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It appears from the foregoing cases, and also from some Provisions of which will be detailed hereafter, that many imperfections 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.II. 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. Carrocke, ante, 445.(1).
(2) Ante, 444. (2), (4).
(3) See post, 452. (4). See also Rex v. Hedges, 2:Salk. 533. ibid.
The powers given by 43 Eliz. c. 3. seem unaltered in any 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 refusing to account under 17 Geo. II. c. 38.
Must swear him to the account he tenders.
Or the court
will grant a mandamus.
When an officer refused or neglected to make up and verify his account, under 17 Geo. II. c. 38., two justices might, upon complaint, commit him to gaol. (2) But they could not refuse to swear him before he had accounted, according to 43 Eliz. c. 2. If an overseer, therefore, delivered an account, and was ready to swear to the truth of it, 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.
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 alt., 3 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 account, 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. 205.
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 delivery of the accounts.
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)
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 prede cessors 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)
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.