Page images

417; Gray t. Bridge, 11 Pick. 189; Ex parte fused in perfect consistency with its own rules. Bailey, 2 Cowen, 479; Ex parte Benson, 7 Wells v. Stackhouse, 2 Harr. 471. It will not Cowen, 363. It will not issue commanding a lie to compel justices of the County Court in subordinate tribunal to reverse their decision North Carolina to grant a license to any parwhen they have acted in a judicial capacity ticular individual to retail spirituous liquors, upon a question properly brought before them. though he may have been improperly refused a Chase v. Blackstone Canal, 10 Pick. 244; Morse, license, the justices having a discretion to a petitioner, 18 Pick. 443; Gibbs v. Hampden, certain extent in granting licenses. Attorney19 Pick. 248. Mandamus does not lie from the General v. Justices of Guilford, 5 Iredell, 315. Supreme Court of the United States to a district Neither will it lie to compel the managers of judge on his refusing to allow the amendment an election of sheriff to return a candidate duly of a writ and count. But he may be compelled elected, after they have already certified to the to have the records of the case made up, and governor that the election was null and void. to enter judgment thereon, in order to give the The State v. Bruce, 3 Brevard, 264 ; Grier v. demandant the benefit of a writ of error. Ex Shackleford, 3 Ibid. 491. For other cases to parte Bradstreet, 7 Peters, 634. Neither man- the same effect see Dixon v. The Judge, 4 Mis. damus nor prohibition lies to bring under review 286; Hoxie o. County Commissioners of Somerthe proceedings of an inferior Court on the set, 25 Maine, 333; Elkins v. Athearn, 2 Denio, ground of error. Ex parte Gordon, 2 Hill, 363. 191 ; People v. Judges, 1 Dougl. 302; Locket' People v. Judges of Dutchess County, 20 Wend. 0. Child, 11 Alabama, 640; Board of Police v. 658; Ex parte Koon, 1 Denio, 644. The Grant, 4 Smedes & Marshall, 77; United States Supreme Court of New Jersey will not grant a v. County Commissioners, 1 Morris, 31 ; Manor mandamus to compel the Common Pleas to re- 0. M'Call, 5 Georgia, 522; Ex parte Trapnall, cord the return of a road by surveyors, which 1 English, 9; Ex parte Williamson, 3 English, it bad refused to record on the ground of its 424; Brown v. Arkansas County Court, 4 Ibid. insufficiency. Stout v. Hopping, 2 Harr. 471. 240; The People v. Norton, 7 Barb. Sup. Ct. It will not lie to compel a Court to grant an 477. application addressed to its discretion and re


*The QUEEN v. The GREAT WESTERN Railway Company.

[*327 Feb. 2. (In the Matter of the Burnham Rates.) One of the partners in a firm, acting as attorneys for a parish, was duly appointed auditor of the

Union comprising that parish, and acted as such until, on the passing of stnt. 7 & 8 Vict. c. 101, he became auditor of the district comprising that parish. It was known that he was a partner in the firm; and for some time no objection was made to his acting as auditor, though in doing so he had to allow or disallow bills of costs of his own firm. The objection was at last taken. The auditor, after an unsuccessful attempt to have the audit, as to these bills, conducted by a stranger (which the Poor law Commissioners would not sanction), held an audit himself, though with the assistance of a disinterested party : that party, however, not acting formally as assessor. The auditor, during such audit, allowed several bills of costs belonging to his own firm. The accounts and allowances being brought up by certiorari: on

a motion to quash them: Held, that the auditor, being duly appointed and having accepted the office, was bound to fulfil

its duties, and therefore that the audit was not void, though the auditor had a direct interest

in the accounts 'Amongst the items allowed were the costs of a litigation (in support of rates irregularly made)

which, in the opinion of the Court, was unnecessary and improper, though the litigation was

bona fide, carried on under the advice of counsel, and sanctioned by the vestry. Held, that these items ought not to have been allowed: and the auditor's allowance of them was quashed.

A CERTIORARI having issued to bring up the accounts of the assistant overseer of the parish of Burnham, in the county of Buckingham, for the quarters ending at Midsummer and Michaelmas, 1844, audited and allowed by the auditor of the Eton Union, and the allowances and dis


allowances of the auditor, together with his reasons, the auditor made a return, stating them at length.

Pashley, in Trinity term, 1845, obtained a rule calling on the auditor and the church wardens and overseers of the poor of Burnham to show cause why the return should not be quashed, or why the audits of the two accounts should not be severally quashed, or why the allowances of a great number of items specified in the rule should not be severally quashed. The affidavits and exhibits on each side were very voluminous.

