Attorney General v Aspinall
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1836 |
| Date | 04 July 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 404
ROLLS COURT.
S. C. (reversed on appeal), 2 My. & Cr. 613; 40 E. R, 773; 1 Jur. (0. S.), 812; 7 L. J. Ch. (N. S.), 51. See Attorney-General v. Mayor, &c., of Newcastle-on-Tyne, 1889, 23 Q. B. D. 497. See now Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 5.
[513] the attorney-general v. aspinall. May 25, 27, 30, July 4, 1836. [S. C. (reversed on appeal), 2 My. & Cr. 613; 40 E. E, 773; 1 Jur. (0. S.), 812; 7 L. J. Ch. (N. S.), 51. See Attorney-General v. Mayor, &c., of Newcastle-on-Tyne, 1889, 23 Q. B. D. 497. See now Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50), s. 5.] Demurrer allowed to an information filed for the purpose of setting aside a mortgage, and appropriation of the money thereby raised to the endowment of the clergy of Liverpool, made by the old council of the town of Liverpool, in the interval between the passing of the Municipal Corporation Act and the election of the new council, there being no allegation in .the information of fraud, collusion, or improvidence, the new council having refused to take any proceedings for the purpose of calling in question the acts of their predecessors and the application of the property for the more secure endowment of the members of the Established Church, not appearing to the Court to be other than an application which, under the circumstances, must legally be considered as beneficial to the inhabitants of the borough. This waa a supplemental information, filed by the Attorney-General at the relation of Thomas Bolton and Timothy Jevons against James Aspinall and other persons, as trustees holding the fund in question, against the mayor, aldermen and burgesses of Liverpool, and also against the Rev. Jonathan Brooks and several other clergymen of Liverpool; and it prayed that it might be declared that an appropriation of £105,000 out of the property of the Corporation of Liverpool for the permanent endowment of the clergy of the borough was unlawful and invalid, and that the Defendants, James Aspinall and others the trustees, might repay that 1KBEHB14. ATTORNEY-GENERAL V. ASPINALL 405 sum to the Defendants, the mayor, aldermen, and burgesses of Liverpool, in order that the annual income thereof might be paid to the treasurer of the borough, to be by him carried to the account of the Borough Fund, and applied to the purposes to which the Borough Fund was applicable. To this information, James Aspinall, and the other persons charged to be trustees, and the Rev. Jonathan Brooks and the other clergymen, put in a general demurrer for want of equity. The case stated in the original, and in part recapitulated in the supplemental information, was in substance as follows :- [514] On the 5th of June 1835 (the day on which the bill, which afterwards became the Act for the Regulation of Municipal Corporations, was introduced into Parliament), the Corporation of Liverpool, then governed by forty-one persons, called the Common Council of the Mayor, Bailift's, and Burgesses, was seised and possessed of considerable property, and indebted to divers persons to a considerable amount. The corporation were at the same time patrons of various churches in Liverpool; and provisions were made for the payment of the clergy to the amount of J61080 a year out of pew rents, the funds of the corporation, and parish rates made under the authority of Acts of Parliament; to the further amount of £1040 a year out of the parish rates by annual vote gratuitously made by the parishioners in vestry assembled ; and to the further amount of £2515 a year out of the corporate funds, by annual payments gratuitously made by the corporation. In this state of circumstances the Act of the 5 & 6 W. 4, c. 76, intituled, " An Act to Provide for the Regulation of Municipal Corporations in England and Wales " became a law. By that Act provisions were made for a change in the governing body of the corporation, and in the application of the income of the corporate funds, and it was among other provisions enacted (a. 92), that after the election of the treasurer in any borough, the income and annual produce of all the property of any body corporate, made in conjunction with such borough in Schedules A. and B., should be paid to the treasurer of such borough ; and that all the monies which he should so receive, should be carried by him to the account of a fund to be called " The Borough Fund;" and that such fund, subject to such [515] payments, and, saving such rights and claims as are particularly mentioned in the Act, should be applied to the payment of the salaries of the mayor and other officers in the Act mentioned ; and also towards the payment of divers expenses therein mentioned, connected with the municipal regulations to be made by virtue of the Act, and with the police and administration of justice in such borough, and of all other expenses not therein otherwise provided for, which should