1838. had been a rate which was abandoned by the respondents as illegal, an illegal rate was no rate, and consequently there was nothing before the Court against which an appeal could The Recorder be heard. The QUEEN V. of STAMFORD. The affidavit coucluded by referring to The King v. Justices of Cambridge (a), to shew that the Recorder had jurisdiction. The affidavit of the town clerk, in answer, stated that previous to the Easter sessions, 1837, he communicated to the attornies for the appellants, that the town council having had the opinion of counsel that the rate was a nullity, considered it necessary to make a new rate, which was accordingly done; and that at the Michaelmas sessions the Court decided that there was no rate to appeal against, and that the burden was on the appellants to shew that it was a rate. Sir J.Campbell A. G. now shewed cause. The Recorder was quite right in his decision. As the rate was not produced under the notice, it was incumbent upon the respondents to prove it by secondary evidence, in order to give the Court jurisdiction. The facts in this case are wholly distinguishable from the case of The King v. The Justices of Cambridge (a). There a valid order of justices was produced at the sessions; and this Court was of opinion that the objections taken to it were not tenable, even if the affidavits which contained them were admissible. In the present case there was no evidence before the Court of any rate at all, and no one appeared for the respondents. The rate itself had been the subject of an action, and had been held to be bad, as a retrospective rate; Woods v. Reed (b): it was therefore no longer in existence. The burden was clearly on the appellants to prove not only the rate, but also that they had been called on to pay under it. (a) 4 N. & M. 233. (b) 2 Mee. & Wels. 777. See 7 Will. 4 & 1 Vict. c. 81. Sir W. W. Follett, contrà. It is contended that because there was no legal rate the Recorder had no jurisdiction; 1838. The QUEEN of STAMFORD. but the appellants' case depended, of course, on the ille- บ. gality of the rate. The town clerk has not denied the facts The Recorder that the different adjournments were made at his own request. [Lord Denman C. J. Does it appear to have been brought to the Recorder's notice that the appeal had been partly heard before him at the Epiphany sessions?] That was not disputed. Lord DENMAN C. J.-We think that the rate was sufficiently before the Court to put it in possession of the appeal, and that the decision was erroneous. PATTESON, WILLIAMS and COLERIDGE Js. concurred. Rule absolute. The QUEEN v. FROST. Thursday, Nov. 15th. MAULE, in Michaelmas term, 1837, had obtained a rule A controversy calling upon the defendant to shew cause why a mandamus existing in a should not issue to him to pay over to the treasurer of the borough of Newport all sums of money received by him for and on account of the rents of the corporation property of the said borough. The rule was obtained on the affidavit of one James Goold, who stated himself to be a rated inhabitant, and a burgess and freeman of the borough; which affidavit contained the follow corporation between the freemen, under the old charter, and the town council, under 5 & 6 Will. 4, c. 76, as to the ex clusive right of the former to some corporation property to their own private use, a public meeting of the freemen was held, and a resolution was carried at the instance of A., a freeman, that the rents should be paid into the hands of the defendant, to wait until the claim of the freemen should be decided: the rents having been so paid, and a rule nisi having been obtained by A., as a freeman and burgess, and an inhabitant of the borough, liable to contribute to the borough rate, for a mandamus to the defendant to pay the money over into the hands of the treasurer of the borough, the Court discharged the rule: and semble, the parties to apply for a mandamus in such a case are the town council, treasurer, or other authorized party, and not any individual having a remote interest in the corporation funds. 1838. The QUEEN v. FROST. ing statements: For many years before, and at the time of the passing the Municipal Corporation Act (5 & 6 Will. 4, c. 76), the mayor, aldermen and burgesses of Newport had been seised of certain lands and hereditaments, amongst which were some premises called the Corporation Wharf, which, by a lease dated 1st January, 1827, had been demised by the mayor and aldermen of the borough of Newport to George Getling, for the term of twenty-one years, at the rent of 102. 