Demurrer by the Prosecutor. In the Queen's Bench. term, 8 Vict. The Queen v. J. N. And the said coroner and attorney of our said Lady the Queen, in the court of our said Lady the Queen before the Queen herself, who prosecuteth for our said Lady the Queen in this behalf, having heard the said [plea] of the said J. N. and O. P. by them in manner and form aforesaid above pleaded, for our said Lady the Queen saith, that our said Lady the Queen, by reason of any thing by them the said J. N. and O. P. respectively above alleged, ought not to be barred from having her aforesaid information against them; because he says that the said [plea] and the matters therein contained are not sufficient in law to bar our said Lady the Queen from In the Queen's Bench. term, 8 Vict. prosecuting her aforesaid information against them the said J. N. and O. P., and that he the said coroner and attorney of our Lady the Queen, who prosecuteth for our said Lady the Queen in this behalf, is not bound by the law of the land to answer the same, and this he the said coroner and attorney is ready to verify. Wherefore for want of a sufficient [plea] in this behalf, the said coroner and attorney for our said Lady the Queen prays judgment, and that the said J. N. and O. P. may be respectively convicted of the premises above charged upon them, in and by the said information, and that they and each of them may be respectively forejudged and excluded of and from the offices, liberties, privileges and franchises aforesaid. Joinder. J. N. ats. The Queen. And the said J. N. and O. P. severally say that the [plea] by them the said J. N. and O. P. above pleaded, and the matters therein contained, in manner and form as above pleaded and set forth, are sufficient in law to bar and preclude our said Lady the Queen from prosecuting the aforesaid information against them the said J. N. and O. P., and they the said J. N. and O. P. are ready to verify and prove the same, as the court shall direct A demurrer should be to the whole of the pleading to which it is pleaded; at least it seems very doubtful whether you can demur to a part of the pleading, and deny or confess and avoid the residue. See R. v. Ginever, 6 T. R. 733. The practice upon a demurrer, and the mode of proceeding to argument and judgment, are detailed ante, p. 63, 64. Where there are demurrers and also issues in fact, the prosecutor has his option to try the issues in fact, before argument of the demurrer, or to wait until after judgment on the demurrer before he proceeds to trial of the other issues. But if it be the prosecutor's own pleading which is demurred to, it may be prudent in him to have the demurrer determined first; for if the issues in fact be first tried, he cannot afterwards have the pleading, which is demurred to, amended, if it should become necessary upon the argument. SECTION IX. Inspection of Corporation Books, &c. By stat. 32 G. 3, c. 58, s. 4, the mayor, bailiff, sheriff, town-clerk or other officer of any corporation, having the custody of or power over the records of the same, shall, upon the demand of any person, being an officer or member of such corporation, on the payment of one shilling, permit such person on any day or days except Christmas-day, Good Friday and Sunday, between the hours of nine in the morning and three in the afternoon, to inspect the books and papers wherein the admission or swearing in of the freemen, burgesses or other members or officers of such corporation, shall be entered, and to have copies or minutes of the admission, or the entry of swearing in of any one or more of such freemen, burgesses, or other members or officers, upon paying 6d. for every 100 words for writing the same; and if such mayor, bailiff, sheriff, town-clerk or other officer shall refuse or deny to any person hereby entitled to demand it, the inspection of such books or papers, or to have copies or minutes thereof as aforesaid, such mayor, bailiff, sheriff, town-clerk or other officer shall for every such offence, forfeit and pay the sum of 100., together with full costs of suit, to him, her, or them who shall inform and sue for the same, within one year after such offence committed, by action of debt, bill, plaint or information, in any of his Majesty's courts of record at Westminster, wherein no essoin protection, wager of law, nor more than one imparlance shall be allowed. Also, by stat 5 & 6 W. 4, c. 76, s. 35, the town clerk of all boroughs within that statute, shall permit any burgess to inspect the voting-papers of any year, on payment of one shilling for every search. See R. v. Arnold, 4 Ad. & El. 657. See also 1 Arch. Pr. 240. SECTION X. Costs for not proceeding to Trial. If either party give notice of trial, and do not proceed to trial in pursuance of his notice, nor countermand his notice in time, the other party will be entitled to his costs of the day, that is, to such costs as he may have incurred in consequence of his opponent not having countermanded his notice in time. h Anon. Say. 130. R. v. Powell, 1 Str. 33. See the form of the Affidavit, ante, p. 69. Also, where the defendant appears and pleads to issue, the prosecutor, if he do not, "at his own proper costs and charges, within one whole year after issue joined therein, procure the same to be tried," the court is authorized to award the defendant his costs. 