told And there are cases in which the court has refused to interfere by mandamus to compel the courts below to raise a particular question: for instance, in Rex v. Hewes, 3 A. & E. 725, the jury had returned a verdict, guilty by mischance; the chairman of the sessions them they must find a general verdict; and they then found a verdict of guilty, and recommended to mercy on the ground that the act was not done with a malicious intent. The motion was for a mandamus to set the clerk of the peace's minute right according to the facts, in order that a writ of error might be sued out. The rule was discharged. Mr. J. Patteson said, "The case of a mandamus to enter continuances and hear is not like this. There the justices are ordered merely to hear an appeal, and to enter continuances because those are necessary in order to enable them to hear; so, in the present case, if it were necessary for the defendant to have a record made up, and the officer refused to do it, the party having a right to avail himself of the record might apply for a mandamus, as in Rex v. Justices of Middlesex, 5 B. & Ad. 1113. I have always understood that this court might send a mandamus to an inferior court to do its duty in general terms, but not to do a particular thing, as to make an alteration here or there in the clerk of the peace's minutes." Supposing that the court below cannot be compelled by mandamus to show the defect of jurisdiction upon the record, the next question is, will the court above allow evidence of such defect of jurisdiction to be laid before it by way of affidavit, on the record being brought before it by a writ of certiorari? In Rex v. St. James's, Westminster, 2 A. & E. 241, it was remarked by Mr. J. Taunton (a judge whose obiter dicta are always worthy of the greatest attention,) that this had been constantly done. In Rex v. Inhabitants of Great Marlow, 2 East, 244, an appointment of overseers, good on the face of it, was allowed to be questioned by affidavit on the ground of a defect of jurisdiction, and was finally quashed. The court in that case had taken time to consider as to the practice with regard to receiving the affidavit ; and Mr. J. Lawrence mentioned several similar cases in which that course had been pursued. similar course seems to have been pursued with an order of the quarter sessions in Rex v. Justices of the West Riding of Yorkshire, 5 T. R. 629. In the late case of Rex v. Justices of Cheshire, 1 Perr. & Dav. 93, 8 A. & E. 400, the question was a good deal discussed; and it seems to have been admitted that affidavits might be looked at for the purpose of showing a defect of jurisdiction. "It cannot be disputed," says Mr. J. Coleridge in that case, "that there are many cases in which A affidavits may be looked at in order to ascertain whether there was jurisdiction or not; for suppose an order made, which was good on the face of it, but which was not made by a magistrate, it is clear that this fact may be shown to the court." Accord Rex v. Sheffield and Manchester Railway Co., Mich. 1839, B. R. Assuming this to be so, every case, or almost every case, of a defect of jurisdiction in the convicting magistrate or magistrates would be reviewable by certiorari; for though it is now usual for the statute creating the offence to contain a clause taking away the certiorari, yet such clauses do not, generally speaking, apply to cases where there was no jurisdiction to convict, such cases not falling within the act of parliament at all. Rex v. Justices of Somersetshire, 5 B. & C. 816; Rex v. Justices of the West Riding of Yorkshire, 5 T. R. 629; Rex v. Inhabitants of Great Marlow, 2 East, 244. But there is a disBut there is a distinction between cases of a want of jurisdiction and an irregularity in exercising it: in the former case the certiorari lies notwithstanding the privative clause, in the latter it is taken away. Exeter Railway Co., 1 P. & D. 170, note; Rex v. Sheffield and Manchester Railway Co., Mich. 1839, B. R. Rex v. Bristol and However, where the justice or justices had jurisdiction, the court will not grant a certiorari to remove the conviction, or order, upon a suggestion made by affidavit that they have exercised the jurisdiction wrongly; Rex v. Justices of Cheshire, 1 Perr. & Dav. 88, 8 A. & E. 400; Rex v. St. James's, Westminster, 2 B. & Ad. 241; for that would be to substitute the court above for the tribunal to which the statute has committed the inquiry. And though it has been, endeavoured to show that the Queen's Bench has a right in cases of defect of jurisdiction to entertain the objection founded upon such defect on affidavit, yet it must be observed that the court is not bound to do so upon certiorari; for a certiorari, as has been already pointed out, is a writ not of right, but in the discretion of the court to grant or to refuse. And cases may occur in which, though there may have been a defect of jurisdiction, still the court may conceive that the interests of justice would be rather impeded than advanced by any summary interference on their part. In Rex v. Justices of Cambridgeshire, 4 B. & Adol. 122, Mr. J. Patteson said, "With regard to the objections in point of jurisdiction, I protest against its being understood that we can on every occasion look into extrinsic matter on motions to bring up orders by certiorari.” "We must be cautious," said Mr. J. Coleridge, "not to exceed