CT. OF APP.] REG. V. THE MAYOR, &C., OF THE BOROUGH OF MAIDENHEAD, &c. and issues both in law and fact having been joined, the case came on for trial before Mellor, J. At the trial evidence was tendered on behalf of the defendants in addition to the documents, to show that the barrister did in delivering judgment on the 10th March 1875, orally order that the expenses of receiving the court, and also the allowances, remunerations, and expenses to be paid to the barrister for his services in respect of the trial of the said petition, and to the officers and clerks and others employed under the provisions of the Act should be borne and paid by the said William Dawson, and should be repaid to the said Lords Commissioners by him, and not by the defendants. The said evidence was objected to on the part of the prosecution, but was admitted by the learned judge, subject to such objection. Oral evidence was thereupon given both by the prosecutors and by the defendants. The question of the admissibility of this oral evidence was reserved for the opinion of the court. On behalf of the defendants, it was further sought to put in as evidence a letter written by Mr. Coleman to the commissioners. On objection being made by the prosecution to the reception of the same, the learned judge ruled that it was inadmissible, and it was accordingly excluded. The letter was, however, inserted by consent in the special case, but subject to the question of its admissibility, and if admissible for any purpose it is to be among the facts submitted to the consideration of the court. It is as follows: Redcar, Yorkshire, 29th Sept. 1875. Sir, I have the honour to acknowledge the receipt of your letter 14,422. It was always my intention to visit upon Mr. Dawson the costs relating and belonging to the inquiry. I said so in giving judgment. Dawson was proved to have been guilty to my satis faction of personal bribery, and I thought that the ratepayers of Maidenhead ought not to be asked to pay the expenses of an inquiry brought about by reason of his having done so. Mr. Lush, my registrar, is now in London, and will take any further steps, if any, which may be required in the matter. I have the honour to remain, Sir, your most obedient servant, CHARLES J. COLEMAN. William Law, Esq. 66 At the conclusion of the trial the learned judge left the following question to the jury: Was there a direction that those costs which are included in and are incident to the inquiry, namely, the remuneration, costs of the judge, officers, and so on, as well as the town clerk's costs, should be paid by Mr. Dawson ?" To this question the jury returned answer as follows: "The jury is of opinion that there is sufficient evidence that Mr. Coleman did order the whole of the costs to be paid by Mr. Dawson, and not by the borough of Maidenhead." The learned judge, however, directed that a verdict should be entered for the Crown for damages 3761. 188. 10d. and 40s. costs, subject to the opinion of the court upon a special case, it being agreed that the court should give judgment upon the demurrers raised on the pleadings as well as on the special case. The Divisional Court were divided in opinion; Lord Coleridge, C.J., and Pollock, B. held that the prosecutors were entitled to succeed, Manisty, J. dissenting. Judgment was accordingly given for the prosecutors for 3761. 188. 10d., and for a peremptory mandamus. [CT. OF APP. From this judgment, which is reported 8 Q. B. Div. 339, the defendants now appealed. The following are the provisions of the Corrupt Practices (Municipal Elections) Act 1872 (35 & 36 Vict. c. 60), on which the decision mainly turned: Sect. 22. The remuneration and allowances to be paid to a barrister for his services in respect of the trial of a petition, and to any officers, clerks, or shorthand writers employed under the provisions of this Act, shall be fixed by a scale which shall be made and may be varied from time to time by the election judges on the rota for the trial of election petitions under the provisions of the Parliamentary Elections Act 1868, with the approval of the Commissioners of Her Majesty's Treasury, or any two or more of them, and the amount of any such remuneration and allowances shall be paid by the said commissioners, and shall be repaid to the said commissioners on their certificate, by the treasurer of the borough to which the petition relates, out of the borough fund or rate. Provided that the court at its discretion may order that the whole or any part of such remuneration and allowances, or the whole or any part of the expenses incurred by a town clerk for receiving the court under the provisions of this Act, shall be repaid to the said commissioners or to the town clerk, as the case may be, in the cases, by the persons, in the manner following, viz.: (a) When in the opinion of the court a petition is frivolous and vexatious, then by the petitioner; (b) When in the opinion of the court a respondent has been