REG. v. TION OF POOLE, 1887. Indictment for c. 50, ss. 94, 95: 38 & 39 s. 144. in my opinion that the above objection is fatal by the consideration that the questions raised by Mr. Foote as to the liability of the THE MAYOR defendants are questions of very great nicety, and that if the AND CORPORAdefendants are liable under the statutes to an indictment at all, it is not unreasonable to require that the circumstances creating their liability should be shown on the face of the indictment in such a way that the court might see whether the indictment does or does not show a legal liability; or at least, that the indict- Highway ment should inform the defendants whether they are being non-repairprosecuted for a common law or a statutory offence. But even Liability of assuming that in this case the indictment is sufficient without urban sanitary authority amendment, or, if not, that an amendment could be, and was 5 & 6 Will. 4, made, I am still of opinion that the defendants are entitled to judgment. The liability of the defendants as urban sanitary authority is created by the 144th section of 38 & 39 Vict. c. 55. The first branch of that section makes the urban sanitary authority subject to all the liabilities of surveyors of highways under the law for the time being in force. No authority has been cited to show that a surveyor of highways (against whom it was decided long ago in Young v. Davis (2 H. & C. 197) that an action will not lie) was ever liable to be indicted for the nonrepair of a highway. The only persons liable to be indicted were the inhabitants of the parish, or the other person or persons liable to bear the burden of repair: (see Loughborough Highway Board v. Curzon, 54 L. T. Rep. N. S. 168; 16 Q. B. Div. 565.) The case of Gibson v. Mayor, &c., of Preston (L. Rep. 5 Q. B. 218), in which all the authorities were reviewed, is entirely to this effect, and is recognised, though distinguished, in Kent v. Worthing Local Board (48 L. T. Rep. N. E. 362; 10 Q. B. Div. 118), the only case in which a local board has been held liable to an action for an omission of any of the duties in relation to highways imposed upon them by the Public Health Act. That case, however, was decided wholly upon the difference, or supposed difference, between the mere neglect to repair highways and what the court held to be the doing of an act in such a way as to become a nuisance, a distinction which must be considered doubtful, after the case of Moore v. Lambeth Waterworks Company (55 L. T. Rep. N. S. 309; 17 Q. B. Div. 462) in the Court of Appeal, in which it is spoken of as the only case in which a local board has been held liable for an act of omission, or a mere nonfeasance, and said to be a case only to be supported on grounds quite inapplicable to a case of mere non-repair of a highway. Ône conclusive reason for holding that a surveyor could not be indicted for the non-repair of a highway is that by the law, existing as long as surveyors were the only persons appointed for the purpose of attending to such matters on behalf of a parish, at all events since 5 & 6 Will. 4, the surveyor could be punished by specific methods provided by statute, so that it sufficiently appeared from the statute regulating their conduct that it was the intention of the Legislature to provide a different punishment for disobedience to the statute from a prosecution by REG. ບ. TION OF POOLE. 1887. authority Vict. c. 55, 8. 144. indictment. Sect. 20 of 5 & 6 Will. 4, c. 50, provides that for THE MAYOR any neglect of duty for which no particular penalty is by that AND CORPORA- Act imposed the surveyor shall forfeit 51. Sect. 144 of the. Public Health Act, 1875, also provides that the urban sanitary authority shall be subject to all the duties and liabilities which by the Highway Act, 1835, or any act amending the same, are vested in and given to the inhabitants in vestry assembled. But Highway the liability to an indictment at common law cannot be intended Indictment for non-repair to be a liability which was imposed upon the inhabitants in vestry Liability of assembled. No assembly of the vestry was required to constitute urban sanitary such liability, nor was it a liability imposed by the Highway Act 546 Will. 4, or any other Act. It existed wholly independently of the Acts, c. 50, ss. 94, though the Acts contained certain provisions limiting the cases 95: 38439 in which, and the terms upon which, indictments might be successfully preferred in accordance with the provisions of the Acts. There is nothing, as far as I can see, in the 144th section of the Public Health Act, 1875, nor in any of the existing Acts, to make the urban sanitary authority liable to a common law indictment for neglecting those duties which they conferred upon them, either as surveyors of the highways or as inhabitants in vestry assembled. If their liability is to be established in the latter capacity, I think it could only be upon an indictment preferred according to the provisions of 5 & 6 Will. 4, c. 50, after the preliminary steps thereby required, and not as persons liable at common law to be indicted as though they