Staniland v Hopkins
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1841 |
| Date | 24 November 1841 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 75
EXCHEQUER OF PLEAS.
S. C. 11 L. J. Ex. 65.
[178] stanilamd v. hopkins. Exch. of Pleas. Nov. 24, 1841.-By an act of Parliament creating a Court of Requests for the borough of Boston, it was enacted, that the mayor, recorder, deputy recorder, aldermen, and common councilmen lor the time being of the borough, the justices of the peace for a certain district, 76 STANILAND 1'. HOPKINS 9M.&W. 179. together with other persons therein mentioned, should l e the commissioners thereof; and that in case of a vacancy in the situation of clerk of the court, &c., the mayor and aldermen of the borough, for the time being, or the major part of them, should appoint a successor, and that until such appointment should be made, the commissioners or any three or more of them should nominate officers to do the business of the Court. At a meeting of the town council of B., specially summoned for the purpose of electing a clerk, the plaintiff, who was a member of the council, was elected by the council, and before'the end of the election he tendered to the mayor his resignation of the office of town councillor, together with the sum of 50 as a fine on resignation, under 5 & G Will. 4, c. 7fi, s. 51. No bye-law had been made to enforce a fine on resignation, and therefore the mayor returned the 50, in the presence of the council, after the election. The plaintiff's seat in the council was afterwards filled by the election of another person, and at a quarterly meeting of the town council, held on the 7th of May, 1840, of which no notice had been given, the plaintiff' was again elected by the town council:-Held, first, that neither the 7Hrd section of 5 & 6 Will. 4, c. 76, nor the 8th section of 6 & 7 Will. 4, c. 105, was applicable to this case.-Secondly, that the case was within the 72nd section of 5 & G Will. 4, c. 7(1; the true construction of which was, that the body corporate, under that act, should be trustees or commissioners for executing, by the town council, the powers and provisions of all acts of Parliament, of which powers and provisions the old body corporate, or any of the members thereof, in their corporate capacity, were sole commissioners or trustees before the election of the town council: and as the mayor and aldermen were, by the local act, solo trustees or commissioners for the purpose of appointing the clerk, that their powers devolved upon the town council, and that the plaintiff' was duly elected at the first meeting; that, under all the circumstances of the case, the plaintiffs resignation of the office of town councillor was sufficient; but that if it was not, his election to the office of clerk had the effect of vacating his office of town councillor. [S. C. H L. J. Ex. G5.] This was an action for money had and received by the defendant to the use of the plaintiff, and on an account stated between them. The defendant pleaded the general iasue, ncm assumpsit, and a verdict was found for the plaintiff, with 167 damages, subject to the following case, with liberty for either party to turn it into a, special verdict. By an act of the 47 Geo. 3, c. I, s. 2, intituled " An Act for the more speedy recovery of Small Debts in the borough and parish of Boston, and the hundreds of Skirbeck and Kirton, except the parishes of (losberton and Surfleet, in the county of Lincoln," after reciting that the borough of Boston is an ancient corporation, as well by prescription as charter, and also that it would greatly tend to the encouragement ol trade in t^ie said borough and in the said parishes and places, if certain local acts oj Parliament were repealed, and more extensive powers [179] vested in commissioners, to hear and determine plaints concerning debts not exceeding 5, arising within the said borough and parish of Boston, and the said hundreds of Skirbeck and Kirton, except the parishes of Gosher'ton and Surfleet, it was enacted, "That the mayor, recorder, deputy recorder, aldermen, and common councilmcn of the said borough of Boston for the time being, the several justices of the peace for the parts of Holland in the said county for the time being, residing in and acting for the said parts, the several ministers of the parish churches within the said hundreds of Kirton and Skirbeck, for the time being, and the several other persons therein named, should be and they were thereby appointed commissioners, and they and their successors were thereby constituted n court of justice, by the name of the Court of Requests for the borough and parish of Boston, and the hundreds of Skirbeck and Kirton, except &c., in the county of Lincoln ; and the said commissioners were thereby empowered and required to meet and; assemble, and to hold the said Court on Monday in every week, in the Guildhall of! the said borough, or in some other convenient place within the said borough, to be appointed by the major part of the said commissioners for that purpose assembled ; that the first meeting of the said commissioners should be holden on the third Monday next after the passing of the said act, and the commissioners present 9 M. &W.180. STANILAND V. HOPKINS 77 should elect a chairman for that meeting, and so at each succeeding meeting; and the said commissioners, or the major part of them who should be present at such meetings, not being less than three, (except as thereinafter mentioned), were thereby authorized and empowered to hear and determine all such actions and causes as were thereinafter mentioned, and to give such judgments, and to make such orders and decrees therein, and to award execution thereupon, with the costs, against the body or bodies, or against the goods of all and every other the person and persons against whom they should [180] give any such judgments or make any order or decree as should to them seem just in law or equity ; and in case of any equality of votes in any action, cause, or question before the said commissioners, the said chairman, so elected, should have the casting vote ; and if it should happen that no chairman should have been previously elected at that meeting, then and in every such case the commissioner present, who should stand first in the list of names of the said commissioners, should have the decisive or casting vote. And it was thereby further enacted, that when and as often as it should happen that the office of clerk, or Serjeant, or crier, or any other officer or olticers, should become vacant, either through misbehaviour, de;ith, or resignation, suspension, dismission, removal, or incapacity, then and in every such case it should and might be lawful for the mayor and aldermen of the said borough of Boston for the time being, or the major part of them, and they were thereby required to nominate and appoint another fit and proper person to be clerk, or Serjeant, or crier, or other officer or officers of and in the said Court of Requests during his and their good behaviour, and until such nomination and appointments should he made as aforesaid, it should and might be lawful for the said commissioners of the said Court of Requests, or any three or more of them, assembled as aforesaid, to appoint such officers respectively to do the business of the said Court until such nomination and appointment should from time to time he made as aforesaid ; and all persons so appointed by the said commissioners, or any three of them, should be and be deemed to be (during such time as they should respectively act) officers under the said act, to all intents and purposes whatsoever, and entitled to all the advantages and emoluments specified in the said act, atid should be subject to be removed from their offices in like manner as the officers from time to time to be appointed by...
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