Arnold's Municipal Corporations Johnson. c 7,8,^ 1 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES IS, lauti, anil B0u±^k5 <36 J? V^jR;MS M,. REQUIRED BY To^vn Clerks, Clerks to Justices, Clerks to Urban Sanitary Authorities, Clerks to Guardians, School Boards, Burial Boards, Local Boards^ Highv/ay Boards, Overseers, Rate Collectors ; and for the use of all Parochial Bodies and Officers. LONDON: SHAW & SONS, FETTER LANE AND CRANE COURT. [Id " — r ~ "l: ESTABLISHED CIR. 1750. Shaaaa and Sons, PRINTERS, PUBLISHERS, AND n'-:NK-" \L jH a a Ufa t; hi rill (J ^tationci[!!, PiiblLhirs by ^'uthority to Ilcr Majesty's Stuiioncyy Office, Fe.TTEP, LanI^E and Cp^^ANE pOURT, E, C.. LONDON. A TREATISE ON THE LAW RELATING TO iiimicipal dfarjioratimis I IN ENGLAND AND WALES. BY THE LATE THOMAS JAMES lARN O L D OF LINCOLN'S INN, ^_I One of the Metropolitan Police Magistrates. THIRD EDITION BY SAMUEL GEORGE JOHNSON, SOLICITOR, Town Clerk, and Clerk of the Peace, of the Town and County of the Town of Nottingham. LONDON: SHAW AND SONS. FETTER LANE AND CRANE COURT EC, LAW PRINTERS AND PUBLISHERS. •jWi.'il!ii:^-.i i: vv \ ' . I k.^ . - — LONDON : PRINTED BY SHAW AND SONS, FETTER LANE AND CRANE COURT, PREFACE h2The Municipal Corporations Act, 1882, lias been passed by the '^Legislature with the view of consolidating the Municipal Corpora- ^tions Act of 1835 (5 & 6 Will. 4, c. 7Q>), and the numerous Acts £ amending and extending the same, ■^ The Municipal Corporations Act, 1882, does not, thei^efore, affect any borough which was not subject to the provisions of the Act of 1835. It does not apply to the City of London, nor to unreformed corporations. Neither does it touch any of the following Acts, although they are administered by municipal corporations, namely : — 3 The Public Health Acts, and the Consolidation Clauses ^ Acts, incorporated therewith. ^ The Labouring Classes Lodging-houses Acts. ^ The Artizans and Labourers Dwelliags Acts. The Bakehouse Kcgulation Act. The Acts relating to Baths and Washhouses. The Acts relating to the Adulteration of Food and Drugs. The Canal Boats, 1877. The Acts relating to Contagious Diseases in Animals. 5 The Dogs Act, 1871 . g The Act known as the Gardens in Town Protection Act, . ^' 1863 (26 Vict. c. 13). The Commons Act, 1876. o84'7()7 IV PREFACE. The Acts relating to the erection of Lunatic Asylums^ and the care of Pauper Lunatics. The Acts relating to Public Libraries or Museums^ or Schools for Science or Art. The Act generally known as the Municipal Corporations (Borough Funds) Act, 1872 (35 & 36 Vict. c. 91). The Acts relating to the Superannuation of the Police. The Local Loans Act, 1875. The Public Works Loans Acts. The Infant Life Protection Act. The Burial Acts. The Acts relating to the safe keeping of Petroleum. The Weights and Measures Act, 1878. The Tramway Act. The Locomotives on Highways Act. The Promissory Oaths Acts. The Justices Clerks Acts, 1877. The Borough and Local Courts of Record Act, 1872. The Act does not affect the Elementary Education Acts. It does not touch charters, further than they were affected by the Act of 1835. Local Acts are exempted from the operation of the Act. The work of consolidation was entrusted to Sir Francis S. Reilly and Mr. C. P. Ilbert, at that time, parliamentary drafts- men. The first Bill was introduced into Parliament in the year 1878. It failed to become law; and was re-introduced in the year 1879, very much in its present form. The pressure of busi- ness, however, prevented it passing until the close of the last session. The difficulties of the undertaking were enormous ; but they have been overcome through the great skill and labour of Sir F. S. Reilly and Mr. Ilbert. The highest praise must be awarded to them for the successful manner in which they have accom- plished their arduous task. * • « & I ; .. . > . t t t t c • 4 **lt.l(.tC t t ^ *■ *■ <■ < *^ PREFACE. V The Bill, as it left their hands, was a model of consolidation. After the Bill was introduced into Parliament, it was sub- mitted by the Treasury to the writer, as a town clerk who had had much experience in the administration of the Acts proposed to be consolidated, in order that it might be examined and criticised from a practical point of view. A considerable number of amendments were suggested; but most of these were considered inadmissible in a Bill purporting solely to consolidate tlie existing law. Subsequently tlie Bill was submitted to the Council of the Municipal Corporations Association, and carefully revised by Mr. R. S. Wright, who made some very important suggestions and corrections. The Bill was also sent by the Home Office to many town clerks, recorders, and other muni- cipal and county officials. Many alterations were proposed, and, as far as these were consistent with the main object of the Bill, they are incorporated in the present measure. Some amendments were also introduced in the Bill in its passage through both Houses. The result has been the production of an Act of Parliament which will be of the greatest value to all those engaged in the administration of municipal law. Especial thanks are due to Mr. J. T. Hibbert, M.P., for the way in which he skilfully piloted this measure through Parlia- ment. The Act purports to be purely a Consolidation Act, and, generally speaking, this is so ; but there are a few alterations, for the most part of a formal character, or else such as were necessarily incident to the proper interpretation of conflicting enactments. The most striking alteration is one introduced into the Bill in Committee in the House of Lords by Earl Powis. By the law, as it stood before the passing of this Act, the town council were obliged to elect the mayor from among the alder- men and councillors. The noble lord's alteration considerably extends the choice of the council, since he has added words VI PREFACE. enabling the town council to elect a mayor^ not only from the aldermen and councillors, but from those qualified to be such. It will be found that this extension of the persons from whom the mayor may be chosen will not frequently be resorted to, as there are usually a number of gentlemen among the aldermen and councillors ready to take upon themselves the onerous duties of mayor. Nevertheless, it is an excellent provision for time of need. Another amendment of less significance, but of greater utility, is the power conferred on town councils to appoint a deputy town clerk, to act in case of the illness or absence of the town clerk. In many large towns this advantage has been secured by local Acts : and in others, the necessity of the case forced the town council, or the town clerk, to appoint a deputy. The powers of the deputy, in these instances, were extremely doubtful, and it is a good thing to have them definitely settled. An amendment has been made in the disqualification attaching, to a burgess on account of his having received " union or paro- chial relief or other alms." The word "union" has been intro- duced, at the instance of the Local Government Board, to avoid any difficulty that might arise from the relief given, having been a charge on the common fund of the union, under the Union Chargeability Act (28 & 29 Vict. c. 79). This amendment has been carried further by a special exemp- tion of those who have received medical or surgical assistance from the trustees of the municipal charities, or who have been removed, by order of a justice, to a hospital or place for recep- tion of the sick, at the cost of any local authority, or whose children have been admitted to any public or endowed school. The persons who can be removed hy the order of a justice to a hospital, at the expense of the local authority, are those who are suffering from a dangerously infectious disorder, and who are without proper lodging or accommodation, or lodged in a room I'RKFACE. Vll occupied by more than one family, or on l)oard any ship, or in a common lodfj;ing house. It is very rarely that such persons have to be removed by the order of a justice. As a rule, the removal is the voluntary act of the sufferer. The writer ventured to suggest that the words " by order of a justice" should be omitted from the clause. In times of epidemic it is most important that no impediment should be placed in the way of the isolation of persons suffering from infectious diseases, and the clause, thus amended, would have rendered it clear that a burgess would not lose his vote by volun- tarily allowing himself to be removed to a hospital. Perhaps the clause as it stands saves the right of the volunteer, for it would be contrary to common sense to hold that a volunteer', who confers a benefit on the community, should stand in a worse position than his obstinate neighbour, who has to be compelled, at the serious risks attendant upon delay, to obey the law. At all events, such a construction seems most agreeable to " con- venience, reason, and justice." Has the status of women, in relation to municipal privileges, been altered by this Act ? It appears not. The Act declares that for all purposes connected with, and having reference to, the right to vote at municipal elections, words importing the mascu- line gender shall include women. If such a special provision had not been inserted, it might have been contended that as any person of full age, and qualified by rating and residence, may become a burgess, and as the candidate for corporate office must be selected from the burgesses, that there is nothing to prevent women, upon the burgess roll, serving any municipal office. This conclusion would have seemed inevitable, if the Legislature had not gone out of its way, to declare that women should have only one municipal privilege, tlnit is, the right to vote. The Legislature having done this, the plain inference is that there was no inteutiou to confer upon women rights beyond those expressed. Expressio unius, est exclus'w ulter'ms. Vlll PREFACE. There are other minor amendments, to which reference will be made in the proper place in the text of the Act ; but they are not of sufficient importance to demand further attention here. It was, no doubt, undesirable that fundamental changes in the law should be introduced into a Bill, having for its main object the consolidation of the existing law. Nevertheless, there were some grave difficulties in interpreting several of the existing enactments, that might have been fairly dealt with in a Consolida- tion Bill. These would not have been widely at variance with the existing law, but would have simply expressed what is generally understood to be the meaning of doubtful points, and would have materially added to the solid improvement of Municipal Law. Some of these points will be noticed in the comments on the text of the Act. There is one point, however, of paramount importance which it was very desirable should have been cleared up. It is the question of what is a legal expenditure, by the town council, of corporate funds ? Any order of the council for the payment of money out of the borough fund may be removed into the Queen^s Bench Division of the High Court, and wholly or partially disallowed or confirmed, on motion and hearing, with or without costs, according to the judgment and discretion of the Court. With the exception of the remuneration payable to some officials, and certain payments to the Treasury, all payments out of the borough fund must be made by order of the council. Now the 44th section of 7 Will. 4 & 1 Vict. c. 78, which conferred the right on all persons interested in the borough fund to apply for a certiorari, specially mentions that it is given for the purpose of affording a more direct and easy method for misappro- priation. Although this recital is omitted from the Consolidated Act, there can be no doubt that no judge would entertain a motion for a certiorari except on the ground of misappropriation. This, however, does not dispose of the difficulty. The question still remains, What is a misappropriation ? PREFACE. IX The Act of 1835 created a borough fiiudj into which^ generally speaking, the whole of the income of the corporate body not derived from rates was paid. Section 92 of that Act provided that certain expenditure should be paid out of the borough fund, and that there should also be paid out of the borough fund all other expenses not therein other- wise provided for, which should be necessarily incurred in carrying into effect the provisions of that Act. In case the borough fund should be more than sufficient for the purposes aforesaid, the surplus could be applied, under the direction of the council, for the public benefit of the inhabitants and improvement of the borough. In the event of the borough fund proving insufficient, the council could then make a borough rate to meet the deficiency. The Legislature made a distinction between boroughs where there is a surplus of the borough fund, and where there is a deficiency in that fund, to be supplied by a rate. The principle (if any) upon which this distinction is founded seems to be this : Where the funds at the command of the council are derived from estates, tolls, fees, and such like, then the powers of expenditure are enlarged; but where the funds under the control of the council arise from rates, then the expenditure is restricted. This principle leads us to the anomaly that an expenditure which is lawful in one borough is illegal in another. Further, the difficulty is increased by the very definition of the objects for which a rate can be made, namely, all other expenses which should be necessarily incurred in carryinr/ into effect the provisions of the Act. Who are to be judges of these expenses? Common sense would naturally suggest the town council. They are the repre- sentatives of the ratepayers. They have administrative functions entrusted to them, and should have the best means of acquiring information upon the necessity of an expenditure; and whilst they X PREFACE. exercise their powers honestly, impartially, and without corrupt motives, the decision of that body should be final. In the case of The Queen on the Prosecution of Roberts and Others v. The Mayor, ^c., of Shefiehl (L. R. Q. B. vol. vi. p. 652), certain orders of the town council for the payment of expenses incurred by the corporation for the public benefit of the inhabi- tants were held illegal on the ground that these were not expenses necessarily incurred in carrying into effect the provisions of the Municipal Corporations Acts. There is in Sheffield no surplus of the borough fund. In giving judgment in this case, the Chief Justice said : The corporation were actuated by the laudable desire to protect the true interests of the borough, and to prevent the water company from frustrating a very important sanitary provision. He very much wished he could protect the corporation against the expenses which must now fall upon the individual members. Mr. Justice Blackburn said : We must take it that the expenses were really incurred, and that the town council Avere coming forward — and were justified morally in coming forward — on the ground that they were protecting the interests of a large portion of the inhabitants. Mr. Justice Mellor said : I am far from saying that the interference of the council in these matters was an officious interference. On the contrary, in all probability, in regard to some opposition at all events, I think it may be taken to have been properly made — that is, morally proper. Mr. Justice Lush said: I cannot help thinking the corporation acted with perfect bona fides, in the genuine belief that they were acting for the benefit of the inhabitants ; and, as I understand, the result shows that they were so acting. There was no moral misappropriation, therefore, and yet the judges of the Queen^s Bench held that they were bound in the exercise of their judgment and discretion to disallow a very proper expenditure, because they felt themselves bound by the technicali- ['Ui':FArE. XI ties of the Municipal Corporations Act. Sufficient stress docs not appear to have been placed upon the fact that the preamble to that Act recites that divers bodies corporate have been created, to the intent that tlie same might be and remain well and quietly governed. Surely it was the intention of the Legislature that a town council should have authority to incur any expense that may be necessary for this purpose ! Another case of great importance is that of the Attorney- General V. Mayor of Brecon (L. R. vol. x. Ch. D. p. 204). The judgment of the Master of the Rolls is a masterly exposition of the law relating to the expenditure of town councils in reference to the expenses of any attack made by Bill in Parliament, whether against their existence as a corporation, or against their property, or only against their rights, powers, and privileges, and is a direct authority for the legality of expenditure incidental to the existence of a corporation, though not expressly coming within the wording of the jNIunicipal Corporations Act. There is no doubt that the true intent and meaning of the Corporations Acts was to place the good rule and government of the borough in the hands of the town council, and as a con- sequence to give them the command of funds necessary for that purpose. It would be absurd to place in their hands the govern- ment of the town, and deprive them of the means necessary to carry on that government. To prevent misappropriation by jobbery, or fraud, or cul])able carelessness, or corruption, the High Court has been clothed with a discretion to allow or dis- allow any such expenditure. In any case in which the council have acted in the main for the interest of the borough Avith bona fides, ivitliout intrusion, and in a manner that is morally proper, the expenditure should be unquestionable. The suggestion made by one of the learned judges in the SJieffield Case that there were cases in which the council should interfere, and lend their name and the prestige of their authority, and spend money, and then recoup such expenditure by a subscription, is altogether impracticable. Xll PREFACE. Why not, then, in a Consolidation Act have made it clear what is legal expenditure by a town council? Nothing can be so unfair, or prejudicial to the public service, as uncertainty as to what acts of a governing body are legal. No one cares to take upon himself the thankless duty of serving the public with a halter round his neck. It is hoped that this Act will be followed by an Amendment Act dealing with many questions affecting the good government of our towns, and dealing with them, not in the jealous and suspicious manner of former times, but in the just and generous spirit that the upright, judicious, and careful exercise of the trusts, already reposed in town councils, demands from Parliament. The Consolidation Bill has rendered the Second Edition of Mr. Arnold's Treatise almost useless, and another Edition is called for. So much of Mr. Arnold's Work as retains its importance has been incorporated in the Introduction to this' Work. The Chapter on Practice at Municipal Elections has been carefully revised by Mr. J. H. Farmer, the Deputy Town Clerk of this borough. It has been considered desirable to print in full the text of the Consolidation Act, and it is hoped that the notes thereon will be found of considerable service to those interested in its inter- pretation. In the Appendix will be found those Statutes which are referred to in the Consolidation Act and form part of its machinery. A copious Index has been added, and considerable pains have been bestowed upon it with the view of rendering it an easy means of turning to correlative enactments without burdening the text with too many cross references. S. G. J. Nottingham, June, 1883. CONTENTS. DIVISION T. OF CORPORATIONS GENERALLY. PAGE Chap. I. Ofcorporations generally, and of the characteristics and objects of municipal corporations ... ... ... ... 1 Chap. II. Of the corporate seal ; and herein of corporate acts that may be done by deed 4 Chap. III. Of the power to make bye-laws 10 Chap. IV. Of actions by or against a corporation 15 Chap. V. Of the succession of the members of a corporation ... 24 Chap. VI. Of the freemen 25 Chap. VI I. Of proceedings by majidamrts 29 Chap. VIII. Of proceedings by gito rrarranio 33 Chap. IX. Of amotion from a corporate office 37 DIVISION II. THE MUNICIPAL CORPORATIONS ACT, 1882. Part I. .Preliminary 58 Part II. Constitution and government of borough. Corporate name ... ... ... ... ... ... 61 Burgesses ... ... ... ... ... ... ... 61 Council ; mayor, aldermen and councillors 64 Officers of council 72 Meetings and proceedings of council ; committees ... 75 Bye-laws ... ... ... ... ... ... ... 76 Accounts and audit ... 78 Revising assessors 80 Division of boroughs into wards, or alteration of wards 80 Supplemental and exceptional provisions 82 XIV CONTENTS. PAGE Part III. Preparations for and procedure at elections. Parish burgess lists ; burgess rolls ; ward rolls ... 90 Election of councillors 94 Election of aldermen 97 Election of mayor... ... ... ... ... ... 98 Election of auditors and assessors ... ... ... 99 Supplemental and exceptional provisions ... ... 100 Part IV. Corrupt practices and election petitions. Corrupt practices 106 Election petitions .. . ... ... ... ...• ... 110 Part V. Corporate property and liabilities. Corporate land 127 Working men's dwellings ... 130 Eepayment of loans ... ... ... ... ... 131 Purchase or compensation money 133 Misappropriation 135 Corporate stock 135 Borough bridges ... ... ... ... ... ... 137 Loans for municipal buildings ... ... ... ... 137 Ad vowsons and similar rights ... ... ... ... 138 Special rates ... ... ... ... ... ... 139 Misapplication of corporate property 140 Transitory provisions ... ... ... ... ... 142 Part VI. CJiaritable and other trusts and powers. Charitable trusts 145 Special trusts and powers 146 Local acts ... ... .. 148 Part VII. Borough fund ; borough rate ; county rate. Borough fund ... ... ... ... ... ••• 150 Borough rate ... ... 152 County rate ... 158 Part VIII. Administration of justice. County justices ... ... ... ... ... ... 161 Borough justices ... ... ... ... ... ... 162 Stipendiary magistrate 168 Borough quarter sessions ; recorder ; clerk peace ... Sheriff Coroner Borough civil court Borough juries Exceptional provisions ... of the 168 175 176 177 181 183 CONTENTS. XV Part IX. Police. Watch committee; constables Special constables ... Watch rate Part X. Freemen Part XI. Grant of charters. .. Part XII. Legal proceedinri.s Part XIII. General. Boundaries... Time Di.stance Notices In.spection and copies Fees Seals and signatures Applications to Treasury. Deputy . Overseers ... Declarations and oatlis Forms Misnomer or inaccurate description Substitution in former Acts Returning officers at parliamentary elections Disfranchised parliamentary boroughs . . . Licensing ... Freedom of trading Cinque ports Cambridge ... Savings PAGE . 184 .. 180 .. 190 .104 .. 197 .. 204 .. 213 .. 2W .. 217 .. 217 .. 217 .. 218 .. 218 .. 218 .. 219 .. 219 .. 219 .. 220 .. 220 .. 221 .. 222 .. 223 .. 223 .. 223 .. 223 .. 225 .. 225 SCHEDULES. The First Schedule. Enactment s repealed ... The Second Schedule. i\Ieotings and proceedings of council The Third Schedule. Elections ... The Fourth Schedule. Fees and remuneration .. 231 .. 235 .. 238 .. 248 XVI CONTENTS. The Fifth Schedule. Payments out of tlie borough fund PAGE ... 249 The Sixth Schedule. Counties to which certain borough.? are to be con- sidered adjoining for purposes of criminal trials ... 256 The Seventh Schedule. Procedure for scheme on grant of new charter... The Eighth Schedule. Forms .. 256 ... 25'; The Ninth Schedule. Enactment in which a reference to this Act is to be substituted ... ... ... ... ... ... 270 DIVISION III. MUNICIPAL ELECTIONS. Day of election Notice of the election Nomination papers ... Notice to the candidates Notice of withdrawal Objections to nomination pai)ers, how disposed of Notice of candidates duly nominated The ballot papers Tendered ballot papers Stamping instrument for official mark Seal Ballot boxes ... Miscellaneous requirements Polling districts, polling places, and pollin Construction of polling stations Marking compartments As to the construction of marking compartments Directions for the guidance of voters Returning officers Presiding officers and clerks Agents of candidates Notice of polling places The declaration of secrecy . . . Appointment of officers and clerks The poll g stations 274 275 275 277 278 278 280 282 283 286 286 287 287 289 290 292 292 293 293 293 294 298 298 299 300 CONTENTS. XVll PAGE Instructions to presiding officers and clerks ... ... ... 302 Close of the poll 308 Duties of returning officers 309 The duties of the returning officer in counting the votes... ... 311 The duties of the returning officer as to the rejection of invalid ballot papers ... ... ... ... ... ... ... 317 The returning officer's duties as to the declaration of the poll ... 328 Notice to persons elected ... ... ... ... ... ... 329 Election of auditors and assessors 330 Signature ... 330 APPENDIX. Parliamentary Registration Act, 1843 ((5 Vict. c. 18) 332 The Poor Rate Assessment Act, 1869 (32 & 33 Vict. c. 41) ... 367 The Parliamentary and Municipal Registration Act, 1878 (41 & 42Vict. c. 26) 373 The Ballot Act, 1872 (35 & 36 Vict, c 33) 414 The Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102) 438 An Act to continue and amend the Corrupt Practices Prevention Act, 1854 (21 & 22 Vict. c. 87) 448 An Act to amend and continue the Law relating to Con-upt Practices at Elections of Members of Parliament (26 Vict. c. 29) 449 An Act for amending the Laws relating to Election Petitions, and providing more effectually for the Prevention of Cor- rupt Practices at Parliamentary Elections (31 & 32 Vict. c 125) 450 General Rules regulating the Procedure in Municipal Election Petitions 452 Additional General Rules 462 Additional General Rules ... 466 The Local Loans Act, 1875 (38 & 39 Vict. c. 83) 468 An Act to amend the Law relating to the E.\penses of Prosecu- tions, and to jnake further Provision for the Apprehension and Trial of Offenders, in certain cases ... ... ... 485 The Justices Clerks Act, 1877 (40 & 41 Vict. c. 43) 488 An Act to amend the Act for the Establishment of Country and District Constables (3 & 4 Vict. c. 88) 494 An Act to render more efi'ectual the Police in Counties and Boroughs in England and Wales (19 & 20 Vict. c. 69) ... 495 XVlll CONTENTS. PAGE An Act to amend the Law concerning the Police in Counties and Boroughs in England and Wales (22 & 23 Vict. c. 32) 501 An Act to amend the Law concerning the Police in Counties and Boroughs in England and AVales (22 & 23 Vict. c. 32) 503 The Police Superannuation Act, 1865 (28 & 29 Vict. c. 35) ... 507 Borough and Local Courts of Kecord Act, 1872 (35 & 36 Vict. c. 86) 510 The Municijoal Corporations (Borougli Funds) Act, 1872 (35 & 36 Vict. c. 91) 512 The Public Works Loans Act, 1878 (41 Vict. c. 18) 518 TABLE OF STATUTES. 1 Mary, sess. 2, c. 8, s. 2 8 & 9 Will. 3, c. 30 9 Anne, c. 20 3 Geo. 1, c. 15, ss. 18, 19,20 2 Geo. 2, c. 23, s. 1 1 13 Geo. 2, c. 18, s. 5 25 Geo. 2, c. 36 31 Geo. 2, c. 11 32Geo. 3, c. 58 38Geo. 3, c. 52 3G0O.4, c. 46 7 (fe 8 Geo. 4, c. c. 53, .s. 11 — -c. 40, s. 62 3 .. 53, .s. 40, s. — c. 61 .. 1 & 2 Will. 4, c. 41... 2 & 3 Will. 4, c. 45, s, c. 64.. 4 & 5 Will. 4. c. 76, s. 5 & 6 Will. 4, c. 76 .-. 27 56 56 s. 2 s. 15 s. 28 s. 36 s. 53 s. 62 s. 67 s. 92 s. 93 s. 94 c. 97, s. 4 197 189 PAGE 163 171 33 175 11 152 171 26 r, 208 184 122 159 227 171 223 171 ), 190 63 160 63 139, 140, 144, 145, 146, 147, 149, 158, 177, 179, 180, 186, 191, 194, 195, 196, 197, 213, 214, 215, 220, 222, 252, 253 20,25 31 209,210 101 89 249 32 155 79 144 212 b 2 XX TABLE OF STATUTES. 7 Will. 4 & 1 Vict. c. 22, s. 18 c. 3.3, s. 12 c. 68 ... 3&4Vict. c. 88 5 &6 Vict. c. 35, s. 35 c. 109, ss. 6, 7 ... 6& 7 Vict. c. 18 „ s. 17 -c. 89 8&9 Vict. c. 126, s. 62 ... 10 & 11 Vict. c. 69 11 & 12 Vict. c. 31, s. 9 c. 42 c. 43 s. 31 ... c. 78 12 & 13 Vict. c. 8 c. 64, s. 1 c. 78 13 & 14 Vict. c. 20, s. 5 c. 21, s. 4 c. 91 14 & 15 Vict. c. 55 15 & 16 Vict. c. 38 16 & 17 Vict. c. 59, s. 17 ... c. 137, s. 65 ... 17 & 18 Vict. c. 102 19 & 20 Vict. c. 69 R 9 „ ,, .-5. .7 21 & 22 Vict. c. 73 ... c. 87 c. 90, s. 35 . . . 22 & 23 Vict. c. 32 5) V s. 2 s. 3 24 & 25 Vict. c. 47 ... c. 96, s. 75 -c. 100, s. 38 ... 26 & 27 Vict. c. 29, .s. 5 „ V «• 6 5, J) ■"'' ' 27 & 28 Vict. c. 65 ... 28 Vict. c. 27 28 & 29 Vict. c. 35 ... c. 36, ss. 7, 8 c. 126 PAGE 227 227 249 186,494 183 189 332, 392, 394, 395, 419 331 74 171 517 172 164 418,491 205 172 164 164 517 189 204 226 167,485 164 227 146 107,438 495 63, 186, 190 168 448 227 503 190,501 186,501 201 135 188 446,449 449 119 170 517 507 384 226 TABLE OF STATUTES. XXI 30 & 31 Vict. c. 102 ss. 28, 29 s. 31 ... s. 49 ... s. r,o ... c. no, .s. 17 ... c. 115, s. 2 ... c. 131, s. 2 ... c. 136 31 &32 Vict. c. 72 s 12 „ „ .-5. J. -I ... c. 122, s. 38 ... c. 125 s. 29 ... 32 & 33 Vict. c. 41 s. 4 ... s. 19 ... c. 53 c. 71 33 & 34 Vict. c. 14 C.23, s. 2 c. 75, s. 91 c. 77 c. 93 c. 97 34 & 35 Vict. c. 18 c. 48 c. 103, s. 30 ... c. 112, s. 12 ... 35 & 36 Vict. c. 33 c. 60 c. 86 c. 91 36 & 37 Vict. c. 60 37 & 38 Vict. c. 88, s. 28 ... 38 & 39 Vict. c. 55... s. 24 ... s. 210 ... s. 258 ... c. 63 c. 83 c. 84, s. 6 c. 89 ..40 ... 39 & 40 Vict. c. 36, s. 9 ... 7) J? PAGE 83,223 376 390,392,394 442 419 227 164 69 517 163,219 175,186,190 371 106,107,122,450 115 62,367 157 84,378 225 87 62 63,65 63 182, 183 100 26 163 163 183 187 96, 97, 99, 105, 107, 141, 414 122,125,210 180,510 254,512 164 377, 378 ... 67, 68,77, 152, 513, 516 84 155 164, 165 160 468 420 518 13S ISJ, 227 XXll TABLE OF STATUTES. 40 & 41 Vict. c. 21 • ■ ■ • • • 26, 43 26 s. 2 41 & 42 Vict. c. .'..' 55 J> s. 5 ... 5J 5> s. 9 ... » 55 s. 11 ... J> J5 s. 12 ... ?? 5) s. 14 ... 55 55 s. 21 ... 55 55 s. 30 ... 55 55 s. 35 ... n 33, 49, 74, s. 30 ... ^ 51 ^ c. o. c/ X ... s. 47 ... 42 & 43 Vict. c. 10, s. 2 ... p 76, 9 s. 3 ... 43 & 44 Vict. c. c. 12 • • • • • • c. 20 . . • • • • 44 & 45 Vict. c. .58, s. 146 ... c. 68, s. 14 ... 45 & 46 Vict, c, , 50 > > • • . • » 55 s. 10 ... 55 55 s. 23 ... 55 55 s. 35 ... 55 55 s. 47 ... 55 55 s. 202 ... 55 55 s. 225 ... 55 55 (\A s. 247 ... PAGE ... 159,226 69 ... 167,488 90, 91, 92, 373 83 • • • f; - . * y o 93 63 84, 368 92 93 92 227 159 159 ... 369, 370 69 216 485 485 65 117 40 37 10 36 29, 30 25 29,33 12 423 TABLE OP CASES CITED IN THIS WORK. A. PAGE Abenliire Local Board of Health v. | Hammett ... 417 Adams y. Bostock ... 386 Aldridge ?'. Medwin ... 338 Alleu V. Gcddes ... 338 Anderson, U. v. ... 34 Andrew, Moon V. ... 338 Andrews, Bud;?e v. 242, 245 Andrews, Rudse v. ... 91 Andrews v. Kjde (Mayor, &c.) ... 7 Anon. ... ... 5 Arnistron":, Re... ... 35 Arncsby, R. v ... 26 1 Arnold v. Gravesend (Mavor, &c.) ... 151 ! Arnold t'. Poole (Mayor, &c.)... 5, 6, 19 Ashwell, 11. V, ... ... 14 Aslatt I'. Soutlianipton Corporation Att.-Gen. v. Batlcy (Mayor) ... Bermondsey (Vestry) 88 255 &c.) V. Brecon Kerr Limerick 254, 517 19 (Chamberlain, Lock wood Moore Norwich (Mayor, &c ) Wigan (Corporation) Wigan (Mayor, &c.) Wilson Avery, R. v. Athlonc Bagg's Case B. ... 22 ... 188 ... 205 ... 253 ... 254 ... 253 17, 23 242, 259 ... 327 30 liailev, East London Waterworks Co. I'.' 8,15 Bdkcv, JEx parte ... ... ... 188 Bale, Milnes v Banbury, R. v Bane and Others, In re Bank of England, Corporation of Hyde v. Ex parte Yarborougb v... Bankes, R. v. ... Barber Surgeons of London v. Pilson Bartrum, Pierce v. Basingstoke (Mayor), Soper v. Baskers and Others, Eaton v... Bath (Recorder of), R. r. Batley (Mayor of), Att.-Gen. v Baylis and Others, Bradley and Others v. Baylis, Pickard v. Boal ('. Ford Beardsall, R. v. ... ... 417, Beenley v. Hoskin Bellard v. Bennett Clement Bennett, Bellard v. V. Brumfitt ... Benney, R. v. ... Berks (Justices of). Comber v. Bermondsey (Vestry), Att.-Gen. 331, r. Mortimer v. Berwick (Mayor, &e.) v. Oswald Beverley v. Lincoln Gas Co. ... Bewdley Case ... Billericay Union, Campbell v.... Bird, R.'y Birley v. The Iidiabitants of the Hundred of Salford Birbeck, £'x ^ar/e Birmingham a.id Gloucester Railway Co., R. (• .'. Gas Co., Smith v. Town Council, He 309, ?AGE 439 27 394 64 6 20 31 15 13 263 7 155 253 83 385 62 433 259 14 14 14 338 36 127 255 255 74 16 441 8 28 159 104 22 20 516 XXIV TABLE OF CASES. Blackburn Case ~ T. Jepson ... Blizard, R. ». ... Bolton (Mayor of), R. v. ■ r. Throgmorton Bostock, Adams i\ Bosworth V. Hearne ... Bower v. Sligo (Commissioners) Braddock, Hesketh v.... Bradfield Union, Nicholson v. Bradford Case ... (Mayor, &c.), R. -?;.... Bradley and Others v. Baylis Others R. V PAGE ... 443 ... 17 36, 86, 207 240, 259 ... 12 ... 386 ... 13 254, 517 ... 12 8 442 287 and Brame, R. «. ... Brecon, Att.- Gen. ^. ... Case ... Brett r. Robinson Bridgeford, E., R. tJ Bridgewater (Mayor of), R. f . Bright V. Devenish North Bristol (Recorder), R. ». (Town Clerk of), Tudball v. ... Broom, Eastern Counties Railway ... 83 ... 259 ... 36 254, 517 ... 442 ... 440 ... 26 ... 255 ... 338 ... 254 ... 171 V. ... 338 Co. « Broughton, Wade v. ... Brown, Hard wick v. ... Button V. Mathers. Mitchells. ... Sells V. Brace's (Lord) Case ... Brumfitt, Bennett v. ... Bucks JJ., R. «. Budge I'. Andi'ews Bullock, Butchers Co. v. El wood t'. Burgess, Leicester v. ... Burgoyne and Others v. Others Burrell, King v. R. V Bury, Philips v. Butchers Co. v. Bullock Morey... C. Collins and 21 ... 439 86,88 ... 204 243, 263 ... 188 ... 14 ... 37 331, 338 ... 172 242, 245 ... 16 ... 14 ... 12 244 105 238 29 16 12 Cambridge, U. v 10, 27, 31 Campbell t'. Billericay Union... ... 8 Carey v. Mattliews ... ... ... 8 Carlisle (Earl) v. Woodman ... ... 20 Carmarthen (Mayor), Jones f. ... 73 PAGE Carmarthen (Mayor, &c.) v. Lewis ... 15 Carr, Lewis i\ ... ... ... 67, 68 Carrickfergus Case ... ... ... 446 Carter, Harrison v. ... ... ... 63 Carter v. Sanderson ... ... ... 13 Cator, R. v 188 Chalke, R. v. 37,38 Chappell, Piper t?. 13,14 Charles, R. V ... 171 Charlton, Ludlow (Mayor, &c.) v. ... 8 Chesterfield's Case ... ... ... 26 Chilton i\ London and Croydon Rail- way Co 21 Chippenham (Corporation), Drum- mer i\ ... ... ... ... 22 Chorlton Overseers v. Chorlton Union 127 Union, Chalton Overseers r 127 Church r. Imperial Gas Co. ... ... 15 Clark V. Denton 12 Le Cren ... ... ... 12 Clarke, Gothard r 263,420 Clarke v. Cuckfield Union ... ... 8 Gant 105 Imperial Gas Co. ... ... 5 Clement, Bellard v. ... ... ... 14 Clemen tsou v. Mason 299, 425 Cockermouth Case ... ... ... 443 Colchester (Mayor, &c.) and the Att.- Gen., Prestney v. ... ... ... 194 Collins and Others, Burgoyne and Others v 244 Coltman, Newbouldr.... ... ... 164 Colville, Ex parte ... ... ... 164 Coomber v. Berks (Justices of) ... 127 Compton, London i'. ... ... ... 12 Cooper «. Slade ... ... 441,446 Cooper's Co. of Newcastle-upon-Tyne, R. r 28 Cope «J. Thames Haven Co. ... ... 8 Corporation of Hyde t\ Bank of England 64 Cousens, R. t). ... ... ... ... 35 Cousins, R. v 207 Coventry (Corporation), Wilmot ». ... 8 Cowley V. Sunderland (Mayor, «fec.) ... 21 Crediton, R. r. 27 Crisp, Trinity House v. ... ... 13 Cromford, R. ». ... ... ... 26 Cropper, Hall u 407 Croydon Gas Co., Parry v. ... ... 188 Cuckfield Union, Clarke jj. ... ... 8 Cumming, Jones v. ... ... ... 259 Toms V. Cutbusb, R. J! Cutlers' Co., Perkins v. 331 10 12 TABLE OF CASES. XXV D. PAGE Dartmouth (Maj'or) v. Dartmouth Harbour Commissioners ... ... 515 Dartmouth IFarbour Commibsioners, Diirtmoutli (Mayor) v. ... ... 515 Dartmouth (Mayor) w. Tilly 74 Davie.s, Fox v 371 Davis, Feltmakers' Co. v. ... ... 16 V. Morgau ... ... ... 12 Dawson, L()vt'riii<^ c ... ... Ill, 122 Deal (Mayor ami Justices), ^x parte Curling, K. r 166 Dean, H. r 162,171 Deane, Randall /'. ... ... ... 8 Deans i'. Ifaddington (the Magistrates of) 420 De Bannales, St. Charles Bank D. ... 15 De Grave r. Monmouth ... ... 9 Denton, Clark v 12 Derby, (Councillors), R, v. ... ... 31 ' R. V 38 Canal Company t>. Wilniot ... 5 Case 25 Municipal Estates, Re... ... 134 Devenish, Bright u. ... ... ... 338 Diggle i\ London and Blackwall Railway Co. 18 Dodwell I'. O.xford (University) ... 14 Doncaster, 11. r. 27, 37 Dover (Mayor, &c.), R. v. ... ... 31 Dowuton (Mayor), iPor^ar^e... ... 32 Driuierchion, R. y. ... ... ... 27 Drogheda Case ... ... ... 443 Drummer v. ChippLiiliam (Corpora- tion) 22 Duncan v Surrey Canal Proprietors... 20 Dyott, R. V 371 E. Eaton V. Baskers and Others.. East India Co. v. Glover Gibson v. East London Waterworks Co. Co. Bailey Eastern Counties Railway Broom E. Ihidgtbrd, II. v. Edingale, R. v. Egginton v. Lichfield (Mayor, &c.) El wood V. Bullock Einorsou, Robinson r Ku<;laud, Rank of. Corporation Hyde V Ed- parte of 7 15 15 8 21 26 27 22 14 188 (!i 6 PAGE England, Bank of, Varborough v. ... 20 Everett v. Grapes ... ... 13, 14 E.veter (Mayor of), R. v. ... 31, 62. 251 ■ (Mayor, &.C.), R. v. Fanagan v. Kernan ... Farrer, Mortlock v. Faversham (Company of Fishe R. V Feltmakers' Co. v. Davis Fields, Nicholson v. ... Fishmongers' Co. v, Robertson Fletcher l\ Hudson Flight's Case, Bedford Ford, Beal v. ... Fox, R. t- r. Davies ... Framework Knitters v. Green Francis, R. r. ... Freemautle v. Silk Throwsters' Friend v. Towers G. Galway Case ... Gant, Clarke c. Gascarth, R. v. Geddes, Allen r. Gibbon and Another, R. v. Gibson v. East India Co. Glazeby, Totterdell v.... Glover, East India Co. v. Gloucester Case Gloucester, Taylor ty. ... GofP I'. Great Northern Railway Co Goree, London (City) i\ Gothard i\ Clarke Grant, Ilarrt-icli (Mayor of, ttc.) i'. V. I'agham (Overseers) 31, ... 72 ... 407 rmen), ... 14 ... 16 ... 68 8, 9, 16 67, 68 ... 259 ... 62 35, 167 ... 371 ... 13 34,68 Co. ... 13 ... 389 443 105 69 338 166 15 12 15 443 38 21 16 263, 420 105 440 (traveseiid (Mayor of), Arnold r. ... 151 Grapes, FjVerett r. ... ... 13,14 Green, Framework Knitters v. ... 13 />. London General Omnibus Co 20 Great Yarmouth (Justices), R. i: ... 165 Greene, R. r. ... ... ... 32, 35, 36 Great North of England Railway Co., R. I' 22 Great Northern Railway Co., Goff r. , . . 21 (Jribbin r. Kirkor 308 Grimshaw, R. v. ... ... ... 235 XXVI TABLE OF OASES. H. Haddington (Magistrates ot), Deans Haddock's Case Hadfield's Case Hall I'. Cropper Hall V. Swansea (Mayor, &c.) Hill PAGE % 420 ,. 38 ,. 357 .. 407 .. 19 .. 188 Hammett, Aberdare Local Board of Health r Handsley, R. v. Hard wick v. Brown ... Hargreaves v. Scott ... Simpson 417 166 86, 88 122 446 39 111, 117, 242, 245 ... 35,94,100 12 63 12 239, 259 ... 240 ... 239 30, 259 ... 105 Harman v. Tappeuden Harmon v. Park Harrald, R. v Harrison, R. r. ■«. Carter Goodman Hartlepool (Mayor, &c.), R. v. Harwich, In re Mayor of (Mayor)," R. V. (Mayor, &c.), R. v. ■ V. Grant Hajtiugs (Mayor), R. y l78 Hay ward v. Scott ... ... ... 387 R.v 170 Hazeldine, Stannanought «. ... ... 418 Hearne, Bosworth w, ... ... ... 13 Hedges, R. «. ... ... ... ... 34 Helston Case 25 Henderson v. Sherborne ... ... 188 Henley, Lyme Regis (Mayor, &c.) ... 21 Hesketh v. Braddock... ... ... 12 Hibbs, Huntu 105,238 mill). Hall 188 Manchester Waterworks Co. ... 5 Hindmarch, R. ». ... ... ... 34 Hindmarsh, Ex parte ... ... 207 Hiorus, R. «. ... ... ... ... 31 Hoblyn v. Regem ... ... ... 10 Hodge, R.r 34 Hodson, R. t) 34,207 Hohnes Common, Lincoln (Mayor oi)v 127 Hopkins, R. v. ... ... ... 32 V. Swansea (Mayor, &c.) 12, 20 Home, Kingston-upon-Hiill (Mayor. &c.) V. ... ... ... ... 16 i\ Ivy ... ... ... ... 6 Hoskin, Beenlen v. ... ... ... 259 Howes V. Turner ... 104, 242, 245 Hud.son, Fletcher « 67,68 Hughes, R. r. ... ... ... ... 35 Hull (Governors of the Poor), R. v.... 73 Hulme, R. v 119 PAGE Hunslet, R. v 156 Hunt».Hibbs 105, 238 Huntingdon (Justices), R. v.... ... 166 Hutchins v. Player ... ... ... 13 Hutton V. Brown ... ... ... 204 Hyde (Corporation of) v. Bank of En- gland 64 Hyde v. Johnson ... ... ... 331 Idle, Woolley, v 12 Imperial Gas Co., Clarke v. ... ... 5 Inman, R. v. ... ... ... ... 26 Ireland, R. « 62 Ivy, Home V. ... ... ... ... 6 J. Jackson, Monks v. James, Pickering v Jay's Case Jepson, Blackburn ?j. ... Johnson, Hyde w. Johnson, R. y. . . . Jolliffe, Stowe v. Jones V. Carmarthen (Mayor) Jones V. Gumming 242, 244, 245 95, 415, 419, 425 39 17 331 439 ... 387,427 ... 73 ... 259 Jones V.Mersey Docks Board... ... 127 Jones V. Waters ... ... ... 12 K. Keeble, Swinford v. ... ... ... 148 Kemp, R. v. ... ... ... ... 34 Kendal, R. v 32 Kernan, Fanagan v. ... ... ... 72 Kidderminster Case ... ... ... 442 (Mayor), R. v.... 239, 259 105 King V. Burrell King V. Shore ... Kingston-upon-HuU Wells r. Kingston-upon-Hull Home Kirk V. Nowill Kirker, Gribben v. (Mayor, &c.), (Mayor, &c.), v. 105 8 16 13 308 Lambeth, St. Mary, R. v. Lancashire, R. v. Lancaster, Lefcuvre v. Lea, Milnes r. ... ... 35 ... 171 67,68 ... 439 TAHLE 01;' CASKS. XXVll Leach, Yates v Lee V. Wallis ... Lee aud others, K. v. ... Leeds (Mayor), K. v. ... Leeds (Recorder), R. v. Lefeuvre v. Lancaster Leicester v. Burgess ... Lewis, Vaughaii v. V. Carr ... V. Rochester (Mayor) PAGE llU, 111, 121 14 165 35 172 67, 68 12 12 67,68 239 Leyland, R. t'.... ... ... ... 30 Lichfield (Mayor, &c.), Eggington v... 22 Lichfield Case 443 (Mayor, &c., of), R. v. 30, 31, 63, 2 10 Limerick ... ... ... ... 239 (Chamberlain, &c.), v. Att.- Gen 22 Lincohi (Mayor of), i'. Holmes Common 127 Lincoln (Jas Co., Beverley v. ... ... 16 Linkinborn, R. r. ... ... ... 27 Liverpool, Prison Commissioners v. ... 159 Liverpool, R. w. ... ... ... 38 (Mayor, &c.), R. r. 252 (Recorder), R. t'. ... ... 172 Borouijh Bank v. Eccles ... 16 Lockwood, Att.-Gen. r. ... ... 188 London and Croydon Railway Co., Chilton r 21 London and Blackwall Railway Co., D'lggle V. ... ... ... 18 London General Ouuiibus Co , Green v. 20 London and South Western Railway Co., Poulton r 21,22 London (Mayor), R. y. ... ... 30 London and South Western Railway Co., Tolleniache y. ... ... ... 21 London v. Compton ... ... ... 12 London (City), v. Goree ... ... 16 London (City) Gas Co. v. Nicholls ... 15 Long, Manby v. ... ... ... 8 Longford Case .. ... ... ... 41-3 Lord, Porrett y 383,388 Lovering v. Dawson ... ... Ill, 122 Lowley, Maude I' 109,112 Lucas, Mersey Docks v. ... ... 127 Ludlow (Mayor, &c.), v. Charlton ... 8 Lyme Regis, R. y. ... ... ... 39 (Mayor, &c.),y. Henley... 21 Lynn y. Turner ... ... ... 21 Lyons Brothers, Manchester (Mayor, &c.), V 235 M. MacLaren v. Mihic Home Maddy, R. v. ... PAGE Maidenhead (Mayor of), R.v 126 Main, R. y ... 35 Malcolm v. Parry and Ingram 423, 440 :\Iald()n Case 25 Manchester Waterworks Co., Hill v.... 5 (Mayor, &c.), Scott v. ... 21 V. Lyons Bros. 235 Manby v. Long ... ... ... 8 Marshall, R. y. 25 Marshall v. Queenborough ... ... 5 Marten, R. y. ... 35 Mason, Clementson «. ... 299,425 Masters, R. y 172 Mather y. Brown 243, 263 Matthews, Carey v. ... ... ... 8 Maude v. Lowley 109, 112 Maund v. Monmouth Canal Co. ... 20 Mayo Case 443 Medwin, Aldridge y. ... ... ... 338 Mersey Docks, Jones y. ... ... 127 V. Lucas ... ... 127 Merton, Mordelly y. ... ... ... 18 Meyer, R. v 164 Middleton and others y. Simpson ... 65 Midland Counties Railway Comp., ytevens v. ... ... ... ... 22 Millcdge and Others, R. y 165 Milne Home, Mac Laren v. 62, 265, 326, 328 Milnes v. Bale 439 ■ Lea 439 Mitchell y. Brown ... ... ... 188 Reynolds... ... ... 13 Moir V. Munday ... ... ... 14 Monks y. Jackson ... 242, 244, 245 Monmouth, De Grave y 9 Canal Co., Maund v. ... 20 ■ (Mayor of), R. y.... 240,259 Moon y. Andrew Moore, Attorney- General y. ... Mordelly v. Merton Morey, Butchers' Co. v. Morgan, Davis y. Mortimer v. Bermoudsey (Vestry) Mortlock V. Farrer Morton, R. v Mossman, Winn r Mountsorrell, R. y. Munday, Moir v N. 338 205 18 12 12 255 407 35 205 27 14 .62, 265 326, 328 98 Nevesly y. Webster^ . Newbould i'. Coltman . New Sarum ... 27 ... 164 ... 239 XXVlll TABLE OP CASES. New Windsor (Mayor, &c.), R Nicholson v. Bradford Union.. — Fields North, Briffht v. Durham Case ... Norfolk Case ... Northallerton Case Northcote v. Pulsford... Norwich (Mayor, &c.) Att.-Gen li.i'. — (Mayor, &c.), R. v, Nottingham Case Nowill, Kirk v. V. PAGE 31, 371 ... 8 ... 68 ,..-254 ... 443 • ... 443 ... 443 103, 420 . ... 253 . 30 152, 239 ... 443 ... 13 O. Ogden, R. v. ... Oldham, R. v. ... Oldham Case ... Oswald, Berwick (Mayor, &c.), v. Oxford (Mayor, &c.), R. v. ... V. Wildgoose University, Dodwell v. ... 34 67, 127 62 74 32 13 14 P. Pagham (Overseers), Grant v. Paramore, R. v. 440 .. Ill, 117,242,245 92,94 ... 9 ... 21 423, 440 34, 35, 36 ... 188 ... 18 ... 35 Park, Harmon v. Parkinson, R. v. Parmington z\ Taniere Parr c. Roe Parry and Ingram, Malcolm v R.v V. Croydon Gas Co. .. Patrick, R. v. ... Payne, R. i\ Pearce, Rochester (Dean and Chapter) V. Pepper, R. ». ... Percival, Roberts v. ... Perkins v. Cutlers' Co. Peterborough (Mayor), R. v... Petersfield Philips V. Bury Phippen, R. v.... Pickering v. James Sturiin Pierce v. Bartrum Pilcher, Tliackway v. ... Piper i\ Chappell Player, Hutchins v. Plenty, R. v Poole (Mayor, &c.), Arnold v. Poole Case Poole (Mayor, &c.), H. r. 15 35 357 12 516 259 29 31 95, 415, 419, 425 415 ... 13 ... 338 13, 14 ... 13 ... 239 5, 6, 19 ... 442 ... 32 PAGE Pope, Shaw «. ... ... ... ... 13 Porrett «. Lord 383,388 Poulton V. London and South Western Railway Co. ... Powell, R. « Poy liter, Shaw v. Preece, R. r. ... Prest, R. V. Prestney v. Colchester and Att.-Gen. Price, R. v. Prison Commissioners v. Pulsford, Northcote v. Q. Queenborough, Marshall v. Quayle, R. v. ... R. 21,22 25 12 34. 85, 208, 329 73 (Mayor, &c.), 194 119 Liverpool ... 159 ... 103,420 5 34,35 Radford, R. 2) Ragg's Case ... Randall V. Deane .ffe Armstrong... Ee Birmingham Town Council 309, Reigate (Mayor, &c.) r. R. ... Regem, Hoblyn «. R., Reigate (Mayor, &c.), v. ... - Smith V. - Symmers, t'. ... ... 35 - Scale, V. R. V. Anderson AshweU ... Arnesby ... Avery Banbury ... Bankes ... Bath (Recorder of) Beardsall Benney ... Bird Birmingham and Gloucester Rail way Co. Blizard Bolton (Mayor) ... Bradford (Mayor, &c.) ... Bradley ... Brame Bridgwater (Mayor) Bristol (Recorder) Bucks, JJ. Burrell Cambridge ... ... 10, Cator Chalkc 37 Charles ... 242, 417, 36, 86, 240, 31 38 8 35 516 205 10 205 171 ,39 240 34 14 26 259 27 31 155 433 36 28 207 259 237 259 36 255 171 172 238 ,31 18S , 38 171 TABLE OF CASES. XXIX PAGE R. V. Coopers' Co. of Newcastle-upou- Tyno Couscns ... Cousius ... Crcditon... Croniford Cutbu.sh ... Deal (Mayor, and JJ.) Ex parte Curling Dean Derby (Councillors) Derby Doncaster Dover, (Mayor, &c.) Drimerc'bion Dyott E." Hrid^'ford pAlingale... E.\eter (Mayor, &c.) Faversham (Co Francis ... 28 35 207 27 26 10 166 162, 171 ... 31 ... 38 27,37 ... 31 ... 27 ... 371 ... 26 ... 27 31, 62, 251 of Fishermen) 14 34, 68 R. V. Leeds (Recorder) Laylaiid ... Lichfield (Mayor, &c.) Linkinhorn Liverpool (Mayor) I (Recorder) Fox 35,167 Gascarth ... ... ... ... 69 Gibbon and Another ... ... 166 Great North of England Railway Co 22 Great Yarmouth J J. ... ... 165 Greene 32,35,36 Grimshaw 235 Handsley 166 Harrald 35, 94, 100 Harrison... ... ... ... 12 Hartlepool (Mayor, &c.) 239, 259 Harwich (Mayor, &c.) ...30, 239,259 Hastings, (Mayor) 178 Hayward 170 Hedges ... ... ... ... 34 Hindmarch ... ... ... 34 Hiorns ... ... ... ... 31 Hodge ... 34 Hodson 34,207 Hopkins... ... ... ... 32 Hughes ... ... ... ... 35 Hull (Governors of the Poor) ... 73 Hulme 119 Hunslet ... ... ... ... 156 • Huntingdon J J.... ... ... 166 ' Innian ... ... ... ... 26 Ireland ... ... ... ... 62 Johnson ... ... ... ... 439 Kemp ... ... ... ... 34 Kendal 32 Kidderminster (Mayor) . . . 239, 259 Lamheth, St. Mary ... ... 35 Lancasliiro ... ... ... 171 Lee and Others .. . ... ... 165 Leeds (Mayor) 35 London (Mayor) Lyme Regis Maddy Maidenhead (Mayor) ... Main Marshall Marten ... Masters ... Meyer Miiledge and Others Monmouth (Mayor) Morton ... Mountsorrcll New Windsor (Mayor, &c.) ■ Norwich ... (Mayor, &c.) Ogden Oldham Oxford (Mayor, &c.) Paramore Parkinson Parry Patrick ... Payne Pepper ..'. Peterborough (Mayor) Phippen ... Plenty Poole (Mayor, &c.) Powell .io Preece 34,85,208,329 ■Prest 73 ■Price 119 - Quayle ... ... ... 34, 35 ■ Radford 31 - Richardson ... ... 13, 38 - Rochester (Mayor, &c.) 105, 238, 239 PAOE .. 172 ... 30 30, 31, 63, 240 ... 27 ... 38 252, 255 ... 172 ... 30 ... 39 ... 98 ... 126 ... 35 25,27 ... 35 ... 172 ... 164 ... 165 2 W, 259 ... 35 ... 27 31, 371 ... 30 7, 152, 239 ... 34 67, 127 ... 32 ... 255 92,94 34, 35, 36 ... 18 ... 35 ... 35 ... 516 ... 31 ... 239 ... 32 9? Royle Rowe Ryde (Mayor of) Salop J J. Sal way ... Saltor' Sandys Sankey ... Scofield Sheffield (Mayor, &c.) Share 32 26 76 ... 171, 172 25 119 38 73 439 152, 155, 158, 254, 515 238 XXX TABLE OF CASES. R. . Shepton ... ■ Slatter ■ Slythe Smith & others (JJ. Spencer ... St. Mary, Lambeth St. Paul's, Bedford St. Lawrence (Inhabitants) Stacey Stackland Stamford (Mayor, &c.) ... Stratton ... Suffolk J J Tappenden Tate Taylor Tiverton ... Thompson Thomas ... Trevenen Tipton Tliirlwind Trueboy ... Truro Tugwell ... Vaughau ... Wakeliu Ward Warlow ... Warwick (Mayor) Welchpool (Mayor) Wells (Mayor, &c.) PAGE 27 35 ... 26,27,35 Lancashire) 392 ... 10 .. 35 .. 2fi .. 171 ... 35 ... 27 6, 19 ... 26 ... 171 ... 28 ... 35 36, 38 ... 38 ... 185 39,73 ... 35 ... 27 ... 34 ... 37 ... 31 35, 94, 208 ... 439 ... 36 35, 208 ... 35 254, 255 ... 110 ... 37 ... 178 10, 14 36, 102 ... 35 ... 18 ... 31 ... 155 ... 11 ... 13 13, 38 ... 357 8, 9, 16 ... 440 ... 188 ... 239 105, 238, 239 (Dean and Chapter), v. Pearce 15 Rodd, Sargent v. ... ... ... 374 Roe, Doe v. Parr ... ... ... 21 Rowe, R. « 26 Royle, R. « 32 Rudge v. Andrews ... ... ... 91 Ryde (Mayor, &c.), Andrews i'. ... 7 (Mayor), R.u 76 Westwood.. White Whitwell • ■ Wyndham Winchester Worksop... York • Reynolds, Mitchel v. Richardson, H. v. Roberts v. Percival Robertson Robinson, Brett v. V. Emerson... Rochester (Mayor), Lewis v.... (Mayor, &c.), R. r. ., Fishmongers' Co. r. S. PAGE Salford Case 443 Salford (Inliabitants of the Hundred of), Birley v 159 Salop J.)., R. V. 171 Saltor, R. v 119 Salway, R. r. ... ... ... ... 25 Sanders v. St. Xeot's Union ... ... 9 Sanderson, Carter «. ... ... ... 13 Sandys, R. i;. ... ... ... ... 38 Sankey, R. r. ... ... ... ... 73 Sargent I'. Rodd ... ... ... 374 Sarsons, Woodward v. 95, 103, 320, 415, 420 Scofield, R. V 439 Scott, Hargreaves v. ... ... ... 122 Hay ward I' 387 V. Manchester (Mayor, &c.) ... 21 Sealev. R 240 Sells r. Brown... ... ... ... 14 Share, R. i' 238 Shaw i\ Pope ... ... ... ... 13 Poynter 12 Sheffield (Mayor, &c.), R. v. 152, 155, 158, 254, 515 Shepton, R. v. 27 Sherborne, Henderson r. ... ... 188 Shillito V. Thompson ... 77 Shore, King r. ... ... ... ... 105 Silk Throwsters' Co., Freemantle v.... 13 Simpson, Hargreaves t». ... ... 446 Simpson, Middleton and Others v. ... 65 Simpson v. Yeend ... ... ... 440 Slade, Cooper ik ... ... 441, 446 Slatter, R. v 35 Sligo Case 443 Commissioners), Bower v. 254, 517 Slythe, R. u 26.27,35 Smith, R. V 171 Smith and Others (JJ. of Lancashire), R. « 392 Smith V. Birmingham Gas Co. ... 20 Soper V. Basingstoke (Mayor) ... 263 South Eastern Railway Co.', W hitBeld y. 22 Southampton Corporation, Aslatt v. ... 88 Spencer, R. V. ... ... ... ... 10 St Charles' Bank v. De Bannales ... 15 St. La wrance (Inhabitants), R. i\ ... 171 St. Mary, Lambeth, R. r 35 St. Neot's Union, Sanders ??.... ... 9 St. Paul's, Bedford, R. f 26 Stacey, R. ^'. ... ... ... ... 35 Stackland, R. r 27 Stafford Case... 443 (Mayor, &c.), v. Till 9, 15 Stamford, R. v. ... ... ... 6 (Mayor, &c.), R. 7'. .., 19 TABLE OF CASKS. XXXI PAOR Staiiuanouglit <•. Ilazeldine 41« Startin, Pickcrin.e « 415 Steaveusoii ('. Berwick (Mayor) ... 73 Stevoiis 0. Midland Counties Railway Co 22 Stowe fl. Jolliffe 387,427 Stratton, II. w 26 Struijnull, Wilson t' 1G2 Suffolk J.I., 11. V 171 Sunderland (Mayor, &c.), Cowley i: ... 21 ^ (Corpor.ntion of), -?i!e ... 2.")5 Surrey Canal Proprietors, Duncan ?'. 20 Sutton's Hospital (Case of) ... 4, 15 Swansea (Mayor, &c.). Hall i\ ... 19 : Hopkins r. 12,20 Thomas i\ ... 73 Swinford «. Kecble ... ... ... 148 Sy miners «. R.... ... ... 35, 39 T. Taniere, I'armington i'. Tajipenden, Harman v. n.v. Tate, R. t' Wood v.... Taylor, R. «. ... V. Gloucester ... 9 39 28 35 9 36, .38 .38 Tenby (Mayor), Williams p 113 Thackvvay k Pilchcr 338 Thames Haven Co., Cope v. ... ... 8 Thetford (Mayor's) Case 4 Thirlwiud, r! V 34 Thomas, R.r 39,73 — -^ V. Swansea (Mayor)... ... 73 Thompson, R. r. ... 185 : Shillitor 77 Throijmorton, Bolton v. ... ... 12 Till, Stafford (Mayor, &c.) v.... 9, 15 Tilly, Dartmouth (Mayor, &c.) v. ... 74 Tipperary Case ... ... ... 443 Tipton, k. V 27 Tiverton, R. r.... ... ... ... 38 Tollemache v. London and South Wes- tern Railway Co. ... ... ... 21 Toms V. Cnmin. Bank of England ... 20 Yarmouth .IJ., R. r. ... ... ... 165 (Mayor, &c.) v. Eaton ... 16 Yates V. Leach ... 110, 111. 121 Yoend, Simpson i'. ... ... ... 440 York, R. V 11 r. Wclbank 12 ERRATA. Page 14, line 27. for " 806," read " 781 ." Page 63, line 43, for "96," read "69." Page 68, line 18, for " 21," read " 31." Page 134, line 8, for " 3 C. P. D.." read " 3 Cli. D.' DIYISIOI^ I. In this division those matters will he treated of which refer to corporations generally, and which do not come within the provisions of the Act. CHAPTER I. Chap. 1. Of Corporations generally and of the Characteristics and Objects of Municipal Corporations. A corporation is a creation of the Law, and may be Corporatiom defined to be a body politic, capable of maintaining a S'^'^^'"'^ ^^ perpetual succession, for the purpose of keeping alive certain rights and privileges. Sir William Blackstone has remarked, that as all per- sonal rights die with the person, and as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable, it has been found necessary, when it is for the public advantage to have any particular rights kept on foot and continued, to constitute artificial persons who may maintain a perpetual succession, and enjoy a kind of legal immortality. (1 Bl. Com. ch. 18.) Thus, if it were considered advisable that a number of individuals should be associated together for any public purpose, it would be competent to them, generally speak- ing, to form a voluntary association to carry out that purpose ; but such an association would possess no pecu- liar rights or privileges : they would not be empowered to make any regulations that would be legally binding upon the whole of the members, and in case of any property becoming vested in the association, with the view of carry- ing out its purposes, such property could only be continued B 2 DIVISION I. Chap. 1. to tlie successive members of the association^ by a series Corporations of conveyances^ repeated as often as the property chan2:ed generally. ^^^^^^ But in the case of a corporation^ the members and their successors are considered as one person in the eye of the law. Whatever rights or immunities are vested in the body at the time of its incorporation are transmitted to its successive members : they, or the majority of them, have power to make such regulations for the general con- duct of the whole body, as may he considered most condu- cive to its welfare : these regulations, if not repugnant to the general law of the land, and if in accordance with the rules prescribed to the body at the time of its creation, will be binding upon all the members ; and whatever pro- perty is vested in the body, remains vested in the succes- sive members without any fresh conveyance, but by the mere operation of law. Corporations, according to the law of England, are either aggregate or sole, A corporation aggregate consists of several persons united together into one society, which is kept up by a perpetual succession of members, so as to continue for ever. Of this kind are the mayor, aldermen, and burgesses of a borough ; the head and fellows of a college ; the dean and chapter of a cathedral church. A corporation sole consists of one person only and his successors, in some particular station, who are incorpo- rated by law in order to give them legal capacities and advantages which in their natural persons they could not have had, particularly that of perpetuity. In this sense the king or queen regnant is a sole corporation ; so is a bishop, and so is every parson or vicar. Corporations are, further, of two kinds : ecclesiastical and lay. Ecclesiastical corporations consist entirely of spiritual persons, such as deans and chapters, or bishops, or vicars. Lay corporations are of two sorts, eleemosynary and civil. Eleemosynary corporations are such as are constituted INTRODQCTIOX. for the perpetual distribution of the free alms or bounty Chap, 1. of the founder to sueh persons as he has directed. Of tliis Coqiorations kind are hospitals for the relief or maintenance of the generally. sick, and for the promotion of learning and piety. Civil corporations are erected, some for the advance- ment and regulation of manufactures and commerce, such as the guilds or companies of London ; some for the ad- vancement and improvement of any particular science, such as the College of Physicians, the Royal Society, and such like ; some again, for the good government of a city, town or particular district, such as the mayor, aldermen, and burgesses of a borough, and these last are termed municipal corporations. [See 1 Bl. Com. ut sapra, and authorities there cited.) A municipal corporation, therefore, is a civil corporation aggregate, established for the purpose of investing the in- habitants of a particular borough or place with the power of self-government^ and with certain other privileges and franchises. B % Chap. 2. CHAPTER II. Of the Corporate Seal; and herein of Corporate Acts, that must be done by Deed. Of the corpo- Another incident of a corporation is the having and T»Q^-£i C1P3.1 jinfi a^jjtg^ using a common seal^ by which the body corporate is con- sidered to express their aggregate intention^ as they can- not do so by any personal act or oral discourse. The individual members, indeed, may manifest their private assent to any act by words, or by signing their names, but that will not bind the corporation; it is only the affixing of the seal which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole. (Dav. Rep. 44, 48.) It is not necessary that there should be any clause in the charter of incorporation empowering them to use a seal; as it is a necessary incident to the existence of a corporation that it should have one, and as soon as the corporation is established the body may make and use what seal they will. {Sutton's Hospital {Case of), 10 Rep. 30.) It is laid down that a corporation may do acts upon record without their common seal, but not acts in pais {Thetford {Mayor's) Case, 1 Salk. 192, S. C, Holt, 171); that is to say, that although in all matters which are not of record, any act, in order to bind the corporate body, must be witnessed by the affixing of their common seal, yet a corporation will be bound by any admission made upon record, as in the pleadings in the course of a cause, although such admission is not under their seal. Generally speaking, when the corporate seal appears affixed to a document it will be presumed to have been regularly so affixed; and the party who impugns its legality has the burden cast upon him of showing in what manner the annexation was illegal or irregular. {See Skinn. 2.) INTRODUCTION. ^ Where the corporate seal has been affixed to an instru- Chaix 2. ment without the authority of the corporate "body, it is of th.- corpo- invalid, and may be repudiated by them. {Anon., 13 ^Jg ''"'^ """"^ Mod. 423.) The due affixing of the corporate seal is sufficient to give validity to an instrument without a formal delivery. {See 1 Ventr. 257; 1 Lev. 46; Garth. 160.) But where the corporate seal was regularly attached to a conveyance, but at the same time the clerk of the corporation was ordered to retain the conveyance in his hands until some accounts were settled with the purchasers, it was held that the conveyance did not pass the estate. {Derby Canal Company v. Wilmot, 9 Ea. 360. See also Hill y. Manchester Waterworks Company, 5 B. & Ad. 866; Clarke v. Imperial Gas Company, 4 B. & Ad. 315.) It appears that if a regular corporate resolution has been passed for granting an interest in the corporate property, and upon the faith of it expenditure has been incurred, the Court of Chancery will compel the corpora- tion to make a legal grant in pursuance of the resolution, although it is not under the corporate seal. {Marshall v. Queenborouyh, 1 Sim. & St. 520.) The annexation of the corporate seal being necessary for the purpose of expressing the assent by the corporate body to any act or thing, it follows that any corporate act, or at least any act of importance, must be by deed. (Bro. Ab. Corporation, 63 ; Y. B. 21 E. 4. 13.) Thus a corporation could not, even before the statute of frauds, grant or surrender a lease without deed (Plowd. 150); yet they may make such surrender by operation of law, as by accepting a new lease. {See 10 Rep, Q7.) So, the appointment of a person to do any act which concerns the real property of the corporation, or by which their rights are to be asserted, must be by deed (Bro. Ab. Corporation, 54, 56; Y. B. 7 E. 4. 14; 12 H. 7, 25, 26; 16 H. 7. 2; 13 H. 8. 12) ; such, for example, as the appointment of an attorney to make or to take livery of seisin (Bro. Ab. Corporation, 51), or to conduct {Arnold v. b DIVISION I. Chap. 2. Poole {Mayor, 6fc.), 4 M. & G. 860) or appear in a suit Of the coroo- ("^^^ Plowd. 91)^ or to manage the affairs of the corpora- rate seal and tion {Arnold V. Poole {Mayor, ^c), 4 M. & G. 860) ; and ' an attorney not appointed under seal cannot recover for business done, although the council of the borough had passed a resolution directing that the business should be done by him^ and was cognizant of its progress. {Arnold V. Poole {Mayor, ^c), 4 M. & G. 860.) So an agreement not under seal by a corporation with one of its officers_, for an increase of the salary of an office retained by him, as a compensation for the loss of another office of wliicb he was deprived under the Municipal Cor- poration Act, though upon an executed consideration, is not binding upon the corporation. {R. v. Stamford {3Iayor, S^-c), 6 Q. B. 433.) But an attorney to a corporation may be appointed in a court of record, without any other writing than the record itself, because the corporation would be estopped by the record from repudiating their own acts. {See 1 Salk. 192, and Arnold v. Poole {Mayor, ^x.), ut supra.) A corporation may prove a debt in bankruptcy, by an affidavit of a person authorized by a general power of attorney, and they may vote in the choice of assignees by a person authorized thereto by a special power of attorney, such powers of attorney being under the corporate seal. {Bank of England {Ea^ parte), 1 Swanst. 10.) A presentation of a clerk to a living by a corporation must be by deed. (Bro. Ab. Corporation, 83.) A corporation cannot command their bailiff to enter into land of their own leasing for years, for a condition broken, without deed. (1 Eo. Ab. 514. And see Dy. 102, pi. 83.) Nor can they, without deed, appoint a person to seize goods as forfeited to their use. {Home v. Ivy, 1 Vent. 47 j S. C. 1 Mod. 18; Cit. 3 P. Wms. 424.) Generally speaking, the appointment of all subordinate corporate officers, such as bailiffs (see Vavasor's Case, Moo. 552), &c., must be by deed; but when once appointed, they may perform any act incident to the INTRODUCTION. 7 nature of their office^ without any special commandment Chap. 2. by deed or otherwise. (Y. B. 4 H. 7, 6, 13, 17; 7 H. of tlie corpn- 7. 9.) '■^^^ ^*^^l ^"'1 So in a case where, in pursuance of a resolution passed at a meeting of a sub-eommittec appointed for the management of the business, and whose report was adopted by the council, the plaintiff was employed as a witness on an arbitration to support the evidence of the defendants' valuer; and where no appointment of the plaintiff under seal was made ; but he acted as a witness under the instructions of the valuer who was so appointed ; it was held that in an action brought by the plaintiff against the corporation for his services as witness he could recover. {Audreivs v. The Mayor, i^c, of Ryde^ L. E. 9 Ex. 302.) In a recent case (decided in Queen's Bench Division, 5th May, 1882) it was held that a council may apply their funds to pay a just debt, although the contract was not under seal. [The Queen v, The Mayor, ^-c, of Norwich,) When a council is acting as an urban sanitary authority there must be a strict compliance with the provisions of the Public Health Act, 1875, [Eaton v. Baskers and Others and the Mayor of Grantham, 44 L. T. (x.s.) 703.) And an appointment by deed is not necessary in eases where the acts to be performed are of daily occurrence, and too insignificant to be worth the trouble of affixing the common seal, such as the employment of a butler. The defendants, a municipal corporation, were possessed of a dock, of which they allowed the use to ships needing repairs, under certain printed regulations. The plaintiff entered into a parol agreement for the use of the dock upon the terms of such regulations. It was held that the contract need not be under the seal of the corporation. The plaintiff supplied coal to the defendants, the guar- dians of a poor law union, under an agreement not under seal. The defendants received and used some of the coal. It was held, tliat as the goods had been supplied and accepted, and were such as must necessarily be supplied acts S Division i. Chap. 2. for the very purposes for wtich tlie defendants were incor- 0£ the corpo- porated^ the defendants were liable, although the contract rate seal aud -^as not under seal. [Wells v. Mayor, ^c. of Kingston-upon- Hull, L. R. 10, C. P. 402 ; Clarke v. Cuckfield Union, 21 L. J. (Q. B.) 349 ; Nicholson v. Bradfield Union, L. E,. 1 Q. B. 620. So, where the act to be done requires to he executed immediately ; as where cattle are to be distrained damage feasant, which might escape before the formality of exe- cuting a deed could be gone through [Manby v. Long, 3 Lev. 107) ; in such a case the verbal authority of the mayor would be sufficient. [Randall v. Deane, 2 Lutw. 1497.) It is said that it is only in cases of necessity, occasioned by the hurry of the proceedings, that such a course can be pursued (see East London Waterworks Company v. Bailey, 4 Bing. 287) ; yet it has been decided that a corporation may appoint a bailiff to distrain without deed, because the distress vests no interest in them. [Carey v. Matthews, 1 Salk. 191, 467.) It has been seen that a corporation cannot grant a lease without deed; nor can they make any contract except under seal. (See Fishmongers' Company v. Robertson, 5 M. & G. 131; 6 Scott, N. E. 56; Campbell v. Billericay Union, 18 L. J. (n.s.) Exch. 282; Cope v. Thames Haven Company, lb. 345.) Thus they cannot enter into a con- tract to pay a sum of money out of the corporate funds, for making improvements within the borough, except under the common seal [Ludlow [Mayor, &^c.) v. Charlton, 6 M. & W. 815) ; and it seems doubtful whether they can borrow money except under seal. [Wilmot v. Coventry [Corp.), 1 You. & C. 518.) But though a contract put in suit by a corporation is on their part executory only, and not executed, there seems little doubt that their suing on the contract would amount to an admission on record by them that such contract was duly entered into on their part so as to bind themselves, and that such admission on the record would stop them from setting up as an objection in a cross INTRODUCTION. i action, that it Avas not sealed with their common seal. Chap. 2. (Per TiNDALj C. J., in Fislimonytrs' Company v. Robertson, of the corpo- Ut supra.) rate seal and Wlicre a contract has been executed — that is "uhcrc the person who is a party to the contract has received the benefit of the consideration moving from the corporation (per TiNDALj C. J., in The Fisltmongers^ Company v. Robertson, 5 M. & G. 131 ; 6 Scott, N. R. 56)— the law will imply a promise, and a deed under seal is not neces- sary ; they may, therefore, sue a party in assumpsit for the use and occupation of lands belonging to them. {Stafford [Mayor, B^c.) v. Till, 4< Bing. 75; see also Doe^d. Parmington v. Taniere, 18 L. J. (n.s.) Q. B. 49.) So, where the mayor of a borough had ordered weights and measures, and when supplied, they were examined at a full meeting of the corporation, this was held to be such a recognition of the contract as would make the corporation liable to pay for them, although there was no order for them under the common seal ; and that the fact of the mayor having been afterwards ousted from office by a judgment of the Court of King^s Bench made no differ- ence. [De Grave v. Monmouth, C. & P. Ill; see also Sanders v. St. NeoVs Union, 8 Q. B. 812.) So, where an indenture was entered into between A. B. and C. bailifi's, and D. E. and F. aldermen, with the assent of the burgesses of the borough of M. of the one part, and J. S. of the other part, whereby the said bailiffs, aldermen and burgesses demised lands to J. S. for years, to be liolden of the said bailiffs, aldermen and burgesses^ and the deed was executed by A. B. and C. and D. E. and F., but not sealed with the corporation seal ; and J. S. had paid rent to the bailiffs, as the chief officers of the borough ; it was held that their servant might make cog- nizance for taking a distress under a demise by the corpo- ration, notwithstanding a notice had been given by the aldermen (one of whom was a party to the indenture) to pay the rent to them; for the payment of rent to the bailiffs admitted a tenancy from year to year under the corporation. {fVood v. Tate, 2 N. R. 247.) Chap. 3. CHAPTER III. Of the power to make Bye-Laivs. Power to Bye-laws which concern the good rule and government make bye- ^^ ^j^^ boroLigh or the suppression and prevention of nuisances^ must be made under the provisions or the Con- solidation Act (sect. 23 \ The power to make bye-laws is an incident to a corpo- ration which is included by law in the very act of incor- poration [see Hob. 211); and these laws are binding upon the members, unless they are inconsistent with, or con- trary to, the common or statute Jaw or the provisions of the charter of incorporation. {B. v. Cutbush, 4 Burr. 2204; Hob/yn v. Regem, 2 Bro. P. C. 329; R. v. Cam. bridge, 2 Selw. E. P. 1144.) Where the power of making bye-laws is in the body at large, they might, at common law, delegate their right to a select body, who thus become the representatives of the whole community. [R. v. Spencer, 3 Burr, 1837.) If, however, the charter gave to a select body a power to make bye-laws touching certain matters therein specified, that did not take awav from the bodv at large their inci- dental power to make bye-laws touching other matters not specified in the charter. (R. v. Westwood, 2 Dow. k CI. 21 ; 4 Bligh (N.S.), 213; 7 Bing. 1 ; 4 B. & C. 781.) Bye-laws may be made generally for the regulation of the internal aS'airs of a corporation ; the conduct of its members ; the reasonable exercise of a right, or the mode by which a person is to be admitted thereto, where he has an inchoate title ; but they cannot take away a right, or impose any unreasonable restraint in the exercise thereof. The following may be mentioned as instances in which a bye-law has been held valid. In the city of York, which was incorporated before the time of legal memory, there had been a court from very ancient times, held first before the mayor and bailitfs, and INTPvODUCTION. ^^ after a charter of Rich. 2, before the maj'or and sheriffs. Ch^^3. By a bye-law mode in 3 & 4 Phil, and Mary, by a select Power to body of the corporation, who had immcmorially made ^^^^^ ^^' rules and rcg;ulations as to the practice of the court, and who had at their discretion selected the persons admitted to practise as attorneys there, it was ordered, that thence- forth there should be no more than four persons admitted to be attorneys of the sheriff^s court ; and from that time it did not appear that any more than that number had ever been allowed to practise : it was held that the bye- law was reasonable, and that the usage limiting the number of attorneys to four was sufficiently ancient to satisfy the statute 2 Geo. 2, c. 23, s. 11. {R. v. York, 3 B. & Ad. 770.) In the year 1762 an Act of parliament passed for dividing and enclosing two pieces of open land in the borough of S., over which the corporation of that borough had immemorially exercised the sole right of pasturage, and enacted that they should be divided between and allotted to the lord of the manor and the corporation in certain shares; and that the corporation should have power from time to time to make leases of the allotments so vested in them, for such terms, and with such cove- nants and agreements as the burgesses in common-hall assembled should think proper. On the 1st of April, in the same year, the burgesses made a "rule, order, and ordinance," whereby, after reciting that they were of opinion that the most beneficial mode for the corporation of enclosing the lands would be to grant leases of them for long terms to such burgesses as were willing to take the same, under covenants to enclose them, it was ordered that no lease should be made to one burgess in the same lease of more than fifty, or less than five acres ; " and it being their desire and opinion, that every burgess residing within the borough should receive a benefit from the said inclosure," it was further ordered that certain annual sums out of the rents arising from the inclosure, should be paid and distributed yearly, on every 2nd November, among the twelve senior burgesses residing within the 12 DIVISION 1. Chap^ 3. borough, and that no burgess who should take a lease Power to should be entitled to receive anj of such money. It was make bye- ]-^gi(j n^^^^^ ^jj^g ordinance was a valid bye-law. {Hopkins v. Swansea [Mayor, ^r.), 4 M. & W. 621. S. C. in error, 8 M. & W. 901.) There also exist in some boroughs certain customs, which may be presumed to have originated in bye-laws, as they can only exist in prescriptive corporations (see Vaughan v. Lewis, Carth. 228; JBolton v. Throgmorton, Skin. 55) ; such customs are not, however, in general much favoured, and the courts require them to be incon- trovertibly proved. (See JVilson v. Wilks, 2 Ld. Raym. 1133; York v. Welbank, 4 B. & A. 440.) Before the passing of the Municipal Corporation Act, bye-laws in restraint of trade were considered bad, unless they were supported by a custom in the borough, when they would be upheld. (See Hesketh v. Braddock, 3 Burr. 1847; Butchers' Company v. Morey, 1 H. Bl. 370; Wooley V. Idle, 4 Burr. 1951 ; London v. Compton, 7 D. & R. 597 ; R. V. Harrison, 3 Burr. 1322; Shaw v. Poynter, 2 A. & E. 312; Jones Y. Waters, 1 CM. & R. 713; Clark y. Benton, 1 B. & Ad. 92; Clark v. Le Cren, 9 B. & C. 52; Leicester V. Burgess, 2 N. & M. 131 ; Perkins v. Cutlers' Company, 1 Selw. N. P. 1145.) But a bye-law to support a custom, giving a penalty to any but the corporation, has been held bad. [Totterdell v. Glazeby, 2 Wills. 266.) So also has a bye-law to oblige a person who had a right to be free of a city to take up his freedom in some particular company. {Harrison v. Godman, 1 Burr. 12.) So a bye-law founded on a custom to include foreigners, and authorizing a dis- tress for a penalty in case of a breach of the bye-law, without a previous demand or refusal of such penalty. {Davis V. Morgan, 1 C. & J. 587.) And now all bye-laws and customs prohibiting persons other than freemen, &c., from carrying on trade within a borough, are abolished by the Municipal Corporations Act, 1882. (45 & 46 Vict. c. 50, s. 247.) A corporation, however, may regulate the manner of carrying on a trade within the borough, so far as to pre- INTRODUCTION. 13 vent monopoly or the sale of unfit commodities^ or to C hap. 3. insure the proper conduct of those who trade within the Power to borough (see Freemantk v. Silk-Throwsters' Company, 1 make bye- Lev. 229, S. C, 1 Keb. 309. Sec also Everett v. Grapes, '"'''"■ 3 L. T. (n.s.) GG9), or to protect the safety or health of the public. Upon this principle, a bye-law to prohibit gunpowder from remaining within a harbour for more than twenty- four hours, has been held good ( Trinity House v. Crisp, 2 Show. 95) ; so a bye-law has been upheld which prohibited the slaughter of any animal within the walls of a city. {Pierce v. Bartrum, Cowp. 4G9 ; see further Shaiv v. Pope, 2 B. & Ad. 465.) It has been seen that a bye-law cannot be made to take away an existing right, such as that of a freeman : or to incur a forfeiture of goods, unless such power is expressly given. [KirJc v. Nowill, 1 T. R. 118; see also 8 Rep. 125 ; 1 Wils. 63.) But a corporation may make bye-laws for the amotion of an officer for just cause. {R. v. Richardson, 1 Burr. 517; 3 Ld. Ken. 85.) The proper causes of amotion will be considered here- after. It has been laid down as a general rule that any bye-law that is unreasonable, or unjust, or uncertain, is bad. (See Bosworth v. Hearne, 2 Str. 1085, S. C. Andr. 93 ; Mitchell V. Reynolds, 10 Mod. 133 ; Carter v. Sanderson, 5 Bing. 79; Frameivork Knitters v. Green, 1 Ld. Ray, 112.) Thus a bye-law that if any person should be elected to a certain office in the corporation, and should refuse to undertake the office, he should be subject to a certain fine, has been held bad [Oxford [Mayor, ^'C.) v. Wild- goose, 3 Lev, 293) ; as such a bye-law would extend to persons who were not members of the corporation. So a bye-law inflicting imprisonment as a penalty is invalid. [Hutchins v. Player, Moore, 411.) But a bye-law imposing a penalty of £o to the use of . the corporation, ^' or less at the discretion and pleasure of the corporation,^^ is not bad for uncertainty in the amount of the penalty. [Piper v. Chappell, 14 M. & W. 622.) 11 DIVISION T. Chapes, A bye-law which provided that no person should erect Power to any boothj or place any caravan, for the purpose of any make bye- show or public entertainment in any public place within the borough, without the license of the mayor, and that any such license given at any other time than fair time should be revoked by the mayor, if three inhabitant house- holders, residing within 300 yards of the place for which it was granted should memorialise the mayor to revoke it, was held to be unreasonable and bad. {Elwood v. Bullock, 6 Q. B. 383; 13 L. J. (n.s.) Q. B. 330.) A bye-law may be good in part and bad in part ; but that can only be so where the two parts are entire and distinct from each other (by-Ld. Ken yon, C. J., in R. v. Faversham {Company of Fishermen) , 8 T. E,. 356) ; thus, if a bye-law consists of several distinct and independent provisions, although one or more of these may be void, yet the rest of the bye-law may be valid. [Lee v. PVallis, 1 Ken. 295.) But if a bye-law be entire, and one part be void, it is void altogether. Thus if a bye-law, instead of being limited to those within the jurisdiction of the coi'poration, professes to extend to strangers also, it is void not only as to the latter, but also as to the members of the corpora- tion. {Dodwell V. Oxford {University) , 2 Vent. 34.) Any existing bye-law may be repealed by the corporate body. {R. V. Ashivell, 13 Ea. 22; R. v. Westwood, 4 B. & C, 806.) It has been decided that a bye-law cannot be objected to in a summary way upon motion, on return to a habeas corpus, except in cases from London. {Bellard v. Bennett; Same v. Clement, 2 Burr. 775.) But the validitv of a bve- law may be tested in an action to recover a penalty, where that is the proper mode of proceeding {Pijyer v. Chappell, 14 M. & W. 624) ; or where a penalty has been enforced by distress, by an action of trespass {Moir v. Munday, Sayer, 181, 185), or in proceedings to enforce a penalty before justices. {Everett v. Grapes, 3 L. T. (n.s.) 669.) Evidence of a practice in contravention of a bye-law is not receivable. {Sells v. Brown, 9 C. & P. 601.) CHAPTER TV. Chap. 4. Of Actions by or ayainst a Corporatioa. Anotlier incident to corporations is the power of suing Actions by or and being used by their corporate name. corporation. They may maintain all such actions as are necessary to assert or maintain their rights, and all such actions may be maintained against them for the support of adverse claims. As a corporation cannot appear in person, they must appear by attorney. (Bro. Abr. Corporation. 28 Co. Lit. 66, b. ; Sutton's Hospital, Case of, 10 Rep. 30, b.) , If a corporation has a head or any other integral com- ponent part, they cannot sue or be sued without it, as in that case the corporation would be incomplete. (Bro. Abr. Corporation. 43 Co. Lit. 66, b.) A foreign corporation may sue as such in the courts of this country, but they must prove they are incorporated in the foreign country. [8t. Charles Bank v. De Ban- nales, 1 C. & P. 569; S. C. 1 Ry. & Moo. 190.) As all contracts entered into by a corporation must be under seal, it follows that a corporation cannot sue in assumpsit on an executory contract (see East London Water Works Co. v. Bailey, 4 Bing. 283), as such an action is founded on a contract not under seal. (As to trading corporations, see Church v. Imperial Gas Co., 6 A. & E. 846; 3 N. & P. 37; Dunstable v. Imperial Gas Co., 3 B. & Ad. 125; London {City) Gas Co. v. Nicholls, 2 C. & P. 365; East India Co. v. Glover, 1 Stra. 612; Gibson v. East India Co., 5 Bing. N. C. 270.) But they may maintain assunipsit upon an executed contract (see The Barber Surgeons of London v. Pilson, 2 Lev. 252; Rochester {Dean and Chapter) v. Pearce, 1 Camp. 466) ; as for the use and occupation of land [Stafford {Mayor, ^c.) v. Till, 4 Bing. 75), or of tolls. [Carmariiun {Mayor, S^c.) v. Lewis, 6 C. & P. 608.) As 16 DIVISION I. Chap. 4. in such cases the party contracting with the corporation Actions b o having had the benefit of the fulfilment of the contract, agaiust a the law will raise an implied promise in favour of the coqjoratiou. corporation on which they may sue in their corporate character [see further Beverley v, Lincoln Gas Co., 6 A. & E. 839; 3 N. & P. 283) ; and it is no action of assumpsit by the corporation, that the corporation itself was not originally bound by the contract, by reason of its not having been made under their common seal. A plea, therefore, to an action by a corporation on an agreement which had been executed, that the plaintiffs were a corporation aggregate, and that the agreement was not entered into by them under the common seal of the corporation, or by any person authorized under seal, is bad on demurrer. [London [City] v. Goree, 1 Ventr. 298. See also Exeter {Mayor, ^c.) v. Trimlet, 2 \\^ils. 95 ; Yar- mouth {Mayor, ^c.) v. Eaton, 3 Burr. 1402 ; Kingston- Ujjon-Hull {Mayor, ^c.) v. Home, Cowp. 102.) It seems also, that even if the contract had been execu- tory only on the part of the corporation, their suing upon it might amount to an admission on record by them, that such contract was duly entered into on their part, so as to be obligatory upon themselves ; and that such admission on the record would stop them from setting up an objec- tion in a cross action, that the contract was not sealed with their common seal. {Fishmongers' Co. v. Robertson, 5 M. & G. 131; 6 Scott, N. E. 56. See also Liverpool Borough Bank v. Eccles, 4 H. & N. 139.) Assumpsit will also lie for duties leviable within the jurisdiction of the corporation, such as the duty of scavage, due by the custom of London. (Fishmongers' Co. V. Robertson , 5 M. & G. 131 ; 6 Scott, N. E. 56. See also Liverpool Borough Bank v. Eccles, 4 H. & N. 139.) Debt also will lie for such duties {see Hardres, 486, and the cases cited above), or for penalties incurred by breaches of the bye laws of the corporation. (See Butchers' Co. v. Bullock, 3 B. & P. 434; Feltmakers' Co. V. Davis, 4 B. &. P. 98.) INTRODUCTION. 17 So debt will lie upon a bond given to the corporation ; Chap. 4. but a corporation cannot sue upon a bond made to the Actions by or mayor in his own proper name. (Y. B. 21 E. 4, 15 ; against a Dy. 48.) corporation. On the other hand, the mayor of a corporation, who on the sale of certain corporate lands by auction, signed a contract on behalf of himself and the corporation with the purchaser, for the due performance of the conditions of sale, cannot, in his individual capacity, sue the purchaser for a breach of the contract. (2 Taunt. 374, 387.) A corporation may maintain trespass for a trespass committed upon their lands or other possessions; or case, as for disturbance in holding their courts, or taking the profits of liberties granted to the corporation, or against the sheriff of the county for executing process within the jurisdiction of the corporation, where the return of writs has been granted to them. (1 Rol. Rep. 118.) They may also maintain trover, or ejectment. {See 1 Anderson, 202, 248.) In ejectment by a corporation, it is not necessary that the demise should be stated to be by deed ; and if so stated, it need not be proved. (2 Wms. Saund. 305 b. n. (c) ). A corporation may institute a suit in equity for setting aside transactions fraudulent as against it, although carried into effect in its name by members of the govern- ing body : and such right is not affected by the attorney- general having also power to call in question such trans- action. [Attorney -General \. Wilson, 1 Craig. & Phil. L.) A suit or action by a corporation does not abate by the death of one of the members [Blackburn v. Jepson, 3 Swans. 138) ; for the body still remains a corporation. A criminal prosecution will also lie at the instance of a corporation; but they should be described in the indict- c 18 DIVISION I. Chap. 4, ment by their corporate name. {R. v. Patrick, 1 Leach Actio'^r^yor C. C. 253 J S. C. 2, Ea. P. C. 1059.) aorainst a corpoia ion. ^^ ^^^ ^^^^ ^^ ^^ action against a corporation^ it has been enacted, that the writ of summons may be served on the mayor or other head officer, or on the town clerk, or secretary, or treasurer of such corporation. (C. L. P. Act, 1852, s. 16.) But this enactment does not apply to actions of eject- ment or quare impedit, which maj^ still be commenced by original writ. (As to process against a corporation by original writ, see Com. Dig. Franchises, F. 16.) If a corporation does not enter an appearance to the writ of summons or original process, the proper proceed- ing is by distringas, which should go against them in their public character; and under this process the sheriff is authorized to distrain the lands and goods belonging to the corporation. If a party has sustained injury by the act o£ others who he has reason to suppose acted under the authority of a corporation, and he is unable to ascertain that fact, he may file a bill of discovery in equity against them and any of their officers, before he brings an action at law, sug- gesting that he intends to bring one, but cannot do so without the discovery prayed. If, however, the discovery of any of the matters prayed for should be prejudicial to the corporation, and would not be material to the plain- tiff ^s case, the defendants are not bound to reveal such facts. {Mordelly v. Merton, 1 Br. Ch. Rep. 471.) An answer in equity must be made under the corporate seal; and if the proper officer refuses to affix the seal, where the majority of the members have agreed to the answer, the Court of Queen^s Bench will compel him to do so. (i?. V. Wyndliam, Cowp. 317. See Biggie v. London and Blackwall Railway Company, 5 Exch. 442, 450, as ,to where it is inconvenient or impossible to affix the seal.) A municipal corporation, as altered by the Municipal Corporation Act, being but a continuance of the old cor- INTEODUCTION. 19 poration, where a new corporation is made party to a suit Chap. 4. in equity in respeet of a breaeh of trust committed by Actions i)y or their predecessors, they are not entitled to costs. [Attar- i»g:iin.st a ney -General v. Kerr, 2 Bcav. 4.20.) corporation. Assumpsit will not lie against a municipal corporation upon an executory contract for the reasons previously stated [supra, p. 15. See also, 1 Rol. R. 82), but for the same reasons it Avill lie in the case of an executed con- sideration; as to recover money wrongfully received by them. [Hall v. Sivansea [Mayors ^c), 5 Q. B. 52G.) Where an attorney had acted for a corporation^ some- times having been retained under their corporate seal, and at other times without that authority; and the corpora- tion had paid him a sum of money in part payment of his bills generally, it was held in an action brought by him against the corporation for the residue, that he was at liberty to appropriate the money so paid to him to that portion of his work which he had performed without a retainer under seal, as there was nothing to impeach the fairness of his bills or the amount due to him in this respect, although, from want of legal form, he might not have been able to sue upon them. [Arnold v. Poole [Mayor, ^c), 4 M. & G. 860; 5 Scott, N. R. 741.) But a mere resolution of the council, for the increase of salary of a corporate officer though duly entered on the corpora- tion books, is not binding on the corporation, not having been made under the common seal. [R. v. Stamford [Mayor, i^c), 6 Q. B. 433.) Debt will lie against a corporation, upon any contract entered into by them under the corporate seal. By a bye-law, certain corporate lands which had been inclosed by Act of parliament, were ordered to be let to such of the burgesses as were willing to take them : and it was further ordered, that certain annual sums out of the rents arising from the inclosure should be paid and distributed yearly among the twelve senior burgesses re- c 2 20 DIVISION I. Chap. 4. siding within the borough. It was decided {Hopkins v. ActioTTby or Sivanseu {Mayor, ^c), 4 M. & W. 621 ; S. C. in error, 8 against a M. & W. 901) that an action of debt was maintainable on corporation, ^-j^.^ bye-law at common law by the parties to whom pecuniary benefits were granted thereby ; and that such action lay against the corporation at large, under the 2nd section of the Municipal Corporation Act, now repealed. A corporation aggregate is, generally speaking, not liable to be sued in tort, for any tortious act of their own; thus trespass, or rep)levin, or trover will not lie against them for such an act {see 8 Ea. 229, and cases there cited), but they are liable to be so sued for the tortious act of their agent, though not appointed under seal, if such an act be an ordinary service, such as a distress, professedly made under a statute, for a debt due to the corporation ; and a jury may infer the agency from the adoption of the act by the corporation, as from their having received the proceeds of the seizure. {Smith v. Birmingham Gas Company, 1 A. & E. 526. See also Mauncl v. Monmouth Canal Company, 4 M. & G. 452; 5 Scott, N. R. 457. Green Y.London General Omnibus Com- pany, 29 L. J.; C. P. 13.) So trover will lie against a corporation for a tortious conversion by their agent ; and, if it should be essential to the conversion that thev should have authorized it under seal, such authority will be presumed after verdict. {Yarborough v. Bank of England, 16 Ea. 6. See also Dun- can V. Surrey Canal Proprietor's, 3 Stark. R. 50.) It seems doubtful whether ejectment can be maintained against a corporation. If they are tenants to any party, such tenancy may be determined by a notice to them to quit, served on their officers : after which the owner of the premises may distrain the cattle of any persons found trespassing on his grounds, or he may bring his action against them, or he may maintain ejectment against any person in the actual possession of the premises. {Doe d. Carlisle {Earl) v. Woodman, 8 Ea. 228.) INTRODUCTION. 21 Formerly, a corporation would not be let in to defend Chap. 4. an ejectment_, without entering into the usual eonscnt rule Actions by or to confess themselves in possession : the object of that against a rule being merely to prevent the necessity of proving the *^°^P°'''^ '°"* identity of the premises at the trial. {Doe d. Pan' v. Roe^ 1 Q. B. 700.) Ejectment cannot be maintained against the bailiffs, pi'O tempore, of a corporation, by merely proving payment of rent for the premises by the annual predecessors of the defendants in the same office for several years before, and service of the notice to quit on the defendants, the exist- ing bailiffs ; for the payment of such rent by the bailiffs in succession is merely evidence of a tenancy in the corpo- ration. {Doe d. Parr v. Roe, 1 Q. B. 700.) An action on the case also may be supported against a corporation by any individual who may have sustained a direct and particular damage by reason of the neglect of any public duties which by law may be thrown upon them, such as for the non-repair of highways, bridges, or gaols. {Lyme Regis {Mayor, &^c.) v. Henley, 3 B. & Ad. 77 ; S. C. Bing. 91 ; Lynn v. Turner, Cowp. 86.) They may also become liable in damages for the im- proper and careless construction, and management of dangerous premises or machinery {Cowley v. Sunderland {Mayor, 6fc.), 3 L. J. Exch. 127) ; or for an assault and battery or false imprisonment committed by their servants in the exercise of the orders of the corporation, or in the discharge of their ordinary duty; or for the negligence and unskilfulness of their servants in the execution of the ordinary work and business of the corporation {Scott v. Manchester {Mayor, 6,-c.), 1 H. & N. 59; 2 H. & N. 204), without proof of any authority under seal. {Eastern Counties Railway Company v. Broom, 6 Exch. 314. See also Goffy. Great Northern Railway Company, 30 L. J. Q. B. 148; Chilton y. London and Croydon Railway Com- pany, 16 M. & W. 231 ; ToUcmachc v. London and South Western Railway Company, 26 L. T. R. 222.) But it is otherwise where the servant is not acting under orders nor within the general scope of his authority. (See Poulton 22 DIVISION I. Chap. 4. V. London and South Western Railway Compamj, L. R. 2 ActionTby or Q- B. 534.) And a corporation, who have employed a against a solicitor to conduct legal proceedings, are not necessarily coipoia lou. Y\a\AQ for unlawful acts of which the solicitor may have been guilty in the conduct of the proceedings {Eggington V. Lichfield {Mayor, ^c), 5 El. & B. 112), or for a mis- • feasance, thus an indictment will lie against an incorpo- rated railway company for obstructing a highway by their works. {R. V. Great North of England Railway Company, ut supra.) In such cases an indictment is maintainable against the corporation, in its corporate name. (See Dogherty' s Crown Circ. Comp. 398; see also R. x. Bir- mingham and Gloucester Railway Company, 3 Q. B. 223 ; S. C. 2 C. & P. 478; R. v. Great North of England Rail- way Company, 9 Q. B. 315.) As to the liability of a corporation for a malicious pro- secution, see Stevens v. Midland Counties Railway Com- pany, 10 Exch. 352; or for a libel, see Whitfield y. South Eastern Railway Company, Yi. Bl. & El. 121; 27 L. J. Q. B. 229. An indictment also will lie against a corporation, in the same manner as against the inhabitants of a county or parish, for such neglect of public duties. (See Dogherty' s Crown Circ. Comp. 398 ; see also R. v. Birmingham and Gloucester Railway Company, 3 Q. B. 223; S. C. 2 C. & P. 478 ; R. V. Great North of England Railway Company, 9 Q. B. 315.) A criminal information also will lie for a breach of duty and trust, as for applying to private purposes the revenues which are vested in them for public uses. [Limerick [Chamberlain, ^c.) v. Attorney -General, 6 Dow. 136; see also Drummer v. Chippenham [Corp.), 14 Ves. 250.) It may not be out of place here to remark that the members of the governing body are considered for some purposes as the agents of the corporation : and if they INTRODUCTION. 