The Queen against The Mayor, Aldermen, and Burgesses of The Borough of Cambridge
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1840 |
| Date | 14 November 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 980
IN THE COURT OF QUEEN'S BENCH.
[702] the queen against the mayor, aldermen, and burgesses of the borough of cambridge. Saturday, November 14th, 1840. The council of a borough, acting under stat. 5 & 6 W. 4, c. 76, s. 65, removed a town clerk, who had been elected to hold during good behaviour, but had not made the declaration prescribed by stat. 9 G. 4, c. 17, s. 2. Held that, as having been an officer de facto, he was entitled to compensation under sect. 66 of stat. 5 & 6 W. 4, c. 76. Mandamus. The writ recited that the borough of Cambridge is a borough mentioned in the Municipal Corporation Act, 5 & 6 W. 4, c. 76 ; and that, long before and until and after the time of passing that Act, and continually thence until 1st January, 6 W. 4, Charles Pestell Harris, of the said borough, gentleman, was an officer of the borough, in a certain office of profit within the same, (that is to say) the office of town clerk of the borough ; and, during all the time aforesaid, was and acted as town clerk of the said borough, and received the fees and emoluments of and pertaining to the office: that, on or about 1st January, 6 W. 4, under the provisions of the said Act, C. P. Harris was removed from the said office by the council elected under the said Act in the borough ; whereupon he became entitled to have an adequate compensation, to be assessed by the council of the borough, and paid out of the Borough Fund, for the fees and emoluments of such office : that C. P. Harris, on or about 23d March in the year aforesaid, did prefer his claim for such compensation to the council, &e. (The recital then set out performance of the requisites of stat. 5 & 6 W. 4, c. 76, s. 66, a disallowance of the claim by the council, an appeal to the Lords of the Treasury, and that they awarded a compensation: that the same ought to be secured by bond, which had been demanded of the corporation ; and that they had refused [703] to give it. The writ then commanded the defendants to prepare and execute, &c., the bond, or shew cause, &c.) Return. That the within mentioned C. P. Harris was not, at the time of the passing of the Act, &c. (5 & 6 W. 4, c. 76), or during the time in the said writ in that behalf mentioned, or any part thereof, an officer of the said borough in the within mentioned office of profit, within the same, that is to say, the office of town (e) 4 B. & Aid. 660. See Bex v. Woolpit, 4 A. & E. 205. 12A0.&B.7M. THE QUEEN V. THE MAYOE OF CAMBRIDGE 981 clerk of the said borough, according to the true intunt and meaning of the said Act of Parliament, as by tbe within writ is suggested : wherefore we cannot prepare and execute, &e. Plea. That, before the passing of the said Act of Parliament, to wit on 16th June 1830, 0. P. Harris was duly elected and appointed by the mayor, bailiffs, and burgesses of the borough to the office of town clerk of the said borough, to continue in the said office until 24th August 1831 ; and, upon such election and appointment, 0. P. Harris was duly admitted into the said office, and thereupon took the several oaths, and made and subscribed the declaration, required by law in that behalf: that afterwards, and before the passing of the said Act uf Parliament, and before the said 24th August 1831, to wit on 16th August 1831, he was again duly elected and appointed by the mayor, bailiffs, &c. to the said office of town clerk of the said borough, for the ensuing year, commencing on 24th August then next, and, upon such election and appoint ment aa last aforesaid, took the said several oaths and made and subscribed the said declaration : that, afterwards, and before the passing of the said Act of Parliament, and before the expiration of the year commencing on 24th August 1831, to wit on 16th August 1832, C. P. Harris was again duly elected and [704] appointed by the mayor, &c. to the said office of town clerk of the said borough for the ensuing year, from 24th August then instant, and, upon such election and appointment as last afore said, took the said several oaths and made and subscribed the said declaration : that afterwards, and before the passing of the said Act of Parliament, and before the expiration of the year ensuing after the said 24th August 1832, to wit on 16th August 1833, it was resolved and determined by the mayor, &c. that 0. P. Harris should thenceforth hold the said office of town clerk during so long as he should demean himself correctly and properly, and to the satisfaction of the mayor, &c., in the said office of town clerk, and in the execution and performance of the duties thereof and incident thereto: that afterwards, in pursuance of...
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