petty sessions; and that the said gaols of York Castle and Wakefield House of Correction respectively have been and yet are used as the common gaols of and for the borough of Leeds, in which persons charged or convicted of felonies, misdemeanors, and other criminal offences within the borough, are committed and detained; and that the inhabitants of the borough contribute to the maintenance of the said gaols.

That before the passing of two local Acts (of the 49 & 55 Geo. 3), there was a prison or lock-up house within the borough of Leeds, consisting of three or four rooms or cells, having no residence for a gaoler, or other officers attached to it, in which persons charged with criminal offences in the borough were detained for examination, until they were discharged or committed; in which latter case they were sent to Wakefield or to York.

That whilst such prison existed, between 1757 and 1813, the corporation of the borough (of which all the justices were then members) elected and appointed the chief constables and gaoler of the borough, who thereupon became and acted as the officer of the mayor and justices, and under their directions and order had the charge of the said prison. [In the affidavit, numerous entries in the corporation books of the appointment of constable and gaoler of the borough were set out, beginning May, 1717, and ending September, 1813.] That owing to the limited space and want of sufficient conveniences in the said prison, &c., the following Acts were passed :-First, an Act (49 Geo. 3)" to amend and enlarge the Powers of an Act passed in the 30th of Geo. 3, for better Supplying the Town and Neighbourhood of Leeds, &c., with Water, and (amongst other purposes) for Erecting a Court House and Prison for the Borough of Leeds." Second, an Act (55 Geo. 3) intituled, "An Act to amend and enlarge the Powers and Provisions of an Act of his present Majesty, for Erecting a Court House and Prison for the Borough of Leeds, in the County of York, and other purposes, to provide for the Expense of the Prosecution of Felons in certain cases, and to establish a Police and Nightly Watch in the Town, Borough, and Neighbourhood of Leeds aforesaid."

By the said Act, passed in the 49th year of King George III., the justices of the peace for the borough of Leeds were authorized (amongst other things therein mentioned) to erect and provide a court-house and prison, and other buildings, in and for the borough of Leeds, and to make and levy rates within the said borough, to defray the cost and expense thereof; and the said courthouse, prison, and buildings, and every matter and thing appertaining and in any manner relating thereunto, or to any of them, are thereby declared to be vested in the justices of peace for the borough of Leeds for the time being, upon and for the public trusts and uses therein mentioned. Under the said Act, and the extended and enlarged powers given by the Act passed in the 55th year of King George III., a court-house and prison, with a residence for a gaoler and other buildings attached thereto, were erected, and vested in the said justices; and ever since the year 1815, or thereabouts, the same have been and yet are dedicated to and used as the court-house, and as the gaol or prison, and as a residence for the gaoler thereof, for the said borough of Leeds; but such gaol or prison was not built, nor is it adapted for the imprisonment, detention, and punishment of prisoners, except temporarily for a few days, and until they can be examined and finally committed for trial at the assizes or quarter sessions, whereupon such persons have been and yet are sent to the house of correction at Wakefield, or the Castle of York, according to the nature of the charge or offence, and their respective commitments. By the Act passed in the 55th year of Geo. III., the justices of the borough, in quarter sessions, were

authorized and empowered to make orders, rules, and regulations for governing and managing the said court-house and prison, and to appoint a gaoler, keeper, or governor thereof, and such other officer or officers as they (the said justices) should think proper for the due regulation and management of the said prison, and to order and determine what salary should be paid to such gaoler, keeper, governor, or other officer; and all and every such gaoler, keeper, governor, officer, and officers were thereby required to observe all the rules and regulations to be made as aforesaid; and that it should also be lawful for the justices of the peace for the said borough, or any five or more of them, at any special sessions of the peace, if occasion should require, to remove or displace any such gaoler, &c., and to appoint another in his stead, and to continue until the then next quarter sessions of the peace. In exercise of the powers and authorities given to the justices, they did, at the general quarter sessions held on the 31st day of July, 1815, elect and appoint a gaoler of the said prison, with an annual salary or allowance, and the said gaoler thereupon entered upon the said office, and held the same until his death, when the justices in quarter sessions, held on the 20th of April, 1835, appointed his successor, who still continues to fill the office; and the justices have from time to time made rules and regulations for the government and management of the said gaol, which is still under their control.