23 exercise their functions for the purpose of injuring its C hap. 4. interests and alienating its property, they arc personally Actions by or liable for any loss occasioned thereby. And where such a ag'^nst a ,.,.,- -^ PI o 1 i.- corporation. liability arises from the wrongtul act or several parties, each is liable for all the consequences, there being no con- tribution bet^yeen them, and each case is distinct, depend- ing upon the evidence against each party. {Attorney- General V. Wilson, 1 Cr. & Ph. 1.) Since the 1st November, 1875, all actions at law and suits in chancery commenced by information must be instituted by a proceeding called an action. Every such action must be commenced in the High Court of Justice by writ of summons. The High Court is a superior court of record, to which have been transferred the jurisdictions of the superior courts [see Supreme Court of Judicature Acts, 1873 and 1875). The method of proceeding in ejectment is prescribed by the Common Law Procedure Act. The rules, however, annexed to the Judicature Act, 1873, make no special mention of the action of ejectment ; and it may be doubt- ful how far the practice as prescribed by the Common Law Procedure Act will be retained, inasmuch as every action is to commence by a writ of summons (Steph. Com. III. 7th ed. p. 620). Chap. 5. CHAPTER V. Of succession of members of a corpora- tion. Of the succession of the 3Iembers of a Corporation. The last incident to be mentioned -whicli is peculiar to a corporation is the perpetual succession of its members_, so that however the members may fluctuate, the corporate body never ceases to exist. The property of the corporation does not belong to the individual members, but to the whole body aggregate, in like manner as we have seen that actions must be brought by and against the whole body, and not by or against any individual members. CHAPTER VI. Chap. 6. Of the Freemen. The Municipal Corporations Act, 1883, includes under Of freemen, the term " freemen^' any person of the class whose rights and interests were reserved by the Municipal Corporations Act, 1835. By the 2nd section of the last-mentioned Act, all rights of property and certain beneficial exemptions are reserved to those persons who at the time of the passing of the Act were freemen or burgesses. Each borough had its own peculiar customs and bye- laws, regulating the admission of freemen, (See R. v. Marshall, 2 T. R. 2 ; i?. v. Powell, 8 T. R. 639 ; see also the Maldon case, F. & F. G58,) No usage will avail to alter the positive provisions of a charter {Helston case, 2 Doug. 5 ; Derby case, 3 Doug. 287, 304. See also R. v. Salway, 9 B. & C. 424.) The right to freedom generally depended upon either birth, marriaffe, servitude, gift, or purchase. No person can now be admitted a burgess by gift or purchase. (45 & 4G Vict. c. 50, s. 202.) It becomes, therefore, unnecessary to consider these two last classes of freemen. a. Of Freemen by Birth and Marriage. It will not be necessary either to make many observa- tions on these subjects. A person to be entitled to free- dom in respect of birth must be proved to be the legitimate son of a freeman. The legitimacy, age, and identity of the person claiming the freedom may be shown in the usual way. 26 DIVISION I. Chap. 6. The right to freedom in respect of marriage depends on Of freemen. ^^^^ local customs of each borough; in some a party is entitled to the freedom who has married the daughter or the widow of a freeman. The marriage would be proved in the ordinary way. h. Of Freedom by Servitude. A person in order to be entitled to his freedom in respect of servitude, must have been bound apprentice to a freeman, and have served as such apprentice for the whole period for which he was so bound. The requisite period of servitude may vary in different boroughs. It is necessary that the binding should be by deed, but such deed need not be indented (31 Geo. 2, c. ] 1) ; though it is usually termed an indenture of apprentice- ship. A service under an agreement to execute an indenture would not be sufi&cient. {R. v. Stratton, Bm-r. Set. Ca. 72.) The execution of the deed may be shown in the ordi- nary way. It must be duly stamped {see 33 & 34 Vict. c. 97, sched.) and sealed. {See Com. Dig. tit. Fait.) The parties to the deed must be competent to contract, but a minor may bind himself even without the joinder of his parent, it being an act for his own benefit; but a father cannot bind his son without the assent of the latter, testified by the execution of the indenture; a service under the indenture is not tantamount to execution. {Chesterfield's case^ 2 Salk. 479 ; R. v. Arnesby, 3 B. &; A. 58i; R. V. Cromford, 8 East, 25.) There must be a continuance of the binding and also of the service, under the deed during the whole period for which the apprentice was bound {R. v. Inman, 4 B. & A. 57 ; R. V. Rowe, 4 Burr. 2287 ; R. v. St. Paul's, Bedford, 6 T. R. 452; R. v. E. Bridyford, Burr. S. C. 133; R. v. INTRODUCTION. Slythe, 6 B. & C. 246. See also R. v. Linkinborn, 3 B. & Chap. 6. Ad. 413; R. V. Banbury, Id. 706; R. v. Drimerchion, Id. of freemen. 120) ; but if the master were to die or become bankrupt, it seems that a service under an assignment to a third party being a freeman would be sufficient. (See R. v. Stachland, 1 Doug. 70; R. v. Shepton, 2 Bott. 295.) It is necessary that the relation of master and appren- tice should exist between the parties ; that of master and servant will not be sufficient ; there must be a contract to teach on the part of the master, and to learn on that of the apprentice, in order to constitute the former. As to the distinction between servitude as apprentice and as servant, see R. v. Crediton, 1 B. & Ad. 497 ; R. v. Tipton, 9 B. & C. 891 ; R. v. Edingale, 10 B. & C. 741. See also R. V. Mountsorrell, 2 M. & S. 460. If, as in the case of some boroughs, the charter or custom requires the apprenticeship to be with a resident freeman, a binding to a freeman who is only occasionally resident in the town, and where the service is to be per- formed out of the borough, is not sufficient {R. v. Mar- shall, 2 T. R. 2) ; but it seems that a service at some place out of the borough, if the trade carried on there is subser- vient to the trade carried on by the master in the borough, is sufficient. {R. v. Cambridge, 2 Chit. R. 144.) It has been decided that service under articles of clerk- ship to an attorney is not "a sufficient compliance with a custom requiring service of an apprenticeship to a burgess carrying on trade within the borough. [R. v. Doncaster, 7 B. & C. 630.) This may be a convenient place to notice some decisions that have taken place with reference to bye-laws relating to the subject of apprenticeship. A bye-law directing that a sum of money should be paid for the use of a corporation on enrolling indentures of apprenticeship to one of its members has been held to be bad. {Nevesly v. Webster, 1 Ld. Ken. 243.) So with regard to a bye-law made by a company in a corporation to restrain the number of apprentices to be taken by any 27 38 DIVISION I. Chap. 6. of the members. (R. v. Cooper's Co., of Newcastle-upon- Of frl^en. ^V^e, 7 T. R. 543.) Where by custom a prescriptive right was claimed of making bye-laws to regulate the number of persons to be taken as apprentices by members of a corporation, such custom will not warrant a bye-law altering the qualifica- tion of persons to be taken as apprentices. {R. v. Tap- penden, 3 East, 186. See R. v. Bird, 13 Ea. 267.) CHAPTER VII. Chap. 7. Of Proceedings by Mandamus. The proceedings by mandamus to compel the mayor to Proceedings insert a name on the burgess roll are regulated by the " Municipal Corporations Act, 1882 (sects. 47 and 225). It remains, therefore, to consider proceedings by mandamus in other cases. It is an incident to all corporations that they are liable to be visited ; that is, that any irregularities which may arise in them from time to time may be inquired into and arrested by some competent authority. In ecclesiastical corporation^, for example, the ordinary is, by the canon law, the visitor. In eleemosynary lay corporations the founder, his heirs or assigns, are, at com- mon law, the visitors. But in civil lay corporations, including municipal corporations, as their existence is derivable from the Crown, the power of visitation is vested therein. {See 3 Bl. Com. 480.) This power of visitation in the Crown, in regard to municipal corporations, was exercised by the Court of Queen^s Bench, and will henceforward be so by the Queen's Bench Division of the High Court of Justice, according to the rules of the common law (see Philips v. Bury ^Ijdi. Raym. 8, by Holt, C. J.; Bac. Abr. tit. Corpo- rations (F.)); and it is chiefly exercised by means of the writ of mandamus, or of an information in the nature of a quo warranto. A mandamus is a high prerogative writ, and is, in form, a command issuing in the Queen's name, directed to any person, or corporation, or inferior court of judicature, within the Crown's dominions, requiring them to do some particular thing therein specified, which appertains to 30 DIVISION I. Chap. 7. their office and duty^ and which the Court has previously Proceedino-s determined, or at least supposes, to be consonant to right hy mandamus, and justice. (3 Bl. Com. 110.) In its application, it may be considered as generally confined to cases where relief is required in respect of the infringement of some public right or duty, and where no effectual relief can be obtained in the ordinary course of an action at law. {lb. And see the cases there cited.) It would exceed the limits of this work to attempt to mention in detail all the cases in which it has been de- cided that a mandamus may be issued to a corporation. It may be sufficient to mention a few leading examples. A mandamus will lie to compel a corporation to proceed to the election of corporate officers {see 45 & 46 Vict. c. 50, s. 70; R. v. London {Mayor), 1 T. R. 146; R. V. Leyland, 3 M. & S. 184; R. v. Nonvich, 1 B. & Ad. 310); or the admission of a freeman {Bang's case, 11 Eep. 94; Bac. Abr. tit. Mandamus (C. 1.) & (D.) or to restore any officer, such as recorder (Style, 452 Vent. 143, 153; 4 Burr. 1999), town-clerk (Nov, 78 Style, 457), or clerk of the peace (4 Mod. 31 ; Show. 282 12 Mod. 13), or any member of the corporation who has been turned out, or disfranchised, or suspended. (Bac. Abr. ut supra ; and (C. 3) ). It will lie also, by statute (45 & 46 Vict. c. 50, s. 47), as has been before stated, to insert the name of a person in the burgess list, whose claim has been rejected, or whose name has been expunged from the list. A party who applies for a mandamus under this statute must come prepared to prove his title in all respe'cts ; and the court will inquire into the goodness of the whole title and not merely into the points raised before the mayor on the revision. {R. v. Lichfield {Mayor, 6fc.), 2 Q. B. 693; 2 G. & B. 10.) It will not be sufficient for him to show that his name was improperly expunged by the mayor on a point as to which he had no jurisdiction. {R. v. Harwich {Mayor, ^c), 8 A. &E. 919; IP. &D. 134.) Where the overseers of one of the parishes in a borough had omitted to make out a buryess list (under 5 & 6 INTRODUCTION. 31 Will, 4.', c. 76, s. 15), so that there was no list before Chap. 7. the mayor at the revision court in whieh the name of a Proceedings claimant for that parish could be inserted ; it was held by mandamus. that as the i)arty had made a claim which had been re- jected, the court had power to order his name to be in- serted on the burgess roll. {R. v. Lichfield {Mayor, ^c), I Q. B. 453 ; 1 G. & D. 28.) So where a burgess list was defective, but the mayor had treated it as valid by expunging a name therefrom, the party whose name was expunged was held to be entitled to a mandamus, and that the defectiveness of the list was no answer thereto. {R. v. Dover {Mayor, ^c), II Q. B. 260.) And so is a person who has been omitted from the burgess list because of his refusal to pay an illegal rate. [R. v.Neiv Windsor {Mayor, cVc), 7 Q. B. 908.) If the mayor does not show cause against the rule for a mandamus, the person on whose objection the name was expunged may do so. {R. \. Exeter {Mayor, ^c), L. E. 4 a B. 110, 111.) The rule should follow the words of the Act : " to insert the name of A. B. upon the burgess roll.^^ {R. v. Exeter {Mayor, &>c.), L. E. 4 Q. B. 110, 114.) In the ease of a particular office, if it be already full by the possession of an officer de facto, a mandamus will not be granted to proceed to a new election until the person in possession has been ousted upon proceedings in quo loar- ranto. (R. v. Bankes, 3 Burr. 1454; R. v. Cambridge, 4 Burr. 2011; R. v. Radford, 1 East, 80; R. v. Truro, 3 B. & A. 592. See also R. v. Derby {Councillors), 7 A. & E. 419; R. V. Hiorns, Id. 960. And see the next chapter.) Thus, M'here a councillor had, during his term of office, been left off the burgess list by the overseers for alleged non-payment of rates, but continued to exercise the office, the court determined that they would not, on affidavit of these facts, issue a mandamus to the mayor to proceed to a new election, as the vacancy must be first ascertained by a judgment on a quo warranto information. {R. v. Plup- pen, 7 A. & E. 966 ; see also R. v. Winchester {Mayor, &;c.), 7 A. & E. 215.) 33 DIVISION I. Chap. 7. Where an election has in fact been held, although bv an Proceediuo-s erroneous construction of the Municipal Corporation Act^ by mandamus, for one counciUor only instead of two, the candidate who was second on the poll cannot have a mandamus to admit him to the ofl&ce ; his remedy is either by mandamus to hold a new election for a second councillor, or (if the office have been filled in the meantime) by a quo ivarranto. {R. V. Royle, H. T. 1855. Eawlinson^s Corporation Acts, 6th Ed. p. 42, (n.) 3.) But where the name of a councillor has been omitted from the burgess list, another councillor may be elected to supply his place (the proceedings being bond fide) though the former had not resigned nor been ousted on a quo warranto ; so held on an application by him for a mandamus to restore him to his office. {R. v. Oxford (Ma?/or, ^c), 6 A. & E. 349.) A mandamus will also lie to compel a corporation to fix their seal to a public document, to hold a court (3 Bl. Com. 110), or a meeting at which public business is to be transacted, such as the granting of corporate leases (Andr. 184 ; Barnard, 82 ;) or to a corporate officer, for the pro- duction, inspection, or delivery (see R. v. Greene, 6 A. & E. 549 ; R. V. Hopkins, 1 Q. B. 161) of public books and papers (Comb. 102 ; 2 Stra. 948 ; 2 Barnard, 235 ; 1 Bl. Rep. 50. See R. v. Ch-eene ; R. v. Hopkins, ut supra) ; the delivery of the corporate insignia {Eocp. Downton [Mayor) , Q. B. 14 J. P. 319), and in like cases. As to a mandamus to the council to pay instalments on a bond given to secure compensation to an officer Avhose place was abolished by the Municipal Corporation Act (under sect. 67), see R. v. Poole {Mayor, ^c), 1 Q. B. 616 ; 1 G. & D. 728. See also R. v. Kendal 1 Q. B. 386. The time within which the application must be made is generally regulated by the practice of the court. CHAPTER VIII. Chap. 8 Of Proceedings by Quo Warranto. A writ o£ QUO warranto is in the nature of a TPrit of Proceedings riglit for the Crown^ against any one who claims or usurps ranta, any office, franchise, or liberty, to inquire by what war- rant, or authority, he supports his claim, in order to determine the right. (3 Bl. Com. 2G2.) The writ being a prerogative writ, and the proceedings thereon being attended with considerable delay, in order to render the remedy more speedy and available in the decision of corporation disputes between party and party, without any intervention of tlie prerogative, it was enacted by the 9 Anne, c. 20, that an information, in the nature of a quo warranto, might be brought with leave of the court, at the relation of any person desiring to prosecute the same, who is then styled the relator, against any person usurping, intruding into, or unlaw- fully holding any franchise or office in any borough corporate; and the statute provided for the speedy determination of the information, and directed that if the defendant be convicted, judgment of ouster, as well as fine, might be given against him, and that the relator should pay or receive costs according to the event of the suit. [See 3 Bl. Com. 264.) In the case of a mayor, alderman, councillor, elective auditor, or revising assessor, the application must be made within twelve months after the election, or the disqualifica- tion, of the person against Mliom the application is made. (45 & 46 Viet. c. 50, s. 225.) But even though the applica- tion be made within the limited period, the court Avill not grant it as a matter of right, if it appears there has been an unreasonable delay in making the application. Thus, where a person was enrolled a burgess in November, and an application for a quo ivarranto was made on the last day P 34 DIVISION I. Chap. 8. of the following Hilary Term, the court refused a rule, as Proceedings no explanation was given of the delay. {R. v. Hodson, 4 hy quo war. q g 64g gg^ ^Iso R. V. Preece, 5 Q. B. 94; R. v. '*'"''''' Hhidmarch, L. R. 3 Q. B. 12.) "Where the disqualification is a continuous one, as where a party becomes disqualified by reason of his entering into a continuing contract with the corporation, the pro- visions of the statute do not apply. [R. v. Francis, 18 Q. B. 526; L. J. Q. B. 304.) By a rule of court, leave will not be given to file an information in the nature of a quo warranto, unless, at the time of moving, an afiidavit be produced, by which some person shall depose on oath that such motion is made at his instance, as relator. (Beg. Gen. Q. B. M. T. • 3 Vict. 1839, 11 A. & E. 2.) It has been held to be a sufficient compliance with the terms of this rule, if the deponent swears, that he had directed an application to be made to the court for a quo warranto, and that the motion would be made at the instance of the deponent as relator (i?. V. Anderson, 2 Q. B. 140) ; but it will not be sufficient to state that it is the deponent's intention to become the relator. {R. v. Hedges, 11 A. & E. 163.) It is not necessary that the relator should be a burgess; it will be sufficient if he is an inhabitant of the borough, and subject to the control and government of the corpora- tion. (See R. V. Hodge, 2 B. & A. 344; R. v. Parry, 6 A. & E. 848; R. v. QuayJe, 11 A. & E. 508.) But the court will require that the affidavit should show that the proposed relator is either a burgess or subject to such control. {R. v, Thirlwind, 33 L. J. Q. B. 171). And it seems if he is not a member of the corporation, the court will require a stronger case to be made out before they will give leave to file the information. (See R. v. Kemp, 1 T. R. 3 («.) ; R. V. Ogden, 10 B. & C. 210.) When the application is made by individuals, and not by the corporation, or their representative the mayor, the court will exercise a large discretion in granting a rule for an information, with reference to all the circumstances of the case, and particularly as to the promptness of the INTRODUCTION. ^ application^ and the conduct and even the motives of the C hap. 8. relator. (Sec R. v. Marten, 4 Burr. 2120; 7?. v. Htaceij, Proceedings 1 T. 11. 3 : R.y. Trevenen, 2 B. & A. 482 ; R. v. Shjthe, 6 '^v ?«o ^^r- B. & C. 242 ; R. v. Parry, 6 A. & E. 810 ; R. v. Hi. Mary, Lambeth, 8 A. & E. 356 ; R. v. Greene, 2 Q. B. 460 ; R. v. Ward, L. R. 8 Q. B. 210; R. v. Cousens,Id. 216.) In no ease will the court grant an information unless it is made clearly to appear that the office is full de facto. It will not be sufficient to state merely that the party "has accepted the office ; " hut it must be shown in what manner he has done so; as that he has made the re- quisite declaration (45 & 46 Vict. c. 50, s. 35. See R. v. Slatter, II A. & E. 505. See also R. v. Tate, 4 East, 357) ; or that he has acted in a corporate capacity (see R. v. Quayle, II A. & E. 508; 7^. v. Leeds {Mayor), Id. 512), or the like. Still less would it seem to be a ground for such an in- formation, that a party has merely claimed to be a burgess {R. v. Whitwell, 3 T. R. 85. -See also R. v. Pepper, 7 A. & E. 745) ; or even that he has allowed his name to remain on the roll after notice of objection to his qualifi- cation. {Re Armstrong/, 25 L. J. Q. B. 238.) Where an office is held during pleasure {e.g. that of clerk to the justices) a quo warranto will not be granted. {R. v. Fox, 8 E. & B. 939 ; 27 L. J. Q. B. 151.) As a general rule, the title of the electors is not allowed to be questioned in a quo loarranto impeaching the title of the person elected ; though perhaps an exception may be made to this rule in a case where there is no other method of questioning the title of the electors, {R. v. Tugwell, L. R. 3 Q. B. 704; and see R. v. Main, 3 T. R. 396 ; 7?. V. Harrald, 7 Q. B. 361 : Symmers v. Reg. Cowp. 489, 507 ; R. V. Hughes, 4 B. & C. 308.) A quo warranto may be granted for an usurpation of an office even after the resignation of it ; for the resigna- tion is no answer, though it may regulate the decision of the court in imposing the fine. (7?. v. Warloiv, 2 !M. & S. 75. See also 7?. v. Payne, 2 Chit. R. 367; 7?. v. Morton, 4 Q. B. 146.) D 2 36 PIVISTON T. Chap. 8. One ground upon which the court frequently refuses to Proceedings grant a rule for the information is, that the relator has by quo tvar- acquicsced or concurred in the election of the party against whom the application is made {see Tancred on Quo War- ranto, S7, 38) ; as^ e.g. by administering the declaration to an officer (under 45 & 46 Vict. c. 50, s. 35 ; R. v. Greene, 4 Q. B, 696) ; but it is no objection that the relator has frequently acted with the party in corporation business, it not appearing that he had actually concurred in the elec- tion {R. V. Benney, 1 B, & Ad. 684) ; and even where a party is disqualified from being relator by reason of such concurrence, he may nevertheless make an affidant in support of the application. [R. v. Brame, 4 A. & E. 664.) In some cases where collusion is suspected the court will order the relator to give security for costs. {R. v. Wakelin, 1 B. & Ad. 50. See also R. v. Greene, ut supra; R. y. Blizard, L. R. 3 Q. B. 55.) The court will not grant leave to file an information against an individual member of a corporation where the object of the application is obviously to call in question the validity of the charter to the corporation. [R. v. Taylor, 11 A. & E. 954.) Though leave will not be refused merely because the granting it may, or even will, dissolve the corporation. [R. v. White, 5 A. & E. 613. See also per Cur. in R. v. Parry, 6 A. & E. 820.) CHAPTER IX. Chap. 9. Of A motion from a Corporate Office. It "will now be considered in what cases a corporate Amotion frcm officer can be removed from his office. office"^^'" The amotion under the Municipal Corporations Act, 1882, will be considered under those sections which relate thereto. At common law the power o£ amoving an officer for misconduct is incidental to the corporation at large, and is not confined to the body or person in whom the right of electing or appointing such officer is vested. {Ld. Bruce' s case, 2 Stra. 819; R. v. Doncaster, Say, 29; S. C. 2 Ld. Raym. 1566.) It follows from this rule, that as the powers of the cor- porate body in any corporation are now vested in the council (45 & 46 Vict, c. 50, s. 10), consisting of the mayor, aldermen, and councillors, the power of amotion is vested in them. The offences for which a corporate officer may be re- moved may be divided into three classes : — First : Such as relate to his corporate or official cha- racter, and amount to breaches -of the condition expressly or tacitly annexed to the office. {See Kyd, Corp. 62.) Of this nature are the misapplication or embezzlement of the corporate funds ; or the not accounting for rents received (see R. v. Chalke, 1 Ld. Raym. 226; R. v. Bon- caster, Say, 29; 2 Ld. Raym. 15G6) ; non-attendance at several corporate meetings, after proper notice to attend, whereby the business of the corporation has been impeded {R. V. Wells, 4 Burr. 2004.) Non-residence has also been held to be a sufficient ground : R. v. Doncaster, ut supra ; R. V. Trueboy, 10 Mod. 75. This is now provided for by the 45 & 46 Vict. c. 50, s. 11. Razing entries from the corporate books, or falsifying them (/?. v. Chalke, a84;~'0? 38 DIVISION I. Chap. 9. vt svpra) ; and the like. Habitual drunkenness has been Amotion from ^^^^ ^ good cause for removing an alderman^ on account corporate of the evil example to others, and his consequent ineffi- ciency to discharge the duties of a magistrate. R. v. Taylor, 3 Salk. 231 ; Taylor v. Gloucester, 1 Rol. 409. Such a cause is happily not likely to arise at the present day. Secojidly : Such offences as have no relation to his cor- porate or official character^ but are, in themselves, of so infamous a character as to render the offender unfit to enjoy any public franchise. (2 Kyd, Corp. 62.) Of this nature are perjury, forgery, or bribery. {R. v. Tiverton, 8 Mod. 186.) Thirdly : Offences of a mixed nature, being not only against the duty of the officer, but also indictable at common law. (2 Kyd, Corp. 62.) Thus, the taking part in a riotous assembly and assault upon other corporators, whereby the business of the cor- poration was impeded, has been held to be a good ground for amotion. {Haddock's case, T. Raym. 439 ; R. v. Derby, Ca. temp. Hardw. 155.) In cases falling within the first and third class an amo- tion may take place, being for a breach of corporate duty, without any previous proceedings being had in a court of law; but in cases within the second class, there must have been a convicton at law before the party can be amoved. {R. V. Richardson, 1 Buit. 539 ; R. v. Liverpool, 2 Burr. 732; Haddock's case, T. Eaym. 439.) In order to render the amotion legal the council should be duly convened for the purpose. (See R. v. Sandys, 2 Barnard, 301 ; Taylor v. Gloucester, 1 Eol. 409.) The party against whom the proceedings are instituted must have notice to appear, <§?;hich should be served upon him a reasonable time before the meeting. (See R. v. Richardson, ut supra ; Ragg's case, 11 Rep. 99.) The notice or summons should state the charge upon which it is proposed to amove the party with sufficient particularity {R. v. Chalke, 1 Lord Raym. 226), but the same technical precision is not required as in an indict- INTRODUCTION. 39 mcnt; thus an allegation that the party "forged, or caused Chap. 9. to be forged/^ a certain document, has been held sufficient. Amotion from though it would not have been so in an indictment. (R. corporate V. L7jme Regis, Uoug. J 74.) If the party charged does not appear upon a proper summons, or, appearing, remains silent and does not deny the charge, it must be examined and proved, and all the proceedings must be conducted as though he had denied it. An amotion upon the ground that the silence of the party amounted to a confession has been held to be void ; though it is not sufficient to enable him to maintain an action against those who amove him, in the absence of proof of malice. {Harman v. Tappenden, 1 East, 562.) As to what amounts to a removal, see R. v. Thomas, 8 A. & E, 183. An amotion, though legal, has not the effect of invali- dating any act which the corporator has previously done, or in which he has been concerned ; but as soon as he is amoved he ceases ipso facto to be a corporator, and another may be elected into the vacant place. If the party who has been amoved continue to act, he is a mere usurper ; and all such acts are void, and he may be ousted by a quo warranto, and punished for such usurpation; but an amotion from one office does not in general impair the title of a party to another office. (See Jay's case, 1 Vent. 302; Symmers v. Reyem, Cowp. 503.) DIYISIOE" II. In this division of thq work it is proposed to set out the text of the Municipal Corporations Act_, 1882, The Act is preceded by a table refeii'ing to the repealed enactments^ and showing those substituted therefor. This reference is necessary, as in some cases it may be necessary to look at the repealed enactments. The Municipal Corporations Act, 188.2, is in this divi- sion referred to as the Act, and any section is quoted only by the number, and without mentioning the Act. MUNICIPAL COKPORATIONS ACT, 1882. [45 & 46 Vict. c. 50.] Table showing the arraBgement of sections, and the former enactments to which they refer. List op Statutes keferred to. 1835— 1836b 1836— i 1836 a- 1837- 1837a 1838— 1839— 1839a 1840- 1842- 1843— 1845— 1850- 1850 a 1850b- 5 & 6 WiU. 4, c. 76. -6 & 7 Will. 4, c. 103. 6 & 7 Will. 4, c. 104. -6 & 7 WiU. 4, c. 105. •7 Will. 4 & 1 Vict. c. 78. -7 Will. 4 & 1 Vict. c. 81. 1 & 2 Vict. c. 31. 2 & 3 Vict. c. 27. -2 & 3 Vict. c. 28. 3 & 4 Vict. c. 28. 5 & 6 Vict. c. 104. 6 & 7 Vict. c. 89. 8 & 9 Vict. c. 110. 13 & 14 Vict. c. 42. -13 & 14 Vict. c. 64. -13 & 14 Vict. c. 91. 1852—15 & 16 Vict. c. 1853— 16 & 17 Vict. c. 1857—20 & 21 Vict. c. 1859—22 Vict. c. 35. 1860—23 & 24 Vict. c. 1861— 24 & 25 Vict. c. 1869—32 & 33 Vict. c. 1869a— 32 & 33 Vict, c 5. 79. 50. 16. 75. 23. 55. 1871—34 & 35 Vict. c. 67. 1872—35 & 36 Vict. c. 60. 1872a— 35 & 36 Vict. c. 86. 1873—36 & 37 Vict. c. 33. 1874—37 & 38 Vict. c. 59. 1875—38 & 39 Vict. c. 40. 1877—40 & 41 Vict. c. 69. 1878—41 & 42 Vict. c. 26. AURANGEMENT OF SECTIONS. 41 PART I, Preliminary. Sect. 1. Short title. 2. Division of Act into parts. 3. Extent. 4. Commencement. 5. Repeal. 6. Application. 7. Interpretation and construction (/. c. 1835— s. 142 ; 1853 — s. 14 ; 1878— s. 4). PART II. Constitution and Government op Boro gh. Corporate Name. 8. Name of municipal corporation (/. e. 1835 — s. G). Burgesses. 9. Qualification of biu-gess (/. e. 1835— s. 13 ; 1869a— s. 1 ; 1872— s. 4 ; 1878— s. 7). Council ; Mayor, Aldermen, and Councillors. 10. Constitution of council (/. e. 1835— ss. 6, 25). 11. Qualification of councillor (/. e. 1835 — ss. 25, 28 ; 1869a — s. 3 ; 43 Vict. c. 17). 12. Disc[ualifications for being councillor (/. «. 1835 — s. 28 ; 1837 — s. 15 ; 1842— ss. 1, 7, 8 ; 1852 -ss. 1, 6 ; 1869a— s. 5). 13. Term of oliice and rotation of councillors (/. c. 1835 — ss. 30, 31, 43). 14. Number, term of office, and rotation of aldermen (/. e. 1835 — ss. 25, 27). 15. Qualification, term of office, salary, precedence, and powers of mayor (/. c. 1835— ss. 6, 25, 49, 57, 58 ; 1836a— s. 4). 16. Power of mayor to appoint deputy (/. e. 1853 — ss. 7, 8). Officers of Council. 17. The town clerk and deputy (/. c. 1835— ss. 58, 65). IS. The treasurer (/. c. 1835— s. 58 ; 1843 -s. 6). *#* /. e. refers to former enactments. 42 DIVISION II. Sect. 19. Other borougli oflBcers (/. e. 1835 — s. 58). 20. Seau'ity by and remuneration of officers (/. e. 1835 — s, 58). 21. Accountability of officers (/. e. 1835— s. 60), Meetings and Proceedings of Council ; Committees. 22. Quarterly and other meetings of council ; appointment of com- mittees, minutes, &c. (/. e. 1835— ss. 69, 70 ; 1837— s. 22 ; 1842— s. 2 ; 1873— s. 3). Byelaivs. 23. Power of council to make byelaws (/. e, 1835— ss. 90, 91 ; 38 & 39 Vict. c. 55, s. 187). 24. Evidence of byelaws (/. e. 1873— s. 2). Accounts and Audit. 25. The borough auditors (/. e. 1835— ss. 37,93; 40 & 41 Vict. c. 66, s. 1). 26. Half-yearly accounts of treasurer (/. e. 1835— s. 93 ; 40 & 41 Vict. c. 66, s. 1). 27. Audit and publication of treasurer's accounts (/. e. 1835— s. 93). 28. Eeturns to Local Government Board (/. e. 1836— s. 10 ; 1837— s. 43 ; 23 & 24 Vict. c. 51 ; 40 & 41 Vict. c. 66). Eevising Assessors. 29. Revising assessors in non-parliamentary boroughs (/. e. 1835— s. 37 ; 1837— S3. 4, 17 ; 1878— s. 20). Division of Borough into Wards, or alteration of Wards. 30. Proceedings for division of borough into wards or alteration of wards (/. e. 1835— ss. 39, 40, 42, 43 ; 1837— s. 10 ; 1859— ss. 1, 2, 3 ; 1869— s. 4 ; 1871). Supplemental and Exceptional Provisions. 31. Occupation of part of house (/. e. 1878 — s. 5). 32. Claim by occupier to be rated (/. e. 1835— s. 11). 33. Rules as to qualification of burgess on succession, &c. (/. e. 1835 — ss. 9, 10, 12 ; 1837— S3. 8, 9 ; 1S69a— s. 1). 34. Obligation to accept office or pay fine (/. e. 1835 — s. 51). 35. Declaration on acceptance of office (/. e. 1835— s. 50 ; 43 Vict. c. 17 ; and see 30 & 31 Vict. c. 72, s. 12). 36. Fine on resignation, &c. (/. e. 1836 — s. 8). 37. Re-eligibility of office holders (/. e. 1835— ss. 25, 31). *** /• ^- refers to former enactuients. ARRANGEMENT OF SECTIONS. 43 Sect. 38. Mayor and aldurnien to continue members of council (/. e. 1835 — s. 26). 39. Avoidance of office by bankniptcy or absence (/. e. 1835 — s. 52 ; 32 & 33 Vict. c. G2, s. 21). 40. Filling of casual vacancies (/. e. 1835— ss. 27, 47, 49, 51 ; 1837 — s. 11). 41. Penalty on un(|ualified person acting in office (/. e. 1835 — s. 53 ; 183G— s. 7). 42. Validity of acts done notwithstanding dis-s. Corrupt Practices. 77. Definitions (/. e. 1872— ss. 2, 3, 13). 78. General penalties for corrupt practices (/. c. 1872— s. 3). *«* /• ^- refers to former euactmeuts. ARRANGEMENT OF SECTIONS. 45 Sect. 79. Disqualifications and avoidance of election for comxpt practices by candidates (/. e. 1872— s. 4). 80. Dis(j^ualifications and avoidance of election for corrupt practices by agents, and for offences against tbis Part (/. e. 1872 — s. 5). 81. Avoidance of election for general corruption (/. e. 1872 — s. 6). - 82. Paid agents and canvassers (/. e. 1872 — s. 7). 83. Payment for conveyance of voters (/. e. 1872 — s. 8). 84. Prosecutions for corrupt practices (/. e. 1872 — s. 9). 85. Striking off votes (/. e. J872— s. lu). 86. Personation (/. e. 1872— s. 11). Election Petitions. 87. Power to question municipal election by petition (/. c. 1872 — s. 12). 88. Presentation of petition (/. e. 1872— s. 13). 89. Security for costs (/. e. 1872— s. 13). 90. Petition at issue (/. e. 1872— s. 13). 91. Municipal election list (/. e. 1872 — s. 13). 92. Constitution of election court (/. e. 1872— s. 14). 93. Trial of election petition (/. c. 1872— s. 15). 94. Witnesses (/. e. 1872— s. 16 ; 26 & 27 Vict. c. 29, s. 7). 95. Withcbawal of petition (/. e. 1872— s. 17). 96. Abatement of petition (/, e. 1872 — s. 17). 97. Witbdi'awal and substitution of respondents (/. e. 1872 — s. 18). 98. Costs on election petitions (/. e. 1872— s. 19). 99. Reception of and attendance on the election court (/. e. 1872 — s. 20). 100. Rules of procedure and jurisdiction (/. e. 1872 — s. 21). 101. Expenses of election court (/. c. 1872— s. 22). 102. Acts done pending a petition not invalidated (/. e. 1872 — s. 23). 103. Provisions as to elections in the room of persons unseated on petition (/. e. 1872— s. 24). 104. Prohibition of disclosure of vote (/. e. 1872— s. 26). PART V. Corporate Property and Liabilities. Corporate Land. 105. Power to purchase land for town hall, &c. (/. e. 1837 — s. 40). 106. Power to borrow with approval of treasury (/. c. 1860 — s. 8). 107. Power to acquire land with the approval of the Treasury ( f. e, I860— s. 8 ; 23 & 24 Vict. c. 106, s. 6). *^* f. e. refers to former enactmcuts. 46 DIVISION II. Sect. 108. Restrictions on alienation of corporate land without approval of Treasury (/. e. 1835— ss. 94, 95, 96 ; 1836— s. 2 ; and see 8 & 9 Vict. c. 18, s. 15). 109. Power to dispose of land with approval of Treasury (/. e. 1835— s. 94 ; 1836— s. 2). 110. Council may renew leases, &c. (/. e. 1835 — s. 95). Working Men's Dwellings. 111. Sites for working men's dwellings (/. e. 1874). Eepayment of Loans. 112. Power for Treasury to impose conditions as to repayment of money borrowed (/. e. 1860 — ss. 1, 8). 113. Pro%asions as to sinking fund (/. e. 1860 — s. 2). Purchase or Compensation Money. 114. Provision for replacing purchase or compensation money paid to treasurer (/. e. 1860— s. 3). 115. Investment of proceeds of sale, or exchange authorized by Treasury (/. e. 1860, s. 4). 116. Power for Treasury to authorize application of certain invest- ments for benefit of borough (/. e. 1860 — s. 5). Misap^propriation. 117. Penalty for misappropriation of moneys (/ e. 1860— s. 7 ; 39 & 40 Vict. c. 20, s. 3). Corporate StocJc. 118. Transfer of and other dealings with corporate stock (/. e. 1837 — ss. 45, 46, 47, 48). Borough Bridges. 119. Maintenance of borough bridges (/. e. 1850a). Loans for Municipal Buildings. 120. Power to borrow for buildings. Advowsons and similar Rights. 121. Obligations and powers in respect of advowsons, «S:c. (/. e. 1835— s. 139 ; 1838— ss. 2, 3, 4). *#* /. e. refers -to former euactinents. ARRANGEMENT OF SECTIONS. 47 Sect. 122. Regulations as to sale of ecclesiastical patronage belonging to municipal corporation (/. c. 1835 — s. 139 ; G &; 7 "Will. 4, c. 77, s. 2G ; 183G— s. 3 ; 1838— s. 1). Sioecial Rates. 123. Power to continue rates for special purposes (/. c. 1835 — s. 84). Misapplication of Coi-porate Property. 124. Prohibition of expenditure of corporate funds on parliamentary elections (/. e. 2 & 3 Will. 4, c. 69). Transitory Provisions. 125. Transfer of investments made before 1860 in. names of trustees (/. e. 1860, s. 6). 126. Scheme respecting mortgage debts incurred before 1860 (/. e. 1860, s. 10). 127. Consolidation of debts incurred before 1860 (/. e. 1860, s. 11). 128. Saving for sales, &c., in pursuance of past contracts and resolu- tions (/. c. 1835— s. 94). 129. Saving for rates in respect of past debts. (See 1835 — s. 85). 130. Saving for rights uf creditors in respect of tolls or dues (/. e. 1835— s. 92). 131. Saving for lawful debts contracted before 5 & 6 Will. 4, c. 76 (/. e. 1835— s. 92 ; 1836-s. 1 ; 1837— s. 28). 132. Saving against new liability to debts contracted before 5 & 6 Will. 4, c. 76 (/. e. 1835— s. 92). PART VI. Charitable and other Trusts and Powers. Charitable Trusts. 133. Administration of clwritable trusts and vesting of legal estate (/. c. 1835— s. 71 ; 16 & 17 Vict. c. 137, s. 65 ; 23 & 24 Vict, c. 36, s. 2). Special Tnists and Powers. 134. Corporation to be trustee where corporators trustees (/. e. 1835— s. 72). 135. Appointment of members of council to be trustees in cases of joint trusts and other cases (/. e. 1835 — s. 73). *»* /. e. refers to former euactmeuts. 48 DIVISION II. Local Acts. Sect. 136. Transfer of powers of local authorities to municipal corpora- tions (/. e. 1857— ss. 2, 3). 137. Power for council to extend local lighting Act (/. e. 1835— s. 87). 138. Exercise of powers under local Acts (/. e. 1836a — s. 8). PART VII. Borough Fund: Borough Rate: County Rate. Borough Fiincl. 139. Payments to borough fund (/. e. 1835— s. 92). 140. Application of borough fund (/. e. 1835— s. 59—92; 1878— s. 30). 141. Orders for payment of money (/. e. 1835 — s. 59 ; 1837— s. 44). 142. Payments to and by treasurer. 143. Application of surj^lus of borough fund (/. e. 1835 — s. 92; 1860 — s. 12). Borough Rate. 144. Power for council to make borough rate and assess contribution thereto (/. e. 1835— s. 92 ; 55 Geo. 3, c. 51). 145. Collection of borough rate in undiAdded parish (/. e. 1837a). 146. Collection of borough rate in divided parish (/. e. 12 & 13 Vict. c. 65, s. 2 ; 13 & 14 Vict. c. 101, s. 10 ; 39 & 40 Vict. c. 61, s. 7; 42 & 43 Vict. c. 54, s. 17). 147. Rating of owners instead of occupiers for borough rate in cer- tain cases. 148. Warrants for levy of borough rate (/. c. 1836 — s. 5). 149. Borough rate to go to borough fund; and its application (/. e, 1835— s. 92). County Bate. 150. General exemption of quarter sessions boroughs from county rate (/. e. 1835— s. 112). 151. Liability of quarter sessions borough for prosecution expenses of county (/. c. 1835— s. 114). 152. Liability of certain quarter sessions boroughs to other county expenses (/. c. 1835— s. 117 ; 1853— s. 5 ; 42 & 43 Vict. c. 30, s. 5). 153. Mode of accounting by borough to county (/. e. 1835 — s. 117 ; 15 & 16 Vict. c. 81, s. 38; 5 Geo. 4, c. 85, s. 2). *** /• ^- refers to former euactinents. ARRANGEMENT OF SECTIONS. 49 PART VIII. Administration of Justice. County Justices. Sect. 154. Jurisdiction of county justices in borough (/. e. 1835 — 3, 111). Borough Jtistices. 155. Mayor and last Mayor to be borough justices (/. e. 1835 — s. 57; 1861— s. 2). 156. Separate commission of peace (/. e. 1835— s. 98). 157. Qualification of borough justice (/. e. 1835 — ss. 98, 101, 104 ; 1836a— s. 3 ; 1861— s. 3 ; and see 31 & 32 Vict. c. 72, s. 6, and 34 & 35 Vict. c. 48, s. 2). 158. Jurisdiction of borough justices (/. e. 1835 — ss. 101, 128; 1837— s. 31 ; 185()b— s. 9). 159. Clerk to borough justices (/. e. 1835— s. 102 ; 1861—3. 5). 160. Justices room (/. e. 1835— s. 100.) Stipendiary Magistrate. 161. Appointment of stipendiary magistrate (/. c. 1835 — s. 99). Borough Quarter Sessions; Recorder; Clerk of the Peace. 162. Grant of separate court of ij^uarter sessions (/. e. 1835 — ss. 103 112). 163. The recorder (/. e. 1835— ss. 103, 104; 1836a— s. 3 ; and see 34 & 35 Vict. c. 48, s. 2). 164. The clerk of the peace (/. e. 1835— ss. 103, 124). 165. Recorder to hold court of quarter sessions (/. e. 1835 — s. 105 ; 1836a— s. 8). 166. Power to appoint deputy recorder (/. e. 1843 — s. 8). 167. Powers of Mayor in absence of recorder and deputy recorder (/. e. 1835— s. 106). 168. Power for recorder to form a second court (7 Will. 4 & 1 Vict. c. 19, ss. 1, 2, 3 ; 40 & 41 Vict. c. 17, ss. 1, 2). 169. Liability of borough having qutu'ter sessions for prosecutors' expenses (/. e. 1835 — s. 113). Sheriff. 170. Appointment of sheriff in counties of cities and counties of towns (/. e. 1835— s. 61 ; 1836a— s. 5), *** /• *''• r*-"fei's to former enactments. £ 50 DIVISION II. Coroner. Sect. 171. Appointment, fees, &c., of borough coroner in boroughs having separate quarter sessions (/. e. 1835 — s. 62 ; see also 7 Will. 4 & 1 Vict. c. 68, s. 3). 172. Power of borough coroner to appoint a deputy (/. e. 1836a — s.6). 173. Eeturns by borough coroners (/. e. 1835 — s. 63).' 174. Acting of county coroner in borough (/. e. 1835 — s. 64). Borough Civil Court. 175. Judge of borough civil court where there is a recorder ( /. «. 1835— s. 118; 1836a— s. 9; 1837— ss. 32, 33 ; 1869). 176. Judge of borough civil court where there is no recorder (/. e. 1835— s. 118). 177. Tenure of judge (/. e. 1835— s. 118). 178. Registrar and other officers and fees (/. e. 1835 — ss. 119, 124). 179. Solicitors (/. e. 1835— s. 119). 180. Time of holding court (/. e. 1836a— s. 9 ; 1839— s. 2). 181. Procedure (/. e. 1839— s. 3). 182. Power for judge to make rules of jirocedure (/. e. 1835 — s. 118; 1836a— s. 9 ; 1839— ss. 1, 3). " 183. Jurisdiction of court (/. e. 1835— s. 118). 184. Saving for borough civil courts and for 35 & 36 Vict. c. 86. 185. Power to extend jurisdiction of borough civil coiu't (/. e. 1837 — s. 35). Borough Juries. 186. Provisions as to juries in boroughs (/. e. 1835 — s. 121 ; 1837 — s. 36). Exceptional Provisions. 187. Grants to boroughs not affected by subsequent grants to counties (/. e. 2 & 3 P. & M. c. 18). 188. Trial of offences committed in counties of cities and counties of to^vns (/. e. 1835— s. 109). 189. Jurisdiction in places separated from borough (/. c. 1837 — s. 30). PART IX. Police. Watch Committee; ConstaUes. 190. Council to appoint watch committee (/. e. 1835 — s. 76). 191. Appointment, duties and powers of borough constables (/. e. 1835— ss. 76, 77). ^^^ /. e. refers to former enactments. ARRANGEMENT 01-' .SECTIONS. 5 J Sect. 192. Quarterly returns as to borough constables (/. e. 1835— s. 86 ; 21 & 22 Vict. c. 67). 193. Power for constables to apprehend disorderly persons, &c. (/. e. 1835— s. 78). 194. Penalties on constables for neglect of duty (/. e. 1835 — s. 80). 195. Penalty for assaults on constables (/. c. 1835 — s. 81). Special Constables. 196. Appointment of special constables (/. e. 1835 — s. 83 , 31 & 32 Vict. c. 72, s. 12 ; see 17 & 18 Vict. c. 102, s. 8 ; 1 & 2 Will. 4, c. 41). Watch Rate, 197. Levy of watch rate (/. e. 1835— s. 92 ; 1839a— 22 & 23 Vict. c. 32, s. 6 ; 1840). 198. Watch rate in divided parish (/. e. 1845 — ss. 2-7). 199. Warrant for lev}' of watch rate (/. e. 1836 — s. 5). 200. Watch rate to go to borough fund (/. c. 1835— s. 92^. PART X. Freemen. 201. Definition of freeman. 202. Freedom not by gift or purchase (/. e. 1835 — s. 3). 203. The freemen's roll (/. e. 1835— s. 5). 204. Admission to freedom (/. e. 1835— s. 5 ; 1837— s. 27). 205. Reservation of rights of property to freemen and others (/. «. 1835— ss. 2, 3). 206. Limit of value and ^saving as to conditions precedent (/. e. 1835— s. 2). 207. Saving for power to question right (/. e. 1835 — s. 2). 208. Reservation of beneiicial exemptions to freemen and others (/. e. 1835— s. 2 ; 1836— s. 9). 209. Reservation of parliamentary franchise, &c. (/. c. 1835 — s. 4; 1 & 2 Vict. c. 35). PART XI. Grant of Charters. 210. Power to Crown in granting charter to borough to extend to it the provisions of the Municipal Corporations Acts ( f. c. 1877— s. 3). *^* /. c. refers to former enactments. K 3 52 DIVISION 11. Sect. 211. Keference to Committee of Council, and notice of petition for charter (/. e. 1877— s. 4). 212. Power by charter to settle wards, and by fixing dates and other- wise to adapt the Municipal Corporations Acts to first con- stitution of new borough (/. c. 1877 — s. 5). 213. Scheme for continuance or abolition of and adjustment of riglits of existing local authority and ofiicers (/. e. 1877 — s. 6). 214. Supplemental provisions as to scheme and charter (/. e. 1877 — s. 7 ; 24 & 25 Vict. c. 47, s. 2). 215. Provision as to police force in new borough (/. e. 1877 — s. 8). 216. Validity of charters (/. e. 1811— s. 9). 217. Power to settle scheme in case of recent charters (/. e. 1877 — 8. 13). 218. Power to amend scheme. PART XII. Legal Proceedings. 219. Prosecution of offences and recovery of fines (/. e. 1835 — ss. 127-131). 220. Exclusion ol certiorari (/. e. 1835— s. 132). 221. Application of penalties in quarter sessions boroughs (/. e. 1835— s. 126). 222. Duties. of clerk of peace as to fines and forfeitures (/. e. 1857 — s. 5). 223. Service of summons or warrant (/. e. 1835 — s. 101). 224. Procedure in penal actions against corporate officers (/. e. 1835 — s. 53). 225. Quo warranto and mandamus {f. e. 1837 — s. 23; 1843 — ss. 1, 5). 226. Provisions for protection of persons acting under Act (/. e. 1835— s. 133). 227. Power for borough constables to take bail (/. e. 1835 — s. 79). PART XIII. General. Boundaries. 228. Boundaries of boroughs and transfer of parts to counties (/. e. 1835— ss. 7, 8 ; 1836b— ss, 1, 2, 5 ; 1837— s. 41). 229. Adjustment between boroughs and counties on change of boundaries (/. e. 1835— s. 8 ; 1836b— s. 1). *^* /. e. refers to former enactments. AKKANGEMENT OF SECTIONS. Time. Sect. 230. Computation of time (/. c. 3 & 4 Will. 4, c. 31 ; 1835— s. 30 ; 1837 -s. 25; 1872— s. 25; 1875— s. 11). V Distance. 231. Measurement of distances (/. e. 1869a— s. 1 ; 6 & 7 Vict. c. 18, s. 76). Notices. 232. Notices on town hall. Inspection and Copies. 233. Inspection of documents (/. c. 1835 — ss. 5, 15, 69, 93; 1837 — s. 22; see 12 Geo. 3, c. 21, s. 2; 32 Geo. 3, c. 58, s. 4). l^ees. 234. Tables of fees to he posted (/. c. 1835— s. 125). Seals and Sir/natures. 235. Forgery (/. e. 1873— s. 4). Applications to Treasury. 236. Notice of application to and correspondence 'vvitli Treasury (/. e. 1835— s. 94; 1860— ss. 8, 9). Deputy. 237. Acts of deputy not to be invalidated by defect in appointment. Overseers. 238. Notices to and acting of overseers (/. e. 1853 — s. 14). Declarations and Oaths. 239. Power to administer oaths, &c. (/. c. 1835— s. 104; 1836a — s. 3). Forms. 240. Forms in schedule (/. e. 1835— s. 142). Misnomer or Inaccurate Description. 241. Misnomer or inaccurate description not to hinder (/. e. 1835 — s. 142). *** /• ^' i»ifers to former enactments. 54 DIVISION II. SuhstittUion informer Acts. Sect. 242. Provision for references in unrepealed enactments to 5 & 6 Will. 4, c. 76; &c. 243. Short titles of Acts partly repealed. Returning Officers at Parliamentary Elections. 244. Mayor of certain boroughs to be returning officer in parlia- mentary elections (/. e. 1835 — s. 57). Disfranchised Parliamentary Boroughs. 245. Electors in disfranchised boroughs (/. e. 31 & 32 Vict. c. 41). Licensing. 246. Explanation of terms " town corporate," &c., in Licensing Act (/. e. 1861— s. 4). Freedom of Trading. 247. Right of free trading in boroughs (/. e, 1835 — s. 14). Cing^ue Ports. 248. SjDecial provisions as to certain of the Cinque Ports (/. e. 1835 — ss. 134, 135; 1836a— ss. 10, 11). Cambridge. 249. Vice-Chancellor of Cambridge (/. e. 1836a— s. 12). Savings. 250. SaAang for existing corporations. 251. Saving for local Acts (/. e. 1836b— s. 4). 252. Saving for Prison Acts. 253. Saving for military and naval officers, &c. (/. e. 1835 — s. 51). 254. Saving for dockyards, barracks, &c. (/. e. 1835 — s. 89). 255. Saving as to Admiralty (/. e. 1835— ss. 64, 89; 2 & 3 Will. 4, c. 40). 256. Saving for Lord Warden (/. e. 1835— s. 108). 257. Saving for universities (/. e. 1835— ss. 137, 138; 1839a— s. 2 ; 1857— s. 2; 1861— s. 2). 258. Saying for jurisdiction over cathedral precincts (/. e. 1835 — s. 138). 259. Saving for royal prerogative (/. e. 1877— s. 10). .260. Saving as to repealed enactments. *** /• ''• I'efers to former enactments. SCHEDULES. THE FIRST SCHEDULE. Enactments Repealed. Part I. — Enactments repealed generally. Part II. — Enactments repealed only as to Boroughs within this Act. THE SECOND SCHEDULE. Meetings and Proceedings of Council. (/. c. 1835— s. 69; 1873— s. 3). THE THIRD SCHEDULE. Elections. Part 1. — Preparation and Revision of Parish Burgess Lists in Boroughs not Parliamentary (/. e. 1835 — ss. 15 — 19, 44 ; 1857 — s. 7). Part II. — Rxdes as to Nomination in Elections of Councillors (/. e. 1875— ss. 1, 27; 1878— s. 34). Part III. — Modifications of the Ballot Act in its Application to Municipal Elections (/. e. 35 & 36 Vict. c. 33, s. 20; 1875— ss. 3, 4). Part IV. — Enactments which are to revive on the Expiration of the Bcdlot Act (/. e. 1835— ss. 32-35). THE FOURTH SCHEDULE. Fees and Remuneration, (/. c. 1835— ss. 62, 83; 7 Will. 4 & 1 Vict. c. 19, s. 2; 1859— s. 3). *** /• <■'• refers to former enactments. 56 fcCHEDULES. THE FIFTH SCHEDULE. Payments out of the Borough Fund Part I. — Payments which may be made u-ithout Order (/. e. 1835 — s. 92; 1836a— s. 9; 7 Will. 4 & 1 Vict. c. 19, s. 2; 1872— s. 22). Part II. — Payments which may not he made loithout Order (/. e. 1835 — ss. 24, 62, 82, 83, 92, 100, 113, 114; 1850— s. 3; 1872— s. 20; 55 Geo. 3, c. 51, ss. 9, 16). THE SIXTH SCHEDULE. Counties to which certain Boroughs are to be considered adjoining for Purposes of Criminal Trials. (/. e. 1835— s. 109). THE SEVENTH SCHEDULE. Procedure for Scheme on Grant of New Charter. (/. e. 1877). THE EIGHTH SCHEDULE. Forms. Part I. — Declarations on accepting Office (/. e. 1835 — ss. 50, 104). Part II. — Forms relating to Elections (/. e. 1835 — ss. 15, 17 ; 1875— ss. 1, 6). Part III. — Forms relating to Working Men's Dwellings (f. e. 1874). Part IV. — Forms relating to Borough Bridges (/. e. 1850a — s. 3). THE NINTH SCHEDULE. Enactment in which a Pveference to this Act is to be substituted. Part I. — General References. Part II. — Particular References. *** /• <^- I'tjfers to former enactments. MUNICIPAL CORPORATIONS ACT, 1882. 45 & 46 Vict. Cap 50. A7i Act for consolidatinij, with Amendments , enactments relating to Municipal Corporations in England and Wales. [18th August, 1882.] WHEREAS divers bodies corporate at sundry times have been constituted in the cities, towns, and boroughs of England and Wales to the intent that the same might for ever be and remain well and quietly governed (a) : (a) The preamble should be carefully noted. The preamble has been said to be a good means to find out the meaning of a statute, and, as it were, a key to the understanding of it. (See " Maxwell on the Interpretation of Statutes," p. 35.) The meaning of several of the enactments of this Act may be open to doubt, and in such cases the preamble should be consulted. The main object of the Act is to consolidate the existing provisions of former statutes. It will be necessary, therefore, in cases of ambiguity to consult such statutes. A review of tlie whole Act makes it evident that the intention of the legislature was to place a large number of matters recpiired for the good government of a borough under the control of a local representative body — the Town Council — and to give them a status, staff, and the command of necessary funds. The statute should, therefore, receive such an interpretation as will secure the contemplated ends. And whereas the Act of the session of the fifth and sixth years of the reign of King William the Fourth, chapter seventy-six, '' to provide for the regulation of Municipal Corporations in England and Wales," applies to most of those bodies constituted before the passing of that Act, and to every of those bodies constituted after the passing of that Act ; and that Act having been from time to time much altered and added to by other Acts, it is expedient tliat all the Acts aforesaid be reduced into one Act with some amendments [b) : (b) This Act has been regarded as the Magna Charta of municipal government. The manifest spirit of trust in local administration which pervades it has met with a worthy response from our corporate towns, where a strong public feelin;^' has been awakened, and has manifested itself in the advamement of every work having for its object the improvement of the locality and the comfort of the 58 MUNICIPAL CORPORATIONS. Note. Short title Division of Act into parts. Extent. Commence- ment. Repeals. inhabitants or the amelioration of tlieir condition. It is earnestly liui>ed that those upon whom rest, in the last resort, the interpre- tation of the present Act will give encouragement, by a liberal view of the powers it confers, to those bodies Avho are honestly and wisely endeavouring to sustain the burden of local self-government. Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal^ and Commons, in this present parliament assembled, and by the authority of the same, as follows : PART I. Preliminary. 1. — This Act may be cited as the Municipal Corpora- tions Act, 1882. 2. — This Act is divided into parts, as follows : Part 1. — Preliminaiy. Part II. — Constitution and government of borough. Part III. — Preparations for and procedure at elections. Part IV. — Corrupt practices and election petitions. Part V. — Corporate property and liabilities. Part VI. — Charitable and other trusts and powers. Part VII. — Borough fund : borough rate : county rate. Part VIII. — Administration of justice. Part IX.— Police. Part X. — Freemen. Part XI. — Grant of charters. Part XII. — Legal proceedings. Part XIII. — General. 3. — This Act shall not extend to Scotland or Ireland. 4. — This Act shall commence and have effect from and immediately after the thirty-first of December, one thousand eight hundred and eighty-two. 5. — The enactments described in the first schedule are hereby repealed, subject to the exceptions and qualifica- tions in this Act mentioned. 45 & 4G VICT. r. 50. ' 59 Q. — This Act sliall appV to every city and town to which Sect. 6. the Municipal Corporations Act, 1835, applies at tiic com- Application. mcnccmcnt of this Act, and to any town, district, or place whereof the inhabitants are incorporated after the com- mencement of this Act, and whereto the provisions of the Municipal Corporations Acts are under this Act extended by charter, but to no other place. 7. — (1-) 111 this Act — Interpreta- tion and con- " Borough " means, unless a contrary intention appears, ^'°" ''I a city or town to which this Act applies " Municipal corporation " means the body corporate constituted by the incorporation of the inhabitants of a borough : " Municipal Corporations Act, 1835 " means the recited Act of King William the Fourth, the date of the passing ■whereof is the ninth of September, one thousand eight hundred and thirty-five : " ]\Iunicipal Corporations Acts " means this Act and any Act to be passed amending this Act : " Burgess ^' includas citizen : '^ Corporate seal '' means the common seal of a muni- cipal corporation : " Corporate office " means the office of mayor, alderman, councillor, elective auditor, or revising assessor : '' Corporate land " means land belonging to or held in trust for a municipal corporation : '' Municipal election '' means an election to a corporate office : " Parliamentary borough " means any borough, city^ county of a city, county of a town, place, or combination of places, returning a member to serve in Parliament, and not being a county at large, or a riding, parts or division of a county at large : " Parliamentary election " means an election of a member to serve in Parliament : " Parish " means any place for which a separate poor rate is or can be made : " Overseers " means overseers of the poor of a parish, tion. 60 MUNICIPAL CORPOEATIONS. Sect. 7. township, or place, and includes all persons who execute the duties of overseers : '' County " does not include a county of a city or county of a town, but includes a riding, parts, division, or liberty of a county. ^' Trustees " means trustees, commissioners, or directors, or the persons charged with the execution of a trust or public duty, however designated : ''Person^' includes a body of persons corporate or un- incorporate : " Treasury " means the commissioners of Her Majesty's Treasury. " The Secretary of State " means one of Her Majesty's principal secretaries of State : "^ High Court " means Her Majesty's High Court of Justice : " Justice '' means one of Her Majesty's justices of the peace : " Borough civil court " means an inferior court of record for the trial of civil actions which by charter, custom, or otherwise is or ought to be holden in a borough, but does not include a county court : " Bank of England " means the governor and company of the Bank of England : " Schedule " means schedule to this Act, and " part " means part of this Act. " Writing " includes print, and " written " includes printed. (2.) Words in this Act referring to a borough, muni- cipal corporation, authority, officer, or office, shall be construed distributively as referring to each borough, corporation, authority, officer, or office to which or to whom the provision is applicable. (3.) Words in this Act referring to a parish shall be construed, unless a contrary intention appears, as referring to every parish situate wholly or in part in a borough. (4.) The schedules shall be read and have effect as if they were part of this Act. 45 & 46 VICT. c. 50. 61 Sect. 8. PART II. — Constitution and Government of Borough. Corporate Names. 8 — The mimicipal corporation of a borougli shall bear Name of ,, ,, „, municipal the name of the mayor, aldermen, and burgesses ot the corporation, borough, or, in the case of a city, the mayor, aldermen, and citizens of the city. Burgesses. 9. — (1.) A person shall not be deemed a burgess for Qualification any purpose of this Act unless he is enrolled as a burgess. "'"g^^^- (2.) A person shall not be entitled to be enrolled as a burgess unless he is qualified as follows : (rt.) Is of full age ; and {b.) Is on the fifteenth of July in any year, and has been during the whole of the then last preceding twelve months, in occupation, joint or several {a), of any house, warehouse, counting-house, shop, or other building [b) (in this Act referred to as quahfying property) in the borough ; and (c.) Has during the Avholc of those twelve months resided in the borough, or within seven miles thereof (c) ; and {(l.) Has been rated {d) in respect of the qualifjang pro- perty to all poor rates made during those twelve months for the parish wherein the property is situate (e) ; and (e.) Has on or before the twentieth of the same July paid all such rates, including borough rates (if any), as have become payable by him in respect of the qualifying property (/) up to the then last preceding fifth of January. (3.) Every person so qualified shall be entitled to be enrolled as a burgess, unless he — (a.) Is an alien {(j) ; or 62 MUNICIPAL CORPOKATIONS. Sect. 9. (5.) Has within the twelve months aforesaid received union (h) or parochial relief or other alms (?) ; or (c.) Is disentitled under any Act of Parliament (k). (a) The words "joint or several" are new, but are introduced in accordance with the decision in Beg. v. Mayor of Exeter, L. K. 4 Q. B. 114. They clear wp any doubt that may have existed. (b) For an extended description of the words " house, warehouse, counting-house, shop, or other building," see sect. 31. (c) This distance is to be measured as the crow flies, and may be determined by the Ordnance Survey (see sect. 231). The resi- dence need not be an occupation as O'wuer or tenant — an actual residence is sufficient (see Beal v. Ford, L. K. 3 C, P. D. 73). (d) A claim by an occupier to be rated, and payment or tender of the amount due for poor rate, is sufficient to entitle a person to be deemed to be rated (see sect. 32). (e) It appears that the claimant may be in arrears "with rates not due in respect of the qualifying property without invalidating his claim. This does not seem a wise j^rovision. It gives every one concerned in securing the correctness of the burgess roll considerable trouble ; and the fact that a man has not paid the rates due from him, in respect of any portion of the borough, should disqualify. (/) See Poor Rate Assessment and Collection Act,1879,inAppendix. ( (/) A certificate of naturalization may be granted to an alien who has been resident in the United Kingdom for a term of not less than five years, and who complies with the other conditions mentioned in section 7 of the Naturalization Act, 1870 (33 & 34 Vict. c. 14). Such certificate entitles an alien to all political and other rights of a natural- born British subject. Section 2 of the above Act, which enables an alien to acquire real and personal propertj^, provides that such section shall not qualify an alien for any office or for any municipal fi'an- chise. In the case of MacLaren v. Milne Home, 44 L. T. R. (n.s.) 289, the vote was objected to on the ground that the voter was an alien. The voter was on the register, but it was proved that he was an alien. It was argued that an alien was prohibited from voting by statute or by the common law of parliament. It was replied that an alien was incapacitated Init not prohibited, and reliance was placed upon the decision of Blackbukn, J., in the Oldham Case (1 0. M. and H. 159). Hawkins, J., said that 7 & 8 Vic. cap. 66, which gave aliens, citizens of friendly states, the right to hold land, expiessly prohibited them from voting (sect. 2). A disqualification might be regarded as a prohibition. The court reserved judgment, but ultimately intimated a reluctance to overrule the decision in the Oldham Case, and suggested that the objection should be withdra-wn, else they would deem it necessary to reserve a case for the opinion of a Common Pleas division. (h) The word " union " is new. It is introduced to meet the case of relief, where it is a charge on the common fund of the union. (i) As to medical or surgical assistance, or removal to a hospital at the cost of a local authority, or admission to a public school, see sect. 33. Parochial relief given to a man's father is not relief given to him- self. {Refj. V. Ireland, L. R. 3 Q. B. 130.) In tliat case C. J. CocK- BURN said he doubted very much indeed,' even if the father were 45 & 4G VICT. c. 50. 63 livinj:^ with the son, so as to constitute one of his immediate family, Note, relief ^'iven to the father would l)e relief to the son. Sect 9. The Poor Law Act (4 & 5 Will. 4, c. 7(5, s. TjO) enacts that all relief ^'iven to or on account of the wife or children under the age of sixteen, not being blind or deaf and dumb, shall be considered to have been given to the husband or lather of such wife or children as the case may be. Any relief givt;n to or on account of any child or children under the age of sixteen of any widow shall be considered as given to such "widow. In the case of the widow, the words " not being blind or deaf and dumb" are not repeated after children ; but there can be no doubt they should be read into the text. The Court of Queen's Bench held, in the case of Raj. v. Mayor, ttc, of Lichfield, 2 Q. B. 693, that the receipt of weekly alms from a charity fund not under the control of the overseers or tlie charitable trustees was not a disqualification within, the words of the section, and that the word parocliial must be read as applying to "relief" and also to " alms." The words parochial relief or other alms occur in the 56th section of the 2 & 3 Will. 4, c. 45. In the case of Harrison v. Carter, L. R. 2 C. P. D. 26, it was held that the word alms is not confined to parochial donations or sums distributed by the overseers other than from the funds collected for the poor rates, but may include moneys distributed annually from the income of a private charitable trust, bequeathed by an individual for the use of the poor inhabitants of a parish. The 12th section of 41 & 42 Vict. c. 26 provides that " the over- seers of every parish situate wholly or partly either in a parliamentary borough or in a munici])al borough, the whole or part of the area whereof is co-extensive with or included in the area of a parlia- mentary borough, shall ascertiiin from the relieving officer acting for that parish the names of all persons who are disqualified from being inserted in the lists of parliamentary voters or burgess lists for that parish by reason of having received parochial relief ; and the relieving othcer, upon application from the overseers, shall produce to them at such place within the parish, and at such time as is required by them, the books in liis possession containing the names of those persons." (/.;) Under the 79th section certain acts disqualify the person found guilty thereof from l)eing enrolled or voting as a burgess for a limited period of time. There is a distinction to be observed between those persons who are not entitled to be enrolled and those who are not entitled to vote. Section 9 of 19 & 20 Vict, c.wfl, provides that no constable can vote whilst he continiies to be such,' or within six months after he has ceased to l)e a constable, for the election of any person for any muni- cipal office. A person convicted of treason or felony is disqualified ; but pardoned felons may vote ; and a felon who has cmliui'd the punish- ment to which he has been adjudged can vote. There is no objection to the vote of a man in custody upon conviction for a misdemeanour. See "Rogers on Elections," 13th Ed., pp. 188 and 189; and 33 lit 34 Vict. c. 23, s. 2. As to disqualilication for a corrupt practice at a school board election, see sect. 91 of the Education Act, 1870 (33 & 34 Vict. c. 75). 64 MUNICIPAL CORPOEATIONS. Sect. 10. Constitution of council. Qualification of councillor. Council; Mayor, Aldermen, and Councillors. 10. — (1.) The municipal corporation of a borough shall be capable of acting by the council of the borough^ and the council shall exercise all powers vested in the corpora- tion by this Act or otherwise (a). (2.) The council shall consist of the mayor^ aldermen, and councillors (b). (a) It will be observed tbat tlie council are not incorporated. They are the individuals who are appointed to manage the affairs of the corporation — that is, of tlie mayor, aldermen, and burgesses or citizens as the case may be. (See Tlie Corporation of Hyde v. The Bank of England, 46 L. T, R. (x.s.) 910.) "Or otherwise," i.e., by other Acts of Parliament, or by charter, or by prescription. (6) The 22nd section provides that no act of the council shall be cjuestioned on account of any vacancy in their body. The 42nd section legalises the acts of a person in actual possession of a cor- porate office notwithstanding his disqualification. 11. — (1.) The councillors shall be fit (a) persons selected by the burgesses. (2.) A person shall not be qualified to be elected or to be a councillor, unless he — (a.) Is enrolled and entitled to be enrolled as a bur- gess (b) ; or (b.) Being entitled to be so enrolled in all respects except that of residence, is resident beyond seven miles, but within fifteen miles (c) of the borough, and is entered in the separate non-resident list directed by this Act to be made {d) ; and (c.) In either of those cases, is seized or possessed of real or personal property or both, to the value or amount, in the case of a borough having four or more wards, of one thousand pounds, or in the case of any other borough, of five hundred pounds, or is rated to the poor rate in the borough, in the case of a borough having four or more wards, on the annual value of thirty pounds, and in the case of any other borough of fifteen pounds. (3.) Provided, that every person shall be qualified to be \ 45 & 46 VICT. c. 50. f elected and to be a councillor, who is, at the time of elcc- Sect. 11. tion, qualified to elect to the office of councillor; which last-mentioned qualification for being elected shall be alternative for and shall not repeal or take away any- other qualification (e). (4.) But if a person qualified under the last foregoing proviso ceases for six months to reside in the borougb, he shall cease to be qualified under that proviso, and his office shall become vacant, unless he was at the time of his election and continues to be qualified in some other manner (/). (a) "Fit" means, in the first place, legally fit, i.e., havhv^ the legal qualifications. A felon undergoing punishment is dis([ualilie(l Ly 33 & 34 Vict. c. 23, s. 2. There is no doubt that the High Court ■ could remove from his office a person grossly unfit. For instance, a councillor who, by his persistent misbehaviour and disregard of order, caused the business of the council to come to a stand, or who con- stantly used disgusting and insulting language so as to render it impossible for the rest of the council to remain in conference with him without loss of self-respect. An habitual drunkard would probably be held to be an unfit person. It speaks volumes in praise of the persons selected by the burgesses that it does not appear to have bL'cn necessary to resort to this provision, although it was con- tained in tlie Act of 1835. A commissioned ofi^icer in the army on full pay is not capable of serving a corporate office. (See The Army Act, 1881 (44 & 45 Vict. c. 58), s. 146.) The c[uestion of the fitness of a woman to serve a corporate office has been already dealt with in the Preface. (See further on amotion from a corporate office, Chapter IX. , in the First Division of this w'ork.) (b) This sub-section must not be read distrilnitively, but de longue haleiiie. There must be not only enrolment, but a good title. (See Middkton and Others v. Simpson, 42 L. T. (n,s.) 55 ; and L. K. 5 C. P. D. 183.) (c) As to measurement of distances, see sect. 231. Id) See sect. 49. (e) A person is (qualified to elect because he is a burgess, A councillor, therefore, need not have any property or ratal quali- fication if he is on the burgess roll, and entitled to be enrolled thereon. This observation does not apply to those who are entered on the "separate non-resident list." They must be qualified by property or rating. Thu ;55th section provides that no person elected to a corporate office shall act until he has made the declaration named in the 8th schedule. This schedule contains a declaration to be made by those qualified by estate, but says nothing of the rating qualitication. Those who must qualify by estate or rating are those on the separate non-resident list, as they cannot qualify as Inirgesses. There a[)pears to be no sufficient reason for keeping alive this distinction. The inhabitants resident beyond the seven miles have been brought in on J? GQ MUNICIPAL CORPOEATIONS. Note. the ground of the large stake they ixsuany have in the prosperity of Sect. 11. the town. The decLaration, therefore, hy the elected that he will faithfully fulfil the duties of his office would have been sufficient. As it is a burgess must take the declaration that he will faithfully fulfil the duties of his office, anil need not go further. A. ^non- resident when elected must take the same declaration, and mitst go on to declare that he has a property qualification, imless, indeoA, he depends on his ratal ; and then, as in the case of a burgess, he need only declare that he will faithfully fulfil the duties of his office. (/) Under this sub-section a person would lose his qualification as a burgess by removal to the " seven-fifteen miles radius," except he was qualified by estate or ratal at the time of his election, and so continued. He would not be qualified hj estate or ratal alone without enrolment in the separate list. By section 39, continuous al)sence from the borough by an ' alderman or councillor for more than six months discjualifies. SnTfofbeTn 12.— (1.) A person shall be disqualified for being councillor. elected and for being a councillor, if and while he — (a.) Is an elective auditor or a revising assessor^ or holds any office or place of profit, other than that of mayor or sheriff, in the gift or disposal of the council ; or ' '^ {b.) Is in holy orders, or the regular minister of a dissenting congregation (a) ; or (c.) Has directly or indirectly, by himself or his partner, any share or interest in any contract or employ- ment with, by, or on behalf of the council (b) : (2.) But a person shall not be so disqualified, or be deemed to have any share or interest in such a contract or employment, by reason only of his having any share or interest in — (a.) Any lease (c), sale, or purchase of land, or any agreement for the same ; or {b.) Any agreement for the loan of money, or any security for the payment of money only ; or (c.) Any newspaper in which any advertisement relating to the affairs of the borough or council is in- serted ; or {d.) Any company which contracts with the council for lighting or supplying with water or insuring against fire any part of the borough ; or c. 89. 45 & 4G VICT. c. 50. 67 (e.) Any railway company, or any company incorpo- Sect. 12. rated by Act of Parliament or royal charter, or 25 & 26 Vict, under the Companies Act, 1862 (d). f> (\) In a consolidation act it was impossible to omit this disqualifi- cation for corporate office. It is, however, antiquated. Clergymen and ministers are often elected to act as co-optative members in those cases in whicli town councils are empowered to appoint members of committees outside their own bodies. They are generally able members of other public bodies, and might render essential service in municipal matters, if not incapable of acting by Act of Parlia- ment. Why restrict the choice of the burgesses ? {See note to the 9th schedule, 2nd part.) In the case of the Queen v. Oldham, L. R. 4 Q. B. 290, on a motion for a quo warranto information against a to\\Ti councillor of a borough, on the ground that he was disqualified as being " the regular minister of a dissenting congregation," it appeared that the defendant carried on business in the borough, and had been invited by the members of an IndL'])en(lent chapel to be their minister, which invitation lie refused, but he subsequently agreed to |)reach for them every Sunday for six months. It was held that the defendant was not " the regular minister of a dissenting congregation " within sect. 28 of the Act of 1^35, and was, therefore, not disqualified as town councillor. j^ (l() Under the corresponding section of a repealed .statute it was held that an alderman of a borough who sold iron to the party who had contracted to supply the corporation with iron railings, and who purchased the iron from him for the purpose of performing the con- tract, had not an interest in such a contract as to make him liable to the prescribed ])enalty. Coleridge, J., said : There is no attempt to show fraud or any pre- \aous concert Vtetween the alderman and the contractor by which the alderman might have the benefit of the contractoi"'s custom. It is said that it is within the mischief of the Act, for that the alderman might have to decide on the ([uality of his own goods. Even if the case be brought within the mischief, it is not witliin the words of the enactment, and we must not strain the penal enactment so as to bring the case within it ; but many instances might be ])ut in which kindred and affection and otlier things, clearly not within the Act, might bias the miml to a greater degree, and be as much within the mischief as this. {Lefeuvre v. Lancanter, 3 E. & B. 530.) The case of Fletcher v. Hudson, L. R. 7 Q. B. D. (ill ; and 46 L. T. R. (n.s.) 125, turned xq>on tlic construction to be placed upon similar words contained in the Public Health Act, 1875. In that case the defendant was a member of a local board. Whilst a member he did team work for the local board, at the request of the surveyor to the board, amounting to trilling sums. Bramwell, L. J., dis.sented from the judgment of the court, whicli was that the defendant had been concerned in a contract by the board, and had thereupon ceased to be a member of the board, and was liable to the prescribed penalty if he afterwards acted. In the case of Lewix v. Carr, 36 L. T. R. (n.s.) 44 ; L. R. 1 Ex. D. 484, which turned upun the construction to be placed upon the cor- responding section of the repealed statute, the facts were as follows :^ f2 68 MUNICIPAL CORPORATIONS. a burgess and an alderman of tlie borough of between tlie 19tli of June and the were supplied from the defendant's Note. The defendant was Sect. 12./ Macclesfiekl. j , Oil six different occasions, 31st December, 1874, goods -il- shop to the town council, according to the orders of the council, and they paid for the goods. the defendant subsequently, on the 19th of June, 1875, and after- wards, acted hve times as an alderman of the borough. The plaintiff sued the defendant to recover the penalties under sect. 5.3 of the Municipal Corporations Act for his ha\dng so acted. Held (affirming the decision of the Exchequer Division below), that defendant, under sect. 28, was disqualified from being an alder- man of the borough only so long as his interest in the contract with the council continued, and he did not cease to be qualified, or become disqualified, after that interest had determined, and, therefore, that he was not liable. {See also Reg. v. Francis, 18 Q. B. 526; 21 L. J. (n.s.) C. L. 304, referred to in note to sect. 225.) Nicholson v. Fields, 21 L. J. Ex. 233, was a case which timied on the construction to Ije placed upon a clause in the Commissioners Act, 1847 (10 & 11 Vict. c. 16, s. 9), by which a commissioner who should be concerned or participate in any manner in any contract with the board should thenceforth cease to be a commissioner. In that case Pollock, C. B,, said, in eftect, that, when you look at the facts of this case, there are several invoices showing a dealing which went over several months. The items are trifling ; but that has nothing to do with the question. It is clear it was intended that all and every description of jobbing should be put an end to as far as legislation could do it, and that persons who were parties to any contract should be incapable of exercising the office of commis- sioners — in other words, from dealing with themselves. It was urged in a subsequent case, Fletcher v. Hudson, L. R. 7 Q. B. D. 61L that Levns v. Carr must be considered to have over- ruled Nicholson v. Fields. lu view, however, of the enormous influence which corp(n-ations who have gasworks, waterworks, sewage farms, tramways, and other undertakings under their control, besides the large works to be carried out for the public health, it is most important that the members of a council should be above suspicion. They should have no interest to bias their judgments in deciding what is for the public good. The leaning of the courts seems to be to a strict interpretation of this sul)-section. It is clear that members of a town council should be advised to keep themselves absolutely free from, the jwssibility of any imputation in this respect. The first essential of good local self-government is purity of administration, and to attain that object the courts Avill give full effect to this sub-section. The case of Lefeuvre v. Lancaster cannot be relied upon, where there has been the slightest, attempt on the part of a member of a council to influence its decision in favour of a particular contractor to whom it had been arranged beforehand that such member should supply the materials for carrying out the contract. Even in a case on all fours with that of Lefeuvre v. Lancaster it would be unwise for a member of a council to take any part whatever in any discussion relating to the pai'ticular contract. (c) By the Public Health Act, 1875, rule 64 of sched. 2, any member in any manner concerned in any bargain or contract entered into by the board vacates his seat. There is a proviso that no inember shall so vacate his seat bv reason of his being interested in 45 & 46 VICT. c. 50. G'J the sale or lease of any lauds, N. was elected a lueniber of the Note, hoard. He was at that time lessee of certain lands of the board used SfcCt. 12. as a sewage farm. Hdd, that N. was not dis(iualified. Re(]. y.^as- carth, 42 L. T. (n.s.) 088; 49 L. ,J. Q. 15. 509 ; L. R. 5 Q. B. U. 321. {(1) By tlie Companies Act, 1SG7, :i() & :3I Vict. c. 131, s. 2, it is provided that : — "The Comjianies Act, 1862, is hereinafter referred to as ' the prin- cipal Act,' and tlie priuripal Act and this Act are liereinafter distin- guished as and may be cited for all purposes as ' The Companies Acts, 1862 and 1867,' and this Act shall, so far as is consistent witli tlie tenour thereof, Ije construed as one with the principal Act and the expression 'this Act' in tlie princi[)al Act, and any expression refer- ring to the principal Act which occurs in any Act or other document shall be construed to mean the principal Act as amended by this Act." By the Companies Act, 1877, 40 & 41 Vict, c 26, s. 2, it is pro- vided that : — "This Act shall, so far as is consistent witli the tenour thereof, be construed as one with the Companies Acts, 1862 and 1867, and the said Acts and this Act may be referred to as ' The Companies Acts, 1862, 1867, and 1877.'" By the Companies Act, 1879, 42 & 43 Vict. c. 76, s. 3, it is pro- vided that : — " This Act shall, so far as is consistent with the tenour thereof, be construed as one with the Companies Acts, 1862, 1867, and 1877, and those Acts, together with this Act, may be referred to as the Com- panies Acts, 1862 to 1879." 13— (1.) The term of office of a councillor shall be J,^;;^";^^^ three years. of councillors (2.) On the ordinary day of election of councillors in every year [a) one third of the whole number of councillors for the borough or for the ward, as tlie case may be, shall go out of office, and their places shall be filled by election. (3.) The third to go out sliall be the councillors who have been longest in office without re-election {b) . {a) The ordinary day of election is the first of November, sect. 52. If that falls on a Sunday, &c., nee, sect. 230. One-third only go out annually. Each councillor can be changed every third year. The power of removing representatives thus vested in tiie burgesses is amply suthcient to secure to them as much prac- tical control in the council as is compatible with the stability of local self-government. It must be remembered that a council is not only a legislative body, but mainly administrative. To change the administration abruptly would throw power into the hands of the permanent olHcial executive, and tend to weaken the grasp of the council over the details of the administration. Constant changes of policy would lessen the contidence felt in the character of the council, and would materially affect its iutluence and repute. As a legislative body the council is extremely sensitive to public opinion, and there is the constant ])ressure of such opinion when men live among their constituents. There appears to be no danger of councils overriding 70 MUNICIPAL COEPOBATiOKS. Note. public opinion. On the contrar}", there is reason to fear that they are Sect. 13 at times too much influenced by the clamour of small sections pre- tending to speak in the name of the whole community. The real jHiblic opinion of a town is sure to be reflected in the council, and to prevail in its deliberations. (b) This means those who have been longest in ofl&ce without re-election, and without reference to casual vacancies under sect. 40. For instance, if A. B. and C. had been elected councillors for the ward D. in the order named, A. would be the longest in office without re-election, and would go out of office before B. and C. If, however, there has been a casual vacancy during the last year of A's tenure of office, and E. is elected in his place, then B. would be the longest in office without re-election. He would not, however, go out of office until his turn came, as E. would retire at the expiration of the time for which A. was elected. (See sect. 40). Number, term "j.^ — H ) rjy^Q aldermen shall be fit persons elected of ofRce, and . rotation of by the council. aldermen. (2.) The number of aldermen shall be one-third of the number of councillors. (3.) A person shall not be qualified to be elected or to be an alderman unless he is a councillor or qualified to be a councillor. (4.) If a councillor is elected to, and accepts, the office of alderman he vacates his office of councillor. (5.) The term of office of an alderman shall be six years. (6.) On the ordinary day of election {a) of aldermen in every third year one half of the whole number of aldermen shall go out of office, and their places shall be filled by election. (7.) The half to go out shall be those who have been aldermen for the longest time without re-election {b) . (a) The term of office of an alderman is twice that of a councillor. The aldermen are generally elected from among those councillors who have served for many years, or who have been made justices of the peace for the borough. Occasionally a gentleman, not a member of the council, whose services are considered of special value in some department, has been otl'ered the office. There is no doubt that the aldermen have j^layed a most important part in sustaining the dignity and importance of town councils. As u rule, they are men of great experience in local afiaii's, and as they have a jjosition inde- pendent of the passing passion of the hour, they are able to main- tain and carry on local self-government until the popular mind has been enlightened, and a just appreciation of a measure has been established. The suggestion made in some quarters that aldermen should be elected like councillors would detract from the usefulness 45 & 46 VICT. r. 50. "^ of councils. The alileniieii, liowevcr, .should Ijc elected by the cuniu- Note, lative vote of the councillors. A bill to .secure tlii.s desirable end was Sect. 14. brought into the House of Commons a few year.s since, but was with- drawn. The cumulative vote would bring about a true reflection of the councillors amongst the aldermen. (b) See note (b), suirru. 1 5 ._ (1 .) The mayor shall be a fit person elected by the Qualification, .. n J 'i^ -11 term ot office, couneu ironi among the aldermen or couneillors or persons salary, pre- (lualificd to be such (a) . ~~^ ^^^1*^"'='= '-f^ ,^ \ . _^ ' . ,. .1 , powers of (2.) An outgofng alderman is eligible, mayor. ('5.) The term of office of the mayor shall be one year, but he shall continue in office until his sucessor has accepted office and made and subscribed the required declaration [h] . (4.) He may receive such remuneration as the council think reasonable, (5.) He sliallj subject to the provisions of this Act respecting justices, have precedence in all places in the borough (c). (6.) The mayor of a borough named in the schedules to the Municipal Corporations Act, 1835, shall be capable in law to do and suft'er all acts which the chief officer of the borough might at the passing of that Act lawfully do or suft'er, as far as the same were not altered or annulled by that Act, or liave not been altered or annulled by any subsequent Act. (a) " Or qualified to be such." These words are new, and extend the choice of the council to the same class of persons as those ■svho may be elected aldermen. (.S'ce Preface, where this addition is commented upon.) {b) Section 35 prescribes the declaration. The mayor must also take the oaths and make the declaration prescribed for j ustices before acting as a justice. {See sect. 157). ((.•) See sect. 155. 16. — (1.) The mayor may from time to time appoint an Power of alderman or councillor to act as deputy mayor during the pomrdeputy'. illness or absence of the mayor («). (2.) The appointment shall be signified to the council in writing and be recorded in their minutes {b). (3.) A deputy mayor may, while acting as such, do all acts which the mayor as such might do, except that he 72 MUNICIPAL COEPOEATIONS. Sect. 16. shall not take the chair at a meeting of the council unless specially appointed by the meeting to do so (c), and shall not, unless he is a justice, act as a justice or in any judicial capacity. («) By sect. 2.37 no defect in the appointment of a dei)uty invali- dates his acts. An election as alderman was held to be void, on the gronnd that the respondent being interested in the result of +he election as a can- didate, was incapacitated from presiding and acting as returning officer. {Fanagan v. Kernan, 8 L. E. Jr. 44.) (Ij) No time is mentioned for this, but it should be done at the earliest time practicable. (c) This is an alteration of the law. In the absence of the ma^^or, the council were obliged to chose an alderman if any were present, to preside at their meetings. If the deputy mayor, therefore, was not an alderman, and there was an alderman present, the council could not put the deputy mayor in the chair. This is now wisely amended. Officers of Council. The town lY, — (1.) The council shall from time to time appoint deputy' "^ a fit person, not a member of the council, to be the town clerk of the borough (a). (2.) The town clerk shall hold office during the pleasure of the council. (3.) He shall have the charge and custody of, and be responsible for, the charters, deeds, records, and documents of the borough, and they shall be kept as the council direct {b) . (4.) A vacancy in the office shall be filled within twenty- one days after its occurrence. (5.) In case of the illness or absence of the town clerk, the council may appoint a deputy town clerk, to hold office during their pleasure (c). (6.) All things required or authorized by law to be done by or to the town clerk may be done by or to the deputy town clerk [d). (a) The words used in former enactments, enabling an attorney to be appointed a town clerk, have been omitted as unnecessary. The town clerk should be appointed under seal. See Chapter II. of the 1st division of this work. And it has been held that where a town clerk had been appointed by a resolution of the council, but before any steps were taken to 45 & 46 VICT. c. 50. 73 invest him in tlie office, sucli vesolution was July rescinded by another Note, at an adjourned meeting of the council ; this was a sufficient removal Sect. 17. of him from the office. (R v. 77io?/i«s, 8 A. & E. 183.) Such salary is the only compcnsutiou to which he is entitled i'or the dischaige of duties cast upon liim either l)y the Municipal Cor- porations Acts, or the Parliamentary Reform Act. {Jonca v. Carmarthm (Mayor), 8 M. & W. 005. See also Thomas v. Swansea (Mayor), 11 M. & W. 83 ; Steavenson v. Norwich (Mayor), 1 Q. B. 154.) But he may be repaid money which liehasnccessctri/i/ disbursed. (R. v. Uidl (Governors of the Poor), 2 E. & B. 182.) Where a town clerk with a fixed salary had been directed by a finance committee apixiinleil by the council to take the ophiion of counsel and other proceedings to ascertain the validity of a disputed rate, it was held that his charges so far as regarded business done in the direct course of settling the dispute, might properly be allowed by the council, as not Ijeing covered by tlie salary for his ordinary duties, and were payable out of the borough fund ; that the directions by the finance committee were sufficient ; and tliat, at least after payment, it was no objection that there was no retainer for the extra services uuder seal. (U. v. Prest, 16 Q. B. 32 ; 20 L. T. Q. B. 17.) (b) The words of former enactments were " charters, deeds, muni- ments, and records." The word " muniments " has been omitted, and the word " documents " added. The town clerk has no lien on tlie corporation muniments, which he holds merely in that capacity ; though he has on papers, with respect to which he has done work as an attorney or solicitor. (K. v. Sankey, 5 A. & E. 43.) (c) See sect. 237 as to informality in ap])ointment of a deputj'. (d) The deputy town clerk can only act during the illness or absence of the town clerk. The duties cast upon town clerks are so numerous and important, that it is often necessary that some of the functions of the town clerk should be discharged by deputy. It is a pity, therefore, that the power in the council to appoint a deputy has been confined to the case of illness or absence. There is no general power given to the council to define the duties of the town clerk, treasurer, and other officers appointed l)y them. There are certain statutory duties which tliey must fulfil. It is tlie custom of councils, liowever, to define the duties of every officer ap- pointed by them, and the ordinary law of master and servant applies to such engagements, subject to the special provisions of this Act. IS. — (1 •) Tlic council shall from time to time appoint a The treasurer, fit person, not a member of the council, to be the treasurer of the borougli. (2.) The treasurer shall hold office during the pleasure of the council. (3.) A vacancy in the office shall be filled within twcntj'- one days after its occurrence. (4.) The offices of towu clerk and treasurer shall not be held by the same person. 74 MUNICIPAL CORPORATIONS. Sect^Q. \Q. The council shall from time to time appoint such Other borough other officers as have been usually appointed in the officers. borough^ or as the council tliink necessary, and may at any time discontinue the appointment of any officer ap- pearing to them not necessary to be re-appointed. - Security by 20. The council shall require every officer appointed by tion of offiSS" *^^^ *° ^^^^ ^^^^^ security (a) as they think proper for the due execution of his office, and shall allow him such re- muneration as they think reasonable. («) The manner of giving .sucli security and the amount are left to the council. iSomething more than the officer's own bond seems in- tended. Where sureties had entered into a bond for the performance of his duties by a treasurer elected under tlie 5 & 6 WilL 4, c. 76, " during the whole time of his continuing in the said office in consequence of the said election, or under any annual or other future election to the said office ; " and the treasurer, having been annually a] (pointed under that Act, was re-appointed during pleasure under the 6 & 7 Vict. c. 89, it was held that the sureties were not discharged by this change in the tenure of the office, as its nature and duties re- mained the same. (Bcricick {Mayor tC'c), v. Oswald, 1 E. & B. 295 ; 3 E. & B. 653 ; 5 H. L. Ca. 853. Sec also Dartmouth {Mayor, djc), v. Tilly, 7 E. & B. 97 ; 26 L. J. Q. B. 90.) Accountability 21. — (1.) Every officer appointed by the council shall at such times during the continuance of his office, or within three months after his ceasing to hold it^ and in such manner as the council direct, deliver to the council, or as they direct, a true account in writing of all matters committed to his charge, and of his receipts and payments, with vouchers, and a list of persons from whom money is due for purposes of this Act in connexion "with his office, showing the amount due from each. (2.) Every such officer shall pay all money due from him to the treasurer, or as the council direct. (3.) If any such officer — ■ {a.) Refuses or wilfully neglects to deliver any account or list "which he ought to deliver, or any voucher relating thereto, or to make any payment w^hich he ought to make ; or 45 & 46 VICT. f. 50. 