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has a wife, and more than three children chargeable, to provide a substitute for such person, who shall be discharged between the 1st of November and 25th of March, and at no other time; the pay of the substitute shall commence after such discharge.

Sect. 23. All payments made by overseers in pursuance of order or certificate of any justice under this act, any shall be allowed, and passed in their accounts as other expences on account of the militia act; and in default of payment, such overseer, being convicted thereof, shall forfeit 5l., to be levied by distress and sale under warrant of a justice, one half to the informer, the other to the poor of the parish, to which the sum ought to have been paid.

Sect. 24. the provisions of this act relating to allowances and reimbursements shall extend to all hamlets, vills, and places having separate overseers of the poor, and to all places united for the purposes of balloting for militia men; and where parishes are united, or a parish contains any townships maintaining their poor separately, the justices shall ascertain, as therein directed, the proportion to be contributed by such townships or united parishes to the relief of the family of the person who serves for such united parishes.

Sect. 25. The adjutant, or serjeant-major, shall, within seven days of the 24th day of every month during the term the militia is embodied and in actual service, return a list of promotions, deaths, and desertions of private men serving for the subdivisions of the county, to the clerks thereof, and the clerks shall, within fourteen days, transmit such returns to the overseers of the respective parishes, &c. for which such private man shall serve.

Sect. 26. gives an appeal against an order of payment of money to the next quarter sessions.

Sect. 27. Quarter sessions may order recompence to the treasurer of any county for extraordinary trouble under this act.

The 49 Geo. III. c. 86., repealing 43 Geo. III. c. 142. and Ireland. 44 Geo. III. c. 34., provides for the relief of the families of militia in Ireland.

The 49 Geo.III. c. 90., repealing 43Geo. III. c. 89. except Scotland. sections 21. and 22., provides for the relief of the wives and families of militia men in Scotland.

The 51 Geo. III. c.118. authorising the interchange of the militia of Great Britain and Ireland, extends by sect. 5. the provisions of 43 Geo. III. c. 47., and 49 Geo.III. chapters 86. and 90., for the families of balloted men, to the families of persons balloted and serving in the militias of England, Ireland, and Scotland, under this or any future act.

The following cases have been decided on the 19 Geo. III. c.72, and 34 Geo. III. c. 47., which are now repealed; but as they would be authorities in similar cases which may arise on 43 Geo. III. c.47., which is made in pari materia, it has been deemed advisable to retain them.

19 Geo. III. an

order to main

which he

should be made

The defendants were indicted for not obeying an order Under of a justice of peace, made under the 19 Geo. III. c.72., directing the defendants, overseers of St. John, in the town tain the family and county of Bedford, to reimburse a sum of money ad- of a substitute vanced by the overseers of the parish of Meppershall, in and that upon in the militia, the same county, to the family of a substitute in the militia the parish for of the said county, for an inhabitant of the parish of St. serves, to reJohn; and which family, at the date of the order, dwelt in imburse this the parish of Meppershall. The defendants being found maintenance, guilty, it was moved in arrest of judgment, 1st, That the by the same indictment did not set out any order of maintenance pre- the same time. justice and at vious to the order of reimbursement, without which first An indictment order there could be no legal foundation for the last order. for disobeying 28, That the order was retrospective, being for the payment of a sum supposed to have occurred under an order of maintenance made long before; whereas the act directs, that the order shall be made at the same time with the order of relief or maintenance; and that it was for a gross tenance.

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reimburse must either set in general forth, or refer terms, to the order of main

the order to

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The order of maintenance and reimbursement must be made by the same justice, and at the same time.

sum for eighty-three weeks; and as inhabitants may change in that time, they ought not to be so charged. 3d, That it did not appear upon the face of the indictment, that the militia-man, for whom the substitute served, was balloted, or that the substitute was sworn or enrolled. Lord Mansfield:" In indictments, the crime with which the defendant is charged must appear with a scrupulous certainty: and here it is disobedience to the order of a justice. Now it must appear upon the face of the indictment that this was a legal order; for if it was not so, disobedience is no crime. Then this is an order of reimbursement, which presupposes an order of maintenance. Such order necessarily must be; for if the overseers had made the disbursement of their own accord, and without an order for that purpose, they could not legally be reimbursed. Such voluntary payment would not have entitled them to reclaim the sum advanced, because they are not authorised to judge of circumstances. Had the justice of peace recited the order of maintenance, it is admitted, the indictment would have been good; had he even in general terms referred to it, the court might perhaps have presumed such an order properly made. There would then have been some colour of authority for the jurisdiction exercised; but so far from having recited it, he has not made the slightest reference to it. The indictment, therefore, cannot be supported. Besides the order of reimbursement is not at all connected with the order of maintenance, though the act requires they should both be made by the same justice at the same time, i. e. that whatever shall be paid shall be reimbursed; but this is at the distance of a year, and for a gross sum." The judgment was arrested. (1)

