Page images

The Kino therefore entitled to a rule. I question the fact. The Court De Puhnell ^^ require to be well satisfied of that. But, if so, 'tis a strong

■—1-^ >' reason against granting the rule, for then the Crown may enforce its demands in a visitatorial way. Suppose the Crown has a general interest in the books of a corporation; that will not entitle them to an inspection, except the books are the subject of the dispute. Crew qui tarn and Blackburn, H. 8 G. 2 (h), an action for interfering in elections of members of Parliament, being a clerk of the Post-office: The Court would not grant a rule to inspect the Post-office books (though public books), because the cause did not concern them. Benson and Cole, M. 22 G. 2; motion to inspect Custom-house books, to prove the plaintiff in an insurance cause had no interest: urged that they were public books: refused, because they were not the subject of dispute (i). These were civil actions; the present otherwise. The avowed design of this motion being to furnish evidence, some precedent will be necessary; especially as a very bad use may be made of such a rule, when the University is much out of favour with some people.

[ 41 ] * Mr. Ford, on the same side.— The College of Physicians-v. Dr. West(k), H. 2 G. 1; action for practising sans licence; motion to inspect the public books of the college; denied, because the defendant is a stranger to the college. Cox and Copping, 5 Mod. 395(1); dispute about the glebe: Court would not grant rule to inspect the churchwardens' books; because it was a private dispute. There is no reason to grant this inspection, because the Vice-Chancellor is a justice. Is it because he is Vice-Chancellor? Why? Not on account of his supposed visitatorial power; for in Dr. Walker's Case(wi), the Court quashed a rule because they would not take upon themselves to act the part of visitors. The Court will not assist visitors, but only m support of their visitatorial authority. The visitatorial authority is not now in question; the Vice-Chancellor is prosecuted for a supposed offence at common law. If a witness has a question put to him that may affect himself, the Court will not oblige him to answer it (»). Qu. and Mead, 2 Lord Raym. 927; defendant was an attorney, and with others incorporated by act of Parliament as surveyors of highways, &c. Action against him, for not taking the oaths to qualify. Motion

(A) Reported as Crewe qui tarn v. Satm- may shew his own infamy, or tend to deders, 2 Stra. 1005. grade his character; Cooke's Ca. 4 St. Tr. (i) See also Abery v. Dickenson, Say. 748, 1 Salk. 153; R. v. Lewis, 4 Esp.225; R. 250. Macbride v. Macbride, Id. 242; Dodd T. (*) Gilb. Rep. B. R. 134. Norris, 3 Camp. 519; R. v. St. Mary's, (0 1 Ld. Raym. 337. S. C. Nottingham, 13 East, 57, n. (a): but see (»i) Ca. temp. Hard. 212. R. v. Edwards, 4 T. R. 440, and also (n) A witness is not compellable to an- Harris v. Tippet, 2 Camp. 637; R. v. Watswer a question, the answering of which son, 2 Stark. R. 149—or that might submay expose him to penalties, punishment, ject him to a forfeiture of his estate; or a criminal charge; Sir/. Freind's Ca. 1 Phillips' Ev. 278 (ed. 1822). But by 4 Harg. St. Tr. 005-6; Ld. Macclesfield's 46 G. 3, c. 37, he cannot refuse to answer Case, 6 St. Tr. 649; R. v. Ld. G. Gordon, a question, the answering of which may 2 Doug. 593; Pajcton v. Douglas, 16 Ves. tend to establish, that he owes a debt, or Jun. 239; Cotes v. Hardacre, 3 Taunt. 424; is subject to a civil suit. Moloney v. Bartley, 3 Camp. 210; or that

to inspect the corporation books; but denied, because they The Kino would not force a man to produce evidence against himself. "•

K. and Lee, M. 17 G. 2; information against defendant as ?*•PuRNE": overseer, for making rate without churchwardens. Rule obtained by surprise, to inspect papers: not obeyed. Motion against Lee for an attachment. Lee, C. J., cited Bradshaw and Philips; Court refused to grant attachment, enlarged the rule, and it was dropped. The K. and Burkina only shews the tenderness which the Court always shews for persons under prosecution, and was to let him know his accusers. If the present defendant has evidence in his custody, and refuses to obey the rule, an attachment must issue; which would be as strange, as to grant one against a man, for not confessing his crime.

Mr. Evans on the same side.—* Had this been an informa- [ * 42 ] tion for exercising the office of Vice-Chancellor, motion might have been regular. In ecclesiastical jurisdictions, they used to compel a man to furnish evidence against himself: but by stat. Car. 2, oaths ex officio are taken away. On indictment for coining, the Attorney might as well move, to have a prisoner discover all his correspondence. 'Tis true, the crimes are less, and the punishment less; but the barrier of liberty is the same. If this rule be granted, the Court of K. B. would be no longer a court of justice, but an aid to an inquisition of state. This is an information ex officio, and all legal stops should be put to such informations. This Court sits to hear, not to furnish evidence.

