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twelve months, become, and (until they have suffered MUNICIPAL their punishment, or such as is substituted for it, or COUNTY have received a free pardon) continue incapable of COUNCILS. holding (inter alia) any civil office under the Crown, or other public appointment, or of exercising any right of suffrage or other parliamentary or municipal franchise whatever: 33 & 34 Vict. c. 23, s. 2. It is doubtful whether "other public appointment" includes a municipal office; but, however this may be, such a person would be disqualified, because, not having the municipal franchise, he would not be entitled to be enrolled as a burgess: see ante, p. 3.

in office.

The Public Bodies Corrupt Practices Act, 1889 (52 Corruption & 53 Vict. c. 69), was passed to prevent bribery and corruption of, and by, members, officers, or servants of corporations, councils, &c. It makes corruption in office a misdemeanor; as to what amounts to corruption in office, see section 1, post, p. 509. Any person convicted of such an offence is, at the discretion of the Court before which he is convicted, liable (inter alia) to be adjudged incapable of being elected or appointed to any public office for seven years from the date of his conviction, and to forfeit any such office then held by him; and in the event of a second conviction for a like offence, he is liable to be adjudged to be for ever incapable of holding any public office: section 2. This Act applies to county councils, town councils, and other bodies having statutory powers as to local government, public health, poor law, &c.: section 7.

ruptcy.

By section 39 (1) (a) of the Municipal Corporations BankAct, 1882 (45 & 46 Vict. c. 50), it is enacted that if a mayor, alderman or councillor, is declared bankrupt, or compounds by deed with his creditors, or makes an arrangement or composition with his creditors, under the Bankruptcy Act, 1869, by deed or otherwise, he shall thereupon immediately become disqualified, and shall cease to hold the office. And by sub-section 3, the disqualification of such a person ceases, as regards subsequent elections in case of bankruptcy, on his

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MUNICIPAL obtaining his order of discharge, in case of a compoundCOUNTY ing or composition on payment of his debts in full, and COUNCILS. in case of an arrangement on his obtaining his certificate

of discharge (7). This section is to be construed and to have the same effect as if reference were made to the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), instead of to the Bankruptcy Act, 1869: see section 149 (2) of the Bankruptcy Act, 1883.

By section 32 (1) of the Bankruptcy Act, 1883, it is further enacted that where any person is adjudged bankrupt, he shall, subject to the provisions of that Act, be disqualified for being elected to, or holding or exercising the office of mayor, alderman, or councillor. But by sub-section 2 such disqualification is to cease, if and when either the adjudication of bankruptcy is annulled, or the bankrupt obtains from the Court his discharge, with a certificate to the effect that his bankruptcy was caused by misfortune without any misconduct on his part (m).

The effect of these sections would seem to be, that as regards compositions and arrangements by holders of corporate offices with creditors, section 39 remains unaltered; but as regards any person adjudged bankrupt, the disqualification for being elected does not cease unless he, in addition to obtaining his discharge (which was formerly sufficient under section 39 (3)), also obtains a certificate under section 32 (2).

The Court may grant or withhold such certificate as it thinks fit, but any refusal of such certificate is subject to appeal.

Where the bankruptcy is not solely the result of some accident over which, or over the conducing causes of which, the bankrupt had no control, it is not "caused by misfortune" within the meaning of sub-section 2;

(1) An auditor who makes a composition or arrangement is not disqualified, as section 39 applies only to a mayor, alderman, or councillor.

(m) This section is expressly applied to members of a county council by the Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 9.

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the onus of proving that the bankruptcy was caused MUNICIPAL solely by misfortune is upon the bankrupt, and it by no means follows that because there was no misconduct on cOUNCILS. his part the bankruptcy must have been caused by misfortune: Re Campbell (Lord Colin), 20 Q. B. D. 816, C. A.; 5 Morr. 94; 59 L. T., N. S. 194. See also Re Burgess, Ex parte Burgess, 4 Morr. 186; 57 L. T., N. S. 200. But even when such a certificate is not obtained, the disqualification does not, since the passing of the Bankruptcy Act, 1890, exceed a period of five years from the date of discharge: section 9.

Section 32 of the Bankruptcy Act, 1883, has not a retrospective operation, and the disqualifications created by it do not affect a person made bankrupt before the passing of the Act: Bourke v. Nutt, (1894) 1 Q. B. 725; 63 L. J., Q. B. 497; 42 W. R. 388.

