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PARR

v. TAE

GENERAL

other seeking relief to the inhabitants of the borough 1842. against a rate alleged to have been improperly made and levied. There is no privity between the Appellant and inhabitants, and no connexion between the ATTORNEYAppellant's claim on the borough fund and the inhabitants' right to have the rate quashed, and the monies paid by them repaid. It is true those monies have been paid into the general fund of the borough, and therefore subject to the payment of the Appellant's bond; but if the Attorney-general filed an information to reform or recal the rate, suggesting that it had been made for an unlawful purpose, a person who had only a claim on the borough fund would not be a proper party to that suit. It is clear that this information is severable into two distinct suits, to be supported on different principles ; to one of which the Appellant might be a proper party, but not to the other.

[The Lord Chancellor :- The information states that the rate was made to provide for the payment of the bond ; and one part of it seeks to restrain the corporation from enforcing the rate, and the other part seeks to restrain them from paying the bond out of the borough fund.]

All the statements and charges in the information in respect of the rate may stand without the Appellant being a party; and all the charges respecting the bond may stand against him without the corporation. The late Lord Chancellor, in his judgment in the Court below on this objection to the information, says, “ If Mr. Parr had nothing to do with some part of the case, he could not, I apprehend, complain. If it were competent for him to do so in such a case, there might, in many instances, be a denial of justice : the case against one defendant may be so entire as to be

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GENERAL

1842. incapable of being prosecuted in several suits, and PARR yet some other defendant might be a necessary party

to some portion only of the case stated (u).” And then ATTORNEY- his Lordship refers to the case of Turner v. Robinson(x).

There is no similitude between the present case and Turner v. Robinson, or the other case relied on in the Court below, The Attorney-General v. Cradock (y), further than that there were in all of them demurrers for multifariousness : neither these cases, nor the reasoning of his Lordship, answer the Appellant's objection to this information. If the case made by the information against him was an integral part of an entire case, he could not complain of being made a party ; but if the information joins together matters in which he has no interest, it must be held to be multifarious. The best test of multifariousness is that the information may be severed into two distinct suits; one for relief against the rate, the other for relief against the bond. The Appellant had nothing to do with the rate; the validity of it could not be tried in the Court of Chancery, there being no fraud ; it was purely a question of law. The Appellant has no lien on the rate ; his bond is payable out of the borough fund, and it is immaterial to him whether the rate is valid or not.

The Solicitor-general (Sir W. Follett), and Mr. Pemberton, appeared for the Respondents, but were not called on (2). (u) 4 Myl. & C. 31.

(y) 3 Myl. & C. 85. (x) i S. & S. 313.

(z) The following were the reasons annexed to the Respondents' printed case, and subscribed by Mr. Pemberton and Mr. B. S. Follett:

Because, by the effect of the Act 5 & 6 Will. 4, c. 76, the property of municipal corporations, and the funds to be raised for the purposes of the Act, are made subject to trusts ; and are liable, therefore, like all other trust property, to the jurisdiction of the Court

1842.

THE

The Lord Chancellor (Lord Lyndhurst) :- I believe, Mr. Solicitor-general, we are all of opinion that this

PARR is a public trust; that these funds are held by the corporation, subject to a trust, so as to give a Court of Attorney

GENERAL. Equity jurisdiction over the subject-matter; and that these funds have been applied, at least in one instance, for a purpose to which they could not properly be applied, namely, for the purpose of giving compensation for offices which the party still holds. It seems to me that that is a sufficient ground for maintaining the judgment of the Court of Chancery.

Lord Campbell :-I see no ground for any difficulty upon the subject. Before the Municipal Corporations Regulation Act passed, certainly the corporation property was not subject to any trust: the corporations might do with it whatever they chose; and, generally speaking, no relief could be obtained either at law or in equity for any misapplication of that property. The Municipal Corporations Act creates a trust for corporation purposes ; first, for certain specified purposes, and

of Chancery, unless such jurisdiction be excluded by the terms of the Act.

Because there is nothing in the Act of 5 & 6 Will. 4, c. 76, which, according to the proper construction of its provisions, operates to take away this jurisdiction of the Court of Chancery in the present case.

Because the payment of the compensation secured by the said bond to the said Robert Henning Parr, under the circumstances stated in the information, would be a misapplication of the trust property.

Because the said Robert Henning Parr, having voluntarily re. signed the offices mentioned in the information, is not, according to the proper construction of the Act 5 & 6 Will. 4, c. 76, entitled to any compensation; and at all events is not entitled, under the circumstances stated in the information, to compensation for the several offices not held under the corporation, or which have not been abolished, or from which he has not been removed under the provi. sions of the said Act; all of which are, however, included in the amount secured by the said bond.

1842. then, when these are answered, for other general purPARR

poses, for the benefit of the town. Then this being

trust property, there is nothing in the Act of ParTHE ATTORNEY- liament to take away the jurisdiction which the Court GENERAL.

of Chancery would otherwise have over it, or to take away the right which the subject would otherwise have to relief in a Court of Equity, in case of any misapplication of the trust property. Now looking at this information, the allegations in it state a case of fraud. There may be no foundation for it; but surely, if the allegations are true, there is a case of gross fraud. I give no opinion as to Mr. Parr's right to compensation for the office of town-clerk. It may turn out, when the matter is properly investigated, that the office was abolished; and then, notwithstanding his resignation, he may be entitled to compensation. Upon that point it is unnecessary to give an opinion, although there seems to me to be great difficulty in saying that he could be entitled to compensation when he had voluntarily resigned the office. But apart from the compensation awarded to him for his office of town-clerk, it is positively alleged that compensation has been granted to him for several offices, which are wholly unconnected with the office of town-clerk, and some of which he still holds. If that be so, the bond is illegal; and it would be a gross misapplication of the borough fund to apply it for the purpose of paying off such a bond. I therefore see no ground at all for saying that the case, as set out in this information, is not one which calls for the interference of a Court of Equity.

Lord Cottenham:--The case having been disposed of by the two noble and learned Lords who have now given their opinions, I will only say that, after attend

V.

THE

ing to all that has been urged at the bar, I have heard 1842. nothing that could alter the opinion which I formed

PARR in the Court of Chancery, after a very mature consideration of all the allegations in the information, ATTORNEYupon which the question must necessarily depend. It GEN having been established in the case of the AttorneyGeneral v. Aspinallwhich I believe has not been brought here by appeal, and which has been followed by other cases in the Court of Chancery--that a borough fund is constituted a trust fund by this Act of Parliament, the question then is, whether the information states a case of breach of trust, of improper dealing with that which is held by the corporation for public purposes, and therefore in that sense to be considered a trust fund, and subject to the jurisdiction of the Court of Chancery, for the purpose of preventing breaches of trust and abuses of that sort of confidence, whether reposed in individuals or corporations. Looking at the information, we find that it states that, which, beyond all doubt, would constitute a great abuse of this property, and therefore a breach of trust. Nothing more is required to bring the case within the jurisdiction of the Court of Chancery, and therefore it becomes impossible that a general demurrer for want of jurisdiction can be supported.

The only other part of the case now under consideration is one which applies only to the first decision ; for it does not apply to the decision by the Master of the Rolls, of which your Lordships have heard nothing at the bar. That has been entirely passed over; yet that is one of the orders against which the appeal is presented. The objection for multifariousness applies only to the order upon the information before it was amended. Now nothing can be more difficult than to lay down rules as to multifariousness. As cases

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