In the several Acts of the 49 and 55 Geo. 3 is contained the following enactment:" That nothing in this Act contained shall extend, or be caused to extend, to prejudice, lessen, or defeat any right and interest, or property of the corporation of Leeds, of or in any power, privilege, franchise, or authority, but all and every such powers, privileges, franchises, and authorities may be exercised and enjoyed in as full and ample manner, to all intents and purposes, as the same were exercised and enjoyed at any time before the passing of this Act."

After the passing of the Gaol and Municipal Corporations Acts of the 4 Geo. 4, c. 64; 5 Geo. 4, c. 85; 5 & 6 Wm. 4, c. 76; 6 & 7 Wm. 4, c. 105, and 1 Vict. c. 78, a gaol has been lately built and provided within and for the borough of Leeds, by the council of the said borough, at a cost to the inhabitants of 40,000l. or thereabouts, with a residence and other conveniences for the gaoler and other officers. The council of the borough now claim to have the sole and exclusive right, power, and authority to appoint the gaoler of such gaol, and to fix and determine his salary, as well as to dismiss him at their pleasure, and to supply any vacancy which may from time to time occur in such office; and on the 26th of May last, in execution of the right so claimed❞ the council did elect and appoint James Lancaster, of Leeds aforesaid, to be the gaoler of the gaol for the said borough of Leeds; who, by reason of such election and appointment, took upon himself the said office of gaoler, and now fills and holds the same accordingly. The justices of the peace, acting in and for the said borough, also claim to have the right, power, and authority to elect and appoint the said gaoler, and to fix and determine the salary of that officer, and to dismiss and remove him thereupon, and from time to time to elect and appoint another in his place and stead; and questions have also arisen whether the mayor of the said borough, or the recorder of the said borough (both of whom concur in the appointment of James Lancaster), has not the sole right, power, and authority to make such appointments, and to do such other matters and things as aforesaid, to the exclusion of the said council and the said justices respectively.

The affidavit of the town-clerk stated that the new borough gaol is a large building, constructed to contain three hundred prisoners, and is to be used as a

gaol for the imprisonment of criminal offenders, and also as a house of correction, instead of the house of correction at Wakefield, wherein prisoners committed from the said borough are now confined.

Thursday, June 10.-Baines, on behalf of the mayor; R. Hall, on behalf of the recorder; and Addison, on behalf of the town-council, shewed cause. (a)

In

1. The mayor's claim rests upon the charter of 13 Car. 2, which gives to him the custody and rule of the borough gaol; and the usage for the corporation to appoint the gaoler cannot control the clear words of the charter. (Rex v. Varlo, Cowp. 248.) Nothing in the Municipal Corporations Act is inconsistent with this power, nor is it touched by any of the Gaol Acts. Sec. 25 of 4 Geo. 4, c. 64, which empowers the justices in sessions to appoint keepers of prisons, expressly excepts" the keeper of the common gaol.' Reg. v. The Bishop of Bath and Wells (5 Q. B. 147) this Court gave effect to a similar charter, holding that the right of appointment given by the charter was not affected by any changes which had occurred since the passing of 5 & 6 Wm. 4, c. 76; and in Smith v. Hillier (Cro. Eliz. 167) it is said, "the course of all corporations is, that the mayor, who is the judge, is gaoler also." There is a saving clause in the local Acts.

