ROLLS.] EVAN v. THE PORTREEVE, ALDERMEN, &c. of Avon. improper ways, partly in payment of bills of costs unduly incurred for legal proceedings, and partly in payment of other debts unduly incurred by the defendants the said corporation. The said corporation also borrowed from divers other persons unknown to the plaintiff divers other sums of inoney, amounting together to between 2000l. and 3000%, and such sums have been unduly applied. [ROLLS. To this bill the defendants the corporation demurred for want of equity, and the cause now came on to be argued upon that demurrer. A demurrer was also made, ore tenus, at the bar, for want of parties. Selwyn, Q.C. (Speed with him), in support of the demurrers, contended that the plaintiff ought to have filed the bill on behalf of himself and all other persons in the same interest with himself, but he had not done The plaintiff by his bill then further charged that so: or, since it was clear from the statements in the bil the solicitors or solicitor from time to time, in and that there must be other parties having such an insince the year 1853, employed by the said corporation, terest, they ought to have been made parties, but that or some or one of them, had taken and had conveyed was not done. Further, the suit ought to have been to them or him certain parts of the said corporate pro- instituted by the Attorney-General. With regard to perty in consideration of and in lieu of payment of bills the plaintiff's general equity to sue the corporation, of costs from time to time incurred by the said corpo- this bill was a fishing bill, for discovery, founded on a ration for legal proceedings, and the defendants the claim to relief to which the plaintiff was not entitled. said corporation ought to discover the particulars of all The bill was one by a member of the corporation against such conveyances, and the several considerations for the corporate body, when the proper remedy was by the same; and that the purchase-money received for mandamus at law. What the plaintiff wanted was, to such sale as aforesaid and the several sums so bor- show that the corporation had been, and intended to rowed on mortgage as aforesaid, had not been duly be, guilty of improper acts-acts ultra vires their applied or distributed according to the constitution of charter. As to past acts, the plaintiff sought to imthe said corporation and the trusts attached to the said peach some sales already effected; and, as to future property thereof, and that the defendants the said cor- acs, to restrain some proposed sales and mortgages of poration ought to set forth an account of the particu- the corporation property. For that he had alleged no lars of which the said corporate property consisted pre-sufficient case, for he had shown no proper trust on the viously to the sales so made thereof as aforesaid, and also of the particulars of the corporate property so sold as aforesaid, and when and to whom such sales were made, and how the purchase-moneys arising therefrom had been applied and distributed, and whether in any manner invested, and also of the particulars of which the property vested in the said corporation now consisted, and what was the annual income thereof; that the defendants the said corporation ought also to set forth shortly the several deeds, charters, ordinances, records, rules, minute-books, or other instruments in writing, and also all customs within their knowledge regulating the said corporation and the property thereof, or showing the constitution thereof; that the defendants the said corporation had successfully offered for sale, and they threatened and intended to sell the market-house and the town-hall and the said slaughter-house and other the remaining property vested in the said corporation, or part thereof, and to distribute the proceeds of such sale amongst certain individual members of the said corporation, or otherwise to apply the same contrary to the constitution of the said corporation, and in violation of the trust attached on the property thereof. Such conduct was contrary to the wishes of a large number of the said burgesses and against their protest; and that the defendant Griffith Williams was the common attorney of the said corporation, and the several facts and things aforesaid were within his personal knowledge, and he ought to discover the same. The bill then contained the charge as to documents, and concluded with a prayer, that the defendants, the said portreeve, aldermen, and other burgesses of Avon, otherwise Aberavon aforesaid, might be restrained by the order and injunction of the court from selling or disposing of, or offering for sale, the said market-house, market-place, or place for holding fairs, slaughterhouses, town-hall, or any other hereditaments remaining vested in them upon such private and public trusts as aforesaid; that an account might be taken of the hereditaments sold by the said portreeve, aldermen and burgesses of Avon, otherwise Aberavon, in and since the month of Jan. 1860, or from such other date as this court should think fit; and also of the proceeds of such sales, and the application of such proceeds, and of the mortgage moneys so borrowed as aforesaid, and also an account of the hereditaments, moneys and property now vested in the said corporation; and that the defendants the said corporation, and also the defendant