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204.—Where a person is entitled to be admitted a freeman Preemen. for the purposes of this part in respect of birth, servitude, or Admission to marriage, and claims accordingly, the mayor shall examine into the claim, and on its being established the claimant shall be admitted and enrolled by the town clerk on the Freemen's Roll
[The effect of section 5 of the Act of 1835, and section 27 of 7 Will. 4 & 1 Vict. c. 78 (1837), is preserved in this clause.
The mayor must examine and decide all claims with reference to the charter and local customs and usages of each borough. See the Helleston case (2 Doug. El. ca. 35), and the Derby case (3 Doug. El. ca. 287, 304).
Servitude must be under binding deed duly stamped (not necessarily an indenture), and period of service be in accordance with custom of borough. (Rex v. East Bridgeford, S. C. 133).
A claim may be made and admission allowed as late even as the day of election. See the Okehampton case (1 Frazer, 166).
When once admitted and enrolled a party can be removed only by the High Court of Justice.
See the cases relating to apprenticeships generally for qualifications and claims by servitude).
205.-(1.) Every person who had before the passing of the Reservation Municipal Corporations Act, 1835, been admitted a freeman, or property to if that Act had not been passed might have been so admitted others. otherwise than by gift or purchase, and (2.) Every person who for the time being is
(a.) An inhabitant of a borough, or
(d.) Bound an apprentice,-
[The effect of sections 2 and 3 of the Act of 1835 is preserved in this clause. All persons who before the passing of the Act of 1835 were entitled to and possessed of corporate benefits, by virtue of any usage, custom, bye-law or otherwise are confirmed in them. See Hopkins v. Mayor fc. of Swansea (4 M. & W. 621, 643); affirmed in the Exchequer Chamber, M. & W., 901. Certain land on which the resident freemen had the right to turn stock was taken compulsorily under the Lands Clauses Act. Held, that the purchase money should be invested in other land for the same purpose, and that till this could be done it should be invested and the dividends paid to the resident freemen at the same time in each year as they had been accustomed to enjoy their common rights. Nash v. Coombs (L. R., 6 Eq., 51). See also Stanley v. Mayor, fc. of Norwich, as to rents and profits, W. N. (1887) p. 72.
Freemen. In an action by some (on behalf of all) of the freeman of a borough to estab.
lish the rights of all the individual freeman to share for their private benefit tho net proceeds of certain properties vested in the Corporation. Held, on demurrer, that the effects of the saving of rights in sect. 2 of The Municipal Corporations Act of 1835 was to legalise the beneficial interests therein men. tioned, without reference to the legality of their origin, and in particular, to obviate any objection which might otherwise arise in respect of the tendency towards a perpetuity of any such beneficial interest.
An action to establish such rights as aforesaid may be brought by parties claiming to be entitled, without an information by the Attorney-General.
In such an action it was held on demurrer that in order to enable the plaintiffs to avail themselves of such saving rights as aforesaid, it was sufficient for them after stating the title of the Corporation by charter or otherwise to the property in question, to aver that at the time of the passing of the Act the rents, tolls, and profits claimed by them were not, nor ever had been, nor ought to have been held and applied to public purposes, but they were and always had been held and applied for the particular benefit of the freemen, and without pleading that such rents, tolls and profits had been enjoyed or acquired by virtue of any specific statute, charter or bye-law or custom, or expressly to aver that any custom to such effect as aforesaid existed. Prestney v. Mayor and Corpora.
tion of Colchester and the Attorney-General, 21 Ch. Div. 111). Limit of valuo 206.-(1.) The total amount to be divided among the persons and saving as to conditions whose rights are by the last foregoing section reserved shall precedent.
not exceed the surplus remaining after payment of the interest of all lawful debts chargeable on the property out of which the sums so to be divided have arisen, together with the salaries of municipal officers and all other lawful expenses which, on the fifth of June one thousand eight hundred and thirty-five, were defrayed out of or chargeable on the same.
