Smyth v Latham
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 1833 |
| Date | 23 April 1833 |
| Court | Exchequer |
English Reports Citation: 131 E.R. 773
IN THE EXCHEQUER CHAMBER.
S. C. 3 Moo. & Sc. 251; 1 Cr. & M. 547; 3 Tyr. 509; 2 L. J. Ex. 241.
[692] (!n the exchequer chamber.) smyth v. latham. April 23, 1833. [S. C. 3 Moo. & So. 251; 1 Cr. & M. 547; 3 Tyr. 509; 2 L. J. Ex. 241.] 1. The office of paymaster of exchequer bills is an office during pleasure only, and not during good behaviour, under the provisions of 48 G. 3, c. 1.--2. The appointment of a paymaster in the room of another is, of itself, a revocation of the first appointment.-3. Such former appointment may be so revoked, although the writing conferring that appointment contain no power of revocation. Error on a bill of exceptions. The Plaintiff declared in assumpsit for money had and received, and at the trial before Lord Tenterden, put in a writing dated June 21, 1811, under the hands and seals of Spencer Perceval and others, commissioners of the treasury, by which, after reciting the appointment of Planta, with Nevinson and Jadis in April 1811, to the office of paymaster or paymasters of exchequer bills, at a salary of 4001. a year each, and the subsequent resignation of Planta, the commissioners appointed the Plaintiff, with Nevinson and Jadis, to be such paymaster or paymasters, 774 SMYTH V. LATHAM 9BIN6.693. at the salary aforesaid, provided the Plaintiff gave approved security for the due execution of the office. It was admitted, that the Plaintiff had given the requisite security, had discharged the duties of the office, and received the emoluments thereof from June 1811 to 5th July 1824, when he ceased to act; the commissioners having put the Defendant in his place. Nevinson, who was called as a witness, then proved that he had been appointed in September 1810 in the room of an officer who had been dismissed in consequence of an investigation into his official conduct before a committee of the House of Commons, and Nevinson's appointment contained an express revocation of the writing under which the dismissed functionary had been appointed. He further proved, that from September 1810 there had always been three paymasters [693] of exchequer bills, and never more; and that he, the witness, had never heard of there having been, at any one time, prior to the llth of September 1810, more than three paymasters of exchequer bills. That there was an iron chest in the office of the paymasters of exchequer bills, in which was deposited a great portion of the treasure entrusted to their charge; that there were three keys to the said iron chest, one of which was uniformly held by each of the three individuals acting as paymaster; that immediately upon the Defendant entering upon the duties of a paymaster of exchequer bills, the same key which had been previously held by the Plaintiff was delivered to the Defendant, and retained by him; that the Defendant, in conjunction with Jadis, and the witness, had acted as the three paymasters of exchequer bills from the 5th day of July 1824 up to the present time; and that the Defendant bad received during such period the total sum of 30401. for salary, and extra-allowances upon the fundings of exchequer bills in respect of the said office. The Defendant then put in a writing dated July 5th 1824, under the hands and seals of Lord Liverpool and others, commissioners of the treasury, reciting the writing of June 21, 1811, and, also, that the Plaintiff, appointed one of the paymasters by that writing, had resigned, and appointing the Defendant a paymaster of exchequer bills with Nevinson and Jadis; salary and security as in the former writing. The Plaintiff was not shewn to have been guilty of any misconduct. The Plaintiff contended, that his tenure in the office in question was during good behaviour; and he relied on the 48 G-. 3, c. 1, s. 10, which, after reciting that " it is expedient that permanent regulations should be established in relation to the making out, issuing, and pay-[694]-ing off all exchequer bills which may hereafter be issued for any money under the authority of parliament; and that by reason of the multiplicity of payments which may be to be made in paying of exchequer bills, it may be difficult, if not impossible, that every payment should be made by the several officers of the receipt of exchequer; therefore, and to the end the exchequer may regularly be discharged of all the monies required by any act to be applied for paying off any exchequer bills and other charges attending the same;" enacts, " that the commissioners of the treasury shall and may from time to time, by writing under their hands, constitute and appoint such person or persons as they shall think fit, to be the paymaster or paymasters, and shall and may appoint a comptroller, and such other officers and clerks as they shall deem necessary, to pay and discharge the principal sums which shall from time to time be in course of payment upon any exchequer bills ; and to pay the interest