CLEASBY, B.-I am of opinion that sect. 18 of the 8 & 9 Vict. c. 109 does not apply to the present case. [His Lordship read the section]. Now, it is necessary that we should see what the cause of action here is. It is the receipt by the defendant of money for which he ought and is bound to account to the plaintiff. Why is he bound to account for it? Because it has been paid to him, and he agreed to do so. The obligation to account for this money to the plaintiff is on the defendant, and the only reason given by him in answer to the plaintiff's claim is, that he is not bound to account by reason of its being a wager ing contract which the statute 8 & 9 Vict. c. 109, s. 18 has prohibited and rendered illegal and void, and which therefore cannot be enforced in an action by the plaintiff. I am of opinion that that is not so. I do not think that this was an illegal transaction. It was not, in my opinion, a contract "by way of gaming or wagering," which is what sect. 18 says "shall be null and void." The mere act of betting on a horse race is not illegal in the sense that any and every transaction connected with or arising out of such betting is tainted with illegality. The case of Johnson v. Lawley (ubi sup.) which was cited in argument, is in point, and cannot, I think, be distinguished from the present case. A. and B. there jointly made bets on a horse race, and B. received the money and gave A. a bill for his proportion of the winnings. In that case, as in the present, there was an attempt to raise the defence that A. was precluded by sect. 18 of the 8 & 9 Vict. c. 109, from suing or recovering on the bill; but the court held that he was not prohibited by that statute from recovering the amount of the bill. The observations of Jervis, C.J., and Maule, J., in that case, are in point here, and show the ground on which the decision there proceeded. Jervis, C.J., says, Before the passing of the 8 & 9 Vict. c. 109, there were various statutes relating to betting on horse races, all of which were repealed by the 15th section of that Act." Then, after reading sect. 18, the Chief Justice proceeds as follows, "There is nothing there (sect. 18) to show this transaction illegal. Hunt was bound upon every principle of justice to pay this money to Johnson, and the circumstance of Lansley being substituted for Hunt, cannot make that illegal which, as between Johnson and Hunt would not have been so." And Maule, J. says, “The money which was the consideration for this bill was money which Hunt was bound to account for to the plaintiff. The losers could not get it back from Hunt, and it would be a very unjust thing that he should keep the whole. Before the statute 8 & 9 Vict. c. 109, he clearly would have been bound to pay over the money, and I find nothing in that statute to excuse him from doing so." The ground on which the court held that A. the plaintiff, was entitled to recover in that case, was that the defendant, or B, for whom the defendant was substituted, was A.'s agent. and had, as such, received money in respect of bets made by them jointly, of which he was bound to account to A. for his share. That is precisely the present case, with this difference only between the two cases, that there it was known that A. and B. were jointly interested in the bets, whereas here it was not known that the plaintiff had any interest at all in the matter. On the authority of that case, therefore, I am clearly of opinion that the plaintiff may recover from the defendant the MAG. CAS.-VOL. X.

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[Ex. Div.

money which has been paid to the defendant under this contract. This is not "a contract by way of gaming or wagering," and is, therefore, not void under sect. 18 of the statute in question, nor is this an action to recover money due on such a contract. The demurrer to the plea must therefore be allowed, and our judgment be for the plaintiff.

POLLOCK, B.-I also think that it is clear that this is a bad plea. In the first la e the cheque on which this action has been brought was given for money which had been paid to and was then actually in the defendant's hands, and which was in fact the money of the plaintiff. There was, therefore, beyond all question, gool consideration for the cheque. But it is said that the defendant is not bound to account for this money, or to pay the amount of the cheque to the plaintiff, because sect. 18 of the 8 & 9 Vict. c. 109 prohibits the bringing or maintaining any suit for the recovery of any money alleged to have been won upon any wager, &c. [His Lordship read the section.] Now I do not think that this section avails the defendant here. It is clear that this action is not brought "for the recovery of money won upon a wager," within the meaning of that section; that section does not apply to a case like the present, but to a case where the action is brought by one party to the wager against the other party to it, or by the winner of the bet against the stakeholder between the two. But it is said that this betting between the defendant and third persons is illegal, and therefore the agreement between the plaintiff and the defendant is tainted with illegality. But betting is not in itself illegal at common law, nor by the statute of 9 Anne, c. 74, or the 5 & 6 Will. 4, c. 41, sect. 1; which latter Act relates only to securities given in respect of money lost at play, and enacts that such securities shall not, as theretofore, be absolutely void, but shall be deemed have been made and given for an illegal consideration. And the 8 & 9 Vict. C. 109. sect. 18, makes such wagering contracts void, but does not make them illegal. I agree with the observation of Sir J. Byles on this matter, in Byles on Bills, where, at p. 137 of the 10th edition, referring to the statute of 8 & 9 Vict. c. 109, s. 18, the learned writer says, "It further makes all gaming contracts, written or oral, null and void." and then he adds the following note: "But not illegal in the sense of criminal, or in such a sense as to impose on the subsequent holder of a negotiable instrument the obligation of proving the consideration he himself gave for it," and he then cites the case of Fitch v. Jones (ubi sup.). For these reasons I am of opinion that our judgment on this demurrer should be in favour of the plaintiff.

