division of a liberty, county of a city, county of a town, city, cinque port, or town corporate."

REG.

V.

DALE.

1853.

By the 126th section of 5 & 6 Will. 4, c. 76, An Act to provide for the regulation of Municipal Corporations in England and Wales, passed 9th September, 1835, it is enacted, "That when by any Application of act any penalties or forfeitures are or shall be hereafter made re- penalties under coverable in a summary manner before any justice or justices of the Alehouse Act. peace, and by such acts respectively the same are or shall be limited and made payable to His Majesty, or to any body corporate, or to any person whomsoever, save and except the informer, who shall sue for the same, or any party aggrieved, in every such case the same, if recovered and adjudged before any justice of any borough in which a separate Court of Quarter Sessions of the Peace shall be holden as aforesaid, shall, notwithstanding anything in such act respectively contained, be recovered for and adjudged to be paid to the treasurer of such borough for the time being, to the credit and on account of the borough fund of such borough; and no such penalty or forfeiture, or share of such penalty or forfeiture, shall in any case be recovered by, or adjudged to be paid to, any other person than the said treasurer, unless such person be the informer or the party aggrieved."

By sect. 31 of 11 & 12 Vict. c. 43, it is enacted, "That in every warrant of distress to be issued as aforesaid, the constable or other person to whom the same shall be directed shall be thereby ordered to pay the amount of the sum to be levied thereunder unto the clerk of the division in which the justice or justices issuing such warrant shall usually act; and if any person convicted of any penalty or ordered by a justice or justices of the peace to pay any sum of money shall pay the same to any constable or other person, such constable or other person shall forthwith pay the same to such clerk; and if any person committed to prison upon any conviction or order as aforesaid for nonpayment of any penalty, or for any sum thereby ordered to be paid, shall desire to pay the same and costs before the expiration of the time for which he shall be so ordered to be imprisoned by the warrant for his commitment, he shall pay the same to the gaoler or keeper of the prison in which he shall be so imprisoned, and such gaoler or keeper shall forthwith pay the same to the said clerk, and all sums so received by the said clerk shall forthwith be paid by him to the party or parties to whom the same respectively are to be paid according to the directions of the statute on which the information or complaint in that behalf shall have been framed; and if such statute shall contain no such directions for the payment thereof to any person or persons, then such clerk shall pay the same to the treasurer of the county, riding, division, liberty, city, borough, or place for which such justice or justices shall have acted, and for which such treasurer shall give him a receipt without stamp; and every such clerk and every such gaoler or keeper of a prison shall keep a true and exact account of all such moneys received by him, of whom and when received, and to whom and when paid, in the

REG.

v.

DALE.

1853.

form (T.) in the schedule to this act annexed, or to the like effect, and shall once in every month render a fair copy of every such account unto the justices, who shall be assembled at the petty sessions for the division in which such justice or justices shall usually act, to be holden on or next after the first day of every Application of penalties under month, under the penalty of forty shillings, to be recovered by Alehouse Act. distress in manner aforesaid; and the said clerk shall send or deliver every return so made by him as aforesaid to the clerk of the peace for the county, riding, division, liberty, city, borough, or place within which such division shall be situate, at such times as the court of quarter sessions for the same shall order in that behalf."

November 13. (b)

Pashley, for the defendant.-This question turns upon the meaning of the words "county or place" in 9 Geo. 4, c. 61, s. 26; and it is submitted that "place" includes a town corporate, and that the penalty mentioned in the case was consequently payable to the treasurer of the borough of Tynemouth, and not to the treasurer of the county of Northumberland. In other parts of the statute "place" evidently has that meaning (he referred to ss. 1, 3, 4, 7, 21); and there is no reason for supposing that it has not an equally extensive sense in sect. 26. The interpretation clause, sect. 37, still uses the same words "county or place," and only extends the enactment to persons acting in the capacity of treasurers, though not so called. [JERVIS, C. J.-It is obvious from that clause that the intention was that the penalty was to go to a fund, out of which the costs of public prosecutions are defrayed; and that would be the county rate, where the borough has no court of quarter sessions.] If the borough has no quarter sessions, it contributes to the county rate; and Tynemouth was the place for which the justices who imposed the penalty in this case were acting. (He referred to 13 & 14 Vict. c. 91, s. 9; and R. v. Sainsbury, 4 T. R. 451.)

Otter, contrà.-The defendant could only discharge himself by paying over the penalty to the county treasurer. The word "place" in sect. 26 must mean a place having a separate court of quarter sessions; and no difficulty is created by the words "for which the justice is acting," because in truth the borough justices within the borough have the same jurisdiction as the county justices, and may be described as acting for the county. It is supposed, that if the conviction is made by borough justices the penalty goes to the borough-if by county justices, then to the county; but in Tynemouth, the borough and county justices have concurrent jurisdiction; so that the conviction might be by one borough and one county justice. In that case, where would the penalty go? (sects. 101 and 111 of 5 & 6 Will. 4, c. 76.) The difficulty is avoided if the place is held to be a place of exclusive jurisdiction: (R. v. Amos, 2 B. & Ald. 533; R. v. Taylor, Salk.

(b) Before Jervis, C. J., Alderson, B., Coleridge, J., Cresswell, J., and Platt, B.

Pashley, in reply.-R. v. Amos has no application to this case. The court only decided that borough justices, who under 15 Geo. 2, c. 23, might commit prisoners to the County House of Correction, had incidentally the power of ordering them to be brought back again to be tried at the borough quarter sessions. It is no authority for the strange position that justices acting for a borough, and having only jurisdiction in the borough, can by construction of law be considered as acting for the county. On the other hand, if two county justices acted, they would act as justices for the borough in that instance, and they have concurrent jurisdiction within the borough. That observation removes the supposed difficulty of a conviction by one borough and one county magistrate. The penalty would still go to the borough, for both would be necessarily acting as borough magistrates.

