The King against F. Kingston, J. Ellis, J. Wallis, W. Hart, J. N. Bacon, W. Bacon, G. Sheriff, W. Wells, and J. Wellingham
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1806 |
| Date | 19 November 1806 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 259
IN THE COURT OF KING'S BENCH.
J41] the king against F. kingston, J. ellis, J. wallis, W. hart, J. N. bacon, W. bacon, d sheriff, W. wells, and J. wellingham. Wednesday, Nov. 19th, 1806. 1. It is no objection on demurrer that several different defendants are charged in different counts of an indictment for offences of the same nature ; though it may be a ground for application to the discretion of the Court to quash the indictment. 2. The St. Alban's Paving and Regulating Act, 44 G. 3, empowers five commissioners, assembled at a public meeting holden by virtue 260 THE KING -V. KINGSTON 8 EAST, 42. of the statute, to do certain acts; amongst others, to deliver notice in writing to any inhabitant to abate nusances and encroachments in the street before their houses; and, on failure, empowers the commissioners to abate them; and gives an appeal to the Q. Sess. of the borough " against any matter or thing to be done by the commissioners in pursuance of the Act:" Held that an appeal lay against such notice in writing ; such construction being within the words of the Act, &c. and most beneficial for the commissioners themselves, as well as for the inhabitants whose property was to be affected by such Acts. 3. Though the Act says, that " all monies paid, expended by, or recovered against the commissioners or their treasurer, &c. by means of any action, prosecution, &c. or appeal, for any cause relating to the Act, or any thing done by or under the authority of the same, shall be defrayed out of the money in the hands of the treasurer," it does not extend to discharge the commissioners from personal responsibility, in the first instance, for the costs of an appeal awarded to be paid by them; however, they may afterwards recoup themselves out of the fund in the treasurer's hands. 4. And an indictment against certain commissioners for a contempt of an order of sessions in not paying such costs, stating, generally, that the party appealed to the sessions against such notice in writing under the hands of five commissioners acting in the execution of the statute, and which notice was made, or purported to be made, under the powers to them given by the Act, seems sufficient; for the Court will presume, as against the persons issuing such notice, that it was signed by them when lawfully assembled at a public meeting holden by virtue of the Act. 5. But counts in the indictment stating an appeal against a notice in writing, signed by A. B. C. D. and E. five of the commissioners, and an order by the sessions that the commissioners acting under the statute and being the respondents in the said appeal, on service of the said order, should pay the appellant 101. costs of appeal; and alleging service of the order on those five and others acting as commissioners, &c.; and then charging that at a subsequent meeting held by virtue of the Act, A. B. (omitting C.) D. and E. and also F. and G. commissioners, were present and acting, and formed a majority, a demand of the 101. costs was made on those six, whicb they refused to pay: and other like counts, charging service of the order upon part only of those who were indicted for a contempt of it, were, on general demurrer, holden bad. And the offence being laid jointly against the several sets of defendants in each count, the Court could not give judgment, on such an indictment, even against the four who were parties to the appeal, and on whom service of the order was alleged, there being no one count including those only. [Referred to, Castro v. Beg., 1881, 6 App. Cas. 247.] The indictment stated, that by an Act of the 44 Geo. 3, for Paving, Lighting, and Regulating, &c. the Streets of the Borough of St. Alban's, reciting that the streets were [42] subject to various encroachments and nusances, it was enacted, that the mayor, aldermen, &c. of the borough and their assistants, and certain persons therein named (amongst whom were the defendants) should be commissioners for putting the Act into execution ; that they should meet for that purpose from time to time; that not less than five should constitute a meeting; but that any five or more assembled at a public meeting, &c. might execute the powers of the Act, and " that no act of the said commissioners should be valid unless done at some meeting to be held by virtue of the said Act." And it was further enacted, " that if any persons should think themselves aggrieved by any rate or assessment to be made, or other matter or thing to be done in pursuance of the said Act, such persons might...
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