to

AMPHLETT, B.-I am entirely of the same opinion. When we look at the contract between the plaintiff and defendant in this case, it appears to me that there is nothing illegal in it. [His Lordship read the agreement as set forth in the plea]. That is an agreement between them that the defendant should employ the plaintiff's money, together with money of his own, in betting upon horse races, and that the winnings should be shared between them; and to such a case the Act of 8 & 9 Vict. c. 109, s. 18 has no application. What that Act means and what it says is, that no money lost on a bet of this kind shall be recoverable from the loser, but it says not a word about making betting,

I

or such a contract as the present one, illegal. That being so, what illegality is there in A. saying to B.: "Go and make bets on our joint account, and whatever the winnings on such bets may be shall be shared between us." That is exactly what took place in the present case. The defen

dant, using the plaintiff's money and his own, made certain bets which he won, and which were paid to him; when he received money in payment of such bets, he received it to the joint use of the plaintiff and himself, and he then gave the cheque in question to the plaintiff for his agreed proportion of such winnings. Now I see nothing illegal in that transaction. The case of Sharp v. Taylor (in 2 Phillips) to which I referred during the argument, is in point very strongly in favour of the plaintiff here. There A. and B., subjects of this country, purchased an American built ship on a joint speculation with a view of employing her in the trade between the two countries until they could sell her at a profit, and for that purpose they had her registered in America in the name of C., a citizen of that country, upon a false declaration that she was bona fide the sole property of C. After some voyages, B., who had had the management of her, attempted to exclude A. from his share in the speculation, and in spite of A. sent her on another voyage to America. In a suit by A. against B. for an account and payment of his share of the realised profits, the contention on the part of B., the defendant, was that A.'s (the plaintiff's) case, involved the confession of a falsehood, and a deliberate violation of the navigation laws of both countries, and that a title to relief in a court of justice could not be founded on it; that if the plaintiff's case was correct, the ship had been engaged in an illegal traffic, and the plaintiff could not assert in a court of justice any title to the profits of it. But it was held by Lord Cottenham, L.C., that, even supposing the declaration and registration to have been a fraud upon the American law, and the employment of the ship as registered to have been a fraud upon the English navigation laws, such fraud would not prevent A. from maintaining his suit for an account and payment of his share of the realised profits of the speculation. In his judgment in that case, Lord Cottenham said (at p. 818 of 2 Phill.): “As between these two, can their supposed evasion of the law be set up as a defence by one against the otherwise clear title of the other? In this partnership, can the one tenant in common dispute the title common to both? Can one of two partners possess himself of the property of the firm, and be permitted to retain it, if he can show that, in realizing it, some provision in some Act of Parliament has been violated or neglected? Can one of these two partners, in any trade, defeat the other by showing that there was some irregularity in passing the goods through the custom house? The answer to this, as to the former case, will be that the transaction is completed and closed, and will not be in any manner affected by what the court is asked to do as between the parties." Therefore, in the present case, I say that, if it be made out that there was something illegal in this kind of wagering, yet, if the loser has not raised the question of illegality, but has paid the money over, it is not recoverable back by the other party. But it is not necessary to go so far here, because there is nothing illegal in horseracing. As to the other point

[Ex. Div.

that was raised by Mr. Graham, viz., that this cheque was a void security under sect. 1 of the 5 & 6 Will. 4, c. 41, I agree with my learned brothers that that objection is not maintainable. The securities made void by that Act are securities given in payment of a gambling debt. This cheque was not given for the security of such debt, but in payment of half the amount of money which had been received by the defendant, and which he actually had in his possession at the time, and was bound to account for to the plaintiff. Judgment for the defendant.