Griffith Williams, might make a full discovery of the several matters aforesaid; and for further relief. part of the defendants; and primâ facie every corpora tion not within the Municipal Corporations Act was entitled to deal with its own property as it chose. Upon the whole case they contended that the plaintiff was not entitled to the relief, by way of injunction or otherwise, that he prayed for: (The Shrewsbury and Birmingham Railway Company v. The North-Western Railway Company, 6 H. of L. Cas. 113; Jackson v. The North Wales Railway Company, 13 Jur. 69. R. Palmer, Q.C. (F. H. Colt with him), for the plaintiff, insisted that it was apparent on the face of the bill that the defendants, the corporation, were trustees of their property for the purposes of the corporation; and that, as the plaintiff was himself a member of the corporation, they were therefore trustees for him. The plaintiff had alleged a specific claim, as an individual burgess of the town of Avon, and that claim involved a right to a part of the land on which the buildings mentioned in the bill, and the subject-matter of the sales and mortgages, were situated. It could not therefore be said he had no right to sue the corporation. Further, the members of the corporation had sworn not to alien the corporation property; therefore there was a clear trust imposed on them not to do so-above all things, not to do so if prejudicial to any one of the body: (Attorney-Generalv. The Corporation of Cashel, 3 Dr. & W. 294; Ward v. The Society of Attorneys, 1 Coll. C. C. 370; Adley v. The Whitstable Company, 17 Ves. 315; Dummer v. The Corporation of Chippenham, 14 Ves. 245.) Selwyn, Q.C. was not called on to reply. The MASTER of the ROLLS.-This bill cannot be supported. The case is one of a single individual, a burgess and a member of the corporation of Avon, suing the corporation, in order to impeach certain sales and mortgages already made by them, and to obtain an injunction to restrain them from selling or mortgaging other parts of the property of the corporation. He also prays for discovery against the corporation and their attorney. A distinction was endeavoured to be drawn in the course of the argument between a municipal and a trading corporation. Now, prima facie, a municipal corporation which is not within the Corporation Act and that is the position of this corporation—may dispose of all its own property as it pleases; and if a person seeks to restrain such a corporation from so doing, he must establish a case of a trust to the contrary, in which he is himself interested. A trust of that character may be of two kinds : it may be either general or private. For instance, a person might give ROLLS.] READ v. FREEMAN. [C. B. a sum of money to a corporation, in trust for the the alienation was contrary to the oath; and observed children of A. B., to be paid to them when they shall that the oath there imposed was in lieu of an implied respectively attain the ages of twenty-one years. trust, binding upon the consciences of the members of That is a private trust. Then, again, a person may the corporation. But that is very different, as I have give a sum of money to a corporation for the be- said, from this case. The oath there was, that there nefit of the inhabitants of a town, as for the should be no alienation at all. Here, however, the oath paving, draining, lighting, or some other improvements is clearly conditional, and does permit some alienations, of the town. That is a general, or public trust. In the for it prescribes that the alienation is not to be prejudilatter case, if you wish to enforce the trust, you must cial to the interests of the corporation. [The M. R. institute a suit in the name of the Attorney-General, read the paragraph of the bill relating to the oath, as and by way way of information, against the corpora- above stated, and continued.] But who is to be the tion; and that suit is one on behalf of all the persons judge whether the alienation is or is not prejudicial? interested in the trust. In the case of private trusts, Clearly the corporation, who are to exercise the power of if all the persons interested are too numerous to be alienation. But in addition to all these considerations, the made parties, the practice of this court allows some of trust here, if as I have said any trust there be, is a public them to sue on behalf of themselves and all others in one, and the enforcing of it should have been by or at the same interest with them. How, then, does the pre- the suit of the Attorney-General. The case of the sent case stand with reference to these doctrines? The Whitstable Company was one of a corporation in the plaintiff in this case states that he is a private indi- nature of a partnership, whose business it was to vidual, and a member of the corporation which he is divide the profits among the partners to the concernsuing; but he also shows by his bill that he appears in one of them said he had not received his share of the this suit in a public character; for he says that the in- profits. But that was evidently the case of a private terests in respect of which he is suing are common to trust, which this court is bound, by all its rules, to all the burgesses of the town of Avon, he himself administer-bound, that is to say, unless there be a title being also a burgess. In support of those positions or remedy for the