personally guilty of corrupt practices at the election, then by such respondent. And any order so made for the repayment of any sum by a petitioner or respondent may be enforced in the same way as an order for payment of costs. The other provisions of the Act which are material are sufficiently referred to in the head note. no H. Matthews, Q.C. and H. D. Greene for the appellants. It is evident that Mr. Coleman intended that these costs should be paid by the respondent Dawson, who was found guilty of personal bribery. The election court is not a court of record, and therefore there was necessity for the production of any written order. If this is not so, the record may and ought to be amended. The Commissioners of the Treasury had no power to issue fresh certificates, and the certificates being invalid, the defendants were not liable to pay. Owing to lapse of time, the ratepayers of the borough have changed, and it is unjust that the present ratepayers should now be made to pay. Where there has been such a long delay a mandamus ought not, as a matter of discretion, to be granted. The following authorities were referred to in the course of the argument: Pare v. Hartshorn, 23 W. R. 138; Harmer v. Bean, 3 C. & K. 307; Dyson v. Wood, 3 B. & C. 449; Williams v. Lord Bagot, 4 D. & R. 315; Mellish v. Richardson, 7 B. & C. 819; Ernest v. Brown, 4 Bing. N. C. 162; Reg. v. Fall, 1 Q. B. 636; Marianski v. Cairns, 1 Macq. 212, 766; Reg. v. Garland, 22 L. T. Rep. N. S. 160; L. Rep. 5 Reg. v. Churchwardens of Wigan, 35 L. T. Rep. N. S. Worthington v. Hulton, 13 L. T. Rep. N. S. 463; L. Nicoll v. Allen, 31 L. J. 283, Q. B. Sir H. James (A. G.) and A. L. Smith, for the respondents, were not called on to address the court. JESSEL, M.R.—I have read twice over, and with great care, the judgment of Pollock, B. in this case, which was agreed to by the Lord Chief CT. OF APP.] REG. V. THE MAYOR, &C., OF The Borough of MAIDENHEAD, &c. 66 Justice. The first question we have to decide is an important one, no doubt, not only with reference to this case but to others. It depends on two very short sections of Acts of Parliament, which, I think, are by no means difficult to construe, and in the construction of which I entirely agree with the court below. The question is, is this Commissioners' Court a court of record? That depends entirely on the sections. By sect. 14, sub-sect. 5, of the Corrupt Practices (Municipal Elections) Act 1872 (35 & 36 Vict. c. 60) it is enacted that: The court shall, for the purposes of the trial of a petition, have all the same powers and privileges which a judge may have on the trial of an election petition under the provi sions of the Parliamentary Elections Act 1868." Then, when we turn to that Act (31 & 32 Vict. c. 125), we see, by sect. 29, on the trial of an election petition under this Act the judge shall, subject to the provisions of this Act, have the same powers, jurisdiction, and authority, as a judge of one of the Superior Courts, and as a judge of assize and Nisi Prius, and the court held by him shall be a court of record." The court, being a court of record, it has all the same powers and privileges. That being so, this municipal election court, having all the privileges of a parliamentary court, which is a court of record, it appears to me to follow, as a matter of clear demonstration, that it is a court of record. We must determine that, therefore, adversely to the appellants. What have we here? We have plainly no record of any order that Mr. Dawson shou'd pay the costs. Then it follows that the Commissioners of the Treasury are entitled to recover. But an issue was directed, and at the trial the jury found a very curious finding. The question was, 'Was there a direction that those costs which are included in and are incident to the inquiry, namely, the remuneration, costs of the judge, officers, and so on, as well as the town clerk's costs, should be paid by Mr. Dawson ?" The jury answered: "The jury is of opinion that there is sufficient evidence that Mr. Coleman did order the whole of the costs to be paid by Mr. Dawson and not by the borough of Maidenhead." verdict is unchallenged, it does appear to me that the jury were of opinion that Mr. Coleman did so order; but why it is put in that form I do not know. That is the substance of it. Then the only question is whether you can take oral evidence that the judge said something more than appears in his order. Of course the oral statement of a judge of a court of record does not make that oral statement an order; indeed, it was not contended before us that you could admit it as regards the entry of the judgment itself. But it was contended that there is power to amend a record in case of mistake. That view was confirmed upon a reference to some very ancient statutes. Then it was urged that the court ceases to exist when the barrister has made his certificate. I do not think that quite concludes the question. It may be that some court has the power to amend. I am by no means prepared to say that, looking to the words of some of the statutes, and looking to the powers conferred on the then Court of Common Pleas, and now transferred to the High Court, that the Common Pleas could not amend the record. It is not absolutely necessary to determine that, according to my opinion. The inclination of my opinion is that it could, considering the wording of the statute. 