75 {/).) After three days notice in writing, signed by tlic Sect.^1. town clerk or by three members of the council, given or left at his usual or last known place of abode, refuses or wilfully neglects to deliver to the council, or as they direct, any book or docu- ment which he ought so to deliver, or to give satisfaction respecting it to the council or as they direct ; a court of summary jurisdiction having jurisdiction where the officer is or resides may, by summary order, require him to make such delivery or payment, or to give such satisfaction. (4.) But nothing in this section shall affect any remedy by action against any such officer or his surety, except that the officer shall not he both sued by action and proceeded against summarily for the same cause (a) . (a) The remedy here given does not aftect the right of the council to proceed criminally against any of its otHcials for acts within the criminal law. The power given hy this section to the council is very extensive. How could one of the principal otlicials of a council, after a lengthened period of service, render a true account in writing of all matters committed to his charge I There is little fear, however, that this power will be exercised tyranically. Meetings and Proceedings of Council ; Committees. 22— (1.) The rules in the second schedule shall be Q"-^^tcrly and '^'^' \ I other meetings observed. of council; (2.) The council may from time to time appoint out of '^rpoi^tmcnt ^ > *' . ^ ^ „ of committees their own body such and so many committees, either ot a niinutes, &c. general or special nature, and consisting of such number of persons, as they think fit, for any purposes which, in the opinion of the council, would be better regulated and managed by means of such committees ; but the acts of every such committee shall be submitted to the council for their approval (o). (3.) A member of the council shall not vote or take part in the discussion of any matter before the council, or a committee, in which he has, directly or indirectly, by himself or by his partner, any pecuniary interest {b). 7G MUNICIPAL CORPOEATIONS. Sect. 22. (4.) No act or proceeding of the council^ or of a com- mittee, shall be questioned on account of any vacancy in their body. (5.) A minute of proceedings at a meeting of the council, or of a committee, signed at the same or the next ensuing meeting, by the mayor, or by a member of the council, or of the committee, describing himself as, or appearing to be, chairman of the meeting at which the minute is signed, shall be received in evidence without further proof. (6.) Until the contrary is proved, every meeting of the council, or of a committee, in respect of the proceedings Avhereof a minute has been so made, shall be deemed to have been duly convened and held, and all the members of the meeting shall be deemed to have been duly qualified; and where the proceedings are proceedings of a committee, the committee shall be deemed to have been duly consti- tuted, and to have had power to deal with the matters referred to in the minutes. (a) When the council have ajiproved of such minutes, their ratifi- cation legalizes whatever has been done, omnis ratihabitio retrotrahitur et mandato priori eqici^Mratur. (b) Generally no person is qualified to act as a member of a town council who is interested in any contract or employment with the exceptions named in sect. 12. Many matters may arise, however, in which a member of the council has a pecuniary interest. These may come within the exceptions named in sect. 12, or they may not be matters in the nature of a contract or employment. For instance, an application by a ti-amway company for the consent of the council to a provisional order of the Board of Trade, and of which company councillors may be shareholders. In such instances the member of the council cannot vote, and the mayor or chairman if clearly satisfied that he has a pecuniary interest in the matter, would be justified in refusing to take the vote. (See Reg. v. Mayor of Ryde, 28 L. T. (n.s.) 629. See also the 41st section as to disqualified person acting in a corporate office.) Bye-laivs. Power o£ 23. — (!•) The council may, from time to time, make make b ^e- ^^ch bye-laws as to them seem meet for the good rule and laws. government of the borough («) , and for prevention and sup- pression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the borough, and may thereby appoint such fines, not exceed- 45 & 4G VICT. 0. 50. 77 iiig in any case five pounds,, as they deem necessary for Se ct. 2 3. the prevention and suppression of otFenccs against the same. (2.) Such a bye-law shall not be made unless at least two- thirds of the Avhole number of the council are present (/>). (3.) Such a bye-law shall not come into force until the expiration of forty days after a copy thereof has been fixed on the town hall (c) . (4.) Such a bye-law shall not come into force until the expiration of forty days after a copy thereof, sealed with the corporate seal, has been sent to the Secretary of State ; and if within those forty days the Queen, with the advice of Iler Privy Council, disallows the bye-law or part there- of, the bye-law or part disallowed shall not come into force ; but it shall be lawful for the QueeUj at any time within those forty days, to enlarge the time within which the bye-law shall not come into force, and in that case the bye-law shall not come into force until after the expiration of that enlarged time, (5.) Any offence against such a bye-law may be prose- cuted summarily {d) . (6.) Nothing in this section shall interfere with the 38 & 39 Vict, operation of section one hundred and eighty-seven of the ^" ^^• Public Health Act, 1875 ; and that section shall have efibet as if this section were therein referred to, instead of sec- tion ninety of the Municipal Corporations Act, 1835 ; but nothing in the Public Health Act, 1875, shall be construed as having restricted the meaning or scope of the ]\[uni- cipal Corporations Act, 1835, or as restricting the meaning or scope of this section, with respect to prevention or suppression of nuisances. («) This section confers on councils very large powers, and covers many cases in which councils have thoui^'lit it necossaiv to obtain the sanction ol parliament. It seems advisaljle tliat councils sliouhl relv iipon this section, and not encumber local Acts witli matters that inav be made the subject of bvo-laws. (See Shillito v. lliompsoit, L. R. 1 Q. 15. D. 12.) (/») The decision of the majority of those i)resent and votimj will, however, be sullicient. (i>cc Second Schedule, sect. 10.) (>) See sect. 232. (./) See sect. 219. 78 MUNICIPAL CORPORATIONS. Sect. 24. Evidence of bye-laws. The borough auditors. 24. The production of a written («) copy of a bye-law made by the council under this Act^ or under any former or present or future general or local Act of parliament^ if authenticated by the corporate seal shall, until the con- trary is proved, be sufficient evidence of the due making and existence of the bye-law, and, if it is so stated in the copy, of the bye-law having been approved and confirmed by the authority whose approval or confirmation is re- quired to the making or before the enforcing of the bye- law. («) " Written " inchides " printed." See definition in sect. 7. Accounts and Audit. 25. — (1-) There shall be three borough auditors, two elected by the burgesses, called elective auditors, and one appointed by the mayor, called raayor^s auditor. (2.) An elective auditor must be qualified to be a coun- cillor (a) , but may not be a member of the council, or the town clerk or the treasurer. (3.) The mayor's auditor must be a member of the council. (4.) The term of office of each auditor shall be one year. (5.) The appointment of the mayor's auditor shall be made on the ordinary day of election of the elective auditors [b). (6.) On a casual vacancy in his office an appointment to fill it shall be made within ten days after the occurrence of the vacancy (e) . {(() See sect. 12. (h) See sect. 62. (f) This siih-section refers only to the mayor's auditor. The 66tli section provides for a vacancy in the office of elective auditor. Half-yearly accounts of treasurer. 26. The treasurer shall make up his accounts half- yearly to such dates as the council, with the approval of the Local Government Board, from time to time appoint ; and, subject to any such appointment, to the dates in use at the commencement of this Act. 45 & 4G VICT. c. 50. 79 27. — (!•) The treasurer shall within one month from Se ct. 2 7. the date to which he is required to make up his aeeounts Audit and in eaeh half year, submit tlicm, with the neeessary vouchers P"""C'^tioii of ■J ^ ^ •' _ treiisurer s and papers^ to tlie borough auditors, and they shall audit accounts. them («). (2.) After the audit of the accounts for the second half of each financial year the treasurer shall print a full ab- stract of his accounts for that year, (a) The 93rcl section of the Act of 1835, required the auditors to Bign the accounts if found correct. This is now omitted. The reason for this is not apparent. It may be said that no legal effect followed such signing ; but it was a proof that the accounts liad been audited. 28. — (!•) The town clerk shall make a return to the Returns to Local Government Board of the receipts and expenditure ^^^^ Board"' of the municipal corporation for each financial year. (2.) The return shall be made for the financial year ending on the twenty-fifth of March, or on such other day as the Local Government Board, on the application of the council, from time to time prescribe. (3.) The return shall be in such form and contain such particulars as the Local Government Board from time to time direct. (4.) The return shall be sent to the Local Government Board within one month after the completion of the audit for the second half of each financial year. (5.) If the town clerk fails to make any return required under this section, he shall for each offence be liable to a fine not exceeding twenty pounds to be recovered by action on behalf of the Crown in the High Court («). (6.) The Local Government Board shall in each year prepare an abstract of the returns made in pursuance of this section, under general heads, and it shall be laid before both Houses of Parliament [b). ((() This is a very unfair piece of h'gislation. The returns should be required to be made l)y the council, and tlie fine enforced against them. The town clerk is the officer of the council, and might be placed in a ilirticult position, if the council withheld from him the informatiun necessary to enable hin; to comply with the requirements of the 80 MUNICIPAL CORPOBATIONS. Note. Sect. 28. Local Government Board, ordenied him tlie assistance by whicli alone lie could compile the necessary returns. The corporation, however, can pay such fine out of the borough fund. (See sect. 226, sub-sect. .3.) (6) These returns might be made exceedingly useful, if they were prepared upon a common basis, or contained the premises from which a true comparison might be made between the expenditure of one town and another. The labour of preparing the returns now rec|uired by the various government departments is very heavy. Nevertheless, for all local purposes these returns have to be supplemented by others, obtained through the courtesy of mrmicipal officials. Eevising assessors in non-parliii- racntiiry boroughs. Revising Assessors. 29. — (1.) Ill every borough whereof no part of the area is co-extensive with or included in the area of a par- liamentary borough, there shall be two revising assessors elected by the burgesses. (2.) Every person shall be eligible who is qualified to be a councillor and is not a member of the council or the town clerk or treasurer. (3.) The term of office of each revising assessor shall be one year (a) . (4.) Every revising assessor shall, as soon as con- veniently may be after his election, and from time to time as occasion requires, appoint, by writing signed by him, a person eligible to the office of revising assessor, to be his deputy,, to act for him in case of his illness or incapacity to act. (5.) The appointment shall be signified to the council, in writing signed by the assessor, and be recorded in their minutes. (a) The day of election is the 1st of March. {See sect. 62.) Division of Borouyli into Wards^ or alteration of Wards. Procpcdiugs 30. — (!•) If two-thirds of the council of a borough borou'riihito agree to petition («), and the council thereupon petition, the wards or alter- Quccn for the division of the borough into wards, or for wards" ^^'^ alteration of the number and boundaries of its wards, it shall be lawful for Her Majesty from time to time, by ^^v^ 45 & 46 VICT. n. 50. 81 order in Council, to fix tlie number of wards into which Sect. 30. the borougli shall be divided ; and the borough shall be divided into that number of wards. (2.) Notice of the petition, and of the time when it pleases Her Majesty to order that the same be taken into consideration by Her Privy Council, shall be jiublished in the Londo7i Gazelle one month at least before the petition is so considered. (3.) Where an order in Council has been so made, the Secretary of State shall appoint a commissioner to prepare a scheme for determining the boundaries of the wards and apportioning the councillors among them. (4.) In case of division into wards, the commissioner shall apportion all the councillors among the wards. (5.) In case of alteration of wards, he shall so appor- tion among the altered wards the councillors for those wards as to provide for their continuing to represent as large a number as possible of their former constituents. (6.) In either case, each councillor shall hold his office in the ward to which he is assigned for the same time that he would have held it had the borough remained undivided or the wards unaltered. (7.) In case of division into wards the returning officer at the first election for each ward held after the division shall, notwithstanding anything in this Act, be the mayor or a person appointed by the mayor. (8.) If by reason of any division or alteration under this section any doubt arises as to which councillor should go out of office, the doubt may be determined by the council. (9.) The division of a borough into a greater number of wards shall not affect the qualification of aldermen or councillors. (10.) The number of councillors assigned to each ward shall be a number divisible by three ; and in fixing their number the commissioner shall,^ as far as he deems it practicable, have regard as well to the number of persons rated in the ward as to the aggregate rating of the ward. 82 MUNICIPAL OOEPOEATIONS. Sect. 30. (11-) Tlie commissioner shall make the scheme in duplicate, and shall deliver one of the duplicates to the town clerk, and shall send the other to the Secretary of State, to be submitted by him to Her Majesty in Council for approval. (12.) The scheme shall be published in the London Gazette, and shall come into operation at the date of that publication, and thenceforth the boundaries of wards and apportionment of councillors determined and made by the scheme shall be observed and be in force. (13.) If Her Majesty in Council does not approve the scheme, as originally prepared by the commissioner, it shall nevertheless be published in the London Gazette, and shall be in force for the purposes of any municipal election until Her Majesty in Council, on further infor- mation and report from the commissioner, definitely approves a scheme in that behalf. (14.) The commissioner may administer oaths, and may require any person having the custody of any book containing a poor rate made for a parish to produce the book for his inspection ; and every person required by the commissioner to answer any question put to him for the purposes of this section shall answer it. (15.) The commissioner shall have remuneration as appearing by the Fourth and Fifth Schedules. {a) Observe tliat this is an absolute two-tbirds. It does not appear necessary" that the consent of the two-thirds should be giren at a meeting of the council. Probably it would be as well that the consent should be so given. Supplemental and Exceptional Provisions. Occupation of 31. In and for the purposes of this Act — par o ouse. ^^^^ rjij^^ terms house, warehouse, counting house, shop, or other building include any part of a house, where that part is separately occupied for the purposes of any trade, business, or pro- fession ; and any such part may, for the purpose of describing the qualification, be described as 45 & 46 VICT. c. 50. 83 office, chambers, studio, or by any like term Sect. 31. applicable to the case. (b.) Where an occupier is entitled to the sole and exclusive use of any part of a house, that part shall not be deemed to be occupied otherwise than separately by reason only that the occu- pier is entitled to the joint use of some other part (a). (a) Altliouj^li liy the Pfirliamentary and Municipal Registration Act, 1878 (41 & 42 Vict. c. 26), s. 5, Uie term "dwelling house" in the Representation of the People Act, ] 867 (30 & 31 Vict. c. 102), is to mean part of a house separately occupied, yet in order to be entitled to the borough franchise as the occupier of a dwelling house, the person must have an occupation in respect of which he can be rated to the relief of the poor, and therefore he is not entitled to such dwelling house franchise by reason of the occupation of part of a house if he occupies such part as a lodger. The tenant of two rooms, which he took unfurnished at a weekly rent, had the exclusive use of such rooms and a key of the outer door of the house. His landlord had also a key of the outer door and resided in all the rest of the house, but supplied no attendance or service to such tenant. Held, that such tenant occupied the rooms as a lodger, and con- eequently that in respect of such occupation he could not acquire the dwelling house franchise under the Representation of the People Act, 1867. The tenant of two rooms, which he took unfurnished at a weekly rent, had in common with the other tenants of the house, which was wholly let out on similar tenancies, the use of the passages, staircase, street door, and usual conveniences of the house. The landlord and not the tenant was rated, and the landlord did all repairs inside and out, but he did not reside in the house, nor did he, save as aforesaid, retain the control and dominion over the house or render any services to aiiy of the tenants. Held, that such tenant did not occupy the rooms as a lodger, but as an occupying tenant under the Representation of the People Act, 1867, and that he could therefore acquire the dwelling house franchise in respect of such occupation. Bradley, appellant, Baylis, respondent ; Morfee, appellant, JVovis, respondent ; Kirhy, appellant, Biffen, respondent, L. R. 8 Q. B. D. 195 ; 46 L. T. R. (N.s.) 253. 32. — (1.) If an occupier of any qualifying property. Claim by whether the landlord is or is not liable to be rated to the ratecf.'*^"^ poor rate in respect thereof, claims to be rated to the poor rate in respect thereof, and pays or tenders to the overseers of the parish where the property is situate the full amount of the poor rate last made in respect of the G 2 84 MUNICIPAL COBPORA-TTONS. Sect. 32. property, fhe overseers shall put the occupier's name on the rate book in respect of that rate. (2.) If they fail to do so, he shall nevertheless for the purposes of this Act be deemed rated to that rate (a) . («) See tlie 19th sect, of the 32 & 33 Vict. c. 41, and the 14th sect, of the 41 & 42 Vict. c. 26. Rules as to Q^. — (1.) Where a person succeeds to qualifying pro- of burgess°on perty by descent, marriage, marriage settlement, devise, succession, &c. ^^ promotion to a benefice or office, then, for the purpose of qualification, the occupancy of the property by a pre- decessor in title, and the rating of the predecessor in respect thereof, shall be equivalent to the occupancy and rating of the successor ; and rating in the name of the predecessor shall, until a new rate is made after the date of succession, be equivalent to rating in the name of the successor; and the successor shall not be required to prove his own residence, occupancy, or rating before the succession. (2.) The qualifying property need not be throughout the twelve months constituting the period of qualification the same property or in the same parish. (3.) ^^Hiere by law a borough rate is payable by instal- ments, payment by any person of any such instalment shall, as regards his qualification to be enrolled as a burgess, be deemed a payment of the borough rate in respect of the period to which the instalment applies. (4.) A person shall not be disentitled to be enrolled as a burgess by reason only — (a.) That he has received medical or surgical assist- ance from the trustees of the municipal charities, or has been removed, by order of a justice, to a hospital or place for reception of the sick (a), at the cost of any local authority; or {b.) That his child has been admitted to and taught in any public or endowed school (b) . (a) See the 24th sect, of the Public Health Act, 1875, and the ohseivations on this sub-.section in the Preface. 45 & 46 VICT. c. 50. 85 (h) As to remission of school fees Ly school hoard xee Elementary Note Education Act, 1870, s. 17. As to payment of such fees hy guar- Sect. 33. dians of the poor see Elementary Education Act, 1876, s. 10. 34. — (1.) Every qualified person elected to a eorporatc Obligation to office, unless exempt under this section or otherwise by ^^ pL fine.^ law {a), either shall accept the office by making and sub- scribing the declaration required by this Act {/j) Avithin five days after notice of election (c), or shall, in lieu thereof, be liable to pay to the council a fine of such amount not exceeding, in ease of an alderman, councillor, elective auditor, or revising assessor, fifty pounds, and in case of a mayor one hundred pounds, as the council by bye-law determine (d). (2.) If there is no bye-law determining fines, the fine, in ease of an alderman, councillor, elective auditor, or revising assessor, shall be twenty -five pounds, and in case of a mayor fifty pounds. (3.) The persons exempt under this section are — (a.) Any person disabled by lunacy or imbecility of mind, or by deafness, blindness, or other per- manent infirmity of body ; and {b.) Any person who, being above the age of sixty-five years, or having within five years before the day of his election either served the office or paid the fine for non-acceptance thereof, claims exemp- tion within five days after notice of his election. (4.) A fine payable under this section shall be recover- able summarily. (a) See sect. 12 and sect. 36 ; also sect. 253 and note thereon. (6) See the following section. (c) Vfhat notice is required ] It is customary for the town clerk to serve on each person elected a notice of his election. Such notice would appear to be a siitficient official notification within the meaning of this section. This notice usually contains an intimation of the time and place where the elected can make and subscribe the required declaration. (See Reg. v. Preece, 5 Q. B. 94 ; S. C. Dav. & M. 156, referred to in note to sect. 225.) (rf) Tliis fine in some boroughs is fi.xed as low as one shilling. Sub-sect. 3 of the 40th sect, provides that non-acceptance of office shall create a casual vacancy. 86 MUNICIPAL CORPORATIONS. Sect. 35. 35. A person elected to a corporate oflfice shall not. Declaration until he has made and subscribed before two members of on acceptance ^j^g council, or the towu clerk (a), a declaration as in the Eighth Schedule, act in the office except in administering that declaration. (a) This part is new. It will be found a great convenience. Fine on 36. — (1.) A person elected to a corporate office may resigna ion, ^^ ^^^ time, by Writing signed by him and delivered to the town clerk {a), resign {b) the office, on payment of the fine provided for non-acceptance thereof (c) . (2.) In any such case the council shall forthwith declare the office to be vacant, and signify the same by notice in writing, signed by three members of the council and countersigned by the towu clerk, and fixed on the town hall, and the office shall thereupon become vacant {d) . (3.) No person enabled by law to make an affirmation instead of taking an oath shall be liable to any fine for non-acceptance of office by reason of his refusal on con- scientious grounds to take any oath or make any declara- tion required by this Act or to take on himself the duties of the office. (a) The method of resignation set ont in the Act is new. (6) A person who is disqualified cannot resign. (Hardimck v. Broivn, L. E. 8 C. P. 406.) See B. v. Blizard, L. R. 2 Q. B. 65, as to when a guo warranto will be granted, although resignation has been accepted. (c) The resignation without payment of the fine would not be effectual. Neither does the payment of the fine constitute a vacancy until the council shall under the next sub-section declare the oftice to be vacant, and signify the same by the notice there referred to. {d) In the event of the council refusing to declai-e the vacancy, no election could be held to supply the vacancy in the council. The remedy would be by mandamus against the council to compel them to declare the oflBce to be vacant. Re-elidbility 37. A persou ccasing to hold a corporate office shall, hoi°ki>^ unless disqualified to hold the office, be re-eligible. Mayor and 38. The mayor and aldermen shall, during their re- continu" ^'^ spective offices, continue to be members of the council, 45 & 46 VICT. 0. 50. 87 notwithstanding anything in this Act as to councillors Sect. 38. going out of office at the end of three years. members of council. 39. — (1.) If the mayor, or an alderman or couu- Avoidance of cillor— " 'f''' by, bankruptcy (a.) Is declared bankrupt, or compounds by deed with or absence. his creditors, or makes an arrangement or com- position with his creditors, under the Bank- 32 & 33 Vict, ruptcy Act, 1869, by deed or otherwise ; or ^' ' (6.) Is (except in case of illness) continuously absent from the borough, being mayor, for more than two months, or, being alderman or councillor, for more than six months : he shall thereupon immediately become disqualified and shall cease to hold the office. (2.) In any such event the council shall forthwith declare the office to be vacant («), and signify the same by notice signed by three members of the council, and countersigned by the town clerk, and fixed on the town hall, and the office shall thereupon become vacant. (3.) Where a person becomes so disqualified by being declared bankrupt, or compounding, or making an arrangement or composition, as aforesaid, the disquali- fication, as regards subsequent elections, shall, in case of bankruptcy, cease on his obtaining his order of discharge, and shall, in case of a compounding or composition as aforesaid, cease on payment of his debts in full, and shall, in case of an arrangement as aforesaid, cease on his obtaining his certificate of discharge {b) . (4.) Where a person becomes so disqualified by absence, he shall be liable to the same fine as for non-acceptance of office, recoverable summarily, but the disqualification shall, as regards subsequent elections, cease on his return. (a) See note on sect. 36. (h) The lbllo-\vin;4 case under the repealed sections may be re- ferred to. B. a to^\ 11 councillor of N. in July, 1872, made a com- position with his creditors under the Bankruptcy Act, 1869, under which a resolution was come to for a composition in satisfaction of B.'s debts. On the 4th of November B. placed his resignation of 88 MUNICIPAL CORPORATIONS. Note liis office of councillor in the hands of the to-WTi clerk. At the Sect. 39. annual meeting of the to^\^l council on the 9th of November the — above letter was read and B.'s resignation was accepted by the council, and on the 18th he was re-elected a town councillor. Upon a case stated for the opinion of the court, pursuant to the Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 40), it was held that B. having by reason of his having compounded with his creditors ceased to hold the office of councillor, was incapable of resigning it ; and the council not having ^^ursued the course pointed out by the Municipal Corporations Act, the election was there- , fore void. It was also held that B. not ha\'ing j)aid his debts in full, he was not qualified for re-election under that section. (HardivicJc v. Brown, L. R, 8 C. P. 406.) An alderman made a composition with his creditors, but executed no deed of composition, nor were any proceedings taken under the Bankruptcy Act, 1869. The council were summoned for the purpose of declaring the office void. An injunction was granted by the Master of the Rolls at the instance of the alderman restraining the corporation from proceeding under their notice on the ground that the alderman had not become disqualified. (Aslatt v. Southampton Corporation, L. R. 16 Ch. D. 143 ; 50 L. J. Ch. 31 ; 43 L. T. 464; 45 J. P. 111.) Filling of 40. — (!•) On a casual vacancy in a corporate oflEice, vacancies. ^^ election shall be held by the same persons and in the same manner as an election to fill an ordinary vacancy ; and the person elected shall hold the office until the time when the person in whose place he is elected would regu- larly have gone out of office^ and he shall then go out of office. (2.) In case of more than one casual vacancy in the office of councillor being filled at the same election, the councillor elected by the smallest number of votes shall be deemed to be elected in the place of him who would regularly have first gone out of office, and the councillor elected by the next smallest number of votes shall be deemed to be elected in the place of him who would regu- larly have next gone out of office, and so with respect to the others ; and if there has not been a contested election, or if any doubt arises, the order of rotation shall be determined by the council. (3.) Non-acceptance of office by a person elected creates a casual vacancy (a) . (a) See sect. 34. 45 & 46 VHT. c. 50. 89 41. — (1-) If" any person acts in a corporate office («) Sect. 41. witliout having made the declaration by this Act required, penaltv on or without being qualified at the time of" making the unqualifiecl declaration, or after ceasing to be qualified, or after in office. " becoming disqualified, he shall for each off"ence be liable to a fine not exceeding fifty pounds, recoverable by action {b). (2.) A person being in fact enrolled in the burgess roll shall not be liable to a fine for acting in a corporate office on the ground only that he was not entitled to be enrolled therein. (a) When does a person act in a corporate capacity ? By attend- ing a council or committee meeting without voting, or taking any part in the discussion or proceedings I Until this question is decided it wouhl be well tliat any such person should not be present at any council or coniiuittee meeting. Nevertheless it does not appear that the mere passive presence of such a person in the room where the council or committee meeting is held would alone con- stitute acting in a corporate capacity. (b) As to notice of action see sect. 224. Under the Act of 1835 (sect. 53) the forfeiture was the full sum of fifty pounds. In some cases this worked a great hardship, the accumulated penalties for each time the defendant had acted amounting to many hundred pounds. The present provision, which makes the oflender liable to a fine not exceeding fifty pounds, gives a discretion wliich no doubt the coiu't wLll exercise in proper cases. 42. — (!•) The acts and proceedings of a person in Validity of possession of a corporate office, and acting therein, shall, ny,^^„.i"i"° notwithstanding his disqualification or want of qualifica- standing tion, be as valid and effectual as if he had been qualified, tioil^&c ^^ (2.) An election of a person to a corporate office shall not be liable to be questioned by reason of a defect in the title, or want of title, of the person before whom the election was had, if that person was then in actual possession of, or acting in, the office giving the right to preside at the election. (3.) A burgess roll shall not be liable to be questioned by reason of a defect in the title, or want of title, of the mayor or any revising authority by whom it is re^4sed, if he was then in actual possession and exercise of the office of mayor or revising authority. 90 MUNICIPAL COEPOEATIOXS. Sect. 43. Duties of town clerk, deputy, and treasurer, during vacancy or iucapacity. 43. If there is no town clerk^ and no deputy town clerk^ or there is no treasurer, or the town clerk, deputy town clerk, or treasurer (as the case may be) is incapable of acting, all acts by law authorized or required to be done by or with respect to the town clerk or the treasurer (as the case may be) may, subject to the provisions of any other Act, be done by or with respect to a person appointed in that behalf by the mayor. PART III. PREPAEATIONS FOR AND PROCEDURE AT ELECTIONS. Parish Burgess Lists : Burgess Rolls : Ward Rolls. Preparation and revision of parish burgess lists C.26. 44. — (!•) Where the whole or part of the area of a borough is co-extensive with or included in the area of a parliamentary borough, the lists of burgesses are to be made out and revised, and claims and objections relating thereto are to be made, in accordance with the provisions 41 &. 42 Vict, of the Parliamentary and Municipal Registration Act, 1878 («). (2.) Where no part of the area of a borough is co- extensive with or included in the area of a parliamentaiy borough, the lists of burgesses shall be made out and revised, and claims and objections relating thereto may be made, in accordance, as nearly as may be, with the provisions of Part I. of the Third Schedule. (3.) In either case the lists shall be styled the parish burgess lists {b) . (a) These provisions are set out in the Appendix. lb) The term " parish burgess list " has been adoj)ted to mark the distinction between it and the Inu'gess roU. The burgess 4B' — (D When tlic parish burgess lists have been roUs!^"^ "^"^ revised and signed, the revising authority shall deliver 45 & 46 VICT. c. 50. ^^ them to the to^^^l clerk, and a printed copy thereof, SectJ:5. examined by him and signed by him, shall be the burgess roll of the borough. (2.) The burgess roll shall be completed on or before the twentieth (a) of October in each year, and shall come into operation on the first of November in that year, and shall continue in operation for the twelve months begin- ning on that day. (3.) The names in the burgess roll shall be numbered by wards or by polling districts, unless in any case the council direct that the same be numbered consecutively without reference to wards or polling districts. (4.) Where the borough has no wards, the burgess roll shall be made in one general roll for the whole borough. (5.) Where the borough has wards, the burgess roll shall be made in separate rolls, called ward rolls {b), one for each ward, containing the names of the persons entitled to vote in that ward, and the ward rolls collec- tively shall constitute the burgess roll. (6.) A burgess shall not be enrolled in more than one ward roll (c). (7.) Where a duplicate of a burgess list is made under section thirty-one of the Parliamentary and Municipal Registration Act, 1878, it shall have the same effect as the original^ and may be delivered instead thereof. (8.) Every person enrolled in the burgess roll shall be deemed to be enrolled as a burgess, and every person not enrolled in the burgess roll shall be deemed to be not enrolled as a bui'gess. (9.) No stamp duty shall be payable in respect of the enrolment of a burgess. (a) This is an iiltoralion. Formerly it was tlie 22nd of October. If a parish list is not made out in time the old lists are to be in force. The same ^vith the burgess roll. (See sect. 71.) In Eudge v. Andrews, L. R. 3 C. P. D. 5io, it was decided that every person whose name is on the burgess roll published in October is entitk-d to be nominated for election on the 1st day of November, notwith- standing that he is not on the roll in force at tire time the nomina- tion paper is signed. The question was also raised whether a burgess on the roll in 92 MUNICIPAL CORPOKATIONS. Note Sect. 45. Arrangement of lists and rolls. force at the time of nomination, but not on the roll upon which the election proceeds, can be a nominator. This question was not decided. Lush, J. in The Queen v. Parkinson, L. R. 3 Q. B. IJ, said, "The person nominating the candidate votes for him." But now by the 18th Eule of Part 2, Sched. 3, for the purposes of nomination a person whose name is inserted in one of the lists from which the burgess roll or ward roll will be made up shall be deemed to be enrolled, though the roll is not yet completed. (6) "Ward roll" has been substituted for "ward list" as more approi3riate. (c) See the provisions of the Parliamentary and Municipal Regis- tration Act, 1878, in Appendix. 46. — (!•) If and as far as the council so direct,, tlie parish burgess lists, and tlie burgess roll, and the ward rolls (if any), and the lists of claimants and respondents (a), or any of those documents, shall be arranged in the same order in which the qualifying properties appear in the rate book for the parish in which they are situate, or otherwise in such order as will cause those lists and rolls to record the qualifying properties in successive order in the street or other place in which they are situate {b). (3.) Subject to any such direction, and to the pro- visions of this A-Ct as to polling districts, the arrange- ment of the lists and rolls shall be alphabetical. (a) For the meaning of the Avords " claimant " and " respondent," see the Third Schedule, Part 1. (6) See sect. 21 of the 41 & 42 Vict. c. 26, in the Appendix. Correctiou of burgess roll. 47. — (!•) Where the parish burgess lists are revised under the Parliamentary and Municipal Registration Act, 1878, the burgess roll is subject to alteration or correction in manner provided by section thirty-five of that Act (a) . (2.) Where the parish burgess lists are revised under this Act, any person whose claim has been rejected or name expunged at the revision of the lists may apply, within two months {b) after the last sitting of the revision court, to the High Court in the Queen's Bench Division for a mandamus to the mayor to insert his name in the burgess roll ; and thereupon the court shall inquire into the title of the applicant to be enrolled {c) . 45 & IG VTCT. c. 50. 93 (3.) If tlic court grants a mandamus, the mayor shall Sect. 47. insert the name in the burgess roil, and shall add thereto the words " by order of Her Majesty's High Court of Justice/' and shall subscribe his name to those words. (a) See the section referred to in the Appendix. (b) " Two montiis " liave been suijstituted for " before the end of the term next following." (c) See further as to mandamus, Chapter VII., in the first division of this work. 48. — (1 •) The town clerk shall cause the parish burgess Printinj^ and lists, the lists of claimants and respondents, and the bur- ggss roll and gess roll, to be printed, and shall deliver printed copies ot''er docn- to any person on payment of a reasonable price for each copy. (2.) Subject to section thirty of the Parliamentary and Municipal Registration Act, 1878, the proceeds of sale shall go to the borough fund (a) . («) For this section, see Appendix. 49. — (1.) The overseers of each parish shall at the same Separate list time that they make the parish burgess list make a list of '^yl^j'-'^^^^^J'^^ the persons entitled in respect of the occupation of property be councillors in that parish to be elected councillors, as being resident Y^^ "°'^ '^° ^^ ^ _ . burgesses. within fifteen miles, although beyond seven miles from the borough (a). (2.) The provisions of this Act as to the parish burgess lists, and claims and objections relating thereto, and the revision of those lists shall, as nearly as circumstances admit, apply to the lists made under this section. (3.) The town clerk shall arrange the names entered in these lists, when revised, in alphabetical order as a sepa- rate list (in this Act called the separate non-resident list), with an appropriate heading, at the end of the burgess roll. (ffl) See sect. 11, and sect. 9 of the rarliamontary and Municipal Registration Act, 1878. 94 MUNICIPAL COEPORATIONS. Sect. 50. Borough and ward elec- tions. Election of Councillors. 50. — (1-) Where a borough has no wards, there shall be one election of councillors for the whole borough. (2.) Where a borough has wards, there shall be a sepa- rate election of councillors for each ward. Title to vote. 51. — (1.) At an election of councillors a person shall be entitled to subscribe a nomination paper (a), and to demand and receive a voting paper, and to vote, if he is enrolled in the burgess roll, or, in the case of a ward election, the ward roll, and not otherwise. (2.) No person shall subscribe a nomination paper in or for more than one ward, or vote in more than one ward [b). (3.) Nothing in this section shall entitle any person to do any act therein mentioned who is prohibited by law from doing it, or relieve him from any penalty to which he may be liable for doing it. («) Bee Third Schedule, Part II. Rules 3 and 10, and the notes thereon. {h) Notwithstanding the provisions of sub-sect. 6 of sect. 45, it will happen that a burgess is enrolled in more than one ward. By sub- scribing a nomination paper, or v yting in one ^varcl . he makes his selection, and cannot afterwards nominate ov A'ote in another ward. As to nomination, see The Queen v. Parkinson, L. R. 3 Q. B. 11 ; and as to voting, see Reg. v. Turjivell, L. R. 3 Q. B. 704. 713 ; Reg. v. Har- rald, L. R. 8 Q. B. 418. Hee also sub-sect. 14 of sect. 28 of 41 & 42 Vict. c. 26, in the Appendix. Day of election. 52. The ordinary day of election of councillors shall be the first of November. Returning officer at election. 53. — (1-) At an election of councillors for a whole borough the returning officer shall be the mayor (a). (2.) At an election for a ward the returning officer shall be an alderman assigned for that purpose by the council at the meeting of the ninth of November {b). (a) See sect. 67 as to course to be pursued when mayor is dis- qualified. (h) The alderman was formerly chosen by the councillors of the ward. As to the 9th falling on a Sunday, see sect. 230. 45 & 46 VICT. c. .50. 9n All action will lio against the mayor or the presiding officer for a Note breach of any duty imposed on him. (See Pickering v. .Limes, L. R. H Sect. 53. C. P. 4R9; 42 L. .T. C. P. 217 ; see also Woodward v. Sarsom, L. R. • 10 C. P. 7»3 ; 44 L. J. 0. P. 293.) 54. Nine days at least {a) before tlie day for the Notice of election of a councillor, the town clerk shall prepare and sign a notice thereof, and publish it by fixing it on the town hall (6) , and, in the case of a ward election, in some conspicuous place in the ward. {(t) The nine days are exclusive of the day of the notice. As to Sunday, see sect. 230. (b) See sect. 232 as to the place where this notice may be fixed. 55. The nomination of candidates for the office of ^'"'"j"^*''^" o^ councillor shall be conducted in accordance with the rules in Part II. of the Third Schedule. 56. — (1.) If the number of valid nominations exceeds I^elation of that of the vacancies, the councillors shall be elected from to election, among the persons nominated. (2.) If the number of valid nominations is the same as that of the vacancies, the persons nominated shall be deemed t5 be elected. (3.) If the number of valid nominations is less than that of the vacancies, the persons nominated shall be deemed to be elected, and such of the retiring councillors for the borough or ward as were highest on the poll at their election, or, if the poll was equal, or there was no poll, as are selected for that purpose by the mayor, shall be deemed to be re-elected to make up the required number. (4.) If there is no valid nomination, the retiring coun- cillors shall be deemed to be re-elected. 57. If an election of councillors is not contested, the Publication of returning officer shall publish a list of the persons elected "kS!*'^'^ not later than eleven o'clock in the morning on the day of election. 96 MUNICIPAL COEPORATIOXS. Sect. 58. 58. — (1-) If an election of councillors is contested, the Mode of con- poll shall, as far as circumstances admit, be conducted as ducting poll ^i^g Y\ at a contested parliamentary election is bv the at contested ^ . J- •' ti-'^. election. Ballot Act, 1872, directed to be conducted, and subject to ^^33 ^^ ^"^^^' *^^^ modifications expressed in Part III. of the Third Schedule, and to the other provisions of this Act, the'pro- visions of the Ballot Act, 1872, relating to a poll at a par- liamentary election (including the provisions relating to the duties of the returning officer after the close of the poll), shall apply to a poll at an election of councillors. (2.) Every person entitled to vote may vote for any number of candidates not exceeding the number of vacancies. (3.) The poll shall commence at nine o^ clock in the forenoon and close at four o^clock in the afternoon of the same day. (4.) But if one hour elapses during which no vote is tendered, and the returning officer has not received notice that any person has within that hour been prevented from coming to the poll by any riot, violence, or other un- lawful means, the returning officer may, if he thinks fit, close the poll at any time before four o'clock. (5.) Where an equality of votes is found to exist between any candidates, and the addition of a vote would entitle any of those candidates to be declared elected, the return- ing officer, whether entitled or not to vote in the first instance, may give such additional vote by word of mouth or in writing. (6.) Nothing in the Ballot Act, 1872, as applied by this Act, shall be deemed to authorise the appointment of any agents of a candidate at a municipal election ; but if, in the case of a municipal election, an agent of a candidate is appointed, and notice in writing of the appointment is given to the returning officer, one clear day before the polling day, then the provisions of the Ballot Act, 1872, with respect to agents of candidates, shall, as far as regards that agent, apply in the case of that election. 45 & 46 VTCT. c. 50. 97 59. — (1.) At an election of councillors, the presiding Sect^o9. officer shall, if required by two burgesses, or by a eandi- Qupstions date or his agent (a), put to any person offering to vote, Lt 'to voters * at the time of his presenting himself to vote {h), but not afterwards, the following questions, or either of them : («.) Are you the person enrolled in the burgess [or ward] roll now in force for this borough [or ward] as follows [read the ivhole entry from the roll] ? (c) {b.) Have you already voted at the present election [add, in case of an election for several ivards, in this or any other ward] ? [d) (2.) The vote of a person required to answer either of these questions shall not be received until he has answered it [e). (3.) If any person wilfully makes a false answer thereto he shall be guilty of a misdemeanor. (4.) Save as by this Act authorized, no inquiry shall be permitted at an election as to the right of any person to vote. (a) The presiding officer cannot put the questions of his own motion. There must be a request by two burgesses, or a candidate or his agent. The words in italics have been added, and render it un- necessary to have two burgesses in every polling department torepre- Bent each candidate. (b) That is when he asks for a ballot paper. After the ballot paper has been handed to the burgess will be too late. (c) For the provision of the Ballot Act, 1872, as to personation, see Appendix. (d) For the provisions of the Ballot Act, 1872, as to the procedure when a second person ofters to vote in the name of one who has already voted, see Appendix. (e) That is, answered satisfactorily — the first c^uestion affirmatively, and the second negatively. Election of Aldermen. 60. — (1.) The ordinary day of election of aldermen Time and shall be the ninth of November (a), and the election "^°ct^on of shall be held at the quarterly meeting of the council (b) . aldermen. (2.) The election shall be held immediately after the election of the mayor, or, if there is a sheriff, the appoint- ment of the sheriff (c) . H 98 MUNICIPAL CORPORATIONS. Sect. 60. Time and mode of election of mayor, (3.) An outgoing alderman^ althougli mayor elect {d), shall not vote, (4.) Every person entitled to vote may vote for any number of persons not exceeding the number of vacancies, by signing and personally delivering at the meeting to the chairman a voting paper containing the surnames and other names and places of abode and descriptions of the persons for whom he votes (e), (5.) The chairman, as soon as all the voting papers have been delivered to him, shall openly produce and read them, or cause them to be read, and then deliver them to the town clerk to be kept for twelve months. (6.) In case of equality of votes the chairman, although as an outgoing alderman or otherwise not entitled to vote in the first instance, shall have the casting vote. (7.) The persons, not exceeding the number of vacancies, who have the greatest number of voters, shall be declared by the chairman to be, and thereupon shall be, elected (/). (a) When tlie ninth falls on a Sunday, &c., the election must take place the next day. (See sect. 230.) (6) If there is a special meeting of the council on the same day as the quarterly meeting, the election cannot be held at such meeting ; but at the (quarterly meeting at noon. (c) The out-going aldermen are, however, entitled to vote in the election of the mayor and sheriff, and it makes no difference that an out-going alderman is the candidate. {Eeg. v. Madchj, 11 A. & E. 869, 886.) (d) The expression " mayor elect" is usually confined to the mayor who has been elected, but has not yet qualified. If an out-going alderman should be elected mayor, and should take office, it is presumed that he would form an integral part of the council and be entitled to vote. (e) See sect. 241 as to misnomer and inaccurate description of any person or place in a voting paper and the notes thereon. (/) The method of election here set forth must be strictly followed. There is a growing desire on the part of councils to enter upon a preliminary discussion, and with this ^dew to propose in open council certain persons as candidates for the vacant chairs. The Act does not authorize any such procedure ; but observations of a general character have been allowed, in some instances on a motion for the " adjournment of the hall," but this is a dangerous practice. Election of Mayor. 61. — (1.) The ordinary day of election of mayor shall be the ninth of November (a) . 45 & 46 VICT. c. 50. J59 (2.) The election of mayor shall be the first business Se ct. 6 1. transacted at the quarterly meeting of the council on the day of election {b) . (3.) An outjToing alderman may vote, although the person for whom he votes is an alderman. (4.) In ease of equality of votes, the chairman, although not entitled to vote in the first instance, shall have the casting vote (c) . (a) See sect. 230. (b) This is verj'- definite, and the confirmation of the minutes of the last preceding council should be left uutil the mayor, sheriff, and aldermen have been elected. (c) When the mayor is to be re-elected, a chairman should be appointed, as the mayor cannot preside at his own election. The general principle is stated in the following maxim, Nemo debet esse judex in proprid caiisd. Election of Auditors and Assessors. 62.— (1.) The ordinary dav of election of elective Time and mode or auditors shall be the first of March, or such other day as election of the council, with the approval of the Local Government auditors and Board («), from time to time appoint. (2.) The ordinary day of election of revising assessors shall be the first of March (b) . (3.) If the election of elective auditors and that of revising assessors are held at the same time, then at the poll one voting paper only shall be used by any person voting. The names of the candidates for the respective offices shall be therein separate, and distinguished so as to show the office for which each is a candidate, and the pro- visions of the Ballot Act, 1872, shall be varied accord- ingly ; but in the counting of the votes every voting paper shall be deemed to be a separate voting paper in respect of each office, and any objections thereto shall be con- sidered and dealt with accordingly. (4.) An elector shall not vote for more than one person to be elective auditor or revising assessor (c) . (5.) Elections of elective auditors and of revising assessors shall be held at tlie town hall or some one other convenient place appointed by the mayor. assessors. h2 100 :muxicipal coepoeatioxs. Sect. 62. (6.) Save as in this section provided, all the provisions of this Act with respect to the nomination and election of councillors for a borough not having wards shall apply to the nomination and election of elective auditors and re- vising assessors [cl) . (a) The power to alter the clay of election with the consent of the Local Government Board has been acted on in some horoughs ; but where there are revising assessors to be elected, it is not advisable to alter the day. (b) See sect. 2.30 when this day falls on a Sunday, &c. (c) This provision secures a representative to the minority. It is very seldom that there is a contested election for these ofl&cers, since one party must have an enormous preponderance to be able to carry both candidates when each burgess can only vote for one candidate. (d) The number of compartments at such an election will be very much less than at an election for councillors. Right of women to vote. PoUing districcs. Supplemental and Exceptional Provisions. 63. For all purposes connected with and having re- ference to the right to vote at municipal elections words in this Act importing the masculine gender include women {a). {a) See Preface. The 32 & 33 Vict. c. 55, s. 9, which enacts that in the Municipal Corporations Acts words importing the masculine gender shall include females for all purposes connected with the right to vote at the elec- tion of councillors, auditors, and assessors, has reference only to the disability of women by reason of sex, and has no reference to the dis- ability by reason of the status of coverture. And the Married Women's Property Act (33 & 34 Vict. c. 93) has no reference to the political disabilities of married women. It was held, therefore (on a rule for a quo tcarranto against a town councillor who had been elected by a majority of one), that a married woman, though qualified by occupation and payment of rates, and put on the burgess Hst, can- not vote at the election of town councillors. It follows that a woman who is rightly on the burgess list, but married before the election, is also disqualified from voting. {Reg. v. Harrakl, L. K. 7 Q. B. 361.) It seems, therefore, that the Married Women's Property Act, 1882, does not increase a woman's political rights. 64. The council may divide the borough or any ward into polling districts, and thereupon the overseers shall, as far as practicable, make out the parish burgess lists so as to di^dde the names in conformity with the polling districts. 45 & 46 VICT. c. 50. 101 65. Any notice required to be given in connexion Sect. 65. "with a municipal election may, as to elective auditors and Notices ub to revising assessors, be comprised in one notice, and may, elections, as to ward elections, comprise matter necessary for several wards. 66. — (1-) On a casual vacancy in a corporate office, Time for the election shall be held within fourteen days after notice ^"'"^ ?*^"*^ • •' vacancies. in writing of the vacancy has been given to the mayor or town clerk by two burgesses. (2.) Where the office vacant is that of mayor, the notice • of the meeting for the election shall be signed by the town clerk {a) . (3.) In other cases the day of election shall be fixed by the mayor (b). (a) The language of this sub-section differs from that of the next ; but as the town clerk must sign the notice of meeting, it is certain that he must also tix the date thereof. (6) As to the notice to be giveu of the election of a councillor, see sect. 54. 67. — (1-) If the mayor is dead, or is absent or other- Illness, &c., wise incapable of acting in the execution of his powers returuinff*^^ and duties as to elections under this Act, the council shall oflBcer. forthwith choose an alderman to execute those powers and duties in the place of the mayor («) . (2.) In case of the illness, absence, or incapacity to act of the alderman assigned to be returning officer at a ward election, the mayor may appoint to act in his stead another alderman, or, if the number of aldermen does not exceed the number of wards, a councillor not being a councillor for that ward, and not being enrolled in the ward roll for that ward. (rt) If the iiuiyur were dead a casual vacancy would occur, and would liL- tilled under the preceding section. The council meeting to appoint an alderman to execute those powers and duties which the mayor, on account of his absence or incapacity, cannot execute, must be duly convened in the ])rescribed manner. Sect. 3(j of the Act of 1835, contained similar enactments to those in this Act. The following case arose thereon : In a borough not divided into wards, the mayor being returning 103 MUNICIPAL CORPOEATIONS. Note officer, offered himself for re-election as town councillor, and the Sect. 67. council elected one of the aldermen to act at the election in the place of the mayor : — It was held that the mayor was not disqualified as a candidate, but could not act as returning officer ; that he was in- capable of acting within the meaning ot the section ; and, conse- quently, that the appointment of the alderman as substitute and the election were valid. {Reg. v. miite, L. R. 2 Q. B. 418.) Election of 68. It' a person is elected councillor in more than one councillor in J- _ _ more than one ward, lie sliall^ "witliin three days after notice thereof (a) , ward. choose^ by writing signed by him and delivered to the town clerk,, or in his default the mayor shall, within three days after the time for choice has expired, declare, for which of those wards he shall serve, and the choice or declaration shall be conclusive. (a) See. sect. 34, and the notes thereon. Elections not in churclies. 69. A municipal election shall not be held in any church, chapel, or other place of public worship [a). {a) A school-room under a chapel and forming part of the chapel premises, and used for religious w^orship by Sunday-school scholars and their teachers, would probably come within this section. Omission to hold election, or election void. "70. — (!•) If a municipal election is not held on the appointed day or within the appointed time, it may be held on the day next after that day or the expiration of that time. (2.) If a municipal election is not held on the appointed day or within the appointed time, or on the day next after that day or the expiration of that time, or becomes void, the municipal corporation shall not thereby be dissolved or be disabled from electing, but the High Court may, on motion, grant a mandamus for the election to be held on a day appointed by the court. (3.) Thereupon public notice of the election shaU, by such person as the court directs, be fixed on the town hall, and shall be kept so fixed for at least six days before the day appointed for the election, and in all other re- spects the election shall be conducted as directed by this Act respecting ordinary elections. 45 & 46 VICT. c. 50. 103 71. — (1.) If a parish burgess list is not made or re- S ect. 7 1. vised in due time^ the corresponding part of the burgess Burgess roll roll in operation before the time appointed for the revision ^ ^^^ m opera- shall be the parish burgess list until a burgess list for the revision of parish has been revised and become part of the burgess "'^^ ijurgess roll. (2.) If a burgess roll is not made in due time, the burgess roll in force before the time appointed for the revision shall continue in force until the new burgess roll is made. 72. An election shall not be invalidated by non- ^"p'^-'^o™- , 1 mi - 1 o 1 1 1 phance With compliance with the rules in the Tliird feehedulc^ or rules, mistake in the use of the forms in the Eighth Schedule, if it appears to the court having cognisance of the question that the election was conducted in accordance with the principles laid down in the body of this Act (a) . (a) An election is to be declared void by the commou law appli- cable to parliameutary elections if it lias been so conducted that the tiil)unal which is asked to avoid it is satisfied, as matter of fact, either that there was no real election at all, or that the election was not really conducted under the subsisting election laws — that is, that the constituency have not, in fact, had a fair and free opjjortunity of electing the candidate -which the majority might prefer, or that there is reasonable ground to believe that a majority of the electors may, by reason of irregularities in the mode of conducting the election, have been prevented from electing the candidate they preferred. To render an election void nnder the Ballot Act by reason of a non- observance of or non-compliance with the rules or forms given therein, such non-observance or non-compliance must be so great as to satisfy the tribunal before which the validity of the election is contested that the election has been conducted in a manner contrary to the princiide of an election by ballot, and that the irregularities complained of did all'ect or might have affected the result of the election. (JFoodimrd v. Sarsoiis, L. K. 10 C. P. 733 ; 32 L. T. E. (n.s.) 867.) A candidate at a municipal election was twice nominated, one nomination being good, but the other being bad. His name appeared in the ballot jjapers twice, once in respect of each nomination. Seventy-one voters appended their marks to his name under one nomination, and 301 under the other. All the voters so voting intended to vote for the candidate, and if l)otli classes of voters could be added together he had a majority, and was entitled to be returned. It was held, that having been duly nominated, and having a majority of votes, he was entitled to be retiu'ued. (Northcotc v. Pulsford, L. R. IOC. P. 476.) 104 MUNICIPAL CORPORATIONS. Note Sect. 72. At the annual election for the town of N., the town clerk issued a notice in the prescribed form, stating the last day for the delivery of nomination i^apers to be Saturday, the 23rd of October. This did not leave seven clear days between that day and the day of election, November 1st. Some nomination papers were delivered on Friday, the 22nd, and others on the Saturday folloAving. Held, that the notice published by the town clerk being so defective as to be calculated in the opinion of tlie court to mislead the candidates and so i^revent a fair election, the whole proceeding must be declared void, and a new election ordered. (Howes v. Turner, L. R. 1 C. P. D. 670.) months. Election 73. Every municipal election not called in question questioned within twelve months after the election, either by election within twelve petition or by information in the nature of a quo war- ranto, shall be deemed to have been to all intents a good and valid election [a) . (a) See Bx parte Birkbeclc, L. R. 9 Q. B. 256. In this case Black- burn, J., decided that an alderman became disqualified when he ceased to occupy, and that the twelve months iinder sect. 23 of 7 Will. 4 and 1 Vict. c. 73, began to run from that time, and not from the time when he ceased to be on the burgess roll. The text in the Act has slightly altered the law. In the case last cj noted, however, Blackburn, J., said "tlie party nuiy still run the risk of penalties if he acts while disqualifiect" OfiFences in relation to nomination papers. "74. — (1-) If any person forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the town clerk any forged nomination paper, knowing it to be forged, he shall be guilty of a misdemeanor, and shall be liable to imprisonment for any term not exceed- ing six months, with or without hard labour. (2.) An attempt to commit any such offence shall be punishable as the offence is punishable. Offences in relation to lists and elections. 75. — (!•) If a mayor or revising assessor neglects or refuses to revise a parish burgess list, or a mayor or alderman neglects or refuses to conduct or declare an election, as required by this Act, he shall for every such offence be liable to a fine not exceeding one hundred pounds, recoverable by action. (2.) If- (a.) An overseer neglects or refuses to make, sign, or 45 & 46 viuT. 0. 50. 105 deliver a parish burgess list, as required by this Sect. 75. Act; or (b.) A town clerk neglects or refuses to receive, print, and publish, a parish burgess list or lists of claimants or respondents, as required by this Act; or (c.) An overseer or town clerk refuses to allow any such list to be inspected by a person having a right thereto ; he shall for every such neglect or refusal be liable to a fine not exceeding fifty pounds, recoverable by action («). (3.) An action under this section shall not lie after three months from the neglect or refusal. A moiety of any fine recovered therein shall, after payment of the costs of action, be paid to the plaintiff, (a) See King v. Burrell, 12 A. & E. 460 ; 4 P. & D. 207 ; King v. Shore, 3 Q. B. 31 ; 2 G. & D. 453 ; Clarke v. Gant, 8 Exch. 252 ; Himt V. HihU, 29 L. J. Ex. 222 ; Harwich {Mayor, tScc, of) v. Grant, 5 E. & B. 182. It would seem that the town clerk should see that there is a perfect list exposed every morning under Rule 7 of Part I. Sched. III. to avoid this penalty, (it. v. Rochester {Mayor, 164 MUNICIPAL CORPORATIONS. Note. cisinc,' the office of sheriff of any county shall use or exercise the office Sect. 157. of justice of tlie peace in any county where he shall he sheriff, during the time of his exercising the office of sheriff. This provision has not hpen affected hy any subsequent additions to the duties of the justices of the peace. '{Ex parte 0. E. Cukille, L. R. 1 Q. B. D. 133.) (b) This distance is to he measured under sect. 231. Jurisdiction 158. — (1.) A justice foi' a horougli shall^ with respect iustices. ^o offenccs committed and matters arising within the borough [a), have the same jurisdiction and authority as a justice for a county has under any local or general Act {b) with respect to offences committed and matters arising within the county ; except that he shall not, by virtue of his being a justice for the borough, act as a justice at any court of gaol delivery or quarter sessions, or in making or levying any county or borough rate (c). (2.) A justice shall not be disabled from acting in the execution of this Act by reason of his being liable to the borough rate {d) . (a) Not only is the jurisdiction and authority of justices limited to matters aiising within their districts, but, generally speaking, they can only exeicise their powers whilst they are themselves within that district. For extensions of this rule, see 11 & 12 Vict. c. 42, ss. 2-7, and 36 & 37 Vict. c. 60. Merely ministerial acts, such as receiving informations, taking recognizances, &c., may be done else- where. \fie.e Neivbouhl v. GoUman, 6'Exch. R. 189; 20 L. J. M. C. 149 ; 16 L. T. 488, and the cases there cited.) {h) " Local Act." This must mean only as to those matters in the nature of offences arising in the borough. (f) The following Acts, namely, 12 & 13 Vict. c. 64. s. 1, and 15 & 16 Vict, c. 38, refer to the jurisdiction of borough justices in relation to the relief of the poor. As to the appointment of overseers by the borough justices, see 12 & 13 Vict. c. 8, and 15 & 16 Vict. c. 38. (cZ) There is a similar provision in sect. 2 of the 30 & 31 Vict, c. 115. In that section the incapacity is not to attach to a justice ef the peace by reason only of liis being as one of several ratepayers, or as one of any other class of persons, liable in common with the others to contribute to, or to be benefited by any fund, to the account of which the penalty payable is to be carried, or to contribute to any rate or expenses in diminution of which such penalty will go. The Public Health Act, 1875 (sect. 258), contains provisions by which no justice of the peace shall be deemed incapable of acting in cases arising under that Act by reason of his being a member of the local authority, or being a ratepayer, or one of a class liable to con- tribute to, or to be benefited by any rate or fund out of which expenses are to be defrayed. The case of E. v. Meyer (L. R. 1 Q. B. D. 173 ; 34 L. T. R. (n.s.) 247), arose on the construction of this section. In that case M., wlio was chairman of the board, and had taken an active part in its proceedings, sat with three other justices on the 45 & 4G VICT. c. 50. 165 Lencli, and adjudicatod on a snmmoiis taken out hy tlie board acjainst Note, a pci;>oii for a nuisance. He was objected to as a justice, Init he Sect. 158. renuxined. The person summoned was convicted. Held, that M. had sucli an interest as gave him a real bias in the matter, conse- quently he ouglit not to have sat as a justice. The case of lieg. v. Millcrje and Others (L. R. 4 Q. B. D. 332, 48 L. J. M. C. 13!); 40 L. T., (n.s.) 748), arose on the same section. In that case comphiint having been made to the Local Government Board of a nuisance upon 2>remises belonging to B. in the borougli of W., the board communicated with the town council of W., who were the urban sanitary authority, under the Public Health Act, 1875, and recjuired them to abate the nuisance. The council having made incpiiries, passed a resolution that steps should be taken for the removal of the nuisance, and took out a summons against B. At the hearing an order for the abatement of the nuisance was made. Two justices who were ju'esent were luemljcrs of the council when the resolution Avas passed. Held, tliat the councillors who were judges had such an interest as might give them a bias in the matter, and consequently they ought not I.) have sat as justices upon the hearing of tlie summons, and that tlu rule for a certiorari to (juash the order must be made absolute. The case of liec/. v. Lee and Others (L. R. 9 Q. B. D. 394) arose on the same section of tlie Public Health Act, 1875. In the borougli of Wakeiield the sanitary committee of the council, Avho were the local authority under the Public Health Act, 1875, passed a resolution directing the town clerk to prosecute S. for exposing for sale meat unfit lor human food, contrary to the provisionsof the Act, and at the hearing of an information laid in pursuance of this resolution, S. was convicted before four justices of the borough, who imposed a penalty upon him. One of the justices was a member of the sanitary committee, and had been jiresent at the meeting at which the above resolution was passed. Held, that sect. 258 did not remove the disqualification which attached to the justice by reason of his having acted as a member of the sanitary committee in directing the prosecution, and that a rule for a certiorari to bring up and ipiash the conviction must be made absolute. In this case. Field. J., said : " I am of opinion that sect. 258 of the Public Health Act, 1875, has not the effect of enabling a person to act as prosecutor and judge in the same matter." From that case it apjiears, however, that if a justice had not acted as a member of the council when dii'ecting a iirosecution, he would be sutliciently disinterested to be able to sit as judge at the hearing. A similar decision was given in the case of Eeg. v. Justices of Great Yarmouth. (L. P. 8 Q. B. D. 525.) At a special sessions for appeals against a poor-rate, the chairman of the magistrates, who was himself appellant in one of the cases for hearing, took pait in the decisicjn of all the cases except his own. When his own case A\as called on, he left the bench and went to the body of the court and conducted the case himself. On a rule for a certiorari to bring up all the orders for the purpose of quashing them, held by Field and Bowex, J. J., that the chairman being a litigant in a matter similar to the iitlier matters before the court, was dis(|ualilied from acting as a justice, and that the orders were bad. Before the sessions were held, the a])]H'llant gave notice to the clerk of the justices, that ubjei tion would be made " if any justices who were rated 'in Yarmouth heard the appeals." At the hearing this objection and 166 MUNICIPAL CORPORATIONS. Note. no otlier was marie, and it vras overruled by the justices. Held, that Sect. 158. the appellants were not prechided by the form ot their notice from contending in support of the rule for a certiorari that the chairman, even if not disqualified by reason of his being rated, was disqualified by reason of his being himself a litigant, although this latter objectioa was not specifically mentioned in the notice or made before the justices. By a local Act for the improvement of a borough, the corporation was made the authority for the execution of the Act, with power to direct prosecutions for this purpose. An information for an offence under the Act having been preferred by an officer on behalf of the corporation, a summons was issued upon it by a justice, Avho was also an alderman and member of the corporation, but came on for hearing before justices none of whom were connected with the corporation. Held, notwithstanding, that such justices could not jinjceed Avith the hearing of the summons, for it had been issued liy one Avho was virtually prosecutor. {Reg. v. Gibbon and Another, L. R. 6 Q. B. D. 168.) The decision in this case was disapproA'ed in the case of Reg. v. Handsley, L. E. 8 Q. B. D. 383. In the case of Reg. v. The Justices of Huntingdon, L. E. 4 Q. B. D. 522, three justices who were members of the town council of the borough, and as such had taken an active part in the making of an order under the Dogs Act, 1871, sat to hear a complaint of non- observance of the order. Held, that they had no such interest in the subject matter as to oust their jurisdiction. Where by statute a member of the council may act as a justice of the peace in matters arising in his district, in order to disqualify him from acting, it is not sufficient to show that, as a member of the council, he has a pecuniary interest in the result of the information or complaint, or that the corporation, of which he is a member, are the prosecutors. It must be established that he has such a substan- tial interest in the result of the hearing as to make it likely that he has a real bias in the matter. An officer of the corporation appointed to collect the borough rate, obtained a summons against a ratepayer in arrear. In so doing he acted in the discharge of his duty, but on his own responsibility and without consulting the council. At the hearing the justices dismissed the summons, on the groimd that one of the sitting magistrates being a town councillor was thereby disqualified from adjudicating upon the summons. On motion for a vuaidamvs to the justices to hear and adjudicate on the summons, Cave, J. said : " "We are of opinion that in cases like the present where such a section exists, it is not enough to show merely that au adjudicating justice is a member of the town council, and, as such, has a pecuniary interest in the result of the complaint or information, or that he is a member of the corporation which is charged with the duty of prosecuting the oftence which he sits to adjudicate upon ; but that in order to disqualify the justice, it must be established that he has such a substantial interest in the result of the hearing as to make it likely that he has a real bias in the matter. In our opinion there is in this case no groiind whatever for saying that there was any such substantial interest or likelihood of real bias, and consequently tlie rule must be made absolute. {Reg. v. Handsley, L. E. 8 Q. B. D. 383. Sec also Reg. \. Mayor and Justices of Deal, ex parte Curling, 45 L. T. (x.s.) 439.) 45 & 46 VICT. c. 50. 167 159. — (1-) 'i^lie justices for a borougli shall from Se ct. 1 59. time to time appoint a fit person to be their clerk, to be Clerk to rcmoval)le at their i)leasurc (a). borou.^h ■"■ / . . justices, (2.) They shall not appoint or continue as their clerk an alderman or councillor of the borough, or the clerk of the peace of the borough, or of the county in which the borough is situate, or the partner of any such clerk of the peace. (3.) The clerk to the justices shall not, by himself or his partner or otherwise, be directly or indirectly employed or interested in the prosecution of any ofteuder committed for trial by those justices, or any of them, at any court of gaol delivery or quarter sessions (b). (4.) If any person acts in contravention of the last fore- going provision of this section, he shall for every offence be liable to a fine not exceeding one hundred pounds, recoverable by action. (5.) One moiety of any fine so recovered shall, Avith costs, be paid to the person bringing the action to re- cover it. (6.) Nothing in this Act shall prevent the justices for a borough from re-appointing as their clerk any person being clerk of the peace of the borough or of the county in which the borough is situate, or partner of any such clerk of the peace, if the person re-appointed was, on the sixth of August one thousand eight hundred and sixty-one, or has not ceased to be at the time of re-appointment, the clerk of those justices. (a) Provisions are made by the 14 & 15 Vict. c. 55, and tlie 40 & 41 Vict. c. 43, under ■\vliich clerks to tlie justices must be ])aid Ly salary. {Sec Appendix for the sections of the statutes relating to this subject.) As the clerk holds t)ffice during the pleasure of the justices, a quo warranto is not the proper method to remove him from his ofHcc. (h) A person interested may, however, be appointed clerk, and the office is not vacated by the clerk becoming interested. The clerk is only lialile to the penalty. {Reg. v. Fox, 1 E. & E. 729, 74G ; 28 L. J. M. C. 157.) 160. — (1) ^J^'l^c council of a borough liaving a sepa- Justices room, rate commission of the peace shall provide and furnish a 168 MUNICIPAL CORPORATIONS. Sect. 160. suitable justices room, with offices, for the business of the borough justices {a). (2.) No room in a house licensed for the sale of intoxi- cating liquors may be used for this purpose. (a) See section 105. Appointment of stipendinry magistrate. Siijjendianj Magistrate. 161. — (1.) If the council desire the appointment of a stipendiary magistrate («) for the borough, they may present a petition for the appointment to the Secretary of State, and thereupon it shall be lawful for the Queen to appoint to that office a barrister of seven years [b) standing. (2.) He shall hold office during Her Majesty\s pleasure. (3.) He shall, by virtue of his office, be a justice for the borough. (4.) There shall be paid to him such yearly salary, not exceeding, except with the consent of the council, that mentioned in the petition, as Her Majesty from time to time directs, (5.) It shall be paid by four equal quarterly payments, and in the same proportion up to the time of his death or ceasing to act. (6.) On a vacancy, a new appointment shall not be made until the council again make apj^lication as before the tirst appointment. (7.) More than one stipendiary magistrate may be ap- pointed for a borough. («) " Stipendiary magistrate" is used as a more appropriate plirase than " police magistrate." A stipendiary can act alone, where two other justices are required. {Sec 21 & 22 Vict. c. 73.) (6) " Seven years ;" this was formerly " five years " only. Grant of separate court of quarter sessious. Borough Quarter Sessions : Recorder : Clerk of the Peace. 162. — (1.) It shall be lawful for the Queen, on the petition to Her Majesty in Council of the council of a borough, to grant that a separate court of quarter sessions be holden in and for the borough. 45 (4; 46 VICT. c. 50. 169 (2.) The petition sliall set forth tlie grounds of the Sect. 162. application and the salary which the council are willing to pay to the recorder. (3.) The grant may be made on and subject to such terms and conditions^ if any, as to Her Majesty in Council seem fit. (4.) AVithin ten days after the receipt of the grant the council shall send a copy thereof, sealed with the corpo- rate seal, to the clerk of the peace of the county, or each county if more than one, in which the borough or any part thereof is situate. 163. — (1.) It shall be lawful for the Queen from The recorder, time to time to appoint for a borough having a separate court of quarter sessions a barrister of five years standing to be recorder of the borough. (2.) He shall hold office during good behaviour. (3.) He shall, by virtue of his office, be a justice for the borough. (1.) He shall not act as recorder, or as a justice, until he has taken the oaths required to be taken by a borough justice, and made before the mayor or two other members of the council a declaration as in the Eighth Schedule. (5.) He shall liave precedence in all places within the borough next after the mayor. (G.) He shall not, during his office, be eligible to seiTe in Parliament for the borough, or be an alderman, councillor, or stipendiary magistrate of the borough ; but he may be appointed revising barister for the borough, and shall be eligible to serve in Parliament except for the borough. (7.) There shall be paid to him such yearly salary, not exceeding that stated in the petition on which the grant of a separate court of quarter sessions was made, as Her Majesty directs; but the same may at any time be in- creased by resolution of the councib approved l)v the Secretary of State, without the resignation and re-appoint- ment of the recorder being necessary. 170 MDNICIPAL COliPUEATIONS. Sect. 163. The clerk of the peace. (8.) A jierson may be appointed recorder of two or more boroughs conjointly. 164:. — (1.) The council of a borough having a sepa- rate court of quarter sessions shall from time to time appoint a fit person to be the clerk of the peace for the borough. (2.) The clerk of the peace shall hold office during good behaviour. (3.) The clerk of the peace may from time to time^ by writing signed by him, appoint a fit person to act as deputy for him, in case of his illness, incapacity, or ab- sence. (4.) The appointment of the deputy shall be signified in writing, signed by the clerk of the peace, to the council, and shall be recorded in their minutes. (5.) Where a table of the fees to be taken by the clerk of the peace has been made by the council and confirmed by the Secretary of State, and is for the time being in force, the clerk of the peace, if paid by fees, may take the fees to which he appears by that table to be entitled. (6.) The council may from time to time make a new table of the fees to be taken by the clerk of the peace, but shall submit everv such tabic to the Secretarv of State for confirmation, and he mav confirm and allow the same, either as submitted, or with such alterations, addi- tions, or abatements as he thinks proper, and any such table shall be of no validity until it is so confirmed («). (a) The clerk of tlie peace may Le paid Ijv salary. (»S'ee 14 & 15 Yict. c. 55.) The recorder has power to remove him for misconduct in his office. (See R. V. Hmjward, 2 B. & S. 585 ; 31 L. J. M. C. 177.) When the misconduct is otherwise than in the execution of his office two justices may exhibit against him to the quarter sessions a comphiint, and the recorder may after due examination suspend or remove him. There is an appeal to the Lord Cliuncellor. {See " Tlie Clerks of the Peace Removal" Act, 1864 (27 & 28 Yict. c. 65).) Eecordcr to hold court of quarter sessions. 165. — (i-) The recorder shall hold, once in every quarter of a year, or oftener, if and as he thinks fit, or the Secretary of State dircct.s, a court of quarter sessions in and for the borough. 45 &, 4(3 viL'T. c. 50. 171 (2.) lie shall sit as sole judge of the court. Sect. 1G5. (3.) Tlie court .shall he a court of record, and shall ha\ c cognizance of all crimes, offences, and matters cognizable by courts of quarter sessions for counties in England ; and the recorder shall, notwithstanding his being sole judge, have power to do all things necessary for exercising that jurisdiction as fully as those courts (a). (4.) But the recorder shall not, by virtue of his office, have power {a.) To allow, apportion, make, or levy any borough rate ; or {b.) Subject to the provisions of this Act respecting appeals from a rate {b), to do any act in relation to the allowance, apportionment, making, or levying of any rate whatsoever ; or (c.) To grant any licence or authority to any person to keep an inn, alehouse, or victualling house to sell cxciscable liquours by retail; or {(L) To exercise any power by this Act specially vested in the council. (n) The recorder may hold his court of (quarter sessions during the time of the assizes for the county in which the Ijorough is situate ; as his authority is not determined by the judges coming into the county to hold the assizes. {Smith v. Rcrj. 13 Q. B. 738; IS L. J. M. C. 207.) Tlie recorder has no power to hear an appeal against the refusal of borough justices to gx-ant a publican's licence. {1\\ v. Deane, 2 Q. B. 96; 1 G. & I). ■2'.)-2, and see 11 v. Bristol (Recorder), 4 E. & B. 265. See also 9 Geo. 4, c. 61, s. 27.) The recorder has cognizance of appeals against orders of removal made by borough justices notwithstanding the language of the 6th section of the 8 & 9 AVill. 3, c. 3(t, whicli prm'ides that such aitjieals shall be heard at the sessions for the county and not elsewhere. (A*, v. Salop JJ. 2 Q. B. 85 ; R. v. Suffolk J J. ih. 72.) So the recorder may try an indictment for keeping a dis(n-derly house under 25 Geo. 2, c. 36. (A', v. Charles, 1 L. & C. 90.) Also an appeal against an order of borough justices directing payment of the exjienses incurred by removing a pauper lunatic to an asylum, under 9 Geo. 4, c. 40, s.6.2. (A*, v. St. Laurence (IiiJiabitants), 11 A. & E. 170.) An appeal against an order I'or the maintenance of a pauper lunatic, under 8 & 9 Vict c. 12G, s. 62, must be to the sessions liaving jurisdiction in the place from which the pauper was removed ; and if that pbice is a parish within the borough, the apjieal must be to tlie bormigh, and not to the county justices. (A*, v. Lancasliirc, 18 Q. ]>. 361 ; 21 L. J. M. C. 164. Sec also 12 (). B. 305.) So where county justices, having concurrent jurisdiction with l)orougli justices, have made an urder tit" removal of a pauper from a parish within the borough, the appeal lies 172 MUNICIPAL CORPORATION'S. Nots. Sect. 165. Power to appoint deputy recorder. to tlie Lorongli and not to the county sessions. (R. v. Liverpool (Recorder), \d Q. B. 1070.) And the notice of appeal under 11 & 12 Vict. c. 31, s. 9, will be .sufficient, although it erroneously states the appeal will be to the county sessions. (R. v. Liverfwol (Recorder), 15 Q. B. 1070 ; R. v. Bucks JJ.4E& B. 2.59, n. ; 24 L. J. M. C. 15, n.) As to the costs where such an erroneous notice is abandoned see R. V. Leeds (Recorder), 3 E. & E. 561 ; 30 L. J. M. C. 86. Where the appellants, having given notice of appeal to the borough .sessions, appeared there, when on objection being made that the appeal lay properly to the county sessions, the appeal was dismissed ; it was held that the appellant could not afterwards treat the notice as one of appeal to the county sessions. (R. v. Salop JJ. 4 E. & B. 257 ; 24 L. J, M. C. 14.) A recorder has power to reserve a case for the court of criminal appeal under 11 & 12 Vict. c. 78. (R. v. Masters, 1 Den. C. C. R. 332 ; 3 New Sess. Ca. 326. See Smith's Practice at Quarter Sessions, and Archbold's Practice at Quarter Sessions.) (h) Sub-sects. 9 & 10 of the 144th section. 166. — (1.) The recorder may, in case of sickness or unavoidable absence, appoint, by writing signed by liim, a barrister of five years standing to act as deputy recorder at the quarter sessions tlien next ensuing or then being held, and not longer or otherwise. (2.) But the sessions shall not be illegal, nor shall the acts of a deputy recorder be invalid, by reason of the cause of the absence of the recorder not being unavoid- able. mayorhf 167.— (L) In the absence of the recorder and deputy absence of recorder, the mayor shall, at the times for the holding of deTufr '^"'^ *^^^ ^^^"'^ °^ quarter sessions, open the court, and adjourn recorder. the holding thereof, and respite all recognizances condi- tioned for appearing thereat, until such day as he then and there, and so from time to time, causes to be pro- claimed. (2.) But nothing in this section shall authorize the mayor to sit as a judge of the court for the trial of offenders, or, save as aforesaid, to do any other act in the character of a judge of the court. fecoi'dcrTo 168.— (D If at any time it appears to the recorder form a second that the quarter sessions arc likely to last more than three court. days, including the day of assembling, he may in his discretion, but subject to the provisions of this section, 45 & 46 wry. r. 50. l-'5 order a second court to be formed, and appoint by writing Sect. 163. signed by him a barrister of five years standing to preside tlierein, and try such felonies and misdemeanours as shall be referred to him therein. (2.) The barrister so appointed shall be styled assistant recorder, and shall have and. exercise the same powers, subject to the same regulations (save as regards the making of a declaration as in the Eighth Schedule) as the recorder; aiid the proceedings had by and before the assistant recorder shall be as eifcctual as if had by or before the recorder, and shall be enrolled and recorded accordingly. (3.) But the assistant recorder shall not have any power or jurisdiction except while the recorder is sitting iu quarter sessions ; save that the assistant recorder may finish any case in which the prisoner has pleaded, and iu the trial whereof the assistant recorder is actually engaged at the time when the recorder ceases to sit, and may sentence any prisoner tried before him, but not then sentenced. (4.) If at any time during the sitting of the second, court the recorder is of opinion that it is no longer required, he may direct the assistant recorder at a proper opportunity to adjourn it. (y.) Where a second court is so formed, the clerk of the peace shall, on the request of the recorder, appoint an assistant, and the recorder shall appoint an additional crier for the second court. {().) The recorder shall not exercise the powers given by this section unless — {ri.) It has been before each quarter sessions certified to him in writing signed by the mayor or two aldermen or the town clerk that the council have resolved that it will be expedient that those powers be exercised ; and (i.) The name of the barrister to be appointed lias at some previous time been approved by the Secretary of State as that of a fit person to be from time to time so appointed. (7.) Where a resolution of the council is so certified, 174 MUXICIPAL COEPORATIOXS. Sect. 168. the resolution and certificate shall, if the resolution so provides, continue in force during twelve months from the date of the resolution, and during such continuance no fresh resolution or certificate shall be necessary. (8.) An assistant recorder, assistant clerk of the peace and additional crier shall have remuneration as appearing by the Fourth and Fifth Schedules. (9.) The powers given to the recorder by this section may be exercised by the deputy recorder. (10.) Appointments made and certificates given under this section shall not be subject to any stamp duty or other tax. Liability of borough having quarter sessions for prosecutors expenses. 169. A municipal corporation of a borough having a separate court of quarter sessions shall be liable to pay the costs and expenses attending the prosecution of any felony committed or supposed to have been committed in the borough, and of any other offence committed or supposed to have been committed in the borough the costs and expenses attending the prosecution whei'cof are by laAv pavable as in the case of a felonv. The amount of those costs and expenses shall be ascertained as directed by law, and the order of the court for the payment thereof shall be directed to the treasurer of the borough (a). ((() Can the treasurer pay tliese costs and expenses on the order of the court without an order of the council ? This dejiends upon the construction to he jdaced on sect. 140 read in connection with tlie Fifth Schedule. That schedule is divided into two parts : — (1.) those payments which may he made without the order of the council ; and (2.) thuse payments which may not be made without such order. Among the latter are the costs and expenses payable by the corporation in respect of tlie prosecution or punishment of offenders. It would a]ipear, at first sight, that the treasurer cannot honour the order of the court until he has received the order of the council. This, however, would cause so much inconvenience in practice as to render it imperative that the council should make a standing order du'ecting the treasurer to pay out of tlie borough fund such costs and expenses on the order of the court. Hitlierto it has been the general practice for the treasurer to pay upon the production of the order of the court. A careful examination of sect 140 leads to the conclusion that the legislature did not intend to alter the law in this respect. That section, after specifying in sub sects. 1 and 2 those payments which may be made out of the borough fund, and particularizing the way in 45 Sz 4G VICT. c. 50. \r> M-liicli pncli paymonts shall lio mndc, p;oes on tn spofifv tlio niftliods Note. by which other payineuts may la', made out of the boruiij^h fund ; Sec. IC'J. and amongst these we find the orders of the C(jurt of f[uarter sessions, and such orders arc not rcMj^uiretl to he made Ly llic council. It follows that the onh-r nf llie court is sullicienl. Tlie expenses referred to in liule 6 of Part 2 of the Fifth Schedule mean those incurred Ity (he council, for which there is no order for payment by a court havim;- authority to make the order. This construction of the Act avoiils the anomaly of the court nuiking an order requiring ratification by the couucih It may be that the council would have no discretion, and might be compelled to make the order ; but, then, this reduces the function of the council to a ministerial one, an), and the watch conmiittee may at any time dis- miss, any borough constable whom they think negligent 186 MUNICIPAL COEPORATIONS. Sect. 191. 