the plea of autrefois convict is insufficient unless it shew an existing judgment, which the present plea does not. On this point the following authorities were cited:-2 Hale, P.C. 251; Ibid. 394; 1 Stark. 319; Ibid. 329; Ibid. 373; 1 Chit. C.P. 756; 3 Inst. 213; Vaux's case (1), The King v. Bourne (2).

Bliss (with whom was Pickering), contrà, submitted that the plea, whether it was to be treated as shewing a conviction or an acquittal, shewed that the prisoners had been in jeopardy on the former occasion; but that in fact it amounted to a plea of acquittal, because it averred an acquittal by the Court.

COLERIDGE, J. took time to consider his judgment.

At the Yorkshire Summer Assizes, 1849, on the 12th of July, WIGHTMAN, J. delivered the judgment of

COLERIDGE, J.-This case came on before me at the last Yorkshire Assizes, upon a demurrer by the Crown to the plea of the prisoners. Some points for the prisoners were made on the argument, for which there appeared to me no foundation. I reserved my judgment on that which I now proceed to discuss. It was an indictment for felony by statute. The plea in substance stated a previous indictment for the same offence, trial on a plea of not guilty, verdict for the Crown with judgment of transportation, a writ of error in the Queen's Bench, with various causes assigned, and judgment against the Crown, that the prisoners be restored to all things lost by the judgment, and depart hence without day in that behalf. There was an averment that the judgment was reversed for errors above assigned in the giving of the judgment in the Court below.

Upon the argument it was insisted for the prisoners, that the reversal must be taken to have proceeded solely on the error - specially assigned in the judgment itself, that it was for a longer period of time than the statute permitted. Assuming this, it appeared that there had been a good indictment, issue well joined, a trial completely had, and a lawful verdict found;

and although it was admitted that no judgment could now pass for the Crown, yet it was said the proceedings were a bar to any other indictment, equally whether the legal effect of the whole was a conviction, or, as might be contended, a lawful acquittal; for that the principle which barred a second prosecution was simply that a man should not twice be put in jeopardy for one and the same offence.

Although many causes were assigned, I think the case must be decided on this assumption; for it would be too much to assume on the other hand, that any other cause was well assigned: none other was pointed out in the argument or insisted on, which shewed that the indictment itself was insufficient. It cannot, therefore, be denied that the prisoners were at one time and in some sense in jeopardy on the same charge as that which is now preferred by this indictment. The question, therefore, seems to be in what sense that which is laid down as the true principle on which the plea of autrefois convict stands is to be understood. Lord Hale (2 Pleas of the Crown, c. 32, p. 251,) says, "If A. be indicted and convict of felony, but hath neither judgment of death, nor hath prayed his clergy, this is no bar of a new indictment for the same offence, if the first were insufficient; and it seems though it were sufficient, yet it is no bar without clergy or judgment; but if he had his clergy allowed him, "autrefois convict and had his clergy," is a good bar to an indictment, or an appeal for the same cause, and so remaineth at this day, notwithstanding 3 Hen. 7. c. 1." Lord Hale therefore thought, though he expresses the opinion here with some hesitation, that a conviction on a good indictment was no bar unless judgment or clergy followed as the fruit of the conviction. The only authorities which he cites for the whole passage are Vaux's case and Wigges case (3). Vaux's case was on an insufficient indictment, and the material resolution proceeds on the principle, that in such case the prisoner has never been in jeopardy. Neither is Wigges case, or anything resolved in it, any authority for the opinion which Lord Hale throws out, and which is now in question; but Lord Hale goes on to say, "And so it is

(3) 4 Rep. 45.

if he prays his clergy, and the Court will advise upon it, though the clergy be not actually allowed." For this he cites Holcroft's case, which is cited at length in Wigges case, and the principle is the satisfactory one, that as conviction and clergy granted would have barred, the act of the Court in delaying to grant the prayer while advising upon the propriety of allowing it shall not prejudice the prisoner. But then this presupposes that clergy was ordinarily necessary, in the absence of judgment, to make the conviction operate as a bar; and it supposes also the conviction to have been on a good indictment, for if the indictment was bad, it is clear that the grant of clergy united to the conviction would not have made the conviction any more a bar than it was before. It is clear, that in respect of the plea of autrefois acquit, there must not only be the verdict, but judgment also to make it of avail-2 Hale's P.C. 243; and Lord Hale applies the same rule in terms to the plea now in question-Ibidem, p. 248. Lord Hale's judgment, therefore, on the whole will appear to be clear against the present plea. Hawkins, b. 2, c. 36, states the principle upon which the plea rests as Lord Hale; but the conclusion to be drawn from the whole chapter is, that without judgment, allowance of clergy, or at least prayer of clergy by the prisoner, (the delay of granting being only the act of the Court,) the conviction was no bar to a second indictment. This rule is rather assumed through the chapter than laid down in terms, but it is to my mind satisfactorily

Mr. Starkie, whose excellent book on criminal pleading may now be quoted as direct authority, lays down the same rule very precisely, thus (4): "After conviction the defendant remains without receiving judgment or praying his clergy, or he prays his clergy without receiving judgment, or he receives judgment of death, whereby he becomes attainted. If the defendant, after conviction, remains either without receiving judgment, or pray ing his clergy, he may be indicted for any other offence, or even for the same." Against these authorities I cannot find anything to be set, nor can anything be relied on, but a literal construction of the

(4) Vol. 2. p. 311. NEW SERIES, XVIII.-MAG. CAS.