ALDERSON, B.-" Treasurer of the county or place" is defined to be any officer acting as treasurer of what? "Of moneys from and out of which the costs of public prosecutions have been usually defrayed."

Pashley. That is a strained construction of the words of that clause, which speaks of any officer "acting in such capacity," that is in the capacity of " treasurer of the county or place" for which the magistrate was acting.

January 22.

Cur. adv. vult.

JERVIS, C. J., now delivered the judgment of the court.Whether the defendant is guilty or not guilty in this case depends upon the construction of the 9 Geo. 4, c. 61; and we are of opinion that, upon the proper construction of that statute, the defendant is guilty, and was properly convicted. The penalty, for the nonpayment of which to the treasurer of the county of Northumberland the defendant has been convicted, was in this case imposed under the Alehouse Act, 9 Geo. 4, c. 61, by justices acting for the borough of Tynemouth, which has a commission of the peace, but no court of quarter sessions; and the question is, whether that penalty ought to be paid to the treasurer of the County, or to the treasurer of the borough on account of the borough fund. By the 26th section of the Alehouse Act, so much of the penalty as is not awarded to the prosecutor is to be paid to the treasurer of the "county or place" for which the justice was acting when the penalty was imposed. The defendant's counsel contends that the word "place" must be understood in its ordinary sense; and that, inasmuch as the justices were acting for the borough of Tynemouth when the penalty was imposed, the treasurer of that borough is the person who ought to receive the penalty, and that it ought to be applied to the borough fund, under the provisions of the stat. 5 & 6 Will. 4, c. 76, s. 126. On

REG.

v.

DALE.

1853.

Application of penalties under Alehouse Act.

REG.

บ.

DALE.

1853.

Application of

the other hand, the prosecutor asserts that the word "place," as used in that section, means a place for which a court of quarter sessions is held. This, we think, is the right construction. In many of the sections in which the words "county or place" are used, it is manifest that the latter word applies only to places penalties under where quarter sessions are held. For instance, by the 27th secAlehouse Act. tion, parties aggrieved may appeal to the next general or quarter sessions of the peace of the "county or place" wherein the cause of complaint arose; and by the 33rd section the conviction is to be returned to the next general or quarter sessions of the peace of the "county or place" wherein the offence shall have been committed. The interpretation clause shows further, that it was intended that these penalties should be applied towards the costs of public prosecutions, and not to a borough fund, because it explains the words "treasurer of a county of place" to mean an officer acting in such capacity, or charged with the receipt and expenditure of moneys from and out of which the costs of public prosecutions have been usually defrayed. The person to receive the penalty is to be an officer acting in the capacity of treasurer of moneys for and out of which the costs of public prosecutions have been usually defrayed. In the same spirit the justices in quarter sessions are, by the 29th section, authorized to indemnify the justices from their costs upon an appeal in certain cases, and to order the treasurer of the "county or place" in and for which the justices acted to pay the amount. At the time the Alehouse Act passed corporations had private property, but no borough fund, properly so called, over which the Legislature could with justice exercise a control. The treasurer of the place meant in this section must clearly be the treasurer of a place having a court of quarter sessions-an officer under the control of the justices making the order, with a fund under their control. It would be strange that the same words should give to one fund, the borough fund, all the penalties for good convictions, and charge upon another fund, the county rate, all the costs for convictions which could not be sustained. For these reasons we think the conviction right.

Conviction affirmed.

COURT OF QUEEN'S BENCH.

January 29, 1853.

REG. v. THE INHABITANTS OF HOUGHTON. (a)

Indictment for non-repair of highway-Judgment upon former presentment-Estoppel.

Upon an indictment against a parish for the non-repair of a highway, and "Not guilty" pleaded, a former judgment upon a presentment against the inhabitants of the same parish for non-repair of the same road is conclusive evidence of the defendants' liability to repair, no fraud being imputed; and any evidence to show that the road is not situate in the parish indicted is inadmissible, even though it should be recited in a local act of Parliament as a fact that the road was in another parish, and though the presentment may, upon the face of it, show some defect, which would have been fatal on demurrer or in arrest of judgment, and the fine imposed upon the inhabitants was not proved to have been paid.

INDI

[NDICTMENT for non-repair of a highway. Plea. Not guilty.

At the trial which took place before Wightman, J. at Liverpool, during the last Summer Assizes, the prosecutors gave in evidence a former conviction of the defendants upon a presentment for the non-repair of the same road in 1791, with the judgment thereon imposing a fine. No evidence was given that the fine had been paid, and the defendants offered evidence to prove that the road in question was not in their township, They also relied upon a recital in a local act (59 Geo. 3, c. xxii.) stating as a fact that the road in question was situate in the parish of Denton. All this evidence was objected to on the part of the prosecution, but received by the learned judge, and a verdict was found for the defendants.

In the following term a rule nisi was obtained to enter the verdict for the Crown, on the ground that the judgment on the presentment was conclusive.

January 19. (b)-Cowling and Holland showed cause.

Atherton, Monk, and Russell, contrà.

The following authorities were referred to: R. v. Blakemore, 21 L. J. 207, M. C.; R. v. St. Pancras, Peake, N. P. C. 219; 2 Smith's L. C. 427, in notes to the Duchess of Kingston's case;

(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.

(b) Before Lord Campbell, C. J., Coleridge, Wightman, and Crompton, JJ.