There are certain proceedings which, although in form quasi of a criminal nature, are essentially of a civil nature, and respect civil rights; e. g. the writ of prohibition applicable to all the three Courts, and the prerogative writ of mandamus, and an information in the nature of a quo warranto,y applicable only to the Court of Queen's Bench.

[18.] Where in prohibition there is a judgment upon a nonsuit, verdict, demurrer, or otherwise; the costs of the application for the writ, as well as of the subsequent proceedings, are included therein, but not those in the Ecclesiastical Court. The plaintiff in prohibition, though he succeeds upon part only, provided it is upon a "main point,"a has his costs: and so also, upon an inquiry of damages; but costs are not allowed, unless there have been pleadings in prohibition; nor where the rule to shew cause why the writ should not issue is discharged,

[19.] If upon a return to a writ of mandamus, a traverse is taken thereon ;e and a verdict is found thereupon, or there is judgment upon demurrer, or by nil dicit, or for want of a replication or other pleading in favour of the party prosecuting the writ, he is entitled to his costs;f and in case of judgment being given for the party making such return, upon pleadings raised thereon; he is allowed

* 2 & 3 Edw. 6, c. 13, s. 14; 8 & 9 W. 3, c. 11, s. 3 ; 1 W. 4, c. 21, s. 1; Griffiths v. Anthony, 5 Ad. and El. 623; Hart v. Marsk, ibid. 591; 5 Dowl. 424; 1 N. and P. 62.

Rex v. Nottingham Water Works Company, 1 Nev. and P. 480; 6 Ad. and El. 355; Rex v. Wix, 2 B. and Ad. 197; Rex Hungerford Market, ibid. 204, note.

V.

c Gude (C. O.) Practice, vol. 1, p. 155.

z Wills v. Turner, Ca. Prac. (C. P.) 11; Tessimond v. Yardley, 5 B. and Ad. 458.

■ Middleton v. Croft, Cases temp. Ld. Hardw. 395; Andr. 60; 2 Stra. 1062; Free v. Burgoyne, (in error) 2 Bligh. N. S. 65; 1 Dow. N. S. 115; 6 B. and C. 27, 538; 8 D. and R. 179, 587; 9 D. and R. 14, 601.

b Bettison v. Henchman, Ca. Prac. C. P. 20; Bettison v. Savage, 1 Com. 335.

Rex v. Kealing, 1 Dowl. 440; Facy v. Lange, Cro. Car. 559; Pewtress v. Harvey, 1 B. and Ad. 154.

4 Mills v. Gregory, 1 Ld. Keny. 134.

9 Anne, c. 20, s. 2; 1 W. 4, c. 21, s. 3.

Dublin (Dean) v. Rex, (in error) 1 Bro. P. C. 73.

his costs; the costs of the application, where the writ is granted, or of answering it, where it is discharged :i but these costs can only be given to persons who are parties to the application or the rule to shew cause ;j and a corporator amoved, and afterwards restored by a mandamus, cannot recover the costs of the writ from the corporation.k

The costs of the writ, if issued and obeyed, are in the discretion of the Court, and must be applied for by a separaten motion. The Court has authority to allow the partyo affected by the return to conduct the proceedings thereon, at his own expense, and to have the like remedies for his costs. The prosecutor, if he issues a writ of execution against the goods P of the defendant, is also entitled, under 43 G. 3, c. 46,9 to levy the sheriff's poundage, and other costs of the execution. Where a venire de novo is awarded, the costs thereon are the same as in other actions.r

9 Anne, c. 20, s. 2.

h1 W. 4, c. 21, s. 6; as where public functuaries, such as clergymen or schoolmasters, endowed under an act of parlia ment, are obliged thus to proceed for their dues. Rex v. St. Saviour's Southwark (Churchwardens, &c.), 7 Ad. and El. 925; 3 N. and P. 345.

iRex v. Somersetshire (Justices), 4 N. and M. 394; and see Rex v. Chester (Bishop), M. T. 27 G. 3; 1 T. R. 396; Rex v. Canterbury (Archbishop), 15 East, 159. The Court determined in these cases, that where an application was made for a mandamus to a bishop, and without good foundation; they would discharge the rule with costs; and the same where applied for against an innocent party. Rex v. Oxford Corporation, 1 N. and P. 474; W. W. and H. 125.

Rex v. Staffordshire (Justices), 1 Dowl. 507.

Harman v. Tappenden, 3 Esp. 278; 1 East, 555.

1 Rex v. Bound, 4 Ad. and El. 139; Le Roy v. Stephens, Sir T. Jones, 178.

m Reg. v. St. Saviour's, 3 N. and P. 345; Rex v. The Thames and Isis Navigation, 5 Ad. and El. 804.

n Reg. v. Salop (Justices), 6 Dowl. 23; Rex v. Kirke, 5 B. and Ad. 1089.

o 1 W. 4, c. 21, s. 4.

Whether by writ in the nature of an elegit or of fieri facias. a Rex v. Glamorgan (Mayor, &c.), 2 Smith, 8.

396.

Shrewsbury (Town) v. Kynaston, (in error) 7 Bro. P. C.

