fees were included in the return made by the said Charles Prothero to the Commissioners of the Treasury in November, 1857, as above mentioned. It did not appear that the said Charles Prothero, or the said defendant Charles Burton Fox, was ever concerned or employed directly or indirectly as an attorney in conducting any prosecution at any of the Quarter Sessions held for the county of Monmouth.

The question for the opinion of the Court was, whether, in substance, the facts above stated showed any offence under the 102nd section of stat. 5 & 6 Will. IV. c. 76. If the Court was of opinion that they did show such an offence, the verdict already entered was to stand; if the Court was of a contrary opinion, a verdict of Not guilty was to be entered.

Welsby (Scotland with him), for the Crown:

*

First, the facts stated in the case show that the defendant has been guilty of the offence constituted by the second *proviso in sect. 102 of the Municipal Corporations Act, 5 & 6 Will. IV. c. 76 (1). * The defendant has, "by himself or his partner" Prothero, been directly or indirectly interested or employed in the prosecution of the offenders committed for trial, at the Quarter Sessions at Usk, by the Newport borough justices. Prothero, as clerk of the peace for the county, was entitled to fees upon the arraignment and upon the trial of each prisoner tried at the county Quarter Sessions. He, therefore, was *"directly or indirectly interested," if not "employed," in the prosecution of all prisoners sent for trial from Newport to Usk. * * Secondly, stat. 18 & 19 Vict. c. 126, s. 18, is relied upon by the defendant as exempting him from liability to this indictment. That section, however, has no such

effect. * * *

Phipson, for the defendant:

First, the principal question for the Court, is the construction to be put upon sect. 102 of the Municipal Corporations Act, 5 & 6 Will. IV. c. 76 (1), or rather upon one expression in that section, viz. the words "interested in the prosecution." The argument for the Crown makes these words equivalent to "interested in the fact of there being a prosecution." But their natural and ordinary meaning is "interested in the carrying on and conducting a prosecution."

* * *

(CROMPTON, J.: It may be that the enactment was intended to put a stop to the practice, which had prevailed, of the clerk to the justices being also the attorney for the prosecution.)

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

R.R.-VOL. CXVII.

28

That was the intention. And the provision as to the partner of such clerk was intended merely to prohibit also the employment of the partner, as such attorney. Many cases may be conceived in which the clerk might be interested in the fact of there being a prosecution: but the Legislature cannot have meant to prohibit that. Then, again, at what time is the offence, if it be one, committed? Suppose, for instance, that the clerk of the justices is not, at the time that the justices commit a prisoner for trial, in partnership with the clerk of the peace for the county, but enters into that partnership between the time of the commitment and that of the trial.

(LORD CAMPBELL, Ch. J.: I should say that the time contemplated as that at which the clerk to the justices may offend against the statute, is that of the arraignment and trial of the prisoner.)

The indictment appears to contemplate that the offence was a continuing one "during all the time" that the defendant was both clerk to the justices and in partnership with Prothero: but it describes the defendant's interest in the prosecutions, that is to say, his offence, as consisting in the receipt by Prothero of fees "on the arraignment and trial of" offenders. If prosecution means "conducting proceedings against a prisoner" the statute is intelligible: but not otherwise. Surely it cannot refer to the act of the clerk of the justices in advising them to commit a prisoner for trial at the Quarter Sessions: for the prisoner may die before arraignment, or the bill may be thrown out by the grand jury, and thus no fees ever become payable to Prothero.

(CROMPTON, J.: The charge must be that the defendant at some definite and particular time became interested in the prosecution.)

**Secondly, stat. 18 & 19 Vict. c. 126, s. 18, protects the defendant, assuming that, but for it, he would be liable to these proceedings. The allegation in the indictment is that Prothero was "interested" "in the prosecution of divers offenders" "by receiving as such clerk of the peace divers fees on the arraignment and trial of the said offenders." But since this statute passed, Prothero had no interest in the receipt. of these fees, he being, under the statute, entitled to the average amount which he had annually received in respect of them for the previous five years, even in the extreme case of his receiving no fees at all in future.

(LORD CAMPBELL, Ch. J.: If the fees received by Prothero

in any one year, since the statute passed, exceeded that average amount, the defendant would be interested, at all events, in one-half of the excess.)

In that improbable case, the excess would be so small that the maxim "de minimis non curat lex" would apply.

Welsby, in reply.

