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(6.) On a vacancy, a new appointment shall not be made until the council again make application as before the first appointment.
(7.) More than one stipendiary magistrate may be appointed for a borough.
[The effect of section 99 of the Act of 1835 is preserved in this clause].
Borough Quarter Sessi. ns : Recorder: Clerk of the Peace.
Grant of separate court of quarter sessio:18.
Borough Quarter Sessions : Recorder : Clerk of the Peace. 162.-(1.) It shall be lawful for the Queen, on the petition to ller Majesty in Council of the council of a borough, to grant that a separate court of quarter sessions be holden in and for the borough*.
(2.) The petition shall set forth the grounds of the application and the salary which the council are willing to pay to the reeorder.
(3.) The grant may be made on and subject to such terms and conditions, if any, as to Her Majesty in Council seem fit.
[The Act of 1835 did not include the words used in this subsection, and it was the professionally-stated opinion of the late Lord Chief Justice Cockburn and the late Lord Westbury, when attorney-general and solicitor-general respectively (given on September 19, 1856, to the town council of Newcastleunder-Lyne), that the Crown could not revoke or accept a surrender of a grant of a separate court of quarter sessions under the Act of 1835. The “ terms and "conditions" here provided for may, however, give such power.f]
(4.) Within ten days after receipt of the grant the council shall send a copy thereof, sealed with the corporate seal, to the clerk of the peace of the county, or each county if more than one, in which the borough or any part thereof is situate.
[The effect of sections 103 and 112 of the Act of 1835 is preserved in this clause)
163.-(1.) It shall be lawful for the Queen from time to time to appoint for a borough having a separate court of quarter sessions a barrister of five years' standing to be recorder of the borough.
(2.) He shall hold office during good behaviour.
(3.) He shall, by virtue of his office, be a justice for the borough.
(4.) He shall not act as recorder, or as a justice, until he has taken the oathst required to be taken by a borough justice, and
By section 37 of the Local Government (England and Wales) Act, 1888, the future grant of a court of quarter sessions to a borough is to confer no other powers than are necessary for establishing and maintaining the court of quarter sessions.
| By section 38, subsection 7, the Queen by an Order in Council and on the petition
See note to subsection 2, clause 157, at page 141 ante, as to these oaths.
made before the mayor or two other members of the council a Borough
Quarter declaration as in the Eighth Schedule.
Recorder, [This declaration is contained in Form B, Part I. of the Eighth Schedule, and Clerk of the applies also to the borough justices (see subsection 2, clause 157, at page 141 Peace. ante). It is as follows :-"1, 4.B., hereby declare that I will faithfully and impartially execute the office of recorder (or justice of the peace) for the borough of
according to the best of my judgment and ability”].
(5.) He shall have precedence in all places within the borough next after the mayor.
(6.) He shall not, during his office, be eligible to serve in Parliament for the borough, or be an alderman, councillor, or stipendiary magistrate of the borough ; but he may be appointed revising barrister for the borough, and shall be eligible to serve in Parliament except for the borough.
(7.) There shall be paid to him such yearly salary, not exceeding that stated in the petition on which the grant of a separate court of quarter sessions was made, as Her Majesty directs; but the same may at any time be increased by resolution of the Council, approved by the Secretary of State, without the resignation and re-appointment of the recorder being necessary
(8.) A person may be appointed recorder of two or more boroughs conjointly.
[The effect of sections 103 and 104 of the Act of 1835, section 3 of 6 & 7 Will. 4, c. 105 (1836), and section 2 of 34 & 35 Vict. c. 46 (1871), is preserved in this clause).
164.-(1.) The council of a borough having a separate court The clerk ce of quarter sessions shall from time to time appoint a fit person to be the clerk of the peace for the borough.
