Clutterbuck v. Hulls. 4 Dowl. & L. 80; and that, if that defect appeared, a mandamus might issue to provide one. [ALDERSON, B.-I think the statute was clearly meant to apply only to such courts as, in the opinion of the Legislature, had a roll de facto and de jure.] Stat. 2 G. 2, c. 23, s. 18, ordered inferior courts to provide a roll: that act, as appears by sect. 1, applied only to the courts then existing; and its provision in this respect is not renewed: therefore, according to the argument for the plaintiffs in error, an attorney could not be admitted in the courts of bankruptcy and insolvency established since 2 Geo. 2, by statutes which do not expressly provide for enrolment.

*Gurney, in reply, cited, as to the custom of appearing by *38] attorney in the city courts, The Case of Hastings, an Attorney, 1 Mod. 23, and Gillman v. Wright, 1 Sid. 410. He admitted that the Lord Mayor's Court was an "inferior court" within the letter of stat. 6 & 7 Vict. c. 73, s. 27, but contended that more was necessary to show that a court, having the incidents shown by the return, came within the intention of that clause. The argument founded on the literal application of general words would, if valid, have prevailed in The Mayor of Leicester v. Burgess, 5 B. & Ad. 246 (E. C. L. R. vol. 27). As to the roll, he contended that stat. 2 G. 2, c. 23, would, while in force, have applied to courts subsequently established: and he referred to stats. 1 & 2 W. 4, c. 56, s. 10, and 7 G. 4, c. 57, s. 85, as showing that the Courts in Bankruptcy and Insolvency, established by those acts respectively, were intended to have a roll. He also insisted that the Lord Mayor's Court was admitted on the present record to be a Court of both law and of equity, and was in fact so, as appeared by the published treatises on the customs of London: Lex Londinensis, p. 2; Bohun's Privilegia Londini (3d ed. London, 1723), p. 251; and that, although it was said (in argument) in Martin v. Marshal, Hob. 63, that "a Court of equity could not lie in grant," the city of London was there admitted to have such a Court. He also relied upon the objection that the mandamus did not allege the Lord Mayor's Court to be a court of law or of equity; and urged that this Court, though it would notice the existence of an inferior Court, could not know its functions and the nature of its jurisdiction, at least in the case of a court by charter; Wilson v. Hobday, 4 M. & S. 120, *393 128; and that the cases cited on the point for the Crown did not warrant the contrary assumption. [PARKE, B.-On writ of error, the Courts notice the customs of an inferior Court.] That is from necessity.(a) [ALDERSON, B.-Does not your return cure the defect in the mandamus?] It does not. A demurrer to the return is now substituted for a motion to quash. Supposing the return quashed, the writ stands alone. Cur. adv. vult.

13

PARKE, B., now delivered the judgment of the Court.

(a) Gurney referred to 1 Chitt. Plead. See p. 240 of that volume (7th ed.), where Blacquiere v. Hawkins, 1 Doug. 378, 380, and Redham v. Waters, 1 Salk. 269, are cited.

This case was argued before my brothers ALDERSON, ROLFE, PLATT and WILLIAMS, and myself. My brother CRESSWELL was here during part of the time; but he wishes to give no opinion. My brother COLTMAN also heard part of the argument, and does not give any opinion upon it.

In this case 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 Mr. W. H. Ashurst, an attorney of this Court, to be an attorney of the Lord Mayor's Court of the city of London. The case was partly argued at the sittings of this Court after Michaelmas term, and completed, by Mr. Gurney's reply, at the sittings after last term.

The questions before us were, whether, on the facts admitted by the demurrer to the return, the applicant, Mr. Ashurst, was entitled to be admitted, by virtue of the 27th section of stat. 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 entitled.

[*40

The Court has considered the very able arguments which were urged on both sides. In the Court of Queen's Bench the attention of the Court appears to have been directed principally to the question whether this Court was an inferior Court. In the arguments before us this point was altogether abandoned by the able counsel for the defendants, who fully admitted the propriety of the judgment in that respect, but rested his case upon other gronnds. The main question before us was whether, according to the true construction of the 27th section of stat. 6 & 7 Vict. c. 73, the legislature meant to interfere with the Lord Mayor's Court, and notwithstanding the existence of the custom of exclusive practice in four attorneys, to give every attorney of the superior courts a right to be admitted thereto.

This question was fully argued; and I believe we are not all agreed upon it: but, in the view we take of the case, it is not necessary for us to determine this point; for a further question arises, whether the mandamus in its present form is sustainable; and we think it is not. The objection to it is, that it does not state that the Lord Mayor's Court is an inferior Court of law, but only an inferior Court; and it is only to inferior Courts of law that attorneys of the superior courts are entitled to be admitted. The mandamus does not show any obligation to admit to this Court. This objection is fatal, unless the return, which admits it to be a Court of law, cures the defect.

