The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1835-12-01 00:00:00

THE LIVERPOOL STANDARD.

LONDON LAW AND POLICE COURTS.

ROLLS' COURT, CI-lANCERY-LANE.-SATURDAY.

THE ATTORNI,Y-GENEP.AI v. THE CUBPORATION OF LIVER-
POOL-Mr. Pemberton appeared in this case on the part of the
defendants, the old Corporation of Liverpool, to pray the court
to dissolve an injunction which bad been obtained on an ex-
parre statement made to his Honour the Master of the Rolls.
The case was one of great importance. both to the inhabitants
of Liverpool and the public at large, inasmuch as the decision
which the court would come to would settle the question of the
construction which ought to be put on several important but
doubtful clauses in the municipal corporation bill. The deci-
sion of the court would also settle the question whether or not
a court of equity has any jurisdiction over municipal corpora-
rations. The learned counsel then proceeded to state that he
held in his hand several affidavits which had been filed in oppo-
sition to the statements on which his honour had granted the
injunction. With the permission of the court he would read
these affidavits to it. The learned counsel thee read several
affidavits. The most important was that of Mr. Foster, Town-
clerk of Liverpool. It chiefly related to the circumstance of
such a provision fir the permanent endowment of the Livepaol
clergy as that to prevent which the injunction had been obtain-
ed, having been looposed to be settled in June, 1831, long be-
fore the municipal corporation bill had ever been thought (Ct.
It was then proposed, and agreed to by the corporation,
,that
£4,000 should be yearly set apart by the corporation fer the
purpose of paving the stipends of the sixteen clergymen in the
parish. The inhabitants concurred with the corporation in the
propriety of the proposed permanent endowment; and, on the
condition of the parishioners being relieved from the
.payment
iof the church-rates by the corporation taking upon itself the
payment of the clergy, they agreed to bear two-thirds of the
expences of a police establishment, which it was then proposed
to introduce into that place. This was towards the end of the
session of the year 1831, when a bill was brought into parlia-
ment for the abolition of chinch-rates. A bill was brought into
the House of Commons by the Town Council rif Liverpool,
with the full and hearty concurrence of the vestry, fin the pur-
pose of endowing the clergy of the place in perpetuity; but,
though the bill also met with the sanction of the government, it
was afterwards abandoned. It was afterwards proposed to in-
troduce a local clause, which would secure the object in view,
into the church-rates' bill; but this was objected to on the part
of the government, on the ground that it would be inconvenient
" to introduce local clauses into a measure which was for the
benefit of the public at large." This was in July, 1834, after
ter the council had come to a formal resolution, that some per-
Manent provision ought to be made for the parochial clergy..
It was, consequently, as before observed, long before the muni-
cipal corporation bill bad been thought of. This application to
parliament had been made in consequence of a letter from the
churchwardens to the mayor, praying thatsome permanent pro-
vision of the kind should be made for the clergy. It was then
'proposed to apply a second time to parliament for a bill which
would enable them to effect the objects they had in view; hut
it was found that the session was touch too far advanced to bold
out any hope of being able to do it successfully. The corpora-
tion,, therefore, in doing what they had now acme, were only
doing that which ihe ' had intended to do so far back as June,
j 834; and he maintained that they had a perfect right to do it
even by the provisions of the municipal corporation reform act.
That measure had enacted that the income of the corporation
should be applied to the payment of the debt, the salaries of
officers, the administration of justice in the borough, &c.; and
that, in the event of there being a surplus, that surplus should
be appropriated to the benefit of the inhabitants, and the hn-
provement of the borough. The payment of the clergy, he con-
tended, fell within the meaning of that part of the act which was
expressed by the terms " benefit of the inhabitants." All parties
had concurred in the justice and propriety of setting apart £4,000
per annum for the payment of the clergy; but there were clauses
it, the municipal reform act which rendered it impossible it could
be done. In alt the steps the corporation had taken theyconducted
their proceedings openly. They thought it would not be objected,
to by government, and, therefore-, at their first meeting of council
after the passing of the corporation reform bill, they came to a
resolution, which was advertise,: and dcly canvassed in several
of the Liverpool papers, that itotvls expedient some provision
for permanently endowing the clergy should be made by the
corporation. In accordance with this resolution a committee,
consisting of the whole council, was appointed to take the neces-
