Harding v Pollock
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1830 |
| Date | 01 January 1830 |
| Court | Exchequer |
English Reports Citation: 130 E.R. 1189
IN THE HOUSE OF LORDS.
S. C. 3 Bligh (N. S.) 161; 4 E. R. 133 (with note); 1 Dow. & Cl. 453; 6 E. R. 595 (with note).
[25] in the house or lords. harding . pollock and another. 1829. [S. C. 3 Bligh (N. S.), 161; 4 E. R. 1300 (with note); 1 Dow. & Cl. 453; 6 E. K. 595 (with note).] The appointment to the office of clerk of the peace is in the custos rotulorum of each county, and King's County in Ireland is not an exception.-Bayley J. diss, This waa a writ of error from the judgment of the Court of Exchequer Chamber in Ireland, affirming the judgment of the Court of Common Pleas in Ireland in this cause. Henry Harding (the Plaintiff in error) claimed the office of clerk of the peace for the King's County, and had been several years in possession of it, under an appointment by the Cuatos Rotulorum of the county : John Pollock and Arthur' Hill Cornwallis Pollock (the Defendants in error) claimed the same office under letters patent from the crown; and the action, which was for money had and received to their use, was brought by them in the Court of Common Pleas in Ireland, to ascertain whether the right to make such appointment for that county was in the crown, or in the custos rotulorum. The Defendant below pleaded two pleas, first, the getieral issue; and, secondly, the statute of limitations, in both of which issue was joined ; but as the Plaintiffs below, desiring merely to establish their right, sought only nominal damages, no question arose on the second plea, the object of which merely was to cover the profits received more than six years before the commencement of the action. The case was tried before Lord Norbury, the Chief Justice of the Court, at the sittings after Michaelmas term 1819, the venue being laid in the county of the city of Dublin. At that trial a special verdict was found, stating in substance as follows:-"That hia late Majesty, King George the Third, by [26] letters patent under the great seal of Ireland, dated 30th July 1798, granted to the said John Pollock and Arthur Hill Cornwailis Pollock (the Defendants in error) the office of clerk of the peace within and throughout the province of Leinster, in Ireland, and within every county thereof, except Kilkenny, to hold for their lives, and the life of the survivor of them ; which letters patent were duly enrolled in the Rolls office, on the 4th of August 1798, and were duly accepted by the said John Pollock and Arthur Hill Cornwallis Pollock, and that they are fit and proper persons to hold the said office; and that, by virtue of said patent, they duly obtained possession of said office in the King's County, and exercised the duties thereof by them, and their sufficient deputies, until the year 1800.-That the King's County is in the province of Leinster, and is one of the counties thereof; and that by an act of parliament in Ireland, of the third and fourth of Philip and Mary, and in the year of our Lord 1556, it was enacted, that the king 1190 HARDING V. POLLOCK 8 B1NQ. 27. and queen, and her successors, should be entitled to the counties of Leix, Slieveraarge, Irry, GMinmaliry, and Offally, and that for making them shire grounds, a certain portion of the said counties should from thenceforth be a shire or county, by the name of the King's County, and that the residue should be a county by the name of the Queen's County.-That from the said year 1556 (at which time it appears by said act of parliament the lands comprised within the said King's County were first made a shire by the name of the King's County) the kings and queens of Ireland have nominated and appointed, and been used and accustomed to nominate and appoint, fit persons to fill the said office of clerk of the peace for the King's County to the said year 1798; and that the custodes rotulorum of said county have appointed persons to fill said office, in the said .county, from the year 1760 to the present time, who have held [27] and enjoyed the said office accordingly, and received the emoluments thereof, with the exception of Hugh and Andrew Carmichael appointed by the crown, and of one James Cowly, the deputy of the said John Pollock, who were severally in possession under the crown, The special verdict then stated, letters patent of his late Majesty, bearing date October 30th, 1766, and duly enrolled, by which the Earl of Drogheda was appointed custos rotulorurn of said county during his Majesty's pleasure ; and then set out a writing, under hand and seal, whereby the said Lord Drogheda, in 1772, appointed Edward Moore Dowden, clerk of the peace, and deputy custoa rotulofum of the said county, during the pleasure of said Earl. It found, that said Dowden took upon himself the execution of the duties of the said office, and executed the duties, and received the emoluments thereof, until his death in 1789. And then set out an appointment of the said Henry Harding (the Plaintiff in