66 If that [CT. OF APP. Considering the fact that the barrister ceases to be the court, which you must always take into consideration, and considering the necessity-not the absolute necessity, but the reasonable necessity there is that somebody should have power to amend that record, which was erroneous, my impression is (I do not wish finally to decide it) that under the 21st section of the Act (35 & 36 Vict. c. 60) the Superior Court can do it. The words of sub-sect. 5 are these: "The Superior Court shall, subject to the provisions of this Act, have the same powers, jurisdiction, and authority with reference to an election petition and the proceedings thereon as it would have if the petition were an ordinary cause within its jurisdiction." Those words seem to me to be sufficient, without giving a final decision upon it. I should not like to do that without having it more fully argued. My present impression is, that in the case of a mistake under this Act the suitor is not without remedy. But whether that be so or not, whether he has a remedy by an application to the High Court, or whether he has any remedy at all, it is clear to me that he has no remedy in the Appeal Court; it must be an original application to amend. There is one consideration to show that, namely, that Mr. Dawson would be a necessary party. The application would be to amend the record by inserting an order that Mr. Dawson should pay the costs. The court would not entertain it in the absence of notice to Mr. Dawson, because it is simply an application to make as against him an order to pay costs which up to that time he is not liable to pay. Besides that, I think it could not be made to the court below for the same reason; it must be an independent application. So that we could not say the court below was wrong in refusing it, if it did refuse it, which I rather think it did. Again, you could not make an application here, if not muide to the court below, because this is only a Court of Appeal. But assuming the utmost in favour of the appellants, that they did make the application to the court below and that it was refused, then I am not at all sure that it was not properly refused, having regard to what is stated by Pollock, B. Atter discussing the question, he says: For us to amend by this mere expression of intention that is, the intention in the letter of Mr. Coleman, so often referred to-" which is contrary to the two written orders signed by the barrister, appears to me to be not only without precedent, but it goes to destroy the very wholesome rule that the judgments and proceedings of a court of record must be proved by the record. For a judge to amend his own record, or for a court before which that record comes to amend it so as to be in accordance with the judge's notes, is reasonable and intelligible; but for another court to amend a record upon the suggestion of a judge's intention, expressed by a mere letter, which is not written in consequence of an application made by one of the parties to the proceedings, nor indeed written to either of the parties, or those who represent them, would lead to consequences tending to produce the greatest uncertainty and inconvenience:" (8 Q. B. Div. 353, 354.) I must say I am not able to dissent from that. I cannot help saying that this case was tried in a manner which is open to observation. It is not now a question of a new trial before us. It is open to observation, and I do not feel satisfied to act 66 CT. OF APP.] REG. V. THE MAYOR, &C., OF THE BOROUGH OF MAIDENHEAD, &C. merely on the verdict of the jury on a trial so conducted with reference to the amendment. If the application to me were an original application to amend, I should certainly put the case in course for further inquiry. The action was an action to try what were the words uttered by the commissioner in giving judgment on a day long since past. There were two records in "writing," to use the word in its popular and not in its technical sense, of what he then said, made at the time; one was by the Government shorthand writer, whose duty it was to take a shorthand note of what was said, and which shorthand note did not contain the words in question, although there were, as I understand, some words on which an argument was founded, but not these words; and then there was the registrar of the court whose duty it was to make an accurate note of the judge's decision, and draw up the order, and that record does not contain such words. That record was not only drawn up by the registrar, but it was