Solicitor for the plaintiff, J. T. Luscombe. Solicitors for the defendant, Monckton, Long, and Co.

Monday, Dec. 6, 1875.

(Before KELLY, C.B., and CLEASBY and POLLOCK, BB.)

BROWN (qui tam, &c.) v. Evans.

Municipal Corporations Act (5 & 6 Will. 4, c. 76), 8. 102-Municipal Corporations Act Amendment Act (24 & 25 Vict. c. 75) 8. 5-Clerk of the peace for the county Clerk to the justices of the borough - Appointment of same person to both offices-Legality of appointment-Appointing or continuing-Liability of justices to penalty under sect. 5-Action by informer-Construction and operation of statute.

The Municipal Corporations Act Amendment Act of 1861 (24 & 25 Vict. c. 75), s. 5, repeals certain provisions of sect. 102 of the principal Act (5 & 6 Will. 4, c. 76), disqualifying certain persons for holding the office of clerk to the justices of a borough, and in lieu thereof enacts that " it shall not be lawful for the justices of any borough to appoint or continue as their clerk any

...

clerk

of the peace of such borough, or of the county in which such borough is situate, or the partner of such clerk of the peace.. and any person who shall in anywise offend in the premises shall, for every such offence, forfeit and pay the sum of 100l., one moiety, &c. Provided that nothing herein contained shall prevent the justices of any borough from re-appointing as their clerk any clerk of the peace, or partner of such clerk of the peace, of their borough, or of the county in which such borough is situate, who, at the time of the passing of this Act shall be, or who shall not, at the time of such re-appointment, have ceased to be, the clerk of such justices."

In June 1845, F., who, from before 1840, had been, and still was, a partner in the firm of P. and F., attorneys and solicitors, in the borough of N., in the county of M., being a borough having a separate commission of the peace, under the Municipal Corporations Act (5 & 6 Will. 4, c. 76), was appointed, and acted as clerk to the justices of the said borough. In March 1848, P., being still a member of the said firm, was appointed and acted as clerk of the peace for the county of M., and continued as such until his death, in June 1874. Soon after his appointment P. appointed F. his deputy clerk of the peace, and since 1870 F. discharged all the duties of the office down to P.'s death. Upon the passing of the Municipal Cor porations Act Amendment Act (24 & 25 Vict. c. 75) in 1861, the justices of the said borough re-appointed F. as their clerk, and he continued to act as such clerk. On P.'s death F. was, on 24th

June 1874, appointed and accepted the office of clerk of the peace for the said county, and has continued to act as such since that time. On the 9th Nov. 1874, at a properly convened meeting, the justices of the said borough passed the following resolution:- If and so far as it may be necessary, in accordance with the provisions of sect. 5 of the statute 24 & 25 Vict. c. 75, Mr. F. be re-appointed clerk to the justices of the said borough." F. has continued to fill the offices and to act as clerk of the peace of the said county, and of clerk to the justices of the said borough thence hitherto. The defendant took part in the meeting of the 9th Nov. 1874, and voted with other justices for the above resolution, and has since continued to act as a justice of the peace for the said borough, and so acted on the 13th Nov. 1874.

The plaintiff brought a qui tam action against the defendant to recover 100l. penalty, and by the first count of his declaration charged that the defendant, after the passing of the 24 & 25 Vict. c. 75, then being and acting as a justice of the peace for the said borough, did appoint F. to be clerk to the justices of the said borough, he, F., being at the time of the said appointment clerk of the peace for the county of M., contrary to the form, &c. And by the second count he charged that the defendant being and acting as such magistrate as aforesaid, wilfully and unlawfully continued the said F. as clerk to the said justices, between the 3rd June and the 13th Nov. 1874, after the passing of the said last-mentioned Act, and contrary to the form, &c.

The notice of action delivered by the plaintiff related only to the appointing and continuing F. as clerk to the justices on the 13th Nov. 1874, he being at the time clerk of the peace for the county.

