Inhabitants of Ipswich v. County Commissioners for County of Essex

27 Mass. 519

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1830
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. Without going over the elaborate argument, on both sides, and recur? ring to ancient and existing statutes, to determine whether the minute interest of the commissioner would have disqualified him had the exception been seasonably taken and insisted on, we are clearly of opinion that the exception was waived. It was well known to the town, that Mr. Wildes was a freeholder there, because they had taxed him. They were parties to the proceedings, and might have objected to his sitting, if they thought fit. But they might also waive the exception if they chose, and if they were satisfied that the decision would be impartial. By consenting to proceed, with a full knowledge of the ground of exception, the exception was waived. It would be attended with great injustice were we to hold otherwise. A party might take his chance for a favorable decision, knowing of an exception which would invalidate the proceedings if unfavorable, and intending, in that event, to rely upon it. Besides, if the exception had been seasonably taken, the commissioner might have withdrawn or been replaced by one against whom no exception would lie.

petition dismissed.

Notice of the petition had been given to the commissioners, by serving an attested copy upon Mr. Wildes, the chairman ; who appeared and filed an answer in behalf of all the commissioners ; and upon a question being made in regard to the costs, the Court directed that they should be taxed for the travel and attendance of only one commissioner.