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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 th accounts when yielded, leaving them to be delivered over to their succes. sors, 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.
50 Geo. III. their investigation.
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)
Mandamus to oblige justices to pass accounts.
Of the Jurisdiction of the Court of King's Bench over the
Accounts of Overseers. (3)
(1) Lester’s case, 16 East, 374.
(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 al| lowed, 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 ist, By order parish officers, the justices who took the account under to pay balance
under 43 Eliz. (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 expencer 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.
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 all the officers.
payment to one is payment to all, and the payment by one Payment to a discharge of all. (2) And although the 43 Eliz. directs, the overseers at the time of that the balance shall be paid to the succeeding overseers, making the yet if it has not been paid to them, the order may direct it order, good.
to be paid to those who are overseers at the time when such order is made. (3)
Warrant of If overseers refused to pay the balance, they could not distress must
be committed immediately, but a warrant must issue to issue prior to a commitment. distrain
upon them, and
the return thereof, there may be a commitment; and so it was determined in Walrond's
case before Lord C. J. King. (4) Power to com
The 17 Geo. II. c. 38. s. 2. gave any two or more justices mit under
a power, upon the overseer's neglect or refusal to pay and 17 Geo. II. 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.
(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
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)
But it is now provided by 50 Geo. III. c. 49. s. 1. that if 50 Geo. III. the church wardens 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 church wardens or overseers would have the effect of suspending the statute. (2)
A further remedy for neglecting to pay over such balance 2d, By indictis by indictment, which lies for this offence (3), as also for ment for not
accounting, (1) But quære, whether this power extends beyond the balance, &c.
&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.
refusal to account within the time limited by statute (1), or for making a fraudulent charge in the account. (2)
If an overseer become bankrupt whilst in office, and at overseer be
the end of his year a balance is found due from him to the comes bankrupt before
parish, he may be committed for not paying it, although expiration of the sums from whence it accrued were received previous to
his bankruptcy. For the parishioners had no cause of action against him before his bankruptcy; at that time they could not have sued him for his debt, for he had a right to retain the money until fourteen days after the expiration of his office. His bankruptcy did not discharge him from his office of overseer; and if this sum had been kept by itself, the bankrupt's assignees could not have touched it: he was a mere trustee for the parish. (3)
But in a subsequent case before Lord Eldon, chancellor. The object of a petition was to prove, under a commission of bankruptcy against one of the overseers of the poor, in respect of money in his hands at the time of his bankruptcy. The case of the King v. Egginton was mentioned as unsatisfactory; for though there could be no action, still there might be a good equitable debt, which might be proved. The lord chancellor disapproved that case; observing it was very dangerous to hold, that because the time of accounting had not arrived, in case of the bankruptcy of the trustee, there was not such an assumpsit as would enable the parish to prove. (4)
(1) Although the statute provides another remedy by commitment. Rex v. Commings, et alt. 7W.III. 5 Mod. 179. i Bott, 342. Pl. 372. Rex v. King, 2 Str. 1268. See Rex v. Robinson, ante, 265.
(2) Per Eyre J., Moulsworth's case. Comb. 287.
(5) Rex v. Egginton, i Term Rep. 369. These and the subsequent determinations were decided prior to 50 Geo. III. c.49.; but they seem equally applicable to cases under this statute.
(4) His lordship said, if there was no opposition, the order should be made. Ex parte Exleigh, 6 Ves. jun.811. and quære whether 49 Geo.II. c. 121. s.9. has any operation on cases of an overseer's bankruptcy during his continuance in office? It provides, “ that all and every person or