On a special case stated by order of the judge at Nisi Prius, it was

Held, by the court (Kelly, C.B., and Cleasby and Pollock, BB.), giving judgment for the defendant, that although the holding of the two offices together by one individual is illegal within the general purview of the two Acts of Parliament (5 & 6 Will. 4, c. 76, and 24 & 25 Vict. c. 75), yet by the express terms of the proviso in sect. 5 of the latter Act, which was inserted to save vested interests existing at the passing of the Act, the appointment or re-appointment of F. as justices' clerk in Nov. 1874, was rendered lawful by reason that he was at the time of the passing of the Act, in 1861, clerk to the justices of the said borough. Per Cleasby, B.-The operation of the proviso in sect. 5 is not confined to one act of appointment or re-appointment, and the justices may re-appoint from time to time a person who fulfils the conditions therein mentioned.

Quare, per Kelly, C.B., whether the merely continuing, without formal re-appointment, a clerk to the justices who has accepted the office of clerk of the peace, would be within the penal provisions of the section, and render the justices liable to a penalty?

SPECIAL CASE.

THIS is one of twenty-six distinct actions brought by the same plaintiff, an informer, against the defendant and other gentlemen, Justices of the Peace for the borough of Newport, Monmouthshire, to recover penalties, under the Municipal Corporations Act Amendment Act of 1861 (24 & 25 Vict. c. 75), sect. 5, and which action came on

[Ex. Div.

to be tried before Archibald, J., at the Spring Assizes 1875, at Monmouth, when a verdict was found for the plaintiff by consent for 1001. (one penalty) subject to the opinion and determination of the Court of Exchequer upon the following CASE.

1. The borough of Newport, in the county of Monmouth, has a separate commission of the peace, under 5 & 6 Will. 4, cap. 76, sect. 98, but has no recorder or separate quarter sessions for the trial of prisoners, and prisoners committed for trial by the borough justices are tried at the assizes held at Monmouth, or at the general quarter sessions of the peace for the county held at Usk.

3. The defendant became in or about 1850, and still is, a justice of the peace for the borough of Newport.

4. Prior to 1840, Mr. Charles Barton Fox became a partner in the firm of Prothero and Fox, attor neys-at-law and solicitors, practising at Newport, in the county of Monmouth, and in June 1845. Mr. Fox was appointed and acted as clerk to the justices of the borough of Newport.

5. In March 1848, the said Mr. Prothero being still a member of the said firm of Prothero and Fox, was appointed and acted as clerk of the peace for the county of Monmouth, and continued as such clerk of the peace until his death on the 16th June 1874.

6. Mr. Prothero soon after his appointment nominated Mr. Fox deputy clerk of the peace for the said county, and since the year 1870 the said Mr. Fox discharged all the duties of the office down to the said Mr. Prothero's death.

7. Upon the passing of the said Act, 24 & 25 Vict. c. 75, in 1861, the justices of the borough of Newport re-appointed Mr. Fox clerk to the justices of the said borough, and he continued to act as such clerk.

8. On the 24th June 1874, Mr. Fox was appointed to and accepted the office of clerk of the peace for the county of Monmouth, and has continued to act as such clerk of the peace since that time.

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9. On the 9th Nov. 1874, at a properly convened meeting, the justices of the borough of Newport passed the following resolution: If and so far as it may be necessary, in accordance with the provisions of sect. 5 of the statute 24 & 25 Vict. c. 75, Mr. C. B. Fox be re-appointed clerk to the justices of the said borough.":

10. Mr. Fox has continued to fill the office of and act as clerk of the peace for the county of Monmouth, and also to fill the office of and act as clerk to the justices of the said borough of Newport, in the county of Monmouth thence hitherto.

11. The defendant took part in the said meeting held on the 9th Nov. 1874, and voted, with eleven other justices, for the said resolution, and has since continued to act as a justice of the peace for the said borough, and so acted on 13th Nov. 1874.

The notice of action and pleadings herein are set out in the appendix, and are to be referred to and taken as part of this case.

The question for the opinion of the court is, first, whether the notice of action is sufficient, and, secondly, whether, upon the facts above stated, the plaintiff is entitled to recover.

APPENDIX.