signed by the judge; therefore it was an authentic (I am not now using the word in a technical sense) and contemporaneous reduction to writing, made by a person whose duty it was to record accurately what took place, and like the other one, which is a similar document, does not contain the words in question. Against that several people were called, who did not appear to have made any notes in writing at the time, and whose recollection was as to words uttered by a judge a very long time before, and who said he did use the words. There was also a letter of the judge himself, who was not called. That being the state of matters, I must say, without saying the jury were wrong, I do not see the evidence. The witnesses may have had some extraordinary reason for recollecting accurately, at that distance of time, without a note, exactly what took place. I cannot say. But I must say that, if an application had been made to me to amend a record on such materials, I should have put it in train for further inquiry. That disposes, I think, of the application to amend. Then, to put it shortly; if there is no application to amend, the borough is liable to pay. The Act of Parliament makes the treasurer liable to pay out of the borough fund or rate. The substance of it is that the borough has to pay, and the borough has to get the money, if it has not got it, by means of a rate. The next point argued before us was that there is no authority in this Act of Parliament to enable a borough to make a retrospective rate. I agree it has been decided that under the terms of the 92nd section of the Municipal Corporations Act (5 & 6 Will. 4, c. 76) there is no such authority, but the question is whether that authority is not implied and conferred by the terms of the Act of 1872 taken in connection with that ? I think it is. When you see that the treasurer is to pay out of the fund, and therefore the rate must or may be retrospective-in fact it must be in order to make this payment-of course Parliament must be intended to enact everything necessary to obtain the payment. Therefore where you see that, in order to obtain payment you must make a retrospective rate, it comes to this, that Parliament has given all the necessary power, by implication if not by express words, to carry out the purpose of the legislation, which is to secure payment of these moneys; and therefore whether or not, as a general rule, a retrospective rate is made, [CT. OF APP. it could be made with a view to complying with the terms of this Act of Parliament. That being so, I think that contention fails. The next question argued by Mr. Matthews was as to the matter of discretion. That depended on two points; one was that the original order or certificate ought not to have been cancelled, and that the second order or certificate was not one which could be acted upon. But I understood him to use that as an additional argument as to the exercise of discretion, and not as an absolute argument, that in no case could a peremptory mandamus issue by reason of the cancellation. At any rate, either way, as the objection is not well founded it does not matter in what way the argument was used. First of all, I am not convinced that the Com. missioners of the Treasury could not cancel the certificate or order. I do not see why they could not if they made a mistake. It is not a judgment. I do not see why they could not recall it upon reasonable grounds, or if a mistake were made. It appears to me therefore it is not right to say that the mere withdrawal of it prevented their issuing a fresh certificate for the same sum or for two sums. That I think gets rid of the whole question. But without that I do not think the mere altering of the date, supposing the first certificate were valid and could not be cancelled, to issue a second certificate at a subsequent date, repeating the same sum, would substantially affect the certificate; it might lead to a recital in the mandamus or the writ of the original certificate of the cancellation, and the issuing of the second, but if in substance it came to a certificate for that sum, the fact of the first being treated as cancelled does not appear to me to affect the necessary result; the money is still payable, and payment may be enforced by mandamus. I now come to the last point, that is, that the acts of the commissioners have been such as to disentitle them to the order in our judgment. The first act relied upon was delay, the effect of which has been that, after the issuing of the certificate, the town council made arrangements, and afterwards it was returned and a second certificate was made. It was contended that the ratepayers had changed to a considerable extent, and therefore it was said by reason of the delay of the commissioners, and by reason of their mistake in cancelling the first certificate and issuing a second, the people who would have to pay the rate under the second certificate would not be the same people who