action, that it was not sealed with their common seal. Chap. 2. (Per TINDAL, C. J., in Fishmongers' Company v. Robertson, Of the corpout supra.)

Where a contract has been executed-that is where the person who is a party to the contract has received the benefit of the consideration moving from the corporation (per TINDAL, C. J., in The Fishmongers' 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 necessary; they may, therefore, sue a party in assumpsit for the use and occupation of lands belonging to them. (Stafford (Mayor, &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 difference. (De Grave v. Monmouth, C. & P. 111; see also Sanders v. St. Neot's Union, 8 Q. B. 812.)

S.

So, where an indenture was entered into between A. B. and C. bailiffs, 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 holden 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. had paid rent to the bailiffs, as the chief officers of the borough; it was held that their servant might make cognizance for taking a distress under a demise by the corporation, 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. (Wood v. Tate, 2 N. R. 247.)

rate seal and

acts.

CHAPTER III.

Of the power to make Bye-Laws.

Bye-laws which concern the good rule and government of the borough or the suppression and prevention of nuisances, must be made under the provisions of the Consolidation Act (sect. 23).

The power to make bye-laws is an incident to a corporation which is included by law in the very act of incorporation (see Hob. 211); and these laws are binding upon the members, unless they are inconsistent with, or contrary to, the common or statute law or the provisions of the charter of incorporation. (R. v. Cutbush, 4 Burr. 2204; Hoblyn v. Regem, 2 Bro. P. C. 329; R. v. Cambridge, 2 Selw. R. 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 away from the body at large their incidental power to make bye-laws touching other matters not specified in the charter. (R. v. Westwood, 2 Dow. & Cl. 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 affairs 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 bailiff's, and

INTRODUCTION.

laws.

after a charter of Rich. 2, before the mayor and sheriffs. Chap. 3. By a bye-law made in 3 & 4 Phil. and Mary, by a select Power to body of the corporation, who had immemorially made make byerules and regulations 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 thenceforth 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 byelaw 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 covenants 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

DIVISION 1.

Chap. 3. borough, and that no burgess who should take a lease should be entitled to receive any of such money.

Power to make byelaws.

It was

held that this ordinance was a valid bye-law. (Hopkins v. Swansea (Mayor, &c.), 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; Bolton v. Throgmorton, Skin. 55); such customs are not, however, in general much favoured, and the courts require them to be incontrovertibly proved. (See Wilson 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 v. Waters, 1 C. M. & R. 713; Clark v. Denton, 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 distress 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.

laws.

vent monopoly or the sale of unfit commodities, or to Chap. 3. insure the proper conduct of those who trade within the Power to borough (see Freemantle v. Silk-Throwsters' Company, 1 make byeLev. 229, S. C., 1 Keb. 309. See also Everett v. Grapes, 3 L. T. (N.s.) 669), 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 twentyfour 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. 469; see further Shaw 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. (Kirk 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 hereafter.

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; Framework 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. Wildgoose, 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 £5 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.)