Marlborough, Wilts, for not obeying an order of the justices in quarter sessions for that county, which order commanded him to issue his warrant to the overseers of two several parishes in the borough, to collect and levy 97. 14s. for the purposes of the county rate for the said county. Plea, not guilty. On the trial before Park, J. at the Devon Spring Assizes, 1831, a verdict of guilty was taken by consent, subject to the opinion of the court upon the following case :The charter granted to the borough of Marlborough, 7th of April, 4 James 2, contains an inspeximus of all the preceding charters. This charter was to be considered as part of the case. (a) The and two burgesses act as mayor *299] justices within the borough; the county magistrates exercise no jurisdiction within it. The practise is and has always been, to cause the warrants of the county magistrates to be backed by the borough justices. The borough justices hold sessions every quarter at the guildhall of the borough, and try misdemeanors. There is a borough gaol, and prisoners are occasionally placed there previous to examination. A doctor is paid for attending the poor for casualties, and for attending on the prisoners. The expense of keeping up this gaol is borne by the borough. If prisoners are to be tried at the borough sessions, or are to remain in custody for any time, they are sent to a county prison, situate within the borough. It is the bridewell of the county of Wilts; the expense of maintaining them there is paid by the borough, whenever the gaoler of the bridewell sends in the account, which he does quarterly. The borough pays him a salary, and he is also paid a salary by the county; he is, appointed by the county justices. When persons are charged with felonies committed within the borough, they are generally sent to the county bridewell' within the borough, for trial at the county assizes; but when the offences charged are heavy, the prisoners are sent at once to the county gaol at Fisherton, near Salisbury, for trial at the assizes: the borough pays the expense of conveying them there, but the expense of maintaining them in the county gaol until the assizes, and of conveying them from the county bridewell to the as*300] sizes, is borne by the county. The borough pays the expense of passing vagrants: the mayor acts as coroner within the borough; the expense of inquests are borne by the borough. There is a bridge within the borough, the expense of repairing which is borne by the borough. The corporation has lands within the borough. A rate is generally made once a year upon the two parishes within the borough: none has been found earlier than 1775, and that rate was put in on behalf of the defendant, and was set out in the case. It appeared to be imposed by the justices of the borough, at the borough quarter sessions; and it was a rate upon the two parishes for the purposes mentioned in the acts 12 G. 2, c. 29, and 13 G. 2, c. 18, assessing the proportion for each parish, and commanding the chief constables of the borough to demand it, and the churchwardens and overseers to pay it out of the money collected. for the relief of the poor: and the chief constables were directed to pay it over to C. B., residing within the said borough and town of Marlborongh, whom the said court had appointed treasurer and receiver; with power to the high constable, in case of non-payment by the churchwardens and overseers, to levy the money by distress and sale of the goods of the said churchwardens and overseers, by warrant under the hands and seals of two or more justices of the peace of and residing in the said borough. Similar rates have been constantly made and paid since the making of the above. The expenses and charges before mentioned as being paid and borne by the borough, together with other expenses, are borne out of the funds so raised. An order on the borough, made by the county justices in 1819, for payment of a sum towards the county rate, was appealed against and quashed. No county *301] rate was at any other time *charged on the borough, until which this indictment arose. that out of (a) See page 301, post. For the defendant there was put in an order of court made at the assizes for the county of Wilts, 5th March, 1825, ordering the churchwardens and overseers of the parishes in the borough to pay to the prosecutor of a person convicted, before the court, of felony committed within the borough, a specified amount for expenses and loss of time. Whether any payment was made under this order, did not appear. The prosecutor having applied for his expenses of this prosecution to be paid out of the county rate, the application was resisted by the county justices; and, it appearing that the felony was committed within the borough of Marlborough, which did not contribute to the county rate, the Judge made no order on the county. The corporation of Marlborough furnish their own town-hall, in which the business of the county quarter sessions, as well as their own has always been conducted. The question submitted in this case was, whether the county justices had power to make the rate mentioned in the indictment. If this Court shall hold in the affirmative, the verdict was to stand; otherwise, to be set aside, and a verdict to be entered for the defendant. The charters, set forth in the charter of James 2, annexed to the case, contained grants of fairs and markets, with quittance of shires and hundreds, and of suits of shires and hundreds, and of all manner of pleas and plaints except pleas of the crown, with exemptions from several other species of charges and duties; and a charter (of 6 John) contained a grant that the burgesses should be "quieti de omnibus aliis secularibus exactionibus *tam per mare [*302 quam per terram ubicunque venerint in totam terram nostram; and further, "quod nullus eorum faciat duellum ;" and it added "prohibemus ne ponantur in placito de aliquo tenemento ejusdem burgi nisi in eodem burgo.' A charter of 18 Eliz. incorporated the borough, and granted that the mayor, burgesses, and their successors should for ever have (a) "a prison or gaol in some convenient place within the borough aforesaid, according to their discretions, to be there limited and assigned, safely and securely