such overseer and town-clerk respectively for every such offence shall forfeit and pay the sum of fifty pounds; and the said penalties hereby in such case imposed shall be recovered, with full costs of suit, by any person who will sue for the same within three calendar months after the commission of such offence, by action of debt or on the case (2) in any of his Majesty's superior courts of record; and the money so to be recovered shall, after payment of the costs and expenses attending the recovery thereof, be paid and apportioned as follows; (that is to say,) one moiety thereof to the person so suing, and the other moiety thereof to the treasurer, to be appointed by virtue of this act, to be by him applied in aid of the borough fund hereinafter mentioned*.

(1)" Shall neglect or refuse."]-The omission, whether wilful or not, to sign the burgess list (as required by s. 15), subjects the overseer to the above penalty. King v. Burrell, 4 P. & D. 207, and S. C. 12 A. & E. 460.

* § 92.

The word "wilfully," it will be observed, does not occur in this section; any of the parties, therefore, above named, who omit to do any of the acts which they are by the provisions of this statute required to do, and which they can do, incur the above penalties, whether they act wilfully or not. See also King v. Share, (Queen's Bench, E. T. 1842, MS.), where the defendant, an overseer of a parish divided into nine districts under a local act, who had only made out and signed the list of his own district, was held liable to the penalty; though it was admitted, the omission had taken place through his ignorance of the requisites of the statute. See, ante, the note to s. 15, p.31. If an overseer shall have neglected to make out the lists as Cumulative required by s. 15, and has been sued for and paid the penalty, penalty. he cannot be sued for a second penalty, for refusing to allow "such list to be perused;" Gregory v. Fell, Exchequer, E. T. 1842, MS. Query, whether an overseer would be liable to

be sued under this section, for refusing to allow a person to peruse a list, if he should have neglected to make out any ?

(2) "Action of Debt or on the Case."]-This action must be commenced within three calendar months after the commis.. sion of the offence. See post, s. 133, as to venue, &c., in actions against persons for any thing done “in pursuance of this act; " and in note to the same section, King v. Burrell, 12 A. & E. 460; where it was held, that a party sued for the penalty for neglecting to sign a burgess list, was not within the provisions of that section.

Council to elect the

year from the councillors.

cancy in office of mayor.

XLIX. And be it enacted, that on the ninth day mayor every of November (1) in every year the council of the borough shall elect out of the aldermen or councillors of such borough a fit person to be the mayor of such borough, who shall continue in his office for In case of va- one whole year (2); and in case a vacancy shall be occasioned in the office of mayor of the borough during such year by reason of any person who shall have been elected to such office not accepting the same, or by reason of his dying or ceasing to hold the said office, the council of the borough (3) shall within ten days after such vacancy elect out of the aldermen or councillors of the said borough another fit person to be the mayor thereof for the remainder of the then current year.

Election of mayor.

(1) The 69th section enacts, that the election of mayor shall be the first thing to be done at the meeting appointed to be held on the ninth of November; see Reg. v. M'Gowan, 11 A. & E. 869.

See ss. 57, 58, as to precedence and salary of the mayor.

(2) "For one whole year."]—6 & 7 Will. 4, c. 105, s. 4,

enacts, that the mayor shall continue in office for one whole year, and until his successor shall have accepted the office of mayor, and shall have made and subscribed the requisite declaration.

(3) "The Council of the Borough."]-No provision is here made for the assembling of the council; s. 69 provides, that previous to any meeting of the council, three days' notice shall be given, such notice to be signed by the mayor; and in case of his "refusal" to call any meeting, five members of the council may give the requisite notice. A similar difficulty arises under s. 36; where the council, in the case of the death, absence, or other incapacity of the mayor to preside at any election, are to elect an alderman for that purpose.