be necessarily incurred in carrying into effect the provisions of the Act; and that in case the said Borough Fund should be more than sufficient for the purposes to which the same was by the Act made applicable, the surplus thereof should be applied, under the direction of the council, to the public benefit of the inhabitants and the improvement of the borough ; and in case the Borough Fund should not be sufficient for those purposes, the council of such borough was thereby authorised and required from time to time to order a borough rate in the nature of a county rate, to be made within the borough, for the purpose of raising so much money as in addition to such fund would be sufficient for the payment of the expenses to be incurred, in carrying into effect the provisions of the Act. And it was further provided by the Act (s. 139) that in every case in which any body corporate, or any particular class, number, or description of members, or the governing body of any body corporate, then was, in their corporate capacity, and not as charitable trustees, seised, or possessed of any advowson, or right of nomination, or presentation to any benefice or ecclesiastical preferment, every such advowson, and every such right of nomination and presentation should be sold at such time and in such manner as the Commissioners appointed [516] by His Majesty to consider the state of the Established Church in England and Wales might direct; and that the proceeds of every such sale should be paid to the treasurer of the borough, and be by him invested in Government securities for the use of the body corporate, and that the annual intereat payable thereon should be carried to the account of the Borough Fund.(l) [517] The original information, after stating that, pursuant to the last-mentioned provisions of the Act, all such patronage or right of presentation as the Corporation 406 ATTORNEY-GENERAL V. ASPINALL 1 KEEN B18. of [518] Liverpool was entitled to, would require to be sold, arid that the corporation was entitled to hold the same only until the sale thereof should be directed by the Com-[519]-missioners, alleged that the mayor, bailiffs and burgesses of Liverpool, or the common council had formed a design to appropriate a large part of the property of the corporation, and of the income and annual produce thereof, for the purpose of permanently endowing the churches in Liverpool, and making a permanent provision for the ministers thereof, and to that end determined to raise the sum of £105,000 on the security of the corporate property, and to vest that sum in trustees upon trust to divide the income thereof, amounting to £3665 among the incumbents of the churches in lieu of the stipends and income theretofore received by them from the gratuitous votes of the corporation, and from parish rates; that on the 7th of November 1835 it was resolved that property of the corporation called the Salthouse Dock estate, of the annual value of £2000, and the New Tobacco Warehouse of the annual value of £4000 should be mortgaged for the purpose of raising the required sum; that the property so intended to be mortgaged was not applicable to the purpose intended, and that the proposed application of the money intended to be raised would be in contravention of the scope of the Act of Parliament and the intention of the Legislature, [520] and prejudicial to the rights and interests of the ratepayers of the borough of Liverpool. The original information, after charging that the bond debts of the corporation amounted to £792,000 ; that there was reason to apprehend that the income would be insufficient to defray the expenses directed to be paid out of the corporate funds (which expenses, if the funds should be insufficient, were to be paid by a rate to be levied on the inhabitants of Liverpool), and after further charging that, if the intended appropriation for the benefit of the clergy should be made, an additional rate to the extent of such appropriation would be required ; that a considerable part of the yearly income of the corporation was of an uncertain and fluctuating nature ; and that, under such circumstances, it would be improvident and improper to contract any further debt, prayed an injunction to restrain the corporation from carrying into effect the proposed loan, and from borrowing or applying money for the intended purpose. An injunction was, on the 21st of November, granted on the ex parte application of the relators to the effect prayed by the bill. On the 28th of November a motion was made to dissolve the injunction before the present Lord Chancellor, when Master of the Rolls, and the injunction was dissolved on the 1st of December. The argument and judgment on that motion are reported in the first volume of Mylne & Craig's Reports, p. 171. The injunction being dissolved, the corporation proceeded to complete the act they had meditated; they borrowed the sum of £63,440 on the security of the corporate estates ; to this they added...
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