Notice, signed by Clennell and Fraser, the attorneys for the plaintiff, and addressed to the

Ex. Div.]

defendant, and dated 30th Nov. 1874, that at or soon after the expiration of one calendar month from the time of the said defendants being served with this notice, a writ of summons would be sued out of Her Majesty's Court of Exchequer against him the said defendant at the suit of the said plaintiff, for that he the said defendant, being one of the justices of the said borough of Newport, in the county of Monmouth, on the 13th Nov. 1874, contrary to the statute 24 & 25 Vict. c. 75, appointed or continued as clerk to the justices one C. B. Fox, who was at the time of such appointment or continuance, clerk of the peace of the county in which the said borough is situate, whereby he the said defendant became liable to forfeit and forfeited the sum of 100l. to the said plaintiff.

The declaration dated 19th Jan. 1875, in which the plaintiff sned, as well for himself as for the treasurer of the said borough of Newport, charged that the defendant, being one of the justices of and for the said borough, to which borough a separate commission of the peace had been theretofore granted under the provisions of the Municipal Corporations Act (5 & 6 Will. 4, c. 76), heretofore, to wit on the 13th Nov. 1874, after the passing of the Muncipal Corporations Act Amendment Act (1861) (24 & 25 Vict. c. 75), then being and acting as one of the justices of the peace for the said horough, did appoint one C. B. Fox to be clerk to the justices of the said borough, he, the said C. B. Fox, being at the time of the said appointment the clerk of the peace of and for the said county of Monmouth aforesaid, contrary to the form of the said statute, whereby, and by force of the said statute, the defendant became liable to forfeit, and forfeited, the sum of 100l., one moiety thereof bing payable to the said treasurer, and the other moiety thereof to the plaintiff'; and thereby and by force of the statute an action hath accrued to the plaintiff, who sues as aforesaid, to demand and have the said sum of 1001. of and from the defen

dant. The second count of the declaration charged that the defendant, being and acting as such magistrate as aforesaid, wilfully and unlawfully continued the said C. B. Fox as clerk to the said justices, between the 30th June 1874 and the 13th Nov. 1874, after the passing of the said last-recited statute, and contrary to the form thereof, whereby and by force of the said statute, the defendant became liable to forfeit, and forfeited, 1007., and an action has accrued to the plaintiff as aforesaid. Claim 2007.

Plea, not guilty (by Statutes 24 & 25 Vict. c. 75 (public Act), ss. 5, 8; 5 & 6 Will. 4, c. 76 (public Act), ss. 102, 133; 11 & 12 Vict. c. 44 (public Act), ss. 8, 9, 11, 12 (added by amendment).

The plaintiff's points: First, that the appointment of the said C. B. Fox as clerk of the peace for the said county, vacated the office of clerk to the justices of the borough of Newport. Secondly, that the said C. B. Fox was, from the 24th June 1874, incapacitated from filling the office of clerk to the justices. Thirdly, that the re-appointment of the said C. B. Fox to the said office was an offence on the part of all persons taking part therein, within the meaning of the statutes in such case made and provided. Fourthly, that acting as a justice of the peace for the borough of Newport, with the said C. B. Fox as clerk, was, after the said 24th June 1874, an offence within the mean. ing of the statutes in such case made and pro

[Ex. Div. vided. Fifthly, that the same, after the 9th Nov. 1874, was an offence. Sixthly, that the plaintiff is entitled to the judgment of the court upon the facts stated in the case. Seventhly, that the notice of action is sufficient.

The defendant's points.-First, that the appointment of the said C. B. Fox as clerk of the peace for the county of Monmouth did not vacate the office of clerk to the justices of the borough of Newport; secondly, that the said C. B. Fox was not, from the 24th June 1874, incapacitated from filling, or disqualified for being reappointed to the office of clerk to the justices; thirdly, that it was competent to the said justices, under the circumstances stated in the case, to reappoint the said C. B. Fox as their clerk, under the proviso contained in the 24 & 25 Vict. c. 75, s. 5; fourthly, that the declaration discloses no cause of action against the defendant; fifthly, that no offence against the said statute appears upon the facts stated in the case to have been committed; sixthly, that no sufficient notice of action was given to the defendant, pursuant to 24 & 25 Vict. c. 75, s. 5; and 5 & 6 Will. 4, c. 76, s. 133; and 11 & 12 Vict. c. 44, s. 9; seventhly, that an informer has no right to bring twenty-six actions for thirty-five penalties for one and the same alleged offence; eighthly, that the defendant is entitled to the judgment of the court.