The facts, as far as they are material to this *report, appeared to *328]

be that Mr. Charsley, partner in a firm of Charsley and Parton, attorneys, had been appointed auditor of the Eton Union, in 1835, and continued such auditor until, on the passing of stat. 7 & 8 Vict. c. 101, he became a district auditor under sects. 32, 37, of that act. At the time when he was appointed, the firm in which he was partner were and had been for many years solicitors for the parish of Burnham, one of the parishes in the Union. They continued to be employed for the parish. After his appointment, Mr. Charsley took no personal part in the management of the parish business, which was transacted exclusively by his partner; but he had as a partner in the firm a share of the profits of the business thus transacted. This was well known; and no objection was made by any person on that account, until the Midsummer audit, in 1844.

The Great Western Railway runs through part of the parish of Burnham. In 1840, disputes arose between the Railway Company and the parish officers as to the principle on which the railway should be rated to the poor. In the result, the quarter sessions, on appeal, supported a rate made on a principle which the Company considered unjust. From that time The Great Western Railway Company opposed the rates as far as lay in their power. Much litigation ensued; and the bills of costs of Charsley and Parton became very important items in the parish accounts audited by Mr. Charsley as auditor of the Union. The allowance of the items arising from the expenses of the litigation between the Company and the parish officers was always opposed by the Company in their capacity of rate-payers. No objection, however, appeared

to have *been taken to the qualification of Mr. Charsley as auditor *329]

until the 19th of September, 1844. The audit of the account ending Midsummer, 1844, was held on the 17th July, 1844; and the items were gone through: it was adjourned till the 19th of September, 1844, to give time to produce some vouchers : in the interval, the Company changed their solicitor; and at the adjourned meeting, on 19th September, 1844, the new solicitor of the Company, in their name, objected that the auditor was interested in the passing of the accounts. Mr. Charsley treated the objection as coming too late, because the items in which his firm were interested had already been allowed.

Before the time for auditing the next Michaelmas accounts, Mr,

Charsley wrote to the Board of guardians, suggesting the propriety of appointing some disinterested person to audit the accounts of the Burnham overseers for the next quarter. The Board approved of the suggestion, and assented to the appointment of Mr. Parker, the auditor of an adjoining Union, for that purpose, subject to the approval of the Poor Law Commissioners. Mr. Charsley wrote to the Poor Law Commissioners, and received an answer from them, as follows:

“Beaconsfield, October 17th, 1844. Eton Union. Burnham parish account. Sir,—In consequence of the parish having successfully resisted an appeal by The Great Western Railway against the rates which put them up to a fair value for their rateable property, and in which they were defeated on the quantum meruit, the Railway shows a disposition to annoy the parish in every possible way, appealing against their accounts at every audit, bringing setions, &c. As I stand in the double capacity of solicitor for the parish (with my partner, Mr. Parton, who conducted the whole business), and we having a bill on the parish, I have suggested to the Board of guardians the propriety of some other gentleman auditing the Burnham parish accounts on the 23d instant, at the Union House at *Slough, at two, P. M., which they approve of. I named Parker of Wycombe, the auditor of the Bledlow Union, or any [*330 one the guardians might approve of. Mr. Barret, their clerk, writes me that they approved of my suggestion, and that the Board consent to the appointment of any gentleman for the purpose, provided the Poor Law Commissioners approved of the said appointment. I have therefore to request their approval of Mr. Parker, or any other gentleman they may please to sanction. I have the honour to be, &c." "To W. G. LUMLEY, Esq.

“JNO. CHARSLEY, Auditor." P. L. C. O.

“ Poor Law Commission Office,

Somerset House, 230 October, 1844. “Sir,-I am directed by the Poor Law Commissioners to acknowledge the receipt of your letter of the 17th ultimo: and, with reference to your proposal that Mr. Parker should audit tho accounts of Burnham parish for the last quarter, I am to state that an auditor cannot delegate his powers to any one else, but may obtain the assistance of any other person if necessary. I am, &c. "To J. CHARSLEY, Esq., &c.

“L. COODE, Assistant Secretary." Before the receipt of this answer the audit had commenced; Mr. Charsley stated publicly that, in consequence of the objection which had been made, he should not personally interfere in auditing the Burnham parish accounts, which should be gone through by Mr. Parker, as auditor, if any appointment should arrive from the Poor Law Commissioners, otherwise as Mr. Charsley's deputy. The representative of The Great Western Railway Company protested against this. Mr. Parker, however, proceeded to audit the accounts, Mr. Charsley remaining in an adjoining room, and not in anywise interfering. When the accounts had been nearly gone through, Mr. Charsley, having received the answer of the Poor Commissioners, entered the room and adjourned the audit for a fortnight: the representative of the Company protested against this. At the adjourned meeting Mr. Charsley himself sat as auchtor. He appeared substantially to have adopted *the conclusions of Mr. Parker, who however did not formally act as

[*331 assessor; and the audit purported to be that of Mr. Charsley. Against this also a protest was made on behalf of the Company.

