IN THE KING'S BENCH. THE KING V. WILLIAMS. Costs not given ERROR (k), from the great session in Wales. on information quo warranto, porations. But Defendant was found guilty, on an information in the nature of quo warranto, for unlawfully holding a court in the corporation of Denbigh; and judgment was entered against him, quod capiatur, and be ousted from holding the same for the future, and that he should pay costs according to the statute: on the latter branch of which judgment, the writ of error was principally brought. Mr. Madocks, for the plaintiff in error, argued, that by stat. (9 Anne, c. 20,) costs are only given upon usurpations of an office in a corporation, or the franchise of being a freeman; that here is no usurpation, unless by implication and inference, viz. that holding this court was an usurpation of the office of bailiff, before whom the court ought to be held; but that informations must not rest upon implications; Hawk. P. C. 2. 261; Salk. 375, Ld. Raym. 527, Doing one act is no usurpation of the office, except it had been stated to be done by way of claiming the right of that office. By the charter, an alderman may hold the court, as well as the bailiff; therefore this information cannot try the right to either of those offices, exclusive of the other; neither is there any direct charge of usurpation, but only of what is evidence of an usurpation. Neither ought there to be any judgment of ouster. There is no charge of usurpa[94 *94] tion at the time of the information, but only of a fact that is past, a mere misdemesnor, for which the defendant is fineable. Quo warranto's were formerly returnable only in the King's Bench; but an ill use was made of the writ, by extorting money from the defendants, who prevailed on the trial, for a writ de libertatibus allocandis. K. Edw. 1, anno regni 18, ordained, that quo warranto's should be returnable before justices in eyre, and took away the writ de libertatibus allocandis. These writs of quo warranto were of an inquisitorial nature, and therefore Non usurpavit was no plea to them: Godb. 91; 3 Leon. 184; Lucas, 211, 212, 299; for the demand of the writ was to shew, why he did usurp, or else that he should disclaim any warrant at all. On the discontinuance of justices itinerant, temp. E. 3, the Court of King's Bench revived its jurisdiction in the present shape. For being Custos Morum of the nation, and the usurpation being a crime, the Court grafted the inquiry of quo warranto upon this its criminal jurisdiction. Hence it should seem, that for a crime or fact of usurpation past, there (k) The information was, for claiming to hold a court; the writ of error set forth the information to be for claiming to be a bailiff of a borough; the Court gave leave to amend the writ agreeable to the record, upon stat. 5 G. 1, c. 13, s. 1; S. C. 1 Ld. Ken. 470. can be no judgment of ouster, but only for a present usurpation. The inquiry of quo warranto is only to hear what defence can be made for the preceding crime. Mr. Hall, for defendant in error, argued, that informations, in nature of quo warranto, relate chiefly to civil rights (7), and are so considered by stat. 9 Anne. Facts of usurpation amount to the same, as if the word usurped had been used; for there are no technical words necessary in informations, as upon some indictments. If this be not an usurpation of an office, it is at least an intrusion into a borough franchise, and that is sufficient. For the title of stat. 9 Anne extends to offices and franchises generally. This statute is a remedial law, and therefore to be construed favourably, Cro. El. 257. The Court has often put a liberal construction on costs. Stat. 7 Jac. 1, extends to under-sheriffs and deputy-constables, though not mentioned in the statute. Courts have extended indictments by intendment: so Sid. 91; Cro. Jac. 473; Sir T. Raym. 34, 35. With respect to the judgment of ouster, we can only say, that the rule of the Court is to enter up judgment of ouster, whether the usurpation be continued till the trial or no. THE KING v. WILLIAMS. * Per MANSFIELD, C. J., et tot' Cur. All corporations consist [ *95 ] of officers and freemen. This stat. 9 Ann. was meant to extend to both; and to give a remedy which could not be had at common law in these disputes, which are really between party and party, and which frequently settle the rights of voting for members of Parliament. The body of the statute is very clear, and only extends to offices and franchises of being burgesses or freemen. The conciseness of the title shall not control the body of the act. The title is no part of the law; it does not Title of a statute pass with the same solemnity as the law itself. One reading no part of the is often sufficient for it (x). As for construing the statute by equity; equity is synonymous to the meaning of the legislator, and it does not appear, that the Parliament meant to give costs in the present case. There is no charge of usurpation, even by implication or inference. Holding a court is no necessary argument, that he intended to usurp the right. He might hold it by deputation, or by mistake. Costs are