The statute 5 & 6 Vict. c. 110. provided that the gaol of the city of Coventry should be a gaol of the county of Warwick, to be purchased and paid for by the county out of the monies in the hands of the treasurer :Held, that the borough of Birmingham, which had a separate Court of Quarter Sessions, was liable to pay its proportion of the county rate for the purchase of the gaol.

A rule had been obtained, calling on the mayor, aldermen, and burgesses of the borough of Birmingham, to shew cause why a writ of mandamus should not issue, com-manding them to pay to the keepers of the peace and Justices in and for the said county of Warwick, or to the treasurer of the said county, the sum of 11,742l. 3s. 9d., being the balance due from the council of the said borough to the treasurer of the said county, for the expenses incurred in respect of the prosecution, maintenance, and punishment, safe custody and care of prisoners committed from the said borough to the county gaol of the said county, and the house of correction for the said county, since the grant of a separate Court of Quarter Sessions to the said borough for offences which have arisen within the same, and also in respect of the proportion due from the said borough in respect of all sums of money expended out of the county rate during the same period, for other purposes than the costs arising out of the prosecution, maintenance, and punishment, conveyance and transport of offenders committed for trial in such county, and other than out of coroners' inquests, exclusive of the expenses for such matters for the half-years ending the 31st day of December 1844, and the 30th day of June 1845, and to make or levy such rate or rates within the said borough, as may be necessary for raising the said sum of 11,7427. 38. 9d. for the purposes aforesaid.

It was agreed between the Justices of the county and the mayor, aldermen, and burgesses of the borough of Birmingham, that the points in dispute should be decided by the Court on the facts, as stated in a CASE, from which it appeared that the district comprised within the borough of Birmingham was situate within the county of Warwick, and that, there being no gaol or house of correction (but merely a house of detention) in the borough, the NEW SERIES, XVII.-MAG. CAS.

Justices of the county, before the grant of Quarter Sessions to the borough, appointed a committee to confer with the council of the borough on a proposal relative to the maintenance, &c. of the borough prisoners in the county gaol and house of correction; and that the committee reported that the sum of 11d. per head per diem might be fixed as a moderate charge, this sum not including the expenses of repairs, alterations, &c., in or to the said prison. This report was confirmed on the 9th of April 1839, and it was subsequently approved of by the council; and it was resolved at a meeting of the council, that such charge should remain in force for one year from the day of the first commitment upon a separate Court of Quarter Sessions being granted to the borough of Birmingham; and the arrangement was entered in the minutes of the proceedings of the council, as embracing as well the maintenance of prisoners tried at the county assizes as at the borough sessions.

On the 23rd of May 1839, Her Majesty, on the petition of the council, granted that a separate Court of Quarter Sessions should be thenceforth held in and for the said borough, and appointed a recorder. At the October county Quarter Sessions 1839, it was ordered that a contract should be entered into (in pursuance of the 5 Geo. 4. c. 85.) with the council of the borough, for the support and maintenance in the county gaol and house of correction of any prisoner committed thereto from the borough; and two Justices of the county were thereby authorized to enter into a contract for that purpose with the council, on the terms agreed upon at the last Easter Sessions. A correspondence thereupon took place between the clerk of the peace and town clerk, but in consequence of doubts as to the validity of the Birmingham charter, the final settlement and execution of such contract was delayed. After the grant of the Quarter Sessions, the prisoners committed to take their trial at the borough sessions were conveyed to the county gaol for safe custody, and brought back to the borough for trial at the borough sessions. On the 24th of September 1839, the treasurer of the county sent to the town clerk of the borough the following account for the maintenance of borough prisoners, made out in accordance

I

Subsequently to the receipt of the foregoing account, the sums in question were regularly debited to the borough, and set off against them in their account with the county for rates and other payments. In consequence of doubts as to the validity of the grant of Quarter Sessions, and the temporary inability of the council of the borough to enforce the collection of their borough rates, no further accounts for maintenance or otherwise against the borough were delivered, nor was any demand made by the county treasurer until the year 1842, although the borough prisoners were committed and sent to the gaol and house of correction of the said county up to the Epiphany Sessions 1841.

