The

coroner of the borough. That Act, however, puts an end to the old office of coroner in such cases within its provisions, and provides, by sec. 62, “That the council in every borough in which a separate Court of Quarter Sessions of the Peace shall be holden, as is hereinafter provided, shall, within ten days next after the grant of the said court shall have been signified to the council of such borough, appoint a fit person, not being an alderman or councillor, to be coroner of such borough, so long as he shall well behave himself in his office of coroner," &c. So that the present office of coroner in Wigan is regulated by this Act, and the question is, whether or not he is a corporate officer, within the meaning of the 9 Anne, c. 20. There is no case precisely in point; but it appears that two things must concur to bring the office within the Act :-1st. The office must be one in a corporation; and, 2ndly, it must be a corporate office. office in question comes within both these conditions; the coroner is appointed by the council for the purposes of the borough; he receives his remuneration from the borough fund. In Rex v. Williams (1 Burr. 402), the Court held that the judge of a borough court of record was not within the Act. So also in Rex v. Wallis (5 T. R. 375), as to the constable of Birmingham; and in Rex v. Hall (1 B. & C. 237), in which the office was that of registrar and clerk of the Court of Requests in Bristol; and in Rex v. M'Kay (5 B. & C. 640), where the office was that of bailiff, but not of a town corporate. In all these cases, which were cited by the other side on moving for the rule, it is obvious that the offices were not corporate ones, and, therefore, not within the Act; but the office of coroner stands upon a different footing. It is clear that the office of recorder is a corporate office, and a coroner appears to be equally such; his duties are all municipal, being appointed and paid by the council, and by the 1 Vict. c. 68, obliged to lay his accounts before that body.

Cowling, in support of the rule.-The office of a borough coroner is not a corporate office. It is not even compulsory upon the corporation to appoint one; and if they neglect to appoint, the county coroner, by sec. 64 of the 5 & 6 Wm. 4, c. 76, has jurisdiction. So that the corporation is complete without such an officer; nor is there any borough coroner to be appointed, unless there be a grant of quarter sessions; the assistance, therefore, of a coroner in a municipal borough is an accident, and is consequent upon a grant of quarter sessions. Nor need the coroner be a member of the corporation at all, inasmuch as the council may appoint a perfect stranger to the borough to the office, and he is appointed for life. His duties, moreover, shew that he is not a corporate officer; he is to hold inquests generally over the district, and not merely upon the bodies of corporators. His duties are altogether unconnected with the corporation, but must merely take place within its limits; but by sec. 63 he is to make a return of the inquests held by him, to one of the secre taries of state. He is, in fact, an officer of the Crown, and not of the corporation. If the appointment by the council constituted him a corporate officer, police constables would be such, for they also are paid out of the borough fund; so, also, a rector, appointed by the council, or a schoolmaster. The cases cited shew that it is not because an office is connected with a corporation that it is, there fore, a corporate office; but there must be corporate duties attached to it. Rex v. Richardson (9 East, 469) may also be cited. The judgment of Bayley, J., in Rex v. McKay (5 B. & C. 640), points out the principle of all the cases.

Cur. adv. vult.

PATTESON, J. (22nd Nov.).—I have looked at the Acts of Parliament, and at the cases bearing upon this subject, and, whatever question there may have

been formerly, in respect of the coroner of Wigan being a corporate officer, from the circumstance of the mayor holding that office under a charter, it is not material to inquire into; indeed, a difficulty on the subject could not very well have arisen, as the two offices were united in the same person. The Municipal Corporation Act, however, destroyed the character of the old office of coroner in boroughs, for it provided that, where there were no quarter sessions, the county coroners should act; and that, where there are quarter sessions, a coroner is to be appointed by the town council. It seems to me that the coroner, although paid by the corporation, is in truth an officer of the Crown, and not a corporate officer; his duties have reference to the Crown and not to the corporation. Not, therefore, being a corporate officer, I think the relator is not entitled, under the 9 Anne, c. 20, to his costs.

Rule absolute.

T. W. S.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 25, 1847.

THE QUEEN V. THE TOWN COUNCIL OF LICHFIELD.

A rule nisi for a certiorari to bring up a certain order for payment to A. B. was obtained against the town council of the city and borough of Lichfield, but notice was directed to be given to A. B. The rule was discharged with costs to be paid to the defendants :

Held, that A. B., who had separately instructed counsel, was entitled to his costs.

YOLE moved to set aside a rule for an attachment which had been made absolute in the ordinary way at the beginning of the Term, for the nonpayment of certain costs due to Mr. Edgington. The rule nisi was directed to the town council, but the Court directed notice to be given to Mr. Edgington. Notice was accordingly given, and he appeared and shewed cause by different counsel from those who appeared for the town council. After argument, the rule was discharged with costs, and it had been drawn up as discharged with costs to be paid to the defendants, and the Master had taxed Mr. Edgington's costs separately. Those due upon the allocatur to the town council had been paid, but not those due to Mr. Edgington; the party moving for the rule contending that he was not entitled to them, not being a defendant. The rule for an attachment had accordingly been granted. It is submitted that although the Court might have expressly ordered costs to be paid to Edgington, yet the general form of discharge, with costs to be paid to the defendants, meant only those who were actually defendants by the rule. In ejectment, notices were often served upon different parties, but they were not, thereby, made defendants.