3 & 4 Vict, c. 88. in the discharge of his duty^ or otherwise unfit for the same. (5.) When a borough constable is so dismissed^ or ceases to belong to the constabulary force of the borough, all powers vested i^^ him as a constable by virtue of this Act shall immediately cease. (6.) Nothing in this secticn shall interfere with the operations of an Act of the session of the third and fourth years of Her Majesty's reign "to amend the Act for the establishment of county and district constables ;'' and throughout that Act a reference to this Act shall be deemed to be substituted for a reference to the INIuni- cipal Corporations Act, 1835, and any Act amending it (c). (rt) Constables were formerly required to take an oath of office. Now, however, by suh-sect. 4 of sect. 12 of the Promissory Oaths Act, 1868, a decLaration is imperatively substituted in lieu of the oath in the case of constables. (See circular from Home Office, 9th July, 1881. See sub-sect. 2 of sect. 239.) A borough constable cannot vote at an election for any municipal office, or for a member of parliament for the borough or the county in which the borough is situate or adjoins, or for any borough in such county. (See 19 & 20 Vict. c. 69, s. 9.) No county constable can vote for the election of any person to any mimicipal office in any borough in his county, or in any other borough in which he has authority. (See 22 & 23 Vict. c. 32, s. 3.) These statutes also prohibit constables for the borough or county endeavouring to influence voters as to the way they shall give their votes. {See the statutes in Appendix.) (6) Under the repealed law, a justice of the peace had power not only to suspend but to dismiss, and any constable so dismissed could not be reappointed without the consent of two justices. This is now modified so as to be more consonant vdih actual practice. (c) This Act was passed for the purpose of amending the Acts for the establishment of county district constables, and it contains pro- visions for the government of consolidated county and borough police forces. (Sec the statute in the Appendix.) Quarterly returns as to borough con- stables. 192. The watch committee shall, on the first of January, the first of April, the first of July, and the first of October in every year, send to the Secretary of State a copy of all rules from time to time made by the watch committee or the council for the regulation and guidance of the borough constables. 45 & 46 VICT. 0. 60. 187 193. A borough constable may, while on dut\'> Sect. 193. apprehend any idle and disorderly person whom he finds Power for disturbing the publie peaee, or whom he has just cause to ^p"'^;}^^^^^^ suspect of intention to commit a felony, and deliver him disorderly into the custody of the borough constable in attendance persons, &c. at the nearest watch-house («), in order that he may be either secured until he can be brought before a justice, or, where the constable in attendance is empowered and thinks fit to take bail^ give bail for his appearance before a justice. ((() " Watdi-house." This is the same as lock-up within the 105th section. 194. If a borough constable is guilty of neglect of Penalties on duty, or of disobedience to a lawful order, he shall for ^go-iect of every such offence be liable on summary conviction to duty. imprisonment for any time not exceeding ten days, or, in the discretion of the court, to a fine not exceeding forty shillings, or to be dismissed from his office. 195 . — (1 •) If any person assaults or resists a borough Penalty for constable in the execution of his duty, or aids or incites constables. any person so to assault or resist, he shall for every such offence be liable on summary conviction to a fine not exceeding five pounds (a). (2.) But nothing in this section shall prevent any pro- secution by way of indictment against any such oficndcr, except that he shall not be prosecuted both by indictment and in a summary manner for the same offence (6). (a) Sect. 12 of the Prevention of Crimes Act, 1871 (34 & 35 Vict, c. lis), provides as follows: Where any person is convicted of an assault on any constable when in the execution of his duty, such person shall be guilty of an oftence agamst that Act, and shall, in the discretion of the court, be liable to pay a penalty not exceeding £20, and in default of payment to be imprisoned, with or >\'itliout hard labour, for a term not exceeding six months, or to be impri- soned for any term not exceeding six, or, in case such person has been convicted of a sinular assault within two years, nine months, with or without hard labour. The question whether the new provision in the Act, imposing a 188 MUNICIPAL COEPOEATIOXS. Note. penalty of £5 for an assault on a borough constable in tbe execution of Sect. 195. liis duty, impliedly repeals the old one, imposing a penalty of £20 for the same offence on any constable, is a prol)lem presenting some difficulty. "WHiere the punishment or jienalty is altered in degree but not in kind, the later provision would be considered as superseding the earlier one (per Lord Abinger in Henderson v. Sherborne, 2 M. & W. 236, and Attorney-General v. Lochvood, 9 M. & W. 391 ; and per Martin, B., in llohinson v. Emerson, 4 H. & C. 355 ; and see E. v. Cator, 4 Burr. 2026). Where a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the pro- cedure, giving, for instance, an ap^^eal Avhere there was no appeal before ; directing something more or different — something more coni]irehensive — the earlier statute is repealed by it (joer cur) in Mitchell V. Brovm, 28 L. J. M. C. 55; 2 E. & E. 267 ; per Bra31well, B., in Ex fcirte Baler, 26 L. J. M. C. 164 ; 2 H. & N. 219). Where a local Act imposed on all persons engaged in gas making who suffered impure matter to flow into any stream, a penalty of £200 for every day the nuisance was continued, payable to the informer, or to the party injured, as the justices thought fit ; and the Gasworks Clauses Act, 1847, afterwards imposed the same penalty on the undertakers of gasworks ; it Avas hekl that the earlier Act was repealed as regarded such undertakers {Parry v. Croydon Gas Convpany, 15 C. B. (n.s.) 568 ; and see Maxwell on the Interpretation of Statutes, p. 152). In the case of Hill, appellant, Hall, respondent, L. R, 1 Ex. D. 411, Cleasby, B., quoted the following from Dwarris on Statutes, 2nd Edit. pp. 530, 531 : " Every afiirmative statute is a repeal of a precedent affirmative statute where its matter necessarily implies a negative, but only so far as it is clearly and indisputably contra- dictory and contrary to the former Act in the very matter, and the repugnancy siich that the two Acts cannot be reconciled." Grove, J., said : " It is common learning that one statute may be impliedly repealed by a subsequent statute necessarily inconsistent with it ; but then the inconsistency must be so great that they cannot both be to their full extent obeyed." This is so in the case under discussion. The offence cannot be punislied under both statutes. They cannot both be obeyed to their full extent. It seems, therefore, the better ojjinion that, to the extent of the offence of assaulting a borough constable in the execution of his duty, the 195th section repeals the 12th section of the Prevention of Crimes Act, 1871. This is the safer solution of the j^roblem, and one that will not defeat the ends of justice. For, in cases of serious assaults, the offenders can be indicted for a misdemeanour under the 2nd sub-section. They will then be tried at quarter sessions. There may be many reasons why the legislature should deem it pi-udent to limit the punishment that can be inflicted by a court of summary jurisdiction. (5) Sect. 38 of 24 & 25 Vict. c. 100, provides that whosoever shall assault, resist, or wilfully obstruct any peace officer in the due execu- tion of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apjjre- liension or detention of himself, or any other person for any offence, shall be guilty of a misdemeanour. 45 & 4G vrr.T. c. 50. 189 Special Constables. 196. — (1.) Two or more of the justices having juris- Sect. 196. diction in a borougli shall, in October in every year, Appointment appoint, by precept signed by them, so many as they o*" special con- think fit of the inhabitants of the borough, not legally ^ '^ 2 Will. 4 exempt from serving the office of constable, to act as ^- 41. special constables in the borough {a). (3.) Every such special constable shall make a declara- ration to the effect of the oath set forth in the Act of the session of the first and second years of the reign of King AVilliam the Fourth, chapter forty-one, '^for amending the laws relative to the appointment of special constables, and for the better preservation of the peace,'-' and shall * have the powers and immunities, and be liable to the duties and penalties, enacted by that Act. (3.) He shall act Avlien so required by the warrant of a justice having jurisdiction in the borough, biit not other- wise. (4.) The warrant shall recite that in the opinion of the justice the ordinary police force of the borough is insuf- ficient at the date of the warrant to maintain the peace of the borough. (5.) Nothing in this section shall make any person having a right to vote at a parliamentary election liable or compellable to serve as a special constable at or during the election. (G.) Special constables shall be entitled to remuneration as appearing by the Fourth and Fifth Schedules {b). {a) This does not supersede the general authority given to tlie justices under the statute mentioned in the margin to appoint special constables on the information that a riot may be apprehended. (/?. v. HuUon, 13 Q. B. 592.) As to persons exempt from serving as special constables, see 5 & 6 Vict. c. 109, ss. 6, 7 ; and 13 & 14 Vict. c. 20, s. 5. (/;) Generally speaking, the inhabitants of a town are the same body as the burgessL-s. The right to vote is nearly co-extensive witli those who are qualified to be appointed special constables. It ap- pears, therefore, tliat during an election the only persons who can be compelh'd to serve as special constables are tlmse inhabitants who have not resided sullicieutly long in a borough to entitle them to be 190 MUNICIPAL CO"RPORATIONS. Note. placed on the burgess roll, or ■\vlio are otliervsT.se disf[ualified from Sect. 196. becomiug burgesses. This is not usually a numerous class, and oftentimes one from which it is undesirable to draw special constables. At such times it is usual to apply to other boroughs for help. To entitle constables from foreign boroughs to act as special constables, they should be appointed by the watch committee, and take the declaration in lieu of the oath, and thus oTjtain the protection afforded to borough constables. County constables can act in a borough by order of the chief constable of such county, or any superintendent in all cases of emergenc}', and in the service of the warrant of a county justice. (22 & 23 Vict. c. 32, s. 2.) 1 & 2 Will. 4, c. 41, above quoted, applies only to tumult, riot, or felony. The oath to be taken by that statute is as follows : " I, A.B., do swear that I will well and truly serve our Sovereign. Lord the King in the office of special constable for the parish (or township) of , without favour or affection, malice or iU-will ; and that I will, to the best of my power, cause the peace to be kept and preserved, and prevent all offences against the persons and pro- perties of his Majesty's subjects ; and that while I continue to hold the said office I will, to the best of my skill and knowledge, dis- charge all the duties thereof faithfully according to law. "So help me God." By sub-sect. 4 of sect. 12 of the Promissory Oaths Act, 1868, a declaration is imperatively substituted in lieu of the above oath, (See Ciixular from Home Office, 9th July 1881. See also sub-sect. 2 of the 239th section.) The pro\asions of the 9th section of 19 & 20 Vict. c. 69, prohibit- ing constables voting, do not apply to special constables. Watch Rate. Levy of ^97 (i.) Where at the commencement of this Act watch rate. ,.,. any rate might be levied m a borough^ or m any part or a borough, for the purpose of watching solely by day or by night, or for the purpose of watching by day or by night conjointly with any other purpose, the council may from time to time make and levy a watch rate on the occupiers of all hereditaments within such parts of the borough as are watched by day and by night, and as are from time to time, by order of the council, declared liable to watch rate. (2.) The watch rate shall be made on an estimate of the net annual value of the several hereditaments rated thereto, that is to say, of the rent at which, one year with another, they might in their actual state be reason- ably expected to let from year to year, the probable 45 & 46 VICT. c. 50. 191 annual average cost of the repairs, insurances, and other Sect. 197. expenses necessary to maintain them in their actual state, and all rates, taxes, and public charges, except tithes or tithe commutation rcntchargc (if any), being paid by the tenant. (3.) The watch rate may be made by one rate made yearly, or by two or more rates made half-yearly or otherwise, and may be of any amount, in the discretion of the council, not exceeding in any year eightpence in the pound on the net annual value of the hereditaments rated thereto. (4.) For the purposes of the watch rate the council and all persons concerned, including overseers, shall have all powers given to them in respect of the borough rate for ordering, making, assessing, levying, raising, collecting, or paying the same, or as near thereto as the nature of the case admits. (5.) The provision of this Act relating to orders of vestries for the rating, in some cases, of owners, instead of occupiers, shall extend to the watch rate. (6.) Nothing in the foregoing provisions of this section (except the general power to levy a watch rate) shall apply to any borough in which the borough fund is suffi- cient with the aid of the amount only of watch rate which could for the time being be raised therein under the Municipal Corporations Act, 1835, and Avithout the aid of any borough rate, to defray the expenses of the constabulary force of the borough, with all other ex- penses legally payable out of the borough fund ; but nothing in the present provision shall affect any benefit or right reserved by Part X., or make the borough fund liable to any expenses with which it would not be other- wise chargeable. (7.) Nothing in this section shall affect the liability of the borough fund to make good any deficiency of the watch rate towards the expenses of the police. (8.) Nothing in this section shall make liable to watch rate any hereditaments exempted by any local Act from payment of watch rate. 192 MUNICIPAL COEPOEATIONS. Sect. 197. (9.) Nothing iu this section shall alter the comparative liability to watch rate o£ any hereditaments which are under any local Act in respect of any watch rate entitled to any deduction from, or chargeable with any increase on^ an equal pound rate; but the like comparative deductions and increased charges shall be made under this section. Watch rate in divided 198. — (1.) Where part only of a parish is liable to parish. watcli rate, the overseers shall not pay out of the poor rate the amount of the watch rate charged by the council on that parish^ but shall make a separate rate or assess- ment on the part or parts only of the parish liable to Avatch rate ; which rate shall be made in like manner and under like regulations and with like means and remedies for recovery thereof as iu the case of a rate levied in respect of the contribution towards a borough rate. (2.) No such separate rate shall be demanded, col- lected, or payable until it has been allowed by two justices usually acting in and for the borough, and has been published as a poor rate is by law required to be allowed and published. (3.) Any person who thinks himself aggrieved by such a separate rate may appeal to the recorder at the next quarter sessions for the borough, or if there is none to the next court of quarter sessions for the county wherein the borough is situate, or whereto it is adjacent; and the recorder or court shall hear and determine the same, and shall award relief in the premises as in the cases of appeal against a poor rate. (4.) Every such separate rate may be of the rate in the pound necessary for raising the sum charged by the council, but not exceeding twopence in the pound beyond the rate in the pound at which the council have computed the watch rate charged bv them. (5.) The overseers shall account for money collected under such a separate rate as for money collected under a poor rate ; and if there is a surplus in their hands, they shall pay it to the treasurer, to go to the borough fund, 45 & 46 VICT. c. 50. 193 to the credit of the plaec for wliicli tlie rate was made. Sect. 198. and in part payment of the next watch rate laid on that place by the council. (6.) The council or a committee appointed for this purpose, on application on behalf of any person rated to such a separate rate to be discharged therefrom, and on proof of his inability through poverty to pay the amount charged on him, may order that he be excused from the payment thereof, and may strike out his name therefrom ; and the sum at which he Avas rated shall not thereafter be collected, nor shall any person be charged with it or be liable to account for it or for omitting to collect or receive it. (7.) The overseers making any such separate rate may, by warrant from two justices usually acting in and for the borough, levy on every person refusing to pay the rate the amount charged on him, with the costs and charges of recovering and enforcing payment thereof, to be ascertained by the justices, by distress and sale of the offender's goods, rendering to him the overplus ; and in default of such distress two justices may commit him to prison, there to remain without bail until payment of the amount and arrearao;es. o 199. Any warrant required for the levy or collection Wairant for of a watch rate or separate rate may be issued by the mayor, ^''Y ?^ ^ ^ •' 1 ' watch rate, signed by him, and sealed with the corporate seal. 200. All money raised by a watch rate, or by a Watch rate separate rate as last aforesaid, shall go to the borough ^° ^''^^^ fund (a). («) It was perhaps necessary in the Consolidation Bill to retain provisions to enable corporations to make a watch rate. Why should not the borough rate include the contributions levied under the watch rate I It would be well if at some future time the whole of these sections were repealed. 194 :^rtJXICIPAL COEPOEATTONS. PART X. Freemen. Sect. 201. 201. In this Part the term freeman includes any Definition of person of tlie class whose rights and interests were re- freeman, served by the Municipal Corporations Act, 1835, under the name either of freemen or of burgesses (a) . (a) This reservation is as follows : — Every person who now is or hereafter may he an inhabitant of any borough, and also every person who lias been ailmitted or Avho might hereafter have lieen admitted a freeman or Ijurgess of any borough if this Aet had not been passed, or wlio now is or hereafter may be the wife or widow or son or daughter of any freeman or burgess, or who may have espoused or may liereafter espouse the daughter or widow of any freeman or burgess, or Avho has been or may hereafter be bound an apprentice. (Sect. 2 of the Act of 1835.) In Prestney v. The Mayor, ttc, of Colchester and the Attorney- General, L. R 21 Ch. D. Ill, it was held that the effect of the saving of rights in tlie aliove section was to legalize the beneficial interests therein mentioned without reference to the legality of their origin, and in particular to obviate any objection which might other- wise arise in respect of the tendency towards a peri:)etuity. In an action to establish such rights it is sufficient after stating the title of the corporation to the property in question to aver that at the time of the passing of the Act the projierty was not, nor ever had been, or ought to have been aj^plied to public purposes, but then was and always had been held and apj)lied for the particular benefit of the freemen. Freedom not by gift or purchase. The freemen's roll. 202. No person sliall be admitted a freeman by gift or by purchase. 203. The town clerk of every borough for which at the commencement of this Act there is a freemen's roll shall continue to keep a list, called the freemen's roll. Admission to freedom. 20'^. Where a person is entitled to be admitted a freeman for the purposes of this Part in respect of birth, servitude, or marriage, and claims accordingly, the mayor shall examine into the claim, and on its being established the claimant shall be admitted and enrolled bv the town clerk on the fi'eemen's roll. 45 Sc iCj vrcT. c. 50. 19^ 205. — (1.) Every person who had before the passing Sect. 205. of tlic Muiiieip;il Corporations Act, 1835, been admitted a iteservation freeman, or if that Aet had not been passed might have ^^ ngl'ts of been so admitted otherwise than by gift or purchase, Ireemeu and and others. (2.) Every person who for the time being is — (ff.) An inhabitant of a l)orough, or {b.) Wife, Avidow, son, or daughter of a free- man, or * (c.) Husband of a daugliter or widow of a freeman, or {d.) Bound an apprentice, — shall, subject to the provisions of this Part, have and enjoy and be entitled to accpiire and enjoy the same share and benefit of the hereditaments, and of the rents and profits thereof, and of the common lauds and public stock of any borough or body corporate, and of any property held in whole or in part for any charitable uses or trusts, as if the Municipal Corporations Act, 1835, or this Act, had not been passed. 206. — (1.) The total amount to be divided among Limit of the persons whose rights are by the last foregoing section gavin/as to reserved shall not exceed the surplus remaining after conditions payment of the interest of all lawful debts chargeable on ^^^'^'^' the property out of wdiich the sums so to be divided have arisen, together with the salaries of municipal officers and all other lawful expenses which, on the 5tli of June, one thousand eight hundred and thirty-five, were defrayed out of or chargeable on the same. (2.) Where, if the Municipal Corporations Act, 1835, or this Act, had not been passed, any such person would have been liable by statute, bye-law, charter, or custom, to pay any fine, fee, or sum of money to any body cor- porate, or to any member, officer, or servant thereof, in consideration of his freedom, or of his or her title to those reserved rights, or there was any condition pre- cedent to any person being entitled to those rights, he or 03 196 MUNICIPAL CORPORATIONS. Sect, 206. she shall not have any benefit in respect of those rights until he or she has paid that fine, fee, or sum to the treasurer on aceount of the borough fund, or has fulfilled that condition, as far as it is capal)le of being fulfilled according to the provisions of this Act. Saving for powt'v to c|uestion right. 207. Nothing in this Act shall strengthen or con- firm any claim, I'ight, or title of any freeman or of any person to the benefit of any right in this Part reserved, but the same may in every case be brought in question, impeached, and set aside, as if this Act had not been passed. others. Reservation 208. — (1-) Nothing before in this Part contained exemptions to shall apply to any claim, right, or title of a freeman or of freemen and any person to any discharge or exemption from any tolls or dues levied Avholly or part by or for the use or benefit of any borough or body corporate. (2.) No person shall have any such discharge or exemption except a person who, on the fifth of June, one thousand eight hundred and thirty-five, was an inhabitant, or was admitted or entitled to be admitted a freeman, or was the wife, widow, son, or daughter of a freeman, or was bound an apprentice ; and every such person shall be entitled to the same discharge or exemption as if the Municipal Corporations Act, 1835, or this Act, had not been passed, (3.) But nothing in this Act shall affect the right of any person claiming such discharge or exemption other- wise than as inhabitant or freeman, or member of a municipal corporation, or widow or kin of such an inhabi- tant, freeman, or member. Reservation of parlia- mentary franchise, &c. 209. — (!•) Every person who, if the ^Municipal Corporations Act, 1835, had not been passed, would have enjoyed as a freeman, or might thereafter have acquii'cd, in respect of birth or servitude, as a freeman, the right of voting in a parliamentary election, shall be entitled to 45 & 46 VICT. c. 50. 197 enjoy or acquire that riglit as if that Act or this Act had Sect, 209. been passed. (2.) No stamp duty shall be chargeable on the admis- sion of any person as a freeman in respect of birth or servitude in a parliamentary borough. (3.) The town clerk shall do all things appertaining by law to the registration ol: freemen for parliamentary elections (a). («) ^ee 32 Geo. 3, c. 58. PART XI. Grant of Charters. 210. If on the petition to the Queen of the inhabi- Power to tant householders of any towai or towns or district in ^™^^,^^ ^^ England, or of any of those inhabitants, praying for the charter to grant of a charter of incorporation, Her Majesty, by the °f?"f t it advice of Her Privy Council, thinks fit by charter to the prov-i- create such tow^n, towns, or district, or any part thereof ^^""^j. ^ specified in the charter, with or without any adjoining Corporations place, a municipal l)orough, and to incorporate the inhabi- ^^^' tants thereof, it shall be lawful for Her Majesty by the charter to extend to that municipal borough and the inhabitants thereof so incorporated the provisions of the Municipal Corporation Acts (a) . («) The advantages of government liy a town council over govern- ment Ijy a local board are mainly the following : — 1. In elections for local hoards property owners arc entitled to vote, and owners and ratepayers have under certain circumstances a plurality of votes. 2. In local hoards there is wanting an important element, namely, the aldermen wlio arc elected liy the members of the council. 3. The chairman of the local board is not ex officio a justice of the peace, whilst the mayor, during his year of office, and for one year after, is a magistrate. 4. The ])owers of the council are more extensive, including the much valued privilege of maintaining a police force. In a borough Avith a commission of the peace justice is administered by eminent citizens appointed liy the Lord Cliancellor. In many boroughs also there is a separate court of (quarter sessions. These inivileges are 198 MUNICIPAL CORPOKATIONS. Note. sufficient to i^ive dignity and importance to the duties of public life Sect. 210. in borouglis, so that the most prominent inhabitants are willing to undertake its responsibilities. 5. Councils are not liable to have their accounts audited by an auditor appointed by the Local Government Board. Such an auditor has power to surcharge any expenditure he may think to be illegal. This acts as a severe check on the natural gi-owth of local enterprise. There is indeed, an appeal to the Local Government Board against his surcharges, and they are therefore rarely sustained; nevertheless the effect is to substitute the judgment of the central authority for ■that of the local body. Good men gradually weary of taking part in, a performance where they are reduced to puppets. In l:)oroughs, auditors are elected by the ratepayers; and although there is a disposition at times to use this as a party weapon, there is no doubt that it is more consonant with the proper spiiit of inde- pendence, which should characterize all worthy local self-government. 6. The council is generally trusted by Parliament with the exer- cise of most of its functions, without so much control as the Local Government Board exercises over local boards. Local authorities naturally rebel against the interference of a central authority that in no way represents them, or any portion of their ratepayers. In practice, however, councils find that the officials of the Local Govern- ment Board offer them valuable assistance in carrying on their work. The dislike to the principle, however, remains, and whilst the con- stitution of the Local Government Board is unrepresentative there will always be a hostile feeling towards it. Reference to Committee of Council and notice of petition for charter. Power by charter to settle wards, and by fixing dates and otherwise to adapt the Muni- cipal Corpo- rations Acta to first 211. — (1.) Every petition for a charter under ttis Act sliall be referred to a Committee of the Lords of Her Majesty ^s Privy Council (in this Part called the Com- mittee of Council) . (2.) One month at least before the petition is taken into consideration bv the Committee of Council, notice thereof and of the time when it will be so taken into con- sideration shall be published in the London Gazette, and otherwise in such manner as the Committee direct for the purpose of making it known to all persons interested. 212. — (1.) Where Her Majesty by a charter extends the Municipal Corporation Acts to a municipal borough it shall be lawful for Her ^Majesty, by the charter, to do all or any of the following things : («.) To fix the number of councillors, and to fix the number and boundaries of the wards (if any), and to assign the number of councillors to each ward; and 45 & 46 VICT. c. 50. 199 (b.) To fix the ycars^ days, and times for the retirement Sect. 212. of the first aldermen and conncillors ; and constitution (c.) To fix sucli days, times, and places, and nominate of new such persons to perform such duties, and make ^ such other temporary modifications of the Municipal Corporations Acts, as may appear to Her Majesty to be necessary or proper for making those Acts applicable in the case of the first constitution of a municipal borough. (2.) The years, days, times, and places fixed by the charter, and the persons nominated therein to perform any duties, shall, as regards the borough named in the charter, be respectively substituted in the Municipal Corporations Acts ft r the years, days, times, places, officers, and persons therein mentioned, and the persons so nominated shall have the like powers, and be subject to the like obligations and penalties, as the officers and persons mentioned in those Acts for whom they are respectively substituted. (3.) Su])ject to the provisions of the charter authorized by this section, the Municipal Corporations Acts shall, on the charter coming into effect, apply to the municipal borough to which they are extended by the charter ; and, where the first mayor, aldermen, and councillors, or any of them, are named in the charter, shall apply as if they were elected under the Municipal Corporations Acts, and, where they are not so named, shall apply to their first election. 213. — (1.) Where a petition for a charter is referred Scheme or to the Committee of Council, and it is proposed by the ^^ abolition charter to extend the Municipal Corporation Acts to the of and ad- municipal borough to be created by the charter, the Com- oTri^Ms mittce of Council may settle a scheme for the adjustment of existing of the powers, rights, privileges, franchises, duties, pro- j.-^^^ j^^^j perty, and liabilities of any then existing local authority officers, whose district comprises the whole or part of the area of that borough, cither with or without any adjoining or other place, and also of any officer of that authority. 200 MUNICIPAL CORPOEATIONS. Sect. 213. (2.) The scheme, so far as it appears to the Committee of Council to be necessary or proper for carrying into effect the said adjustment as regards any local authority existing at the time of the making of the scheme, may contain provisions for the continuance of that authority, or for the abolition, total or partial, of that authority, or for the creation of another authority or authorities, and the alteration of the district of the existing local autho- rity, and the union or other relation of the existing local authority and the authority or authorities so created, and for the continuance, modification, transfer, vesting, and extension to the whole of the borough of all or any of the powers, rights, privileges, franchises, duties, property, and liabilities of the existing local authority, and may contain such provisions as appear to the Committee of Council to be necessary or proper for fully carrying into effect any such adjustment and provisions as aforesaid. (3.) The scheme, when settled by the Committee of Council, shall be published in the London Gazette, and shall not be of any effect unless confirmed as hereinafter mentioned. (4.) Where, within one month after the publication of the scheme in the London Gazette, a petition against it by any local authority afiected thereby, or by not less than one twentieth of the owners and ratepayers of the borough (such twentieth to be one-twentieth in number of the owners and ratepayers of the borough taken together, or the owners and ratepayers in respect of one- twentieth of the rateable property in the borough and the owners and ratepayers in all cases to include women not under coverture) has been received by the Committee of Council, and is not withdrawn, the scheme shall require the confirmation of Parliament, and the Committee of Council may, if they think fit, submit it to Parliament for confirmation ; but otherwise, at any time after the expiration of the said month, or after the withdrawal of any petition that has been presented, the Committee of Council may, if they think fit, submit the scheme for con- 45 & 46 VICT. c. 50. 201 firraation, cither to Parliament or to Her Majesty in Sect. 213. Council, and in the latter case it shall be lawful for Her Majesty to confirm the scheme by Order in Council. (5.) A scheme, when confirmed by Parliament or by Order in Council, shall have full operation, with, in the former case, such modifications, if any, as are made therein by Parliament, as if the scheme were part of this Act, (6.) A local authority for the purposes of this Part means a sanitary authority (not being the mayor, alder- men, and burgesses of a borough subject to the MunicixDal Corporations Acts) , also the corporation of a borough not subject to the INIunicipal Corporations Acts, a burial board, trustees, commissioners or other persons who, as a public body and not for their own profit, act under any Act for paving, lighting, supplying with water or gas, cleansing, watching, regulating or improving any town, or place, or for providing or maintaining a cemetery or market in or for any town or place, and any commis- sioners, trustees, or other persons (not being justices) maintaining any police force, and any other authority not in this section excepted, and not being a school board, and having powers of local government and of rating for public purposes. (7.) The district of a local authority for the purposes of this section means the area within which such authority can exercise any powers or rights. 214.— (1.) A scheme shall, before being settled by Supplemental the Committee of Council, be referred for consideration to piovisions as to ^cllOlTlG the Secretary of State and the Local Government Board, and charter. and, if and as far as it is intended to affect any authority - ^ ^ -^ ^'^*^*' which is a harbour authority within the meaning of the Harbours and Passing Tolls, &c., Act, 1861, to the Board of Trade. (2.) A scheme shall in every case provide for placing the new borough within the juiisdictiou of the council as the sanitary authority. 202 MUNICIPAL CORPOHATIONS. Sect. 214. (3.) The regulations contained in the Seventh Schedule with respect to the scheme shall be observed. (4.) If the Committee of Council are satisfied that a local authority or other petitioners have properly pro- moted or properly opposed a scheme before them, and that for special reasons it is right that the reasonable costs incurred by the authority or other petitioners in such promotion or opposition should be paid as expenses properly incurred by the local authority in the execution of their duties, the Committee of Council mav order those costs to be so paid, and they shall be paid accordingly. Provision as to police force in uew borough. 215. JSothing in any scheme or in the Municipal Corporation Acts shall authorize the establishment in a borough to which a charter is granted under this Act of a new separate police force not consolidated with the county police force, unless the district incorporated by tlie charter contained twenty thousand inhabitants or upwards, according to the census taken next before the date of the incorporation. Validity of charters. 216. — (1-) ^ charter creating a municipal borough which purports to be granted in pursuance of the royal prerogative and in pursuance of or in accordance with this Act, shall after acceptance be deemed to be valid and within the powers of this Act and Her Majesty's prerogative and shall not be questioned in any legal pro- ceeding whatever. (2.) Every such charter shall be laid before both Houses of Parliament within one month after it is granted, if Parliament is then sitting, or if not, within one month after the beginning of the then next sitting of Parliament. Power to 2 1 T . Where a charter was granted to a borough i^n case of ^"^ within seven years before the fourteenth of August one recent thousand eight hundred and seventy-seven, the Corn- charters. 45 & 46 VICT. 0. 50. 203 mittee of Council, on the petition to the Queen of tlic Sect. 217. council of the borough, or of any existing local authority ■whose district comprises the whole or any part of the area of the borough, cither with or without any adjoining or other place, may settle a scheme under this Act in like manner as if the petition for the grant of a charter to the borough had been referred to the Committee of Council after the commencement of this Act, and the provisions of this Act with respect to a scheme shall apply accord- ingly, with the necessary modifications; 9,nd if within one month after the publication of the scheme in the London Gazette a petition against the scheme from the council of the borough has been received by the Committee of Council and is not withdraAvn the scheme shall require the confirmation of Parliament. 218. — (1.) Where a scheme for a borough has been Power to confirmed under this Part, or any former enactment, and the municipal corporation of the borough or one-twentieth of the owners and ratepayers of the borough (estimated as in this Part mentioned) , or a local authority affected by the scheme, petition the Queen for an amending scheme, the petition shall be referred to a Committee of the Lords of Her Majesty's Privy Council (included in the term the Committee of Council in this Part), and shall be pro- ceeded on, and this Part shall apply thereto, as nearly as may be, as if the same were a petition for a charter extending the Municipal Corporations Acts to a municipal borough to be incorporated. (2.) The Committee of Council, if they think fit to submit the amending scheme for confirmation, shall submit the same to Parliament, or they may submit the same to her Majesty in Council, if the original scheme was confirmed by Order in Council; and in the latter case it shall be lawful for Her Majesty to confirm the amending scheme by Order in Council. (3.) An amending scheme, when confirmed by Parlia- ment, or by Order in Council, as the case may require, 204. MUNICIPAL CORPOEATIONS. Sect. 218. shall have full operation, with, in the former case, such modifications, if any, as are made therein by Parliament, as if the amending scheme were part of this Act. PART XII. Prosecution of offences and recovery of fines. Exclusion of certiorari. Legal Proceedings. 219.— (1-) In summary proceedings for offences and fines under this Act the information shall be laid within six months {a) after the commission of the oflFence. (3.) Any person aggrieved by a comdction of a court of summary jurisdiction under this Act may appeal there- from to a court of quarter sessions [b] . (3.) Any fine incurred under this Act and not recover- able summarily may be recovered by action in the High Court. (a) "Month" means calendar month. Sec 13 & 14 Vict. c. 21, .s. 4, Avhich enacts that in subsequent statutes the word montli shall mean calendar month, unless words be added showing lunar month to be intended. As to whether calendar or lunar month is intended in contracts, see Hutton v. Brown, 45 L. T. R. (n.s.) 343. {h) See 31st section of the Summary Jurisdiction Act, 1879. 220. A conviction, order, warrant, or other matter made or done or purporting to be made or done by virtue of this Act shall not be quashed for want of form, and shall not, unless it is an order of the council for payment of money out of the borough fund, be removed by certiorari or otherwise into the High Court. Application of penalties in quarter sessions boroughs. 221.— (!•) Where by any Act passed or to be passed, any fine, penalty, or forfeiture is made recoverable in a summary manner before any justice or justices and payable to the Crown or to any body corporate, or to any person whomsoever, the same if recovered and adjudged before any justice of a borough having a 45 & 46 VICT. c. 50. 205 separate eourt of quarter sessions shall, notwithstanding Sect. 221. anything in the Act under which it is recovered, be recovered for and adjudged to be paid to the treasurer of the borough. (2.) But this section shall not apply to a fine, penalty, or forfeiture, or part thereof, where the Act under which it is recovered — (a.) Directs payment thereof to the informer or to an^ person aggrieved; or (b.) If passed since the Municipal Corporations Act, 1835, directs that the same shall go in any other manner and not to the borough fund; or (c.) Relates to the customs, excise, or post office, or to trade or navigation, or to any branch of the revenue of the Crown («). {(i) Where an ofl'ender was convicted before the justices in a borough having a separate court of quarter sessions, and was sen- tenced to pay a fine, such tine niu.st he paid to tlie treasurer of the borough, notwithstanding that the statute under which the conviction had taken phice dechvres tliat the penalty shall be payable to Her Majesty. {Attorney-General v. Aloore, L. R. 3 Ex. D. 276.) Where a borough has a separate comnussion of the peace, but not a separate court oi' quarter sessions, tlio justices of such borough, in the exercise of their summary jurisdiction, act for the county, and any penalty must, imder 11 & 12 Vict. c. 43, s. 31, be paid to the treasurer of the county. The fact that the borough has a separate commission of the peace makes no dilFerence. {See the last-named statute, and the following cases decided thereon : Mayor, d:c., of Jieigate x. Hart, L. K. 3 Q. B. 244; JFinn v. Mossman, L. R. 4 Ex. 292.) 222. Where the offices of town clerk and clerk of Duties of the peace for a borough are not held by the same person, ^^^y- ^.^ v^^^^ ^ ^ •' _ _ A ' as to hues and the clerk of the peace shall perform all duties imposed on forfeitures. the town clerk by the Act of the third year of King George the Fourth, chapter forty-six, ''for the more speedy return and levying of fines, penalties, and for- feitures, and recognizances estreated;" and the clerk of the peace shall make all returns, issue all processes, and do all other acts required by that Act to be made, issued, and done by the town clerk. summons or wai'raut. 20G MUNICIPAL COEPORATIONS. Se ct. 22 3. 223. Any summons for appearance, warrant to Service of enforce appearance^ warrant for apprehensionj or search warrant J msij, if issued by a justice for a borough, be served or executed in any count}^ wherein the borough or any part thereof is situate, or within any distance not exceeding seven miles from the borough, and, within those limits, shall have the same effect as if it had been issued or indorsed by a justice having jurisdiction in the place where it is served or executed, and may be served or executed by the constable or special constable to whom it is directed. Procedure iu 224:. — (!•) An action to recover a fine from any penal actions person for acting in a corporate office without having porate officers, made the requisite declaration, or without being qualified, or after ceasing to be qualified, or after becoming dis- qualified, may not be brought except by a burgess of the borough, and shall not lie unless the plaintifi" has, mthin fourteen days after the cause of action arose, served a notice in writing personally on the person liable to the fine of his intention to bring the action, nor unless the action is commenced within three months after the cause of action arose. (2.) The court or a judge shall, on the application of the defendant within fourteen days after he has been served with writ of summons in the action, require the plaintiff to give security for costs. (3.) Unless judgment is given for the plaintiff, the defendant shall be entitled to costs, to be taxed as between solicitor and client. (4.) Where any such action is brought against a person on the ground of his not being qualified in respect of estate, it shall lie on him to prove that he was so qualified. (5.) A moiety of the fine recovered shall, after payment of the costs of action, be paid to the plaintifi". Quo war- 225. — (!•) An application for an information in the ranto and . , . , i • • . mandamus, nature of a quo warranto against any person claiming to 45 & 4G VICT. c. 50. 207 liold a corporate oflicc shall not 1)C made after the cxpira- ^P^oo<\ tion of twelve mouths from the time when he beeamc -^ disqualified after election (a). (2.) In the case of sueh an application^ or of an appli- cation for a mandamus [b) to proceed to an election of a corporate officer, the applicant shall give notice in writing of the application to the person to be affected thereby (in this section called the respondent) at any time not less than ten days before the day in the notice specified for making the application. (8.) The notice shall set forth the name and description of the applicant, and a statement of the grounds of the application. (4.) The applicant shall deliver with the notice a copy of the affidavits whereby the application will be sup- ported. (5.) The respondent may show cause in the first instance against the application. (6.) If sulHcicnt cause is not shown, the court, on proof of due service of the notice, statement, and copy of affidavits used in support of the application, may, if it thinks fit, make the rule for the information or mandamus absolute. (7.) The court may, if it thinks fit, direct that any issue of fact on an information be tried by jury in London or at "Westminster. (8.) The court may, if it thinks lit, direct that any writ of mandamus issued shall be peremptory in the first instance. ((() In Raj. V. Hodsm, 4 Q. B. 684, «, it was held too late to move on the 29tli January for a quo warranto information against a l)urgess who had been put on the roll wliicli came into operation on the ist November previously. In J'J.c parte Hirut marsh, L. R. 3 Q. B. 12, the court refused a quo loarranto on the ground of delay. The coiul Avill not grant a quo warranto on the ground of alleged irregularity in an election to a puldie oflice unless the result of the election has been affected thereby. {Reg. v. Cousins, L. 1^. 8 Q. B. 216, n.) The court will make a rule for a quo warranto information absolute, though tlie defendant lia.s resigned his ollice. (lid/, v. Blkard, L. R. 2 Q. B. 55.) The court will not allow an information in the nature of a quo warranto to be tiled to try the title to an otlice merely because tliere 208 MUNICIPAL OORPOEATIONS. Note. lias been an irregularity in an election, in the absence of bad faitli, Sect. 225. and wliere the result of tlie election has not been affected, and no ~~" mischief has been done. {Rcrj. v. Ward, L. E. 8 Q. B. 210.) The qualification of a voter on the roll cannot be questioned in a quo u-arranto against the person elected. {Reg- v. Tugicell, L. R. 3 Q. B. 704) ''^ The judgment of Lord Chief Justice Denmax, in the case of Reg. v. Prcccc, is of considerable importance. Lord Denjian said : — "This was a rule for a quo toarranto against the Mayor of Carnarvon. The first objection to his title was that he did not accept his office within the five days after notice required by statute 5 & 6 Will. 4, c. 76, s. 51, and therefore his election became void. The notice was argued on one side to mean no more than the declaration of the result of the election, wliich, it was said, all persons elected are bound to know ; on the other hand, it was said to mean nothing less than a formal notification by some projoer authority. The fact lay between the defendant being in London on the 9th, when the election took place, and from that tune till the 23rd, when he returned to Car- narvon, and took the oatli of office within five days ; but he was in the meantime, while in London, made aware by family letters and the congratulations of friends whom he casually met, but not from any official source that he was elected. " We are of opinion that casual information is not sufficient, and that, before an elected officer can be visited Avith the heavy penalties imposed for neglecting to accept his office, he must have regular notice of his own election, either by being actually present when it is announced, or by being apprised of the fact by some official l' authority. "But the validity of this election is challenged on another ground — namely, that he was not well elected alderman, and had been elected mayor as such alderman. But his election to the former office had taken place more than twelve months before tliis rule was moved for. It was admitted, therefore, that no application could then have been made to remove him from his office of alderman by ATrtiie of statute 7 Will. 4 and 1 Vict. c. 78, s. 23 ; and that, if removed from the office of mayor, he would still remain a good alderman ; and this acquiescence by the present relator, and by all the world, was urged as a reason why, in the exercise of our discretion, we should refuse to interfere by information against him. To meet the objection Bex V. Stokes was relied on. That was decided on statute 32 Geo. 3, c. 58, ss. 1-2, the latter of which protected parties from impeachment by quo warranto by reason of any defect of title in the persons elect- ing, nominating, swearing them into office, or admitting them, if such last-named j^erson had been ten years de facto, and with title unques- tioned, in his office ; and this section was held not to apply where the defect was in the title of the party himself to a former office, which formed, in part, his qualitication to that in question. At least, tliis was held so doubtful that the rule was made absolute. No further proceedings in the case are rej^orted, nor do we find upon inquiry that the jsoint ever came for final decision before the court upon the record. It cannot be denied that there is a strong analogy between that case and the present ; and in a case in which we had less free discretion to exercise than in the granting or refusal of a quo war- ranto it might properly bind us. But, upon consideration, we think that we shall best advaace the policy of the modern statute, and pre- 45 & 46 VICT. c. 50. 209 aerve the poace of municipal bodies, Ijy refusing to make the rule Note, absolute. Sect. 225. " It seems to us highly objectionable that the title, which has not been questioned, and cannot be questioned, to the inferior office should be impeaclied at a subsequent period when the title to a higher office has been built upon it ; and that there is an absurdity in ousting a maj^or because he is not a good alderman, who, upon Iiis ouster, must immediately be remitted to his office of alderman, and cannot be disturbed in it. It is certainly just that objections intended to be made should be brought forward promptly, while the facts are recent and easily capable of proof or explanation; and it contributes neitlier to the independence of tlie office, nor to tlie harmony of cor- ijoratione, if such objections are allowed to be kept in reserve, and jrouglit forward in case the conduct of tlie officer is disjileasing to the objector, or he aspires, as he has a right to do, to some higher office. No inconvenience can result to others from the present mayor retaining,' his office, as the statute 7 Will. 4 and 1 Vict. c. 78, s. 1, makes him 'a good presiding oflicer at all corporate meetings for election of others at which the mayor ought to preside. Nor could any benefit result from the rule being made absolute, as no judgment of ouster could, with the utmost diligence, be obtained against him till within a very few days of the expiration of his year of office. " Upon these grounds, therefore, we think this rule ought to be dis- charged." (5 A. & E. Q. B. K. (N.s.) 94.) The case of Rec/. v. Francis, 18 Q. B. 526, was an information injthe nature of a quo warranto against F., who held the office of councillor. It appeared that F. was elected a councillor on the 1st November, 1846, and was re-elected on the 1st November, 1849. In 1843 he undertook, at tlie re([uest of the mayor and town clerk, to collect, arrange, and bind the books of the corporation. No sum was fixed for his remuneration; but in 1849, whilst still engaged in the undertaking, he agreed to conqilete the work for .£150 as the amount of his actual disbursements and expenses. This offer was accepted by the town council, but the corporation seal was not affixed to the resolution, nor was any contract under seal made with F. In July, 1849, F. received £50 on account. He received no further sum, nor did he proceed with his undertaking since his re-election. The relator was elected a councillor for the first time in November, 1849. Lord Campbell, C. J., said: " It is quite clear that the contract in question is within the provisions of statute 5 & 6 Will. 4, c. 76, s. 28, BO as to disqualify from holding office. We cannot look to see whether it be a contract upon which he could sue the corporation. It is, at all events, one in respect of which he has lieen employed and paid by^tlie corporation, and it Avould be monstrous to hold that the statute was avoided by the fact of the contract not being binding upon the corporation. As to the lateness of the application, if the relator had been a member of the council at the time when the con- tract was entered into, that might liave been a ground for refusing a quo n-airanto; but he was not, and his mere knowledL;e of the existence of the contract at that time is not a ground lor holding that he cannot now appear as the relator. With respect to statute 7 Will. 4 & 1 Vict. c. 78, s. 23, I think that this is a continuing contract, so as to create a disipialilication de die in diem. No apjdi- cation for a quo rvarranto could be made after the lapse of twelve 210 MUNICIPAL COEPOEATIONS. Note. calendar months after the contract had ceased ; but while it con- Sect. 225, tinues tlie ajiplication may be made at any time after its commence- ment." By 5 & 6 Will. 4, c. 76, ss, 25, 28, it was provided that no person should be qualified to be elected, or to be an alderman of any borough, who should not be entitled to be on the burgess list. By 32 & 33 Vict. c. 55, s. 1, it was provided that every person who, on the last day of July in any year, should have occupied any house, warehouse, &c., in any borough for the whole of the preceding twelve niontlis should, if duly enrolled, be a burgess of the borough. By 7 Will. 4 & 1 Vict. c. 78, s. 23, it was provided that every appli- cation to the Court of Queen's Bench, calling upon any person to show by what warrant he claims to exercise a corporate office, should be made before the end of twelve months after the time when the person should have become disqualified. S. was elected in 1868 an alderman of a borough, being then on, and entitled to be on, the burgess roll. In October, 1873, he was struck off the new burgess list, having ceased to occupy the qualifying premises many months before. On the 6th of January, 1874, he acted as an alderman, and on the 26th of January application was made for a quo warranto. Held, that S. became disqualified when he ceased to occupy (which was conceded to be more than twelve months ago), and so ceased to be entitled to be on the burgess list, and that the application was, therefore, too late. {Ex parte Birhheck, L. R. 9 Q. B. D. 256.) The relator need not be a burgess. It is sufficient if he is an inha- bitant of the borough, sulyect to the control and government of the corporation. (See R. v. Hodge, 2 B. & A. 344 ; E. v. Parry, 6 A. & E. 848; R. V. Quayle, 11 A. & E. 508.) Where the application is made by individuals, and not by a cor- poration or the mayor, the court will exercise a large discretion in granting a rule for an information. As to the circimastances under which the real relator, who has put forth an indigent relator, will be compelled to pay costs, see R. v. Greene, 4 Q B. 646. As to the circumstances under which the relator will obtain his costs, notwithstanding the defendant declines to defend, see R. v. Sidney, 20 L. J. Q. B. 269. (h) By the Corrupt Practices (Municipal Elections) Act (35 & 36 Vict. c. 60), s. 12, now repealed, it is enacted that the election of any person at an election for a borough may be questioned by petition before an election court constituted under that Act, on the ground • that the election w\as wholly avoided because " he was at the time of the election disqualified for election to the office for w'hich the elec- tion was held," and that " an election shall not, except in the manner jn-ovided by this Act, be questioned upon an information in the nature of a quo warranto, or by or in any other process or manner whatsoever for a matter for which it might be questioned under the provisions of this Act." Held, that the remedy under this section was by petition, and not by vmndarnns. (Reg. on the prosecution of Oimi v. Mayor, dx., of Wekhpool, 35 L. T. (n.s.) 594.) 45 & 4G VICT. c. 50. 211 226. — (1-) An action, prosecution, or proceeding Sect. 223. against any person (a) for any act clone in pursuance or Provisions execution or intended execution {b) of this Act, or in df persons respect of any alleged neglect or default in the execution acting under of this Act, shall not lie or be instituted unless it is com- menced within six months next after the act or thing is done or omitted {c), or, in case of a continuance of injury or damage, within six months next after the ceasing thereof. (2.) Where the action is for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other plea, be pleaded. If the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintiff's claim, and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defen- dant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of the tender or pay- ment; but this provision shall not affect costs on any injunction in the action {d). (3.) Subject and without prejudice to any other powers, the council, where the defendant in any such action, pro- secution, or other proceeding is their officer, agent, or servant, may, if they think fit, except so far as the court before which the action, prosecution, or other proceeding is heard and determined otherwise directs, pay out of the borough fund or borough rate all or any part of any sums payable by the defendant in or in consequence of the action, prosecution, or proceeding, whether in respect of costs, charges, expenses, damages, fine, or otherwise (e). ((() By sect. 7 "person" includes a body of persons corporate or nuiucor])oratc, {b) " Or intended execution." These words are new. (c) " Or omitted." These Avords are new. They liave been added to meet the decision in li. v. BurreU, 12 A. & E. 4(50. ('/) Under the repealed provision notice ot" action was re(|uired, and no provi-sions liave been made in the Consolidation Act in lieu tliereof. Notice of action is never necessary unless where it is 312 MUNICIPAL COEPOEATIOXS. Note. expressly required by statute. The 5 & 6 Will. 4, c. 97, s. 4, applies Se ct. 2 26, only to those cases where notice is required. (e) See notes on the Fifth Schedule, Part II. The whole of this Bub-section is new. Power for 227. — (1-) Where a person charged with a petty stTbk'f to'^take ^^lisdemeanoiir is brought without the warrant of a justice bail. into the custody of a borough constable during his attend- ance at a watch-house in the borough, at any time (by day or night) {a) at which a justice is not actually sitting for the public administration of justice at the justices^ room, or town hall, or other place used for that purpose in the borough, the constable may, if he thinks fit, take bail without fee from that person, by recognisance con- ditioned for his appearance for examination within two days before a justice in the borough at some time and place therein specified. (2.) A recognisance so taken shall be of equal obliga- tion on the parties entering into the same, and liable to the same proceedings for the estreating thereof, as if taken before a justice. (3.) The constable shall enter in a book, kept for that purpose in every watch-house, the name, residence, and occupation of the person entering into the recognisance, and of his surety or sureties, if any, with the condition of the recognisance, and the sums acknowledged. (4.) The constable shall lay the book before the justice present at the time when and place where the recognisor is required to appear, (5.) If the recognisor does not appear at the time and place required, or within one hour after, the justice shall cause a record of the recognisance to be drawn up and signed by the constable, and shall return the same to the next court of quarter sessions for the borough, or, if the borough has no separate court of quarter sessions, for the county in which the borough is situate, with a certificate at the back thereof, signed by the justice, that the recognisor has not complied with the obligation therein contained. (6.) The clerk of the peace shall make the like estreats 45 & 46 VICT. c. 50. 213 and sclicdulcs of every sucli recognisance as of rccog- Sect. 227. nisances forfeited in quarter sessions. (7.) If the recognisor applies hy any person on liis behalf to postpone the hearing of the charge against him, and the justice thinks fit to consent thereto, the justice may enlarge the recognisance to such further time as he appoints. (8.) When the matter is heard and determined, either by the dismissal of the charge, or by binding over the recognisor to answer the matter of the complaint at quarter sessions, or otherwise, the recognisance for his appearance before a justice shall be discharged without fee. ((() Tlie provision enabling tlie constable to take bail in the day time is new. PART XIII. General. Boundaries. 228. — (!•) Every place at the commencement of this Boundaries of Act included within eacli borough then existing, and no transfer of other place, shall be part of the borough, and in each P»i"ts to borough then existing which is a county of itself, shall be part of that county and of no other, as if this Act had not been passed. (2.) Where under the Municipal Corporations Act, 1835, or any Act amending it, any such county or borough does not, at the commencement of this Act, include a place which, before the passing of the jNIunicipal Corporations Act, 1835, was part thereof, that place shall continue to be part of the county wherein it is situate, or with which it has the longest common boundary, as if this Act had not been passed. (3.) But nothing in this Act shall prevent any gaol, house of correction, lunatic asylum, court of justice, or judges' lodging, which at the passing of the ^Municipal Coi*porations Act, 1835, was, and at the commencement 214 MUNICIPAL CORPOEATIOKS. Sect. 228. Adjustment between bo- roughs and counties on change of bouuaaries. of this Act isj taken to be^ for any purpose, in any county, from being still, for that purpose, taken to be in that county, as if this Act had not been passed. (4.) Any gaol, court, depot for arms, and any land thereto belonging, which at the commencement of this Act is parcel of a county shall continue to be parcel of the county, and under the exclusive jurisdiction of the autho- rities of the county, as if this Act had not been passed. (5.) Nothing in this Act shall be construed to affect the assessments of the land tax or assessed taxes, as those assessments exist at the commencement of this Act, or to extend or diminish the jurisdiction of any commissioners of those taxes, as such commissioners then exist ; but all lands, and all parishes, parts of parishes, and places shall continue to be charged as at the commencement of this Act towards the land tax charged on the county or other district whereof at the commencement of this Act they are part, and to be subject in that behalf to the jurisdic- tion of the commissioners of the same county or other district, as if this Act had not been passed. 229. If any place, which under the Municipal Cor- porations Act, 1835, or any Act amending it, ceased to be included in a borough or county of a town or city, was before the passing of the Municipal Corporations Act, 1835, liable to contribute to any rate for satisfying any lawful debt to which the ratepayers of that borough or county were then liable, and if after the commencement of this Act any diflerence arises concerning the proportion of that debt to be contributed in respect of that place, the Secretary of State, on the application of the council, or of the chairman of a public meeting of the ratepayers of the place, may aj)point by writing under his hand a barrister not having any interest in the question to arbitrate between the parties, and by his award under his hand and seal to assess the proportion aforesaid, if any ; and the arbitrator shall assess the costs of the arbitration, and direct bv whom and in what proportion and out of what fund they shall be paid; and the rate aforesaid shall continue to be levied by 45 & 46 VICT. c. 50. 215 warrant of the council and to be paid by the place afore- Se ct. 2 29. said to tlie treasurer of the borough, as if the Municipal Corporations Act, 1835, or any Act amending it, or this Act, had not been passed, until the proportion aforesaid is satisfied, and no longer. Time. 230. — (1.) Where by this Act any limited time from Computation or after any date or event is appointed or allowed for the ^ *""'^* doing of any act or the taking of any proceeding, then in the computation of that limited time the same shall be taken as exclusive of tlie day of that date or of the hap- pening of that event, and as commencing at the beginning of the next following day ; and the act or proceeding shall be done or taken at the latest on the last day of the limited time as so computed, unless the last day is a Sunday, Christmas Day, Good Friday, or Monday or Tuesday in Easter week, or a day appointed for public fast, humiliation, or thanksgiving, in which case any act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being one of the days in this section specified. (2.) Where by this Act any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be one of the days in this section specified, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being one of the days in this section specified. (3.) Where by this Act any act or proceeding is directed or allowed to be done or taken within any time not ex- cecding seven days, the days in this section specified shall not be reckoned in the computation of such time (a) . (rt) This section is intentk-d to provide one system of computing timi". Its provisions are somewhat obscure, and as an error in compu- tation of time may prove latal (see ILmrs and Pierce v. Turner and WriijUt, L. Iv. 1 C. P. D. 070), special atleutiou should be paid to them. S16 MUNICIPAL CORPORATIONS. Note. The follomnt:; expressions limitinc? periods of time in days are used Sect. 230. iu the Act :- 1st. — " Within hventy-one days " after an occurrence f('sect. 17 (4), sect. 18 (3); ^'■within ten days" after an occurrence (sect. 25 (6)); ^'within fourteen days" after notice (sect. 66 (1)); '■'■ tuithin five d , ^ 1 sixpence. Buch - - - - - -J THE FIFTH SCHEDULE. Payments out of the Borough Fund, PART I. Payments uhich may he made xnthout OrdeY. 1. Remuneration (if any) of the mayor, of the recorder (if any) in bis capacity cither of recorder or of judge of a borough civil court, of the stipendiary magistrate (if any), of the town 250 MUNICIPAL CORPORATIONS. 5th Sched. clerk, of the treasurer, of the clerk of the peace when paid by Paet I. salary, of every other officer appointed by the council, and of the clerk to the justices. 2. The remuneration and allowances certified by the Treasury to be payable to the Treasury in respect of an election petition. 3. The remuneration certified by the recorder to be due to any assistant recorder, assistant clerk of the peace, or additional crier. PART n. Payments ivhich maj not he made without Order. 13 & 14 Vict. 1. The expenses incurred by overseers, and by the town ^' ' ^' • clerk and other municipal authorities, in relation to the enrol- ment of burgesses and the holding of municipal elections, or so much of those expenses as is not otherwise provided for under 41 & 42 Vict, section thirty of the Parliamentary and Municipal Registration ^- 26. Act, 1878. 2. The expenses incurred by the town clerk in pro\-idiDg accommodation for an election court held under this Act, 3. The expenses of providing, furnishing, maintaining, or improving the corporate buildings, including the justices' room (if any), and the necessary expenses of that room. 4. The fees payable to the clerk of the peace if not paid by salary, and under this Act to the borough coroner. 5. The payments to be made under this Act to or in respect of the borough police and to any special constable, including the following payments (namely) : (a.) Such salaries, wages, and allowances to the borough constables, and at such periods, as the watch com- mittee, with the approbation of the council, direct ; and (b.) Such further sum as may be awarded by the watch committee, subject to the approbation of the council, 45 & 4G VICT. c. 50. — 5Tn schedule. 25i or by the court of quarter or petty sessions, to a 5th Sched. borough constable as a reward for extraordmary pj^^^j diligence or exertion, or as a compensation for wounds or severe injuries received in the performance of his duty, or as may bo awarded by the watch committee, subject to the approbation of the council, to a borough constable, as an allowance to him when disabled by bodily injury, or worn out by length of service ; and (c.) Any extraordinary expenses which a borough constable appears to have necessarily incurred in apprehending oU'enders, and executing the orders of any justice having jurisdiction in the borough, such expenses having been first examined and approved by that justice ; and (d.) All other charges and expenses which the watch com- mittee, subject to the approbation of the council, direct to be paid for the purposes of the borough con- stabulary force. Ill tbe case of lieg. v. Mayor, dr., of Exeter, 44 L. T. (n.s.) 101, a rule nisi had been obtained for a writ of certiorari to bring up for the purpose of quashing it, an order (jf tlie town council to pay certain costs out of the borough fund or rate under the Act of 1835. ]\Ir. Justice Field said : " The short question is whether it is com- petent for the town council to direct these expenses to be paid out of the borougli fuiul. The circumstances under which the expenses were incurred were, that the chief constable was directed by the justices to prosecute a person for conspiracy ; but the justices had no power to order the chief constable to prosecute so as to bind him. The necessary eleinonts of an action for malicious prosecution are absence of reasonable and probalile cause, and malice. The jury have found malice, and have given substantial damages. Apparently the constable was thought to have acted with undue zeal, or personal feeling, and he must be taken to have committed a personal wrong. It is no part of the duty of the chief constable to lay informations, certainly not to do so without reasonable and proliable cause, and mali- ciously. Can the expenses, under these circumstances, be In-ought within the words of section 82 i The case is clearly not ^vitllin the words * extraordinary expenses which such persons shall appear to have necessarily incurred in apprelu'uding oflendersand executing the orders of any justice of the peace having jurisdiction within the borough.' These words obviously ai)ply, not to directions such as those in the present case, which the justices voluntarily give, but to orders which they have jurisdiction to make, and which are legally binding. Then, are they ' charges and expenses which the watch committee shall, subject to tlie approbation of the council, direct to be paid for the purposes of the constabulary forces under this Act ?, I think not. The purposes of the constabulary force are deliucd by 252 MUNICIPAL CORPORATIONS. 5th Sched. sect. 76 of the Act, and these expenses cannot be held to be for the jnirposes of the constabulary force. I am of opinion, therefore, that Pabx II. tlie rule must be made absolute." A member of tlie constabulary force of the borouj^di of Liverpool was made the subject of a libellous article in a newspaper, in reference to his conduct as inspector of public -houses, in giving a good character to an applicant for a license, at the meeting of the magistrates of the borough in licensing session, whom he knew to have been the keeper of a house of ill-fame. Upon an intimation from, though without the official sanction of, his superior authorities, he took criminal I^roceedings, by way of summons before a magistrate, against the jiublisher of the libel, and incurred expenses thereon. The watch com- mittee, with the subsequent approbation of the town cormcil, made an order on the borough treasm-er for the payment of a sum of money on account of such expenses. The Liverpool borough fund has a surplus. Held, that such order was not in respect of an allowance, nor a charge or an expense for the purposes of the constabulary force Avithin 5 & 6 Will. 4, c. 76, s. 82, nor an application of the fund for the public benefit of the inhabitants of the borough within sect. 92, and that a rule must go for a certiorari to bring up the order for the purpose of being quaslied. {Recj. v. Liverpool {Mayor and Toivn Council), 41 L. J. Q. B. 175 ; 28 L. T. (n.s.) 500.) It appears, however, that the council could now make an order for the payment of sucli expenses under sect. 226, if the action, prosecu- tion, or proceeding were for any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act. These words are very extensive, but they should not be interpreted to cover the case of a person acting in bad faitli or with culpable negligence. 6. The costs and expenses payable by the corporation in respect of the prosecution, maintenance, conveyance, transport, or punishment of offenders. 7. All sums payable under this Act by the corporation of the borough to the treasurer of a county. 8. The expenses of and incidental to the division of a borough into wards or the alteration of wards, including the remunera- tion of the commissioner appointed for the purposes of the* division or alteration. 9. Such remuneration to the clerk to any commissioners for taxes in respect of making copies of assessments as the council think reasonable. 10. The expenses of and relating to a charter of incorporation for a borough, and of and relating to all elections, acts, and pro- ceedings under the charter. 11. All expenses charged on the borough fund by atiy Act of Parliament or otherwise by law. 45 & 4G VTCT. c. 50. — oth schedule. 253 12. All other expenses, not by this Act otherwise provided 5th Sched. for, uccessarily incurred in carrying this Act into eflect. PAnrll These rules are to a large extent a reproduction of the 92nd section of the Act of 1835. The I'oUowiiig decisiDUS upon that .section may be consiulted. Although one or two of them take, unfortunately, much too narrow a view of the powers of expenditure possessed by councils, the rest recognize the necessities and obligations cast upon the body which is entrusted with the duties of local self-government. From these it may be gathered that councils may now rely upon the courts giving full effect to the provisions made by the above rules, and thus remove many of the difliculties which stand in the way of iv successful administration of the Act. It is impossible for the legislature to foresee all the exigencies that may arise under the increasing complica- tions of our social sj'stem. Nevertheless it has done what it could when it declares that all expenses necessarily incurred imder an Act which was passed with the intention to secure good and quiet govern- ment for our towns, may be lawfully incurred. Councils Avould have no occasion to complain if the law were inter- preted in this spirit. In the case of Attorney-General v. Mayor, ^'c, of Nonoich, 2 ISljl & Cr. 406, 425, 428, atfirniing the judgment in 1 Keen, "700, the Lord Chancellor ol>served : " This clause, after providing that the council shall be at liljerty to pay all other expenses not otherwise provided for, which shall be necessarily incurred in carrying into effect the provi- sions of this Act — which cannot merely mean expenses to carry into effect that which must be done to set the Act of Parliament in opera- tion, but must mean also those expenses wliich would arise out of the duties imposed on the parties by the Act — goes on to say, that a surplus shall be applied under the direction of the council for the jDublic benefit of the inhabitants and the improvement of the borough ; a very large discretion, and, like every (jther discretion given for public purposes, to be honestly and faithfully exercised." Where a bill had been presented to Parliament containing powers for the construction of waterworks, and for the doing of acts which, if done, would interfere with the stream of a river passing through a particular borough town, so as to prevent the efficient action of the stream in removing the sewage of the town, and thus indirectly affect the value of the rateable houses in the borough, the tolls of the market, and the other property forming the borough fund, and the corporation had applied part of the surplus of the borough fund in a partially successful oi)position to the passing of the bill, it was decided by one of the Yice-Chancellors, that under the Act of 1835, the corporation, whether they had any surplus borough fund or not, ■were justified in applying their funds in opposing such a bill, and, upon appeal, it was held that the payment of such expenses out of such a fund was not so clearly contrary to the spirit of the 90th and 92nd sections of that Act, which provides for the application of the surplus of the borough fund, as to warrant the court in granting an interlocutory injunction to restrain such application. {Attorney- General V. Maijiir, d-c, of If'ifjioi, 23 L. J., Eipiity, 429.) A corporation is justilied, if acting bond fide, in applying its funds in opposing Parliamentary bills which would aifect its existence, and materially injure its powers as a corporation, though no such power 254 MUNICIPAL COEPORATIONS. 5tli Sched. is expressly given to it by its incorporating Act. (Boiver v. Sligo {Commissioners), 4 Jr. R. C. L. 489.) Paet II. ^Municipal corporations having been reduced by the Municipal Corporations Act, 1835, from the position of owners of property to that of trustees, possess the ordinary right of trustees to defend their trust property and tlieir riglits as trustees from attack at the expense of the trust estate. Consequently, a municipal corporation has the right, either under these rules, or under the general law applicable to trustees, to defray out of tlie borongh funds or rates the expenses of any attack made by bill in Parliament, whether against their existence as a corjjoration, or against their property, or only against their rights, powers, or privi- leges, and that right is not taken away by the Municipal Corporations (Borough Funds) Act, 1872. {Ait on leij -General v. Brecon, L. R. 10 Ch. D.'204 ; 40 L. T. (n.s.) 52.) In this case the following cases were considered : — Bright v. North (2 Ph. 216) ; Attorney-General v. Corporation of TFifian, Kay, 268, 5 D. M. & G. 52 ; and Beg. v. Mayor of Sheffield, L. R. 6 Q. B. 652 ; as to the cases last cited, see observations thereon' in the Preface. Rejoairs of a pew in a parish church which the corporation have occupied as such may lawfullv be charged on the borough fund. (Beg. V. Mayor, liave been made with a pencil, if from any circumstance the court can infer that the marks were intentionally made. A ballot paper may be well marked for one candidate although a great portion of the cross is opj^osite the name of another candidate, it the point of intersection of the crossing lines is opposite the name of the former. A ballot paper marked only with a cross oii the back of the paper is bad. When the marked register shows that a voter has already voted, it is -primd facie sufficient for adding his subsequently tendered vote to the poll that he swears he did not previously vote, and that the marked register is wrong. "When the marked register shows that a voter did not vote, it is not conclusive on a scrutiny ; but it may be proved that the voter did vote, and his vote on a paper bearing the number of another elector will be valid. Part til. — Forms relating to Working Men's Dicellings. FOEM L. Form op Grant by Corporation. The Municipal Corporations Act, 1882. (Working Men's Dwellings.) Borough of . Grant No. Tho mayor, aldermen, and burgesses of the borough of by virtue and in pursuance of the above-mentioned Act, and in consideration of paid to them by A.B. of hereby grant] to the said A.B. (herein referred to as the grantee), and his heirs, the site following (that is to say) [insert description] with tho appurtenances, subject to the following conditions (that is to say) : 1. The grantee shall build on the site one working-man's or working-men's dwelling (and no more) according to the plan and t^pecitication deposited in the office of the town clerk, numbered , and under the superintendence and to the satis- faction of the corporation. 266 MUNICIPAL CORPORATIOXS. 8th Sched. 2. The grantee, his heirs and assigns, shall always maintain Paet III. ^^^ repair the building, and shall not sell or alienate the site or building in divisions or separate parts, and, in case of the taking down or destruction of the building shall not rebuild it except in manner approved by the corporation. 3. The grantee, his heirs or assigns, shall not add to or alter the character of the building without the consent of the corpo- ration. 4. If at any time the grantee, his heirs or assigns, fail to fully observe and perform any stipulation of this grant, the corpora- tion may, if they think fit, declare that the site is re-vested in the corporation ; and thereupon the same, with the dwelling and other buildings thereon, shall become and be vested in the corporation, as if this grant had not been made. In witness whereof, &c., this day of 187 . {Corpo7'ate Seal.) Form M. FoEM OF Transfer of Grant. The Municipal Corporations Act, 1882. (Working Men's Dwellings.) Borough of . Transfer No. . (Grant No. .) A.B., of , by virtue and in pursuance of the above- mentioned Act, and in consideration of paid to him by CD. of , hereby grants and transfers to the said CD. and his heirs the site comprised in the within-written* grant [or the gi-ant No. under the said Act, dated the day of 187 f] with the appurtenances and with the dwelling and other buildings thereon, subject to the conditions on which that site is held immediately before the execution of this transfer. In witness whereof, &c., this day of 18 . A.B. (l.s.) * [In case of transfer by indorsement.] f [In case of transfer by separate deed.] 45 & 46 VICT. c. 50. — Sth schedule. 2G7 FOBM N. Form of Lease by Corporation. The Municipal Corporations Act, 1882. (Working Men's Dwellings.) Borough of . Lease No. The mayor, aldermen, and burgesses of the borough of by virtue and in pursuance of the above-mentioned Act, and in consideration of the sum of paid to them by A.B. of and of the rent and stipulations in this lease reserved and contained, and to be by him, his executors, administrators, gr assigns, paid and performed, hereby lease to the said A.B. (herein referred to as the lessee), his executors and adminis- trators, the site following (that is to say) [insert description'] with the appurtenances, for the term of \_nine hundred and ninety -nine'] years from the day of , at the yearly rent (clear of all deductions) of , payable by two equal half-yearly payments on the day of and the day of in every year, the first thereof to be made on the day of , and the last thereof to be made in advance on the day of next before the end of the term, and so that on the term being deter- mined by re-entry a proportionate part of the rent for the fraction of the current half year up to re-entry be repayable. And the lessee hereby covenants with the corporation that he, his executors, administrators, or assigns, will during the term pay the rent on the days and in manner aforesaid, and will pay all taxes, rates, and outgoings for the time being payable by the tenant in respect of the premises. And this lease is made subject to the following conditions (that is to say) : 1. The lessee shall build on the site one working-man's or working-men's dwelling (and no more) according to the plan and specification deposited in the office of the town clerk, and numbered , under the superintendence and to the satis- faction of the corporation. 2. The lessee, his executors, administrators, and assigns, shall always during the term maintain and repair the building, 8th Sched. Taet 111. ^68 8th Sched. Paet III. MUNICIPAL CORPORATIONS. and shall not sell or alienate the site or building in divisions or separate parts and, in case of the taking down or destruction of the building, shall not rebuild it, except in manner approved by the corporation. 3. The lessee, his executors, administrators, or assigns, shall not add to or alter the character of the building without the consent in writing of the corporation. 4. If at any time the lessee, his executors, administrators, or assigns, fail to duly pay the rent hereby reserved, or to fully observe and perform any stipulation herein contained, the cor- poration may, if they think fit, re-enter on any part of the site in the name of the whole, and thereupon the term of years shall absolutely cease- In witness whereof, &c., this day of 187 . • (Corporate Seal.) A.B. (l.s.) FOEM 0. Form of Assignment of Lease. The Municipal Corporations Act, 1882. (Working Men's DwelHngs.) Borough of . Transfer No. . (Lease No. .) A.B. of (herein referred to as the assignor) by virtue and in pursuance of the above-mentioned Act, and in considera- tion of paid to him by CD. of , hereby assigns to the said CD. (herein referred to as the assignee,) his executors and administrators, the site comprised in the within-written lease"^ [or the lease No. under the said Act, dated the day of 187 i] , with the appurtenances, and with the dwellmg and other buildings thereon, for the residue of the term of years, at the rent and subject to the stipulations and conditions at and subject to which that site is held immediately before the execution of this assignment. And the assignee for himself, his executors and adminis- trators, covenants with the assignor, his executors and adminis- 45 & 46 VICT. c. 50.~8th schedule. 2G9 trators, that the assignee, his executors or administrators, will 8th Sched. pay the yearly rent and observe and perform the stipula- p^,(.i. m^ tions and conditions aforesaid, and will at all times keep the assignor, his executors and administrators, indemnified in respect thereof. In witness whereof, &c., this day of 187 . A.B. (l.s.) CD. (l.s.) * p[n case of assignment by indorsement.] t [In case of assignment by separate deed.] Part IV. — Forms relating to Borough Bridges, FOEM P. Form op Mortgage. The Municipal Corporations Act, 1882. (Borough Bridges.) Borough of . Mortgage No. We, the mayor, aldermen, and burgesses of the borough of by virtue and in pursuance of the above-mentioned Act, and in consideration of the sum of paid to them by A.B. of for the purposes of the said Act, do grant and assign unto the said A.B., his executors, administrators, and assigns, such proportion of the borough fund and borough rate as the said sum of doth or shall bear to the whole sum which is or shall be borrowed on the credit of the said fund and rate, to hold to the said A.B., his executors, administrators, and assigns, from the day of the date hereof, until the said sum of with interest at the rate of per centum per annum for the same, shall be fully paid and satisfied. And it is hereby declared that the said principal sum shall be repaid on the day of at [place of payment]. In witness whereof, &c., this day of 187 . (^Corporate Seal.) 270 MUNICIPAL COEPORATIONS. 8th Sched. Form Q. Paet l\ . FoEM OF Transfer of Mortgage. The Municipal Corporations Act, 1882. (Borough Bridges.) Borough of . Transfer No. . Mortgage No. . I, A.B. of in consideration of the sum of paid to me by CD. of , do hereby transfer to the said CD., his executors, administrators, and assigns, a certain mort- gage, dated this day of , and made by the mayor, aldermen, and burgesses of the borough of , under the above-mentioned Act, for securing the sum of and interest thereon at per centum per annum [or, if the transfer is by indorsement on the mortgage, insert, instead of the words immediately following the word ^^ assigns,'" the within security], and all my right, estate, and interest in and to the money thereby secured, and in and to the fund and rate thereby assigned. In witness whereof, &c., this day of 187 . A.B. (l.s.) THE NINTH SCHEDULE. Enactments in which a Reference to this Act is to be substituted. PART I. General Eeferences. 2 & 3 Vict. c. 93. — An Act for the estabhshment of county and district constables by the authority of justices of the peace ;sect. 24). ' 5 & 6 Vict. c. 109. — An Act for the appointment of parish constables (sect. 21). 9 & 10 Vict. c. 74. — An Act to encourage the establishment of public baths and wash-houses (sect. 1). 45 & 46 VICT. c. 50. — 9th schedule. 271 10 & 11 Vict. c. G2.— An Act for the establishment of naval 9th Sched. prisons, and for the prevention of desertion from Her Majesty's i^xui I. navy (sect. 13). 12 & 13 Vict. c. 35. — An Act for requiring annual returns of the expenditure on highways in England and Wales to be trans- mitted to the Secretary of State, and afterwards laid before Parliament (sect. 2). 12 & 18 Vict. c. 82. — An Act to relieve boroughs, in certain cases, from contribution to certain descriptions of county expenditure. 13 & 14 Vict. c. 20. — An Act to amend an Act of the fifth and sixth years of Her present Majesty for the appointment and pay- ment of parish constables (sect. 7). 13 & 14 Vict. c. 105. — An Act for facilitating the union of liberties with the counties in which they are situate (sect. 10). 14 & 15 Vict. c. 28. — An Act for the well-ordering of common lodging-houses (sect. 2). 14 & 15 Vict. c. 34. — An Act to encourage the establishment of lodging-houses for the labouring classes (sect. 2j. 16 & 17 Vict. c. 73. — An Act for the estabhshment of a body of naval coast volunteers, and for the temporary transfer to the navy, in case of need, of seafaring men employed in other public services (sect. 24). 16 & 17 Vict. c. 97.— The Lunatic Asylums Act, 1853 (sect. 9). 17 & 18 Vict. c. 71. — An Act to amend the* law concerning the making of borough rates in boroughs not within the Muni- cipal Corporation Acts. 17 & 18 Vict. c. 87. — An Act to make further provision for the burial of the dead in England beyond the limits of the metropolis (sect. 3). 17 & 18 Vict. c. 105.— The Militia Law Amendment Act, 1854 (sect. 11). 18 & 19 Vict. c. 57. — An Act further to amend the laws relating to the militia in England (sect. 7). 18 & 19 Vict. c. 121. — The Nuisances Removal Act for Eng- land, 1855. 19 & 20 Vict. c. 69. — An Act to render more cflectual the police in counties and boroughs in England and Wales. 20 & 21 Vict. c. 81. — An Act to amend the Burial Acts. 272 MUNICIPAL CORPORATIONS. 9tli Sched. 22 & 23 Vict. c. 40.— An Act for the establishment of a reserve Paet I. voh;nteer force of seamen, and for the government of the same (sect. 25). 23 & 24 Vict. c. 68. — An Act for the better management and control of the highways in South Wales. 25 & 26 Vict. c. 61. — An Act for the better management of highways in England. 26 & 27 Vict. c. 13. — An Act for the protection of certain garden or ornamental grounds in cities and boroughs. 26 & 27 Vict. c. 97.— The Stipendiary Magistrates Act, 1863 (sect. 2). 28 & 29 Vict. c. 126.— The Prison Act, 1865 (sect. 4). 30 & 31 Vict. c. 102.— The Representation of the People Act, 1867. 31 & 32 Vict. c. 22.— The Petty Sessions and Lock-up House Act, 1868 (sect. 3). 31 & 32 Vict. c. 46.— The Boundary Act, 1868 (First Schedule). 31 & 82 Vict. c. 68. — The Parliamentary Electors Registration Act, 1868. 31 & 82 Vict. c. 125.— The Parliamentary Elections Act, 1868 (sects. 43 and 45). 31 & 32 Vict. c. 130. — The Artizans and Labourers Dwellings Act, 1868 (sect. 3). 33 & 34 Vict. c. 76.— The Elementary Education Act, 1870 (sect. 3). 33 & 34 Vict. c. 78.— The Tramways Act, 1870 (Schedule A.). 84 & 35 Vict. c. 56.— The Dogs Act, 1871 (Schedule). 34 & 35 Vict. c. 105.— The Petroleum Act, 1871 (sect. 2). 35 & 36 Vict. c. 38.— The Infant Life Protection Act, 1872 (First Schedule). 35 & 36 Vict. c. 91. — An Act to authorize the appHcation of funds of municipal corporations and other governing bodies in certain cases. 38 & 39 Vict. c. 17.— The Explosives Act, 1875 (sect. 108).^ 38 & 39 Vict. c. 55.— The Public Health Act, 1875 (sect. 4). 38 & 39 Vict. c. 83.— The Local Loans Act, 1875 (sect. 34). 39 & 40 Vict. c. 56.— The Commons Act, 1876 (sect. 37). 40 & 41 Vict. c. 21.— The Prison Act, 1877 (sect. 59). 41 & 42 Vict. c. 49.— The Weights and Measures Act, 1878 (Fourth Schedule). 45 & 46 VICT. c. 00. — 9th schedule. 273 41 & 42 Vict. c. 74.— The Contagious Diseases (Animals) Act, 9th Sched. 1878 (sects. 7 and G6). r~r 41 & 42 Vict. c. 77. — The Highways and Locomotives (Amend- ment) Act, 1878 (sect. 38). PART II. Particular References. 14 & 15 Vict. c. 55. — An Act to amend the law relating to the expenses of prosecutions, and to make further provisions for the apprehension and trial of offenders in certain cases : In sect. 24, for Schedule C. to the Municipal Corporations Act, 1885, the Sixth Schedule to this Act. 33 & 34 Vict. c. 91.