IV. Coroner.The supreme coroner of England is the chief justice of the Queen's Bench; quere as to the correctness of the expression "realm " (Key, div. " Criminal Law," 2, 2nd edit.; 4 Steph. Com, 855, 2nd edit).

V. Appeals. Questions of law in criminal cases may be submitted to the consideration of the judges at Westminster, by a special case which is to be signed by the judge trying the case, and transmitted to the court above. This was formerly done on trials before judges of assize, but not at sessions, but now a case may be stated from any criminal court (12 Jur. 942). This is by the late act 11 & 12 Vict. c. 78 (see 1 Law Stud. Mag. N. S. 13; see also pp. 16, 17, 102). The decisions of the Court of Appeal are final, and no writ of error can be brought (Reg. v. Faiderman, 4 Cox's Crim. Cas. 359).

VI. Central Criminal Court.—The Central Criminal Court is a court of oyer and terminer and gaol delivery, and accordingly tries prisoners. and others accused of offences similar to those tried at the assizes, including capital felonies, and also including offences committed on the high seas where the prisoner is in Newgate (4 & 5 Will. 4, c. 36; 4 Steph. Com. 362, 2nd edit).

VII. Judges' commissions.-The commissions under which the judges of assize try criminals are those of oyer and terminer, and of gaol delivery. The words of the commission of oyer and terminer are "to inquire, hear, and determine," so that by virtue of this commission they can only proceed upon an indictment found at the same assizes, for they must first inquire by means of the grand jury, before they are empowered to hear and determine by the petit jury, The commission of general gaol delivery enables them to try and deliver every prisoner who shall be in the gaol, when they arrive at the circuit town (2 Bacon's Abr. p. 471, et seq. 7th edit.; 4 Black, Com. 270). The judges' commission of gaol delivery applies only to untried prisoners in the gaol, and not to untried prisoners in houses of correction, If a prisoner be committed to the gaol for trial at the quarter sessions, which are to be held after the assizes, the judge at the assizes will discharge him upon his own recognizance (Reg. v. Aslett, 2 Car. and Kirw. 596). Where a statute creates a new offence, and limits it to be tried before justices of oyer and terminer only, the quarter sessions cannot try it; for though justices of the peace are authorised to hear and determine, they are not what the law intends by justices of oyer and terminer: that commission being a distinct commission (Dickinson's Quart. 130, 4th edit).

VIII. and IX. Quarter sessions.-The jurisdiction of the quarter sessions is exercised over criminal matters of inferior importance not punishable by transportation; the 5 & 6 Vict. c. 38, enumerates

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several offences which are not to be tried at the sessions (see Key, div. Criminal Law," p. 5, 2nd edit.) They have jurisdiction over offences relating to game, highways, in appeals respecting the licensing of alehouses, the maintenance of bastard children, the settlement of the poor, servants' wages and apprentices (4 Steph. Com. 365, 2nd edit.) Indeed, it is said in Dickinson's " Quarter Sessions," by Talfourd (pp. 153, 186, 188, 551, 4th edit.), that in general the sessions have an original jurisdiction to do whatever may be done by two magistrates, except where the statute empowering the latter to act gives an appeal to the sessions (Key, div. “Criminal Law," pp 5, 6, 2nd edit.)

X. Appeal from sessions.-Criminal cases at quarter sessions are reviewed by a special case, as mentioned above, No. V.

XI. Appeal-Conviction.-A special case being stated and signed by the judge, the original case with seventeen copies must be delilivered to the clerk of the Court of Appeal at the Exchequer Chamber, Westminster, at least four days before the day appointed for the sitting of the said court of appeal. The case must briefly state the question or questions of law to be reserved, and such facts only as raise the question or questions submitted (13 Jur. 41). No case is to be heard on any demurrer to the pleadings. Notice of argument must be given to the clerk of the court at least two days previously to the sitting of the court (Reg. Gen. 1 June, 1850; 4 Cox's Crim. Cas. Append. p. xi.) The court has no authority to deal with judgments on demurrer, but it has with objections taken in arrest of judgment (2 Abr. Crim. Law Cas. p. 27; Reg. v. Martin, 13 Jur. 368).

