5th Sched. is expressly given to it by its incorporating Act. (Bower v. Sligo (Commissioners), 4 Ir. R. C. L. 489.) PART II. Municipal corporations having been reduced by the Municipal Corporations Act, 1835, from the position of owners of property to that of trustees, possess the ordinary right of trustees to defend their trust property and their rights as trustees from attack at the expense of the trust estate. Consequently, a municipal corporation has the right, either under these rules, or under the general law applicable to trustees, to defray out of the borough funds or rates the expenses of any attack made by bill in Parliament, whether against their existence as a corporation, or against their property, or only against their rights, powers, or privileges, and that right is not taken away by the Municipal Corporations (Borough Funds) Act, 1872. (Attorney-General v. Brecon, L. R. 10 Ch. D. 204; 40 L. T. (N.s.) 52.) In this case the following cases were considered : Bright v. North (2 Ph. 216); Attorney-General v. Corporation of Wigan, Kay, 268, 5 D. M. & G. 52; and Reg. v. Mayor of Sheffield, L. R. 6 Q. B. 652; as to the cases last cited, see observations thereon in the Preface. Repairs of a pew in a parish church which the corporation have occupied as such may lawfully be charged on the borough fund. (Reg. v. Mayor, &c., of Warwick, 8 Q. B. 926; 15 L. J. Q. B. 306.) During the progress of a Tramways Act through Parliament, a town council authorize 1 their town clerk to make terms for the purchase of tramways with the company promoting the bill. Amongst other terms of arrangement he agreed that the corporation should pay the expenses of the bill if they resolved to take the tramways according to their powers in the bill. The council consented to these terms, and after the Act was passed, resolved to take the tramways; they afterwards resolved to pay the expenses agreed to. The surplus of the borough funds in the year of these resolutions was less than the amount of the expenses, but in the subsequent years the surplus was greater than that amount. Held, upon mandamus to the town council to pay these expenses, that there was nothing in the Municipal Corporations Act, 1835, to prevent the payment of this claim. Per BLACKBURN, J.: "The question whether this is the right remedy to adopt under the circumstances is for the prosecutors to decide at their peril; all that we are required to do now is to give judgment on the merits of the case. It seems that a resolution by the town council was passed approving of the terms of arrangement entered into by the town clerk with the tramways company, by which, amongst other things, the corporation was to pay the expenses of the company's Act of Parliament, if the corporation should resolve to take the tramways. The corporation, knowing the terms of the agreement, resolved to take the tramways, obtained an Act for the purpose, and afterwards resolved to pay the expenses of the company's Act as fixed by arbitration. The question now raised is, whether the town council has power to pay this sum. The general rule is, that bodies corporate must fulfil their contracts unless forbidden distinctly by some statute. Here this municipal corporation is subject to 4 & 5 Will. 4, c. 76, and the amount claimed cannot be paid out of the borough fund as an expense necessarily incurred in carrying into effect the provisions of that Act; but the 92nd section proceeds to PART II. provide for a surplus which is to be applied under the direction of the 5th Sched. council for the public benefit of the inhabitants and improvement of the borough. It seems to me that the Sheffield case goes no further than this if there is no surplus, an expense which is not within the terms carrying into effect the provisions of the Act,' cannot be paid by order of the council out of the borough funds. Here, however, there is annually a large surplus, and although in one particular year it might be insufficient for this claim, there can be no doubt that the great borough of Liverpool can pay as much without a special borough rate. It is said that it ought to be expressly resolved to pay this particular sum out of the surplus, but although that may be the usual practice, it is nowhere rendered necessary. I construe the Act to mean that when a town council has contracted a debt for the benefit or improvement of the inhabitants of the borough, there is nothing to prevent its being paid whenever there is a surplus after satisfaction of the provisions of the Act. No subsequent town council can repudiate their predecessors' debts. Then, is this a contract for the public benefit of the inhabitants and improvement of the borough? The council have admitted it to be so by agreeing to take the tramways; and the legislature has so held by passing these Acts. I see no reason why the corporation should not pay the money claimed. The rule for a mandamus therefore must be absolute." (Reg. v. The Mayor, &c., of Liverpool, 28 L. T. (N.s.) 500.) It has been held that payments out of the borough fund could not be made for the expenses incurred in defending a criminal information against an alderman for alleged misconduct (Reg. v. Mayor