Corporation of Liverpool v Wright

JurisdictionEngland & Wales
Judgment Date21 July 1859
Date21 July 1859
CourtHigh Court of Chancery

English Reports Citation: 70 E.R. 461

HIGH COURT OF CHANCERY

Corporation of Liverpool
and
Wright

S. C. 28 L. J. Ch. 868; 5 Jur. (N. S.) 1156; 7 W. R. 728.

Municipal Corporation. Clerk of the Peace. Substitution of Salary for Fees. Illegality. Account.

[359] corporation of liverpool v. wright. July 20, 21, 1859. [S. C. 28 L. J. Ch. 868 ; 5 Jur. (N. S.) 1156; 7 W. E. 728.] Municipal Corporation. Clerk of the Peace. Substitution of Salary for Fees. Illegality. Account. An agreement between a municipal corporation and the clerk of the peace of the borough, on his appointment, that he shall accept a fixed salary in lieu of his fees, and that any surplus of fees above the salary shall be paid into the Borough Fund, is illegal. Therefore, to a bill by a corporation against the clerk of the peace of the borough, alleging such an agreement and praying an account of surplus fees, a demurrer was allowed. Semble, that, where both salary and fees had been received for the same period, a bill would lie for an account of the salary; and liberty to amend accordingly granted for the purpose of effectually raising this point in the pleadings. This case came on upon demurrer. The bill was filed by the Corporation of Liverpool against .Peter Wright, the clerk of the borough. The substance of the material paragraphs of the bill was as follows:- 1 and 2. In the year 1836 a grant of separate Quarter Sessions was made to the borough of Liverpool, pursuant to the Municipal Corporation Act. [360] 3. In the year 1844 the office of clerk of the peace of the borough became vacant; and at a meeting of the council of the borough, held on the 13th day of November 1844, with a view to appointing a successor to the office, the following resolution was passed :-"That, regard being had to the duties of the clerk of the peace of this borough, it is the opinion of the council that the net emoluments of that officer ought not to exceed the sum of £500 per annum." 4. At the same meeting, and after the above resolution was passed, the Defendant was appointed clerk of the peace of the borough by the following resolution :-" That Peter Wright, of the borough of Liverpool, gentleman, is a fit person to be, and is hereby appointed, clerk of the peace of this borough during good behaviour: that it be understood upon this appointment that the clerk of thd peace is expected to advise the mayor in the absence of the town clerk, if requested so to do." Previous to his appointment by the foregoing resolution the Defendant had been fully informed of the views of the council concerning the emoluments to be derived from the office of clerk of the peace; and he accepted the office on the terms of the resolution above set forth. 5. The business in the office of the clerk of the peace in the said borough having increased, the council of the borough agreed, in the year 1848, to pay to the Defen- 462 CORPORATION OF LIVERPOOL V. WRIGHT JOHNS. 361. dant, as clerk of the peace, the additional sum of £160 annually, besides defraying the disbursements incidental to the office for advertising, printing, &c., making the emoluments of the office of clerk of the peace of the said borough to amount to the annual sum of £660. [361] 6. The agreement between the Plaintiffs and the Defendant upoa and from the time of his first appointment was that the surplus of fees received by the Defendant as clerk of the peace of the said borough after the payment of his salary, but as from the time of the said increase in the salary, subject also to his retaining thereout the said disbursements incidental to the office, should be placed to the credit of the Borough Fund. 7. Up to the year 1851 the costs of prosecutions within the borough were a charge upon and were paid out of the Borough Fund, without any repayment thereof from any quarter ; but, in the year 1851, Government placed Liverpool on the same footing upon which other boroughs and counties had been for some time placed, and agreed to defray the costs of such prosecutions out of a sum annually voted by Parliament for that purpose. 8. In Liverpool prosecutions are conducted by the town clerk as public prosecutor, the money for the necessary disbursements being provided out of the corporation funds. 9. These disbursements, so far as regards prosecutions at the borough sessions, comprise counsel's fees, the fees of the clerk of the peace, and payments to witnesses. The bills of costs in such prosecutions, including these disbursements and the profes sional charges of the town clerk, are taxed by the clerk of the peace; and after each session, up to the time when Government agreed to defray the costs of prosecutions, the town clerk submitted to the finance committee of the council of the said borough a list of the cases tried, and the amount of [362] disbursements upon each, which included the fees of the clerk of the peace, though the same were not actually paid; and these accounts being handed to the treasurer of the...

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