TENDER OF AMENDS BY.

202.-In case the Corporation tenders amends to the Tender of Plaintiff or his Attorney, (e) if such tender be pleaded and

law, &c., has been quashed or repealed for one calendar month, and this, as already mentioned, precludes the bringing of the action while the by-law, &c., subsists; but it does not follow that the Satutes of Limitations only begin to run from the time of quashing or repealing. It is clear that actions may be brought (though only against the Corporation) for things done under the illegal by-law, &c., that is things done in pursuance of, or in execution of it, or under its authority while in force. The right of action may be held to vest the moment the thing is done, and, if so, every statute limiting a right of action of the particular kind would begin to run forthwith. Were it not so, very stale matters might be made grounds of action against Municipal Councils, and which in the case of individuals would be outlawed.

(e) The law as to "Tender" is not much understood by the public, and requires some remarks in this place.

1. Definition.-A tender in this section means the offering of money in satisfaction of a cause of action arising out of something done under a by-law, order or resolution, quashed or repealed.

2. How made.-A tender must be unqualified and unconditional. (Mitchell v. King, 6 C. & P. 237; Jennings v. Turner, 8 C. & P. 61; Strong v. Harvey, 3 Bing. 304.) Whether conditional or not is a question for the jury. (Marsden v. Goode, 2 C. & K. 133; Milburn v. Milburn, 4 U. C. Q. B. 179.) Strictly speaking the tender ought to be of specie; but a tender in bank notes, if not objected to on the ground of being notes, will be good. (Blow v. Russell, 1 C. & P. 365.) The precise sum intended or more must be tendered, without requiring change. (Brady v. Jones, 2 D. & R. 305.) The money ought to be actually produced (Kraus v. Arnold, 7 Moo. 59; Leatherdale v. Sweepstone, 3 C. & P. 342; Thompson v. Hamilton, 5 U.C.O.S. 111); but this may be dispensed with by the party to whom the tender is made, as where defendant said he had the money in his pocket, and plaintiff said You need not give yourself the trouble of offering it, for I will not take it." (Douglass v. Patrick, 3 T. R. 684; Jackson v. Jacobs, 3 Bing. N. C. 869.) A receipt for the money cannot be insisted upon. (Cole v. Blake, Peake, 179.)

3. To whom made.-Under this section the amends may be tendered "to the plaintiff or his attorney." A tender strictly speaking ought to be made before the writ is sued out, and if made to the plaintiff himself would be more satisfactory than if made to his attorney. But if the attorney is authorized to settle the business, and writes to defendants previous to suing out the writ, warning them of the action, unless they pay him the money or the like, the tender may clearly be made to the attorney. (Sellon, Pr. 2, 315.) The attorney must under any circumstances be one employed in the particular action, and not merely one generally employed by plaintiff. (Ib.) No attorney has authority to compromise an action after writ, by accepting less than the account demanded by the writ or declaration. (See Swinfen v. Swinfen, 26 L. J. C. P. 97; 3 Jur. N. S. 85.)

amends.

Offences against Bylaws.

Jurisdiction to try.

Summary

(if traversed) proved, (ƒ) and if no more than the amount tendered is recovered, the plaintiff shall have no costs, but costs shall be taxed to the defendant, and set off against the verdict, and the balance due to either party shall be recovered as in ordinary cases. (g)

OFFICERS AGAINST BY-LAWS.

203.-In case any Officer of a Municipal Corporation neglects or refuses to carry into effect a By-law for paying a debt, and so neglects or refuses under colour of a By-law illegally attempting to repeal such first mentioned By-law, or to alter the same so as to diminish the amount to be levied under it, such Officer shall be guilty of a misdemeanor, and be punished by fine or imprisonment, or both, at the discretion of the Court whose duty it may be to pass sentence upon him. (h)

204.-In case an offence is committed against a by-law of a Council, for the prosecution of which offence no other provision is made, (i) any Justice of the Peace, having jurisdiction proceedings. in the locality where the offender resides, or where the offence was committed, (j) whether the Justice is a member of the Council or not, (k) may try and determine any prosecution for the offence. ()

vidence.

