tion of the fund for the public benefit of the inhabitants of the borough, and that a rule must go for a certiorari to bring up the order for the purpose of being quashed. In R. v. Town Council of Stamford, 13 L. J., Q. B. 177 ; 8. Jur., 558, and R. v. Thompson, 5 Q. B. 477, it was held that the town council were not empowered to order the treasurer to pay out of the borough fund expenses incurred by constables of the borough in conducting proceedings for an assault upon them, and defending them upon an indictment against them for an assault. Lord Denman, C. J.: The watch committee might have made an order for the payment of these expenses, subject to the approbation of the town council, but that does not authorize the town council to make the order. In R. v. Mayor, &c., of Exeter, L. R. 6 Q. B. 135; 44 L. T., N.S. 101; 29 W. R., 441, it was held that where the chief constable of a borough having by the direction of borough magistrates, laid an information against a person for conspiracy, and a verdict for £200 was recovered by such person against the chief constable in an action for malicious prosecution, it was not competent to the town council to order payment of the chief constable's costs out of the borough fund. See however the provisions in sec. 226 (3).

From R. v. Sir Charles Reed, L. R., 5 Q. B. 483; 49 L. J., Q. B. 600; 42 L. T., N.S. 835; 28 W. R. 787, it would appear that a municipal corporation are not empowered to borrow, except in accordance with express statutory provisions; and that the payment of interest on moneys borrowed without statutory authority cannot legally be paid out of the funds of the corporation. See also Attorney-General v. Mayor of Lichfield, 13 Sim. 547; 4 Q. B. 893; 12 L. J., Q. B. 308; 7 Jur., 670; and R. v. Mayor of Warwick, 8 Q. B. 926; 15 L. J., Q. B. 306; 10 Jur., 962, as to loans and payment of interest without legal authority.

In R. v. Mayor, &c., of Gloucester, 5 Q. B. 862; 13 L. J., Q. B. 233; 8 Jur. 573, it was held that fees, which a justices' clerk in a borough was authorized to take, by a table regularly allowed and confirmed, in respect of charges against persons apprehended and brought before the borough justices by constables appointed by the watch committee, and which could not be recovered from such persons, either on account of their not being specifically imposed on them by Acts of Parliament, or from their inability to pay, were expenses to be defrayed out of the borough fund.

With regard to the expense of opposing or promoting Bills in Parliament, see the Municipal Corporations (Borough Funds) Act (35 & 36 Vict., c. 91), in Appendix, p. 311.

With respect to charging the borough fund with the cost of opposing a Bill in Parliament, see also Attorney-General v. Mayor, &c., of Wigan, 1 Kay, 268; 5 De G., M. & G. 52; 23 L. J. (Ch.) 429; 18 Jur. 299; Roberts v. Mayor, &c., of Sheffield, L. R. 6 Q. B. 652; 24 L. T., N.S. 659; 19 W. R. 1159; and Attorney-General v. Mayor, &c., of Brecon, L. R. 10 Ch. 204; 48 L. J. Ch. 153; 40 L. T., N.S. 52; 27 W. R. 332.

In Attorney-General v. Mayor, &c., of Wigan, where a borough had a river flowing through it, which was the main sewer of two-thirds of the town, and a Bill was before Parliament for the purpose of enabling certain persons to abstract a large portion of the water from the river before it reached the town, it was held that under the Municipal Corporations Act, whether the corporation had any surplus fund or not, they would be justified in incurring the expense of an information for an injunction to prevent the nuisance which would arise, and that they were equally justified in applying their funds in opposing the Bill for legalising the threatened injury to the river.

In Roberts v. Mayor, &c., of Sheffield, it appeared that in the municipal borough of S. there was a waterworks company, incorporated by Act of Parliament, which supplied the greater part of the borough with water. By this Act, the company, after a certain time, on the requisition of the town council, were bound to give a constant supply of water, and they were empowered to make regulations to be observed by the consumers, subject to the approval of two justices, any person aggrieved having the right to oppose the regulations before the justices.

The town council having required the company to give a constant supply, the company proposed certain regulations, which were opposed before the justices by the corporation, on the ground that they imposed too onerous conditions on the consumers; and the justices modified the regulations accordingly. The company also promoted a Bill in Parliament to obtain further time for the constant supply, which the corporation opposed, and it was ultimately withdrawn. The town council made two orders for the payment out of the borough fund of the expenses of the opposition, before the justices and in Parliament respectively, which were paid, notwithstanding objection that the orders were ultra vires. There was no surplus from property of the corporation, and borough rates were made. On a rule for a certiorari, to bring up these orders for the purpose of quashing them, it was held, with reference to the expenses of opposing the Bill in Parliament, that the purpose was one which was beyond the scope of municipal government, or anything to be done under the Municipal Corporations Act, and that in a borough without a surplus fund, the borough fund could not be applied to defraying the expense incurred. So also the expense of opposing the regulations was held not to be an expense necessarily incurred in carrying into effect the provisions of the Municipal Corporations Act.