— The Clerical Disabilities Act, 1870: In the First Schedule, for sect. 28 of the Municipal Corpora- tions Act, 1835, so much of the provision of this Act relative to disquahfications for being councillor as relates to being in holy orders. Under this Act a priest or deacon may relinquish his position in the Church of England by deed enrolled as therein mentioned. At tlie expiration ot six months after service of otlice copy of the enrol- ment on the bishop of the diocese, tlie deed is to be recorded in the rcjjistry, and thereupon the disability to serve the oiiice of town councillor ceases. DIYISIO:^ III. In tliis division it is intended to give a description of the various proceedings necessary under the existing law for the conduct of a municipal election. In tins division the reference to the Municipal Corpora- tions Actj 1882j is by quoting the section or schedule only. MUNICIPAL ELECTIONS. Day of Election. Day of The ordinary day of election of councillors is the 1st Election. November (sect. 52). On a casual vacancy the election to supply it must be held vrithin fourteen days after written notice of the vacancy has been given to the mayor or town clerk by two burgesses. The actual day of election is fixed by the mayor (sect. 66) . This may be done verbally. In the computation of the period of fourteen days, Sunday, Christmas day, Good Eriday, Monday and Tuesday in Easter week, and days appointed for public fast, humi- liation, or thanksgiving are not excluded. If the last day of the time so limited should be one of those days, the election may be held on the next day afterwards, not being one of such days (sect. 2.30). If the election is not held on the appointed day it may be held on the next day (sect. 70). MUNICIPAL ELECTIONS. 275 ' Notice of the Election. Sect. 54 requires that " nine days at least before the Notice of the day for the election of a councillor the town clerk shall '^'^*^'°"- prepare and sign a notice thereof, and publish it by fixing it on the town hall^ and^ in the case of a ward election, in some conspicuous place in the ward." The days above mentioned are not excluded in compu- ting this period (sect. 230) . The form of notice is given in the Eighth Schedule, Form H. The forms in that Schedule may be varied as circuniotanccs require (sect. 240) . The notice must be fixed in some conspicuous place on or near the outer door of the town hall, or, if there is no town hall, in some conspicuous place in the borough or ward to which the notice relates (sect. 232). Nomination Papers. At the time of the publication of the above notice, the ^"^oimn^tion town clerk should be provided with a sufficient number of nomination papers to supply any burgess with as many as may be required (Third Schedule, Part II., 6). Nomination papers are required to be signed by two burgesses, as proposer and seconder, and by eight other burgesses of the borough or ward as assenting to the nomination {Id. 2). For form of nomination paper, see Fiighth Schedule, Form I. The town clerk is under no obligation to supply nomi- nation papers to any persons other than burgesses, that is, persons entitled to vote in the election for which the papers are required. He is, however, required upon the request of any enrolled burgess, to fill up a nomination paper (Third Schedule, Part II., 6) . This form need not be followed absolutely. It may be varied as circumstances require ; but must be to the like effect as that set forth in the Eighth Schedule (sect. 2i0.) t2 276 JVriTNIOIPAL ELECTIONS. Nomination j^. ^,j^j j^g observed that the form e;iven in that schedule papers. to^ directs the persons nominating and assenting to supply their numbers on the burgess roll, ivith the ward or polling district, if any, having a distinct numbering. The 45th section provides that in boroughs where there are no wards, the burgess roll shall be made in one general roll for the whole borough. In that case no difficulty can arise, as supplying the numbers on such a roll will be a compliance with the requirement of the form. In boroughs where there are wards the burgess roll is made up in ward rolls, one for each ward, and the names are numbered by wards or by polling districts, unless the council direct the same to be numbered consecutively without reference to wards or polling districts (sect. 45 (3) ) . There seems to be no provision for numbering the burgess roll in wards or polling districts, and in one roll where a borough is divided into wards. There cannot be a burgess roll with numbers differing from the numbers of the ward or polling district. The word '^''Avith" must, therefore, be read as requiring not only the numbers in the ward or polling districts to be stated, but the description of the ward or polling district must be added. Full particulars of the person nominated are still required; but the signa- tures and the numbers of the proposer and seconder, and assentors, are now only required. The situation of the property in respect of which they are enrolled is dispensed with. Nomination papers are required to be delivered at the town clerk^s office by the candidate, or his proposer or seconder, seven days at least before the day of the election, and before five o^clock in the afternoon of the last day on which they may be delivered. (Third Schedule, Part II., 7.) In calculating these days, Sundays and the days before mentioned are to be computed. (>S'ee sect. 230, and the notes thereon.) If any candidate nominated be absent from the United Kingdom, his nomination will be void unless at the time of nomination his written consent, given before two MUNICIPAL ELECTIONS. 277 tion, U papers, witnesses witliin one montli of the day of his nomination is produced. (Third Schedule, Part II., 16.) Any person who forges, or fraudulently defaces, or ^''<)minatk•u fraudulently destroys, any nomination paper, or delivers to the town clerk any forged nomination paper, knowing the same to be forged, is guilty of a misdemeanour and will he liable to a term of imprisonment. Any attempt to commit any such offence will be punishable in like manner. It will be the duty of the town clerk to proceed against any person so offending. The delivery of the nomination paper by the candidate, or his proposer or seconder, Avill be some guarantee of its genuineness. Notice to the Candidates. Immediately upon the receipt of a nomination paper Notice to the town clerk is required to send notice of such nomina- ^'*" ^ ^ ^*' tion to each person nominated. (Third Schedule, Part II., 8.) It seems desirable, in order that persons nominated may, if they so wish, withdraw from candidature, to state shortly in this notice the steps to be taken for that purpose. As the time during w^hich candidates may with- draw is so very short, it is desirable, whenever practicable, that this notice should be delivered personally. At all events, the town clerk should use the most speedy means of bringing to the notice of the candidates the nomina- tions. The following form may be used : — Borough of N. Election of councillors for ward in the said borough [or for the said borough.! To Mr. . " -• In pursuance of the Municipal Corporations Act, 1882, I hereby give you notice that you have been nominated as a cantlidate at the election of councillors for ward in the borougli of N. [or for the said borough] to be held on day the day of 18 . If you do not desire your name to remain as a candidate you may withdraw from candidature by tilling in and signing a notice to that eflect (which may be in the annexed form) and delivering the same at my ottice, not later than two o'clock in the afternoon of the day of 278 MUNICIPAL ELECTIONS. Notice to And I hereby give you further notice that the mayor will attend candidates. at the town hall, on afternoon, the said day of for a sufficient time, at and after the hour of two o'clock, and will decide on the validity of objections made to nomination papers. You are entitled to attend such proceedings and to appoint under your hand one other person as your representative for the same jDurpose, and during the attendance of the mayor, you, and your representative to be appointed as aforesaid, have respectively power to object in ^vl'iting to the nomination of any other candidate at the said election. The appointment of your representative may be in the form enclosed, and must be delivered to me before five o'clock in the after- noon of Dated tliis the day of day of 18 Municipal Offices, A.B. Town Clerk of the said Borough. Notice of Withdraival. The notice of withdrawal to be effectual must be signed Notice of 1^ ^1^ candidate, and must be delivered at the town clerk's withdrawal. J ■* , i . , /. o ^ office not later than two o clock m the atternoon ot the day next after the last day on which nominations may be delivered. Notices of withdrawal are to take effect in the order in which they are delivered. It is provided, how- ever, that no notice shall have eifect so as to reduce the number of candidates ultimately standing nominated below the number of vacancies. (Third Schedule, Part II., 17.) Care should therefore be taken to endorse on each notice of withdrawal the exact time at which it was received by the town clerk. The following form of withdrawal by a candidate may be used : — To the Town Clerk of the Borough of N. Election of councillors for ward in the borough of N. {or for the said borough] to be held on the day of 18 . I hereby give you notice that I withdraw my name from candida- ture at the said election. Witness my hand this day of , 18 . Objections to Nomination Papers — hoiv disposed of. Objections to Qn the day next after the last day for the receipt of papers!^ '° nomination papers, the mayor is to attend at the town hall for a sufficient time, between the hours of two and MUNICIPAL ELECTIONS. 279 four in the afternoon, and decide on the validity of every Objections to objection made in writing to a nomination paper. The p.iper8. candidate and a person appointed by him or on his behalf as hereafter mentioned may attend the proceedings before the mayor and object to the nomination paper of any other candidate for the borough or ward, as the ease may be. The candidates and their representatives, but no other person, except for the purpose of assisting the mayor, is entitled to be present. The candidate by virtue of his nomination has an absolute right to be admitted. This is not so with his representative, who, in order to be entitled to attend, must be appointed in writing for the purpose under the hand of the candidate, or in case of his absence from the United Kingdom, under the hand of his p: oposer or seconder. The appointment must bo delivered to the town clerk before five o^clock in the afternoon of the last day on which nominations may be delivered. (Schedule 3, Part II., 11.) In practice it will be convenient if this appointment be delivered at the same time as the nomi- nation paper. The candidate's representative need not be a person entitled to vote in the election. He may be the proposer or seconder, or one of the persons assenting to the nomination, or any other person whom the candidate may think fit to appoint. The following form may be used in the appointment of the candidate's representative to attend these proceed- ings : — Borough of N. To the Returning Officer at an Election of councillors for ward in the said borough [or for the said borough] to be lield on the day of 18 , and to the toAvn clerk of the said borough. I having been nominated as a cantlidate at the said election [or I the proposer or seconder of , a candidate at the said election, lie being absent from the United Kingdom], do hereby appoint to attend tlie proceedings before the mayor on my behalf [or on behalf of the said candidate] ou the day of 18 . Witness my hand this day of 18 . The mayor's duty appears to be merely to decide on objections which may be actually made to nomination 280 MUNICIPAL ELECTIONS. Objections to papers^ such objections being made in writing, and lie has nomination • • ^^ •• i • ,• ,^ • ^ papers. ^^ jurisdiction over objections otherwise made^ or over objections which may exist, but to which his attention is not duly called by some qualified objector. The decision of the mayor on objections to nomination papers, -whether he allows or disallows the same, must be given in vjriting. If the mayor disallows any objection to a nomination paper his decision is final. If he allows the objection, however, his decision is subject to reversal on petition questioning the election or return. (Schedule 3, Part II., 14.) It is not now necessary for the mayor to continue his sitting until the two hours fixed for this purpose have expired. He need only attend for a sufiicient time (Schedule 3, Part II., 9). He would be justified in refusing to re-open the consideration of an objection after having once given his decision thereon. It may happen in consequence of the mayor's decision on objections to nominations that the number of candi- dates, excluding those who have given notice of with- drawal, may be less than the number of vacancies to be filled up. It is suggested that in such a case the last withdrawal would be ineffectual, and the candidate, notwithstanding such withdrawal, unless his nomination should be rejected by the mayor on objection made, must be considered a duly qualified candidate. The notices of withdrawal cannot, therefore, come into operation until the mayor has finally decided on objections to nominations. Notice of Candidates duly Nominated. Kotice of duly After the mayor has decided on objections to nomina-^ nominated candidates. nominated ^jqj^ papers, and it is ascertained what persons remain duly nominated, the town clerk is required to cause the sur- names and other names of all such persons, with their respec- tive places of abode and descriptions, and the names only o£ their respective proposers and seconders (but not the names of the other subscribers of the nomination papers) , MUNICIPAL ELECTIONS. 281 to be printed and publislied in the same way as before Notice of duly .,., . PI ,.. nominated mentioned witli respect to the notice oi the election, candidates. (Third Schedule, Part II., 15.) This notice must be given at least four days before the day of election. Sundays and the other days mentioned in sect. 230 are not to be computed in these four days {see notes on this section). This notice must be given, there- fore, in many cases, on the same day as the Mayor's Court. There is no advantage to be obtained from delaying the publication until the last day on which the same may be legally published. It seems advisable on all grounds to publish this notice with as little delay as practicable. The names of the candidates should be arranged in the order in which they will appear on the ballot paper; and it does not appear necessary that the notice should include the names of the candidates who have withdrawn. The following form may be used : — Borougli of Election of Councillors. i^otice is liereliy given that the following persons respectively have been clnly nominated for the ollice of councillor of the said borough at an election of councillors for each of the several wards of the said borough [or an election of councillors for the said borough] to be held on say the day of 18 , that is to Ward for whicli the persons are nominated. Surname. Other Names. Abode. Descrip- tion. Proposer. Seconder. For £. ward For same ward For same ward For C. ward For same ward &c., &c. Dated this day of Municipal Offices, N. 18 A.R Town Clerk. 382 MUNICIPAL ELECTIONS. The Ballot Papers. Ballot papers. Immediately after the mayor has decided on objections to nomination papers^ and it is ascertained that an election must be held, the preparation of the ballot papers should have attention. The Ballot Act, 1872, Schedule 1, Rule 22, provides as follows : — " Every ballot paper shall contain a list of the candidates described as in their respective nomination papers, and arranged alphabetically in the order of their surnames, and (if there are two or more candidates with the same surname) of their other names; and it shall be in the form set forth in the Second Schedule to this Act, or as near thereto as circumstances admit, and shall be capable of being folded up." Sect. 62 directs that if the election of elective auditors and that of revising assessors are held at the same time, then, at the poll, one voting paper only shall be used by any person voting. The names of the candidates for the respective offices are to be therein separate, and dis- tinguished so as to show the office for which each is a candidate, and the provisions of the Ballot Act, 1872, are to be varied accordingly. The Form of the ballot paper to be used at the election of councillors will be found in Part II., Schedule 2, of the Ballot Act, 1872, in the Appendix. Nothing is to be printed on the ballot paper except in accordance with Schedule 2 of the said Act. The surname or each candidate, and if there are two or more candidates of the same surname, also the other names of such candidates, are to be printed in large characters, as shown in the Form, and the names, addresses, and descriptions, and the number on the back of the ballot paper are to be printed in small characters. It is important that the space allotted on the ballot paper for each candidate should be so ample that the voter may have a considerable space in which to place the cross MUNICirAL ELECTIONS. 283 by which lie signifies the candidate for whom he intends Ballot papers, to vote. Where practicable an inch on the ballot paper should ])e allowed to each name. If the number of candi- dates should be excessive this would have to be reduced to prevent the ballot paper becoming unwieldy. It will be found convenient to bind the ballot papers in books corresponding with the number of voters allotted to vote at the respective polling stations at which they are to be used. It is left to the judgment of the mayor to furnish each presiding officer with as many ballot papers as he may think necessary. (Third Schedule^ Part III., 4.) Great care must be taken to provide sufficient ballot papers, as an error in this respect would probably jeopar- dise the election. No doubt the mayor would be respon- sible for a corrupt exercise of the discretion vested in him; but even if he should by an error of judgment provide an insufficient number of ballot papers, and burgesses were deprived of tlic opportunity of recording their votes to an extent affecting the electiou, the election would be voidable. Each book of ballot papers should have on the outside a label with a full description of the name of the borough, ward, and polling station at Avhich it is to be used. Tendered Ballot Papers. The 27th Rule in the First Schedule to the Ballot Act, Tendered 1873, makes provision for recording the votes of persons who have been personated. The rule provides that if a person representing himself to be a particular elector named on the register, applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions, and taking the oath permitted by law to be asked of, and to be adminis- tered to voters at the time of polling, be entitled to mark a ballot paper in the same manner as any other voter. In such cases the voter is not to mark an ordinary ballot paper, but the presiding officer is to supply another ballot paper called a ''tendered ballot paper,'' which is to be of 284 MUNICIPAL ELECTIONS. Tendered a different colour from the ordinary ballot imper thousrh ballot paiiers. • n ,, , . ., mi • t • , m all other respects similar. This makes it necessary that the mayor should supply each presiding officer Avith a sufficient number of '' tendered ballot papers/^ The percentage of tendered votes is very small. One tendered ballot paper for every fifty ordinary ballot papers will commonly be sufficient. It will be found convenient to bind and label the tendered ballot papers in the same manner as the ordinary ballot papers in books of pro- portionate size. An opinion has been advanced that the above rule does not authorize the administration of an oath at a municipal election,, inasmuch as there was no authority to administer an oath at such an election previous to the Ballot Act^ 1872 ; and that so great a change in the law would have been made by precise enactment. It seems clear, however, that the legislature has in fact prescribed that an oath shall be taken at a municipal election under certain circumstances, for the poll at a contested municipal election is to be conducted, as far as circumstances admit, and subject to certain modifications which do not affect this question, in the same manner as a poll at a contested Parliamentary election (sect. 58) . At a Parliamentary election provision is made for a special case, viz., that in which a person, representing himself to be a particular elector named on the register, applies for a ballot paper after another person has voted as such elector. In that case, and in that case only, the presiding officer and any clerk appointed by the returning officer to attend at a polling station, have power to administer the oath (Ballot Act, 1872, sect. 10, and Rule 27) . It is said, however, that the 59th sect, of the Municipal Corporations Act, 1882, has been substituted for the 27th Rule of tlie Ballot Act. Such a construction, however, woidd be con- trary to the principles laid down for the interpretation of statutes in Hill v. Hall, L. R. 1 Ex. D. 411. Moreover, in Part III. of the Third Schedule to the Municipal Cor- porations Act, 1882, express mention is made of particular rules which it was intended should not apply to the case MUNICIPAL EI/ECTIONS. 285 of a municipal election, and these rules do not include Tendered the 27th. ballot papers. Further, the provisions in the 59th sect, of the Muni- cipal Corporations Act, 1882, do not contradict the 27th rule of the Ballot Act. They are supplemental ; for the first provides for the case of any burgess who may oflFer to vote, whilst the 27tli Rule provides only for the case of a burgess who applies for a ballot paper after another has voted in his name. In the first instance, on the voter duly answering the questions, he is entitled to vote in the ordinary way. But in the second instance, notwith- standing that the voter complies with the law, he is entitled to a " tendered ballot paper " only, and his vote will not be counted, except upon a scrutiny. The two cases are very different, and the legislature has provided an appropriate method of dealing with each. The questions will be found in sect. 59. The oath is as follows : — Oath. You do swear that j'ou are the same person whose name appears as A, B. on the hurgess roll now in I'orce for this borough, and that you have not before voted either here or elsewhere at the present election. — So help you God. Affirmations. You, being one of the people called Quakers, do solemnly, sincerely, Quakers, and truly declare and alHrm that [as above]. You, being one of the United Brethren called Moravians, do Moravians. Bolemnly, sincerely, and truly declare and attirni that [as above.] You. having been one of the people called Quakers, do solemnly, Persons who sincerely, and truly declare and affirm that [as above]. ' have been Quakers. You, having been one of the United Brethren called Moravians, Persons who do solemnly, sincerely, and truly declare and affirm that [as above], i^ve been -IT 1-1 PAT-iz-Mii ■, • Sloraviaus. You do, ni the presence ot Almighty God, solemnly, sincerely, and ^ , . f-.fg truly affirm and declare that you are a member of the religious sect ""*" called Separatists, and that the taking of any oath is contnuy to your religious belief as well as essentially opposed to the tenets of that sect. And you also in the same solemn manner, affirm and declare that [as above]. 28G MUNICIPAL ELECTIONS. Persons who You do solemnly, sincerely, and truly afl&rm and declare that the objdct to an ^ taking of any oath is according to your religious belief unlawful, and oath on religi- y^-f^ ^q ^Iso solemnly, sincereh\ and truly affirm and declare that ous grounds, [as above]. Stamping-instrument for Official Mark, OflScial mark. Sect. 2 of the Ballot Act^ 1872^ provides that at the time of voting the ballot paper shall be marked on both sides with an official mark. The mayor must provide each presiding officer with an instrument for this purpose. The ballot paper must be marked with the official mark immediately before being delivered to the voter. Considerable difference of opinion prevails as to the most suitable instrument for this purpose. Some prefer perforation, others embossing, and others an inking stamp. Each has its advantages and disadvantages. The necessity for stamping the ballot on both sides causes the ink stamp to be less expeditious than the other methods, although it has this strong feature in its favour — that the mark can be readily seen. The ballot papers may be embossed or per- forated with an ordinary lever press. To stamp the ballot paper both back and front by one operation it is only necessary to fold the paper in two. The embossing presses are not so liable to get out of order as the perforating machines. An interval of seven years must intervene between the use of the same official mark at elections in any borough. An alteration may be made in both the perforating machine and the embossing press at little expense. It is desirable to choose such devices as may not be easily forged. Seal. Seal. Each presiding officer must be furnished with a seal to enable him to seal the ballot boxes and documents required to be sealed by him. The seal may conveniently bear the name of the borough or ward, and the number or other description of the polling station. It is not necessary to observe any secrecy as to the seal ; and the same seal will serve for all times. MUNICIPAL ELECTIONS. 287 Ballot Boxes. Rule 23 of the First Schedule to the Ballot Act, 1872, Ballot boxes, provides that the ballot box shall be so constructed that ballot papers can be introduced therein but cannot be withdrawn therefrom without the box being unlocked. The presiding officer is required, just before the commence- ment of the poll, to show the ballot box empty to such persons, if any, as may be present in the polling station, so that they may see that it is empty, and then to lock up the box and to place his seal on it in such a manner as to prevent its being opened without breaking such seal, and to place it in his view for the receipt of ballot papers, and to keep it locked and sealed during the poll. After the close of the poll the ballot box must be sealed up so as to prevent the introduction of additional ballot papers. Care must be taken to have the ballot boxes of sufficient capacity to hold the ballot papers of the voters allotted to vote at the respective polling stations where the same are to be used. The ballot boxes should be labelled in the same way as the books of ballot papers to correspond with the polling stations to which they belong. Miscellaneous Requirements. To carry out a municipal election in accordance with the Miscellaneous Ballot Act the following forms must be provided : — rcquiremea s. Declaration of inability to read; list of votes marked by presiding officer; tendered votes list; ballot paper account; envelope for unused and spoilt ballot papers; envelope for tendered ballot papers; envelope for register; envelope for counterfoils; envelope to contain the two last-named enve- lopes; envelope for tendered votes list; list of votes marked by the presiding officer and statement of the number of voters whose votes are so marked by the presiding officer under the heads '^ physical incapacity," "Jews/' and "unable 288 MUNICIPAL ELECTIONS. Misoellaneoua to read -'^ tlie declarations of inability to read ; and form requirements. ^^ g^gstions and oath. The following forms may be used: — Declaration of inability to read, see Part II, _, Schedule 2_, of the Ballot Act, 1872^ in Appendix. The List of Votes marked by the Presidino Officer. The Ballot Act, 1872. Election of councillors for N. or (for the borough of N.) on the PolHiig station, No. ward in the borough of day of 18 . Number of Voter on the Register. Name of Voter. Reason for which Vote marked by the Presiding Officer.* Statement of tlie number of voters wliose votes are so marked hj the presiding officer under the following heads, viz. : — Physical incapacity - _ . . Jews - Unable to read Total * " Physical incapacity," " Jew," or " unable to read," as the case may be. The Tendered Votes List. The Ballot Act, 1872. Election of councillors for N. (or for the borough of iV.) on the Polling station. No. ward in the borough of day of 18 Name of Voter. Number on Register. MUNICIPAL ELECTIONS. 289 The Ballot Paper Account. The BaUot Act, 1872. ^liscollaneous requirements. Election of councillors for N. or (for the borough of iV.) on the Polling station, No. ward in the borough of day of 18 ' . Ballot papers received, viz. : — Ballot papers accounted for, Ordinary ballot papers - VIZ.: — Tendered ballot papers - Ballot papers iu the ballot box .... Ballot papers tendered Ballot papers unused, viz. : Ordinary . - . Tendered ... Ballot papers spoilt . Total .... Total .... (Signed) Presiding Officer. The following articles must also be provided : — Envelopes of sufficient size, and cloth lined. Sealing wax (two sticks to every ballot box is sufficient); matches; penholders and pens; ink; blotting paper; pencils; marking pencils; Old Testament; New Testa- ment. It is very important that every ballot box should be supplied with all these necessaries. It is recommended that a list should be made of requisites for every ballot box, and each article noted as it is put in the box. The omission of any of the above requisites may cause serious delay. It will be necessary to provide a sufficient number of pencils for the use of the voters in the marking com- partments. The pencils should be strong, and should be sharpened at both ends. The presiding officer should have an extra supply of marking pencils in case any are taken away from the compartments. Polling Districts, Polling Places, and Polling Stations. Town councils may divide their boroughs or any ward Polling dis- or wards therein into polling districts, and the overseers 290 MUNICIPAL ELECTIONS. PoUiiig dis- tricts. must prepare tlie parish burgess lists in conformity "witli the polling districts (sect. 64) . The borough, or each ward, until the council has exercised the power thus conferred on them^ will be a polling district. It is the duty of the mayor to provide in each district at least one polling place, and at every polling place a sufficient number of polling stations for the accommo- dation of the electors entitled to \otc at such polling place, and he must distribute the polling stations amongst those electors in such manner as he thinks most con- venient. (First Schedule, Rule 15, Ballot Act, 1872.) The following form of order dividing the borough or ward into polling districts may be used: — That tills council do hereby, in pursuance of the powers given to tliem for this purpose, order that the following wards in this borough [or this borough] be and the same are [or is] hereby divided into the municipal polling districts following, that is to say, One polling district [here set out the boimdaries of the proposed district] to be called " The polling district of ." [And so on, describing each polling district in the like way.] And that the town clerk do give public notice of the division, of the said wards [or borough] into such polling districts. Polling stations. Construction of Polling Stations. Rule 17, First Schedule to the Ballot Act, 1872, pro- vides that a separate room or separate booth (that is, a separate polling place), may contain a separate polling station, or several polling stations may be constructed in the same room or booth. The question of concentrating a number of polling stations in one polling place or room, is of some import- ance, and, so far as it enables the returning officer to have more complete supervision of the arrangement, seems desirable, if it does not inconvenience the voters. If this arrangement should, however, cause a large number cf persons to collect near the polling place, or should neces- sitate any of the voters having to go a considerable dis- tance to vote, the inconvenience may overweigh the advantage. MUNICIPAL ELECTIONS. For the convenience of the voters it is ccrtaliiU^ clesir- Polling able that the polling stations should be fixed at different places in the ward, and for this purpose it will be in many cases advisable to divide the ward into polling districts. Such buildings or rooms should be selected as polling places as have a separate entrance and exit, so that voters shall proceed constantly in one direction. The room should be on a level with the street. Steps cither up or down stairs arc very objectionable. If arrangements are made for erecting in one room several polling stations, each polling station should be entirely separate from the other. Each station should, 80 far as practicable, be arranged so that the proceedings in one polling station may not be overheard in the other. The screen between the stations should not be of less height than eight feet. It is necessary for the convenience of the voters and officers engaged in taking the poll, and for the proper conduct of the elections, that the stations should not be less than twelve feet square. Each polling station requires a table and a number o£ seats sufficient to accommodate the presiding officer and his clerk, and the agents of the candidates, if any are appointed. The table should be provided with a drawer for the safe keeping of the documents and things in the custody of the presiding officer. The table should be placed at one end of the polling station, and the presiding officer should be seated behind it, facing the entrance. The clerk should sit next to the presiding officer, and the agents on either side of them. There should be a drop bar to separate the officers and agents from the voters. This arrangement will prevent the agents getting in front of the table or near the mark- ing compartments. The presiding officer should insist on the agents remaining in the places appointed for them. The ballot box should be placed in the centre of the table. v2 201 292 MUNICIPAL ELECTIONS. Polling Tiie marking compartments should be placed against tlie side of tlie polling station^ opposite to the presiding officer, so that he may see at a glance that the provisions of the Ballot Act are not infringed. In order to hide more effectually the marking compartments from the observation of persons passing in and out of the polling station, a screen of a sufficient height may be placed along- side the marking compartments. Marking Compartments. Marking com- The mayor is to furnish every polling station with such number of compartments, in which the voters can mark their votes screened from observation, as in his judgment may be necessary for effectually taking the poll. (Third Schedule, Part III., 4.) The number of voters allowed by the Ballot Act (First Schedule, Rule 16), namely, 150, for which a separate compartment must be provided, has in practice proved to have been well considered. It will not be found advisable, except in special circumstances, to assign more than 150 voters to a single marking compartment at a strongly con- tested election. As to the construction of Marking Compartments. Each marking compartment should be constructed of such width as to be capable of accommodating the voter. For this purpose a width of thirty inches will be found sufficient. It should be at least seven feet in height, and constructed so as to fold up, Avith a lid or desk at the back, at a convenient height from the ground. The voter may be effectually screened whilst marking his vote, by placing a curtain in the front of a marking- compartment thus constructed. There does not, however, appear any necessity for this, if care is taken to have the marking compartments of the width mentioned, as in that case the body of the voter will act as a complete screen. MUNICIPAL ELECTIONS. 293 Directions for the Guidance of Voters. The Second Schedule to the Ballot Act, 1872, prescribes Directions to the form for the guidance of voters in voting, and directs voters. that the same shall be printed in conspicuous characters and placarded outside every polling station, and in every marking compartment of every polling station. For form of directions for the guidance of voters, see Schedule 2 of the Ballot Act, 1875, in Appendix. Care should be taken that in selecting illustrations of the form of a ballot paper the surnames of persons who are candidates at the election are not used. In some cases the voters might be misled thereby. Returning Officers. In boroughs not divided into wards, the mayor is the Returning returning officer. In boroughs divided into wards, the o"i<^<^^s- respective aldermen appointed by the council, are the returning officers for the several wards (sect. 53). Presiding Officers and Clerks. The mayor must appoint an officer to preside at each Presiding polling station and all such officers as may be necessary °|^^^g^ ""^ for effectually conducting the election. It will be found necessary, in addition to the presiding officer, to appoint a clerk at each polling station to act under his directions. In the selection of persons to perform the onerous duties to be carried out by these officers great care should be taken, as the proper conduct of the election must in a great measure depend upon their discretion and ability. Presiding officers should be thoroughly conversant with the duties they have to perform, so as to be prepai'cd for any emergency which may arise during the course of the day at their respective polling stations. In practice it will be found best to secure the services of solicitors as pre- siding officers. 294 MUKIOIPAL ELECTIONS. Presiding oiEcers and clerks. Tlie "■directions for the guidance of presiding officers and clerks" detail tlie whole of the duties of these officers, and contain instructions as to every probable contingency upon which they are likely to require guidance. For form of these directions^ see post, p. 302. As to the liability of officers for misconduct, see sect. 11 of the Ballot Act, 1872, in the Appendix. Agents of candidates. Agents of Candidates. Nothing in the Ballot Act, 1872, as applied by the Municipal Corporations Act, 1882, is to be deemed to authorize the appointment of any agents of a candidate at a municipal election; but if, in the case of a municipal election, an agent of a candidate is appointed, and notice in writing of the appointment is given to the returning officer one clear day before the polling day, then the pro- visions of the Ballot Act, 1872, with respect to agents of candidates, as far as regards that agent, apply in the case of that election (sect. 58 (6) ). Eule 21, First Schedule of the Ballot Act, 1872, gives the agents of the candidates a right to be present in the polling station. By Rule 26 of the same schedule votes directed to be marked by the presiding officer must be marked in the presence of the agents. By Rule 27 of the same schedule an agent may require the presiding officer to put the questions and administer the oath to voters. {See also sect. 59 (1) ). By Rule 29 of the First Schedule of the Ballot Act, 1872, the presiding officer is to make up the packets mentioned therein in the agents' presence, and they may affix their seals thereto. By Rule 31 of the same statute, the candidates may appoint agents to attend the counting. Rule 32 of the same schedule entitles such agents to written notice of the time and place appointed for the counting. MtJNICIPAL ELECTIONS. 295 By Rule 34 of the same schedule the ballot boxes must Agents of 1 1 • X 1 £■ J.^ J. candidates. DC opened m the presence oi the agents. By Rule 35 of the same schedule the agents may affix their seals upon the ballot papers and other documents during any interval in the counting. By Rule 36 of the same schedule an agent may object to the rejection by the returning officer of any ballot paper. By Rule 37 of the same schedule the ballot paper accounts must be verified in the agents' presence, and the agents may copy the returning officer's report. By Rule 51 of the same schedule an agent may be assisted by his principal, and his duties may be performed by the principal. Rule 52. — The name and address of every agent of a candidate appointed to attend the counting of the votes shall be transmitted to the returning officer one clear day at least before the opening of the poll, and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, notwithstanding that his appoint- ment may be otherwise valid. Rule 53. — If any person appointed an agent by a candi- date for the purpose of attending at the polling station or at the counting of the votes, dies or becomes incapable of acting during the time of the election, the candidate may appoint another agent in his place, and shall forthwith give to the returning officer notice in writing of the name and address of the agent so appointed. By Rule 54 of the same schedule, agents must make the statutory declaration of secrecy before the opening of the poll. It will thus be seen that though the Act does not authorize, it permits, the appointment of agents to attend at the poll, and the counting of the votes. It will be a matter of convenience to the returning officer, if the names of the agents are transmitted to him, by the candidates, on a form to be provided by the returning officer, which should state the names 2^ MUNICIPAL ELECTIONS. "^^Tfff^ of the agents appointed, and tlie particular polling station to which each agent is allotted, and the names of the agents who will attend the counting of the votes. The Act does not limit the number of agents whom candidates may appoint either to attend at the polling stations or at the counting of the votes. The number, however, should not be unreasonable, and the returning officer would be justified in refusing admission to an ex- cessive number of agents. One agent for each candidate at each polling station, and four for each candidate at the counting of the votes, have been found to be a sufficient number. Each agent should be supplied with a card showing that he has been duly appointed, and he should be required to show the card to the presiding or returning officer on commencing his duties. The following form may be used : — Borougli of Election of councillors for ward in the said borough (or for the said borough) to be held on the day of | 18 . . 1 To On behalf of the returning officer at the said election I hereby give | you notice that if it is your intention to appoint persons to act as your agents at the polHng stations at the said election you must notify to me the appointment of such persons and the stations at which they are to act, not later than o'clock in the evening of the day of You must also state whether any of the same persons are appointed to attend as your agents at the counting of the votes, and if not you must state the names of the persons who are so appointed. You may appoint one person to act as your agent at each polling station, and not more than persons to attend at the counting of the votes. If the information now requested is not forthcoming at the time before mentioned, the appointments cannot be confirmed. The votes recorded at the said election will be counted at o'clock in the afternoon of the day of election at . The persons appointed must attend at on evening next at o'clock to make the declaration of secrecy required by the Ballot Act, 1872. If you intend to be present at any polling station, or at the counting of the votes, you should also take the declaration of secrecy. Dated this day of To^vn Clerk. A form is enclosed which if you please you may fill up and return to me addressed to the returning officer. MUNICIPAL ELECTIONS. 297 The form to be enclosed may be the following : — Borough of To the returning officer at the election of councillors for ward in the said borough [or for the said borough] to be held on the day of 18 . I having been duly nominated as a candidate at the said election do liereby appoint the following persons to act as my agents at the polling stations at the said election, namely : — Polling Station No. I. (Names.) No. 2. No. 3. No. 4. Agents of candidates. » No. 5. And so on. I also appoint the following persons to attend at the counting of the votes, namely : — 1 2 3 4 5 6 7 8 9 10 11 12 According to the number in each case limited. Witness my hand, this day of (Names) of, &c. » n }} » » w n j> 18 A. B. By Rule 3.2 of the First Schedule of the Ballot Act, 1872, the returning officer must give to the agents of the candidates appointed to attend the counting of the votes notice in writing of the time and place at which he will begin to count the same. The following form may be used : — Borough of Election of councillors for [or for the said borough] to be held on 18 . ward in the said borough the day of To Mr. I, the undersigned returning officer at the said election, do hereby give you notice that I shall proceed to count the votes recorded at the said election at o'clock in the afternoon of the day of election at 298 MUNICIPAL ELECTIONS. Agents of If you intend to hn present at tlie counting of the votes yoii mu8t candidates. attend at the on at o'clock, to make the declaration of secrecy required by the Ballot Act, 1872. Dated this day of 18 . Alderman [or ]\Iayor], Eeturning Officer. Notice of Polling Places. Notice of The mayor must four days at least before the day of polling places, gjeption give public notice of the situation^ division, and allotment of polling places for taking the poll at the election and of the description of the persons entitled to vote thereat and at the several polling stations. (Third Schedule, Part III., 2.) It is desirable that this notice should be published as early as possible after it has been ascertained that an election must be held, in order that the electors may have an opportunity of becoming well acquainted with the situation of the polling places and polling stations. It is provided by sect. 69 that a municipal election shall not be held in any church, chapel, or other place of public worship. [See note on this section, ante.) The Declaration of Secrecy. Declaration '^^^^ ^4, in the First Schedule to the Ballot Act, 1872, of secrecy. provides that every returning officer, and every officer, clerk, or agent authorized to attend at a polling station or at the counting of the votes, shall before the opening of the poll make a statutory declaration of secrecy in the presence, if he is the returning officer, of a justice of the peace, and if he is any other officer or an agent, of a justice of the peace, or of the returning officer. For form, see Schedule II. of the Ballot Act, 1872, in the Appendix. The names of the agents appointed by the candidates to attend the polling stations, and at the counting of the votes, having been ascertained, and the officers and clerks having been selected, the mayor will appoint some day and hour for taking Lhe declarations of these persons. MUNICIPAL ELECTIONS. 299 It will be found advisable to aijpoint the evening of the Declaration . of SGcrccv- day before the day of election for this purpose. The forms of declarations should be filled in so far as practicable so that the proceedings may not be delayed. The mayor is the best person to take these declarations. He must, however, if he is the returning officer, himself make a declaration before another justice of the peace. In the case of a borough divided into wards the mayor, town clerk, and other officers, not acting at the polling stations, but whose duties may call them there during the day of election, or at the counting of the votes, should make this declaration as to each ward. It seems desirable that candidates should make the declaration of secrecy before the commencement of the poll. The returning officer or presiding officer has, however, no power to ex- clude a candidate from any polling place or from the counting, though he has not made the declaration of secrecy. (See Clementson v. Mason, 10 L. II. C. P. 209; 33 L. T. (n.s.) 325.) Appointment of Officers and Clerks. The presiding officers and clerks appointed to attend Appointment the poll and at the counting of the votes should be for- clerks^^^* '^" mally ' appointed by the mayor, and such appointment should describe the particular polling station at which the officer is to act. Each presiding officer and clerk when he has made the declaration should be given his appoint- ment, and a copy of the directions for the guidance of presiding officers and clerks, and each presiding officer should be furnished with the key of his ballot box. The following form of appointment may be used : — Borough of N. Election of councillors for ward in the borough of N. [or for the borough of N.'\ to be held on the day of 18 . I, the undersigned mayor of the borough oi N., do hereby ajipoint Mr. presiding ollicer {or clerk) ut the siud election, to act at polling station No. situate Given under my hand this day of 18 . 300 MUNICIPAL ELECTIONS. Appointment The agents, if any are appointecl_, should after they have clerks. made the declaration of secrecy be furnished by the mayor with a card, showing the appointment and stating the polling station where they are to act. The presiding officers and clerks, having made the declaration of secrecy, should also be furnished with cards authorizing them to attend at the polling stations, or at the counting of the votes, as the case may be. In boroughs divided into wards the aldermen of the respective wards who are returning officers must before the commencement of the election make the declaration of secrecy before a justice of the peace. The Fourth Section of the Ballot Act, 1872, must be read by the person taking the declaration to each declarant before he takes the declaration of secrecy. As the section is of considerable length it will be found advantageous to read the section to as large a number of persons as pos- sible at the same time, but care must be taken that every person who takes the declaration has heard the section read. The Poll. The poll. The mayor should make arrangements for taking the ballot boxes to the polling stations before a quarter to nine on the morning of the election. The ballot boxes should be locked, and left in charge of the constables at the respective stations, who should be instructed to be at their posts not later than half-past eight. If it is not convenient for the mayor to send the boxes to the polling stations, each presiding officer should call at the town clerk's office for his ballot box on the morning of the election. It seems very undesirable to allow the presiding officer to have the custody of the ballot box audits contents on the evening previous to the election. The poll is to commence at nine o'clock in the forenoon, and close at four o'clock in the afternoon of the same day (sect. 58 (3) ) . But if an hour elapses during which no vote is tendered, and the returning officer has not received notice MUNICIPAL ELECTIONS. 301 that any person has within tliat hour been prevented The poll. from coming to the poll by any riot, violence, or other unlawful means, the returning officer may, if he thinks fit, close the poll at any time before four o'clock (sect. 58 (4)). There may be cases in which it is practicable to take advantage of these provisions. It seems almost impossible, however, to do so if the polling places are numerous or widely apart unless instantaneous communication is estab- lished between them. It has been found comparatively easy, but expensive, to establish such communication by means of a telephone or telegraph. The presiding officer should be at his polling station at least a quarter of an hour before the time fixed for the commencement of the poll. He should sec that no persons come into the polling station beside the clerks, the candidates, and their agents. He should require each agent to produce his authority to be present at the polling station, and should see that the person is the person appointed, and not a substitute. The agents should be accommodated at the table, and should be required to take their positions behind the barrier separating the voters from the officer's table. The presiding officer should see that the agents do not interfere "with, or talk to, the voters, and should take care that the provisions of sects. 3 and 4 of the Ballot Act are not infringed by any person in his polling station. Presiding officers should make themselves thoroughly acquainted with their duties, and in the event of any questions arising upon which there is any doubt should immediately refer to their instructions. The town clerk or his deputy should be in attendance at some defined place during the election in order to advise on any diffi- culty that may arise. The following form contains as far as can be foreseen instructions to the presiding officer how to act in any emergency or difficulty that mav arise during the poll :— 302 MUNICIPAL ELECTIONS. Presiding INSTRUCTIONS TO PRESIDING OFFICERS AND CLERKS, oflicers and clerks, The Ballot Act, 1872. Directions for the Guidance of Presiding Officers and Clerks at the taking of the Poll. Before the commencement of the poll, the presiding officer will examine the contents of the ballot box, and see that all the requisites are there, and in case of any deficiency he will at once communicate with the town clerk. The poll will open at 9 o'clock. Presiding officers and clerks must be ] at their stations a quarter of an hour before that time in order that there may be no delay in opening the poll. There will be one presiding officer and one clerk at each polling station. The clerk and agents must show their appointment cards to the presiding officer. Immediately before the commencement of the poll the pre- siding officer will show the ballot box empty to such persons as may be present. He will then lock the box and seal it so as to prevent its being opened without breaking the seal, and shall keep it so locked and sealed, and in his view. On a voter applying for a ballot paper, the presiding officer will ask his name, and will then refer to the register for such name, and on finding it call out the number, name, and descrip- tion of the voter as therein stated. The clerk will then — (1.) Mark the number of the voter on the counterfoil of the ballot paper, in the square immediately below the printed number. (2.) Fold the ballot paper and tear it from the counterfoil. (3.) Stamp the ballot paper so folded near the centre. (4.) Deliver it to the voter. The presiding officer will then place against the voter's number on the register a tick or mark to denote that he has received a ballot paper. The presiding officer shall, if required by two burgesses, or by a candidate or his agent, put to any person oflering to vote, at MTJNICirAL ELECTIONS. 303 the timo of liis presenting himself to vote, but not afterwards, iVcsidlug the following questions, or either ot them — clerks. (rt) Ai-e you the person enrolled in the burgess [or ward] roll now in force for this borough [or ward] as follows ? (Read the ivhole entry from the roll.) (b) Have you already voted at the present election {add in case of an election for several wards, in this or any other ward) ? The vote of a person required to answer cither of these ques- tions shall not be received until ho has answered the first in the affirmative, or the second in the negative. The first of these questions is as to the identity of the person, and not as to the identity of name. The inquiry is not whether the voter's name is e.g. A. B., but whether he is the person who is enrolled as A. B., whatever his name may really be. The person actually registered may, therefore, safely answer this question although his name is incorrectly stated on the register. If any person wilfully makes a false answer thereto he is guilty of a misdemeanour. No other inquiry is permitted as to the right of any person to vote. In case there is any question really affecting the voter, and which may lead to ulterior proceedings, the presiding officer should make a memorandum of the number and name of the voter for reference. The presiding officer will not refuse a ballot paper to a voter on account of any misnomer or inaccui'ate description in the register, if such voter bc'on the register and the presiding officer bo satisfied of the identity of the person applying for the same. Any discrepancy in, or the omission of any voter's name from, the part of the register supplied to the station will, if such be the case, be corrected or supplied by the town clerk at any time during the polling. If a person representing himself to be a particular elector, applies for a ballot paper after another person has voted as such elector, the presiding officer will, upon the applicant duly answering the foregoing questions, and taking the oath, deliver to him one of the coloiu'ed ballot papers called " tendered ballot papers," instead of an ordinary ballot paper, and the clerk will enter the name of the elector and his number on the register on " the tendered votes list." 304 MUNICIPAL ELECTIONS. Presiding If the 'applicant declines to answer the questions or to take clerks. '^"' *^® °^*^' *^® presiding officer must not deliver to him a tendered ballot paper. Before a tendered ballot paper is delivered to a voter it must be marked with the official mark, the same as an ordinary ballot paper. The presiding officer will mark on the back of each " tendered ballot paper " the name and number of the voter tendering the same. " Tendered ballot papers " must not be put into the ballot box, but must be set aside in the separate packet endorsed " tendered ballot papers." If any voter applying for a ballot paper states that he is unable to read, the presiding officer will administer to such voter " The Declaration of Inability to Kead," and will in the presence of any of the agents of [the candidates who shall be present, mark the vote of such voter in the manner directed by him, and cause the ballot paper so marked to be put into the ballot box. In case the voter does not know the names of the candidates for whom he wishes to vote, and presents a card upon which the names of the candidates are printed, and against certain names are placed crosses, and the voter directs the presiding officer to mark the ballot paper in the same way, the presiding officer must act accordingly. In the event of the voter having no such card, the presiding officer should read the names of the candidates, commencing at the first and continuing to the last, and should at each name ask the voter if he wishes to vote for Buch candidate. On the application of any voter who is incapacitated by blind- ness or other physical cause from marking his vote, or (if the poll be taken on a Saturday) of any voter who declares that he is of the Jewish persuasion, and objects on religious gi-ounds to mark his vote in the manner prescribed, the presiding officer will mark the vote of such voter in the manner above mentioned, and cause the ballot paper so marked to be put into the ballot box. In case the voter is incapacitated by blindness or other physical cause, or is of the Jewish persuasion, the " Declaration of Inability to Read," need not be administered. The presiding officer will not suffer any person except the authorised clerk, the candidates and agents, to be present in the compartment at the voting of any voter for whom he mai'ks a ballot paper. MUNICIPAL ELECTIONS. ^^^ The clerk will enter on the " list of votes marked by the pre- Presiamg , omcers anl Siding oflScer," the number on the register and the name ot each clerks. voter for whom the presiding officer marks a ballot paper, and in the third column he will state the reason why it is so marked. He will also make out a statement of the number of voters whose votes have been so marked, distinguishing them under the heads ; " Physical Incapacity," " Jews," and " Unable to Read." Should a voter inadvertently spoil his ballot paper, the pre- siding officer on being satisfied as to such inadvertence, will furnish him with another ballot paper, and immediately cancel, but not destroy, such spoilt ballot paper, and will at the close of the poll seal up with the unused ballot papers all spoilt ballot papers. The presiding officer will not deliver a ballot paper to any person whose name does not appear in the portion of the register furnished to him, nor to any persons whose names are marked with an asterisk. Such last-named persons can vote in other wards in respect of other qualifications. (See the foot-notes in the register.) The presiding ofliccr will on a voter presenting a ballot paper, bearing the official mark on the back (except a tendered ballot paper) allow him to place such paper in the ballot box. The presiding officer will keep order in his station, and permit no one to enter except the voters, the candidates, and the authorised agents. He will not allow a greater number of voters in the station at a time than there are compartments ; ho will see that the voting is not hurried or hindered in any way, and will concentrate his attention particularly on observing that each ballot paper before it is put into the ballot box bears the official mark, and on the administration of declarations of inability to read, and the marking of ballot papers which he may be required to mark. He is empowered to order any constable in attendance to remove any person misconducting himself or failing to obey his lawful orders. If the oflonder is a voter and has not voted he must bo allowed to vote. He will see that the voters vote without undue delay, and are not interfered with or instructed in any way by the agents or by each other, and that they quit the polling station immediately after voting. He may give the voters general instructions as to X 306 MUNICIPAL ELECTIONS. PresicUnp' the way in which ballot papers are marked in case such instruc- officers anil ,. clerks tions are necessary. The poll will close at 4 o'clock p.m. i.e., as soon as the clock has struck the first stroke of the hour. The presiding officer will not give out any ballot paper after 4 p.m., even to voters who may have entered the station before 4 p.m. The presiding officer will allow voters who have received ballot papers before 4 p.m. to mark the same and put them in the box even after that time, provided that no undue delay occurs in so doing. Greenwich time is to be observed. At the close of the poll the presiding officer ■^dll close the aperture of the ballot box so as to prevent the introduction of additional ballot papers, and wiU in the presence of the agents of the candidates (if any) make up into separate packets, sealed with his own seal and the seal of such agents as desire to affix their seals — (1.) The ballot box unopened with the key attached. (2.) The unused and spoilt ballot papers, both tendered and ordinary, placed together. (8.) The tendered ballot papers marked by the voters. (4.) The register and the counterfoils of the ballot papers, both tendered and ordinary, used and unused. The register and the counterfoils must be enclosed in separate packets, and then both such packets must be enclosed in another separate packet. (5.) "The tendered votes list" and "the list of votes marked by the presiding officer," together with the statement of the number of voters whose votes have been so marked. The Declarations of Inabihty to Eead are to be enclosed in this packet. He will deliver the ballot box and such packets to the return- ing officer ; accompanied by (6.) A " ballot paper account," accounting for the number of ballot papers, under the heads — Ballot papers in ballot box. Ballot papers unused. Ballot papers spoilt. Ballot papers tendered. The presiding officer will see that all forms and documents requii'ing his signature are duly filled up and signed. MUNICIPAL ELECTIONS. 307 The presiding officer may permit any of the acts which he is Presiding . , ? ■ ■, . 1 L 1 • n If officers and required or authorised to do, except ordering the removal ot any ,.]^j.]^.^ person, to be done by his clerk ; but no person shall be allowed to put any ballot paper in the ballot box, except in the presence of the presiding officer. Under the Ballot Act, 1872, sect. 3— Any officer or clerk in attendance at a polling station who Forges or counterfeits, or fraudulently defaces, or fraudu- lently destroys any ballot paper, or the official mark on any ballot paper ; or Without due authority supplies any ballot paper to any person ; or Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in ; or Fraudulently takes out of the polling station any ballot paper ; or Without due authority destroys, takes, opens, or other- wise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election. Will be liable to imprisonment for two years with hard labour ; any attempt is punishable in like manner. Sect, 4. Every officer, clerk,'and agent in attendance at a polling station shall maintain and aid in maintaining the secrecy of the voting in such station, and shall not communicate, except for some purpose authorized by law, before the poll is closed, to any person any information as to the name or number on the register of voters of any elector who has or has not applied for a ballot paper or voted at that station, or as to the official mark, and no such officer, clerk, or agent, and no person whoso- ever, shall interfere with or attempt to intei'fere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communi- cate at any time to any person any information obtained in a polling station as to the candidate for whom any voter in such station is about to vote or has voted, or as to the number on the back of the ballot paper given to any voter at such station. Every olBccr, clerk, and agent in attendance at the counting of 308 MUNICIPAL ELECTIOXS. Presiding officers and clerks. the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall directly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make kno-rni to any person the name of the candidate for or against whom he has so marked his vote. Every person who acts in contravention of the provisions of this section shall be liable, on summary conviction before two justices of the peace, to imprisonment for any term not exceed- ing six months, with or without hard labour. Close of the poll. Close of the Poll. The poll will close at 4 o^clock by Greenwich time. The precise time is immediately the clock has struck the first stroke of the hour. There is some difficulty in determining what course should be followed in the case of voters who have entered the polling station, but have not voted before 4 o'clock. In the case of Gribbia v. Kirker, 7 Ir. R. C. L. 30— C. P., and Fisher's Digest, 1870-80, vol. i. 1477, a municipal election which was held under the Municipal Corporations Act (3 & 4 Vict. c. 108), Ireland, and the Ballot Act, 1872, was declared void, on the ground that votes were received after 4 o'clock p.m., though the outer door of the house in which the poll took place was closed at the proper hour, and no votes were afterwards received except from electors who were inside before the door was closed. In this case votes were received for an hour after the time fixed for closing the poll, and it may be inferred from the report of the case that ballot papers were issued to persons who did not apply for them until after such time. It has been suggested that no ballot paper should be allowed to be deposited in the ballot box after 4 p.m. ; but that all papers applied for and issued before 4 p.m., and not then deposited in the ballot box, should be allowed to be marked in the ordinary way, and all other matters in relation to votiusr should be MUNICIPAL ELECTIONS. 309 done in the same way {e.q. the marks in the register bcin"- Pi;' . " object to may object to any other person as not having been entitled on the others as not last day of July next preceding to have his name inserted in any being entitled list of voters for the same city or borough ; and every person so jI^j. *" "^ ^ objecting shall, on or before the twenty-fifth day of August in that year, give or cause to be given a notice according to the form z 338 APPENDIX. Appendix, numbered (10) in the said Schedule (B.) or to the like effect, to Sect~1.7 ^^^ overseers who shall have made out the list in which the name Notice of ob- of the person so objected to shall have been inserted, or if the jectiontobe person objected to shall have been inserted in the Ust of free- overseers or to ^^^ of any city or borough, except the city of London, then to the town the town clerk of such city or borough ; and every person so clerk; objecting shall also give or cause to be left at the place of abode ^^^^^]^^^^*.^*J^%f the person objected to, as stated in the said list, a notice edto. according to the form numbered (11) in the said Schedule (B.); and every notice of objection shall be signed by the person objecting. The 15th day o£ July has been substituted for the last day of July (41 & 42 Vict. c. 26, s. 7). None of the forms given in this Act for boroughs are to be used, with the exception of a few respecting freemen (41 & 42 Vict. c. 26, s. 8). An objector may affix his name to the notice of objection by means of a stamp on which is engraved a fac-simile of his ordinary signature. He could not, however, authorise such a stamp to be affixed by another acting on his behalf {Bennet v. Brumfitt, L. R. 3 C. P. 28). It is a question of fact for the revising barrister whether the description of the place of abode of the objector in a notice of objection is sufficient. Where the description is such that a letter so addressed would reach the objector by post, and the person objected to could easily find him by enquiry on going to the place stated, it is sufficient {ThacTcway v. Pilcher, L. R. 2 C. P. 100). The Parliamentary borough of P. consists of six several places, one of such places being called the borough of P. ; the objector being on the list for that place described himself in the notice of objection as "on the list of voters for the borough of P." It was Jield that the notice was sufficient {Moon v. Andreiv, L. R. 4 C. P. 461). {See also Aldridge v. Medwin, L. R. 4 C. P. 464; Allen v. Geddes, L. R. 5 C. P. 291.) Notice of objection is bad where the objector was described as " on the list of voters for the parish of P. ; " his name was not on the list of occupiers for that parish, but on the list of freemen {Tudball v. Town Cleric of Bristol, 5 M. & G. 5, affirmed by Bright v. Devenish, L. R. 2 C. P. 102.) List of persons 18. And be it enacted, that the said overseers shall include be^mad*^ **^ *° the names of all persons so objected to in a list, according to the Such lists and form numbered (12) in the said Schedule (B.) ; and every town the lists of clerk shall include the names of all persons so objected to as published. freemen in a list, according to the form numbered (13) in the Copies of lists ^^^^ Schedule (B.); and the said overseers and town clerks and notices of respectively shall sign each of the said lists, and cause copies ke^Tfo?in- ^'^ t^e^eof to be written or printed, and shall publish the said list spection. of persons objected to, and the said list of claimants as aforesaid, on or before the first day of September in the said year; and shall keep copies of the said lists, and shall allow the same, and also the notices of objection which they shall have received, to be perused by any person, without payment of any fee, at any 6 VICT. c. 18. 339 time between the boure of ten of the clock in the forenoon and Appendix, four of the clock in the afternoon of any day, except Sunday, Qect~18 during the first fourteen days of September in the said year, and Bhall deliver copies of each of such lists to any person requiring the same, on payment of a price for each copy after the rate contained in the table numbered (1) in the Schedule (D.)to this Act annexed. 19. And be it enacted, that the said overseers shall, on or Overseers to before the twenty-ninth day of August in every year, deliver to fyf f°'+u! the said town clerk a copy of the said list of voters, made out town clerk, by them as aforesaid, and a copy of the said list of persons who shall have claimed as aforesaid, and a copy of the list of persona objected to as aforesaid. Sects. 20 and 21 are omitted, as they do not relate to borough voters. 22. And bo it enacted, that every precinct or place, whether Provision as extra-parochial or otherwise, which shall have no overseers of *° Pj^ces the poor, shall, for the pui*pose of making any claim, and overseers, making out any list directed by this Act, be deemed to be within the parish or township adjoining thereto and sharing in the right of election to which such claim or list may relate ; and if such parish or place shall adjoin two or more parishes or townships situated as aforesaid it shall be deemed to be within the least populous of such parishes or townships, according to the last census for the time being. ^G" 23. And be it enacted, that every notice, list, register, or What shall be other document herein required to be published, shall be so publication of iiotico published, except where some other mode or place of publication is herein expressly provided, by being fixed in some public and conspicuous situation on the outside of the outer door or outer wall near the door of the buildings hereinafter named for that purpose ; (that is to say) in the case of publication by overseers, • every church and public chapel in their parish or township, in- cluding places ,of public worship which do not belong to the Established Church, and in the case of publication by a town clerk, the town hall, or in either case, if there be no such build- ing as is hereinbefore named for that purpose, then in some public and conspicuous situation within the parish or township, city, borough, or place respectively. These notices are also to be iiublished in the manner directed by the Act of 1878 (41 & 42 Vict. c. 26, s. 9). z 2 340 APPENDIX. Sect. 24. Time for which publica' tion shall be. Appendix. 24. And be it enacted, that in all cases in which any notice, list, register, or other document shall, pursuant to the provisions aforesaid, be affixed on or near the door of any church, chapel, town hall, or other place, the same shall continue so fixed for a period including two consecutive Sundays at the least next after the day on or before which the same is hereinbefore required to be published ; and in case the same shall be destroyed, mutilated, effaced, or removed before the expiration of such period, the party hereinbefore required to publish the same as aforesaid shall, as soon as conveniently may be, publish in like manner in its place another notice, list, register, or other document, to the like purport and effect with the notice, list, register, paper, or document so destroyed, mutilated, effaced, or removed. . Instead of the direction to post another notice " as soon as conveniently may be," the Act of 1878 (41 & 42 Vict. c. 26, Form A.) directs the notice to be posted " forthwith." Penalty for hindering publication. List not in- validated by imperfect publication. 25. And be it enacted, that every person who shall wilfully destroy, mutilate, efface, or remove any notice, list, register, or other document so affixed as aforesaid, during the period during which the same is hereinbefore required to remain so affixed, shall for every such offence forfeit any sum not exceeding forty shillings nor less than ten shillings to any person who will sue for the same, to be recovered in a summary manner before any two justices of the peace. 26. And be it enacted, that no list shall be invalidated by reason that it shall not have been affixed in every place and for the full time hereinbefore required for publication thereof, but that the barrister shall proceed to revise and adjudicate upon every such Hst which shall have been affixed in any place and for any part of the time hereinbefore mentioned in that behalf ; but nothing herein contained shall be construed to exempt the overseer, town clerk, or other person charged with the duty of publishing such list as aforesaid from the penalties of his neglect or wilful default. If no list made out or 27. And be it enacted, that in case no list of voters shall have been made out for any parish, township, or place in any former list to Y^ar, or in case such list shall not have been affixed in any place be in force. hereinbefore mentioned in that behalf, the register of voters for 6 VICT. c. 18. 341 that parish, township, or phice then iu force bhull be taken to Appendix, be the hst of voters for that parish, township, or place for the « . „„ year then next ensuing, and the provisions herein contained respecting any such Hst of voters shall be taken to apply to such register as aforesaid. Sects. 28 and 29 are omitted, as tlicy relate to barristers to revise the lists. 30. And be it enacted, that where two or more barristers Barristers shall be appointed for the same county, riding, parts, or division ^^^ "^^'^ oi a county, or for the same city or borough, they may hold courts, separate courts at the same time and place for the despatch of business, or may hold separate courts at different times and places, as shall be deemed most expedient. 31. And be it enacted, that every such revising barrister shall Barrister to notify his appointment to the clerk of the peace of every county, appointmeut and to the town clerk of every city and borough of which he to clerk of the shall be appointed to revise the lists : and each clerk of the P^^^*^ ^"'J , , . . J, 1 town clerk, peace shall as soon as possible transmit an abstract of the ^ho are to number of persons objected to by the overseers and by other transmit to 1 . , , . 1 • • J /• XI lii™ abstracts persons m each parish and township m and lor the same ^^^j ^jg^g_ county, and the town clerk of every city or borough shall as soon as possible transmit an abstract of the said several lists of claimants, and the Hsts of persons objected to, in each parish or township in and for the same city or borough, to the said bar- rister, in order that proper times and places for holding courts for the revision of such Hsts respectively may be appointed. Sect. 32 relates exclusively to counties. 33. And be it enacted, that the barrister or barristers ap- Ban-isters to . , ,. „ r -i 1 1 1 11 "O"^ courts pointed to revise the lists of voters for any city or borough shall f,,j. rcvisir-T hold an open court or courts for that purpose within such city the lists of or borough, and also within every place sharing in the election ^j^j.^" j^"^ ^nd for such city or borough, between the fifteenth day of September give notice inclusive and the last day of October inclusive in the then thereof to the current year, and such barrister or barristers shall, seven days ^^.j^^j j^ ^^ at least before holding any such court or courts, give notice to publish the the town clerk of such city or borough of the time and place of ®'"^^- holding the same; and if such barrister shall, in his discretion, deem it expedient to hold his courts at ditierent times and places 34^ APPENDIX. Sect. 33. Appendix, within the said city or borough, the said barrister shall in such case give notice to the said town clerk of such times and places so appointed, and of the parishes allotted to each court ; and the town clerk shall forthwith publish a notice of the time and place of the holding of every such court as aforesaid on the town haU, and on every church and chapel within such city or borough, or, if there be no church or chapel or town hall therein, then in some public and conspicuous place therein. Sect. 18, sub-sect. 2, of the Act of 1878 (41 & 42 Vict. c. 26) substitutes the twelfth day of October for the last day of the month for the revision of the burgess lists. In every borough containing at the last census more than 10,000 inhabitants, the re%'ision court is to be held on one evening at the least (36 & 37 Vict.^c. 70, s. 4). Sect. 34 refers to counties only. Town clerks, overseers, and in London secondaries and clerks of companies, to attend the courts, to produce lists and answer questions, &c. Power of barrister to require at- tendance of overseer of past year, and assessor and collector &c., of taxes, 35. -Ajid be it enacted, that the town clerk of every city or borough, and the several overseers for the time being of every parish or township therein, and in the city of London the secondaries and the clerks of the several livery companies of such city, shall attend the first court to be holden before every such barrister for eveiy such city or borough, unless they shall have been respectively required by notice to attend at some other court, in which case they shall attend the said court as requii'ed ; and the said overseers, town clerks, and secondaries respec- tively shall, at the opening of the said court, deliver to the said barrister the several lists so made by them respectively as afore- said, and also the original notices of claim and of objection received by them as aforesaid ; and the said overseers shall also produce at the said court all rates made for the relief of the poor of their respective parishes or townships between the sixth day of April in the year then last past and the last day of July in the then present year ; and the said town clerks, overseers, secondaries, and clerks respectively shall answer upon oath all such questions as any such barrister may put to them or any of them, and produce all documents, papers, and writings in their possession, custody, or power touching any matter neces- sary for revising the list of voters; and every such barrister shall have power to requh-e any assessor, collector of taxes, or other officer having the custody of any tax assessment or dupU- cate, or any overseer or overseers of a past year, or other person having the custody of any poor rate of the then current or any past year, or any relieving officer, and in the city of London the chamberlain or his deputy, to attend before him at any court 6 VICT. G. 18. 343 to be holden by him in pursuance of this Act, and they shall Appendix, attend accordingly, and answer upon oath all such questions as ox qc such barrister may put to them. who shall As to the last day of July, see 7th section of the Act of 1878 (41 & 42 answer upon Vict. c. 2f)). oath all The claimant to vote need only have paid rates up to the fifth day of questions put Januiiiy. {See note to sect. 17.) ^° them. The revisinjT barrister may by summons require any person to attend at his court (11 & 42 Vict. c. 2G, s. 3G). Sects. 36 and 37 relate solely to counties. 38. And be it enacted, that the revising barrister shall insert Po^'er of bar- in any list of voters for any city or borough the name of every names in lists person omitted who shall be proved to the satisfaction of such of borough bai'rister to have given due notice of his claim to be inserted in ^*^''^"- such list, and to have been entitled on the last day of July then next preceding to have his name inserted therein in respect of the qualification described in such notice of claim. Thejiffeenth is substituted for the last day of July by sect. 7 of the Act of 1878 (41 & 42 Vict. c. 26). 39. And be it enacted, that it shall be lawful for any person 4°y person on whose name shall be on any list of voters for any county, city, ^ obiect to or borough to oppose the claim of any person so omitted as claimants, aforesaid to have his name inserted in any list of voters for the same county, city, or borough ; and such person intending to oppose any such claim shall, in the court to be holden as afore- said for the revision of such list, and before the hearing of the said claim, give notice in writing to the revising barrister of his intention to oppose the said claim, and shall thereupon be admitted to oppose the same, by evidence or otherwise, without any previous or other notice, and shall have the same rights, powers, and liabilities as to costs, appeal, and other matters relating to the hearing and determination of the said claim, as any person who shall have duly objected to the name of any other person being retained on any Ust of voters, and who shall appear and prove the requisite notices as hereinafter men- tioned. Sect. 40 is superseded by sect. 27 of 41 & 42 Vict. c. 26. 41. And be it enacted, that every revising barrister holding Power of re- any court under this Act shall have power to adjourn the same tg*s" o adlourn from time to time, and from any one place to any other place their courts, within the same county, or within the same city or borough, administer but so that no such adjourned court shall be holden after the 344, APPENDIX. Appendix. Sect. 41. Persons swear- ing falsely guilty of per- jury- Barrister in open court to decide upon validity of claims and objections. Appeal from revising bar- rister's deci- sion on points of law. Revising bar- rister to pre- pare a state- ment of facts. last day of October in any year ; and at every court to be holden as aforesaid by any revising barrister the said barrister shall have power to administer an oath to all persons examined before him, and all parties, whether claiming or objecting or objected to, and all persons whatsoever, may be examined upon oath touching the matters in question ; and every person taking any oath or affirmation under this Act, who shall wilfully swear or affirm falsely, shall be deemed guilty of perjury, and at the holding of such respective courts no party or other person shall appear or be attended by counsel; and every such barrister shall upon the hearing in open court finally determine upon the vahdity of such claims and objections, and shall for that purpose have the same powers and proceed in the same manner (except where otherwise du-ected by this Act) as the returning officer of any county, city, or borough, according to the laws and usages observed at elections previous to the passing of the said recited Act ; and such barrister shall in open court write his initials against the names respectively expunged or inserted, and against any part of the said lists in which any mistake shall have been corrected or any omission supplied or any insertion made by him, and shall sign his name to every page of the several hsts so settled. The tioelfth of October is substituted for the last day of October as to the revision of burgess lists (41 & 42 Vict. c. 26, s. 18). It is the duty of the revising barrister, before signing each page, to read audibly, in open court, the names expunged and Inserted by him therein, and all corrections and insertions made by him. (Sect. 15 of 28 & 29 Vict. c. 36.) 42. And be it enacted, that it shall be lawful for any person who, under the provisions hereinbefore contained, shall have made any claim to have his name mserted in any list, or made any objection to any other person as not entitled to have his name inserted in any hst, or whose name shall have been ex- punged from any hst, and who in any such case shall be aggrieved by or dissatisfied with any decision of any revising barrister on any point of law material to the result of such case, either himself or by some person on his behalf, to give to the revising barrister in court, before the rising of the said court, on the same day on which such decision shall have been pronounced, a notice in writing that he is desirous to appeal, and in such notice shall shortly state the decision against which he desu-es to appeal ; and the said barrister thereupon, if he thinks it reason- 6 VICT. c. 18, 345 able and proper that such appeal should he entei*tained, shall Appendix. state in writing the facts which according to his judgment shall SerT^k? have been established by the evidence in the case, and which shall be material to the matter in question, and shall also state in writing his decision upon the whole case, and also his decision upon the point of law in question appealed against ; and such statement shall be made as nearly as conveniently may be in like manner as is now usual in stating any special case for the opinion of the court of Queen's Bench upon any decision of any court of quarter sessions ; and the said barrister shall read the said statement to the appellant in open court, and shall then and there sign the same ; and the said appellant, or some one on his Appellant to behalf, shall at the end of the said statement make a declaration ™^ *;.^ ^ ^' / _ _ _ , claration in in writing under his hand to the following effect, that is to say, writing. " I appeal from this decision: " and the said barrister shall then indorse upon every such statement the name of the county and -^^^^'ff • ^^' polling district, or city and borough, and of the parish or town- dorse on state- ship to which the same shall relate, and also the Christian name ™^"*' *^^ and surname and place of abode of the appellant and of the parties, &c. ,- respondent in the matter of the said appeal, and shall sign and and deliver a date such indorsement ; and the said barrister shall deliver such copy to either statement, with such indorsement thereon, to the said appellant, ?^J y reqmr- to be by him transmitted to her Majesty's court of Common Pleas at Westminster in the manner hereinafter mentioned ; and the said barrister shall also deliver a copy of such statement, with the said indorsement thereon, to the respondent in such appeal who shall require the same. Now,'' any person who feels aggrieved by a revising barrister neglecting or refusing to state any case may apply to the High Court of Justice upon affidavit for a rule to show cause why a rule should not be made directing the appeal to be entertained. (Sect. 37 of 41 & 42 Vict. c. 26.) 43. And be it enacted, that in the matter of every such Who shall be appeal the party in whose favour the decision appealed against respondent on shall have been given shall be the respondent ; but if there be no such party, or if such party, or some one on his behalf, shall in open court decline, and state in writing that he declines to support the decision appealed against as respondent, then and in every such case it shall be lawful for the said revising bar- rister to name any person who may be interested in the matter of the said appeal, and who may consent, or the overseers of any parish or township, or the town clerk of any city or borough. 346 APPENDIX. Appendix, to be, and such person so conseuting, or such overseers or town Sect~4:3 ^^^^^ respectivelj' so named, shall be deemed to be the respondent or respondents in such appeal. Sect. 38 of the Act of 1878 (41 & 42 Vict. c. 26) requires the revising barrister, at the request of the appellant, to name the town clerk as the respondent in the appeal. The costs of the town cleric, and any costs he may be ordered to pay, are to be allowed to him. Power to con- 44. And be it enacted, that if it shall appear to any revising peals^ ^ ^^' barrister that the validity of any number of such claims or objections determined by him at any court as aforesaid depends and has been decided by him upon the same point or points of law, and the parties or any of them aggrieved by or dissatisfied with his decision thereon, shall have given notice of an intention to appeal therefrom, it shall in such case be lawful for the said barrister to declare that the appeals against such decision ought to be consoHdated, and the said barrister shall in such case state in writing the case, and his decision thereon, in manner herein- before mentioned, and that several appeals depend upon the same decision, and ought to be consolidated, and shall read such statement, and sign the same, as hereinbefore mentioned, and thereupon it shall be lawful for the said barrister to name any person interested, and consenting, for and on behalf of himself and all other persons in like manner interested in such appeals, to be the appellant or respondent respectively in such consoli- dated appeal, and to prosecute or answer the said appeal, in like manner as any appellant or respondent might in his own case under the provisions of this Act, and the person so named appellant in such consolidated appeal, or some one on his behalf, shall, at the end of the said statement, make and sign a declaration in the form or to the effect following ; (that is to say,) " I, for myself and on behalf of all the other persons who are interested as appellants in this matter, and whose names are hereunder written, do appeal against this decision, and agi-ee to prosecute this appeal.'" And the person so named respondent in such consolidated appeal, or some one on his behalf, shall in like manner make and sign a declaration in writing in the form or to the efiect following ; (that is to say,) " I, for myself and on behalf of all the other persons interested as respon- dents in this matter, and whose names are hereunder written, do agree to appear and answer this appeal." And the name, and where necessary, the particulars of the 6 VICT. c. 18. 347 qualification of every party intended to be joined in such con- Appendix. solidated appeal, shall be written under the aforesaid declara- Sprt~44 tion of the appellant or respondent respectively to which they may respectively refer : provided always, that it shall be lawful for the said barrister, if necessary, in any case to name the Overseers or overseers of any parish or township, or the town clerk of any town clerk ., , , , niay be named City or borough, to be, and they or he so named shall be, the as respon- respondents or respondent in such consolidated appeal, without tii-'iits. any such declaration being made or signed by them or him as hereinbefore mentioned. 45. And be it enacted, that in and with regard to every such Consolidated consolidated appeal the like proceeding shall be had and taken appeals to be and the like rules and regulations shall apply as in the case of ^nv^'in^e ^ any other appeal under this Act ; and that every order, judg- appeal. ment, or decision of the said court of Common Pleas shall be equally valid and efiectual for all the purposes of this Act, and Agreement buading and conclusive upon all the parties named in or referred tion\o costs to as parties to such consolidated appeal as aforesaid ; and that of consoli- if in any case all or any of the parties to such consolidated ^'"^^^^^ appeal •' J i. jj^ay i,Q made a appeal shall make or enter mto any agreement as to the mode of rule of court. contributing among themselves to the costs and expenses of such appeal, the said agreement may, upon the application of if consolidated any party or parties thereto, be made a rule of the said court appeal not of Common Pleas, if the said court shall think fiit ; provided '.Vi^'^°^^* always, that if any such consolidated appeal shall not be dul}' answered tbe prosecuted or answered, it shall be lawful for the said court of ?''"^^ °^ * Common Pleas, or for the Lord Chief Justice or any Judge of iive conduct the said court, to give to any party or parties interested in such o^ it or of tbe appeal, upon his or then* appHcation, the conduct and dii-ection otbr/persous. of the said appeal, or of the answer thereto respectively, as the case may requh-e, instead of or in addition to any person named jf .f • • f . as aforesaid as appellant or respondent, and in such manner and rested sball upon such terms as the said court or Lord Chief Justice or Jud<'e '■'-'^"se to be a may think tit and order, or to make such other order in the case ^^ ^ ' as may seem meet : provided also, that if after the said barrister shall as aforesaid have declared that the appeal in any case ought to be with others consolidated, any party interested in such appeal shall object and refuse to be a party to or to be bound by any such consoUdated appeal, then and in such case the appeal in which such person is interested may proceed separately, but such person so refusing or objecting shall be 348 APl'ENDIX. Appendix, liable to pay costs to the other party, but shall not be entitled to Sect~4:5 ^^ceive any costs of or in such appeal, unless the said court otherwise order. Power to barrister to give costs in certain cases to parties claiming or objecting. 