The Mayor, Aldermen, and Burgesses of the Borough of Berwick upon Tweed against James Jeffries Oswald
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1286
IN THE EXCHEQUER CHAMBER.
Affirmed in House of Lords, 5 H.L.C. 856; 10 E.R. 1139 (with note).
[653] in the exchequer chamber. (error from the queen's bench.) the mayor, aldermen, and burgesses of the borough of berwick upon tweed against james jeffries oswald. 1854. Covenant with the Mayor, &a. of the borough of B. on a deed, executed after stat. 5 & 6 W. 4, o. 76, and before stat. 6 & 7 Viet. c. 89, by which, after reciting that the council of the borough had elected D. treasurer of the borough, defendant became surety to the Corporation for D.'s accounting to them "during the whole time of D. continuing (a) No fourth Judge was present this day. EL. & BL 884. THE MAYOR OF BERWICK V. OSWALD 1287 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." Averments that, by subsequent elections, D. was continued in his office and did not account.-Plea : that D. was elected to the office, and the deed given, whilst the office was annual under stat. 5 & 6 W. 4, c. 76, s, 58; that, on 9th November 1843, D. was, in obedience to stat. 6 & 7 Viet. c. 89, s. 6, elected to the office during pleasure; and that he accounted up to 9th November 1843. On demurrer, the Court of Queen's Bench gave judgment for the plaintiffs. Error being suggested, -Held by Cresswell and Williams Js., and Parke, Alderson and Martin Bs., affirming the judgment below, that, the functions and duties of the office not being changed, it continued the same office; and that the change in the tenure was provided for by the language of the deed, and therefore did not discharge the sureties.-Dissentientibus Jervis C.J., Pollock C.B. and Maule J., on the grounds that the parties to the instrument should be presumed to be contracting on the supposition that the existing law should continue to exist; that there were uo words to shew that the parties intended to be bound in case the tenure of the office was changed; and that, the risk of the sureties being effected by the change in the tenure, the office did not remain the same within the meaning of the security deed.-Judgment affirmed. [Affirmed in House of-Lords, 5 H. L. C. 856; 10 E. R. 1139 (with note).] The plaintiffs in this action having obtained a verdict on all the issues in fact, and the Court of Queen's Bench having given judgment in their favour on the demurrers to two pleas, the sixth and seventh, final judgment was signed for 21611. 18s. The defendant suggested error. The declaration and the pleas which led to issues in law are fully stated in the report of tbe case below (a), [654] The following abstract of the pleadings is taken from the judgment of Martin B. in the Exchequer Chamber. "The declaration was upon a deed, dated the 15th of January 1842, which recited that, at meetings of the Town Council of the Borough and town of Berwick upon Tweed, held on the 21st of December 1841 and llth January 1842, certain resolutions were agreed to relative to the office of treasurer of the borough, and, amongst them, that the treasurer should find securities for the due execution of his office in the sum of 20001.; and that, at one of these meetings, a person named Murray had been elected the treasurer. The deed then proceeded to state that the said Murray, and the defendant, and certain other persons, as cautioners, sureties and full debtors, with Murray, bound themselves jointly and severally to the plaintiffs, to pay to them all sums of money which Murray should receive "in virtue of" his "said appointment as treasurer aa aforesaid, during the whole time of" his "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." The deed then proceeds to provide for the due execution by Murray of his said office, and for his attention to its duties during hia continuance in office, and limited the liability by reason of it to 20001. The declaration then alleged that Murray became treasurer by virtue of the election mentioned in the deed; and that, by virtue of an election made on the 9th November 1842 and other subsequent elections, he continued treasurer until the 24th of June 1848: that he received various sums of money by virtue of his office; and, for a breach, alleged that he had not paid these moneys to the plaintiffs. To this declaration, there were several [655] pleas; to two of them (the 6th and 7th) there were demurrers. Upon the argument, the 7th was abandoned by the learned counsel for the plaintiff in error: and the only question argued before us was the validity of the 6th plea. "The 6th plea stated, that the election of Murray to be treasurer as mentioned in the deed, and also his election on the 9th November 1842, were made under and in pursuance of the stat. 5 & 6 W. 4, c. 76, The Municipal Corporation Act; and that, on the 9th November 1843, he ceased to be treasurer under and by virtue of either of these elections. That, on the 9th November 1843, in pursuance of stat. 6 & 7 Viet. c. 89, he was elected by the town council to be treasurer, to hold the office during (a) Mayor of Berwick v. Oswald, 1 E. & B. 295 (where, in the first line of the marginal note, for " by " read " with "). 