Lowndes against The Earl of Stamford and Warrington
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1852 |
| Date | 30 April 1852 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 160
Queen's Bench Division
S. C. 21 L. J. Q. B. 371; 16 Jur. 903; 19 L. T. O. S. 227.
160 LOWNDE9 1'. THE EARL OF STAMFORD 18Q B. 5. [425] lowndks against the earl of stamford and warrington. Friday, April 30th, 1852. The salary of an auditor arid superintending manager of an estate, holding office during the joint lives of the employer arid himself, is not a payment apportionable under stat. 4 & 5 W. 4, c. 22, s. 2. The indenture by which L., the auditor, engaged himself stipulated that L., who was a barrister, should relinquish so much of his practice as was incompatible with the office, and the whole if required by S., the employer: that, if S. should revoke the appointment without adequate cause, the adequacy to be determined as aftermentioned, or if L. should resign upon adequate cause, the adequacy to be determined in like manner, S. should allow L. a retiring pension of 10001. a year during their joint lives : and that the adequacy of the cause for any revocation or resignation should be determined by a referee, who was named ; with a proviso for other reference in case of necessity. Held :-That the stipulation for reference was not void as ousting the Courts of jurisdiction. But-That L., being dismissed, as he alleged, wrongfully, might sue for the retiring pension without having first procured the adequacy of the cause to be decided upon by the referee; the sense of the agreement being that the onus of proving the adequacy of the cause to be adjudicated upon should lie upon that party who did an act (whether revocation or resignation) determining the employment. [S. C. 21 L. J. Q. B. 371; 16 Jur. 903 ; 19 L. T. O. S. 227.] Covenant. Action commenced, 7th August 1850. The first count stated that heretofore, &c., to wit on 2d January 1849, by indenture between defendant of the one part and plaintiff of the other part (profert), defendant answered, "Oh yes I should, sir, pray get in," and assisted Alderman Wilson to enter the omnibus, and got in also himself: that other persons did the same, but were desired by one of the aldermen to withdraw, which they, and Maenamara also, did, but not by Wilson's desire. That Alderman Wilson, while in the omnibus (where he remained a few minutes), pointed out the seat complained of to the recorder, but made no observation upon the merits of the appeal, and had no communication or conversation with the recorder and aldermen beyond directing attention to the seat in question. That he went into the other carriage with them, at Macnamara's request, for the purpose of inspecting a seat differently constructed, but had then no other communication with them than as above mentioned ; and that his being with them at the inspection of the carriages was purely accidental.. That he did not return with them into their Court, but went to the Court of Common Pleas, where he was engaged in the business of the Petty Sessions for two hours. That, there being'some cases at the Petty Sessions which required a second alderman, he went into the Court of Quarter Sessions to see if an alderman could he spared to assist him, and with no other object: that, when he entered the Court, the appeal was being heard, and, "finding Mr. Alderman Finnis sitting at the nearest end of the Bench, he spoke to him respecting the Petty Sessions business, and, whilst so speaking, sat next to the said Alderman Finnis: that he remained there for a few minutes only, and that, during the whole of the time he was in the said Court, he did not speak at all to the recorder or to either of the aldermen except the said Alderman Finnis, and that the few sentences he addressed to him related entirely and exclusively to the business of the Petty Sessions on account of which he had entered the said Court, and that not a word was said by either himself or Mr. Alderman Finnis touching the said appeal or in any manner relating to the subject matter thereof." That, after quitting the Court of (Quarter Sessions, he did not return thither on that day, but had left town before theiappeal was concluded. There were additional affidavits by the recorder, Alderman JFinnis, and other persons, confirmatory of these statements, and adding that no objection was taken to Alderman Wilson's presence in Court by the appellant or his solicitor or counsel. Mr. Pearson stated that he supported the conviction in the discharge of his ordinary duty as solicitor to the Corporation of London, and would have charged the costs to the court of aldermen if the appeal had been successful and costs awarded ; and that Alderman Wilson would riot have been liable to any expenses in that event. [424] Sir F. Kelly, Solicitor General, Clarkson and Bodkin, now shewed cause, and contended that, even assuming Alderman Wilson to have been an interested party, 18 Q. B.428. LOWNDES V. THE EARL OF STAMFORD 161 appointed plaintiff to be auditor and superintending manager of all defendant's estates, including all or any estates thereafter to be by him acquired (other than his estates in the counties of Leicester and Nottingham), such appointment being considered as taking [426] effect from 7th January 1848, from which time the duties of the said offices of auditor and superintending manager had been performed by the plaintiff; and plaintiff did thereby accept the said offices of auditor, &c. And defendant did by the same indenture covenant with plaintiff that he, defendant, would, so long as plaintiff should hold the said offices, pay to plaintiff the annual salary of 18001. by equal half yearly payments on 7th July and 7th January : and, further, that, in case the defendant should revoke the said appointment thereby made without adequate and just cause then and in such case from and after such revocation, defendant would, during the remainder of the joint lives of himself and plaintiff, pay to plaintiff a clear annual sum of 10001. by equal half-yearly pay merits on the said half-yearly days therein and hereinbefore mentioned, the first of sncb payments to be made on such of the said half-yearly days as should first happen after such revocation. As by the same indenture, &c. will more fully appear. Averment that, although from the time of the making of the said indenture hitherto plaintiff hath duly performed and fulfilled all things therein on his part to be performed, &c., and hath, to wit during all the time which he was not, the case was distinguishable, on the facts deposed to, from Begina v. The Cheltenham Commissioners (1 Q. B. 467), Begina v. The Justices of Hertfordshire (6 Q. B. 753), and Begina v. Justices of Suffolk (supra). Bylas Serjt, Bliss and Pulling, coiitr&, relied upon Begina v. Justices of Suffolk (supra), and cited Dobson v. Groves (6 Q. B. 637). Lord Campbell C.J. The ground of this application is, substantially, that the proceeding at Quarter Sessions was coram noti judice, which it would have been if an interested party had been proved to have formed part of the Court. During this term we have expressed our anxiety that the greatest respect should be paid to the maxim which forbids any man to be judge in his own cause. There is no doubt that a person who is interested in the cause ought not to appear on the Bench as a Judge. My predecessor Holt, in a case in which he was interested while Chief Justice (as to the appointment of a chief clerk), appeared, not on the Bench but at the Bar, instructing counsel. The charge here, on the affidavits in support of the rule, is that Alderman Wilson formed part of the Court which dismissed Macnamara's appeal. But I think the affidavits in answer are satisfactory. It appears that Alderman Wilson had no intention of being present to hear the appeal, but had made an arrangement inconsistent with his doing so...
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