of Bridgewater, 10 A. & E. 281, and Reg. v. Paramore, ibid. 286); for the costs incurred in a petition to the Court of Chancery with respect to the appointment of charity trustees (Reg. v. Mayor, &c., of Warwick, 8 Q. B. 926; S. C. 15, L. J. Q. B. 306); for a gold chain for the mayor (Attorney-General v. Mayor of Batley, 26 L. T. (N.S.) 392; for the entertainment of distinguished persons when there was no surplus of the borough fund. (Re Corporation of Sunderland, T. S. 1878.) In the case of Mortimer v. The Vestry of Bermondsey (L. G. C. for May 6, 1882), FRY, J.,made an order for a perpetual injunction restraining the vestry from applying any part of the rates or parish funds in or for the expenses of a dinner and ball given in celebration of the opening of the new vestry hall. Where the Attorney-General at the relation of a ratepayer had sued not only the vestry but six members thereof, for the purpose of obtaining costs from them: It was held by the Court of Appeal that as these defendants had had no control of the corporate funds independently of their being vestrymen, and as they had not actually misapplied any funds, they were improperly made parties. (AttorneyGeneral v. Vestry of Bermondsey, L. G. C., February 17th, 1883.) 6th Sched. THE SIXTH SCHEDULE. COUNTIES TO WHICH CERTAIN BOROUGHS ARE TO BE CONSIDERED PROCEDURE FOR SCHEME ON GRANT OF NEW CHARTER. 1. The Committee of Council may, if they think fit, require the draft of a proposed scheme to be submitted to them, either together with the petition for a charter, or at any subsequent period. 2. The draft of a proposed scheme shall be published by advertisement, or placards, or handbills, or otherwise, as the Committee of Council think best calculated for giving notice thereof to all persons interested. 3. Before settling the scheme the Committee of Council shall consider any objections which may be made thereto by any local authority or persons affected thereby. 4. The scheme, when settled, shall, besides being published in the London Gazette, be published by advertisement, or placards, or handbills, or otherwise, as the Committee of Council think best calculated for giving notice thereof to all persons interested. 5. Where a scheme is submitted to Parliament for confirmation, the Committee of Council may introduce a Bill for the confirmation of the scheme, which Bill shall be a Public Bill. 6. Before such Bill is introduced into Parliament the Committee of Council may alter the scheme in such manner as they think proper. 7. If while the Bill confirming a scheme is pending in either 7th Sched. House of Parliament a petition is presented against the scheme, the Bill, so far as it relates to such scheme, may be referred to a select committee, and the petitioner shall be allowed to appear and oppose as in the case of a Private Bill. 8. A scheme shall come into operation at the date of its confirmation or any later date mentioned in the scheme. 9. The confirmation of a scheme shall be conclusive evidence that all the requirements of this Act with respect to proceedings. required to be taken previously to the making of the scheme have been complied with, and that the scheme has been duly made, and is within the powers of this Act. THE EIGHTH SCHEDULE. FORMS. Part 1.-Declarations on accepting Office. FORM A. FORM OF DECLARATION ON ACCEPTANCE OF CORPORATE OFFICE. I, A.B., having been elected mayor [or alderman, councillor, elective auditor, or revising assessor] for the borough of hereby declare that I take the said office upon myself, and will duly and faithfully fulfil the duties thereof according to the best of my judgment and ability [and in the case of the person being qualified by estate say, And I hereby declare that I am seised or possessed of real or personal estate, or both [as the case may be], to the value or amount of one thousand pounds, or five hundred pounds [as the case may require], over and above what will satisfy my just debts.] FORM B. DECLARATION BY RECORDER OR BOROUGH JUSTICE. I, A.B., hereby declare that I will faithfully and impartially execute the office of recorder [or justice of the peace] for the according to the best of my judgment and borough of ability. $ These forms do not apply to any borough, the whole or part of the area whereof is co-extensive with or included in the area of a parliamentary borough. (41 & 42 Vict. c. 26.) Forms to be used in all such boroughs will be found in a schedule to that Act. (See statute in Appendix. See note to Form G.) FORM D. NOTICE OF CLAIM. To the Town Clerk of the Borough of I HEREBY give you notice, that I claim to have my name inserted in the parish burgess lists of the borough of that I occupy [here describe the house, warehouse, counting-house, shop, or other building then occupied by the claimant] in the borough, and that I have been rated in the parish of [here state the parish or several parishes, and the time during which the claimant has been rated in each of them within the borough, necessary for his qualification.] in the year (Signed) John Allen of [place of abode.] This form applies only to boroughs which are solely municipal. (See note on Part II. of this Schedule, Form C.) |