Attorney General v The Mayor, Bailiffs, and Burgesses of Liverpool
| Jurisdiction | England & Wales |
| Judgment Date | 01 December 1835 |
| Date | 01 December 1835 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 342
HIGH COURT OF CHANCERY
For further proceedings see 2 My. & Cr. 613; 1 Keen, 513. See also Attorney-General v. Mayor, &c., of Wigan, 1854, Kay, 273; Mill v. Hawker, 1874, L. R. 9, Ex. 317. 5 & 6 Will. 4, c. 76, repealed by Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 5.
342 ATTOBNEY-GENERAL V. MAYOE OF LIVERPOOL 1 MY. & CE. 171. [171] the attorney-general v. the mayor, bailiffs, and burgesses of liverpool. Rolls. Nov. 28, Dec. 1, 1835. {For further proceedings see 2 My. & Cr. 613 ; 1 Keen, 513. See also jlttorneij-General v. Mayor, d'c., of Wigan, 1854, Kay, 273; Mill v. Hawker, 1874, L. R. 9, Ex. 317. 5 & 6 Will. 4, c. 76, repealed by Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50), a. 5.] The Court will not grant an injunction to restrain parties from proceeding to deal with property whose right, if it exists, depends upon the construction of a doubtful statute, where the granting of the injunction would for ever deprive them of an opportunity of exercising the right, especially if no irreparable mischief is to be apprehended from allowing them to proceed. The Court has authority, under its general jurisdiction, to interfere for the protection of property vested in the corporation of a borough named in the 6 W. 4, c. 76, on the ground of breach of trust committed or threatened after the passing of that Act, although the time when the existing members of the governing body corporate of such borough are to go out of office may not have arrived. Principles of the Court with respect to ex parte injunctions. This was an information by the Attorney-General, at the relation of two merchants resident in Liverpool, one of whom was also a burgess, against the Corporation of the Borough of Liverpool. It stated that the Defendants, the mayor, bailiffs and burgesses of the Borough of Liverpool, were a corporation, and that the affairs of the corporation were, in practice, transacted by forty-one members of the corporation, called the common council, of which the mayor and bailiffs for the time being were members. That the corporation was, in its corporate capacity, seised or possessed of very large real and personal estates, and was also indebted to divers persons to a large amount. That the corporation was the patron of several churches in the town, and had the right of presenting the ministers of such churches, pursuant to the Acts of Parliament under which such churches had been founded and endowed; and that stipends were annually allowed to the ministers out of the corporate funds, some of which stipends were paid pursuant to the Acts of Parliament, and others of them allowed by an annual vote of the common council. That the stipends so allowed amounted in and before the month of June 1835, and did now amount, to the annual sum of £5100 in the whole. The information, after setting out in detail the particulars of the annual stipends which the corporation [172] allowed to the ministers and lecturers of the several churches, went on to state that the corporation was named in conjunction with the Borough of Liverpool, in schedule A. of the 5th and 6th W. 4, c. 76, intituled, " An Act to provide for the Regulation of Municipal Corporations in England and Wales; " .and that it was by that Act, amongst other things, enacted (section 92), that after the election of the treasurer in any borough, the income and annual produce of all the property of any body corporate named in conjunction with such borough in schedule A. 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 the payment of any lawful debt due from such body corporate, and saving the claims of all persons upon the real and personal estate of such body corporate, should be applied to the payment of the salaries of the mayor of the borough, and other officers in such 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 tho borough ; and in case the Borough Fund should not be sufficient for those purposes, the council of such borough was thereby authorised and required to order a borough rate, in the nature of a 1 MY. & OK. ire. ATTORNEY-GENERAL U MAYOR OF LIVERPOOL 343 county rate, [173] 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. The information further stated that it was by the said Act provided (section 139), that in every case in which any body then was, in their corporate capacity, and not as charitable trustees, seised, possessed of, or entitled to, 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 as the commissioners appointed 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 interest payable thereon should be carried to the account of the Borough Fund. The information then stated, that pursuant to the last-mentioned enactment, all such patronage or right of presentation to