our jurisdiction; and when we find there is a court of appeal below, to which the matter brought before us on affidavit Justices of Denbighshire, 1 B. & Adol. 616. See Rex v. South Holland Drainage Committee-men, 1 P. & D. 79; Rex v. Manchester and Leeds Railway Co., 1 P. & D. 164. And that its disinclination to interfere is strong and uniform in cases where the legislature has provided another competent tribunal of appeal to which the question might be carried. In Rex v. Justices of Cambridgeshire, Lord Denman, in his judgment, suggested another ground on which an application upon affidavit might possibly be entertained. "I do not say," said his lordship," that even on certiorari the court would not set aside an order if manifest fraud were shown. That may be so. In Rex v. The Justices of Somersetshire, where a certiorari was applied for to remove an appointment of overseers, on a suggestion of corrupt motives in the appointing magistrates, the court refused a rule, saying that the parties complaining might appeal to the sessions, or move for a criminal information. Notwithstanding that refusal, however, I do not say that if corruption were clearly made out, the court would not, upon an application like this, declare the order invalidated by the fraud." This observation of his lordship is consistent with the principle laid down by C. J. De Grey in the Duchess of Kingston's case, post. volume 2, 431, where his lordship observed that "fraud is an extrinsic collateral act which vitiates the most solemn proceedings of courts of justice." Lord Coke says, "it avoids all judicial acts, ecclesiastical or temporal." LICKBARROW v. MASON. IN B. R. CAM. SCACC. ET DOM. PROC. [REPORTED 2 T. R. 63; 1 H. bl. 357; and 6 EAST, 21.] The vendee of goods may, by assignment of the bills of lading to a bonâ fide transferee, defeat the vendor's right to stop them in transitu, in case of the vendee's insolvency. The consignor may stop goods in transitu before they get into the hands of the consignee, in case of the insolvency of the consignee: but, if the consignee assign the bills of lading to a third person for a valuable consideration, the right of the consignor, as against such assignee, is divested. There is no distinction between a bill of lading indorsed in blank, and an indorsement to a particular person. TROVER for a cargo of corn. Plea, the general issue. The plaintiffs, at the trial before Buller, J., at the Guildhall sittings after last Easter term, gave in evidence that Turing and Son, merchants at Middleburg, in the province of Zealand, on the 22nd of July, 1786, shipped the goods in question on board the Endeavour for Liverpool, by the order and directions and on the account of Freeman, of Rotterdam. That Holmes, as master of the ship, signed four several bills of lading for the goods in the usual form unto order or assigns: two of which were indorsed by Turing and Son in blank, and sent, on the 22nd July, 1786, by them to Freeman, together with an invoice of the goods, who afterwards received them; another of the bills of lading was retained by Turing and Son; and the remaining one was kept by Holmes. On the 25th of July, 1786, Turing and Son drew four several bills of exchange upon Freeman, amounting in the whole to 4777. in respect of the price of the goods, which were afterwards accepted *by Freeman. On the 25th of July, 1786, Freeman sent to the plaintiffs the two bills of lading, together with the invoice which he had received from Turing and Son, in the same state in which he received them, in order that the goods might be taken possession of and sold by them on Freeman's account; and on the same day Freeman drew three sets of bills of exchange to the amount of 5207. on the plaintiffs, who accepted them, and have since duly paid them. The plaintiffs are creditors of Freeman to the amount of 5427. On the 15th of August, 1786, and before the four bills of exchange drawn by Turing and Son on Freeman became due, Freeman became a bankrupt those bills were regularly protested, and Turing and Son have since been obliged, as drawers, to take them up and pay them. The price of the goods so shipped by Turing and Son is wholly unpaid. Turing and Son, hearing of Freeman's bankruptcy on the 21st of August, 1786, indorsed the bill of lading, so retained by them, to the defendants, and transmitted it to them, with an invoice of the goods, authorizing them to obtain possession of the goods on account of, and for the use and benefit of, Turing and Son, which the defendants received on the 28th of August, 1786. On the arrival of the vessel with the goods at Liverpool, on the 28th of August, 1786, the defendants. applied to Holmes for the goods, producing the bill of lading, who thereupon delivered them, and the defendants took possession of them for and on account of, and to and for the use and benefit of, Turing and Son. The defendants sold the goods on account of Turing and Son, the proceeds whereof amounted to 5571. Before the bringing of this action the plaintiffs demanded the goods of the defendants, and tendered to them the freight and charges; but neither the plaintiffs nor Freeman have paid or offered to pay the defendants for the goods. To this evidence the defendants demurred; and the plaintiffs joined in demurrer. This was argued in last Trinity Term by Erskine in support of the demurrer, and Manly against it; and again, K K |