were the persons liable for repair in the same sense in which the parish or other persons liable ratione tenure are liable. Mr. Foote relied upon another point, viz., that the roads in question have not been set out under the Inclosure Acts. But this was a point, as I understand, not raised at the trial, at all events not so insisted upon as that we should be justified in setting aside the verdict. It is a matter which might very easily have been taken as proved in the absence of special attention being called to it. But for the reasons given above, we are of opinion that the defendants are entitled to judgment non obstante veredicto, the indictment not alleging a case of liability in the defendants upon which the jury were warranted in finding any verdict against them, and the statute not creating any such liability, even if the indictment had alleged all the circumstance upon which the prosecution relies. Solicitors for the prosecutors, Brownlow and Home, agents for E. S. Clarke, Wareham. Solicitors for the Mayor and Corporation, Prior, Church, and Adams, agents for Dickinson, Poole. CROWN CASES RESERVED. Saturday, Dec. 10, 1887. (Before Lord COLERIDGE, C.J., POLLOCK, B., MANISTY, HAWKINS, and SMITH, JJ.) REG. v. BECKLEY AND OTHERS. (a) Jurisdiction of justices-Justices of one petty sessional division trying offence committed in another division of same county9 Geo. 4, c. 43, s. 6. The jurisdiction of justices to hear charges of indictable offences committed within the county for which they are appointed, and to commit the offenders for trial, is not restricted by 9 Geo. 4, c. 43, s. 6, to offences committed within or near to the petty sessional division in and for which such justices of the peace usually act. CASE ASE stated by the chairman of the Quarter Sessions for the county of Cambridge, as follows: At a general court of quarter sessions of the peace, held by adjournment before me and other justices of the peace for the county, on Friday, the 21st day of October, 1887, John Beckley, John Norton, William Munns, and William Smith were tried and convicted upon an indictment charging them with conspiracy. When the defendants were called upon to plead it was objected by counsel for certain of the defendants that the indictment ought to be quashed, as the provisions of the Vexatious Indictments Act (22 & 23 Vict. c. 17), s. 1, which, it was conceded, applied to the offence charged in the indictment, had not been complied with. The offence with which the defendants were charged was committed at Swaffham Prior, in the county of Cambridge, a place within the Petty Sessional Division of Bottisham, in the said county. The defendants were arrested at various places not within the county upon a warrant, a copy of which is here set out: To the constables of the Cambridgeshire constabulary, and to all other peace officers in the said county of Cambridge.-County of Cambridge, to wit.- Whereas information was this day sworn before me, one of Her Majesty's justices of the peace in and for the said county, on the oath of James Harvey, of the parish of Feltwell Downham, in the county of Norfolk, for that George Beckley, alias Fatty, of Fenstanton, in the county of Huntingdon, William Smith, of Bedford, John Norton, alias Soney, and William Munns, of Fenstanton, in the county of Huntingdon, did, at the parish of Swaffham Prior, in the county of Cambridge, on the 16th day of May, 1887, unlawfully and (a) Reported by R. CUNNINGHAM GLEN, Esq., Barrister-at-Law. REG. wickedly, falsely, and maliciously conspire, combine, confederate, and agree together to cheat and defraud, and did then and thereby cheat and defraud the said James BECKLEY AND Harvey of certain horses, to wit, two fillies of the value of 40% of the property of the v. OTHERS. 1887. said James Harvey. These are therefore to command you, the said constables of Cambridgeshire, to apprehend the said George Beckley, alias Fatty, William Smith, John Norton, alias Soney, and William Munns, and them bring before me, or such other of Her Majesty's justices of the peace for the county of Cambridge as shall be present Jurisdiction of at the police-station, Bottisham, to answer the said information, and be further dealt justices-Trial with according to law. Given under my hand and seal this 18th day of May, in the by justices in year of our Lord one thousand eight hundred and eighty-seven, at Cambridge, in the one petty county aforesaid. ELLIOTT SMITH (L. S.) sessional divi sion of offence The justice who signed this warrant resided and usually acted committed in within the Petty Sessional Division of Cambridge, in the said another divi sion of same county-9 Geo. 4, c. 43, s. 6. county. The defendants were, on the 6th day of July, remanded by a justice of the peace for the county residing within, and usually acting for, the said Cambridge division of that county, and ordered by his warrant to be brought up on the 9th day of July, at the Shire Hall, Chesterton, the place for holding the petty sessions for the division of Cambridge, within the said county, and on the said 9th day of July the case was partly gone into, and they