Superior Courts; Lord Chancellor.

113

they would be lost for ever to the borough, as there was no mode of compelling the parties to refund.

the greatest importance, being in effect whe ther the new act for the regulation of municipal corporations, instead of preventing abuses for political party purposes as the le- The Solicitor General, Mr. Jacob, and Mr. gislature intended, was unhappily so worded, Booth for the defendants.-The respondents inthat the new governing bodies were left at li-sisted on the insufficiency of the allegations in berty to waste and misapply the property of the information to sustain the charges of a the burgesses to the same or greater extent breach of trust. On other points in the case than their predecessors did. The old corpo- they followed the arguments of the counsel on rations had the power arbitrarily and irrespon- the same side in the Rolls Court;band as to the sibly to dispose of the corporation property to attendance on the petition for appointing chaany purposes except elections of members of rity trustees, they said it was the usual course parliament. If the construction put by the to give the town councils notice to attend, and Master of the Rolls on the new act be held to that alone would entitle the party consequently be the true construction, the burgesses were attending, to their costs. [The Lord Chancelnow as much at the mercy of a new governing lor.-Such costs were paid out of the charity body as they were of the old corporations. funds, and not out of the borough fund.] The information was filed to prevent the town At all events, the corporation was bound to council of Norwich, where one political party see that the charities were managed properly, was dominant, from wasting the common funds for the benefit of the objects of them; and as in paying expenses incurred at law for the to the quo warrantos, which went to question benefit of individual members, or for streng- the legal existence of the corporation, the new thening the party to which those members governing body had the duty of defending were attached. One head of those expenses, their own appointments, and elections cast which the majority of the council voted to be upon them. The 92nd section of the act juspaid out of the surplus of the city or borough tified the payment of both heads of expense fund, was incurred in defending the mayor and out of the surplus borough fund, and so the a town councillor against writs of quo warranto Master of the Rolls held. The payment would in the Court of King's Bench. Why should not, as was asserted on behalf of the relators, these expenses of those individual members be be an irreparable injury to the corporation, as paid out of the corporate property? The second Messrs. Springfield and Brightwell, and the head of expenses also ordered to be paid out of other members of the council who were resthe borough fund was incurred in pursuance of pondents, were responsible persons, and aca resolution of a majority of the council, direct-countable like other trustees for breaches of ing the town clerk and other members to go to trust, if the Court should hold that the payment London to support in this Court, and before of these expenses constituted a breach of one of its masters, a petition for appointing trust. persons of their selection as trustees of the charities of Norwich: the trusts of which were supposed to have become vacant on the 1st of August 1836. This was a wasteful and illegal application of the corporate property. The new act directed the charity fuuds to be kept separate from the corporate fund, and that the charities were not to be managed by the corporation. The 92d clause of the act, on which the respondents relied, did not warrant the payment of their expenses out of the surplus of the borough fund; there was no surplus, and if there was, it could only be expended" for the improvement of the town and benefit of the inhabitants," which the intended payments sought to be restrained, could not be interpreted to be. The Master of the Rolls assumed that the Court had no jurisdiction, and that it belonged to the auditors of the corporation to question and to check the payments out of the corporate fund. But the auditors could not stay the payments, however wrongfully made. Their office was to see vouchers for payments. As to the want of jurisdiction, his Lordship, when he was Master of the Rolls, asserted in the case of The Attorney General v. The Mayor and Corporation of Liverpool,a the jurisdiction of this Court to interpose in any obvious misappropriation of the borough fund. If these payments were once made,

a 1 Myl. & C. 201.

The Lord Chancellor.-The Master of the Rolls decided the demurrer without giving any opinion on the construction of the act for the regulating of municipal corporations, being of opinion on the pleadings, that the relators had not stated a case to resist the demurrer-that there were not allegations in the information sufficient to give the Court jurisdiction. If the relators had a case to state, it was somewhat surprising that they adopted this course of appealing from the decision of the Master of the Rolls, instead of amending their information, and thereby obtaining a construction of those sections of the new act, on which their counsel urged so many arguments. If the relators had so missed the opportunity of bringing their case fully before the Court, they had no right to complain of his Lordship's judgment, if the funds of the corporation should ultimately be found to have sustained a loss. The relators had stated in a very peculiar manner, the legal existence of this corporation, of which the relators themselves were members; although they alleged that they had no object in destroying the corporation, they cautiously abstained in their information from giving credit to its legal existence. They stated a resolution of the town council, directing the corporation seal to be put to a petition to this Court for the appointment of

b 13 Leg Obs. 293,

114

Superior Courts: Lord Chancellor; King's Bench.