10s. per annum. Up to Michaelmas, 1832, the rent was received by the town-clerk, and was applied by him, under the orders of the mayor and aldermen, for the payment of salaries and for other public purposes. The defendant, on the 26th December, 1835, was elected and still is councillor of the borough, and on the 9th November, 1836, was elected mayor, and before he was elected councillor, and since his election, he had received various sums of money on account of the rent aforesaid. On the 1st January, 1832, the council appointed Philip Jones their treasurer, who has continued to be treasurer up to the present time, but the said rents have not, "as this deponent is informed," been paid to the said P. Jones, or otherwise accounted for by the defendant. The affidavit then stated a demand made by prosecutor, as a freeman of the borough, and also a burgess and inhabitant of the same, liable to contribute to the borough rate, on the defendant, to pay to the treasurer of the borough all monies belonging to the mayor, aldermen and burgesses of the borough, and particularly the rents in question. The affidavit of the defendant in answer stated, that the premises in question were, until within the last forty years, of little annual value; that there was a meadow of about forty acres, the net proceeds of which had, from a remote period down to the present time, been divided of right amongst the resident freemen of the borough, (which was an ancient borough by prescription,) to their own use, and that the land which now constitutes the Corporation Wharf, was reputed to have been, and, as the defendant believed, of right, appropriated to the said freemen, for their private use. The affidavit then set out facts, by which it appeared that about forty years ago the Duke of Beaufort built the Corporation Wharf, and that upon a claim made by the freemen he gave it up to them, and that they thereupon appointed a receiver, without the concurrence of the mayor and aldermen. From the year 1807 to the year 1833, the rents were received by the town-clerk, and were applied by him under the orders of the mayor and aldermen, but the freemen did not acquiesce in his receiving the rents or in the application made, and frequently demanded that the wharf should be given up to them. In consequence of this claim, a public meeting of the mayor, aldermen and burgesses was held on 24th January, 1833, to take it into consideration, and a committee of freemen was appointed, of which the defendant was a member, and to which he acted as secretary. The committee reported that in their opinion the wharf was the property of the freemen, and that the rents and profits ought to be applied for their private use. The wharf was thereupon given up to the freemen, and the rents were received by the committee, and paid to the defendant as secretary thereof. After the passing of the 5 & 6 Will. 4, c. 76, much difference of opinion existed in the borough as to the Corporation Wharf, many of the freemen claiming the whole thereof for their private use, and some of the council claiming the whole for public purposes. A public meeting of the freemen was held in consequence, on the 14th December, 1836, when the defendant was mayor, at which a resolution was moved, and was seconded by the said James Goold, to the effect that the defendant be requested to receive the rents of the different tenants, and pay the same into the bank in his own name, to remain there until the claim of the burgesses. therein be decided; which resolution was agreed to. The defendant, in pursuance of this resolution, received the rents, and paid them into the bank in his own name, where the money now remains. 1838. The QUEEN v. FROST, 1838. The QUEEN v. FROST. The affidavit then stated that the defendant had repeatedly offered to pay the money over to the freemen or to the council, on receiving an indemnity, but that he had received no indemnity, and that no demand had been made upon him by the council or by the treasurer for the money. Sir W. W. Follett now shewed cause. This is not a proper subject for a mandamus. If Mr. Frost has received rents of property belonging to the corporation, they may bring an action. What right has the prosecutor to interfere? The town council are able to protect themselves. The corporation may be of opinion that these rents do not belong to them, but if they are guilty of a breach of trust, there is a remedy elsewhere. No precedent can be found for such an application as the present. Maule, contrà. The controversy which has been raised within the borough, as to the Corporation Wharf, has nothing to do with the present motion. It cannot be denied that the premises belong to the corporation, and therefore the rents and profits ought to be paid to the treasurer, under section 92 of 5 & 6 Will. 4, c. 76. The question attempted to be raised by the defendant cannot be decided on affidavits. Under that section, and under section 2, all the rights which the freemen may have would be regarded, but the proceeds of corporation property must, in the first instance, go into the hands of the treasurer. Whatever application is to be made of the funds, it is clear that the defendant has no right to retain them. [Lord Denman C. J. It does not appear that the treasurer or the council have made any application to the defendant for the funds; it appears to me that the treasurer is the party who ought to make the application to this Court.] Goold is clearly entitled to make the application; he is a member of the corporation and also a freeman, he has therefore a strong interest in the affairs of the corporation. |