Chap. 8. Proceedings by quo warranto.

DIVISION I.

of the following Hilary Term, the court refused a rule, as no explanation was given of the delay. (R. v. Hodson, 4 Q. B. 648. See also R. v. Preece, 5 Q. B. 94; R. v. Hindmarch, 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 provisions 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 affidavit be produced, by which some person shall depose on oath that such motion is made at his instance, as relator. (Reg. 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 (R. 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 corporation. (See R. v. Hodge, 2 B. & A. 344; R. v. Parry, 6 A. & E. 848; R. v. Quayle, 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 (n.); 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

ranto.

application, and the conduct and even the motives of the Chap. 8. relator. (See R. v. Marten, 4 Burr. 2120; R. v. Stacey, Proceedings 1 T. R. 3; R. v. Trevenen, 2 B. & A. 482; R. v. Slythe, 6 by quo warB. & C. 242; R. v. Parry, 6 A. & E. 810; R. v. St. 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 case 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; " but it must be shown in what manner he has done so; as that he has made the requisite declaration (45 & 46 Vict. c. 50, s. 35. See R. v. Slatter, 11 A. & E. 505. See also R. v. Tate, 4 East, 357); or that he has acted in a corporate capacity (see R. v. Quayle, 11 A. & E. 508; R. v. Leeds (Mayor), Id. 512), or the like.

Still less would it seem to be a ground for such an information, that a party has merely claimed to be a burgess (R. v. Whitwell, 5 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 qualification. (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 warranto 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; R. v. Harrald, 7 Q. B. 361; Symmers v. Reg. Cowp. 489, 507; R. v. Hughes, 4 B. & C. 368.)

A quo warranto may be granted for an usurpation of an office even after the resignation of it; for the resignation is no answer, though it may regulate the decision of the court in imposing the fine. (R. v. Warlow, 2 M. & S. 75. See also R. v. Payne, 2 Chit. R. 367; R. v. Morton, 4 Q. B. 146.)

·D 2

One ground upon which the court frequently refuses to grant a rule for the information is, that the relator has acquiesced or concurred in the election of the party against whom the application is made (see Tancred on Quo Warranto, 37, 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 election (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 affidavit in support of the application. (R. v. Brame, 4 A. & E. 661.)

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. v. 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.

Of Amotion from a Corporate Office.

Chap. 9.

It will now be considered in what cases a corporate Amotion from officer can be removed from his office.

The amotion under the Municipal Corporations Act, 1882, will be considered under those sections which relate thereto.

At common law the power of 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 corporate 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 removed may be divided into three classes :

First: Such as relate to his corporate or official character, 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. Doncaster, Say, 29; 2 Ld. Raym. 1566); 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 (R. v. Chalke,

corporate office.

Chap. 9.

Amotion from

corporate office.

ut supra); and the like. Habitual drunkenness has been held a good cause for removing an alderman, on account of the evil example to others, and his consequent inefficiency 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.

Secondly: Such offences as have no relation to his corporate 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 corporation 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 amotion 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 Burr. 539; R. v. Liverpool, 2 Burr. 732; Haddock's case, T. Raym. 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 Rol. 409.)

The party against whom the proceedings are instituted must have notice to appear, which 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