error) in said year to said office, by said Lord Drogheda, under hand and seal, during good behaviour. It then found that said Harding was and is a proper person to hold the said office, and did all things necessary to qualify him to hold the said office, and to make him a complete clerk of the peace, and was admitted to the said office, and took on him the duties thereof, and has continued from thence to the present time to execute the duties, and receive the emoluments thereof, without interruption by any person, and conducted himself properly therein; that said Lord Drogheda is still (at the time of finding said verdict) custos rotulorum of said county. And that within the last six years the Defendant received fees and emoluments of the said office to the amount of one shilling." On this special verdict, the Court of Common Pleas in Ireland, in Trinity term 1821, after full argument, gave [28] judgment unanimously in favour of the said John Pollock and Arthur Hill Cornwallis Pollock, the Plaintiffs in said action. From this judgment, Henry Harding, the Defendant in said action, brought a writ of error, returnable into the Court of Exchequer Chamber in Ireland, where he haa assigned the general error only. The case was fully argued in that Court, which, in June 1823, affirmed the said judgment of the Court of Common Pleas, two of the Judges dissenting; whereupon the original Defendant brought his writ of error returnable into parliament, where he again assigned the general error. Thi case was argued in parliament by Campbell for the Plaintiff in error, and the Solicitor-General for the Defendants in error. For the Plaintiff in error it was submitted, that the judgment of the Court of Exchequer Chamber ought to be reversed in toto, and judgment given for the Plaintiff in error. First, because it did not appear that the Defendants in error were ever admitted to the office in question : secondly, because by the law of the land the custos rotulorum had the right to appoint to the office of clerk of the peace : and thirdly, because by the usage, as appearing on the special verdict, the Plaintiff in error had obtained a legal right to retain the office under the appointment of the custos rotulorum. It was further submitted, that this special verdict was so imperfect that no judgment for the Defendants in error could be given upon it; but that, in case judgment should not be given for the Plaintiff in error, a venire de novo must be awarded, first, because the question of the admission of the Defendants in error was doubtful; and, secondly, because there was sufficient [29] evidence of usage to entitle the Plaintiff in error to a verdict, or which ought to have been left to a jury to determine. For the Defendants in error it was contended, that the county in question in this 6BINO. 30. HARDING V. POLLOCK 1191 case having been made a county and brought within the pale of British law so late as the year 1556, prescription could not exist as to any of its offices or establishments; and that in the absence of prescription the appointment of all officers judicial, ministerial, or executive, concerned in the administration of public justice, belonged to the crown of common right, and was part of the prerogative. Upon thii argument the following questions were proposed for the opinions of the Judges:- First, Whether the appointment to the office of the clerk of the peace within the shires of England did, by law, previously to the passing of the act of 37 Hen. 8, c. 1, belong of right to the crown or to the custos rotulorum of the shire by virtue of his said office, or to any and what other person or persons 1 Secondly, Whether the appointment to the office of the clerk of the peace within the shires of Ireland, did, by law, in and previously to the year 1800, belong of right to the crown or to the custoa rotulorura of the said shire by virtue of his said office, or to any and what other person or persons 1 Thirdly, Whether the right to appoint to the office of the clerk of the peace within the King's County in Ireland, did, by law, in and previously to the year 1800, belong to the crown or to the custos rotulorum of the said shire by virtue of his said office, or to any and what other person or personal The authorities on either side are so fully considered in the opinions of four of the learned Judges, that it has been deemed improper to print the argument of counsel. [30] bayley J. My Lords, I regret extremely that I cannot bring myself to concur in the opinion the other Judges have formed in this case, The first question proposed by your Lordships to our consideration is this, Whether the appointment to the office of clerk of the peace within the shires of England did, by law, previously to the passing of the act of 37 H. 8, c. 1, belong to the crown or to the custos rotulorum of the shire by virtue of his said office, or to any, and what other person or persons'! I consider it to have belonged to the crown if the crown reserved it to...
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