(2.) A justice for a borough shall not be capable of acting as such until he has taken the oaths required to be taken by justices, except the oath as to qualification by estate, and made before the mayor or two other members of the council a declaration as in the Eighth Schedule.2

(3.) He must, while acting as such, reside in or within seven miles of the borough, or occupy a house, warehouse, or other property in the borough.3

(3.) He need not be a burgess or have such qualification by estate as is required for a justice of a county.

1 As to the jurisdiction of borough justices, see sec. 158.

Although solicitors are by the 34 Vict., c. 38, disqualified for being justices of the peace for a county in which they practise, there is no similar disqualification with regard to borough justices. A sheriff cannot act as a justice during the year of his shrievalty, see I Mar., Sess. 2, c. 8, s. 2; and ex parte Colville, L. R., I Q. B. D. 133; 45 L. J., Q. B. 133; 24 W. R., 156. From Davies v. Justices of Pembrokeshire, L. R., 7 Q. B. D. 513; it appears that a justice of the peace does not become disqualified for acting as such by reason of his being elected coroner for the county or division for which he acts as a justice.

2 By sec. 6 of the Promissory Oaths Act, 1868 (31 & 32 Vict., c. 72), justices of the peace for counties and boroughs are required to take the oath of allegiance and judicial oath. The oath of allegiance is to be in the following form:"I, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs and successors, according to law. So help me God." The judicial oath is to be in the following form:"I, do swear that I will well and truly serve our Sovereign, Lady Queen Victoria, in the office of and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will. So help me God." Any person, however, for the time being by law permitted to make a solemn affirmation or declaration instead of taking an oath, may, instead of taking such oath, make a solemn affirmation in the form of the oath appointed, substituting the words, "solemnly, sincerely and truly declare and affirm" for the word "swear," and omitting the words, "So help me God." With regard to affirmations by Quakers, Moravians, and Separatists, see note to sec. 36 (3), p. 43. The 34 & 35 Vict., c. 48, which by sec. 2 defines the manner in which the oath of allegiance and judicial oath are to be taken by the officers mentioned in the Promissory Oaths Act, 1868, provides that "each such officer shall take the said oaths before such persons as Her Majesty may from time to time appoint, or in England before the Lord High Chancellor of Great Britain, or in the Court of Chancery, Queen's Bench, Common Pleas, or Exchequer in open court before one or more of the judges of such court, or in open court at the general or quarter sessions of the peace for the county, borough, or place in which the person taking the oaths acts as justice."

See also sec. 239 of this Act as to declarations and oaths.

As to the declaration to be made by a borough justice, see Form B. in Part I. of the Eighth Schedule, p. 233.

The distance of seven miles is to be measured as provided by sec. 231.

Jurisdiction of Borough Justices.

158.-(1.) A justice for a borough shall, with respect to offences committed and matters arising within the borough,

have the same jurisdiction and authority as a justice for a county has under any local or general Act with respect to offences committed and matters arising within the county; except that he shall not, by virtue of his being a justice for the borough, act as a justice at any court of gaol delivery or quarter sessions, or in making or levying any county or borough rate.1

(2.) A justice shall not be disabled from acting in the execution of this Act by reason of his being liable to the borough rate.2

1 As to the granting of licences, under 9 Geo. 4, c. 61, to keepers of inns, &c., in boroughs with a separate commission of the peace, see sec. 246.

Where a local Act authorized a paving rate for the parish of Bathwick, the payment of which was to be enforced by the distress warrant of a justice of the county, it was held, that on Bathwick becoming part of the city of Bath, the city having a separate court of quarter sessions and the charter containing a nonintromittant clause, the jurisdiction as regards the enforcement of the rate under the local Act, was transferred to the justices of the borough. Re Bathwick Paving Act, 18 L. J., Q. B. 301.

2 The Justices of the Peace Act, 1867 (30 & 31 Vict., c. 115), by sec. 2, further enacts that “a justice of the peace shall not be incapable of acting as a justice at any petty or special or general or quarter sessions on the trial of an offence arising under an Act to be put in execution by a municipal corporation, or a local board of health, or improvement commissioners, or trustees, or any other local authority, by reason only of his being as one of several ratepayers, or as one of any other class of persons liable in common with the others to contribute to or to be benefited by any fund, to the account of which the penalty payable in respect of such offence is directed to be carried or of which it will form part, or to contribute to any rate or expenses in diminution of which such penalty will go.

In R. v. Pettitmangin, 4 B. & S. 921; 33 L. J., M. C. 99; 9 L. T., N.S. 683, it was held that a magistrate of a municipal borough of the watch committee of which he was a member, was not thereby disqualified for adjudicating upon an information laid by the inspector of police in pursuance of instructions of the watch committee, although the fine imposed in the case might go to the borough fund. Cockburn, C. J.: This is not such an interest as disqualifies; it is an interest too remote.

