that the same was received from the Clerk (e), and that the applicant is resident or interested as aforesaid (f), the Court, after at least eight days' service (g) on the Corporation of a rule to shew cause in this behalf (h), may quash the by-law, order or resolution in whole or in part (i) for illegality (j), (e) It does not appear to be necessary that the copy produced should be sworn to have been received by the deponent himself from the Clerk. Where the deponent swore that the copy produced was received by one T. from the Clerk of the Council, and by T. was delivered to deponent, the affidavit was held sufficient. (Fisher v. the Municipal Council of Vaughan, 10 U. C. Q B. 492.) The statute does not require that the affidavit should refer to the copy of the By-law, as being annexed, or that it should be in fact annexed, but only that the copy produced is the copy received from the Clerk. (Bessey v. the Municipal Council of Grantham, 11 U. C. Q. B. 156.) (f) Where the affidavit stated deponent to be a ratepayer and a resident householder, it was held unnecessary to give any further description of him. (Baker v. the Municipal Council of Paris, 10 U. C. Q. B. 621.) (g) The meaning is that the corporation shall have eight days at least to answer the rule, so that a corporation served with a rule on the first Saturday of term was held not obliged to answer on the following Saturday. (In re Sams and the City of Toronto, 9 U. C. Q. B. 181.) Where the rule nisi was obtained near the end of term, and made returnable eight days after service, and defendants appeared during the following term and objected that the rule should have been to show cause on a day certain, held that the objection, even if good, was waived by appearance. (Perry v. the Town Council of Whitby, 13 U. C. Q. B. 564.) (h) The service is to be "on the Corporation," and therefore where the motion was to quash a by-law for taking stock in a railway company, on the return of the rule, though the Corporation did not show cause, the Court declined to hear counsel for the railway company. (In re Billings and the Municipal Council of the Township of Gloucester, 10 U. C. Q. B. 273.) It is presumed that the service may be effected by leaving the copy with the Head of the Corporation, or with the Municipal Clerk. (See C. L. P. A. 1856, sec. 33.) (1) It is not said that the Court shall quash, but that it may quash the By-law, &c., in whole or in part. The duty is not imperative. (Hodgson v. the Municipal Council of York and Peel and the Municipal Council of Ontario, 13 U. C. Q. B. 268.) (j) For illegality.-The power of the Courts to deal summarily with by-laws, orders and resolutions of Municipal Councils, by quashing them on motion, depends wholly on this statute (Sutherland v. the Municipal Council of East Nissouri, 10 U. C Q. B. 626); and that power seems to be restricted to some illegality apparent on the face of the by-law, &c. (In re Hill and the Municipal Council of the Township of Walsingham, 9 U. C. Q. B. 810; Grierson v. the Municipality of Ontario, 9 U. C. Q. B. 623); excepting perhaps where the by-law, order or resolution, is shown to have been passed under circumstances which by the express terms of the statute make it illegal. (In re Laf and according to the result of the application, award costs for or against the Corporation. (k) WHEN CONFIRMED BY PROMULGATION. which By 195.-In case a By-law by which a rate is imposed has Time after been specially promulgated in the manner hereinafter specified, law cannot (no application to quash the By-law shall be entertained be quashed, after six calendar months have elapsed since the promulga- promulgated tion. (m) if properly be such pro 196.-Every special promulgation of a By-law, within What shall the meaning of this Act, (n) shall consist in the publication, mulgation through the public press, of a true copy of the By-law, and of the signature attesting its authenticity, (o) with a notice appended thereto of the time limited by Law for applications to the Courts to quash the same or any part thereof. (p) ferty v. the Municipal Council of Wentworth and Halton, 8 U. C. Q B. 232.). Of course a by-law substantially illegal can afford no protection for what has been done under it, and so incidentally its validity may be decided upon at common law by Common Law Courts. (Sutherland v. the Municipal Council of East Nissouri, 10 U. C. Q. B. 626.) (4) The words of the old law were," and if it shall appear to such Court that such