The Mayor and Commonalty of Colchester v Lowten
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 1813 |
| Date | 20 January 1813 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 89
LINCOLN'S INN HALL.
See Davis v. Corporation of Leicester, [1894] 2 Ch. 228. See also Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 108.
[226] The mayor and commonalty of colchester . lowten. Lincoln's Inn Hall. Jan. 12, 13, 14, 20, 1813. [See Davis v. Corporation of Leicester, [1894] 2 Ch. 228. See also Municipal Corporations Act, 1882 (45 & 46 Viet, c, 50), s. 108.] General Right of Corporations, of whatever Nature, at Law to alienate their Lands, held in Fee, subject as to Ecclesiastical Corporations to the restraining Statutes ; and no Instance of a Trust attached upon the Ground of Misapplication, as not to Corporate Purposes, except the Case of Corporations, holding to Charitable Uses. Whether such a Jurisdiction prevails in other Cases upon an Application to Purposes clearly not Corporate, Quaere. A Bill on that Ground impeaching Securities as obtained under an Abuse of Trust by the select Body of the Corporation of Colchester, using the Common Seal for raising Money to defray the Expence of Actions against the Mayor and Town Clerk, relative to Elections of the Recorder and a Representative of the Borough in Parliament, dismissed upon various subsequent Transactions, especially an Award, binding the Corporation at large through the select Body, acting with Authority, and upon a fair Question, whether the Purpose was Corporate, or not. Costs upon a groundless Imputation of Fraud. (See Attorney General v. Corporation of Carmarthen, Coop. Rep. 30.) The Object of this Bill was, that Indentures of Lease and Release, dated the 26th and 27th of July 1791, being a Mortgage for 2000 and Interest, a Bond, of the same date, as a collateral Security, and another Indenture, dated the 28th of January 1804, alleged to have been executed under the Corporate Seal of Colchester, might be declared void, and delivered up to be cancelled or declared to stand only as a Security for such Sums as were bona fide advanced by the Defendant for the Use of the Plaintiffs ; and an Injunction. The Bill impeached the Securities of the 26th and 27th of July 1791, as unjustly obtained ; and without any good or legal Consideration ; alledging, that by the Custom or Usage of the Borough none of the Lands, &c., vested in the Mayor and Commonalty, can be sold or mortgaged without the consent of the Mayor and Commonalty in Common Hall assembled, or the major Part [227] of them ; a Custom invariably adhered to since the Charter of Incorporation in 1763, except in the Instance of these Securities ; to which, contrary to such custom, the Common Seal was affixed by the Contrivance of Francis Symthies, then Town Clerk of the Borough, whose Agent the Defendant was, in a, clandestine Manner, without the Assent of the Mayor and Commonalty in Common Hall assembled. The Bill farther alleged, that of the Sum of 2000, stated in the Indenture of 27th of July 1791, to be advanced and paid by the Defendant to the Chamberlain for the Use of the Corporation, no Part was advanced ; but the real Consideration was a Bill of Costs to that Amount in defending, as Agent of Smythies, a Quo War-ranto Information, filed against him in 1788 for exercising the Office of Recorder of the Borough, and other Suits and Prosecutions, originating in Election and Party Purposes, and not connected with the Rights and Interests of the Corporation. To this Bill the Defendant put in a Pica and Answer ; pleading the Indentures 90 COLCHESTER (THE MAYOR, ETC., of) V. LOWTEN 1 V. & B, 228. and Bond of the 26th and 27th July 1791 : a Eeference and Award in 1801 between the Plaintiffs and Defendant concerning the Principal and Interest, secured by those Securities, that the Plaintiffs should pay the Defendant 2266, 155. and a Deed, dated the 28th of January 1804, confirming the Mortgage of 1791 ; and by way of Answer stating, that all the Circumstances, under which the Mortgage was obtained, and the true Consideration thereof, were laid before the Arbitrators. The Plea was disallowed by the Lord Chancellor as covering too much in covering the last