1816.

The KING

against JOHNSON

the last Lancashire assizes, there was a verdict for the crown, subject to the opinion of the Court upon the following case:

The defendant is treasurer of the county of Lancaster, and the justices at their general quarter sessions for the borough of Liverpool, upon prayer of the prosecutor, directed the order set forth in the indictment to be made out by Statham, which was accordingly made out by him, and the defendant afterwards had sight of it, and was requested to pay the prosecutor the sum mentioned therein, but he refused to obey the order. Statham was town clerk of the borough, having been appointed such by the common council in 1814, under the authority of a charter of 7 W. 3., which is the governing charter of the borough; and by the resolutions of the common council at the time of his appointment, it was declared (amongst other things) that his duty should be to act as clerk of the peace of the borough at the several licensing and quarter sessions. Ever since his appointment he has acted as such clerk of the peace at the several quarter sessions holden for the borough, and he succeeded his father in the office of town clerk, who for nineteen years acted as clerk of the peace of the borough at the several quarter sessions holden therein. The town of Liverpool is a town corporate situate within the county of Lancaster, and before the year 1699 the township of Liverpool was a hamlet, and part of the parish of Walton-on-the-Hill, and was separated from it and made a distinct parish by an act of parliament in that year, (10 W. 3.) At the time of this separation the parish of Walton contributed towards the county rate gs. in every rate of one hundred pounds, in three divisions, each of the divisions paying 35., and the township of Liverpool contributing twothirds,

15

thirds of the amount payable by one of those divisions, i. e. 2s., which sum it has ever since in like manner contributed to the county rate. (a) The parish and borough. of Liverpool are co-extensive, and the inhabitants of the parish contribute to the county rate in respect of their property lying within the parish, and the corporation of Liverpool also contribute in respect of their corporate estate lying within the parish. There never was any separate rate, in the nature of a county rate, upon the corporation by name, or upon the township, made or raised in and for Liverpool. The corporation treasurer always paid the above rate until the year 1808, when he refused, and since that time it has been paid by the parish officers out of the poor's rate, the corporation contributing not by name, but as a part of the parish of Liverpool, in the same manner as any other private estate. The justices of the borough have not an exclusive jurisdiction within the borough, nor have they, or those who made this order, any jurisdiction without the limits of the borough in the county at large. The coroners acting in and for the borough, who are not coroners for the county at large, upon all inquests of death arising within the borough, have always been paid their fees out of the county rate by the county treasurer, and the expences of carrying prisoners, committed by the borough or county magistrates for offences done within the town of Liverpool, from the town to the county gaol, and also to the county house of correction, for trial at the assizes and county sessions, have always been paid by, the county treasurer. The costs

(4) It was stated, however, upon the argument, that since the new county rate act, Liverpool was assessed in the new rate made under that act, according to its due proportion.

1816.

The KING against JOHNSON,

1816.

The KING ug inst

JOHNSON.

of all prosecutions at the assizes at Lancaster, upon commitments by the borough magistrates to the county gaol for felonies committed within the town of Liverpool, have always been defrayed by the county at large, in pursuance of orders made for that purpose by the Judges at the assizes upon the county treasurer, which orders have always been complied with. There has been immemorially a gaol within the borough, and about 1776 a house of correction was built at the expence of the corporation and parish, out of their estates and funds. The expence of supporting the gaol has been defrayed by an officer of the corporation, called a treasurer, out of their funds, but the expence of supporting the house of correction has been defrayed by the parish out of the poor rates from the time of its erection, until 1811, when the parish discontinued to support the saine, and the building has never since been used as a house of correction, but has been and is now used as a lunatic asylum for parish paupers. Courts of quarter sessions have been immemorially holden within the borough, at which prisoners charged with petit larceny, and other offences, have been tried; a great majority of which prisoners have upon conviction been committed to the borough gaol, and some to the house of correction for the county of Lancaster, until 1809, since which time the right to commit to the said house of correction has been disputed. Persons charged as above have also before trial at the borough sessions been committed to the borough gaol; and the first instance of any commitment from the borough for trial at the county quarter sessions was in 1812. The ordinary expences of trials within the borough were from time to time defrayed, in certain proportions, by the treasurer out of

the

the funds of the corporation, and by the parish officers out of the poor rates. The duty of the said treasurer is to superintend the management of the estates and funds of the corporation. There are no public bridges within the borough which the inhabitants are liable to repair. The expences mentioned in the order were reasonable, and conformable to certain rules and regulations made by the justices of the borough under the proviso contained in stat. 18 G. 3. c. 19. s. 9.

The question for the opinion of the Court is, whether the defendant was bound to obey the order; if he was, the verdict to stand; if not, a verdict of not guilty to be entered.

This case was argued by J. Clark for the crown, and J. Williams for the defendant. The substance of the argument was this. For the crown, it was argued that the borough justices had power to allow the expences of prosecutions in the borough court for felony committed within the borough, and that they had well executed that power by making the order in question upon the county treasurer. As to their power, the stat. 25 G. 2. c. 36. s. 11. for the allowance of the expences to the prosecutor after conviction; 27 G. 2. c. 3. s. 3. for the allowance of the same to witnesses; and 18 G. 3. c. 19. s. 7. for the allowance of the same as well after acquittal as conviction, were relied on. And these statutes were all said to be in pari materiâ (a), and were therefore to be construed together; and that the language of them was general, extending to all courts in which felonies are tried. And it is remarkable

(4) Per Lord Kenyon, 6 T. R. 241.

1816.

The KING

against JOHNSON.

1816.

The KING against JOHNSON,

that s. 9. of the last statute empowers the justices in sessions for any town corporate to lay down and alter rules concerning the allowance of such expences, which after being approved by a judge of assize are to be binding on all persons; whence this question naturally arises, if the justices for a town corporate have no power to allow these expences, why are they empowered to lay down rules concerning their allowance, and what becomes of the enactment that these rules shall be binding on all persons? Then, if they had the power, this power is well executed by making an order upon the county treasurer; for otherwise all the orders made by the Judges at the assizes on the county treasurer, for payment of the expences of prosecutions for felonies committed within the borough, would not have been well made (a); and yet it appears that the expences of such prosecutions have always been defrayed by the County in pursuance of such orders. If indeed this were the case of a borough which had a distinct treasurer in the nature of a county treasurer, and raised its own rate similar to a county rate, and had not been contributory to the county rate, and had an exclusive jurisdiction, this order on the county treasurer, it may be admitted, would have been ill (b); but the contrary of all these facts is stated to be the case; wherefore this borough is, for this purpose at least, like any other part of the county, neither could a separate rate have been assessed upon its inhabitants. (c) The order therefore was well made on the county treasurer.

(a) Rexv. Myers, 6 T. R. 237. (c) James v. Green, 6 T.R. 228. Bates v. Winstanley, ante, p. 429,

(b) Ibid. Weatherhead ▼, Drewry, 11 East, 168:

For