charitable trustees; and directing the town a large discretion to the council to apply the clerk and others to proceed to London to surplus, of the borough fuud for the publie support that petition. The information fur-benefit of the inhabitants and improvement of ther stated, that Mr. Springfield and Mr. the borough. He was not to assume in this Brightwell were called upon in the Court of information, that the payments intended to be King's Bench, to shew why the former acted made constitute a breach of trust, as in this as mayor and the latter as town councillor; frame of the information, these payments and that the town clerk was ordered to act for may be made out of a fund in the possession each of them in that proceeding; and that it of the council, without a breach of trust. The was given out that the expenses were to be impeachment of the two members of the corpaid out of the borough fund by the treasurer, poration by quo warranto, questioned the legal and not by themselves individually. The in- existence of the corporation, which this Court formation then charged that such application was to presume to be legally constituted, and of the borough fund was illegal, and ought to if successful, might destroy it. If an unfounded be restrained by this Court, and it prayed an attempt was made to destroy the corporation, injunction accordingly. There was no allega- and if the council had a surplus fund, could tion that the case by the quo warrantos affected it be said that to apply it to the defence of the the two defendants individually, but all the corporation, was a breach of trust? It would allegations went to attack the legal existence be a breach of trust not to defend the legal of the corporation. With regard to the fund existence of the corporation. So also the cor out of which the expenses were to be paid, poration was bound to interfere in the appointthe allegation was in the most general terms, ment of trustees of the charities. The corponot specifying any particular fund, but stating rations are in many cases interested parties in that it was out of a fund vested in the defen- the charities, which were by the 71st section dants as the property of the corporation. His to be separated from the corporation property. Lordship agreed with the Master of the Rolls, The trusts of them had ceased. The corthat if charges were so ambiguous as not to poration had an interest in protecting them amount to a breach of trust in every way they for the benefit of the inhabitants, and if they can be understood, the presumption is against had so large a discretion over the surplus of the party pleading. If two funds were vested the borough fund, they were bound to apply in the defendants, one of which could be le- it in protecting the charities; and to that congally applied to the payment of these expenses, clusion his Lordship would have come, even and the other could not, and the information where he to overrule the demurrer; but he charged generally, that the defendants meant agreed with the Master of the Rolls that to pay them out of a fund in their possession, the allegations in the information were not without specifying the same, the Court could sufficient to sustain the charges of breach not presume that the payment was to be made of trust, and it was on that insufficiency alone, out of the fund out of which it could not be that he founded his judgment. made legally. Unless he could conclude from the pleadings that, under no circumstances would it be justifiable for the defendants to pay the expenses out of the corporate fund, there was nothing in this injunction to call for any judgment from him on the act of parliament. It was said in the argument, that if the defendants had any fund out of which they could legally pay these expenses, they ought to have stated it. But that was not so-it was incumbent on the plaintiffs to make out their case of breach of trust; and if they failed to do so, the defendants need not answer at all. And if the plaintiffs stated their case in such a way, that one view of it would be consistent with innocence in the defendants, the Court was not to assume that they were affected by it. Looking to the 92nd section of the act, he had no doubt that the Master of the Rolls came to a right conclusion on this record. According to the general rules of Courts of law, applicable to trustees, they have an authority incidental to their office to pay out of the trust fund all necessary expenses arising from the proper discharge of their duties in respect to the trust. Attorney General v. The Inhabitunts of Essex, Attorney General v. Commissioners of Sewers. The rules at law were the same as in this Court. The 92d section gave

c 4 T. Rep. 521-24. d 1 B. & C. 232-34.

The demurrer was allowed, with costs to the defendants, and leave to amend the information was refused, upon the grounds stated by his Lordship in the beginning of his judgment. Attorney General v. Mayor and Corporation of Norwich, at Westminster, May 6th, 27th, and 31st, 1837.

King's Bench.

[Before the Four Judges.]

STRIKING ATTORNEY OFF THE ROLL.