1288 THE MAYOR OF BERWICK V. OSWALD 3 EL. & BL. 658. their pleasure. That, after the 9th November 1843, he never held the office of treasurer aave under the election made in pursuance of the statute last mentioned ; and that he had duly accounted for all money received by him prior to the 9th November 1843, or under or by virtue of his office as treasurer under his elections in pursuance of stat. 5 & 6 W. 4, c. 76; and that the money mentioned in the breach was received by him, after the 9th November 1843, and after his election under stat. 6 & 7 Viet, c. 89." The case in error was argued in laat Hilary Term (a). Unthaiik, for the defendant, in support of the suggestion of error. The seventh plea cannot be supported ; and the argument will be confined to the sixth plea, which raises two points. First: whether the bond is so worded as to make the sureties liable for the conduct of David [656] Murray after the first year of his continuance in office. At the time when the bond was executed, stat. 5 & 6 W. 4, c. 76, s. 58, was in force; and, under it, a treasurer was necessarily appointed in every year. The condition of a bond, for the good behaviour of one holding an annual office, is, primtl facie at least, confined to the first year, though express words may be added to shew that it applies beyond that time. General words are not sufficient to rebut this presumption ; Lord Arlington v. Merricke (2 Saun. 403), Liverpool Waterworks Company v. Atkinson (6 East, 507). Secondly : the change in the law introduced by stat. 6 & 7 Viet. c. 89, s. 6, has substantially altered the nature of the risk incurred by the sureties; and there are no words in the bond to ahew that the sureties undertook to be responsible for this altered risk. The worda "any annual or other future election" had a sensible meaning as applied to the state of law existing at the time they were used, as stat. 5 & 6 W. 4, c. 76, s. 58, did not require that the treasurer should be elected for an entire year. The council are by that Act bound to elect in each year; but they may elect more than once in the year; and, if they did so, the election would be other than an annual election. Then the change introduced by stat. 6 & 7 Viet. c. 89, s. 6, alters the risk. Before that Act a treasurer went out of office at the end of the year unless the majority of the council were willing to take the active step of re-electing him. Now, he continues in office, unless the majority are willing to take the active and probably invidious step of turning him out: that surely increases the probability of an unfit treasurer being continued, and so increases the risk of his sureties. [657] The bargain was made under one state of the law, and does not apply to an altered state of law. Manisty, contr&. The words used in this bond shew that the parties intended to be answerable so long as D. Murray held the office continuously. The class of cases commencing with Lord Arlington v. Merricke (2 Saun. 403) does not apply when such an intention is shewn; Augero v. Keen (1 M. & W. 390), Frank v. Edwards (8 Exch. 214). [Alderson B. In that last case the appointment to the office was by two justices of the peace under stat. 59 Gr. 3, c. 12, s. 7, and the appointment had neither been revoked by the vestry, nor resigned by the officer. If you look at the Act you will see that these facts were very material to the dicision.] In all cases of this kind it must be a question of construction; here the context shews that "office" meant " treasurership." And the change of the tenure in the office has not altered the nature of the office. Unthank was heard in reply. Cur. adv. vult. There being a difference of opinion on the Bench, the Judges, in this Term (May 10), delivered separate judgments. Martin B. This was a writ of error upon a judgment of the Court of Queen's Bench. (After stating the pleadings as ante p. 654, his Lordship proceeded.) [658] The arguments and judgment in the Court below are reported in 1 E. & B. 295: and that Court was of opinion that the plea was bad, and gave judgment for the plaintiffs below. I am of opinion that this judgment was right, and that it ought to be affirmed. By stat. 5 & 6 W. 4, c. 76, a. 58, it was enacted that the council of every borough should in every year appoint a fit person, not being a member of the council, to be the treasurer of the borough, and that they should take such security for the due (a) Thursday, January 19; before Jervis C.J., Pollock C.B., Maule, Cresawell and Williams Ja., and Parke, Alderson and Martin Bs...
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