In Attorney-General v. Mayor, &c., of Brecon, it was held by the Master of the Rolls, that 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 the Municipal Corporations Act, or under the general law applicable to trustees to defray, out of the borough fund or rates, the expenses of opposing any attack made by Bill in Parliament, whether against their existence as a corporation, or against their property, or only against their duties, rights, powers or privileges; and that that right is not taken away by the Municipal Corporations (Borough Funds) Act, 1872. But the last-mentioned Act increases the responsibility of corporations who choose to act in opposing Bills in Parliament without obtaining the sanction of the ratepayers, because, if unsuccessful, it will be more difficult for them now than it was formerly, to show that the expenses ought to be allowed, inasmuch as they could have readily obtained the sanction which would have protected them from all consequences of want of success.

With regard to the promotion of a Bill in Parliament by a corporation, see Attorney-General v. Mayor, &c., of Norwich, 16 Sim. 225; 12 Jur., 424, where an injunction was granted to restrain the corporation from promoting, at the expense of the borough fund, a Bill to enable them to improve the navigation of the river which flows through that city to Yarmouth. See also AttorneyGeneral y. Corporation of Norwich, 21 L. J. (Ch.) 139. In that case the corporation of the city were authorized to levy certain tonnage dues to be applied in a specified manner, and after such application, the remainder was to be applied to certain purposes, some of which were the same as those to which the surplus of the borough fund were made applicable; and distinct accounts were directed to be kept of the tonnage dues and borough fund. The treasurer mixed the two funds at his bankers. The corporation proposed to obtain an Act of Parliament for improving the river flowing through the city, and applied money from the funds at the bankers in paying certain expenses. information was filed by the Attorney-General, at the relation of ratepayers, praying an injunction to restrain this application to Parliament, at the expense of the borough fund, and the same was granted.

An

In R. v. Mayor, &c., of Warwick, 15 L. J., Q. B. 306; 10 Jur., 962, the expense of repairing the corporation pew in the parish church was held to be a legal charge on the borough fund, the affidavits showing that it had long been the usage for the mayor and several of the members of the corporation to go together in procession to church on Sunday, and that the pew in question had always been lined and repaired by the corporation.

In Attorney-General v. Batley, 26 L. T., N.S. 392, an injunction was granted restraining the corporation from applying the borough funds to the purchase of a gold chain for the mayor. Wickens, V. C.: The money will have to be raised by a number of small payments contributed by a number of persons of various positions in the social scale, and varying also in their pecuniary means; and it becomes the duty of the court to see that money so contributed is not wantonly spent or wasted.

See also R. v. Mayor, &c., of Warwick, in note to sec. 133; Parr v. Attorney-General, and Attorney-General v. Corporation of Lichfield, in note to sec. 139; R. v. Prest, and R. v. Mayor, &c., of Norwich, in note to sec. 141; and R. v. Mayor, &c., of Liverpool, in note to sec. 143.

With regard to the saving in sub-sec. 4 of this section, see the saving in sec. 131 for lawful debts contracted before the 5 & 6 Will. 4, c. 76.

Orders for Payment of Money.

141.-(1). An order of the council for payment of money out of the borough fund shall be signed by three members of the council, and countersigned by the town clerk.

(2.) Any such order may be removed into the Queen's Bench Division of the High Court by writ of certiorari, and may be wholly or partly disallowed or confirmed on motion and hearing, with or without costs, according to the judgment and discretion of the court.

In R. v. Town Council of Lichfield, L. J., 12 Q. B. 308; 7 Jur., 670, on an application for a certiorari to bring up the orders for the payment of certain sums, it was stated that the resolutions of the town council were not orders in writing of the council signed by three or more members, and countersigned by the town clerk of the borough, and that the resolutions entered in the minute book were not orders upon which the treasurer would pay, and that the resolutions could not be removed into the court without tearing the same out of the minute book and destroying or injuring other entries, or without removing the minute book itself, which could not be done without great inconvenience to the corporation. The rule for a certiorari was made absolute.