There are, however, several recent decisions with reference to justices, who are members of a local authority, acting in matters in which the local authority are interested, to which it may be convenient to refer.

In R. v. Millege and others, Justices of Weymouth, L. R., 4 Q. B. D. 332; 48 L. J., M. C. 139; 40 L. T., N.S. 748; 27 W. R., 659; where it appeared that three members of the town council, who were justices of the borough, sat on the bench at the hearing of a summons taken out under the Public Health Act, 1875, although they had been present at the meeting at which the directions to prosecute were given, and had been parties to the resolution on the subject, the order made by the justices was quashed on the ground that they were prosecutors, and could not, therefore, act as judges in the case. In the course of the argument, however, Cockburn, C. J., observed that if the justices had not taken part in determining the prosecution they would not have been disqualified.

In R. v. Lee and others (L. R., 9 Q. B. D. 394) also, where the sanitary committee of the town council, who were the local authority under the Public Health Act, 1875, passed a resolution directing the town clerk to institute a prosecution against S. for exposure for sale of meat unfit for human food con

trary to the provisions of that Act, and at the hearing of the information laid in pursuance of that resolution, S. was convicted before four justices, one of whom was a member of the sanitary committee, and had been present at the meeting at which the resolution was passed, it was held that a rule for a certiorari to bring up and quash the conviction must be made absolute. Field, J. Section 258 of the Public Health Act has not the effect of enabling a person to act as prosecutor and judge in the same matter. It would require express terms in an Act of Parliament to produce that effect. I think that the meaning of sec. 258 is clear. It was thought that there might be inconvenience in carrying out the Act owing to the difficulty in boroughs of getting justices to sit who were not members of the corporation. The legislature, therefore, went one step in the direction of removing that difficulty by enacting that the mere fact of membership should not disqualify the justice. The section, therefore, removes one ground of interest merely. There is no warrant for holding that where a justice has acted as a member by directing a prosecution for an offence under the Act, he is a sufficiently disinterested person to be able to sit as a judge at the hearing of the information.

In R. v. Gibbon and another, Justices of Lancashire, L. R., 6 Q. B. D. 168; 29 W. R. 442, the proceedings were under a local Act, which provided that the corporation should be the authority for the execution of the Act, and that no person should be disqualified or disabled to act as a justice of the peace in any matter arising under the Act by reason of his being a member of the council or any committee thereof. In that case an information was laid by the borough surveyor before an alderman of the corporation, who was an ex-officio justice. The defendant was summoned to appear at petty sessions. justices present at the petty sessions when the defendant appeared were not members of the corporation, but ordinary justices of the county at large. For the defendant, objection was taken that the information was invalid, as it had been laid before a member of the corporation, who was not entitled to receive it.

The

This objection was upheld by the justices, who refused to proceed, although it was not alleged that the alderman before whom the information was laid had been present at any meeting of the town council, at which the question of the proceedings had been considered. On a motion to make absolute a man lamus commanding the justices to hear the case, it was held by Manisty, J., that the justices were right in the course which they had adopted. The corporation being entitled to the penalty were the prosecutors, and the alderman before whom the information was laid must be taken to have acted as a judge in considering the case before granting the summons.

In a later case, R. v. Handsley, L. R., 8 Q. B. D. 383; 30 W. R., 368, it was held where a section in a local Act provided that " any person shall not be disqualified fron acting as a justice in any matter arising under or in relation to the Act by reason of his being a ratepayer in the borough, or liable to any payments under the Act, or a member of the town council or any committee thereof," that it is not enough, in order to disqualify a justice from adjudicating on matters arising under the Act, to show that he is a member of the town council, and, as such, has a pecuniary interest in the result of the information or complaint, or that he is a member of the corporation charged with the duty of prosecuting the offence which he sits to adjudicate upon, but it must be established that he has such a substantial interest in the result as to make it likely that he has a real bias. In the case referred to, K., an officer of the corporation who was charged with the duty of collecting the borough rates, acting on his own discretion, and without consulting the town council or any committee or member thereof, obtained a summons for the non-payment of rates from a justice who was not a member of the town council. At the hearing of the summons, one of the sitting justices was a town councillor, and, on the ground that he was thereby disqualified from adjudicating upon the matter, the justices dismissed the summons. It was held that the justice was not disqualified, and that the summons must be heard and determined.

In R. v. Justices of Huntingdon, L. R., 4 Q. B. D. 522, where members of

the town council had taken an active part in discussions at meetings of the council, as to the making of an order under the Dogs Act, 1871, and were parties to the making of the order, and subsequently convicted a person for an offence under the order, the conviction was supported. See also R. v. Mazor and Justices of Deal, ex parte Curl ng, 45 L. T., N.S. 439; 30 W. R., 14. In that case A. had been convicted and fined for cruelty to a horse upon the prost.cution of an officer of the Royal Society for the Prevention of Cruelty to Animals. Some of the justices who heard the summons and took part in the conviction were subscribers to a branch of that society, which received subsrip ions in the country, and forwarded them to the society's office in London. All prosecutions by the society were directed by the secretary or committee in Ioadon, and no subscribers had any authority over, or responsibility for, such prosecutions, and the society never accepted any part of the penalties inflicted under the Cruelty to Animals Prevention Act, 1849, secs. 2, 18, 21. It was held upon a rule for certiorari that there was nothing in these facts to create a real bias in the minds of the justices which could amount to a disqualifying interest.

