Oswald v The Mayor, Aldermen, and Burgesses of the Borough of Berwick-Upon-Tweed
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1856 |
| Date | 15 July 1856 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1139
House of Lords
Mews' Dig. iv. 592; xi. 1230. S.C. 25 L.J. Q.B. 383; 2 Jur. N.S. 743; 4 W.R. 738; and in Ex. Ch., 3 E. and B. 653; and in K.B., 1 E. and.B. 295. Commented on in Cambridge (Mayor of) v. Dennis, 1858, E.B. and E. 660; and cf. Skillett v. Fletcher, 1867, L.R. 2 C.P. 469; and note to Bonor v. Macdonald, 3 H.L.C. 226. On question as to parties binding themselves by contract as to any future state of the law (3 E. and B. per Maule J., at p. 665), cited in Baily v. De Crespigny, 1869, L.R. 4 Q.B. 186; Collins v. Collins, 1884, 9 A.C. 233.
Surety, Discharge of, by change in obligation.
JAMES JEFFEEYS OSWALD,-Plaintiff in Error;* The MAYOE, ALDERMEN, and BURGESSES of the BOROUGH of BERWICK-UPON-TWEED,- Defendants in Error [June 23, 24, 27, July 15, 1856]. [Mews' Dig. iv. 592; xi. 1230. S.C. 25 L.J. Q.B. 383; 2 Jur. N.S. 743; 4 W.R. 738; and in Ex. Ch., 3 E. and B. 653; and in K.B., 1 E. and.B. 295. Corn- * There were three actions in the Court below, and three writs of error in this House. The first writ of error was brought in the name of Dobie and another, 1139 VH.L.C., 857 OSWALD V. BERWICK-UPON-TWEED (MAYOR, ETC., of) [1856] mented on in Cambridge (Mayor of) v. Dennis, 1858, E.B. and E. 660; and cf. Skillett v. Fletcher, 1867, L.R. 2 C.P. 469; and note to Honor v. Macdonald, 3 H.L.C. 226. On question as to parties binding themselves by contract as to any future state of the law (3 E. and B. per Maule J., at p. 665). cited in Batty v. He Crespigny, 1869, L.R. 4 Q.B. 186; Collins v. Collms, 1884, 9 A.C. 233.] Surety, Discharge of, by change in obligation. The 5 and 6 Will. IV. c. 76, s. 58, required that the council of a borough should annually elect the treasurer of the borough. While that Act was in force, D.M. was elected treasurer of the borough of [857] Berwick for " the year ending 9 November 1842, if it should so long please the said council, but not otherwise." He gave bond with sureties for the due discharge of the duties of his office. The bond recited the election, and was conditioned for the due accounting by D. M. for all such monies, etc. " as I, the said D. M., shall or may recover, or receive, in virtue of my said appointment as treasurer as aforesaid, during the whole time of my continuing in the said office in consequence of the said election, or under any annual or other future election of the said council, to the said office." After the bond had been given, the 6 and 7 Viet. c. 89, was passed. The 6th section of that Act repealed the 58th section of the previous statute, and directed that, instead of the treasurer being annually elected, he should " hold his office during the pleasure of the council for the time being." D. M. was re-elected in November 1843, after the passing of this latter statute: no fresh bond was taken: Held, that under the original bond, the sureties continued liable; that the election in November 1843 was " a future election,'' within the true intent and meaning of the bond; and that D. M. did continue in the office of treasurer within the true intent and meaning of the said bond. This was an action of covenant. By a deed poll or writing obligatory, dated in January 1842, under the hands and seals of David Murray, John Campbell Renton, James Jeffreys Oswald, William Murray, and John Johnston, the last four persons became bound as sureties for the due discharge by David Murray of the duties of the office of treasurer of the borough of Berwick-upon-Tweed. The deed recited the resolution of the town council, passed in the previous December, requiring sureties to the amount of 2000, and that " at every quarterly and adjourned meeting of the council, and also at any special meeting, if then required so to do, the treasurer should present a correct account of the cash in his possession, and that the treasurer should be appointed for the remainder of the year, ending the 9th of November 1842,* if it should so long please [858] the said council, but not otherwise." The deed then recited the appointment of David Murray, and declared the duties he undertook, one of which was, " well and truly to pay unto the said mayor, etc., or to their successors in office, all such rents, sum and sums of money, principal, interest, and penalties, and other monies whatsoever, as I, the said David Murray, shall or may recover or receive, in virtue of my said appointment as treasurer as aforesaid, during the whole time of my continuing in the said office, in consequence of the said election, or under any annual or other future election of [by] the said council to the said office." The liability of the sureties was limited to the sum of 2000. The declaration averred, that D. Murray held the said office in consequence and under and by virtue of the said election in the deed poll mentioned, and in consequence and under and by virtue of other future elections of the said council to the said office, from the time of the executors of William Murray v. The Mayor, etc., of Berwick, and under that name the case was argued. The other cases, involving precisely the same point, were made to depend on the decision of the first. It has been deemed more convenient to retain in this report the name under which the case was heard and reported in the Court below. * This appointment was made under the 5 and 6 Will. 4, c. 76, s. 58, by which it is enacted, that " the council of every borough, shall in every year appoint a fit person, not being a member of the council, to be the treasurer of the borough." This provision was afterwards repealed by the 6 and 7 Viet. c. 89, s. 6. 1140 OSWALD V. BERWICK-UPON-TWEED (MAYOR, ETC., OF) [1856] V H.L.C., 869 making of the said deed poll until and at and after the respective times of the receiving and receipt by him as such treasurer as aforesaid of the monies, etc." Breach. The Defendant pleaded several pleas, of which the sixth and seventh are alone material to be considered. The sixth plea stated, that after the passing of the 6 and 7 Viet. c. 89,* the council, in November 1843, under the authority of that Act, appointed David Murray to be treasurer of the borough thenceforth during the pleasure of the council for the time being, and he then accepted and continued in the office, under and by virtue of the last mentioned election, and not [859] under any other election or appointment whatsoever. The plea then alleged performance of the duties until and at the time of the said re-election in November 1843. The seventh plea alleged the making, delivery, and the acceptance by the mayor, etc. of another bond, in satisfaction and discharge of the first. The Plaintiff demurred to these pleas, and took issue on the rest. The verdict was...
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