Henry Farran Darley, - Plaintiff in Error; The Queen, at the Relation of Robert Kinahan, - Defendant in Error
|England & Wales
|19 May 1846
|19 May 1846
|House of Lords
English Reports Citation: 8 E.R. 1513
House of Lords
Mews' Dig. v. 223. Discussed and applied in Reg. v. St. Martin's in the Fields (Guardians of), 1851, 17 Q.B. 149; Reg. v. Hampton, 1865, 13 L.T. 431; and see Bradley v. Sylvester, 1871, 25 L.T. 460.
Office - Quo Warranto.
 HENRY FARRAN DAELEY,-Plaintiff in Error; The QUEEN, at'the Relation of ROBERT KINAHAN,-Defendant in Error [May 2-7, July 1, 1845; May 19, 1846]. [Mews' Dig. v. 223. Discussed and applied in Reg. v. St. Martin's in the Fields (Guardians of), 1851, 17 Q.B. 149 ; Reg. v. Hampton, 1865, 13 L.T. 431; and see Bradley v. Sylvester, 1871, 25 L.T. 460.] Office-Quo Warranto. A proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by Charter of the Crown alone, or by the Crown with the consent of Parliament, provided the office be of a public nature and a substantive office, and not merely the function or employment of a deputy or servant held at the will and pleasure of others. The office of Treasurer of the public money of the county of the city of Dublin is an office for which an information in the nature of a quo warranto will lie. This was a writ of error on a judgment in the Exchequer Chamber in Ireland, affirming a judgment of the Queen's Bench there in the case of an information in the nature of a quo warranto filed against the holder of the office of treasurer of the county of the city of Dublin. This office having become vacant by the death of the late treasurer, a meeting was held on the 2d of April, 1836, for the purpose of electing a new treasurer. The plaintiff in error and William Smyth, esq., were the only candidates. The Act 49 Geo. III., c. 20,* directs that the election shall be made by the board of magistrates of the county of the city of Dublin. The magistrates of the county, prior to the enactment of the statute of 48 Geo. III., c. 140, consisted solely of the aldermen of the city of Dublin. By that act it was directed that certain police magistrates should be appointed for the county of the city of Dublin; and it was provided, that they should be deemed and held to be justices of the peace to all intents whatso--ever. The police magistrates had not, however, claimed to vote at a prior election of a treasurer, and the Lord Mayor who held the meeting for this election, did not convene or summon any magistrates save the aldermen. Five out of the eight police magistrates, however, attended the meeting, without being summoned, and claimed a right to vote at the election, and they respectively tendered their votes for the plaintiff in error. The Lord Mayor refused to receive their votes, and Mr. Smyth having a majority of the votes of the aldermen, was declared by the Lord Mayor to be duly elected, and immediately entered into the required recognizances. The plaintiff in error, conceiving himself aggrieved by the Lord Mayor's decision as to the right of the [* The following addendum is prefaced to 12 Cl. and F. with reference to this case:-" 49 Geo. III., c. 20, Darley v. The Queen, 520. A private Act of Parliament, passed for the purpose of enabling parties therein named to sell certain estates, and reciting the relationship of those parties, is receivable in evidence to prove that relationship."-The Wharton Peerage [12' Cl. and F.] 295.] H.L. viii. 1513 48a XII CLAEK & FINNELLY, 522 BARLEY V. REG. [1845-46] police magistrates to vote, applied for, and obtained an information in the nature of a quo warranto to be exhibited on behalf of the Queen, and at the relation of the plaintiff in error, in the Court of Queen's Bench of Ireland, on the 7th of May, 1836, and on the 26th of November, 1838, that Court, being of opinion that the votes of the police magistrates had been improperly refused by the Lord Mayor, pronounced judgment of ouster against Mr. Smyth (1 Jebb and Syme's Eep. 164). On the 31st of January following, the plaintiff in error applied to the Court for a rule to shew cause why a writ of mandamus should not issue to the Lord Mayor of Dublin, to command him to convene the board of magistrates, as directed by the 49 Geo. III., o. 20, and declare the plaintiff in error treasurer (Ibid., p. 468). The Lord Mayor showed cause against the writ, and set forth the proceedings which had taken place at the meeting held on the 2d of April, 1836, and, in addition to another point (not now necessary to be adverted to), showed, as cause against the conditional mandamus, the meeting of that day had not been duly convened, for that the three police magistrates who were absent from the said meeting, were then living, and not--withstanding, had not been summoned or convened, but he neglected to add that they were within summons. In consequence of this neglect, the Court, considering the other reason insufficient, held the return bad, and issued a peremptory mandamus to the Lord