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c. 20. s. 5., because it only gives costs on informations against persons for usurping corporate offices in corporations. But I think he cannot exempt himself from costs on that ground after he has pretended that there was a corporation and that he was mayor of it. The defendant might have set up as a defence that Bala was a corporate town, and that he had a right to be mayor; and, if he had succeeded, he would have been entitled to costs against the relator, who, before filing the information, must have entered into a recognizance to prosecute the same with effect. And upon this record the relator has incurred costs, which ought to be paid by the defendant.
The statute is certainly much wider than the construction put upon it in Rex v. M'Kay (a), because the Court there said that the provisions as to writs of mandamus and quo warranto imformations applied to corporate offices in corporate places"; and many well considered decisions have held the same. We do not, on the present occasion, run counter to them.
POLLOCK C. B. I agree with what Lord Chief Justice Erle bas said ; but there is no case which decides that if a person claims to be mayor, and it turns out that there was no corporation, the defendant shall not pay costs. I have a strong impression that the meaning of stat. 9 Ann. c. 20. is that, if a person intrudes himself into an office, and claims it as really existing, he is within the statute, whether there is a corporation or not; so that the Court has power to give costs wherever the real dispute is whether the defendant was entitled to hold a corporate office, his con
(a) 5 B. & C. 640. 646.
tention or pretence being that there was a corporation. 1862. It would be a great hardship if, when persons under LLOYD colour of being officers of a corporation, levy tolls and The QUEEN. exercise tyranny over the inhabitants of a place, their title could not be questioned by a relator under this statute; and the inhabitants were obliged to wait until the Attorney General, ex officio, filed an information against the persons claiming to be a corporation.
WILLIAMS J. I also am of opinion that this judgment should be affirmed. I will add one observation. Suppose the defendant had pleaded double, under stat. 32 G. 3. c. 58., first, that he was not mayor, and secondly, that Bala was not a corporation, the Court would have to try whether Bala was a corporation or not, in order to see whether the party who succeeded was entitled to the benefit of the statute of Anne. If, on this information, the defendant is within the statute for one purpose, why should he not be so for the other?
BRAMWELL B. The illustration put by my brother Williams shews that on this information the defendant is within stat. 9 Ann. c. 20. Whether a case is within the statute or not, cannot depend on the result of one of the issues.
KEATING J. I am of opinion that the present case is within stat. 9 Ann, C. 20. for the reasons pointed out by Lord Chief Justice Erle.
The Queen against The Justices of SUSSEX.
An order for the removal of a pauper and his family from the parish of F. to the parish of C. was made on the 18th August, 1860, and notice of chargeability, accompanied by a copy of the order and a statement of the grounds thereof, including the particulars of the settlement relied on, were sent on the 30th August, and a copy of the depositions upon which the order was made were delivered on the 19th September. On the 1st of October notice of appeal to the next Quarter Sessions for the county of S. was given. Those Sessions were held for the Eastern division of that county on the 15th October at A., and for the Wester, division, within which the respondent parish was situated, on the 18th October at B. The appellants did not, at any time on or before the day and year last aforesaid, send or deliver to the respondents any statement in writing or otherwise of the grounds of the appeal. By the custom and practice of those Sessions, eight days notice of appeal was required. The appellants applied to the Sessions at B. to receive and enter the appeal
, and to respite it to the next Quarter Sessions as matter of right, and without shewing any reason for the delay: held, that they had a right to do so, as they had not been guilty of any laches in giving their notice of appeal: per Crompton and Mellor JJ., dissentiente Blackburn J.
Quarter Sessions holden for the county of Susser, on the 15th October, 1860, the churchwardens and overseers of the poor of the parish of Colemore, in the county of Southampton, applied to the Court to receive, enter and respite an appeal by them against an order of two justices for the removal of John Sandham and his children from the parish of Funtington, in the county of Sussex, to the parish of Colemore, and that the justices at those Sessions refused to permit the appeal to be entered and respited : commanded them to do so, and to hear and determine the merits of that appeal.
Return. That the order of removal was made on the 18th August, 1860 : that .notice in writing of chargeability, accompanied by a copy of the order of removal and a statement of the grounds of removal, including the particulars of the settlement relied on in support thereof, were, on the 30th of August, sent by the
churchwardens and overseers of the poor of the parish of Funtington, who obtained the order, to the churchwardens and overseers of the poor of the parish of Colemore, to whom it was directed; and that a copy of the depositions upon which the order was made, having been dnly applied for, was, on the 19th September, delivered to them : that on the 1st October the appellants gave notice to the respondents that they intended, at the next General Quarter Sessions of the Peace for the county of Sussex, to commence and enter an appeal against the order : that the General Quarter Sessions of the Peace for the Eastern Division of the county were holden at Lewes on the 15th October, and for the Western Division were holden at Chichester, on the 18th of the same month: that the parish of Funtington is situate in the Western Division of the county : that the appellants did not, at any time on or before the day and year last aforesaid, send or deliver to the respondents any statement in writing or otherwise of the grounds of the appeal: that, by the custom and practice of those Sessions, eight days notice of appeal against an order of removal and no more is required: that the appellants, at the Quarter Sessions holden at Chic!ester on the 18th October, applied to have received and to enter the appeal, with a view to its being respited; and thereupon then and there applied to the Court of Quarter Sessions to adjourn and respite the hearing of the appeal to the next General Quarter Sessions of the Peace, as a matter of right, and without shewing any cause or assigning any reason for such delay : that the Court decided that the appeal should not be respited, but did not further or otherwise refuse or decline to receive or enter the appeal : that the pauper and his
1862. children were afterwards removed under and by virtue The QUEEN
of that order, &c., and he afterwards died : therefore the Justices of justices &c. declined to receive and enter the appeal, and Sussex. to hear and determine the merits of the appeal.
Demurrer, and joinder therein.
The demurrer was argued during the Term, on the 26th April; before Crompton, Blackburn and Mellor JJ.
Manisty (T. W. Saunders with him), in support of the demurrer.
Huddleston (Foot with him), contrà.
The case is exhausted by the judgments; it will be sufficient to add that the following statutes and authorities were referred to during the argument: 13 & 14 Car. 2. c. 12., 8 & 9 W. 3. c. 30., 9 G. 1. c. 7., 4 & 5 W. 4. c. 76., 11 & 12 Vict. c. 31.; Rex v. The Justices of Suffolk (a), Reg. v. The Justices of the West Riding (6), Rex v. The Justices of Surrey (c), Reg. v. The Justices of Peterborough (d), Reg. v. The Inhabitants of Sevenoaks (e), Reg. v. Skircoat (f), Reg. v. The Inhabitants of Draughton (g), Reg. v. The Recorder of Derhy (k), Archb. Poor Law, p. 761, 10th ed.
Cur. adv. vult.
And now the Judges, not being able to agree, proceeded to give judgment separately.
(a) 4 A. & E. 319.
(6) E. B. & E. 713. (c) 1 Mau. & S. 479.
(d) 7 E. & B. 643.
(1) 28 L. J. M. C. 224.