serve the peace of municipal bodies, by refusing to make the rule absolute.

"It seems to us highly objectionable that the title, which has not been questioned, and cannot be questioned, to the inferior office should be impeached 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 mayor because he is not a good alderman, who, upon his 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 neither to the independence of the office, nor to the harmony of corporations, if such objections are allowed to be kept in reserve, and brought forward in case the conduct of the officer is displeasing 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 officer 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 discharged." (5 A. & E. Q. B. R. (N.S.) 94.)

The case of Reg. v. Francis, 18 Q. B. 526, was an information in the 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 the request 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 complete 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, so 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 been employed and paid by the corporation, and it would 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 contract was entered into, that might have been a ground for refusing a quo warranto; but he was not, and his mere knowledge of the existence of the contract at that time is not a ground for 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 disqualification de die in diem. No application for a quo warranto could be made after the lapse of twelve

P

Note.

Sect. 225.

Note. calendar months after the contract had ceased; but while it conSect. 225. tinues the application 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 months 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 application 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 Birkbeck, L. R. 9 Q. B. D. 256.)

The relator need not be a burgess. It is sufficient if he is an inhabitant of the borough, subject to the control and government of the corporation. (See R. v. Hodge, 2 B. & A. 344; R. v. Parry, 6 A. & E. 848; R. v. Quayle, 11 A. & E. 508.)

Where the application is made by individuals, and not by a corporation or the mayor, the court will exercise a large discretion in granting a rule for an information. As to the circumstances 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.

(b) 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 was wholly avoided because "he was at the time of the election disqualified for election to the office for which the election was held," and that "an election shall not, except in the manner provided 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 mandamus. (Reg. on the prosecution of Owen v. Mayor, &c., of Welchpool, 35 L. T. (N.S.) 594.)

Act.

226.—(1.) An action, prosecution, or proceeding Sect. 226. against any person (a) for any act done in pursuance or Provisions execution or intended execution (b) of this Act, or in of persons for protection respect of any alleged neglect or default in the execution acting under of this Act, shall not lie or be instituted unless it is commenced 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 defendant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of the tender or payment; 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, prosecution, 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).

(a) By sect. 7 "person" includes a body of persons corporate or unincorporate.

(b) "Or intended execution." These words are new.

(e) "Or omitted." These words are new. They have been added to meet the decision in R. v. Burrell, 12 A. & E. 460.

(d) Under the repealed provision notice of action was required, and no provisions have been made in the Consolidation Act in lieu thereof. Notice of action is never necessary unless where it is

Note. Sect. 226.

Power for borough con. stables to take

bail.

MUNICIPAL CORPORATIONS.

expressly required by statute. The 5 & 6 Will. 4, c. 97, s. 4, applies only to those cases where notice is required.

(e) See notes on the Fifth Schedule, Part II. The whole of this sub-section is new.

227.-(1.) Where a person charged with a petty misdemeanour is brought without the warrant of a justice into the custody of a borough constable during his attendance 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 conditioned 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 obligation 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

and schedules of every such recognisance as of recog- Sect. 227. nisances forfeited in quarter sessions.

(7.) If the recognisor applies by any person on his 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. (a) The provision enabling the constable to take bail in the day time is new.

PART XIII.

GENERAL.

Boundaries.

228.-(1.) Every place at the commencement of this Boundaries of Act included within each borough then existing, and no transfer of boroughs and other place, shall be part of the borough, and in each parts 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 Municipal 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 Corporations Act, 1835, was, and at the commencement

counties.