[QUEEN'S BENCH DIVISION]

THE QUEEN v. THE LORDS COMMISSIONERS OF THE TREASURY.

Mandamus - Servants of the Crown - Costs of Criminal Prosecutions - Annual Appropriation Act, 1871 (34 & 35 Vict. c. 89), s. 3, sch. B., part. 7, class 3 - 29 & 30 Vict. c. 39, s. 14.

By 29 & 30 Vict. c. 39, s. 14, when any sum of money shall have been granted to Her Majesty by Act of Parliament to defray expenses for any specified public services, it shall be lawful for Her Majesty from time to time, by order under the sign-manual, countersigned by the Treasury, to authorize and require the Treasury to issue out of the credits granted to them the sums which may be required to defray such expenses not exceeding the amount of the sums granted.

By the Annual Appropriation Acts, out of the sums granted to Her Majesty for the service of each year, a certain sum is applied to defray the charges "for prosecutions at assizes and quarter sessions, in England, formerly paid out of county rates."

In the half year ending the 31st of December, 1870, certain prosecutions took place at the assizes and quarter sessions of the county of L., and the costs were taxed by the proper officers under the orders of the respective Courts, and the treasurer of the county paid the bills, and returned the bills, with the usual vouchers, to the Treasury. The Lords of the Treasury had appointed certain officers called the Examiners of Criminal Law Accounts, and these officers disallowed or reduced in amount fifty-one of the items in the bills returned; and a rule nisi was then obtained for a mandamus to the Lords of the Treasury, commanding them to issue a Treasury minute authorizing the paymaster of civil contingencies to pay to the treasurer of the county of L. the sums disallowed:-

Held, that a mandamus would not lie, inasmuch as the Lords of the Treasury received the money, which was granted to Her Majesty, as servants of the Crown,

and no duty was imposed upon them as between them and the persons to whom the money was payable.

Held, also, that the course which the Lords of the Treasury had pursued was erroneous, as they had no authority whatever to have the bills retaxed, and ought to have paid over to the treasurer of the county the full sum which he had expended as costs of prosecutions.

RULE calling upon the Lords of the Treasury to shew cause why a writ of mandamus should not issue commanding them to issue a Treasury minute or authority to the paymaster of the civil contingencies, or other proper officer, directing and authorizing him to pay, or cause to be paid, to the treasurer of the county palatine of Lancaster certain sums specified in a schedule annexed.

It appeared, from the affidavits upon which the rule was obtained, that during the half year ending the 31st of December, 1870, certain prosecutions had taken place at the assizes and quarter sessions of the said county, and also certain adjudications under the Criminal Justice and Juvenile Offenders Acts. The bills of costs had been taxed by the proper officers under the orders of the respective Courts. The treasurer of the county had paid the bills, and had returned the bills, with the usual vouchers, to the clerk of the peace, who had duly forwarded them to the Treasury. The Lords of the Treasury had appointed certain officers called the Examiners of Criminal Law Accounts(1), and these officers had disallowed or reduced in amount fifty-one of the items in the bills returned, one or two of the items disallowed having been allowed by the express order of the presiding judge; others were items of costs expressly allowed by statute; and it was for the purpose of obtaining payment of the amount (100l.) of those fifty-one items that the rule was obtained.

It was further sworn that it was believed that the sum appropriated to the payment of these costs under the Appropriation Act, 1871 (34 & 35 Vict. c. 89, sch. B., part 7), was still unexpended.(2)

(1) On the argument the Solicitor General stated that these officers had been first appointed in 1857.

(2) The Appropriation Act, 1871 (34 & 35 Vict. c. 89), s. 3, enacts that all sums granted by this Act and the Acts in sched. A. out of the Consolidated Fund towards making good the supply granted to Her Majesty, are appropriated as from the passing of the several Acts for the purposes and services expressed in sch. B.

