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ROBERT HENNING PARR - - - - - Appellant.
1842: Feb. 17, 18,
HER MAJESTY's ATTORNEY-GENERAL,
The Act 5 & 6 W. 4, c. 76, creates a public trust of the property Municipal
of municipal corporations and of the funds raised for the purposes Corporations of the Act, subject, like other property held in trust, to the
Actjurisdiction of the Court of Chancery.
fund. Although the Act contains provisions for correcting abuses in respect Trust.
of the borough property, there is nothing in it to exclude the ordi- Jurisdiction. nary jurisdiction of the Court of Chancery to prevent breaches Multifariousof trust.
ness. Held accordingly, by the Lords (affirming the judgment of the
Court of Chancery), that a bond given by the town-council of a borough, to secure compensation out of the borough fund to an officer, for the profits of offices, some of which he continued to
hold, was a breach of trust and illegal. Quære, whether compensation can, under the Act, be given for the
profits of an office which the officer voluntarily resigned. It is difficult to lay down rules as to multifariousness applicable to
all cases; but if a case is an entire case as against one defendant, an objection for multifariousness cannot be made by another defendant, who is connected only with some portion of the whole case.
IN Michaelmas term 1837, Her Majesty's Attorneygeneral filed an informatiou in the Court of Chancery, at the relation of the Hon. William Francis Spencer Ponsonby, and other persons, ratepayers in the borough of Poole, in the county of Dorset, against the mayor, aldermen, and burgesses of that borough, and Thomas Arnold and the Appellant, stating that the burgesses and inhabitants thereof, previously to the passing of the Municipal Corporations Reform, · Act, 5 & 6 IVill. 4, c. 76, were a body corporate and VOL. VIII.
politic, under the name of “the mayor, bailiffs, PARR burgesses, and commonalty of the town of Poole;”
and that since the passing of the said Act, the burgesses THE ATTORNEY- and inhabitants were a body corporate and politic,
under the name of “ the mayor, aldermen, and burgesses of the town and borough of Poole.” The information, after setting out the 58th, 65th, and 66th sections of the said Act (a), stated that in the year
(a) By sect. 58, it is enacted, “ that the council of every borough, on the 9th day of November, shall appoint a fit person not being a member of the council, to be the town-clerk of such borough, who shall hold his office during pleasure, and in any borough may be an attorney, &c.; and the council of every borough shall, in every year, appoint another fit person, not being a member of the council, to be the treasurer of the borough, and also such other officers as have been usually appointed in such borough, or as they shall think neces. sary, &c., and may from time to time discontinue the appointment of such officers as shall appear to them not necessary to be reappointed, &c.; and in case of a vacancy in any such office as aforesaid, by death, resignation, removal or otherwise, the council of such borough may appoint another fit person in the place of the person so making such vacancy; provided that the town-clerk and treasurer shall not be the same person.”
By sect. 65, it is enacted, “ that the council elected under this Act in any borough, shall have power to remove from his office every bailiff, treasurer, or chamberlain, and every other ministerial or executive officer of such borough and body corporate, who shall be in office at the time of the first election of councillors under this Act: and every such bailiff, treasurer, or chamberlain, and every other ministerial or executive officer in such borough, shall continue to act in the same capacity as heretofore, and to execute all the duties heretofore belonging to his office, and be entitled to have the same salaries, fees and emoluments as he would have had if this Act had not passed, until he shall be removed from his office, and no longer, unless he shall be reappointed according to the provisions of this Act," &c.
