REG.

v.

WEST

WATER

WORKS COMPANY.

of the party rated. The principle of the judgment is, that the direct source of profit from water or gas is the delivery of the MIDDLESEX article to the consumer; and that the instrument of delivery should be rated for the net profits; and, if the service pipe belongs to the consumer, the junction of the service pipe with the main is in the occupation of the Company, and is rateable. Our judgment here is founded on that case. And we have thus endeavoured to apply the principle there laid down to the rating of the premises here in question.

I may here observe, speaking for myself alone, that from this judgment, in which Lord CAMPBELL and my brothers ERLE and HILL concur, I do not dissent, as it is founded upon the principle laid down in the case of Reg. v. Mile End Old Town (1) which is the leading, as well as one of the latest, cases upon the question before us; and it is most desirable to preserve uniformity of decision if possible. There appears to me, however, so much difficulty in satisfactorily applying the parochial principle of rating by estimating the rent which a tenant would give for the subject-matter in such a case as the present, as practically to amount, nearly if not entirely, to an impossibility of doing so satisfactorily. I may also add that I am not quite satisfied that the distinotion which has been taken between direct and indirect sources of profit, as applied to the mains and pipes of a Water Company running through different parishes, is well founded, and more especially in cases where the mains only belong to the Company, and not the service pipes. Indeed the whole subjectmatter appears to me to be involved in so much difficulty and uncertainty, that I cannot but hope that the Legislature may interfere, and make some provision adapted to the rating of the property of such Companies as that in question, and which may declare the principle upon which such Companies are to be rated, and establish some uniform and practicable mode of carrying that principle into effect.

Judgment for the appellants.

1859.

April 20.

[729]

REG. v. FOX.

(1 El. & El. 729-748; S. C. 28 L. J. M. C. 157; 29 L. J. M. C. 54; 5 Jur. N. S.

1248; 7 W. R. 410; 8 W. R. 93.)

The Municipal Corporations Act, 5 & 6 Will. IV. c. 76, s. 102 (2), after empowering the justices of boroughs to appoint a fit person to be their clerk, and declaring certain specified persons (not including the clerk of the peace for the county in which the borough is situate), (1) 74 R. R. 269 (10 Q. B. 210). s. 5. See now s. 159 of the repealing (2) Repealed, 45 & 46 Vict. c. 50, Act.

to be ineligible for the appointment, provides "that it shall not be lawful for the said clerk to the justices, by himself or his partner, to be directly or indirectly interested or employed in the prosecution of any offender committed for trial by the justices of whom he shall be such clerk as aforesaid, or any of them, at any court of gaol delivery or General or Quarter Sessions." It then prohibits, under a penalty of 1007., any of the persons before declared ineligible, from acting as clerk to the justices, or otherwise offending in the premises. Defendant, who was eligible, was appointed, under the statute, clerk to the justices of the borough of N. He was then, and since continued, in partnership with P., the clerk of the peace for the county in which N. was situate who, as such, was entitled to certain fees upon the arraignment and trial of all prisoners tried at the county Quarter Sessions. After defendant's appointment, certain offenders were committed for trial, by the justices of N., at the county Quarter Sessions. Upon their arraignment and trial, (which took place since the passing of stat. 18 & 19 Vict. c. 126, by sect. 18 of which P. became entitled to compensation, from the Commissioners of the Treasury, in respect of a diminution which happened in the annual amount of his fees upon prosecution), P. was paid his usual fees. Under their partnership arrangement, defendant and P. shared equally between them all fees received by P. upon prosecutions, including those last mentioned. Defendant having been indicted and convicted for a breach of the statutory proviso above set out:

Held, by Lord CAMPBELL, Ch. J. and ERLE, J. (CROMPTON, J. dissentiente), that the conviction was right.

Judgment affirmed in the Exchequer Chamber; where held, further, that defendant was properly proceeded against by indictment, and was not liable to the penalty imposed by sect. 102 of stat. 5 & 6 Will. IV. c. 76 (1).