XII. Magistrates.-Magistrates are appointed by the Queen's special commission under the great seal (Key, div. " Criminal Law," p. 9, 2nd edit.; 5 Burn's Just. by D'Oy. and Will. p. 20).

XIII., XIV., and XV. Mandamus.-The writ of mandamus is denominated a prerogative writ, and is in the form of a command as from the Queen herself. It is issued from the Court of Queen's Bench, and is directed to any person, corporation, or inferior court of judicature (as to justices of the peace, see 11 Jur. Dig. 119; 11 & 12 Vict. c. 44, s. 5), within the crown's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of Queen's Bench has previously determined, or at least supposes, to be consonant to right and justice. It lies to compel the admission or restoration of the applicant to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, or the like; and it will be also granted for the production, inspection, or delivery of public books and papers; to compel public companies to summon a jury to assess compensation for lands

taken under their acts (12 Jur. 973); for the surrendering of the regalia of a corporation; to oblige bodies corporate to affix their common seal; or to compel the holding of a court, or to proceed to an election in corporate and other public offices (11 Geo. 1, c. 4, and 7 Will. 4 and 1 Vict. c. 78, s. 24; R. v. Mayor, &c., of London, 1 Term Rep. 146; R. v. Leyland, 3 Mau. and Selw. 184; R. v. Norwich, 1 Barn. and Adol. 310). It also issues to the judges of any inferior court (even the new County Courts, Key, div. "Common Law," p. 27, 3rd edit.; 18 Law Tim. p. 98), commanding them to do justice according to the power of their office, whenever the same is delayed. In fact, the writ, when considered as a prerogative writ, issues from the Queen's Bench, where relief is required in respect of the infringement of some public right or duty, and where no effectual relief can be obtained by an ordinary action at law (Reg. v. Hull and Selby Railw. Co. 6 Qu. Ben. Rep. 70; 3 Steph. Com. 662, 2nd edit.) It is no objection to a writ issuing that an indictment may be preferred (R. v. Severn Railw. Co. 2 Barn. and Ald. 646; 1 Chit. Gen. Practice, 789). A mandamus will not be issued against a ministerial officer to compel him to obey an order of the quarter sessions, except where he is a merely nominal party (exparte Bottom, 13 Jur. 680). There is a writ of mandamus for the examination of witnesses in the colonies, &c., which may issue from any one of the superior courts (Pract. Com. Law, 209, 210). The successful party is entitled to his costs (see Reg. v. Surrey, 19 Law Journ. N.S. M.C. 171; S.C. 14 Jur. 457). The writ of mandamus is obtained from the Queen's Bench on rules nisi and absolute, founded on affidavits, though under particular circumstances a rule absolute is sometimes issued in the first instance. The writ of mandamus requires the party to whom it is directed either to do the thing required or to signify some reason to the contrary (except where a peremptory mandamus is issued in the first instance). This is done by what is called a return to the writ. If the person to whom the writ is directed makes no return, he is punishable for his contempt by attachment. If, on the other hand, he makes a return, and it be found either insufficient in law, or false in fact, there then issues in the second place a peremptory mandamus to do the thing absolutely to which no other return will be admitted (R. v. Ledgard, 1 Qu. Ben. Rep. 616), but a certificate of perfect obedience and due execution of the writ (see 1 Abr. Crim. Law Cas. 20). In all cases of mandamus, the return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur; and the same proceedings may be had as if an action on the case had been brought for making a false return, and after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution, which

latter, in case of an action, is effected by a writ of restitution (11 Coke's Rep. 79). In addition to which, it is enacted by 6 & 7 Vict. c. 67, that the prosecutor objecting to the validity of the return, shall do so by way of demurrer to the same, in like manner as in personal actions, and thereupon the writ, return, and demurrer shall be entered on record, and the court shall adjudge either that the return is valid in law, or that it is not valid in law, or that the writ of mandamus itself is not valid in law; and if it adjudge that the writ is valid, but the return invalid, shall award a peremptory mandamus, and shall also, in any event, award costs to be paid to the successful party.

DEBATING SOCIETIES.