Clerk to Borough Justices.

159.-(1.) The justices for a borough shall from time to time appoint a fit person to be their clerk, to be removable at their pleasure.1

(2.) They shall not appoint or continue as their clerk an alderman or councillor of the borough, or the clerk of the peace of the borough, or of the county in which the borough is situate, or the partner of any such clerk of the peace.

(3.) The clerk to the justices shall not, by himself or his partner or otherwise, be directly or indirectly employed or interested in the prosecution of any offender committed for trial by those justices, or any of them, at any court of gaol delivery or quarter sessions.

(4.) If any person acts in contravention of the last foregoing provision of this section, he shall for every offence be liable to a fine not exceeding one hundred pounds, recoverable by action.2

(5.) One moiety of any fine so recovered shall, with costs, be paid to the person bringing the action to recover it.

(6.) Nothing in this Act shall prevent the justices for a borough from re-appointing as their clerk any person being clerk of the peace of the borough or of the county in which the borough is situate, or partner of any such clerk of the peace, if the person re-appointed was, on the sixth of August one thousand eight hundred and sixty-one, or has not ceased to be at the time of re-appointment, the clerk of those justices.

1 The clerk to the justices of a borough is removable at the pleasure of the council. A quo warranto will not, therefore, lie in respect of the office. See

L

R. v. Fox, 8 E. & B. 939; 4 Jur., N.S. 410; 27 L. J., Q. B. 151. See also ex parte Richards, referred to in note to sec. 17, p. 24, as to quo warranto in the case of the clerk to a local board.

The remuneration of the clerk to the justices may be paid out of the borough fund without an order. See Fifth Schedule, p. 229.

2 Under the 5 & 6 Wm. 4, c. 76, s. 102, the penalty of £100 was limited to a person who, being an alderman or councillor, or clerk of the peace of the borough, or the partner or clerk of the clerk of the peace, acted as clerk to the justices of the borough, and, at the same time, was employed in the prosecution or defence of prisoners who were committed by the borough justices; and did not extend to persons who acted as clerks to the justices, although at the same time employed in the prosecution or defence of prisoners committed by such justices. (Coe v. Lawrence, I E. & B. 516; 17 Jur., 115; 21 L. J., Q. B. (140.) But where a clerk to the justices of a borough, which had no separate quarter sessions. was in partnership with P., who was clerk to the peace for the county, and who was entitled to receive fees upon the arraignment and trial of all prisoners at the quarter sessions of the county, and, by arrangement between him and P., the former was entitled to receive and did receive onehalf of the fees taken by P. in the case of offenders committed for trial by the borough justices, it was held that such clerk was liable to an indictment for breach of the statutory provision, being interested in the prosecution of such offenders. R. v. Fox, 1 E. & E. 729, 746; 28 L. J., M. C. 157; 5 Jur., N.S. 1241. The penalty was extended by the 24 & 25 Vict., c. 75, to a clerk to jusitces, who, by himself or his partner, was directly or indirectly employed or interested in the prosecution of any offender so committed for trial, and the provision in sub-section 3 of this section is based on the provision in that Act. Where a person is interested in the prosecution of parties committed for trial by the justices of a borough, this does not disqualify him for being appointed clerk to the justices, nor is the office avoided if, after such appointment, he becomes so interested. He is only liable as having acted illegally. R. v. Fox, 8 E & B. 939; 27 L. J., Q. B. 151; 4 Jur., N.S. 410.

3 The 6th of August, 1861, is the date of the passing of the 24 & 25 Vict., c. 75, above referred to. In Brown v. Evans, 33 L. T., N.S. 737; 35 L. T., N.S. 877; 24 W. R., 937, it was held that if a clerk to the justices of a borough who was such at the time of the passing of that Act, and had not ceased to hold the office, was appointed clerk of the peace for the county in which the borough is situated, the justices of the borough might re-appoint him as their clerk, and were protected from liability to a penalty by the proviso to sec. 5 of the 24 & 25 Vict., c. 75, which is similar in terms to sub-section 6 of this Act.

Justices' Room.

160.-(1.) The council of a borough having a separate commission of the peace shall provide and furnish a suitable justices' room, with offices, for the business of the borough justices.

(2.) No room in a house licensed for the sale of intoxicating liquors may be used for this purpose.

STIPENDIARY MAGISTRATE.

Appointment of Stipendiary Magistrate.

161.-(1.) If the council desire the appointment of a stipendiary magistrate for the borough, they may present a