sary steps to carry into effect the object they had in view. In
order that the thing might be done legally, and so as it might
not be afterwards impeached, the first thing the committee did
was to submit the matter to the opinion of counsel. On the 19th
of October three of the most eminent counsel in London gave it
as their opinion, that the proposed provision for the clergy could
not be made by any means which could be adopted, so as to be
beyond the possibility of being afterwards impeached; but that
the best way for them to proceed would be to get the sanction
of the King In council to the object they had in view, and then
mortgage as great an amount of the property of the corporation
as would, on the proceeds being securely invested, produce a
Tyearly interest equal to the amount of the intended endowment,
he committee made their report on the 2d of November, and
proceeding on the opinion olcounsel they mortgaged the Salt-
house Docks for £105,000, which it was deemed the part of the
property most eligible to mortgage. On the 11th of November
the committee came to a resolution to invest the -.E105,060 in the
hands of the Grand Junction Railway Company, pu the express
stipulation, however, that, if requisite, it would be returned to
them on a short notice. On the 14th an application was made
to the court for an injunction, which his honour granted. It
would be necessary, to satisfy the court of the propriety of the
steps which the corporation had taken, to make one or two
statements respecting the funds of that body. The income of
the corporation was•large, and was annually increasing. In
1831 it. was as high as £9t1,000; while the expenditure was only
£68,500, including the payment of the sum which the corpora-
tion had always set apart for the payment of the clergy. The
balance, or surplus of the income of the corporation over its ex-
penditure, was, therefore, £27,500. The town dues of Liver-
pool had increased-since 1731 from £5OO to 1:50,000 per annum.
This simple fact would tend to show the rate at which the funds
of the corporation were increasing. The learned counsel then
went on to contend that, as it was admitted on all hands that
the council, in making this permanent provision for the clergy,
had no private or interested purposes to serve, no court of equity
had a right to interfere in the present case. The funds of the
corporation had been appropriated, not to individual, but to
general benefit. No court of equity had ever, in any former
case, exercised jurisdiction over a corporation similar to that of
Liverpool. It was perfectly clear that what the council had
now done, was what they would have had a perfect right to do
before the passimg of the municipal corporation bill. Now he
contended that that bill did not destroy the corporation ; it only
made an alteration in it respecting the mode of election, and
. the persons exercising the elective franchise. In law the rights
of the corporation remained the same as ever. He contended
that the clauses in the corporation reform bill, which related to
any collusive bargains which might be made from the sth of
June, 1835, till the act came into operation, did not apply its
this case. Though the act stated that there must be a valuable
consideration received to make the bargain valid, and though
there might be no valuable consideration in this case, yet he
contended it was a case of that nature which could never have
been contemplated as falling within the operation of the clauses
in question. The question, the plain question, before the court
was, whether the clergy were to be supported by some fixed ade-
quate provision, or whether they should be made dependant on
the eleemosynary contributions of the public. It was clear the
latter state of things was not intended by the constitution of this
country. The council saw that, if the ywovision they intended
to make for the clergy was not made before the 25th December,
the day ou which the municpal corporation bill came into ope-
ration, it could never be made at all; for there were clauses in
the bill authorising the sale of advowsons. It was, therefore,
necessary the intended endowment of the clergy of the parish
should have been made by the late council. It was impossible
to exaggerate the importance of this question to Liverpool. It
was simply this, whether or not they are in future to have an
stablished church ? The council had been charged with hay-
itng acted fraudulently and with improvident haste in this mat-
er. In vindication of their character from the imputation of
raud he might state, that none of them could by possibility be
benefitted by it in any manner, or to the slightest extent. There
were only three of them who were, either directly or indirectly,
related to any of the clergy for whom the provision had been
made. If sthi" '.'njunction should be confirmed by the court, it
would in effe e saying, that no provision should be made for
040
the der' . hoped his honour would dissolve an injunction
which ha been obtained on ex-parte statements, and which
under other circumstances he was satisfied would never have
been granted.

