where the party was not affected by the act of the sessions which was quashed, though it might eventually make him liable to costs (p).

Again, if an order is sent back to sessions to be re-stated, and is returned amended, the party removing it originally is not liable to pay costs (q), unless he disputes the amended order, instructing counsel, and taking the chance of a judgment of the court in his favour on it (r).

The expense of maintaining a pauper between the times of giving judgment at sessions on appeal against his removal, and in the queen's bench, cannot be allowed in the latter court, nor will they send back the original order of removal to the sessions, in order that they, by quashing it, may give the appellant those costs under 9 G. I. c. 7, s. 9(s); but if the case is not decided in the term in which it comes on to be argued, it has been made a term of the adjournment that these costs from the last day of that term should abide the event (t).

By 5 G. II. c. 19, s. 5, "the recognizance (ante, p. 964,) shall be certified to the king's bench, and there filed with the certiorari, and order or judgment removed thereby(u); and if the said order or judgment shall be confirmed by the court, the persons entitled to such costs, for the recovery thereof, within ten days after demand made of the person who ought to pay the said costs, upon oath made of such demand and refusal, shall have an attachment for such contempt, and the recognizance so given upon the allowance of such certiorari shall not be discharged until the costs shall be paid, and the order so confirmed complied with and obeyed."

2ndly. Of Costs on Criminal Prosecutions.]-In former times, it was a subject of frequent complaint by judges that they had no power to order a remuneration to the prosecutor and witnesses in cases of serious crime (x).

Costs in Cases of Felony, whether Bill preferred or not-and Certificate of Magistrate.]-By 7 G. IV. c. 64, s. 22, "the court before which any person shall be prosecuted or tried for any felony, is hereby authorized and empowered, at the request of the prosecutor, or of any

(p) S. C. Sessions had made an order reserving a question of costs in case of a new removal. The court affirmed their order on the point of appeal, but quashed the reservation.

(g) R. v. Hitcham, Burr. S. C. 504; R. v. Bray, Burr. S. C. 687.

(r) R. v. Edgeworth, 4 T. R. 218.

(8) R. v. Moor Critchell, 2 East, 222; and R. v. West Cranmore, 2 Nol. 623, n. See ante.

(t) See Overnorton v. Salford, 1 Bla. Rep. 436.

(u) See also a rule of Q. B. ante, p. 959. (x) 2 Hale, 282; Hawk. B. 2, c. 46,

s. 173.

other person who shall appear on recognizance or subpœna to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor (u) shall incur in preferring the indictment, and also payment to the prosecutor and witnesses for the prosecution, of such sums of money as to the court shall seem reasonable and sufficient to reimburse such prosecutor and witnesses for the expenses they shall severally have incurred in attending before the examining magistrate or magistrates (x), and the grand jury, and in otherwise carrying on such prosecution; and also to compensate them for their trouble and loss of time therein (y). And although no bill of indictment shall be preferred, it shall still be lawful for the court, where any person shall, in the opinion of the court, hond fide have attended the court in obedience to any recognizance or subpœna, to order payment unto such person of such sum of money as to the court shall seem reasonable and sufficient to reimburse such person for the expenses which he or she shall have bond fide incurred, by reason of attending before the examining magistrate or magistrates, and by reason of such recognizance (z) or subpoena, and also to compensate such person for trouble and loss of time; and the amount of the expenses of attending before the examining magistrate or magistrates (i. e. before the committal of the prisoner), and the compensation for trouble and loss of time therein shall be ascertained by the certificate of such magistrate or magistrates, granted before the trial or attendance in court, if such magistrate or magistrates shall think fit to grant the same; and the amount of all the other expenses and compensations shall be ascertained by the proper officer of the court, subject nevertheless to the regulations to be established in the manner thereinafter mentioned."

If an indictment for felony is removed by certiorari into the queen's bench, and is tried at nisi prius on a record issuing out of that court,

(u) Thus not including an attorney's bill of costs for subpoenaing a witness, or for his own (the attorney's) travelling to get information in support of the charge, Reg. v. Savage and Penn, Oxford Spr. Ass. 1842, Patteson, J. (Bill was not found), MSS. Tyr.