Sch. B. Part 7, Civil Services, class 3: "Schedules of sums granted to defray

It was further stated on affidavit that before the year 1836, under 7 Geo. 4, c. 64, the costs of criminal prosecutions were paid by the treasurer of the county, and charged upon the county. In 1836, in consequence of a resolution of the House of Commons that half of the costs of prosecution should be repaid to the counties out of the Consolidated Fund, half the costs in each year were repaid to the county by the Treasury.

In 1847, and in every subsequent year, the House of Commons, by resolution in committee of supply, have voted a certain sum to the Queen to defray the charge for prosecutions at assizes and quarter sessions, formerly paid out of county rates, and the Appropriation Act of each year had appropriated a certain sum for the purpose.

Jan. 27. Jessel, S.G., Brown, Q.C., and Archibald, shewed cause. Mandamus will not lie in this case. Where the legislature has constituted the Lords of the Treasury agents to do a particular act, in that case a mandamus might lie against them as mere individuals

the charges of the several civil services herein particularly mentioned, which will arise in course of payment during the year ending on the 31st of March, 1872, viz. ... No. 2: For prosecutions at assizes and quarter sessions in England, formerly paid out of county rates, including adjudications under the Criminal Justice and the Juvenile Offenders Acts, sheriffs' expenses, salaries to clerks of assize and other officers, and for compensation to clerks of the peace under the Criminal Justice Acts, and other expenses of the same class, 201,173l."

By 29 & 30 Vict. c. 39, s. 14, when any sum or sums of money shall have been granted to Her Majesty by a resolution of the House of Commons or by an Act of Parliament, to defray expenses for any specified public services, it shall be lawful for Her Majesty from time to time, by her royal sign-manual, countersigned by the Treasury, to authorize and require the Treasury to issue out of the credits to be granted to them on the exchequer accounts as hereinafter provided the sums which may be required from time to time to defray such expenses, not exceeding the amount of the sums so voted or granted.

By 7 Geo. 4, c. 64, ss. 22, 23, 24, 26, costs of criminal prosecutions in general were thrown on the county rates, and leave was given to justices of each county in quarter sessions, subject to approval of the judge of assize, to fix a scale of costs, the costs to be taxed by the clerk of the peace and clerk of assize respectively. This power was repealed by 14 & 15 Vict. c. 55, s. 4 and by ss. 5 & 6 the power of fixing the scale was transferred to the Secretary of State, the costs still being taxed by the proper officers as before.

designated to do that act; but in the present case, the money is in the hands of the Crown or of the Lords of the Treasury as ministers of the Crown; in no case can the Crown be sued even by writ of right. If the Court granted a mandamus they would be interfering with the distribution of public money; for the applicants do not shew that the money is in the hands of the Lords of the Treasury to be dealt with in a particular manner. The money is first voted by resolution of the House of Commons; under the Appropriation Act, 1871 (34 & 35 Vict. c. 89), s. 3, all sums granted by that Act are appropriated for the purposes and services expressed in schedule B. The effect of the annual Appropriation Act is not to give any third person a right to the money; but it is to prevent the Crown from appropriating money given for one purpose to another. The money is not a charge on the Consolidated Fund, although it comes out of that fund; it is voted annually. The effect of the schedule to the Act is not that the sum named shall be appropriated to the purposes mentioned, but that the Treasury shall not apply a sum beyond that which is mentioned to those purposes; it is not an enabling but a restrictive Act; and the meaning of the word "appropriated" is appropriated as between the Crown and the House of Commons; there is no obligation on the Treasury to pay any sums; but they may pay them. These sums are given to the Crown, and there is no legal obligation on the Crown which this Court can enforce. Further, it is discretionary with the Treasury what amount shall be expended. This shews that the duty imposed by the Act is a constitutional duty, and not a mere ministerial duty. The cases in which a mandamus has been granted against the Lords of the Treasury are distinguishable. In Rex v. Lords of the Treasury (1), the Court proceeded on the ground that the Lords of the Treasury had money in their hands, and that they had appropriated it to a particular purpose. The Act (4 & 5 Wm. 4, c. 15, s. 13), on which the question arose, has been repealed by 29 & 30 Vict. c. 39, s. 46, and the language of the Act was very different from the present Act. That case is explained in Re Hand (2), where the Court refused to grant a mandamus. In Re Baron de Bode (3), Coleridge, J., decided that a mandamus would not lie to the Lords of the Treasury as mere public depositaries

(1) 4 A. & E. 286.

