King's Bench, or before a Justice of the Peace of the county or place in which such person shall reside, in the sum of fifty pounds, with condition to prosecute the same at his or their costs and charges with effect, without any wilful or affected delay; and in default thereof, or in the event of such rule, order, or regulation being deemed legal, to pay the said Commissioners their full costs, charges and expenses, to be taxed according to the course of the said Court of King's Bench; and if the said rule, order, or regulation, so removed by the said writ of certiorari into the said Court of King's Bench, shall be declared legal by the said Court, the Commissioners entitled to such costs, within ten days after demand made of the person or persons who ought to pay the said costs, upon oath made of the making such demand and refusal of payment thereof, may recover the same in the same manner as any penalties and forfeitures are recoverable under this Act."

The Statute 7 Will. IV. & 1 Vict. c. 69, enacts (sect. 3), that no certiorari shall be allowed to remove any judgment of Tithe Commissioners respecting the boundaries of any parish or district, "unless the party prosecuting such certiorari shall, before allowance thereof, enter into a recognizance before one of the Justices of the said Court in the sum of 50%., with condition to prosecute the same without wilful delay, and to pay to the said Commissioners their full costs and charges within one calendar month after the judgment shall be confirmed, to be taxed according to the custom of the Court."

With respect to the removal of orders of town councils, for the payment of money out of the borough funds, the Statute 7 Will. IV. & 1 Vict. c. 78, s. 44, enacts, that such order "may be removed into the Court of King's Bench by writ of certiorari, to be moved for according to the usual practice of the said Court with respect to writs of certiorari; and that such order may be disallowed or confirmed upon motion and hearing, with costs, according to the judgment and discretion of the said Court."

Where, under this Statute, an order is brought up by certiorari, and quashed, with costs, the Court should decide who

is to be charged with the costs as prosecutor of the order, and he should be named in the rule; and it is not sufficient that the rule should direct the costs to be paid by the prosecutors (a).

CHAPTER LVI.

COSTS ON CRIMINAL INFORMATIONS.

WITH respect to the costs on Criminal Informations in the Court of Queen's Bench, the Statute 4 & 5 Will. and M. c. 18, after reciting that "divers malicious and contentious persons have more of late than in times past procured to be exhibited and prosecuted informations, in their Majesties' Court of King's Bench at Westminster, against persons in all the counties of England, for trespasses, batteries, and other misdemeanors, and after the parties so informed against have appeared to such informations, and pleaded to issue, the informers do very seldom proceed any further, whereby the persons so informed against are put to great charges in their defence; and although at the trials of such informations verdicts are given for them, or a noli prosequi be entered against them, they have no remedy for obtaining costs against such informers," enacts (sect. 2), that "the Clerk of the Crown in the said Court of King's Bench for the time being shall not, without express order, to be given by the said Court in open Court, exhibit, receive, or file any information for any of the causes aforesaid, or issue out any process thereupon, before he shall have taken or shall have delivered to him a recognizance from the person or persons procuring such information to be exhibited, with the place of his, her, or their abode, title, or profession, to be entered, to the person or persons against whom such information or informations is or are to be exhibited, in the penalty of twenty pounds, that he, she, or they will effectually prosecute such information or informations, and abide by and

(a) Reg. v. Dunn, 5 Q. B. Rep. 959.

observe such orders as the said Court shall direct; which recognizance the said Clerk of the Crown, and also every Justice of the Peace of any county, city, franchise, or town corporate (where the cause of any such information shall arise) are hereby empowered to take; after the taking whereof by the said Clerk of the Crown, or the receipt thereof from any Justice of the Peace, the said Clerk of the Crown shall make an entry thereof upon record, and shall file a memorandum thereof in some public place in his office, that all persons may resort thereunto without fee; and in case any person or persons against whom any information or informations for the causes aforesaid, or any of them, shall be exhibited, shall appear thereunto, and plead to issue, and that the prosecutor or prosecutors of such information or informations shall not, at his or their own proper costs and charges, within one whole year next after issue joined therein, procure the same to be tried; or if, upon such trial, a verdict pass for the defendant or defendants, or in case the said informer or informers procure a noli prosequi to be entered: then, in any of the said cases, the said Court of King's Bench is hereby authorized to award to the said defendant and defendants his, her, or their costs, unless the Judge before whom such information shall be tried shall, at the trial of such information, in open Court, certify upon record that there was a reasonable cause for exhibiting such information; and in case the said informer or informers shall not, within three months next after the said costs taxed, and demand made thereof, pay to the said defendant or defendants the said costs, then the said defendant and defendants shall have the benefit of the said recognizance to compel them thereunto."

