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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 pur

pose. 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 r. 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 em

ployed 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

a

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 sucuss 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 tu 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.(6)

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 of uncommon length. On the close of the argument, the learned

[*338 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.

(6) 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

and

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,

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 decision 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, *339]

if the work was necessary to be done ; but he will naturally be apt to sanction that necessity.

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 3 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

opinion, fairly taken, *and by the recommendation, of a gentleman

[*340 at the bar, whose ability and experience they might reasonably trust. But the advice of barristers, though it may prove the bona fides of those who follow it, cannot alter the nature of the thing done. The client takes the chance of such advice turning out to be unwarranted by law and condemned by the Court. We are not called upon to observe minutely on the advice here given : but we cannot refrain from saying that the contrivance for enabling the overseers to do, indirectly and at considerable cost, what was felt to be impossible if attempted directly, appears to us to be so very questionable, that neither the attorneys, nor perhaps even the officers, can be quite excused for adopting it.

There is a second certiorari: in so far as it comprises the same items it must succeed, and those items must be disallowed. By the act which gives the certiorari to remove audits, we have no power to take any middle course.

By that act we are also empowered to order the costs to be paid out of the parish rates. But, considering all the circumstances, that the conduct of the officers has been free from all ill intention, and the opposition to their proceedings harassing, we do not think ourselves bound to award any costs to the prosecutors. On the other hand, the act provides for reimbursing the auditor his costs out of the parish rates, unless this Court shall make any order to the contrary. We are of opinion that this auditor ought not to be so reimbursed: and we order that he bear his own costs of this proceeding.

Rule accordingly.(a) (a) Reported by C. Blackburn, Esq.

*In the Matter of Arbitration between BUTLER, BAKER,

and MASTERS.

[*341

In showing cause against a rule for attachment for non-performance of an award, affidavits cannot

be used to show that the award is impracticable, uncertain, or not final, nor can the award be

impeached except for defects apparent on the face of it. The rule, that an application once disposed of cannot be renewed under the same circumstances

and for the same object, is not binding in all cases. Where an award directed that A. should pay the arbitrator's costs, and should be reimbursed by B., a rule for an attachment against B. for not reimbursing A, was discharged, because the affidavits did not show that A. had paid them to the arbitrator. A. had not then paid them, but had given his note for the amount, which he afterwards paid. On a second motion, then made, an attachment was granted, on the ground that the payment by A. was a new fact, which took the case out of the ordinary rule ; it appearing also that there had been contumacy in the party against whom the rule was directed, and hardship on the applicant.

In this case, on a reference of two actions, Butler v. Masters and Masters v. Butler, Baker being also a party to the reference, the arbi. trators had awarded that Butler and Baker should make a carriage-way, a right to which was claimed by Masters, over certain and, of which Butler was the occupier and Baker the owner, and a drain at the end of the said carriage-way, in manner specified ; that Butler should pay the costs of the actions, except the costs of certain issues; that Masters should, in the first instance, pay the arbitrators their costs and charges in respect of the reference and award, to be taxed by the Master, and that he should be reimbursed by Baker, who was also to pay the taxed costs of Masters in respect of the reference. The submission having been made a rule of court,

Watson, in Michaelmas term 1846, obtained a rule nisi to set aside this award on several grounds, and, among others, on the ground that the award, with respect to the manner specified of making the carriageway and drain, was impracticable; and, in support of the rule, affidavits

were used to show this and other *matters dehors the award. *342]

This rule was argued in Easter term (May 5th) 1847, (a) and was discharged in Trinity Term (May 25th) 1847.

Barstow, in Michaelmas term 1847, obtained a rule calling upon Butler and Baker to show cause why an attachment should not issue against them for contempt in not paying the taxed costs to be paid by them respectively, and in not making the carriage-way and drain to be made by them, in obedience to the said award and rule of Court.

The affidavits in support of the rule stated the necessary formalities as to the service of the rule of Court, award, and allocatur, and as to the demand of performance, but did not state that Masters had himself paid the charges of the arbitrators, which were to be reimbursed to him by Baker.

In Hilary term (January 28th) 1848,

Watson and Arney, on showing cause, referred to affidavits to show that the award was impracticable, unintelligible, uncertain, and not final. [Sir F. Thesiger here objected that matter not apparent on the face of the award could not be shown for cause against a rule for an attachment, and cited Macarthur v. Campbell, 2 A. & E. 52 (E. C. L. R. vol. 29), and Paull v. Paull, 2 C. & M. 235,7 S. C. 4 Tyrw. 72.] They then contended that anything which would be a defence to an action on an award might be set up in answer to the rule for an attachment for disobeying the award; that an award might direct an impossible thing to be done; that this defect might not be apparent on the award itself;

and *that it would be absurd to attach a person for not perform*343]

ing an impossibility. Lord DENMAN, C. J.-We cannot go into extrinsic matters on this rule. The practice is well established.

PATTESON, J.-It would be a monstrous injustice to go into this extrinsic matter. The rule for an attachment is obtained on affidavit merely that the necessary formal steps have been taken. It would be unjust to act upon affidavits from the other side, which the party obtaining the rule would have no opportunity of answering. COLERIDGE and WIGHTMAN, Js., concurred.

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

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