46. And be it enacted, that if in any case it shall appear to any revising barrister holding any court as aforesaid that any person shall under this Act have made or attempted to sustain any groundless or frivolous and vexatious claim or objection or title to have any name inserted or retained in any list of voters, it shall be lawful for the said barrister, in his discretion, to make such order as he shall think fit for the payment by such person of the costs or of any part of the costs of any person or persons in resisting such claim or objection or title ; and in every such case the said barrister shall make an order in writing, specifying the sum which he shall order to be paid for such costs, and by and to whom and when and where the same sum shall be paid, and shall date and sign the said order, and deliver it to the per- son or persons to whom the said sum shall therein be ordered to be paid : provided always, that the said sum so ordered to be paid by way of costs shall not in any case exceed the sum of twenty shillings : provided also, that such order for the payment of costs as aforesaid may be made in any case, notwithstanding any party shall have given notice of his intention to appeal against any decision of the revising barrister in the same case ; but in case of such appeal the said order for the payment of costs shall be suspended, and shall abide the event of such appeal, unless the court of appeal shall otherwise direct ; but no appeal shall be allowed or entertained against or only in refpect of any such order for the payment of costs : provided also, that whenever any revising barrister shall have made any such order for the payment of any sum of money for costs by any person who shall have made any objection as aforesaid, it shall not be lawful for the said barrister to hear or admit proof of any other objection or notice of objection made or signed by the same person until the sum of money so ordered to be paid by him for costs be paid to the person entitled to receive the same, or deposited in the hands of the said barrister in court, for the use of the person so entitled. 28 & 29 Vict. c. 36, s. 8, enables the barrister to award costs to the amount of at least 2*. 6d. 41 & 42 Vict. c. 26, s. 27 (3), enables the barrister to award costs not exceeding forty shillings, to be paid by the objector. 6 VICT. c. 18. 349 47. And be it enacted, that the said lists of voters for each Appendix. county, signed as aforesaid, shall be forthwith transmitted by „ . .„ the revising barrister to the clerk of the peace of the same Count v "lists" to county, and the clerk of the peace shall keep the said lists be transmitted among the records of the sessions, and shall forthwith cause the ^ °, . *® f , , '_ pePENt>lX. Appendix. Sect. 86. Vote not to be rejected if questions answered in the affirma- tive. takes to prove, that the said person so voting is not in fact the person in whose name he assumes to vote, or to the like effect, then and in every such case it shall be lawful for the said return- ing officer, or his said deputy, and he is hereby requii-ed, imme- diately after such person shall have voted, by word of mouth to order any constable or other peace officer to take the said person so voting into his custody, which said order shall be a sufficient warrant and authority to the said constable or peace officer for so doing : provided always, that nothing herein contained shall be construed or taken to authorize any returning officer, or his deputy, to reject the vote of any person who shall answer in the affirmative the questions authorized by this Act to be put to him at the time of polling, and shall take the oaths or make the affirmations authorized and requu'ed of him; but the said retum- ng officer, or his deputy, shall cause the words, " protested against for personation," to be placed against the vote of the person so charged with personation when entered in the poll book. Persons charged with personation to be taken before two justices. Bail to be taken in cer- t lin cases. 87. And be it enacted, that every such constable or peace officer shall take the person so in his custody, at the earliest convenient time, before some two justices of the peace acting in and for the county, city, or borough within which the said person shall have so voted as aforesaid : provided always, that in case the attendance of two such justices as aforesaid cannot be pro- cured within the space of three hours after the close of the poll on the same day on which such person shall have been so taken into custody, it shall be lawful for the said constable or peace officer, and he is hereby required, at the request of such person so in his custody, to take him before any one justice of the peace acting as aforesaid, and such justice is hereby authorized and required to liberate such person on his entering into a recog- nizance, with one sufficient surety, conditioned to appear before any two such justices as aforesaid, at a time and place to be specified in such recognizance, to answer the said charge ; and if no such justice shall be found within four hours after the closing of the said poll then such person shall forthwith be dis- charged from custody : provided also, that if in consequence of the absence of such justice as aforesaid, or for any other cause, the said charge cannot be inquired into within the time afore- said, it shall be lawful nevertheless for any two such justices as 6 VICT. c. 18. 365 aforesaid to inquire into the same on the next or on some other Appendix, subsequent day, and, if necessary, to issue their wai-rant for the g^^^.^ g,^^ apprehension of the person so charged. 88 And bo it enacted, that if on the hearing of the said " justices . . , ,, T ,• f> 1 ii • 1 are satisfied charge the said two justices shall be satishod, upon the evidence ^.^^^4. ^^^ on oath of not less than two credible witnesses, that the said person charged person so brought before them has knowingly personated and jj^^jj'^'^^f falsely assumed to vote in the name of some other person within personation, the meaning of this Act, and is not in fact the person in whose they are to , , . , ,, , , ^ 1 ^ ii -1 . • .• commit Inm name he voted, then it shall be lawful for the said two justices f^j, ^.j.;,,! to commit the said offender to the gaol of the county, city, or borough within which the oflence was committed, to take his trial according to law, and to bind over the witnesses in their respective recognizances to appear and give evidence on such trial as in the case of other misdemeanors. 89. And be it enacted, that if the said justices shall on the If justices hearing of the said charge be satisfied that the said person so ^j^^^. ^j^^ charged with personation is really and in truth the person in charge is whose name he voted and that the charge of personation has unfounded, been made against him without reasonable or just cause, or 11 order compen- the agent so declaring as aforesaid, or some one on his behalf, sation. shall not appear to support such charge before the said justices, then it shall be lawful for the said justices and they are hereby required to make an order in writing under thou* hands, on the said agent so declaring as aforesaid, to pay to the said person so falsely charged, if he shall consent to accept the same, any sum not exceeding the sum of ten pounds nor less than five pounds, by way of damages and costs ; and if the said sum shall not be paid within twenty-four hours after such order shall have been made, then the same shall be levied, by warrant under the hand and seal of any justice of the peace acting as aforesaid, by dis- tress and sale of the goods and chattels of the said agent ; and in case no sufficient goods or chattels of the said agent can be found on which such levy can be made, then the same shall be levied in like manner on the goods and chattels of the candidate by whom such agent was so appointed to act ; and in case the said sum shall not be paid or levied in the manner aforesaid, then it shall be lawful for the said person to whom the said sum of money was so ordered to be paid to recover the same fiom 364 Ai'i'ENbii. Appendix, the said agent or candidate, with full costs of suit, in an action Se^t~89 °^ ^^^^ ^^ ^® brought in any one of Her Majesty's Superior Courts of Kecord at Westminster : provided always, that if the falsely person so falsely charged shall have declared to the said justices cliargecl ]iig consent to accept such sum as aforesaid by way of damages mentation uo ^^^ costs, and if the whole amount of the sum so ordered to be action to be paid shall have been paid or tendered to such person, in every brought. g^jgjj case, but not otherwise, the said agent, candidate, and every other person shall be released from all actions or other proceeding, civil or criminal, for or in respect of the said charge and apprehension. Sect. 90 refers only to counties. Sect. 91 is repealed by 35 & 36 Vict. c. 33. Sects. 92 and 93 refer only to counties. Sects. 94, 95, and 96 are repealed by 35 & 36 Vict. c. 33. Sect. 97 refers only to counties. Sects. 98 and 99 are repealed by 35 & 36 Vict. c. 33. Notice of 100. And be it enacted, that it shall be sufficient, in every objection may case of notice to any person objected to in any list of county, post" ^ ^ ^^^J' ^^ borough voters, and in the livery list of the city of London, and also in the case of county voters to the occupying tenant whose name and place of abode appears in such respec- tive list as aforesaid, if the notice so required to be given as aforesaid shall be sent by the post, free of postage, or the sum chargeable as postage for the same being first paid, directed to the person to whom the same shall be sent at his place of abode as described in the said list of voters ; and whenever any person shall be desirous of sending any such notice of objection by the post, he shall deliver the same, duly directed, open and in dupli- cate, to the postmaster of any post office where money orders are received or paid, within such hours as shall have been previously given notice of at such post office, and under such regulations with respect to the registration of such letters, and the fee to be paid for such registration (which fee shall in no case exceed twopence over and above the ordinary rate of postage), as shall from time to time be made by the postmaster-general in that behalf; and in all cases in which such fee shall have been duly paid, the postmaster shall compare the said notice and the duplicate, and on being satisfied that they are alike in their address and in their contents, shall forward one of them to its address by the post, and shall return the other to the party bringing the same, duly stamped with the stamp of the said GvrcT. c. 18. 36i post office ; and the production by the party who posted such Appendix, notice of such stamped duplicate shall be evidence of the notice g^^^^ ^qq_ having been given to the person at the place mentioned in such duplicate on the day on which such notice would in the ordinary course of post have been delivered at such place : Provided also, that if no place of abode of the person objected to shall be described in the said list, or if such place of abode shall be situate out of the United Kingdom, then it shall be sufficient if notice shall bo given to the said overseers, and to such occuppng tenant as aforesaid (if any) in the case of a county voter, or in the case of a city or borough voter, to the overseers or to the town clerk, or, in the case of a liveryman of the city of London, to the seconda- ries and clerk of the particular company to which the person objected to shall belong, as is in each of the said cases herein- before required. 101. And be it enacted, that throughout this Act, in the con- interpreta- struction thereof, except there be something in the subject or ^^o^^ <^^*^°- context inconsistent with or repugnant to such construction, the word " county " shall extend to and mean any county, riding. Meaning of parts or division of a county, respectively returning a knight or tji*^ ^^'°?" „ knights of the shu-e to serve in parliament ; and the words "city or borough" shall extend to and mean any city, borough, town " city or corporate, cinque port, district, or place within England and borough," Wales returning a member or members to serve in parliament, other than counties at large, and ridings, parts and divisions of counties at large, and to every place sharing in the elec- tion of a member for any city or borough, and shall also include the town of Berwick-upon-Tweed ; that the words " clerk of the peace" shall comprehend and apply to any deputy " ^'^^ °„ or other person executing the duties of such clerk of the peace ; and the words " town clerk " shall, except in regard to the cities ^i^,^.» of London and Westminster, and the borough of Southwark, extend to and mean any person executing the duties of town clerk, or if in any city or borough there shall be no such officer as town clerk, then to any officer executing the same or like duties as usually devolve upon the town clerk, or if in any city or borough there bo no such person, then to the returning officer of such city or borough, or to such person as the returning officer may appoint for that purpose, which he is hereby autho- rized to do ; and the words " barrister " or " barristers " shall " Barrister 366 APPENDIX. Appendix. Sect. 101. " Returning officer :" " Parish or township." " Overseers " or " overseers of the poor." Provision as to service of notices. Justices, sessions, clerks of the peace, and treasurers of counties. respectively be taken to include a serjeant or serjeants-at-law ; and the words " returning officer " shall apply to every person or persons to whom by virtue of his or their office, under any law, custom, or statute, the execution of any writ or precept doth or shall belong for the election of a member or members to serve in parliament, by whatever name or title such person or persons may be called; and the words " parish or township " shall extend to and mean every parish, township, village, hamlet, district, or place maintaining its own poor ; and the words " overseers " or " overseers of the poor " shall extend to and mean all persons who by virtue of any office or appointment shall execute the duties of overseers of the poor, by whatever name' or title such persons may be called, and in whatsoever manner they may be appointed, and that all matters by this Act directed to be done by the overseers of a parish or township may be lawfully done by the major part of such overseers ; and that [wherever any notice is by this Act required to be given or sent to the overseers of any parish or township, it shall be sufficient if such notice shall be'^' delivered to any one of such overseers, or shall be left at his place of abode, or at his office or other place for transact- ing parochial^ business, or shall be sent by the post, free of postage, or the postage thereof being first paid, addressed to the overseers of the particular parish or township, naming the parish or township, and the county, city, or borough respectively, to which the notice to be so sent may relate, without adding any place of abode of such overseers ; and that wherever by this Act any notice is required to be given or sent to any person or persons whatsoever, or public officer, it shall be sufficient if such notice be sent by the post in the manner and subject to the regulations hereinbefore provided with respect to sending notices of objec- tion by the post, free of postage, or the postage thereof being first paid, addressed with a sufficient direction to the person or persons to whom the same ought to be given or sent, at his or their usual place of abode ; and that all provisions in this Act relative to any matters to be done by or with regard to justices of the peace for counties, or sessions of the peace for counties, or clerks of the peace for counties, or treasurers of counties, shall extend to the justices, sessions, clerks of the peace, and treasurers of the several ridings of Yorkshire and parts of Lin- colnshire ; and that the town clerk for the time being for the borough of Newport in the Isle of "N^lght shall for the purposes of this Act be deemed and taken to be the clerk of the peace for 32 & 33 VICT. c. 41. 367 the county of the Isle of Wight ; and that all tho said respective Appendix, justices, sessions, and clerks of the peace shall have power to „ . ^^^ do the several matters required by this Act, as well within places jug^omer not of exclusive jurisdiction as without; and that no misnomer or to vitiate, inaccurate description of any person, place, or thing named or described in any schedule to this Act annexed, or in any list or register of voters, or in any notice required by this Act, shall in anywise prevent or abridge the operation of this Act with respect to such person, place, or thing, provided that such per- son, place, or thing shall be so denominated in such schedule, list, register, or notice, as to be commonly understood ; and that the word " oath " shall include affirmation, where by law such " Oath." affirmation is required or allowed to be taken in place of an oath ; and whore the subject or context requires it, every word importing the singular number only shall extend and be applied Singular, to several persons or things as well as one person or thing ; and every word importing the plural number shall extend and pinral. be applied to one person or thing as well as several persons or things. By the 40th section of 41 & 42 Vict. c. 26, the provisions of this section are extended to the services of notice under that Act ; and the term notice includes any document required to be sent or delivered. SCHEDULE (A.) relates only to counties. SCHEDULE (D.) Forms in this schedule, with the exception of a few relating to freemen, are superseded by those contained in the schedule 41 & 42 Vict. c. 2fci. 32 & 33 VICT. Cap. 41. An Act for amendinr/ the Law with respect to the rating of Occu- piers for short terms, and the makimj and coUectinrj of the Poor's Hate. [26th July, 18G9.] Whereas it is expedient to amend the law relatmg to the collection of poor rates assessed upon occupiers of hei-edita- mcnts held for short terms, and to the making and collecting of the poor rate ; 368 APPENDIX, Appendix. Be it therefore enacted by the Queen's most excellent Ma- Sect 1 J^^^y* ^y ^'^f^ "^^^^ *^6 advice and consent of the Lords spiritual and temporal, 'and Commons, in this present Parhament assembled, and by the authority of the same, as follows : Occupiers of tenements let for short terms may deduct the poor rate paid by them from their rents. Amount of rate payable by occupier. 1. The occupier of any rateable hereditament let to him for a term not exceeding three months shall be entitled to deduct the amount paid by him in respect of any poor rate assessed upon such hereditament from the rent due or accruing due to the owner, and every such payment shall be a valid discharge of the rent to the extent of the rate so paid. 2, No such occupier shall be compelled to pay to the over- seers at one time or within four weeks a gi-eater amount of the rate than would be due for one quarter of the year. Owners may agree to pay the rate, and be allowed a commission. 3. In case the rateable value of any hereditament does not exceed twenty pounds, if the hereditament is situate in the metropolis, or thirteen pounds if situate in any parish wholly or partly within the borough of Liverpool, or ten pounds if situate in any parish wholly or partly within the city of Manchester or the borough of Bii-mingham, or eight pounds if situate else- where, and the owner of such hereditament is willing to enter into an agreement in writing with the overseers to become liable to them for the poor rates assessed in respect of such hereditament, for any term not being less than one year from the date of such agreement, and to pay the poor rates whether the hereditament is occupied or not, the overseers may, subject nevertheless to the control of the vestry, agree with the owner to receive the rates from him, and to allow to him a commission not exceeding twenty-five per cent, on the amount thereof. Some doubt was expressed whether the 19th section of this Act for giving to the occupier the franchise applied to cases where the owner had not entered into an agreement with the overseers, or where the overseers had not made an order under the 4th section of this Act. The 14th section of 41 & 42 Vict. c. 26 has settled these doubts by making the said 19th section of general application. Vestries may order the owner to be rated instead of the occu- pier. ^ 4. The vestry of any parish may from time to time order that the owners of all rateable hereditaments to which section three of this Act extends, situate within such parish, shall be rated to the poor rate in respect of such rateable hereditaments, instead of the occupiers, on all rates made after the date of such 32 & 33 VICT, c- 41. 369 order ; and thereupon and so long as such order shall bo in Appendix, force the following cnactuaents shall have oll'ect ; 1. The overseers shall rate the owners instead of the occu- ' ' piers, and shall allow to them an abatement or deduction of fifteen per centum from the amount of the rate : 2. If the owner of one or more such rateable hereditaments shall give notice to the overseers in writing that he is wilhng to be rated for any term not being less than one year in respect of all such rateable hereditaments of which he is the owner, whether the same be occupied or not, the overseers shall rate such owner accordingly, and allow to him a further abatement or deduction not exceed- ing fifteen per centum from the amount of the rate during the time he is so rated : 3. The vestry may by resolution rescind any such order after a day to be fixed by them, such day being not less than six months after the passing of such resolution, but the order shall continue in force with respect to all rates made before the date on which the resolution takes efiect : Provided that this clause shall not be applicable to any rateable hereditament in which a dwelling house shall not be included. The giving of notice in wTiting to the overseers by the owner will not nfPcct the franchise. The 2ud section of 42 & 43 Vict. c. 10, provides as follows : — Where by way of commission or abatement or deduction under the principal Act, or purporting or assumed to be under the principal Act, an allowance or deduction has, before the passing of this Act, lieen or shall hereafter be actually made, the same shall, for the purpose of every quali- fication or franchise depending upon rating or upou payment of rates, be deemed to have been duly made in pursuance of every or any agreement, order, notice, or proceeding necessary for the validity thereof under the principal Act, and to have been and to be an allowance or deduction which the overseers were and are empowered to make from the rate under the principal Act ; and no qualification or franchise depending upon rating or upon payment of rates shall be defeated by reason of such allowance or deduction not having been made in pursuance of an agreement in writing, order in writing, or notice in writing, or by reason of the want of iusutli- ciency of any agreement, order, notice, or proceeding necessary for the validity thereof under the principal Act, or by reason of any informality or defect in the making thereof ; provided always, that this Act shall not relieve any overseers from any liability which they have incurred or may incur by making an allowance or deduction otherwise than in pursuance of tlie ])rovisions of the principal Act, or affect any remedy for the recovery of the amount of such allowantv or deduction. Sects. 5 and 6 are omitted, as they relate only to forfeiture of commission and the repeal of 13 & 11 Vict. c. 9. 7. Every payment of a rate by the occupier, notwithstanding Constructive the amount thereof, may be deducted from his rent as herein [;^^"ate* "^^ 2 li 370 ^V**"" APPENDIX. Appendix, provided, and every payment of a rate by the owner, whether Sect 7 ^^ ^^ himself rated instead of the occupier, or has agreed with the occupier or with the overseers to pay such rate, and notwith- standing any allowance or deduction which the overseers are enypowered to make from the rate, shall be deemed a payment of the full rate by the occupier for the purpose of any qualifica- tion or franchise which as regards rating depends upon the pay- ment of the poor rate. See the 2nd section of 42 & 43 Vict. c. 10, in note to sect. 4, ante. Wliere owners omit to pay rates, the occu- piers paying the same may deduct the amount from the rent. 8. Where an owner who has undertaken, whether by agree- ment with the occupier or vnth the overseers, to pay the poor rates, or has otherwise become liable to pay the same, omits or neglects to pay any such rate, the occupier may pay the same and deduct the amount from the rent due or accruing due to the owner, and the receipt for such rate shall be a valid discharge of the rent to the extent of the rate so paid. Sect. 9 compels owners to give list of occupiers to overseers. Sect. 10 only amends sect. 28 of the Eepresentatiou of the People Act, 1867. Sects. 11 and 12 relate to the liahility of an owner under agreement, and to the recoveiy of rates mipaid by owner. Sect. 13 gives to the owner an appeal against valuation list and rates. Sects. 14 and 15 relate to the period for which a rate may he made, and its payment by instalments. Provision for successive occupiers, and for occu- piers coming into unoccu- pied heredi- taments. 16, If the occupier assessed in the rate when made shall cease to occupy before the rate shall have been wholly dis- charged, or if the hereditament being unoccupied at the time of the making of the rate become occupied during the period for which the rate is made, the overseers shall enter in the rate book the name of the person who succeeds or comes into the occupation, as the case may be, and the date when such occu- p'ation commences, so far as the same shall be known to them, and such occupier shall thenceforth be deemed to have been actually rated from the date so entered by the overseer, and shall be liable to pay so much of the rate as shall be propor- tionate to the time between the commencement of his occupation and the expiration of the period for which the rate was made, in like manner, and with the like remedy of appeal, as if he had been rated when the rate was made ; and an outgoing occupier shall remain liable in like manner for so much and no more of the rate as is proportionate to the time of his occupation within 32 & 33 VICT. c. 41. 371 the period for which tho rate was made ; and the twelfth section Appendix, of the statute 17 Geo. 2, c. 38, shall be repealed. Settle. By sect. 38 of 31 & 32 Vict. c. 122, it is provided as follows :— Wlieii liny person shall occupy any new house or other building in any parisli where the poor rate is not made under the jirovisions of a local Act, whitli liouse or l)uildiiig was iucom])lute, or not fit for occupation, or was not entered as such in the valuation list in force in the parisii at the time when the current rate for the time being was matle, the overseers may enter such house or building with the name of the occupier thei'eof and. the date of the entry in the rate boob, and require the occupier to pay such amount as according to their judgment shall bo the proper sum, having due regard to the rateable value of such house or building, and the time which shall have elapsed from the making of the current rate to the date of such entry, and the person so charged shall be considered as actually rated from such date, and shall be liable to pay the suin assessed in like manner and subject to the like penalty of distress, and with the like power of appeal, as if he had been assessed for the same when the rate was made : provided that when the said overseers shall so enter the said house or building in the rate book they shall forward to the assessment committee of the union comprising such parish, if any such there be, a supplemental list with reference to such house or building, and the same shall be dealt with in all respects, and with the like incidents and consequences, as a supplemental list made by the overseers under section twenty-five of " The Union Assess- ment Committee Act, 1862." Tho non-payment of an illegal rate will not disqualify. {R. v. Marjor of New Windsor, 7 Q. B. 908; Foxv. Davies, 18 L. J.C.P. 48; B.y. Dyott, L. R. 9 Q. B. 1-7.) 17. A poor rate shall be deemed to be made on the day when When the it is allowed by the justices, and if the justices sever in tlisi^' s^.^[i^^e^ allowance then on the day of the last allowance. deemed to be made. 18. The production of the book purporting to contain a poor Evidence of rate, with the allowance of the rate by the justices, shall, if the "115151"^;.;'"^^^^ rate is made in the form prescribed by law, be primA facie evi- j-ates. dence of the due making and publication of such rate. 19. The overseers in making out the poor rate shall, in every Overseers to , ,, ,, , • ^^ , ■, ,- XI • insert names case, whether the rate is collected from the owner or occupier, ^f j^,, ^^^^^^ or the owner is liable to the payment of the rate instead of the piers in the occupier, enter in the occupiers column of tho rate book the name of the occupier of every rateable hereditament, and such occupier shall be deemed to be duly rated for any qualification or franchise as aforesaid ; and if any overseer negligently or Penalty for wilfully and without reasonable cause omits the name of the omission, occupier of any rateable hereditament from the rate, or negli- gently or wilfully misstates any name therein, such overseer shall for every such omission or misstatement be liable on sum- 2 b2 372 APPENDIX. Appendix. Sect. 19. Saving of franchises. mary conviction to a penalty not exceeding two pounds? ; pro- vided that any occupier whose name has been omitted shall, notwithstanding such omission and that no claim to be rated has been made by him, be entitled to every . qualification and franchise depending upon rating, in the same manner as if his name had not been so omitted. Sect. 14 of 41 & 42 Vict. c. 26, provides that the above section shall not apply exchisivcly to cases whei-e an agreement or an order has been made under 32 & 33 Vict. c. 41. See also sect. 2 of 42 & 43 Vict. c. 10, cited in note to sect. 4 above. Interpreta- tion of terms. 20- The word " overseer" shall include every authority that makes an assessment for the poor rate ; the words " poor rate" shall mean the assessment for the relief of the poor, and for the other purposes chargeable thereon according to law, and in the metropolis shall extend to every rate made by the overseers, and chargeable upon the same property as the poor rate ; the word " owner" shall mean any person receiving or claiming the rent of the hereditament for his owm use, or receiving the same for the use of any corporation aggregate, or of any public com- pany, or of any landlord or lessee who shall be a minor, a married woman, or insane, or for the use of any person for whom he is acting as agent; the word "parish" shall signify every place for which a separate overseer can be appointed ; the word " vestry" shall include not only the vestry of a parish existing under the authority of some general or special Act of Parliament, or by special custom or otherwise, but also the meeting of the inhabitants of any township, vill, or place ha\-ing a separate overseer, and for which a separate poor rate is made, held after notice given in like manner as is required by law in regard to the meetings of vestries ; and the word " metropoHs" shall include only the metropolis as defined by the Metropolis Management Act, 1855. Sects. 21 and 22 provide that the Act shall not extend to Scotland or Ireland, and as to its coming into force, and provides that this Act may be cited as " The Poor Rate Assessment Act, 1869." 41 & 42 VICT. c. 26. 373 41 & 42 VICT. Cap. 2G. Appendix. An Act to amend the Law relatinrj to the Eegistration of Voters in Parliamentary Boruwjhs and the Enrolment of Ihmjesses in Municipal Borowjhs, and relating to certain rights of voting and ■proceedings before and appeals from Revising Barristers. [22ncl July, 1878.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Parliamentary and Municipal Short titles. Kegistration Act, 1878. The Acts referred to in this Act by short titles may be cited for all pui-poses by those titles respectively. 2. This Act shall not extend to Scotland or Ireland. Extent o£ Act. 3. This Act shall come into operation on the first day of Commence- February, one thousand eight hundred and seventy-nine, which ™^" ° ^ ' date is in this Act referred to as the commencement of this Act. 4. In this Act — Definitions. The term " Eeform Act, 1832," means the Act of the session of the second and third years of the reign of King William the Fourth, chapter forty-five, " to amend the representation of the people in England and Wales ;" The term " Municipal Corporation Acts " means the Muni- cipal Corporation Act, 1835, and the Acts amending the 5 & 6 W. 4, c. 76. same : The term "Parliamentary Eegistration Act, 1843," means 40&41 Vict, the Act of the session of the sixth and seventh years of ^- ^^• the reign of Her present Majesty, chapter eighteen, "to amend the law for the registration of persons entitled to vote, and to define certain rights of voting and to regu- late certain proceedings in the election of members to serve in Parliament for England and Wales : " 374 APPENDIX. Appendix. The term " Parliamentary Kegistration Acts" means the g ~7~A Parliamentary Registration Act, 1843, and any enact- ment amending the same or otherwise relating to the registration of parliamentary electors : The term " parliamentary borough " means any borough, city, county of a city, county of a town, place, or com- bination of places returning a member or members to serve in ParUament, and not being a county at large, or riding, part, or division of a county at large : The term "municipal borough" means anyplace for the time being subject to the Municipal Corporation Acts : The term "parliamentary voter" means a person entitled to be registered as a voter and when registered to vote at the election of a member or members to serve in Par- liament for a parliamentary borough : The term " burgess " has the same meaning as in the Muni- cipal Corporation Acts : The term " parish " means a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed : Other terms used in this Act have the same meaning as in the Parliamentary Piegistration Acts. The reference to the " Municipal Corporation Acts " is now to be deemed to be a reference to the Municipal Corporations Act, 1882 (45 & 46 Vict, c. 50, s. 242, sub-s, 3). As to what is a "parish " within the meaning of this section, see Sargent v. Eodd, Colt. Reg. Cas. 14; 49 L. J. C. P. 195. Sect. 5 is omitted, as it is reproduced in identical terms, so far as the municipal franchise is concerned, by the 31st section of the Municipal Cor- porations Act, 1882. Sect. 6 relates only to the parliamentary franchise. Sect. 7 relates to the period of qualification, which is now fixed by the 9th section of the Municipal Corporations Act, 1882. Forms relating 8. In every parliamentary borough and in every municipal to registration borough the whole or part of the area whereof is co-extensive mentary bo- with or included in the area of a parliamentary borough, the roughs and forms in the schedule to this Act, or forms to the like efiect, •^"^-^ri^^^*^ varied as circumstances require, shall be used for the purposes municipal for which the same are applicable respectively, and shall for the boroughs. purposes of the Parliamentary Registration Acts and this Act be deemed to be substituted for any corresponding forms in the schedules to the Parliamentary Registration Acts. The said schedule and the notes thereto shall be construed and have effect as if enacted in the body of this Act. 41 & 42 VICT. c. 26. 375 All precepts, instructions, proceedings, notices, and lists Appendix, relating to the registration of parliamentary voters or enrolment o . o of burgesses shall be expressed in such manner and form as may bo necessary to carry the provisions of this Act into effect. The forms to be used in boroughs, not purliamentary, are those set forth in the Eighth Schedule, Part II. of the Municipal Corporations Act, 1882. 9. In eveiy parliamentary borough and in every municipal Publication of borough the whole or part of the area whereof is co-extensive jj"^^^ ?^ "^^^^ with or included in the area of a parliamentaiy borough, any and telegraph notice or list which is by the Parliamentary Registration Acts ^^ces, &c. or this Act directed to be published by overseers shall be pub- lished by them not only in the manner directed by those Acts, but also by being affixed and kept in some public and con- spicuous position in or near every post office and telegraph office occupied by or on behalf of Her Majesty's Postmaster General, and in or near every public or municipal or parochial office within the parish to which the list relates. All the provisions of those Acts with respect to the publica- tion of notices or Hsts shall apply to the publication to be made under this section. 10. Where the whole or part of the area of a municipal Notice of borough is co-extensive with or included in the area of a parlia- mentary borough, section eleven of the Parliamentary Registra- 6 & 7 Vict, tion Act, 1843, and section twenty-eight of the Representation qq f'o, y-'. of the People Act, 18G7 (which relate to the notices to be pub- c. 102, s. 28. lished and given with respect to rates and taxes in arrear), shall, as amended by this Act, extend with the necessary modifications to the rates of which the payment is required as a condition of enrolment on the burgess roll, and all the provisions of those sections as so amended shall apply to the overseers of parishes situate wholly or partly in a municipal borough accordingly. Any notice required to be given under this section shall be deemed to be duly given if delivered to the occupier or left at his last or usual place of abode, or with some person on the premises in respect of which the rate is payable. In case no such person can be found, then the notice required to be given under this section or under section twenty-eight of the Representation of the People Act, 18G7, shall be deemed to 30&31 Vict, be duly given if affixed upon some conspicuous part of the ^' -''''•'■ premises. ^7Q APPENDll. Appendix Sect. 10. 30 & 31 Vict. c. 102, s. 29. Any overseer who with intent to keep an occupier off the list or register of voters for a parliamentary borough, or off the burgess lists or burgess roll of a municipal borough, shall wilfully withhold any notice required by this section to be given to such occupier, shall be deemed guilty of a breach of duty in the execution of this Act. Section twenty-nine of the Eepresentation of the People Act, 1867, shall extend and be applicable to every parish situate wholly or partly within a municipal borough whose burgess lists are revised under this Act. Sects. 28 and 29 of tlie Eepresentation of the People Act, 1867 (30 & 31 Vict. c. 102), are as follow :— 28. Where any poor rate due on the fifth day of January in any>year from an occupier jn respect of premises capable of conferring the franchise for a borough remains unpaid on the first day of June following, the over- seers whose duty it may be to collect ?uch rate shall, on or before the twentieth of the same mouth of June, unless such rate has previously been paid, or has been duly demanded by a demand note, to be served in like manner as the notice in this section referred to, give or cause to be given a notice in the form set forth in Schedule (E.) to this Act to every such occupier. The notice shall be deemed to be duly given if delivered to the occupier or left at his last or usual place of abode, or with some person on the premises in respect of which the rate is payable. Any overseer who shall wilfully mthold such notice, with intent to keep such occupier off the list or register of voters for the said borough, shall be deemed guilty of a breach of duty in the execution of the Registration Acts. 29. The overseers of every parish wholly or partly within a borough shall, on or before the twenty-second day of July in every year, make out a list containing the name and place of abode of every person who shall not have paid on or before the twentieth day of the same month, all poor rates which shall have become payable from him in respect of any premises within the said parish before the fifth day of January then • last past, and the overseers shall keep the said list to be perused by any person, without payment of any fee, at any time between the hours of ten of the clock in the forenoon and four of the clock in the afternoon of any day except Sunday during the first fourteen days after the said twenty-second day of July ; any overseer wilfully neglecting or refusing to make out such list, or to allow the same to be perused as aforesaid, shall be deemed guilty of a breach of duty in the execution of the Eegistration Acts. Sect. 28 applies to occupiers of premises capable of confening the parliamentary franchise, although the owners have become liable for the rates under The Poor Rate Assessment and Collection Act, 1869 (32 & 33 Vict. c. 41, s. 10). Registrars to furnish re- turns of deaths to overseers. 11. Every registrar of births and deaths whose sub-district includes the whole or part of any parliamentary borough or any municipal borough the whole or part of the area w^hereof is co-extensive with or included in the area of a parliamentaiy borough, shall transmit by post or otherwise to the overseers of every parish the whole or any part of which is included in the 41 & 42 VICT. c. 26. m Sect. 11. Jjarllamentary borough or municipal borough and also in his Appendix, sub-district, a return certified under his hand to be a true return of the names, ages, and residences of all male persons of full age dying within that parish or part, and also when and as required by those overseers of the names, ages, and residences of all women of full age dying within that parish or part. The returns shall state the names of all such persons in full (where the names are known) and the dates of their deaths, and the names and residences of the persons by whom information of the deaths was given to the registrar. The returns shall be made four times a year ; that is to say. On or before the seventh day of April for the three months ending with the preceding thirty-first day of March ; On or before the twenty-second day of July for the period beginning with the preceding first day of April and ending with the fifteenth day of July ; On or before the fifteenth day of September, or at such other time before the completion of the revision of the lists of the parliamentary borough or municipal borough to the area of which the return relates as the barrister revising the same shall appoint in that behalf for the period beginning with the preceding sixteenth day of July, and ending with the time when such retui-n is made, or as near thereto as practicable ; And on or before the seventh day of January for the period beginning with the preceding fifteenth day of September or from the time for which the last preceding return was made, and ending with the thirty-first day of December : The registrar making any such return shall be entitled to fees at the rate specified in the twenty-eighth section of the Births and Deaths Registration Act, 1874, in respect of the 37 & 38 Vict, returns therein mentioned, and such fees shall be paid by the ^' ^^' ^' ^^' overseers as part of the expenses of carrying into effect the provisions of this Act with respect to the lists of parliamentary voters and burgess lists. The overseers shall omit from any list made by them the name of any person who appears from such returns to be dead, and shall allow any person who is registered as a parliamentary voter of the parliamentary borough or enrolled as a burgess of the municipal borough to which the retui-ns relate to inspect 378 , APPENDIX. Appendix, any such returns In their custody at all reasonable times free of The 28tli section of the Births and Deaths Eegistration Act, 1874 (37 & 38 Vict. c. 88), is as follows :— Every registrar, when and as required by a sanitary authority, as defined by the Public Health Act, 1872, shall transmit by post or other- wise a return, certified under the hand of such registrar to be a true return of such of the particulars registered by him concerning any death as may be specified in the requisition of the sanitary authority. The sanitary authority may supply a form of the prescribed character, for the purpose of the return, and in that case the return shall be made in the form so supplied. The registrar making such return shall be entitled to a fee of twopence, and to a further fee of twopence for every death entered in such return, which fee shall be paid by the authority requiring the return. List of persons \2. The overseers of every parish situate wholly or partly *^aTOcWal either in a parliamentary borough or in a municipal borough the relief. whole or part of the area whereof is co-extensive with or included in the area of a parliamentary borough, shall ascertain from the relieving officer acting for that parish the names of all persons who are disqualified for being inserted in the lists of parlia- mentary voters or burgess lists for that parish by reason of having received parochial relief, and the relieving officer, upon application from the overseers, shall produce to them at such place within the parish, and at such time as is required by them, the books in his possession containing the names of those persons. Inspection of 13- In every parish situate wholly or partly either in a par- rate books. liamentary borough or in a municipal borough the whole or part of the area whereof is co-extensive with or included in the area of a parliamentary borough, the books containing the poor rates made for the parish within the previous two years shall at all reasonable times be open, free of charge, to the inspection of any person who is registered as a parliamentary voter for the parliamentary borough, or enrolled as a burgess of the municipal borough, and any such voter or burgess may make any copy thereof or take any extract therefrom. In a borough solely municipal the mayor and assessors sitting as a coui-t of revision may require the production of the rate books. (Third Schedule, Part I. of the Municipal Corporations Act, 1882.) Explanation 14 Whereas by section nineteen of the Poor Rate Assess- V. c. 41 s. 19 J^ent and Collection Act, 1869, the overseers in making out the 41 & 42 VICT. c. 26. 379 poor rate arc required in every case, whether the rate if3 coUectecl Appendix. from the owner or occupier, or the owner is liable to the pay- gg^^ -^^^ mcnt of the rate instead of the occupier, to enter in the ^s to cn- occupier's column of the rate book the name of the occupier of tering occu._ _..,,,,,-, ,, , pier 8 name in every rateable hereditament, and it is thereby declared that j.^^.^ i^^^j^^ every such occupier shall be deemed to be duly rated for any qualification or franchise as therein mentioned ; and whereas doubts have been entertained as to the application of this enact- ment, and it is expedient to remove them : be it therefore enacted that the recited enactment shall not be deemed to apply exclusively to cases where an agreement has been made under section three of the same Act, or where an order has been made under section four of the same Act, but shall be of general appHcation. Tins section applies to all municipal boroughs. (See sect. 2 of 42 & 43 Vict. c. 10, cited m note to sect. 7 of 32 & 33 Vict. c. 41.) 15. Where the whole or part of the area of a municipal borough Preparation is co-extensive with or included in the area of a parliamentary ^ ^^ ^ ° t rv borough, the lists of parliamentary voters and the burgess list voters and shall so far as ijracticable be made out and revised together. burgess lists , •, n • 1 •, 1 1 11 together in In every such case the overseers oi every parish situate wholly certain cases. or partly either in the parliamentary borough or in the municipal borough shall, on or before the last day of July in every year make out a list of all persons entitled under any right conferred by the Reform Act, 1832, or by section three of the Reprcsenta- 2 & 3 Will. 4, tion of the People Act, 1867, to bo registered as voters for the c. 45. parliamentary borough in respect of the occupation of property ^ -^^.^ ^ ^ situate wholly or partly ^vithin that parish, or entitled to be enrolled as burgesses of the municipal borough in respect of the occupation of any property so situate. With respect to every list so made out the following provisions shall have ctlcct : (1.) The lists shall be in substitution for the lists of persons so entitled, which are required to be made out under the Parliamentary Registration Acts and the Municipal Corporation Acts : (2.) Where the parish is wholly or partly both in the parlia- mentary borough and in the municipal borough, the list for the parish shall be made out in three divisions : Division one shall comprise the names of the persons entitled both to be registered as parliamentary voters 380 APPENDIX. Appendix. under a right conferred as aforesaid and to be enrolled SecL15. ^^ burgesses ; Division two shall comprise the names of the persons entitled to be registered as parhamentary voters under a right conferred as aforesaid, but not to be enrolled as burgesses ; Division three shall comprise the names of the persons entitled to be em-olled as burgesses, but not to be registered as parliamentary voters under a right conferred as aforesaid : (3.) Each list shall state the surname and other name or names of every person whose name is inserted therein, his place of abode, the nature of his qualification, and the situation and description of the property in respect of which he is entitled : (4.) Each Hst shall be signed and otherwise dealt with in manner directed by the Parliamentary Eegistration Acts with respect to the alphabetical lists mentioned 6 & 7 Vict. in section thirteen of the Parhamentary Registration c. 18, s. 13. ^g^^ lg43 . (5.) Where no part of the parish is situate within the muni- cipal borough, the hst for the parish shall be deemed to be a list of voters for the parhamentary borough : (6.) Where no part of the parish is situate within the parlia- mentary borough, the list for the parish shall be deemed to be a burgess Hst for the municipal borough : (7.) Where the list is made out in divisions, divisions one and two shall be deemed to be lists of voters for the parha- mentary borough, and divisions one and three shall be deemed to be burgess hsts for the municipal borough : (8.) The lists, and if the lists are made out in divisions, each division thereof, shall, if and so far as the local authority from time to time direct, according to convenience for use, be framed in parts for polling districts or wards ; and where the polling districts and wards are not con- terminous, in such manner that the parts may be con- veniently compiled or put together to serve either as lists for polling districts or as ward lists. 41 & 42 VICT. c. 26. 381 16. In the case of any parliamentary borough in which any Appendix.' persons are entitled to be registered as freemen, or under any „ , ,_ right other than a right conferred by the Reform Act, 1832, or Freemeii's the third section of the Representation of the People Act, 18G7, and other the registration of such persons shall be carried out in the "^ ^' manner directed by the Parhamentaiy Registration Acts, as ^.- ' modified by this Act. 30 & 31 Vict. c. 102, s. 3. See sect. 14 or 6 & 7 Vict. c. 18, ante. See sect. 209 of the Municipal Corporations Act, 1882. 17. In the case of a parliamentary borough which includes in Provision whole or in part more municipal boroughs than one, each such ^^'i^-'re seve- municipal borough shall, for the purposes of this Act, be dealt boroughs with separately and as if each were the only municipal borough included in included in whole or in part in such parliamentary borough, and ""fnl^pV^" if any parish is partly in one and partly in another or others of borough, such municipal boroughs, so much thereof as is in any one of such municipal boroughs shall, for the purposes of this Act, be dealt with as a separate parish. The town clerk of each such municipal borough shall, so far as regards the area of such municipal borough, issue the precepts and perform the other duties to be performed by the town clerk under and shall be the town clerk for the purposes of the Parlia- mentary Registration Acts and this Act. 18. The Municipal Corporations Act shall not, as to anything Application prior to the completion of the revision of the burgess lists, apply ^"^ ^^ ;"■''•'■■ to any burgess list made out under this Act, and instead thereof Registration the Parliamentary Registration Acts, as modified by this Act, ■^'^ts to shall, up to the completion of the revision of the burgess lists, ^.^jp ^jj^. apply to every such burgess list, as if it were a list of parlia- under this mentary voters made out under those Acts, and as if the municipal borough to which such burgess lists relate were a parliamentary borough : provided as follows : (1.) Nothing in this Act shall authorise a person entered on a burgess list, not being also entered on a list of parlia- mentary voters, to make any objection in respect of a list of parliamentary voters, or authorise any person entered on a list of parliamentary voters, not being also entered on a burgess list, to make any objection in respect of a burgess list ; 382 APPENDIX. Appendix. Sect. 18. Lists of persons qualified to be aldermen or coun- cillors, but not to be burgesses. Lists and registers may be ar- ranged ac- cording to streets. (2.) The last day for revising a burgess list made out under this Act shall be the twelfth day of October ; and (3.) The burgess lists when revised shall be copied for the burgess roll in manner directed by the Municipal Corporation Acts. The 45th section of the Municipal Corporations Act, 1882, directs the revising authority to deliver the lists when revised to the town clerk, and a printed copy thereof, examined by him, and signed by him, shall be the burgess roU of the borough. 19. Where the whole or part of the area of a municipal borough is co-extensive with or included in the area of a parlia- mentary borough, the separate lists of the persons entitled to be elected councillors or aldermen of the municipal borough, though not entitled to be on the burgess roll, shall be made out at the same time and in the same manner as the burgess lists, and all the provisions of this Act with respect to the burgess lists shall apply to those separate lists. See sect. 11 of the Municipal Corporations Act, 1882, and note (/) thereon. Sect. 20 is repealed by 45 & 46 Vict. c. 50. 21. If and so far as the local authority so dii*ect, the Usts of parliamentary voters and registers of parliamentary voters in parliamentary boroughs, and the burgess lists and burgess rolls in municipal boroughs, and the lists of claimants and persons objected to in parliamentary boroughs and municipal boroughs respectively, or any of those documents, shall, so far as they relate to persons qualified in respect of the ownership or occu- pation of property (including persons qualified in respect of lodgings), be arranged in the same order in which the qualifying premises appear in the rate book for the parish in which those premises are situate, or as nearly thereto as will cause those lists, registers, and rolls to record the quahfying premises in successive order in the street or other place in which they are situate, subject in the case of a municipal borough divided into •wards to the division of the burgess roll into ward lists. The local authority in this Act means as regards a parliamentary borough the authority having power to divide the parliamentary borough into polling districts, and as regards a municipal borough the council of the municipal borough. See sect. 46 of the Municipal Corporations Act, 1882. As to numbering the names in the burgess roll, see 45th section of the same Act. §ects. 22 and 23 relate only to parliamentary. 41 & 42 VICT. 0. 2G. 383 24. Any person who is entered on any list of voters for a Appendix. parliamentary borough or any burgoss list, subject to revision „ . „. under this Act, for a municipal borough, and whose name or Dcdiiratiou place of abode or the nature of whose qualification or the name as to misde- or situation of whose qualifying property is not coiTectly stated scnption. in such list, or in respect of whom there is any other error or omission in the said list, may, Avhcthcr he has received a notice of objection or not, if he thinks fit, make and subscribe a declara- tion in the form in that behalf in the schedule to this Act, or as near thereto as the circumstances will admit, before any justice of the peace or any commissioner or other person authorised to administer oaths in the Supreme Court of Judi- cature. The declaration shall be duly dated, and shall on or before the twelfth day of September be sent to the town clerk, who forth- with shall indorse on the declaration a memorandum signed or initialed by him, stating the date when he received it, and naming the declarant, and the. list to which the declaration refers, and shall deliver all such declarations to the revising barrister at his first court. If the declaration is sent as aforesaid in due time (of which the said indorsement shall be primd facie proof), the revising barrister shall receive the declaration as evidence of the facts declared to, and that without proof of the signature of the declarant, or of the justice, commissioner, or person before whom the declaration purports to have been subscribed, unless he has good reason to doubt the genuineness of any signatui-e thereto. The declarations shall be open free of charge to public inspec- tion at the office of the said town clerk, at any time between the hours of ten of the clock in the forenoon and four of the clock in the afternoon of any day except Sunday, before the fifteenth day of September, and he shall deliver copies thereof on applica- tion and payment of the price of fourpence per folio of seventy- two words. In the case of Porrett v. Lord, L. R. 5 C. P. D. 65 ; Colt. Reg. Cas. 46, the court held that this section does not authorize an amendment of the description of qualitication by adding premises to those described in the list, so as to make up the necessary quahfication. 25. If any person falsely or fraudulently signs any such IVnulty for declaration as last aforesaid, or any declaration either as claimant j-'.^tion.^' ' 384 APPENDIX. Sect, 25. Appendix, or witness in respect of a claim to vote as a lodger in the name of any other person, whether that person is living or dead, or in a fictitious name, or sends as genuine any false or falsified declaration knowing the same to be false or falsified, or knowingly and wilfully makes any false statement of fact in any declaration of the nature aforesaid, he shall be guilty of a misdemeanor and punishable by fine or by imprisonment for a term not exceeding one year, and the revising barrister shall have power to impound the declaration. Notice o£ objection to state specific grounds of objection, &c. 6 & 7 Vict. c. 18, ss. 17, 20. 28 & 29 Vict. c. 36, ss. 7, 8. Revision of lists of voters. Objections may be withdrawn. 26. The notice requu-ed by the seventeenth and twentieth sections of the Parliamentary Registration Act, 1843, to be given to persons objected to in boroughs for the purposes of the revision of the lists of voters for a parliamentary borough and the burgess lists for a municipal borough whose burgess lists are revised under this Act, shall state specifically the gi-ound or grounds of objection, and sections seven and eight of the County Voters Registration Act, 1865, shall extend to such objections. See the I7th and 20th sections of the Parliamentary Eegistration Act (6 & 7 Vict. c. 18), ante. The 7th and 8th sections of the County Registration Act, 1865 (28 & 29 Vict. c. 36), are as follows :— No person objected to under the provisions of this Act shall be required to give evidence before the revising barrister in support of his right to be registered, otherwise than as such right shall be called in question in such ground or grounds of objection. Every separate ground of objection shall be treated by the revising ban-ister as a separate objection ; and for every gi'ound of objection which, in the opinion of the revising barrister, shall liave been groundlessly or frivolously and vexatiously stated in a notice of objection, he shall, on the application of the person objected to, or any one on his behalf, and upon production of the notice of objection, award costs against the objector to the amount at least of two shillings and sixpence, and this though the name of the person objected to be expunged upon some other ground of objection stated in the same notice of objection. 27. Foi' tlie purposes of the revision of the lists of voters for a parliamentary borough, and the burgess lists for a municipal borough whose burgess lists are revised under this Act — (1.) An objection maybe withdrawn by a notice to that efiect in writing, signed by the objector, and given to the person objected to and to the town clerk not less than seven days before the day which shall be appointed for the holding of the first court of revision of the list to which the objection relates : 41 & 42 VICT. c. 26. 385 (2.) Any objection by a qualified objector may, after his Appendix, deatli, be revived by any other person qualified to cg^f 07 have made the objection originally by a notice to that RevivL-r of oflect in writing signed by him, and given to the objections person objected to and to the town clerk at or before obiector the time of the revision of the entry to which the objection relates : A person reviving an objection shall be deemed to have made the objection originally, and ho shall be responsible in respect thereof, and the proceedings thereon shall be continued accordingly : (3.) Where objection is made otherwise than by an overseer Costs of to any person whose name appears on a list of voters objections. or burgesses and the name is retained on the list, the revising barrister shall, unless he is of opinion that the objection was reasonably made either because of a defect or error in the entry to which the objection relates, or because of a difiiculty in verifying or identifying the particulars comprised in such entry, or unless the objection is duly withdrawn, or unless for some other special reason he otherwise determines, order costs not exceeding forty shillings to be paid by the objector to the person objected to. 28. A revising barrister shall, with respect to the lists of Duties and voters for a parliamentary borough and the burgess lists for a P^^'^P °* ... . revising municipal borough which he is appointed to revise, perform the barrister. duties and have the powers following : (1.) He shall correct any mistake which is proved to him to have been made in any list : The word " shall " in this paragraph is imperative. (See Fickard v, Bai/lis, L. R. 5 C. P. D. 235). (2.) He may correct any mistake which is proved to him to have been made in any claim or notice of objection : It is not obligatory on the barrister to correct or amend, only discre- tionary. (See Ph-k'ird v. lia;ili 18 , ) A.B., Justice of the Peace for The person before whom the declaration is made should affix his official description. 410 APPENDIX. Appendix. Form(N.) Schedule. Notice of Withdrawal of Objection. No. 1. — Notice to the person objected to. To Mr. I hereby give you notice that I withdraw my objection to your name being retained on the list of t so far as regards the ground of objection numbered in my notice to you of such objection, t Dated the day of 18 . (Signed) The list should be referred to In the manner prescribed for the notice of objection. Omit the words between crosses if the objection is wholly withdrawn. The notice should be signed in the manner prescribed for the notice of objection. No. 2. — Notice to the Town Clerk. To the Town Clerk of I hereby give you notice that I withdraw my objection to the name of being retained on the list of t so far as regards the ground of objection numbered in my notice to him of such objection.f Dated the day of 18 . (Signed) The list should be referred to in the manner prescribed for the notice of objection. Omit the words between crosses if the objection is wholly withdrawn. The notice should be signed in the manner prescribed for the notice of objection. Form (0.) Notice of Eeviving an Objection. No. 1. — Notice to the person objected to. To Mr. I hereby give you notice that I revive the objection which was made by , since deceased, to your name being retained on the list of f so far as regards the groimd of objection numbered in the notice to you of such objection.f Dated the day of 18 . (Signed) The list should be referred to in the manner prescribed for the notice of objection. Omit the words between crosses if the objection is wholly revived. The notice should be signed in the manner prescribed tor the notice of objection. 41 & 42 VICT. c. 26. 411 No. 2.— Notice to the Town Clerk. Appendix. To the Town Clerk of Schedule. I hereby give you notice that I revive the objection which was made by , since deceased, to the name of being retained on tlie list of t so far as regards the ground of objection numbered in the notice to the person objected to of such objection. f Dated the day of 18 . (Signed) The list should be referred to in the manner prescribed for the notice of objection. Omit the words between crosses if the objection is wholly revived. The notice should be signed in the manner prescribed for the notice of objection. Note (P.) Directions for the Guidance of Overseers in making out the Lists. The following directions should be observed by overseers in making out the lists of parliamentary A'oters and burgesses, and also the lists of claimants and persons objected to as parliamentary voters and burgesses, (1.) The surname and other name or names of each person are to be written at full length, the surname being placed first. (2.) Each list, and where the list is made out in divisions, each division of each list should be made out in alphabetical order. Note. — If the local authority has given any special directions as to the mode of making out the list, the town clerk, or other officer issuing the precepts, must modify direction (2) accordingly. (3.) The place of abode should be entered, with the name of the street, lane, or other locality, and the number in such street, lane, or other locality of such place of abode, where there is any such name or number, and should be entered in all cases in such a manner as Avill afford a full and sufficient address for a person entered if a letter is addressed to him by post. (4.) The nature of the qualification should be entered as nearly as possible in the words of the statute conferring the franchise, for instance : — (a) The nature of the {qualification of a person under the Reform Act, 183-2 (2 & 3 Will. 4, c. 45), or under the Municipal Corporation Acts, should be stated thus : " house," or in the case of a joint occupation, " house (joint)," or " warehouse," " counting-house," " shop," or " building," or in the manner provided by the Parliamentary and Municipal Registration Act, 1878, as the case may be : 413 APPENDIX. Appendix, Schedule. (b) The nature of the qualification of a person under section 3 of the Representation of the People Act, 1867, should be stated thus, "dwelling-house." (5.) The name and situation of the qualifying property, if the qualification is in respect of j^roperty, shoiild he entered with the name of the street, lane, or other locality, and the number in such street, lane, or other locality of such property, where there is any such name or number, and should be entered in all cases in such a manner as will afford full and sufficient means of identifying such property. (6. ) Where several qualifications are possessed by the same person, the particulars respecting each qualification should be .stated in the list; and in the case of a list made out in divisions, where a person is entered in Division 1 in respect of one qualification for parlia- mentary purposes, and in respect of another qualification for muni- cipal purjioses, each such qualification should be distinguished in the list by a note to the effect that the qualification is for parliamentary purposes only, or for municipal purposes only, as the case may be. (7.) In making out the list of lodger claimants- who claim on or before the twenty-fifth day of July, and are then on the register in respect of the same lodgings, if you have reason to believe that any person whose name is entered on that list is dead, or is not entitled to vote, you should make a note to that effect in the last column of the list, being the column headed " objections by overseers." (8.) You should omit from any list of parliamentary voters or bur- gesses the name of any person who appears from the returns furnished by the registrar of births and deaths to be dead, and the name of any person who is ascertained to be disqualified for being inserted in the list by reason of having received parochial relief or other alms. Note (Q.) ' Directions for Guidance in the formation of the Parliamentary Register and Burgess Roll. In copying and printing Divisions 1 and 2 for the parliamentary register, and Divisions 1 and 3 for the burgess roll, of any revised list made out in divisions under this Act, the two divisions in each set may, and, if and so far as the local authority under the Act shall so direct, shall be combined or kept separate, and be arranged according to convenience for use in parts for polling districts or wards, and where the polling districts and wards are not conterminous in such manner that the parts may be conveniently compiled or put together to serve either as lists for polling districts or as ward lists ; and the names may, and, if and so far as the said local authority 41 & 42 VICT. c. 26. 413 Schedule. shall so direct, shall be distinguished by a number, either alone, or in Appendix, combination with a letter or other distinguishing mark according to the parts, and any arrangement may, and, if and so far as the said local authority shall so direct, shall be adopted according to conve- nience, so that one print or edition of Division 1 may be available for both sets. Each entry for voting on the parliamentary register of every par- liamentary borough, and on. the burgess roll of every municipal borough whose burgess lists are revised under this Act, is to be dis- tinguished by a number, either alone or in combination with a letter or distinguishing mark. Any entry of a person not entitled to vote in respect of the qualifi- cation therein contained, he being on the list for voting in respect of another qualification, is to be denoted by an asterisk in the manner provided by section forty-seven of the Parliamentary Registration Act, 1843, with respect to similar entries in the registers for counties. The officer having the custody of any revised lists under this Act shall permit access thereto for the purpose of the same being copied for the parliamentary register of the parliamentary borough, and for the burgess roll of any municipal borough to which such revised lists relate. I Appendix. T2E BALLOT ACT, 1872. (85 & 36 VICT. Cap. 33.) An Act to amend the Laiv relating to Procedure at Parliamentary and Municipal Elections. [18th July, 1872.] Whereas it is expedient to amend the law relating to procedure at parliamentary and municipal elections : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : PART I. Paeliamentaey Elections. Procedure at Elections. Sect. 1 relates only to candidates at parliamentary elections. Poll at elec- 2. In the case of a poll at an election the votes shall be given ions. j^y ballot. The ballot of each voter shall consist of a paper (in this Act called a ballot paper) showing the names and descrip- tion of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting, the ballot paper shall be marked on both sides with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterfoil, and the voter having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer pre- siding at the polling station (in this Act called " the presiding officer") after having shown to him the official mark at the back. 35 & 36 VICT. 0. 33. " 415 Any ballot paper which has not on its back the official mark, Appendix. or on which votes arc given to more candidates than the voter cqqI 9 is entitled to vote for, or on which anything, except the said number on the back, is written or marked by which the voter can be identified, shall bo void and not counted. After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candi- dates as may be in attendance, open the ballot boxes, and ascer- tain the result of the poll by counting the votes given to each candidate, and shall forthwith declare to be elected the candi- dates or candidate to whom the majority of votes have been given [and return their names to the clerk of the croicn in chan- cery]. The decision of the returning officer as to any question arising in respect of any ballot paper shall be final, subject to reversal on petition questioning the election or return. 5j^ •!» •!• •T* ^F 3|» The duty is imposed upon the presiding officer to deliver to the voters voting papers bearing the official mark, and to be present during the elec- tion at the polling stations, so that the voters, before deposithig their voting papei's in the ballot box, can show to him the official mark on the back thereof. These duties are merely ministerial, and an action will lie against the presiding officer for any negligent performance thereof by a party aggrieved, although the breach thereof be not wilful or malicious. The presiding officer may do, by the clerks appointed to assist him, many acts which he is required to do under this Act. Where a clerk is so appointed, the presiding officer will not be responsible for the acts of com- mission or omission of such clerk in the performance of the duties delegated to him, as the relation of master and servant does not exist between them. Each is an independent officer. The Act does not impose upon the presiding officer the duty of ascertain- ing, before the voter deposits a voting paper in the ballot box, whether the official mark is on such paper. Per Botill, C. J., and Geoye, J. {Pickering v. James, L. R. 8 C. P. 489 ; 42 L. J. C. P. 217 ; 29 L. T. (n.s.) 211.) Wiicre a returning officer had neglected to mark on the counterfoil the number of the voter on the register in a municipal election, the petiti6u under the repealed Corrupt Practices (Municipal Elections) Act, 1872, was allowed to be amended by adding a paragraph alleging this fact. {Pickering v. Starlin, 28 L. T. (n.s) 111.) If the returning otiicer mark the number of the voter in the register on the ballot paper instead of on the counterfoil, the ballot paper is void. {Woodward v. Sarsons, L. K. 10 C. P. 733; 44 L. J. C. P. 293; 33 L. T. (N.s.) 867.) As to what marks made by a voter will and what marks will not vitiate a ballot paper, see the Third Division of this work, p. 322, and notes on Form K., Eighth Schedule, Part II., of the Municipal Corporations Act, 1882, p. 264. There is no return to the clerk of the crown in municipal elections. (Municipal Corporations Act, 1882, Third Schedule, Part 111., 6.) All 416 BALLOT ACT, 1872. Appendix, documents which in the case of a parliamentary election are to be forwarded to the clerk of the crown are to be delivered to the town clerk. (See Part II. Note S. 2. of this Act.) The last provision of this section relates to the voting of a returning ofBcer, and is omitted as it applies only to a parliamentary election. The provision relating to a presiding officer at a municipal election will be found in sect. 58 (5) of the Municipal Corporations Act, 1882. Offences in respect of nomination papers, ballot papers, and ballot boxes Offences at Elections. 3. Every person who, — (1.) Forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper, knowing the same to be forged; or (2.) Forges or counterfeits or fraudulently defaces or fradu- lently destroys any ballot paper or the official mark on any ballot paper ; or (3.) Without due authority supplies any ballot paper to any person; or (4.) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in ; or (5.) Fraudulently takes out of the polling station any ballot paper; or (6.) Without due authority destroys, takes, opens, or other- wise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election ; shall be guilty of a misdemeanor, and be liable, if he is a return- ing officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding two years, with or without hard labour, and if he is any other person, to imprison- ment for any term not exceeding six months, with or without hard labour. Any attempt to commit any offence specified in this section Bhall be punishable in the manner in which the offence itself is punishable. In any indictment or other prosecution for an offence in relation to the nomination papers, ballot boxes, ballot papers, and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils. 35 & 36 VTHT. 0. 33. 417 The offences in relation to nomination papers are punishable nnder sect. 71- Appendix, of the Municipal Coi'poratioiis Act, 1882. A returuiiii,' ofliccr was indicted with havinc; fraudulently placed papers, Note S. 3. ])ur])ortin<^ to be ballot pa])ers, but known to such returnin;^ officer not to be ballot papers, into the ballot box. At the trial UlACKBUUN, J., allowed the counterfoils and marked re<,'ister to be f^iven in evidence, and the face of the voting papers to be inspcctod, so as to show how the votes appeared to have been f,'iven. A county court .judi,'e, under Rule 01., I'art II. of the First Schedule of this Act, had made an order directing the town clerk to produce and show, for the purposes of the prosecution, the counterfoils and the marked register. The court held that this was rightly done, and that they were properly admitted in evidence at the trial. {It. v. Beardsall, L. II. 1 Q. B. D. 452 ; 45 L. J. M. C. 157.) The mens rea is necessary to constitute any offence charged under this section. (Sec Aberdare Local Board of Health v. Uammett, L. K. 10 Q. B. 162.) 4. Every officer, clerk, and agent in attendance at a polling Infringe- station shall maintain and aid in maintaining the secrecy of the ™^" '^ votmg in such station, and shall not communicate, except for some purpose authorized by law, before the poll is closed, to any person any information as to the name or number on the register of voters of any elector who has or has not applied for a ballot paper or voted at that station, or as to the official mark, and no such officer, clerk, or agent, and no person whosoever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any information obtained in a polling station as to the candidate for whom any voter in such station is about to vote or has voted, or as to the number on the back of the ballot paper given to any voter at such station. Every officer, clerk, and agent in attendance at the counting of tho votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall dii'ectly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote. Every person who acts in contravention of the provisions of this section shall be liable, on summary con\'iction before two justices of the peace, to imprisonment for any term not exceed- ing six months, with or without hard labom*. 2b 418 BALLOT ACT, 1872. Appendix. An information was laid agrainst an aarpiit in attendance at the polling: station at a nuniicipal election for a breaeli of this section. The defendant Notes SS. 4-7 had a copy of the hnro-ess roll, and whilst in the station placed a mark ag-ainst the name of each voter who obtained a ballot paper, and before the poll closed left the station, and carried to the committee room of his prin- cipal his marked copy of the burgess roll, and left it there. There was no proof that the copy of the burgess roll was seen by any person whilst in the room. Held, that there was not sufficient evidence to convict in the absence of proof that information as to the voters was actually communi- cated to any person, and it was not enough that the means of acciuiring such information were afforded to any one. (Stannanonght v. Hazeldine, L. R. 4 C. P. D. 191 ) Can the various offences named in this section be included in one infor- mation under 11 & 12 Vict. c. 43 ? The point was raised, but not decided in the last-mentioned case. Sect. 5 relates to the division of counties and boroughs into polling dis- tricts. By sect. 46 of the Municipal Corporations Act, 1882, the council may divide the borough or any ward into polling districts. Sect. 6 authorizes the free use of school and public rooms for taking the poll at a parliamentary election. By the Municipal Corporations Act, 1882, Third Schedule, Part III. (1), the provisions of this Act, with respect to the use of a room for taking the poll, do not apply to a municipal election. By sect. 69 of the Municipal Corporations Act, 1882, an election cannot be held in any place of public worship. Sect. 7 makes the register of voters conclusive. By the Municipal Cor- porations Act, 1882, Third Schedule, Part III. (1), the provisions of this Act, with respect to the right to vote of persons whose names are on the register of voters, do not apply to a municipal election. As to the title to vote of any burgess, see sect. 51 of the Municipal Corporations Act, 1882. General powers and duties of returning officer. Duties of B,eturning and Election Officers. 8. Subject to the provisions of this Act, every returning officer shall provide such nomination papers, polling stations, ballot boxes, ballot papers, stamping instruments, copies of register of voters, and other things, appoint and pay such officers, and do such other acts and things as may be necessary for effec- tually conducting an election in manner provided by this Act. The mayor and the town clerk have to provide these things at a muni- cipal election. {See Municipal Corporations Act, 1882, Third Schedule, Part III. (3) and the same schedule, Part II. (6). See the Third Division of this work on the Practice at Municipal Electiors.) Keeping of order in sta- tion. 9. If any person misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer, he may immediately, by order of the presiding officer, be removed from the polling station by any constable in or near that station, or any other person authorized in writing by the returning officer to remove him ; and the person so removed shall not, unless 35 & 36 virT. c. 33. 419 with the permission of the presiding officer, again be allowed to Appendix, enter the polling station during the day. c ^ o Any person so removed as aforesaid, if chai'ged with the com- mission in such station of any offence, may be kept in custody until he can be brought before a justice of the peace. Provided that the powers conferred by this section shall not be exercised so as to prevent any elector who is otherwise entitled to vote at any polling station from having an oppor- tunity of voting at such station. 10. For the purpose of the adjournment of the poll, and of Powers of pre- every other enactment relating to tiie poll, a presiding officer fj^iJ^^^jjij^'^. shall have the power by law belonging to a deputy returning tration of officer ; and any presiding officer and any clerk appointed by o^^^s> &c- the returning officer to attend at a polling station shall have the power of asking the questions and administering the oath authorized by law to be asked of and administered to voters, and any justice of the peace and any returning officer may take and receive any declaration authorized by this Act to be taken before him. The oath authorized by law is prescribed by 6 Vict. c. 18, s. 81. As to the administration of this oath at nnmicipul elections, see Division III. pp. 285, 286. 11. Every returning officer, presiding officer, and clerk who is Liability of guilty of any wilful misfeasance or any wilful act or omission in ^jg'jfojjjiugt. contravention of this Act shall, in addition to any other penalty or liability to which he may be subject, forfeit to any person aggrieved by such misfeasance, act, or omission a penal sum not exceeding one hundred pounds. Section fifty of the Representation of the People Act, 1867 30 & 31 Vict, (which relates to the acting of any returning officer, or his partner or clerk, as agent for a candidate), shall apply to any returning officer or officer appointed by him in pursuance of this Act, and to his partner or clerk. Wliere a clerk commits a breach of duty he is personally liable in an action for damages. (See Fivkering v. James, L. R. 8 C. P. 480, and note to sect. 2, ante.) Miscellaneous. Sect. 12 relates to the disclosure of the way in which a person li;is voted. The Munii'ipal Corporations Act, 1882, s. lOi, provides, that no person in any procoodinc: to (piestion an oloction, sh;ill be required to stjite for whom he has voto4. *> F 2 iv Jl orough." any of them : The expression " Municipal Corporation Acts " means — "Municipal {«.) As regards England, the Act of the session of the fifth corporation and sixth years of the reign of King William the Fourth, chapter seventy-six, intituled " An Act to provide for the regulation of municipal corporations in England and Wales," and the Acts amending the same. # * * * * The expression " municipal election " means — {(i.) As regards England, an election of any person to serve the office of councillor, auditor, or assessor of any muninicipal borough, or of councillor for a ward of a municipal borough, ♦ ♦ . * ♦ * The paragraphs omitted relate only to Scotland and Ireland. 30. This Act shall apply to any parliamentary' or municipal Application election which may be held after the passing thereof. °^ -'^ct. Sect. 31 relates only to an election for a university. Suet, o'l repeals the statutes mentioned in the schedults to the extent therein nientioiiod. Sect. 33 provides a short title for the Act, namely, " The Ballot Act, 1872," and nlates to the time it shall continu"' in force. l?y 45 & 40 Vict. c. til, the tiiue is exteudod to the end ol' 1^63. 424 APPENDIX. Appendix. Schedules. SCHEDULES. FIRST SCHEDULE. PART I. Rules for Parliamentary Elections. Rules 1 to 13 are omitted, as they relate to nominations at parliamentary elections only. The Poll Rule 14 does not apply to municipal elections. The poll. 15. At every polluig place the returning officer shall provide a sufficient number of polling stations for the accommodation of the electors entitled to vote at such polling place, and shall distribute the polling stations amongst those electors in such manner as he thinks most convenient, provided that in a district borough there shall be at least one polling station at each contributory place of such borough. See note on sect. 8 of this Act, and Division III. p. Rule 16 does not apply to a municipal election. Corporations Act, 1882, Thml Schedule, Part III.) 290. {See the Municipal 17. A separate room or separate booth may contain a separate polling station, or several polling stations may be constructed in the same room or booth. 18. No person shall be admitted to vote at any polling station except the one allotted to him. Rule 19 does not apply to a municipal election. (See the Municipal Corporations Act, 1882, Third Scliedule, Part III.) 20. The returning officer shall provide each polling station with materials for voters to mark the ballot papers, with instruments for stamping thereon the official mark, and with copies of the register of voters, or such part thereof as contains the names of the voters allotted to vote at such station. He shall keep the official mark secret, and an interval of not less than seven years shall intervene between the use of the same official mark at elections for the same county or borough. In a municipal election the duty assigned to a returning officer by thia rule devolves on the mayor, and, in practice, is discharged by the town clerk, or his deputy. 35 & 36 viuT . c. 33. 425 21. The returning officer shall appoint a presiding officer to pre- Appendix, side at each station, and the officer so appointed shall keep order at Vi^~~i his station, shall regulate tlit; iiumljer of electors to be admitted at a ^ time, and shall exclude all other persons except the clerks, the agents of the candidates, and the constables on duty. The mayor makes those appointments at a municipal election. The candidate at a municipiil election lias a right of entry to the station. (See Clementson v. Mason, L. 11. 10 C. P. 209.) 22. Every ballot paper shall contain a list of the candidates described as in their respective nomination papers, and arranged alphabetically in the order of their surnames, and (if there are two or more candidates with the same surname) of tlieir other names : it shall be in the form set forth in the Second Schedule to this Act or as near thereto as circumstances admit, and shall be capable of being folded up. 23. Every ballot box shall be so constructed that the ballot papers can be introduced therein, but cannot be Avitlidrawn therefrom, witliout the box being unlocked. The presiding olhcer at any polling station, just before the commencement of the poll, shall show the ballot box empty to such persons, if any, as may be present in such station, so that they may see that it is empty, and shall then lock it up, and ])lace his seal upon it in such manner as to prevent its being opened \vithout breaking such seal, and shall place it in his view for the receipt of ballot papers, and keep it so locked and sealed. 24. Inmiediately before a ballot paper is delivered to an elector, it shall be marked on both sides with the othcial mark, either stamped or perforated, and the number, name, and description of the elector as stated in the copy of the register shall be called out, and the number of such elector shall be marked on the counterfoil, and a mark shall be placed in the register against the number of the elector, to denote that he has received a ballot paper, but without showing the particular ballot paper which he has received. The presiding^ officer is prima facie the proper person to see the ballot paper duly marked with the official mark. (Sec Pickering v. James, L. R. 8 C. P. 489; 42 L. J. C. P. 217.) 25. The elector, on receiving the balhit paper, shall forthwilh pro- ceed into one of the compartments in the polling station, and there mark his paper, and fold it up so as to conceal his vote, and shall then put his ballot paper, so folded up, into tlie ballot box ; he shall vote without unilue delay, and shall (piit the polling station as soon as he has put his ballot paper into the ballot box. 26. The presiding officer, on tlie application of any voter who is incapacitated by blindness or other physical cause from voting in 426 APPENDIX. Schedules. Appendix, manner prescribed Ijy this Act, or (if the poll be taken on Saturday) of any voter who declares that he is of the Jewish persuasion, and objects on religious grounds to vote in manner prescribed by this Act, or of any voter who makes such a declaration as hereinafter mentioned that he is unable to read, shall, in the presence of the agents of the candidates, cause the vote of such voter to be marked on a ballot paper in manner directed by such voter, and the ballot paper to be placed in the ballot box, and the name and number on the register of voters of every voter whose vote is marked in pur- suance of this rule, and the reason why it is so marked, shall be entered on a list, in this Act called " the list of votes marked by the presiding officer." The said declaration, in this Act referred to as " the declaration of inability to read," shall be made by the voter at the time of polling, before the presiding officer, who shall attest it in the form hereinafter mentioned, and no fee, stamp, or other payment shall be charged in respect of such declaration, and the said declaration shall be given to the presiding officer at the time of voting. 27. If a person, representing himself to be a particular elector named on the register, applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions and taking the oath permitted by law to be asked of and to be administered to voters at the time of polling, be entitled to mark a ballot paper in the same manner as any other voter, but the ballot paper (in this Act called a tendered ballot paper) shall be of a colour differing from the other ballot papers, and, instead of being put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer. And the name of the voter and his number on the register shall be entered on a list, in this Act called the tendered votes list. The form of oath will be fonnd in Division III. p. 285. The questions will be found in sect. 59 of the Municipal Corporations Act, 1882, p. 97. 28. A voter who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper, may, on delivering to the presiding officer the ballot paper so inad- vertently dealt with, and proving the fact of the inadvertence to the satisfaction of the presiding officer, obtain another ballot paper in the place of the ballot paper so delivered up (in this Act called a spoilt ballot paper), and the spoilt ballot paper shall be immediately cancelled. ■ 29. The presiding officer of each station, as soon as practicable after the close of the poll, shall, in the presence of the agents of the 35 & 36 VICT. c. 33. 427 Schedule candidates, make up into separate packets sealed with his own seal Appendix, and the seals of such agents of the candidates as desire to affix their seals, — (1.) Each ballot box in use at his station, unopened, but with the key attached ; and (2.) The unused and spoilt ballot papers, placed together ; and (3.) The tendered ballot papers ; and (4.) The marked copies of the register of voters, and the counter- foils of the ballot papers ; and (5.) The tendered votes list, and the list of votes marked by the presiding officer, and a stutenient of the number of the voters whose votes are so marked by the presiding officer under the heads " physical incapacity," " Jews," and " un- able to read," and the declarations of inability to read ; and shall deliver such packets to the returning officer. The markeJ copies of the register of voters should be enclosed in a separate packet, and the counterfoils of tlie ballot papers in a second separate packet, and then both these separate packets should be enclosed iu a third separate packet. (See In re Felersfield Election Petition, Stowe v. JolliJTe, L. K. 9 U. D. US.) 30. The packets shall be accompanied by a statement made by such presiding officer, showing the number of ballot papers entrusted to him, and accounting for them under the heads of ballot papers in the ballot box, unused, spoilt, and tendered ballot papers, which statement is in this Act referred to as the ballot paper account. Counting Votea. 