(2) 4 A. & E. 984.

(3) 6 Dowl. 776.

commanding the payment by them of a sum of money; and that learned judge being one of the judges who decided the previous case, explains the grounds of the decision, and cites several cases to shew that in general a mandamus will not be granted. Thus a mandamus has been refused on the ground that the applicant had no vested right to the money in the hands of the Treasury: Ex parts Ricketts (1); Rex v. Lords of the Treasury. (2) In The Queen Dowager's Case (3), the rule for a mandamus was granted with the consent of the Crown. All the cases are commented on in Ex parte Napier. (4) In Ellis v. Grey (5), Oldham v. Lords of the Treasury is cited (6), in which it was decided that the jurisdiction of the Court of Exchequer extends only to the receiving the moneys which come into the Treasury while they are in transitu; but after Parliament has disposed of them and they have reached their destination, the jurisdiction of the Barons ceases. That case has an indirect bearing on the question. [They also cited Lord Somers' argument in The Bankers' Case (7); the judgment of Dallas, C.J., in Gidley v. Lord Palmerston (8); Reg. v. Commissioners of Woods and Forests (9); and the following American authorities: Brashear v. Mason (10); Decatur v. Paulding (11).]

Jan. 29. Manisty Q.C., and Gorst, in support of the rule. As no affidavits have been filed on shewing cause, it must be taken that the Lords of the Treasury have funds still in their hands applicable to these disputed items.

[COCKBURN, C.J. The rule is not resisted on the ground of want of funds; nor have we any doubt that the whole of the costs as taxed ought to be paid. The point we wish argued is whether we have any jurisdiction to interfere by mandamus.]

Rex v. Lords of the Treasury (2) is directly in point, that a mandamus will lie. It is said that s. 13 of 4 & 5 Wm. 4, c. 15, is repealed; but the Act which repealed it, 29 & 30 Vict. c. 39, has a similar section (s. 14). Sections 13 & 15 also shew how the

(1) 4 A. & E. 999.

(2) 4 A. & E. 286.

(3) 16 Q. B. 357; 20 L.J. (Q.B.) 305.

(4) 18 Q. B. at p. 701; 21 L.J. (Q.B.) 332.

(5) 6 Sim. at p. 220.

(6) Not elsewhere reported.

(7) 14 How. St. Tr. 67.

(8) 3 B. & B. 275, at p. 285.

(9) 15 Q. B. 761; 19 L.J. (Q.B.) 497.

(10) 6 Howard, 92.

(11) 14 Peters, 497.

money gets into the hands of the Treasury; and when they have it appropriated to a specific purpose, they are bound to apply it to that purpose; and this duty will be enforced by mandamus. In The Queen Dowager's Case (1), Lord Campbell, C.J., expressed a clear opinion that a mandamus would lie, saying he would not grant the writ unless he thought so.

[BLACKBURN, J. Yes; under the repealed statute.]

The existing statute (29 & 30 Vict. c. 15, ss. 13-15) contains similar enactments, imposing the duty on the Treasury to pay the different sums to the persons and for the objects to which they are appropriated by the Annual Appropriation Acts. The Court being of opinion that the Appropriation Act leaves no discretion in the Lords of the Treasury, but that the whole taxed costs, on the production of proper vouchers, ought to be repaid to the county, it follows that a mandamus will lie commanding the Lords of the Treasury to take the proper steps to pay the balance by issuing the necessary minute: inasmuch as they admit, by filing no affidavits in reply, that all the preliminaries have been complied with, and that they hold the money applicable to the purpose.

