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warrant; and it is clear that the magistrate in this case has not complied with that stipulation. [Bayley, J. The warrant pursues the language of the act of parliament: is not that sufficient?] It is submitted that it is not; and that the act in its spirit means to require something more than the mere recital of its own words. It clearly means that the evidence adduced against the party committed should be set out in the warrant, or, at least, that the warrant should state that there was evidence of a particular nature adduced against him, that he heard that evidence, and that opportunity was given him of refuting or explaining it. This seems apparent from the nature and language of the other three sections of the act of parliament. The first section provides for the safe custody of persons acquitted of felony on the ground of insanity. The second provides for the safe custody of persons arraigned for felony, and relieved from any trial on the ground of insanity. And the fourth provides for the safe custody of persons appearing to be insane, and endeavouring to gain admittance to his Majesty. In all these it is specially provided that the insanity of the party shall appear by the finding of a jury, upon legal and satisfactory evidence produced before them. The third section, which provides for the safe custody of persons, being dangerous persons, and suspected to be insane, does not, indeed, require the intervention of a jury; but it does require that the person shall be discovered and apprehended under circumstances that denote a derangement of mind, and it empowers the magistrate to commit him as a dangerous person, suspected to be insane," the cause of his commitment being plainly expressed in the warrant:" so that it evidently places the magistrate in the place, and requires him to exercise the functions of a jury; that is, to receive legal and satisfactory evidence in support of the charge made, and to make known by his warrant, as by a verdict, that he has received such evidence, and that the commitment is founded upon and justified by it. Nothing of this sort appears by the warrant in this case, and

1828.

therefore it is submitted that the commitment cannot be justified.

Ex parte GOURLAY.

The Court, after consultation, granted a rule to shew cause why Mr. Gourlay should not be bailed, stating that they thought that a more prudent course than granting the writ in the first instance, which would have the effeet of bringing into Court a person whose sanity was questioned. On a subsequent day

Campbell again mentioned the case, and having stated that no gentleroan had received instructions to shew cause against the rule, moved that it might be made absolute.

The Court said, that as they had not the assistance of any gentleman at the bar to direct their attention to the points that might be urged against the motion, they must look into the authorities upon the subject, and consider the question on both sides, for themselves : at the same time inquiring of Campbell if there were any cases bearing upon the question to which he wished to direct their attention.

Campbell. There is no case directly in point; but there are some dicta and cases which are analogous to the present, and which seem to support the argument already advanced. It is quite clear that at common law a warrant of commitment, not fully setting out the cause of commitment, would be bad; 2 Hale's P. C. 122; 2 Hawkins's P. C. c. 16, s. 16; in the latter of which it is said that every warrant of commitment " ought to set forth the crime alleged against the party with convenient certainty, otherwise the Court before whom he is removed by habeas corpus ought to discharge or bail him. And this doth not only hold where no cause at all is expressed in the commitment, but also where it is so loosely set forth, that the Court cannot adjudge whether it were a reasonable ground of imprisonment.” A commitment in execution by a ma

gistrate must state that the party was convicted; setting forth that he was charged on oath with the offence is insufficient; Rex v. Cooper (a). All general warrants of commitment are illegal. Money v. Leach (6). In commitments under acts of parliament, the principle is the same. А commitment under a vagrant act is a commitment in execution, and is bad if it merely state the charge, and order the party to be committed for safe custody, without convicting him. Rex v. Rhodes (c). A commitment in execution of a rogue and vagabond, under 25 Geo. 3, c. 88, must state that the defendant was apprehended with the implements of housebreaking upon him, at the time of such apprehension. Rer v. Brown(d). And a commitment of a bankrupt by commissioners of bankrupt, for not satisfactorily answering on his examination is bad, if the warrant does not shew clearly what answers were unsatisfactory (e). Upon these authorities it is clear that a warrant of commitment must shew the cause of commitment clearly and fully; which, it is submitted, the warrant in this case has not done, and therefore cannot be supported (f).

1828.

Ex parte
GOURLAY.

(a) 6 T. R. 509.
(6) 3 Burr. 1742.
(c) 4 T. R. 220.
(d) 8 T. R. 26.

(e) See Ex parte Bugster, ante, 572; Doswell v. Impey, 2 D. & R. 350; 1 B. & C. 163.