plaintiff at law. But that case is which he assumes, he sets up, or endeavours to set up, one quite distinct from the present, in which, as I have a case of a trust on the part of the defendants, more than once observed, if there be a trust at all, it the corporation, for the benefit of, amongst other is a public one, and for the due enforcing of which persons, himself. The documents on which he relies this suit is not properly framed. The plaintiff to establish the trust are set out by him in the fourth here has alleged that some part of the corparagraph of his bill. [The M. R. read that paragraph poration property has been sold, and he seeks containing the charters as above stated, and continued.] an account of the moneys arising from such cales, and I am of opinion that these documents, so stated, of the property now vested in the corporation. He import no such trust of either kind; no trust either also seeks a discovery in aid of that account. I am general (or public or private; none that can be consi- of opinion that he is not entitled to such discovery, as dered sufficient to support the plaintiff's bill. So far he is not in this case entitled to the other relief which as they at all approach a trust-if indeed a trust there he prays. Discovery may be obtained without further be-they import not a private but a public one, in the relief, by a plaintiff in this court, in aid of an action at enforcing of which, as I have said, the Attorney-law, or of proceedings in another court; but if the General is a necessary plaintiff, and the suit for that purpose should be commenced by information. Well, but taking the plaintiff's case as it stands, and coming on, as it does, upon demurrer to the bill, the facts stated by him must, by the ordinary rules of pleading, be taken most strongly against him; and I find that, it being necessary for him to establish a trust, he really alleges something short of what, in fact, he wants. He makes a general allegation of a trust, for the proof of which resort must be had to particular facts. these particular facts, as they are stated by the plaintiff in his bill, do not, in my opinion, at all establish the conclusion in support of which he adduces them. In the case of Frietas v. Dos Santos, 1 Y. & J. Exch. 574, a very apposite judgment was delivered by the Chief Baron of the Court of Exchequer. There the general allegations had reference to certain accounts, in support of which the particular facts stated in the plaintiff's bill were set out, but as they were set out they proved all the accounts to be on one side, and the court in that case allowed the demurrer to the bill. This present case appears to me to be identical in principle with that; and so far as regards the demurrer for want of equity, in that respect it must be allowed. But then it was suggested that each member of the corporation had taken an oath not to alienate the corporate property, and that the defendants were now about so to do. In support of the arguments for the injunction founded on that assumption, the case of the Attorney-General v. The Corporation of Cashel was referred to. But that case was very different from the present one. In that Irish case the oath was clearly distinct and unconditional; and the question was, whether an alienation of part of the corporate property to a member of the corporation for an adequate consideration was not contrary to the oath taken by the alienors in their corporate capacity? Lord St. Leonards said that But plaintiff's bill, in addition to discovery, also secks, as connected with it, any other relief here, and he fails in obtaining such relief, he is not entitled to the discovery. I am of opinion that the demurrer to this bill must be allowed. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs., Barristers-at-Law. Nov. 13 and 23. Appeal against highway-rate-Application for costs by the respondent under 12 of 13 Vict. c. 45, s. 5, and 11 & 12 Vict. c. 43, s. 27. The defendant had appealed against a highway-rate, and had entered into the necessary recognisances, pursuant to 5 & 6 Will. 4, c. 60, to pay such costs as should be awarded by the justices at the quarter sessions; the appeal was heard and the rate confirmed, and an entry made to that effect in the minute-book by the clerk of the peace. At the end of this entry was an entry, "costs agreed to be taxed out of court-taxed at 33l. 78." After the sessions an appointment for the taxation of the costs of the appeal was made by the clerk of the peace, of which the appellants had notice, but did not attend, and the costs were then tared. Some time previous to this a general order had been made by the quarter sessions that the costs of every appeal should be taxed by the clerk of the peace during the sessions, and be paid by the losing party, unless an order should be made to the contrary. An application was then made by the plaintiff to the quarter sessions, under the 12 & 13 Vict. c. 45, s. 5, and 11 f 12 Vict. c. 43, s. 27, to enforce the payment of C. B.] READ v. FREEMAN. [C. B. those costs, and they were asked to issue a distress- | the plaintiff's solicitor, on the 6th Jan. 1860, and warrant, which was objected to by the defendant: that they had not paid the same. It was proved that Held, that, under the circumstances, the magistrates | an order or rule of the said court of quarter sessions would be right in granting the application. This was a case stated pursuant to the stat. 20 & 21 Vict. c. 43, s. 2. At a petty sessions holden at Swindon, in the county of Wilts, on the 16th Feb. 1860, before G. Daubeny and four other justices of the peace of Swindon, in the Baid county of Wilts, William Read, surveyor of highways, of the parish of Swindon aforesaid (hereinafter called the plaintiff), made an application, in pursuance of the 12 & 13 Vict. c. 45, s. 5, and 11 & 12 Vict. c. 43, s. 27, to enforce payment by H. E. Freeman, of Swindon aforesaid (hereinafter called the appellant), and W. Wool-lants, which certificate had been applied for by the ford, of Swindon aforesaid, of the sum of 331. 