estreat, whereby it appeared that the above-named John Thornton was indebted to the Crown in the sum of eighty pounds, one Henry Robinson in the sum of forty pounds, and Miles Hodgson, the defendant, in forty pounds, Thornton for not paying the costs of the prosecutor upon an indictment, upon which he had been convicted, and Robinson and Hodgson as his sureties for the payment of the same. The plea then protested against the validity of the estreat, but for plea nevertheless and for the discharge of the recognizance, pleaded setting out the recognizances, the conditions of which were "That if the said John Thornton shall appear in the Queen's Bench, at Westminster on the 22nd day of May, instant, in the next Trinity term, and shall plead to all and singular indictments of whatever misdemeanors whereof he stands indicted, and at his own proper costs and charges shall cause and procure the issue or issues that may be joined thereon to be tried in the same term, or at the next assizes to be holden after the same term in and for the county of Westmoreland, if the said court shall not appoint any other time for the trial thereof, then at such other time, and shall give due notice of such trial to the prosecutor or his attorney, and shall appear from day to day in the said Court, and not depart until discharged by the said Court, then this recognizance to be void or else remain in full force." This recognizance appeared to have been taken before John Tathem, Esq., one of the justices for the county, &c. The plea then stated that before the time of entering into the said recognizance a bill of indictment had been found at the Quarter Sessions for the county of Westmoreland against the said John Thornton for the nonpayment of certain costs awarded against him by the sessions upon the trial 1852. HODGSON'S Case. 1852. HODGSON'S of an appeal against the certificate of two justices of Replication That at the time of granting the said writ of certiorari, the said Court of Queen's Bench ordered that the said John Thornton should enter into a recognizance of eighty pounds, with two manucaptors or sureties, in forty pounds each, according to the statute; that the said John Thornton, and Henry Robinson, and Miles Hodgson, as the manucaptors or sureties of the said John Thornton, did enter into the said recognizance mentioned in the said estreat; that after the conviction of the said John Thornton, the Court of Queen's Bench gave to the prosecutors of the said indictment, their costs, which amounted to 791. 2s. ; that the allocatur of the coroner was served upon the said John Thornton, and the amount demanded of him; that the said John Thornton refused to pay the same; and that the said allocatur was afterwards served upon Henry Robinson and the defendant, the manucaptors or sureties of the said John Thornton; that afterwards an attachment was issued against the said John Thornton for contempt, in nonpayment of the said amount, that he was attached, and that the said sum of 791. 2s. remained unpaid at the time of the said attachment and estreat. To this replication the defendant demurred. On the 8th June, A. D. 1852, the demurrer was argued in the Court of Exchequer before POLLOCK C. B., ALDERSON B., PLATT B., and MARTIN B. Sir F. Thesiger (Attorney General), and Atherton Q. C., for the Crown. Pashley Q. C., and Henniker for the defendant. Pashley Q. C. called the attention of the Court to the condition of the recognizance entered into by the defendant as set out in his plea (a); which condition had been fully complied with. The defendant, as one of the manucaptors or sureties of John Thornton, had entered into a contract with the Crown which was expressed in the condition of the recognizance, and that contract, he maintained, had been fulfilled. The defendant did not say that the recognizance ought to be discharged, but that he had done all that he had bound himself to do; and that if the Crown intended to bind him to pay the prosecutor his costs, or to see them paid, that ought to have been expressed in the condition of the recognizance. The words of the third 1852. HODGSON'S 1852. HODGSON'S Case. section of the statute relating to the removal of indictments by certiorari, 5 & 6 Wm. & M. c. 11, it was true, said that the said recognizance should not be discharged till the costs so taxed were paid; but the question before the Court was a question of contract, and no one could be bound beyond the terms of the contract into which he entered. A contract had been entered into between the Crown and the subject; and that as expressed in the condition of the recognizance, had been performed by the defendant. But in the next place the recognizance itself was void; it appeared to have been taken before John Tathem Esq., one of the justices "for" the county of Westmoreland, whereas in order to give a justice jurisdiction it should appear that he was a justice "in and for" the county. He cited Reg. v Stockton, 7 Q. B. 520; Reg. v. Lynch, 7 Irish Equity Rep. 263; Taylor v. Clemson, 11 Cl. & Fin. 610; Day v. King, 5 Ad. & E. 359; Reg. v. Toke, 8 Ad. & E. 227. Sir F. Thesiger (Attorney General). In effect the demurrer amounted to an application to discharge the defendant's recognizance. The form and condition of the recognizance are given by the stat. of Wm. & M., which has incorporated a condition into the recognizance, a point which has been settled by numerous decisions. In the case Rex v. Teal, 13 East, 4, it was held, that where on the removing an indictment from the sessions by certiorari, a recognizance was given by two sureties in 207. each, under 5 & 6 Wm. & M. c. 1, ss. 2, 3, to secure the costs, such recognizance should not be discharged till all the costs were paid, though they exceeded 401., Rex v. Finmore, 8 T. R. 409, and Reg. v. Byzant, 7 Dowl. 680, were also authorities to the same effect. The Attorney General was here stopped by the Court. POLLOCK C. B.-All the precedents are against the second point urged by the defendant's counsel, and the cases to which the Attorney General has called our attention are conclusive as to the other. No distinction can be drawn between the present case, and an application to discharge the recognizance. The Crown is therefore entitled to judgment. ALDERSON B. and PLATT B. concurred. MARTIN B.-Regarding this as a question of a contract between the Crown and the defendant, but for the decisions cited by the Attorney General, I should have been disposed to have come to a different conclusion; but as it is we are bound by authority, and I agree that there must be judgment for the Crown. 1852. HODGSON'S Case, REGINA v. WILLIAM MITCHELL, WILLIAM (Note.) The course directed by Mr. Baron ALDERSON at the Liverpool Spring assizes, A. D. 1852, on the trial of these prisoners, to be pursued in framing indictments in cases of robberies under aggravated circum. stances, seems to have been to some extent misunderstood; and from an observation made by Mr. Justice ERLE, when the case reserved was under the consideration of the Judges, it appears to have been supposed that his Lordship suggested the adoption of an additional count in the indictment, instead of the A count charging an assault with Mr. Baron ALDERSON in stating (a) See 2 Den. C. C. 468. 1852. MITCHELL'S |