COCKBURN, C.J. This is a case in which, if we had jurisdiction to issue a writ of mandamus, I should have no hesitation in granting it. Nothing can be more anomalous or unsatisfactory than the present system with regard to the taxation of these bills of costs. Everyone will agree that the expenses consequent upon prosecuting offenders ought to be defrayed out of the public purse. It is essential to the effective administration of criminal justice that the expenses of prosecutions should not fall upon those who come forward to complain of injuries which they as individuals have received, and which are injuries affecting the public as well as the private individuals who suffer; because experience tells us that persons are reluctant to prosecute and to bring offenders to justice if the expenses of such prosecution are to fall upon them. The old system was that the costs of prosecutions should be defrayed out of the rates of counties or other districts having criminal jurisdiction, the costs in such cases being taxed by proper officers appointed for the purpose. Many years ago, as far back as

(1) 16 Q. B. at p. 359.

1836, that system was to a certain extent altered, and the costs of prosecutions, heretofore cast upon the public funds of counties, were in part transferred to the public funds of the country; and by a still later arrangement the whole of such costs of prosecutions were thrown upon the public revenue. The system of taxation, however, which had been found up to that time to work satisfactorily, was still continued. The same officers, who had taxed at the assizes or quarter sessions respectively, continued to tax as before. The whole expense had to be defrayed, in the first instance, out of the county or borough rates; but by the altered system the amount so paid was to be refunded to the treasurers of the county or borough fund.

Now, the Lords Commissioners of the Treasury have thought proper to introduce this addition, or, as it appears to me, excrescence upon that previously existing system; they have taken upon themselves, it is now said, for a period of fourteen years, to review the taxation of the proper taxing officers. I am very far from saying that the taxation of the costs of prosecutions ought not to be rigorously looked after and investigated, because it would be a monstrous abuse if prosecutors were allowed, by the laxity of the taxing officers, to extort from the public purse moneys which they have not properly or legitimately expended. But it is a very different thing to say, - instead of taxing on the spot where all the circumstances attending the prosecutions are known, where the Court, who may be the judge of assize, or the court of quarter sessions, can be appealed to in case of dispute, - that after the matter has been properly investigated by the officer whose lawful charge and duty it is to investigate such matters and tax such costs, two gentlemen sitting in London, by the sole authority of the Lords of the Treasury, shall review that taxation and strike off whatever they may, in the exercise of their discretion, think fit to disallow. I am utterly at a loss to conceive by what supposed authority it is that these officers are required and empowered to tax again and disallow items in the bills already taxed by the proper officers. The monstrous inconvenience of such a course is, I think, palpable. These gentlemen cannot have the same means of forming a proper judgment as those who tax upon the spot, and who have an opportunity of making themselves acquainted, and

are acquainted, with all the circumstances connected with each individual prosecution.

It is another thing, however, whether we have jurisdiction to interfere in such a matter. And it does not follow that because there is no remedy for the county or borough who have paid all the costs as originally taxed, except that of applying by petition to the Crown, or by petition to Parliament, it is not because there is no other remedy but that which may be a fruitless and abortive one, that this Court has jurisdiction to issue a writ of mandamus. I take it, with reference to that jurisdiction, we must start with this unquestionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this Court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction.

Therefore, the question comes to be, whether the Lords Commissioners of the Treasury, when this money gets into their hands, are bound to apply it as the servants of the Crown, or as the servants of parliament who vote the money. Independently of authority, I think there is no doubt whatever that we must look upon them as servants of the Crown. The money is voted by parliament as a supply to the Crown; ways and means are found with a view of furnishing the necessary funds for making that supply effectual. It is true that the money is appropriated to a specific purpose, and it is true that the money can only be appropriated to the purpose so specified in the Appropriation Acts. It is also true, as pointed out by Mr. Gorst, that the particular mode of obtaining the money is also prescribed by statute. It is not a supply to be at once handed over to the Crown, but it is a supply to be got at by a certain specified process, and it is true that the Crown must issue warrants or orders under the sign manual to enable the Lords Commissioners of the Treasury to have this money paid to them. But, nevertheless, when the money is paid, I can entertain no doubt that it is paid to the Lords of the Treasury, as servants of the Crown; and though I quite agree

