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1842.

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V.

THE

stated for impeaching their determination, if it could be questioned at all in a Court of Equity. And, 3dly, That the information was multifarious, having ATTORNEY- been exhibited against the corporation and the ApGENERAL. pellant for several and distinct matters not depending on each other, and in some of which the Appellant was not in any manner concerned; and for that reason the Lord Chancellor should, as the Master of the Rolls did (f), dismiss the original information.

The portions of the Act 5 & 6 Will. 4, c. 76, material for consideration in the discussion of these propositions, are the 58th, 65th, 66th, 67th, and 92d sections. It is clear on the true construction of the 66th section that the Court of Chancery was not intended to have any jurisdiction over the matters complained of in the information, as against the Appellant: that the town-council were to hear and determine the question of compensation; and that their determination was subject to appeal only to the Lords of the Treasury. The question then is, whether the Act of Parliament has not provided a jurisdiction exclusive of all other jurisdictions? The Lord Chancellor conceived that the Act had created a trust of the borough fund, which therefore was a fit subject for the protection of a Court of Equity; and his Lordship, in delivering that opinion, relied on his own judgment, concurring in that point with the Master of the Rolls in the case of The Attorney-General v. Aspinall (g).

The grounds on which the Act is there said to create a trust of the borough fund are, that that fund is appropriated to public purposes, and therefore a charitable trust is created; and over all charitable trusts the Court of Chancery has, and is bound to

(f) 2 Keen, 190.

(g) 2 Myl. & C. 623, and 1 Keen, 539.

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exercise, jurisdiction. That is the process of reasoning in the Lord Chancellor's judgment in The Attorney-general v. Aspinall. If it shall be finally decided that a trust of the borough fund has been created, ATTORNEYcalling for the interposition of the Court of Chancery, the result will be that that Court will be bound to interfere with every payment out of that fund, even the salary of the mayor and of other officers, and the expenses of making and revising the burgess lists; the powers of the Court must, in fact, be exercised in a manner different from the usual exercise of them in the administration of trusts. But there is not any general jurisdiction in the Court of Chancery to prevent injustice: one of its own doctrines is, that its powers are limited to trusts, as described in the statute of Elizabeth (h); Williams v. Kershaw (i), Ellis v. Selby (k). Where a right is created by statute, and a special jurisdiction is at the same time created for ascertaining and enforcing it, the adjudication of the right must fall within the jurisdiction so created, and be confined to that particular mode of enforcing the right, in exclusion of every other jurisdiction. The jurisdiction created is not cumulative, except where the right existed before, in which case the ordinary jurisdiction is not ousted, except by express words of exclusion in the Act, or necessary implication; Griffith v. Apprice (1), Rex v. Robinson (m), Cates v. Knight (n), Beckford v. Hood (o). The jurisdiction of the Court of Chancery is resorted to in this case on the ground that the particular jurisdictions created by the 66th section of the statute are unable to redress the alleged

(h) 43 Eliz. C. 4.

(i) 5 Clark & F. 111 (note).

(k) 7 Sim. 352; 1 Myl. & C. 286. (1) Cro. Eliz. 104.

(m) 2 Burr. 800.

(n) 3 T. Rep. 442.
(0) 7 T. Rep. 620.

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wrong; and the case of The Attorney-General v. Brown (p) is referred to. But here the acts complained of fall precisely within the particular jurisdicATTORNEY- tions provided by the statute, which therefore exclude GENERAL the ordinary jurisdiction. The mischievous conse

บ. THE

quences that will arise from assuming the ordinary jurisdiction of the Court of Chancery to be applicable to this case, will be to embarrass that Court with the perpetual squabbles of different political parties succeeding each other; one party applying to the Court to set aside what the other party had done in respect of the application of the borough fund: so that in inquiring, according to the principles of that Court, into instances of abuse, circumstances of conduct must be investigated, as in cases of charity, and party controversies will, therefore, come to be judged of; the individual who must institute such inquiries being, in addition, a political officer of the Crown, subject to party influences, and who may, at any time, have a successor in office, who, acting under similar influences, will be led to discontinue investigations entered on by his predecessor. The Court will, in fact, be an arena for political discussion.

As to the Appellant's right to compensation, the Master of the Rolls was of opinion that, although he might have resigned, still his case fell within the special jurisdiction provided by the 66th section, taken in connexion with the provisions of the 58th and 65th sections. The Lord Chancellor thought otherwise, and that by the words "or who shall not be re-appointed as aforesaid," in the 66th section, was intended a class of officers distinct from those whose offices should be abolished, or who should have been

(p) 1 Swanst. 268.

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removed; and that the words "as aforesaid" had the effect of limiting the class of officers to those comprehended in the 58th section, that is annual officers not reappointed. But these words are to be taken in ATTORNEYconnexion with the mode of appointment, and do not limit the class; they refer to and mean those who shall not be reappointed according to the provisions of the Act; otherwise their meaning is not limited, and they exclude persons who could have no title to compensation.

[The Lord Chancellor :-If a person voluntarily resigns, how can it be said that he is removed?]

Because he is not reappointed.

[Lord Chancellor :-That word implies a continuance in the office up to the time when the office expires. How can it be applied to a person who resigns?]

Nothing can be inferred from the resignation of the Appellant, because that arose from necessity. The Legislature did not intend it should be compulsory on officers to continue under the new state of things; but it intended that they should resign if they thought fit, and there are words in the Act answering to that intention. The Appellant might certainly have held the office of town-clerk a few days longer; but as he held several offices which were declared to be incompatible with each other, he was forced by the Act to elect between them sooner or later. The Appellant does not come within the description of officers removed, or whose offices were abolished, but he continues in office till he is forced to resign; he is not reappointed, and in that view he cannot come within the description of officers removed. The Lords of the Treasury, and the Court of Queen's Bench, both considered, in the case of the common-clerk of ShrewsG G

VOL. VIII.

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bury (q), that all the offices dependent on that of town-clerk should be included in the estimate of compensation, and the same appears from the Treasury ATTORNEY- minute given in a note to the case of The Queen v. GENERAL. The Lords of the Treasury, in the matter of Tib

v. THE

bitts (r). The present is a claim with reference to a variety of offices depending on the office of townclerk. That fact appears upon the information, which sets out an examination of the Appellant before a Committee of the House of Commons. He brought in a claim for the office of town-clerk, including in his claim other offices which he was obliged to resign as incompatible with offices which he retained. If the claim were false in amount, it would in the language of the statute be only excessive, and that excess might be corrected by the special jurisdiction provided by the Act for that purpose. The Treasury minute before referred to states that, by the provisions. of the Act, compensation was to be made to all corporate officers whose offices should be abolished, or who should be removed from office under the Act, or who should not be reappointed and in fixing the amount of compensation, not only the salary and just emoluments of town-clerk were to be taken into consideration, but also the profits of the legal business executed by him in his official capacity, and the just emoluments of other corporate appointments held by him in conjunction with the office of town-clerk.

[The Lord Chancellor :-That is in pursuance of an undertaking given by Lord Melbourne in this House on the discussions on the bill: but the compensation was to be made for offices corporate usually held

(q) The Queen v. The Lords of the Treasury, in the matter of Loxdale; 10 Adol. & E. 179. (r) 10 Adol. & E. 375,

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