In a subsequent case, which was upon appeal from an order of sessions, where the order to reimburse was made four years after the order of maintenance, it was held, that the act of parliament directs in positive terms, that the order for reimbursement shall be made by the same justice, and at the same time, as the order for maintenance. There

(1) Rex 6. White and Eling, Cald. 185.

seems also good reason for requiring that to be done, as the inhabitants of a parish are a fluctuating body, and it would be unjust that one set of persons, at a great distance of time, should be called upon to discharge burdens which were incurred before they became inhabitants. An order of sessions, therefore, quashing the order of reimbursement, and the conviction founded thereupon, was confirmed. (1)

In the foregoing case, the defendant, who was an overseer of the parish on whom the order of reimbursement was made, had been convicted in a penalty of 51. under 34 Geo.III. c.47. s.3., and afterwards appealed to the next sessions against the order and conviction. One of the questions made by the sessions was, Whether an appeal could be maintained by the appellants against the order of reimbursement, notice being given thereof subsequent to the conviction? The court, by affirming their order made upon the appeal, decided that the appeal was properly brought. (2)

It seems, likewise, that the parish to which the principal militia-man belongs, is liable to reimburse that of the substitute the expence of maintaining his family, although the substitute had more than one child when enrolled (3), had neither been approved nor enrolled, provided he sworn in and actually serves. (4)

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of the substitute, although he has more

than one child

"One Spry, of the parish of Barnstaple, who was drawn by ballot to serve in the militia, procured one Eastman, of Monkleigh parish, to serve for him as his substitute; when Eastman appeared before the deputy-lieutenant, in order to be approved, he represented himself as a single man; it turned out in the sequel that he was married, and had several children. Eastman being approved and sworn in, went out into actual service; certain expences were in

(1) Rex v. Ledbury, 7 Term Rep. 558.

(2) Ibid. 7 Term Rep. 558.

(3) Rex v. Willis, 6 Term Rep. 179.
(4) Rex v. Ledbury, supra, (1).

when enrolled.

And it seems

liable where the substitute al

is sworn and

though neither

approved nor enrolled.


curred in maintaining his family (1); and the question is,
Whether that burden ought to be borne by Monkleigh,
that has nothing to do with the principal militia-man, or by
the parish of Barnstaple, for which the substitute served?
It seems
to me, that the construction put on the first
statute 26 Geo.III. by the prosecutor's counsel; namely, that
the words commented upon are merely directory, is the true
The deputy-lieutenants ought to make every inquiry
before they approve of a substitute; if he have more than
one child, he ought to be rejected; but if the deputy-lieu-
tenants do take him, then he becomes a legal substitute, and
the parish for which the principal serves must bear the ex-
pence of maintaining his family. The tendency of the
defendant's argument is, to show that the whole is a nullity;
but the consequence of that must be, that a whole regiment
must be disbanded, even in the face of an enemy, if it
should be discovered that it is composed of substitutes, each
person having more than one child. Besides, the words
of the second act of parliament (2) are general; and one of
the clauses mentions the word family. As therefore the
substitute was approved and sworn in, and actually did
serve in the militia, I think that the whole of the acts of
parliament attached on him in that situation, and, conse-
quently, that the parish of Barnstaple, for which the prin-
cipal was drawn, are liable to reimburse the other parish
the expences of maintaining the family of the substitute; a
contrary determination would not only be against the in-
tention of the legislature, but productive of the most dan-
gerous consequences to the whole body of the militia." (3)

And in Rex v. Ledbury, Lord Kenyon observes, “If the objection had only been that the substitute was not approved or enrolled, probably I should have thought (though it is not necessary to decide that point) that upon the principle of our determination, in Rex v. Willis, that provision in the statute was only directory, and that if the

(1) The facts were found by a special verdict.

(2) 35 Geo.III. c.8. s.3.

(5) Per Lord Kenyon C. J., Rex v. Willis, 6 Term Rep. 179.

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