"Re

At those sessions the county Justices passed the following resolution: solved, That this Court is of opinion that the Justices of the borough of Birmingham have no jurisdiction over the house of correction of the county of Warwick, and does therefore order, that the keeper of the house of correction do refuse to take in prisoners committed by such Justices." By which order the house of correction was closed against all prisoners committed by the Justices of the borough, which circumstance occasioned considerable inconvenience, expense, and delay in the administration of justice in the borough, inasmuch as the prisoners were obliged to be detained until county Justices could be found to attend to commit the prisoners to that prison; but the borough Justices continued to commit prisoners to the county gaol for safe custody until their trials, when such prisoners were sent back to the said county gaol or house of correction to receive their sentence. After the order of the Quarter Sessions last mentioned, the Justices of the borough ceased to commit prisoners to the house of correction until the 18th of October 1842. In

applied by letter to the treasurer of the county for accounts of all sums of money claimed to be due to the county from the borough; the county Justices having made an order, at the Epiphany Sessions, held in the month of January preceding, that the accounts in respect of prisoners committed for trial to the assizes for the county, and in respect of the general expenditure of the said county, pursuant to the 5 & 6 Will. 4. c. 76. ss. 114. and 117. should be sent to the council of the said borough. To this the county treasurer replied, that he had not made them out for want of the necessary documents, and that he had been informed by the clerk of the peace, that other items were to be added in addition to those already mentioned. In September 1842 the town clerk of the borough received from the county treasurer sundry accounts against the borough for the maintenance and punishment of offenders, for prosecutions at assizes and sessions of offenders committed from the borough to the county gaol and house of correction, and also for the proportion of the general county expenditure to the Midsummer Sessions preceding, together with a demand for payment. No other accounts, except that in September 1839, amounting to 1,046l. 2s. 11d., before mentioned, had been sent by the county treasurer to the council since the grant of the Quarter Sessions. The maintenance accounts were not made out according to the statute 5 & 6 Vict. c. 98, of the passing of which the treasurer was not then aware, but at the rate of 11d. per head per diem, for each person confined in the said county gaol and house of correction, up to the 30th of June 1842. The statute 5 & 6 Vict. c. 98. passed on the 10th of August 1842. Subsequently to the passing of this statute, namely, on the 13th of September 1842, the council referred it to a committee to confer with the Magistrates of the county, for the purpose of arranging for the future use of the house of correction, and a meeting was had between two of the Justices of the county and two Justices of the borough, and a draft agreement was afterwards drawn up by the town clerk, and sent to one of the county Justices for approval in this it was stated that the conference had been held, in pursuance

of the 5 & 6 Vict. c. 98. respecting arrangements for a proposed contract, and that it was agreed that the council of the borough should pay to the treasurer of the county for the conveyance, transport, maintenance, &c. of prisoners thereafter to be committed to the county gaol and house of correction for offences arising within the borough, the actual expenses incurred, to be ascertained in manner and subject to the deductions directed by 5 & 6 Vict. c. 98. s. 18, and that the unsettled claim of the county, in respect of expenses theretofore incurred in the conveyance, &c. of prisoners committed to the county gaol, for offences within the borough, subsequent to the grant of Quarter Sessions to the said borough, and tried at the borough sessions, or at the county sessions, should be assessed and paid upon the same principle, in conformity with the provisions of the said act, and also the expense of prisoners committed by the borough Justice to the house of correction for the county. The report, embodying the terms of agreement, was received and confirmed at a meeting of the council on the 7th of October 1842, and at the subsequent Quarter Sessions for the county. The case stated that the borough Justices, when they entered into this contract, believed that, as the house of correction had been closed against prisoners committed by the borough Justices, no charge was to be made for prisoners committed to the house of correction by the county Justices under the circumstances before mentioned; but that the county Justices were not aware of such belief being entertained by the borough Justices. In March 1843, the accounts already delivered in September 1842, and which had been returned to the clerk of the peace at his request, were made out, on the principle of calculating the actual average daily cost of the prisoners, and this was found to exceed the sum of 11d. per head per day. In July 1843 the sum claimed by the county to be due from the borough, upon the above calculation, for prisoners and general expenditure, since September 1839, amounted to 19,7497. 6s. 1d., and various payments on account had been subsequently made by the treasurer of the borough. It was contended, on the part of the Justices of the county of Warwick, that the council of the borough were liable to pay for the maintenance of all the prisoners heretofore committed to

