recovered for and adjudged to be paid to the treasurer of the Legal Proceedings. borough. [This would apply to penalties for obstructing railway officers in their duties. See Attorney-General v. Moore (3 Ex. D. 276); also to certain fines under the Parliamentary and Municipal Registration Act. See also section 3 of that Act (41 & 42 Vict. c. 26). Where a conviction is made under statutes which contain no directions for the payment of the penalties to any person the clerk of the division for which the justices usually act must pay them over to the treasurer of the county or the borough, as the case may be. Held that they must be paid to the treasurer of the county if the borough had not a separate court of quarter sessions. Sec Mayor of Reigate v. Hart (L. R., 3 Q. B., 244), and Winn v. Mossman (L. R., 4 Ex., 292)]. (2.) But this section shall not apply to a fine, penalty, or forfeiture, or part thereof, where the Act under which it is recovered (a.) Directs payment thereof to the informer or to any person aggrieved; or (b.) If passed since the Municipal Corporations Act, 1835, directs that the same shall go in any other manner and (c.) Relates to the customs, excise, or post office, or to trade of peace as to fines and forfeitures. [The effect of section 126 of the Act of 1835 is preserved in this clause]. 222.-Where the offices of town clerk and clerk of the peace Duties of clerk for a borough are not held by the same person, the clerk of the peace shall perform all duties imposed on the town clerk by the Act of the third year of King George the Fourth, chapter forty-six, "for the more speedy return and levying of fines, penalties, and forfeitures, and recognisances estreated;" and the clerk of the peace shall make all returns, issue all processes, and do all other acts required by that Act to be made, issued, and done by the town clerk. summons or [The effect of section 5 of 20 & 21 Vict. c. 50 (1857) is preserved in this clause]. 223.-Any summons for appearance, warrant to enforce Service of appearance, warrant for apprehension, or search warrant, may, warrant. if issued by a justice for a borough, be served or executed in any county wherein the borough or any part thereof is situate, or within any distance not exceeding seven miles from the borough, and, within those limits, shall have the same effect as if it had been issued or indorsed by a justice having jurisdiction in the place where it is served or executed, and may be served Legal Procedure in penal actions against corporate officers. Quo warranto and mandamus. or executed by the constable or special constable whom it is directed. [The effect of section 101 of the Act of 1835 is preserved in this clause. See under section 158, page 141 ante. 224. (1.) An action to recover a fine from any person for acting in a corporate office without having made the requisite declaration, or without being qualified, or after ceasing to be qualified, or after becoming disqualified, may not be brought except by a burgess of the borough, and shall not lie unless the plaintiff has, within fourteen days after the cause of action arose, served a notice in writing personally on the person liable to the fine of his intention to bring the action, nor unless the action is commenced within three months after the cause of action arose. [The plaintiff's declaration need not state that he is a burgess. Simpson v. Ready (12 M. & W., 736). See Mayor and Corporation of Harwich v. Gant (5 E. & B., 182)-where a penalty had been recovered-as to corporate title to moiety.] (2.) The court or a judge shall, on the application of the defendant within fourteen days after he has been served with writ of summons in the action, require the plaintiff to give security for costs. (3.) Unless judgment is given for the plaintiff, the defendant shall be entitled to costs, to be taxed as between solicitor and client. (4.) Where any such action is brought against a person on the ground of his not being qualified in respect of estate, it shall lie on him to prove that he was so qualified. (5.) A moiety of the fine recovered shall, after payment of the costs of action, be paid to the plaintiff. [The effect of section 53 of the Act of 1835 is preserved in this clause]. 225.-(1.) An application for an information in the nature of a quo warranto against any person claiming to hold a corporate office shall not be made after the expiration of twelve months from the time when he became disqualified after election. [A vast number of cases have been reported with respect to the disturbance in office by nature of a quo warranto. Six years was for a long time the limit, but the obvious inconvenience of interfering with the holder of an office after he had been in the enjoyment of it for a long period was so frequently made manifest that the limit was reduced to twelve months by 7 Wili. 4 and 1 Vict. c. 78. The court may in its discretion refuse an application, even if made within twelve months, if they think there has b.en undue delay. Reg. v. Hodson (4 Q. B. 648, n.)]. (2.) In the case of such an application, or of an application Legal Proceedings. for a mandamus to proceed to an election of a corporate officer, the applicant shall give notice in writing of the application to the person to be affected thereby (in this section called the respondent) at any time not less than ten days before the day in the notice specified for making the application. (3.) The notice shall set forth the name and description of the applicant, and a statement of the grounds of the application. (4.) The applicant shall deliver with the notice a copy of the affidavits whereby the application will be supported. (5.) The respondent may show cause in the first instance against the application. (6.) If sufficient cause is not shown, the court, on proof of due service of the notice, statement, and copy of affidavits used in support of the application, may, if it thinks fit, make the rule for the information or mandamus absolute. [L. C J. Abbott lays down the general rule:-"In the case of individual members of the corporation, it is wholly within the discretion of the court to say whether such an information should be granted or refused." Rex v. Trevenen (2 B & A., 479). Where individuals apply it is discretion ary with court to grant or refuse rule. Reg. v. Ward (L. R., 8 Q. B., 210). Lord Mansfield has expresse the principle guiding "No precise rule can be laid down in these cases; but all the circumstances of the case taken together must govern the discretion of the court." Rex v. Stacey (1 T. R., 13)]. (7.) The court may, if it thinks fit, direct that any issue of fact on an information be tried by jury in London or at Westminster. (8.) The court may, if it thinks fit, direct that any writ of mandamus issued shall be peremptory in the first instance. [The effect of section 23 of 7 Will. 4 and 1 Vict. c. 78 (1837), and sections 1 and 5 of 6 & 7 Vict. c. 89 (1843), is preserved in this clause]. protection of under Act. 226. (1.) An action, prosecution, or proceeding against Provisions for any person for any act done in pursuance or execution or in- persons acting tended execution of this Act, or in respect of any alleged neglect or default in the execution 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, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof. [The words ", or in respect of any alleged neglect or default in the execution of this Act" are an addition to the provisions of former statutes with the view of extending protection to such cases]. Legal Power for borough constables to take bail. (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. (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. [The effect of section 133 of the Act of 1835 is preserved in this clause. The word "person" includes incorporated company. Boyd v. Croydon Railway Company (4 Burg. n. c. 669). See also Cortis v. Kent Waterworks Company (7 B. & C., 314). "Commencement" dates from information or proceedings before magistrates. Rex v. Stokes (2 M. & Sel., 72.) The chief constable of a borough having by the direction of borough magistrates, laid an information against a person for conspiracy, an action for malicious prosecution was brought by such person against him, and a verdict recovered for £200. Held, "that it was not competent for the town council to order payment of the chief constable's costs out of borough fund or rate under 5 & 6 Will. 4 c. 76, s. 82." Quare, whether such inability would be hereby removed: "We think it would." See hereon Reg. v. Mayor of Exeter, 44 L T. (N.s.) 101. 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 watchhouse in the borough, at any time (by day or night) 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 Legal Proceedings. 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 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 es'reats and schedules of every such recognisance as of recognisances 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. [The effect of section 79 of the Act of 1835 is preserved in this clause. By 47 & 48 Vict. c. 43, s. 9, nothing in this clause (227) shall be taken to have repealed sec. 38 of the Summary Jurisdiction Act, 1879. See also Appendix.] * These two sub-sections are repealed by the Act 47 & 48 Vict. c. 43 (Summary Jurisdiction Act, 1884). See Appendix for re-enactments, &c. |