-Bac. Abr. tit. 'Fees,' A, citing 2 Inst. 209. Second, prescription is out of the question, for the office of clerk of the peace has been created since the time of legal memory (5); and even if such prescription did exist, it would be bad, as against the fundamental maxim of common law. Thirdly, no such custom exists, for custom must be invariable and constant; and it appears (6) that in thirty-two counties and seventy-two boroughs in England no such fees are taken at all; and in others where they are taken, the amount varies greatly from those which Mr. Coles claims to receive.

[LORD DENMAN, C.J.-No stress can be laid upon the fact that the fees are not uniform, if the tables in the different counties have been settled by the Judges since the statute 57 Geo. 3. Some Judges may have differed from others as to the amount payable, and some may have disapproved of any fees in particular cases. be prepared to contend, that no one fee can legally be taken by the clerk of the peace from defendants in misdemeanours.]

You must

Yes; no one such fee could legally be taken. The table of fees is to be found in Dalton, c. 41, but none are specified which are payable by defendants. Fleetwood v. Finch (7) shews that the usual fees may be taken, but not from defendants. Fourthly, no statute creating any such fees exists, and the Court will not presume such a statute in support of a practice which Lord Coke emphatically declares to be illegal, which would seem to have grown up by degrees as an encroachment and usurpation upon the common law, and which is therefore altogether void. Lastly, it is useless to quash the present order, for since the rule for a certiorari was obtained the 8 & 9 Vict. c. 114. has passed, prohibiting the fees, which it was the object of this order to prevent. That statute enacts, that the provisions of the statute 55 Geo. 3. c. 50, respecting the discharge of certain prisoners without any fee, shall extend to all persons charged either with felony or misdemeanour, against whom no bill shall be found, or who on their trial shall be acquitted, or who

(5) By Littledale, J., in Harding v. Pollock, 6 Bing. 48.

(6) This was stated in the affidavits used in shewing cause against the rule.

(7) 2 H. Bl. 220.

shall be discharged by proclamation; and that it shall not be lawful to demand or take from such persons any fee for their appearance to the indictment, or for allowing them to plead thereto, or for recording their appearance or plea, or for discharging any recognizance taken from any such persons or their sureties.

Crowder, Kinglake, Serj., and Moody, contrà. This is a judicial order, and properly removable by certiorari. If not, cause should have been shewn against the rule for a certiorari. It is now too late, the rule having been enlarged by consent, to object that the certiorari ought not to have issued-The King v. Hartshorn (8). [LORD DENMAN, C.J. - We have no doubt at all upon this part of the case. This is not only a judicial order, but one of the very highest character, applicable to all the judicial proceedings of the Court of Quarter Sessions.]

Then the order is invalid. It abrogates the table of fees framed under the provisions of the statute 57 Geo. 3, which table can only be legally altered in the mode provided for in that statute. It is said, that the table of fees is itself invalid, so far as it authorizes the taking of fees from defendants, because it was not in the power of the Justices to create, or of the Justices to ratify and confirm any fees, not payable either by usage or by statute previous to the 57 Geo. 3. But the statute 57 Geo. 3. did not create

any new fees. It recognizes the existence of various fees before that time payable by defendants, and was passed in order to get rid of long and tedious investigations as to the legality and amount of such fees in each particular instance. The words of the statute are, that the Justices are to "ascertain, make and settle" a table of fees; that is, to state the amount then legally payable, so as to prevent disputes thereafter. And the previous statute of 55 Geo. 3. c. 50. s. 4, after reciting that it is customary for clerks of the assizes, clerks of the peace, and others, to demand and take from persons indicted, divers sums in the way of fees, (thus recognizing the previous universality of the practice,) proceeds to enact, not that all such fees shall be abolished, but that they shall not be

(8) 2 Burr. 745.

taken in the case of prisoners (for which, by section 7, the county is to indemnify the clerk of the peace), and thus inferentially recognizes the right of the clerk of the peace to continue to take them from such defendants as are not prisoners. As to usage, "The fees in sessions for traversing, trying, or discharging indictments, discharging recognizances, and the like, do vary according to the different customs in different places" (9). Here the affidavits shew that Mr. Coles has received those fees only which have been "usually paid" to his predecessors in office; and to such he is entitled by usage-The Queen v. Baker (10), even if the usage be not entirely superseded by the table of fees. There needs no immemorial prescription for such payments. When new courts are established, there new fees may become payable to their officers, who fulfil duties similar to those performed in other courts by persons holding a prescriptive and immemorial office. Nor is there anything unreasonable in requiring fees from defendants in some instances; e. g. a defendant who traverses an indictment claims an indulgence; for such a right therefore he may properly be called on to pay a fee upon entering into a recognizance to try his traverse-The Queen v. Bishop (11). As to the statute 8 & 9 Vict. c. 114, it does not affect fees payable by traversers or by persons convicted. It does not therefore go so far as this order of sessions assumes to do.