would have had to pay it under the first. Supposing that were so, is it a reason for refusing the mandamus? Nobody supposes, should think, that the ratepayers would remain unchanged. This is a mere accident. A good many months may have elapsed between the commencement of the inquiry and its final termination, and a good many of the ratepayers may have left the place, and a good many new people have come into the place, even if there was only one certificate issued. The ratepayers must take their chance of these things. You cannot administer abstract justice in this manner and weigh the liabilities of people with such nicety as these considerations involve. The substance of the matter is that the borough is to pay, and the inhabitants of the borough are, if necessary, to contribute to the borough rate. There is no real injustice in it, and there is no equity between the former and the present ratepayers that will throw CT. OF APP.] REG. v. THE MAYOR, &C., OF THE BOROUGH OF MAIDENHEAD, &C. this burthen necessarily and exclusively on the former to the prejudice of the latter. There is one matter, upon the discretion being subject to appeal, which I ought to say a word about. I think, whatever the law was before the passing of the Judicature Act, the discretion is now subject to appeal by reason of the words of the Act of 1873, s. 19, which says that every order of the High Court shall be subject to appeal, with certain exceptions. But I think also the rule applies that on the question of discretion it is not so easy to succeed on appeal as it is on the question of right. It has been said over and over again, on matters of discretion, that the court requires a very strong and plain case to over-rule the judge's decision in the court below. In this case I think the discretion was rightly and correctly exercised. But if I had any reasonable doubt on the matter I should have still held that the Court of Appeal is not to exercise a discretion in the same way as if it were a court of first instance, but it must be satisfied that the discretion was so wrongly exercised as to cause injustice. Certainly if my opinion had not been that the discretion had not been rightly exercised I should have been clearly of opinion that there was no such error as to alter it. Upon these grounds I think that the careful and elaborate judgment of Baron Pollock was right, and this appeal ought to be dismissed with costs. BRETT, L.J.-In this case there is a mandamus issued to the treasurer and the borough of Maidenhead to repay to the Commissioners of Her Majesty's Treasury certain expenses which they have been obliged to pay in respect of an inquiry into a municipal election. In answer to that mandamus a reply was put in which raised certain issues. Those issues were tried before Mellor, J., and upon those issues the jury found as a fact that at the hearing before Mr. Coleman of the petition he did order that Mr. Dawson, one of the candidates, should pay the expenses which are now in question. No motion was made to set aside that finding of the jury on the ground that it was a verdict against the evidence; therefore, in my opinion, as at present advised, we are bound to take that to be a correct finding of the facts. But that is a finding on the issues taken on the return to a mandamus. Upon that finding it is argued on behalf of the defendants, the Corporation of Maidenhead, that, assuming Mr. Coleman could have ordered, at the hearing before him, that Mr. Dawson should pay the expenses, it follows as a necessary consequence that the borough is not bound to pay them at all. I will, for the purpose of this discussion, assume that the second proposition is truc, that if it was an order that Mr. Dawson should pay the expenses thereupon the borough should not, although I do not think it necessary to decide that point on the present occasion. It may be hereafter contended that if there be an order that one of the candidates should pay these expenses and he should fail to do so, nevertheless the borough may be bound to pay them. It is not necessary to decide this. An objection is taken that notwithstanding the finding of the jury that Mr. Coleman did order Mr. Dawson to pay the expenses, yet it cannot be held as a matter of law that he did make such an order, because it was alleged that his court was a court of record, and therefore the judgment which he gave must be a judgment in writing, [CT. OF APP. and on the true construction of it there is no order that Mr. Dawson should pay the costs, and therefore the jury were not at liberty to find that by parol or otherwise the commissioner had made such an order. Against that it was urged that this court of the commissioner at the time he held it was not a court of record. In my opinion the court of the commissioner was a court of record. It appears to me that the 5th subsection of the 14th section of the Corrupt Practices (Municipal Elections) Act 1872 makes the court of the commissioner