A man

rule, which cannot be maintained. who has been tried, convicted, and attainted on an insufficient indictment, or on a record erroneous in any other part, is so much in jeopardy literally that punishment. may lawfully be inflicted on him, unless the attainder be reversed in a court of error; and yet when that is done, he may certainly be indicted again for the same offence; and the rule would be held to apply that he had never been in jeopardy under the former indictment. The true meaning, therefore, of not having been in jeopardy in this rule seems to be, that by reason of some defect in the record, either in the indictment, place of trial, process, or the like, the prisoner was not lawfully liable to suffer judgment for the offence charged on that proceeding; and so understood, it is true in the present instance--the judgment reversed is the same as no judgment; upon a record without any judgment, no punishment can be suffered.

That is the present state of this record, and so it must remain, for it has been repeatedly decided see The King v. Browne-that neither the Court of Queen's Bench nor the Court below can now pronounce any judgment on it; the former never had the power; the latter is functus officio (5). Judgment must, therefore, be given against the plea; and certainly justice and common sense concur with authority in this conclusion; it would be shocking to both, that individuals who object only that they have been found guilty of an offence on a lawful trial, but that there has been a mistake in the judgment pronounced, which judgment has been on that ground reversed, and can never be carried into effect, should, therefore remain exempt from all punishment.

The plea has not concluded with pleading over to the felony, which is the usual and proper form. In strictness, therefore, the

(5) Since the bringing of the writ of error on the former indictment, the 11 & 12 Vict. c. 78. (passed on the 31st of August 1848) has provided" that whenever any writ of error shall be brought upon any judgment on any indictment, information, presentment or inquisition, in any criminal case, and the court of error shall reverse the judgment, it shall be competent for such court of error either to pronounce the proper judgment or to remit the record to the Court below, in order that such Court may pronounce the proper judgment upon such indictment, information, presentment or inquisition."

2 C

whole of the house is required for the business of the mission, though there are times when it may be and is used by other societies without interfering with the society in question. The clerks attend daily during a portion of the day and leave the premises in the evening, which are locked up by servants of the society, who live in a small house in the rear of the main building, situate on the same plot of ground, but wholly detached from the main building, and having a separate entrance, but the whole within one fence and forming part of one establishment. The small house contains four rooms furnished by the occupant, viz. a kitchen, a sitting-room, and a bedroom occupied by the porter rent free as connected with their service, and which is considered as part of his remuneration, and a room used by the society as a store-room. No one sleeps in the main building. Eleven other societies connected with the Baptist denomination, some of which contributed to the building of the house, amongst others the Baptist Irish Society occasionally, and two of them about three days in a week, use some part of the building for the purpose of holding their meetings and keeping their books; but these societies are all purely charitable, and no member of them has any private benefit from the occupation of any part of the premises, but the Baptist Irish Society carry on their business on these and no other premises. They have a different organization, distinct offices and committees, and pay a proportion of lighting, firing, and cleansing-one twelfth, 231. per annum. The other eleven twelfths are divided amongst the rest of the societies using the premises. In one of the rooms is deposited 3,000 or 4,000 volumes of books, consisting of history, philosophy, and works on the Hindoo religion, no profit being made by any one from the use of them. The sum of money paid to the society by each of the other societies thus accommodated for gas, fire, cleansing, and attendance is equal to the expense incurred by the society on behalf of each, but not more. It appears also that the Reports and other periodical works of the society which are printed for the use of the members are sold when applied for, the proceeds of which sale are carried to the credit of the society, but do not cover the original cost.

For the appellant, it was contended that there was in this case no beneficial occupation of the premises, and therefore no liability to the poor-rate, and that as under the 11 Geo. 3. c. xxix. s. 41, the rate in question is directed to be made upon all and every person and persons who do or shall inhabit, hold, occupy, possess, or enjoy any land, house, shop, warehouse, cellar, vault, or other tenement or hereditament within the said several wards, and who by the laws now in being are or shall be liable to be rated towards the relief of the poor in the respective parishes where he, she or they shall respectively live or reside, the Baptist Missionary Society was not liable to the present rate; and it was contended that the rate could not be supported under the Metropolis Paving Act, 57 Geo. 3. c. xxix. s. 24, because the preamble and various provisions of the 4 Geo. 4. c. cxiv. contained a legislative declaration that the powers given to the Commissioners for paving, &c. the city of London by 11 Geo.3. c. xxix. s. 41. so far as regards the making of the rates were neither enlarged nor affected by 57 Geo. 3. c. xxix. s. 24. The Court was of opinion that without any beneficial occupation of the premises the rate might be supported under the 57 Geo. 3. c. xxix., under which act as well as under 11 Geo. 3. c. xxix. it purported to be made.