the county gaol and house of correction for the district continuous with the borough of Birmingham, at the rate authorized by 5 & 6 Vict. c. 96. s. 18. The council of the borough contended that they were not liable to pay for any prisoners committed either to the house of correction or county gaol, more than at the rate of 11d. per head per day, and that they were not liable to pay anything for commitments by county Justices to the house of correction during the period referred to, during which offenders committed by the borough Justices, were refused admission therein by an order of Quarter Sessions.

In the accounts against the council, made out and delivered to the town clerk by the county treasurer in August 1843, for proportion of the general expenditure of the county, from Epiphany Sessions to Midsummer Sessions 1843, was a sum of 2,0871. 8s., for a proportion of the purchase-money, which the said county of Warwick had paid, or was liable to pay, for the county gaol, house of correction, county hall, and other buildings, under and by virtue of 5 & 6 Vict. c. 110, An act to annex the county of the city of Coventry to Warwickshire, and to define the boundary of the said city of Coventry.' The council of the borough of Birmingham contended that they were not liable to pay anything whatever towards the purchase of the said county gaol, under the said act, by the county of Warwick. The Justices of the county of Warwick contended that the said council was liable. The questions for the opinion. of the Court were: "Is the council of the borough of Birmingham liable to pay to the Justices of the county of Warwick, for the maintenance of the before-mentioned prisoners; and if not, for what portion, and whether such payment is to be made after the rate of 11d. per head per day, or at the rate authorized by the 18th section of the 5 & 6 Vict. c. 98. And whether the borough of Birmingham is liable to the payment of anything towards the purchase of the county gaol under the 5 & 6 Vict. c. 110. before stated."

This case was argued by

Mellor, in support of the rule.-As to the first question, it is true that in 1839 an arrangement was entered into for the payment of a given sum per head for each prisoner confined in the gaol and house of

correction, but the arrangement which was made was temporary, and was made before the grant of the separate Court of Quarter Sessions to the borough of Birmingham, and not therefore within the proviso contained in 5 & 6 Will. 4. c. 76. s. 114. (1)—

(1) The 5 & 6 Will. 4. c. 76. s. 112. enacts, "That within ten days after the grant of a separate Court of Quarter Sessions of the Peace to any borough, the council of such borough shall send a copy of such grant sealed with the seal of the borough to the clerk of the peace of the county in which such borough, or any part thereof, is situated; and after the grant of such court to any borough it shall not be lawful for the Justices of the Peace of any county wherein such borough, or part of such borough, is situate, to assess any messuages, lands, tenements, or hereditaments within such borough to any county rate thereafter to be made, but every part of every such borough shall thenceforward be wholly free and discharged from contributing, otherwise than is hereinafter provided, to any rate or assessment of any kind of and for the county in which any part of such borough is situated. Provided nevertheless, that all arrears of such rates theretofore made may be levied and collected as if the act had not been passed."

