of Berks, and there being good grounds for believing that a breach of the peace was intended to be committed by Lord Gifford on Mr. Morland, an information was laid on the 20th of December by Philip Pusey, Esq., before the Earl of Radnor and the Reverend John Francis Cleaver, clerk, two justices of Berkshire, who issued their warrant, and entrusted the execution thereof to W. Darby, who was specially sworn in on the occasion. The warrant was indorsed by a Gloucestershire magistrate, and Lord Gifford was taken into custody. He never objected to obey the warrant, and he was brought before the magistrates at Farringdon, where the case was fully gone into. He declined making any statement before the magistrates, nor at any time did he object to the jurisdiction or proceedings, or claim privilege of peerage. It appeared, however, that, since the hearing, he had applied more than once for a copy of the informations, without success.

J. W. Smith, in support of the application.—It was out of the jurisdiction of the justices to receive recognisances in the case of a peer of the realm. In 4 Bl. Com. 253, it is laid down that " a peer or peeress cannot be bound over in any other place than the Courts of King's Bench or Chancery; though a justice of the peace has a power to require sureties of any other person being compos mentis and under the degree of nobility." The same doctrine is to be found in Dalton, c. 68; Lambard's Eirenarcha, p. 88; and Corner's Crown Practice, p. 18. The only authority where a doubt is cast upon it, is in Hawkins, P. C. b. 1, c. 28, s. 5, where, after stating that the surety of the peace ought to be granted against any person whatsoever, under the degree of nobility, he says, that "the safest way of proceeding against a peer is by complaint to the Court of Chancery or King's Bench."

1845.

Ex parte

Lord GIFFORD.

1845.

Ex parte Lord GIFFORD.

But there is also strong reason for believing either that there was no information in this case, or that it was insufficient to give the justices jurisdiction to take the recognizances, and that is a good ground for this application; Regina v. Dunn (a): where the Court went into the circumstances of the case, and, considering the articles insufficient, quashed them. A certiorari, in such a case, like a habeas corpus, is rather of right than discretion, and ought to issue the moment the Court sees injustice will be done by refusing it.

Pashley, for the justices, shewed cause in the first instance. Even if the jurisdiction were doubtful, the Court in its discretion will not interfere under these circumstances, and as the party is not in custody. But there is no privilege of peerage in such proceedings. The dictum of Blackstone is unsupported by authority. His reference is to Hawkins alone, who says it is the safest way of proceeding, relying probably on dicta in old cases, when, perhaps, the power of ordinary magistrates was not sufficient to enforce their warrant against a peer. Hawkins refers to Lambard, who says, "If a man have cause to require the peace against a lord, he for so small a cause is not to be arrested (as I take it) by warrant from a justice, nor yet by a supplicavit out of the Chancery. But the Lord Chancellor in such a case, grant to the party a subpoena against that lord for it, as it seemeth by 35 Hen. 6, Fitz. tit. Subpœna, 20." That authority, however, does not bear out his statement, as it only seems that the subpoena issued there, because the sheriff did not dare to execute the supplicavit. He also cites Brooke, tit. Contempt, 6; but that authority does not support him. [He cited, also, stat. 3 Edw. 1, c. 1; Com. Dig. "Justice of the Peace," B. 4; Fitzherbert, J. P. 222, 223.]

(a) 12 A. & E. 599.

may,

WILLIAMS, J., (stopping him).-I do not think it is necessary to consider these apices juris, as I see no reason for my interference in this case, on two grounds :-first, the party applying is not in custody, so there is no great urgency in the matter. In the case of Regina v. Dunn (a), the party was in custody, and being so, according to the never failing rule and practice of the Court, we thought we were bound to see whether there were sufficient grounds for his detention. Secondly, if these recognizances be void in law, as contended, in the event of it being necessary to put them in force against these parties, (which I trust it will not, and cannot help expressing a hope that time and opportunity for reflection will prevent), the proceedings may be resisted, so that the validity of the recognizances will come in question without bringing them up here; and it will then be seen whether the magistrates were or were not justified in requiring them. If the recognizances are void, the parties will not be damnified.

