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, to whom the opinion of counsel was submitted before it was acted

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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 es auditor, though interested. As far as regards the first audit comlained 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.

(b) Before Lord DENMAN, C. J., PATTESON and WIGHTMAN, JS.

tion. But those who had appointed Charsley knew of his situation; he was not to blame for being *auditor; and at all events he was [*333 auditor, and as such was bound to see that the duties of his office 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 certiorari.

[*334

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).

authority for it. In the present case, the costs were incurred for a proper object. A rate had been made which could not be enforced on account of a formal defect. The parish officers were desirous of abandoning it and making a new one not subject to the same defect; and the vestry, and indeed all the rate-payers except the Company, approved of this object, which was clearly for the benefit of the parish. The officers of the poor consulted counsel, and under his advice took steps for this purpose. The advice proved *wrong; and the steps were unsuccess*335] ful in the result: but there is no pretence for saying that the officers of the poor were either negligent or blameworthy. No case has ever decided that the costs of a litigation are not to be allowed, merely because it was unsuccessful.

M. D. Hill and Pashley, contrà.-First: It is an essential principle of justice that the members of a tribunal must not be interested in the subject they are to decide; and, accordingly, a long series of cases has established that wherever the tribunal is so interested the decision is void. The most recent cases on the subject are Regina v. The Cheltenham Commissioners, 1 Q. B. 467 (E. C. L. R. vol. 41), and Regina v. The Justices of Hertfordshire, 6 Q. B. 753 (E. C. L. R. vol. 51). No interest could be more direct than that of the auditor in the present case. [Lord DENMAN, C. J.-There can be no doubt of his interest: the audit can be supported only on the principle that the legislature, by creating such an office, has made it necessary that the person holding it should act, though interested.] There can be no such necessity; for it was in his power to resign. The legislature has not obliged a man to keep such an office, when it is impossible to fulfil its duties impartially. Rex v. The Justices of Essex, 5 M. & S. 513, did not proceed on the principle for which it is cited, but on the construction of particular statutes; and in that case the interest was very slight, that of rate payer only. At all events Charsley might have had an assessor, instead of sitting himself. [Lord DENMAN, C. J.-That would have been the common sense course; but did not he do so in fact?] At first he employed Mr. Parker; but afterwards he sat himself *and completed *336] the audit. [WIGHTMAN, J.-That was in consequence of the letter of the Poor Law Commissioners. A distinction is taken there between delegating his powers and procuring assistance. What is that distinction? Is it more than that, if Mr. Charsley employed an assessor, the audit must be in form that of Charsley as auditor, and it would not appear on the face of the proceedings that there was an assessor.] If the decision was that of a disinterested person, that fact might be shown. (The counsel for the parish contended that the affidavits showed that in fact the decision on the propriety of allowing the bills of costs was by Mr. Parker.) Even if such was the fact in the present case, which is denied, the adjudication would be void; neither an interested

person nor his deputy can try a cause: Brookes v. The Earl of Rivers, Hardres, 503, The City of London v. Wood, 12 Mod. 669, 690.

Secondly: The law costs were improperly allowed. The want of success does not necessarily show that the costs were improperly incurred; but it throws on the officers of the poor the onus of showing that they were incurred properly. The sanction of the vestry makes no difference. In Rex v. Micklefield, 1 Bott. 102, pl. 113, S. C. Cald. 507, which is best reported in Bott's Poor Law, BULLER, J., seems to have thought the consent of the vestry unnecessary if the litigation was proper, and useless if it was not. The more modern decisions have gone on the principle that the officers of the poor should have no interest in encouraging litigation, and, therefore, that costs should not be allowed unless the necessity for incurring them was clear; Rex v. Bird, 2 B. & Ald. 522,、 Rex v. Johnson, 5 A. & E. 340 (E. C. L. R. vol. 31), Regina *v. [*337 Fouch, 2 Q. B. 308 (E. C. L. R. vol. 42): Regina v. The Mayor of Leeds, 4 Q. B. 796 (E. C. L. R. vol. 45), is a similar case as to costs incurred by officers of a borough. The parish officers in the present case put forward a ratepayer to appeal, in his name, but at their expense; they supported that appeal as if it was bonâ fide; and in the proceedings in this Court reported under the name of Regina v. The Great Western Railway, 1 New Sessions Cases, 301, (a) they tried to deceive the Court. It is true that the proceedings were under advice of counsel: but no advice could prevent the parties from seeing that such conduct was improper.(b) Cur. adv. vult. Lord DENMAN, C. J., on a subsequent day of the vacation (February 24th), delivered judgment.