[LORD DENMAN, C.J.-Persons convicted are still liable to pay fees, but it would seem that they must pay them before they know whether they are convicted or not. Suppose the fee paid, and the man afterwards acquitted?]

The clerk of the peace in such case would take the fee at his peril. (They were then stopped.)

LORD DENMAN, C.J.-It appears to me, that this order cannot possibly be supported. The first document to be referred to is the table of fees, framed in 1826, under the authority of the act of parliament, and

(9) Dalton, p. 41, cited in 2 Burn's Justice, tit. 'Extortion,' p. 1037.

(10) 7 Ad. & El. 515; s. c. 7 Law J. Rep. (N.s.) M.C. 69.

(11) 1 Car. & Marsh. 302.

sanctioned by the two Judges of assize then going the circuit. That table is prima facie proof not only of the fees to be paid thenceforth, but also of those ascertained to have been up to that time legally payable. That seems to me the fair construction of the statute 57 Geo. 3. c. 91, which says, that the Justices are to ascertain, make and settle a table of fees, which the Judges of assize are authorized to ratify and confirm, with such alterations, additions and improvements, as to them shall appear just and reasonable. They had no power to create fresh fees, but only to ascertain what had hitherto been paid, and to prescribe that the same should be payable in future. I am not sure that this table, so settled, would not alone be sufficient to shew the authority of the clerk of the peace to receive the fees now complained of. But, in addition to this, it is quite clear, from the statute 55 Geo. 3. c. 50, that fees were previously properly payable by defendants in some cases; and if we can see this clearly, then it is manifest that the Sessions have assumed to do more than they had any right to do, in ordering that no fees whatever should in future be payable by any defendant in misdemeanour. On this short ground I am of opinion, that this judicial order of the Sessions prescribing the future rights of the officer of their court, and of all parties coming before them for trial, cannot be sustained. And the matter having been regularly brought before us, I think that we are not at liberty to decline to exercise our jurisdiction (not that in every case it is imperative upon us to exercise it), but that we are bound to tell the Quarter Sessions that they have not proceeded in this case in the manner warranted by law. Their order must be quashed.

WILLIAMS, J.-It has been conceded by the Attorney General, and properly conceded, that if, in any single instance, any fees were legally payable by defendants in misdemeanours, then this order of sessions, which forbids all such fees without any exceptions, cannot be supported. Whether much progress will be made towards settling differences in the West of England by this discussion, I, for one, very considerably doubt; but however that may be, the question for us simply and solely is, whether any such fees were legally payable. And I

think, that from the words of the statute 57 Geo. 3, the presumption arises that fees of some sort payable by defendants did previously exist in point of law, which, by that statute, the Justices at sessions and the Judges of assize were to ascertain and regulate. But the matter is carried farther, when we refer to the statute 55 Geo. 3, which distinctly recognizes fees of this description as being then due and payable. If, indeed, this order of sessions only directed that which the statute 8 & 9 Vict. c. 114. has since done, it would be quite useless to quash the order; but upon reverting to the last-mentioned statute, it will appear that the order was not a mere anticipation of its provisions. There are certain fees due and payable, to which the statute of Victoria does not apply, but which the order absolutely forbids: for example, fees payable upon traverses, which are left wholly untouched by the recent statute, but which the order of sessions has improperly assumed to abolish.

COLERIDGE, J.-I am entirely of the same opinion. All I would say is, that this order is inconsistent with the table of fees ascertained and settled under the provisions of the statute 57 Geo. 3. The argument in support of the order was, that previous to and independently of the table no fees could be taken by the clerk of the peace, because he was not an officer immemorially entitled at common law to take fees. It is certainly true, that the office of the clerk of the peace has been created within the time of legal memory; but when created, it became analogous to that which is a prescriptive and immemorial office, viz. the office of clerk of assize; and we may well conceive, that when a court of justice was created with an officer similar to an officer in an existing court, the newly created officer might be entitled to similar powers and privileges to those possessed by the officer he resembled. But we need not rest our decision on this analogy I prefer to put it upon the modern statute, and to see whether what has been done under that statute has been warranted by law. Now the statute points out very fully the mode to be adopted. The Justices are to ascertain and settle a table of fees at one sessions, and then, in order that all may be done in the most deliberate manner, the table so made is to be subject

