Jones v Johnson and Morgan
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1850 |
| Date | 21 November 1850 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 377
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 20 L J M C 11 affirmed, 7 Ex 452, 21 L J M C 102, 16 Jur 840 as to costs, 6 Ex 183
jones i johnson and mokuan Nov 21, 1850 -The council of the boiough of L , pieviously to making a boiough tate, made an estimate nuclei the 5 V 0 Will 4, c 76, s 92, which estimate contained (amongst othcis) the two following items -"Compensation to the late town cleik, thiee yeais and a half, 1051 14s lOcl, law expenses 8001 " The hist of these items was, as it expressed, an awaid of compensation to a for met towu cleik, who had been dismissed from his situation by the cotpoiation The second item had been included in the estimate to meet the demand of the attorney to the coipoiation foi costs and disbui&e-ments The attorney had paid the sum of 4671 to a paity to save the corpoia-tion fiom an execution, and this sum was one of the items included in the charges as a disbuisement At the time the estimate was made, the attorney had not clehveied any signed bill of costs to the coipoiation The council afterwards made a boiough rate, which included the sums so mentioned in the estimate At a meeting, which was not a public one, the botough council made an ordei, which duected the overseeis of cettain patrshes \vitlnn the borough to pay the propoitions assessed upon then parishes out of the pool lates made and collected, and they al.so issued a wanant to then tteasuier, commanding him, within one bundled days fiom the date theieof, to demand from the over-seers the said ptopoitions The tieasuiei issued his piecept to the oveiseeis, requiring them, within one hundred days aftei the receipt theieof, to pay the piopoitionsout of the pooi lates made and collected, 01 to lie made and collected A wanant was issued by the defendants, one of \vhom w.is the mayor of lach-fieltl, and both justices of the boiough, against an ovorseei wbo had not paid the proportion assessed in his patish This warrant contained the venue in the margin, and duected a certain sum to be levied by distiess of the plaiutirl's goods, and ptovided, that "if within the space ot five days next aftei such distress by you taken, the sum of &c shall not be paid, then you do sell the said goods," and concluded thnt. -" Given under out hand and seal, and undei the coipoiate seal of the said borough city T T (l M ), M B M (L s), Justices of the said boiough and city Thomas (Coipoiation seal) Johnson, Mayoi " The defendant Johnson was not stated in the body of the wanant to be mayoi of the boiough -Held,-Fust, that a boiough late is valid, though not made in public -Secondly, that, assuming the late to be retrospective (which, semble, it was not), yet being good upon the face of it, no objection to its validity was open as against the defendants -Thirdly, that the wanant was good notwithstanding it duected the sum to be paid out of the lates to be made arid collected, and, fourthly, that it was good, although it duected the oveisueis to pay the sum within one bundled days aftei the leceipt of the wanant - 378 jonkr i1 johnson Fifthly, that it sufficiently appealed upon the wauant, that one of the defendants .was mayor of the boiough at the time of making the wanatit-Sixthly, that the warrant of distress appeared to have been issued wrthrn the juiischction of the mayor and justices, as the \enue in the maigin might be looked at foi th.it purpose , and,-Seventhly, that the warrant was sufficient imdei the '27 Geo 2, c 20, although it did not fix the time for tennination of the sale -An action of reple\in n maintainable against a person who iiupropeily issues the wan ant under which another's goods aie dtstiained [S C 20 L J M C 11 athnned, 7 en: 452, 21 L J M C 102 , 1C Jut 840 as to costs, 6 Ex 1 S3 J Replevin of certain goods arid chattels of the plaintiff Plea (by statute) Not guilty Avowry -That the goods [863] were taken under a warrant of distress issutjcl by the defendants, two justiceb of the borough of Lichtield, for non-payment of borough rate, "publicly assessed" by the council on a parrsh within the boiough, of which the plaintrft was one of the overseers Plea rn bar -I)e mjuiia upon u Inch issue was joined At the trial, before Coltman, J , at the Staffoid Spring Assizes, 1849, a special verdict was found (so far as is material) as follows -The borough and city of Lich-field is an ancient borough, and one of the boroughs mentioned in schedule A , annexed to the 5 & 6 Will 4, c 76 After the passing of that Act, there was, and fioin hitheito hath been and still is, a body corporate of the said borough, by and und$i the name of "The Mayor, Aldermen, and Burgesses of the JJoiough of Lich-field," and there was a treasurer of the borough duly appointed into that behalf, and the defendants weie, foi and dining the time afoicsaid, two of the justices of the peace of and for the said boiough After the passing of the 1 Viet c 81, and before and At the trma of the making of the boiough tato hoieinafter mentioned, the boiough fund of the borough was not sufficient for the purposes in the first-mentioned statute in ttyat behalf specified, and on the 19th of July, 1847, a meeting of the couih il of the boiough was held, pursuant to due appointment, notice, and summons, according to the piovisions of the n & 6 Will 4, c 76, s& 69, 92, but which meeting was not a public meeting, the members of the town council and the reportcis of the piess only being allowed to be present, and at such meeting the (ouiuil pioceeded to make and did make the late heiemaftei mentioned The special verdict then set out the mrnotea, which, aftei stating that the council ordered a borough rate to be made on the Several parishes within the borough, and that the parish of St Maiy was assessed at 6661 Ifis 14d , proceeded thus -"And the council doth heieby, in piiisiiance of the 1 Viet c 81, resolve, ordei, [864] and duett the chmchwaidens ami oveiseeis of the lespective panshes, townships, hamlets, 01 places (mining amongst others St Maiy), to pay the amount of the pait 01 poition of such late foi which such parishes, towiships, hamlets, and places shall respectively be liable, out of the pool lates made and collected for such parishes, townships, hamlets, and places, respectively And the uouiicil doth further resolve, that J Protfit, the treasure! of the saitl boiough and city, do forthwith make a demand in writing on behalf of the council of and ftom the said churchwardens and overseers of the poor, or any 01 eithei of them, of the iespecti\e aiimfc hereby assessed and taxed upon such parish, township, &c , whith chuich-wanjena and overseers of the poor are hereby requiied to le\y and [jay to the said treasurer of the borough anil city such sums so assessed and t.i\rfd upon such parish, towpship, &e , within the space of one hundred days aftci demand made is aforesaid, and in case such chunhwardcns and oveiseois of the pool, 01 any 01 eithei of them, shall refuse en neglect to levy and pay any of the sums hereby assessed and taxed, within one hundred days after demand made as afoiesaid, to such treasurer, he shall levy the same by tlistiess of the goods and chattels of such chuii hwardens and ovei-seers so neglecting or refusing to pay " The special verdict then set out an estimate of expenses mentioned in the minutes, and'which was made at the said meeting of the council This estimate contained the following amongst othei items "Compensation to the late town cleik, 3\ yeais, 1051 14s I lOd , Law expenses, 8001" The item of lO'il 14s lOd was1 mtioduced under the following (jucumst,uices One C Simpson had been town clerk of the borough of Lichheld before and at the passing of the Municipal Corporation Act, and so con- * EX 868 JONES 1' JOHNSON 379 tiuued until the year 1844, when he was dismissed hum such office by the town council Wheieupon he claimed to he entitled to compensation, and the town council having refused to [865] assess him ,uiy, he obtained from the Couit of Queen's Bench a writ of mandamus, to which the council made ,i letuin, which C Simpson ttaversed, and the litigation lesulterl in a judgment wheieby 0 Simpson recovered Ugainst the council 4671 for damages and costs, and in Apul, 1846, a peiemptoiy mandamus issued , and in June, 1846, the coutuil awarded compensation to 0 Simpson in the shape of an annuity ot iOl 4s ,'id , but he being dissatisfied therewith had appealed to the Lords of the Treasiuy, which appeal was still pending at the time of the aforesaid meeting of the council, and the said sum of...
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