This was a certiorari, issued under stat. 7 & 8 Vict. c. 101, s. 35, to remove two several accounts of the poor rate raised for the parish of Burnham in the county of Buckingham, ending at Midsummer and Michaelmas respectively, A. D. 1844, and the audits of them by Mr. Charsley, the district auditor, with his reasons for allowing, disallowing, or surcharging any portion thereof.

The writ was sued out by The Great Western Railway Company, whose objections, and the answers to *them, occupied affidavits [*338 of uncommon length. On the close of the argument, the learned counsel for the prosecution narrowed their complaint to four items, being the law charges on several proceedings at the quarter sessions and in this Court. These were bills of costs claimed to be due to Messrs. Charsley and Parton, the solicitors for the parish of Burnham: Mr. Charsley was the auditor to whom they were submitted.

(a) The material facts there stated appear in the present report, ante, p. 331. The point ou which that case was ultimately decided (namely, that the first two rates, not having been appealed against at the next sessions nor the omission accounted for, were never regularly quashed) does not appear to require further mention.

(5) A second rule nisi, to quash the audits of the accounts for the quarters ending at Lady-day and Midsummer 1845, which had been brought up by another certiorari, was ordered, by consent, to abide the event of this rule.

S

The first objection was founded on this circumstance, as on well known principles no auditor can settle his own accounts, and his appointment to do so is therefore said to be ipso facto void.

We cannot admit the validity of one answer given to this objection: that, if the auditor's appointment were void, he would not come within the enactment which gives this certiorari; because he might by acting make himself amenable to our jurisdiction, although his acts were not binding: but we think that, having been duly appointed auditor, and having accepted the office, he could not decline any of its duties. His election by those who knew of his interest proved their confidence in his integrity, and may be likened to the conduct of a party who selects the adverse counsel as an arbitrator, or deliberately agrees to be bound by the deci sion of the adverse party. Justice requires us to add that Mr. Charsley appears to have done all in his power towards obtaining such assistance as might enable him to come to a correct result: and indeed there is no objection stated to the amount of his bill. We do not, however, express any approbation of such an appointment, though it is said to be commonly made: on the contrary, we think the parish solicitor would do well to decline the office. His charges may be *perfectly just, if the work was necessary to be done; but he will naturally be apt to sanction that necessity.

*339]

And in this case the objection secondly made by the prosecutors is that the expenditure, however reasonable in amount, was incurred for improper purposes. We do not think the mere want of success in legal proceedings a sufficient reason for disallowing them. But we think the proceedings complained of justly fall under the description of unnecessary and improper litigation. The two rates which were left incomplete for want of the declaration enjoined by stat. 6 & 7 W. 4, c. 96, s. 2, ought not to have been defended when appealed against: the friendly appeals by Britnell ought not to have been instituted, or any part of the costs of them paid by the parish officers: the certiorari obtained in this Court ought not to have been rendered necessary, nor resisted: the motion to quash a part of that certiorari ought not to have been made: and the costs of that motion, ordered to be paid by the parish officers, ought not to have been charged upon the parish.

These various proceedings appear indeed to have been sanctioned by the vestry; but the vestry has no power to direct the application of the poor rate to illegal purposes: that is, the majority of those attending a vestry cannot take the money of the minority of those present, and that of the absent, and employ it in improper litigation. The overseers have the entire control of the expenditure of that rate; and they are bound to take care that it shall never be diverted from its legitimate objects.

Another feature in this case requires to be noticed. The overseers appear to have acted in all these proceedings, except the first, on the