:

to the approbation of the next sessions. Nor is this all: the table, so ascertained and approved of, is to be submitted to the Judges of assize, who are to ratify and confirm, or alter the same as they shall think fit; when this has been done, the clerk of the peace is to take no fees but those specified in the table, until the same process has been gone through again, and the fees have been altered by the same authority which so settled them. When this course has been adopted, there is such a strong presumption of his legal right to take the fees set forth in the table, that the onus of proving their illegality rests rather on the other side, than upon those who rely upon the table of fees. But even if they are to shew it, they have, I think, done so satisfactorily by reference to the statute 55 Geo. 3. c. 50.

WIGHTMAN, J.-I entertain no doubt that this is a judicial order; that it has been properly brought before this Court by certiorari, and that it is no answer to the application to quash it, to say that it is a nullity which cannot affect the applicant. It is said, that the order does nothing more than to declare that which was already law, for that there are no fees payable by law to the clerk of the peace by defendants in misdemeanours. But it seems to me, in common with the rest of the Court, that both the statutes 55 Geo. 3. and 57 Geo. 3. clearly recognize the legality of taking some such fees, which the table, framed under the authority of the latter statute, has specified. It would be a very short and easy mode of getting rid of a table of fees duly sanctioned by the Judges under the authority of an act of parliament, if at the next sessions the Justices are to undo all that has been formally and legally done in the mode prescribed by law. If this may be done, I know no reason why, if the Sessions differed from the Judges, they might not by a mere resolution forbid all fees whatever to be taken by a clerk of the peace; which would lead to this anomaly, that there would be a table of fees sanctioned by the highest authority, and unreversed, and at the same time, an order of sessions forbidding their officers to take the fees mentioned in it, or perhaps any fees at all. Such an order cannot be supported.

Order of Sessions quashed.

By statute 2 & 3 Will. 4. c. 64, a certain part of the parish of F. in the county of Wilts, was included within the city of New Sarum, which is not a county of itself, but which, after the passing of the 5 & 6 Will. 4. c. 76, had a separate court of quarter sessions :— Held, that after the passing of the last-mentioned statute the city of New Sarum was not liable to the repair of a public bridge, locally situate within the part of the parish of F. so included within the city.

The first count of the indictment stated, that, on the 6th of November 1842, there was, and from thence hitherto hath been, and still is, a certain common and public bridge, commonly called Harcourt's Bridge, situate, lying and being wholly within a certain town corporate in the county of Wilts, known by the name of the borough of New Sarum; in which said town corporate during all the time aforesaid there was and still is a body politic and corporate, known by the name of The mayor, aldermen, and burgesses of the borough of New Sarum, and that the said common and public bridge, before and during all the time aforesaid was and at the present time is situate in the Queen's common highway in the aforesaid town corporate, the said borough of New Sarum, in the county aforesaid, being a common highway for all the Queen's subjects on foot, and with horses, coaches, &c. to go, return, pass and repass, &c., and that the said common and public bridge, and also a certain part of the Queen's common and public highway, used &c., also situate, lying and being within the said town corporate, and adjoining to the south end of the said bridge, continuing from the same end of the said bridge for the space of 100 yards, on &c., and continually afterwards, until &c. were ruinous, broken, dangerous, &c. and that the inhabitants of the said town corporate ought during the time aforesaid to have repaired and amended, and still ought to repair and amend, the said bridge, and the said part of the said highway. Second count

At the trial, at the Wilts Lent Assizes, 1844, the facts of the case were, for the purpose of taking the opinion of the Court as to the liability of the borough to repair the bridge, turned into a special verdict, in which it was found that the city of New Sarum, which is also a borough in the county of Wilts, was originally incorporated by a charter of Hen. 3, and consisted of three parishes, St. Thomas, St. Edmunds and St. Martin; and that certain charters were subsequently granted to the inhabitants of the said city, by the name of "The mayor and commonalty of the city of New Sarum, in the county of Wilts," by James I. A.D. 1611, by Charles I. A.D. 1630, and Charles II. A.D. 1675; and that by the charter of James I. the mayor, recorder, and ten aldermen were appointed Justices of the Peace within the city (each of the three charters containing a ne intromittant clause); and that by the Boundary Act, 2 & 3 Will. 4. c. 64, certain parts of the parishes of Fisherton Anger and Milford, in the county of Wilts, were, as to the election of members of parliament included within the limits of the said city of New Sarum, in the schedule to the said act called "Salisbury," in addition to the said three parishes of St. Thomas, St. Edmund and St. Martin; and that by the Municipal Corporation Act, 5 & 6 Will. 4. c. 76, the metes and bounds of the said city and borough, which is named in the first section of schedule (A.) annexed to the act, were declared for the purposes of that act to be the same as the limits settled and described by the act of 2 & 3 Will. 4. c. 64; that by letters patent of 3rd of June, 6 Will. 4. a separate court of quarter sessions was granted to the said borough of New Sarum.

