ferences had so arisen between the contractor and the company, it was discovered by the contractor that the principal engineer was a shareholder. On a bill to have accounts taken, one of the grounds for which was this fact, then first discovered; it was held, that (no fraudulent concealment being alleged) it formed no ground for relief. There Dimes v. The Proprietors of the Grand Junction Canal (a) was held not to apply; but at p. 88 the opinion of the Judges, delivered through Parke, B., "that the decision of a Judge made in a cause in which he has an interest, is voidable, unless in cases of necessity, as where an action was brought against all the Judges of the Court of Common Pleas," is recognized. Fourth. Moreover, it was urged that the justices were not only interested pecuniarily, but as prosecutors. [M. Chambers. The justices paid Mr. Lush 100 guineas to argue the case before them in their own favour. They were liable for that. Willes, J., said, that was quite a common thing in the Court of the Commissioners of Sewers, which is very analogous to the Court of Quarter Sessions. Counsel are always instructed by that Court to argue before themselves. Byles, J. That is the point. Can the same Court that is to decide be the party making the charge?] In Ex parte Pettitmangin (b), a rule for a certiorari to quash a conviction by two justices was refused. There the conviction of the applicant was for suffering prostitutes to remain on his premises, and the rule was moved upon the ground that one of the justices was a member of the watch committee of the town council, and that the information was laid by an inspector of police in pursuance of instructions from the committee: and, also, on the ground that the fine would go into the borough fund, in which the justices were interested. That is a much stronger (a) 3 H. L. Cas. 759. (b) Referred to in Reg. v. Allan, 4 B. & S. 915, 921. 1866. WILDES v. RUSSELL. 1866. WILDES v. RUSSELL. case of interest than the present. In The Queen v. Dean, &c. of Rochester (a), upon a return to a mandamus to restore Mr. Whiston to the head-mastership of the grammar school annexed to the cathedral, it was held, that the bishop had not such an interest as disqualified him from acting as visitor. The Queen v. Owen (b) was relied on for the Plaintiff at the trial. In that case it was held that a County Court clerk, removed for inability under 9 & 10 Vict. c. 95, s. 24, may question the validity of that removal by information in the nature of a quo warranto against his successor. But there it was also held that pecuniary embarrassment did not constitute" inability," and no other inability or misbehaviour was shown; and there was no formal charge as here, but it was simply the case of one man, not a Court, dismissing another. At all events it is discretionary in such case for the Superior Court to quash or to refuse to do so; but till quashed the order or conviction remains in force. The old manor Courts furnish frequent instances of presentments by the Court for encroaching on the common to the Court Leet, or criminal Court attached to the manor. The King v. The Inhabitants of Essex (c) is a distinct authority that the Quarter Sessions were justified in ordering these costs to be paid by the treasurer. There Lord Loughborough, when going the Home Circuit in 1789, imposed a fine on the county for neglecting to repair the county gaol, which the justices at Sessions thought illegal, and it was held that they might order the treasurer to defray the expense of litigating the question out of the county stock. In that case, at p. 594, Lord Kenyon, C. J., says, "The proposition therefore on which I rely is this: That wherever a duty is imposed on a county, and where costs incidentally and necessarily arise in questioning the propriety of acts done to enforce that duty, the magistrates, who have the super intendence over the county purse, have necessarily a right to defray such expenses out of the county stock." Statute 12 Geo. 2, c. 29, s. 6, requires the treasurer to pay so much of the money in his hands to such persons as the Quarter Sessions shall by their orders direct. An order of dismissal such as this is not like a conviction; and the evidence need not be set out in it: Dominus Rex v. Lloyd (a), where a certiorari was brought to quash an order for the removal of the clerk of the peace of Cardiganshire. The King v. The Undertakers of the Aire and Calder Navigation (b) shows that the justices at Sessions are the proper judges of the equality of poor rates, and that this Court will not interfere upon the ground that they are unequal, unless the inequality be manifestly apparent on the rate. In The Queen v. Town Council of Lichfield (c), a town council had removed a town clerk, by resolution, for misconduct, and refused his claim of compensation, and it was