that according to the Appropriation Act they were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty, which makes it incumbent upon them to do what I cannot hesitate to say they ought to have done, except as servants of the Crown: because in that character they have received this money, and in no other. Although the Lords of the Treasury have made a very great mistake, and although the present state of things is of the most anomalous and most unsatisfactory character, I regret to say, according to the true principle upon which this prerogative jurisdiction ever has been and ought to be exercised, I do not see that this Court has authority to issue this writ of mandamus. We have been pressed with the authority of the case of Rex v. Lords of the Treasury (1); but I think that is a case of very doubtful authority. It rests, after all, as is to be found in a subsequent dictum in this court, upon a particular clause in the then existing statute, 4 & 5 Wm. 4, c. 15, s. 13, and I doubt very much whether the section of that statute upon which the decision is supposed to rest would really support it; but be that as it may, that statute has been repealed.

Then with regard to the statute (29 & 30 Vict. c. 39, s. 14), to which Mr. Gorst ingeniously called our attention with a view of fortifying the case for the applicants, I cannot see anything in that statute which imposes a duty at law upon the Lords Commissioners of the Treasury. It may be a duty that they owe to the Crown, or it may be a duty that they owe to parliament to apply this money in discharge of the amounts which the counties are compelled without any choice on their part to pay; but it is a duty to the Queen or a duty to parliament, and it is not a duty at law which by any legal proceeding or by the exercise of the prerogative jurisdiction of this Court we can enforce.

Therefore, although I have the deepest regret in coming to the conclusion I do, I think we must discharge the rule.

I may add, if the Treasury are dissatisfied with the taxation which takes place immediately after the trial of the prosecutions, they should do as they have done before, send down an officer to represent them, or take steps for having more efficient

(1) 4 A. & E. 286.

officers if they are dissatisfied with the efficiency of the present officers.

The opinion we entertain is, that this system of reviewing the taxation of the properly appointed officers whose legitimate business it is to tax, and upon which taxation the counties are compelled to pay, is, to say the least, a very anomalous proceeding.

BLACKBURN, J. I have come to the same conclusion. I think if we had power to issue a mandamus to compel the payment of this money, it would be right to order the Lords Commissioners of the Treasury to pay it; but in my opinion we have no such power, though I think the Treasury have acted completely under a mistake. I must observe in saying this, that there is not the slightest intention on my part to question the exclusive prerogative of the House of Commons in voting money. As long as the thing remains in fieri a resolution in the House could not, I believe, be brought properly before this Court. But when the money has been voted, and the money has been granted, and an Appropriation Act has been passed, then it has become an Act of the legislature, and we must construe it when it comes before us as we should do any other Act. The Appropriation Act of each year regulates, so far as it goes, what is to be done with the money; and we find it appropriates the moneys already voted which have been granted to the Queen. And amongst other things it appropriates a portion of it to the payment of the cost of "prosecutions, hitherto paid out of county rates." The first question is, what does that mean? Though I listened very attentively to all that the Solicitor General said upon that part of the case, I could find nothing whatever to shake my opinion which I very early entertained, and still entertain. Formerly the costs of prosecutions, having been duly taxed, were payable out of the county rates, and when once they were duly taxed by the proper officers, county rates must pay them. That system of taxation may have been too liberal or too stringent. Upon that I say nothing, but the mode in which the costs were to be taxed was fixed by law; and when they have been duly taxed and allowed, the county rates must pay. Now I cannot read the Appropriation Clause in any other sense than that it directed the sum