sent down to try cases under that Act the same kind of court as the court of a judge who is sent down under the Parliamentary Corrupt Practices Act to try a petition. I do not think it could be contended that the court of such a judge is not a court of record. Therefore it follows that the court held by Mr. Coleman was a court of record. It is a necessary consequence of its being a court of record that its judgment must be in writing, and of the nature of a record. It seems to me, therefore, notwithstanding the finding of the jury, that in fact Mr. Coleman did order; that is, in other words, he did so by parol, nevertheless his certificate or judgment can only be legally looked for in the record or writing which was the judgment of that court, and the jury cannot find contrary to the legal construction of that judgment. The only way in which the finding of the jury upon the fact can be admissible would be for the purpose of amending that written record, if it could be amended. But I am of opinion, for several reasons, that the record could not upon this trial be amended. In the first place that record of Mr. Coleman's was not merely a record drawn up by an officer of the court, it was a record signed by himself. It must be taken, therefore, that it was his own record; it seems to me clear that Mr. Coleman could not amend it. The moment that he has made that order, and has left the place, it seems to me that he is functus officio, he is no longer the court; he himself could not amend the record however the mistake had been made. I think it is equally clear that no order of his made later on directing these costs to be paid by Mr. Dawson could possibly avail. He was entirely functus officio. It may be that if that record had been brought before the High Court by way of appeal - if there is an appeal from such a decision or upon motion, that record might have been treated as a record of the High Court, and they might have the power of amending it, and might, upon due evidence, have amended it. But it seems to me that in the present case where the trial is upon the issues taken on the return to a mandamus to enforce that judgment, neither the High Court nor this court can amend the record. These are proceedings taken upon the record to enforce the record, not proceedings in which that record is questioned or can be questioned. It seems to me that in these proceedings the judgment or record could not be amended by any court. If in these proceedings it might have been amended it might have been difficult to say, upon the finding of the jury, that the court ought not to have amended. If the High Court had bad power to amend it and had declined, then I think we should have also power to amend it upon this appeal. If that record could not be amended, as think it could not, and that record does not make Mr. Dawson the person to pay, then it is CT. OF APP.] REG. V. THE MAYOR, &c., OF THE BOROUGH OF MAIDENHEAD, &C. conceded that it is the borough which in the first instance ought to have been made to pay by the commissioner. But it is said that the borough cannot now by mandamus be made to pay the sum which the court is requested to order them to pay. I certainly understood it to be argued that it could not-for this reason, that there was a certifi cate given by the Commissioners of the Treasury, but that that certificate was cancelled, or was assumed to be cancelled, and the commissioners had no right to cancel that, and therefcre had no right to give a second certificate. Then it was said that if they have no right to give a second certificate this mandamus could not be applied to the first certificate, because this mandamus when it was issued did not ask that the first certificate should be enforced, but asked that the second should. The reason why it was urged that the first certificate could not be cancelled was, it was said to be in the nature of an award or a judgment. If it was in the nature of an award, or a judgment, after that award or judgment was made it is obvious that the persons who made either could not cancel them. But it seems to me that the certificate is certainly not an award, and it seems to me that it was not a judgment; and I agree with Pollock, B. and with the Lord Chief Justice, and with Manisty, J., who does not dissent upon this part of the case, that the certificate is neither an award nor a judgment; it is a mere ministerial act. There is no judicial discretion exercised about the contents of the certificate; there is no judicial inquiry previously as to the contents of it. The certificate merely comes to this: such and such amounts, according to a scale allowed by certain judges, has been found to be due to the commissioner who held this court and to other officers; we have paid, or are liable to pay, the amount, and we certify to you that it is so-and-so. That does not appear to me to be a judicial act, or an award, or anything like the one or the other. I am of opinion