only given, where two persons are trying a civil right; this is a mere misdemesnor. The statute judgment of costs is therefore wrong (m). As to (1) And therefore a new trial may be granted; R. v. Francis, 2 T. R. 484. (x) See A. G. v. Ld. Weymouth, Ambl. 22, per Ld. Hardwicke, C. (m) This case governed a similar decision of the Court in R. v. Wallis, 5 T. R. 375; S. P. R. v. Richardson, 9 East, 469; R. v. Hall, 1 B. & C. 237, 2 D. & R. 341. The prosecutor of an information in the nature of a quo warranto shall pay costs, generally, for not proceeding to trial pursuant to notice, being within the equity of 9 An.; R. v. Powell, 1 Stra. 33; Anon. Say. R. 130. If any one of several issues on a quo warranto information be found for the prosecutor, upon which judgment of ouster is given, he is entitled to costs on all the issues; R. v. law. THE KING บ. WILLIAMS. Creditors, where debts are char ged by will on the real estate, the personal being sufficient to pay them, and [ being actually witnesses to that the common law judgment of ouster; it is nothing to the pur- N. B. Per FOSTER, J.; the stat. 9 Ann. c. 20, was drawn by Justice Powell. (n) See R. v. Mayor of Penryn, 1 Stra. 582, 8 Mod. 234, S. C., there called R. v. Pindar; R. v. Hearle, 1 Stra. 627, 3 Bro. P. C. 505, (2d ed.); R. v. Clarke, 2 East, 75. See also R. v. Amery, 2 T. R. 515, where the subject of quo warranto's is fully discussed; Com. Dig. quo warranto (C. 5). See also 32 G. 3, c. 58; and as to its construction, R. v. Richardson, 9 East, 469; R. v. Stokes, 2 M. & S.71; post, 470, n.; and further as to quo warranto's, R. v. Bridge, ante, 46; R. v. Carmarthen, post, 187; R. v. Marsden, post, 579. WYNDHAM V. CHETWYND. S. C. 1 Burr. 414; 2 Ld. Ken. 121. * ISSUE out of Chancery, "devisavit vel non," to try the validity of a will of one Mr. Chetwynd deceased. The jury found a special verdict, with regard to the attestation of this will, stating, "That the testator died 17th May, 1750 (o), leaving "the will in question behind him, which was regularly attested "by Higden, Squire and Baxter: that testator was indebted "about 18,000l. upon mortgage of his real estate, and left bepaid, were good "hind him a personal estate of 13,9721. which was vastly superior to all his specialty and simple contract debts: That "he charged his real estate with the payment of his debts and legacies: That at the time of attesting this will, he was in"debted to Higden the witness, who was an apothecary, about "117. and at the time of his death, about 187. 10s. which was paid off by the executor, before the trial of this issue; and "that he was indebted to Squire and Baxter the other witnesses, who were two attornies in partnership, about 280l. at "the time of attestation; which also (except a small mistake will even before the stat. 25 G. 2. cap. 6. 66 66 by miscasting) was out-set or discharged, before the day of "trial. And if these were credible witnesses within the statute "of frauds, they found for the plaintiff, which established the "will; otherwise, for the defendant." Serjeant Prime for the plaintiff argued, First, That the facts, as stated, did not make these witnesses, interested witnesses. They are no legatees, and derive nothing from the gift or bounty of the testator. They were justly entitled to payment of their debts, though no will had ever been made. The per (0) The testator, it appears, died May 17th, 1750, 23 G. 2; and therefore before the stat. 25 G. 2, c. 6, by s. 2, of which it is enacted, "That in case, by any will or codicil already made, or hereafter to be made, any lands, &c. be charged with any debts, any creditor, whose debt is so charged, attesting the execution, shall be admitted as a witness to the execution." S. 8 provides, "that the act shall not ex tend to any heir or devisee, who has been in quiet possession two years previous to May 6th, 1751, nor to any will or codicil, the validity of which has been contested in any suit commenced on or before May 6th, 1751, whether the same be determined or be still depending." This case having probably been commenced in Chancery before that period, comes within that proviso. sonal assets were the proper fund for them to resort to, and that is sufficient to pay their demands; so that they are not interested in the charge on the real estate. Secondly, That supposing them to have been interested witnesses; yet that interest was removed, before the time of trial, their debts being then discharged. The word, "credible," is an ambiguous expression, and capable of many senses. But there seems to be a parliamentary exposition of it in statute 4 & 5 Ann. c. 15. § 14, whereby, three witnesses are required to authenticate a nuncupative will, and it is declared, that such as are good witnesses at common law in trials, shall be deemed good witnesses, to establish a nuncupative will. Now, allowing the same exposition to take place on the statute of frauds; then, as these witnesses would be unexceptionable on a trial at law, in respect of interest, so they are competent, and therefore credible witnesses, to the present devise. WYNDHAM v. CHETWYND. *There were also cited in this and the former argument, [ *97 ] Plowd. 