The Queen against Charles Robert Badger
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1856 |
| Date | 23 February 1856 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 816
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 25 L. J. M. C. 81; 2 Jur. N. S. 419.
816 THE QUEEN V. BADGER 6 BL. ft BL 138. the queen against charles robert badger. Saturday, February 23d, 1856. A complaint, under The Metropolitan Building Act, 7 & 8 Viet. c. 84, s. 79, was preferred to the Quarter Sessions by W., in which W. stated that B. was district surveyor of L., and that W. built in L. three dwelling bouses of the fourth rate, and that three privies, attached to the back of and belonging to them, one to each house, were built and carried up at the same time, and covered in within twenty one days after the dwelling houses had been covered in; and that B. first delivered an account claiming 21. 2s. "in respect of each of the said dwelling houses," which was paid to him, and afterwards an account of 10s. "in respect of each of the said privies," and did, on &c., " in his capacity of surveyor as aforesaid, wilfully receive the same from this complainant, he," B., " not being entitled thereto nnder the said Act. And so the said" W. "complains" that B., "in his capacity of surveyor as aforesaid, did, on the day and year last aforesaid, in manner and form aforesaid, unlawfully demand and receive a fee to which he was not entitled under the said Act: contrary to the provisions of the said Act." The Sessions made an order, stating that, upon hearing a complaint of W., in writing, against B., setting forth the nature and particulars of the offence charged, and alleging that B., "in his capacity of surveyor as aforesaid, had demanded and wilfully received a fee to which he was not entitled under the said Act, contrary to the provisions of the said Act," and upon hearing counsel on behalf of complainant and B., and also B., and the evidence for each, "it appears unto this Court that the said complaint is well founded:" and the Court dismissed B. from the office of surveyor.-The order of Sessions was removed by certiorari ; and motion was made to quash it. Sect. 104 enacts that it shall not be lawful to remove any order, made under the Act, by certiorari.-It appeared by affidavit that the second fee was claimed on the ground that, within the meaning of the Act, the privies had not been covered over within the twenty one days, and were distinctly rated ; on which ground also B. had insisted at Sessions, but which W. had disputed.-Per Coleridge, Wightman and Erie Js., order quashed for want of jurisdiction. Per Coleridge J., because sect. 79 gave jurisdiction to the Sessions in cases only where, supposing the surveyor to have done all he asserted himself to have done, he would still be entitled to no remuneration. Per Erie J., because the jurisdiction was given only in cases where the offence brought before the Sessions was that of claiming a fee to which the surveyor knew himself not to be entitled, whereas there was here a bona fide dispute as to the law.-Dissentients Lord Campbell C.J., on the ground that the complaint in effect charged the offence of intentionally, fraudulently and knowingly taking a fee to which the surveyor was not entitled ; and that this shewed jurisdiction ; which was not affected by the affidavits. [S. C. 25 L. J. M. C. 81; 2 Jur. N. S. 419.] The following complaint was presented to the justices therein named : [138] "To the Worshipful Her Majesty's Justices of the Peace in and for the Western Division of the county of Kent, in General quarter sessions assembled." " The undersigned, David Willoughby, of Forest Hill, in the parish of Lewisham, in the western division of the said county of Kent, grocer, humbly complains and represents to you, the said justices, that Charles Eobert Badger was, under the provisions of the Act" &c. (7 & 8 Viet. c. 84, " for regulating the construction and the use of buildings in the metropolis and its neighbourhood "), on or about 10th of December, 1844, "appointed district surveyor of the parish of Lewisham, in the western division of the said county of Kent; and that he, the said C. R. Badger, bath from thence hitherto held, and still holds, the said office of, and acts as, district surveyor for the said parish. That your complainant, the said D. Willoughby, did, in the year 1853, erect and build three dwelling houses, of the fourth rate within the meaning of the said Act, adjoining each other, at Perry Vale, in the said parish of Lewisbam. That the said dwelling houses were carried up and covered in by the 29th day of November, 1853. That three privies attached to the back of, and belongi ing to, the said dwelling houses, being one privy to each house, were, each and all of them, built and carried up at the same time with the said dwelling houses, and were covered in by the 2d day of December, 1853, and within twenty one days after 6 EL & BL. 139. THE QUEEN V. BADGEE 817 the said dwelling houses had been covered in within the meaning of the above mentioned Act. That, in the month of December, 1853, the said C. R. Badger, as such surveyor as aforeeaid, delivered to this complainant an account claiming a fee of 2L 3a. in respect of each of the said dwelling houses, amounting together to [139] the buhl of 61. 