The

2. The recorder claims the right to appoint. The local Act (55 Geo. 3) no doubt gives the appointment to the justices of the borough in quarter sessions; but the new prison, now in question, is not built under that Act. 4 Geo. 4, c. 64, s. 25, contains the same provision, making an exception as to "the keeper of the common gaol;" but that is limited to the boroughs in schedule A, and Leeds is not one. Then section 105 of 5 & 6 Wm. 4, c. 76, gives to the recorder all the jurisdiction of the county justices in quarter sessions; and in Reg. v. The Recorder of Hull (8 A. & E. 638) it was held that, under that section, he has all the powers relating to inspectors of weights and measures given by sec. 17 of 5 & 6 Wm. 4, c. 63. There is a great distinction between gaols and houses of correction. When the gaol and house of correction are united or contiguous buildings, all persons committed to that part which is declared to be the gaol are in the custody of the sheriff (4 Geo. 4, c. 64, s. 6); and the 25th section, maintaining the same distinction, seems to reserve the appointment of "keeper of the common gaol" as before; but this new prison is a house of correction as well as a gaol; and at all events the claim of the recorder would be preferable to that of any other person, so far as it is to be treated as a house of correction. All prisons or gaols belong to the king, although a subject may have the custody or keeping of them (2 Inst. 100); and the general power of custody is in the sheriff, unless controlled by particular provisions. Smith v. Hillier does not support the claim of the mayor. The passage cited rests the claim upon his being "the judge ;" but he is not the judge-the recorder is. So if the gaol be incident to the court, the recorder is the court. For the council, sec. 8 of 6 & 7 Wm. 4, c. 105, will be relied upon. It vests in the town-council the powers of local Acts, theretofore exercised by the justices in quarter sessions, and "which do not relate to the business of a court of criminal or civil judicature;" but the power of appointing this gaoler is not a power exercised under the local Acts, and it does relate to the business of a court of criminal judicature. Palmer v. Powell (6 M. & W. 627) decided that the regulation of the fees of a court of requests is a matter relating to the business of a court of civil judicature, and therefore not given to the town-council by that section. The justices claim the appointment as incident to the regulation of gaols under sec. 38 (a) All parties agreed to be bound by the decision of the Court upon their respective claims.

of 1 Vict. c. 78; but stat. 4 Geo. 4, c. 64, shews that the appointment of gaoler is quite distinct from the power of regulation.

8. The appointment is in the town-council, as representing the corporation. The mayor never personally, as mayor, exercised the right of appointment; it has been in fact a corporation appointment for years, and even without the saving clause in the local Acts, the Court would not disturb that arrangement. (Reg. v. The Bishop of Bath and Wells, 5 Q. B. 147.) That case is an authority for saying that the appointment of gaoler is not a matter of regulation included in sec. 38 of 1 Vict. c. 78; and sec. 37 gives the other powers of building, enlarging, and repairing gaols to the council. It may be conceded that this new gaol is not "the common gaol" of the borough, but rather a house of correction; and assuming that the local Acts transferred the appointment to the justices in quarter sessions, then it is restored to the corporation-that is, to the town-council-by sec. 8 of 6 & 7 Wm. 4, c. 105; for it does not relate to the business of a court of criminal judicature. Palmer v. Powell (6 M. & W. 627) is quite distinguishable. But independently of the local Acts, sec. 116 of 5 & 6 Wm. 4, c. 76, gives to the towncouncil the powers exercised by justices in quarter sessions, under 4 Geo. 4, c. 64, with respect to all boroughs in schedule A of the last-mentioned Act; and then 2 & 3 Vict. c. 56, s. 1, extends the powers of 4 Geo. 4, c. 64, to all gaols in England, in effect placing them in schedule A of that Act, as was held in Hammond v. Peacock (a) (Exch. E. T. 9 Law Times, 227).

Cowling, for the justices, contrà.-The justices rest their claim upon sec. 38 of 7 Wm. 4 & 1 Vict. c. 78, which gives to them all the powers of regulating gaols previously possessed by the Quarter Sessions, and the appointment of gaoler is incident to such regulation. In Hammond v. Peacock, the Court of Exchequer held that the appointment of surgeon was a matter of regulation, directed by the 14 Geo. 3, c. 59. Stat. 7 Wm. 4