LORD CAMPBELL, Ch. J.:

The moral guilt incurred by Mr. Fox is infinitesimally small. I dare say that he was not aware that he was doing wrong; but I think that the facts stated in the case sustain the charge in the indictment. The Legislature has provided that justices of the peace shall have the disinterested advice of a professional man as their clerk; and it is by virtue of this advice that our unpaid magistracy are enabled satisfactorily to administer justice. That advice, however, to be trustworthy, must be impartial. And, in order that it may be so, it is wisely provided that the clerk shall have no bias in his mind to advise the justices one way or the other; for he is to derive no advantage, directly or indirectly, from those cases in which he has to give advice. Hence the prohibition in the Municipal Corporations Act, 5 & 6 Will. IV. c. 76, s. 102 (1), against either an alderman or councillor of the borough, or the clerk of the peace of the borough, or his partner, or any person in his employ, being appointed clerk to the justices. Then follows this very large proviso: "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." Now, here, I cannot but see that Mr. Fox had an interest in the prosecution of offenders committed for trial at the Quarter Sessions for the county, by the Newport justices: for his partner, Mr. Prothero, was entitled, upon the arraignment and trial of all such offenders, to certain fees, one-half of which were, by arrangement between the partners, to go into Mr. Fox's pocket. Although this indictment might not be sustainable, simply on the ground of the existence of that arrangement, it seems to me that when we find, as a fact, that Mr. Prothero actually received such fees, we must hold that the statutory offence by the defendant was then consummated, for he then immediately acquired an interest in the money so received. A narrower

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

construction of this enactment would, in my opinion, defeat the intention of the Legislature: and although the statute be a penal one, we are bound to give full force to that intention. Upon the second point relied upon for the defendant, which arises upon the effect of stat. 18 & 19 Vict. c. 126, s. 18, I have no doubt whatever. At the moment that his partner received a fee upon a prosecution coming from Newport, the defendant became interested in that prosecution. The fact that Mr. Prothero might ultimately be entitled to compensation in respect of a falling off in the aggregate amount of his fees, does not alter the defendant's position. It might be that Mr. Prothero's aggregate fees might exceed, in some one year since the passing of the statute, his *average annual receipt upon the five years next preceding: in which case the defendant would have been entitled to one-half of the surplus.

ERLE, J.:

I am of the same opinion. The question turns upon the construction of the provisions in stat. 5 & 6 Will. IV. c. 76, s. 102 (1), that the clerk to borough justices shall not be directly or indirectly interested by himself or his partner, in the prosecution of offenders committed for trial by those justices to the county Quarter Sessions. Then, was the defendant thus interested? It turns out that his partner, Mr. Prothero, is entitled to fees upon the arraignment and trial of all prisoners arraigned and tried at the Quarter Sessions; that, in some instances, he has received fees upon the arraignment and trial, there, of prisoners committed for trial by the justices to whom the defendant is clerk; and that the defendant was, by the terms of the partnership, entitled to one-half of all the fees so received. Whence it seems to me to be clear that the defendant had, continuously, a pecuniary interest in the prosecutions sent from time to time from Newport to the Quarter Sessions. The statute constituted a new tribunal, the justices, for the administration of criminal justice. And the Legislature, supposing that they would naturally look for advice to their clerk, very advisedly provided that the clerk's advice should be impartial. With this object in view, certain persons, chiefly borough officials, are declared by the statute not to be eligible for the appointment; and, although the clerk of the peace of the county is not specified as one of those persons, the general proviso is worded in terms quite sufficient to prohibit the clerk to the borough justices from having any pecuniary interest, as a partner, in the fees received by such clerk of the peace upon

prosecutions coming from the borough. I also think that there is nothing in stat. 18 & 19 Vict. c. 126, s. 18, to prevent this prosecution from being sustained. I follow the remarks of the LORD CHIEF JUSTICE as to the character of the offence committed by the defendant. Although he must be convicted, he has not done anything which ought to lower him in the estimation of any one who may hear of this indictment. CROMPTON, J.:

I quite agree with the rest of the COURT that if the defendant's interest in the receipt of the fees by Prothero, was such as to make him amenable to this indictment, stat. 18 & 19 Vict. c. 126, s. 18, did not relieve him from that liability: but, on the other point, I am not prepared to agree with the LORD CHIEF JUSTICE and my brother ERLE. Interested," in stat. 5 & 6 Will. IV. c. 76, s. 102 (1), is a very large word, but it does not strike me as bearing the meaning which they put upon it. The first proviso enumerates certain persons who are declared ineligible to the office of clerk to the borough justices, but the list does not include the clerk of the peace for the county. Then comes quite a different matter, in the second proviso; the object of which, I think, was to prevent the clerk to the justices, or his partner, from being employed in the conduct of prosecutions. The words are "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." Had the words been "shall not be interested or employed in having the prosecution carried on," the construction *might be different, but as the clause stands, that which is prohibited to the clerk is the being "interested or employed in the prosecution.” When can the present defendant be said to have become thus interested? It is said that he was so when a fee was received by Mr. Prothero upon the arraignment and trial of a prisoner. But the words of the Act have, in my judgment, much more reference to the taking an active part in a prosecution, than to the being interested in the petty fees payable to the clerk of the peace upon a prosecution. I take the words "interested or employed" together, and put the same construction upon them that Mr. Phipson does: that the clerk is not to be either employed in, or interested in, the conduct of prosecutions. And here, the defendant has been neither the one or the other.

(HILL, J. was absent.)

Judgment for the Crown.

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