Section 114. enacts, "That the treasurer of every county in England and Wales shall keep an account of all costs arising out of the prosecution, maintenance and punishment, conveyance and transport of all offenders committed for trial to the assizes in such county from any borough in which a separate Court of Quarter Sessions of the Peace shall be holden; and the treasurer of every county shall, not more than twice every year, send a copy of the said account to the council of each of the said boroughs, and shall make an order for payment of the same on the council of such borough; and the council of every such borough shall forthwith order the same, with all reasonable charges of making and sending such account, to be paid to the treasurer of such county out of the borough fund; and in case any difference shall arise concerning the said account, it shall be decided by the arbitration of a barrister to be named as is provided in the case of differences with respect to the payment of monies under contracts made by authority of an act, 5 Geo. 4, intituled, 'An act for amending an act of the last session of parliament, relating to the building, repairing, and enlarging of certain gaols and houses of correction in England and Wales.' Provided that nothing herein contained shall be construed to alter or restrain the powers given by the last-mentioned act of contracting with the Justices of the Peace having authority or jurisdiction in and over any gaol or house of correction of the county wherein or where such borough is situated, or whereto it is adjacent, for the conveyance, support, and maintenance in such last-mentioned gaol or house of correction of prisoners committed thereto from such borough, save only that all such powers shall after the 1st of May 1836 be vested in the council of such borough in the name of the body corporate whose council they are, and in none other; and for the purpose of making such contracts as aforesaid the council of such borough, and none other, shall

The Queen v. the Justices of Lancashire (2), The Queen v. Johnson (3). There never was, in point of fact, any binding contract made with the borough in the resolution of the Sessions on the 15th of October. It does not purport to be a contract, and cannot

have power to make the orders required by the said last-mentioned act to be made by the Justices of the borough at the borough sessions."

By section 117, "The treasurer of every county shall keep an account of all sums of money received in aid or on account of the county rate; and of the sum of money expended out of the county rate, for other purposes than the costs arising out of the prosecution, maintenance, and punishment, conveyance, and transport of offenders committed for trial in such county; and in the case of boroughs having a separate Court of Quarter Sessions of the Peace, other than out of coroners' inquests, and shall, not more than twice in every year, send a copy of the said account to the council of every borough situate within such county in which such separate county court of Quarter Sessions shall be holden, and which, before the passing of the Boundary Act, 2 & 3 Will. 4. c. 64, was chargeable with, or liable to contribute, in whole or in part, to the county rate of such county, and shall make an order on the council for payment, who are to pay the same, with the same power of arbitration as before."

The 5 & 6 Vict. c. 98. s. 18. enacts, "That in every borough to which a separate Court of Sessions of the Peace hath been or shall hereafter be granted, or purport to be granted, and where the persons committed for offences arising within such borough have been or shall hereafter be sent to any prison of the county in which such borough is situated, and that no special contract shall be subsisting between such borough and county relative to the said prisoners, the council of such borough shall pay or cause to be paid to the treasurer of such prison, or other person appointed by the Justices of the Peace in general or quarter sessions assembled, for the county in which such prison is situated, the actual expenses heretofore incurred, or hereafter to be incurred, in the conveyance, transport, maintenance, safe custody, and care of every such prisoner, according to the time for which each such prisoner shall have been or shall remain in custody there, at the average daily cost of each prisoner, according to the whole number of prisoners confined in the said prison, such average to be taken yearly, halfyearly, quarterly, or at such other intervals as the visiting Justices of the prison shall from time to time determine, including in such expenses all salaries of officers, all expenses of repairs, alterations, additions, and improvements in or to the said prison, all sums paid to prisoners under any act of parliament on their discharge or otherwise, and any other charge whatsoever, on account of the prisoners confined in such prison; subject, nevertheless, to a proportional share of all deductions on account of the earnings of prisoners in the said prison, and

(2) 11 Ad. & El. 144; s. c. 9 Law J. Rep. (N.s.) Q.B. 9. (3) 10 lbid. 740; s. c. 8 Law J. Rep. (N.s.) M.C. 99.

