Accordingly in the Chamberlain of London's Case, 5 Co. 63, an ordinance by the inhabitants for the repair of a Church or Highway is termed a By Law (See also Hob. 212.) In Clarke's C., 5 Co. 64, there is an ordinance for an assessment for the cost of erecting a Court House; and a case is referred to in Moore 580, of an assessment for keeping a town clean at the Assizes.

In the case of the Town of Orford, 1 Keb. 57, a By Law imposed a tax on the inhabitants for the repair of a bridge. And the Corporation of Winchelsea made an order or decree imposing a rate for maintaining beacons and watch-houses on the coast, which was upheld by the Court of Queen's Bench, In re Winchelsea Town. Sir T. Raym. 448, Trem. 586.

Again, the Tolls and dues which were leviable in certain towns, under the names of pontage and murage, for the repair of bridges and walls were described as ordinances in 5 Co. 63.

If this expression were expanded it would appear that the authority competent to do so had made a law or decree that the persons liable should pay a certain sum to enable the authority to execute the works referred to, and which that authority was required by law to execute.

This description of the action of the body was recognised by the judges in the case of Rogers v. Davenant, 1 Mod. R. 194, in the case of a Church Rate. They stated that the order of the parishioners for the making of a Church Rate was in the nature of a By Law which the greater part of the parish can make.

But in the great "Braintree Church Rate case,' which commenced in 1847 and continued for some years after, much dispute arose as to whether this action of the making of an Assessment was or was not the making of a By Law.

The Court of Queen's Bench, when this question was first brought before them, said in Gosling v. Veley, 7 Q. B. 451, "A By Law, though made by and applicable to a particular body, is still a law, and differs in its nature from a provision made on or limited to particular occasions; it is a rule made prospectively, and to be applied whenever the circumstances arise for which it is made to provide."

"In this sense it is certainly inapplicable to the resolution of a vestry in any particular case of making a Church Rate, or ordering any other mode of meeting a particular demand in respect of the Church or services therein."

In the subsequent proceedings in the Exchequer Chamber and in the House of Lords, in the case of Veley v. Burder, 12 Ad. & E. 303; Gosling v. Veley, 12 Q. B. 328; 19 L. J. (Q. B.) 135; 17 Jur. 939; this ruling of the Queen's Bench was much canvassed, and several of the Judges who pronounced judgment upon the question involved in that case dissented from it. They relied strongly upon the various ancient authorities above cited, where the levying of Assessments are stated to be By Laws.

Parke, B., in the Exchequer Chamber, remarked that this "is a term used by Lord Coke in 5 Co. 63a with respect to a Church Rate, which is equally applicable to an order, on the particular occasion and limited to it, and to a prospective order generally applicable to all future cases; just as in Parliament there may be an Act relating only to a particular person or occasion, and neither general nor prospective. The order as to the mode of repairing, though applicable to the particular occasion, is as much a law, and obligatory as such, so far as it relates to the individuals bound by it, as if it had provided for other occasions."

In the judgment which was pronounced by the House of Lords upon the case there was no reference

ed from

By

to this disputed point, and it remains unsettled by judicial authority.

Contracts to It is right to observe that the terms of contracts be distinguish- must be distinguished from By Laws, as the obligations created by both are very different. In contracts there must be mutuality of consideration, but not so in By Laws.

Laws.

Cases illustrative of the definition of By Laws.

In some codes of Railway By Laws will be found what are clearly only matters of contract, and consequently are the subjects of discussion in Courts of Law as such, and not as By Laws.

I must, in conclusion, refer to two cases as farther explaining the legal application of this term of By Law.

Under an Inclosure Act certain lands having been allotted to a municipal incorporation, the governing Body of that Corporation made a rule or ordinance for the letting of the lands, and ordered that certain sums should be paid annually out of the rents of those lands by the attorneys of the Corporation to certain members thereof. This was held by the Court of Exchequer to be a By Law.-Hopkins v. The Mayor of Swansea, 4 M. & W. 621; 8 M. & W. 901.

But where a Gas Light Company was empowered by Statute to make By Laws under seal for its government and for regulating the proceedings of the Directors, officers, and servants, at a meeting of the Company a resolution was passed, not under seal, that a remuneration should be allowed to every Director for his attendance. It was held that this was not a By Law within the Statute.-Dunston v. Imperial Gas Light Co., 3 B. & Ad. 125.

(7)

CHAPTER II.

OF THE AUTHORITY FOR MAKING THE BY LAW.

I have now to consider the authority by which the By Law is made. This involves the inquiry as to who may make it, and under what authority they act.

It will be seen that the second inquiry will dispose of the first.

Modes of

Now the authority is established-(1) By necessary implication; (2) By Charter; (3) By express Statute; showing Au(4) By Custom.

thority.

1. By Impli

1. As to the Implication. It is laid down in many cases and decisions that where a Corporation is cation. created by Charter which contains no provision on the subject, the Corporate body has, as a necessary inci lent, power to make rules, ordinances, and Statutes for the rule, government, and well ordering of the subjects of the Incorporation, and in relation to the purpose for which the same is instituted. See the case of Sutton's Hospital, 10 Co. 31a; Jenk. Cen. 273; Norris v. Staps, Hob. 211, 1 Roll. Abr. 513; Davenant v. Hurdes, Moo. 584; City of London v. Wood, 12 Mod. 686; The K. v. Westwood, 7 Bing. 1; and the judgment of Tindal, C.J., in Veley v. Burder, 12 Ad. & E. 303.

It is therefore expressed in the case from Coke's In Corporate Report, and from that in Hobart, that it is un- Bodies. necessary that such authority should be granted by the Charter which creates the Corporation.

As this authority is implied in the case of a Corporation created by Charter, so its existence will be implied in Corporations which exist by Prescription. -Corporation of Colchester v. Goodwin, Cart. 110.

In Non-Corporate Bodies.

Again, where a Franchise is granted for the benefit of a Body Politic, that body has power incidentally to regulate the exercise of this Franchise for the public benefit by By Laws.

Hence a By Law was made by the Corporation of the City of London that a person elected to the office of Sheriff should not be exempted from it (unless he swore that he was not worth £1000, and brought six approved persons to be his compurgators), and that upon proclamation made in the Guildhall he should appear and enter into bond to accept the office or pay the sum of £400. This was held to be a good By Law, as it was made only to secure substantial persons to hold the office; and as every member had the benefit of the Franchise, so he was compellable by penalty to undergo the charge to which the Corporation was liable.

Here power was given to the City to appoint sheriffs, and it would have been vain to give such power if the City could not compel persons when elected to serve.

This was decided in the case of The City of London v. Vanacre, reported in 1 L. Raym. 496; 1 Salk. 142; Carth. 482; 5 Mod. 439; 12 Mod. 270.

So also in former days, where there was no prescribed or prescriptive mode of election in Municipal Corporations, the general Body of the Corporation could by a By Law regulate that mode.-Newling v. Francis, 3 T. R. 196.

I shall have occasion to notice hereafter how the Corporate body was bound to execute this power, though since recent Legislation regarding such Corporations the power does not exist with reference to those which are included in the Municipal Corporations Acts.

I find that this doctrine as to the implied power of Corporations was extended to other bodies of less definite character. Thus—