- of the Term.--3rdly, If it does not bear either of these relations, (f) 3 Ch. Ca. 106. (g) Sir John Ferrers and Sir John Curson v. Sir Rich. Farmer and others: it is reported in 2 Burr. that the Court repeatedly expressed their approbation of this case. (h) When the vouchee in a common recovery appears in person at the return day of the writ of entry, there the judg ment relates to the return day of that writ: but if the vouchee appear at the VOL. I. N return day of the summoneas ad warran- actual, but fictitious; not so much as a seisin for an instant. Were it a real seisin, I concede, that it must be a new use. Vid. Montagu and Jefferies, Roll. Abr. (i). [The case stood] over for farther argument, [but] the Court seemed to incline strongly for the defendant, on the footing of the double relation of the recovery, viz. to the bargain and sale, so as to make one conveyance, in point of substance; and to the first day of the Term, so as to become prior to the will, in point of date. But, in Trinity Term following, the Chief Justice declared, that the Court, as at present advised, could not consider the judgment in the recovery as prior to the return of the writ of entry, and directed another peremptory argument, on the first paper day of next Michaelmas Term:-(which see after, Michaelmas,-1 Geo. 3, 1760, pa. 251). (i) 1 Roll. Abr. 615, pl. 4. [ 229 TRINITY TERM,-33 & 34 GEO. II.-K. B. OLDKNOW v. WAINWRIGHT. sent from the election of J. S., S. C. 2 Burr. 1017. A majority dis- ON a special verdict, the question was, whether Segrave, the town-clerk of Nottingham, was legally elected. There were twenty-one electors present; nine of whom voted for Segrave; eleven protested against him, without voting for any one else, and one other said, that "he suspended doing any thing." but vote for nobody else: the election of J. S. by the minority is good. It was argued by Mr. Caldecot, that this was such a negative upon Segrave, that his election was invalid. Serjeant Hewit, contra, in Easter Term last: and now, per tot. Cur. The election is clearly good. The eleven protestant dissenters, having voted for nobody, could not put a negative upon the only man put in nomination: and Wilmot, J., cited K. and Withers (a), H. 8 Geo. 2; K. and Boscawen (a), P. 13 Anne; and Taylor and the Mayor of Bath (b), temp. Lee, C. J., to shew, that, where a majority do nothing, but merely dissent, they lose their votes (c). (a) Cited also in 2 Cowp. 537, and (b) Ibid. and 14 East, 558, n. (a). Votes given for a candidate after notice of his incapacity, are thrown away; R. v. Hawkins, 10 East, 211; R. v. Bridge, 1 M. & S. 76. CRAWFORD V. POWEL. S. C. 2 Burr. 1013. the onus probandi lies on the person elected? A MANDAMUS had gone to Powel, to deliver over to Craw- Qu. If, on the ford the insignia (d) of the office of steward of Harwich, Corporation Act, Crawford being chosen his successor. Powel returns, that Crawford had not received the sacrament within a year before his election, according to the corporation act of Charles the 2d (e). Crawford brings this action against Powel for a false return. Verdict for the plaintiff, subject to the opinion of the Court. *It appeared, that, by a subsequent statute, 5 Geo. 1 (f), the [230 ] office, in such case, is made only voidable, and not void; and that only by a prosecution commenced within six months after the election; and no such prosecution was had in this case. Therefore the Court held the return to be frivolous and immaterial, and that no action would lie upon such a return; but that a peremptory mandamus should have been moved for. And therefore, the main question, viz. Whether the onus probandi lies upon the person elected, never was argued in this case (g). (d) R. v. Owen, 5 Mod. 314; R. v. Ingram, ante, 50. (e) 13 Car. 2, st. 2, c. 1, s. 12. See R. v. Smith, 3 T. R. 573; R. v. Brown, Ib. n. (b). (ƒ) C. 6, s. 3, and see Marten v. Jenkin, 2 Stra. 1145, and 2 Cowp. 539, per Lord Mansfield. (g) But it appears from the report in 2 Burr. 1013, that judgment was given for the plaintiff, thereby shewing it was not necessary for him to prove that he had taken the sacrament within the time prescribed: and Lord Mansfield said, that since 5 G. 1, the election being not void, THE KING V. PEMBERTON. S. C. 2 Burr. 1035. may be given in MOTION to quash an indictment for exercising the trade of Exemptions a tanner, contrary to the 5th of Elizabeth (h). There is a sta- from a penal law tute, 1 Jac. 1, c. 22, which exempts tanners from this prosecu- evidence on Not tion, in several circumstances; and this motion was grounded Guilty; and the on the omission in the indictment, to set forth the negative of negative need those several circumstances; as in convictions on the game in the indictlaws it is necessary to set forth, that the defendant had not ment. 100l. per annum ;;-was not the eldest son, &c. (i). The Court (h) C. 4, s. 31, which act, Lord Ellenborough said, was to a considerable degree defunct; 3 M. & S. 190: and this section is now expressly repealed by 54 Geo. 3, c. 96, s. 1. (i) Though it is necessary to negative in the conviction the several qualifications, yet it is not necessary to disprove them by evidence; but the onus probandi lies on the defendant, to prove, if he can, that he not be set forth THE KING บ. PEMBERTON. held, that exceptions of this kind are to be taken advantage of in evidence on