By sect. 66, it is enacted, “ that every officer of any borough or county, who shall be in any office of profit at the time of the passing of this Act, whose office shall be abolished, or who shall be removed from his office under the provisions of this Act, or who shall not be reappointed as aforesaid, shall be entitled to have an adequate compensation, to be assessed by the council and paid out of the borough fund, for the salary, fees and emoluments of the office which he shall so cease to hold, regard being had to the manner of his appointment to the said office, and his term or interest therein, and all other circumstances of the case ; and every person entitled to such compen
1833 the Appellant was elected by the then corporation of the said borough to the office of town-clerk,
sation as aforesaid, shall deliver to the town-clerk, or, in case such THE person shall himself be town-clerk, then to the treasurer of the ATTORNEYborough, a statement under the hand of such person, setting forth the amount received by him or his predecessors in every year during the period of five years next before the passing of this Act, on account of the salary, fees, emoluments, profits and perquisites in respect whereof he shall claim such compensation, distinguishing the office, place, situation, employment or appointment in respect whereof the same shall have been received, and containing a declaration that the same is a true statement, according to the best of the knowledge, information and belief of such person, and also setting forth the sum claimed by him as such compensation; and the town-clerk or treasurer, as the case shall be, shall lay such statement before the council, who shall take the same into consideration and determine thereon; and immediately upon such determination being made, the person preferring such claim, if he shall not himself be the town-clerk, shall be informed thereof by notice in writing under the hand of the townclerk; and in case such claim shall be admitted in part and disallowed in part, such notice shall specify the particulars in which the same shall have been admitted and disallowed respectively; and in case the person preferring such claim shall think himself aggrieved by the determination of the council thereon, or in case one-third of the members of the council shall subscribe a protest against the amount of compensation allowed by the determination of the council, as excessive, it shall be lawful for the person preferring such claim, or any member of the council who shall subscribe such protest, to appeal to the Lords Commissioners of His Majesty's Treasury, who shall thereupon make such order as to them shall seem just; and such order, signed by three or more of such Lords Commissioners, shall be binding on all parties : Provided always, that if the council shall not determine on such claim within six calendar months after the aforesaid statement shall be delivered to the town-clerk or treasurer, as the case shall be, such claim shall be considered as admitted : Provided also, that it shall not be lawful for any member of the council to subscribe such protest as aforesaid, except within such period of six calendar months : Provided also, that the person preferring such claim, if any member of the council shall so require, upon receiving notice in writing signed by the town.clerk, unless such person shall himself be town-clerk, in which case no such notice shall be requisite, shall from time to time attend at any meeting or adjourned meeting of the council for the investigation of such claim, and then and there, upon his oath or solemn affirmation to be taken or made before the mayor, who is hereby authorised to administer the same, shall answer all such questions as shall be asked by any member of the council touching the matters set forth in the statement subscribed by such person as aforesaid, and produce all books, papers and writings in his possession, custody or power, relating thereto : Pro
and was also appointed clerk of the peace of the tuwn and county of the town of Poole; and he continued to hold both these offices until after the passing of the said Act: That he was also appointed to, and held at and subsequently to the passing of the said Act, several other offices, the appointment to which did not belong to the said corporation ; viz. the offices of clerk to the magistrates, clerk to the coroners, undersheriff, clerk to the commissioners of land-tax and assessed taxes, solicitor to the overseers and board of guardians, and clerk to the commissioners for lighting and watching the said town: That soon after the passing of the said Act, he resigned, or expressed his intention to resign, the offices of town-clerk and clerk of the peace, and to retain the office of clerk to the magistrates, the holding of which office and the office of clerk of the peace, by the same person, being prohibited by the said Act; the Appellant being confident of being appointed clerk to the new magistrates under the said Act, and the last-mentioned situation being more appropriate to the appointment which he held of clerk to the guardians of the poor, and he conceiving at the same time that it was necessary for him to resign his situation of town-clerk : That on or before the 1st of January 1836, the Appellant resigned the office of town-clerk, and also the office of clerk of the peace; and in consequence of such resignation, he was not re-elected to the former, nor reappointed to the latter office, but Thomas Arnold was elected
vided also, that every such officer who shall be continued in or reappointed to such office under the provisions of this Act, and who shall be subsequently removed from such office for any cause other than such misconduct as would warrant removal from any office held during good behaviour, shall be entitled to compensation in like manner as if he had been forthwith removed under the provisions of this Act, and had not been continued in or reappointed to such office."
and appointed to both offices, the Appellant retaining 1842. the office of clerk to the magistrates and the other PARR offices before mentioned. The information then stated that on the 4th of ATTORNEY
GENERAL. August 1836, a statement and claim was delivered in to the said corporation by the Appellant, under the provisions of the said Act of Parliament, for compensation for the loss of the office of town-clerk, the only office in respect of which he was entitled to claim compensation, and he claimed for such compensation the sum of 4,835 l., including in such statement and claim the profits derived from the office of town-clerk, clerk of the peace, and all the other offices before mentioned, although the same did not appear by the statement: That the said claim was not submitted to the town-council of the borough until the 5th of October 1836, when a meeting was held for the purpose of taking the claim into consideration, and one-third of the council present at the meeting objected to the claim being received, on the ground that the Appellant had voluntarily resigned the office of townclerk, as well as the office of clerk of the peace: That on the 14th of October, to which day the said meeting was adjourned, the town-council again met to consider the claim, and the Appellant was examined to the accuracy of the accounts furnished by him in support of it; and although the claim could have been disposed of on that day, and notwithstanding that one-third of the council present protested against any adjournment, yet adjournments took place, first, to the 9th, and afterwards to the 14th of November : That on the 10th of October 1836, the list of burgesses was, according to the provisions of the said Act, revised by the mayor of the borough, the Appellant acting as one of his assessors, when about eighty persons, who