that the proceeds should be disposed of in first protect ing Martin de Puech and Co., in retiring the bills; that is, they did the same thing as if they had directed the money to be paid over to the French houses, in order that they might hand it over to the holders. That was a just and equitable decision, and such as a court of equity would have pronounced in this country. Then, this money has been paid by Martin de Puech and Co. and not by the bankrupts. It cannot be considered in the hands of the defendants as money which has been received on account of the bankrupts, but as money received on account of Martin de Puech and Co.; and the defendants have received it, on condition of giving up their claim against Martin de Puech and Co. The whole fallacy of the argument consists in considering this as the money of the bankrupts; whereas, as between them and Martin de Puech and Co., it was clearly the money of the latter; for the shares were purchased in their own names, and they were suffered to continue in possession of them, so as to enable them to protect themselves against the legal consequences of their acceptances. Upon these grounds, I am opinion that there ought to be judgment of nonsuit. Judgment of nonsuit. 1821. CAZENOVE against PREVOST. CLARIDGE against EVELYN and Others. THIS was an action upon the case, brought by the plaintiff against the defendants, as commissioners of a Court of Requests, established by an act of the Saturday, An infant can not be ap pointed to the office of clerk of a Court of Requests, where it is part of the duty of that officer to receive the money of the suitors. VOL. V. G 48 G. 3., 1821. CLARIDGE against EVELYN. 48 G. 3., for a false return to a writ of mandamus. The declaration stated that the plaintiff had been duly elected to the office of clerk of the said Court of Requests, but had been unjustly refused admittance to the office by the defendants, the commissioners of the Court; that the plaintiff had obtained and prosecuted a writ of mandamus, directed to the commissioners, commanding them that they should admit the plaintiff into the office of clerk, or that they should shew cause to the contrary, which writ had been duly delivered to the defendants; yet that the commissioners had not admitted the plaintiff to the office, but had falsely and maliciously returned, in answer to the said writ, "that the office of the clerk of the commissioners of the Court of Requests aforesaid having become vacant by the death of one Richard Crow, then late clerk, T. K. Crow was duly elected clerk of the said Court by the major part of the commissioners, and had been since duly admitted into the office; and that the plaintiff never was elected to the office of clerk of the Court of Requests, as by the writ was suggested." The declaration, after negativing the facts in the return, stated that the plaintiff, by reason of the false return, had been deprived of the gains and profits which he would have derived by exercise of the office, to his damage of 500l. Plea, general issue. At the trial before Abbott C. J., at the Guildhall sittings after Michaelmas term, 1819, the jury found a verdict for the plaintiff, subject to the opinion of the Court on the following case. By the death of the late Richard Crow, on the 8th of December, 1818, the office of clerk of the Court of Requests, constituted by the act of parliament mentioned in the declaration, became vacant. On the 8th day day of January, 1819, the commissioners of the Court, at a meeting duly summoned and held according to the directions of the act, proceeded to the election of a clerk in the room of Crow. The plaintiff, and one T. K. Crow, were the candidates for the office. After the commissioners were assembled, and immediately before the election commenced, T. K. Crow, in the hearing of the commissioners, was asked his age by Richard Allmett, which question he declined answering: and thereupon Richard Allmett, one of the acting commissioners, notified to the rest that T. K. Crow was an infant under the age of 21 years, and on that account ineligible to the office of clerk; and that if any commissioner should, after that, give his vote for the said T. K. Crow, such vote would be thrown away and void. At the election, each of the commissioners, as he came up to vote, was separately asked by the said Richard Allmett for whom he voted; and the said Richard Allmett, in the hearing of each of the commissioners, publicly protested against each of the votes for the said T. K. Crow immediately on its being tendered, and before the same was taken down or recorded, on the ground of the deficiency of the said T. K. Crow. At the close of the poll, the numbers were, for T. K. Crow, 87; G. Claridge, 44; T. K. Crow was, therefore, immediately after the election, declared by the commissioners to be elected by them as such clerk, and was returned as such clerk, and admitted to the office, and has hitherto continued to serve and act as clerk. T. K. Crow, at the time of the election, was an infant under the age of 21 years, and, at that time, under articles of clerkship to Richard Crow, having attained the age of 20 on the 28th day of Decem G 2 1821. CLARIDGE against EVELYN. 1821. CLARIDGE against EVELYN. December, 1818; but he had, for about two years, occasionally acted for Richard Crow in his office of clerk of the Court of Requests, but without any appointment pursuant to the provisions of the act of parliament. The question for the opinion of the Court was, whether the said T. K. Crow was duly elected to the said office. Tindal, for the plaintiff. If an infant be not eligible to this office, due notice having been given to the electors at the time of the election, the votes so given to that infant were thrown away. Whether an infant be eligible to the office in question, must depend upon the duties imposed upon the officer by law. Now, by the 48 G. 3. c. 50., by which this court was established, the commissioners are authorised to appoint one or more fit persons for each of the offices of clerk and beadle; and the person appointed is authorised to execute the office of clerk, immediately after his or, their appointment, and from time to time to appoint a deputy or deputies, to act in his or their names or stead, in case of sickness, or other sufficient cause to be allowed by the commissioners, but not otherwise. By a subsequent clause, p. 17., the clerk is directed, at the prayer of the party prosecuting, to issue a precept, by way of ca. sa. or fi. fa.; and in p. 20., the clerk is directed to indorse the sum of money and costs, to be levied on the precept, to be issued upon execution awarded against the body or goods of any person; and if the party against whom such execution shall be awarded, shall, before any actual sale of the goods or his imprisonment, pay unto the clerk for the time being such sum of money and costs, then the execution shall be superseded, and the body, goods, goods, and chattels of the party set at large; and in p. 23., amongst the fees which the clerk is entitled to take, is one for paying money into court in full, and entering the same in his book. It appears, therefore, to be part of the duty of the clerk to receive the money of the suitors, for whom he is a mere trustee, and to whom he ought to be responsible. An infant, however, would not be liable in an action for money had and received. In Co. Litt. 172. a., it is expressly laid down, that an infant cannot be receiver, for he has no skill to render an account. An infant, indeed, cannot contract, except for necessaries; and therefore, in Whywall v. Champion (a), it was held, that if an infant be a mercer, and buy goods and wares for his shop, the contract is not binding upon him. Besides, this was an office which required skill and ability, and on that ground it has been decided, that an infant cannot be a mayor of a corporation, nor elected a burgess (b); Rex v. White. (c) The circumstance of the clerk being allowed by this act of parliament to appoint a deputy, with the approbation of the commissioners, can make no difference, for no action is given against the deputy, and therefore the rule of respondeat superior, applies; and the right of action would only be against the clerk. Chitty, contrà. An infant may contract for his own benefit, and, by analogy, he ought to be entitled to hoid an office which is for his benefit; and in Bristow v. Eastman (d) it was held, by Lord Kenyon, that money had and received would lie against an infant for money em (a) Str. 1085. (c) Selwyn, N. P. 9th edit. (d) Peake, N. P. C. 223. (b) Comyn's Digest, tit. Enfant, C, 1. 1043. Mandamus. 1821. CLARIDGE against EVELYN. |