PART XII.

LEGAL PROCEEDINGS.

Prosecution of Offences and Recovery of Fines.

219.-(1.) In summary proceedings for offences and fines under this Act the information shall be laid within six months after the commission of the offence.

(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 summarily may be recovered by action in the High Court.

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.

In R. v. Justices of Ripon, 7 A. & E. 417, it was held that sec. 132 of the Municipal Corporations Act, 1835, which was in similar terms to this section, precluded an order of the quarter sessions of a borough with reference to an appeal against a borough rate being removed by certiorari.

As to the removal into the Queen's Bench Division of the High Court, by certiorari of an order of the council for payment of money out of the borough fund, see sec. 141, p. 124, and cases referred to in the notes on that section.

Application of Penalties in Quarter Sessions Boroughs.

221.-(1.) Where by any Act passed or to be passed, any 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 whomsoever, 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 under which it is recovered, be recovered for and adjudged to be paid to the treasurer of the borough.

(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

(b.) 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.

In Mayor of Reigate, &c. v. Hart, L. R., 3 Q. B. 244; 37 L. J., M. C. 70; 16 W. R. 896, the borough had no separate commission of the peace and no court

of quarter sessions. The mayor and ex-mayor acted as justices in the borough, and the justices of the county at large had concurrent jurisdiction. It was held that the mayor and ex-mayor acted in and for the borough as county justices with their powers limited to a special locality, and that the penalties imposed by justices acting in and for the borough were to be paid to the treasurer of the county and not the treasurer of the borough. Blackburn, J. : The county justices are the justices who do the work, and the county bears the cost of the prosecution, and when there is an appeal from the conviction, it would be to the court of quarter sessions for the county, and the expenses would be defrayed from the county rate. The intention of the legislature would be that the penalties should be paid into the fund which bore the expenses of the prosecution; otherwise the borough fund would receive the benefit, and the county fund would have to bear the burden.

In Winn v. Mossman, L. R., 4 Ex. 292; 38 L. J., Ex. 200; 20 L. T., N.S. 672; 17 W. R. 924; it was held that where justices of a borough, which has a separate commission of the peace but not a separate court of quarter sessions, in the exercise of their summary jurisdiction impose penalties for offences against the general law, they act for the county, and the penalties must be paid over by their clerk to the treasurer of the county or place to the quarter sessions of which the appeal from their decision lies. The fact that the borough has a separate commission of the peace makes no difference.

In Attorney-General v. Moore, L. R., 3 Ex. D. 276; 47 L. J., M. C. 33, 103; 37 L. T., N.S. 610; 38 L. T., N.S. 251; 26 W. R. 238, 366, it was held that, notwithstanding the provision in sec. 16 of the 3 & 4 Vict., c. 97 (an Act for regulating railways), that certain offenders might be taken before a justice of the peace and convicted summarily, and should thereupon forfeit to her Majesty a sum not exceeding £5, a fine imposed on a conviction under that Act by justices in a borough having a separate quarter sessions was payable to the borough treasurer. Bramwell, L. J.: The Municipal Corporations Act contemplated that by future legislation penalties would be imposed payable to the Crown, and that this subsequent legislation would not discriminate between boroughs having q arter sessions upon the one hand and boroughs not having quarter sessions and counties upon the other. It therefore provided that whereever by a future statute a penalty was rendered recoverable before justices of the peace, it should, as a general rule, be paid over to the borough fund, if the conviction takes place in a borough having a separate court of quarter sessions The Public Stores Act, 1875 (38 & 39 Vict., c. 25), by sec. 15, provides that "pecuniary penalty or other money recovered under this Act in relation to any stores, shall, in such manner as the Treasury from time to time direct, be paid into the receipt of the Exchequer, and carried to the Consolidated Fund; and this section shall supersede any enactment to the contrary contained in any Act relating to municipal corporations." Penalties under the Army Discipline and

Regulation Act, 1859 (42 & 43 Vict., c. 33, s. 159), are "notwithstanding anything contained in any other Act," to be paid into the Exchequer.