were further remanded until the 16th day of July, to the same petty sessional division. On the 16th day of July further evidence was given on behalf of the prosecution at the petty sessions, held at Chesterton aforesaid, when it was for the first time objected on behalf of the defendants that the justices sitting at Chesterton had no jurisdiction to hear and determine a case arising within another petty sessional division, viz., at Bottisham, and that the justices were bound to remand the case for hearing at Bottisham, according to the terms of the warrant. The justices overruled the objection, and sitting within the Petty Sessional Division of Cambridge, holden at Chesterton, heard and determined the case, and committed the defendants for trial. Of the justices who so heard and determined the case, one only was a justice who resided within and occasionally acted within the Bottisham Petty Sessional Division. It was contended on the part of the defendants that by virtue of 9 Geo. 4, c. 43, s. 6, it was not competent for the justices sitting at the Cambridge Petty Sessional Division at Chesterton to hear or determine, or to send for trial, a case arising within another petty sessional division of the county, and that the justice in remanding the defendants on the 6th day of July to the Cambridge Division was acting without jurisdiction, and that for these reasons the provisions of the Vexatious Indictments Act had not been complied with; consequently that the indictment ought to be quashed. The learned chairman overruled the objection, and refused to quash the indictment; but stated the above facts for the opinion of the court, and asked whether he was right in law in so holding. J. W. Cooper on behalf of the prisoner.-Under 9 Geo. 4, c. 43, s. 6, all matters and things which arise within a petty sessional division must be determined by the justices acting in and for that REG. บ. OTHERS. 1887. one petty committed in another divi division; and, therefore, these prisoners having been apprehended out of the county of Cambridgeshire should have been remanded BECKLEY AND to the petty sessional division in which the offence was committed. This contention is supported by the provisions of 11 & 12 Vict. c. 42, ss. 11 and 12, the first of which provides for the backing of a warrant where the offender is not to be found within the juris- Jurisdiction of diction of the justices by whom the warrant was issued, and justices-Trial requires the offender to be taken when apprehended before the by justices in justice who issued the warrant, or before some other justices of sessional divithe place where the offence appears to have been committed, sion of offence provided that the justices by whom the warrant is backed may take the examinations of witnesses, and proceed in manner there- sion of same inafter directed with respect to persons charged with an offence county-9 Geo. alleged to have been committed in another county, That is to 4, c. 43, s. 6. say, order under sect. 22 that the offender be taken before some justices of the peace in and for the place where and near unto the place where the offence is alleged to have been committed. Here the warrant commanded the constable to apprehend the prisoners and to take them before the justices at Bottisham, therefore it was the duty of the justices before whom they were brought to have remanded the prisoners to the place near to which the offence was committed, that is to say, the Petty Sessional Division of Bottisham, otherwise the greatest inconvenience might be caused to witnesses. [POLLOCK, B.-Is not that a matter of discretion for the justices? Suppose there was a division much nearer to the spot than Bottisham, which would sit sooner, would it not be much more convenient to remand to that division?] In this particular instance the warrant required them to be brought to Bottisham. [POLLOCK, B.-As I understand it that does not matter, for when the justices have the prisoners before them any defect in their arrest would not render the proceedings before the justices irregular.] Although a justice of the peace has jurisdiction over the whole county, I submit that that jurisdiction must be exercised at the petty sessions for the division in which the offence was committed; and, therefore, this being a matter or thing which has arisen within the Petty Sessional Division at Bottisham, it is a matter or thing which must have been heard and determined at Bottisham. No one appeared in support of the convictions. Lord COLERIDGE, C.J.-I am of opinion that in this case the conviction was right and should be affirmed. The objection taken to it is that inasmuch as the offence was committed in a petty sessional division of Cambridgeshire, before the Vexatious Indictments Act could be applied to the case, the person giving his sanction must have been a person habitually exercising the jurisdiction of a justice of the peace within the particular petty sessional division in which the offence was committed. And for the purpose of supporting this objection analogies have been attempted to be drawn from the provisions of an Act of Parliament |