due thereupon, and the premium or premiums, rate or rates, which, according to any contract or contracts made or to be made for exchanging and circulating the said bills, or any of them, shall be due or payable to such contractors; and to take in and put upon a file or files from time to time all such bills as shall be paid off, to be cancelled as the commissioners of the treasury shall direct; and to do and perform, or cause and procure to be done and performed such other matters and things in relation to the said bills, or the principal and interest therein to be contained, as to the said commissioners of the treasury shall seem meet, and shall be by them directed to be done and performed by such paymaster or paymasters, comptroller, or other officers and clerks for the time being; all which payments shall be made at an office to be kept in or near the receipt of the exchequer at Westminster for that purpose; and that the commis-[695]-sioners of the treasury shall take or cause to be taken security from every person so constituted or appointed, for his duly paying, answering, and accounting for all the monies which he shall receive, and for his true and faithful performance of his office or trust." Section 11. "That the said paymaster or pay- 9B1NG.696. SMYTH V. LATHAM 775 masters shall betsubject and liable to such inspection, examination, control, and audit, and to such rules in respect to paying, accounting, and other matters relating to the execution of the said office or trust of paymaster as the commissioners of the treasury shall think fit or reasonable to establish or appoint from time to time, for the better execution of the intent and end of that act, and the satisfaction of the proprietors of exchequer bills." Section 12. "That as well the person or persons so constituted or to be constituted paymaster or paymasters, as also the person or persons, appointed or to be appointed to examine and control the receipts, payments, and acts of such paymaster or paymasters, shall severally have and receive for the service of themselves, and for the officers and clerks to be employed under them respectively, and for such charges as shall be necessarily incident to the execution of their respective offices, such salaries, rewards, and allowances, as the commissioners of the treasury for the time being shall judge to be reasonable, and shall direct to be allowed to them the said paymaster or paymasters, or comptroller." Lord Tenterden directed the jury, first, That by the true intent, meaning, and legal construction of the several clauses of the said act, the tenure of the paymaster or paymasters of exchequer bills is in law during pleasure. Secondly, That by the legal construction of the above-mentioned writing, bearing date the 21st day [696] of June 1811, the Plaintiff had an estate in his said office of paymaster of exchequer bills only during the pleasure of the lords commissioners of his Majesty's treasury. Thirdly, That the writing of the 5th day of July 1824 was a legal revocation of the above mentioned writing, bearing date the 21st day of June 1811. Fourthly, That the allegation contained in the above mentioned writing of the said 5th day of July 1824, namely, that the said Plaintiff had resigned his said office of paymaster of exchequer bills, was a matter of no importance to the issue between the said parties. Fifthly, That there was no fact at issue between the said parties for the consideration of the jury. And, Sixthly, That the jury ought to find a verdict for the Defendant. To which direction the Plaintiff tendered the following exceptions:- That by the true intent, meaning, and legal construction of the several clauses of the said act, the tenure of the office of the paymaster or paymasters of exchequer bills is, in law, during good behaviour. Secondly, That even had the said act empowered the lords commissioners of his Majesty's treasury to revoke and determine at pleasure the appointment of paymaster of exchequer bills, no such power having been reserved in the deed poll, bearing date the 21st day of June 1811, the lords commissioners of his Majesty's treasury had not by law the power to revoke and determine the same at pleasure. And the Plaintiff further insisted, That, there not being any limitation of the estate expressed in the deed poll bearing date the said 21st day of June 1811, by the delivery of such deed poll a freehold in the said office of paymaster of exchequer bills passed to him the said Plaintiff. [697] Thirdly, That, admitting for the sake of argument that by the true intent, meaning, and legal construction of the several clauses.of the said statute, the tenure of the office of the paymaster and paymasters of exchequer bills is in law during pleasure; and admitting further, for the sake of argument, that by the deed poll bearing date the 21st day of June 1811, the Plaintiff had an estate in his said office of paymaster of exchequer bills only during the pleasure of the lords commissioners...
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