Page images
PDF
EPUB

Charters.

corporation of the borough or one twentieth of the owners and Grant of ratepayers of the borough (estimated as in this Part mentioned), Ch or a local authority affected by the scheme, petition the Queen for an amending scheme, the petition shall be referred to a Committee of the Lords of Her Majesty's Privy Council (included in the term the Committee of Council in this Part), and shall be proceeded on, and this Part shall apply thereto, as nearly as may be, as if the same were a petition for a charter extending the Municipal Corporations Acts to a municipal borough to be incorporated.

(2.) The Committee of Council, if they think fit to submit the amending scheme for confirmation, shall submit the same to Parliament, or they may submit the same to Her Majesty in Council, if the original scheme was confirmed by Order in Council; and in the latter case it shall be lawful for Her Majesty to confirm the amending scheme by Order in Council.

(3.) An amending scheme, when confirmed by Parliament, or by Order in Council, as the case may require, shall have full operation, with, in the former case, such modifications, if any, as are made therein by Parliament, as if the amending scheme were part of this Act.

PART XII.

Legal

LEGAL PROCEEDINGS. Proceedings, Prosecution of 219,-(1.) In summary proceedings for offences and fines offences and recovery of under this Act the information shall be laid within six months fines.

after the commission of the offence.

[Three months was the limit epacted by section 127 of the Act of 1835. By 13 & 14 Vict. c. 21, 8. 4, “ month” means a calendar month, unless the lunar month is expressly implied.]

(2.) Any person aggrieved by a conviction of a court of · summary jurisdiction under this Act may appeal therefrom to a court of quarter sessions.

(3.) Any fine incurred under this Act and not recoverable Bummarily may be recovered by action in the High Court.

[The effect of sections 127 and 131 of the Act of 1835 is preserved in this clause).

Exclusion of certiorari.

220.-A conviction, order, warrant, or other matter made or done or purporting to be made or done by virtue of this Act shall not be quashed for want of form, and shall not, unless it is an order of the council for payment of money out of the borough fund, be removed by certiorari or otherwise into the High Court.

[The effect of section 132 of the Act of 1835 is preserved in this clause. An order of the borough quarter sessions in the case of an appeal against a borough milte (in the nature of a county rate) cannot be removed by certiorari. Reg. v. Justices of Ripon (7 A. & E., 417)].

Application of penalties in

Application of 221.-(1.) Where by any Act passed or to be passed, any guarter sessions fine, penalty, or forfeiture is made recoverable in a summary

manner before any justice or justices and payable to the Crown or to any body corporate, or to any person whomsvever, the same if recovered and adjudged before any justice of a borough having a separate court of quarter sessions shall, notwithstanding anything in the Act ander which it is recovered, be

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. See 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 (6.) If passed since the Municipal Corporations Act, 1835,

directs that the same shall go in any other manner and

not to the borough fund; or (c.) Relates to the customs, excise, or post office, or to trade

or navigation, or to any branch of the revenue of the

Crown. [The effect of section 126 of the Act of 1835 is preserved in this clauso).

forfeitu os.

222,- Where the offices of town clerk and clerk of the peace Dnties of clerk for a borough are not held by the same person, the clerk of the fines and 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. [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

summons or

Legal
Proceedings.

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.

Procedure in penal actions against corporate officers.

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 (6 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). Quo warranto 225.-(1.) An application for an information in the nature and mandamus.

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 i Vict. c. 78. The court may in its discretion refuse an application, even if made within twelve months, if they think there has buen undue delay. Reg. v. Hodson (4 Q. B. 648, n.)].

(2.) In the case of such an application, or of an application Legal for a mandamus to proceed to an election of a corporate officer,

Proceedings. 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 inandamus 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 discretio, ary with court to grant or refuse rule. Reg. v. Ward (L. R., 8 W. B., 210). Lord Nansfield has expresse l 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 Westiuinster.

(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).

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].

« PreviousContinue »