"No. 497. "Preston Old Bank. "March 28, 1861. Established in 1776. "Messrs. Pedder & Co. Pay to Mr. Richard Hoyle, or order, the sum of twenty-five pounds, thirteen shillings, and six pence, for the Local Board of Health. "£25 13s. 6d." "JOHN NEWTON, Engineer. council." At the time of the said suspension of payment, there was a balance in favour of and due to the said Local Board of Health on the said water account, of 32777. 10s. 7d. The said "General Account" and "Water Account" were respectively balanced half-yearly in the books of the bank, and in the passbooks; but, for the purpose of ascertaining whether any and what interest was to be allowed by or to the bank, the said Local Board of Health "General Account" and "Local Board of Health *Water *543] Account" were treated as one account. The mayor, aldermen, and burgesses did not draw upon or make payments to the credit of the said "Local Board of Health General Account" and "Local Board of Health Water Account," or either of them, or in any way exercise control over either of the same. The meetings of the council are called by one notice signed by the Mayor, and by one summons from the town-clerk. The summonses are signed in the following form:-"Robert Ascroft, town-clerk, and clerk to the Local Board of Health," and specify all the business proposed to be transacted at the meeting, whether relating to corporation or Local Board of Health business, but distinguishing the one business from the other. At the council meetings so called, the business both of the corporation and Local Board of Health is transacted in the order mentioned in such summonses. The minutes and accounts of the corporation are kept in separate books from those of the Local Board of Health. The minute-books in each case are headed as follows: "Borough of Preston, in the county of Lancaster. "At a meeting of the Council of the said borough, held," &c. And in each case the proceedings are signed by the mayor, and published in one book. One finance committee is appointed on the 9th of November in each year, which manages the financial matters both of the corporation and the Local Board of Health; and their proceedings are entered in one book. *544] The accounts of the mayor, aldermen, and burgesses are audited by a person appointed by the mayor as auditor, under the 5 & 6 W. 4, c. 76, s. 93, and by two *persons elected auditors under s. 37 of the same statute, and, on being audited, are signed as fol"ROBERT PARKER, " HENRY JENNINGS, "J. F. HIGGINS, lows: } Auditors." The accounts of the Local Board of Health are audited under the Public Health Act, 1848, s. 122, and the Local Government Act, 1848, s. 60, and are audited by the same three auditors, and, on being audited, are signed by such three auditors. The said Local Board of Health have, under the powers of the said. Public Health Act, 1848, and Local Government Act, 1858, borrowed for the purposes of main drainage within the said township of Preston large sums upon mortgage of the special district-rates of the said township, and which sums are still due. The said Local Board of Health have also, under the powers of the said last-mentioned Acts and the said Preston Waterworks Act, 1853, borrowed large sums on the security of the said rents, rates, and works mentioned in the said last-mentioned Act, and which last-mentioned sums are still due. The mayor, aldermen, and burgesses are indebted to various creditors, some of them by specialty, some by simple contract; but none of such creditors have any security for their debts over the said general and special district-rates, and water-rents, rates, and works, or any part thereof. The said mayor, aldermen, and burgesses claim to set off against the said balance of 49967. 16s. 1d., which balance is not otherwise disputed by the said mayor, aldermen, and burgesses, the said sums of 17197. 5s. 6d. and 32777. 19s. 7d., the said balances of the said "Local Board of Health General Account," and "Local Board of Health Water Account." The said Preston Waterworks Act, 1853, accompanied the case, and was to be referred to. *It was agreed between the parties, that all amendments, if [*545 any, in accordance with the real facts, which the Court might think ought to be made in order to enable them to decide the matters in question between the parties, should be made accordingly; and that the Court should have the power of drawing all inferences of fact which a jury ought properly to draw. The question for the opinion of the Court was, whether the defendants were entitled to set off the said sums sought to be set off, or any part of the same. S. Temple, Q. C. (with whom was Aspland), for the plaintiff.