(2.) Where, if the Municipal Corporations Act, 1835, or this Act, had not been passed, any such person would have been liable by statute, bye-law, charter, or custom, to pay any fine, fee, or sum of money to any body corporate, or to any member, officer, or servant thereof, in consideration of his freedom, or of his or her title to those reserved rights, or there was any condition precedent to any person being entitled to those rights, he or she shall not have any benefit in respect of those rights until he or she has paid that fine, fee, or sum to the treasurer on account of the borough fund, or has fulfilled that condition, as far as it is capable of being fulfilled according to the provisions of this Act.
[The effect of section 2 of the Act of 1835 is preserved in this clause). Saving for 207.-Nothing in this Act shall strengthen or confirm any power to question right claim, right, or title of any freeman or of any person to the
benefit of any right in this Part reserved, but the same may in every case be brought in question, impeached, and set aside, as if this Act had not been passed.
[The effect of section 2 of the Act of 1835 is preserved in this clause].
208.-(1.) Nothing before in this Part contained shall Preemen. apply to any claim, right, or title of a freeman or of any person Reservation to any discharge or exemption from any tolls or dues levied exemptions wholly or in part by or for the use or benefit of any borough and others. or body corporate.
(2.) No person shall have any such discharge or exemption except a person who, on the fifth of June, one thousand eight hundred and thirty-five, was an inhabitant, or was admitted or entitled to be admitted a freeman, or was the wife, widow, son or daughter of a freeman, or was bound an apprentice; and every such person shall be entitled to the same discharge or exemption as if the Municipal Corporations Act, 1835, or this Act, had not been passed.
(3.) But nothing in this Act shall affect the right of any person claiming such discharge or exemption otherwise than as inhabitant or freeman, or member of a municipal corporation, or widow or kin of such an inhabitant, freeman or member.
[The effect of section 2 of the Act of 1835, and section 9 of 6 & 7 Will, 4, c. 104 (1836), is preserved in this clause).
209,-(1.) Every person who, if the Municipal Corporations Reservation of Act, 1835, had not been passed, would have enjoyed as a free- franchiso,&c. man, or might thereafter have acquired, in respect of birth or servitude, as a freeman, the right of voting in a parliamentary election, shall be entitled to enjoy or acquire that right as if that Act or this Act had not been passed.
(2.) No stamp duty shall be chargeable on the admission of any person as a freeman in respect of birth or servitude in a parliamentary borough.
(3.) The town clerk shall do all things appertaining by law to the registration of freemen for parliamentary elections,
[The effect of section 4 of the Act of 1836, and 1 & 2 Vict. c. 36 (1838), is preserved in this clause).
GRANT OF CHARTERS. Charters. Power to Crown 210.-If on the petition* to the Queen of the inhabitant in granting charter to householders of any town or towns or district in England, or of borough to extend to it the any of these inhabitants, praying for the grant of a charter of the Municipal incorporation, Her Majesty, by the advice of Her Privy
Council, thinks fit by charter to create such town, towns, or district, or any part thereof specified in the charter, with or without any adjoining place, a municipal borough, and to incorporate the inhabitants thereof, it shall be lawful for Her Majesty by the charter to extend to that municipal borough and the inhabitants thereof so incorporated the provisions of the Municipal Corporations Acts.
[The effect of section 3 of 40 & 41 Vict. c. 69 (1877) is preserved in this clause.
The powers of the Crown in regard to the grant of charters of incorporation, and the mode in which these powers are to be exercised, are, however, so important, that it will be useful to state in a suminary manner the propositions affirmed by the Court of Queen's Bench in the leading case on the subject that of the incorporation of Manchester (reported as Rutter v. Chapman, (8 M. & W., 1). It was there held
1. That the grant of a charter of municipal incorporation is still an exercise of the common law prerogative of the Crown, although such charter invests the corporation with the functions conferred by the Act upon the then existing municipal corporations,
2. That the Crown may grant the charter to a part only (to be defined therein) of a town or borough, and need not grant it to the whole of the inhabitants of such town or borough, although the prayer of the petition is for a grant of a charter of incorporation to the inhabitant householders of the said borough.