In Seamen's Hospital Society v. Mayor, &c. of Liverpool, 4 Exch. 180; 18 L. J., Ex. 371; it was held that the Merchant Seamen's Act (7 & 8 Vict., c. 112), was an Act relating to "trade or navigation," and that the penalties recovered under that Act were payable under sec. 62, to the Seamen's Hospital Society, and not to be paid to the treasurer of the borough. Section 62 enacted that "all penalties and forfeitures mentioned therein for which no specific application is therein-before provided, shall, when recovered, be paid and applied in manner following, that is to say; so much thereof as the court or convicting justice or justices shall determine, but not exceeding one moiety, shall be paid to the informer or person on whose discovery or information the same shall be recovered, and the residue shall be paid to the Seamen's Hospital Society."

With regard to costs and penalties, see also sec. 6 of the Justices' Clerks' Act, 1877 (40 & 41 Vict., c. 43), which provides that all penalties, costs, and sums which, in pursuance of a conviction or order by a justice or justices of the peace, are paid to a clerk of a petty sessional division, or a clerk of special sessions, or a clerk of petty sessions, or a clerk of any justice or justices of the peace, and are not actually paid by him to the party or parties by law entitled thereto, other than the treasurer herein-after mentioned, shall be paid to the treasurer of the county, riding, division, liberty, city, borough, or place for which such justice or justices acted, subject, nevertheless, to be paid by such treasurer to any party showing himself to be by law entitled thereto. Every such clerk shall account for and pay over all penalties, costs, and sums payable to any such treasurer under this or any other Act, at such times and in such manner as may be, from time to time, directed by the justices or council who appointed that treasurer, and if he wilfully omits to account for or pay over any such penalty, costs, or sum, he shall forfeit for every such omission £20, to be recovered by action of debt by any person who may sue for the same.

Duties of Clerk of Peace as to Fines and Forfeitures.

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

Service of Summons or Warrant.

223. Any summons for appearance, warrant to enforce appearance, warrant for apprehension, or search warrant, may, 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 or executed by the constable or special constable to whom it is directed.

The warrants herein referred to do not include a warrant of commitment. See R. v. Compton, L. R., 5 Q. B. D. 341 ; 49 L. J., M. C. 41 ; 28 W. R. 539. As to the measurement of the distance of seven miles, see sec. 231.

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.

(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.

For definition of "corporate office," see sec. 7, p. 3; and for penalty on unqualified person acting in office, see sec. 41, p. 45.

See Simpson v. Reedy, 12 M. & W. 736; 13 L. J., Ex. 193, in which a question was raised whether it was essential that in the declaration in an action of debt to recover the penalty, it should be distinctly stated that the plaintiff was a burgess of the borough.

With regard to qualification in respect of estate, see sec. 11, p. 15.

Quo Warranto and Mandamus.

225. (1.) An application for an information in the nature of a quo warranto against any person claiming to hold a corporate office shall not be made after the expira

tion of twelve months from the time when he became disqualified after election.

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

(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 Westminster.

(8.) The court may, if it thinks fit, direct that any writ of mandamus issued shall be peremptory in the first instance.

For definition of the term 66

corporate office," see sec. 7.

It will be observed from sec. 87, p. 73, that a municipal election cannot be questioned on any of the grounds specified in that section except by an election petition. The provision in this section with regard to quo warranto must, therefore, apply to the case of a person who has been duly elected to a corporate office, and who, after election, becomes disqualified.

It is in the discretion of the court whether they will grant a rule for an information in the nature of a quo warranto (R. v. Trevennen, 2 B. & A. 479; R. v. Parry, 6 A. & E. 810; 2 N. & P. 414), and when an application for an information is contemplated, there should be no undue delay in applying to the court.

On a motion for a quo warranto information against a town councillor, it is not a valid objection to the relator that he is not a burgess of the borough. His interest is sufficient if he is subject to the government of the council as an inhabitant. See R. v. Hode, 2 B. & Al. 344 (note); R. v. Parry, 6 A. & E. 810; R. v. Quavle, 11 A. & E. 508; 5 Jur., 386.

In R. v. Thirlwind, 33 L. J., Q. B. 171; 10 Jur., N.S. 206; 9 L. T. 731, the affidavit of the person who stated that the application for the rule was made at the instance of him as relator, commenced, "I, A. B., of Bolton, tailor,' and contained no other statement to show that he was an inhabitant of the borough, and did not show that he was a burgess or otherwise had any distinct interest in the matter of the application. The rule was discharged. Crompton J.: The affidavit is insuficient. For all that appears in it the proposed relator