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PART VIII.

ADMINISTRATION OF Justice.

County Justices.

154.-(1.) Where a borough has not a separate court of County

Justices. quarter sessions, the justices of the county in which the borough

Jurisdiction is situate shall exercise the jurisdiction of justices in and for the of county

Justices in borough as fully as they can or ought in and for the county.

borough. [In practice the county justicos do not exercise their powers in boroughs to which a separare commission of the peace has been granted. Their power to act in such boroughs has been decided in several cases, to wit-Rex v. Amos (2 B. & A., s. 33); Mayor of Reigate v. Hart (L. R., 3 Q.B., 244); Blankley v. \'instanley (3 T. R., 279); Bates v. Winstanley (4 M. & S., 429, 436); and Wakefield Board of Health v. West Riding and Grimsby Ruilway Company (6 B. & 8., 94)].

(2.) No part of a borough having a separate court of quarter sessions shall be within the jurisdiction, exerciseable out of quarter sessions, of the justices of a county, where the borough was exempt therefrom before the passing of the Municipal Corporations Act, 1835.

[The effect of section 111 of the Act of 1835 is preserved in this clause. County niagistrates are not excluded for hearing appeals under 9 Geo. 4, c. 61, s. 27, against the refusal of borough magistratos to gant an alehouse license. See Reg. v. Deane (2 Q. B. 96); keg. v. Recorder of Bristol (24 L. J., M. C.); Reg. v. Cockburn (4 E. & B., 65)].

Borough Justices.

155.—(1.) The mayor shall, by virtue of his office, be a Berough

Justices. justice for the borough, and shall, unless disqualified to be

Mayor and mayor, continue to be such a justice during the year next after* last mayor to he ceases to be mayor.

jnstices.

[Quare whether Mayor and Ex-Mayor are "justices of the quorum." Reg. v. Inhabitants of Llangian (4 B. & S. 249)].

* It has been a subject of debate in a council meeting whether, in the event of the re-election of a person to the office of mayor, it is necessary for him to again take the oath as a justice of the peace (if he be not a permanent magistrate of the borough), when only half of the period for which he originally qualified to act has lapsed, but a strict interpretation of the statute seems to leave little room for doubt that if the office of mayor is held for two years in succession without the oath being again taken at the commencement of the second year, any magisterial acts which might be performed in the year after the vacation of office (as immediate ex-mayor) would be invalid, because of the application of the original oath of qualification only to the year of office being then entered upon and one year after.

Borough Justices.

(2.) The mayor shall have precedence over all other justices acting in and for the borough, and be entitled to take the chair at all meetings of justices held in the borough at which he is present by virtue of his office of mayor ; except that he shall not by virtue of this section have precedence over the justices acting in and for the county in which the borough or any part thereof is situate unless when acting in relation to the business of the borough, or over any stipendiary magistrate engaged in administering justice.

[The effect of section 57 of the Act of 1835, and section 2 of 24 & 25 Vict. c. 75 (1861), is preserved in this clause. The precedence here given applies both socially and magisterially within the borough. It was held in Ex parte Mayor of Birmingham (3 E. & E., 22:2), that the precedence granted under the Act of 1835 was for social purposes only. Hence the amendment of the law which followed in the subsequent Act and is renewed in this clause. Doubts have been expressed whether in boroughs not having a court of quarter ses. sions or a commission of the peace, the words“ business of the borough" applies to more than matters coming within the designation of “civil government,” such as “licensing of public and other houses, allowance of rates, traffic regulations, special constables, &c.As this Act stands, however, the point does not admit of discussion as to its legal bearing. The mayor of any borough not having a separate conmission of the peace would be within his right under this paragraph in claiming to preside--subject to the limitations in the section, at all magisterial meetings when the business to be transacted arises within or has relation to his borough. The fact that the law oficers of the Crown in 1877 advised that section 2 of 24 & 25 Vict. c. 75, did not give the mayor of such a borough precedence over county justices sitting in petty sessions in his borough can hardly weigh against the plain wording of this section.]