Mr. Morton, on the same side would not repeat.

Ryder, Attorney-General, in support of the rule. This prosecution is out of favour to the University; to keep up a spirit of religion and loyalty there. Hard, that the University should interest themselves, to vindicate a member of their body that is under prosecution. If the prosecution be just, or unjust, it cannot hurt the University. Motion relates only to the public records, not to MSS. letters, &c. therefore cannot be so prejudicial as is represented. The intent is to see the statutes of the University, to which the motion shall be confined. The information is for not taking depositions against an enormous crime, as Vice-Chancellor and as justice of the peace: and these statutes direct the conduct of the Vice-Chancellor. The Court grants motions of course to inspect public books. It is as reasonable that public records should be produced for public justice, as private papers for private justice. It is not desired that the Vice-Chancellor but the public officer should produce them: should he prove to be the public officer, that is no reason against the motion; for it does not respect him as * defendant, [ *43 J but as public officer. The public is interested in the University statutes. We do not apply on behalf of the King as visitor, but as guardian of the public peace. In K. and Burkins, there was a rule of this kind made in a penal prosecution; a rule on a public officer, keeping a public record, for an inspection in a criminal prosecution. Informations in nature of quo warranto

The Kino are public and criminal suits (o). There, rules of this sort are *■ frequent. The case of Bradshaw and Philips was not of a

R. Urneh. pUkjjc na|;Ure> K. and Blackburn; post-office books are not public, but the King's private books. Benson and Cole; same answer. As to the case of College of Physicians, that was the case of plaintiffs, and the Court will not compel the plaintiff to produce evidence against himself (p). In the Qu. and Mead, the books were of a private nature, and it appeared that the defendant was the person who kept the books. In the K. and Lee, it was plain, that the defendant was himself the person against whom the motion was made. Not so here; the ViceChancellor is not the person on whom the rule is to be made.

[Hereupon Mr. Henley suggested, that the Vice-Chancellor had the custody of the original statutes.]

Sir John Strange for the Crown.—Affidavits are not usual in such cases. In the case of the Skinners Company, the Clerk refused to grant inspection, and an attachment was granted; but it was argued, whether the papers required were proper to be seen, and the Court held that they were. So here, if any thing improper be demanded, the inspection may be refused. Strange, that the University should conceal their statutes; since they are of so public a nature, that all the youth there entered, take oaths to observe them, and yet they are secreted from them. The Crown is the founder and lawgiver of the University, and as such has a right to inspect those laws.

[lee, C. J.—I apprehend this case is argued to differ from L 44 J all others (as Qui tarn actions, &c.) because in those * the party applying is a stranger; but that in the present case the King is no stranger, because he is the founder. But how does that appear? Another question; Is there any instance of an information against an officer of a corporation for breach of by-laws, and a rule granted to inspect those by-laws ?]

Murray, Solicitor-General for the Crown.—Four necessary requisites for inspections of this kind. First, That they be public books. Second, That the party applying has an interest in them. Third, That they be material in a suit in this Court. Fourth, That the person in possession be forced to discover nothing to charge himself criminally.—First, These are of a public nature, given by the King, and open to all members of the University. The very youngest have a copy given them at their matriculation. Second, The King has an interest; he gave them, and has an interest in seeing them obeyed; and may enforce that obedience two ways; as visitor, and as King, where an offence at common law is mixed with the breach of them. Third, There is a suit in this Court, and the statutes may be material; and, if it is suggested that they will be so, the Court will grant the rule. Fourth, The objection is, that in criminal suits no one is bound to furnish evidence against The Kino himself. Agreed, but a distinction may be made. When a »•

(o) See, ante, p. 34, n. (*). fused a motion for the defendant, tenant

(p) Not even since 46 G. 3, c 37, Mi- of a Dean and Chapter, to inspect their

pra, n. (n). See R. v. Woburn, 10 East, books, because they were of a private

395. See also Ord. dem. Dr. Lynch v. right, and contained the plaintiff's evi

Stubbt, Andr. 247, where the Court re- deuce.

man is a magistrate, and as such has books in his custody; P"' Pu'tNELT-, his having the office shall not secrete those books, which another Vice-Chancellor must have produced. Besides, the statutes are not in the Vice-Chancellor's custody only, but also in the hands of the Custos Archivorum.