V

[20.] If in an information in the nature of a quo warranto,s as to corporate offices,t judgment of ouster is upon any pleading," or even otherwise, as upon an entry of disclaimer, awarded against the defendant, costs also usually follow thereon ;w and so also against the relator,× where judgment is given for the defendant. These proceedings are viewed in their consequences as of a civily kind, and are, subject only to a few exceptions, governed by the ordinary rules as to costs, as to amendments,z security for costs,a not proceeding to trial according to notice, and otherwise. Where the relator succeeds upon any issuec he is allowed costs upon all; but if he does not proceed to trial in due time,d the defendant will be entitled to apply for his costs of the day;e not exceeding the 207. which is the penalty in the recognizance.f Upon the rule being discharged, the costs thereon are in the discretion of the Court,s and they are usually given as to an application which is frivolous and groundless, and known to the prosecutor as such.h Upon these proceedings, and being in the Queen's Bench, the taxing officer is the master of the Crown Office. The practice is for

9 Anne, c. 20, s. 4; Rex v. Williams, 1 W. Bla. 93; Rex v. Oxford (Mayor, &c.), 1 Nev. and P. 474.

t Ren v. Hall, 1 B. and C. 237; 2 D. and R. 341; Reu v. Wallis, 5 T. R. 375; Rex v. M'Kay, 5 B. and C. 640; 8 D. and R. 393.

u 32 G. 3, c. 58, s. 1; Rex v. Downes, 1 T. R. 453.

▾ 1 Gude (C. O.) Practice, 161.

w 9 Anne, c. 20, s. 5; Rex v. Amery, 1 Anstr. 178.

x Rex v. Holt, 2 Chit. 366.

y The King v. Francis, 2 T. R. 484; The Kingv. Pickerill,

4 T. R. 809.

z Rex v. Phillips, 1 Burr. 292; 1 Ld. Keny. 531.

a Rex v Wynne, 2 M. and S. 346; Rex v. Day; Same v. Patteson, 1 Dowl. 32.

b Rex v. Great Yarmouth, (Mayor &c.) 5 B. and A. 531. The King v. Downes, 1 T. R. 453.

d Anon. Sayer, 130.

e p. 69.

f Rex v. Howell, East, 9 G. 2; Ca. temp. Ld. Hardw. 247; Rex v. Morgan, 2 Stra. 1042; 4 & 5 W. 3, c. 18, s. 2.

note.

Rex v. Carpenter, 2 Stra. 1039; Ibid. v. Kemp, 1 East, 46,

Rex v. Lewis, 2 Burr. 780; 2 Ld. Keny. 497.

him to mark his allocatur, and sign judgment as to the costs upon the roll,i indorsed thus,-e. g.

"Allowed for costs 1807."

A corporation has been held to be justified in point of law to discharge out of the borough funds, the costs and expences of opposing these informations against the individual members;k and having for their object the impeachment of their title, or destruction of their own legal existence as a body. Where a quo warranto information is brought upon a defect cured by 1 Vict. c. 78,1 the relator is not entitled to his costs; unless immediately after the passing of the act he discontinued his proceedings;m and he is not entitled to any costs in such a case, where the judgment of the Court was upon a demurrer," or otherwise than on a discontinuance.

The King v. Pickerill, 4 T. R. 809.

j 5 & 6 W. 4, c. 76, s. 92; Woods v. Reed, 2 Mee. and W. 777.

Att. Gen. v. Mayor of Norwich, 2 Myl. and Cr. 406; Corporation of Dublin v. Attorney General, 9 Bli. 396.

1 ss. 1, 20.

Reg. v. Roberts, 3 N. and P. 592.

Ibid. 3 N. and P. 295.

[1.] Final judgment is considered as signed in the action,a upon the allocatur of the costs being entered, and then delivered outb by the taxing officer-the master. The common injunction from a Court of Equity stays all further proceedings; but except when the right is so restricted, the right of and upon final judgment creates also that of execution.

[2.] A writ of capias ad satisfaciendum will not lie against a peer of England, Scotland,e or Ireland ;f nor a

a 29 Car. 2, c. 3, s. 14; Deemer v. Brooker, 4 Dowl. 9; Finch v. Brook, 5 Dowl. 59.

b Blackburn v. Kymer, 1 Marsh, 278; Butler v. Bulkeley, 8 J. B. Moore, 104; 1 Bing. 233.

c Earnshaw v. Thornhill, 18 Ves. jun., 488; Bishton v. Birch, 2 V. and B. 41; Marsack v. Bailey, 2 Sim. and Stu. 577.

d Walker v. Earl of Grosvenor, 7 T. R. 171; Forster v. Jackson, Hob. 61.

e Digby v. Earl of Stirling, 8 Bing. 55; 5 Anne, c. 8, Art. 23; Milsingtoun (Lord) v. Portmore (Earl), 1 V. and B. 419. f Coates v. Lord Hawarden, 7 B. and C. 388; 39 & 40 G. 3, c. 67, Art. 5; Robinson v. Rokeby (Lord), 8 Ves. jun. 601.