The Queen against the Commissioners for Paving, Lighting, Company, The Tows of Cheltenham, and for Regulating the police, Theerof; & C
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1841 |
| Date | 01 May 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1211
IN THE COURT OF QUEEN'S BENCH.
S. C. 1 G. & D. 167; 10L. J. M. C. 99. Referred to, Colonial Bank of Australaisa v. Willan, 1874, l. r. 5 P. C. 443.
[467] the quebn against the commissioners for paving, lighting, &c., the town or cheltenham, and for regulating the police]'thereof ; &c. Saturday, May 1st, 1841. A Paving Act (I & 2 G. 4, c. cxxi., local and personal, public) empowered commissioners to lay rates, giving to parties grieved an appeal to the Quarter Sessions, whose order was to be final; and no order, rate, &c., was to be removed by certiorari. On appeal against a rate, the respondents objected to the admission of certain evidence ; the sessions, by^a majority of eleven magistrates to eight, Held the evidence admissible; three of the eleven magistrates were partners in a company to which belonged certain premises assessed to the rate in the name of the occupier. The sessions quashed the rate. Held that, a question in the cause having been decided by a Court improperly constituted, on account of the interest of the three magistrates, the clause pro. (a) See Recjiiia v. Hawdon, 11 A. & E. 143. (d) Lord Denman C.J., Patteson, Williams, and Wightman Js. 1212 THE QUEEN V. THE CHELTENHAM COMMISSIONERS 1 Q. B. 468. hibiting certiorari did not operate: and this Court had the order of sessions brought up by certiorari, and quashed it on affidavit of the above facts. Although the affidavits did not satisfy the Court that the magistrates had acted partially. But, if a party to the appeal, knowing of the interest, expressly or impliedly assent to the interested magistrate acting, such party cannot afterwards make the objection. [S. C. 1 G. & D. 167; 10 L. J. M. C. 99. Referred to, Colonial Bank of Australasia v. tfillan, 1874, L. E. 5 P. C. 443.] On the appeal of Philip Strickland to the Gloucestershire Quarter Sessions, against a rate or assessment upon certain houses, lands, and tenements in Cheltenham, made by the commissioners under stat. 1 & 2 G. 4, c. cxxi. (local and personal, public (a)), the sessions [468] (April 1840) quashed the rate or assessment, with costs to be paid to the appellant. The order of sessions having been brought up by certiorari, G. K. Eickards, in Michaelmas term, 1840, obtained a rule nisi to quash the order for insufficiency. The rule was drawn up on reading the affidavits used on obtaining the certiorari, and also on fresh affidavits. The affidavits raised several points; but the only objection on which the Court decided was, that several justices voted, or took part, in the decisions of the Court during the trial of the appeal, and concurred in the order by which the rate was quashed, who were at that time occupiers of, or interested in, property which was assessed by the rate in question or was liable thereto, or who were otherwise directly or indirectly interested in the result of the appeal. It appeared that the trial of the appeal had lasted three days. On the first day, objections were made by the respondents to the jurisdiction of the sessions, and were overruled. On the second day, the respondents objected to the reception of certain evidence, which was, [469] however, received. On the third day the sessions quashed the rate. The affidavits contained statements on each side, at great length, and, to a certain extent, contradictory, as to the part taken by the different magistrates on the three days. The conclusion to which this Court came, as to the facts, from the affidavits, was, that two magistrates were partners in a banking company to which a certain house and premises belonged which were assessed to the rate ; that another magistrate was a partner in another banking company, to which also a house and premises belonged which were assessed to the rate: the party rated being in each case the immediate occupier. That the objection to the evidence, made on the second day, (a) "For better paving, lighting, cleansing, watching, and improving the town of Cheltenham in the county of Gloucester; and for regulating the police thereof; and for removing and preventing nuisances and annoyances therein." Sect. 2 creates certain commissioners for executing the Act; and subsequent sections provide for the election of their successors. Sect. 100 enables the commissioners to raise money by a rate upon houses, &c. Sect. 107 gives a power of distress and sale of the goods and chattels of every tenant or occupier who shall neglect or refuse to pay the rates for fourteen days after they are due and demand made. Sect. 115 enacts that persons aggrieved by any rate or assessment may apply to the commissioners for relief, and, if they are not satisfied with the determination of the commissioners, or the commissioners shall not attend to their application, they may appeal to the Quarter Sessions. Sect. 134 provides for such appeal, and enacts that " the determination of the said justices in their said General Quarter Sessions, or adjournment thereof, shall be final, binding, and conclusive to all intents and purposes whatsoever." Sect. 136 enacts, "That no order, verdict, rate, assessment, judgment, conviction, or other proceeding touching or concerning any of the matters aforesaid, or touching or concerning any offence against this Act, or any...
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