Mr. 'Walker and another counsel followed on the same side.
Mr. Bickersteth appeared its support of the injunction. He
begged to disclaim for himself and those who acted with him,
having imputed, or intended to impute, anything like fraud or
dishonesty in the transaction. So far from throwing out any
such imputation, he had no hesitation in saying that his own
private opinion was, there had been nothing fraudulent or dis-
honest. With regard to" Mr. f'oster's affidavit, he must say that
his learned friend, Mr. Pemberton, had not put a proper con-
struction on some of its statements. He (Mr. Bickersteth) had
nothing to do with the clergy of Liverpool. The question, whe-
ther they were or were not adequately remunerated, was not
before the court. His own opinion, if it were proper to express
it, was, that they are not sufficiently remunerated, considering
the population of the place. The inhabitants of Liverpool were
165,000 in number, while the legal endowment of the clergy
was only £9lO. To this yearly sum the corporation added
£2,500, and the amount raised in addition by church rates made
it altogether £4,500. What the corporation had engaged to
give the clergy before the Year 1823 rqust be continued, but
since then £650 had been added, which the corporation was not
bound to continue. The, learned eouusel theitavent into a va-
riety of statements, to slimy that a larger sum would be paid by
the corporation to the clergy under the arrangement which the
council had made than had formerly been paid. The first pro-
poSal to make the corporation funds liable for the payment of
the clergy to a greater amount than before was made in 1834,
when the bill for abolishing church rates was brought into par-
liament. A police establishment was wanted at the same time
in' Liverpool, and the parishioners offered to pay two-thirds of
the expense if they were released from the payment of church
rates. The arrangement was agreed to. A bill was brought
into parliament to carry the proposed measures into effect, but
was abandoned. The bargain consequently fell to the ground.
Whether it would have received the sanction of parliament he
could not tell; but this was clear, it was contrary to the provi-
sions of the measure. It was afterwards resolvea by the coun-
cil that £4,000 yearly should be paid to the incumbents during
their incumbancies, out of the funds of the corporation. At an
after period, owing to some of the livings ceasing with the
death of the incumbants, the annual sum would be £3,685.
The resolution of the4ouncil to which he had just referred, had
been come to before anything had transpired respecting the in-
tention of the legislature to authorise the sale of the advowsons.
But before the endowment Ifad taken place parliament had
authorized the sale of advowsons, by a clause in the municipal
corporation bill, and therefore it was clear the council had no
right to make the endowment. The object was to relieve the
rate-payers from any charges for the support of the clergy, which
the council had no right to do. But not only did the council
improperly alienate the funds of the corporation; they alienated
those funds in perpetuity, in order to secure a permanent in-
crease to the clergy. By the resolution of the 7th of October
the council formed themselves into a committee to consider the ,
expediency of providing an adequate maintenance for the clergy,
in perpetuity, but they had not then agreed as to the source
whence the funds should come. On the 12th they fixed on some
portion of the funds of the corporation, but even then they did
not agree on any particular part of those funds. It was only
after M r. Foster, their clerk, had returned from London with
the opinion of counsel, that they agreed to mortgage the Salt
House Docks. All these precautions, and all this hesitation
showed that they themselves doubted whether they could legally
alienate the funds of the corporation as they had done. Besides,
the simple fact of their having on two fornier occasions applied
to parliament for a bill to give them the power of doing it, show-
ed that they had not the ower of themselves, which they now
pretended to have. The fact that they were conscious of having
done wrong, was further proved by the circumstance of investing
£105,000 in the railway company, only on the condition that 0
they could recall it at a short notice if necessary, to pay off the
mortgagee. He admitted that the thing had been done honestly;
but it was clear it had been done illegally. The learned coun-
sel then read several clauses from the municipal corporation re-
form bill, to show that the alienation of the funds of the cnrpor
ation was contrary to the provisions of that Bicker-
steth, after two or three observations respecting the illegality of