3. That a petition, to be within the meaning of the Acts, need not proceed from the majority of the inhabitant householders of the place or of the male inhabitant householders of the place.
4. That whether such petition was, under all the circumstances, the petition of the inhabitant householders within the meaning of the Acts, is a question of fact for a jury.
6. That when the whole number of the inhabitant householders was 48,000, and a petition was presented to the Crown signed by 4,000 in favour of a grant of a charter of incorporation, and another was subsequently presented by 6,000 against it, the jury were quite right in their verdict, that the former petition expressed the wish of the inhabitant householders
* By section 56 of the Local Government (England and Wales) Act, 1888, the presentation of a petition must now be notified to the county council of the county in which the proposed borough is situated, and also to the Local Government Boar). See Appendix.
within the meaning of the Acts; (the direction of the learned judge at the Grant of trial being that, notwithstanding such last petition, the Crown had power, Charters. in his opinion, to grant the charter by virtue of the first petition, which direction was also co
6. That the Crown, in the charter, besides defining the district within which the powers and jurisdiction of the corporation are to be exercised, may, by its common law prerogative, appoint the number and set out the wards of the new borough.
7. That a charter so granted was valid (having been accepted); but that the determination of the Privy Council to advise the Crown to grant the charter is not decisive of the question as to the sufficiency of the petition in favour of the charter.
8. That the Crown may, in the charter, delegate to an individual the power of appointing the first members of the corporate body; or may at all events appoint a person to ascertain who are the individuals possessed of the qualitications which the corporations are to have; in other words, who are to be burgesses; and may appoint, in the charter, another person to revise the list of burgesses, and to act as the returning officer at the first
election of officers under the charter. The Crown has always possessed the privilege of creating corporations and conferring franchises ; but when privileges and powers are to be conferred which are not recognised by the common or statute law, an Act of Parliament is necessary. Section 210, although it does not at all abridge the common law prerogative of the Crown, prevents it granting charters of incorporation with the powers conferred by this Act, save with the advice of the Privy Council, and on petition by the inhabitant householders.*
The court will not grant a quo warranto against an individual to try the legality of a charter of municipal incorporation. Reg. v. Jones (8 L. T., N. S., 603).
The court will not inquire into the validity of a charter, but will act upon it as being valid until proper proceedings are taken to set it aside. A charter of incorporation, granted under 7 Will. 4 and 1 Vict. c. 78, to a borough previously possessing a body corporate, but not named in the schedules to 5 & 6 Will. 4, c. 76, confers upon it the same powers and privileges as if it had been so named. The corporation established under the charter is identical with that previously existing although the governing body may be different, und the property of the old corporation becomes vested in the new by virtue of the charter.— Attorney-General v. Avon (Port-reeve, Aldermen, and Burgesses). 9 Jur., N. S., 1117.
The power of the Crown to grant a charter of incorporation under 1 Vict. c. 78, s 40, attaches on the presentation of a petition under the Act, and whatever happens afterwards only affects its discretion. Such a petition must be a petition representing the wishes of the majority of the inhabitant householders, and this is a question of fact for the jury.--Semble, that “ inhabitant householders” in this section includes compound householders (under 13 & 14 Vict. c. 95) as well as ratepayers.—Reg. v. Mayor, Aldermen, and Burgesses of Aberavon (13 W. R., 90)].
211.-(1.) Every petition for a charter under this Act shall Reference to be referred to a Committee of the Lords of Her Majesty's Council, and Privy Council (in this part called the Committee of Council). petition for
(2.) One month at least before the petition is taken into consideration by the Committee of Council, notice thereof and of the time when it will be so taken into consideration shall be published in the London Gazette, and otherwise in such manner
* “ Under the word 'persons,' says a learned commentator upon the Act of 1838, it is apprehended that à corporation would be included, and would consequently be entitled to the protection afforded by this section." In several cases the word "person," in a similar clause as to actions, has been held to include an incorporated company.