HOLLIS

v.

MARSHALL

[ *756 ]

[ *757 ]

as for himself in this behalf," by &c., his attorney, sues &c.: For that after the passing and coming into operation of the Cheltenham Improvement Act, 1852, whereby it was (among other things) enacted that the said Act should apply and be in force within and throughout the entire area comprised within the boundaries of the borough and parish of Cheltenham; and that the number of persons for executing the said Act should be thirty; and that they should be called "The Cheltenham Improvement Commissioners," and should be chosen for the term of three years, and that one-third of their number should retire annually, and that every such Commissioner going out of office, or otherwise, might (he being duly *qualified in that behalf) be reelected and become again a Commissioner, the plaintiff became, and during all the time hereinafter mentioned was a ratepayer, and was an elector and entitled to vote in and at the election of such Commissioners, within the true intent and meaning of the said statute, to wit, for the ward hereinafter mentioned, and resident within the said borough and boundaries aforesaid; and had in conformity and in accordance with the provisions of the said statute been duly elected, to wit, for the ward mentioned and referred to in the said Act as the west ward and described in the Schedule (A) annexed to the said Act, and acted as such Commissioner as aforesaid; and that the term of office of the plaintiff having expired, to wit, on the 20th day of November, 1856, he duly submitted himself and was a candidate for reelection to the said office of Commissioner, he being in all respects and particulars according to the said statute entitled and qualified to be such candidate and to act as such Commissioner, in case of his re-election; and that the defendant then also proposed himself at the same election for the north ward, as a candidate for the said office, the same being an election within the true intent and meaning of the statute in that behalf; and that divers votes were given for the plaintiff at such election and he would then have been re-elected such Commissioner as aforesaid, but that the majority of the votes at such election were given in favour of the defendant, who was thereupon chosen and elected such Commissioner as aforesaid. And the defendant did thereupon in pursuance of such election, and in acceptance of the said office, enter on and continue in the same and in performance and discharge of the duties thereof, and did act as such Commissioner as aforesaid, contrary to the form of the said statute, inasmuch as he the defendant was during all the time aforesaid wholly *ineligible to such office and unqualified for becoming, or being, or acting as such Commissioner as aforesaid, in this, to wit, that he the defendant was not during that

HOLLIS

time or any part thereof seised or possessed in his own right or in the right of his wife of real or personal estate or both to the MARSHALL. value or amount of 1,000l., &c. (negativing the qualifications required by the 14th and 15th sections of the Cheltenham Improvement Act, 1852), and was at the time of his said election and acceptance of the said office, and whilst he was acting as such Commissioner as aforesaid, entirely without any proper or sufficient qualification in that behalf, either by being seised or possessed of real or personal estate as in the said Act specified in that behalf, or by being rated as by the said Act specified in that behalf, or otherwise; and then acted as Commissioner without being duly qualified, contrary to the form of the said statute: Whereby and by reason of the premises, and the committing of the said offence by the defendant against the said statute, the plaintiff hath been injured and aggrieved as such ratepayer, voter, and resident as aforesaid; and also injured and aggrieved as such candidate as aforesaid, and hindered and prevented from being re-elected at the said election, and from being such Commissioner as aforesaid. Averments: that everything has happened and been done to entitle the plaintiff to issue a writ in this action as aforesaid, and to recover from the defendant the penalty of fifty pounds for the said offence so committed by the defendant as aforesaid, and to render the defendant liable thereto. Wherefore the plaintiff, suing as aforesaid, claims as well the said sum of fifty pounds on behalf of himself and the said Cheltenham Improvement Commissioners as full costs of suit according to the said statute.

Plea. That the defendant is not indebted modo et formâ. Issue thereon.

At the trial, before Willes, J., at the Gloucestershire Spring Assizes, 1857, it appeared that, in the year 1846, the plaintiff and defendant, with two other persons, were candidates for the office of Commissioner under "The Cheltenham Improvement Act, 1852," (15 & 16 Vict. c. 1.,) when the defendant was elected and acted as a Commissioner, without being qualified as required by the 14th and 15th sections of that Act. This action was brought to recover from the defendant a penalty of 50l. by reason of his having so acted without qualification. The Cheltenham Improvement Act, 1852 (sect. 15), incorporates the 15th section of "The Commissioners Clauses Act, 1847," (10 & 11 Vict. c. 16), which enacts that " every person who shall act as a Commissioner, being incapacitated or not duly qualified to act, &c., or after having become disqualified, shall for every such offence be liable to a penalty of 50l., and such penalty may be recovered by any person, with full costs of suit, in any of the

[ 758

HOLLIS

MARSHALL.

superior Courts," &c. The Cheltenham Improvement Act, 1852 (sect. 127), also incorporates the 129th and 132nd sections of "The Public Health Act, 1848," (11 & 12 Vict. c. 63). The 129th section provides, "that in all cases in which the amount of any damages, costs or expenses is by this Act directed to be ascertained or recovered in a summary manner, the same may be ascertained by and recovered before two justices," &c. The 133rd section enacts "That no proceedings for the recovery of any . penalty incurred under the provisions of this Act shall be had or taken by any person other than by a party grieved, or the local board of health in whose district the offence is committed, &c., without the consent in writing of her Majesty's AttorneyGeneral first had and obtained, &c.; and if the application of the penalty be not otherwise provided for, one-half thereof shall [ *759 ] go to the informer and the remainder to the local board of health of the district in which the offence was committed."

It was objected on behalf of the defendant that the action. was not maintainable, inasmuch as the plaintiff was not a party grieved" by the defendant acting as a Commissioner, and the consent of the Attorney-General had not been obtained as required by the 133rd section of the Public Health Act, 1848 (1). The learned Judge directed a verdict for the plaintiff, reserving leave to the defendant to move to enter a verdict for him.

