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1834.

The KING against SHEPHERD.

themselves. This applies in terms to the case of Marlborough; and, in fact, a rate has been raised there ever since 1775; and the county has never imposed any rate besides that which was quashed. The stat. 55 G. 3. c. 51. s. 1., besides the exemption of places having a separate jurisdiction, and subject to their own rates, continues the exemption of the places exempted by 12 G. 2. c. 29. In Rex v. Clarke (a) it appeared that no borough rate, in the nature of a county rate, had been levied within the borough of Bath before stat. 55 G. 3. c. 51.: and the county justices were deprived of their jurisdiction only so long as the borough magistrates did not make default, so that the jurisdictions were not entirely separate: and it did not appear that the warrants of the county magistrates required to be backed by the borough magistrates. There are certainly dicta in that case, of which the authority is questionable. From the language of Bayley J. in Mercer v. Davis (b), it is clear that he understood the non-intromittant clause to give the justices of the borough power to levy a rate in the nature of a county rate: and the whole tenor of the acts shews that it was not intended that any place should be liable to both rates. It is true that the charter of Marlborough gives power to send prisoners to the county gaol, and that, so far, the county is put to an expence; but the question must be decided only by the effect of the words in the statutes, which do not refer to the distribution of the expence: and the expence seems to be very slight. [Taunton J. Cannot the county compel the borough to repay such expences?] Even if that be so, it does not shew that the county justices can levy

(a) 5 B. & Ald. 665.

(b) 10 B. & C. 623.

a rate.

a rate. The indictment is for disobeying their order to levy the rate.

Barstow in reply. The construction of the word "separate jurisdiction" has been strained too far. A bench warrant, granted by the county justices at quarter sessions, would not require to be backed by the borough magistrates: the justices do interfere in the borough when assembled at quarter sessions. The rate which the borough justices have power to levy within the borough, is a rate for partial purposes only, and, therefore, the argument drawn from the fact of such levy is inapplicable here; so far, at least, as the rate here contended for is for other purposes. The object of

stat. 55 G. 3. c. 51. was to correct the disproportions in the assessments of county rates: the borough must, therefore, contribute, so far as it creates expence. This is the construction put upon the exempting section, stat. 12 G. 2. c. 29. s. 5., in Burn's Justice, County Rate, vol. i. p. 922 (a). "As, for instance, where by stat. 22 H. 8. c. 5., towns corporate are charged for the repairing of bridges within their respective liberties, and the counties for the bridges out of such liberties; in such a case, a town corporate ought not to be charged towards the bridges in the county at large; and, consequently, ought to have an abatement in the rate charged upon them, in such proportion as the expence of bridges is to the whole expence of the several articles charged upon the said general county rate: as if the expence of bridges be a tenth part of the whole expence chargeable upon the county rate, then such town corporate shall have an

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1834.

The KING against SHEPHERD.

1834.

The KING against SHEPHERD.

abatement of one shilling for every ten which it would otherwise be charged with in such rate."

Cur. adv. vult.

Lord DENMAN C. J. now delivered the judgment of the Court.

The question is, whether the justices of peace of Wiltshire have a right to enforce a county rate in the borough of Marlborough, the charter of which gives the borough justices power to commit felons to the county gaol, but prohibits them from trying felonies; at the same time containing a ne intromittant clause. The only facts in the case applicable to this question are, that the borough justices act within the borough, and the county justices exercise no jurisdiction there; that the borough justices have, since 1775, levied rates in the nature of county rates, and that the county has never rated the borough. The borough has a gaol of its own, and a county gaol is also locally situate within the borough; the prisoners apprehended for felonies committed within the borough have been apprehended by warrants of the county justices, backed by the borough justices. The expences of conveying them for trial. from Marlborough to Fisherton gaol, near Salisbury, for the assizes, have been paid by the borough; but the expences of maintaining them in the gaol, and of conveying them from that gaol to the assizes, by the county.

