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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.

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

There

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 57. 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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or

is

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

one.

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 is sworn and approved or enrolled, probably I should have thought serves, although neither (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

approved nor enrolled.

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

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

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

substitute were sworn and actually served, he was entitled to all the benefits of the act." (1)

SECT. VII.

Of maintaining casual Poor. (2)

WHERE a poor person, not settled in a parish, becomes Parish bound chargeable, from accident, sudden calamity, or any other circumstance, he falls within the description of casual poor,

to maintain casual poor, while residing there. And to

and the parish in which he is detained becomes bound to reimburse a relieve and take care of him. (3) This obligation is so parishioner asstrong, that if a parishioner, not being a parish officer, sisting them. takes care of one rendered poor and impotent from sudden accident, as by the fracture of a limb, he may recover against the parish officers the sum expended for his cure and support, upon an implied promise arising from this their duty. (4) But the parish cannot recover, as upon an And cannot implied promise, the sum which they have expended for recover what his relief from the place in which he is settled (5), although from his place is expended they give notice to the officers of the parish where the of settlement. pauper is settled pending his illness. (6)

Neither have they a remedy against the master of a servant who becomes suddenly disabled by misfortune; for parishes are under a moral as well as a legal obligation to take care of their casual poor. (7)

See 51 Geo. III. c. 106. and

(1) Rex v. Ledbury, ante, 435. (3). 52 Geo. III. c. 120. for enabling the wives, widows, and families of soldiers embarked for foreign service, or dying, or employed there, to return to their homes. In the Appendix.

(2) As to the general classes of casual poor, see ante, chap. xxviii. (3) See Rex v. Chadderton, 2 East, 27. and ante, 161, 162.

(4) Per Ld. Eldon C. J., Simmons v. Wilmot, 3 Esp. Ni. Pri. Cas. 92. (5) Ib. Watson v. Turner, Bull. L. N. P. 129. 147. 261.

(6) Atkins v. Banwell, 2 East, 505.

(7) Newby v. Wiltshire, Cald. 527. 2 Espin. Ni. Pri. Cas. 759., and see Wennell v. Adney, 3 Bos. & Pull. 247., and ante, 156. (3). And quære, whether they can legally, in such a case, obtain an order of removal and suspend it, as was done in Rex v. Kynaston, 1 East, 107. ante, 374. (1).

FFS

Nor from the pauper's master, although his yearly

servant.

438

CHAP. XXXV.

Of Overseers' Accounts.

SECT. I.

Of the Statutes.

Duty of offi- WHEN the parish officers are retiring from office, their

cers retiring from office.

45Eliz.c.2.5.2.

Officers must account to

their succes

sors within

remaining duty is to make up and pass their accounts, and to deliver over any balance in their hands to their suc cessors, together with the property and documents of the parish.

By 43 Eliz. c. 2. s. 2. The churchwardens and overseers, or such of them as shall not be prevented by sickness or other just excuse, to be allowed by two justices, shall, four days, &c. within four days after the end of their year, and after other overseers are nominated, make and yield up, to such two justices of peace, true and perfect accounts of all monies received by them, and such sums as have been rated and not received, and of the stock in their hands, or in those of any of the poor to work, and of all other things concerning their office; and such sums as are in their hands, shall pay to the officers newly nominated, upon pain that every one of them neglecting, shall forfeit for every such negligence 20s.

Sect. 4. Jus

tices may levy

sums in arrear

and commit to gaol, in defect of distress.

17 Geo.II. re

quires account, &c. within

By s. 4. their successors may levy, by warrant from two justices, the sum of money or stock which shall be behind on account; and in defect of distress, the justices commit to the county gaol until payment. They may may also commit such as refuse to account, there to remain without bail or mainprise, until they have accounted and satisfied, and paid so much as upon the account shall be remaining in their hands.

The 17 Geo. II. c.38. s.1. requires that they shall, within fourteen days after their successors are appointed, deliver

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