In a plea, an admission of that nature would have that effect, though the plea should be bad; but it was argued that, on a mandamus, the judgment is that the return *be quashed; and, if it be, the case [*41 is the same as if no return were made. The judgment in this case is, however, not that the return shall be quashed, but that it is invalid in law. But a peremptory mandamus is always awarded; and its form must be the same as the one originally awarded; otherwise the defendants VOL. XIII.-5

would have a right to make a new return to it; and the peremptory mandamus would, on the face of it, be equally bad, and derive no benefit from the admission in the previous return. We think, therefore, that no peremptory mandamus ought to go in the present form; and, conse quently, the judgment, including such a mandamus, ought to be reversed.

It is now perfectly settled law that, after a return to a mandamus, objections may be taken to the form of the writ; Rex v. The Margate Pier Company, 3 B. & Ald. 220 (E. C. L. R. vol. 5); Regina v. Powell, 1 Q. B. 352 (E. C. L. R. vol. 41).(a) Judgment reversed.

(a) See also Regina v. Ledgard, 1 Q. B. 616 (E. C. L. R. vol. 41).

**42]

The QUEEN v. ARCHIBALD DOUGLAS.

Stat. 13 G. 3, c. 63, s. 40, enacts that, in all cases of indictments, &c., laid in the Queen's Bench for misdemeanors committed in India, it shall be lawful for that Court, on motion, to award a mandamus to the Supreme Court of Judicature at Fort William (established under the same act) or the Judges of the Mayor's Court at Madras or Bombay, &c., who were thereby respectively authorized to hold a Court for the examination of witnesses concerning the matters of such indictment, to take such examinations, and to send them into this Court, where they were to be received as evidence. By a later act, the Mayor's Court at Madras, as previously constituted, was abolished, and a Recorder's Court substituted; and, by a subsequent act, the powers of that Court were taken away, and a Supreme Court created at Madras, with liberty to exercise the same jurisdictions, and invested with the same power, authorities, and privileges for that purpose, and subject to the same limitations, restrictions, and control, as the said Supreme Court at Fort William. And, afterwards, by stat. 4 G. 4, c. 71, the Supreme Court of Madras was empowered and required, within its limits, to do all such acts, &c., and things whatsoever as the Supreme Court at Fort William was or might be authorized, empowered, or directed to do.

Held, that the alterations in the Madras Court by these statutes did not preclude the Court of Queen's Bench from issuing a mandamus under stat. 13 G. 3, c. 63, s. 40, to the Madras Court as finally constituted.

An information being filed in Q. B. for misdemeanors committed in India, a mandamus issued under this act, directed "to the Chief Justice and other Judges" (who were two) of the Madras Supreme Court, requiring them to hold a Court and examine witnesses. Only the Chief Justice and one other Judge sat, and took the examinations.

Held that the mandamus was well executed.

Stat. 13 G. 3, c. 63, s. 40, required that the examinations should be taken openly in Court vivâ voce, on oath, and should, "by some sworn officer of such Court, be reduced into one or more writing or writings on parchment;" and should be sent to the Court of Queen's Bench closed up and under the seals of two or more of the Judges of the Madras Court; and the agent to whom the same should be delivered by the said Judges was to make oath that he had received the same from them, &c. The two Judges who took the above-mentioned examinations at Madras made a return, stating that they had held a Court, and certifying that parchment writings, which they transmitted, were the examinations reduced into writing, by T. and O., the clerk and deputy clerk of the Crown, openly taken viva voce before the said Judges on the oath of, &c. (witnesses), under the mandamus. And they certified that T. and O. were the clerk and deputy clerk, &c., and sworn officers of the Court. T. and O. added a certificate stating that they were present, as clerk and deputy clerk, during the proceedings under the writ and that the parchments annexed, containing the several examinations of W. H. B., &c. (witnesses), "are true and faithful copies of the vivâ voce examinations of the said W. H. B.," &c., "who were severally produced, sworn, and examined as witnesses in pursuance of the said writ of mandamus; such parchment writings having been transcribed in the Crown Office from the original examinations of the several witnesses taken by us the said" T. and O. “in open Court as such clerk of the Crown and deputy clerk of the Crown as aforesaid, the same

having been carefully collated and compared by us the said" T. and O., "as such officers as aforesaid, with such originals: and that the said examinations are subscribed by the said W. H. B.," &c., "respectively." The examinations were not in the handwriting of T. or O.; nor did appear by whom they had been transcribed.

Held that the parchment writings so returned sufficiently appeared to be such examinations reduced into writing as were required by stat. 13 G. 3, c. 63, s. 40, and were evidence on the trial of the information.

AN information ex officio was filed in this Court against Captain Archibald Douglas, (a) for extortion in receiving gifts from Seevajee Rajah and from *other persons, in the East Indies, while he [*43 resided there and held the office of Resident at Tanjore under the East India Company. (See a further statement of the information, p. 74 post.) The venue was London. The defendant having pleaded Not Guilty, and issue being joined thereon, a mandamus was granted by the Court for an examination of witnesses in India, under stat. 13 G. 3, c. 63, s. 40 ;(6) and a return was made thereto.

*The material parts of the mandamus and return were as follows.

[*44 "Our Lady the Queen hath sent to the Chief Justice and other Judges of the Supreme Court of Judicature at Madras in the East

(a) See In the Matter of Douglas, 3 Q. B. 825 (E. C. L. R. vol. 43).