mentioned to be appropriated for the purpose of relieving the counties from the whole of those costs of prosecutions, which heretofore had been paid out of the county rates, which they are still bound to pay, but which formerly they had been bound to pay without being entitled to be recouped. I connot doubt at all that the Appropriation Act does not simply mean "this sum of money shall not be applied to any other purpose," but that it also means "this sum shall be applied to that purpose," and consequently I cannot doubt that the effect of the Appropriation Act was to grant a sum of money to Her Majesty, which sum is to be applied to the payment of those costs which heretofore the counties have been obliged to pay, and from which the country at large has taken upon itself to relieve the county rates. What seems to have been done in fact is this: though the particular bill of costs is duly incurred according to the existing law, though those costs have been duly ordered by the existing law to be paid, although the proper taxing officers have duly taxed those costs, and consequently the county is bound to pay them and cannot help themselves, the Treasury seem to have assumed that they may appoint examiners, and on the report of those examiners they may do what amounts to this, as it seems to me, advise Her Majesty not to appropriate the money to the specific purpose for which the House of Commons has voted that particular sum; that is to say, on the report of the examiners they advise Her Majesty not to repay the full amount, but to keep back some portion of it. This seems to me to amount to advice given to the Queen, when she has received money which by Act of Parliament has been appropriated for a particular purpose, to disregard that Act of Parliament and not to appropriate the money in the way in which according to the statute they are bound to do, and it seems to me to have been very bad advice.

Passing from that, the question remains whether there is any statutable obligation cast upon the Lords of the Treasury to do what we are asked to compel them to do by mandamus, namely, to issue a minute to pay that money: because it seems to me clear that we ought to grant a mandamus if there is such a statutory obligation, particularly where the application is made on behalf of persons who have a direct interest in the matter, viz., the treasurer of the county on behalf of the county which ought by

the statute to have been indemnified for the costs which they have been obliged to pay. But it is here, I think, that the case fails. The general principle, not merely applicable to mandamus but running through all the law, is, that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as servant. To take a familiar instance, if a mandamus were applied for against the secretary of a railway company to do something, it would not be granted, merely because the railway company his masters had an obligation to perform the duty, and it makes no difference that the master, or the principal, or the sovereign is only suable by petition of right, or perhaps not at all. There is the familiar case of the surveyor of highways who is the servant of the inhabitants of the parish; the inhabitants of the parish cannot be sued, because they are not a body corporate, but the surveyor of the highways is not to be responsible for the non-performance of their duties, or the negligence of their servants, though he is the person who acts for them. The same principle applies to mandamus, if the duty is by statute, though perhaps "duty" is hardly the word to employ with regard to Her Majesty; where the intention of the legislature shews that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus merely because the sovereign happens to be the principal.

There are many cases applicable to this, beginning with the Post Office cases in Lord Holt's time, where Lord Holt differed from the rest of the Court, and it was held that the Postmaster General was not suable as a carrier for non-delivery of letters, because it was in effect the Crown; the Crown could not be sued in such a matter(1); and similarly where through the clumsiness of a man steering a ship of war, they negligently ran down a merchantman, it was held the owners could not sue the Queen, nor the captain of the man-of-war.

That being so, the question comes to be this, whether it can be shewn (common law out of the question) that in any way a duty is cast upon the Lords of the Treasury towards third persons,

(1) Quære, Lane v. Cotton, 1 Salk. 17; Cas. temp. Holt, 582.