Sir R. Lloyd, on the same side.—The University is not accused; the University may therefore very safely produce their books. The King is as much related to the corporation of the University of Oxford, as to that of the city of York, and no more a stranger to one than the other. It is to be hoped, that the King is no stranger to either University. If a man were to be indicted for burning the records of a corporation; no doubt but such a rule would then be granted, *and [ *45 ] , why not now? Per Lee, C. J.—This is quite a new case. There is no precedent to warrant it, I therefore chuse to consider of it.

Afterwards, Lee C. J., delivered the opinion of the Court. This rule has been much narrowed, since it was first moved by Mr. Attorney. But still we are all of opinion, that we cannot, consistently with the rules of this Court, make such a rule. We ground ourselves on what has been done in similar cases, though none so strong as this. No case has been cited to support this application, but the K. and Burfcin, which is not apposite. The clerk of the peace ought ex officio to have given a copy of the indictment, and the Court would have granted a rule on him to do it. The cases which we apprehend to be close to this are, 1st. Qu. and Mead, 2 Ann. Ld. Raym. 927. The reasons for denying the motion were, because, 1. The books were of a private nature. 2. Granting such rule would be to make a man produce evidence against himself, in a criminal prosecution. The second case is the K. and Cornelius and Others, Justices of Ipswich {q), T. 17 & 18 Geo. 2, an information for exacting money from persons for licensing alehouses; A motion to inspect the corporation-books; cause was shewn against it by Sir J. Strange and Sir R. Lloyd. The Court on consideration were of opinion, that the rule could not be granted; as it was in a criminal proceeding, and it tended to make the defendants furnish evidence against themselves. These cases are very similar, only the present is rather stronger; because the information here is for a breach of and crime against the laws of the land, and this is an application to search books, which relate to the defendant's behaviour, as a member of a particular corporation. This case differs much from informations in nature of Quo Warranto; because these concern franchises, whereof the corporation books are the proper and only evidence, and they concern the Crown and the defendants equally. We know no instance, wherein this Court has granted a rule to inspect books in a criminal prosecution nakedly considered.

(7) 2 Stra. 1210. VOL. I. D

The Kino

[ocr errors]

The rule was discharged per totam Curiatn{r).

"N. B. As the University statute book really contains nothing which could affect the merits of this case in any * degree; [ * 46 ] and as (if it had) printed copies of it are very numerous and easy to be met with; and the Custos Archivorum, in whose keeping the original is, might have been compelled to have attended with it at the trial: this extraordinary motion seemed only to have been intended, as an excuse for dropping a prosecution, which could not be maintained: and it was accordingly dropped immediately after, having cost the defendant to the amount of several hundred pounds."

[ocr errors][ocr errors][ocr errors]

Information Quo Warranto, for holding a court leet, after long disuser, withoutshewing a title from the original grant.

[ *47 ]

Darell V. Bridge, or The King V. Bridge.

-MOTION for an information in nature of quo warranto (a) against Bridge, for holding a court leet at Sittercamp in Cambridgeshire. In 14 Jac. 1, the Crown granted to Richard Miller and his heirs and assigns, the privilege of holding courts leet. No mesne conveyances appeared till 1702, when, and in 1708, 1719, and 1721 there were conveyances of the manor with all courts thereunto belonging, to those under whom the defendant claims. In the * deed of conveyance to him A. D. 1739, courts leet are expressly conveyed. In 1740 he held a court leet, the first within the memory of any one living, though courts baron had been frequently held. This was moved by Serjeants Prime and Poole, who argued, that the defendant could not deduce any title under the original grant; or, if he could, yet that non-user was a disclaimer and forfeiture of such a franchise. Sir John Strange and Mr. Ford, on the other side argued, that possession of the grant, together with the land, was an evidence of right, and that it would be of very pernicious consequence, to grant these informations, whenever a lord could not deduce a title by mesne conveyances. But per Cur', As there appears no exercise of this grant till 1740, there is strong suspicion of some defect in title; and therefore it must go to be tried by a jury (6).

Rule for information made absolute.

(a) As to granting Quo Warranto informations, see R. v. Marsden, post, 579; R. v. Dawes, post, 634.

(6) A Quo Warranto lies for holding a court baron i R- v. Stanton, Cro. Jac. 259: So for exercising the office of steward of a court leet, R. v. Uulslon, I Stra. 621; R. v. Bingham, 2 East 30S : but not for holding a court leet in a manor within a hun

dred; inasmuch as there a private right only is in question, and the lord of the hundred might bring an action against any person attending the manor court, for not attending the hundred court; R. v. Cam, Andr. 14, cited 3 Burr. 1822. The franchise of holding a court leet may be forfeited by neglecting to hold a court, when it ought to be holden; at least if such nc

« PreviousContinue »