therefore that the Commissioners of the Treasury are at liberty to cancel any such certificate and to issue another, and that they may dɔ so whether the mistake as to the first certificate is one made by themselves or by anybody else. There is nothing to prevent them from issuing a second certificate. If that be true, the second certificate in this case was a valid certificate, and one which might be enforced by this mandamus if nothing else occurs to the contrary. But it was said that the High Court exercising the powers of the old court of Queen's Bench ought not to have issued this mandamus on account of injustice and hardship to certain persons if it did issue it, and for another reason, which was that it would order the authorities of the borough to do that which was an illegal thing for them to do. I will take that which I have just stated second first. It was said that this mandamus orders them to make a rate, that if that rate is made it is a retrospective rate, and a retrospective rate is illegal. Now a good deal was said about the doctrine of making a retrospective rate. I apprehend that, as a general rule, both with regard to parishes and with regard to corporations, they cannot make what is called a retrospective rate. But the question here is whether for the purpose of this mandamus the Corrupt Practices (Municipal Elections) Act itself does not give the corporation a power and impose upon them the duty, if they cannot otherwise pay [CT. OF APP. these expenses, to make a rate in order to pay them, and to make a retrospective rate. It seems to me that sect. 22 at the end of it does direct that they should pay out of a rate, and it seems to me it is a true proposition that wherever the Legislature says a payment is to be made out of a rate, and where it is a necessary implication that that rate must be retrospective, then the order to pay out of the rate carries with it an order to make the rate and to make a retrospective rate. It seems to me the expenses of such an inquiry as this cannot be ascertained, and it cannot be known whether there should be any payment out of a rate at all, until the inquiry is closed; and that therefore when the Legislature says that that is to be paid out of the rate or out of the borough fund, it seems to me that, if there is no borough fund, and no rate existing at the time, it follows, as a necessary consequence, the Legislature intended that a rate should be made either to fill up the borough fund, or for the purpose of paying these expenses. Therefore a power to make a retrospective rate is given by this very statute. Then with regard to the discretion, it was only put upon the ground of hardship which had occurred by the delay of the commissioners in asking for this mandamus. It seems to me that there was no unreasonable delay in sending in the second certificate. The truth is that the necessity of cancelling the first certificate and of issuing the second certificate were the results of the mistake made by Mr. Coleman, the commissioner, in drawing up his record in a way which, if he intended to make Mr. Dawson pay the costs, did not carry out his intention. It was by the natural result of his mistake. Then it does not seem to me that there was any unreasonable delay in discovering that mistake and issuing the second certificate. The delay after that was the delay of the corporation itself. Of course, after the commissioners had sent in their second certificate, they did not at once ask for a mandamus. They left a certain time to the authorities in the borough to find the money, either by making a rate or otherwise. It does not seem to me there had been an unreasonable delay in asking for the mandamus. If there had been an unreasonable delay in asking for the mandamus-if, for instance, they had held over the application for four or five years-I should have thought the High Court in their discretion would have certainly said (and they would have had a discretion) "after so long a delay as this we will not assist you by a mandamus." Then it was said that, whatever the court had done, there was no appeal upon this matter of discretion of granting a mandamus, to this court. I must repeat my view, although it does not, I know, accord with the views or perhaps with the wishes, of many judges, that the Legislature meant in the Judicature Act to give an appeal against orders of the High Court, even though those orders are discretionary orders. Therefore, if there had been an undue delay in asking for this mandamus, and the court had exercised, in our opinion, a wrong discretion, we should have been bound to entertain that appeal. But as I think there was no error at all in the way in which the court did exercise it, that does not come before us. I am of opinion that the judgment of all the judges of the Divisional Court, in all points in which they agree, was right, and that on the only point in which Manisty, J. differed from the Lord Chief Justice and Pollock, |