The King against John Patteson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 358
IN THE COURT OF KING'S BENCH
S. C. 1 N. & M. 612; 2 L. J. K. B. 33. Considered, Worth v. Newton, 1854, 10 Ex. 255. Dictum not adopted, Davis v. Pembrokeshire JJ., 1881, 7 Q. B. D. 515. Referred to, R. v. Blaney, [1901] 2 Ir R. 104.
REPORTS of CASES ARGUED and DETERMINED in the COURT of KING'S BENCH. By RICHARD YAUGHAN BARNEWALL, of Lincoln's Inn, and JOHN LEYCESTER ADOLPHUS, of the Inner Temple, Esqrs. Barristers at Law. Yol. IY. Containing the Cases of Michaelmas, Hilary, and Easter Terms, in the 3d Year of WILLIAM IY. 1832-3; [1] cases argued and determined in the court of king's bench, in michaelmas term, in the third year of the reign of william IV. memoranda. On .the first day of this term John Beames, Robert Mounsey Rolfe, and Clement Tudway Swanston, of Lincoln's Inn, Esquires, and Henry Hall Joy, of the, Inner Temple, Esquire, having been, during the preceding vacation, appointed His Majesty's Counsel, were called within the Bar and took their seats accordingly. Mr. Serjt. Spankie was appointed one of His Majesty's Serjeants, and took his seat within the Bar accordingly. On Sunday the 4th day of November, Lord Tenterden C.J. died at his house in Russell Square. He was succeeded by Sir Thomas Denman, Knight, His Majesty's Attorney-General, who was called to the degree of the Coif, and gave rings with the motto "Lex omnibus una," and took his seat as Chief Justice of this Court on Thursday the 8th day of November. {Ages 2 to 8 contain General Rules.] [9] the king against john patteson( z). 1832. By the statute 12 G. 2, c. 29, s. 6, it is enacted, that the respective high constables shall pay the sums of money received by them in respect of the county rate, to such person whom the justices shall at their Quarter Sessions appoint to be the treasurer, (which treasurer they are thereby authorized to appoint,) he first giving sufficient security in such sums as shall be approved by the justices at sessions, to be accountable for the money which shall be paid to him in pursuance of that Act, and for which, by s. 7, he is made accountable to the justices: Held, that this section of the statute does not make the giving of the security a condition precedent to a person's becoming treasurer, or being responsible or accountable to the justices, but that the appointment is complete without such security being given. In quo warranto for usurping the office of alderman and justice of peace of the City of Norwich, the plea set out a charter of Car. 2, granting, among other things, that all the aldermen of the city who had borne the office of mayor, so long as they should continue in their public offices, should be justices of the peace of the same city : that the defendant was duly elected an alderman, and still was alderman; and (a) Littledale J. sat in the Bail-Court this term. 358 4B.&AD.10. THE KING V. PATTESON 359 that he became mayor, and thereby afterwards became justice. Eeplieation, that the defendant being such alderman and justice, was duly appointed to be treasurer of the county of the City of N., and gave such security to the mayor and recorder, being justices of peace for the said city, as in that behalf required, and accepted and took on himself the office of treasurer, and entered on the discharge of the duty of his office, which offices of alderman and justice, and of treasurer, were incompatible with each other, whereby the defendant vacated the offices of justice and alderman, &c. Rejoinder, that the defendant did not give such security: Held, on demurrer, that the rejoinder was bad, as tendering an immaterial issue: Held, secondly, that the replication was bad, because the acceptance by a person holding a corporate office, of another incompatible office not corporate, did not operate as an absolute avoidance of the corporate office, though it might be ground of amotion; and that acceptance of an incompatible office does not operate as an absolute avoidance of a former office, in any case where the party could not divest himself of that office by his own act and without the concurrence of another authority to his resignation or amotion, unless such authority be privy and consenting to the second appointment : Held also, that the defendant, as long as he was an alderman and justice of peace of the City of N., was not a person capable of being appointed county treasurer. [S. C. 1 N. & M. 612; 2 L. J. K. B. 33. Considered, Worth v. Newton, 1854, 10 Ex. 255. Dictum not adopted, Davis v. Pembrokeshire JJ., 1881, 7 Q. B. D. 515. Eeferred to, B. v. Blaney, [1901] 2 Ir. E. 104.] Quo warranto. The first count of the information charged the defendant with usurping the office of alderman of the City of Norwich ; the second, the office of justice of peace within the city; and the third count, the offices of alderman and justice of peace. The plea to the first count set out a charter of King Charles the Second, whereby he granted, among other things, "That all the aldermen of the city who had borne the office of mayoralty, so long as they should continue in their public offices, should be justices of peace of the same city," and ordained the mode of electing aldermen ; [10] and the plea averred that the defendant was, in December 1781, duly elected alderman of the said city, and became and still is alderman thereof. To the second count the defendant pleaded the like charter, his election as alderman, and that in June 1788 he was duly elected and was mayor for one year next following and thereby became and was made a justice of peace, &c. There was a similar plea to the third count. Replication to the first plea, that King Charles the Second granted, &c., and the defendant was elected alderman as in that plea alleged, but that afterwards in 1788 he was elected and became mayor for one year next following, and thereby was constituted a justice of peace for the said city; and afterwards, in August 1827, the defendant, being such alderman and justice as aforesaid, was duly appointed to be treasurer of the county of the City of Norwich, giving security to account, &c., and that he gave such security to the then mayor, recorder, &c., being justices of the peace for the said city, as in that behalf required, and then and there took upon himself the office of treasurer, which offices of alderman and treasurer were wholly incompatible with each other, whereby the defendant vacated the office of, and ceased to be, an alderman of the said city. To the second plea, that the defendant was elected alderman and mayor, and became justice of peace as in that plea alleged, but that in August 1827 he was apointed treasurer, and gave security, and took on himself the office of treasurer, &c. (as before): and that the offices of justice of the peace and treasurer were incompatible. To the third plea, the same facts were replied; with an allegation, that the offices of alderman, justice of the peace and treasurer were incompatible. Rejoinder to each [11] part of the replication, that the defendant did not give such security to the mayor, &c., being justices of the peace for the said city, &e., as in the replication alleged, and of this, &e. Demurrer, stating for cause that the defendant had attempted to put in issue matter altogether immaterial and not properly issuable, and had not denied, confessed, or avoided the substantial matter in the replication. Joinder in demurrer. This case was argued in Michaelmas term 1831. Campbell in support of the demurrer. The rejoinder tenders an immaterial issue. 360 THE KING V. PATTBSON 4B.&AD.12. It admits that the defendant was elected to, and accepted and took upon himself the office of treasurer; and this renders it immaterial whether or not he gave the security; for by the statute 12 G. 2, c. 29, s. 6, "The high constables are required, at or before the next General Quarter Sessions after they shall have received any sum of money, to pay the same into the hands of such person whom the justices shall, at their respective General or Quarter Sessions, appoint to be the treasurer, (which treasurer they are thereby authorized to appoint,) such treasurer first giving sufficient security in such sums as shall be approved by the said justices at their respective Quarter...
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