of inefficiency in the proceeding. But the Turnpike Act, 4 & 5 Vict. c. 59, takes it up and provides a mode of proceeding by which the Justices can ascertain the state of the accounts of the turnpike trust, and whether there are funds sufficient for the repair of the road; and if insufficient, then an order is to be made upon the parish surveyor, allotting a portion of the highway rate for the repair of the part of the road out of repair. In this way all would be done according to law and justice. I do not think the legislature ever could have contemplated an enactment by which the parish surveyor should be brought before the Justices merely for the purpose of imposing a nominal fine.

WIGHTMAN, J. concurred.

ERLE, J.-The 94th section points out a perfectly rational mode of proceeding for obtaining the object in view. Upon information a summons issues to the parish surveyor; in the mean time the Justices are to ascertain whether the road is out of repair; and then they meet in special sessions, and if the road is not in repair, they are to convict the parish surveyor if the parish is liable for the repair. If some one else and not the parish is liable, then the section specially provides that the order shall be against the other party liable, and so the enacting part of the section leaves the matter, but then comes the proviso.[He read the proviso.]-The meaning is that the Justices in special sessions shall, in a case like this, summon the treasurer or surveyor of the turnpike road, and make the order directed to be made by the section on such officer. Why should the Justices make a nugatory order or conviction upon the parish surveyor before exercising the jurisdiction given by the proviso over the turnpike trustees, upon whom the duty of repairs is cast by law, and who are bound to execute the repairs if they have funds?

Rule discharged.

The following CASE was stated by Martin, B. from the last Spring Assizes held at Carlisle.

I request the opinion of the Court of Criminal Appeal upon the following case:

-On the 2nd of February 1849 the prisoner, Joseph Topping, a subject of Her Majesty, who was at that time usually resident at Carlisle, married in Scotland, and according to the law of Scotland, Ann Ashton, then also in like manner resident in Carlisle. On the 25th of November 1854, Ann Ashton being alive, the prisoner, who continued resident at Carlisle, married in Scotland, and according to the law of Scotland Jane Lister, then also usually resident at Carlisle.

Question-Has the prisoner committed an offence against the statute 9 Geo. 4. c. 31?

No counsel appeared on either side.

It is

JERVIS, C.J.-We are of opinion that the offence is complete within the statute. The prisoner married a woman in Scotland. He afterwards contracted a second marriage in Scotland during the life of his first wife. At the time of his second marriage, therefore, he was a person married. found also that he is a British subject. This makes him amenable to punishment, for the act says, "that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of His Majesty.'

The rest of the COURT concurred.

Conviction affirmed.

* Coram Jervis, C.J., Wightman, J., Cresswell, J. and Martin, B.

Borough Prisoners-County Gaol-Expense, &c. of Prisoners-Liability of Borough-5 & 6 Vict. c. 98. s. 18.

An additional gaol for the county of Essex was built under a local act, which, by section 28, gave power to the Justices acting in and for the boroughs, &c., within the county, having distinct jurisdiction, to commit offenders charged with or convicted of offences committed within such boroughs to the said county gaol, and, by section 29, provided for the payment by the said boroughs to the treasurers of the county, of a certain sum for the expense of the feeding and clothing of the borough prisoners confined in the county gaol under the commitments before mentioned. These sections were inserted in the act after a conference between a deputation on the part of some of the boroughs affected by the act, including the borough of Colchester, and the county Justices. Since the passing of the act, offenders within the borough of Colchester had been committed to the said gaol, and the expense of maintaining such offenders paid for by the said borough in the manner provided for by the above sections, there being no other arrangement existing between the borough and the county. Before the passing of the General Prison Act, 5 & 6 Vict. c. 98, a separate Court of Quarter Sessions was granted to the said borough, and under this act the county claimed to be paid 400l., being the actual expense attending the borough prisoners, and 100l. for interest and instalments of money borrowed for repairs, alterations, additions and improvements to the said gaol, in the manner provided by section 18. of such general act :-Held, that there was no special contract subsisting between the borough and the county relative to the borough prisoners, within the meaning of section 18. of the 5 & 6 Vict. c. 98, which repealed sections 28. and 29. of the local act, and therefore that the county was entitled to recover from the borough the whole of the amount claimed.

NEW SERIES, XXV.-MAG, DAS.