Not Guilty, and therefore refused to quash the indictment (k). is qualified; R. v. Turner, 5 M. & S. 206. defendant must shew his license, if he has one; R. v. Hanson, 1 Paley on Convictions, by Dowling, 45, from the Editor's MS. note. See also R. v. Marsh, 4 D. & R. 260, 2 B. & C. 717. (k) See 2 Hawk. P. C. c. 25, s. 115; and R. v. St. George's, Hanover Sqaare, 3 Camp. 222; and the preceding case. Defendant removing an in dictment by certiorari without good cause, cannot be admitted in formá pauperis. THE KING V. REYNALDS. DEFENDANT was indicted at Hick's Hall, and removed the indictment, by certiorari, into the King's Bench; and now moved to be admitted to defend in formá pauperis, on the usual affidavit. But the Court held, that this was not within the statute (l), but was merely a case at common law, and therefore discretionary in the Court:-that there might be instances in which a certiorari might be necessary, as for an impartial trial, and then there could be no objections to admitting the defendant in formá pauperis. But where he voluntarily removes it himself, without any cause shewn, he shall not put the prosecutor to an extraordinary expence, and keep himself clear by being admitted a pauper (m). He shall not be vexatious, merely because he is poor. Serjeant Hewit, who made the motion, withdrew it. (2) 11 H. 7, c. 12. (m) But the Court in its discretion will allow a defendant in a misdemeanor to defend in formâ pauperis, where the indictment has not been removed by certiorari: because, if the defendant be convicted, he is not liable to pay costs to the prosecutor; R. v. Wright, Ca. temp. Hardw. 211, 253, 2 Str. 1041. But in civil actions, he is never permitted to defend in forma pauperis, because he is liable to the plaintiff for costs, and the provision of 11 H. 7, c. 12, only extends to plaintiffs; Anon. Barnes, 328 (8vo. ed.); Hull. Costs, 229 (ed. 1810). It may be therefore inferred, that a defendant on an indictment removed by him by certiorari would not be allowed to defend in formá pauperis, inasmuch as he is obliged by 5 W. & M. c. 11, to enter into a recognizance to pay costs to the prosecutor. A defendant may plead a pardon in formá pauperis; R. v. Morgan, 2 Str. 1214; but will not be admitted so to defend on an attachment for contempt; R. v. Pearson, 2 Burr. 1039. [ 231 ] Attorney, sued in a foreign Court, and lying by for a long time, waives his privilege. HERN v. HOWARD. DEFENDANT was an attorney of Common Pleas, and was sued in King's Bench, by bill of privilege, supposing him an attorney of this Court, which his son actually was. The plaintiff, after serving him with notice of a declaration, and signing judgment by default, found out his mistake; but defendant's son, in order to gain time, assured the plaintiff, that his father would take no advantage of it; which induced the plaintiff to stay two Terms, in hopes of receiving his debt. But now, on the plaintiff's giving notice to execute a writ of enquiry, defendant moved to set aside the judgment for irregularity. And upon shewing this whole matter for cause, the Court thought that, by lying by so long, the defendant had waived his privilege (n); and therefore discharged the rule for shewing cause, with costs. S Oliphant's Case, about ten years ago, { was cited for the defendant. (n) For he ought to have taken advantage of that by plea in abatement; the rule at that time being, that where a defendant, attorney of one Court, is sued by process out of another Court, he must plead his privilege in abatement, and if arrested, must put in special bail; Lane v. Saltmarsh, 2 Salk. 544; Mayor of Basingstoke v. Bonner, 2 Stra. 864; Snee v. Humphreys, 1 Wils. 306; Crossley v. Shaw, post, 1085: but if he be arrested by process issuing out of his own Court, then he may be discharged upon motion, and if arrested, upon filing common bail; Redman's Ca., 1 Mod. 10; Wheeler's Ca., 1 Wils. 298. But that distinction does not now exist for if an attorney be sued in a foreign Court, such Court will stay proceedings, or discharge him on entering a common appearance, without putting him to plead his privilege; Tidd's Pr. 219 (ed. 1821). An attorney defendant waives his THE KING V. REEVE, MORRIS, OSBORNE, et al. S. C. 2 Burr. 1040. MOTION for a certiorari to remove convictions before Mr. Moneypenny, a Kentish justice, on the statute 22 Car. 2 (0), against conventicles (the defendants being methodists) and also the proceedings on the appeal to the Quarter-Sessions, pursuant to the directions of the statute, which orders such peal to be final, and that no other Court shall interpose. ap Norton, Stowe, and R. Leigh, argued, that the power of this Court to grant a certiorari was not taken away by these words. That all inferior jurisdictions are under the inspection of this Court, whose power can't be taken away, but by express negative words: Dr. Foster's Case, 11 Rep. (p); Smith's Case, Ĭ Vent. 68 (q).—That, the objects of this act being only persons above sixteen, and natural born subjects of this kingdom, if the defendants should prove not to be such, they are not the (0) C. 1; now repealed by 52 Geo. 3, c. 155, s. 1, which contains the several regulations touching dissenters and conventicles now in force. (p) 64 b. (2) 1 Mod. 44, S. C.; Cates q. t. v. Knight, 3 T. R. 442, S. P. Certiorari cannot be taken away by any general, but only by express, negative words. |