J. J. Powell, in Easter Term, 1857, obtained a rule nisi accordingly, or to arrest the judgment.

Against this rule cause was shown in the following Term (June 4) by the Solicitor-General and Prentice, and Powell was heard in support of the rule. During the argument the COURT intimated a doubt whether the objection as to the want of the consent of the Attorney-General could be raised on this rule, and whether the proper course was not to move to stay the proceedings. J. J. Powell (June 12) obtained a rule nisi accordingly, upon affidavits that the consent of the Attorney-General had not been obtained; and in Michaelmas Term (Nov. 13) cause was shown against this rule.

Arguments for the plaintiff :

First, the consent of the Attorney-General was not necessary. The provisions in the Cheltenham Improvement Act, 1852, with respect to the qualification and disqualification of Commissioners (ss. 14, 15), incorporate the 15th section of the Commissioners Clauses Act, 1847, which imposes

(1) It was also objected that notice of action was necessary under the 138th and 139th sections of the Public Health Act, 1848, (incorporated with

the Cheltenham Improvement Act, 1852), and a rule nisi was granted on this point also, but it was abandoned on the argument.

2.

[ *760 ]

a penalty of 50l. upon every person who shall act as a HOLLIS Commissioner without *being duly qualified, and enables any MARSHALL. person to sue for such penalty. The right to recover the penalty depends on that enactment, which is general in its terms and does not require the consent of the Attorney-General to enable the party to sue. It is said, however, that this enactment is. qualified by the 133rd section of the Public Health Act, 1848, which is also incorporated with the Cheltenham Improvement Act, 1852. But the incorporating section of the latter Act (sect. 127) is headed, " and with respect to the recovery of damages and penalties not specially provided for." This is a penalty specially provided for, since provision is made for the offence of acting as a Commissioner without qualification, by subjecting the person so acting to the penalty imposed by the 15th section of the Commissioners Clauses Act, 1847. Secondly, assuming that the 15th section of the Commissioners Clauses Act, 1847, is qualified by the 133rd section of the Public Health Act, 1848, the plaintiff is entitled to sue for the penalty without the consent of the Attorney-General, because he is a "party grieved" within the meaning of that enactment. It appears on the face of the declaration that the plaintiff, who was qualified to act as a Commissioner, would have been elected if the defendant had not been a candidate.

(BRAMWELL, B.: The penalty is not for being a candidate but for acting as a Commissioner.)

The defendant could not have acted unless he had been elected,
and the plaintiff is grieved by his election. Thirdly, the applica-
tion to stay the proceedings was made too late. It is an appeal
to the equitable jurisdiction of the Court; there is no instance
in which such an application has been made after trial. The
objection should have been raised by plea.
right to take his chance of a verdict and,
afterwards come to the Court and ask for its interference. At
latest the motion *should have been made within the first four
days of the Term after the trial took place.

The defendant has no
failing before a jury,

(BRAMWELL, B.: The defendant is too late if by delay he can waive this objection.)

The defence is analogous to the want of notice of action and should therefore have been pleaded. The Court will not give a defendant the advantage of the Statute of Limitations unless he plead it: 2 Saund. 63. The 12 & 13 Vict. c. 106, s. 153, enacts, that the assignees of a bankrupt, with the leave of the Court of Bankruptcy but not otherwise, may commence or defend any action which the bankrupt might have commenced or

[ *761 ]

defended. In Lee v. Sangster (1), which was an action commenced by the plaintiffs, assignees of a bankrupt, without such leave, the Court of Common Pleas refused to stay the proceedings, and WILLIAMS, J., in delivering the judgment of the Court, says "It was contended that the right of the assignees to sue, being a thing created by the Act alone, must be taken with the qualification annexed to it by the Act, viz., that they shall not have the right to sue unless they shall have obtained the leave of the Court of Bankruptcy. But this argument would prove too much, for it would show that the fact of no such leave having been obtained, would furnish a good plea to the action, and consequently that the present rule was misconceived.”

(BRAMWELL, B.: If consent were given after plea, would that not be sufficient ?)

It may be doubtful whether a subsequent ratification would be sufficient, as the rights of third parties would be affected.

Arguments for the defendant:

First, the consent of the Attorney-General is a condition precedent to the right to sue. The penalty is sought to be recovered under the 133rd section of the Public Health Act, 1848. The plaintiff does not declare in debt for the penalty of 50l. *imposed by the 15th section of the Commissioners Clauses Act, 1847, but he sues as well for the Cheltenham Improvement Commissioners as for himself; and the declaration is framed on the supposition that he is a "party grieved: " Boyce v. Higgins (2). Secondly, the plaintiff is not a party grieved. As a ratepayer, he is no more grieved by the defendant acting as a Commissioner than the other ratepayers. Neither is he grieved as a candidate, for it by no means follows that he would have been elected a Commissioner if the defendant had not been a candidate. Thirdly, the application to stay the proceedings is not too late.

Cur. adv. vult.

The judgment of the COURT was now delivered by
WATSON, B.:

This was a qui tam action, brought to recover a penalty of 501. from the defendant as a Commissioner of "The Cheltenham Improvement Act," for acting as such Commissioner without a qualification.

In the declaration, the plaintiff sued as well for the Cheltenham Commissioners as for himself; and stated that he and the defendant and others were candidates at an election of a Commissioner, at which the defendant had a majority of votes, and (1) 109 R. R. 580 (2 C. B. N. S. 1). (2) 14 C. B. 1.