on the other hand, from the wording of the Statute, that the defendant is only to have costs under it where the crown fails to obtain judgment of ouster; and therefore, in cases where the crown obtains judgment of ouster, notwithstanding issues found for the defendant, there is nothing to give the defendant the costs of those issues. The same reasoning on these Statutes will apply to costs of demurrers; if the judgment on the demurrer be given for the party who succeeds on the general result, he is entitled to the costs of the demurrer, otherwise he is not, for the Statute 3 & 4 Will. IV. c. 42, s. 34, being confined to cases in which there is a plaintiff and a defendant, or a defendant and a tenant, does not apply to quo warranto (a).

So also, for similar reasons, where the judgment of the Court below on a quo warranto information is affirmed upon error, the successful party is not entitled to costs, none of the Statutes giving costs on writs of error applying to a quo warranto information (6).

It must be observed, that before exhibiting an information in the nature of a quo warranto, the relator should enter into a recognizance in 207. to prosecute it with effect, as such an information is within the Statute 4 & 5 Will. & M. c. 18, s. 2 (c).

If the prosecutor does not proceed to trial pursuant to notice, he must pay costs of the day; for although in the case of the king there can be no laches, yet a subject in these prosecutions shall pay costs as in common actions (d).

Where it appears that the person against whom the information is sought to be obtained disclaims the office he has been filling, the Courts frequently impose such equitable conditions in granting the rule as to prevent his being subjected to unnecessary costs. Thus, where the defendant,

(a) See The King v. Inhabitants of Glastonbury, Rep. temp. Hardwicke, 355; 2 Str. 1069.

(b) Rowley v. The Queen, 6 Q. B. Rep. 668.

(c) Rex v. Howell, cited in Hullock on Costs, 2nd edit. p. 595; Rex v.

Morgan 2 Str. 1042. See the Statute 4 & 5 Will. & M. c. 18, s. 2, post, Chapter LVI.

(d) Hullock, 2nd edit. p. 596, citing Rex v. Powell, 1 Str. 33; Anon., 2 Sayer, 130.

having been declared to be elected a town councillor of a borough, accepted the office, believing he was duly elected, but after having been served with the rule nisi, resigned, and gave notice of that fact to the relator, the Court made the rule absolute, the defendant paying the costs of the application, but directed the information not to be filed unless legally necessary for the purpose of effecting the removal from office, and if filed the costs to be paid by the relator ; the defendant also undertaking to disclaim at the relator's expense if required, the costs to be taxed by the officer of the Court (a). In a subsequent similar case, the Court acting in the same spirit made the rule absolute without costs, but decided that the information should not be filed if the defendant made a valid resignation as soon as practicable; or, if it became legally necessary to file the information, it should be done at the relator's expense, and the defendant to disclaim at his own expense, otherwise the rule for the information to be absolute unconditionally (6). But in such a case, if the defendant solicited the office in the first instance, the Court will not relieve him from the costs (c).

On the other hand, the Court exercises a control over the parties at whose instance the motion is made, in order to secure the payment of costs by them. With this view a general rule of Michaelmas Term, 1839, orders "that no rule be hereafter granted for filing any information in the nature of a quo warranto, unless at the time of moving, an affidavit be produced by which some person or persons shall depose upon oath that such motion is made at his or their instance as relator or relators; and that such person or persons shall be deemed to be the relator or relators in case such rule shall be made absolute, and shall be named as such relator or relators in such information in case the same shall be filed, unless this Court shall otherwise order" (d).

Although such an affidavit be made in due form, the Courts

(a) Reg. v. Morton, 4 Q. B. Rep. 146; 12 L. J. (N. S.), Q. B. 123.

(b) Reg. v. May, 20 L. J. (N. S.), Q. B. 268; 2 L. M. & P. 144.

(c) Reg. v. Sidney, 20 L. J. (N. S.),

269; 2 L. M. & P. 149.

(d) See the rule, 11 A. & E. 2; see also Reg. v. Hedges, Id. 163; Reg. v. Anderson, 2 Q. B. Rep. 740.

will sometimes on discharging a rule order a third person to pay the costs, if it clearly appears that the party put forward as the relator is indigent and unable to pay, and was procured to make the application by such third person; but he must be called upon by a distinct motion to pay such costs, even although he be the attorney employed in support of the rule for the information, unless the facts appear from the affidavits used in support of such rule (a); and in a similar case, occurring before the above rule, the Court required the relator to give security for costs (b).

CHAPTER LIV.

COSTS ON INDICTMENTS REMOVED BY CERTIORARI.