With reference to the corresponding section in the 7 Wm. 4, and 1 Vict., c. 78. Lord Campbell, C. J., in R. v. Prest, 16 Q. B. 33; 20 L. J., Q. B. 17; 15 Jur., 554, (see note on sec. 20,) observed: "This enactment leaves it to our discretion to decide whether the order complained of is or is not a misapplication. I think that it would not be so, on the mere ground that the payment could not be enforced, and in such a case we must not look at mere technicalities, but must see whether a grievance really exists which the court ought to redress." Where, therefore, money had been bona fide paid upon an order of the council to a town clerk for professional business done by him as a solicitor, upon instructions given by the corporation, the mere fact of his having had no retainer under the seal of the corporation, was held to be no sufficient ground why the court should quash the order as for a misapplication of the borough fund.

The same principle was acted on in R. v. Mayor, &c., of Norwich, 30 W. R., 752. In that case it appeared that a resolution was passed by a corporation acting as an urban sanitary authority, ordering the payment of certain sums, each exceeding £50, to contractors, for costs incurred in paving a street, no contracts having been entered into with them under the seal of the corporation, as required by sec. 174 of the Public Health Act. On an application for a certiorari to bring up and quash the resolution, on the ground that it was a "misapplication of the borough fund; it was held that as the work was

useful, and done at a reasonable cost, and there was no suggestion of corruption or partiality, there had been no "misapplication," and the court in its discretion refused to grant the certiorari.

For decisions on questions as to the payments which can legally be made out of the borough fund, see notes on secs. 133, 140, and 143.

There is no general rule of practice which requires application for a certiorari to be made within six months of the making of the order sought to be quashed. The 13 Geo. 2, c. 18, s. 5 only applies to convictions and other proceedings before justices. R. v. Mayor, &c., of Sheffield, L. R., 6 Q. B. 652.

As to the costs of certiorari, when the court ordered the costs to be paid by the prosecutors, the rule not further stating by whom the costs were to be paid, see R. v. Dunn & Bennett, 5 Q. B. 959; 13 L. J., Q. B. 237; 8 Jur., 773.

Payments to and by Treasurer.

142.-(1.) All payments to and out of the borough fund shall be made to and by the treasurer.

(2.) All payments to the treasurer shall go to the borough fund.

Application of surplus of Borough Fund.

143.-(1.) If the borough fund is more than sufficient for the purposes to which it is applicable under this Act, or otherwise by law, the surplus thereof shall be applied under the direction of the council for the public benefit of the inhabitants and improvement of the borough.

(2.) If the surplus arises from the rents and profits of the property of the municipal corporation, and not from a borough rate, and the borough is a sanitary district under the Public Health Act, 1875, then the municipal corporation, as the sanitary authority for the borough, may apply the surplus in payment of any expenses incurred by them as such sanitary authority, before or after the commencement of this Act, in improving the borough, or any part thereof, by drainage, enlargement of streets, or otherwise, under the Public Health Act, 1875, or any Act thereby repealed.

In R. v. Mayor, &c., of Liverpool, 28 L. T., 500; 21 W. R., 674, it appeared that during the progress of the Liverpool Tramways Act, 1871, through Parliament, the Liverpool Town Council authorized the town clerk to make terms for the purchase of the 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 fund 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 :-It was held, upon mandamus

to the town council to pay these expenses, that there was nothing in the Municipal Corporations Act, to prevent the payment of this claim.

See also Attorney-General v. Mayor, &c., of Wigan and Roberts v. Mayor of Sheffield, referred to in notes to sec. 140.

BOROUGH RATE.

Power for Council to make Borough Rate and Assess Contribution thereto.

144. (1.) If the borough fund is insufficient for the purposes to which it is applicable under this Act or otherwise by law, the council shall from time to time estimate, as correctly as may be, what amount, in addition to the borough fund, will be sufficient for those purposes.1

(2.) In order to raise that amount, the council shall, subject to the provisions of this Act, from time to time order a rate, called a borough rate, to be made in the borough.2

(3) A borough rate may be made retrospectively, in order to raise money for the payment of charges and expenses incurred, or which have come in course of payment, at any time within six months before the making of the rate.3

(4.) The council shall assess the contributions to the borough rate on the several parishes and parts of parishes in the borough in proportion to the total annual value of the hereditaments in each parish or part which are rateable to the poor, or in respect of which a contribution is made to the poor rate.

(5.) That value shall be estimated according to the valuation list (if any) in force for the time being, and if there is none, according to the last poor rate.5

(6.) But if for any reason the council think that the valuation list or poor rate is not a fair criterion of value they may cause an independent valuation to be made."

(7.) For the purpose of assessing a borough rate, or for the purpose of an independent valuation, the council from time to time may cause any of the books of assessment of any rates or taxes, parliamentary or parochial, on any property, and the valuation by which the assessment is made, in the hands of the overseers, to be brought before them, and may take copies thereof or extracts therefrom, or may direct any-person to take copies of or extracts from such books being in his hands, without having the same