be considered as amounting to one not being under the corporate seal-The Queen v. the Mayor, &c. of Stamford (4). The actual cost of the prisoners was therefore the basis of the calculation of the amount payable by the borough to the county. Neither could the claim on the part of the county be limited to payment for prisoners committed to the house of correction by the borough. The right of the county depends on the words of the statute 5 & 6 Vict. c. 98. s. 18, which are quite clear. The borough of Birmingham indeed appears to have been in a position not contemplated by the 5 & 6 Will. 4. c. 76, as it had a Quarter Sessions without a gaol; but the statute 5 & 6 Vict. c. 98. was passed to meet all cases where borough prisoners have been confined in county prisons. Secondly, the borough is clearly liable to contribute to the purchase of the Coventry gaol. The borough is not excepted from the county by the act of 5 & 6 Vict. c. 110, and by the 5 & 6 Will. 4. c. 76. s. 117. it is liable to pay its proportion of the county rate for all purposes except the "costs arising out of the prosecution, maintenance and punishment, conveyance and transport of offenders committed to trial in such county, and also coroners' inquests." A gaol purchased by the county cannot come under any of these descriptions, and the whole question turns on the effect to be given to the words of this last section.

M. D. Hill, contrà. As to the first question. The town council cannot in fairness be called upon to pay sum originally agreed on. the statute 5 & 6 Vict. c.

more than the The object of The object of 98. was not to

of all sums of money received in aid of the rates levied for the maintenance of the said prison."

By 5 & 6 Vict. c. 110. s. 2, the gaol and house of correction belonging to the city of Coventry became a common gaol and house of correction for the county of Warwick.

Sect. 4. enacts, "That the treasurer of the county of Warwick shall pay to the treasurer of the city of Coventry, out of any monies in his hands as such treasurer, such sum as the Commissioners of Her Majesty's Treasury, within six calendar months next after the passing of this act, or such further time to which the said Commissioners from time to time shall extend the time for making their award, shall determine to be the fair value of the said gaol and house of correction, and of the court-house and other buildings connected therewith; and payment of such sum shall be made at such times and in such manner as the said Commissioners shall direct, and the said sum, when paid, shall form part of the borough fund."

(4) 6 Q.B. Rep. 433.

interfere with existing arrangements in any way, and the treasurer cannot say that he made out the account in ignorance of the effect of the statute 5 & 6 Vict. c. 98Shaw v. Picton (5). Secondly, the very statute 5 & 6 Vict. c. 98. puts an end to the liability of the borough of Birmingham to contribute to the purchase of the county gaols; by that act, section 18, the county may charge in expenses of prisoners, the expenses of repairs, &c. to the prison, shewing that a county rate could not charge such repairs separately. It is not shewn, nor is it the fact, that there is any probability that the Birmingham prisoners will be sent to the Coventry gaol. The grant of a separate Court of Quarter Sessions contemplates and assumes that the borough has a gaol of its own, and a gaol is in course of erection for the borough of Birmingham. Mellor, in reply.

Cur. adv. vult.

The judgment of the Court was subsequently delivered by

LORD DENMAN, C.J.-This was an application for a writ of mandamus to the corporation of Birmingham, to pay a sum of money to the Justices of the Peace of the county of Warwick. It appears by the ease stated by the parties, that a separate court of Quarter Sessions was granted to the borough on the 3rd of May 1839. The borough having no gaol, a negotiation was entered into prior to the grant of the court of sessions; and it was agreed, though not by any formal contract, that the sum of 11d. per day should be paid by the borough to the Justices for each prisoner, and that the arrangement should continue for one year, after a court of sessions should be granted.

From the time of the grant of the court of sessions, it is clear that the borough could not be included in the county rate at all-5 & 6 Will. 4. c. 76. s. 112; but the borough remained liable under the 114th section for the expenses of prisoners tried at the assizes, and, under the 117th section, to its proportion of other county expenses. No provision is made in that act for the expenses of prisoners tried at the sessions, because the act contemplates that no grant would be made of a separate court of sessions until the borough had a gaol of its own.

After the grant to the borough, applica(5) 4 B. & C. 715; s.c. 4 Law J. Rep. K.B. 29.