205.-The Justice or other authority before whom a prosecution is had for an offence against a Municipal By-law, may

(ƒ) It is not enacted that the tender may be given in evidence under the general issue, and it is apprehended that it ought to be specially pleaded.

(9) The object of the tender is to prevent useless litigation. The tender admits a cause of action, but limits the amount of damages arising therefrom. The party tendering in effect says, "I admit you have a right to bring this action, but I do not admit that you are entitled to any damages more than the amount tendered." If plaintiff declines the tender, and recovers no more than the amount tendered, he loses his costs, and, worse still, is compelled to pay the costs of defendant, which may be set off tagainst his verdict.

(h) Misdemeanor.-See note r to sec. 55.

(i) If for the prosecution of the offence provision is made, and that provision is not contrary to law, it must of course be followed.

(j) The offender may be prosecuted either where he resides when apprehended or where the offence was committed.

(k) The Head of every Council, which includes Reeves of Townships and Incorporated Villages, the Aldermen of a City, the Reeve of every Town, and the Deputy Reeve of every Township, are ex officio Justices of the Peace. (Sec. 340.)

(1) The power is not only to "try" but to "determine," that is, to adjudicate finally, &c.

costs,

convict the offender on the oath or affirmation of any credible witness, and shall award the penalty or punishment imposed by the By-law with the costs of prosecution, and may by war- Penalty and rant under the hand and seal of the Justice or other authority, or in case two or more Justices act together therein, then under the hand and seal of one of them, cause any pecuniary penalty and costs, or costs only, if not forthwith paid, to be How levied. levied by distress and sale of the goods and chattels of the offender. (m)

of distress.

206.—In case of there being no distress found, out of Commitment which the penalty can be levied, the Justice, may commit the in default offender to the Common Gaol, House of Correction or nearest Lock-up-House, for the term specified in the By-law. (n)

207.-When the pecuniary penalty has been levied, one Fines how moiety thereof shall go to the informer or prosecutor, and the applied. other moiety to the Corporation, unless the prosecution is brought in the name of the Corporation; and in that case the whole of the pecuniary penalty shall be paid to the Corporation. (0)

of Mayors

over penal

208.-The Police Magistrate, or when there is none, the Jurisdiction Mayor of a Town or City, shall have jurisdiction in addition and Police to his other powers, to try and determine all prosecutions for Magistrates offences against the By-laws of the Town or City, and for pe- offences. nalties for refusing to accept office therein, or to make the neccssary declarations of qualification and office. (p)

(m) The powers of the Justice or other authority are under this section the following:

1. To convict the offender on the oath or affirmation of any credible witness.

2. To award the penalty or punishment imposed by the by-law, with the costs of the prosecution.

3. By warrant, to cause any pecuniary penalty and costs, or costs only (as the case may be), to be levied by distress.

(a) The form of commitment and other forms requisite under these penal clauses (203–208) ought to be as nearly as may be the same as given in the Summary Convictions Act, 16 Vic. cap. 178.

(0) It is submitted that the informer, notwithstanding his expectation of and interest in the penalty, would be "a credible witness" within the meaning of sec. 205. Interest is no longer a ground for the exclusion of evidence. (16 Vic. cap. 19.)

(p) A Police Magistrate has generally, as regards the City or Town of which he is an officer, the same jurisdiction as Justices of the Peace have in their several Counties, and his proceedings should be conducted in the same manner as if he were a Commissioned Justice of the Peace. (See 16 Vic. cap. 178.)

Debentures,

how to be executed.

DEBENTURES, &c.

HOW TO BE MADE.

209.-All Debentures and other specialities duly authoBonds, &c., rized to be executed on behalf of a Municipal Corporation shall unless otherwise specially authorized or provided, be sealed with the Seal of the Corporation and be signed by the Head thereof, or by some other person authorized by By-law to sign the same, otherwise the same shall not be valid. (2)

Debentures transferable

by delivery

bearer.

TRANSFERABLE BY DELIVERY, &c.