held, that the costs of an attorney employed in opposing a mandamus to assess compensation were properly chargeable to the borough fund under stat. 5 & 6 Will. 4, c. 76, s. 92, although the jury found the issues raised on the mandamus for the town clerk it not being shown that the town council acted otherwise than bonà fide in the removal. That case also shows what is a sufficient retainer of an attorney to warrant the payment to him of such costs, viz. a resolution of the town council; and decided that it was no objection to the order for payment made in consequence, that it was an order for payment on account, the attorney not having delivered a bill, and it not appearing that the sum ordered to be paid exceeded the sum due to the attorney. It is complained here that no proper bill had been delivered to the Quarter Sessions. [The Attorney-General v. The Corporation of Norwich (d), where it was held that the borough fund is a (a) 2 Str. 996. VOL. I.-C. P. (c) 10 Q. B. 534. (d) 21 L. J., Ch. C. 139. 1866. WILDES v. RUSSELL. 1866. WILDES v. RUSSELL. trust fund, and is so constituted by the Municipal Corporation Act, was referred to. There an injunction, restraining an application to parliament at the expense of the fund for the purpose of obtaining an Act for improving a river flowing through the city, having been granted, an appeal motion was refused. Willes, J. There expenses would have been voluntarily incurred for the purposes of speculative litigation. Here the justices could not help themselves, unless they struck and let the mandamus go.] Montagu Chambers and Gates in support of the rule.— First. It may be that an order made by competent authority will be unimpeachable as between the immediate parties concerned; but it is not so as between third parties. Where the defect appears upon the face of the order, Day v. King (a) and Christie v. Unwin (b) show that the order need not in all cases be quashed to be inoperative. But, even if an order be good on the face of it, it will not affect third parties if no jurisdiction in fact existed. Briscoe v. Stephens (c) was a demurrer to a replication, which averred that the Plaintiff and Defendant both resided out of the jurisdiction, and that the causes of action arose out of it; and, although at first the Court considered it a strong thing to say that, after a decision on the merits of his case in an inferior Court, the Plaintiff could come forward to assert that the judgment was void as being coram non judice; yet as the facts stated in the replication were necessarily taken to be true, and as they showed a want of jurisdiction, the replication was held good. The case of Crepps v. Durden (d) is also in point. [Willes, J., referred to The Queen v. Owen (e).] In Doe d. Davy v. Haddon (ƒ), the electors of a schoolmaster having removed him from his office filed an information in Chancery against him, (a) 5 A. & E. 359. (d) 1 Smith, L. C. 666, 6th ed. (e) 15 Q. B. 476. (f) 3 Douglas, 310. which was dismissed without costs, the Chancellor being of opinion that the remedy was at law. Then in an action of ejectment against the schoolmaster, it was held, that the validity of the order of dismissal might be called in question in the civil action, and evidence given for that purpose of corruption on the part of one of the electors. Secondly. The Plaintiff, in the present case, seeks to impeach the order dismissing him from his office of clerk of the peace, by showing that the magistrates were disqualified by interest, that they were prosecutors as well as judges, and that the order was unfairly obtained. [Erle, C. J. In the case last cited the charge against the trustees is called "corruption;" but the evidence offered was only that one of the body did not sign the order of dismissal according to his own judgment. Willes, J. You do not admit that the case of Dimes v. The Proprietors of the Grand Junction Canal (a) is applicable to an inferior Court?] No, the language of the judgment of Parke, B., shows that the protection was applicable only to the parties acting under the judgment. The Queen v. Bolton (b); The Queen v. The Justices of Hertfordshire (c); The Queen v. The Cheltenham Commissioners (d), and The Queen v. Rand (e), show that, where a Court is improperly constituted on account of the interest of the magistrates, the judgment may be treated as ipso facto void. In each of those cases the judgment was bad on the face of it; but in Reg. v. The Cheltenham Commissioners (d) evidence was admitted to show that three of the justices had an interest, and therefore it was held bad and void. The material point is, that evidence is receivable to show that the judgment was improperly pronounced, and it does not matter whether the evidence to impeach it comes in the form of this action, or by affidavit on certiorari, or by 1866. WILDES v. RUSSELL. |