not merely a duty to the Queen to advise, but a duty to third persons to issue this minute which it is the object of the mandamus to make them issue. I certainly cannot find any such duty from the case referred to of Rex v. The Lords of the Treasury. (1) It is true the Court granted the rule in that case, but it was expected to be more fully argued upon the return, and taken to error. But it appears from what Lord Campbell said, who was then Attorney General, he advised the officers of the Crown to pay the money, but to take care that the effect of the Act was altered next year; and in the case of the Queen Dowager (2), Lord Campbell said that s. 13 of 4 & 5 Wm. 4, c. 15, cast a specific duty upon the Lords of the Treasury to grant a warrant, or to execute a warrant whenever there was a sum filed as a charge upon the consolidated fund. That was Lord Campbell's view of that statute, and upon that view of the statute it was said they had jurisdiction in the Queen Dowager's Case.(2) It was not much argued, nor is it necessary to inquire whether that was mistaken or not, but it does seem doubtful, when one comes to look at the words, whether they were not misunderstood; however, that statute is repealed, and the section which was supposed to cast the duty upon the Lords of the Treasury no longer exists. Upon that Mr. Gorst argued with great ingenuity, that the effect of the Act (29 & 30 Vict. c. 39) was in fact to cast a duty upon the Lords of the Treasury; but I am unable to see that the sections amount to anything more than this, that Her Majesty, to whom the money was granted in law, is to administer it according to the advice of her responsible advisers, and she must do it through the hands of her servants. I have found nothing, looking at the sections adverted to, to make the Lords of the Treasury (who have the money in their hands brought from the Bank of England until it is paid to the recipients) in any way more amenable to third persons than in the case I put during the argument of a private person's servant who has got money to pay weekly bills or other matters, or power to draw upon a bank for that purpose, in which case the servant could not be considered liable to third persons.

It seems to me that the obligation, such as it is, is upon Her Majesty, to be discharged through her servants, and you cannot

(1) 4 A. & E. 286.

(2) 16 Q. B. 357.

proceed therefore against the servants. For that reason only, which, however, I think is quite sufficient, I think there should not be a rule for a mandamus.

MELLOR, J. I am of the same opinion. I think the changes, to which our attention has been called, in the various Acts of Parliament relating to these matters, do not shew any change in the relation of the Ministers of the Crown towards the Crown. But all that the different Acts have done is to alter the machinery by which the grant, when made to the Crown, is to be distributed in the public service; and therefore I am clearly of opinion that we cannot issue this mandamus commanding the servants of the Crown, who hold the money, and whose duty it is to distribute it pursuant to the obligations which they owe to the Crown, to pay this money, or to take the steps which this rule calls upon them to perform.

I think that is a very clear principle, and I do not entertain any doubt that in this case we are rightly applying the doctrine; but I wish to say upon the question as to whether this money really belongs to the county funds, I entertain no doubt whatever, particularly when one looks at the history of the mode in which the costs were originally thrown on the county rates, and the long time they have incurred that burthen. I well recollect when the first remission was introduced by Sir Robert Peel in parliament, it was proposed and was understood, and was undoubtedly accepted as a remission to be set off against certain burthens which it was said the landed interest were unduly made to bear.

The process by which the costs appear to have been taxed was this: first of all, the scale was settled by justices with the consent of the judge of assize. That either was not found to operate well; probably, it was found that extravagance might be introduced; however, parliament, for the purpose of remedying that, gave to the secretary of state a power to settle the scale of costs which should in future be allowed, and that was the protection which parliament chose to claim, and very rightly chose to claim, over the costs of prosecutions. Persons were sent round to see to the taxation of these bills in the interest of the public against any supposed ignorance or extravagance. I thought that was a very

legitimate object, and I should be glad if the Treasury were to obtain an Act of Parliament which enabled them to be present, and to assist in the taxation of these bills at the time; because I think it would very possibly, and indeed probably be a very wise and prudent provision; but that is not what the law has provided. Now, the judge, or chairman of quarter sessions, orders the costs to be paid; they are taxed, and an order is directed to the treasurer of the county to pay the amount as taxed. Nothing can be more conclusive and nothing can be more clear, than that is an obligation on the county which they were unable to resist, and in some of the cases it is expressly said that particular certificates from the magistrates shall be conclusive. Whether that is so or not, it appears to me conclusive, that there is no power by law to review the taxation when it is once made. The Treasury may very well require the production of vouchers. I think that is quite a legitimate course for the Treasury to take; but I think that was the extent of their authority, and as to reducing the amount allowed on taxation, there is no power on their part to do so, and so far as they have done it, as it appears to me, they have disregarded the operation of the Appropriation Act. The clause provides for expenses of prosecutions at assizes; it is not as the Solicitor General suggested, that they "may" pay, it is that they are to pay a sum not exceeding the given sum.