(a) A party who is bound over at quarter sessions to prosecute in a superior court, is entitled to his expenses under the statute, R. v. Paine, 7 C. & P. 135. Central Criminal Court.

(y) Semble, that the statute meant to give costs to those parties only who had previously gone before a magistrate. It does not apply to cases where an indict

ment is preferred after a magistrate has dismissed the complaint, per Littledale, J. in R. v. Jeyes, 3 Ad. & E. 416; 5 N. & M. 101.

(z) A prisoner had been apprehended by a bench warrant, and prosecutor was under no recognizance to prosecute; none of the witnesses were under recognizance, but one had been subpoenaed. Parke, B., compared sections 22 and 23, and held, that in felony the court was entitled to award prosecutor his costs, though not under recognizance. He allowed his costs accordingly, as well as of the witnesses, Reg. v. Butterwick, 2 M. & Rob. 196.

the expenses of the prosecution cannot be allowed under this enactment (a). The same rule was previously laid down in misdemeanours (b).

Expenses and Rewards for Apprehending Offenders.]-Since the repeal of 58 G. III. c. 70, s. 4, by 7 & 8 G. IV. c. 27, the court of quarter sessions cannot grant to parties active in the apprehension of offenders, "such sum or sums as shall appear to the court sufficient to compensate them for their expenses, exertions, and loss of time in or towards such apprehension," except in the offence of receiving stolen property, knowing it to have been stolen (c).

Costs of Persons bound over to Prosecute, or give Evidence in Prosecutions of certain Misdemeanours, allowed, though no Bill preferred.] -The 23rd section of 7 G. IV. c. 64, empowering the court to grant the costs of the prosecutor and witnesses in certain cases of misdemeanour, is wholly new. It enacts, That where any prosecutor or other person shall appear before any court on recognizance or subpoena, to prosecute or give evidence against any person indicted of any— assault with intent to commit felony ;

attempt to commit felony;

riot;

66

misdemeanour for receiving any stolen property, knowing the same to have been stolen ;

assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer;

neglect or breach of duty as a peace officer;

assault committed in pursuance of any conspiracy to raise the rate of wages;

knowingly and designedly obtaining any property by false pre

tences;

wilful and indecent exposure of the person (d);

wilful and corrupt perjury, or of subornation of perjury ;

every such court is hereby authorized and empowered to order payment of the costs and expenses of the prosecutor and witnesses for the

(a) R. v. Richards and others, 8 B. & C. 420; R. v. Kelsey, 1 D. P. C. 481. See 3 Ad. & E. 416; 5 M. & Ryl. 167; 3 C. & P. 391.

(b) See p. 976.

(c) 7 & 8 G. IV. c. 27, s. 28.

(d) But this is otherwise, if the ex

posure is charged as done wilfully, &c., (without adding publicly) with a view to incite another man to commit with the defendant an unnatural crime, Reg. v.

8 Ad. & E. 589; 3 N. & P. 637. N. B. There was a count for a common assault.

prosecution, together with a compensation for their trouble and loss of time, in the same manner as courts are herein before authorized and empowered to order the same in cases of felony ;

and although no bill of indictment be preferred, it shall still be lawful for the court, where any person shall have bona fide attended the court in obedience to any recognizance, to order payment of the expenses of such person, together with a compensation for his or her trouble and loss of time, in the same manner as in cases of felony, provided that, in cases of misdemeanour, the power of ordering the payment of expenses and compensation shall not extend to the attendance before the examining magistrate."

Where an indictment for a misdemeanour is removed by certiorari, and tried at nisi prius, the prosecutor and witnesses are not entitled to costs under this statute (e).