-The debt due from the corporation to the plaintiff, and that due from the plaintiff to the corporation, are debts due in auter droit, and therefore are not capable of being set off. The rights and duties of the corporation in respect of the raising and the application of the borough-fund are defined by the 5 & 6 W. 4, c. 76, ss. 92, 95. The powers and duties conferred and imposed upon them as managers of the public baths and washhouses under the Baths and Washhouses Act, 1846 (9 & 10 Vict. c. 74), as the Local Board of Health under the Public Health Act, 1848 (11 & 12 Vict. c. 63), and as proprietors of the Preston waterworks under the Preston Waterworks Act, 1853 (16 Vict. c. xlviii.), are of a character totally distinct from their corporate character, and are to be exercised in a manner altogether dif ferent and the rates and the accounts of each are to be levied and kept separately,-see s. 14 of the Public Baths and Washhouses Act, 1846, ss. 84, 85 of the Public Health Act, 1848, and s. 54 of the Preston Waterworks Act, 1853. In Gale v. Luttrell, 1 Y. & J. 180,† A. being indebted to B. in a sum of 1000l., executed a bond to him for securing that amount and interest. B. subsequently died, having *546] made his will, and appointed C. and D. his executors *and residu ary legatees. An apportionment of B.'s residuary estate being made, the bond was allotted to C. as part of his share. C., being the steward of A., and having a running account with him, entered the bond in that account. C. died intestate, leaving a widow, who took out administration to his estate, and also administration de bonis non to B.; and, as such last-mentioned administratrix, she filed a bill as a specialty creditor against the representatives of A.: and it was held that in this suit the representatives of A. could not make a set-off against the demand, in respect of sums which they alleged to have been omitted, or improperly charged, in the account of C., but must file a cross-bill,-for that there could be no set-off, either at law or in equity, where either of the debts is a debt in auter droit. Could an action brought against the corporation proper be sustained for a debt due from the Local Board of Health in respect of work done or materials supplied to the waterworks? Assuming that these debts are susceptible of set-off at law, it would be manifestly inequitable to permit the funds of the Local Board of Health to be applied in payment of a debt due from the corporation in a totally different character. Mellish, Q. C. (with whom was Quain), contrà.-These are mutual debts at law within the meaning of the statutes of set-off. Although for convenience the accounts are kept separately, the whole substantially forms one fund of the corporation. The rate-payers are the same for all purposes, and the area of rating the same. This is very like the case of a colonel of a regiment keeping two accounts with his agents, one his private account, the other his account as colonel. Could anybody doubt that the balance due to him on the one might be set off against a claim made *against him by the agents *547] upon the other? [BYLES, J.-Whom do you represent?] The Corporation of Preston and the Local Board of Health. This is not an. attempt to misappropriate to the corporation purposes a fund belonging to the Local Board of Health; but to defeat an attempt to apply the fund to the payment of the insolvent's debts. [WILLIAMS, J. -The money was handed by the corporation to the banker with directions to him to keep separate accounts.] That does not alter the legal relations of the debtor and creditor. [WILLIAMS, J.-Before the statute of set-off, there would have been cross-actions in a case like this. The statute intended to substitute the set-off for a cross-action. Who would have been the party to sue the banker in this case for the balance due on the Local Board of Health account?] The corporation clearly must have sued. Bodenham v. Hoskins, 21 Law J., Ch. 864, 16 Jurist 721, was referred to. Temple was heard in reply. ERLE, C. J.-I am of opinion that the defendants in this case are entitled to judgment. The inspectors, in the name of the insolvent, sue the Corporation of Preston for a debt of 49967. 16s. 1d. Against this demand, the corporation claim to set off a debt of the like amount due to them from the bank. Ordinarily speaking, therefore, this would be a clear and simple case of set-off. The difficulty which is suggested, is, that the corporation fill three separate and distinct characters,—the one, as corporation municipal, the second, as local board of health,-the third, as managers of the public baths and washhouses: and the contention on the part of the plaintiff has been that the corporation municipal is as distinct from the other two bodies as the position and rights of a private individual are separate and distinct from his position *and his rights when he fills the office of an executor; or, in other words, that the debts are due in different [*54 rights, and therefore cannot be the subject of set-off. In point of law, however, it is quite clear that the Corporation of Preston is the party owing the money on the one side, and the party to whom the money is due on the other, and therefore, though the money is due to them upon different accounts, it may be set off. Cases, no doubt, may be put where it would be improper on the part of the corporation to appropriate the fund belonging to the local board of health to the general purposes of the corporation. But there would be a remedy for that either in a Court of equity, or by objection before the auditors, who probably would disallow such items in the accounts. But it is unnecessary to consider that; for, here the claim of the bank is put forward merely to defeat that of the local board of health, and to put the money into the pockets of the creditors of the bank. I think the defendants are entitled to the set-off at law, and that there is no principle of equity to prevent its being allowed. WILLIAMS, J.