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monies on rates assessed, &c. and also a particular account to whom he had paid such money charged in gross, they had no authority under this act to commit for refusing to give an account, for it appears that an account had been tendered. (1)

It was resolved that justices might fine overseers, as well May fine as

well as imprias imprison them, for refusing to account. (2)

son for refus

ing to account. The commitment should state the party to be overseer. Form of the

commitment It is said to have been determined, therefore, that where a

for not acchurchwarden was committed for refusing to account, he counting. was discharged upon an habeas corpus; “ for if he be com mitted as overseer, it must be so expressed in the mittimus, although the office of overseer is annexed to the office of churchwarden, for the justices have no power over him as churchwarden.” (3)

The adjudication of imprisonment should be until he shall do the precise thing which he is charged with and proved to have refused doing.

An overseer was charged with and convicted of not delivering over to his successors a book belonging to the parish, called the Bastardy Ledger. The conviction adjudged him to be committed to gaol, to be safely kept until he shall have yielded up all and every the books concerning his said office of overseer belonging to the said parish. It was held void. It should have been until he should have yielded up the particular book specified and described in the information, and for the non-delivery of which he was convicted. It ought not to convict him for contumacy to a greater extent than the matter which had been previously required of him. (4)

(1) Rex v. Carrocke, Show. 395. But see Rex v. Justices of Wor. cestershire, ante, 442. (1).

(2) Rex v. Sedgecold, i Bott, 300. Pl. 307,
(3) Rex v. Peake, 1 Keb. 574.
(4) Groome v. Forrester et alt., 5 M. & S. 314.

That he had It should likewise aver, that he has not accounted before accounted with no other any other justice: if the order only says, that he has not justice. accounted before the justices who make it, that is insuffiConclusion of cient. (1) The warrant must conclude, “ There to remain the warrant.

until they shall account,” and not, until they be duly discharged according to law." For there is a difference whether a man is committed as a criminal, or for contumacy in refusing to do a thing required. In the first case, the commitment must be, " until discharged according to law;" but in the latter, ss until he comply and do the thing required of him ;" for in that case he should not lie till the ses. sions, but shall be discharged on performing his duty. (2)

And as has been already stated it should direct the commitment specifically until he does the particular thing which he has refused, and was by law bound to do. Thus, in the case just referred to, where an overseer had refused to deliver up one particular book; the adjudication and warrant of commitment directed the gaoler to keep him until he should have delivered up all and every the books concerning his office; both were void in toto; and the justices having exceeded their jurisdiction were held liable to an action of trespass and false imprisonment, although the conviction was not previously quashed; for such a commitment was not authorised either by the letter or the spirit of 17 Geo. II. c. 38. It subjected the prisoner to the risk of an imprisonment for an indefinite period, casting upon the gaoler the function of determining what books concerned the overseer's office, and requiring him to detain his prisoner until he had complied with a condition, without affording him adequate means of judging whether he had done so or not. (3)

(1) Rex v. Gibson, ante, 444. (5). But this seems unnecessary when the commitment is under 50 Geo. III. c.49.

(2) Case of the Mayor and Churchwardens of Northampton, Carth. 152., cited and commented on by Lord Ellenborough C. J., Groome e. Forrester et alt., 5 M. & S. 314, ante, 445.

(3) Post, 448.(2). Groome v. Forrester et alti, 5 M. & $. 314. ante, 445.(2)

It appears from the foregoing cases, and also from some Provisions of which will be detailed hereafter, that many imperfections

17Geo.II. existed in the manner in which parish officers were directed to pass their accounts by 43 Eliz. To remedy these defects, together with others in the same act, the 17 Geo. Il. c. 38. was passed.

By this last statute the churchwardens and overseers are required, 1. Within fourteen days after their year expires, to deliver to their successors a just and perfect account in writing, fairly entered in a book, of their receipts and expenditures, &c.- Whereas they could not be compelled to give in a particular account in items under 43 Eliz. (1) 2. They are to deliver these accounts to the succeeding overseers, who are required to keep them safely; whereas under 43 Eliz. they must be given to the justices, who were to allow them. (2) 3. As a farther security to the parish, the accounts are to be verified by the oaths of the parties, which the 43 Eliz, did not require. The oath may be taken before one magistrate, and if any parish officer neglects or refuses to take it, or to make and yield up such account verified as aforesaid, two justices may commit him or them to gaol until they do. 4. They are allowed 14 days after they go out of office to pay and deliver over to their successors the money and other property of the parish remaining in their hands. Whereas the 43 Eliz. seemed to require that it should be done within four days, or at least as soon as their accounts were allowed. 5. When they do not deliver in their account, and pay over the money, &c. as required by 17 Geo. II., two justices may immediately commit such as refuse until they do. But under 48 Eliz. they could not be committed in the first instance, nor until a warrant had issued to distrain upon them.(3) 6. Remedies are provided to enforce making up the accounts, and paying over the balance, where an overseer leaves the parish, or dies during his year.