6s., as being due to him as such surveyor. That such last mentioned snm was duly paid by this complainant to the said C. R. Badger, on or about the 12th day of January, 1854. That subsequently, in the month of February, 1854, the said C. R. Badger, as such surveyor as aforesaid, delivered another account to this complainant, claiming a fee of 10s., as due to him as such surveyor in respect of each of the said privies, making together 11. 10s., and did demand of thia complainant payment of the said last mentioned sum, and did, on the 14th day of July, 1854, in his capacity of surveyor as aforesaid, wilfully receive the same from this complainant, he, the said C. R. Badger, not being entitled thereto under the said Act. And so the said D. Willoughby complains to you, the said justices, that the said C. R. Badger, in his capacity of surveyor as aforesaid, did, on the day and year last aforesaid, in manner and form aforesaid, unlawfully demand and receive a fee to which he was not entitled under the said Act; contrary to the provisions of the said Act." Dated 18th October, 1854. On this information, the following order was made: " Kent. At the General quarter sessions of the Peace of our Lady the Queen, holden at Maidstone, in and for the county of Kent, on" &e. (5th April, 18 Viet.): "Upon hearing a complaint of D. Willoughby," &c., "in writing under his hand, against C. R. Badger, district surveyor" &c., "setting forth the nature and particulars of the offence charged by the said complaint, and alleging that the said C. R. Badger, in his capacity of surveyor as aforesaid, had demanded and wilfully received a fee to which ha was not entitled under the said Act, contrary to the provisions of the eaid Act; and, upon [140] hearing counsel on behalf of the said complainant, and also upon hearing counsel on behalf of the said C. R. Badger, and also upon hearing the said C. R. Badger, and the evidence respectively produced by and for each of them the said D. Willoughby and C. R. Badger: It appears unto this Court that the said complaint is well founded : and this Court doth discharge the said C. R. Badger from his said office forthwith." Horn, in last Easter Term, obtained a rule calling on the justices to shew cause why the order should not be removed into this Court by certiorari, on tha grounds (so far as the objections to the said order consist of objections on account of any omission or mistake in the said order): " 1. That the said order fails to shew any jurisdiction in the said Court of quarter sessiont to make it. " 2. That it does not set out any complaint in writing charging the commission of any offence over which the said Court of quarter sessions had jurisdiction. "3 That the supposed offence charged is not an offence within the meaning of the 79tb section of the statute 7 & 8 Viet. c. 84. " 4; That the said order does not specify the nature and particulars of the oflfence. "5. That the evidence upon which the said Court of quarter sessions acted in making the said order is not set out in the said order. "6. That the said order contains no adjudication that the said C. R. Badger has committed any offence against the said Act, nor that he has done any specific act alleged to be an offence. " 7. That the said order does not adjudicate that the [141] said C. R. Badger has received any fee knowing that he was not entitled thereto. " 8. That the said order directs the said C. R. Badger be dismissed from the office of district surveyor of the parish of Lewishara, an office which he has never held." The rule was obtained on the affidavit of Badger. He deposed that he was, about 10th December, 1854, appointed, and had, till the order in question, acted as, district surveyor of a district in Kent called the district of Lewisham, including, with other places, the parish of Lewishara, but not of the parish of Lewisham alone. That Willoughby, in 1853, built three dwelling houses of the fourth rate within the meaning of stat. 7 & 8 Viet. c. 84, in the parish of Lewisham. That two, namely the northern and centre house, were carried up and covered in, within the meaning of the A|ct, by 22d November, 1853; and the other, or southernmost, by 6th December, 1853, at the latest. That Badger duly surveyed the same. That three fees, 21. 10s. each, were, 818 THE QUEEN V. BADGER 6 EL & BL. 142. under the Act, due to him as district surveyor for the supervisions of the building of the three houses, and were duly demanded by him of Willoughby, and paid by Willoughby to him, about 12th January, 1854; and that Willoughby did not at any time object to pay them, and had never denied Badger's just title to them. That Willoughby built, to each of the three houses, at the back of...
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