The Queen against Kelk
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1841 |
| Date | 10 May 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1284
IN THE COURT OF QUEEN'S BENCH.
S. C. 10 L. J. Q. B. 188. For Previous Proceedings see Ad. & E. 559.
the queen against kelk. Monday, May 10th, 1841. By a Drainage Act (41 G. 3, TJ. K. c. cxxxvi.), commissioners were ordered to administer an oath to new commissioners elected. On mandamus requiring a commissioner to swear in a person alleged to be elected, defendant returned that the party was not elected ; and, on traverse taken on the return, defendant had the verdict and judgment. Held, that defendant (under stat. 9 Ann. c. 20, s. 2, and stat. 1 W. 4, c. 21, s. 3), was entitled to the costs of shewing cause upon the rule, as part of the general costsj without special application and order under stat. 1 W. 4, c. 21, s. 6. A previous Act (36 G. 3, c. 99), incorporated in the above, enacted that, "if any action, suit, or information, shall be commenced or prosecuted against any person," "for any thing to be done in pursuance of this Act, or in the execution of the powers and authorities hereby given and granted," the action, information, &c., shall be commenced within six months next after the fact committed ; the general issue may be pleaded and the statute and special matter given in evidence ; and, if the defendant have a verdict, or the plaintiff be nonsuited, or suffer a discontinuance, or judgment be given against him on demurrer or otherwise, defendant shall have treble costs. Held, that defendant, on the judgment upon traverse to the return, was not entitled to treble costs. [S. C. 10 L. J. Q. B. 188. For previous proceedings see 12 Ad. & E. 559.] Mandamus directed to George Kelk, one of the commissioners under stat. 41 G. 3 /U. K.), c. cxxxvi. (local and personal, public (a)), commanding [661] him to administer (a) stat. 36 G. 3, c. 99, is entitled " An Act for the more effectually Embanking Draining, Preserving, and Improving certain Low Lands and Grounds, lying and being in the Several Parishes or Townships of Evertori, Scaftworth, Grindley on the Hill, Misterton, and Walkeringham, in the County of Nottingham." Stat. 41 G. 3, U. K. c. cxxxvi., is entitled " An Act for Altering and Amending an Act," &c. (stat. 36 G. 3, c. 99). Sect. 1 preserves so much of the former Act as is not hereby varied, altered, or repealed. Sect. 13 provides that no person shall be capable of acting (with certain exceptions), 1Q.B.662. THE QUEEN V. KELK. 1285 the oath, required by the Act to be taken, to George Clark, elected to act as a special commissioner. Return, that Clark was riot duly elected. Traverse of the return. Verdict for the defendant; and judgment thereon (a)1. On the taxation of coats before the Master, the prosecutor objected that no costs, antecedent to the return of the mandamus, could be allowed without an express order of the Court on application made for that purpose under stat. 1 W. 4, c. 21, s. 6. The Master, however, allowed the defendant his costs of shewing cause against the rule for the mandamus. The defendant contended that he was entitled to treble costs under stat. 36 G. 3, c. 99; sect. 52 of which enacts, " That if any action, suit or information, shall be commenced or prosecuted against any person or persons for any thing to be done in pursuance of this Act, or in the execution of the powers and authorities hereby given and granted, every such suit, action, or information shall be commenced and brought within six calendar months next after the fact committed, and not afterwards; and shall be laid and brought in the said [662] county of Nottingham, and not elsewhere; and the person or persons so sued or prosecuted shall and may plead the general issue, and give this Act and the special matters in evidence at any trial to be had thereupon, and that the same was done in pursuance and by the authority of this Act; and if it shall appear to have been so done, or if any action, suit, or information shall be brought after the time hereby limited for bringing the same, or shall be brought in any other county or place than as aforesaid, then and in such case or cases the jury shall find a verdict for the defendant or defendants ; and if the plaintiff or plaintiffs shall become nonsuited, or suffer a discontinuance of his, her, or their action, suit, or information, after the defendant or defendants shall have appeared, or if a verdict shall pass against the plaintiff or plaintiffs, or if upon demurrer or otherwise judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall have treble costs, and shall have such remedy for the same as any other defendant or defendants hath of have for costs of suits in any other cases by law." The Master, however, refused, to allow treble costs." In Michaelmas term, 1840, Whitehursb, for the prosecutor, and Waddington for the defendant, respectively obtained rules for reviewing the taxation. In last Easter term (a)2, Waddington shewed cause against Whitehurat's rule, and Whitehurst was beard in support of it. The arguments not materially differing from those urged in Regina v. Fall (ante, pp. 650, 651), it is not thought necessary to report them. Cur. adv. vult. [663] On the same day, Whitehurst shewed cause against Waddington's rule. The Master was right in not allowing treble costs. The mandamus was not an action...
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