davits; the alderman has no power to enquire whether there be a vacancy or not, and it is now referred to the Court to make that enquiry. The proceeding directed by sect. 47 is where the vacancy is fully established by judgment of ouster, or by due course of law under sect. 52. We cannot say here, according to the provisions of the act, that a vacancy has occurred. WILLIAMS J. The prosecutors' argument assumes that it would be a waste of time to drive them to a quo warranto, there being nothing to enquire into. But there may be very just grounds for enquiry. It may be alleged that the councillor has been corruptly omitted from the register. It does not follow, from the mere fact of his name not being enrolled, that there is a plain case of vacancy, in which no enquiry can be usefully instituted. Before granting a mandamus we ought to see that the officer is in a condition to act upon it. Rule discharged (a). (a) Coleridge J. was in the Bail Court. 1838. The QUEEN against PHIPPEN. 1838. Wednesday, REGULÆ GENERALES. Hilary Term, 1st Victoria, 1838. In the Queen's Bench. WHEREAS by the practice of this court in all actions of ejectment it is necessary that the plea and consent rule should be filed at the chambers of one of the judges of the same court, IT IS HEREBY ORDERED, That from and after the last day of this present term the said practice be discontinued, and in all such actions the plea, with the consent rule annexed thereto, be delivered in like manner as pleas in other actions, the defendant's appearance being first entered with the proper officer as heretofore. (Signed) DENMAN. J. WILLIAMS. J. LITTLEDALE. J. T. COLERidge. J. PATTESON. IT IS ORDERED, That the seventeenth article of the rule made in Hilary term, 2 William IV. (a), for regulating the practice of all the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, be from henceforth annulled; and that in all cases special bail may be justified before a Judge at chambers, both in term and in vacation. (a) R. Hil. 2 W. 4. 1, 17. 3 B. & Ad. 376. IT IS ALSO ORDERED, That no rule for a special jury shall be granted on behalf of any Defendant, or Plaintiff in replevin, except on an affidavit, either stating that no notice of trial has been given, or, if it has been given, then stating the day for which such notice has been given; and in the latter case no such rule is to be granted, unless such application is made for it more than six days before that day. Provided that a Judge may on summons order a rule for a special jury to be drawn up at any time. IT IS FURTHER ORDERED, That henceforth every rule of Court delivered out in vacation shall be dated the day of the month and week on which the same is delivered out, but shall be entitled as of the term immediately preceding such vacation. (Signed) DENMAN. 1838. J. PARKE. Marston v. Roe dem. Fox and Roe dem. Fox v. Marston (in Error), decided this term, will be found in the next volume. |