The following is the section of the Municipal Corporations Act Amendment Act 1861 (24 & 25 Vict. c. 75), on the construction of which the question in the case turned :

Sect. 5. Whereas, by the 102nd section of the principal Act (5 & 6 Will. 4, c. 76), it is enacted" that it shall not be lawful for the justices of any borough to appoint or continue as such clerk to the justices, any alderman or councillors of such borough, or clerk of the peace for such borough, or partner of such clerk of the peace, or any clerk or person in the employ of such clerk of the peace; and that it shall not be lawful for the said clerk to the justices, by himself or his partner, to be directly or indirectly interested or employed in the prosecution of any offenders committed for trial by the justices, of whom he shall be such clerk as aforesaid, or any of them, at any court of gaol delivery, or general or quarter session; and that any person being an alderman, or councillor, or clerk of the peace of any borough, or the partner, or clerk, or in the employ of such clerk of the peace who shall act as clerk to the justices of such borough, or shall otherwise offend in the premises, shall, for every such offence, forfeit and pay the sum of 100l., as therein mentioned." And whereas the said provisions have been found to be insufficient for preventing the mischief intended to be prevented, it is hereby enacted that the said provisions of the 102nd section of the principal Act shall be repealed, and from and after the passing of this Act it shall not be lawful for the justices of any borough to appoint or continue as their clerk, any alderman or councillor of such borough, or the clerk of the peace of such borough, or of the county in which such borough is situate, or the partner of any such clerk of the peace, and it shall not be lawful for the clerk to the justices of any borough, by himself or his partner, or otherwise, to be directly or indirectly em. ployed or interested in the prosecution of any offender committed for trial by the justices of such borough or any of them at any court of gaol delivery or general or quarter sessions. And any person who shall in any wise offend in the premises shall, for every such offence, forfeit and pay the sum of 100l., one moiety thereof to the treasurer of such borough, to be paid over to credit and account of the borough fund, and the other moiety thereof, with costs of suit, to any person who may sue for the same in any of his Majesty's Courts of Record at Westminster. Provided, that nothing herein contained shall prevent the justices of any borough reappointing as their clerk any clerk of the peace or partner of such clerk of the peace of their borough, or of the county in which such

horough is situate, who at the time of the passing of this Act shall be, or who shall not at the time of such reappointment, have ceased to be, the clerk of such Justices.

A. T. Lawrence (with him was Patchett) for the plaintiff. The question arises under sect. 5 of the Municipal Corporations Act Amendment Act 1861 (24 & 25 Vict. c. 75). Sect. 5, the general effect of which section is to prevent justices appointing as their clerk one who is also a clerk of the peace for the county. The appointment of Mr. Fox as clerk of the peace for the county, in June 1874, ipso facto vacated his previous appointment of clerk to the justices, so that after that date he continued to be their clerk no longer. Moreover, I contend that, on the passing of the Act of 1861, he ceased to be justices' clerk, because, by the operation of the Act, being at that time the partner of the then clerk of the peace, he was disqualified for the office of clerk to the justices. Upon the passing of that Act, therefore, he was reappointed justices' clerk under the proviso in sect. 5, and so continued until his partner's death in 1874, when he was appointed clerk of the peace, and by accepting that office he vacated the office of clerk to the justices. That, I contend, is the effect of these Acts of Parliament. [POLLOCK, B.-If that be so, the effect would be that a person in that position would not only be liable to a penalty, but all his acts as clerk to the justices would be ipso facto void, and he would cease to be clerk; whereas the statute seems to contemplate a person holding the office and by doing so becoming liable to a penalty.] He vacates the office to this extent, that he must be reappointed, and if reappointed he is liable to a penalty, as also are the persons appointing him. The Act expressly says it shall not be lawful for the justices to "appoint or continne" as their clerk, &c. [KELLY, C.B.-Where is it found that they continued him as clerk after June 1874 ? The case seems to be silent as to the interval between June and Nov. 1874, when he was, as it is termed, reappointed.] It is clear, I submit, and found by paragraphs 8, 9, and 10 of the case, that he continued to act as justices' clerk from 24th June to his reappointment in November. That reappointwas a nullity and unlawful. The proviso, which was inserted to save vested interests existing at the passing of the Act, was exhausted, and to all purposes satisfied and fulfilled once, and for all, by his reappointment as justices' clerk in 1861. By sect. 102 of the 5 & 6 Vict. c. 76 (the Municipal Corporations Act), the justices are required to appoint a clerk; but by a proviso in that section certain persons are disqualified for the appointment, but not clerks of the peace for the county. Then sect. 5 of the Act of 1861, enlarged the area of disqualification, and included clerks of the peace for the county therein, with the proviso, however, saving vested interests then existing. By sect. 66 of the original Act, compensation was given to persons whose office should be abolished, or who should be reinoved from office by the provisions of the Act, or who should not be reappointed, and there was, therefore, no necessity for a proviso to sect. 102 in that Act similar to that in sect. 5 of the Act of 1861. But, if the defendants' contention is right, the effect will be that a proviso intended simply to save existing vested interests will operate to repeal, not only the provisions of the Act itself, but also the Municipal Corporations Act, because, according to the defendant's view, it will

