Addison v The Mayor, Aldermen, and Burgesses of The Borough of Preston
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1852 |
| Date | 21 April 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 842
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 146; 16 Jur. 643. Referred to Darlow, v. Shuttleworth, [1902] 1 K. B. 724.
842 ADDISON V. THE MAYOR, ETC., OF PRESTON a2C.B.108. [108] addison v. the mayor, aldermen, and burgesses of the borough of preston. April 21, 1852. [S. C. 21 L. J. C. P. 146; 16 Jur. 643. Eeferred to Darlow, v. Shuttle-worth, [1902] 1 K. B. 724.] The 92nd section of the municipal reform act, 5 & 6 W. 4, c. 76, enacts, that, after the election of the treasurer in any borough, the rent and profits of all hereditaments, and the interest, dividends, &c., of all moneys, dues, chattels, and securities belonging to the corporation, shall be paid to the treasurer, and shall be carried by him to the account of a fund called " The Borough Fund," and such fund shall (subject to certain charges thereon) be applied towards the payment of the salaries of the mayor, recorder, &c., and of any other officer whom the council shall appoint:-Held, that the judge and assessor of the borough court of record for the trial of civil actions, appointed by the council at a certain salary, could not maintain an action of debt against the corporation, for arrears of such salary. This was an action of debt. The declaration stated that the defendants, before the commencement of the action, to wit, on the 1st of January, 1851, were indebted to the plaintiff in the sum of 521. 10s., payable upon request, for the service and attendance of the plaintiff by him done, performed, and bestowed for a long time, to wit, for one year before then elapsed, in and about the holding before the plaintiff of a certain court of record for the trial of civil actions, to wit, the court of pleas for the borough of Preston,-being a court which by charter or custom was and ought to be, during all the time aforesaid, holden in the said borough^--and as the necessary officer (other than the recorder), to wit, the judge and assessor before whom the said court was to be, and was, during all the time aforesaid, holden, he the plaintiff having been during all the time aforesaid such officer, judge, and assessor, upon and by the appointment of the council of the said borough; such appointment being made * according to the provisions of a statute made in the session of parliament holden in the fifth and sixth years of the reign of his late Majesty King William the Fourth, intituled, &c. (5 & 6 W. 4, c. 76); and for the salary therefore due and of right payable by the defendants to the plaintiff, &c. Plea,-never indebted. By consent of the parties, and by order of Gresswell, [109] J., the following case was stated for the opinion of the court,-the parties agreeing that judgment should be entered for the plaintiff or defendants, by confession or nolle prosequi, immediately after the decision of the case, or otherwise, as the court might think fit,-according to the statute 3 & 4 W. 4, c. 42, s. 25 :- Preston is one of the boroughs contained in schedule A. to the municipal corporation reform act, 5 & 6 W. 4, c. 76, an act for the regulation of municipal corporations in England and Wales. It is directed by that schedule to have six wards, twelve aldermen, and thirty-six councillors. constituted a good consideration between Y. and the defendant; and the clause enabling the defendant to sell after-acquired property, did not vitiate the transaction. In delivering the judgment of the court, Lord Campbell said : " Eeliance is chiefly placed by my Brother Kinglake upon a clause in this deed, which - authorises the defendant to enter arid sell after-acquired property; and he refers us to Graham v. Chapman as an authority to prove that a deed with such a clause is necessarily an act of bankruptcy. On referring to the case, we do not find any such doctrine laid down in it. There, the deed expressly recited that it was given, not only for a further 'advance, but for an old unsecured debt; and Lord Chief Justice Jervis several times over points this out as the chief foundation of his judgment. He likewise remarks upon the power to take after-acquired property, which there might have prevented the trader from deriving any benefit whatever from the further advance. But that cannot apply to a case like the present, where the trader did derive the full benefit of the whole sum advanced, by its being applied at the time to satisfy the demand of an importunate creditor." And see Smith v. Cannan, 2 Ellis & B. 35, where Parke, B., says: " The test is, not whether the necessary effect of the deed is to stop the trade, but whether its necessary effect is to delay the creditors of the trader." 