& 1 Vict. c. 78 did not apply to boroughs not contained in schedule A to 4 Geo. 4, c. 64; but that difficulty is now removed by 2 & 3 Vict. c. 56, s. 1. Then, what is the meaning of 4 Geo. 4, c. 64, s. 25? Would that section give this appointment to the justices in quarter sessions? If so, then the 38th of 1 Vict. c. 78, applies; and the claim of the justices is completely established. The object of 4 Geo. 4, c. 64, was twofold: first, the regulation of existing prisons; and second, the building of new prisons; and it is submitted that the exception of "the keeper of the common gaol" in section 25 applied to the existing gaols only, and not to any gaols thereafter to be erected; at all events, it is clear that by that section the appointment of keeper to all but one gaol is vested in the justices in sessions. [ERLE, J.-Suppose that the new gaol, built under 4 Geo. 4, c. 64, was substituted for the old.] Then, perhaps, the exception would apply; but in that case still the power of appointment would be in the justices in sessions by virtue of the local Acts; and since the building of the gaol under those Acts to the present time, the justices in sessions have exercised that power, as in Reg. v. The Bishop of Bath and Wells the town-council had exercised it. Stat. 6 & 7 Wm. 4, c. 105, s. 8, does not apply, for the reason already given, that the appointment of gaoler does "relate to the business of a court of criminal judicature;" and it cannot be supposed that powers so important were intended to be conveyed by words so general as those of that 8th section, which enacts that the acts there referred to 66 may be done by the council at some quarterly meeting, or by some committee of the council, or any three or more of such committee, to be appointed at a quarterly meeting of the council." At all events, the 1 Vict. c. 78, ss. 37 and 38, overrides

(a) See note at the end of this case.

this provision, and gives the power to that body which is the best fitted to exercise it, viz. the justices.

Judgment.-June 26.

Cur. adv. vult.

LORD DENMAN, C. J., now delivered the judgment of the Court.-In this case the question has been raised, in whom is the right of appointment to the office of the gaoler of the new prison and house of correction lately completed in the borough of Leeds? All parties agree to be bound by our opinion, and we have come to the conclusion that the right is in the justices of the borough. The affidavits shew that originally there was a prison for temporary confinement, without a residence for the gaoler, and that the corporation appointed that officer. This prison being inadequate, a second prison and house of correction, with a residence for the gaoler, was built under the local Acts of the 49 Geo. 3 and 55 Geo. 3, and the power of appointing the gaoler thereto was vested in the justices of the borough in quarter sessions assembled, by sec. 10 of the 55 Geo. 3. This prison and house of correction being also inadequate, a new prison has been built as a substitute for it, under the powers of the Acts relating to gaols, 4 Geo. 4, c. 64, and the 2 & 3 Vict. c. 56. If the new prison be substituted for the former gaol, it is subject to the power of appointment relating to that gaol, and the right of the justices is established. As the new prison was built under the powers of the 4 Geo. 4, c. 64, as extended by subsequent Acts, the New Prisons Bill, the provisions of that statute (4 Geo. 4, c. 64) relating to the appointment of gaoler are applicable. By sec. 25, the justices in quarter sessions are empowered to appoint a keeper "for every prison within their jurisdiction to which this Act shall extend, except the keeper of the common gaol." This Act extends only to boroughs named in schedule A, this not being one of them. The provisions relative to the power of appointment appear to be extended to the justices of this borough by the 7 Wm. 4 & 1 Vict. c. 78, s. 38, by which "all the powers of regulation, which before the passing of the said Act" (5 & 6 Wm. 4, c. 76) possessed by the justices, having the government or ordering of any gaol or house of correction, belonging to any borough named in the schedule of the 5 & 6 Wm. 4, and all things by any Act of Parliament provided to be done at any general or quarter sessions of the peace, in relation to the regulating of any such gaol or house of correction, shall, subject to any such alteration as afore said, be exercised or done by the justices of the borough ;" and they shall hold a quarter sessions for that purpose. The power of appointing a gaoler appears to be a thing in relation to regulating a gaol, provided as well by the 4 Geo. 4, c. 64, as by the local Act, to be done at the quarter sessions of the peace, in respect of prisons within the jurisdiction of the justices in that respect respectively mentioned, and therefore it seems to be conferred on the justices of the borough. If the power had not been conferred on the justices by that Act, we think the 2 & 3 Vict. c. 56, s. 1, extending to all gaols and houses of correction in England the provisions of the 4 Geo. 4, c. 64, subject to exceptions there mentioned, would have operated to confer that power. This view is in accordance with the case of Hammond v. Peacock, (a) decided in the Exche quer in the course of last Easter Term. It was contended for the mayor, that the right to appoint in respect of this prison was vested in him by the charter, and was not vested in the justices by the 4 Geo. 4, c. 64, because it was a com mon gaol; but as the new prison was a substitute for those built under the local Act, and now become inconvenient in respect of the size and situation, if

(a) See note at the end of this case.

66 were