The special verdict found further, that the bridge called Harcourt's Bridge is a common and public bridge, situate wholly within the parish of Fisherton Anger in the Queen's common highway there, and used by all the Queen's subjects on foot, and with horses, carts, and other carriages at their free will

and pleasure; and that before and at the time of the passing of the last-mentioned statute, 5 & 6 Will. 4. c. 76, the whole of the parish of Fisherton Anger was without the boundaries of the city and borough of New Sarum, and that the same bridge, and also a certain part of the Queen's common highway, adjoining to the south end thereof, and continuing from the end of the said bridge for the space of 100 yards, are situate wholly within that part of Fisherton Anger, which is included within the limits of the said borough of New Sarum by the said lastmentioned statute. That the borough of New Sarum is not a county of itself. And further, that the bridge called Harcourt's Bridge is an ancient bridge, and that before and until the passing of the said lastmentioned statute the bridge, and the said part of the highway adjoining to the south. end thereof, have always been repaired by and at the expense of the said county of Wilts, and no other person has repaired the same, and that since the passing of the said last-mentioned statute the same have not been repaired, and that the said bridge and the said part of the road were at the time of preferring the indictment, and still remained out of repair.

The case was argued by―

Cockburn (Butt and Barstow were with him), for the Crown.-The cases all shew, that independently of the statute of 5 & 6 Will. 4. c. 76, if the boundaries of the town had been enlarged by annexing part of the county, the town must have repaired the bridge being within such part of the county. In The Queen v. St. Peter's, York (1), it was held, that the city of York was liable to repair a bridge which was in a part which was formerly part of the West Riding, but had been annexed to the city by charter. The same point was decided in The King v. Norwich (2). Does the circumstance that in this case the annexation has been by statute, and not by charter, make any difference?

[PATTESON, J.-The case does not shew that the city of New Sarum was ever liable to repair any bridge.]

[WILLIAMS, J.-Boroughs can only be

charged with the repair of bridges by immemorial usage.]

The Statute of Bridges, 22 Hen. 8. c. 5. s. 3. refers expressly to bridges within cities and towns corporate, and charges such cities and towns with the liability to repair such bridges.

[PATTESON, J.-Is this district part of the town corporate ?]

The statute 5 & 6 Will. 4. makes it so, and by section 111. all jurisdiction of county Magistrates is taken away, and section 112. exempts boroughs in which there is a separate court of quarter sessions from county rates; this bridge will not be repaired at all if the borough is not liable, as the power given to Justices of counties by the statutes 1 Anne, c. 18. and 12 Geo. 2. c. 29, would be no longer in force as to this portion of the county; and in any case the county Magistrates could not compel the parishes which derive the benefit to repair the bridge, but it would be thrown on the county at large.

Crowder (Montague Smith was with him) for the defendants.-The bridge was not in the borough before the act, and there can be no pretence for charging it on the ground of immemorial usage. The 5 & 6 Will. 4.

c. 76. settled the boundaries of the cities and towns corporate as therein mentioned for the purposes of that act, and expressly provides by section 7, that the metes and bounds of certain boroughs, of which New Sarum is one, "for the purposes of that act," should be the same as the limits settled by statute 2 & 3 Will. 4. c. 64, but for no other purpose. Why should the burden of repair be transferred from a large district to a small one? The case of The Queen v. St. Peter's, York, and The King v. Norwich, were cases of counties of cities, and there is no distinction, as regards liability to repair a bridge, between a county of a city and any other county. It is assumed, on the other side, that the borough would of common right be bound to repair this bridge, but that could only be in the case of an ancient bridge before the Statute of Bridges, 22 Hen. 8. c. 5. The 111th section of 5 & 6 Will. 4. c. 76. does not apply, as the county Magistrates had Magistrates had no jurisdiction in the borough before the act, and if the 111th section did apply, still the 117th section would enable the treasurer to apportion the share