12C.B.110. ADDISON V. THE MAYOR, ETC., OF PRESTON 843 Up to the respective times of that act passing and taking effect, Preston had a common council, consisting of a mayor, seven other aldermen, and seventeen capital burgesses. The aldermen, as well as the capital burgesses, were elected by the common council, for life. The mayor was elected annually by a jury chosen by two elisors, one of whom was nominated by the outgoing mayor and one by the other aldermen. The mayor, recorder and aldermen were by charter justices of the peace for the borough; and a separate court of quarter sessions of the peace was, before and at the passing of the said act, holden in and for the said borough. The mayor and the two senior aldermen were coroners for the borough. The recorder was elected by the common council. There was in the borough, by charter, a court of record for the trial of civil actions, called the court of pleas for the said borough, holden on Friday in every third week, and not regulated by the provisions of any local act of parliament. Of this court, the mayor and any two or more of the aldermen, were by charter the judges. The plaintiff was elected recorder in the year 1832, and has ever since held that office, except so far as it has been or is affected by the municipal corporation [110] reform act above mentioned. He was then, and ever since has been, a barrister of more than five years' standing. Notwithstanding the change made by the municipal corporation reform act, he has continued to be popularly styled recorder. He never had any deputy-recorder. From the time of the plaintiff's election as recorder, until and at the time of the said municipal corporation reform act coming into operation, the plaintiff acted as assessor of and in the said court of pleas : but the court was always held before the judges designated by the charter: and no formal appointment of the plaintiff to the office of assessor was ever made.. ' . - . It is by the municipal corporation reform act, 5 & 6 W. 4, c. 76, enacted as follows : -Section 1, "that so much of all laws, statutes, and usages, and so much of all royal and other charters, grants, and letters-patent, now in force relating to the several boroughs named in the schedules A. and B. to this act annexed, or to the inhabitants thereof, or to the several bodies or reputed bodies corporate named in the said schedules, or any of them, as are inconsistent with or contrary to the provisions of this act, shall be and the same are hereby repealed and annulled." Section 6. "That, after the first election of councillors under this act in any borough, the body or reputed body corporate named in the said schedules in connection with such borough, shall take and bear the name of the mayor, aldermen, and burgesses of such borough, and .by that name shall have, perpetual succession, and shall be capable in law; .by the council, hereinafter mentioned of such borough, to do and suffer all acts which now lawfully they and their successors respectively may do and suffer by any name or title of incorporation; and the mayor of each of the said boroughs shall be capable in law to do and suffer all acts which the chief officer of £111] such borough may now lawfully do and suffer, so far as the same respectively are not altered or annulled by the provisions of this act." Section 92. "That, after the election of the treasurer in any borough, the rents and profits of all hereditaments, and the interest, dividends, and annual proceeds of all moneys, dues, chattels, and valuable securities belonging or payable to any body corporate named in conjunction with the said borough in the said schedules A. and B., or to any member or officer thereof in his corporate capacity, and every fine or penalty for any offence against this act (the application of which has not been already provided for), shall be paid to the treasurer of such borough; and all the moneys which he shall so receive shall be carried by him to the account of a fund to be called ' The Borough Fund; ':and such fund, subject to the payment of any lawful debt due from such body corporate to any person, which shall have been contracted before the passing of this act, and unredeemed, or so much thereof as the council of such borough from time to: time shall be required or shall deem it expedient to redeem, and to the payment from time to time of the interest of so much thereof as shall remain unredeemed, and saving all rights, interests, claims, or demands of all persons or bodies corporate in or upon the real or personal estate of any body corporate, by virtue of any proceedings either at law or in equity which had been already instituted, or which may be hereafter instituted, or by virtue of any mortgage or otherwise, shall be applied towards the payment of the salary of the mayor, and of the recorder, and of the police-magistrate hereinafter mentioned, when there is a recorder or police- 844 ADDISON V. THE MAYOR, ETC., OF PKESTON 12C.B.112, magistrate, and of the respective salaries of the town-clerk and treasurer, and of every other officer whom the council shall appoint; and also towards the payment of the expenses incurred from time to time in [112] preparing and printing burgess-lists...
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