1819. The KING against AMOS. at the borough sessions for Liverpool, of a petty larceny, and sentenced by those sessions to three months' imprisonment in the house of correction; and the other for refusing to receive a prisoner convicted, under 51 G. 3. c. 143., for being within the port and harbour of Liverpool, and within the borough, with intent to commit felony; and the Court held the governor bound to receive in the former case but not in the latter. Why? Because the former was a county offence, triable ad libitum, either at the borough or the county sessions; and the latter was merely and exclusively a borough offence, not cognizable by justices of the county, but cognizable by borough justices only; and, unless committed within the limits of the borough, no offence at all. In the former of those cases, Lord Ellenborough takes notice, that this statute is a declaratory act; and though it recites that doubts had existed, it considers those doubts as unfounded. Now if these doubts were unfounded, justices of liberties could, before that act, and still may, independently of that act, commit to county houses of correction to which those liberties contribute. Upon what principle could that be but upon this, that to this extent, and with reference to county offenders within their limits, they were in the nature of, and had the powers of county justices; and if this were their character, they must be considered as county justices for all purposes connected with the subject, and not for the purpose of commitment only. If they can oblige the governor to receive, why shall they be restrained from obliging him to give up? If they have the former power, by what legal principle are they deprived of the latter? Lord Ellenborough considers the enactment in 15 G. 2. as proceeding on the reason, that that they who contribute to the burthen ought to have the benefit. Ought they not, then, to have the full benefit? Why are they to be confined to cases of commitment after trial, or to those cases of commitment where the prisoner is to be tried at the county sessions? The present L. C. J. states the same principle, that they who contribute to a burthen should partake of the benefit; and intimates it, as the strong inclination of his opinion, that at common law the justices of Liverpool, contributing to the county rate, would have liberty to use the county house of correction. But he considers all doubt at common law as removed by 15 G. 2., and considers that act as entitled to a large and liberal, not a narrow and restrained construction. Now, if that act were an enacting statute only, and not declaratory, perhaps the words in it might not be sufficient to reach this case; because it directs, that the person committed shall be dealt with as if committed by a justice of the county; and it might be matter of doubt whether the borough sessions could order a man to be brought up to them, if his commitment were not by a borough but by a county magistrate. I intentionally use the terms "matter of doubt," because I am by no means clear they could not. But considering this, as it is, a declaratory as well as an enacting statute, would it not be , a most narrow and restrained construction, and the reverse of a large and liberal one, to confine it to the letter and not to the spirit, and to say, that a borough magistrate, though he may commit to it, cannot order from it, the person whom he has so committed? The true principles of the act are, that they who contribute to the expense should have an equal, not a partial, share of the benefit; and that the borough justices should, 1819. The KING against AMOS. 1819. The KING against AMOS. should, for this purpose, at least with regard to those offences which are county offences, be considered as county justices; and that the governor of the house of correction should be under their command and controul, as to such prisoners as they commit for their part of the county, as much as he is under the command and controul of the other county magistrates, as to the prisoners whom they commit. For these reasons, we are of opinion that the judgment ought to be entered for the crown. Judgment for the Crown. Monday, Where an avowry stated that the defendant held the pre mises at a certain yearly rent, to wit, the year ly rent of 721. and the plaintiff pleaded, 1st, non tenuit, and, 2dly, Riens in arrear; and the first plea was found COSSEY against DIGGONS. REPLEVIN. The defendant pleaded three avowries, stating that the plaintiff held and enjoyed the premises in which, &c. of her the defendant, by virtue of a certain demise theretofore made at and under a certain yearly rent, to wit, the yearly rent of 721., payable half-yearly, and avowed in the first avowry for one year and a half's rent; in the second, for half a year; and in the third, for 967. 10s. 10d., parcel of one year and a half's rent. for the plaintiff: The plaintiff pleaded in bar to each avowry: first, that he did not hold and enjoy the premises in which, &c. Held that the 2d plea became thereby immaterial, and that the proper course was to discharge the jury from finding any verdict upon it; but that if any verdict was entered upon it, it must be entered for the plaintiff. at and under the yearly rent of 72l., payable, as in the same avowry mentioned, in manner and form as in the same avowry alleged; and, secondly, that nothing of the said rent in the same avowry mentioned was in arrear to the defendant upon all which pleas issue was joined. At the trial before Graham B., at the last assizes for the : county of Suffolk, the rent was proved to be 721. 9s. per annum, annum, upon which the plaintiff contended that all the Bayly, on a former day, moved for a rule nisi to enter the verdict for the plaintiff, with one shilling damages upon the three pleas, denying the holding at the rent mentioned in the avowries, according to the legal effect of the finding of the jury; and to deliver the postea to the plaintiff; and also to enter the verdict for the plaintiff upon the three pleas of riens in arrear, according to the legal effect of the finding of the jury upon the whole case. The Court said, that by the finding of the jury upon the first issues, the second became wholly immaterial; and that the proper course would have been to have discharged the jury from finding any verdict at all upon them. As, however, no verdict at all had been entered on 1819. COSSEY against DIGGONS. 1819. COSSEY against DIGGONS. on the record, they said they had at present no jurisdiction; and that the proper mode of proceeding would be to make an application to the learned Judge who tried the cause to direct in what way the verdict should be entered. (a) An application to the same effect as the proposed rule having been afterwards made before Graham B., Storks shewed cause. He contended, first, that the defendant was not bound to prove the exact rent stated in the avowries, in which it was laid under a videlicet. On the second point, he urged, that the defendant was entitled to have the verdict entered in his favour upon the pleas of riens in arrear, inasmuch as those pleas admitted the tenure; and the only questions upon them were, whether any thing, and how much, was due. The jury, therefore, by finding 36l. 4s. 6d. for half a year's rent to be due, had found for the defendant upon those pleas. Bayly, contrà, contended, first, that the amount of the yearly rent under which the plaintiff was stated in the avowries to have held was material, and must be proved as laid; and, secondly, that though the plea of riens in arrear, when pleaded alone before the statute 1 Ann. c. 16., admitted the tenure, yet, since that act which authorizes the pleading, not several pleas, but several matters, it was competent to the plaintiff, both to deny that he held under the rent mentioned in the avowries, and also to allege, that nothing of the said rent in the said avowries mentioned, was in arrear; and, therefore, that it was impossible, whilst both pleas stood, that he could be considered as having admitted, what he at the (a) We have been favoured by the learned counsel with a note of what passed on the argument before Mr. Baron Graham. same |