Mode of procuring Order for Payment of Costs of Prosecutors and Witnesses.]-The manner in which orders granted by the court under these provisions are to be made out, is regulated by 7 G. IV. c. 64, which enacts by sect. 24, "That every order for payment to any prosecutor, or other person as aforesaid, shall be forthwith made out and delivered by the proper officer of the court unto such prosecutor or other person, upon being paid for the same the sum of 1s. for the prosecutor, and 6d. for each other person, and no more; and, except in the cases hereinafter provided for, shall be made upon the treasurer of the county, riding, or division in which the offence shall have been committed, or shall be supposed to have been committed, who is hereby authorized and required, upon sight of every such order, forthwith to pay to the person named therein, or to any one duly authorised to receive the same on his or her behalf, the money in such order mentioned, and shall be allowed the same in his accounts."

The entire order of a court for

(e) R. v. Johnson, 1 Mood. C. C. 713. See R. v. Richards, 8 B. & C. 420; 2 Man. & Ry. 405; R. v. Jeyes, 3 Ad. & E. 416; 5 Nev. & Man. 101. See, however, as to road prosecutions on 5 & 6 W. IV. c. 56, s. 98, R. v. Papworth (Inh.), and R. v. Preston (Inh.), ante, p. 407.

In R. v. Warwick, K. B., May 5, 1837, a defendant had been found guilty of keeping a disorderly house, and was brought up for judgment. After hearing counsel in arrest of judgment and for a new trial, on the ground of misdirec

paying the costs of a prosecution

tion, the court admonished the defendant, and were about to dismiss him, but it being stated for the prosecution, that he had removed the indictment by certiorari from the quarter sessions, the court said that, on that account, he must pay the costs; and that though there was a difficulty how that could be done without awarding final judgment, (see 1 Chit. Cr. Law, 1st ed. 721,) that might be avoided by consent. The counsel for the defendant, rather than have final judgment against him, consented to pay the costs.-MSS. Tyr.

(7 G. IV. c. 64, s. 24) must be served on the county treasurer. Thus, where the attorney had torn off that part of the order which contained the detail, the treasurer was justified in refusing to pay, though that part of the same sheet of paper which ordered the payment of an aggregate sum was shown him (ƒ).

Where a treasurer on whom an order had been made to pay the expenses of a prosecution for a riot (being a misdemeanour within 7 G. IV. c. 64, s. 23), refused to do so on the ground that the party, though bound over to prosecute at the sessions, yet obtained circuit subpoenas for the witnesses, and preferred his bill at the assizes; it was held that a mandamus would not lie to compel him, and that the remedy was by indictment for disobeying the order (g). In the same case, it was doubted whether the expenses of a prosecutor can be awarded under that section, unless he has been bound over to prosecute; but it was held, that witnesses attending at assizes on subpoena were clearly entitled to theirs.

Costs where the Offence was committed in a Borough or other limited Jurisdiction.]—Where offences are committed in jurisdictions which do not contribute to the county rate, they are, by 7 G. IV. c. 64, s. 25, made payable either out of the local fund applicable to the purposes of the county rate; or, if there be no such fund, out of the poorrates. In the former case, the order is to be directed to the treasurer of the fund; in the latter, to the parish officers.

Sums ordered to be paid under the above enactment in respect of offences committed in a borough in which a court of separate quarter sessions is holden, are paid out of the borough funds (h).

Settling Rates of Allowance of Prosecutor's costs.]-For the regulation of the rate of allowance, it is enacted by 7 G. IV. c. 64, s. 26, "That it shall be lawful for the justices of the peace of any county, riding, or division, or of any liberty, franchise, city, town, or place, chargeable with costs and expenses under the provisions aforesaid, in quarter sessions assembled, to establish and, from time to time, to alter such regulations, as to the rate of any costs and expenses thereafter to be allowed by virtue of this act, as to them shall seem just and reasonable; which regulations, having received the approbation and signature of one justice of gaol delivery, or of great sessions for the

(f) Reg. v. Jones, before eleven of the fifteen judges, 8 C. & P. 405; 2 Mood. C. C. S. C.

(g) R. v. Jeyes, 3 Ad. & E. 416; 3

Nev. & Man. 101. See R. v. Bristow, 4 M. & S. 515; 2 M. & S. 80; 2 B. & Ald. 646.

(h) 5 & 6 W. IV. c. 76, ss. 113, 117.