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.

Liability of borough

having quarter

sessions for prosecutors expenses.

(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.

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 whereof are by law payable as in the case of a felony. 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).

(a) Can the treasurer pay these costs and expenses on the order of the court without an order of the council? This depends upon the construction to be placed on sect. 140 read in connection with the Fifth Schedule. That schedule is divided into two parts:—(1.) those payments which may be made without the order of the council; and (2.) those payments which may not be made without such order.. Among the latter are the costs and expenses payable by the corporation in respect of the prosecution or punishment of offenders. It would appear, 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 directing the treasurer to pay out of the borough fund such costs and expenses on the order of the court. Hitherto 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

which such payments shall be made, goes on to specify the methods
by which other payments may be made out of the borough fund;
and amongst these we find the orders of the court of quarter sessions,
and such orders are not required to be made by the council. It
follows that the order of the court is sufficient.
The expenses
referred to in Rule 6 of Part 2 of the Fifth Schedule mean those
incurred by the council, for which there is no order for payment by
a court having authority to make the order. This construction of
the Act avoids the anomaly of the court making an order requiring
ratification by the council. 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, and is
of no utility.

Note.

Sect. 169.

Sheriff.

of sheriff

170.—(1.) The council of every borough being a Appointment county of itself, and of the city of Oxford, shall on the in counties ninth of November in every year appoint a fit person to of cities execute the office of sheriff.

(2.) The appointment shall be made at the quarterly meeting of the council immediately after the election of the mayor.

(3.) The sheriff shall hold office until the appointment of his successor.

(4.) He shall have the same duties and powers as the sheriff or the person filling the office of sheriff in the respective borough or city would have had if this Act had not been passed. (a)

(a) Every person appointed sheriff or under-sheriff, with the exception of sheriffs and under-sheriffs of Wales and the County Palatine of Chester, are required to take the oath prescribed by the 18th & 19th sections respectively of 3 Geo. 1. c. 15, before entering on their office. By the 20th section of the same Act, the sheriffs of Wales and the County Palatine of Chester are permitted to take the oath as formerly with the omission therein mentioned.

By the Promissory Oaths Act, 1868, 31 & 32 Vict. c. 72, sect. 12, sub-sect. 4, it is provided that where in any case not otherwise provided for by that Act, or included within the saving clauses therof, an oath is required to be taken by any person on or as a condition of his accepting any employment or office, a declaration shall be substituted for such oath to the like effect in all respects as such oath. By the Promissory Oaths Act, 1868, it is also provided that no person shall be required or authorized to take the oaths of allegiance, supremacy, and abjuration, or any of such oaths, or any oath substituted for such oaths, or any of them, or to make any declaration to the like effect of such oaths, or any of them, except the persons required to take the oath of allegiance by that Act, and the Clerical Sub

and counties

of towns.

Note.

Sect. 170.

scription Act, 1865, and the Parliamentary Oaths Act, 1866, or one of such Acts, any Act of Parliament, charter, or custom to the contrary notwithstanding.

The sheriff is not one of the persons required by that Act to take the oath of allegiance.

The sheriff is not disqualified from holding the office of councillor. (See sect. 12.) He cannot act as justice of the peace while sheriff, (See note on sect. 158.)

Appointment, fees, &c., of borough coroner in boroughs having separate quarter sessions.

Power of

ner to appoint a deputy.

Coroner.

171.-(1). The council of a borough having a separate court of quarter sessions shall, within ten days next after receipt of the grant thereof by the council, and thenceforward from time to time, appoint a fit person, not an alderman or councillor of the borough, to be coroner of the borough; and thereafter no person other than the coroner so appointed shall take in the borough any inqui sition belonging to the office of coroner.

(2.) The coroner shall hold office during good behaviour.

(3.) A vacancy in the office shall be filled up within ten days after it occurs.

(4.) The coroner shall have, by order of the recorder, remuneration as appearing in the Fourth and Fifth Schedules.

172.-(1.) In case of illness or unavoidable absence, borough coro the coroner shall appoint by writing signed by him a fit person, being a barrister or solicitor, and not an alderman or councillor of the borough, to act for him as deputy coroner during his illness or unavoidable absence, but not longer or otherwise.

Returns by borough

coroners.

(2.) The mayor or two justices for the borough shall on each occasion certify by writing signed by him or them the necessity for the appointment of a deputy coroner. This certificate shall state the cause of absence of the coroner, and shall be openly read to every inquest jury summoned by the deputy coroner.

173. On or before the first of February in every year the coroner shall send to the Secretary of State a

return in writing, in such form as the Secretary of State Sect. 173. directs, of the particulars of each case in which the

coroner or his deputy was called upon to hold an inquest during the year ending on the then last thirty-first of December.

county coroner

174.-(1.) Where a borough has not a separate court Acting of of quarter sessions no person other than the coroner for in borough. the county or district in which the borough is situate shall take in the borough any inquisition belonging to the office of coroner.

(2.) That coroner shall, for every inquisition duly taken by him within the borough, be entitled to such rateable fees and salary as would be allowed and due to him, and to be allowed and paid in like manner, as for any other inquisition taken by him within the county or district.

Borough Civil Court (a).

court where

175.-(1.) The recorder, if there is one, shall con- Judge of tinue to be the judge of the borough civil court, except borough civil in the following cases, that is to say, where the court is there is a reregulated by a local Act of Parliament, or where a bar- corder. rister of five years standing acted at the passing of the Municipal Corporations Act, 1835, as judge or assessor of the court.

(2.) The recorder, if judge, may, in case of his illness or unavoidable absence, appoint by writing signed by him a barrister of five years standing to act for him as deputy judge of the court at the court or courts then next to be holden, or then being holden, and not longer or otherwise.

(3.) The recorder on every occasion of his appointing a deputy judge shall forthwith send to the Secretary of State a statement of his reason for so doing.

(4.) A court shall not be illegal, nor shall the acts of the deputy judge be invalid, by reason of the absence of the recorder not being unavoidable.

N

(5.) The recorder, where judge, and the deputy judge, shall have such remuneration as the council fix by byelaw.

(6.) Where the recorder is judge, the court may in his absence be holden for all purposes within the competency of the court, except the trial of issues of fact or of law, before any person, being a barrister of five years standing or a solicitor of five years practice, from time to time appointed for that purpose by the recorder by writing signed by him.

(7.) Where the recorder or his deputy is judge, all orders, affidavits, and matters, except the trial of issues in law or in fact, relating to the business of the court, if not regulated by a local Act, may be made, sworn, or done in or out of court in the absence of the recorder and his deputy by or before the registrar or such other person, being a barrister of five years standing, or a solicitor of five years practice, as the recorder appoints by writing signed by him.

(a) The mere disuse for 200 years of a court granted to a corporation by charter for a trial of causes, was held to be no answer to the rule for a mandamus commanding them to hold it, though it was alleged there were not sufficient funds for the purpose. (Rex. v. Mayor, &c. of Wells, 4 Dowl. P. C. 562. See also Rec. v. Mayor of Hastings, 1 D. & R. 148.)

176. Where there is a borough civil court, but no recorder, such officer of the borough as by the charter constituting the court, or by custom, is the judge of the court, shall continue to be and act as such judge; and the council, whether the court is regulated by a local Act or not, shall have power for that purpose to appoint the necessary officer.

177. Every judge or assessor of a borough civil court, other than the mayor, shall hold his office during good behaviour.

178.-(1.) Except where the town clerk acts as registrar, the council shall from time to time appoint a registrar of the borough civil court,