The following CASE was stated for the opinion of this Court without pleadings, under the Common Law Procedure Act, 1852. An additional gaol for the county of Essex was erected in or soon after the year 1822 under the provisions of the act, 1 & 2 Geo. 4. c. cii, intituled "An act for building an additional gaol for the county of Essex, and for enlarging, improving, and altering the existing prisons for the said county.' Before the passing of the said act, and when the bill for that act was being presented, it was proposed that the boroughs in the said county, of which the borough of Colchester was one, should contribute to the county rate to be raised for the said additional gaol, which proposition was objected to on the part of the said boroughs or some of them, and opposition was threatened to the said bill by divers parties interested in and offering such opposition on behalf of the said boroughs or some of them; whereupon, deputies from the parties who threatened such opposition and a committee of Justices of the said county conferred together on the subject, and on such conference agreed on the principles embodied in the clauses forming sections 28. and 29. of the said act, 1 & 2 Geo. 4. c. cii, which clauses were, upon the report of the said committee of Justices, assented to and adopted by the Justices of the said county in Quarter Sessions assembled, and the Members of Parliament for the said county were requested to procure the insertion of the said clauses of the said bill, and the said clauses were inserted accordingly. The following are copies of the 28th and 29th sections of that act:"28. And whereas there are several boroughs, towns corporate, liberties, and other distinct jurisdictions within the county of Essex aforesaid, in which Justices acting in the Commission of the Peace for the said county have no power or authority: And whereas the Justices acting in and for the said boroughs, towns corporate, liberties, and other distinct jurisdictions, have frequently, for a long time past, committed offenders either charged with or convicted of offences committed within the limits of the said boroughs, towns corporate, liberties, and other distinct jurisdictions, to the county gaol for trial at the assizes of the

L

said county of Essex, or after conviction on their trials had within such borough, towns corporate, liberties, and other distinct jurisdictions; and doubts having arisen. respecting the authority for such commitments to the county gaol: Be it further enacted, that, from and after the passing of this act, it shall be lawful for the Justices acting in and for the said boroughs, towns corporate, liberties, and other distinct jurisdictions respectively, to commit to the said county gaol offenders charged with or convicted of offences committed within the limits of such boroughs, towns corporate, liberties, and other distinct jurisdictions.' "29. And be it further enacted, that, from and after the passing of this act, the treasurer or treasurers of the said county of Essex shall, and he and they is and are hereby respectively authorized to demand and receive of and from the treasurer or other officers who shall receive the rates or levies collected within and for such boroughs, towns corporate, liberties, and other distinct jurisdictions respectively, such sum and sums of money as the Justices of the said county of Essex shall, at the Quarter Sessions to be holden by them next after the close of Easter in each year, determine to be double the average amount of expense per diem of feeding and clothing a prisoner in their county gaol for each and every day any offender charged with or convicted of an offence committed within the limits of the said boroughs, towns corporate, liberties, and other distinct jurisdictions respectively, shall be confined or imprisoned under such commitments as before mentioned in the said county gaol; and for the recovery thereof the treasurer or treasurers of the said county of Essex shall have the same remedy and remedies against the treasurers and other officers of the said boroughs, towns corporate, liberties, and other distinct jurisdictions respectively, as he or they now have for recovering or enforcing the payment of the county rate from any parish of the said county; and the said treasurer or other officers who shall receive the rates or levies collected within and for the aforesaid boroughs, towns corporate, liberties, and other distinct jurisdictions respectively, are hereby required to pay the same accordingly out of the said

rates or levies: Provided always, that nothing in this act shall be construed to alter in any way any existing law or statute as to the general liability to assessment to the county rates of any of the said boroughs, towns corporate, liberties, and other distinct jurisdictions, or in any way to abridge or alter their peculiar rights and privileges." The whole of the said act

was to be considered as part of the case. The borough of Colchester above mentioned is the borough named by that name in Schedule A. to the Municipal Corporations Act, 5 & 6 Will. 4. c. 76. From the time of the erection of the said additional gaol down to the present time, both before and after the passing of the general act, 5 & 6 Vict. c. 98, intituled, "An act to amend the law concerning prisons," persons committed for offences arising within the said borough have been sent to the said additional prison of the county of Essex (being the county in which the said borough is situate), and there has not been before or since the passing of the act, 1 & 2 Geo. 4. c. cii., any special contract subsisting between the said borough and county relating to the said prisoners, unless the agreement under which sections 28. and 29. were inserted in the act, as herein before stated, constituted such a contract, but such prisoners have been from time to time paid for on the terms provided by the said last-mentioned act. A separate Court of Sessions of the Peace was granted to the said borough before the passing of the said statute 5 & 6 Vict. c. 98. The Justices of the county now claim to be paid for the expenses of borough prisoners, under the provisions of the 5 & 6 Vict. c. 98. s. 18; and the present action is brought to recover a sum of 500l., being an amount claimed by the said county from the said borough, for prisoners under and according to the said 18th section, and in that amount is included a sum of 100l. for interest on instalments of money borrowed by the county in the years 1846 and 1847, for alterations, additions, or improvements in or to the said gaol. The demand is objected to by the defendants in toto: first, on the ground that the payments to be made by the said borough, in respect of prisoners, ought to be regulated by the said act of

1 & 2 Geo. 4. c. cii. alone; or if not, then, secondly, as to the 100%. (part of the said 500l. claimed), on the ground that the said sum of 100%., being for interest and instalments of money borrowed as aforesaid, is a sum which the Justices of the county are not entitled, under the 18th section of the said act of the 5 & 6 Vict. c. 98, to compute and charge against them. If the Court should be of opinion that the defendants were right on their first ground of objection, then judgment was to be entered for the defendants. If the Court should be of opinion that the defendants were right on their first, but wrong on their second ground of objection, then judgment was to be entered for the plaintiffs for the sum of 400l. But if the Court should be of opinion that the defendants were not right on either of the said grounds of objection, then judgment was to be entered for the plaintiffs for the sum of 500l., but without costs on either judgment.