In each of the accounts, brought up by the certiorari, there were VOL. XIII.-26


[ocr errors]


many items arising from law expenses : part of these arose from a rate having been made in November, 1842, and another in February, 1843, against both of which the Company appealed. These rates were defective as not containing the declaration enjoined by stat. 6 & 7 W. 4, c. 96, s. 2. The parish officers gave notice that they intended to abandon these informal rates, and to make formal rates in lieu of them; subsequently they took the advice of counsel, and were advised by him that they had no power to make the substitution. Under his advice a friendly appeal was made in the name of a ratepayer named Britnell, but really by the parish officers, against both of these rates; and by consent two orders of sessions were made at the Midsummer sessions, 1843, quashing these two rates, and directing new rates to be made in lieu thereof. The parish officers, in July, 1843, accordingly made new rates, against which the Company appealed. The rates were, in October, 1843, confirmed on appeal by order of the quarter sessions.

A certiorari issued to bring up these orders of sessions : and a rule nisi was obtained by the Company to quash them; against which the parish officers showed cause. A cross rule to quash part of the writ of certiorari(a) was obtained by the parish officers. All these proceedings

were under the advice of counsel, and sanctioned *by the vestry, *332]

to whom the opinion of counsel was submitted before it was acted upon.

In the result, the rule obtained by the parish officers was discharged, with costs to be paid to the Company; and the rule to quash the orders of sessions was made absolute. The auditor, after consulting the Poor Law Commissioners, allowed the costs of each of those proceedings, and the costs paid to the Company. These allowances were among the items which it was sought by the present rule to quash.

The case was put into the Crown paper, and was now argued.(6)

The greater part of the rule was, in the course of the argument, abandoned: and ultimately the only points insisted on were, that the audits should be quashed on account of the interest of the auditor; or, supposing this not to be granted, that the allowance of the costs of the litigation arising from the friendly appeal should be quashed. That part only of the arguments which bore on these questions is reported.

Chambers and Winser, for the auditor and the parish officers.—First: the auditor was interested in the matters on which he was to decide; but that fact was known to those who appointed him, and also to the Company, who, by their long acquiescence, tacitly sanctioned his acting as auditor, though interested. As far as regards the first audit com

lained of, it was too late to take the objection, which was already waived. The second audit, however, was held after notice of the objec

(a) As to the two first-mentioned orders of sessions, against which the Company had not appealed.

(6) Before Lord DENMAN, C. J., PATTESON and WIGHTMAN, Js.

tion. But those who had appointed Charsley knew of his situation; he

l was not to blame for being *auditor; and at all events he was auditor, and as such was bound to see that the duties of his office

[*333 were performed. It is obvious from the proceedings at the audit, that he was to expect no assistance from the Company. Whatever course he tried to take he was met by a protest and a technical objection: it is evident that the Company were not seeking to have the accounts fairly audited, but to prevent their being audited at all. In substance Parker acted as Charsley's assessor: and, though in form the audit was that of Charsley, who was interested, in reality it was the audit of an impartial person. That an interested party must not act as judge where it can be avoided is a rule laid down in many cases. That is the principle of Brookes v. The Earl of Rivers, Hardres, 503, Anonymous (1 Salk. 396) case in Salkeld, and The City of London v. Wood, 12 Mod. 669. In those cases it was not necessary that the plaintiff should sue in his own court. But in Rex v. The Justices of Essex, 5 M. & S. 513, where the sole appeal was to the borough justices, and there was not a quorum of borough justices free from interest in the subject matter; it was held that the justices, though interested, might hear the appeal. In the present case, unless Charsley had audited the accounts they must have remained unaudited; there was no power in any one to appoint a special auditor; and Charsley was reduced to the alternative of leaving the duties of his office unperformed, or acting, though interested, with the best assistance he could obtain. He chose the last course; and Rex v. The Justices of Essex shows that he was right. The audit is good, unless, as a matter of law, his interest made his appointment as auditor void : and no *case has gone so far. And, if his appointment was void, his acts under it could not properly be the subject of a

[*334 certiorari.

Secondly:.the law costs were properly allowed. The general principle, that all persons filling a public situation are to be reimbursed for costs incurred by them in their public capacity, is laid down in Rex v. Essex, 4 T. R. 591. As far as it is applicable to the officers of the poor, it is stated in Rex v. Gwyer, 2 A. & E. 216 (E. C. L. R. vol. 29), by TAUNTON, J., who in his judgment(a) adopts the rule laid down in Willcock's Poor Law, p. 281, that the officers are entitled to be reimbursed " for the costs of orders of maintenance or removal, or of an appeal, though decided against them, unless they have been guilty of gross misconduct, or of neglecting to consult the vestry as to the propriety of proceeding in it when there was convenient opportunity, in repaying the legal disbursements of constables and all other money fairly laid out in the business of the parish.” The same principle is laid down in 4 Burn's Justice, 372, tit. Poor, ed. 29, 1845, where Rex v. Micklefield, Caldecott, 507, S. C. 1 Bott's P. L. 102, pl. 113, 6th ed., is cited as an

(a) 2 A. & E. 226, 7 (E. C. L. R. vol. 29).

[ocr errors]
« EelmineJätka »