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 If the justices apprehend that this statute has not repealed the statute 43 Eliz.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. 1. By 50 Geo.III. c.49. s. 1. their accounts are to be sub- 50 Geo. 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 clause in 50 Geo. III. which directs the accounts to be submitted to two justices within the fourteen days 17 Geo. II. relates to deli very of the ac counts. 50 Geo. III. their investigation. Mandamus to oblige justices to pass accounts. appointed by 17 Geo. II. c. 38., is not substituted in place of the obligation imposed by this latter act, to deliver them over to the succeeding overseers within fourteen days. It applies to the manner of examining the accounts when yielded, leaving them to be delivered over to their successors, as was required by 17 Geo. II. By this last act the churchwardens and overseers are to deliver in to the succeeding overseers their accounts, verified on oath before one or more justices, who are to sign and attest the same. By 50 Geo. III. the accounts are to be submitted to two or more justices at a special sessions; and power is given to them to examine and approve such accounts, and they are required to signify their approbation of them under their hands, and then to sign and attest, as directed by the former act. The provisions are perfectly consistent, and the latter merely cumulative. Where, therefore, an overseer refused to deliver over his accounts to the succeeding overseers within the fourteen days, from the time of their appointment, it was held that he was rightly committed by two justices for such refusal. (1) A mandamus is the only remedy where the justices refuse or make any unreasonable delay in passing overseers' accounts, after they have been submitted to them. (2) SECT. IV. Of the Jurisdiction of the Court of King's Bench over the THE Court of king's bench possess the power of superintending and controlling the acts of justices both in and out of sessions, in the allowance or disallowance of overseers' accounts, unless where some particular statute prevents it. All orders concerning them may be removed into this supreme criminal court by certiorari, where they will be (1) Lester's case, 16 East, 374. (2) Per Parker C. J., Rex v. Townsend, 1 Bott, 305. Pl. 318. (3) As to the right of action by churchwardens against their predecessors in office, see Turner v. Baynes, 2 H. Black. 559. quashed for any illegal matter appearing either in the particular items (1), or upon the face of the order of allowance (2), or upon the facts disclosed in a case stated by the sessions for the purpose of taking the court's opinion (3). But the court will not go beyond the face of the record to investigate the merits of any such account. If there is no objection upon the face of the account (4), or of a general order of sessions by which it has been allowed, the court of B. R. will not go into any specific objections stated upon affidavit. The sessions is the proper forum for deciding upon the merits. If upon removal of the record by certiorari it appears to be erroneous, the court will act upon it, but otherwise they have no jurisdiction to do so. (5) The right of removing orders of sessions made upon appeals, brought by overseers against the disallowance of any items in their accounts under 50 Geo.III. c. 49., is taken away by sect. 5. of that act. But it is decided that this provision does not extend to orders made upon appeals brought by parishioners against such accounts under 17 Geo. II. c. 38. s. 4. (6) SECT. V. Of enforcing Payment of the Balance due from Overseers. WHERE the balance of an account was found against parish officers, the justices who took the account under (1) Rex v. James, 2 M. & S. 321. (2) Rex v. Glyde, 2 M. & S. 323., where it was held that an overseer was not entitled to a salary for any services done in the execution of his office; but see 59 Geo. III. c. 12. s. 7. as to assistant overseers. (3) Rex v. Bird, 2 B. & A. 522., where it was held that the expences of a constable incurred by prosecuting under a justice's direction, an assault committed upon him in the execution of his office, cannot be paid by the overseer out of the poor's rate. (4) Rex v. Battell, 2 M. & S. 323. (5) Rex v. James, 2 M. & S. 321. (6) Rex v. Bird, 2 B. & A. 522. supra, (3). 1st, By order to pay balance under 43 Eliz. all the officers. Payment to the overseers 43 Eliz. had power to make an order for them to pay the balance, as well as to issue warrants to distrain. (1) It may be a They might likewise make a joint order upon all the joint order on officers to pay; for all constitute but one joint officer; and payment to one is payment to all, and the payment by one a discharge of all. (2) And although the 43 Eliz. directs, that the balance shall be paid to the succeeding overseers, yet if it has not been paid to them, the order may direct it to be paid to those who are overseers at the time when such order is made. (3) at the time of making the order, good. Warrant of distress must issue prior to a commitment. Power to com mit under 17 Geo. II. If overseers refused to pay the balance, they could not be committed immediately, but a warrant must issue to distrain upon them, and upon the return thereof, there may be a commitment; and so it was determined in Walrond's case before Lord C. J. King. (4) The 17 Geo. II. c. 38. s. 2. gave any two or more justices a power, upon the overseer's neglect or refusal to pay and until they yield deliver over such money, goods, or other things in their up the balance. hands, as by that act is directed (i. e. within fourteen days after the nomination of new overseers), to commit them to (1) Rex v. Topsham, 2 Salk. 484. (2) Rex v. Bartlett, 1 Bott, 306. Pl.320. An order made at sessions. (3) Ib. But it may be otherwise where an action is brought by a person advancing money, at the request of one officer, for the use of the parish. The divisions within the parish had separate overseers and separate rates, and paid and managed their poor separately, but at the end of every year, in making up their accounts, if one division was out of purse and the overseers of the other had money in hand, they paid the balance over to the former. This is a joint parochial account, and all the overseers are overseers of the parish at large. But where a payment has been made at the sole request of one overseer, without the knowledge of the rest, and no demand was made upon them until after they were out of office; it was held a question for the jury, whether the creditor is not to be considered as having relied solely upon the credit of the overseer, at whose request such payment was made. Malkin v. Vickertaff, 3 B. & A. 89. (4) Reg. v. Turner, 16 Vin. Abr. 418. See also Rex v. Hedges,2 Salk.535. An order made at sessions upon appeal against an allowance by two ustices. the common gaol until they shall have given an account, and yielded up such monies, &c. as are in their hands. (1) c. 49. s. 1. But it is now provided by 50 Geo. III. c. 49. s. 1. that if 50 Geo.III. the churchwardens and overseers, or any of them, refuse or neglect to deliver over to their successors, within ten days from the signing or attesting their accounts, any goods, chattels, or other things, which, on the examination and allowance thereof, shall appear remaining in their hands, any two or more justices may commit him, her, or them, to the common gaol, until they shall have delivered them over. And in case they, or any of them, shall refuse or neglect to pay their successors, within fourteen days from signing and attesting the account, any money or arrearages, which, upon examination and allowance thereof, shall appear due and owing from them, or any of them, or remaining in their hands, the subsequent officers may, by warrant from any two or more justices, levy the same by distress and sale of the offender's goods, restoring the overplus; and in default of such distress, the justices may commit the offender or offenders to the county gaol, to remain, without bail or mainprize, until payment. And where an order is made under this act to pay the balance to their successors, two justices, in the event of a refusal, may issue their warrant to levy it upon the application of one of the succeeding overseers, although the remainder refuse to concur in the application. For by a more strict construction of the words, the dissent of any one of the churchwardens or overseers would have the effect of suspending the statute. (2) A further remedy for neglecting to pay over such balance is by indictment, which lies for this offence (3), as also for (1) But quære, whether this power extends beyond the balance, &c. admitted to be in their hands, by their own accounts, as verified by oath or affirmation? (2) Rex v. Pascoe, 2 M. & S. 343. The justices having in this case refused to grant a warrant under these circumstances, the B.R. granted a mandamus to compel them. (3) Rex v. King, 20 Geo. II. 2 Str. 1268. 2d, By indict- |