78., being the costs of an appeal by the said appellant to the court of quarter sessions of Wilts against a highway-rate made for the parish of Swindon aforesaid, on which appeal the rate was confirmed, as in the certificate hereinafter mentioned. In pursuance of a summons issued on the information and complaint of the said plaintiff, requiring the attendance of the said appellant and the said W. Woolford, the said appellant, appeared at the said petty sessions, but the said W. Woolford did not appear. It was proved that the said appellant and W. Woolford, under sect. 105 of 5 & 6 Will. 4, c. 50, duly gave notice of appeal against a highway-rate of the parish of Swindon, and duly entered into recognisances with sufficient sureties, before a justice of the peace, pursuant to and in the form required by the above-mentioned section of the said statute of 5 & 6 Will. 4, c. 50, to pay such costs as should be awarded by the justices at the general or quarter sessions. That the said appeal was duly entered at the general quarter sessions of the county of Wilts, held at Warminster on the 29th June 1858, and was on the application of the appellants respited to the then next sessions for the county of Wilts, to be holden at Marlborough, on the 19th Oct. 1858, when the said appeal was heard and determined, and an entry in the minute-book of the sessions, of which the following is a copy, was at the said sessions made by the clerk of the peace, and which entry was produced to us at the hearing of the said information by J. E. Judd on behalf of the clerk of the peace, and proved to have been so made by the clerk of the peace as aforesaid :"Townsend and Browne, H. E. Freeman, and W. Woolford (appellants) v. Kinneir.—The highway rate of the parish of Swindon, 9th June 1858. Costs agreed to be taxed out of court. Taxed at 331. 78. 19th Oct. 1858. Rate confirmed, subject to the opinion of the Court of Q. B. on a case to be agreed upon." The above entry was and is the only entry in the said minute-book made as to the judgment of the court of the result of the appeal at the said quarter sessions, and save as aforesaid there was no entry of judgment in the said appeal. It was proved that no application was made to the court of quarter sessions, or anything said to or by the court on the subject of the costs of the said appeal. It was proved, that on the 14th April 1859, and after the said sessions, an appointment for the taxation of the costs of the appeal to the court of quarter sessions was made by the said clerk of the peace, and that the appellants had notice of such appointment, but did not attend, and the costs were then taxed at 331. 78., and that afterwards in June 1859 the Court of Q. B. heard and determined the said case, when the said order of quarter sessions, confirming the said rate, was confirmed by the said Court of Q. B. It also appeared that the payment of the said sum of 33l. 78. had been demanded of the appellant; and W. Woolford, by was made at the general quarter sessions of the peace held at New Sarum on the 4th April 1843, as follows: "That from and after the 1st Dec. next, the costs of every appeal tried shall be taxed by the clerk of the peace during the same sessions, and be paid by the party against whom the court shall decide such appeal, unless the court shall then make any order to the contrary;" and that such rule or order was in force and had not been annulled at the time of the hearing of the said appeal. A certificate of the clerk of the peace was proved and received, though objected to by the appelplaintiff, and granted by the clerk of the peace under the 11 & 12 Vict. c. 43, s. 27, and was as follows: "Office of the clerk of the peace for the county of Wilts. In the matter of an appeal, wherein H. E. Freeman and W. Woolford were appellants against the highway-rate of the parish of Swindon. I hereby certify that at a court of general quarter sessions of the peace, holden at Marlborough, in the said county of Wilts, on the 19th Oct. 1858, an appeal by the said H. E. Freeinan and W. Woolford against the highway-rate for the parish of Swindon, in the said county of Wilts, bearing date the 9th June then last, came on to be tried, and was then heard and determined. And the said court of general quarter sessions did thereupon confirm the said highway-rate, subject to the opinion of the Court of Q.B. upon a case stated. And I do certify that at the general quarter sessions of the peace, held at New Sarum, in and for the said county, on the 4th April 1843, it was ordered as follows, that is to say, that from and after the 1st Dec. next the costs of every appeal tried shall be taxed by the clerk of the