[The town council are to appoint, but the recorder may remove the clerk of the peace for misconduct in his office by virtue of 1 W. & M., sess. 1, c. 21, 8. 6. (and the following subsection). See Reg. v. Hayward (S. O., 31 L.J., M.C., 177). For misconduct in his office two justices must exhibit a complaint against him to the quarter sessions, when the Recorder, subject to the right of appeal to tho Lord Chancellor, may suspend or remove him. See 27 & 28 Vict. c. 65.]
(2.) The clerk of the peace shall hold office during good behaviour.
(3.) The clerk of the peace may from time to time, by writing signed by him, appoint a fit person to act as deputy for him, in case of his illness, incapacity or absence.
Recorder to hold court of quarter 8088ions.
(4.) The appointment of the deputy shall be signified in writing, signed by the clerk of the peace, to the council, and shall be recorded in their minutes.
(5.) Where a table of the fees to be taken by the clerk of the peace has been made by the council and confirmed by the Secretary of State, and is for the time being in force, the clerk of the peace, if paid by fees, may take the fees to which he appears by that table to be entitled.
[He may be paid by salary if the Council of the borough so think fit. Seo also 14 & 15 Vict. c. 55).
(6.) The council may from time to time make a new table of the fees to be taken by the clerk of the peace, but shall submit every such table to the Secretary of State for confirmation, and he may confirm and allow the same, either as submitted, or with such alterations, additions, or abatements as he thinks proper, and any such table shall be of no validity until it is so confirmed.
[The effect of sections 103 and 124 of the Act of 1835 is preserved in this clause).
165.-(1.) The recorder shall hold, once in every quarter of a year, or oftener, if and as he thinks fit, or the Secretary of State directs, a court of quarter sessions in and for the borough.
(2.) He shall sit as sole judge of the court.
(3.) The court shall be a court of record, and shall have cognisance of all crimes, offences, and matters cognisable by courts of quarter sessions for counties in England; and the recorder shall, notwithstanding his being sole judge, have power to do all things necessary for exercising that jurisdiction as fully as those courts.
[The recorder has exclusive jurisdiction to try and determine appeals against orders of renewal made by the borough justices. See Reg. v. Justices of Salop (2 Q. B., 85), and Reg. v. Justices of Suffolk. He can also try an indictment for keeping a disorderly house, Rei. v. Charles (1 L. & C., 90). He may reserve a case for the consideration of the Court for Criminal Cases Reserved. Reg. v. Masters (1 Den. C. O. R., 332). He may hold his court during the time of the assizes in the same county. Smith v. Regina (13 Q. B., 738).
See also the second footnote at page 141.
Under the original County Commission of the Peace which, almost in its present form, was settled by a conference of judges in 1590, and commanded by the then Lord Chancellor to be used, any one or more justices have not only all the ancient power touching the peace which the conservators of the peace had at the common law, but also that whole authority which has been added thereto by subsequent statutes.--(Vide Pritchard's “ Practice and Procedure at Quarter Sessions, &c."). Until the passing of the Act 5 & 6 Vict. c. 38, the justices in general and quarter sessions exercised jurisdiction over felonies with no limitation except that which sprung up, in practice, of abstaining from the more difficult and important cases, and sending them to the assizes. Modern public opinion, however, demanded the application, to intricate and important cases, of that knowledge and discrimination which could only be expected from the labour of a life:devoted to legal pursuits, and which was not reasonably to
be sought for in the compass of individual magistrates however well informed Borough and upright in purpose. Consequently the Act just referred to was passed. It Quarter provided as follows:-“That after the passing of this Act neither the justices Sessions : of the peace acting in and for any county, riding, division, or liberty, nor the Recorder : recorder of any borough, shall at any session of the peace, or at any adjourn. Clerk of tho ment thereof, try any person or persons for any treason, murder, or capital Peace, felony, or for any felony which, when committed by a person not previously con. victed of felony, is punishable by transportation beyond the seas (altered to penal servitude by 20 & 21 Vict. c. 3, s. 6] for life, or for any of the following offences (that is to say),
1. Misprision of treason :