Ar the Spring Assizes for the county of Monmouth, in 1858, an indictment, substantially as follows, was preferred against the defendant.

Monmouthshire (to wit). The jurors for our lady the Queen, upon their oath present. That the borough of Newport, in the county of Monmouth, is one of the boroughs named in the Schedule (A.) to the Municipal Corporations Act, 5 & 6 Will. IV. c. 76. And that heretofore, to wit on 17th February, 1836, a separate commission of the peace was granted to the said borough pursuant to the said Act: and that no separate Court of Quarter Sessions has at any time been granted to the said borough pursuant to the said Act. That heretofore, to wit on 30th June, 1845, and thenceforth continually until the time of exhibiting this indictment, Charles Burton Fox was and still is the clerk to the justices of the said borough of Newport, he the said Charles Burton Fox having been theretofore appointed such clerk by the justices of the said borough for the time being pursuant to the said Act: that during all the time aforesaid the said Charles Burton Fox was and still is an attorney at law and a solicitor, and during all the time aforesaid was and still is the partner of one Charles Prothero, in the business and profession of attorneys and solicitors; and that during all the time aforesaid he the said Charles Prothero (1) See note (2), ante, p. 428.

was and still is the clerk of the peace of the county of Monmouth, and, by reason thereof, during all the time aforesaid, was and still is interested and employed in the prosecution of divers offenders, who, during the time aforesaid, were *committed by the justices of the said borough of Newport for trial at the Court of General Quarter Sessions of the peace for the said county of Monmouth, and who during the time aforesaid were tried at the said Court, (that is to say) by receiving as such clerk of the peace divers fees on the arraignment and trial of the said offenders at the said Court. That during the time aforesaid, to wit on 1st July, 1856, and on divers other days and times between that day and the time of exhibiting this indictment, certain offenders were committed by the said justices of the said borough for trial at the said Court of Quarter Sessions of the peace, and were tried at the said Court, to wit (here followed the names of six persons): that the said Charles Prothero, as such clerk of the peace as aforesaid, did receive and take certain fees on the arraignment and trial of the said several last-mentioned offenders respectively: that the said Charles Burton Fox, as such partner of the said Charles Prothero as aforesaid, unlawfully was, while he was such clerk of the said justices as aforesaid, interested by his said partner, the said Charles Prothero, in the prosecution of the said several last-mentioned offenders (that is to say), by then being, as such partner of the said Charles Prothero, entitled to share and sharing in the said fees so received and taken by him the said Charles Prothero as aforesaid, against the form of the statute in such case made and provided, and against the peace of our lady the Queen &c.

This indictment was afterwards, at the instance of the defendant, moved by writ of certiorari into this Court, and was tried, before Hill, J. and a special jury, at the Monmouthshire Summer Assizes, 1858, when, by consent, *a verdict was entered for the Crown, subject to the opinion of this Court upon the following

case.

The case commenced by setting out the Municipal Corporations Act, 5 & 6 Will. IV. c. 76, s. 102 (1). The case proceeded as follows:

The borough of Newport, in the county of Monmouth, is a corporate borough, having a separate commission of the peace granted to it under the provisions of the Municipal Corporations Act, 5 & 6 Will. IV. c. 76, but having no grant of a separate Court of Quarter Sessions.

Parties charged with offences before the borough justices are

(1) See note (2), ante, p. 428.

committed for trial at the Assizes held at Monmouth, or General Quarter Sessions held in and for the said county at Usk.

The defendant, Mr. Fox, is an attorney and solicitor, and has, since the year 1845, carried on that profession at Newport in partnership with Mr. Charles Prothero.

In June, 1845, Mr. Fox was appointed clerk to the justices of the said borough of Newport, and has held and performed the duties of that office from that time to the present.

In March, 1848, Mr. Prothero was appointed clerk of the peace for the county of Monmouth, and he has held and performed the duties of that office from that time to the present.