4 & 5 W. & M. c. 18. s. 2. SECTION XI. Trial, &c. Issue.] No issue is made up, as in civil actions; but the prosecutor should get a list of the issues to be tried, drawn by counsel, from the pleadings, as he will have to insert them in the jury process, and the postea must be framed from them. Notice of trial.] The same notice of trial is required, as upon indictments or criminal informations, as mentioned, ante, p. 69. See the form, ante, p. 70: and see as to Notice of Countermand, ante, p. 69. In default of the prosecutor proceeding to trial, the defendant may give notice of trial by proviso, make up and pass his nisi prius record, and proceed to trial, as in cases of criminal information or indictment. See ante, p. 67. Nisi prius record.] A nisi prius record is next engrossed upon parchment. This is done by the prosecutor's attorney, or by the defendant if he intend to proceed to trial by proviso, sometimes by both, as in civil cases. And a warrant of nisi prius engrossed on parchment, and signed by the attorneygeneral, authorizing it, must be obtained, for the reason given, ante, p. 70. The record is then sealed and passed, and (the jury process being returned and annexed to it) it is entered with the marshal for trial, in the same manner precisely as in civil cases. See 1 Arch. Pr. 363. In special jury cases, there must also be a warrant of tales, engrossed on parchment, and signed by the attorney-general, ready in court to be produced, if required. If the trial is to be had in a county palatine, a mittimus must be awarded in the nisi prius record, and issued, as directed, ante, p. 73; and see the forms, ante, p. 73, 74. Record of Nisi prius. Pleas before our Lady the Queen, at Westminster, of term [the term in or of which the pleas are pleaded], in the year of the reign of our sovereign Lady Victoria, by the grace of God of the United Kingdom of Great Britain and Ire land, Queen, defender of the faith. Yorkshire. Be it remembered, that Charles Francis Robinson, es quire, coroner and attorney of our said Lady the Queen, in the court of our said Lady the Queen, before the Queen herself, who prosecuteth for our said Lady the Queen in this behalf, in his proper person, came here into the court of our said Lady the Queen, before the Queen herself, at Westminster, on [the day mentioned in the commencement of the Information] in -- term last past, and for our said Lady the Queen, at the relation of J. S. of, &c., brought into the court of our said Lady the Queen, before the Queen herself then here, a certain information, in the nature of a quo war ranto, against J. N., late of gentleman, and O. P., late of the same place, gentleman, which said information followeth in these words, that is to say, [here set out the information, the award of process, the pleadings, the award of jury process and continuances, as in the form, ante, p. 70, 71, except that, instead of the words "to try upon their oath whether the said J. N. and O. P. or either of them be guilty of the premises aforesaid or not, you say "to try upon their oath the issues above joined as aforesaid."] Warrant of Nisi prius. Yorkshire.-Let a record of nisi prius be made up between our sovereign Lady the Queen and J. N. of and O. P. of, upon an information in the nature of a quo warranto, exhibited against them in Warrant of Tules. Yorkshire. Sir William Follett, knight, attorney-general of our present sovereign Lady the Queen, prays a tales de circumstantibus to be granted by the court here, according to the form of the statute in such case made and provided, for the trial of the issues joined between our said Lady the Queen and Jury process.] The jury process is by venire and distringas, tested and returnable as directed, ante, p. 75. The forms are also the same as those, ante, p. 78, except that instead of saying to try upon their oath whether the said J. N. and O. P. or either of them be guilty of whereof they are impeached or not," you insert the several issues to be tried, as raised by the pleadings, thus-" to try upon their oath whether or not; and also whether — or not :”—so stating the whole of the issues; for which purpose it will be convenient to have a list of the issues drawn or settled by counsel, as already suggested, ante, p. 146. A special jury, if deemed necessary, is moved for, nominated, struck, &c., as directed, ante, p. 76; and see the forms, ante, p. 78-80. Witnesses.] The subpoena for witnesses, is the same as the forsm, ante, p. 82, except that, instead of “for certain whereof he is impeached," you say upon an information in the nature of a quo warranto, exhibited against him in our court before us, to show by what authority he claims to be whereof he is impeached." It is sued out, served, and the attendance of the witnesses enforced, as directed, ante, p. 80, 81. This being in the nature of a civil suit, you must pay or tender to the witness, with the subpoena, his reasonable expenses, in country cases, or to country witnesses in town cases, exactly as in civil actions. Trial and postea.] The parties proceed to trial, and the trial is had, in precisely the same manner as is directed, ante, p. 85-95. The attorney of the party for whom the verdict is given, or who is entitled to the postea, obtains the record of nisi prius from the associate, and engrosses the postea upon it. And as this is in general very special, it may be prudent to get it drawn, or at least settled, by counsel. In other respects, the postea is the same as the form ante, p. 95. If there be a special verdict, let it be settled by counsel on both sides. Then let either party move for a rule for a concilium; which rule shall specify the day on which the case will be put in the paper for argument, and shall be drawn up and served at least six days before such day within forty miles of London, and eight days in all other cases. Reg. 21. And two days at least before the day on which the case is to be put in the paper, as above mentioned, the relator's attorney shall deliver a paper-book of the proceedings, with a copy of the rule for the concilium, to each of the two senior judges, and the defendant or his attorney a copy to the third and fourth judges, such paper books containing, in the margin thereof, or appended thereto, the points intended to be argued, but not any other observations or matter than such points; and judgment shall be given by the court against the party neglecting to deliver paper books to the judges, or delivering the same without the points for argument, if the court shall so please. Reg. 22. The special verdict is afterwards argued, first by one counsel for the relator, then by one counsel for the defendant, and lastly by the relator's counsel in reply; and the court then give judgment. Either party, at the trial, may tender a bill of exceptions; the proceedings upon which, afterwards, are the same as in civil cases. SECTION XII. New Trial.-Arrest of Judgment. Either party may apply for a new trial, upon the same grounds, and within the same time, as in civil cases. See 2 Arch. Pr. 1, &c. |