Page:The English Reports v3 1901.pdf/1081

[The Commissioners of Accounts appointed under 20 Geo. 3. c. 54. having recommended the abolition of the office of the nineteen King's waiters in the Customs, the number from that period was not filled up, and the fees of the vacant offices were generally applied to the use of the Customs' Superannuation Fund (now abolished by 51 Geo. 3. c. 55.) though without any legislative authority. By 38 Geo. 3. c. 86. the vacant offices of waiters were abolished subject to regulation, and the fees for such offices received previous to July, 1798, were ordered to be applied to the fund. The Appellant was appointed receiver in 1799; but as the Act 38 Geo. 3. made no provision for the appropriation of the fees of the vacant offices subsequent to 1798, he retained them in his own hands. By 47 Geo. 3. seas. I. c. 51. the fees of offices, vacant and abolished under 38 Geo. 3. c. 86. received since July, 1798, were directed to be applied to [2] the fund. An information was, in 1807, then filed in the Exchequer against the Appellant for the fees which he still refused to pay, alleging that they ought not to have been received at all, and might be reclaimed by the merchant, or that, if receivable, they belonged to the surviving King's waiters, etc. But it was held that the fees were consolidated, and properly received from the merchant in full, but that the offices were separate and distinct, and that the fees did not go to the surviving waiters—and the Court below decreed for the Crown for principal, interest, and costs. But, on appeal, though the Appellant had admitted in his answer below that he had mixed this money with his own and so derived profit from it, the Lords held that, as the money remained unappropriated till 47 Geo. 3. interest ought not to be demanded during the period between 1798 and 1807; and that, as it was a fair question whether the money did not belong to the surviving waiters, the Appellant ought not to be called upon to pay costs to the Crown.]

[The Lords were of opinion that this, being public money, might be sued for by the Attorney General in his own name alone; but that, as the managers of the fund had been added as Relators upon the suggestion of the Appellant himself in his answer below, whether the information was objectionable in a general view on that ground or not, he was precluded from availing himself of that objection.]