BIRMINGHAM LAW STUDENTS' SOCIETY.

January 18, 1854.-Moot Point, No. 143.-Can an action for use and occupation be maintained against a lessee of premises who has not entered? (Gregory v. Badcock, 2 Smith, 18; Pinero v. Judson, 6 Bing. 206, L. J. 1830, C. P. 19; Smith v. Twoart, 2 M. and G. 841; Izon v. Gorton, 7 Scott, 537; Atkins v. Humphrey, L. J. 1846, C. P. 120; Low v. Ross, L. J. 1850, Ex. 318; Gibson v. Kirk, 10 L. J. (N.S.) Q. B. 297; Edge v. Trafford, 9 L. J. 1831, Ex. 101; Jones v. Reynolds, 7 C. and P. 335; Towne v. D. Hemrich, 22 L. J. C. P. 219; Chitty on Cont. (Ed. 1853) Tit. Use and Occupation; Addison on Cont. vol. i., p. 403).

The action, either of debt or assumpsit, for use and occupation, has long been a favourite and convenient remedy for the recovery of rent due upon demises not under seal, i.e., leases or tenancies coming within the operation of the second section of the Statute of Frauds. It is a more convenient form of action than, and has almost entirely superseded the old form of debt for rent; in the latter case it was necessary to set out the rent reserved, the period when it became due, and generally the terms of the tenancy, and in certain cases to state what powers of leasing the landlord possessed; whilst in the former case the tenant is merely charged in respect of his occupation, it having been repeatedly held unnecessary to set forth any demise of the premises, or for what term, or at what rent, they were demised, or how long the defendant had occupied, or at what period, or for what space of time, the sum claimed for occupation became due (King v. Fraser, 6 East. 354); all that need be stated is, "that the defendant is indebted to the plaintiff for use and occupation of certain premises of the plaintiff, at the request of the

defendant by him occupied for a long time" (Comyn, Land. and Ten. p. 431.)

The question, as suggested by the moot point, has frequently arisen whether this action will lie before entry by the tenant upon upon the premises. It appears to be now clearly established that it will not. It was argued, on the other side, that the statute 11 Geo. 2, c. 19 is sufficiently comprehensive in its terms to enable a landlord, who has verbally agreed to let to a tenant who has agreed to take, to recover, although the tenant may never have taken possession either actually or constructively. The object of this statute, however, was simply to remove the difficulties that, previously to its passing, existed in bringing the action of assumpsit for use and occupation. Before the statute was passed, it was held that debt, and not assumpsit, was the proper form of action for use and occupation, inasmuch as rent savours of the realty, and assumpsit is merely a personal remedy; and that if, in an action of assumpsit, the defendant produced upon the trial a written agreement, showing the terms of the tenancy, the plaintiff could not recover, as it was an agreement concerning an interest in land, for which assumpsit would not lie. The statute enacts that "it shall be lawful for the landlord, or landlords, when the agreement is not by deed, to recover a reasonable satisfaction for the lands, &c., held or occupied by the defendant, or defendants, in an action on the case for use and occupation, of what was so held or enjoyed; and if, in evidence on the trial of such action, any parole demise, or any agreement (not being by deed), whereon a certain rent was reserved, shall appear, the plaintiff in such action shall not, therefore, be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." It was contended that the words "held or occupied" were sufficient to establish a liability on the part of a person agreeing to occupy, although he had never entered upon the premises; and in support of this view the first four cases above cited were relied upon. Upon examination, however, it will be seen that those cases do not establish that position, but are decided upon. and have reference only to the peculiar state of circumstances in each Gregory v. Badcock decides that assumpsit will lie against A., who, having agreed to rent lands, had in fact never occupied himself, but had suffered B. to enter and occupy them as his tenant. In Pinero v. Judson, it is decided that actual occupation during the whole of the time is not necessary; but it is there said, by Burroughs, J., that "actual occupation is not necessary; legal possession is sufficient, and the plaintiff had possession enough to sue for trespass," so that it must be presumed that the tenant had entered. In Smith v. Twoart, it appears that, although the defendant had never actually occupied, he had taken possession by his agent. The dictum

case.