31. The candidates may respectively appoint agents to attend the Counting counting of the votes. votes. 32. The returning officer shall make arrangements for counting the votes in the presence of the agents of the candidates as soon as practicable after the close of the poll, and shall give to the agents of the candidates ai)pointed to attend at the counting of the votes notice in writing of the time and place at v/hich he will begin to count the same. 33. The returning officer, his assistants and clerks, and the agents of the candidates, and no other person, except with the sanction of the returning othcer, may be present at the counting of the votes. 34. Before the returning officer proceeds to count the votes, he shall in the presence of the agents of the candidates, open each ballot box, and, taking out the papers therein, shall count and record the number thereof, and then mix ttigethcr the whole of the ballot papers contained in the ballot boxes. The returning officer, while 428 APPENDIX. Schedules. Appendix, counting and recording the number of ballot papers and counting the votes, shall keep the ballot papers with their faces upwards, and take all proper precautions for preventing any person from seeing the numbers printed on the backs of such papers. 35. The returning officer shall, so far as practicable, proceed con- tinuously with counting the votes, allowing only time for refresh- ment, and excluding (except so far as he and the agents otherwise agree) the hours between seven o'clock at night and nine o'clock on the succeedmg morning. During the excluded time the returning officer shall place the ballot papers and other documents relating to the election under his own seal and the seals of such of the agents of the candidates as desire to affix their seals, and shall otherwise take proper precautions for the security of such papers and docu- ments. 36. The returning officer shall endorse "rejected" on any ballot paper which he may reject as invalid, and shall add to the endorse- ment "rejection objected to," if an objection be in fact made by any agent to his decision. The returning officer shall report [to the clerk of the crovm in chancery] the number of ballot papers rejected and not counted by him under the several heads of-— 1. Want of official mark ; 2. Voting for more candidates than entitled to ; 3. Writing or mark by which voter could be identified ; 4. Unmarked or void for uncertainty ; and shall on request allow any agents of the candidates, before such report is sent, to copy it. No return is to be made to the clerk of the crown in a municipal election. (See Municipal Corporations Act, 1882, Schedule 3, Part III. (6). See Schedule 1. Part II. (6) of this Act.) Documents which, in the case of a parliamentary election are to be forwarded to the clerk of the crown, are to be delivered to the town clerk in a municipal election. (See Part II. of this Act.) 37. Upon the completion of the counting, the returning officer shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or marked copy of the register of voters and counterfoils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded by him as aforesaid, and the unused and spoilt ballot papers in his possession and the tendered votes list, and shall re-seal each sealed packet after exami- nation. The returning officer shall report to the [clerk of the crovm in chancerij] the result of such verification, and shall, on request, allow any agents of the candidates, before such report is sent, to copy it. 35 & 36 VICT. c. 33. 429 38. Lastly, the returuiiig ollicer .shall ionvard to the [clerk of the Appendix. crown in cha,)rery] (in iiiaiuior in which the poll books are by any _ , , , existing,' euactiiii'iit rrquinil to be forwarded to such clerk, or as near thereto as circumstances admit) all the packets of Itallot papers in his possession, together with tlie said reports, the ballot paper accounts, tendered votes lists, lists of votes marked by the presidinc,' officer^ statements relating thereto, declarations of inability to read, and packets of counterfoils, and marked copies of registers, sent by each presiding olhcer, endorsing on each packet a descrijition of its contents and the date of the election to which they relate, and the name of the county or borough for which such election was held ; and the term poll book in any such enactment shall be construed to include any document forwarded in pursuance of this rule. 39. The [cleric of the crmvn] shall retain for a year all documents relating to an election forwarded to him in pursuance of this Act by a returning oflicer, and then, unless otherwise directed by an order of the House of Commons, or of one of Her Majesty's superior courts, shall cause them to be destroyed. In the above Rules 37, 38, and 39, the town clerk is substituted for the clerk of the crown in chancery by Rule 64 (S) of this Act. 40. No person shall be allowed to inspect any rejected ballot papers in the custody of the [clerk of the crown in chancery], except under the order of the House of Commons or under the order of one of Her Majesty's superior courts, to be granted by such court on being satisfied by evidence on oath that the inspection or production of such ballot papers is requii'ed for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of a petition questioning an election or return ; and any such order for the inspection or production of ballot papers may be made subject to such conditions as to persons, time, place, and mode of inspection or production as the house or court making the same may think expedient, and shall be obeyed by the [clerk of the crown in chancery]. Any power given to a coiul by this rule may be exercised by any judge of such court at chambers. By Rule 64 (a) of this Act a county court judge has jurisdiction, with an appeal, as in other eases in the county court. For " clerk of the crown in chancery " read " town clerk." 41. No person shall, except by order of the House of Commons or any tribunal having cognizance of petitions complaining of undue returns or undue elections, open the sealed packet of counterfoils after the same has been once sealed up, or be allowed to inspect any counted ballot papers in the custody of the [clerk of the crown in chaiiccry;] such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the house 430 APPENDIX. Appendix, or tribunal maldng the order may think expedient ; provided that q , , , on making and carrying into effect any such order, care shall be taken that the mode in which any particular elector has voted shall not be discovered until he has been proved to have voted, and his vote has been declared by a competent court to be invalid. For " clerk of the croMii in chancery " read " town clerk," In a municipal election the county court has juriediction to make the order instead of the House of Commons. 42. All documents forwarded by a returning officer in pursuance of this Act to the [clerk of the crown in chancery,] other than ballot papers and counterfoils, shall be open to public inspection at such time and under such regulations as may be prescribed by the [clerk of the crown in chancery^ with the consent of the speaker of the House of Commons, and the clerk of the crown shall supply copies of or extracts from the said documents to any person demanding the same, on payment of such fees and subject to such regulations as may be sanctioned by the Treasury. For " clerk of the crown in chancery " read " town clerk ; " but the regulations for the inspection of documents are to be made by the town council. (Rule 64 of this Act.) 43. Where an order is made for the production by the [clerk of the croion in chancery] of any document in his possession relating to any specified election, the production by such clerk or his agent of the document ordered, in such manner as may be directed by such order, or by a rule of the court having power to make such order, shall be conclusive evidence that such document relates to the specified election ; and any endorsement appearing on any packet of ballot papers produced by such clerk of the crown or his agent shall be evidence of such papers being what they are stated to be by the endorsement. The production from proj^er custody of a ballot paper purporting to have been used at any election, and of a counterfoil marked with the same printed number and having a number marked thereon in writing, shall be prima facie evidence that the person - who voted by such ballot paper was the person who at the time of such election had affixed to his name in the register of voters at such election the same number as the number -tt-ritten on such counterfoil. General Provisions. Rule 44 refers only to parliamentary elections. 45. The returning officer shall, as soon as possible, give public notice of the names of the candidates elected, and, in the case of a contested election, of the total number of votes given for each candi- date, whether elected or not. 35 & .36 vioT. c. 33. 431 46. Where the returning officer is retjuired or authorized by thi.^ Appendix. Act to give any public notice, he shall carry such requirements i,^~~T", into effect by advertisements, placards, handbills, or such other ^ means as he thinks best calculated to afford information to the electors. 47. The returning officer may, if he think fit, preside at any poll- ing station, and the provisions of this Act relating to a presiding officer shall apply to such returning officer with the necessary modifi- cations as to things to be done by the returning officer to the presiding officer, or the presiding officer to the returning officer. 48. In the case of a contested election for any county or borough, the returning officer may, in addition to any clerks, appoint com- petent persons to assist him in counting the votes. 49. No person shall be appointed by a returning officer for the ])urpose3 of an election who has been employed by any other person in or about the election. 50. The presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorized to do by this Act at a polling station except ordering the arrest, exclusion, or ejection from the polling station of any person. 51. A candidate may himself undertake the duties which any agent of his if appointed might have undertaken, or may assist his agent in the performance of such duties, and may be present at any place at which his agent may, in pursuance of this Act, attend. 52. The name and address of every agent of a candidate appointed to attend the counting of the votes shall be transmitted to the return- ing officer one clear day at the least before the opening of the poll ; and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, notwithstanding that his appointment may be other- wise valid, and any notice required to be given to an agent by the returning officer may be delivered at or sent by post to such address. Sundays, &c., are not to be counted. (See Rule 56, post.) 53. If any person appointed an agent by a candidate for the pur- poses of attending at the polling station or at the counting of the votes dies, or becomes incapable of acting during the time of the election, the candirinting Ballot Paper. Nothing is to be printed on the ballot paper except in accordance with this schedule. The surname of each candidate, and if there are two or more candidates of the same surname, also the other names of such candi- dates, shall be printed in large characters, as shown in the form, and the names, addi'esses and descriptions, and the number on the back of the paper shall be printed in small characters. 35 & 36 VICT. c. 33. 435 Schedules. Form of Directions for the Guidance of the Voter in voting, which shall Appendix. he ininted in conspicuous characters, and placarded outside every Polling Station and in every compartment of every Polling Station. The voter may vote for candidate . The voter -will go into one of the compartments, and, with the pencil provided in the compartment, place a cross on the right hand side, opposite the name of each candidate for whom he votes, thus X The voter will then fold up the ballot paper so as to show the official mark on the back, and leaving the comjiartment will, without showing the front of the paper to any person, show the official mark on the back to the presiding officer, and then, in the presence of the presiding officer, put the paper into the ballot box, and forthwith quit the polling station. If the voter inadvertently spoils a ballot paper, he can return it to the officer, who will, if satisfied of such inadvertence, give him another paper. If the voter votes for more than candidate , or places any mark on the paper by which he may be afterwards identified, his ballot paper will be void, and will not be coimted. If the voter takes a ballot paper out of the polling station, or deposits in the ballot box any other paper than the one given him by the officer, he will be guilty of a misdemeanor, and be subject to imprisonment for any term not exceeding six months, with or without hard labour. Note. — These directions shall be illustrated by examples of the ballot paper. Form of Statutory Declaration of Secrecy. I solemly promise and declare, that I will not at this election for do anything forbidden by section four of the Ballot Act, 1872, which has been read to me. Note. — The section must be read to the declarant by the person taking the declaration- Form of Declaration of inability to read. I, A.B., of , being numbered on the register of voters for the county [or borough] of , do hereby declai-e that I am imable to read. , day of , 2f2 A.B., his mark. 436 APPENDIX. Schedules. Appendix. I, the undersigned, being the presiding officer for the polling station for the county [or borough] of , do hereby certify, that the above declaration, having been first read to the above-named A.B., was signed by him in my presence with his mark. Signed, CD., Presiding officer for polling station day of for the county [or borough] of Regulations for inspection of documents. REGULATIONS FOR THE INSPECTION OF DOCUMENTS AND FOR THE FEES FOR THE SUPPLY OF COPIES TO BE MADE BY A TOWN COUNCIL. Borough of N. The Ballot Act, 1872. Regulations for the Inspection of Documents. We, the mayor, aldermen, and burgesses of the borough of N., acting by the conncil, do hereby by virtue of " The Ballot Act, 1872," prescribe the following regulations for the inspection of docu- ments in the custody of the town clerk, and for the fees for the supply of copies of documents of which copies are directed to be sujiplied, 1. The documents in the custody of the town clerk, under the Ballot Act, 1872 (other than ballot papers and counterfoils), shall be open to public inspection in the manner hereinafter mentioned. 2. Any person desiring to inspect such documents shall give notice thereof in writing to the town clerk, and state therein an address in the borough to which a reply may be sent. 3. On the receipt of any such notice the town clerk shall, within one day, give notice in writing making an appointment for the inspection either at the town hall or at his office within two days after the receipt of the notice by him. 4. The town clerk shall also give notice in writing of the appoint- ment to the mayor, or in his illness or absence to the deputy mayor, either of whom if unable to attend may request any member of the town council to do so on his behalf. 5. The inspection shall take place between the hours of 10 a.m. and 4 p.m. 6. The sealed packets of wliich inspection may be desired shall be opened, and after inspection shall be sealed up again, in the presence of the mayor, the deputy mayor, or the member of the town council attending the inspection. 7. The person making the inspection shall not be entitled to take copies of any documents at the time, but he may before the packets 35 & 36 viOT. 0. 33. 437 are resealed demand to be furnished with copies of any of the docu- Appendix, ments inspected by him, in which case the sealing of the packets in q i^ 7~-, which such documents were contained shall be postponed until the copies have been made, and the packet shall be resealed as soon as practicable by the town clerk. 8. Any person may make a request in writing to the town clerk to be furnished with copies of any such documents, either with or without having made an inspection thereof : and the town clerk on obtaining a written authority from the mayor, or in his illness or absence from the deputy mayor for the time being, shall open the necessary packets, supply such copies with all despatch, and forth- with reseal the packets. 9. No packets opened under these regulations shall be resealed without a memorandum in -winting, signed by the town clerk, being inserted therein on which shall be stated : — a. The date of opening ; b. The names of the person inspecting (if any) ; c. The documents (if any) of which copies were taken, and to whom they were supplied ; and d. The date of the packets being resealed. 10. There shall be paid to the town clerk by the person making any such inspection a sum of one guinea for each day or part of a day during which such inspection shall last, as a remuneration for the duties imposed on him by these regulations. 11. The town council may at any time order any packets to be opened and resealed from time to time for such purposes and in such manner as they shall determine and prescribe in each case. 12. The town clerk is authorized to charge any sum not exceeding twopence per folio of seventy-two words for copies of documents made by him in accordance with these regulations, such charge to cover the cost of all necessary forms and paper used for that purpose. Given under our corporate seal this day of one thousand eight hundred I hereby consent to the foregoing regulations prescribed by the town council of the borough of N., for the inspection of documents and fees for the supply of copies of documents, of which copies are directed to be supplied under the provisions of sect. 64 (sub-sect, b.) of schedule 1 of the Act 35 tSc 36 Vict. c. 33. (Signed) Home Office, February, 18 . 438 Appendix. Bribery de- fined. APPENDIX. COREUPT PRACTICES. The Coreupt Practices Prevention Act, 1854. 17 & 18 VICT. Cap. 102. An Act to consolidate and amend the Laivs relating to Bribery, Treating, and tindue Inflxience at Elections of Members of Parliament. [lOth August, 1854.] Whereas the laws now in force for preventing corrupt prac- tices in the election of members to serve in Parliament have been found insufficient : and whereas it is expedient to consoli- date and amend such laws, and to make further provision for securing the freedom of such elections : Sect. 1 is of no practical importance, and is therefore omitted. The 77th section of the Municipal Corporations Act, 1882, makes bribery, treating, undue influence, and personation include respectively anything done at or with respect to a municipal election, which if done before, at, or after, or with respect to a parliamentai-y election, would make the person doing the same liable to any penalty, punishment, or disqualification for bribery and treating at a parliamentary election. 2. The following persons shall be deemed guilty of bribery, and shall be punishable accordingly : 1. Every person who shall, directly or indirectly, by himself, or by any other person on his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure or to endeavour to procure, any money or valuable con- sideration to or for any voter, or to or for any person on behalf of any voter, or to or for any other person m order to induce any voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid, on account of such voter having voted or refrained from voting at any election : 2. Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give or procure, or agree to give or procure, or offer, promise, or promise to procure or to endeavour to procure, any ofiice, place, or employment to or for any voter, or to or for any person on behalf of any voter, or to or for aay other person, in order to induce such voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid, on account of any voter having voted or refrained from voting at any election ; 17 & 18 ncT. 0. 102. 439 8. Every person who shall, directly or inrlirectly, by himsr-lf Appendix, or by any other person on his behalf, make any such gift, ^^^^ 2, loan, offer, promise, procurement, or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in Parliament, or the vote of any voter at any election : 4. Every person who shall, upon or in consequence of any such gift, loan, offer, promise, procurement, or agreement, procure or engage, promise, or endeavour to procure the return of any person to serve in Parliament, or the vote of any voter at any election : 5. Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person with the intent that such money or any part thereof shall bo expended in bribery at any election, or who shall knowingly pay or cause to be paid any money to any person in dis- charge or repayment of any money wholly or in part expended in bribery at any election : And any person so offending shall be guilty of a misdemeanor, Penalty. and in Scotland of an offence punishable by fine and imprison- ment, and shall also be liable to forfeit the sum of one hundred pounds to any person who shall sue for the same, together with full costs of suit : provided always, that the aforesaid enactment Proviso, shall not extend or be construed to extend to any money paid or agreed to be paid for or on account of any legal expenses bond fide incurred at or concerning any election. Bribery is an offence at common law. Lord Glenbervie's definition of bribery at common law is as follows : — " Wherever a person is bound by law to act without any view to his i)i-ivate emolument, and another, by a corrupt contract en phages such person, on condition of the payment or promise of money or other lucrative considera- tion, to act in a manner in wliich he shall ])rescribe, hoih parties are by such contract guilty of bribery." (2 Doug. 400.) 80 Lord :\rAXSFlELD, in Rcf). v. Vaughan, 4 Burr. 2501, says: " Wliorevcr it is a crime to take, it is a crime to give ; they are reciprocal. And in many cases, especially in bribery at elections to parliament, the attempt is a crime : it is complete on bis side who offers it." And it is clear that the offer of a bribe was always a misde- meanor, on the jirinciple that every attempt to commit a misdemeanor is itself a misdemeanor. (See Her/, v. Scofield, Cald. 397 ; Tieq. v. Johnaon, 2 Show ; Wade v. Brouffhton, 2 V. & T5.173.') And the asking for a bribe would seem for the same reason to be a misdemeanor also. (Rogers on Elections, 13th Ed., p. 347.) Where a person has been guilty of several acts of bribery at a municipal election, ho is liable to a penalty in respect nf each such act of biih,'ry. (Milne>i V. Bale; Millies v. ieo,'L. R. 10 C. P. 591 ; 44 L. J. C. P. 33(5 j 33 L. T. (N.s.) 174.) 440 APPENDIX. Appendix. Note s. 2. Bribery fur- ther defined. In that case Beett, J., said : " I think these different acts (of bribery) are so far distinct and separate oifences in kind, that to prove a person guilty of any one of them, evidence could not be given of the doing of any other of them. If a person were charged with any one such offence, I am of opinion that evidence of other such acts could not be admitted to show that he was guilty. They are by nature distinct and separate offences. The moment that one of them is committed the offence is complete, and the committal of any other of them would be a complete separate offence. ****** " The only sensible construction, in my opinion, is that a person guilty of one of such offences is guilty of one misdemeanor, and a person guUty of several of such offences is guilty of several misdemeanors." A vacancy having occurred in the representation of a city in Parliament, the respondent and two other candidates in the same political interest came forward as candidates. It was determined by such candidates to hold a test ballot to ascertain which of the three candidates should stand. The respondent was successful ; but his agents gave money and drink to voters to induce them to give their votes for the respondent in order to place him at the head of the test ballot, without, however, making any stipulation as to their votes at the election. It was held that the case was directly and distinctly within the third clause of this section. (Bristol Election Peti- tion, Brett V. Eolinson, L. E. 5 C. P. 503; 39 L. J. C. P. 265; 23 L. T. 188 ; 18 W. E. 866.) As to when a distribution of coals by a candidate by means of tickets signed for liim by his pohtical agent is bribery within the meaning of the above section, see Boston Election Petition, In re Malcolm v. Ingram, L. E. 9 C. P. 610; 43 L. J. C. P. 331; 31 L. T. 331. In the case of Simpson v. Yeend, L. E. 4 Q. B. 626 ; 38 L. J. Q. B. 313 ; 21 L. T. (n.s.) 56; 10 B. & S. 752, the defendant whilst soliciting a vote at an election of councillors, told the voter that he would be remunerated for what loss of time might occur by his going to vote. It was held that the transaction was bribery within the meaning of sub-section 1 of the above section, inasmuch as it amounted to an offer or a promise to procure or endeavour to procm-e money or valuable consideration for a vote in order to induce the voter to vote at an election. In order to disqualify a candidate from being registered as a voter by reason of personal bribery or bribery by an agent with his knowledge and consent, he must be found by the report of the election judge to have been so guilty. It is not enough that the judge states facts from which personal bribery or other corrupt practice might be infen-ed. {Grant v. Pagham {Overseers) 3 C. P. D. 80; 47 L. J. C. P. 59; 37 L. T. (if.s.) 404; 2 Hopw. & C. 384.) 3. The following persons shall also be deemed guilty of bribeiy and shall be punishable accordingly : 1. Every voter who shall, before or during any election, dii'ectly or indirectly, by himself or by any other person on his behalf, receive, agree, or contract for any money, gift, loan, or valuable consideration, office, place, or employ- ment, for himself or for any other person, for voting or agreeing to vote, or for refrainiag or agreeing to refrain from voting, at any election : 2. Every person who shall, after any election, directly or indirectly, by himself or by any other person on his behalf, 17 & 18 viOT. 0. 102. 441 receive any money or valuable consideration on account of Appendix. any person having voted or refrained from voting, or gggt o having induced any other person to vote or refrain from voting at any election : And any person so offending shall be guilty of a misdemeanor, and in Scotland of an offence punishable by fine and imprison- ment, and shall also be liable to forfeit the sum of ten pounds Penalty, to any person who shall sue for the same, together with full costs of suit. 4. Every candidate at an election, who shall corruptly by Treating de- himself or by or with any person, or by any other ways or means ^^*^* on his behalf, at any time, either before, during or after any election, directly or indirectly, give or provide, or cause to be given or provided, or shall be accessory to the giving or pro- viding, or shall pay, wholly or in part, any expenses incun-ed for any meat, drink, entertainment, or provision to or for any person, in order to be elected, or for being elected, or for the purpose of corruptly influencing such person or any other person to give or refrain from giving his vote at such election, or on account of such person having voted or refrained from voting, or being about to vote or refrain from voting, at such election, shall be deemed guilty of the offence of treating, and shall forfeit the sum of fifty pounds to any person who shall sue for Penalty, the same, "udth full costs of suit ; and every voter who shall Voters accept- corruptly accept or take any such meat, drink, entertainment, J"? *^'^''^'''"S *° or provision, shall be incapable of voting at such election, and of voting, his vote, if given, shall be utterly void and of none efi'ect. In the Beivdley Case, 1 O'M. & H. 16, BlaCkbtien, J., said: "Looking at those words, it is plain that those who prepared the Act have endeavoured to take in almost everything that possihly could he taken in, hut they have very properly and wisely governed it all hy the word ' corruptly.' As to this word 'corruptly,' the true construction of the Act is that which was stated by Mr. Justice WlXLES, in gi%ang his opinion in the House of Lords in the case Cooper v. Slade (6 H. L. Cas. 746; 27 L. J. Q. B. 153; 6 E. & B. 417), namely, that ' corruptly ' there does not mean wickedly, or immorally, or dishonestly, or anything of that sort, but with the object and intention of doing that which the Legislature plainly means to forbid. In fact, giving meat or drink is treating when the person who gives it has an intention of treating — not otherwise, and in all cases where there is any CNadence to show that meat or drink has been given, it is a question of fact for the judge whether the intention is made out hy the evidence, which in every individual case must stand on its own grounds, silthough each indi- vidual case may be a mere feather's weight by itself, and so small that one could not act upon it, yet if there is a large number of cases, a large number of sHght cases will together make a strong one ; and consequently, it must always be a very important iuquli'y what was the scale, the amouut 442 APPENDIX. AppendlXi and extent to which it was done. In considering what is corrupt treating and what is not, we must look broadly to the common sense of the thing. Note S. 4. There is an old legal maxim, ' Inter apices juris summa injuria.' To go by the strict letter of the law often would produce a very grave wrong. If we were to say an election was void upon a single case of that sort, we should be going to the ' apices juris,' and the result would be ' summa injuria.' Therefore the inquiry must be as to the extent and amount of such cases." In the Wallingford Case, 1 O'M. & H. 59, Blackbttex, J., said : " The statute does not say that it shall depend upon the amount of drink. The smallest quantity given with the intention will avoid the election. But when we are considering as a matter of fact the evidence, we must, as a matter of common sense, see on what scale and to what extent it was done. " Whenever also the intention is by such means to gain popularity, and thereby to affect the election, or if it be that persons are afraid that if they do not provide entertainment and drink to secure the strong interest of the publicans, and of the persons who like drink, whenever they can get it for nothing, they will become unpopular, and they therefore provide it in order to afPect the election, — then I think that it is corrupt treating." Where, on the other hand, the refreshment was stri'ctly confined to those who were actually engaged in the work of the election, and were knowTi supporters of the sitting member, his committee-men in fact, the election was upheld. {Bradford, 1 O'M. & H. 33.) As to treating after an election, see the Brecon Case, 2 O'M. & H. 43, in which Mr. Justice Lush said: "I do not agree that treating with a view to attach the voters to the candidate and secure their future support is within this branch of the section. Treating for such a purpose may peril ^G; future election, which it is designed to influence, but we are now dealing with a past election. Nor can it be the merely giving an entertainment as an expression of gratitude, or by way of rewarding the voters. ; " The treating which the Act calls corrupt as regards a bygone election, must be connected with something which preceded the election, must be the complement of something done or existing hefore, and calculated to influence the voter, while the votetuas in his power. An invitation given hefore to an entertainment to take place afterwards, or a practice of giving entertain- ments after an election, which it may be supposed the voters would calculate on, would, if followed up by the treat afterwards, give to it the character of corrupt treating. But when the entertainment M'as, as in this case, not only not mentioned, but not even thought of till after the election was over, no such entertainment ever having been given before, it cannot in my judgment be deemed corrupt treating within the meaning of the Act." It would be otherwise where a large amount of beer had been drunk and paid for by the sitting member, although subsequently to the election, where the broad and obvious state of the whole matter was, that it was expected and understood, although not expressed in absolute words, that a large sum of money would be paid for beer. (The Poole Case, 2 O'M. & H. 124.) In the Kidderminster Case, 2 O'M. & H. 170, the sitting member before the polling promised' an entertainment after the election. In pursuance of his promise he prepared to give the entertainment ; subsequently, under advice, he countermanded the entertainment, but he had paid a large sum for expenses incurred in the preparation. The election judge avoided the election. The corrupt payment of rates is punishable as bribery by sect. 49 of the 80 & 31 Vict. c. 102, which enacts that— Any pers(m, either directly or indirectly, corruptly paying any rate on behalf of any ratepayer for the purpose of enabling him to be registered as a voter, thereby to influence his vote at any future election, and any candi- 17 & 18 VICT. 0. 102. 443 date or other person, either directly or indirectly, paying any rate on hehalf Appendix. of any voter for the purpose of inducing him to vote or I'cfrain from votinp, shall "he f?uilty of hrihory, and ho pnnishahle accordingly ; and any person Note S. 4. on whoso behalf and with whose privity any such payment as in this section Is mentioned is made shall also be guilty of bribery, and punishable accordingly. 5. Every person who shall, directly or indirectly, by himself, Undue or by any other person on his behalf, make use of or threaten to defined, make use of, any force, violence, or restraint, or inflict or threaten the infliction, by himself or by or through any other person, of any injury, damage, harm, or loss, or in any other manner practise intimidation upon or against any pcrsou in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who shall, by abduction, duress, or any fraudulent device or contrivance, impede, prevent, or otherwise interfere with the free exercise of the franchise of any voter, or shall thereby compel, induce, or prevail upon any voter, either to give or to refrain from giving his vote at any election, shall be deemed to have committed the offence of undue influence, and shall be guilty of a misdemeanor, and in Scotland of an offence Penalty, punishable by fine or imprisonment, and shall also be liable to forfeit the sum of fifty pounds to any person who shall sue for the same, together with full costs of suit. In the Lichfield Case, 1 O'M. k H. 25, Mr. .Justice Willes, in deliver- ing judgment, said : " The proper definition of that undue influence which is dealt with [by this section] is using any violence or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of a voter, so as either to compel or frighten him into voting, or abstaining from voting, otherwise than he freely wills." As to what amount of violence will avoid an election, see Salford, 1 O'M. & H. 141; Nottingham, ibid, 2-i5; Stafford, ibid, 229; Drogheda, ibid, 255; North Durham, 2 O'M. & H. 15fi; Sligo, 1 O'M. & H. 300. As to what will amount to injury or the threat thereof — by landlords, see Windsor, 1 O'M. & H. 6; Galmay, 2 O'M. & H. 54; North Norfolk, 1 O'M. & H. 237;— by employers, see the Lichfield Case, 1 O'M. & H. 28; Westburi/, ibid, 50; Blackburn, ibid, 203; — by withdrawal of custom, see North hurhain, 2 O'M. & H. 159 ; North Norfolk, supra ; — by giving up sitting in chapel, see Northallerton, 1 O'M. & H. 168; — by Roman Catholic priest, see Sliy justices, third and fourth year of Her Majesty and this Act ; and the ex- JjXf^lf ^ pression "the promoters of the undertaking," in the said Lands Act. Clauses Consolidation Act, shall for the purposes of such incor- poration mean the justices of the peace of any county in general 3k3 500 APPENDIX. Appendix, or quarter sessions assembled ; and the powers of providing Oppi. no station houses and strong rooms contained in sections twelve and thirteen of the said Act of the third and fourth years of Her Majesty and this Act shall extend to authorize the providing of such station houses and strong rooms within any borough lying within or adjoining to the county for which the same may be provided. The 12th and 13th sections of the 3 & 4 Vict. c. 88, are as follow : 12. And be it enacted, that it shall be lawful for the justices in general or quarter session assembled of any county in which or in any part of which constables shall be appointed tinder the tirst-recited Act, if they think fit, to order that station houses and strong rooms, or either of them, for the temporary confinement of persons taken into custody by the constables, be provided in such places as the said justices shall think fit, and upon such plan as shall be approved by one of Her Majesty's principal Secretaries of State, aud for that purpose to purchase and liold lands and tenenents, or to appropriate to that purpose any lands or tenements belonging to the county, which are not needed for the purpose to which they were applied or intended to be applied before such appropriation ; and the expense of build- ing, hiring, or otherwise providing, repairing, and furnishing such station houses and strong rooms, shall be defrayed out of the police rates. 13. And be it enacted, that it shall be lawful for the justices in general or quarter session assembled to borrow money for the purpose of pm-chasing any such lands and tenements, or of building any such station houses and strong rooms, and to charge the future police rates with the amount of the loan, and with interest thereon : provided always, that any money borrowed for such purpose shall be repaid by yearly instalments, not less than one twentieth part of the sum borrowed, with interest on the same, in any one year. Interpre- tation of certain terms. 30. The word "county" shall in this Act have the same meaning as is assigned to such word in the said Act of the third and fourth years of Her Majesty, except as to the soke or liberty of Peterborough, in the county of Northampton, which for all purposes of this and the several recited Acts shall be deemed and taken to be a county of itself; and the several pro- visions in this Act and the said recited Acts shall apply and operate in, for, and concerning the said soke or liberty accord- ingly ; and the word " borough " shall mean any city, borough, or place incorporated under the provisions of the said Act of the fifth and sixth years of King William the Fourth, or which has otherwise become subject to the provisions of the same Act; and every part of the cinque ports, two ancient towns of Winchelsea and Rye, and their several members and liberties, which is not within the municipal boundaries of a place named in one of the Schedules (A.) and (B.) to the last-mentioned Act, 22 & 23 viOT. 0. 32. 501 shall for the purposes of the said Acts of Her Majesty and this Appendix, Act bo deemed to form part of the county in which the same is gg^^O situate, and shall be dealt with, under the said Acts of Her Majesty and this Act, as a liberty which, under the said Acts of Her Majesty, forms part of a county, notwithstanding it may bo a member or liberty of a place named in one of the said schedules. 31. The said Acts of the second and third and of the third 2 & 3 Vict, and fourth years of Her Majesty and this Act shall be construed ^f.^ yA together as one Act. c. 88, and this Act to be as one. 22 & 23 VICT. Cap. 32. An Act to amend the Law concernimj the Police in Counties and BoroiKjhs in England and Wales. [13th August, 1859.] 2. No county constable shall, as such constable, be required County con- to act in any borough having a separate police establishment, ^^^ required to except in execution of warrants of justices of such county, or act in any by the order of his chief constable or superintendent ; and in all "o^ough, &c. cases of special emergency the chief constable or superinten- dent, when requu'ed so to do by the watch committee of any borough having a separate police establishment, shall have power to direct the county constables to act within such borough ; and no constable of any borough having a separate police establishment shall as such constable be requii'ed to act out of his borough, except in execution of warrants of justices of such borough, or in pursuance of du-ections from the watch committee in case of special emergency. 3. No chief or other constable already appointed or hereafter County con- to be appointed for any county, under the Act of the session ^.J^j ?* certain holden in the second and third years of Her Majesty, chapter municipal ninety-three, or the said Act of the third and fourth years of Her elections, kc. Majesty, or the said Act of the nineteenth and twentieth years of Her Majesty, shall during the time ho continues to be such constable be capable of giving his vote for the election of any person to any municipal office in any borough within such 502 APPENDIX. Appendix, county, or in any other borough in which such constable has Sect 3 authority ; nor shall any such constable, by word, message, writing, or in other manner, endeavour to persuade any elector to give, or dissuade any elector from giving, his vote for the choice of any person to hold any municipal ofl&ce in such borough ; and if any such constable shall offend therein, he shall forfeit the sum of ten pounds, to be recovered in any court of competent jurisdiction, by any person who shall sue for the same within six months after the commission of the offence ; and one-half of the sum recovered shall be paid to the person suing for the same, and the other half to the treasurer of the county, to be by him applied for the purposes of the police of the county. Sect. 4 provides for the case of a constable appointed under 2 & 3 Vict, c. 93 ; 3 & 4 Vict. c. 88 ; or 19 & 20 Vict. c. 69, resigning or withdrawing without notice or leave. Chief con- stable and watch com- mittee em- powered to suspend con- stables. 26. The chief constable of any county police force, and the watch committee of any city, borough, district, or place, is and are hereby empowered to suspend any constable, within their respective jurisdiction, whom he or they shall think remiss or negligent in the discharge of his duty, or otherwise unfit for the same ; and the said chief constable or watch committee is and are hereby also empowered, at his or their discretion, to fine any such constable in a sum of money not exceeding one week's pay, and to reduce the said constable from a superior to an inferior rank, such fine and reduction in rank to be in addi- tion to any other punishment to which the said constable may be liable. The portion of this section omitted was repealed by the Stat. Law Rev. Act, 1875. Similar provisions are contained in sect. 191 (4) of the Municipal Cor- porations Act, 1882. 22 & 23 VICT. c. 32. 503 Appendix. POLICE SUPERANNUATION AND GRATUITIES. 22 & 23 VICT. Cap. 32. An Act to amend the law concerninr/ the Police in Counties and Borouyhs in Eiifjland and Wales. [13th August, 1859.] Those clauses of this Act are here given which rehite only to the super- annuation of the police, or granting them gratuities. The other important sections will be found ante. 8. There shall be deducted from the pay of every constable Sect. 8. belonging to the police force established in any borough under Superannua- the Act of the Session holden in the fifth and sixth years of King ^g pro^'ided" William the Fourth, chapter seventy-six, a sum after such for constables, yearly rate as the council of the borough may direct, not ex- ceeding the rate of two pounds ten shillings in a hundred pounds for a year, which sum so deducted, and also the moneys accruing from stoppages from any of the said constables during sickness, and fines imposed on any of the said constables for misconduct, and from any portion of the fines imposed by any justice of the peace upon drunken persons, or for assaults upon police con- stables, and from moieties of fines and penalties awarded to informers (being police constables) on summary convictions as shall be directed by such justice to be paid for the benefit of this fund, and all moneys arising from the sale of worn or cast clothing supplied for the use of the said constables, shall from time to time be invested in such manner as the council may direct, and the interest and the dividend thereof, or so much of the same as shall not be required for the purposes hereinafter mentioned, shall be likewise invested in the like manner, and accumulate so as to form a superannuation fund, and shall be applied from time to time for payment of such superannuation or retiring allowances or gratuities as may be ordered by the watch committee, as hereinafter provided ; and the council shall guarantee the security of the superannuation fund of their borough, and make good out of the borough fund or the borough rates any deficiency which may arise in such superannuation fund from the default of any treasurer or other person intrusted with the custody or management thereof. The 5 & 6 Will 4, c. 76, has been repealed by the Municipal Corp'>rations Act, 1882, and the provisions of that statute are substituted for the repealed enactments (45 & 46 Vict c. 50, s. 242). 504 APPENDIX. Appendix. 9. It f5liall be lawful for the watch committee of any borough, Sect~9 "^^^^ ^^^ approbation of the council, to order that any of the Rates of allow- ^^^^ constables who may be worn out or otherwise disabled from ance from the infirmity of mind or body be superannuated, and receive there- said fund. upon, out of the superannuation fund, a yearly allowance, sub- ject to the following conditions, and not exceeding the following proportions (that is to say), if the constable has served with diligence and fidelity for fifteen years and less than twenty years, an annual sum not more than half his pay ; if for twenty years or upwards, an annual sum not more than two-thirds of his pay ; provided that if he be under sixty years of age it shall not be lawful to grant any such allowance unless upon the certificate of the chief or head constable that the constable to be superan- nuated is incapable from infirmity of mind or body to discharge the duties of his ofiice ; provided also, that if any constable be disabled by any wound or injury received in the actual execu- tion of the duty of his office, it shall be lawful to grant him any allowance not more than the whole of his pay ; but nothing herein contained shall be construed to entitle any constable absolutely to any superannuation allowance, or to prevent his being dismissed without superannuation allowance. This section has been amended by sect. 3 of 28 & 29 Vict. c. 35, post. Power to ^ 10. It shall be lawful for the watch committee of any les'tomca'i'- ^orough, if they think fit, with the approbation of the councU, citated con- and upon the recommendation of the chief or head constable, and stables who upon his certifying that any constable belonging to the police served fifteen fo^'ce of the borough who has not served so long as fifteen years years. is incapable from infirmity of mind or body to discharge the duties of his office, to order that such constable shall receive out of the superannuation fund such sum in gross as a gratuity upon his retirement as to the said watch committee may seem proper. This section has been amended by sect. 3 of 28 & 29 Vict. c. 35, post. Fees received 11. -^Y ^6 payable to any constable appointed for any by constables borough, for the performance of any act done in the execution to be mkl to ^^ ^^^ ^^^^ ^^ ^^^^ constable, shall be received in such manner the superan- as the watch committee, subject to the approbation of the nuation fund, council, may direct, and shall be paid over to the superannua- tion fund. ***** 22 & 23 VICT. c. 32. 505 13. Tlio superannuation fund created under this Act in any Appendix, borough shall vest in the treasurer of the borough, and such gg^,^ ■|^3_ treasurer shall keep a separate account of all sums of money by Superannua- him received and paid in respect of such superannuation fund or <^'0" f""*! to for superannuations, and of the several matters tor wliich such rough trea- sums have been received and paid, and all provisions concerning surer, the keeping, auditing, and publishing, and otherwise in relation to the accounts kept by such treasurer, under the said Act of the fifth and sixth years of Iving William the Fourth, shall be applied to the accounts kept under this enactment. ***** 15. Allowances heretofore granted to constables, or which Provision for might have been gi-anted to constables appointed pre\'ious to allowances the passing of this Act, under the said Act of the eleventh and heretofore twelfth years of Her Majesty, shall be paid from the superan- ^t'^j^^g^V nuation fund to be applicable under this Act ; and all constables under the now appointed in any borough in which the provisions of the repealed Act said last-mentioned Act are now in force shall be entitled to receive from the superannuation fund all such allowances, pay- able at such times, and with and under the same rights and conditions, as they would have been entitled to if this Act had not passed. The 11 & 12 Vict. c. 14 authorized the estahlishment of a horongh police superannuation fund. It was repealed by sect. 7 of 22 & 23 Vict. c. 32. 16. The periods of service during which constables have been How past subjected to deductions from their pay towards a superannuation services of fund under the said Act of the eleventh and twelfth years of Her gtahles^to be Majesty shall, in determining what superannuation allowances reckoned for may be granted to them, be reckoned and allowed to such con- f"^'^^?i"'^"^' stables, and in the case of constables permanently appointed in any borough for which no superannuation fund has been pro- vided, and from whose pay no such deduction has been paid, one 'half only of the respective periods of service of such con- stables before the passing of this Act shall be reckoned or allowed to such constables in determining what superannuation allowances may be gi'anted under this Act. 17. On the consolidation of the police of any borough with Provision for the police of any county, under the pronsions of the Act of the ^^^^ '^'^f^ °^ session holden in the thii'd and foui'th years of Her Majesty, 506 APPENDIX. Appendix, chapter elghty-eiglit, the superannuation allowance pre\nons1y Sect 17 gi'anted to any borough constable shall be charged on the of county and borough fund or the borough rates of the borough, and the borougrh police. superannuation allowance to be thereafter granted to any borough constable tranferred under such consolidation shall be charged upon the superannuation fund of the county ; and in determining the amount of any such allowance the period of service of any such constable in the borough shall be reckoned as if the same had been in the county police ; and this charge, and the disposal of the borough superannuation fund, shall form a part of the agreement to be entered into on the consolidation. The 18tli section empowers county justices to direct the police to keep order in assize courts. On promo- tion of con- stables from one force to another, half of past service may be reckoned as service in the latter force. 19. In order to provide the most meritorious and fit men to fill the superior ranks in the police, any constable or officer promoted from one force to another, either of a county or a borough, who shall have served in his last force for a period of seven years, shall, for the purposes of superannuation, reckon as service in the force to which he is promoted one half of the period of his previous service, provided that the promotion be made, in the case of a county constable, on the recommendation of the chief constable, with the sanction of the court of quarter sessions, and in the case of a borough constable on the recom- dation of the head constable of the borough, with the sanction of the council, and that in both cases the service be formally certi- fied at the time of promotion. General or quarter ses- sions of counties, &c., may grant gratuities to widows of constables dying in ser- vice. 20. The court of general or quarter sessions for any county, and the watch committee, subject to the approbation of the council for any borough, may, upon the i-ecommendation of the chief or head constable, grant a gratuity out of the superannua- tion fund of their county or borough to the widow of any con- stable who has died in the service, provided the sum so granted do not exceed the amount of one year's pay of such constable, and that he have contributed to the superannuation fund for a period of not less than three years. As to places 21. None of the provisions of this Act relating to a police with super- superannuation fund, or contributions thereto or payments funds under thereout, shall apply to any county, city, or borough in which a local Acts. 28 & 29 VTCT. c. 35. 507 police saperannnation fund has at the time of the passing of this Appendix. Act been established under the provisions of any local Act now og„+ oi force. <|C ifC ■(C >|« ^ 24. The court of general or quarter sessions for any county, Gratuities and the watch committee, subject to the approbation of the '"^y "^ , . [. , granted as council for any borough, may, upon the recommendation of the reward for chief constable of any county police force, or of the super- good service intendent of the police for the said borough, grant to any con- ^^ police °" stable in the said county or borough, out of the police rate or rates, &c. borough fund, a gratuity in money not exceeding three pounds, in respect of and as a reward for any meritorious act done by the said constable in the execution of his duty. 28 & 29 VICT. Cap. 35. An Act to amend the Law relatin/f to the Police Superannuation Funds in Counties and Borowjhs. [2nd June, 1865.] 1. This Act may be cited for all purposes as The Police Short title. Superannuation Act, 1865. 2. Throughout this Act the Acts hereinafter mentioned shall Short titles be distinguished by the following short titles ; that is to say, p [•^^*^^'^j^ The Act of the session of the third and fourth years of the reign of Her present Majesty, chapter eighty-eight, intituled An Act to amend the Act for the Establishment of County 3 & 4 Vict, and District Constables, by the short title of The Police °' ^^• Act, 1840: The Act of the session of the nineteenth and twentieth years lo k 20 Vict, of the reign of Her present Majesty, chapter sixty-nine, ''• ^^• intituled An Act to render more eflectual the Police in Counties and Boroughs in England and Wales, by the short title of The PoHce Act, 185G: The Act of the session of the twenty-second and twenty-third 22 & 23 Vict, years of the reign of Her present Majesty, chapter thirty- *'• ^'^- two, intituled An Act to amend the Law concerning the Police in Counties and Boroughs in England and Wales, by the short title of The Police Act, 1859. 508 APPENDIX. Appendix. Sect. 3. Amondmeut of sect. 11 of 3 & 4 Vict. c. 88, sect. 10 of 19 & 20 Vict. c. 69, and sects. 9 and 10 of 22 & 23 Vict. C.32. Head con- stable in- cluded in provisions of 22 & 23 Vict. c.32. 3. Whereas by The Police Act, 1840, and The Police Act, 1856, the justices of the county in general or quarter sessions assembled, and by The PoHce Act, 1859, the watch committee of a borough, with the approbation of the council, are authorized, subject to the conditions and in the events in the said Acts respectively mentioned, to grant out of the police superannuation funds to constables of the police forces of counties and boroughs who have served fifteen years superannuation or retiring allow- ances, and to constables who may not have served fifteen years sums in gross as gratuities : And whereas it is expedient that in some cases annual allowances for a limited time should be granted in lieu of allowances for Hfe or gratuities : Be it enacted, that where the said Acts authorize a grant to be made to a constable of a superannuation or retiring allowance or a gratuity, the authority having power to grant such allowance or gratuity may, in lieu thereof, grant an annual allowance for a limited time, to be fixed by such authority, and to be determined on the death of the annuitant before the expu'ation of the time fixed : pro- vided that where an allowance for a limited time is gi'anted to a constable who has served for fifteen years or more, it shall be granted on the same scale as if it were a permanent superannua- tion or retiring allowance, and if at the expiration of the limited time, the annuitant is incapable from infirmity of mind or body of discharging the duties of a constable, or has attained the age of sixty years, the allowance granted to him for a limited time only shall be continued during the remainder of his life ; pro- vided also, that where a person to whom an annual allowance for a limited time has been granted under this section is re- appointed to the oflice of constable, the time during which he was in receipt of such allowance shall, for thepurposesof any subsequent superannuation allowance, be reckoned as service in the force. 4. Whereas doubts are entertained whether the provisions of The Police Act, 1859, relating to a superannuation fund for con- stables belonging to a police force in boroughs, apply to a chief or head constable of the police force in such boroughs, by reason, amongst other things, that the said Act requires in certain cases the certificate or recommendation of the chief or, head constable before an allowance can be made or a gratuity given out of the said fund to a constable or his widow: And whereas it is expedient to remove the said doubts : Be it enacted, that the chief or head constable of the police force established in any 28 & 29 VICT. c. 35. 509 borough in which the superannuation fund is subject to the Appendix, regulations of tho Pohce Act, 1859, shall, from and after the ggj,^_ ^^ date of the passing of this Act, be deemed to be a constable of the said police force for all purposes relating to and within the meaning of this Act and all other Acts regulating such supei-- anuuation fund ; provided, first, that in the case of the said chief or head constable, or his widow, a resolution of the watch committee to the effect of the certificate or recommendation required to be given by the chief or head constable under The Police Act, 1859, shall be deemed to be equivalent to such cer- tificate or recommendation ; secondly, that the period of service dm'ing which any chief or head constable, either as such or as an inferior member of the force, may have been subjected to deductions from his pay towards such borough police super- annuation fund as afoi^esaid shall, in determining what allowance or gratuity is to be made to him, be reckoned and allowed to such chief or head constable ; thirdly, that one-half only of tho period of service (if any) during which such chief or head con- stable, cither as such or as an inferior member of the force, has been subjected to no such deductions as aforesaid from his pay towards such superamiuation fund as aforesaid shall be reckoned and allowed to such chief or head constable in determining what allowance or gi-atuity is to be made to him ; fourthly, that where such chief or head constable has been promoted from another poUce force whether county or borough, to the borough force out of the fund of which he claims superannuation, in such a case, if he has served not less than seven years either as chief, head, or other constable in such other force, his service in such other force to the extent of one-half thereof shall be deemed, for the purposes of superannuation, to be service in the latter force, and be reckoned accordingly, subject to the conditions on which service in the latter force may be reckoned under this section ; and subject also to the qualification that if at the time when he was promoted from the other force he was under the rank of chief or head constable, no part of his service in such other force shall be reckoned unless his promotion took place on the recommendation of the chief or head constable of the force from which he was promoted. 5. Nothing in this Act contained shall be construed to entitle Nothing to absolutely any chief or head constable or other constable, or his pr*-^vcnt dis- .j. ,. 1--11 ,-, missals with- widow, to any superannuation or retii'ing allowanco or gratuity, 510 Appendix, Sect. 5. out retiring allowances. Proviso. APPENDIX. or to prevent any such constable being dismissed without such allowance or gratuity : provided also, that nothing in this Act contained shall diminish or prejudice the allowances or rights of any chief or head constable or other constable given or reserved by the fifteenth section of The Police Act, 1859, BOKOUGH AND LOCAL COURTS OF RECORD ACT, 1872. 35 & 36 VICT. Cap. 86. An Act to amend the Law relating to Borough and other Local Courts of Record. [10th August, 1872.] The 184tli section of the Municipal Corporations Act, 1882, provides that nothing in that Act shall affect the Borough and Local Courts of Kecord Act, 1872. Whereas it is expedient to amend the law relating to borough and other local courts of record in England or Wales : be it therefore enacted, &c.: Short title. Her Majesty may direct certain enactments to extend to any local court of record. 1. This Act may be cited as " The Borough and Local Courts of Record Act, 1872." 2. It shall be lawful for Her Majesty from time to time by an order in council to direct that all or any part of the provisions of an Act passed in the first and second years of His late Majesty King William the Fourth, intituled " An Act to enable the Courts of Law to give relief against adverse claims made upon persons having no interest in the subject of such claims," and of the pro- visions set forth in the schedule to this Act, shall apply to all or any local court or courts of record in England or Wales ; and within one month after such order shall have been made and published in the London Gazette, such provisions shall extend and apply in manner directed by such order, and any such order may be in like manner from time to time altered and annulled ; and in and by such order Her Majesty may alter and modify 35 & 36 VICT. CAP. 86. 511 such provisions as are mentioned in the schedule, so as to adapt Appendix, the same to the constitution, jurisdiction, and procedure of any s^^2 such court or courts, and may direct by whom and at what time or times any powers and duties incident to the provisions applied under this Act shall and may be exercised with respect to matters in such court or courts, and may make any orders or regulations which may be deemed requisite for carrying mto operation in such court or coui'ts the provisions so applied. 3. It shall also be lawful for Her Majesty from time to time Her Majesty by such order as aforesaid to direct that any writ, order, sum- ^^"'^ J.-'^ft'^^^^g mons, or process issuing out of or made or taken in any such may be court of record may be served in such part or parts of England served as and Wales as shall be specified in such order. 4. Two or more courts may be held at the same time, either Two or for the trial of issues or for the ordinary proceedings of the ™°^.*^be°held court. at the same time. 5. Afl&davits made before any commissioner or other person Affidavits appointed or authorized to take affidavits, either in England or ^'^^'^ ^'^^^F® elsewhere, by the Lord High Chancellor, or by any of the supe- sioner, &c. rior courts, or by the judges thereof, may be used in the court, and the signature of any person purporting to be such commis- sioner, or to be a person so appointed or authorized as aforesaid, need not be verified. 6. In all cases where final judgment shall have been obtained Power to in any action brought in the court wherein the debt or damage ®^" ^^' ton does not exceed twenty pounds, exclusive of costs, and also in to bailiffs all cases where any rule or order shall be made by the judge for of county the payment of any sum of money, or any costs, charges, or expenses, not exceeding the sum of twenty pounds, such court shall be at liberty to send a writ or precept for the recovery of the same to the registrar of any county court within the juris- diction of which the defendant may possess any goods or chattels ; and the registrar of such county court shall stamp or seal the same, and thereupon the high bailiff of such county court shall execute the same in the same manner as if such writ or precept had been issued out of such county court, and such high bailifi" shall take all the usual and proper fees thereupon, and shall 513 APPENDIX. Appendix, make a retum of what he shall have done thereunder to the Sect. 6. bailiff or serjeant-at-mace of the court ; and in all matters done under such writ or precept, or in relation thereto, such high bailiff shall be under the du-ection and control of the judge of the county court of which he is high bailiff, as if such writ or precept had issued out of such county court : provided always, that the costs of more than one writ, precept, or warrant shall not be allowed against the execution debtor, unless by order of the judge of the said court. Judge may appoiut a deputy. 7. A judge of any court may appoint a deputy or assistant judge to execute any particular portion or duty of such judge, such appointment being under such orders, rules, and regulations as Her Majesty by order in Council may direct, provided such deputy shall be a barrister of not less than seven years standing. Proviso as to City of London Coui't. 8. Provided always, that in the City of London Court the same fees shall always be taken as are for the time being taken in the county courts : provided also, that the provisions in sect. 12 of the schedule shall not be applied to the City of London Court, or to the Court of Record for the hundred of Salford. THE MUNICIPAL CORPOEATIONS (BOROUGH) FUNDS ACT, 1872. 35 & 36 VICT. Cap. 91. 20 & 21 Vict. c. 50. An Act to authorize the application of Funds of Municipal Cor- porations and other governing bodies in certain cases. [10th August, 1872.] Whereas by the Act passed in the session holden in the twentieth and twenty-first years of the reign of Her Majesty, intituled An Act to amend the Acts concerning the Municipal Corporations, the trustees acting under any Act of Parliament for supplying any borough, or any district within or in certain cases beyond the limits of a borough, with water or gas, or 35 & 36^^CT. c. 91. 513 having powers for providing or maintaining any cemetery or Appendix, market in or for any borough, or otherwise improving the same, are authorized and empowered to transfer to the body corporate of such borough all their rights, estates, properties, and liabilities : And whereas by the ninety-second section of the Act passed in the session holden in the fifth and sixth years of the reign of King William the Fourth, chapter seventy-six, to provide for the regulation of Municipal Corporations in England and Wales, in each borough the annual proceeds of all property and here- ditaments belonging to the body corporate, and fines and rates levied in the borough, are directed to form the borough fund, and such fund is directed to be applied in the payment of certain salaries and certain expenses and the expenses neces- sarily incurred in carrying into effect the provisions of the said Act, and the surplus (if any) of such fund is directed to be applied, under the direction of the council, for the public benefit of the inhabitants and the improvement of the borough : And whereas the Public Health Act, 1848, the Local Govern- ment Act, 1858, and various local Acts of Parliament, have conferred powers of improving, cleansing, paving, lighting, and otherwise governing places or districts upon boards of health, commissioners, trustees, or other persons : And whereas it is expedient to extend the powers of govern- ing bodies so as to enable them to apply the borough or other funds under the control of such governing body towards such costs, charges, and expenses as may be incm-red for the pur- poses and in the manner herein provided : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : The 20 & 21 Vict. c. 50 is repealed by the Municipal Corporations Act. 1882, First Sched. Part I. The substituted provisions will be found in the 136th section of the last-named Act. The 5 & 6 Will. 4, c. 76, is repealed by the Municipal Corporations Act, 1882, First Sched. Part I. The substituted provisions will be found in sects. 139 and 140 of that Act. The Public Health Act, 1848, and the Local Government Act, 1858, are repealed by the Public Health Act, 1875 (38 & 39 Vict. c. 55). The sub- stitution of the provisions of that Act for the repealed Acts is effected by sect. 313. Where a town council has a surplus of the borontjli fund under sect. 143 of the Municipal Corporations Act, 1882, or where the council have under their control funds applicable, in tlieir discretion, fur the public benefit of the 21. 514 APPENDIX. Appendix, inhabitants, Parliament has allowed them to promote bills without com- plying with the requirements of this Act ; and the costs have been directed to be paid out of any fund under the control of the council not derived from rates. Itis in the power of Parliament to dispense with a compliance of the requirements of this Act, and to allow a bill to proceed providing for the payment of the costs in the usual way. It is assumed that where the difficulties of complying with the Act would be almost insurmountable, Parliament would take this coiu'se. Interpretation of terms. Costs of pro- moting or opposing parliamen- tary and other pro- ceedings for benefit of in- habitants to be charged on borough and local funds, except in certain cases. 1. The term " governing body " in this Act shall mean the council of any municipal borough, the board of health, local board, commissioners, trustees, or other body acting under any general or local Act of Parliament for the management, im- provement, cleansing, paving, lighting, and otherwise governing places or districts, and the term "district" shall mean the borough, place, township, or district within M'hich the governing body may for the time being have jurisdiction : provided, how- ever, that in the borough of Cambridge, in any matters affecting the constitution, power, or functions of the Board of Cambridge Improvement Commissioners, as defined in the several Acts of Parliament relating thereto, the term "governing body" shall mean such board of improvement commissioners, and not the council of the borough of Cambridge. 2. When in the judgment of a governing body in any district it is expedient for such governing body to promote or oppose any local and personal bill or bills in Parhament, or to prosecute or defend any legal proceedings necessary for the promotion or protection of the interests of the inhabitants of the district, it shall be lawful for such governing body to apply the borough fund, borough rate, or other the public funds or rates under the control of such governing body to the payment of the costs and expenses attending the same ; and when there are several funds or rates under the control of the governing body, such governing body shall determine out of which fund or funds, rate or rates, such expense shall be payable, and in what proportions : pro- vided that nothing in this Act contained shall authorize any governing body to promote any bill in Parhament for the estab- lishment of any gas or water works to compete with any existing gas or water company established under any Act of Parhament : provided that no powers contained in this clause shall apply in any case where the promotion of or opposition to a bill by a governing body has been decided by a com- 35 & 36 MOT. c. 91. 515 mittee of either House of Parliament to be unreasonable or Appendix. vexatious. c, ~"o Sect. 2. See the case of E. v. Mayor of Sheffield referred to in the Preface. 3. No payment to any member of a governing body for ^o payment acting as counsel or agent in promoting or opposing any such ^j "''J" ^^ bill shall be charged as aforesaid. body to be so It seems that this provision is needless. {See sect. 12 of the Municipal <^"^^S'^'l' Corporations Act, 1882.) 4. No expense in relation to promoting or opposing any bill Costs of pro- or bills in parliament shall be charged as aforesaid unless in- ™° '°^ *^^,.„ ^ . ° opposing bills curred in pursuance of a resolution of an absolute majority of to require the whole number of the governing body at a meeting of the sanction of governing body, after ten clear days notice by public advertise- meetings, ment of such meeting and of the purpose thereof in some local newspaper published or circulating in the district, such notice to be in addition to the ordinary notices required for summoning such meeting, nor unless such resolution shall have been pub- lished twice in some newspaper or newspapers circulating in the district, and shall have received, in respect of matters within the jurisdiction of the Local Government Board, the approval of such board, and in respect of other matters, the approval of one of Her Majesty's Secretaries of State, and in case of the promo- tion of a bill in Parliament no further expense shall be incui-red or charged as aforesaid after the deposit of the bill, unless the propriety of such promotion shall be confirmed by such absolute majority at a further special meeting to be held in pursuance of a similar notice not less than fourteen days after the deposit of the bill in Parliament : provided further, that no expense in promoting or opposing any bill in Parliament shall be charged as aforesaid unless such promotion or opposition shall have had the consent of the owners and ratepayers of that district, to be expressed by resolution in the manner provided in the Local Government Act (1858) for the adoption of that Act. By a local Act it was provided that certain works should not be con- structed without the jtrcvious consent of a majority of not less tlian two- thirds of the council in writing under their eoinmoii seal, lu a council consisting of sixteen members, at a meeting duly held, there were fifteen members present ; ten voted for the works. Held, that the term majority meant a majority present at a duly convened meeting, and that the resolu- tion was therefore duly passed. ( The Maqur of Dartmouth v. The Dart- mouth Harbour Commissioners, decided Chancery Division, by Chittt, J., February 13th, 1883, and coiilirmed on appeal bv Cotton and Ll>'DLEr, JJ., March 20th, 1883.) 'Zh2 516 APrENDlX. AiDpendix. Note s. 4. Proviso as to approval of Local Government Board, &c., to any such resolution. Costs to be examined. Power to direct local inquiry. Saving clause, See the Municipal Corporations Act, 1882, s. 22, and scli. II. r. 10. See also Rawlinson's Municipal Corporations Acts, 7th edition, pp. 43 and 44. The Local Government Act (1858) is repealed as mentioned in note to preamble. The provisions of the Public Health Act, 1875, are substituted for the provisions of the repealed Act by sect. 313 of the Public Health Act, 1875. 5. The approval of the Local Government Board or one of Her Majesty's principal Secretaries of State, as the case may be, shall not be given to any such resolution as aforesaid until the expiration of seven days after the second publication thereof, as provided by this Act, and in the meantime any ratepayer wdthin the district of the governing body may give notice in writing to the Local Government Board or Secretaiy of State objecting to such approval. Tlie Local Government Board requires a statutory declaration that all the preliminary steps have been taken. Where a poll had been improperly refused, and an application was made to the Queen's Bench for a mandamus to a mayor to take a poll, the court refused the mandamus as the applicant did not show a real interest in the matter. (E. v. Mayor of Feierhoroiigh, 44 L. J. Q. B. 85.) See In re the Birmingham Town Council {Times, March 21st, 1882), as to the method of conducting a poll under a local Act, and the right of rate- payers to a scratiny against the decision and discretion of the presiding officer. 6. All costs, charges, and expenses incurred under the pro- visions of this Act shall, before the same become chargeable, be examined and allowed by some person to be authorized by one of Her Majesty's principal Secretaries of State or by the Local Government Board, as the case may be. 7. The Local Government Board, or one of Her Majesty's principal Secretaries of State, shall have power to direct a local inquiry to be held upon any application under this Act, by any person or persons whom they may respectively nominate for the purpose, and to charge the costs and expenses of such local inquiry upon the governing body or the person by whom such application shall be made. 8. Nothing in this Act shall extend or be construed to alter or affect any special provision which is or shall be contained in any other Act for the payment of the costs, charges, and ex- penses intended to be provided for by this Act, or to take away or diminish any rights or powers now possessed or enjoyed by any governing body, or which are or shall be vested in or exer- ciseable by the inhabitants of any district under any general or special Act. 35 & 36 VICT. 0. 91. 517 This section saves the riplit of a corporjition to oppose a hill in Parlia- Appendix. niont attackiiif^ their existence as a corporation, or attenii)ting to take away their ri;,''hts, powers, and privileges. (Atlornei/ General v. Brecon, Note S. 8. L. R. 10 Ch. D. 204; 40 L. T. (x.s.) 52. Bower v. Sligo (Commissioners) 4 Ir. K. C. L. 489). 9. The one hundred and forty-second section of " The Towns Towns Im- Improvcmcnt Clauses Act, 1847," is hereby repealed so far as P^^'^^^^ent the same is inconsistent with the provisions of this Act. 1847, s. 142, repealed. 10. The provisions of this Act shall not extend to applica- Act not to tious for any bill in Parliament for any object which would, for extend to the time being, be attainable by provisional order. attainahle by provisional 11. This Act shall not extend or apply to Ireland or the city order. of London or the metropolitan area as defined by the Metropoli- Act not to tan Local Management Act, 1855. km^rthr A standing order (173a) of the House of Commons provides as follows: — metropolis. In the case of any bill promoted by or conferring powers on a municipal corporation or local board, improvement commissioners, town commis- sioners, or other local authority or public body having powers of local government or rating, the committee on the bill shall consider the clauses of the bill with reference to the following matters : (a.) Whether the bill gives powers relating to police or sanitary regula- tions in conflict with, deviation from, or excess of, the provisions of powers of the general law ; (b.) Wliether the bill gives powers which may be obtained by means of bye-laws made subject to the restrictions of general Acts already existing ; (c.) ^Vliether the bill assigns a period for repayment of any loan under the bill exceeding the term of sixty years, which term the com- mittee shall uot in any case allow to be exceeded, or any period disproportionate to the duration of the works to be executed or other objects of the loan ; (d.) Wliether the bill gives borrowing powers for purposes for which such powers already exist or may be obtained under general Acts, without subjecting the exercise of the powers under the bill to approval from time to time by the proper Government depart- ment. And the committee shall report specially to the House — In what manner any clauses relating to the several matters aforesaid have been dealt with by the committee; and Whether any rejiort from any Govei-nmcut department relative to the bill has been referred to the committee ; and If so, in what manner the recommeudations in that report have been dealt with by the committee ; and Any other circumstances of which, in the opinion of the committee, it is desirable that the House should be informed : And the report of the committee shall be printetl, and shall be circulated with the votes. The Acts under which costs on private bills are taxed are the 10 &. 11 Vict. c. 69 ; the 12 & 13 Vict. c. 78; and the 28 Vict c. 27. The 30 & 31 Vict. c. 136, empowers the courts of referees to award costs in certain cases. 518 APPENDIX. Appendix. PUBLIC WORKS LOANS ACT, 1875. 38 & 39 VICT. Cap. 89. This Act is referred to in sect. 120 of the Municipal Corporations Act^ 1882. 80 much of the Act only is set forth as seems of practical impor- tance to town councils. Preliminary. Short title. \^ This Act may be cited as the " Public Works Loans Act, 1875." Sects. 2 and 3 relate to commencement of Act and Isle of Man. Commis' sioners. Public Works Loan Commissioners. Constitution, 4, For the purpose of loans out of moneys issued in pur- Wo'rks t" suance of this Act, and for the purpose of the execution of this Act, and of any enactment passed or hereafter to be passed authorizing or referring to such loans, there shall be a body of commissioners (in this Act referred to as the Loan Commis- sioners), who may be styled the Public Works Loan Commis- sioners. ***;;: Poweri, &c., 5. With respect to the Loan Commissioners the following of commis- provisions shall have effect : sioners. /-. \ (1.) The Loan Commissioners may sue and be sued in the name of their secretary for the time being ; and no action or suit in law or equity brought or commenced by or against the said commissioners in the name of their secretary for the time being shall abate or be dis- continued by the death or removal of such secretary, or by the act of such secretary without the consent of the said commissioners ; but the secretaiy to the said commissioners for the time being shall always be deemed the plaintiff or defendant in such action or suit, as the case may be ; and 38 & 39 VICT. c. 80. ^19 (2.) The commissioners may examine any persons willing to Appendix, be examined on any matters connected with the execu- tion of this Act, and may for that purpose, or other- wise for the purpose of the execution of this Act, administer an oath, and take any affidavits or declara- ration ; and (3.) The Loan Commissioners shall annually cause to be made out up to the end of every financial year a report of their transactions under this Act during the year, and such report shall contain or have annexed thereto the prescribed particulars respecting moneys issued to and loans granted by the commissioners either before or after the passing of this Act, and the execution of the duties of the Loan Commissioners, and such other particulars as the Loan Commissioners may from time to time think fit : Such particulars shall include a statement of any difi'crence that may have arisen between the Loan Commissioners and any public department respecting the grant of any loan or the construction of any Act relating to loans by the Loan Commissioners : Such report shall be transmitted to the Treasury within two months after the date up to which it is required to be made, and shall be forthwith laid by the Treasury before both Houses of Parliament, if Par- liament be then sitting, or if not, within one month after the then next sitting of Parliament ; and (4.) Any minute made of proceedings at meetings of the com- missioners, if signed by any person purporting to be the chairman, either of the meeting of the commis- sioners at which such proceedings took place, or of the next ensuing meeting of the commissioners, shall be receivable in evidence in all legal proceedings without further proof, and until the contraiy is proved, every meeting of the commissioners, in respect of the proceedings of which minutes have been so made, shall be deemed to have been duly convened and held, and all the members thereof to have been duly qualified to act ; and (5.) An act or proceeding of the commissioners shall not be questioned on account of any vacancy or vacancies in their body. Sect. 6 enables the coniuiissioiiers to appoint officers. 52d APPENDIX. Appendix. Sect. 7. Securities given to and property vested in secretary to vest in his successor. 7. Where under this or any other Act, or any conveyance, obligation, or security, any real or personal property, or any estate or interest therein, or any chose in action, has been or may be vested in, conveyed, made payable, or secured to the secre- tary of the Loan Commissioners for the time heing as such secretary, and in respect of his office, all such real and personal property, estate and interest, and chose in action whatsoever, upon the death, removal, or resignation of any such secretary from time to time, and as often as the same happens and the appointment of a successor takes place, shall (subject to the same trusts, and equities, if any, as the same were before respectively subject to) vest in such succeeding secretary, by force of this Act, and without any act or deed whatever to be done by the secretary dying, resigning, or removed, or by the heirs, execu- tors, or administrators of such secretary, or by any person or persons claiming under him, them, or any of them, and notwith- standing the same may have been expressed to be vested in, conveyed, made payable to or secured to such secretary, his heirs, executors, administratoi's, and assigns, or any of them ; and shall be proceeded upon in the name of any succeeding secretary, by any action or suit in law or equity, or in any other manner as the same might have been proceeded upon by or in the name or names of such secretary dying, resigning, or removed. Where the secretary of the Loan Commissioners is a party to any action, suit, or other legal proceeding, such secretary acting under the direction of the commissioners shall be deemed to represent the Crown, so far as regards the interest of the Crown in any loan granted under this Act, or any money due under a security for any such loan, and it shall not be necessary to make the Crown, or any other person on behalf of the Crown, a party to such action, suit, or proceeding, in respect of such interest as aforesaid. Execution of conveyances, leases, &c. by secretary on behalf of commis- sioners. 8, AH conveyances, leases, mortgages, releases, arrangements, and things which the Loan Commissioners are authorized by this Act to grant, execute, make, or concur in, and all powers, acts, and things which the Loan Commissioners are authorized by this Act to exercise, do, or concur in, in relation to any mort- gaged property or rate, may be granted, executed, made, con- curred in, exercised, and done by their secretaiy for the time 38 & 39 VICT. c. 89. 521 being under their direction, and when so granted, executed, Appendix, made, concurred in, exercised, and done by such secretary, shall q . „ be deemed to have been gi'anted, executed, made, concurred in, exercised, and done by him under the direction of the commis- sioners, unless the contrary is shown by some person interested in contesting the validity thereof. Any property, chose in action, estate, interest, powers, autho- rities, and privileges vested in or exerciseable by the secretary of the commissioners in pursuance of this Act shall be dealt with and exercised by him under the dii'ection of the commissioners, and not otherwise. Objects, Terms, and Duration of Loan. 9. The Loan Commissioners may, if they think it expedient, Loans for from time to time, iu manner mentioned in this Act, make loans for the purpose of any of the works mentioned in the First Schedule to this Act, to any person having power under an Act of Parliament or otherwise, to borrow for such purpose. The Loan Commissioners in considering the propriety of granting a loan shall have regard to the sufficiency of the security for its repayment, and, subject to the provisions of any special Act, shall determine whether the work for which the loan is asked would be such a benefit to the public as to justify a loan out of public money, having regard to the amount of money placed at their disposal by Parliament, 10. Every loan granted under this Act shall bear interest at a Interest oir rate not less than the rate authorized by a special Act relating '^ ' to such loan, or if no rate be so authorized, not less than five per cent, per annum ; provided that when the aggregate amount of principal moneys due by any harbour authority to the com- missioners under " The Harbours and Passing Tolls, &c.. Act, 1861," exceeds one hundred thousand pounds, the rate of interest on such excess shall be three and a half per cent., or such higher rate, not exceeding five per cent., as may in the judgment of the Treasury be necessary to enable the loan to be made without loss to the Exchequer. 11. Every loan granted under this Act shall be made repa)'- Tennofycara able by instalments (in the form of an annuity or otherwise) °^ ^P^'P,' . . ^ "^ ' luent ot loans, within a period from the date of the actual advance of such loan, ^2^ APPfiNDlX. Appendix, not exceeding the period authorized by a special Act^relating o , 1 to such loan, or if no period be so authorized, not exceeding twenty years. Where a loan has been granted repayable within a period less than the full period allowed by the foregoing provisions of this section, the Loan Commissioners, if the repayment of the loan, with interest, is in their opinion sufficiently secured by such security as is required by this Act, and if they think fit, may extend the period for the repayment of such loan to a period not exceeding the said full period from the date of the advance of such loan. Where no period is authorized by a special Act relating to the loan, the Treasury, on the recommendation of the Loan Com- missioners, stating special circumstances, may either before or after the grant of the loan, extend the period within which the loan is to be repaid to such period as may be recommended by the Loan Commissioners. The Loan Commissioners in considering whether the period for the repayment of a loan should or should not be the said full period, and the Loan Commissioners and the Treasury in con- sidering whether the period should be extended as aforesaid, shall have regard to the durability of the work for the purpose of which the loan is granted, and to the expediency of the cost of the work being paid by the generation of persons who will immediately benefit by such work. The first instalment for the repayment of every loan shall be made payable within a period not exceeding five years from the date of the advance of such loan. Security for 12. The Loan Commissioners before advancing any money on loans. account of a loan shall take security for the repayment of the loan with the interest, consisting of the secui'ity authorized by the special Act relating to the loan, and if none is so authorized, of a mortgage property, or of a rate, or of both property and a rate, and (save as hereinafter mentioned) of personal security. The Loan Commissioners may, if they think fit, dispense with personal security in any case in which in their opinion the mortgaged property or rate is sufficient security for the payment of the principal and interest of the loan within the stipulated period. 38 & 30 VICT. c. 89. 523 Funds for Loans. Appendix. 13, For the purpose of passing an annual Act of Parliament, Sect- 13. granting money for the purpose of loans by the Loan Commis- Annuul esti- • • X :i- 1. 1- 11 J i .1 • • mate of sioners, every intendmg borrower shall send to the commissioners amouats on or before the thirty-first day of December in every year a required. statement of the new loan or instalments of a loan already granted which the sender will probably apply to borrow during the ensuing financial year ; and the commissioners shall, as soon as practicable, submit all such statements to the Treasury, with such observations thereon and information respecting the same as [they may think expedient, and as may bo necessary for enabling the Treasury to lay before the House of Commons an estimate of the amount required to be granted for the purpose of loans by the Loan Commissioners. The Loan Commissioners shall not, except with the permission of the Treasury, grant any loan or advance any instalment of a loan which has not been included in such a statement as above mentioned. The Treasury, if they think that after providing for the loans and instalments included in the said statements, or such of them as will actually be advanced, there will be a balance out of the sum granted by Parliament sufficient to meet any loan or instal- ment not included in the statements, may, if they think fit, grant such permission, and may grant it conditionally upon the said balance being in their opinion sufficient when the time for the actual payment arrives. If the regulations under this Act require quarterly statements to be sent by borrowers of the amounts which will be required by such borrowers, the Treasury may, if they think fit, refuse to issue in any quarter of a financial year any larger sum than the total of the amounts named m the statements referring to such quarter. Sect. 14 relates to the issue by the Treasury of money for the purposes of loans. Sect. 15 enables the Treasury to borrow for the purpose of raising money for loans. Sects. 16 and 17 relate to the issue of money to the National Debt Com- missioners, and repayments. Recovery of Loons. 18. Where a loan is granted by the Loan Commissioners on Ch.arge on the security of a mortgage of any property (whether with or ^^ri'OT-[v^of" without any other security), the property from and after the S24 APPENDIX. Appendix. Sect. 18. loan by the commis- sioners. date of the mortgage shall be charged with the payment to the use of Her Majesty of the loan with interest as in the mortgage mentioned, in priority, save so far as otherwise specified in the mortgage, over every other debt, mortgage, or charge whatso- ever affecting the property, except any loan due to any creditor not assenting to such priority which has been advanced in good faith before the loan advanced by the commissioners and secured by a mortgage of the property executed to a person who is entitled as a bond fide creditor to the repayment thereof with interest. Provided that if there is more than one such creditor and not less than four fifths in value of such creditors consent in writing that the said charge shall have priority over the loans and mort- gages of such creditors, in such case the loans and mortgages of all such creditors, as well those who have not agi-eed as those who have agreed, shall be postponed to the loan granted by the commissioners and to the said charge thereof, and to the security for the same. Nothing in any special Act, and no rule of law or custom shall affect the priority given by this section, except so far as the special Act negative such priority in terms expressly refer- ring to this Act. Charges on rate of loan and loan not to be repudiated by locality having had the benefit of it. 19. Where a loan is granted by the Loan Commissioners on the security of a mortgage of any rate (whether with or without any other security) such rate from and after the date of the mortgage shall be charged with the payment to the use of Her Majesty of the loan with interest as in the mortgage mentioned. Where the loan has been granted to any borrower who appeared to the commissioners to have power to levy and mort- gage such rate and has been expended upon the work in respect of which or in or for the benefit of the locality in which such rate or any part thereof is levied, the mortgage of the rate for securing the repayment of the loan with interest shall be vaUd, and may be enforced in pursuance of this Act, not^udth standing any defect in the power or title of the borrower by whom the mortgage purports to be granted ; and in particular the commis- sioners may, although such borrower was not legally constituted or is dissolved, or is otherwise incapable and always was in- capable of making, levying, or mortgaging such rate, have the same power of making and levying and enforcing the making or 38 & 39 VICT. c. 89. 