210.-Any debenture heretofore issued, or issued after this Act takes effect, under the formalities required by law, by if payable to any Municipal Corporation, payable to bearer or to any person named therein or bearer, (r) may be transferred by delivery, and such transfer shall vest the property of such debenture in the holder, and enable him to maintain an action thereupon in his own name. (8)

Or, if endors

when pay

211.-Any debenture issued as aforesaid, and made payed in blank, able to any person or order, shall, (after the endorsation thereable to order. of in blank, by such person,) be transferable by delivery from the time of the endorsation, (t) and the transfer shall vest the

(q) It has been held, that a debenture issued by a Municipal Council, under its corporate seal and signed by the Head of the Corporation, for the payment of a debt due or loan contracted under a by-law which does not provide by special rate for payment of the debt or loan, does not estop the Municipal Corporation from setting up as a defence to an action on the debenture the invalidity of the by-law. (Mellish v. the Town Council of the Town of Brantford, 2 U. C. C. P. 35.) It is the duty of the Clerk of every Municipal Corporation, within two weeks after the final passing of any by-law passed for the purpose of raising money by the issue of debentures, and before the sale or contract of sale of the debentures, to transmit to the County Registrar a copy of the by-law, duly certified, and other like information for the purpose of registration. (22 Vic. cap. 91, sec. 2.)

(r) A debenture resembles the promissory note of an individual, and, like it, may be made payable either to bearer or order. (See next section.)

(3) A debenture is a chose in action; and it is an ordinary rule of law that a chose in action cannot be transferred so as to give the transferree a right to sue at law upon it in his own name. (Smith's Mercantile Law, 5 Ed. 229.) The chief exceptions are bills of exchange and promissory notes, which for the benefit of trade have been made negotiable. Another exception is that of a debenture issued under this act." It is apprehended that a debenture transferred abroad is only transferable according to the laws of the foreign country. (See Trimbey v. Vignier, 1 Bing. N. C. 151.)

(t) Indorsements are either full or blank. A full indorsement is

property thereof in the holder, and enable him to maintain an action thereupon in his own name. (u)

sufficient to

the holder.

212. In a suit or action upon any such debenture, it In pleading. shall not be necessary for the plaintiff to set forth in the de- describe claration or other pleading, or to prove, the mode by which Plaintiff as he became the holder of the Debenture, or to set forth or to prove the notices, by-laws or other proceedings under and by virtue of which the Debenture was issued, but it shall be sufficient in such pleading to describe the Plaintiff as the holder of the Debenture, (alleging the indorsation in blank, if any,) and shortly to state its legal effect and purport, and to make proof accordingly. (v)

recoverable

213.-Any such debenture, issued as aforesaid, (w) shall Full amount be valid and recoverable to the full amount notwithstanding though neits negoation by such Corporation at a rate less than par, (x) gotiated at or at a rate of interest greater than six per centum per an- ceeding 6 per num. (y)

RESTRICTIONS UPON COUNCILS.

interest ex

cent, or below par.

cils as to

214.-No Council shall act as bankers, or issue any Bond, Restrictions Bill, Note Debenture or other undertaking, of any kind or in upon Cou any form, or in the nature of a Bank Bill or Note, or intend- Banking, ed to form a circulating medium, or to supply the place of issuing bills, specie, or to pass as money; (*) nor, unless specially autho

one which mentions the name of the party in whose favor it is made. An indersement in blank, one which does not mention such name. (Smith's Mer. Law, 5 Edit. 230.) The latter is the only form of indorsement contemplated by this section. The indorsement of a debenture will not, it is believed, like the indorsement of a bill or note, guarantee its payment. (See Allen v. Walker, 2 M. & W. 317.) There is no reason why a debenture should, like a bill or note, be within the law merchant. (Ib.)

(u) See note s to sec. 210.

(v) The provisions of this section are designed to simplify proceedings at law against the municipality by the holder of a debenture, for the amount which it represents. They extend both to pleading and to evidence.

(w) Either as mentioned in sec. 210 or sec. 211.

(x) And in this respect resembles bills or notes.

(y) By statute 22 Vic. cap. 85, it is made lawful "for any person or persons, &c., to stipulate or allow and exact, on any contract or agreement whatsoever, any rate of interest or discount which may be agreed upon" (Sec. 2); but it is provided that nothing therein contained shall be construed to apply to any corporation or company or association of persons, not being a bank, heretofore authorized by law to lend or borrow money." (Sec. 6.)

(2) The object of this and the following section is to confine Muni

bonds, &c.