($) Mr. Puley, in his Treatise on Convictions, 2d ed. by Dowling, 251, says “every warrant of commitment must specify the cause ; and where it is in execution (which it is in all cases of commitment after conviction), it must allege the party to have been convicted of the offence. Rer v. Rhodes, 4 T.R. 220; 2 Inst. 52; 2. Hale, 122. That the rule laid down in that case (Rex v. Rhodes) is general, and

not confined to commitments on
the particular act there mentioned,
is established by the following:
Rex v. Cooper, 6 T. R. 509. It is
moreover necessary that the offence
for which the commitment is made
be described with certainty. Rex
v. Everett, Cald. Cases, 26. Rer
v. North, 3 D. & R. M. C. 119;
Rer v. Pain, 3 D. & R. M.C. 517;
Rer v. Sadler, 2 Chit. Rep. 519."
And Mr. Chitty, in his Treatise on
the Criminal Laws, 1st ed. 40, says
“ It does not seem to be absolutely
necessary to set out the charge, or
offence, or evidence, in a warrant
to apprehend, though it is necessary
in the commitment."

1828.

Ex parte

Lord Tenterden, C.J. (after conferring with the other

Judges). — We have considered this case, and are all of Gourlay. opinion that we ought not to grant the writ of habeas

corpus prayed for. The object of the clause of the statute in question was to prevent the commission of crimes by insane persons, and to afford due protection to the public, by providing for the safe custody of those, who, by their conduct, may be reasonably suspected to be insane, and therefore dangerous persons. It has been urged, that in order to justify the commitment of a person under this clause, the warrant ought not only to express generally the cause of commitment, but to state in detail all the circumstances under which the party was apprehended, and all the evidence adduced against him before the magistrate; and that the warrant in this case, merely pursuing the words of the statute, does not “plainly express the cause of commitment,” within the true meaning of the statute. We think it would be going too far to adopt that argument. There might be cases in which, from their very nature, it would be impossible for the magistrate to ascertain the particular circumstances with such accuracy, and yet where it would be very desirable for the interest of the public that the act of parliament sliould be put in force. We think, therefore, that it would be too much to require the same certainty and particularity in a warrant of commitment under this statute, as are necessary in cases of commitment at the common law, and under other acts of parliament; and that this warrant, pursuing the words of the statute, and stating positively and affirmatively, as it does, that it appeared to the magistrate that Mr. Gourlay was a dangerous person, suspected to be insane, is sufficient. This rule, therefore, must be discharged.

Rule discharged.

1828.

mayor and

mayor, alder

The KING V. HUGHES. This was a rule calling on the defendant to shew cause, By a new

charter, an old why an information in the nature of quo wurrunto should

corporation, not be filed against him, for usurping the office of mayor consisting of a of the borough of Stafford.

burgesses, was The affidavits upon which the rule was granted stated made to con

sist of a substantially as follows: By a charter of 12 James 1, it was granted that the men, chief

burgesses, and borough of Stafford should be a free borough, and that the burgesses; the

three former to bailiffs and burgesses should from thenceforth be a body constitute the corporate, by the name of the mayor anď burgesses of the common coun

cil. The comborough of Stafford; that there should be one mayor, ten mon council aldermen, and ten chief burgesses, which should be called and a majority

of the burthe common council of the borough: and that the rule and gesses expressgovernment of the borough should be vested in them. This ed their assent

to the new charter was accepted and acted upon by the corporation. charter, some

by voting at an The mayor of Stafford is the returning officer at elections election held of members of Parliament for Stafford. The defendant under it, and

others by a was elected mayor on the 24th October, 1825, and held the written declaoffice for one whole year. On the 230 October, 1826, he ration:

Held, that this was re-elected, and held the office for one other whole year. was a sufficient On the 9th and 10th June, 1826, he presided as returning the new char

acceptance of officer at an election of members of Parliament for the ter:and, quære,

whether a maborough. A quo warranto information was filed against jority of the him for usurping the office of mayor under the election of burgesses need

have concurthe 23d October, 1826, whereupon judgment of ouster was red in such pronounced in Easter Term, 1827. In the course of the

acceptance. year 1826, six aldermen and five capital burgesses presented a petition, signed by themselves only, to the king, stating, that they were the only remaining aldermen and capital burgesses, and were not sufficient in number to constitute a legal meeting of the corporation for the transaction of business and the government of the borough, and praying for a new charter, investing them and the burgesses of the borough with the same powers and privileges as they had

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