2. Offences against the Queen's title, prerogative, person, or government, or against either House of Parliament :
3. Offences subject to the penalties of præmunire :
7. Making or suborning any other person to make a false oath, affirmation, or declaration, punishable as perjury or as a misdemeanour :
8. Forgery :
9. Unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern :
10. Bigamy, and offences against the laws relating to marriage :
13. Offences against any provision of the laws relating to bankrupts and insolvents :
14. Composing, printing, or publishing blasphemous, seditious or defamatory libels :
15. Bribery :
16. Unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such justices or recorder respectively have or has jurisdiction to try when committed by one person:
17. Stealing, or fraudulently taking, or injuring or destroying, records or documents belonging to any court of law or equity, or relating to any proceeding therein:
18. Stealing or fraudulently destroying or concealing wills or testamentary papers, or any document or written instrument being or containing evidenco of the title to any real estate, or any interest in lands, tenements, or
hereditaments ;" The 13th sub-clause was repealed by the Act 32 & 33 Vict, c. 62 (The Debtors' Act), and the offences enumerated therein were, by 8. 20, deemed to be within the jurisdiction of quarter sessions, justices and recorders. The 24 & 25 Vict. c. 96. e. 87, precluded frauds by agents, bankers, or factors in embezzling money or selling securities, &c., entrusted to them under directions in writing, or chattels, or valuable security held for safe custody or special purposes (the offences of keeping and publishing of false accounts and destroying of documents by directors and officers of public companies are also included) being tried at any court of general or quarter sessions of the peace.
The sessions of the Central Criminal Court, and those of Middlesex, London, and Westminster, are subject to various regulations which differ from those prevailing in other parts of England).
(4.) But the recorder shall not, by virtue of his office, have power
(a.) To allow, apportion, make, or levy any borough rate;
(6.) Subject to the provisions of this Act respecting appeals
from a rate, to do any act in relation to the allowance,
apportionment, making, or levying of any rate whatso
ever ; or (c.) To grant any licence or authority to any person to keep
an inn, alehouse, or victualling house to sell exciseable
liquors by retail ; or (d.) To exercise any power by this Act specially vested in
[The effect of section 105 of the Act of 1836, and section 8 of 6 & 7 Will. 4, c. 105 (1836), is preserved in this clause).
Power to appoint deputy recorder.
166.-(1.) The recorder may, in case of sickness or unavoidable absence, appoint, by writing signed by bim, a barrister of five years' standing to act as deputy recorder at the quarter sessions then next ensuing or then being held, and not longer or otherwise.
(2.) But the sessions shall not be illegal, nor shall the acts of a deputy recorder be invalid, by reason of the cause of the absence of the recorder not being unavoidable.
[The effect of section 8 of 6 & 7 Vict c. 89 (1843) is preserved in this clause. See 32 & 33 Vict. c. 23, s. 1 (1869,; and 35 & 36 Vict. c. 86, s. 7 (1872), in which a judge of any local court may appoint as deputy a barrister of not less than seven years' standing).
167.-(1.) In the absence of the recorder and deputy recorder, the mayor shall, at the times for the holding of the court of quarter sessions, open the court, and adjourn the holding thereof, and respite all recognisances conditioned for appearing thereat, until such day as he then and there, and so from time to time, causes to be proclaimed.
[The right of the mayor to adjourn the court when the Recorder of 0had not put in an appearance for a considerable time after the hour appointed for the commencement of business, and had not sent any intimation of his probable absence or late arrival was disputed (by the recorder). Tho mayor, however, relied on the section of the statute incorporated in this clause as his authority for opening and closing the court, and in the end his right to do so in the exercise of his discretion was admitted by the recorder).
Powers of mayor in &bsence of recorder and deputy recorder
(2.) But nothing in this section shall authorize the mayor to sit as a judge of the court for the trial of offenders, or, save as aforesaid, to do any other act in the character of a judge of the court. [The effeet of section 106 of the Act of 1835 is preserved in this clause).
168.-(1.) If at any time it appears to the recorder that the quarter sessions are likely to last more than three days,