peace during the same sessions, and be paid by the party against whom the court shall decide such appeal, unless the court shall then make any order to the contrary; and that such last-mentioned order has not since been altered or repealed, and is now in full force. And I also certify that, upon the trial of the above appeal of H. E. Freeman and W. Woolford against the highwayrate of Swindon, the court made no order contrary to the said order of the 4th April 1843; and that the respective solicitors for the appellantsand respondents then and there agreed that the costs of such appeal should be taxed by the clerk of the peace out of court. And I further certify that the solicitors of the said appellants having objected to attend the taxation of such costs, I did, on the 14th April 1859, attend the respondents' solicitor, and taxed the costs of the respondents at the sum of 331. 78., which sum I consider fair and reasonable to be paid to them by the appellants for their costs in and about the said appeal. And I do further certify that the said sum for costs has not, nor has any part thereof, been paid to me. Dated 7th Feb. 1860. JOHN SWAYNE, Clerk of the Peace." It was proved that after the taxation of the said costs the clerk of the peace had added to the entry of the minute of judgment of the court of quarter sessions, on the hearing of the appeal above set forth, the words "Taxed at 331.78.," which appeared at the foot of such minute. Upon this evidence the said plaintiff W. Read asked for a distress-warrant against the appellant for the said costs, when it was objected and contended, on behalf of the appellant-first, that as the appellant had duly entered into such recognisance as aforesaid, &c., pursuant to 5 & 6 Will. 4, c. 50, and sect. 105, the justices had no jurisdiction to enforce payment of the above-mentioned costs by a distress-warrant ; secondly, that no order, judgment, or determination had been made or come to by the court of quarter sessions for the payment of the costs in the matter of the abovementioned appeal; thirdly, that the justices had no C. B.] BRUMFITT v. BREMNER. [C. B. jurisdiction, under the circumstances, to issue a dis- pressed orally by the court, the answer is, it tress-warrant for the said costs; fourthly, that it had was tacitly expressed by a standing order that costs not been proved to the justices that a valid or sufficient would follow the event unless the court should interfere, order or judgment had been made or given by the court which was a rule of practice known to both parties, of quarter sessions for the payment of costs in the and it was a rule specifically applied to this case by the matter of the above-mentioned appeal; fifthly, that officer having the authority of the court making the the certificate signed by the clerk of the peace did not entry ordering costs, with the knowledge of both parties. certify or show that the court of quarter sessions had As to the remaining objection, the costs were taxed by ordered the appellants to pay any costs, or directed to the clerk of the peace after the end of the sessions. whom such costs should be paid; and that such certi- Although the taxation ought by law to be by the court, ficate was not in conformity with sect. 27 of 11 & 12 still the performance of that duty by its officer, if subVict. c. 43. sequently adopted by the court, has been often recogWhereupon four of the justices adjudged and deter-nised as valid. See Reg. v. Mortlock, 7 Q. B. 459, mined that a distress-warrant should issue to enforce and Selwood v. Mount, 1 Q. B., where it is said a rule payment of the sum of 331. 7s. and 67. costs; and the requiring taxation by the court by no means prevents appellant being dissatisfied with such determination as the court from directing their officer to tax the costs, aforesaid, as being erroneous in point of law, hath, and adopting his taxation as their own act, and inpursuant to sect. 2 of stat. 20 & 21 Vict. c. 43, serting the amount in the order. But this must be duly applied to the justices in writing, within three done by the court before the end of the sessions; and days after the said determination, to state and sign a a difficulty was raised in this case because the lastease, setting forth the facts and grounds of such deter-mentioned rule of law had not been complied with. mination, for the opinion of the Court of C. P.; and the facts above stated are accordingly set forth and stated in such case, and the opinion of the court was requested whether, upon the facts, the justices were right in determining that such distress-warrant should be issued. The difficulty, however, is got over by an answer to the objection, in the nature of a personal exception to the appellant, because in effect the allowance during the sessions was brought about by the appellant himself consenting to delay, and therefore, as against him, it must be taken to have been properly done. It was on Prentice for the appellant.