Soparate commission of peace.

Qualification of borough justice.

156.-It shall be lawful for the Queen, on the petition of the council of a borough, to grant to the borough a sepurate commission of the peace.*

[The effect of section 98 of the Act of 1835 is preserved in this clause.)

157.-(1.) It shall be lawful for the Queen, from time to time, to assign to any persons Her Majesty's commission to act as justices in and for each borough having a separate commission of the peace.

[The word "any ” used here is, of course, governed by other statutes. For instance, it is doubtful if a coroner can be a justice for the jurisdiction in which he acts as coroner. Sce hereon, Dalt. Just. c. 3, s. 10, and Lamb Eiren, lib. i., c. 14. The prohibition, by 5 Geo. 2, c. 18, s. 2, of any practising attorney, solicitor, or proctor acting as a county justice does not apply to boroughs having justices by charter, commission, or otherwise Moreover a sheriff may not act as a justice during the year of his sbrievalty (1 Mary, sess. 2, c. 8. 8. 2). See also subsection 1 of sect. 171 and notes thereon at page 151).

(2.) A justice for a borough shall not be capable of acting as * By section 33, subsection 7, of the Local Government (England and Wales) Act, 1888, the Queen, by letters patent, may on the petition of any borough revoke the grant to it of a commission of the peace. Counties of cities or boroughs and cinque ports and tbeir members affected by the revocation will become merged in their respective counties for judicial purposes. See Appendix.

such until he has taken the oaths * required to be taken by Borough

Justices. justices, except the oath as to qualification by estate, and made before the mayor or two other members of the council a declaration as in the Eighth Schedule.

[This declaration is contained in Form B, Part I. of the Eighth Schedule. See subsection 4 of clause 163 at page 145 seq.]

(3.) He must, while acting as such, reside in or within seven miles of the borough, or occupy a house, warehouse, or other property in the borough.

(4.) He need not be a burgess or have such qualification by estate as is required for a justice of a county.

[The effect of sections 98, 101, and 104 of the Act of 1835, section 3 of 6 & 7 Will. 4, c. 105 (1836), section 3 of 24 & 25 Vict. c. 75, (1861), section 5 of 31 & 32. Vict. c. 72 (1868), and section 2 of 34 & 35 Vict. c. 48 (1871), is preserved in this clause).

158.-(1.) A justice for a borough shall, with respect to Jurisdiction offences committed and matters arising within the borough justices. have the same jurisdiction and authority as a justice for a county has under any local or general Act, with respect to offences committed and matterst 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.

[Borough justices have no jurisdiction to grant licenses for inns or alehouses under 9 Geo. 4, c. 61, except in such boroughs as have separate courts of quarter sessions. Candlish v. Simpson (30 L. J., M. C., 178).

Penalties imposed by justices acting in and for a municipal borough having a separate commission of the peace, but no separate court of quarter sessions in respect of offences against the general law of the land are under 11 & 12 Vict. c. 43, s. 31, to be paid to the treasurer of the county and not of the borough. Penalties imposed by such justices under 9 Geo. 4, c. 61, and not awarded to the prosecutor under section 20 of that Act, are to be paid to the treasurer of the county, and not of the borough, not withstanding the Municipal Corporations Act Amendment Act, 1861, s. 4. Winn v. Mossman (38 L. J.R., N.S. Ex. 200).

By 11 & 12 Vict. 43, s. 31, the amount of any penalty ordered to be paid by justices according to the Act is to be paid in the absence of specific directions in the statute on which the information shall have been framed to the treasurer of the county, riding, division, liberty, city, borough, or place for which the justices shall have acted.—A borough formed part of the petty sessional division of the county within which it is situated, but had no separate court of quarter sessions, the justices for the county acting as justices for the borough concurrently with the mayor according to the Municipal Corporations Act (5 & 6 Will. 4, c. 76, s. 67), and there was a treasurer of the borough. Pelu that the mayor,

* The mayor must take oath as prescribed by 31 & 32 Vict. c. 72. This Act sets out three oaths-1, the oath of allegiance ; 2, the official oath ; and 3, the judicial oath. It names the persons to take the oath, and permits those excluded to make a declara. tion that he will faithfully discharge the duties of his office. Mayors and aldermen are not named to take official oaths. The oath of allegiance as a justice of the peace, and the judicial oath are imperative; they may be taken before any two justices or before two councillors of the borough. See 34 & 35 Vict. c. 48, s. 2.