Ir is an established principle, that the king himself neither pays nor receives costs in any case (c), and as an indictment is an accusation of one or more persons of an offence which the public good requires should be punished, it is deemed the king's suit merely, and carried on in his name, though at the instance of any private individual. No costs, therefore, are payable after trial to or by either the prosecutor or defendant, unless by virtue of some Act of Parliament (d). There are statuteable enactments, however, providing for the payment of costs of prosecutions, in felonies and certain cases of misdemeanor, out of the county rates; but as the practice of preferring indictments in the Queen's Bench in the first instance has become obsolete, and this work does not profess to treat of costs in the ordinary criminal Courts, we shall proceed to consider the law of costs in indictments originally preferred

(a) Reg. v. Greene, 4 Q. B. Rep. 646.

(b) The King v. Wakelin, 1 B. &

Adol. 50.

(c) By an Act of the last session, 16 & 17 Vict. c. 107, s. 263, the defendant in suits and proceedings by the Crown for duties, penalties, or forfeitures under

the Customs Acts is entitled to costs if he succeeds, and pays them if he fails. This is believed to be the first Act which imposes payment of costs on the Crown in case of failure, and is therefore remarkable. Former Acts gave costs in particular cases to the Crown. (d) Hullock, 2nd edit. p. 557.

in inferior Courts, and removed by writ of certiorari into the Court of Queen's Bench.

As the Statute of Gloucester does not extend to criminal proceedings, and there is no general Statute giving costs in cases where an indictment has been removed into the Court of Queen's Bench, it follows that neither the prosecutor nor defendant are, as a matter of course, entitled to costs the one from the other, and the prosecutor in such cases must bear his own costs; for it has been decided that the Statute 7 Geo. IV. c. 69, ss. 22 and 23, empowering Courts to order the costs of prosecutions to be paid out of the county rate, in felonies and certain cases of misdemeanor, does not apply to cases where the indictment has been removed by certiorari into the Queen's Bench (a).

The Statute 16 Vict. c. 30, s. 5, enacts, "That whenever any writ of certiorari to remove an indictment into the said Court (the Queen's Bench) shall be awarded at the instance of a defendant or defendants, the recognizance now by law required to be entered into before the allowance of such writ shall contain the further provision following; that is to say, that the defendant or defendants, in case he or they shall be convicted, shall pay to the prosecutor his costs incurred subsequent to the removal of such indictment; and whenever any such writ of certiorari shall be awarded at the instance of the prosecutor, the said prosecutor shall enter into a recognizance (to be acknowledged in like manner as is now required in cases of writs of certiorari awarded at the instance of a defendant) with the condition following; that is to say, that the said prosecutor shall pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs incurred subsequent to such removal."

Section 6 enacts, that "The costs herein before respectively mentioned shall be taxed according to the course of the Court of Queen's Bench; and for the recovery thereof the persons entitled thereto shall, at the expiration of ten days after demand made of the person or persons at whose instance the writ of certiorari was awarded, and on oath made of such

(a) Rex v. Richards, 8 B. & C. 420; Rex v. Kelsey, 1 Dowl. 481.

demand and refusal of payment, have a writ of attachment granted against him or them by the Court of Queen's Bench for such contempt; and the said Court shall and may also order the said recognizance to be estreated into the Exchequer:" and (by sect. 7), "If the person or persons at whose instance any writ of certiorari shall be awarded shall not, before the allowance thereof, enter into such recognizance as is herein before provided, the Court to which such writ may be directed shall and may proceed to the trial of the indictment, as if such writ of certiorari had not been awarded."

The Statute does not extend to any writ of certiorari awarded at the instance of the Attorney-General (a).

This Statute supersedes the provision of the 5 & 6 Will. and Mary c. 11, giving costs to the prosecutor in certain cases where the indictment was removed by the defendant (b); and a number of cases decided with reference to that Statute are no longer material. We shall proceed to notice those cases which appear to apply to the recent Statute.

The costs mentioned by the Statute are expressly confined to the costs incurred subsequently to the removal of the indictment; and although the former Statute did not contain the same limitation, it was held that the costs which the (a) See sect. 8.

(6) That Statute (made perpetual by 8 & 9 Will. III. c. 33, which also provides for and restrains the granting of writs of certiorari to remove indictments into the Court of King's Bench) requires (sect. 2) defendants obtaining the certiorari to "enter into recognizance, with sureties, for due trial of the indictment at their costs;" and sect. 3 enacts, "that if the defendant prosecuting such writs of certiorari be convicted of the offence for which he was indicted, that then the said Court of King's Bench shall give reasonable costs to the prosecutor, if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, headborough, tythingman, churchwarden, or overseer of the poor,

or any other civil officer, who shall prosecute upon the account of any fact committed or done that concerned him or them as officer or officers to prosecute or present, which costs shall be taxed according to the course of the said Court; and that the prosecutor for the recovery of such costs shall, within ten days after demand made of the defendant and refusal of payment, on oath, have an attachment granted against the defendant by the said Court for such his contempt; and that the said recognizance shall not be discharged till the costs so taxed shall be paid."

The cases deciding whether the prosecutor was a party grieved or injured, or a civil officer, &c. are, it is evident, inapplicable to the 16 Vict. c. 30.