The object of the grant is to defray the charges, and it is idle to say, when you have got this money granted by parliament, and appropriated by parliament for the purpose of defraying these expenses, that the Treasury shall be at liberty to say, "We will pay nothing, or only so much as we think is just." That is not the construction of the Act of Parliament; it is that the Treasury are to pay out of the funds which are appropriated, so far as they will extend, the costs already paid by the counties.

I agree entirely with the observations of my Lord and my Brother Blackburn, that the Treasury have acted, no doubt, under some misapprehension or mistake as to their authority. They have not only required vouchers, but have altered the quantum which has been conclusively allowed by the mode prescribed by law.

Therefore, under these circumstances, although I am clearly of

opinion that the rule cannot be made absolute, still at the same time I am bound to say I think that the Treasury have misunderstood the duty which has devolved upon them with reference to these costs of prosecutions.

LUSH, J. I also am of opinion that this rule must be discharged. I think that the applicants have failed to make out that which is essential to entitle them to a writ of mandamus, namely, that there is a legal duty imposed upon the Lords of the Treasury - a duty as between them and the applicants - to pay over this sum of money. The only statute which can be brought to aid at all is the Appropriation Act, and that, as it seems to me, clearly shews that the money is voted to the Crown upon trust that the Crown will dispense it for certain specified purposes. When the money gets to the hands of the Lords Commissioners of the Treasury, who are responsible for dispensing it, it is in their hands as servants or agents of the Crown, and they are accountable theoretically to the Crown, but practically to the House of Commons, and in no sense are they accountable to this or any other Court of justice. There is not a word, to my mind, in this Act or any other Act shewing an intention on the part of the legislature to impose any such obligation on the officers of the Crown, so as to subject them to the jurisdiction of this Court in reference to the disbursement of moneys voted by the Crown for specific purposes.

Upon the second point I am also of opinion that the practice resorted to by the Treasury of re-taxing and reducing costs, paid by the county pursuant to the direction of the judges at the time, is a practice in violation of the terms of the Appropriation Act. If this question had arisen some years ago, I might have been unable to collect from the very general language of the then Appropriation Acts what the intention was; but from the year 1855 downwards the language has been altered, and, I cannot help supposing, intentionally altered.

Before we turn to that clause, it is needful to bear in mind that by several Acts of Parliament costs are allowed or allowable in most prosecutions, though not in all of them, and they are to be paid in the first instance by the treasurer of the county. An order is supposed to be made in each case upon the treasurer of the

county, who is bound to pay in the first instance the person to whom those costs are due.

Reading, in reference to that state of things, the language of the Appropriation Acts from the year 1855 down to the present time (and they are all nearly in the same language), I think one cannot be at a loss to ascertain what is the meaning of the legislature. The words are, "for prosecutions at assizes and quarter sessions, formerly paid out of county rates, including adjudications under the Criminal Justice Act, sheriffs' expenses," and so on, such a sum of money. Up to a given period the costs were not only paid out of the county rate, but were a charge and burden upon the county rate, and the county had no claim anywhere else. For several years the counties have had a claim by virtue of the statutes more or less upon the Treasury.

Now the words "formerly paid out of county rates" to my mind clearly imply that that which was before a charge and burden upon the counties shall be so no longer; and the Crown or the Imperial Treasury shall pay, and parliament provides the money for paying the costs of prosecutions at assizes and quarter sessions, sums which were formerly paid out of the county rates; and I think the words, read with reference to the present condition of things, do clearly imply that that which the counties have to pay in the first instance is intended to be reimbursed out of the sums voted by parliament. Therefore, I think that the practice which seems to have prevailed for fourteen years is entirely unwarranted.

Attorneys for applicants: Ridsdale, Craddock, & Ridsdale, for Birchall, Wilson, & Hulton, Preston.

Attorneys for defendants: Solicitors to the Treasury.