The court will not strike an attorney off the roll upon the ground of misconduct alleg. ed to have been committed before his admission. If there has been a defective service under the articles of clerkship, or if such articles themselves, or their registry. or the admission and enrolment should be defective, the application to the Court on account of any such defect, must, under the 6 W. 4, c. 7, s. 8, be made within twelve months from the time of the admission of the clerk.

Sir W. Follett shewed cause against a rule for striking an attorney off the roll, on the ground that his service had not been regular. There are two objections to this: first, that it was not applied for in time. Secondly, that

Superior Courts: King's Bench; Nisi Prius.

116

Superior Courts: King's Bench Practice Court; Common Pleas.

The report was then read as part of the the rule of Court, must be served on the plainplaintiff's evidence. tiff himself, and not on the attorney. That Verdict for the plaintiff, damages, 40s.must of course only apply to such cases, as Thornton v. Stephen, T. T. 1837. K. B. N. P. under all circumstances would admit of such a

King's Bench Practice Court.

PARTICULARS.-LANDLORD AND TENANT.

Where the assignee of a lease proceeds against his tenant for breaches of covenant to pay rent and repair, the Court will not compel the delivery af particulars with dates and sums.

In this case, Hoggins obtained a rule nisi, calling on the plaintiff to shew cause why he should not give further and better particulars of the plaintiff's cause of action.

It was an action of covenant, for the recovery of damages for certain breaches of the defendant's covenants to repair and pay rent, pursuant to the covenants contained in the lease on which the action was brought. The grounds of the action were stated generally in the particulars of the plaintiff, but dates and sums were not introduced, attached to them. The object of the rule now obtained was, to have the particulars already delivered, with the addition of both dates and sums attached to them.

Cause was shewn against this rule so obtained by R. V. Richards, who contended, that as it was shewn by the affidavit that the plaintiff was an assignee of the lease containing the covonants on which the action was brought, and it was not shown how long the defendant had been in possession of the premises, the defendant was as good a judge of the real cause of action as the landlord. There was consequently no pretence for requiring the defendant to give any further and better particulars of the d mand. Under these circumstances, the rule obtained ought to be discharged.

service being effected. If such a service could not be effected, it would be hard to compel a defendant to remain in custody until circumstances should so far alter, as to enable him to effect such a service. The consequence of such a holding would be, that as the plaintiff might go where he pleased, the defendant might remain in custody for an indefinite period. There the affidavits on which he moved disclosed the fact, that notwithstanding various efforts had been made, in order to discover the residence of the plaintiff, they had been unavailing. The object of the present application was therefore, that the ordinary strictness of the rule as to service might be relaxed, and service of the notice on the attorney in the cause, be deemed sufficient.

Coleridge, J., permitted that service to be sufficient.

Rule granted--Grainger v. Wilkes, E. T. 1837. K. B. P. C.

Common Pleas.

STATUTE 7 GEO. 2, c. 20.-TAXATION OF

COSTS.

Costs under the Statute of 7 Geo. 2, c. 20, aɛcording to the established practice, are to be taxed as between party and party.

N. Clark had, on a former day, obtained a rule, calling on the defendant to shew cause why the prothonotary should not review his taxation. It was an action of ejectment brought by the mortgagee, to recover the possession of the mortgaged premises from the mortgagor, Coleridge, J., thought that, under all circum- and the defendant had obtained the usual order stances, the plaintiff ought not to be compelled for the stay of proceedings. The prothonoto give further particulars. The case was dis-tary, on taxing the costs, allowed them as betinguishable from one in which the defendant was sought to be affected by a forfeiture. The present rule must consequently be discharged. Rule discharged.-Sowter v. Hitchcock, T. T. 1837. K. B. P. C.

SMALL DEBTOR.-PLAINTIFF'S RESIDENCE.-
SERVICE OF NOTICE.

If it is clearly shewn that the residence of the
plaintiff in the cause cannot be found, the
notice of the defendant's intention to apply
for his discharge under the 48 G. 3, c.
123, may be served on the attorney in the

cause.

This was an application by Sir G. Lewin, to discharge the defendant under the 48 G. 3, c. 123, he having remained twelve calendar months in execution for a sum not exceeding 201., exclusive of costs. From the technical rule that an attorney's duty and power in an action ended with judgment, it had frequently been held by the Courts, that where a defendant sought to obtain his discharge under this act, the notice required for that purpose by

tween party and party, but it was contended, that they should be taxed as between attorney and client.