there to keep, by the said mayor and burgesses or their deputies, all and singular the persons to be from time to time apprehended or taken within the same borough, and all other persons for any cause happening to be sent to the prison or gaol aforesaid, until they shall be delivered therefrom according to form of law: and that it may and shall be lawful to the same mayor and burgesses and their successors, at their pleasure, henceforth from time to time [to send] the prisoners whomsoever who shall happen to be apprehended for treason, murder, felony, or suspicion of felony within the borough aforesaid, to the common gaol of our county of Wilts; commanding, and by the tenor of these presents firmly enjoining, the keeper of the same gaol for the time being the same prisoners and every of them from time to time to receive, and safely and securely keep them there, until they shall be delivered therefrom according to form of law." The same charter gave power to make laws, &c., for the government and rule of artificers and other inhabitants, and "that the aforesaid mayor and burgesses of the said borough and town of Marlborough aforesaid, have, hold, receive, and enjoy, *and may and shall be able to have, &c., so many, so great, the same, [*303 such sort of, and the like, courts leet, law days, courts of piepoudre, fines, amerciaments, views of frankpledge, goods and chattels waived, estrays, goods and chattels of felons and fugitives and persons put in exigent, felons of themselves, deodands, and all other profits, commodities, rights, jurisdictions, privileges, easements, and emoluments whatsoever, as and which the aforesaid mayor and burgesses of the aforesaid borough and town of Marlborough, or their predecessors, and burgesses of the borough and town aforesaid, ever had, held, received or enjoyed, or ought to have, hold, or enjoy, within the borough and town aforesaid by reason or pretext of any charter," &c. The same charter (a) The original charter of 18 Eliz., was in Latin. of Elizabeth further granted, that the mayor and two other burgesses of the borough, by the mayor for the time being to be named, or two of them (of whom the mayor for the time being to be one), "may be and shall be the justices of us, our heirs and successors, to keep the peace of us, our heirs and successors, within the borough aforesaid, and may have full power and authority to keep the peace of us, our heirs and successors, and to do and execute all other things, which to a justice of the peace of us, our heirs and successors, in any of our counties of England, pertain to be done and executed for the good keeping of the peace of us, our heirs and successors, and for the quiet rule and safe government of the people of us, our heirs, and successors, in all and singular their articles within the borough aforesaid, according to the force, form, and effect of the statutes and ordinances thereupon passed to keep and cause to be *304] kept. And [to punish] all those who shall be found acting or offending against the force and effect of the statutes and ordinances aforesaid, according to the law and custom of our kingdom of England, as fully and entirely and in as ample manner and form as justices of the peace in our county of Wilts, or elsewhere within our kingdom of England, have heretofore done or exercised or hereafter shall do or exercise, out of the borough and liberties aforesaid, so nevertheless that the said justices of the peace within the said borough and town of Marlborough aforesaid, for the time being, do not proceed to the determination of any felony without the special mandate of us, our heirs, or successors." Then followed a grant that the mayor for the time being should be escheator, coroner, and clerk of the market; "and that no other justice, escheator, coroner, or clerk of the market, of us, our heirs, and successors, into the said borough or the precincts of the same in anywise howsoever enter or intromit themselves, or himself, there to do and execute anything there which to the office of justice, escheator, coroner, or clerk of the market, pertains there to be done and performed." The case was argued in this term, (November 15th,) before Lord DENMAN, C. J., TAUNTON, PATTESON, and WILLIAMS, JS. Barstow, for the prosecution. The question arises on stat. 55 G. 3, c. 51, *305] s. 1. (a) This is not a case within *the exception in the proviso of that section. In Rex v. Clarke, 5 B. & Ald. 665, it was held that the proviso applied to cases only where the franchise claiming the exemption had jurisdiction co-extensive with that of the county justices. Now here the justices of the borough cannot try felonies, as the county justices can. It is true that Lord Tenterden, in that case, page 672, insisted upon the fact that Bath, the place claiming the exemption, was not liable to a rate in the nature of a county rate before the stat. 55 G. 3, c. 51, whereas here there is a separate rate for the borough. And in Mercer v. Davis, 10 B. & C. 617, it was held, that borough (a) 55 G. 3, c. 51, s. 1, reciting that the laws now in force are found ineffectual for the correction of the disproportions in county rents, enacts, that it shall be lawful for the justices of the peace of counties, at their general or quarter sessions, &c., to order a fair and equal county rate, for certain purposes, "in places within the respective limits of their commissions;" provided also, that nothing in this act contained shall extend or be construed to extend to give any jurisdiction to the justices of the peace of the said several counties, over any places situate within the limits of any liberties or franchises having a separate jurisdiction, which before the passing of this act were subject to rates in the nature of county rates imposed and assessed by the justices of the peace for such liberties or franchises, or which were exempt from the rates of the county in which they lie, either in the whole or in part; nor to alter any proportion of county rate payable by any liberty or franchise having a separate jurisdiction, as established between the county and the said liberty or franchise, provided such exemption or proportion shall have been created by or derived from grant, charter, or any special local act of parliament; nor to compel any such liberty or franchise, paying to some one or more of the rates specified in the preamble of an act passed in the twelfth year of the reign of his late Majesty King George the Second, intituled An Act for the more easy assessing, collecting and levying County Rates' to pay to any other Rate therein mentioned, to which such Liberty or Franchise was not liable to contribute before the passing of the said Act." VOL. XXIX.