525 levying the said rate for the purpose of repaying such loan and Appendix, interest, and all other sums due under the mortgage, as if such <;, . ,q borrower hud been duly constituted, and was not dissolved, and had had full power to make, levy, and mortgage such rate. 20. AH securities for any loan granted by the Loan Commis- Securities to siouers in pursuance of this Act may be given to the secretary «^me of '" of the commissioners on their behalf. Every such security secretary. is in this Act referred to as a security given to the commis- sioners. 21. Where a mortgage of property has been given to secure Taking any loan granted by the Loan Commissioners, and default is Poss6Sfi<^° "^y •' . ° . •' . commissioners made in making payment according to the terms of such mort- of jjroperty on gage, then at any time after such default and without any con- tlefault of sent on the part of any person interested in the equity of redemption of the mortgaged property, the commissioners, without prejudice to any other remedy, shall have power to do all or any of the following things : namely, (1.) Take possession of the mortgaged property, or any part thereof; and (2.) Grant any lease of the mortgaged property, or any part thereof, for such term and upon such reasonable con- ditions as they may think expedient, and that either for a premium or rent, or both ; and (3.) Sell or mortgage the mortgaged property, or any part thereof. 22. The Loan Commissioners, when authorized to take Powers of possession of any mortgaged property, may take possession ^"hc^ju "^"'^'^ either by themselves or by any person appointed by them possession, (whether such person is interested in the mortgaged property or not), and upon possession of any mortgaged property being so taken, — (1.) All the estate, right, interest, powers, authorities, and privileges, of what nature or kind soever, which were at the time of the making of the mortgage or may for the time being be vested in or excrcisoable by the mortgagor or any person claiming through or under the mortgagor, either in relation to the property or necessary for carrying on and managing the same, ^^^ APPENDIX. Appendix. shall become vested in the secretary of the commis- Sect. 22. sioners ; and (2.) The commissioners may by themselves or any person appointed as aforesaid manage and carry on the pro- perty, and receive the revenue arising therefrom, or in any way receivable in respect thereof, or otherwise, in pursuance of the mortgage, and exercise all or any of the powers and authorities vested in their secretary by this Act ; and (3.) The commissioners or their secretary or such person as aforesaid shall not be liable for the repairs or main- tenance of the mortgaged property, but may apply any moneys received in respect thereof or raised from any rate towards such repairs or maintenance to such extent as the commissioners may think expedient ; and (4.) The commissioners may, with the consent of the Treasury, advance out of moneys at their disposal under this Act sums for the completion, repair, improvement, or security of the mortgaged property, and every such sum shall be deemed and shall be a loan secured on the property and repayable with the like interest from the time of the advance, and by the like person, and shall have the like priority and be recoverable in the like manner as if it were part of the original loan secured by the said mortgage ; and (5.) If the revenue received from or in respect of the pro- perty is insufficient to keep down the current ex- penses of working, maintaining, and repairing the same, together with the instalments of principal and the interest for the time being due on the mortgage, and no rate or no sufficient rate can be levied to meet the deficiency, the commissioners may, with the con- sent of the Treasury, destroy or cause to be destroyed, or (if they sell the same) authorize the pui-chaser with the like consent to destroy the same, and sell or authorize the purchaser to sell the materials thereof and other the articles, goods, and eflects belonging thereto, and neither the commissioners, nor their secretary, nor the purchaser so authorized, nor his 38 & 39 VICT. c. 89. 527 representatives, shall be liable in damages or other- Appendix. wise to any person whomsoever for such destruction ; o . nn and the provisions of this Act with respect to the sale of any mortgaged property shall apply to any sale under this section ; and (6.) Possession under this Act may be relinquished at such time and in such manner and upon such terms and conditions as the commissioners think fit, and upon such relinquishment all powers, authorities, and privi- leges which on the taking of possession became vested in the secretary of the commissioners shall, so far as they are not reserved, revert to and become vested in the person in whom the same would have been vested if possession had not been taken, but the commis- sioners may, if they think fit, on the relinquishment of possession, reserve any of the said powers, autho- rities, and privileges, with a view to the payment of any sum due to them : (7.) Every such rehnquishment of possession of any mort- gaged property shall be without prejudice to the power of again taking possession thereof under the provisions of this Act. 23. Where a loan made by the commissioners is secured by Powers in the mortgage of a rate (whether with or without any other j.^^^.^ \vhere security), and the commissioners might, if such loan were default made, secured upon a mortgage of property, take possession of such property, the commissioners may, without prejudice to any other remedy, by notice in writing served at the office or last known place of address of the mortgagor, or where from any cause the same cannot be so served by notice in writing pub- lished in the prescribed manner, declare theii- intention to exer- cise the powers conferred by this Act, and thereupon the com- missioners shall have and may exercise the same power as the mortgagor of making and levying the rate mortgaged, and for that purpose the commissioners or their secretary with their concurrence may appoint an officer who, subject to the dii'ec- tion of the commissioners, shall have and may exercise the same powers, authorities, and duties as if he had been appointed by the mortgagor. The commissioners, in making an estimate of the rate to be 528 APPENDIX. Appendix, levied for the purpose of paying any sum due, may add such S ~r23 ^^^ ^^ ^^^®^ *^^^ sufficient for defraying and may defray thereout all costs, charges, and expenses, including remunera- tion to any officer or other person employed, incurred by the commissioners in the execution of their powers under this section or otherwise by reason of the default in payment. Any balance remaining in the hands of the commissioners shall be paid by them to the mortgagor. The commissioners may, by a like notice, declare theu' inten- tion to relinquish the powers conferred by this section, and that either absolutely or with reservations and conditions, and thereupon all such powers shall revest in the mortgagor, subject to the said reservations and conditions. Liability of 24. When the Loan Commissioners have taken possession of commissioners ^^^ property under this Act, or exercised the powers conferred possession or by this Act in relation to any rate, neither they nor their in default of secretary, nor any person appointed by them in that behalf, pajmen . ^^^^^ ^^ liable to account to any person interested in the equity of redemption m such property or rate for any moneys which, but for their wilful neglect or default, they or he might have received when so m possession or exercising such powers, or for any moneys other than those which have actually come to their - or his hands. Sale and 25. Where the Loan Commissioners have power to sell or mortgage by ^^Q^.^^ase, they shall have power to sell or mortgage either commissioners "^"^"^ 8 ' J ^ • , 7 • 3 of mortgaged together or in parcels, by pubhc auction or private contract, and premises. subject to such conditions as to title or evidence of title or otherwise as the commissioners may think proper. They may also buy in at any auction and rescind any con- tract for sale or mortgage, and resell or remortgage, without being responsible for any loss occasioned thereby. Where a sale cannot be made in the ordinary way for a sum equal to the amount remaining due under the mortgage, the Loan Commissioners may, if they think fit, sell in such manner and subject to such conditions, stipulations, and agreements as they may think expedient for the purpose of ensuring the com- pletion or carrying on of the work comprised in such mortgage by the purchaser thereof, with a view to the public good or general benefit, or for any other purpose, notwithstanding such 38 & 39 VICT. c. 89. 529 conditions, stipulations, and agreements may bo prejudicial to Appendix, the sale, or may not be beneficial to the persons interested in gect. 25 the equity of redemption in the property. The Loan Commissioners may for the purpose of any sale or mortgage execute all such agreements, conveyances, and instru- ments as they may think fit. 26 Every sale or mortgage made by the commissioners or Purchaser ^^ ^ ^ *" 4-1' v.! t their secretary, and purporting to be made in pursuance of this ^^^ iq\^q Act, shall, so far as regards the interest of the purchaser and validity of mortgagee, be deemed to be valid, and the purchaser or mort- ^^^'r °^ '^VV^' gagee shall not be bound to see or inquire whether the sale or money, mortgage is authorized, nor in the case of a mortgage whether the money raised is required to be raised, nor as to the necessity or expediency of or authority for making the con- ditions, stipulations, or agi'eements subject to which the sale or mortgage was made, nor otherwise as to the propriety or regu- larity of such sale or mortgage, nor be affected by express notice as to any matters into which he is not bound to see or inquire. The receipt in wi'iting of the Bank of England, or one of their cashiers or other proper officer for the purpose of the Bank of England, or other prescribed receipt, shall be a full discharge for the money paid on the sale or mortgage, and the • person paying the same shall not bo bound to see to the appli- cation of such money, or be liable or in any manner account- able for the misapplication or non-application thereof. 27. Any lease, mortgage, conveyance, or other disposition Terms of made by the secretary of the commissioners under this Act of ^^'^p^'l^^' any mortgaged property may be in the prescribed form, and shall convey to the person in whose favour such lease, mort- gage, conveyance, or other disposition is made, and according to the terms thereof, all or any part of the estate, right, inte- rest, powers, authorities, and privileges, which under the mort- gage and this Act are vested in or capable of being exercised by the Loan Commissioners, or their secretary, either before or after possession taken, and the same shall thereupon be vested in and may be exercised and put in force by such person accordingly. Nothing in this Act shall operate to invalidate or affect the 2 M 530 APPENDIX. Sect. 27. Appendix, rights of any person entitled bond fide to any debt, estate, or interest, having priority over or ranking pari passu with the loan granted by the commissioners, or the security for such loan, or the rights of any lessee under any lease made either prior to such security or with the concurrence of the commis- sioners. Appliciitiou of niouey arising on taking pos- session, sale, mortgage, &c., by com- missioners. 28. Any money arising from the taking possession, lease, sale, mortgage, or other disposition under this Act by or under the direction of the Loan Commissioners of any mortgaged pro- perty shall be applied first in discharge of all costs, charges, and expenses incurred by or under the direction of the commis- sioners in respect thereof, or otherwise by reason of the default in payment, and secondly in discharge of the whole of the principal of the loan secured by the mortgage and for the time being unpaid (notwithstanding that the same or any instalment thereof may not have become actually due), and in discharge of all interest accrued due on such principal, and of all other sums (if any) due under the mortgage. The surplus (if any) of such money either shall be paid to the mortgagor or other person or persons entitled thereto, or, if the commissioners think fit, shall be paid by the secretary of the commissioners into the Court of Chancery in England in like manner as if he were a trustee of such money for the persons entitled thereto, and the court may make such orders for the payment and distribution of such money to or among those persons as may from time to time seem to the court just. Payment of loan before it is due, and transfer of security for all or part of loan. 29. The Loan Commissioners may, if they think fit, at any time accept payment of the whole or any part of the principal and interest of any loan or other moneys secured by any mort- gage under this Act before the time when the same is due ; and may release or convey the mortgaged property or rate to the person paying the same, or as he may direct, upon such terms and conditions and in such manner and form as the commis- sioners may think expedient. The person in whose favour any conveyance of the mort- gaged property or rate under this section is made shall, subject to any limitations inserted therein, be entitled to the like priorities, powers, and authorities as the commissioners or 38 & 39 VICT. 0. 89. 531 thoir secretary were entitled to, either subject to or with Appendix, priority over or concurrently with any priorities, powers, and gect 29 authorities reserved to the commissioners by the conveyance. The commissioners shall have full power to enter into and concur in all such arrangements as they may deem expedient for the purposes of carrying into effect a release or conveyance under this section. 30. Upon all moneys due under a mortgage under this Act Discharge of being fully paid the commissioners shall, when required, give revestinel^of in the prescribed manner to the person liable to the payment property on thereof a receipt in writing for the same, and such further J'^P'^yi^cnt of sufficient discharge (if any) as may seem to the commissioners to be necessary, and upon such receipt being given the mort- gaged rate shall be released from the charge and the mortgaged property, or the part thereof not sold or disposed of under this Act shall (unless the commissioners, on the request and at the expense of the person paying the said money, make any other disposition thereof) revest in the person who would have been entitled thereto if the mortgage had not been made, subject nevertheless to any lease, mortgage, or other act previously made or done by or under the direction of the commissioners. 31. Where an individual liable to pay as principal or surety Bankruptcy the principal or interest of any loan under this Act becomes ° ^ ^^' bankrupt or insolvent, or enters into any composition or arrangement with his creditors, or has his affairs liquidated by arrangement, or takes the benefit of, or becomes subject to the provisions of any Act passed for the relief of persons in debt, or for enabling the property of such persons to be distributed among their creditors, or where any company liable to pay as principal or surety the principal or interest of any loan under this Act becomes bankrupt or is wound up, the whole of such loan shall become due immediately, notwithstanding that the date for the payment thereof or part thereof has not arrived, unless in the Ciise of a surety the commissioners think fit to accept some other surety. 32. Every security given under this Act may be in such Form of form as may be prescribed, and the fact of the secretary of the mortgage. Loan Commissioners being a party thereto shall be conclusive 2 M 2 532 APPENDIX. Appendix. Sect. 32. Recovery of debts on personal security. Recovery of loan after the expiration of term for re- payment. evidence that the same is in the prescribed form, and every such security shall be valid and effectual to pass all the estate, right, and interest purporting to be passed thereunder by the parties executing the same, subject to the provisions of this Act. 33. Every sum payable under any security made in pursuance of this Act shall be made payable to the use of Her Majesty, her heirs and successors, and may be recovered as a specialty debt due to the Crown, in like manner as if the secui'ity had been made in the form provided by the Act of the thirty-thu'd year of the reign of Henry the Eighth, chapter thirty-nine; but no person shall be liable for any larger sum than that which he is expressed to be bound to pay. Every sum payable in respect of a loan granted by the Loan Commissioners (either before or after the passing of this Act) or under the security for such loan, shall be compounded for or released only under the authority of Parliament in each case. The Loan Commissioners may issue a warrant to the proper officer forthwith to enforce payment of such debt to the Crown as aforesaid, and if necessary to enter satisfaction therefor, and shall have the control over any proceedings taken to enforce such debt, and such proceedings shall not be discontinued, quashed, or abated without the written authority of the Loan Commissioners. The Court of Exchequer, or other competent court, or any judge thereof, may, upon the production of the said warrant, direct an immediate writ of extent, or of diem clausit extremmn, to issue without any writ of scire facias or any affidavit or other proof of the cause of the proceeding. Nothing in this Act shall render it the duty of the Loan Com- missioners to issue such waiTant or to register such wi'it or debt, unless they are of opinion that it is necessary for the purpose of securing the payment of the debt, or that otherwise under the particular circumstances it is expedient so to do. 34. The expiration of the period within which a loan under this Act is made repayable (whether such period is the full period allowed by this or the special Act or a shorter pei-iod) shall not in any way affect any power of the Loan Commis- sioners of recovering or enforcmg payment of any sum due in respect of such loan. 38 & 39 VICT. c. 80. 533 Supplemental Provisions as tu Loans and Securities. Appendix. Sect. 35. 35. Where the commissioners grant a loan in aid ol any work Security for which is cither partly completed or not commenced, they may, completion of by a bond to Her Majesty or otherwise, take such security for fl°jshed or ^ the application of the loan to the work, and for the due comple- not com- tion of the work (including the raising of sufficient funds for that "fenced, purpose), as they may think sufficient for securing the i;iterest of the public. » 36. Where the Loan Commissioners advance any loan for any Examination pm-posc on the security of a rate, it shall be the duty of the ''^ *P. Proper Local Government Board to satisfy themselves that the loan is of moneys applied to such purpose ; they may from time to time make such 1*-'"*. examination as they may think necessary with a view to ascer- tain that such loan has been so applied. The Local Government Board may appoint any officer to conduct on their behalf any examination under this section, and such officer shall have the same powers to requii-e the attendance of persons and the production of accounts and other documents, so far as such attendance or production is required for the purpose of such examination, as an inspector of the Local Government Board has under the Acts relating to the relief of the poor. 37. The Treasury may, on the recommendation of the Loan Suspension Commissioners, postpone for any time not exceeding five years °f J^%"!ip!fi the payment of the instalments of principal and interest, or aiid interest, either, due or to become due in respect of a loan gi-antcd by the Commissioners for the pui-pose of any work, and that upon such terms and conditions for the completion and improvement of" such work, and the ultimate payment of such principal and interest, as the Treasury may on the said recommendation authorize. 38. The Loan Commissioners may, subject to the prescribed Change ofj regulations, if under the cu-cumstances of the case they think fit, ^''"" ^' accept any security in lieu of any security previously given to them, or of any part of such security, and that subject to such terms and conditions as they dii-ect; so, however, that the 534 APPENDIX. Appendix. Sect. 38. substituted security shall be of the character which the com- missioners might take if the loan were originally granted at the time of such substitution, and that no change of security under this section shall extend the period for the repayment of the loan. Concurrence by commis- sioners in leases, sales, &c., of mort- gaged property. 39. The Loan Commissioners may concur in any lease, con- veyance, release, or other disposition of any property mortgaged under this Act, or any part thereof, and in the arrangements relative thereto, upon such terms and conditions as they may think fit, and either with or without consideration, so that in their opinion the payment, with interest, of the loan charged on the mortgaged property is sufiiciently secured or is not thereby made less secure. Power to various authorities to mortgage and levy rates. Special Provisions as to Borroicers. 40. The justices for any county, or any riding, division, parts, or liberty of a county, in general or quarter sessions assembled, may (if they resolve by a majority of not less than five justices so to do) borrow money from the Loan Commis- sioners for the purpose of building, rebuilding, enlarging, repair- ing, improving, and fitting up any police station and justices room, and offices connected therewith, or any of such purposes, and may levy a rate or any increase of a county rate for the purpose of paying the principal and interest of such loan, and may mortgage such rate or the county rate to the Loan Commis- sioners in accordance with this Act. The council of any borough may borrow money from the Loan Commissioners for the purpose of building, rebuilding, enlarging, repairing, improving, and fitting up any police station and justices room, and ofiices connected therewith, or any of such purposes, and may levy a rate or an increase of the borough rate for the purpose of paying the principal and interest of such loan, and may mortgage such rate or the borough rate to the Loan Commissioners in accordance with this Act. The said justices and council respectively shall have power to give the mortgage in such manner and form as the Loan Com- missioners may direct. S8 & 39 VICT. c. 89. 535 Miscellaneous. Appendix. 41. The Loan Commissioners may from time to time make Sect. 41. regulations for carrying into oliect this Act, and in particular Regulations with respect to the quorum and proceedings of the commis- ^^'oin'^s-, sioners and the authentication of documents made or issued or directions given or acts done by them, and with respect to loans under this Act and applications therefor, and annual and quarterly statements of the amounts required to be borrowed, and the information to be given and conditions to be complied with by the applicants, and with respect to the forms to be used, including the forms of the securities, and with respect to any fees or sums to be paid by the applicants or by other persons dealing with such commissioners, and with respect to the rela- tions between such commissioners and the National Debt Com- missioners and the Bank of England. Every such regulation shall be submitted for the approval of the Treasury, and as approved by them with such modifications and additions as they think fit, shall be published in the London Gazette, and when so published shall have eflect as if it was enacted in this Act. Every such regulation shall be laid before both Houses of Parliament as soon as may be after the making thereof if Parlia- ment be then sitting, or if Parliament be not then sitting within one month after the then next meeting of Parliament. Every regulation, purporting to be made in pursuance of this section, shall after the expiration of six months after its publication in the London Gazette be deemed to have been duly made and to have been within the powers of this Act. Regulations made under this section may be from time to time rescinded, altered, and added to in like manner as the original regulations. Sects. 42 ami 43 provide that fees payable to commissioners shall be paid into the Exchequer, and for keeping accounts at Bank of Euglaud, and audit. 44. Any person who, when examined by the Loan Commis- Perjuiy. sioners in pursuance of this Act, or any regulation made under this Act, wilfully gives false evidence, or who, for the purpose 536 APPENDIX. Appendix, of obtaining a loan under this Act, wilfully gives information to c . ^ such commissioners which is false in any material particular, shall be guilty of perjury. Sect. 45 relates to the authority of the Treasury to issue warrants, &c. Receipt for money pay- able on ac- count of loan, &c. 46. The receipt in writing of the Bank of England, or one of their cashiers or other the proper officer for the pm-pose of the Bank of England, and any other prescribed receipt for any money paid in discharge of the principal or interest of any loan granted under this Act, or of any sum due under any security made under this Act or otherwise payable to or by the direction of the Loan Commissioners or their secretary, shall be a com- plete discharge to the person paying the same. Notices may be served by post. Notices to and by com- missioners. 47. Notices, directions, orders, and documents required by this Act, or by any regulation made under this Act, to be sei'ved or sent may, unless otherwise expressly provided, be served and sent by post, and, until the contrary is proved, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post ; and in proving such service or sending it shall be sufficient to prove that the letter containing the notice, direc- tion, order, or document was prepaid, and properly addressed, and put into the post. 48. Notices, and documents requu'ed by this Act, or by any regulation made under this Act, to be served on the Loan Com- missioners, may be so served by serving the same on their secretary, or by sending the same addressed to or deUvering the same at the office of the commissioners. Notices and documents required for the purposes of this Act, or of any regulation made thereunder, to be served by or on the Loan Commissioners, or to be made or issued by the Loan Com- missioners, shall be in writing or in print, or partly in wi'iting and partly in print. Sect. 49 refers to effect of schedules. Application 50. Except so far as a special Act, by express reference to of Act to' gQj^g pg^j,^ of ti^ig j^ct^ alters that part, every loan made by the special^Acts. Loan Commissioners shall, notwithstanding any provision in 38 & 39 viGT. c. 89. 537 such special Act and any rule of law or custom, be made in • Appendix, accordance with and under the powers of this Act, and be re- Cect~5n payable in manner provided by this Act, and by the security for the same granted under this Act, and every such loan, together with the security for the same, shall have the priority and bo subject to the powers, authorities, and remedies mentioned in this Act; and although made in pursuance of a special Act, shall be deemed for all purposes to be a loan under this Act. 51. In this Act, if not inconsistent with the context, — Dufinitbns. The expression "person" includes a body of persons, whether corporate or unincorporate : ***** The expression "financial year" means the year ending the thirty-first day of March : The expression "prescribed" means prescribed by the regu- lations made under this Act with the approval of the Treasury : The expression " special Act" means any Act passed before the passing of this Act which authorizes the Loan Commis- sioners to lend money for the purposes of any work men- tioned in the first schedule to this Act and any Act passed after the passing of this Act, which authorizes the Loan Commissioners to lend money for any purpose : The expression " security" mcludes a mortgage : The expression "mortgage" includes a charge and any instru- ment in the nature of a mortgage or charge : The expression "conveyance" includes any grant, assign- ment, transfer, or other disposition or assurance ; and the expression " convey" shall be construed accordingly : The expression "rate" means a rate, cess, or assessment the proceeds of which are applicable to public local purposes and leviable on the basis of a valuation of property, and includes any sum which, though obtained in the first instance by a precept, certificate, or other instrument requiring pajTuent from some authority or oflicer, is or can be ultimately raised out of a rate, as before defined, and the making and le\y of a rate includes the issue and enforce- 538 APPENDIX. Appendix. ment of any such precept, certificate, or instrument as Sect 51 aforesaid, and expressions relating to the making and levy of a rate shall be construed accordingly : Any toll, due, rent, imposition, and other sum not being a rate as above defined shall be deemed to be property for the purposes of this Act. All references to a mortgagor or borrower shall, if need be, be deemed to include a reference to the successors, heirs, executors, administrators, and assigns of, or other persons claiming through or under such mortgagor or borrower. Sects. 52, 53, 54, 55, 56, 57 are omitted, as they relate only to the com- missioners and to matters of no importance to councils. SCHEDULES. ^39 SCHEDULES. Appendix. Schedule. FIRST SCHEDULE. Works for the Purpose of which the Commissioners may lend Money. Baths and wash-hoxises provided by local authorities. Burial grounds provided by burial boards. Conservation or improvement of rivers or main drainage. Docks. Harbours and piers, and any work lor which the Public "Works 24 & 25 Vict. Loan Commissioners are authorized to lend by section three of the c. 47. Harbours and Passing Tolls, &c.. Act, 1861. Improvement of towns. Labourers dwellings. Lighthouses, floating and other lights for the guidance of ships, buoys, and beacons. Lunatic asylums of any county or borough in Great Britain. Police stations and justices rooms of any county or borough in Great Britain, and the offices connected therewith. Prisons. Public libraries and museums. Any schoolhouse or work for which a school board is authorized to 33 & 34 Vict, borrow under the Elementary Education Acts, 1870 and 1873, or any c 70. Act amending the same. 86 '^ * Waterworks established or cai'ried on by a sanitary or other local 35 ^'qq vict. authority. c. 62. Workhouses or poorhouses, and any work for wliich guardians of the poor are authorized to borrow under the general Acts relating to the relief o! the poor. Any work for which a sanitary authority are authorized to borrow under the Public Health Act, 1875. Any work for which the commissioners are authorized to lend by any Act passed after the passing of this Act. x- * * * * INDEX. ABSENCE from borough of mayor for more than two months disqualifies, 87; of aklerman or councillors for six months disc|ualifies, 87; sucli disqualification renders liable to fine, 87; dis- qualification ceases, as to subsequent elections, on return, 87. of mayor, council to choose an alderman to act for, as returning officer at municipal elections, 101. of mayor, council to choose an alderman to act for, at parliamen- tary elections, 222. of alderman as returning officer at a ward election, mayor to ajjpoint substitute, 101; who may be such substitute, 101. of mayor generally, deputy mayor to act, 71, 101. of town clerk, deputy may act, 72. of recorder, deputy may act, 172. of recorder and deputy recorder, mayor to adjourn sessions, 172. of clerk of the peace, deputy may act, 170. of coroner, deputy may act, 176. ABSTRACT OF TREASURER'S ACCOUNTS to be made up yearly and printed, 79; to be open to inspection by ratepayers, 217; copies to be delivered to them on pay- ment of reasonable price, 217. ACCOUNTS to be made up half yearly, 78 ; council, with approval of Local Government Board, to fix the times, 78; when not so fixed, 78; to be submitted, witli vouchers, to auditors, 79. ACTIONS by and against corporations, 15 ; corporation nmst appear by attorney, 15; foreign corporations may sue in this country, 15; may be brought on executed contract, though not vmder seal, 16; will lie for penalties for breach of bye-laws, 16; corporations may not sue for bond made to mayor, 17; do not abate by death of one of the corporators, 17; corporation may institute criminal prosecution, 17; how corpora- tion described in an indictment, 18. 542 INDEX. ACTIOI^Q— continued. writ of summons, how served, 18; how compelled to enter an aj)pearance, 18; answer to be under seal, 18; corporations not liable in tort, 20; as to ejectment, 20, 21; may be maintained for carelessness or assault by servants, 21; for unskilfulness, 21; for a misfeasance, 22; malicious prosecu- tion, 22; neglect of public duties, 22; criminal informations, 22 ; when individual corporators liable, 22 ; actions and suits how commenced, 23. how to be commenced in borough civil court, 179. penal, against corporate officers, 206; not to lie in certain cases iTnless notice of action given within fourteen days after cause arose, and commenced within three months, 206; plaintiff to give security for costs, 206. successful defendant entitled to costs as between solicitor and client, 206; when brought against person in respect of qualification by estate, the onus of proof to be on defendant, 206; a moiety of fine to be paid to plaintiff', 206. not to be commenced against persons acting under the Municipal Corporations Act after six months, 211. tender of amends before, may be pleaded, 211; when defendant entitled to costs, same to be taxed as between solicitor and client, 211; where the defendant is an officer, servant, or agent of council, they may pay any sums payable by defen- dant out of borough fund or rate, 211, 251, 252. for penalties for corrupt practices, limitation of time for, 445, 449. ACTS AND PROCEEDINGS of person in possession of office, valid, 89; of council or com- mittee not to be questioned on account of any vacancy, 76. minutes of, of council or committee, to be prima facie evidence of, 76. of council to be done by the majority present and voting, 237. of council to be dra^vn up and fairly entered in a book, 237. ACTS REPEALED.— &e Enactments Repealed. ADMIRALTY, saving for authority of commissioners for executing the office of lord high admiral, 228. ADVOWSONS, obligations and powers in respect of, 138; regulation as to sale of, 139. AFFIRMATION in lieu of oath, 285. INDEX. 543 AGE, burgess must be of full age, 61. person over sixty exempt from serving corporate office, 85. AGENTS, when appointed, provisions of Biillot Act, 1872, to apply to, 06; not to vote, 109; fine for voting, 109; conser^uences of cor- rupt practices by, 108; payment of conveyance of voters by, how punishable, 109. proof of corrupt practice, &c., by, may be given before proof of agency, 116. in London to be appointed in election petitions, 454, 455, 464. of candidate may recxuire presiding officer to put questions to voter, 97. of candidates, under the Ballot Act, 1872, practice with respect to, at municipal elections, 294—298; form of notice to appoint, 296; form of appointment of, 297; notice to, to attend counting of the votes, 297; form of, 297. AGREEMENT not under seal when binding, 6. ALDERMEN to be fit persons, 70 ; number of, 70 ; qualification of, 70; a councillor elected alderman vacates his office as councillor, 70. term of office, 70; retirement by rotation, 70; advantages of the system, 70; the cumulative vote, desirability of, 71. qualified to be mayor, 71; although out-going, 71. division of borough into greater number of wards not to affect qualification of, 81. to accept office by making required declaration, 85; within what time, 85; what notice required, 85; to pay fine for non- compliance, 85 ; amount of fine, 85 ; who exempt from serving the office, 85. declaration of acceptance of office to be subscribed before acting, 86; fine for acting witliout making declaration, 89. may resign on payment of fine, 86; resignation to be accepted by council, 86; how same to be signified, 86; refusal on conscientious grounds to make declaration, 86; resignation without payment of fine, effect of, 86; what is the remedy if council refuse consent to resignation, 86. eligible for re-election, 86. to be member of council during office, 86, 87. bankruptcy of, avoids office, 87; so, by composition with creditors or arrangement under Bankruptcy Act, 87; disqualification ceases on obtaining discharge, 87; when bankrupt, cannot 544 INDEX. ALDER},lEl>i— continued. resign, 88; in case of iDankniptcy council to declare office vacant, 87; when composition does not disqualify, 88. absence avoids office, 87; except in illness, 87; council to declare vacancy, 87; how to be signified, 87; when disqualified by absence, liable to fine, 87; when disqualification ceases, 87; not liable to fine when enrolled, though not entitled, 89. acts and proceedings of, to be valid, although disqualified, 89; title to office not to be questioned for defect in title of person before whom election held, 89. to be returning officer for ward, 94. (.See Retukning Officer.) time and mode of election of, 97; outgoing aldermen not to vote for, 98; manner of conducting election, 98; in case of an equality of votes, who to be declared elected, 98; an out- going, though mayor elect, not entitled to vote, 98; out- going, to vote for mayor and sheriff", 98, 99. casual vacancy when to be filled, 101. to act for mayor at elections when chosen by council in case of illness, &c., of mayor, 101; when returning officer, and in- capable of acting, mayor to appoint another in his stead, 101; who may be so appointed, 101. if mayor absent or incapable, may be chosen returning officer in parliamentary election by council, 222. cannot be clerk to the borough justices, 167; or recorder, 169; or coroner or deputy coroner, 176; or town clerk, 72; or treasurer, 73. neglecting or refusing to conduct or declare an election liable to a penalty, 104, 105. ALIEN cannot be a burgess, 61; may be naturalised, 62; when natura- lised has all the rights of a British subject, 62. ALMS, receipt of, disqualifies burgess, 62. not confined to parochial donations, 63. AMOTION incidental to a corporation, 37 ; vested in the council, 37 ; offences for which a coqjorate officer may be removed, 37, 38; even when such offences do not relate to his corporate capacity, 38; person charged must have notice to appear at council meeting, 38; summons must specify charge, 38; charge must be proved, 39; as to what amounts to a re- moval, 39. INDEX. 545 AKOTWiJ—contimied. in case of bankruptcy, 87; or absence, 87; or corrupt practices, 126. APPEALS against borough rate, 154; by whom, 154; to what court, 154; expenses of, 154. against summary conviction, 204. from decision of revising barrister, 344; who to be respondent in, 345, 347; consolidation of, 346; how appeals to be con- ducted, 347. procedure as to hearing of, 355, 356." APPEENTICE.— &e Fkeemen. ASSAULTS on constables, 187; punishment of, 187, 188; sa\-ing of prosecu- tion by way of indictment, 187. ASSESSMENT of mimicipal property to rates, 127; to income tax, 127. ASSISTANT CLERK OF THE PEACE.— &e Clerk of the Peace, ASSISTANT RECORDER. -See Recorder. ASSIZE COURTS.— 5fc6 Public Buildings. AUDIT of accounts of council, 78, 79; of accounts of overseers and col- lectors of separate borough rate, 156; of sepai'ate watch rate, 192. AUDITORS, to be three, 78; two elected by burgesses and one appointed by mayor, 78. elective auditor, qualification of, 78; may not be member of council, 78; or the town clerk, 78; or treasurer, 78. mayor's auditor must be member of council, 78 ; when ap- pointed, 78. term of office of auditors, 78; vacancy to be filled in ten days, 78; to audit treasurer's accoimts, 79; when, 79. AUDITOR ELECTIVE cannot be councillor, 66. to accept office by making required declai'ation within five days, 3n 546 INDEX. AUDITOR ELECTlYE^continued. 85; or pay fine, 85; amount of fine, 85; who exempt from serving, 85. declaration of acceptance of office to be subscribed before acting, 86. may resign, 86; fine to be paid, 86; resignation to be accepted by coimcil, 86; bow signified, 86; refusal on conscientious grounds to make declaration, 86; resignation without pay- ment of fine, 86; what is remedy if council refuse to declare vacancy, 86, eligible for re-election, 86. acts and proceedings of, to be valid notwithstanding disqualifica- tion, 89; title to office not to be questioned for defect in title of person for whom election held, 89. time and mode of election, 99; how day of election may be altered, 99; one voting paper to be used at election of, and of revising assessors, 99; forms of ballot paper, 264; how candidates to be therein distinguished, 99 ; each voting paper to be deemed a separate voting paper in respect of each office, 99; an elector not to vote for more than one, 99; where election to be held, 99; the provisions of Muni- cipal Corporations Act, 1882, as to councillors, to apply, 100. casual vacancy when to be filled, 101 ; practice at election of, 330. duties of. {See Auditors.) AVOIDANCE of office by bankruptcy, 87; by composition or arrangement with creditors, 87. what is such a composition, 88 ; when such disqualification ceases, 87. through absence, 87; liable to fine, 87; when such disqualifica- tion ceases, 87; in such cases council to declare office vacant, 87; how to be signified, 87. of election for corrupt practices by candidate, 107; of election by corrupt practices by agent, 108; of election for certain offences by candidate, 108; of election for certain offences by agent, with candidate's knowledge, 108. of election by general corruption, 108. of engagements for expending corporate funds in parliamentary election expenses, 140, 141. BAIL, ^1 constables may take, in certain cases, 212; how to be taken, 212; proceedings thereon, 212. INDEX. 547 BALLOT ACT, 1872, THE. Election Officers. general powers and duties of returning officers, 418; presid- ing officer to keep order in the polling station, 418; powers of presiding officer to administer oaths, 419; liability of, for misconduct, 419. Forms of ballot paper, 434. of declaration of secrecy, 435. of inability to read, 435. Offences at Elections, infringement of secrecy, 417; forging, or defacing, or destroy- ing nomination paper, 416; delivering same knowing it tobe forged, 416; forging, or defacing or destroying ballot paper, 416; forging or counterfeiting official mark, 416; supplying ballot paper without authority, 416; fraudu- lently putting ballot paper into box, 416; fraudulently taking away ballot paper, 416 ; interfering with ballot box, or ballot papers, 416; attempt to commit these offences, 416; punishment, 416; indictment or other prosecutions for, 416. Penalty on returning officer, presiding officer, or clerk, for miscon- duct, 419. Personation, definiton and punishment of, 421 — 423. Procedure at Elections. conduct of poll at elections, 414. voting to be by ballot papers, 414. method of voting, 414. the close of the poll, 415. ^ counting of votes, 415. validity of votes, 415. Rules for Conduct of Elections. the poU, 424—427. counting votes, 427 — 430. general provisions, 430 — 432. rules for municipal elections, 433. Rules, non-compliance with, not to invalidate election, if conducted in accordance with the principles of the Act, 420. ballot boxes, iise of, at municipal and parliamentary elections, and vice vcrsd, 420. 2n2 648 INDEX. BALLOT ACT, 1812— continued. Seckecy. officers, clerks, and servants to assist in maintaining the secrecy of the voting, 417 ; punishment for non- observance, 417. contested election of councillors to be conducted in accordance with, 96 ; provisions of, to apply to agents when appointed, 96 ; contested election of elective auditors and revising assessors to be conducted under, 99 ; provisions in case Ballot Act, 1872, ceases to be in force, 105. modification of provisions of, in its application to municipal elections, 246. provisions of, as to voting of returning officer, not to apply to municipal election, 246 ; nor the provisions of, as to use of room, 246 ; or as to the right of persons to vote on register of voters, 246 ; nor rules 16 and 19 in the schedule thereto, 246 ; and no return to be made to the Clerk of the Crown in Chancery, 246. enactments to revive on expiration of, 247, 248. BALLOT BOXES, under the Ballot Act, 1 872, 287. \ise of, at municipal and parliamentary election, and vice versa, 420. r J , , BALLOT PAPER ACCOUNT, under The Ballot Act, 1872, 289, 306, 311. BALLOT PAPERS, the practice as to providing, 282. tendered, the practice as to, 283. oath to be taken before tendered, is given to a voter, 285. where invalid, 318 — 328. void for want of official mark, 318. void for voting for more candidates than entitled to, 318. void for writing or mark, by which voter can be identified 319—328. good, illustrations of, 322 — 325. bad, illustrations of, 325 — 327. . void for being unmarked, or for uncertainty, 327, 328. BANK OF ENGLAND, definition of, 60. sinking fund to be invested in annuities, in books of, 132 when transfer of such annuities permitted, 132 ; where pur- chase money or compensation paid into, 133 ; corporate stock standing in, how to be transferred, 135; when INDEX. 549 BANK OF ENGLAND— ccwi^mMed belonging to mimic ipal charities, 135 ; when to corporation, 136 ; when not bound to see to application of proceeds 136. BANKRUPTCY, when it avoids office, 87 ; when such disqualification ceases, 87. BILLS, parliamentary promotion of, or opposition to, 512—517 ; standing orders of House of Commons in relation thereto, 517 ; how costs of, to be taxed, 517. BIRTH, claim by, to be freeman, 25, 194 ; mayor to examine claim, 194. BLINDNESS exempts from serving corporate office, 85. BOROUGH, definition of, 59 ; municipal corporation of, 64 ; who to have the government of, 57. burgess to reside in, or within seven miles of, 61. councillors to reside within fifteen miles of, 64. documents of, town clerk to have custody of, 72. council to appoint officers of, 74. bye-laws for good rule and government of, to be made by coun- cil, 76. division of, into wards, 80 ; or alteration of wards, 80, 81 ; division of, into polling districts, 100. returning officer for, when not divided into wards, 94. returning officer at parliamentary election for, 222. election petition to be tried within, 115 ; high court may appoint some other place, 115. bridges within, to be maintained out of borough funds, 137. administration of certain charitable trusts of, 145. local Acts, for paving and lighting, &c., of, may be transferred to council, 148. jurisdiction of county justices in, 161, 162. grant to, of separate commission of the peace, 162, jurisdiction of borough justices in, 164. grant to, of separate court of quarter sessions, 168. juiisdiction of civil court of, may be extended, 181. juries in, 181. constables of, 185 ; assaults. on constables, and resisting them in the execution of duty, in, 187, 188; jurisdiction of, in, and ■SA-ithout, 185. freemen in, 194. 550 INDEX. BOB^OUQH— continued. grant of charters to, lOY— 204. {See Charters.) boundaries of, 213. (&e Boundaries.) returning officer at parliamentary elections for, to be the mayor, wlien not a city or county of itself, 222 ; when a city or county of itself, tlie council to choose a sheriff, 175 ; such sheriff to h' ' turning officer for, in parUamen- tary deo^-ions, I7u. not liable to pay county rates when there is a separate court of quarter sessions, 158 ; not exempt thereby from rates as- sessed on the hundred, 159 ; liable to contribute to county rate for sums expended in prosecution of offenders, 159 ; liable to pay costs attending prosecutions for felonies com- mitted in, 174, 175. when liable before 1832, to pay contributions to county, such liability to continue, 159. mode of accounting by, to coimty, 160. inquests in, having court of quarter sessions, to be taken by borough coroner. 176. inquests in, not having court of quarter sessions, to be taken before county coroner, 177. electors in disfranchised parliamentary, 223. BOKOUGH AND LOCAL COURTS OF RECORD ACT, 1872, saving of, 181 ; provisions of, 510, 511. BOROUGH BRIDGES, maintenance of, 137; when council to repair, or rebuild, 137; powers of council for that purpose, 137; how expenses to be paid, 137; council, with consent of treasury, may borrow money for such expenses, 137. form of mortgage for raising money for, 269; form of transfer of such mortgage, 270. BOROUGH CIVIL COURT, definition of, 60 ; who to be judge of, 177 ; appointment of • deputy judge, 177; tenure of office, 178; remuneration of judge and deputy judge, 178; orders, affidavits, and matters, except trial of issues, may be made, sworn, or done, before registrar, or a barrister, or solicitor appointed by recorder, 178; disuse of court no answer to mandamus commanding to hold one, 178. solicitors may practise in, 179. time of holding, 179; procedure in, 179; judge to make rules for procedure in, 179. jurisdiction of, 180; may be extended by order of the council on joint petition of county justices and council, 181. INDEX. 551 BOROUGH CIVIL COURT— continued. remuneration of judge of, to be paid out of borough fund, with- out order of council, 249. BOROUGH FUND, what to be paid into, 150; proceeds of sale of burgess rolls, &c., to go to, 93 ; all payments to and out of, to be made through treasurer, 152 ; payments to treasurer to be paid into, 152; borough rate to go to, 158. application of, 150, 249; payments to be made without order of council, 150, 249, 250 ; payments to be made with such order, 150, 250; what other payments may be made out of, 150, 151, 250—255. how orders for payment out of, by council, to be signed, 151 ; town clerk to countersign, 151; such orders may be removed hy certiorari, 151; within what time, 151, 152. powers of court as to, 151, 152. application of surplus of, 152 ; when in aid of the costs of carrying out the Public Health Act, 1875, 152; when such surplus arises from borough rates, 158. all expenses payable out of, charged thereon by Act of Pai'lia- ment or otherwise by law, 252, all other expenses necessarily incurred in carrying into effect the Municipal Corporations Act, 1882, 253, costs of promoting or opposing bills in parliament may be charged on, 513. parliament may dispense with compliance with the Municipal Corporations (Borough) Funds Act, 514. (See Municipal Corporations (Borough) Funds Act, 1872.) BOROUGH JURIES, bm-gesses to be jurors, 181 ; who exempt, 181, 182, 183 ; who disqualified, 183. clerk of the peace to summon, for quarter sessions, 181; registrar of civil court, for that court, 181 ; how summons to be signed, 181; how to be served, 181. no person to be summoned more than once in. a year, 182 ; exception thereto, 182; penalty on person failing to attend, 182; or withdrawing from court without leave, 182 ; how penalty to be enforced, 182. BOROUGH JUSTICES, mayor to be officially, 162; for what time, 162; mayor to have precedence over, but not over county justices, except when acting in business of borougli, 162; but not over stipendiary, engaged in administering justice, 162. 552 INDEX. BOROUGH JUSTICES— continued. may be appointed by Her Majesty, 162; not to act nntil oaths have been taken, and declaration made, 163; to reside in, or within seven miles of borough, 163; how distance to be measured, 217 ; or occupy a house, &c., in the borough, 163 ; need not be c[ualified by estate, or be a burgess, 163 ; form of oaths, 163 ; before whom to be taken, 163 ; affirma- tion in lieu of, 163 ; solicitors or proctors may be, 163 ; sheriff may not be during ofiice, 164, to have in borough same jurisdiction as a justice for a county, 164 ; not to act at gaol delivery, 164 ; or quarter sessions, 164 ; or in making any county or borough rate, 164 ; may act, though liable to borough rate, 164 ; when interested not to act, 164, 165, 166. to appoint clerk, 167; his tenure of office, 167; who not to be appointed clerk, 167; clerk or his partner not to be inte- rested in prosecution, 167; penalty for contravention, 167; who entitled to penalty, 167; as to clerks appointed before 1861, 167; clerks to be paid by salary, 167; to hold office during pleasure, 167 ; quo warranto not proper method of removal, 167. persons guilty of corrupt practices at elections, disqualified from acting, 107, 450. BOROUGH QUARTER SESSIONS.— ySee Quarter Sessions. BOROUGH RATE, payment of instalments due, qualifies burgess, 84; when to be made, 152; to be made by council, 153; estimate for, 153, 155; may be made retrospectively, 153. council to assess contributions thereto of several parishes in the borough, 153; on what principle, 153; council to have access to books of assessment of any rates or taxes, 153 ; may take copies thereof, or extracts therefrom, 153; and may cause clerk to commissioners of taxes to make returns, 153; penalty for non-production of such books, 154; or not permitting copies or extracts to be made, 154; if poor rate not a fair criterion of value, independent valuation may be made, 153 ; power of entry to assess lands, 154 ; appeal against, by overseers, 154; on what grounds, 154 ; to what court appeal to be made, 154; expenses of, 154. no appeal against, by individu.al ratepayers, 155; collection of, 155. in undivided parishes, overseers to pay same out of poor ratfe, 155; remedy against overseers making default, 155, 156. in divided parishes, 156; overseers to raise, as a separate rate, or with poor rate, 156; appeal against, 156; penalty on over- INDEX. 553 BOROUGH RATE— continued. seers making default, 15G; how overseers to account, 156; api)lication of balance in hands of overseers, 157; remedy f(ir default, 157; who to collect separate rate, 157; costs of, how to he paid, 157. when o\vners to be rated to, instead of occupiers, 157; when the Poor Rate Assessment and Collection Act, 1869, to apply to, 157. warrants for levying and collecting, to be signed by mayor and sealed, 157. proceeds of, to go to borough fund, 158 ; application thereof, 158. justice may act, though liable to pay, 164; recorder not to make, 171. BORROWING POWERS of council, 127; for what purposes, 127, 128, 131, 137. conditions of exercising, 127, 128, 131, 132. BOUNDARIES OF BOROUGHS, what places to be within, 213; adjustment between, and counties, 214; places ceasing to be included in, disputes as to con- tributions by, to debt, 214; such disputes to be settled by arbitration, 214 ; costs thereof, 214. existing, saving of, 226. BRIBERY, what to include, 106 ; prosecutions for, 109 ; in what manner expenses of, to be paid, 109; clerk of the peace to prosecute for bribery, 109; affords ground for election petition, 110. definition of, in the Corrupt Practices Prevention Acts, 438, 440; penalty for, 439, 441; serving of payment made bo7id fide for legal expenses, 439; names of offenders to be struck off register, 444. no indictment for, to be triable at quarter sessions, 445. an offence at common law, 439; definition of, at common law, 439. a person guilty of several acts, liable to a penalty in respect of each, 439. BURGESS, definition of, 59; must be enrolled, 61; qualification of, 61; as to age, 61 ; as to occupation, 61 ; as to residence, 61; as to time, 61; as to rating, 61; as to payment of rates, 61; alien disqualified from being, 61 ; how alien may be natu- ralized, 62; receipt of union or parochial relief or other alms disqualifies burgess, 62; parochial relief to a father of a burgess, 62; to wife, or children under sixteen, 63; children 654 INDEX. BV'RQ'ESQ— continued. of widow, 63; when alms are not a disqualification, 63; overseers to ascertain who are in receipt of parochial relief, 63; education of child at public or endowed school no dis- qualification, 84; the same of medical or surgical assistance, or removal to a hospital under certain conditions, 84 ; persons disentitled under Act of Parliament, 63; constable entitled to be enrolled but not to vote, 63; persons con- victed of treason or felony disqualified, 63; felons pardoned, or who have endured their punishment, may vote, 63; disqualification for corrupt practices at elections, 63, 107. enrolled in burgess roll to be deemed entitled, and vice versd, 91; not to be enrolled in more than one ward roll, 91; no stamp duty payable for enrolment, 91; not to be employed as paid canvasser, 108. BURGESS LISTS IN NON-PARLIAMENTARY BOROUGHS to be made oiit in accordance with the Municipal Corporations Act, 1882, 90; overseers to make out, 238; form of list, 258; at what time, 238; to sign, 238; what is suflQcient signature, 238; penalty for neglect, 104, 105; printed copies to be kept for public inspection, 238; to be fixed on town hall, 238; for what time, 238. claims and objections, 239; notice of claim, 239; to whom notice to be given, 239 ; forms of claim and of notice of objection, 258, 259; lists of claimants and of persons objected to, to be made out by town clerk and printed, 239 ; town clerk neglecting his duty, in respect of, liable to a fine, 105; to be fixed on towTi hall, 239; to be open to inspection, 239; forms of such lists, 260. to be revised by mayor and assessors, 239; assessors refusing to revise, liable to a fine, 104 ; mandamus to compel them to hold court, 239; mandamus to compel mayor to insert name, 240; when revision court to be held, 240; where to be held, 240; notice thereof, 240; town clerk to produce to revision court all lists, 240; powers and duty, of court, 240; person in more than one ward to choose in which he will be retained, 241 ; court to determine in default, 241 ; court to correct mistakes in lists, 241 ; overseers, &c., to attend court, 241; to produce poor rate books, 241 ; examination of persons on oath, 241 ; the duty of mayor as to corrections or omissions, 241; mayor to sign every page, 241;|adjournment of court, 241; when revised to be delivered to town clerk, 90; to be arranged alphabe- tically, 92; unless council orders the arrangements to be by streets, 92, 382; claimant rejected or expunged, may apply for mandamus, 92, INDEX. 555 BURGESS LISTS IN PARLIAMENTARY BOROUGHS to be made out and revised under the provisions of the Parlia- nientarj' and Municipal Registration Act, 1878, 90, 92. to be printed by town clerk, 93; to be sold at reasonable price, 93; Aviiat fund proceeds to be carried to, 93. See Pauliamk^tary and Municipal RjEGiktration Act, 1878. BURGESS ROLL, how formed, 91 ; when to be completed, 91 ; when to come into operation, 91, 392 ; how to be numbered, 91 ; duplicate under Parliamentary and Municipal Registration Act, 1873, 91; person on, not liable to fine for acting, although not entitled, 89; want of title in mayor not to affect validity of, 89; person enrolled in, to be deemed a burgess, and vice versd, 91; no stamp duty payable in respect of enrolment, 91 ; names to be arranged alphabetically, 92 ; or in streets, when council so orders, 92, 382. in parliamentary boroughs, alterations or corrections to be in manner provided by the Parliamentary and Municipal Regis- tration Act, 1878, sect. 35, 92, 393; any alteration or correc- tion to be made and signed by town clerk, 393. to be printed by town clerk, 93; to be sold at reasonable price, 93; what fund', proceeds to be carried to, 93. not made in due time, old roll to remain in force, 103. BYE-LAWS, power to make by a corporation, 10; illustrations of, 11; against carrying on trade illegal, 12 ; for regulating trade, or pro- tecting public safety or health, legal, 13; illustrations, 13; when bad, 13; cannot inflict imprisonment, 13; may be good in part and bad in part, 14; may be repealed, 14; validity of may be tested in an action, 14; penalties for Breach of, recoverable in action, 16; for payment of money on enrolling indenture bad, 27; for good rule and govern- ment of to\vn, may be made by council, 76; for prevention and suppression of nuisances, 76; fines for non-observance, 77; how to be made, 77; oftence against, may be prosecuted summarily, 77; saving of operation of Public Health Act, 1875, sect. 187, 77. evidence of, 78; authorizing expenditure of corporate funds on parliamentary elections, void, 141. council to make, for fixing fines on non-acceptance of corporate office, 85. council to make, fixing remimeration of recorder as judge of the borough civil court, 178. 556 INDEX. CAMBRIDGE, VICE-CHANCELLOR OF, special provisions as to, 225; saving of his rights, 225. CANDIDATE, definition of, 106, 448; appointment of agent by, 96, 294; notice thereof to retnrning officer, 96; provisions of the Ballot Act of 1872 to apply to such agents, 96; may require questions to be put to voters, 97. election of, to be void when guilty of corrupt practices, 107. election to be void when guilty of corrupt practices by agent, 107; disqualifications theiefor, 107, 108. not to employ a burgess as paid canvasser, 108; penalty there- for, 109; paid agent or canvasser not to vote, 109. penalty therefor, 109. not to pay for conveyance of voters, 109; penalty therefor, 109. may present election petition, 110. two or more, may be made respondents to same petition, 113. parliamentary, corporate fiinds not to be expended in payment of expenses of, 140, 141. definition of, in The Corrupt Practices Prevention Acts, 448. notice to, of nominations, 244, 277. notice by, of withdrawal from nomination, 245, 278. may appoint agent to attend proceedings before the mayor on nomination papers, 244; form of such appointment, 279. notice of, duly nominated, 245, 280. notice to, when successful, of their election, 329; how such notice should be served, 329. See Corrupt Practices Prevention Act, 1854, tit. Can- didate. CANVASSER, - definition of, 106; who not to be, 108; fine for retaining con- trary to Act, 109; not to vote, 109. fine for voting, 109. CASTING VOTE to be given by returning officer when there is an equality of votes, 96; to be given by chairman when there is an equality of votes at election of aldermen, 98; same as to mayor, 99. CASUAL VACANCY.— /See Vacancy. CERTIFICATE to witness who has fully answered at trial of election petition, 118; effect of, 118. of necessity for holding second court at quarter sessions, 174. INDEX. 557 CERTIFICATE— conimwed. of necessity to appoint deputy coroner, 176, of recorder for payment of remuneration to assistant recorder, assistant clerk of the peace, and crier, 248. CERTIORARI, order of council for payment ot money may be removed by, into Queen's Bench Division, 151; the court may disallow or confirm the same, 151; as to costs, 151. conviction order, &c., not to be removed by, 204. CHAPEL, municipal election not to be held in, 102; as to schoolroom under, 102. CHARITABLE COMMISSIONERS, saving of powers of, 146. CHARITY TRUSTS, administration of, 145, 146; saving of powers of charitable com- missioners as to, 146; transfer of, and other dealings with, 135, 136. CHARTERS to be in custody of town clerk, 72; where to be kept, 72. may be granted to the inhabitants of any town, constituting it a municipal borough, 197; the advantages to be gained thereby, 197, 198. petition for, to be referred to committee of privy council, 198; notice of time when same will be taken into consideration to be published, 198. where granted may settle wards and fix all things so as to adapt the Municipal Corporation Acts to the constitution of new borough, 198, 199. committee of Privy Council may settle a scheme for adjustrnent of existing rights and liabilities, 199; such scheme to be published, 200; local authority or ratepayers may petition against, 200; when scheme requires to be confirmed by Parliament, 200; when by Privy Council, 201 ; scheme to be referred to Secretary of State, 201; requirements of scheme, 201, 202, 256; procedure for scheme, 256, 257; scheme not to authorize establishment of police force where not more than 20,000 inhabitants, 202; settlement of scheme in case of recent charters, 202; power to amend scheme, 203. validity of, not to be questioned, 203; to be laid before Par- Hameut, 202. 558 INDEX. CHILD.-S^ee School. CHRISTMAS T>kY.—See Sundays. CINQUE PORTS, special provisions as to, 223, 224, 225; saving of Cinque Ports Act, 1869, 225; saving of jmisdiction of lord warden of, 228. CLAIM by occupier to be rated, 83; effect of, althougli not rated, 84. to be inserted in burgess list, 239. to be inserted in separate list of persons qualified to be coun- cillors, but not burgesses, 93. to be admitted freeman, 194. CLAIMANTS.— /See Burgess Lists. omitted from overseer's list to give notice of tbeir claim, 336. CLERGYMAN cannot be councillor, 66; may act as co-optative member of committee, 67; may relinquish his position by deed en- rolled, 273. CLERK OF THE PEACE, when to prosecute for bribery, undue influence, or personation, 109; the costs thereof, 109. appointment of, 170; his tenure of office, 170; power to appoint deputy, 170; appointment of deputy to be signified to council, 170. fees to be taken by, 170; new table of fees may be made by council, 170; Secretary of State to confirm or disallow, 170. may be paid by salary, 170, 485. how to be removed for misconduct, 170. to give notice of holding quarter sessions, 181; to summon grand jury, 181; and petty jury, 181; how summons to be served, 181; by whom to be signed, 181; to make a list of such juries, 181. duties of, as to fines and forfeitures, 205. to make estreats and schedules of recognizances taken by con- stables at watch-house, 212, 213. remuneration of, to be paid out of borough fund, -without order of council, 250. CLERK TO BOROUGH JUSTICES to be appointed by justices, 167; his tenure of office, 167; alderman, councillor, clerk of the peace or his partner not to be, 167; not to act by himself or partner in borough pro- INDEX. 559 CLERK TO BOROUaH JUSTICES— continued. eecutions, 1G7; fine for acting in contravention, 167; ap- pointed before 1861, 1G7. remuneration of, to be paid out of borough, fund, without order of council, 250. must be paid by salary, 485, 489. to account for fees, 487, 493. unclaimed penalties to be paid to treasurer, 490. power of local authority and Secretary of State as to table of fees and adjustment of fees, 491. COCKADES, prohibition of, 444. penalty, 444. COLLECTORS of poor rates to attend revision court, 241; to give evidence, 241. of separate borough rates, their duties and powers, 156, 157. collectors of taxes, duties of, under Parliamentary Registration Act, 1843, see Parliamentary Registration Act, 1843, tit. Assessors and Collectors of Taxes. COMMISSION OF THE PEACE, grant of, 162; justices may be assigned to borough having, 162. not to be affected by subsequent grants to counties, 183. COMMISSIONER to be appointed by Secretary of State to prepare scheme for determining boundaries ofAvards, 61; to apportion coun- cillors among wards, 81; to fix number of councillors to each ward, 81; to make scheme in duplicate, 82; powers of, 82; remuneration, 82, 248, 252. COMMITTEE OF PRIVY COUNCIL.— &e Privy Council. COMMITTEES, council may appoint, 75; out of their own body, 75; acts of, to be submitted to council, 75; effect of ratification, 76; member interested pecuniarily by himseK or partner not to take part in, 75; proceedings not to be questioned on account of any vacancy, 76; minutes of, 76; how signed, 76; Avhen receivable in evidence, 76; proceedings to be deemed regular, 76; to have been duly constituted, 76; to have powers to deal -with matters in minutes, 76. {See Watch Committee.) COMMON SEAL.— Sec Corporate Seal. 560 INDEX. COMPANY incorporated by statute, share in, not to disqualify councillor, 67. COMPANIES ACT, 1862, what it includes, 67, 69; share in company established under, does not disqualify councillor, 67. CONSOLIDATED FUND chargeable with costs of maintenance and conveyance of offenders, 159; also -w-ith clothing of juvenile offenders sent to a reformatory, 159; and of criminal lunatics, 159. chargeable with such portion of the pay of the police as the Treasury deem expedient, 499. condition precedent to obtaining same, 498, 499. CONSTABLE may be enrolled a burgess, 63; when he may not vote, 63. to assist election court, 122; to execute warrant of election court, 461. to be appointed by watch committee, 185; to make declaration before a magistrate, 185, 186; jurisdiction of, 185; powers of, 185; to obey lawful commands of justices, 185. two justices may suspend, 185; watch committee may dismiss, 185; when dismissed powers to cease, 186; cannot vote at elections or influence voters, 186. may apprehend persons disturbing the public peace, 187; and persons suspected of intention to commit felony, 187. guilty of neglect or disobedience liable to punishment, 187; penalties for, 187. assaults on, 187; resisting or obstructing in execution of duty, 187; how these offences punished, 187. may take bail when on duty at watch-house for appearance of defendant in petty misdemeanor, 212: such bail to be by recognizance, 212; force thereof, 212; to be entered in book kept for that purpose, 212; such book to be laid before the justice, 212; how recognizance to be estreated, 212; justice may enlarge recognizance, 213; to be discharged without fee, 213. CONSTABLES, SPECIAL.— fe Special Constables. CONTRACTS, when binding, though not under seal, 7; partly executed, 7. when disqalifying councillor, 66; as to lease or sale of land, 66; as to loan of money, 66; as to newspaper, 66; as to company for lighting, or supphong water, or insuring against fire, 66. INDEX. 561 CONVEYANCE of voters to poll by candidate or his agent illegal, 109; penalty for, 109. CONVICTIONS, appeals against, 204; to quarter sessions, 204. not to be quashed for want of form, 204; not to be removed by certiorari, 204. COPIES OR EXTRACTS printed, of burgess list and burgess roll, 9.3; of lists of claimants and respondents, 93; to be sold, 93; proceeds, how to be disposed of, 93. of books of assessment of rates and taxes and valuation list may be required by council, 153; penalty on person failing to comply with such request, 154, 155. of minutes of council by burgess, 217; of order of council for payment of money, by burgess, 217. of treasurer's accounts, by member of council, 217; of abstract of treasurer's accounts, by ratepayer, 217. of freemen's roll, by any person, 217. refusing to give, penalty for, 218; how recoverable, 218, CORONER, appointment of, 176; his tenure of office, 176; when vacancy to be filled up, 176. remuneration of, 176, 249, 250. to appoint a deputy, 176; to be a barrister or solicitor, 176; not to be a member of the council, 176; mayor or two justices to certify necessity of appointment of deputy, 176; such certificate to be read at every inquest, 176. to make returns to Secretary of State, 177. where borough has not quarter sessions county coroner to act, 177. in cinque ports jurisdiction to extend to the non-corporate members and liberties, 224. CORPORATE LAND, definition of, 59. {See Land.) CORPORATE OFFICE, definition of, 59; fine for non-acceptance of, 85; resignation of, 86; cannot resign without payment of fine, 86; person not to act in, without making required declaration, 89. acting in, after ceasing to be qualified, 89; the fine in such cases, 89; no fine, if in fact enrolled, though not entitled, 89. 2 o 662 INDEX. CORPORATE OFFICE— contin ued. when does a person act in, 89; acts of person in possession of, valid, 89; election to, not to be questioned by defect of title of person before whom election held, 89. acts of, pending a petition, not invalidated, 126; when declared void, new election to be held to supply vacancy, 126; when vacancy occurs, 126. list of persons who cannot be compelled to serve, 227. person over sixty-five exempt from serving, 85; blindness, deaf- ness, or other permanentlntirmity exempts from serving, 85. procedure against persons for acting in, without making re- quisite declaration, 206; for acting after becoming dis- qualified, 206; time within such action must be brought, 206; proceedings in such action, 206; where person claims to be qualified for, in respect of estate, onus of proof lies on him, 206. limitation of time for quo tvarranto and mandamus against person holding, 207 ; procedure therein, 207. {See Man DAMUS and Quo Warranto.) CORPORATE SEAL, corporate seal, 4; what acts may be done without, 4; af&xing seal without authority, 5; sealing sufficient without deli- very, 5; when corporate resolution binding without, 5; officers to be appointed imder, 6; acts of daily occurrence do not require seal, 7 ; acts to be done immediately do not require seal, 8; executed contracts, 9. definition of, in Municipal Corporations Act, 1882, 59. copy of bye-laws under, to be evidence of, 78. warrants to overseers and others to enter or view land for re- assessment to be sealed with, 154, warrant of distress to seize overseer's goods to be sealed with, 156. warrant for levy or collection of borough rate to be sealed with, 157. copy grant of quarter sessions to be sent to clerk of the peace for the county, to be sealed with, 169. to be affixed to warrant for watch rate, 193. forging, 218; tendering in evidence document with forged, 218; punishment, 218. CORPORATE STOCK, transfer of, 135; when belonging to trustees of municipal charities, transfer of, 135; when belonging to corporation, 136; what receipt to be sufficient, 136; person receiving, how to account, 136, dividends to be carried to borough fund, 150, INDEX. 663 CORPOKATIONS GENERALLY, delinition of, 1; lights, &c., transmitted to successors, 2; eccle- siastical and lay, 2; eleemosynary and civil, 2; power to make bye-lawe, 10; illustrations of, 11; actions by and against, 15; must appear by attorney, 15; foreign, may sue in this country, 15; may sue for penalties for breach of bye-law3, 16; cannot sue for bond made to mayor, 17; may maintain actions for trespass, 17; against sheriffs for exe- cuting process where return of writs granted to them, 17; action does not abate by death of one of the cori)orators, 17; may institute a criminal prosecution, 17; may be compelled to enter an appearance, 18; not liable generally in tort, 20; liable for carelessness or assault by servants, 21; or un- skilfulness, 21; for a misfeasance, 22; malicious prosecu- tion, 22; neglect of public duties, 22; on criminal informa- tion, 22. perpetual succession, 24. Crown, the visitor of, 29; may be compelled to do public duty by mandamus, 30. corporators may be removed by quo warranto, 33; when to be applied for, 33; must be no delay, 34; who may be relator, 34. power of amotion incidental to, 37; for what acts, 37, 38 ; how exercised, 38, 39; charge must be proved, 39. CORPORATION, MUNICIPAL.— See Municipal CoRroRATiON. CORRUPT PRACTICE, definition of, 107. by candidates, 107; how punishable, 107, 450; by or with knowledge and consent of candidate, 107; on report of election court, 107, 451; avoids election, 107; consequent disqualifications of candidate, 107, 451; how punishable on indictment or information, 108; consequent distpiulifica- tions, 108; removal of disqualifications, when obtained by perjury, 108, 451. by agents, 108; how punishable, 108; avoids election, 108. general corruption, bribery, treating, or intimidation avoids election, 108. votes obtained by, to be struck off on scrutiny, 110. penalty for employing corrupt agent, 450. CORRUPT PRACTICES PREVENTION ACT, 1854, THE. Actions, Prosecutions, Indictments, limitation of time for commencing, 445, 449. parties to be competent witnesses, 446. general allegations sutlicient in one indictment, 449. 2 o JJ 564 INDEX. CORRUPT PRACTICES PREVENTION ACT, 1854— continued. Bribery, clefinitiou of, 438. penalty, 439. saving to any payment made bond fide for legal expenses, 439. further definition of, 440. penalty, 441. names of offenders to be struck off register and inserted in separate list, 444. no indictment for, to be triable at quarter sessions, 445. candidate declared guilty of, 447. Candidate, definition of, 448. amended by 21 & 22 Vict, c. 87, 448. Cockade, etc., no cockade, ribbon, or mark of distinction to be given or provided, 444. penalty, 444. Penalties, how to be recovered, 444. costs and expenses' of prosecutions, 445. in cases of private prosecutions, 445. prosecutor not entitled to costs unless he shall have entered into a recognizance, 445. limitation of actions for, 445. in actions for, parties to be competent witnesses, 446. Prosecutions, court may allow costs and expenses of, to prosecutor, 445. in cases of private, costs allowed if judgment be given for the defendant, 445. prosecutor not to be entitled to costs unless he shall have entered into a recognizance, 445. in indictments general allegations to be sufficient, 449. Treating, definition of, 441. penalty, 441. voters accepting, to be incapable of voting, 441. names of offenders to be struck off register and placed on separate list, 444. candidate guilty of, 447, Index. 565 CORRUPT PRACTICES PREVENTION ACT, 1854— continued. Undue Influence, ilellnitiou of, 443. penalty, 443. names of olfenders to be struck off register and inserted in separate list, 444. no indictment for, to be tried at quarter sessions, 445. candidate guilty of, 447. COUNCIL, of whom to consist, 64; council as such not incorporated, 64; corporation act by council, 64. appointment of deputy mayor to be signified to, 71. may fix remuneration for mayor, 71. to appoint town clerk, 72; to direct bow town clerk shall keep documents, 72; to fill vacancy in that office within twenty- one days, 72; may appoint a deputy town clerk, 72. to appoint a treasurer, 73; to fill vacancy in that office within twenty-one days, 73. to appoint other officers, 74; to take security from them, 74; what such security shall be, 74; to allow officers renmnera- tion, 74, may require officers to account, 74; may proceed criminally against officers, 75. meetings and proceedings of, 75; rules for meetings, 235, 236, 237, 238. may appoint committees, 75; out of their own body, 75; acts of committee to be submitted for approval, 75; eft'ect of ratifi- cation by, 76. member of, cannot vote or take part in the discussion of any matter in which he has any pecuniary interest, 75, 76. vacancy in council or committee not to invalidate proceedings, 76; minutes signed at tlie same or next meeting by the mayor or chaimian of meeting at which minute is signed to be received in evidence, 76. meetings of council to be deemed to be duly convened, 76; and the members qualified, 76. See Council Meetings, and Proceedings. may make bye-laws for good rule and government of town, 76; for suppression of certain nuisances, 77; may impose fines for non-observance, 77 ; two-thirds of council to be present when bye law made, 77. accounts, to fix time for making up, 78. division of borough into wards, council may petition for, 80; or for alteration of wards, 80. on resignation and payment of fine to declare corporate office vacant, 86; three members of, to sign declai-ation of 566 INDEX. COUNCIL — continued. vacancy, 86; the same as to vacancy by bankruptcy or composition, 87; the same as to vacancy by absence, 87; how compelled to declare vacancy, 86; when to determine rotation of councillors, 88. acts and proceedings of, to be valid notwithstanding disqualifi- cation of councillors, 89. may direct burgess roll to be numbered consecutively, 91. may direct in what order parish burgess lists, burgess roll, ward roll, and lists of claimants and respondents shall be arranged, 92, 382. to elect aldermen, 97; when, 97; in what manner, 98. on death, or absence, or incapacity of mayor to choose an alder- man to conduct elections, 101. may build public buildings, 127. {See Public Buildings.) may borrow with approval of Treasury, 127; on what security, 127; for what purposes, 127, 128, 534, 539. See Local Loans Act, 1875. cannot sell corporate land without approval of Treasury, 128; may make certain leases without such approval, 128 — 130; with approval of Treasury may dispose of corporate lands, 129. may appropriate land for workmen's dwellings, 130; may grant leases for, 130; may make roads, &c., 131; may insert special conditions in leases, 131. to maintain borough bridges, 137; powers of, for this purpose, 137; expenses to be paid out of rates or borrowed money, 137; may borrow for this purpose with consent of Treasury, 137. not to expend corporate funds on parliamentary elections, 141. council to appoint trustees in case of joint trusts existing before 1835, 147; to fill up vacancies, 148. to make borough rate, 153; to estimate the amount thereof, 153; may include retrospective payments, 153; for what length of time, 153, 155. to assess contributions from parishes to borough rate, 153; such assessment to be made according to valuation list, 153; may order independent valuation where valuation list an unfair criterion, 153; to have access to books of assessment for rates and taxes, 153; may make copies or extracts, 153; may call upon overseers to give evidence, 153; may cause copies of total amount assessed to any tax payable to Crown, to be made, 153; penalty on persons failing to obey, 154; may direct overseers and others to enter and view property, 154. INDEX. 567 COVaJClL— continued. to order payment of sums due to county, 160; how enforced if default made, IGO; ditierences arising between, and county to be settled by arbitrator, 161; costs of arbitration, 161. to provide justices' room, 167, 168; may petition for stipendiary magistrate, 168; to consent to increase of his salary, 168; on vacancy in office of stipendiary magistrate, new appoint- ment not to be made without approval of, 168. may petition for separate court of quarter sessions, 168; petition to set forth grounds of application, &c., 169. petition to state salary, 169; salary not to be increased without approval of, 169. to appoint clerk of the peace, 170; may arrange to pay him by salary, 170. may make new table of fees to be paid to clerk of the peace, 170; such table to be submitted to Secretary of State, 170. council may resolve that it is expedient to hold secoud court of quarter sessions, 173; resolution to continue in force for twelve months, 174. to pay the costs attending the prosecution of felonies, 174. to appoint sheriff, 175; when appointment to be made, 175. to appoint coroner, 176; not to be a member of the council, 176; vacancy to be filled in ten days, 176. to fix remuneration of judge and deputy judge of borough civil court, 178. to appoint registrar of borough civil court when town clerk not registrar, 178. to appoint other officers and servants of court, 179. to fix fees to be taken by registrar and officers, 179. to appoint watch committee, 184; number of, 184; mayor ex officio member, 184; when acts to be submitted to, for approval, 185. minutes of proceedings open to inspection, 217. burgess may take copy thereof, 217; and of order for payment of money by, 217. treasurer's accounts open to inspection by, 217. forging signature to minutes of, 218; punishment therefor, 218. if mayor absent, or incapable to act as returning officer in par- liamentary election, may choose an alderman to act, 222. action or proceeding against member of, for any act done in pur- suance, execution, or intended execution, of the Municipal Corporations Act, 1882, not to lie, unless commenced in six months, 211. where the action is for damages, tender of amends may be pleaded, 21 1 ; if action continued, no costs to be recovered unless greater sum than that tendered is recovered, 211. 568 INDEX. COUNCIL — continued. may pay all sums payable in certain actions, prosecutions, ol" proceedings against their officer, servant, or agent, 211. COUNCIL MEETINGS, AND PROCEEDINGS, to hold four quarterly, 235; when to be held, 235. mayor may call, at any time, 236. on refusal or neglect by mayor, five members of the council may call, 236. notice of, 236; when such notice to specify business, 236; to be fixed on door of town hall, 236. summons to attend, 236; summons to specify business, 236; who to sign, 236; how served, 236; want of service not to afi"ect validity of, 236; no business to be transacted othei than that specified in summons, 236; except at quarterly meeting, as to business prescribed by the Municipal Corporations Act, 1882, 236. who to preside at, 237. acts to be done, and questions decided by majority of members present, and voting, 237. quorum at, 237. chairman to have casting vote, 237. minutes of proceedings at, 237. power of adjournment incident to, 235. standing orders for regulating business of, 237, 238. COUNCIL HOUSE, corporation may build, 127. COUNCILLORS to be fit persons, 64; selected from burgesses, 64; must be enrolled and entitled to be enrolled, 64; as to residence, 64; as to qualification by estate, 64; by rating, 64; qualification by right to elect, 65; whether a woman may serve the office of councillor, 65. disqualification of, 66; by being elective auditor, 66 ; or revising assessor, 66 ; or holding office or place of profit other than mayor or sherift', 66; or being in holy orders or a regular minister, 66; or interested by himself or partner in any contract or employment with council, 66, not disqualified by reason of having any interest in lease, 66; or sale of land, 66; or agreement for loan, 66; or newspaper inserting advertisements, 66; or company contracting with council for lighting, or water, or insurance against fire, 66; or any railway company, or company under statute or charter, 67; what contracts will disqualify, 67, 68. term of office, 69: retirement by rotation, 69; the advantages of this system, 69, 70; councillor elected alderman vacates office of councillor, 70. INDEX. 569 COUNCILLORS— conh'nticf?. may be elected mayor, 71; or appointed deputy mayor, 71. when interested pecuniarily not to vote or take part in the dis- cussion before council or committee, 75; and this whether interested directly or indirectly by himself or by his partner, 75. division of borough into wards or alteration of wards, what councillors to continue, 81 ; qualification of, when wards increased, not to be affected, 81; number of councillors in new wards, 81. to accept office by making required declaration, 85; within what time, 85; what notice required, 85, 329; form of notice, 329; how same should be served, 329; casual information not sufficient, 329; to pay fine for non-compliance, 85; amount of fine, 85; not to act without making declaration, 89; fine for 80 doing, 89; how to be recovered, 89. who exempt from serving office of councillor, 85, 227. {See Exemptions.) may resign, 86; on payment of fine, 86; resignation to be ac- cepted by council, 86; how acceptance signified, 86; refusal on conscientious grounds to make declaration, 86; resigna- tion without payment of fine ineffectual, 86; the remedy, if council refuse to receive resignation, 86; eligible for re- election, 86. bankruptcy of, avoids office, 87; so, by composition with creditors or arrangement under Bankruptcy Act, 87; disqualification ceases on obtaining discharge, 87; when bankrupt, cannot resign, 88; in case of bankruptcy, &c., council to declare office vacant, 87 ; when composition does not disqualify, 88. absence avoids otHce, 87; except in illness, 87; council to declare vacancy, 87; how to be signified, 87; when disqualified by absence liable to fine, 87; when disqualification ceases, 87. casual vacancy in office, 88; how long person elected to hold office, 88; provision in case of more than one casual vacancy occurring at the same time, 88. non-acceptance of office creates a casual vacancy, 88. acting after ceasing to be qualified, fine for, 89; without making the required declaration, 89; fine for, 89; when does he so act, 89; when enrolled not liable to fine on ground only of not being entitled, 89. acts and proceedings of, to be valid notwithstanding disqualifica- tion, 89; title to office not to be questioned fur defect in title of person for whom election hekl, 89. election of, 94; in a borough with no wards, 94; in a borough with wards, 94; to be nominated, 94; who entitled to nomi- nate, 94. 570 INDEX. COUNCILLORS— con n 694 INDEX. MUNICIPAL CORPORATIONS— co?i Baving of right of dismissal, 509, 510. 608 INDEX. POLICE ACTS— continued. Superannuation fund to be provided, 503. rates of allowances, 504, 509. gratuities to incapacitated constables, 504, 509. fees received by constables to be paid into, 504. fond to vest in treasurers, 505. past services of constables, how to be reckoned for superan- nuation allowance, 505. provision in case of consolidation of county and borough police, 505, 506. service, how to be reckoned, on promotion of constable, 506. gratuities to widows of constables, 506. Treasury. certificate by inspector that police force is efficient, may pay proportion of costs of, 498, 499; this provision not to extend to certain boroughs, 499. POLICE STATION.— -S'ee Public Buildings. POLLING STATION.— See Public Buildings. Poll, at election of councillors, &c., how to be conducted, 96; when to commence and close, 96, 300 — 308. what questions may be put to voter at polling, 97, 360. when oath to be administered at, 284, 361; form of, 285. mayor to give notice of poUing places foiu- days beforehand, 246; and of the persons entitled to vote thereat, 246. mayor to provide aU requisites for taking, 246, 282— 289; to appoint officers for the poll and counting the votes, 246, 293. mayor to provide marking compartments, 246, 292; and baUot papers, 246, 282. the practice at, 300. ^..^. at close of, 309. rules of the Ballot Act, 1872, applicable to, 424—427. counting the votes, rules of the Ballot Act, 1872, applicable to, 427—430. general provisions of The BaUot Act, 1872, relating to, 432, 433. POLLING DISTRICTS, borough or ward may be divided into, 100; how list to be made out by overseers, 100; how names in, to be numbered, 91. form of resolutions of council for dividing borough or ward into, 290. mayor to provide polUng place in each, 290. INDEX. 009 POLLING PLACES, one to be appointed in each polling district, 290, notice of, to be given by mayor, 246, 298. place of worship not to be used for, 102. POLLING STATIONS, sufficient number to be provided, 290. construction of, 290 — 292. marking compartments in, 292. construction of such compartments, 292. POOR RATE, when occupier to be put on rate book, 83; when to be deemed rated, 84. commissioner to prepare scheme for division of borough into wards, may require production of, 82. production of, at revision court, 241. production of, to the council, 153. See The Parliamentary Registration Act, tit. Inspection OF Poor Rate. See The Parliamentary and Municipal Registration Act, tit. Poor Rate. POOR RATE ASSESSMENT ACT, 1869, THE. Overseers cannot compel certain occupiers to pay more than rates due for one quarter, 368 ; owners may agree with overseers to pay rates, 368; commission to be allowed, 368; when overseers to rate owners instead of occupiers, 369; to insert names of all occupiers in rate, 371; penalty for omission, 371. Rates, certain occupiers may deduct rate from rents, 368; amount of rate payable by occupier at one time, 368; o^\Tier3 may agree to pay rate and be allowed a commission, 368; vestries may order owners to be rated instead of occupiers, 369 ; constructive payment of rate, 369 ; where owner omits to pay, the occupier may pay and deduct from rent, 370; successive occupiers, 370; when rate deemed to be made, 371 ; evidence of making and publication of, 371. Vestry may order ownier to be rated instead of occupier, in certain cases, 368. 2 R 610 INDEX. POOR RATE ASSESSMENT AND COLLECTION ACT, 1869, THE, wlien to extend to borough, rate, 157. POST OFFICE OFFICIALS.— &e Exemptions. PREAMBLE, uses of, 57. PRECEDENCE of mayor, 71; as a justice, 162; of recorder, 169. PRESIDING OFFICER at municipal elections to be appointed by the ma3'or, 246, 293. directions for guidance of, 293, 302. to put questions to voters, 97; form of questions, 97, 303; not to receive vote unless questions answered, 97, 303 ; to permit no other questions to be put, 97, 303. to administer oath to voter when another has voted in his name, 284; form of oath, 285. See Ballot Act, 1872, tit. Election Officers. duties of, at poll ministerial, 415; liable to an action for the neglect of the performance thereof, 415. may perform many acts by clerk appointed to assist him, 415; is he responsible for the acts of such clerk, 415. PRIVY COUNCIL may disallow bye-laws, 77. council may petition, for division of borough into wards, 80; or for alteration of wards, 80; petition to be published, 81. powers of, with reference to new charters, 1 97, 203. petition for charter to be referred to committee of, 198; com- mittee to take same into consideration after notice, 198; powers and duties of such committee, 200, 202, 203; costs of scheme for charter, how to be paid, 202. PROMISSORY OATHS ACT, 1868, saving of effect of, 219, PROSECUTIONS for offences against bye-laws, 77. for corrupt practices, 109; when clerk of the peace to undertake, 109. under the Corrupt Practices Prevention Acts, limitation of time for, 445, 449. by indictment tmder, may contain general allegations, 449. for personation, 362 — 364. INDEX. 611 PKOSECUTIONS— c ALWAYS ON HAND, READY FOR IMMEDIATE USE. These Forms are corrected from time to time, as the changes in the law render requisite, by eminent counseh When three quires of any one sort are taken the name of the County, Division, or Borough is printed in without extra charge. . Special Estimates for large quantities. CATALOGUES FREE ON APPLICATION. Now Published, Price £2, 2s. A TREATISE OF THE LAW RELATIVE TO MERCHANT SHIPS AND SEAMEN, IN SIX PARTS. I. Of the Owners of Merchant Ships. II. Of the Board of Trade — Local Marine Boards — Mercantile Marine Offices and Naval Courts. III. Of the Persons employed in the Navigation of Merchant Ships, and of the Conveyance of Passengers. IV. Of the Carriage of Goods in Merchant Ships. V. Of the Hiring and Wages of Merchant Seamen. VI. Of General Average — Salvage — Collision — and Maritime Liens. By CHARLES, LORD TENTERDEN, Late Chief Justice of England. TWELFTH EDITION. By SAMUEL PRENTICE, Esq., Of the Middle Temple, one of Hev Majesty's Counsel. Opinions of the Press. 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