-Sect. 27 of 11 & 12 his representation of consent that his opponent altered Vict. c. 43, only applies to cases where no recogni- his position and allowed the delay. There are authosances have been entered into, and therefore does not rities for giving effect to the consent of the party in apply in this case; the main question is, whether sect. this way. In Rex v. Long, 1 Q. B. 746, where the 5 of 12 & 13 Vict. c. 45, applies where they have been costs were taxed after the end of the sessions without entered into. In this case no order of payment of consent, Lord Denman observes: "If the party to be. costs was made by the quarter sessions; some years burdened with costs consents, the judgment may persince the court of quarter sessions made a general haps be given nunc pro tunc, though the taxation be order, that the costs of every appeal should be taxed out of court; otherwise if there be no consent." And by the clerk of the peace during the same sessions, in Reg. v. The Shrewsbury and Hereford Railway Comunless the court should make any order to the con-pany, 25 L. T. Rep. 65, it appeared that the taxation trary; assuming that they have the power to make had been after the end of the sessions by consent, and such an order, they must indorse every order in the when the order of sessions was brought up for execusame way; but here they have made an order without tion the party who had to consent moved to set aside saying anything about the costs, but they ought to have the order on account of such a taxation after the end done so. No order whatever was made by the quarter of the session. Lord Campbell refused the rule, saying: sessions that the appellant should pay, but after the "The point is not now whether the sessions had jurissessions are over an entry is made by the clerk to that diction to make the order, but whether the appellants effect. The costs should not only be taxed at the same are not precluded by their own act from taking the sessions, but also adopted; this is the rule laid down objection;" and the court held that it did. This case in Burn's Justice, tit. 46 Appeal," 175. He also cited is an authority for us to adopt, and on these grounds Reg. v. Justices of Merionethshire, 6 Q. B 163; E.c we are of opinion that this objection fails, and that the parte Holloway, I Dowl. 26; and as to the order of appellant cannot take advantage by his attorney discosts being a judicial act, Reg. v. The Recorder of puting that which he had consented to do. We think Cambridge, 2: L. J. 160, M. C. there was no weight in the objection that the consent Phipson for the respondent.-There is nothing in the was not proved by legal evidence; the clerk certified first objection as to the Act not applying when recog- that there was consent, and as far as appears on the nisances are entered into. Then, as to order for pay-case, the justices were not wrong in acting on it as an ment of costs, and execution issued being valid under undisputed claim. Our judgment will therefore be for 12 & 13 Vict. c. 45, s. 18, see Reg. v. Huntley, 3 El. the respondent with costs. & BL. 172. Then it is said that there has been no order, but the parties agreed as to the taxing of costs; and then there was the general order that, unless an order was made to the contrary, the party losing should pay the costs. Reg. v. Mortlock was also cited, 7 Q. B. 470. [ERLE, CJ. referred to Reg. v. Long, 1 Q. B. 740.] Judgment for the respondent. Attorneys-Townsend and Ormond for the appellant, and H. Kinneir for the respondent. Tuesday, Nov. 20. REGISTRATION APPEAL. BRUMEITT (appellant) v. BREMNER (respondent). County vote-Notice of objection-Entry of objector's name in register after list printed-6 Vict. c. 18, 8. 34, 47 and 49. By the 47th section of 6 Vict. c. 18, the clerk of the C. B.] BRUMFITT v. BREMNER. the revising barrister, it appeared, on turning to the! bound copy of the register of voters, which was produced from the custody of the sheriff, that a sheet thereof had been pasted into the book after it had been bound, upon which the name of the objector had been inserted, numbered 5638 A, between names of other voters, numbered respectively 5638 and 5639. On or about the 29th Dec. various copies of the register were sold to persons applying for them, which copies did not contain the name of the objector. The objector having called the attention of the clerk of the peace to the omission of his name, they referred to the revise of last year's register, and found that the name was not initialed by the revising barrister as intended to be erased, but that the barrister having evidently run his pen through the name by mistake, had passed his thumb over the wet ink, and so occasimed the appearance of an erasure, which had misled the clerk of the peace in making out the list. At the time when the objector called attention to the circumstance, the register, though bound and ready for signature and delivery, had not been signed by the clerk of the peace and delivered to the sheriff, its length, and certain difficulties which had arisen in printing, having prevented this being done by the 30th Nov., the time fixed by the statute. The clerk of the peace therefore determined that the name of the objector should be interlined in print, and the sheet containing such interlineation substituted for the sheet in which the objector's name had been omitted, and this was done. The revising barrister held that such sale of copies of the register by the clerk of the peace was a publication of the register, and an adoption by the said clerk of the peace of the signature printed at the end thereof; that he had no power afterwards to insert the objector's name, or make any alteration in the register, and consequently that the name of the objector was not legally