Boyce v Higgins
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1853 |
| Date | 14 November 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 23 L. J. C. P. 5; 18 Jur. 333. Referred to, Robinson v. Currey, 1880-81, 6 Q. B. D. 30; 7 Q. B. D. 465.
COMMON BENCH REPORTS. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS and EXCHEQUER CHAMBER, in Michaelmas Term, 1853, and Hilary and Easter Terms, 1854. By JOHN SCOTT, Esq., of the Inner Temple, Barrister - at - Law. Vol. XIY. London, 1855. [1] cases argued and determined in the court op common pleas and in the exchequer chamber, in michaelmas term, in the seventeenth year of the eeign of victoria. The judges who usually sat in banco in this term, were,-Jervis, C. J., Maule, J., Williams, J., and Talfourd, J. boyce v. higgins. Nov. 14, 1853. [S. C. 23 L. J. C. P. 5; 18 Jur. 333. Eeferred to, Robinson v. Currey, 1880-81, 6 Q. B. D. 30; 7 Q. B. D. 465.] The 19th section of the Public Health Act, 11 & 12 Viet. c. 63, imposes a penalty of 501. upon any person acting as a member of a local board of health who is disqualified or disabled by any provisions of the act, such penalty to be recovered by any person, with full costs of suit, by action of debt; and one of the disqualifications consists in the being concerned in, or participating in the profits of, any bargain or contract entered into by such board,-with a proviso, that no person, being a proprietor, shareholder, or member of any company or concern established for the supply of water or for the carrying on of any other works of a like public nature, should be disabled from being, continuing, or acting as member of the said board, by reason of any contract entered into between such company or concern and such board, but that no such person should vote as member of the said local board upon any question in which such company or concern was interested. And s. 133 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 the party grieved, &c., without the consent in writing of the Attorney-General.-The defendant was a proprietor of stock in the Margate Pier Company, and also a member of the local board of health at Margate; and, in this latter capacity, attended a meeting of the board and voted upon a question upon which the Margate Pier Company was interested:-Held, that, assuming the defendant to have incurred by so doing the penalty imposed by the 19th section of the 11 & 12 Viet. c. 63, an action for such penalty could not be brought against him by a person who, not being a party grieved, otherwise than as one of the public, had not obtained the consent of the Attorney-General, pursuant to s. 133. This action is brought to recover the sum of 501., as [2] a penalty, under s. 19, of "The Public Health Act, 1848,"-11 & 12 Viet. c. 63. The defendant has pleaded nil debet, by statute. C. P. xvil-1 2 BOYCE V. HIGGINS 14C.B.3. The following case was agreed upon by the plaintiff and defendant for the opinion of the court:- The plaintiff has been for some years, and now is, an inhabitant householder, residing at Margate, in the county of Kent, and is rated to all rates made upon him for the relief of the poor within the parish of St. John the Baptist, at Margate, and is a ratepayer and elector-entitled to vote at the election of members for the local board of health for the said parish, as established under the Public Health Act, and the provisional order of the general board of health made as hereinafter mentioned. The plaintiff is also in the habit of using the Margate pier and jetty, for landing and embarking at Margate aforesaid, and of paying tolls charged by the Margate-pier act hereinafter mentioned, on all passengers using the said pier or jetty. The defendant is, and was when he voted as hereinafter mentioned, one of the company of proprietors of .the Margate pier and harbour, established and incorporated l y the 52 G-eo. 3, c. elxxxvi., and one of the directors, and a proprietor of stock, in the said company. That company was incorporated for, amongst other things, the purpose of finishing and completing the harbour of Margate, and for making, erecting, constructing, building, maintaining, and supporting, any piers, jetties, quays, wharfs, and other works, buildings, matters, and things, for the finishing and completing the said harbour, and for other purposes in relation to the said harbour. By ss. 66, 67 of that act, it was provided that the surplus profit, income, and gains of the said company, after making certain payments therein mentioned (and one of which included the primary payment of interest on 37,2001., the old debt which then was a charge on [3] the rate-payers of the town), and paying a dividend to the proprietors at a rate not exceeding iOl. per cent., should be set apart to form a sinking-fund for defraying the expenses and future repairs of the said pier and harbour, until such, fund amounted to the sum of 20,0001.; and, that, when the sinking-fund amounted to that sum, all the surplus revenue should be applied to paying off the said 37,2001. due on the credit of the town rates, and then the money borrowed by. the company, and finally to paying off the proprietors the sums advanced by them by way of shares, in manner therein mentioned; and, when such sums should all have been paid off, the said company was to be dissolved. By a certain provisional order for the application of the Public Health Act, 1848, to the parish of St. John the Baptist, Margate, made in pursuance of the said Public Health Act, and dated the 26th of May, 1851, the said Public Health Act, with certain exceptions, was ordered to be applied and to be in force in a certain district in the said parish of St. John the Baptist, Margate, aforesaid, from the day fix-ed for the first election of the local board of health by any act of parliament confirming that order. By the said order,-after reciting amongst...
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