541; 1 Inst. 212b; Hardr. 331; 1 Mod. 107; 1 Sid. 315; 2 Keb. 128; Ld. Raym. 730; Viner, Evid. 14, No. 53. Mr. Norton for the defendant argued, that at the time of attestation, the witnesses were interested, and therefore incompetent; and that this, not the time of examination, is the proper season of inspecting their credibility; else it would open greater opportunities of perjury and fraud, than before the act. It would be setting up witnesses to hire, and would put the validity of the will in the power of the witness, by releasing or not releasing their interest. If a witness is unexceptionable at the time of attestation, and afterwards becomes infamous or insane, the will is nevertheless a good one; which proves that his condition, at the time of attestation, is alone to be regarded. To this purpose were cited 2 Ld. Raym. 1008; Hob. 92; Salk. 283; 1 Mod. 21; Skinn. 144; 1 Inst. 6b; and it was observed that the Serjeant's cases were most of them prior to the statute of frauds. He insisted also that credible means something more than competent; the law required competency before; and it is not to be imagined, that the learned compiler of this statute, Lord Hale, would put in a word, which at best was superfluous. In stat. 13 Car. 2(p), against deer-stealing, and in all the game laws, the expression of "credible witness" is used, which has always been understood, to mean competent and somewhat more, and to give the justices a discretion, whether they will convict upon such testimony or no, though the witness was in law strictly admissible. There are two cases directly in point for the defendant, on which we must strongly rely, Hilliard and Jenyns, 1 Ld. Raym. 505, and Ansty and Dowsen, 19 Geo. 2. (see page 8.) On the argument, Lord MANSFIELD, C. J., expressed his Ld. Hale did not doubts of that generally received opinion, that Lord Hale drew draw the statute the statute of frauds, 29 Car. 2: he having died in 1676, 28 (p) C. 10. WYNDHAM v. CHETWYND. * [ *98 Car. 2; and he observed also, that the statute 4 & 5 Ann. * was enacted, to check the extravagant notion of some civilians, by which they excluded from being witnesses, the children and ] family of the testator, as well as of the legatee; arising from a strange fiction in the Roman law, in which testaments were transacted in the form of a sale, between the devisor and destat. 4 & 5 Ann. visee, to which none of either's family were allowed to be wit Reason of the definition of good witness in nesses. Afterwards in the same Term, Lord MANSFIELD, C. J., delivered the opinion of the Court. In this case, the real estate is only charged with the payment of debts, as an auxiliary fund to the personalty, which stands in need of no assistance, being itself much greater than the debts: And at the time of trial, the three witnesses were not creditors to either the real or personal estate, but were so, at the time of attestation. And hereon, the question is, whether this be a valid attestation, within the statute of frauds. This is a doubt which sprung out of a general question, in Ansty and Dowsen, whether a benefit to a witness, arising from a will, shall annul his testimony; though after, or at the testator's death, he becomes totally disinterested. The solution of this question depends upon general principles, and not upon the words of the statute. The statute declares no incapacity, lays down no legal conditions for admitting witnesses. The word credible is no term of art; it has only one signification, and that universally received; it is never used as synonymous to legal competency. It presupposes evidence to have been already given, whereas competency is a consideration previous to the admission of evidence; and in the statutes mentioned at the bar, the expression so frequently used, of credible witnesses, is never construed to mean competent. To make the validity of a will depend upon the credibility of the witnesses, would be absurd; since the testator can never foresee, what credit may hereafter be given them.-It is true, that in Butler.and Baker's Case, 3 Co. Rep. 25, the third caution there given is, “call credible witnesses," but that is only a loose and casual expression, though perhaps the penner of this statute might take his hint from thence. I can never conceive, for the reasons I formerly *mentioned, that this statute was drawn by Lord Hale; any farther than by perhaps leaving some loose notes behind him, which were afterwards unskilfully digested (g). I therefore think the epithet credible, in this statute, is used as a word of course, but is unfortunately misapplied.—If it signifies competent, that is implied in the word witness alone; if it means any thing more than competent, it is (as before observed) absurd. There have perpetual doubts arisen upon every clause of this statute, not only among the unlearned, for whom it ought to have been calculated, but even among the learned also. In so inaccurate a statute, I therefore think the word credible might (q) Lord Ellenborough, however, favours the opinion, that it was drawn by Lord Hale; 5 East, 17. |