† See section 86, subsections 3 and 4, of the Local Government Act, 1388, as to variation of power to recorder, or borough justices, in respect of appointment of lunatic asylum visitor and authority of borough council to build an asylum.

Borough
Justices,

Clerk to borough justices.

while acting as justice for the bor ugh, was in the nature of a justice for the county with powers liznited to a special locality, and the penalities imposed by the borough justices must, in the absence of directions in the penal statute, be paid to the county treasurer. The Mayor, Aldermen, and Burgesses of Reigate v. Hart (37 L. J. R., N. S., M.C., 70)].

(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.

[The effect of sections 101 and 128 of the Act of 1835, section 31 of 7 Will. 4 and i Vict. c. 78 (1837), and section 9 of 13 & 14 Vict. c. 91 (1850), is preserved in this clause).

159.-(1.) The justices for a borough shall from time to time appoint a fit person to be their clerk, to be removeable at their pleasure.*

[An information in the nature of quo warranto will not be granted against a clerk so appointed. See Reg. v. Fox (8 E. & B., 939). As to qualification for the office of justices' clerk, it may be remarked that the Justices' Clerks Act of 1877 is not affected by this statute].

(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.

[The appointment as clerk of the peace of a borough of a managing clerk to a firm which comprised the town clerk and clerk to the justices as one of its partners has passed unquestioned.]

(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 offender committed for trial by those justices, or any of them, at any court of gaol delivery or quarter sessions.

(4.) If any person acts in contravention of the last foregoing 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, with costs, be paid to the person bringing the action to recover 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.

[The effect of section 102 of the Act of 1835, and section 5 of 24 & 25 Vict. c. 75 (1861), is preserved in this clause. Subsection 6 is a saving of the provisions

In boroughs not having a separate commission of the peace, this section would not apply.

contained in the last-mentioned Act, and it is somewhat difficult to comprehend Borough the reason of its retention here, having regard to the fact that in the case of Justices. Brown v. Evans (33 L. J., N. S., 737) the judges commented very strongly upon its wording. The defendant held the two offices, and illegally so under the very Act containing the proviso as well as the Act of 1835, but judgment, both in the first instance and on appeal, passed for him under the saving character of the proviso).

160.-(1.) The council of a borough having a separate com- Justices' room. mission of the peace shall provide and furnish a suitable justices' room with offices, for the business of the borough justices.

[It will be observed that a new designation, "justices' room,"-instead of police office-is introduced here).

(2.) No room in a house licensed for the sale of intoxicating liquors may be used for this purpose.

[The effect of section 100 of the Act of 1836 is preserved in this clause).

Stipendiary Magistrate.*

Stipendiary

Magistrate. 161.-(1.) If the council desire the appointment of a sti- Appointment pendiary magistrate for the borough, they may present a magistrate. 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' 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.

* The following boroughs under this Act have stipendiary magistrates. Those marked thus (*) were appointed under section 99 of the Act of 1835; those marked thus (t) by local Acts; those marked thus (t) under this section of the Act:Birkenhead.t

Salford. Birmingham.*

Sheffield.* Bradford.

Staffordshire Potteries.t (This Brighton.

district includes the boroughs Cardiff.*

of Burslem, Hanley, Longton, Kingston-on-Hull.*

and Stoke-upon-Trent.) Leeds.*

Swansea. * Liverpool.*

West Ham. Manchester."

Wolverhampton.t Middlesborough. + Five years was the standing enacted by the Act of 1835

See Appendix for 51 & 52 Vict. c. 23 (Recorders, &c., Act, 1888) as to power of appointment of deputy and payment for his services.

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