Under these circumstances we think there must be judgment for the defendant. There is some confusion in the cases on the subject, which appear, at first sight, not easy to be reconciled. As our opinion is founded on the words in the proviso, 55 G. 3. c. 51. s. 1., and the 24th

section

section of the same statute, we think it is not necessary to discuss the decisions. The proviso, after authorising the justices of the peace of the several counties in England, at their sessions, to make a fair and equal county rate, goes on and says, " Provided also" (his lordship then read the proviso). With this, the 24th section, authorising rates for counties, towns, and other places having commissions of the peace within themselves, agrees. (His lordship then read the 24th section.) It is, we think, sufficient to say, that the case is within the proviso. Marlborough is a place having a separate jurisdiction; and it was, before the passing of the act, subject to rates in the nature of county rates, imposed and assessed by its own justices. Both conditions therefore are satisfied. We are aware that this construction is not consistent with some of the decisions to be found in the cases cited, or rather with the expressions used by Lord Tenterden in Rex v. Clarke (a), that the jurisdiction of the borough magistrates must be co-extensive with that of the county magistrates, and with what Mr. Justice Bayley states in the beginning of his judgment in the same case. But this case does not admit of a decision, owing to the mixed and incongruous circumstances whereof it is composed, without conflicting with some previous opinion. The safest mode is to abide by the words of the

statute.

Verdict to be entered for the defendant (b).

(a) 5 B. & Ad. 672.

(b) See stat. 5 & 6 W. 4. c. 76. ss. 112, 113, 114. 117. as to the future liability of certain boroughs to county rates.

1834.

The KING against SHEPHERD.

1834.

Saturday,
Nov. 22d.

On return to habeas corpus, it appeared that

an action was

commenced in

the Lord

Sir JAMES SHAW, Bart., against Poynter.

THIS was an action of debt commenced in the Lord
Mayor's Court by the Chamberlain of the city of
London, for a penalty. The defendant having pleaded,
a habeas corpus was sued out, and a return made by the

Mayor's Court
penalties under lord mayor, aldermen, and sheriffs.

in London, for

a by-law, which
by-law was
founded on a

custom, that no
artificers or
handicrafts-
men, or other
shopkeepers
or traders by
retail, being

should be permitted to employ, hire, or set on work in

The return stated an immemorial custom of the city, "That no person or persons should be willingly suffered to exercise, use, or occupy any manual occupation

or handicraft, or to sell or put to sale any wares or merchandises by retail in any shop inward or outward, free of the city, or other place or room kept for shew, sale, or putting to sale any wares or merchandises by retail within the said city or liberties thereof, unless he or they were free or apprentice or apprentices with some that be free, and bound by indenture according to the custom of the said city; nor should any artificers, or handicraftsmen, or other shopkeepers or traders by retail, being free of the the city or ap- said city, be permitted to employ, hire, or set on work

craft or manual occupation within the city

or liberties, any

person not being free of

prentice to a

freeman. The

by-law, after stating that the custom had been infringed, to the prejudice of many poor handicraftsmen and others, being freemen, prohibited under a penalty the employment of any person contrary to the custom; and it added several provisoes, exempting certain cases from the operation of the clause. The provisoes immediately followed the enacting part, but formed distinct sentences, and were not incorporated with it by reference. The declaration in the suit was founded on the by-law, and charged the defendant, a freeman, with setting one W. C. on work" in the manual occupation of a butcher," within the liberties of the city, such person being a foreigner from the liberties, contrary to the by-law:

Held, that the custom, as set out, was good.

Also, that the by-law was good, though it gave no exemption from the penalty in case freemen should not be found to undertake the employment. And that the declaration was good, though it did not aver that such freemen could have been found.

Also, that it was not necessary, in the declaration, to negative the exceptions contained in the provisoes.

Also, that the offence was sufficiently described in the declaration, by stating that the defendant "set on work in the manual occupation of a butcher, one W. C.," &c.

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