The above is the Statute which renders it necessary to move for leave to file a criminal information. Upon such motion being made, and a rule to show cause granted, if on showing cause the Court discharge the rule, they, if they think fit, discharge it with costs, giving the costs by virtue of their general jurisdiction, or they discharge it without costs; or where they think the rule should be made absolute, but that the payment of the applicant's costs of the application will be a sufficient

punishment, they give the party against whom the application is made, the option of the rule being made absolute against him, or of its being discharged on payment by him of the applicant's costs; where this option is given the latter alternative is almost invariably accepted.

Upon a criminal information, the prosecutor is liable, in the usual way, to pay to the defendant costs of the day for not proceeding to trial pursuant to notice (a).

The defendant, on his acquittal, is not entitled under the above Statute to costs beyond the 201., the extent of the recognizance entered into by the prosecutor (b).

In the case of several defendants in an information, if any one be found guilty, those who are acquitted are not entitled to costs, although the Judge may not have certified that there was a reasonable cause for exhibiting the information (c). The ground of this decision was, that until the 8 & 9 Will. III. the plaintiff never paid costs in any action if but one defendant was found guilty, and the Act 4 & 5 Will. and Mary, c. 18, could not be intended to make prosecutors otherwise liable than as plaintiffs were before in other actions; but even supposing that the order of the passing of the two Statutes was reversed, the language of the Statute giving costs to one of several defendants is confined to particular actions and plaints. The more recent Statute 3 & 4 Will. IV. c. 42, is also confined to "personal actions" (d).

The Statute 6 &.7 Vict. c. 96, sect. 8, enacts, "That in the case of any indictment or information by a private prosecutor, for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information; and that upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs, so to be recovered by

(a) The King v. Heydon and others, 1 W. Bl. 356; S. C., 3 Burr. 1304. (b) Rex v. Filewood, 2 T. R. 145.

(c) Reg. v. Danvers, 1 Salk. 194. (d) See ante, p. 94.

the defendant or prosecutor respectively, to be taxed by the proper officer of the Court before which the said indictment or information is tried."

Where a defendant in a criminal information for a libel recovers a verdict and judgment, he is entitled, under this section, to recover his costs from the prosecutor, although the only plea on the record is not guilty, and the Judge at the trial certifies, under the 4 & 5 Will. and Mary, c. 18, s. 2, that there was reasonable cause for exhibiting such information (a).

CHAPTER LVII.

COSTS OF INQUISITIONS UNDER THE TITHE ACT.

THE Statute 6 & 7 Will. IV. c. 71, for the Commutation of Tithes, enacts (s. 82), that in case the rent-charge shall be in arrear and unpaid for the space of forty days next after any half-yearly day of payment, and there shall be no sufficient distress on the premises liable to the payment thereof, it shall be lawful for any Judge of his Majesty's Courts of Record at Westminster, upon affidavit of the facts, to order a writ to be issued, directed to the Sheriff of the county in which the lands chargeable with the rent-charge are situated, requiring the said Sheriff to summon a jury to assess the arrears of rentcharge remaining unpaid, and to return the inquisition thereupon taken to some one of his Majesty's Courts of Law at Westminster, on a day therein to be named, either in term time or vacation; a copy of which writ, and notice of the time and place of executing the same, shall be given to the owner of the land, or left at his last known place of abode, or with his known agent, ten days previous to the execution thereof, and the Sheriff is thereby required to execute such writ according to the exigency thereof, and the costs of such inquisition shall be taxed by the proper officer of the Court; and there

(a) Reg. v. Latimer, 20 L. J. (N. S.), Q. B. 129.