which the Corporation of Liverpool was entitled would require to be sold, and that the corporation was entitled to hold the same only until the sale thereof should be directed by the commissioners. That since the passing of the Act the Defendants had formed the design of appropriating a large part of the property of the corporation for the purpose of permanently endowing the churches, and making a permanent provision for the ministers thereof: and also for the purpose of augmenting the stipends paid to these incumbents or ministers ; and with a view to carry their design into execution, they had determined to raise the sum of £105,000 upon the security of the corporate [174] property, and to vest tha same, when raised, in trustees, upon trust to divide the rents, dividends, and annual produce among the incumbents of the churches in certain proportions. That at a meeting of the common council, held on the 7th of November last, it was resolved, that two estates belonging to the corporation, namely, the Salt-house Dock estate, of the annual value of £2000, and the Tobacco warehouse, of the annual value of £4000, should be mortgaged for that purpose. That the property proposed to be so appropriated was not, at the :passing of the Act, and was not now, applied to the purposes to which it was so proposed to be applied. That the Defendants, in furtherance of their design, had entered into negotiations with divers persons to lend and advance them the said sum of money, or portions thereof, on the security of a mortgage of the said corporate property and of the bond of the corporation ; and that they had already raised some portions of the money, and intended to raise the residue, unless prevented by the injunction of the Court. That by virtue of an order òof His Majesty in Council, pursuant to the provisions of the Act, all the functions of the common council, or then present governing body of the corporation would cease on the 26th day of December 1835, when new councillors of the corporation were directed to be cbosen. The information submitted 'that the raising of such loan, and the proposed application thereof when raised, would be in direct contravention of the scope of the Act of Parliament, and of the intention of the Legislature in that behalf, and prejudicial to the rights and interests of the ratepayers of the Borough of Liverpool, and of divers others of His Majesty's subjects who had claims upon the said Borough Fund. It then went on to charge that the debts owing by the corporation on [175] bond amounted to £792,000 or thereabouts, and that the income of the corporation, after discharging the interest of such debt, the compensation to deprived functionaries, and the salaries and expenses of the continuing corporate functionaries, by the Act directed to be paid thereout, would be wholly insufficient to answer and defray the expenses of police and the administration of justice by the Act also directed to be defrayed out of the corporate fund ; and which expenses, in the event of the corporate funds proving insufficient, were to be paid by a rate to be levied on the inhabitants of the borough. It further charged that in case the Defendants should be allowed to appropriate any portion of the corporate funds to the augmentation of church livings, an additional rate to that extent would be required to be levied on the inhabitants of the borough, to defray the expenses by the Act directed to be defrayed first, out of the Borough Fund, and in default thereof, by a rate levied as aforesaid. It further charged that a considerable part of the yearly income of the corporation arose from what were called town dues or town customs, being small rates payable to the 344 ATTORNEY-GENERAL V. MAYOR OF LIVERPOOL 1 MY. & OR. 176. corporation upon several sorts of goods and...
To continue reading
Request your trial
- Poh Ah Choo v Tan Siew Gim and Others
-
Sawyer v Birchmore
...demurrer to the supplemental suit, and which have been, already fully reported. (See The Attorney-General v. The Mayor of Liverpool, 1 Mylne & Craig, 171 ; The Attorney-General v. Asqrinall, 1 Keen, 513.) The most important of the topics urged in behalf of the Respondents are stated and con......
-
Attorney General v The Mayor, Aldermen and Burgesses of Wigan and Others
...and the case may be argued and determined there as to the propriety of such payment. (1) See Attorney-General v. The Mayor of Liverpool, 1 My. & Cr. 171; Attorney- General v. Aspinall, 2 My. & Cr. 613; Attorney-General v. The Corporation of Lichfield, 11 Beav. 120. . KAY, 275. BUKGESSES OF ......
-
Attorney General v Aspinall
... ... (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 ... 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 ... holding the fund in question, against the mayor, aldermen and burgesses of Liverpool, and also against the Rev. Jonathan Brooks and several other ... 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 ... ...