1862.

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V.

used and exercised, without any legal warrant or right whatsoever, the office of mayor of the said town, and, together with Owen Richards and John Jones, the powers The QUEEN. and privileges of a body corporate, by the name and description of the Mayor and Bailiffs of the Borough of Bala; and for and during all that time had there claimed to be mayor of the said town, and to be, together with Owen Richards and John Jones, a body corporate, and to have, use and enjoy all the liberties, privileges and franchises of the office of mayor and, with Owen Richards and John Jones, of a body corporate, and does so presume to act &c.

The information further stated that there was yearly and every year held within the town of Bala, to wit on the 24th October, a public fair for the buying and selling of merchandize, goods and chattels there; and that the defendant theretofore, to wit, on &c., within the town. aforesaid did, without any legal warrant or right whatsoever, together with Owen Richards and John Jones, by the name and description of the Mayor and Bailiffs of the Borough of Bala, claim as of right the liberty and privilege of taking and demanding, from every person attending the fair and placing their goods and chattels on the public highways for sale, certain toll; and did at the fair then and there held, without any legal warrant, Royal grant authorizing him or them in that behalf, or other right whatsoever, together with Owen Richards and John Jones, by such description as aforesaid, claim, demand and take, from certain persons attending the fair and placing their goods and chattels in the public highway for sale, a certain toll, and did then and there demand and take, as and for such toll as aforesaid, to wit: [stating various sums, from different persons]; &c.

1862.

LLOYD

V.

The QUEEN.

The information contained a similar averment as to a yearly fair held on the 8th November.

There followed an entry of the non-appearance of the defendant; and thereupon the usual judgment for the Crown, and that the relator recover against the defendant 1007. for his costs, according to the form of the statute in such case made and provided.

Assignment of error, and joinder therein.

Vaughan Williams, for the defendant.-The relator in this information is not entitled to costs under stat. 9 Ann. c. 20. s. 5. That statute, as appears from its preamble, was intended to apply only to "cities, towns corporate, boroughs and places" which had mayors bailiffs, portreeves, or other corporate officers, and the word "places" only extends to places of the same kind as those before enumerated, that is, corporate places; Rex v. Wallis (a), per Lord Kenyon. And the "said offices," in section 4 and 5, are those referred to in the preamble. This information contains no allegation that the borough of Bala is an ancient borough, and that the mayor and bailiffs of the said borough were one body politic in deed, fact and name, by the name of the Mayor and Bailiffs of the Town of Bala; as in the Precedent, No. CLIX, in Corner's Crown Practice, App., p. 119. In the absence of such an allegation there is nothing to shew that the defendant usurped any corporate office or any existing office touching the rule and government of a borough. It does not even appear that Bala is a borough. In Rex v. M'Kay (b) it was held that the case of a bailiff, the returning officer of an (b) 5 B. § C. 640.

(a) 5 T. R. 375. 379.

unincorporated borough, sending Members to Parliament was not within the statute; and Bayley J., delivering the judgment of the Court, in which all the authorities are reviewed, said, p. 646: "When we consider that the word 'boroughs' in the title of the Act may be satisfied by referring it to the last section, which prohibits the choice of a returning officer for two successive years, and that in that preamble, which introduces the provisions for writs of mandamus and quo warranto informations, we find mention made of the peace, order, and government of the place, with which a bailiff as returning officer has nothing to do, and of burgesses or freemen, which occur only in corporations, we think it impossible to say that it is clear the provisions as to writs of mandamus and quo warranto informations apply to unincorporated boroughs, and on the contrary it appears to us that they apply wholly to corporate offices in corporate places."

Edward Beavan, for the relator.-The judgment is warranted by stat. 9 Ann. c. 20. s. 5. The information is in the usual form except that it does not style Bala a town corporate. The defendant, having suffered judgment by default, admits that he exercised or pretended to exercise the office of mayor of Bala, and after that it does not lie in his mouth to say that Bala is not a corporate town. If the defendant had pleaded, and had shewn, that there was a real mayor and corporation of Bala, and had obtained judgment, he would be entitled to costs against the relator under sect. 5; therefore the relator when he succeeds ought to be entitled to costs against the defendant. The cases cited in the judgment

1862.

LLOYD

V.

The QUEEN.

1862.

LLOYD

V.

The QUEEN.

in Rex v. M'Kay (a) were quo warranto informations for usurping offices which were not corporate offices, with the exception of Rex v. Richardson (b), which was an information against the portreeve of a borough. The judgment in Rex v. M'Kay (a) was that the provisions in the statute as to quo warranto informations apply only to corporate offices; and it was said, p. 646, "there can be no corporate office but in a corporation." But sect. 5 says that where any person or persons shall be " adjudged guilty of a usurpation, or intrusion into, or unlawfully holding and executing any of the said offices or franchises," the Court shall give judgment of ouster against them, and also that the relator recover his costs: that extends to the case in which there is no corporation, but the defendant pretended to hold a corporate office. [Keating J. The information charges that the defendant "exercised the office of mayor of the said town, and, together with Owen Richards and John Jones, the powers and privileges of a body corporate by the name and description of the Mayor and Bailiffs of the Borough of Bala ;" and that in that name they demanded and took tolls from persons attending a fair there.]

Vaughan Williams, in reply.—The information ought to shew that Bala is a corporate place. [Pollock C. B. The gist of the decision in Rex v. M'Kay (a) is that, under stat. 9 Ann. c. 20. s. 5., the Court has no power to give costs unless the quo warranto information is for usurping a corporate office. Bramwell B. Sect. 4. says, "in case any person or persons shall usurp, intrude into or unlawfully hold and execute any of the said offices or (b) 9 East, 469.

(a) 5 B, & C. 640.

franchises"; that means any alleged office of the same description,-it refers to corporate offices. If a man claims to exercise a corporate office, and fails either because it is not a corporate office, or because there is not a corporation, the case is to my mind equally within the Act. Williams J. In Rex v. Williams (a), which was an information for holding a Court of record, the defendant did not usurp a corporate office; here the defendant pretended to be an officer of a town corporate. Bramwell B. If the defendant had succeeded, he would have established his title to be an officer of a town corporate, and would have been entitled to his costs against the relator. Pollock C. B. Suppose the defendant had obtained judgment on the ground that he never had pretended to be mayor of Bala?] He would not have been entitled to his costs. [He cited the observations of Lord Mansfield in Rex v. Williams (a).]

ERLE C. J. I am of opinion that this judgment should be affirmed.

There is a difficulty in distinguishing the present case from some of those in which it was decided that stat. 9 Ann. c. 20. applies only to offices in corporations. But the charge against the defendant in this information is that he usurped the office of mayor of the town of Bala, and, together with two persons named, "the powers and privileges of a body corporate, by the name and description of the Mayor and Bailiffs of the Borough of Bala ;" and unless those words had been in the information, I should have agreed with Mr. Williams. The defendant admits that he is guilty of what he is charged with; but he says that he is not within stat. 9 Ann. (a) 1 Burr. 402; 1 W. Bl. 93. (b) 1 Burr. 402. 407.

1862.

LLOYD

V.

The QUEEN.