Rule refused.

1845.

Ex parte
Lord

GIFFORD.

(a) 12 A. & E. 599.

1845.

Jan. 30th.

An order on

the putative

tard child for payments to

THE QUEEN v. The Rev. W. B. WROTH and J. RICH,

THIS

Clerks.

was a rule calling upon the Rev. William father of a bas- Bruton Wroth, clerk, and the Rev. John Rich, clerk, two of the keepers of the peace and justices in and for the mother un- the county of Buckingham, to shew cause why a writ of certiorari should not issue to remove into this Court a s. 3, must state certain order of bastardy under their hands and seals, in

der the 7 & 8

Vict. c. 101,

that the evi

dence of the

fact of the birth of the child was taken on oath; and, generally, such an order should state that the evi

dence on which

it is founded, if

order that the same might be quashed.

The order in question was as follows:

66

Bucks, to wit.-At a petty sessions of her Majesty's justices of the peace for the county of Buckingham, holden in and for the Ivinghoe division of the three hundreds of Cottesloe in the county of Buckingham, at the town-hall in Ivinghoe, in the said division and county, on the 4th day of November, 1844, before us the Rev. William Bruton Wroth, clerk, and the Rev. John Rich, clerk, two of her Majesty's cured by pre- justices of the peace for the said county.

of a nature to be supported by oath, has been taken on oath; and

the omission

will not be

cise adherence

to the language

of the statute.

"Whereas one Mary Stilton, single woman, residing at the parish of Wingrove within this division and county, did, on the 7th day of October, 1844, having been delivered of a male bastard child within twelve calendar months prior thereto, make application to William Jenney, Esq., one of her Majesty's justices of the peace usually acting for this division and county, for a summons to be served on one Thurston Earthrowl, of No. 13, Elizabeth-terrace, Liverpool-road, Islington, in the county of Middlesex, carpenter and joiner, whom she alleged to be the father of the said child, and the said justice thereupon issued his summons to the said Thurston Earthrowl, to appear at a petty session, to be holden on this day for this division and county, to answer her complaint touching the premises. And whereas

1845.

v.

WROTH.

the said Thurston Earthrowl having been duly served with the said summons within forty days from the pre- THE QUEEN sent time, and being now present, and the said Mary Stilton having now applied to us the justices in petty sessions assembled for an order upon the said Thurston Earthrowl, according to the form of the statute in such case made and provided, and it being now proved to us, in the presence and hearing of the said Thurston Earthrowl, that the said child was within six calendar months before the passing of an act passed in the eighth year of the reign of her present Majesty, intituled, "An act for the further amendment of the laws relating to the poor in England," that is to say, on the 31st day of March, 1844, born a bastard of the body of the said Mary Stilton; and we, having, in the presence and hearing of the said Thurston Earthrowl, heard the evidence of such woman upon oath, and such other evidence as she hath produced, and having also heard the said Thurston Earthrowl, by his attorney, and the evidence of the said Mary Stilton, the mother of the said child, having been corroborated in some material particular by other testimony to our satisfaction, do hereby adjudge the said Thurston Earthrowl to be the putative father of the said bastard child, and, having regard to all the circumstances of this case, we do now hereby order, that the said Thurston Earthrowl do pay unto the said Mary Stilton, the mother of the said bastard child, so long as she shall live and shall be of sound mind, and shall not be in any gaol or prison, or under sentence of transportation, or to the person who may be appointed to have the custody of such child under the provisions of the said statute, the sum of two shillings per week, from the said 7th day of October last, being the day upon which such application was made, until the said child shall attain the age of thirteen years, or shall die, or the said Mary Stilton shall marry.

VOL. I.

M M

N. S. C.