Wilde, Serjeant, now shewed cause. He referred to section 1 of the statute 7 Geo. 2, c. 20, under which the application was made, and contended that the costs had been rightly taxed. It was provided by that section, that any person having a right to redeem, who should at any time pending an action, pay to the mortgagee or bring into Court, in the event of his refusal, all the principal monies and interest due upon the mortgage, "and all such costs as had been expended, to be ascertained and computed by the Court, or proper officer appointed for that purpose," the same should be deemed and taken to be in full satisfaction and discharge of the mortgage. Here, "costs" being spoken of without any particular reference to them, they must be considered to be costs as generally known. He besides had an affidavit, in which it was stated, that inquiries had been made in the Courts of King's Bench and Exchequer, and it was ascertained, that in those Courts the practice had never been to allow costs as be

Superior Courts: Exchequer.-Parliamentary Proceedings.

tween attorney and client. At the Six Clerks' Office, Chancery Lane, similar inquiries had also been made, and it had been learned that the costs were always there taxed as between party and party.

N. Clark, in support of his rule.-His application in its terins was, that the prothono tary might review his taxation, and not that the costs should be taxed in any particular manner. He had written to Mr. Bunce, one of the masters in the K. B., who had told him that the costs in such cases, in that Court, were taxed liberally, but not quite as between attorney

and client.

The Prothonotary of the Court reported that the costs were taxed in the same manner in this Court.

Tindal, C. J.—If the case were to be sent back for the costs to be taxed liberally, the parties could never agree as to the extent of liberality to be shewn.

N. Clark cited Nowell v. Roake.a Tindal, C. J.-That was a case before a ury: you are now before the Court. All that you have said shews the practice adopted in this case to be correct, and that the costs hould not be taxed as between attorney and client. The practice has not been such as you alter the established rule, for this case esperepresent for many years, and the Court will not cially.

Park, Bosanquet, and Coltman, J. J., concurred.

Rule discharged.-Doe d. Capps v. Capps, E. T. 1837. C. P.

Exchequer.

SHORT NOTICE OF TRIAL.-COUNTERMAND.

The defendant being under terms to accept short notice of trial, there can be no countermand, and the plaintiff having given notice of countermand, the defendant was held entitled to the costs of the day. W. H. Watson had on a former day obtained a rule for judgment as in case of a nonsuit, against which,

Addison now shewed cause. It appeared that the defendant was under terms to take short notice of trial. On the 17th March, he was served with notice for the 25th, which, however, on the 21st was countermanded. The only question was, whether the defendant was entitled to the costs of the day; and the rule of H. T. 2 W. 4, s. 61, was pointed out, by which it was directed that six days' notice of countermand should be given in country causes, unless where short notice of trial was only necessary.

Parke, B., consulted with the officer of the Court, and said that where the plaintiff gave short notice, there could be no countermand. The defendant was therefore entitled to his

costs.

Rule accordingly.-Doncaster v. Cardwell, E. T. 1837. Excheq

a 7 B. & C. 404,

DESCRIPTION OF DOCUMENT IN Rule.

117

A rule having been drawn up upon reading a paper writing," that was held to be a sufficient description of the document. for the delivering of the postea to the plaintiff, Crompton had obtained a rule in this cause in order that the verdict might be entered pursuant to an award, subject to which a verdict had been taken by consent. And

Willmore shewed cause.-The form of the rule was pointed out. It was drawn up on reading the affidavit of a certain person, and "the paper writing," thereto annexed. It was urged that it was not enough to refer thus to the award, but that the document should be specified. The case of Sherry v. Okes, 1 H. & W. 119, was referred to, where the rule for setting aside an award was drawn ing a paper writing, which was in fact a copy of the award, but which was not stated to be so, and it was held insufficient.

up

on read

Per Curium.-Then it was not sworn that

the paper writing was a copy of the award, and the rule besides was drawn up on reading a paper writing, purporting only to be a copy of the award.

Crompton pointed out the report of the same the award being annexed. case in 3 D. P. C. 349, where the rule appeared to have been drawn up on affidavit, no copy of

Parke, B.-The distinction from the present case is now clear. Cause was then shewn on the merits.

Platt v. Hall, E. T. 1837. Excheq.