on the register, and the name of the person objected to must be retained: Held, that the decision of the revising barrister was wrong, and must be reversed; that the list did not become a register until it had been signed by the clerk of the peace and delivered out to the sheriff, and down to that time it was in the power of the clerk of the peace, and his bounden duty, to make that which was to be the list correct: Held, also, that the provision of the Act, requiring the clerk of the peace to deliver the register on or before the last day of November in the current year to the sheriff, was directory only, and the failure to do so, where arising from unavoidable obstacle‹, as in the present case, did not avoid the register. The following case was stated by the revising barrister: At a court held by me (one of the barristers appointed to revise the list of voters for the southern division of the county of Lancaster) 1860, for the revision of the said list, William Brumfitt objected to the name of William Birchall being retained in the Ashtonin-Mackerfield list of voters for the southern division of the county of Lancaster. The notice of objection was as follows:"Notice of Objection. "To Mr. William Birchall, Edge-green-lane, Ashton-in-Mackerfield. "Take notice, that I object to your name being retained in the Ashton-in-Mackerfield list of voters for the southern division of the county of Lancaster. "Dated this 18th day of Aug. in the year 1860. "(Signed) WILLIAM BRUMFITT, of No. 108, Netherland-road north, in the township of Everton (late of No. 26, Devonshire-place), in the township of Everton. "On the register of voters of the parish of Liverpool." [C. B. On turning to the bound copy of the current register of voters, which was produced from the custody of the sheriff, appeared that the sheet numbered 313 had been pasted into the book after it had been bound, and upon this sheet the name of Wm. Brumfitt was inserted as follows: 5638 A. Brumfitt, Wm. Peers-court-st Mr. Roberts & others tenants. 24, Devoushire- Freehold place, Everton. llouse. The number prefixed to the name preceding Brumfitt's was 5638*; to the name succeeding, 5639. A copy of the sheet numbered 313, showing the interlineation and signed by me, is hereto annexed. It was proved that on the 12th Dec. 1859 Mr. Burne, of Manchester, applied by letter, inclosing P. O. order for 17., to the deputy clerk of the peace for the county of Lancaster, for two copies of the register of voters for South Lancashire, and that they replied promising that the copies should be sent as soon as they were ready. That about the 29th Dec. 1859, the deputy clerks of the peace sent to Mr. Burne two copies of the register, which had their names printed on the last sheets thereof respectively thus, "Birchall and Wilson, deputy clerks of the peace." That neither of the copies contained the name of William Brumfitt, the objector, on the 313th sheet. That similar copies of the register were also sold to other people, and amongst the rest to the said William Brumfitt himself. That on the 13th Jan. 1860 the deputy clerks of the peace wrote as follows to Mr. Burne : "Preston, 13th Jan. 1860. "Sir,-You will perceive by the inclosed sheets of register, that there has been an error in the printing, the name of William Brumfitt having been omitted. "We shall therefore be obliged by your returning us the sheets paged 313 in the copies we sent you on the 29th ult., and substituting the inclosed for them." That the attention of the deputy clerks of the peace was first called by the objector himself to the omission of his name from the register of voters so sold, and after the sale thereof. That in consequence of his application to have his name inserted, they looked at the revise of last year's register, and found that the name was not initialled by the revising barrister as intended to be erased, but that the banister having evidently run his pen through the name by mistake, had immediately passed his thumb over the wet ink, and so occasioned an appearance of erasure which had misled them. That the register, although bound and ready for signature and delivery, had not, at the time of this application by the objector, been signed by the deputy clerks of the peace, and delivered to the sheriff as required by the statute, the length of the register, and difficulties which had arisen in the printing, having prevented their doing so before the 30th Nov., the time fixed by statute. That they therefore determined that the name of the said William Brumfitt should be interlined in print as it now appears on the 313th sheet; and the sheet with such interlineation was substituted for the original sheet in the whole of the registers, and in the bound copy of the register, which was by them signed and delivered to the under-sheriff after such substitution. It was contended that the sale by the deputy clerks of the peace of c.pies of the register bearing their signature, although printed in previous to their sign manual, was an adoption by them of such signature, and that they had no power afterwards to make any alteration in the register, which was from that moment perfectly formed; and that inasmuch as such copies, when sold, did not contain the name of William Brum fitt, his name was not now legally upon the register of voters of the southern division of the county of Lan caster. |