Mayor, directing him to convene the board of magistrates, and thereat to declare the plaintiff in error treasurer of the public money of the city of Dublin, and to accept his recognizances; but the Court in awarding the peremptory mandamus expressly declared that it did not thereby mean to conclude the rights of Mr. Smyth (who had been, as before mentioned, ousted), in case he should be advised to make an application for a quo warranto against the plaintiff in error (1 Jebb and Syme, 164). A meeting of the board of magistrates was accordingly convened and met upon the 22d day of June, 1839, and the plaintiff in error was then and there declared treasurer, and afterwards entered into the required securities. On the 16th November following, Mr. Kinahan, the relator in the present information, obtained a rule for leave to file an information in the nature of a quo warranto against the plaintiff in error. On the 28th day of January, 1840, the plaintiff in error showed cause against the rule, and the Court, after a lengthened argument on behalf of the plaintiff in error, made the rule absolute (2 Jebb and S. 239); and on the 27th of May in that year the present information was filed by the defendant in error. To this information the plaintiff in error pleaded seven pleas. The five first pleas alleged matters to which it is not necessary to advert as the judgment of the House proceeded entirely on the question raised by the sixth plea. That plea alleged in effect that the office of treasurer of public money of the county of the city of Dublin is not an office for usurpation of which the said  information in the nature of a quo warranto ought to have been brought or could be sustained. To the sixth and seventh pleas the defendant in error demurred. Previously to the 33 Geo. II., treasurers of the public money in Ireland appear to have been elected or appointed by the justices of the peace of the respective counties and counties of cities, and such authority to elect and the mode of election were derived from usage, and not from any legislative provision. A statute was passed in the last-mentioned year (33 Geo. II., c. 13), which, after reciting " that doubts had arisen concerning the manner of appointment of treasurers of counties," provided that whenever a vacancy should happen by death, misbehaviour, or resignation of a county treasurer, the justices of the county in which such vacancy should occur, should appoint a proper person to be treasurer, and that the person so appointed should enter into a recognizance for £1000, and procure two sufficient sureties, who should bind themselves in £500 each for his good conduct in the office, and his justly accounting for all public monies received by him." The provisions of this statute were varied by the act 13 and 14 Geo. III., c. 18, which confined the right of voting on the election of treasurers to justices of the peace having a freehold estate of £100 a year, and directed that seven justices so qualified should be present at every election. The latter act also provided that if any treasurer should be convicted either by indictment or presentment of any of the several frauds, neglects, or offences particularly specified in the act, he should be fined and dismissed from his office, and be rendered incapable of being again appointed treasurer 1514 BARLEY V. REG. [1845-46] XII CLARK & FINNELLY, 524 for any county in Ireland. It also raised the amount in which the treasurer and his two sureties were to be bound from £1000 to £10,000 for the treasurer, and from £500 to £5000 for each surety, and further provided that the Court of Queen's Bench in Dublin, and the  Judges of assize in the other counties should, if so required by the grand jury of any county in Ireland, examine the treasurer of that county as to the continued solvency of his sureties, and if the treasurer should refuse to be examined, or upon being so required, fail or neglect to procure other sureties, or another surety, the Judge who required him to answer or to procure the other sureties or surety, should dismiss him from his office of treasurer. The last-mentioned act was the legislative provision in force for the appointment of county treasurers in Ireland, and the regulation of the office, when the herein-after mentioned statute of 49 Geo. III., c. xx. was passed for " the better regulation of the mode of election and office of treasurer of the public money of the county of the city of Dublin." The corporation of the city of Dublin is a corporation by prescription, and the only justices of the peace for that city or for the county of the city of Dublin, until the act of 48 Geo. III., c. 140, was passed (which provided for the appointment of magistrates of police), were members of the corporation. A charter of the 1 Geo. II. had provided that all the aldermen who had been lord mayors of the city should be justices of the peace for the county of the city, and the act...
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