Under the old law (of which section 39 is practically a re-enactment), it has been held that immediately upon bankruptcy the person so becoming bankrupt, &c., is disqualified, and ceases to hold office, and that upon the proper notice being given, the office becomes void for all purposes: Hardwick v. Brown, L. R., 8 C. P. 406; 28 L. T., N. S. 502; see Reg. v. Leeds (Mayor, &c.), 7 A. & E. 963; 7 L. J., C. P. 80. Where, therefore, no notice. was given, and the respondent, who had compounded with his creditors for 3s. 6d. in the pound, resigned his office, and was re-elected, the Court held that, by reason of his having compounded with his creditors, he ceased to hold, and could not therefore resign, his office, and that the election which proceeded upon the assumption that there could be such a resignation was a void election, the course pointed out for declaring the office vacant not having been followed, and further that the respondent had not qualified for re-election, as he had not paid his debts in full: Ibid. And where a town councillor had only given notice of resignation of his office before the commencement of bankruptcy proceedings, but had not resigned, and subsequently paid less than 20s. in the pound, he was held to be disqualified

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MUNICIPAL for election because, having become disqualified by the bankruptcy proceedings, he continued to be disqualified COUNCILS. unless and until he complied with the conditions of re-qualification: Futcher v. Saunders, 49 J. P. 424.

Returning officer.

And where an alderman had made a composition with his creditors, but had executed no composition deed, nor had any composition proceedings been taken under the Debtors Act, 1869, but he had executed a bill of sale to a person not a creditor to secure a sum of money advanced by him to meet the amount of the composition, and a meeting of the corporation had been summoned by notice for the purpose of declaring his office void and electing a successor, the Court, at the instance of the alderman, granted an injunction restraining the corporation from proceeding under their notice, on the ground (inter alia) that the plaintiff had not become disqualified from holding office: Aslatt v. Corporation of Southampton, 16 Ch. D. 143; 50 L. J., Ch. 31.

It has been doubted by the Court of Appeal whether there was power to grant the injunction in such a case: see North London Ry. Co. v. Great Northern Ry. Co., 11 Q. B. D., at p. 37. But Kekewich, J., has since granted an injunction to restrain a school board from declaring the seat of a member vacant by reason of absence, and from proceeding to a new election : Richardson v. Methley School Board, (1893) 3 Ch. 510; 62 L. J., Ch. 943; 3 R. 701; 69 L. T., N. S. 308; 42 W. R. 27.

The case of Reg. v. Cooban, 18 Q. B. D. 269; 56 L. J., M. C. 33, was decided upon the Public Health Act, 1875 (38 & 39 Vict. c. 55); it was there held that the mere assignment of a candidate's property by deed for the benefit of his creditors, no sum being mentioned therein as a composition to be paid on the debts scheduled, was not a composition with creditors within the meaning of r. 5 (repealed).

A mayor who is returning officer for a municipal borough is incapable of being elected to the office of councillor or alderman unless another is appointed

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returning officer in his place: Reg. v. Owens, 2 E. & E. MUNICIPAL 86; 28 L. J., Q. B. 316; Reg. v. White, L. R., 2 Q. B. COUNTY 557; 36 L. J., Q. B. 267; see Reg. v. Blizard, L. R., COUNCILS. Q. B. 55; 36 L. J., Q. B. 18; and Reg. v. Morton, (1892) 1 Q. B. 39; 61 L J., Q. B. 39; 40 W. R. 109. So, also, an outgoing alderman, who presides at an election, is disqualified for election: Fanayan v. Kernan, L. R. Ir., 8 C. P. 44.

The objection to a returning officer being eligible for election is that he would be a judge in his own cause, and might return himself improperly. This objection applies equally to a returning officer at a county council election, and 54 & 55 Vict. c. 68, s. 6, does not, it would seem, enable him, although not paid, to act as returning officer, and yet be eligible for election. The effect of this section is to put him, if unpaid, in the same position as a mayor, under 45 & 46 Vict. c. 50, s. 12: see ante, p. 7.

A person is not by reason of being an alderman dis- Alderman. qualified for election to the office of councillor; the acceptance of the latter office vacates the former: Reg. v. Mayor of Bangor, 18 Q. B. D. 349; 56 L J., Q. B. 326, C. A.; affirmed in the House of Lords upon other points, Lord Fitzgerald expressing doubts as to the decision upon the above point being correct: 13 App. Cas. 241; 57 L. J., Q. B. 313.

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If the mayor, or an alderman, or councillor, is (except Absence in case of illuess), continuously absent from the borough, borough. being mayor, for more than two months, or being alderman, or councillor, for more than six months, he becomes disqualified, and ceases to hold the office: 45 & 46 Vict. c. 50, s. 39 (1) (b).

Where a person becomes thus disqualified, he is liable to a fine, but the disqualification as regards subsequent elections ceases on his return: sub-section 4.

As regards county aldermen and county councillors, twelve months are substituted for six months in the above section: 51 & 52 Vict. c. 41, s. 75 (14). And by sub-section (16) (c) of the same section, a chairman or