(1) Rex v. Carroeke, ante, 445.(1).
(2) Ante, 444.(2), (4).
(3) See post, 452. (4). See also Rex v. Hedges, 2 Salk. 633. ibid.

Examination

The powers given by 43 Eliz. c. 3. seem unaltered in any and allowance under 43 Eliz. other material, respect by this act; therefore the right of

examining the disbursements by two justices, and allowing the accounts, pursuant to that statute, still continues, where the parish had reason to suspect their accuracy, and chose to proceed upon it. (1)

Remedy for When an officer refused or neglected to make up and refusing to verify his account, under 17 Geo. II. c. 38., two justices account under 17Geo.II.

might, upon complaint, commit him to gaol. (2) But they c. 38.

could not refuse to swear him before he had accounted, Must swear

according to 43 Eliz. c.2. If an overseer, therefore, delihim to the vered an account, and was ready to swear to the truth of it, account he tenders.

and one or more justices refused to admit his oath, the court of king's bench, upon affidavit of the fact, would grant a mandamus to compel them.

Or the court will grant a mandamus.

On such a motion for a mandamus, the justices showed, for cause against it, that when the overseer delivered in his account, it consisted of gross sums; and that the justices asked him some questions touching the particulars, which he refused to answer ; and therefore they refused to swear him to his account. Wright J. - This court hath two jurisdictions over justices of peace : 1. To punish and restrain them, when they exercise a jurisdiction which they have not. 2. To compel them by mandamus, when they refuse to do what they by law ought to do. This motion is founded on the statute 17 Geo. II. c. 38., which re

(1) See Rex v. Whitear et alı., Burr. 1565., post, 462.(3), and see the opinion of Yates J. Rex v. Justices of Berkshire, 1 Bott, 309. Pl. 322.

(2) Sect. 2. A collector of the parish rates, appointed under a local act, 25 Geo. III. c. 41., refusing to account and pay over the money collected, was committed to the county gaol, there to remain until he should have made a true aecount, and until such money as upon the said account should appear to be remaining in his hands should be paid over by him or his sureties, and this commitment is good, although the warrant directs the gaoler to keep him “ until he shall be discharged by due course of law.” For when he has accounted and paid over the money, he will be entitled to be discharged by due course of law. Rex v. Goff, 5 M. & S. 203.

quires the justices to do a thing which they have refused to do. If the justices apprehend that this statute has not repealed the statute 43 Eliz. as to overseers' accounts, they may return that matter upon the mandamus, and then they will have the judgment of the court, whether they are obliged to swear this overseer, before he has accounted according to the statute 43 Eliz. c. 2.; but we cannot refuse to grant the mandamus, for it is a motion of course. Dennison and Foster Js. of the same opinion, that it was a motion of course. (1)

c. 49. s. I.

By 50 Geo.III. c. 49. s. 1. their accounts are to be sub- 50Geo. III. mitted by the churchwardens and overseers, to two or more justices dwelling near the place to which they relate, at a special sessions to be holden for the purpose, within the fourteen days appointed by 17 Geo.II. for delivering them.

The justices may examine into the matter of the account, and administer an oath or affirmation of the truth of it, and strike out such charges as they deem unfounded, and reduce such as are exorbitant, specifying on or at the foot of the account every such charge and payment, and the amount so far as the court disallow, and reduce the same.

Such two or more justices are likewise required to signify their allowance and approbation of the account under their hands, “and sign and attest the caption of the same at the foot of such account,” as directed by 17 Geo. II.

If the churchwardens and overseers, or any of them, refuse or neglect to make and yield up or submit such account, or verify the same on oath as aforesaid, any two or more justices may commit him, her, or them, to the common gaol, until he, she, or they, have made and yielded such account, and verified the same.

The cause in 50 Geo. III. which directs the accounts 17 Geo. II. reto be submitted to two justices within the fourteen days lates to deli

very of the ac. (1) Rex v. Justices of Middlesex, 1 Wils. 125.

counts,

VOL. 11.

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