From the year 1851 Messrs. Prothero and Fox have shared between them the profits of the partnership business, and the emoluments of the offices of clerk of the peace for the county of Monmouth and clerk to the justices of the borough of Newport, Mr. Prothero, in the first instance, receiving the fees. incident to the former, and *Mr. Fox, in the first instance, receiving the fees incident to the latter office.

The fees payable to Mr. Prothero, as clerk of the peace for the county, are fixed by the justices under the provisions of stat. 57 Geo. III. c. 91, and include, amongst others, a fee upon the arraignment, and another fee upon the trial, of each prisoner tried at the Quarter Sessions of the peace for the said county.

On 14th August, 1855, stat. 18 & 19 Vict. c. 126, passed, and is entitled "An Act for diminishing expense and delay in the administration of criminal justice in certain cases." The first section of this Act empowers justices at Petty Sessions to punish summarily persons charged with certain offences, and the third section authorizes such justices to sentence forthwith persons charged at such Petty Sessions with certain offences, and pleading guilty to such charge. (The case here set out sect. 18 of the Act.)

The fees and emoluments of the said Charles Prothero, as clerk of the peace for the said county of Monmouth, were seriously diminished by the operation and effect of the lastmentioned Act, immediately after the passing thereof, and have not, since that time, amounted, during any year, to the annual amount thereof computed upon an average of five years immediately preceding the passing of that Act. In May, 1857, Mr. Prothero, as clerk of the peace for the county of Monmouth, made, under the provisions of the said Act, and upon the requisitions of the Lords Commissioners of her Majesty's Treasury, a return to the said Commissioners (verified on oath)

REG.

บ.

Fox.

[733]

of the fees and emoluments in criminal prosecutions received by him as such clerk of the peace for each of the five years immediately preceding the said 14th August, 1855, the day *of the passing of the said last-mentioned Act; and the annual amount of such fees, computed upon an average of the said five years, was 540l. 1s. 11d. At the same time, Mr. Prothero, under the provisions of the said Act, and at the requisition of the said Lords Commissioners, made a return (similarly verified) of the fees and emoluments in criminal prosecutions received by him as such clerk of the peace as aforesaid during the year ending 14th of August, 1856, and these amounted to 3571. 15s. 2d. In June, 1857, the Commissioners of the Treasury paid to Mr. Prothero the sum of 1821. 6s. 9d., the difference between the 3571. 15s. 2d. and the said annual average amount received by him during the five years next before the passing of the said last-mentioned Act. In November, 1857, Mr. Prothero made a return in the same manner of the fees and emoluments in criminal prosecutions received by him as such clerk of the peace as aforesaid for the year ending 14th August, 1857, which amounted to 446l. 15s. 2d., and in January, 1858, the Commissioners of the Treasury paid to Mr. Prothero 931. 6s. 9d. the difference between 446l. 15s. 2d. and the said annual average amount received by him during the five years next before the passing of the said Act of Parliament.

At the trial of the above indictment, it was proved that between Michaelmas, 1856, and the Epiphany Sessions held at Usk, for the county of Monmouth, in January, 1857, persons (five in number), respectively charged with larceny, were committed by the borough justices of Newport for trial at the lastmentioned Sessions upon four separate and distinct charges, and that, upon the arraignment and trial of each of those persons at the said Sessions, certain fees were payable and were paid to the said Charles Prothero as clerk of the peace of the county of Monmouth. The fees were the ordinary fees payable to the clerk of the peace, according to the table of fees fixed by the justices as before mentioned in this case, and amounted in all the cases to the sum of 71. 1s. 8d.

It was further proved that, between January and March, 1857, a certain other person, charged with larceny, was committed by the borough justices of Newport for trial at the Easter Sessions of the peace held at Usk aforesaid; and that, on the arraignment and trial of such last-mentioned person at those Sessions, similar fees were payable and paid to the said Charles Prothero as clerk of the peace for the said county, amounting to the sum of 1l. 19s. 8d. The whole of the above.