LORD DENMAN, C. J.-Mr. Edgington surely had a peculiar interest in the matter, and was, in truth, the defendant.

E.W.

Rule refused.

COURT OF EXCHEQUER.

Michaelmas Term.-November 10, 1847.

BADDELEY, Clerk, v. GINGEll.

Local Paving Act-Rating-Metropolitan Paving Act-Construction of term " within." Commissioners of paving have power to assess the occupier of a house in a court, with an entrance to it solely from one street, in the same way as if it were a house a little distance back from the street, with a garden in front, and the same, or any number of such in the court, are liable to

such rate.

To the commissioners for carrying into execution two Acts of Parliament,

HIS was an action of debt for 107. 14s., brought by the plaintiff as clerk

respectively passed in the 11th and 57th years of Geo. 3, for paving High Street, Whitechapel, and the metropolis at large, as so much money due and owing by the defendant to the plaintiff, as such clerk, by virtue of these Acts. The defendant having pleaded nunquam indebitatus, and issue being joined thereupon, a case was afterwards stated for the opinion of this Court, with the consent of the parties, by an order of a learned judge.

The case set forth the 11 Geo. 3, whereby certain commissioners were authorized to pave, clean, and improve High Street, in the parish of St. Mary, Whitechapel, and to cause all the houses within the said street to be numbered, to defray the costs of which works, they are authorized, once in every year, or oftener if need be, to make, lay, and assess on all and every person holding, inhabiting, occupying, possessing, or enjoying any houses, shops, warehouses, cellars, vaults, or other tenements within the said street, such competent sums as they shall from time to time think fit. In the 57th year of Geo. 3, a general Act (chapter 29) was passed for paving, &c., the streets of the metropolis, which, after various recitals as to the state of the streets, and the want of funds to improve the same, is made to extend to all the metropolis within the weekly bills of mortality, &c. It then empowers the commissioners thereunder to make certain rates for the purposes of the Act, in lieu of those appointed by the local Acts, which shall be laid on all persons occupying any houses, &c., situated or being within any of the streets or places within the said parochial or other district, which should be equal and just rates. It also authorizes the commissioners to number the houses within the streets and other public places in the respective district; and empowers them to sue and be sued in the name of their clerk, for the time being, by action of debt, in any of the courts of record at Westminster. The case then finds that the part of High Street, in the first Act mentioned, was within the weekly bills of mortality, and is paved, and under the jurisdiction of the commissioners; that, after the passing of the said second Act, the commissioners, therein named, re-paved High Street, and have from thence hitherto continued to keep it paved, repaired, and cleansed, as by that Act required.

The case then states that, long before the making of the rate in question, there was, to the north of High Street, and communicating with the said street by means of a covered gateway, a large yard, called the Kent and Essex Yard, around and within, and opening into which, long before the making of the said rate, there had been erected houses, &c. That the yard, with the exception of the gateway, and all the houses, &c., in it, lie at the back of several houses, which front the High Street, are unconnected with the said yard, &c.,

and are duly rated in the said rate. The defendant has occupied certain of the houses in this yard for twelve months before the rate was made. The entrance into the yard is through carriage-gates, and along a covered gateway. The gates open internally into the yard, and the gate posts abut upon the footpavement of High Street. The gates are usually closed at night by the defendant, who keeps the key. The gateway is covered over by the house No. 115, in High Street, which stands in the straight and direct line of, and abuts and fronts upon, that street, and is duly rated in and by the said rate, as is al so No. 114, which stands next to the gateway, and in the line of the steret. The commissioners have paved and repaired the street, for one hundred yards on each side of the gateway; but the approach to the gateway is paved like an ordinary carriage-way, and the occupiers of the houses, &c. of the defendant. necessarily use the High Street in going to and from the premises of the defendant in the said yard; no part of which has ever been paved by the commissioners, nor have they at any time carried any of their powers into execution in the said yard, none of the houses within it having ever fronted the street. On the 22nd of November the commissioners made a rate of 10d. in the pound on the property of the defendant in this yard, amounting to 107. 14s., and also on all the other occupiers of property within the yard. The case then states a demand and refusal, and raises the question for the opinion of the Court, whether the defendant, under the aforesaid Acts, or either of them, is liable to be rated for, or in respect of, the premises occupied by him as aforesaid, and mentioned in the said rate, or either part thereof, and in respect of which he is rated or assessed in the said rate as aforesaid.

