The Queen against Fox
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 1859 |
| Date | 20 April 1859 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 1083
IN THE QUEEN'S BENCH
Affirmed in Exchequer Chamber, 1 El. & El. 746; 29 L. J. M. C. 54; 5 Jur. N. S. 1248; 8 W. R. 93.
[729] casks argued and determined in the queen's bench, in easter tekm, XXII. victoria. The Judges who usually sat in Bane in this Term were : Lord Campbell C.J., Crompton J., Hill J., Erie J. the queen against Fox. Wednesday, April 20th, 1859. The Municipal Corporations Act, 5 & 6 W. 4, c. 76, s. 102, 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), 1084 THE QUEEN V. FOX 1 EL. ft EL. 730. 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 1001., any of the persons before declared ineligible, from acting as clerk to the justices, or otherwise offending iu 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 : and 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 Viet. 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 prosecutions), P. was paid his usual fees. Under their partnership arrangement, defendant and P. shared equally between them all fees received by P. upon prosecution, including those last mentioned. Defendant having been indicted and convicted for a breach of the statutory proviso above set out;-Held, by Lord Campbell C.J. and Erie J. (Crompton J. digsentiente), 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. W. 4, c. 76. [Affirmed in Exchequer Chamber, 1 El. & El. 746 ; 29 L. J. M. C. 54; 5 Jur. N. S. 1248; 8 W. K. 93.] At the Spring Assizes for the county of Monmouth, in 1858, an indictment, substantially as follows, was preferred against the defendant. [730] 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 W. 4, 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 arid 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 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 [731] 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, of such partner of the said Charles Prothero as aforesaid, unlawfully was, while he was such clerk of the said juatices as aforesaid, interested by his said partner, the said Charles Prothero, in the l EL. & EL. 732. THE QUEEN V. FOX 1085 prosecution of the said several laat 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, aud against the peace of our Lady the Queen &c. Thia 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, [732] 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 W. 4, c. 76, s. 102 ; which is set out in the argument. 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 W. 4, c. 76, but having no grant of a separate Court of Quarter Sessions. Parties charged with'offences before the borough justices are committed for trial at the assizes held at Monmouth, or General Quarter Sessions held in and for the said county at Uak. 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, 1843, 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 [733] Mr. Fox, in the firat 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 G. 3, 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 Viet. 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, which is set out in the argument.] 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 last mentioned 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...
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