The Queen against Hayward
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1862 |
| Date | 30 April 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 1190
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
S. C. 31 L. J. M. C. 177; 6 L. T. 285; 9 Jur. N. S. 45; 10 W. R. 558.
[585] the queen agaitist haywaed. Wednesday, April 30th, 1862.-5 & 6 W. 4, c. 76, s. 105. Municipal corporation. Clerk of the peace. Kemoval.-By The Municipal Corporation Act, 5 & 6 W. 4, c. 76, s. 103, where a borough has a separate Court of Quarter Sessions, the power of appointing the clerk of the peace is in the Council of the borough ; and, by sect. 105, the Court of Quarter Sessiona, of which the Kecorder is sole Judge, " shall have cognizance of all crimes, offences, and matters whatsoever cognizable by any Court of Quarter Sessions of the peace for counties ;" provided, among other things, that no Recorder, by virtue of his office, shall have power " to exercise any of the powers herein specially vested in the Council." Held, that the power of removing the clerk of the peace was in the Eecorder. [S. C. 31 L. J. M. C. 177; 6 L. T. 285; 9 Jur. N. S. 45; 10 W. R. 558.] Information in the nature of a quo warranto for usurping the office of clerk of the peace of the city of Rochester. PJea. That the city of Rochester is an ancient city, and is one of the boroughs mentioned and referred to in Schedule A. in stat. 5 & 6 W. 4, c. 76, as the borough of Rochester; and that the mayor and citizens of the said city and the said corporation are one body corporate and politic, by the name of Mayor, Aldermen and Citizens of the cjty of Rochester, and that in the said city, pursuant to the provisions of the said Act, there of right ought to have been one mayor and divers aldermen and councillors of the said city: and that, under and by virtue of the said Act of Parliament, a separate Court of Quarter Sessions of the Peace had been holden in and for the said city, and there of right ought to be a Recorder of and for the said city: and that there of right ought to have been, under the said Act of Parliament, a fit person to be clerk of the peace of the said city during his good behaviour; and that the place and office of [586] clerk of the peace of the said city was a public office and a place and office of great trust within the said city touching the administration of public justice within the same : that after the passing of the said Act of Parliament, and after the mayor, aldermen and councillors of the said city had been duly elected pursuant to the provisions of the said Act of Parliament, and after the said separate Court of Quarter Sessions of the Peace had been granted pursuant to the provisions of the said 3B.&B. Ml THK QUEEN V. HAYWARD 1191 Act ol Parliament, to be holden in aud for the said city, and after the Recorder of and for the (aid city had been appointed pursuant to the provisions of the said Act, to wit, on &e., the mayor, aldermen and councillors of the said city for the time being, then bang the Council of the said city, duly, and according to the provisions of the said Act of Parliament, appointed the defendant, then being a fit person in that behalf, to be clerk of the peace of the said city during his good behaviour, and the defendant then and there accepted the office of the clerk of the peace of the said city, and then and there became aud was the clerk of the peace for the said city. Averment, that by virtue thereof he claimed the office. Verification. Replication. That, after the defendant was appointed clerk of the peace of the said city, he grossly misbehaved himself, in that he, being a trustee of certain moneys far certain persons, did, with intent to defraud them, convert aud appropriate certain part of the said moneys to and for his own use, without their consent or knowledge : and thereupon afterwards, and before bis removal from his office as thereafter mentioned, a MU. in Chancery was preferred by one G. E., alleging that the defendant had embezzled part of the said trust moneys by sales of [587] stock which came into his hands as surviving trustee thereof, and praying that a certain partnership between him and the defendant might be declared to be dissolved ; and thereupon the defendant put in his answer, and stated that he had sold part of the said ,stock, aud received the proceeds thereof, aud applied the aame to his own use; and the Court decreed that the aaid partnership was dissolved: and afterwards, and before the removal of the defendant from his office, it became and was publicly known and notorious in the said city that the defendant had so misbehaved himaelf: and thereupon the Council of the said city summoned the defendant to appear before them to shew cause.why he should not, on account of such misbehaviour, be removed from his office; but the defendant did not appear or answer the charge: and the Council resolved that, on account of such, misbehaviour, the defendant be removed from the aaid office, and the Council did accordingly remove him; aud afterwards, duly and according to the provisions of the said Act of Parliament, appointed H. Wickham, then being a fit person, to be elwk of the peace of the said city during his good behaviour, who accepted the eaid office. Demurrer, and joinder therein. Mellish (with him Macuamara), for the defendant.-First. The power to remove the clerk of the peace of a borough having a Court of Quarter Sessions is in the Recorder; and the Town Council have no jurisdiction to remove him. Although under The Municipal Corporation Act, 5 & 6 W. 4, c. 76, s. 103, the clerk of the peace for such a borough is appointed by the Town Council, he is not a corporate officer. Before that statute the [588] offices of town clerk and clerk of the peace in boroughs were, in most cases, by the terms of the charters, united in the same person. But Begina v. The Recorder of Carmarthen (7 A. & E. 756), where it waa held that notice of appeal against a borough rate, under stat. 5 & 6 W. 4, c. 76, s. 92, must be given to the town clerk, and need not be given to the clerk of the peace, shews that, since that statute, the clerk of the peace is an officer of the Court of Quarter Saasriona. Lord Denman said, p. 759: " The Act which creates the clerk of the peace imposes upon him no duties to the Town Council." Aud Littledale J. said, p. 760: "Stat. 5 & 6 W. 4, c. 76, s. 92, puts the borough rate on the footing of a couaty rate; we are, therefore, to see what is adapted to the circumstances of each casa In that of a county rate, the officer of the party making the rate is the clerk of the peace; in that of a borough rate, it is the town clerk. It is true that stat. 57 G. 3t e* 94, s. 2, names the clerk of the peace; but, under The Municipal Corporation Act, the clerk of the peace of a borough does not act as the clerk of the peace of a couaty daes." [Blackburn J. Does it follow that he is not a corporate officer, so as to bring him under the power of the Town Council?] In Begina v. Grimshaw (5 D. & L., 2:49), where the question was, whether the relator in a quo warranto for executing the office of coroner of the borough of Wigan, in which judgment had been given for the; Crown (see 10 Q. B. 747), was entitled to costs, Patteson J, held that, since The Municipal Corporation Act, the coroner was not a corporate officer within the meaning of stat. 9 Ann. c. 20, and aaid pp. 261-262 : "He is the Queen's officer, his duties are entirely independent of the corporation, and although [589] he ia appointed by the corporation, it does not make him...
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