the transaction, concluded by expressing his conviction. that his
honour would see no cause to disolve the injunction.
Mr. Booth followed on the same side. The learned gentleman
did not enter into the facts of the case, but addressed the court
at some length on the law of the case.
Mr Pemberton replied: he had two objects in view. The one
was clear his clients from the imputation of fraud and improvi-
dent haste, which some parties had sought to fasten on them.
The other object was to vindicate the rights of the clergy to a
suitable maintenance. The first of these objects he had com-
pletely gained by the disclaimer which had been so fully
.made
on the part of Mr. Bickersteth, of entertaining any suspicion of
his clients being actuated by any improper motives. With re-
gard. to the second he must leave it to others to say how far he
had succeeded. The learned counsel then went on to contend that
nothing had been brought forward on the other side to overturn
the arguments which lie and the learned counsel who acted with
him had adduced, to shew the injunction should be set aside.
His honour took time to consider.

COURT OF EXCHEQUER.—SATURDAY.
THE ATTORNEY-GENEIiAI. V. NOT-AN.
The Attorney-General ( with whom were Mr. Tanered and
Mr. Kay) said that this was an information filed on the part of
the crown against the defendant, who carried on the business of
an extensive starch manufacturer at Liverpool, for the com-
mission of a fraud, which had been effected under these cir-
cumstances:—During the past year the Legislature had taken
off the duty on starch, as far as regarded England, and an ex-
port drawback was allowed upon all forwarded to Ireland. This
was to cease on the 10th of the last month, and it then became
a matter of anxiety among the parties engaged in that trade,
who chanced to have stocks on hand, to export as large a quail•
tity as possible, with a view to obtairr the export drawback. Ac-
cordingly, on the 4th of October, 1834, a notice was received
from the defendant which led to the atteudanca of an officer on
his premises for the purpose of packing some sasks of starch
for exportation. Upon this occasion five casks, each containing
about eleven hundred weight, were packed up and sealed by the
officer. They were then sent down to the Clarence Dock and
forwarded in a steamer to,lreland. On the Bth and 9th of the
same months an officer, again went to. the defendant's and
packed seventeen other casks, which having, according to cus-
tom, received his seal, were, on the afternoon of the 10th, set
down for clearing and shipment. They were, however, not
sent down until within half au hour of the closing of the office.
The casks were put on board a steamer which was bound for
Ireland. On the arrival of the five casks at Dublin segie 8114-
picion was excited in the mind of one of the custom-houtit pin-
cers as to the nature of their contents, and he was induekd to
have recourse to an instrument designated a " tormenter,"
with which heTrobed the casks. On withdrawing this iustru-
meat befound it contained a quantity of good salt instead of
starch. An examination was then made, when he discovered,
that although there was about an inch thickness of starch
round the bung end of the casks, yet that the remainder of their
contents was salt. The other four casks thou underwent a rigid
examination, and on being found to contain salt only, with the
.exception of the small quantity of starch, placed, as already de
scribed, at the hung end, they were seized. When the second
shipment, consisting of the 1/ casks, reached Dublin, they were
opened, and 13 of them contained salt, and four only starch.
The whole of them were of course seized. This, observed the
learned counsel, was the outline of the facts; but if he were to
be asked how the fraud had been committed, he would fairly
and unhesitatingly declare that he could not tell, for the casks
were in precisely the same state as when sealed by the officers.
Those individuals were also in 'a condition of ignorance as to the
mode by which the fraudulent act had been effected. He would
nevertheless undertake to show to the satisfaction of the court
and jury, that the defendantant was not only intimately ac-
quainted with the fact, but was in reality the'principal moverin
the affair. He was further in a condition to prove, that shortly
after the act repealing the duty had received the Royal assent, a
large quantity, somewhere about seven•tons, of salt was deliver-
ed at the defendant's warehouse. While the waggon which con-
veyed these packages of salt was being unloaded by the crane in
the public street, the defendant came up and said, " that would
neverdo," and directed the waggon to be driven into the gate-
way, where they were unloaded, in what might be termed a
private manner; unseen by the public eye. This circumstance
could only, in his opinion, be regarded as a strong fact of the
guilt of the defendant, because, in the manufacture of starch it
was not customary to use salt. A person of the name 'of Woods
would' be proved to have been concerned in the transaction,
either in the capacity of partner or foreman. In whichever
light, however, the participation of that party might he esta-
blished, no doubt could exist as to the guilty knowledge of the
defendant.

The case was undefended.
Evidence was then produced which fully established the
facts as stated by the learned counsel, and Lord Abinger having
directed the attention of the jury to the leading points of the
evidence.
The jury found a verdict for the crown on the first count, for
the amount of £2OO, the penalty sought; and on the eleventh
count, for treble the value of the goods, finding the single value
to be 'E2OO, making £6OO on the value of the goods.

COURT OF EXCHEQUER, Nov. 19:
IMPORTANT TO 'VENDERS, PURCHASERS., SOLICITORS, AND
A UCTIONEERS.—Tn E KING v. SEDGWICK.—This was a sci. fa.
brought against the defendant, an auctioneer, residing at Rick-
manstvorth, in Herefordshire, and came on for hearing before
Lord Abinger, Barons Parke, Alderson, and Gurney. At the
sittings after Trinity Term last, a verdict was entered for the
crown for the amount of the bond cfEl,OOO, subject to a special
case. The facts were as folloWs:—In May, 183.3, Mr, Sedg-
wick sold, at the auction mart, a certain estate, in the parish of
Watford, called Bushey Lodge Farm, which was subject, with
other estates, to a mortgage, and the sum of E. 10,200, part there-
of, was apportioned on this farm: The conditions of sale pro.
vided that the sale should be subject to the apportioned mort-
gage debt, the mortgagee not concurring in the sale, nor in the
apportionment of the mortgage money to particular parcels of
the estate, and not being compellable to receive his money, till
May, 1836. The conveyance was to be made subject to the
apportioned mortgaged debt, and was so made. The sum bid
at the sold was .£15,50, being inclusive of the apportioned
mortgage-money; and the deposit was paid on that sum. The
purchaser signed an acknowledgment that he had purchased
the lot at £16,500, and undertook to complete the purchase,
agreeably to the particulars and conditions or sale. The ques-
tion for the court was, whether the auction duty became payable
on the sum of £15,500, or only on the sum.actuatly paid to the
vendor, viz., £5,300. The court were unanimously of opinion
that the duty was payable only on £5,300. This decision is of
very great importance to auctioneers, as in future the auction
duty will not attach on the amount of the moitgage, when
estates are mortgaged under similar circumstances.