[Ex. Div.

be competent by the use of that proviso, to appoint, at any time, and from time to time, a person to fill these two offices together, by first appointing him clerk to the justices, and then clerk of the peace, and then reappointing him as clerk to the justices. [Pollock, B.—Oh, no. What is meant is that he shall not, at the time of such appointment, have ceased to be the clerk of such justices. The whole proviso was clearly meant to provide for the case of a person who at the date of the Act was a justices' clerk. If it be, as you contend, that he ceased to be so on appointment as clerk of the peace, you would be entitled to succeed; but if it be a continuous holding of the appointment, and he did not cease to be clerk to the justices, then he comes within the proviso, and the reappointment must be taken together with his holding of the office at the date of the Act.] The penalty is recoverable, and the action is for continuing him in his office. If the proviso is to be read disjunctively and literally, according as the words are, the effect will be to repeal the Act; but ample force is given to it by reading it as securing Mr. Fox's vested interests from 1861 to 1874. [CLEASBY, B.--Sect. 102 deals with clerks of the peace for boroughs, and sect 5 extends to that office in counties. By its express terms the section supposes that that a borough clerk of the peace can act as justices' clerk, for he is to forfeit 100l. if he does so. He can act, therefore, as such clerk, and the office, therefore is not de facto vacated.] Whatever the status of the person taking the office may be, and whether his acts be lawful or not, the justice who continues him in the office is liable to the penalty. [CLEASBY, B.-The notice of action is for one act of appointing or continuing on the 13th Nov. and you cannot go back to the interval from June, and say they continued him. POLLOCK, B.-You are confined to the dates in the paragraph when the defendant took part in the meeting of the 9th Nov.] Unless justified by the proviso they are liable; but the proviso applies to re-appointing only. If the office was not vacated in June 1874, it was only because they continued him; then they re-appoint him, and say it is within the proviso, because he never ceased to be their clerk, thus setting up their own illegal act. The day before re-appointment he either was or was not their clerk. If he was, no re-appointment was necessary, and if he was not, it could only be because the accepting and acting in the office of clerk of the peace vacated the other office. He referred to the cases of

Coe (qui tam., &c.) v. Laurence, 22 L. J. 14, Q. B. ; 1 E. & B. 516; 17 Jur. 1115;

Reg. v. Fox, 1 L. T. Rep. N. S. 216; 1 E. & E. 729; 28 L. J. 157, M. C., affirmed in error, 2 L. T. Rep. N. S. 281; 1 E. & E. 746; 5 Jur. N. S.1 24.

H. Matthews, Q.C. (with him Jelf), for the defendant, contra.-The justices, who re-appointed or concurred in re-appointing Mr. Fox on the 9th Nov., acted within the proviso in sect. 5, and the defendant is not liable to this penal action, even assuming him to be within the penal portion of the section. Now in 1861, Mr. Fox was clerk to the borough justices, and therefore, on the face of the proviso, the act in which the defendant concurred is within its terms. But says the plaintiff, the word "or" in the proviso must be read "and," and the whole proviso be read as "who at the time of the passing of this Act shall be, and who shall not at the time of such reappointment have ceased to be, the clerk of such justices." Now such a change