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The King are public and criminal suits(0). There, rules of this sort are
-.-. frequent. The case of Bradshaw and Philips was not of a DR. PURNELL.
public nature. 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 * 44 ] all others (as Qui tam 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
(0) See, ante, p. 34, n. (k).
(p) Not even since 46 G. 3, c. 37, 8 pra, n. (n). See R. v. Woburn, 10 East, 395. See also Ord. dem. Dr. Lynch v. Stubbs, Andr. 247, where the Court re
fused a motion for the defendant, tenant of a Dean and Chapter, to inspect their books, because they were of a private right, and contained the plaintiff's evi. dence.
in criminal suits no one is bound to furnish evidence against himself. Agreed, but a distinction may be made. When a man is a magistrate, and as such has books in his custody; 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 [ 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 Burkin, 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 (9), 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.
(9) 2 Stra: 1210. VOL. I.
The King The rule was discharged per totam Curiam (r).
... “N. B. As the University statute book really contains noFUNELL thing 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."
Darell v. BRIDGE, or The King v. Bridge. Information MOTION for an information in nature of quo warranto (a) for holding a
against Bridge, for holding a court leet at Sittercamp in Camcourt leet, after bridgeshire. In 14 Jac. 1, the Crown granted to Richard long disuser, Miller and his heirs and assigns, the privilege of holding courts
ing leet. No mesne conveyances appeared till 1702, when, and in a title from the original grant. 1708, 1719, and 1721 there were conveyances of the manor
with all courts thereunto belonging, to those under whom the | *47 defendant claims. In the * deed of conveyance to him A. D.
1739, courts leet are expressly conveyed. In 1740 he held a
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; R. v. Stanton, Cro. Jac. 259: So for exercising the office of steward of a court leet, R. v. Hulston, 1 Stra. 621; R. v. Bingham, 2 East 308 : 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. Cann, Andr. 14, cited 3 Burr. 1822. The franchise of holding a court leet may be fore, feited by neglecting to hold a court, when it ought to be holden; at least if such ne
glects be often repeated and without a reasonable excuse; 2 Hawk. P. C. c. 11, s. 5: see also Tottersall's Ca., W. Jon.
283; R. v. Steward of Havering Atte
ities in so
The King v. The Inhabitants of WiGAN. M OTION for an information against twenty-five persons for A rising to quell a riot. It was sworn, that there was a hunting-match at Newton in
and no informaLancashire, at which many gentlemen were present. On the tion to be grantsecond day, one witness deposed, that some of these gentlemen ed for petty irproclaimed the Pretender and Prince Charles, and invited the
doing. people to list in their service. Of this the men of Wigan being informed, and that some of their friends were in custody, they rose in a body by beat of drum, in order to release their friends, and quelled the disturbances at Newton: That they went thither, and committed several unwarrantable acts upon the road, and broke open and rifled the house where they supposed their friends were confined, though they found none there.
LEE, C. J.-This Court will not grant the information. Here were gross disturbances at Newton: A levying, or a tendency to levy war. It is clear, that in such a case every subject is to be considered as an officer, though a private man. The greater the distance, the greater the merit. People rising in this manner, with a view to support the government, are *nots *48 1 to be blamed. It appears, they rose with this view. If some irregular acts may have been committed in such a case, there is no reason why this Court should interpose. Let them take the common remedy. Wright, J.-Kelynge 76, Poph. 121 (c), it was resolved by all the Judges, 39 Eliz. that any subjects may arm themselves, to quell riots, rebellions, &c.; but the most prudent way is to apply to a magistrate. Every subject is bound by his allegiance, to do as these people have done. Little trifling circumstances are not to be regarded in such cases.
LEE, C. J.-Hale, 2 H. P. C. 62, cites a sentence from Bracton, to confirm the case in Kelynge.
Rule discharged with costs, per tot Cur' (d).
ACTION by the plaintiff, who was a dancer, against the de- No privilege to fendant, who was master of the Opera House, for his salary. servants of amThe defendant was retained by the Sardinian envoy, as his
Sordinion on no hi bassadors unless
his bona fide menial master of the horse. The motion on the part of the defend- and domestic. ant was, to oblige the plaintiff to accept common bail. Sir Richard Lloyd shewed cause, and insisted, that the envoy not having had an audience of the King at the time of suing out
the writ, was not to be considered as one in a public character;
ed the ambassador had no horse, and only part of a kitchen. ]
* WRIGHT, J.-In Britwell and Carolina (6), M. 17 Geo. 2, a person swore himself interpreter to an ambassador, and was not discharged.
FOSTER, J.-I remember a case where a person swore he was gardener to a public minister, who had no garden; and a clergyman who swore he was chaplain to the Morocco ambassador: Neither allowed.
Rule discharged (c). (a) Fitz. 200; Evans v. Hicks, 2 Stra. and to servants lying in the house as out 797, 2 Ld. Raym. 1524.
of the house; but not to screen a person, (6) 1 Wils. 78, reported as Malachi Ca who is not a bond fide servant; Lockwood rolino's Case.
v. Dr. Coysgarne, 3 Burr, 1676; Darling (c) See 7 Ann. c. 12 (post, 471), pass- v. Atkins, 3 Wils. 33. See Com. Dig. ed for the protection of ambassadors, and Ambassador, (B), and the judgment of their domestic servants. The defendant Lord Ellenborough in Viveash v. Becker, must be a bona fide servant at the time; 3 M. & S. 284, in which case it was held, Seacomb v. Bowlney, 1 Wils. 20; Masters that a London merchant, acting as consul v. Manby, 1 Burr. 401; Fontainier v. to a foreign prince is not privileged. So the Heyl, 3 Burr. 1731; Heathfield v. Chil chorister in the chapel of an ambassador, a ton, 4 Burr. 2015; Delvalle v. Plomer, British born subject residing in a house of 3 Camp. 47; a secretary, Triquet v. Bath, his own, part of which he lets in lodgings, post, 471; Hopkins v. De Roebeck, 3 T.R. being also a performer at the Opera, is 79; but not a trader, or one subject to the liable to a distress for poor-rates; Nobankrupt laws, by s. 5 of that statute. It vello v. Toogood, 1 B. & C. 554, 2 Dow. & extends as well to natives as to foreigners, Ry. 833.
MICH. TERM,--23 GEO. II. 1749.-K. B.
KINCHIN v. KNIGHT.
S. C. 1 Wils. 253 (a). One custom may TRESPASS for rooting up his soil by turning hogs upon his be pleaded
her. land. Defendant pleads a right of common for hogs by prewhere both are scription. Plaintiff replies, by allowing the right; but qualiconsistent.
(a) See also a true state of this case in 2 Wils. 101.