Instrument. The Defendant then put in his Answer ; from which it appeared, that he had lately filed a Bill against the [228] Plaintiffs for a Foreclosure. He denied the Custom, as stated by the Plaintiffs; alledging, that the select body of the Corporation, consisting of the Mayor, Aldermen, Assistants and Common Council, which Common Council consisting of Eighteen were elected by and out of the Commonalty at large, who were upwards of One Thousand Three Hundred, have full Power to sell or mortgage the Corporation Lands without the Consent of the Commonalty at large, in Common Hall assembled. He denied, that the Common Seal was affixed to his Mortgage contrary to the Usage by the Contrivance of Smythies in a clandestine or improper Manner ; admitting, that it was affixed without the Consent of the Mayor and Commonalty, in Common Hall assembled, or the major Part of them ; which he insisted was not necessary. He admitted that the 2000 was not advanced to the Chamberlain for the Use of the Corporation ; but aroso in the following Manner :-In 1787 upon an Election for the Office of Recorder Smythies was returned as duly elected. In consequence of the Warmth, occasioned by this Contest, many Actions were brought against Edward Capstack, the Mayor, for refusing Votes, tendered for Mr. Grimwood, the unsuccessful Candidate ; who applied to the Court of King's Bench for Leave to file an Information in the Nature of a Quo Warranto against Smythies ; which was terminated by a Compromise : Mr. Grimwood being sworn into the Office of Recorder, and Smythies being appointed Town Clerk. In 1788 upon the Election of a Representative of the Borough in Parliament Mr. Tierney and Mr. Jackson being the Candidates, Bezaliel Angier, the Mayor, made a special Return, that the Numbers on the Poll were equal; and Mr. Tierney commenced an Action against him for a false Return. [229] On the 20th of July 1789, at a Meeting of the select Body of the Corporation, consisting of the Mayor, Aldermen, Assistants, and Common Council, an. Order was made ; reciting, that such Actions had been commenced, and the Opinion of the Assembly, that Capstack and Angier had executed the Office of Mayor faithfully and honestly; arid therefore resolving, that they should be protected, defended, and indemnified, by the Corporation by and out of the Revenues thereof against such suits ; and for better carrying that Order into Effect, that the Mayor for the Time being together with any Two of the Aldermen, any Two of the Assistants, and any Two of the Common Council, be a Committee for the Purpose of borrowing a Sum, not exceeding 2000, for answering the above End ; such Committee being authorized to raise the 2000 by Mortgage of the Estates of the Corporation ; and to affix tho Common Seal to all Deeds, necessary for effecting such Purpose. On the 18th of December 1789, at another Meeting of the select Body it was ordered, that they should make such Return to tho Mandamus, requiring them to swear Mr. Grimwood into the Office of Recorder, as Counsel should advise ; in order that the Election might be tried ; that it should be tried at the Expence of the Corporation ; that the Mayor should be indemnified by the Corporation ; that the Defendant should be employed to conduct this Business ; and that the Costs of defending the Quo Warranto Cause against Smythies should be borne by the Corporation. The Answer farther stated, that .in prosecuting and defending these Causes, 2156, 6s. lid. became due to the Defendant; of which Sum 1400 was Money out of Pocket; and his Bill of Costs on that Account was the Consideration for his Mortgage ; which he insisted came within the Spirit of the preceding Orders. [230] The Interest was regularly remitted to the Defendant by Smytliif.s during his Life; but since his Death in 1798 no Interest having been paid, the Defendant applied for his Money, and the Plaintiffs disputing the Bills, a long Correspondence ensued ; which terminated in an Agreement for a Reference of the Defendant's Claims, dated the ^2d of April 1801, signed and sealed by the 1 V. &B. 231. COLCHESTER (THE MAYOR, ETC., of) V. LOWTEN 91 Defendant ; and sealed on the Part of the...
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