolk, and Norwich, is in the schedule of repealed statutes to stat. 6 & 7 Vict. c. 73; but that had long been obsolete. Cur. adv. vult. In the following Hilary Vacation, (Feb. 1), Gurry was heard in reply. PARKE, B., now delivered the judgment of the Court. -This case was argued before my Brothers Alderson, Rolfe, Platt, and Williams; my Brothers Coltman and Maule heard part of the argument, but give no opinion. A writ of error has been brought on a judgment for the Crown on a demurrer to a return to a writ of mandamus to admit William Henry Ashurst, an attorney of this court, an attorney of the Lord Mayor's Court, in the city of London. The question before us was, whether, upon the facts admitted upon the demurrer to the return, the applicant, Mr. Ashurst, was entitled to be admitted, by virtue of the 27th section of the 6 & 7 Vict. c. 73, an attorney of the Lord Mayor's Court, and whether the mandamus was in a correct form if he was so entitled. The Court have considered the very able arguments which were urged on both sides, and, I believe, are not entirely agreed in the view taken of the principal point which was under discussion—that is, whether the Court of Queen's Bench were right or not in the opinion they formed upon the construction of this act. But then a further question arose, whether the mandamus in its present form is sustainable; and we all agree that it is not. The objection to it is, that it does not state that the Lord's Mayor's Court is an inferior court of law, but only an inferior court; and it is only to inferior courts of law that attornies of the superior courts of law are entitled to be admitted. The mandamus does not shew any obligation to admit to this court. The Affidavit, on a Rule to enlarge a peremptory Under- Hodgson shewed cause. The rule must be discharged, on the facts now before the Court. The application is too late; the plaintiff ought to have come in Trinity Term last, and not waited until the actual default took place. The rule was discharged on the 1st of May last, and, therefore, the plaintiff had ample time so to do. [Patteson, J.-I do not see how he could take any step in Trinity Term.] The affidavit on which this application is founded is insufficient: it merely states that "he was unable to discover the residence of the witness.” This is precisely in the same terms as that on which the former rule was discharged. [Patteson, J.-The affidavit states he could not find the address of the witness until too late to give notice of trial. The question is, whether he was bound to give notice of trial on the chance of finding the witness? I rather think it a reasonable thing he should delay giving notice of trial.] There is no statement in the affidavit who the witness This objection is fatal, unless the return, which ad- is, where he resides, or whether his evidence is matemits it to be a court of law, cures the defect. On a rial or not; or whether, in the event of the trial being plea, an admission of that nature would have that set down, he is likely to be forthcoming. In Moulford effect, though the plea should be bad; but it was ar- v. Bond, (2 Dowl. P. C. 403), where an objection was gued, that in a mandamus the judgment is, that the taken that the name of the witness was not mentioned return be quashed; and, if that be the case, it is the in the affidavit upon the first default, Littledale, J., same as if no return were made. The judgment in this said, "It is not necessary that the witness should be case is, however, not that the return is to be quashed, named in the case of the first default, but in that of the but that it is invalid in law. But a peremptory man- second it may be different." If the defendant were endamus is always awarded, and that form being used, it deavouring at Nisi Prius to postpone the trial, on the must be the same as the one originally awarded, other-ground of the absence of a witness, he would be bound wise the defendant would have a right to make a new to disclose the name of such witness. [Patteson, J.-I return to it. The peremptory mandamus would, there- rather think we deal more tenderly with plaintiffs than fore, upon the face of it, be equally bad, and derives no defendants. The question really is, whether, on a sebenefit from the admission in the previous return. We cond default, it is necessary to give the name of the think, therefore, no peremptory mandamus ought to go witness? Is there any case on it? My Brother Wilin the present form; and, consequently, the judgment of liams does not say positively but that it may be given.] the Court of Queen's Bench, awarding such mandamus, Rose v. The Port Talbot Company (15 Law Journ., N. S., ought to be reversed. It is now perfectly settled law, Q. B., 316) is in point. that, after the return to a mandamus, objections may be taken to the form of the writ. That was decided in the case of Rex v. The Margate Pier Company, (3 B. & Ald. 220), and in Reg. v. Powell, (1 Q. B. Rep. 352; 5 Jur. 605). The judgment, therefore, of the Court of Queen's Bench must be reversed upon this ground. This was a matter which does not appear to have been considered in the Queen's Bench at all.-Judgment reversed. BAIL COURT.-MICHAELMAS TERM. Charnock, in support of the rule.-It is not absolutely necessary that the name of the witness should be given; and, in this particular case, it would be a great hardship, for the action is brought under the Game Act; and, if the present rule is refused, the plaintiff will be precluded from bringing another. PATTESON, J.-In the absence of any express decision, that, on the second default, the name of the witness should be stated, I do not see that it is more requisite to do so than on the first. I think, therefore, I ought not to exclude the plaintiff from going down to trial at the next assizes. The rule must be absolute on payment of costs.-Rule absolute accordingly. |