The plaintiffs' points were, that there was no special contract between the borough of Colchester and the county of Essex, within the meaning of the 5 & 6 Vict. c. 98. s. 18; that the agreement, prior to the 1 & 2 Geo. 4. c. cii., did not amount to such a contract, but was only a consent on the part of certain persons not to oppose the said bill, and that the 28th and 29th sections of the 1 & 2 Geo. 4. c. cii. were not a contract between the said parties; that the said parties never had any lawful power to make any contract, except under the

power given by the 5 Geo. 4. c. 85. s. 1; that the 5 & 6 Vict. c. 98. s. 18. applied to cases like the present, and would otherwise be inoperative, boroughs in general having no power to send prisoners to county gaols, except by special enactments, or by contracts under the 5 Geo. 4. c. 85. s. 1; that the prison accommodation and expenses provided for by the 1 & 2 Geo. 4. c. cii. were expressly limited by that act, and the said borough, if not liable to pay under the 5 & 6 Vict. c. 98. s. 18, would have the benefit of all subsequent improvements and expenditure, without contributing thereto; and with respect to the interest claimed, that it was part of the expenses of the repairs, &c. of the prison, and was a charge on account of the prisoners, with

in the meaning of the 5 & 6 Vict. c. 98. s. 18.

The defendants' points were, that at the time of the passing of the 5 & 6 Vict. c. 98. there was a special contract between the borough of Colchester and the county of Essex within the meaning of the 18th section of that act; that whether or not there was such special contract, the 1 & 2 Geo. 4. c. cii. was not repealed by the 5 & 6 Vict. c. 98, and that the borough of Colchester was still entitled to pay for prisoners, at the rate provided by the former act; that, under any circumstances, the borough of Colchester was not liable to pay anything to the county in respect of money borrowed by the county in the years 1846 and 1847, for alterations and improvements in or to the county gaol.

ing of that section, which clearly refers to express written contracts entered into under the powers given by the 5 Geo. 4. c. 85, before the passing of the 5 & 6 Vict. c. 98, and does not apply to parliamentary enactments such as those found in the 28th and 29th sections of the local act. But, then, Mr. Bovill has very forcibly argued that the general words of the 5 & 6 Vict. c. 98. cannot be taken as repealing the special enactments in the local act; that must depend upon whether it appears to have been the intention of the legislature to repeal the local act, and it seems to me that such was the intention of the legisla. ture. We must look to the acts themselves, and doing so it must, I think, be considered that the legislature intended to sweep away the private and local practice that had existed, though sanctioned by acts of parliament, and to have one uniform mode of conducting the contribution of boroughs to county gaols, unless where they are clearly within the special exception. The words of the 18th section seem, in the most express terms, to apply to every borough with which there is no special contract, and the exception strengthens the enactment. Colchester is a borough having a separate Court of Quarter Sessions, and there is no special contract; the section, therefore, seems to me clearly and expressly to apply to the borough, and the meaning being clear, we cannot regard the inconvenient consequences, if there be any. The cases brought before us, in which it has been held that general words in an act did not repeal special enactments, cannot govern our decision in this case. Here it may well be considered as the intention of the legislature that the previous enactments should be repealed, but in those cases the intention was considered to be otherwise. As to the sum of 1007., that is in respect of a debt lawfully incurred subsequent to the passing of the 5 & 6 Vict. c. 89. for alterations, additions and improvements, and must also be considered as coming within the 18th section of that act.

WIGHTMAN, J.-I am of the same opinion. As to the first point, I think the provisions of sections 28. & 29. of the local act do not amount to a special contract within

the meaning of the section in question. As was said in The Queen v. New Sarum, it would be doing a violence to the language of the statute to consider this as a special contract between the borough and the county. As to the other point, that, independently of there being any contract, the 18th section of the 5 & 6 Vict. c. 98. was not intended to repeal the former enactments, the section contains a general provision applicable to a new state of things, and from that time to be considered a general law applicable to all cases coming within it, and it repealed all local acts. Upon the whole, therefore, I think there was no special contract subsisting within the meaning of the 18th section, and that the provisions of that section are the governing provisions on a question of this kind. As to the 100l. for expenses incurred after the passing of the 5 & 6 Vict. c. 98, it also comes within the 18th section, and the plaintiffs are entitled to the whole 500l.

The

ERLE, J.—I am also of opinion that the plaintiff is entitled to recover. The case comes within the general enactment in section 18. of the 5 & 6 Vict. c. 89, and is not, I am clearly of opinion, within the exception. There was not, as it seems to me, a special contract between the borough and the county within the meaning of that section. I also think that the general enactment was intended to repeal any special practice as to any particular gaol existing either by custom or local enactment. enactment in terms goes to that extent, and there is good reason that it should have that operation, because in many instances the boundaries of boroughs have been altered, and the borough jurisdiction and the relations of parties have been changed, and the intention was to make one uniform practice applicable to all boroughs which did not come within the exception. As to the 100%., it also seems to me to fall within the expense for the repairs that are required to be done by section 18. CROMPTON, J. concurred.

Judgment for the plaintiffs.