Hollis v Marshall
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1858 |
| Date | 27 January 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 311
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
[755] HoLLIS v MARSHALL. Jan 27, 1858 -A declaration in a qui tarn action, stated that the plaintiff and defendant were candidates foi the office of Commissioner under the Cheltenham Improvement Act, 1852 that the plamtitt would have been elected, but that the majority of votes was in favour of the defendant, who was thereupon elected and acted as such Commissioner without being duly qualified : whereby the plaintiff was aggrieved as a ratepayer, voter, and resident wifchm the borough, and also as such candidate The Cheltenham Improvement Act, 1852, incorporates section 15 of the Commissioners Clauses Act, 1847, (a) See Archbold's Practice, 9th ed , 18(5. 312 HOLLIS V. MARSHALL 2 H & N. 756. which enacts that every person who shall act as a Commissioner without being duly qualified shall "be liable to a penalty of 501., and such penalty may be recovered by any person." The Cheltenham Improvement Act, 1 S52, also incorporates section 133 of the Public Health Act, 1848, which enacts that no proceedings for the recovery of any penalty under that Act shall be taken " by any person other than by a party grieved, or the Local Board of Health m whose district the offence is committed, without the consent of the Attorney General and if the application of the penalty be not otherwise provided for, one-half thereof shall go to the informer and the remainder to the Local Board of Health " The cause was tiied and a verdict found for the plaintiff-Held Fust, that the plaintiff was not a, " party grieved " by the defendant acting as such Commissioner.-Secondly, that the declaration was not authorized by section 15 of the Commissioners Clauses Act, 1847, and, under section 133 of the Public Health Act, it was bad in arrest of judgment, inasmuch as (the plaintiff not being a party grieved) it ought to have alleged the consent of the Attorney General -Thirdly, that although the want of the consent of the Attorney Geneial was an objection which might be taken by plea or demurrer, it was also a ground for staying the proceedings after trial. [S. C. 27 L. J Ex. 235, 6 W. R 365 ] The declaration commenced by stating that the plaintiff, " who sues in this action as well for the Cheltenham Improvement Commissioners in whose district 01 borough of Cheltenham the offence hereinafter mentioned was committed by the defendant, 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 entne atea 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 [756] qualified in that behalf) be re-elected 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 sard 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 mentroned 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 ter m 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 re-election 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 arid to act as such Commissioner, in case of his re-election , and that the defendant then alao 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 ^otes 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...
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