By-law is legal, in whole or in the part complained of, to award costs in favor of such corporation, or otherwise against such corporation" (14 & 15 Vic. cap. 109, schd. No. 21); words which were held not to be retrospective (Brown v. the Municipal Council of the County of York, 9 U. C. Q. B. 453), and are in meaning much the same as the words of this section, ("according to the result, award costs for or against the Corporation.") Where a Municipal Corporation, on being served with a rule nisi, repealed the by-law complained of, the Court notwithstanding obliged them to pay the costs of the application. (In re Coyne and the Municipal Council of Dunwich, 9 U. C. Q. B. 309.) (1) See sees. 196, 197 & 198. (m) The inconvenience of quashing a by-law imposing a rate, after it has been acted upon for months, is generally more than equal to the inconvenience of allowing a by-law, though technically defective, to exist. The effect of this section will be important, in curing technical defects in by-laws imposing rates. (n) A by-law. Though the following section is expressly restricted to "a by-law by which a rate is imposed," this section appears to extend as well to other by-laws. Of course the publication will not legalize a by-law illegal and void on the face of it; but it would seem that all formal or technical objections (if there is jurisdic.ion) are cured, and all collateral objections precluded, after the expiration of the time limited for applications to the Court to quash the same. (0) The publication is to be in each public newspaper, published weekly or oftener, within the municipality, &c., and to be continued in at least three consecutive numbers of the paper. (Sec. 197.) (P) See sec. 198, as to form thereof. And if the By-laws imposes any rate. Notice to be given. Form of such notice. 197.-In case of a By-law by which a Rate is imposed (2) the promulgation shall be either by such publication of a copy of the By-law with such notice as aforesaid, or in lieu thereof by such publication of a notice setting forth the amount of the rate and giving the substance only of the other parts of the By-law, with a similar notice of the time so limited for applications to quash as aforesaid, (r) and the publication referred to in the preceding two sections, shall be in each public newspaper published weekly or oftener within the Municipality; (8) or if there be no such newspaper, then in at least two public newspapers published weekly or oftener nearest to the Municipality, and the publication shall for the purpose aforesaid be continued in at least three consecutive numbers of the paper. (t) 198.-The notice to be appended to every copy of a Bylaw for the purpose aforesaid, shall be to the effect following: (u) day of 185; "NOTICE. The above is a true copy of a By-law passed by the Municipal Council of the Township of A, in the County of B, one of the United Counties of B, C and D, (or as the case may be) on the day of 185, and (where the approval of the Governor in Council is by law required to give effect to such By-law) approved by His Excellency the Governor General in Council, on the and all persons are hereby required to take notice, that any one desirous of applying to have such By-law or any part thereof quashed, must make his application for that purpose to one of Her Majesty's Superior Courts of Common Law at Toronto, within six Calendar Months at the farthest after the special promulgation thereof by the publication of this notice in three consecutive numbers of the following newspapers, viz: (here name the newspapers in which the publication is to be made), or he will be too late to be heard in that behalf. (9) See note n to sec. 196. "G. H., Township Clerk." (r) Two modes of publication are pointed out; either may be adopted. (See secs. 198 & 199 as to forms of notice.) (s) Municipality. See sec. 402, subsec. 1. (t) It would seem that the six months allowed for an application to quash a by-law are to be computed from the publication of the first number of the newspaper in which the same is made. (See sec. 198.) (u) Where a statute expressly provides that a thing is to be done in a given form, the statute ought to be closely followed. (See Warren v. Love, 7 Dowl. P. C. 602; Codrington v. Curlewis, 9 Dowl. P.C. 968). The form here given is "in effect" to be followed. B ་ 199.