-I am of the same opinion. The local board of health is not a corporation, so as to be capable, as such, of being the proprietors of money. The effect of the statute 11 & 12 Vict. c. 63, s. 12, is, to add to the character of the municipal corporation the incidents and duties of the local board of health. The only effect, in point of law, of their opening an account with the bank on behalf of the local board of health, is, that the defendants, in pursuance of their duties as the local board of health, advance money to the bank. The corporation would be the only persons who could sue for the loan; and, instead of being put to bring an action, they are entitled by virtue of the statute of set-off to set the debt so due to them against *the claim made upon them by the bank. I agree, that, to warrant a set-off, the debts must be mutual, and must be due [*549 in the same right. These are mutual debts, and are due in the same right. The money is advanced to and by the corporation as a corporation, and, in suing for it, it would not be necessary for them to declare in any special character. · WILLES, J.-I am of the same opinion. I see nothing in any of the provisions of the statutes to which our attention has been called to apply to this case; and I am not disposed to strain their language so as to take this debt out of the ordinary rule as to set-off. BYLES, J.-As soon as it appeared that Mr. Mellish represented the corporation in each of its characters, all pretence for equitable interference was out of the question. That being so, and it being always optional with us, it is plain that no replication on equitable grounds would have been allowed here. The simple question, therefore, is, whether the moneys lent were moneys of the corporation, and the moneys received by them received in their corporate capacity, or whether they were paid and received in auter droit. I am not disposed to dissent from the opinion formed by the rest of the Court; and I trust that I am not unduly drawn to that conclusion by its manifest justice. Judgment for the defendants. *550] *MILES v. HARRIS. June 13. The sheriff is not entitled to poundage, where, after seizure and before sale, the judgment and all subsequent proceedings are set aside for irregularity. THIS was an action for sheriff's fees. The declaration contained counts for work done, for money due for poundage on the seizure of goods by the plaintiff at the request of the defendant, for money paid, and for money due on accounts stated. The defendant pleaded, except as to 17. 11s., parcel, &c., never indebted, and, as to that sum, payment into Court. By an order of Keating, J., the question of law raised between the parties was stated in the following case for the opinion of the Court: The plaintiff is bailiff of the sheriff of Norfolk, from whom, by post from the London agent of the undersheriff, the plaintiff, on the morning of the 11th of September, 1861, received a warrant in the usual form, by virtue of a writ of fi. fa., commanding the plaintiff, as such bailiff of the goods and chattels of Alfred Oldfield Gathergood within the said sheriff's bailiwick, that he should cause to be made 1077. 9s. 5d., together with interest upon the said sum, at the rate of 41. per cent. per annum, from the 30th of August, 1861; so that the said sheriff might have that money, with such interest as aforesaid, before the Barons of the Exchequer of Pleas of the Queen at Westminster, immediately after the execution thereof, to render to Henry Solomon, in the said writ named, for the sum recovered and interest in the said writ mentioned. In the margin of the warrant the endorsement on the writ of fi. fa. was set forth, and such endorsement was in the words and figures following, that is to say,-"Levy 1077. 9s. 5d., and 17. 6s. for costs of *execution, and also interest on 1077. 9s. 5d., at 41. per cent. *551] per annum, from the 30th of August, 1861, until payment; besides sheriff's poundage, officer's fee, costs of levying, and all other legal incidental expenses. This writ is issued by Henry Harris, of No. 34A Moorgate Street, in the city of London, attorney for the said Henry Solomon. The defendant is an auctioneer, and resides at Lynn, in your bailiwick." In obedience to the said warrant, the plaintiff entered certain premises of the said Alfred Oldfield Gathergood, at King's Lynn, in the county of Norfolk, being within the bailiwick of the sheriff, and there seized goods of the said Alfred Oldfield Gathergood sufficient to make the said sum recovered, interest, and expenses. The plaintiff remained two days in possession, and then the judgment was found to be, and had in fact been, irregularly signed; and it and all subsequent proceedings having been after the seizure aforesaid set aside for irregu larity, the plaintiff withdrew from possession by order of the (now) defendant, who was the attorney who sued out the writ and caused the said warrant to be issued. Afterwards, the plaintiff sent his account to the defendant, demanding the sum of 6l. 15s. 3d., as follows: |