Abbildungen der Seite
PDF
EPUB

1842.

PARR

1).

GENERAL

delivered up to be cancelled, or else to stand and be a security only for the compensation (if any) to which the Appellant might be entitled in respect of the office

THE of town-clerk: And, if necessary, that it might be re- ATTORNEYferred to the Master to inquire and certify what compensation (if any) the Appellant was entitled to under the provisions of the said Act, in respect of the office of town-clerk; and that on payment of what the Master should certify to be the amount of such compensation, the Appellant might be decreed to deliver up the said bond to be cancelled : And that in the meantime the Appellant might be restrained by injunction from demanding or receiving from the said mayor, aldermen, and burgesses, and they might be restrained from paying to him the said sum of 4,500 l., or any part thereof: And that the Appellant might in like manner be restrained from commencing any action or other proceedings against the said mayor, &c. upon the said bond, or from assigning the same.

The Appellant demurred to the information, for want of equity, for multifariousness, and also for want of parties inasmuch as the persons who had paid the instalments of the rate alleged by the information to have been levied by the corporation, were not made parties. The corporation and Thomas Arnold also demurred jointly, for want of jurisdiction and want of parties. Both demurrers came to be argued before the Master of the Rolls; and they were allowed by his Lordship's orders, dated the 14th of December 1838(6).

The Attorney-general appealed to the Lord Chancellor. His Lordship heard the demurrers argued for several days in January 1838, and by his judg

(6) 2 Keen, 190.

1842,

PARR

ment, on the 7th of November 1838, declared them bad on all the grounds except for want of parties; and his Lordship allowed them on that ground alone, but gave the relators leave to amend (c).

THE ATTORNEYGENERAL

IS

The information was accordingly amended by therein stating that the rates due from several of the eighty persons mentioned as having been placed upon the roll of burgesses, were, previously to the revision of the burgess list, paid or tendered to the overseers by the confidential clerk of the Appellant, with his knowledge and authority; and that the Appellant afterwards gave to one of such eighty persons a written indemnity or guarantie against any rates and taxes he might be called upon to pay in consequence of becoming a voter: that at the election for new towncouncillors, which took place on the 1st of November 1836, the Appellant was active on behalf of the candidates who afterwards voted for the compensation, and he employed and paid, out of his own monies, clerks and other persons to assist in their election. The information was further amended by striking out the statements as to the illegality of the rate, and the charges that the instalments of the rate, which had been paid, had been paid under protest, and that the amount ought to be returned to those who had paid the same; and by striking out of the prayer so much thereof as prayed relief consequent upon such statement and charge (d).

To the amended information the Appellant demurred for want of equity. This demurrer came to be argued before the Master of the Rolls on the 7th of

(c) 4 Myl. & C. 17; see p. 33.

(d) The passages stiuck out, on amendment, are not inserted in the above statement of the information.

February 1839, and was overruled by his Lordship’s 1842. order of that date.

PARR Against this order, and the Lord Chancellor's order 0. of the 7th of November 1838, the Appellant appealed ATTORNEYto this House.

THE

GENERAL

Mr. Bethell and Mr. James Russell, for the Appellant:- The amendments introduced in the information went far beyond the leave given by the Lord Chancellor (e). Instead of adding the necessary parties, the Attorney-general struck out the allegations relating to the rate, and introduced a new charge wholly unconnected with the defect of parties. There was no discussion on that point, nor indeed any argument before the Master of the Rolls on the demurrer to the amended information ; his Lordship having, upon the opening of the case for the demurring party, intimated that he did not conceive he had any discretion after the decision by the Lord Chancellor, overruling the demurrers to the original information on all the grounds except for want of parties.

The propositions which the Appellant has now to support are these : 1st, That neither the original nor amended information states a case, according to which a Court of Equity would have jurisdiction as to the matters referred to, or a case according to which the informant would be entitled to any relief if the Court had jurisdiction in the matter. 2dly, That the Appel. lant not having been reappointed to the office of town-clerk, was entitled to compensation under the provisions of the Act 5 & 6 Will. 4, c. 76, and that the Act empowered the town-council to determine the amount of compensation; and no sufficient ground is

[ocr errors]

v. THE

1842. stated for impeaching their determination, if it could PARR

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

[merged small][ocr errors]

V. THE

GENERAL

exercise, jurisdiction. That is the process of reason- 1842. ing in the Lord Chancellor's judgment in The Attor

PARR ney-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 (2), 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 (0). 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

[ocr errors][ocr errors]
« ZurückWeiter »