The Court was also of opinion that there was, by means of the occupation of the smaller house, and by the sums received by the Baptist Missionary Society from the other societies for gas, fire, and attendance, a beneficial occupation to some extent, and that under the words of 11 Geo. 3. c. xxix. s. 41. a beneficial occupation to any extent would render the whole premises liable to the rate. The Court therefore confirmed the rate, subject to the opinion of the Court of Queen's Bench.

If this Court should be of opinion that the Commissioners can only rate premises of which there is a beneficial occupation, and that there is no beneficial occupation whatever of the premises in question, the rate and the order of Sessions confirming it were to be quashed. If this Court should be of opinion that there was to some extent a beneficial occupation of the premises, and that by means of the provisions in the 11 Geo. 3. c. xxix. s. 41.

the premises were liable to be rated only to the extent of such beneficial occupation, then the rate was to be reduced to 100l., which the Sessions found to be the value of that beneficial occupation. In any other case, the order of Sessions and the rate were to stand confirmed.

Any of the sections of the acts of parliament under which the rate purports to be made might be cited by either party as parts of the present case.

The Attorney General ( Sir J. Jervis) and Clarkson, in support of the order of Sessions (1). These premises are rateable to the sewers and paving rate under 11 Geo. 3. c. xxix. s. 41. They were erected on property which was previously rateable, and there is nothing in the present mode of occupying them which can exclude them from ordinary rateability. In order to render an occupation beneficial for the purpose of rating, it is not necessary that a profit should be made, it is enough if it might be madeThe Queen v. Sterry (2). The Queen v. Wilson (3) may be relied on by the appellants, but the principle laid down in the first case is distinctly in favour of this rate. The true test is there given, that if the premises were let to a tenant, and the whole of the rent applied to the purposes of the institution, they would be rateable in the hands of the tenant. In fact a rent is received here from the different societies who occupy part of the premises-The King v. St. Giles's, York (4). The King v. Agar (5) applies, as the books are sold and the proceeds carried to the support of the society. The Queen v. Wilson, so far as relates to the church rate, is also in favour of the rate, as the local act, 57 Geo. 3. c. xxix. s. 24, directs that the rates are to be paid by all persons in possession or enjoyment of any lands, warehouses, &c. within the wards, and rateable to the poor in the parishes in which they reside. It is not necessary that they should reside in the same ward as the

(1) May 26, before Lord Denman, C.J., Patteson, J., Coleridge, J. and Erle, J.

(2) 12 Ad. & E. 84; s. c. 9 Law J. Rep. (N.s.) M.C. 105.

(3) Ibid. 94; s. c. 9 Law J. Rep. (N.s.) M.C.

100.

(4) 3 B. & Ad. 573; s. c. 1 Law J. Rep. (N.S.) M.C. 50.

(5) 14 East, 256.

premises to be rated-Holford v. Copeland (6). The provision in 57 Geo. 3. c. xxix. s. 51, that the rate was not to be laid on hospitals and churchyards shews the general intention to be not to limit the rateability as in the case of the poor's rate-Eckersall v. Briggs (7). In this view of the case it is immaterial whether there is any beneficial occupation at all for the purposes of the rate in question. The words of the act are large enough to comprise premises not beneficially occupied. But at all events, that part of the building in which the porter resides is beneficially occupied by him as a servant of the society.

Butt and Prendergast, contrà.-This rate is made under 11 Geo. 3. c. xxix, which applied only to the city of London, and was enlarged and amended by 33 Geo. 3. c. lxxv. The 57 Geo. 3. c. xxix. applies to all places within the bills of mortality, but does not either expressly or impliedly repeal the 11 Geo. 3. c. xxix., therefore the rating must be still according to the former act. Sect. 24. of 57 Geo. 3. c. xxix. is quite consistent with sect. 41 of 11 Geo. 3. c. xxix.: it increases the amount of rate, but leaves the species of property on which it may be laid the same as before. The 4 Geo. 4. c. cxiv. only affects the two earlier acts, without at all mentioning that of 57Geo. 3. c. xxix; it therefore amounts to a legislative declaration that the lastmentioned act did not at all affect the former statutes. Assuming the rate to be under 11 Geo. 3. c. xxix, the only sense which can be put on the 41st section of that act is, that a person shall be liable to the paving rate in respect of all property for which he is liable to the poor-rate, i. e. in respect only of property which he occupies beneficially. Now this property is not found to be beneficially occupied: certain facts are found from which the Court is to decide whether there is a beneficial occupation or not, as was done in The King v. Field (8). The Queen v. Sterry cannot rule the present case. There the decision turned mainly on the fact that a payment was made in respect of each child admitted to the institution. There is here no beneficial occupation by the trustees-The King v. the Occupiers of St. Luke's Hospital (9), The King v. St. Bar

(6) 3 Bos. & P. 129. (7) 4 Term Rep. 6. (8) 5 Ibid. 587. (9) 2 Burr. 1053.