-The notice setting forth the amount of the rate, and Notice setgiving the substance only of the other parts of the By-law, for ting forth the purpose aforesaid, shall be to the effect following: (v) the rate. "Township A, in the County of B, one of the United Coun- Form of such ties of B, C and D, in Upper Canada to wit: Notice is hereby given, that a By-law, intituled, (set out the title,) and numbered (give the number by which the By-law is designated,) was on the day of 185, passed by from to the Municipal Council of the Township of A, in the County notice. within the to be valid. 200.-In case no application to quash any By-law so spe- If not moved cially promulgated is made within the time limited for that against, purpose, (w) the By-law, or so much thereof as is not the time limited, subject of any such application, or not quashed upon such application, so far as the same ordains, prescribes or directs any thing within the proper competence of the Council to ordain, prescribe or direct, shall, notwithstanding any want of substance or form, either in the By-law itself, or in the time or manner of passing the same, be a valid By-law. (x) (v) See note u to sec. 198. (w) This and sec. 196 seem to contemplate by-laws for any purpose, while secs. 195 and 197 and the forms of notice seem to apply only to by-laws imposing rates. These sections are taken from the repealed statute 14 & 15 Vic. cap. 109, Sch. A. 21, provisoes Nos. 1, 2, 3 and 4, and are in substance the same. (z) The effect of neglect to make an application within the time H Liability of for acts done law afterwards quashed. IF QUASHED, THE CORPORATION ONLY TO BE LIABLE. 201.-In case a By-law, Order or Resolution is illegal in whole or in part, (2) and in case any thing has been done under it which, by reason of such illegality, gives any person a right of action, (a) no such action shall be brought until one calendar month has elapsed after the By-law, Order or Resolution has been quashed or repealed, (b) nor until one calendar month's notice in writing of the intention to bring such action has been given to the Corporation; (c) and every such action shall be brought against the Corporation alone, and not against any persoon acting under the By-law, Order or Resolution. (d) prescribed is a cure of any want of substance or form, either in the by-law, &c., itself or in the time or manner of passing the same, provided whatever is ordained or directed by the by-law, &c., is within the proper competence of the Council. (z) See sec. 194 and notes thereto. (a) It would appear that if a by-law, &c., is not void on the face of it, without being quashed, all proceedlings duly had under it while in force may be justified under it. (Barclay v. the Municipality of the Township of Darlington, 5 U. C. C. P. 432.) (b) Quashed or repealed. This implies that a by-law, at any time before being quashed, may be repealed. (See In re McGill and the Municipal Council of the County of Peterborough, 9 U. C. Q. B. 562;· and Barclay v. the Municipality of the Township of Darlington, 5 U. C. C. P. 432.) (c) This portion of the section is new, and is apparently introduced in order to settle a conflict of opinion between the Courts of Queen's Bench and Common Pleas as to the necessity of notice before action. (Brown v. the Municipal Council of the Township of Sarnia, 11 U.C.Q.B. 215; Snook et al v. the Town Council of Brantford, 13 U. C. Q. B. 621; Magrath v. the Municipality of the Township of Brock, 13 U. C. Q. B. 629; Reid v. the Mayor, Aldermen and Commonalty of the City of Hamilton, 5 U. C. C. P. 269; Croft v. the Town Council of Peterborough, 5 U. C. C. P. 141; Barclay v. the Municipality of the Township of Darlington, 5 U. C. C. P. 432.) (d) It appears therefore that if any thing has been done under a by-law, &c., which is illegal, and gives any person a right of action-1. The action shall be brought against the Corporation that passed the by-law, &c., and not against any person who acted under it. 2. The action is not to be brought while the by-law, &c., is in force, nor until one calendar month has elapsed after the bylaw, &c., is quashed or repealed. 3. Before bringing it, one calendar month's notice in writing of the intention to bring it must first be given to the Corporation. 4. Whether notice of action can be given before the by-law, &c., is quashed or repealed is a question, but material only in case the time for bringing the action is limited and the time about to expire. (See McKenzie v. the Mayor, Aldermen and Commonalty of Kingston, 13 U. C. Q. B. 634.) The section declares that no action shall be brought until the by T |