-11 [*306 justices might impose a rate at Maidstone, where there was a non-intromittant clause, but the justices had no power to try felonies. That, however, does not shew that Maidstone was exempt from the general county rate; for Bayley, J., says, page 624, "We have been pressed with the decision in Rex v. Clarke, 5 B. & Ald. 665; and if that were applicable to this case, we should have to decide another question; viz. whether the borough of Maidstone can raise its own rate for some purposes, and be liable to the general county rate for others." That is precisely the question in the present case. No exemptions given by the charters, antecedently to the statute, can be construed to protect from the charges imposed by the statute. The city of London, which possesses charters granting exemptions in very general words, does not claim them as against charges subsequently imposed; Norton's Commentaries on the History, &c., of London, book 2, ch. 2, p. 365. Here the borough brings expenses upon the county. The borough justices are to send felons to the bridewell or county gaol; and the expense of maintaining and moving the felons afterwards falls on the county. Follett, contrà. The statutes, independently of the exemptions in the charters, are sufficient to protect the borough from the rates. The justices of the borough exercise the full powers of justices of the peace: the power to try felonies is not among the regular powers of a justice of peace. They have, therefore, a separate jurisdiction; and the non-intromittant clause is without exception as to the jurisdiction of a justice of peace. The words are not distinguishable from those used in Mercer v. Davis, 10 B. & C. 617; and, in fact, the case shews that the justices of the county exercise no jurisdiction, as such, within the borough: they cannot even apprehend for a felony committed there. Neither do they *try such felonies. Then, as to the expense said to be [*307 brought upon the county, the borough rate repays the expenses properly belonging to the borough itself: it maintains its own gaol, and supports the prisoners tried at its own sessions. The first statute imposing a general county rate was 12 G. 2, c. 29, the 5th section of which exempts places from contributing to any particular rate to which they were not before liable. Then stat. 13 G. 2, c. 18, s. 7,(a) shews that this exemption extends to such places as have commissions of the peace within themselves, and are not subject to the jurisdiction of the commissions of the peace for the counties; and power is given to [*308 such places to raise rates for *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. (a) Stat. 13 G. 2, c. 18, c. 7, recites the stat. 12 G. 2, c. 29, and goes on as follows: "but there being a proviso in the said act, that the same, or any thing therein contained, should not extend, or be construed to extend, to make any persons, liberties, divisions, or places liable to pay to any rate to be made in pursuance of the said act, to which such person, &c., did not, or was not liable to contribute before the passing thereof; some doubts have arisen whether the said act doth extend to liberties and franchise, which are not within the jurisdiction of the commissions of the peace for the counties in which such liberties and franchises lie, and so never did nor were liable to contribute to the said county rates; to the end therefore that such liberties and franchises may not be wholly deprived of the benefit of the said in part recited act, it is hereby declared and enacted by the authority aforesaid, That where any liberties or franchises within that part of Great Britain called England, have commissions of the peace within themselves, and are not subject to the jurisdiction of the commissions of the peace for the counties in which such liberties or franchises lie, and do not, nor did before the making of the said in part recited act, contribute or pay to the several rates made for the said counties; it shall and may be lawful to and for the justices of the peace of such liberties and franchises, within the respective limits of their commissions, to have, use, and exercise all and singular the powers, authorities, and methods, given or prescribed by the said in part recited act, and all such liberties and franchises are hereby declared to be subject thereto, in the same manner to all intents and purposes, as counties at large are; any thing in the said in part recited act contained, or any law, usage, or custom to the contrary thereof in anywise notwithstanding." 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, 5 B. & Ald. 665, 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, 10 B. & C. 623, 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 expense; 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 expense: and the expense seems to be very slight. [TAUNTON, J. Cannot the county compel the borough to repay such expenses?] Even if that be so, it *309] does not shew that the county justices can levy 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 expense. 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, Chitty's ed. (26th, 1831). "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 expense of bridges is to the whole expense of the several articles charged upon the said general county rate: as if the expense of bridges be a tenth part of the whole expense chargeable upon the county rate, then such town corporate shall have an *abatement of one shilling for every ten which it would otherwise be charged with in such Cur, adv. vult. *310] rate." The question is, whether the justices of the 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 expenses of conveying them for trial from Marlborough to Fisherton gaol, near Salisbury, for the assizes, have been paid by |