Sir F. Thesiger appeared on behalf of the commissioners, and contended that the defendant was liable. The entrance to the place in question was by a gateway, of which, by night, the defendant had the key, and was situate between 114 and 115 in the High Street of Whitechapel. If the defendant was liable to be rated, the plea was to be withdrawn, and judgment entered for the amount of the assessment, 107. 14s. ; if not, a nolle prosequi was to be entered. The question was very important to all commissioners of paving, as well as to owners and occupiers of in-yards like the present. If the defendant in this case is not so liable, he is exempt altogether from all paving-rates, notwithstanding he has the full benefit and advantage of the Acts of Parliament, and improvements occasioned under it by the commissioners. There can be no reason why he should be exempt, because his house or houses are situate in a yard behind, with an entrance from the street, any more than a house, with a small garden in front, having a gate leading into the public highway. Where can be the distinction? It may as well be said that Burlington House is not in Piccadilly, or Northumberland House, at Charing Cross, in the Strand. No house is literally in the street, it abuts on it or adjoins it, and the whole question for the decision of the Court will be upon the word "within" in the Act of Parliament. There is no other entrance to the yard in question, except from High Street; and the question is, whether it is not in High Street, within the meaning of the Act of Parliament. [ROLFE, B.-Nobody lives in a street, but in a house abutting on a street; the case was, I think, much discussed before Lord Cottenham, in Newton v. Lucas (6 Sim. 54; and 1 Myl. & Cr. 391).] Many public buildings, such as chapels, &c., do not come flush up, yet they are in the

street.

Butt, contrà.-These Acts of Parliament should be construed strictly. Many extreme cases, supposed to be analogous, may be put, but it is unnecessary to answer them. The question here appears to be one rather of fact than law. [ALDERSON, B., referred to the judgment of Holroyd, J., in Doe v. Roberts

(5 B. & Ald. 407). "If there had been an opening from the High Street to these two cottages alone, they would clearly be in the street, and I can see no difference from the circumstance of there being other houses in the court."] There is no power given to the commissioners to go into the yard to remove carts placed there, or number the houses, because it is not in the street. If another opening were to be made from another street, having a separate entrance into the courtyard, then it may be liable to two assessments, if liable to this. Paul v. James (I Q. B. 832) is applicable to this case, and an authority in favour of the defendant; there, by stat. 5 & 6 Wm. 4, c. 18, for paving, lighting, &c. (among other places) the Liberty of Saffron Hill, Hatton Garden, and Ely Rents, in Middlesex, the inhabitants of the liberty entitled to meet in vestry, or other public meetings, were empowered to elect commissioners, who were to have the sole superintendence of the paving, lighting, and preventing nuisances and obstructions in the several "squares, streets, lanes, courts, ways, foot-ways, carriage-ways, passages, and places" within the liberty: the commissioners were empowered to pave and repair all the "squares, streets, places," &c. within the liberty: power was given them to light the squares, &c., and to set up lamps and other works for lighting, but not to affix them to any private premises without leave: the commissioners were authorized to rate every holder and occupier of land, &c. in the liberty, for the purposes of the Act, and they were enabled, at their option, to act under the powers conferred by this Act, or those given by the Metropolis Paving Act, 57 Geo. 3, c. 29. Ely Place, Holborn, was within the liberty; its site was formerly that of the Bishop of Ely's palace, but became vested in the Crown, and was afterwards, in 1776, conveyed (by the Lords of the Treasury), under an Act of Parliament, to a private person in fee; and houses were built upon the site, with a carriage-way and foot-ways between them. The foot-paths are paved, and the carriage-way gravelled, by the inhabitants, voluntarily, and at their own expense, and were so from the time that the houses were built. The ways were never repaired by the public, nor in any manner dedicated to the public use. Ely Place communicates with public thoroughfares by gateways, formerly entrances to the palace; the inhabitants close the gates at night, and at other times when they think fit; and porters, employed by them, keep out objectionable persons. The gates are generally open in the daytime; and the public pass in and out, but have no right of way. The inhabitants pay poor-rates (for the liberty) and sewers-rates; and the Court there held that Ely Place was not a square, street, or place," &c., which the commissioners for the liberty could assume jurisdic tion to pave under stat. 5 & 6 Wm. 4, c. 18, or stat. 57 Geo. 3, c. 29. Davey v. Warne (14 M. & W. 199) was indirectly in point also; so that, neither in terms, nor on account of any benefit conferred upon the defendant, are these premises within the meaning of the Act.

66

Sir F. Thesiger, in reply.-The last case cited, of Davey v. Warne, has no bearing on, or application whatever to, the present. Paul v. James is not rightly comprehended by the other side; if that be looked at, it will be found to be in favour of the rating here. Lord Denman's judgment was, "There is no doubt upon this case, that Ely Place is private, just as much as if it had remained a bishop's palace." The commissioners, therefore, would have no power, nor could they assume jurisdiction to pave a private place like that described. As to the hardship of defendant's liability to two separate districts, that is expressly provided against by sec. 29 of the general Act; but the defendant desires and contends for exemption from all liability.

POLLOCK, C. B.-The defendant's property in this yard is liable to be rated by the commissioners, as being "within High Street," though the Act would