men, and

auditors, and

to act until

made a decla

ration of ac

L. And be it enacted, that no person elected a Mayor, aldermayor, alderman, or councillor, or auditor, or asses- councillors, sor, for any borough, shall be capable of acting as assessors, not such, except in administering the declaration herein- they have after contained, until he shall have made and subscribed before any two or more such aldermen or councillors (who are hereby respectively authorized and required (1) to administer the same to each other) a declaration (2) in the words or to the effect following; (that is to say,)

'I, A. B., having been elected mayor [or alderman,
'councillor, auditor, or assessor] for the borough
of
do hereby declare, that I take the
'said office upon myself, and will duly and faithfully
' fulfil the duties thereof according to the best of my
'judgment and ability; [and in the case of the party
'being qualified by estate, say, And I do hereby

ceptance of office.

Aldermen, if required, to

make a decla

ration of qua

in three years.

'declare that I am seised or possessed of real or per'sonal estate, or both, [as the case may be], to the amount of one thousand pounds or five hundred 'pounds, as the case may require, over and above 'what will satisfy all my debts'].

And that every alderman who shall have made and subscribed the foregoing declaration in respect of lification once estate shall once in every period of three years, if required in writing so to do by any two members of the council, make and subscribe a declaration that he is qualified to the same amount in real or personal estate, or both, as the case may then be, as the amount mentioned in the declaration originally made and subscribed by him: Provided always, that nothing in this act contained shall be construed to dispense with the obligation of any person to make and subscribe the declaration (3) provided and enjoined by an act made in the ninth year of his late 9 Geo. 4, c. 17. Majesty, George the Fourth, intituled, An Act for

repealing so much of several Acts as imposes the necessity of receiving the Sacrament of the Lord's Supper as a qualification for certain offices and employments.

(1) "Authorized and required to administer the same."]— It had been considered, that the administering of the above declaration was a purely ministerial act. But in the case of Reg. v. Greene, Q. B., H. T. 1842, MS., it was held by the court, that the aldermen or councillors called on to administer the declaration, might refuse to administer it, if satisfied of the disqualification of the party; and, consequently, that a councillor, who had administered the above declaration to A. B., could not, after having so concurred, be a relator in an information in the

nature of a quo warranto against A. B.; the act of administering being so far voluntary as to amount to a concurrence, at all events if done without any protest or remonstrance as to the ground of objection, which it appeared was known at the time to the relator. See, on the point of a party who has concurred in an election not being allowed to be a relator, Rex v. Dawes, 4 Burr. 2180; Rex v. Morris, 3 East, 213; Rex v. Symmons, 4 T. R. 223: Rex v. Slythe, 6 B. & C. 240; Rex v. Trevenen, 2 B. & A. 339; Rex v. Parkyn, 1 B. & Ad. 690.

The mere having acted with a party is not a sufficient ground of objection to a relator: see Rex v. Clarke, 1 East, 38; and see Rex v. Benney, 1 B. & Ad. 685.

(2) "A Declaration."]-Upon the declarations required by this section being made, the office becomes full de facto, and can only be questioned by a quo warranto information. Rex v. The Mayor of Winchester, 7 A. & E. 215.

But in no case will the Court of Queen's Bench grant a quo warranto information, unless it clearly appears, that the office is full de facto. It is not sufficient that the affidavit simply states "that a party has accepted the office," without specifying the particulars and mode of his acceptance; such as that he had made the declaration required by this section, or that he had acted, &c. Reg. v. Slatter, 11 A. & E. 505.

But in a case, where the affidavit stated that the party had taken on himself the office, and acted in that capacity, and had been seen present at meetings of the council acting as a councillor; though the nature of the acceptance or acting was not further specified, and though it was not stated that he had made the declaration under this section; the court made the rule absolute for the quo warranto information. Reg. v. Quale, 11 A. & E. 508; see also Reg. v. The Mayor of Leeds, 11 A. & E. 512; and cited in note to s. 35, ante, p. 65.

(3) "The Declaration" under 9 Geo. 4, c. 17.]-This statute (in ss. 2, 3, see post, Appendix) requires, that every person elected, &c., into the office of alderman, &c., shall,