1822.

GIRDLESTONE

against ALLAN.

sideration money for the purchase of the annuity had been returned to the plaintiff, contrary to the statute 17 G. 3. c. 26. s. 4. It appeared, that the plaintiff, who was an attorney, and in partnership with two others of the name of Bellamy, had negociated the annuity for the defendant, and had ultimately, in conjunction with one James Watson, become the grantee of it himself. The consideration money was duly paid, and the defendant then repaid to the plaintiff the amount of the bill of costs of the plaintiff and his partners for procuring the annuity. The bill contained the following charge. "Fee on negociating the annuity, and for many letters to you and Mr. Corfield, and attending on Mr. Watson thereon, at 10s. per cent., 35l." The affidavits in answer negatived all fraud on the part of the plaintiff, and stated, that the bill was bonâ fide for work done for the defendant, and the charges fair and reasonable; and that the money returned by the defendant was not appropriated to the plaintiff, but carried to the general funds of the firm, and that no part of it was received by Watson at all. On shewing cause, the plaintiff offered to reduce the annual payment to 700%.; and the only question was, whether it was imperative on the Court to vacate the securities, or discretionary with them to refuse to do so on the terms offered.

Scarlett and Campbell shewed cause, and contended that this was an application to the discretion of the court; and in support of that position they referred to Barber v. Gamson (a), and the cases there cited.

(a) 4 B. & A. 281.

Marryat

Marryat and Abraham, contrà. The act is imperative: the words are, that in case any part of the consideration money be returned to the party advancing the same, it shall and may be lawful for the court to order, &c. Now where the act to be done is for the public benefit, these words, "it shall and may be lawful," in an act of parliament, are to be construed as imperative on the court. Here it is for the public benefit; for it is for the protection of needy persons from the unreasonable demands of those who would otherwise take an unfair advantage of their necessities. The case of Barber v. Gamson, was not heard by the full court, and was only the opinion of two judges as to this point.

ABBOTT, C.J. The only question here is, whether this act of parliament be imperative on the court, or whether we have a discretionary power vested in us. I think that we have a discretionary power. In Cook v. Tower (a), the Court of Common Pleas came to this conclusion, and there Lord C. J. Mansfield puts fraud as the ground on which alone the court ought to interfere; and Mr. Justice Chambre, speaking of this section, says, "The expression in the three preceding sections is, that the instrument shall be wholly null and void: the fourth only says that it shall and may be lawful for the court to cancel the deeds, which is of a very different import. Where these words have been considered imperative, they have been so held from the nature of the case. It is in this case discretionary with the court, whether they will entertain the application."

(a) 1 Taunt. 372.

1822.

GIRDLESTONE

against ALLAN.

1822.

GIRDLESTONE

against ALLAN.

Since that case was decided, several others came before that court, in which they set aside the annuities on certain terms which could not have been imposed if the act had been imperative on them. And the case of Barber v. Gamson, decided by my brothers Bayley and Holroyd, in this court, is to the same effect. With that decision I entirely concur, and I think it would be most mischievous if we were to construe the act as imperative on us to vacate securities of this nature on motion. The objection in this case is a very c.itical one on the part of the defendant. It is not, however, necessary to decide as to its validity, for I am clearly of opinion that we ought to discharge the present rule on the terms offered by the plaintiff.

Per Curiam.

Rule discharged on the plaintiff undertaking to reduce the annuity to 7001.

Monday,

November 18th.

A clause in a

The KING against The Justices of CUMBERLAND.

private inclo BY an act passed in the 50 G. 3. for inclosing lands in the parish of Gosforth, in the county of Cumber

sure act, de

claring that no item or charge

in the accounts

land, and in which the general inclosure act (a) was "It was enacted, that once at least in every

of the commis- recited. sioners shall be

binding to the

parties concerned, or valid in law, unless the same shall have been duly allowed by a justice of peace in the manner therein pointed out; does not take away an appeal given by a subsequent clause" to the party grieved by any thing done in pursuance of that or the general inclosure act, (other than and except such determinations as were by that or the general inclosure act declared to be bind ng, final, and conclusive,") the allowance of the accounts by a justice not falling within this exception.

(a) 41 G. 3. c. 103.

yea

1822.

The KING

against The Justices of

year, during the execution of that act, (such year to be computed from the day of the passing thereof,) the commissioners should, and they were thereby required to make a true and just statement, or account of all CUMBERLAND, monies by them received and expended, or due to them for their own trouble and expences in the execution of that or the recited act; and such statement and account when so made, together with the vouchers relating thereto, should be by them laid before one of his majesty's justices of the peace for the said county of Cumberland, (not interested in the said division and inclosure,) to be by him examined and balanced: and such balance should be by such justice stated in the book of accounts to be kept in the office of the clerk of the commissioners; and no charge or item in such accounts should be binding to the parties concerned, or valid in law, unless the same should have been duly allowed by such justice." And by a subsequent clause it was enacted, that "if any person should think himself aggrieved by any thing done in pursuance of that act, or the recited act, (other than and except such determinations as were by that or the said recited act declared to be binding, final, and conclusive; and, except in such cases, where an issue at law was thereinbefore authorised to be tried,) then he might appeal to the general quarter sessions of the peace, &c. &c." In pursuance of the first of these clauses, the commissioners on the 18th of May, 1822, made out an account of monies expended by them in the execution of the act, and laid it, together with all necessary vouchers, before one of his majesty's justices of the peace for the county, (not interested in the inclosure,) by whom it was examined, balanced, and allowed. At the Midsummer sessions certain persons, interested in F the

1822.

The KING

The Justices of

the inclosure, appealed against that allowance. It was then objected for the commissioners, that the court of against quarter sessions had no jurisdiction, but the justices, CUMBERLAND. there assembled, received and heard the appeal, and made an order thereupon, disallowing several items included in the account as it was originally allowed.

The Solicitor-General now moved for a writ of certiorari, to remove that order of sessions into this court for the purpose of having it quashed, and contended that the order ought not to have been made; for although the clause, relating to the accounts of the commissioners, does not expressly state that they are to be binding and conclusive, when balanced and allowed in the manner there pointed out, yet that must be inferred, for to say that the accounts shall not be binding until allowed, is in effect saying, that when allowed they shall be binding. Then the clause giving an appeal in certain cases, excepts those determinations which were by that act, or the general inclosure act, (therein recited,) declared to be binding, final, and conclusive; and there is no clause in the whole of this act to which that exception can apply, unless it be held applicable to the allowance of the accounts by a single justice, which argument was much relied upon by Lord Ellenborough, in The King v. The Commissioners of Dean Inclosure (a). Here the act appoints a single justice as the tribunal before which the accounts are to be settled; his decision is therefore conclusive, according to Boy field v. Porter (b).

ABBOTT C. J. I think that we cannot by inference exclude the operation of the appeal clause of this act.

(a) 2 M. & S. 80.

(b) 13 East, 200.

There