(b) Stat. 13 G. 3, c. 63, s. 40, is as follows. "And whereas the provisions made by former laws for the hearing and determining in England offences committed in India have been found ineffectual, by reason of the difficulty of proving in this kingdom, matters done there; be it further enacted by the authority aforesaid, That in all cases of indictments or informations, laid or exhibited in the said Court of King's Bench, for misdemeanors or offences committed in India, it shall and may be lawful for his Majesty's said Court, upon motion to be made on behalf of the prosecutor, or of the defendant or defendants, to award a writ or writs of mandamus, requiring the Chief Justice and Judges of the said Supreme Court of Judicature" (to be established at Fort William, by sect. 13) "for the time being, or the Judges of the Mayor's Court at Madras, Bombay, or Bencoolen, as the case may require, who are hereby respectively authorized and required accordingly to hold a Court, with all convenient speed, for the examination of witnesses, and receiving other proofs concerning the matters charged in such indictments or informations respectively; and, in the mean time, to cause such public notice to be given of the holding the said Court, and to issue such summons or other process, as may be requisite for the attendance of witnesses, and of the agents or counsel, of all or any of the parties respectively, and to adjourn, from time to time, as occasion may require; and such examination as aforesaid shall be then and there openly and publicly taken vivâ voce in the said Court, upon the respective oaths of witnesses, and the oaths of skilful interpreters, administered according to the forms of their several religions; and shall, by some sworn officer of such Court, be reduced into one or more writing or writings on parchment, in case any duplicate or duplicates should be required by or on behalf of any of the parties interested, and shall be sent to his Majesty, in his Court of King's Bench, closed up, and under the seals of two or more of the Judges of the said Court, and one or more of the said Judges shall deliver the same to the agent or agents of the party or parties requiring the same; which said agent or agents (or, in case of his or their death, the person into whose hands the same shall come) shall deliver the same to one of the clerks in Court of his Majesty's Court of King's Bench, in the public office, and make oath that he received the same from the hands of one or more of the Judges of such Court in India (or, if such agent be dead, in what manner the same came into his hands); and that the same has not been opened or altered, since he so received it (which said oath such clerk in Court is hereby authorised and required to administer): and such depositions, being duly taken and returned, according to the true intent and meaning of this act, shall be allowed and read, and shall be deemed as good and competent evidence as if such witness had been present, and sworn and examined viva voce at any trial for such crimes or misdemeanors, as aforesaid, in his Majesty's said Court of King's Bench, any law or usage to the contrary notwithstanding; and all parties concerned shall be entitled to take copies of such depositions at their own costs and charges."

Indies, and to every of them, her writ closed in these words, that is to say: Victoria, by the grace of God," &c. «To the Chief Justice" and other, &c. (as above), "Greeting. Whereas an information hath been ex hibited in our Court before us at Westminster by our Attorney-General, who prosecuteth for us in that behalf, against Archibald Douglas for certain offences," &c., "that is to say: For that," &c. (The information was then set forth): "And whereas, upon the plea of Not Guilty pleaded by the said Archibald Douglas to the said information, issue hath been joined, to be tried in our said Court before us, as in our Court before us it appears upon record: And whereas application hath been thereupon made to our said Court before us on our behalf to award a writ of mandamus requiring you to hold a court with all convenient *speed for the examination of witnesses and receiving proofs con*45] cerning the matters charged in the said information, according to the form and effect of the statute in such case made and provided: and We, being willing that due and speedy justice should be done in the premises, do command you the said Chief Justice and other Judges of the Supreme Court of Judicature at Madras, and each of you, that you do hold a court with all convenient speed for the examination of witnesses and receiving proof concerning the matters charged in the said information, and that you do in the mean time cause such public notice to be given of the holding of the said Court, and do issue such summons or other process as may be requisite for the attendance of witnesses and of the agents or counsel of the prosecutor and defendant, and do adjourn from time to time as occasion may require; and that you perform all such matters and things as are by the said statute required in the premises and how you shall have executed this our writ make known to us at Westminster with all convenient speed, at the same time returning to us the examinations and proofs which you shall have taken by virtue of this our writ, together with this our said writ. Witness, THOMAS Lord DENMAN, at Westminster," 25th November, 6 Vict.

"And Sir EDWARD JOHN GAMBIER, Knight, Chief Justice, and Sir JOHN DAVID NORTON, Knight, Puisne Justice, of the said Court have returned the said writ, together with the examinations and proofs which have been taken by virtue of the said writ, as follows, that is to say:

"We, Sir E. J. GAMBIER, Knight, Chief Justice, and *Sir J. D. *16] NORTON, Puisne Justice, of Her Majesty's Supreme Court of Judicature at Madras, do, in pursuance of the writ of mandamus hereunto annexed, issuing," &c. (out of Q. B.), "bearing date," &c., "commanding us to hold a court with all convenient speed for the examination of witnesses and receiving proofs concerning the matters charged in an information filed," &c., "and to do such other acts for the execution and return of the said writ as is therein particularly mentioned: We hereby certify that, after due public notice thereof given, we did hold a court at the Court House at Madras on Monday the 3d day of April,