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3d, When overseer becomes bankrupt before

expiration of his year.

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 the end of his year a balance is found due from him to the parish, he may be committed for not paying it, although 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. 7 W. III. 5 Mod. 179. 1 Bott, 342. Pl. 372Rex v. King, 2 Str. 1268. See Rex v. Robinson, ante, 265.

(2) Per Eyre J., Moulsworth's case. Comb. 287. (5) Rex v. Egginton, 1 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.III. 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

An overseer was committed until he should give in and verify his accounts. He became a bankrupt before the expiration of his year, with a balance of the parish money in his hands. He accounted for the balance under his commission, and afterwards obtained his certificate, which was held to entitle him to be discharged out of custody upon verifying his account: for the money in his hands at the time of his bankruptcy was debitum in præsenti, although he might be only accountable for it in futuro. (1)

rupt after its expiration.

If an overseer becomes bankrupt subsequent to the ex- 4th, If bankpiration of his year, and before payment of any balance due from him, the parish may prove the amount under his commission. And where the object of an overseer's commitment is only to enforce payment, he seems protected from such imprisonment, because the bankrupt laws exempt him from arrest by any process used to compel the discharge of a debt. (2)

persons who have or shall give credit to any person or persons who become bankrupts, upon good and valuable consideration bona fide, for any money whatsoever, which is or shall not be due or payable at or before the time of such persons becoming bankrupt, shall be entitled to, and receive proportional dividends of the bankrupt's estate equally with his or their other creditors, deducting only a rebate of interest for what they receive at the rate of five per cent.

(1) Rex v. Tucker, 5 M. & S. 508.

(2) The petitioner absconded, to avoid paying money, reported to be in his hands as assignee, under a commission of bankruptcy, and which under an award made, and rule of court, he was ordered to pay. Upon that act of bankruptcy a commission issued against him. He surrendered under the commission; and as he was going out of Guildhall from his examination, he was arrested under an attachment for the contempt. The petitioner prayed that he might be discharged from custody, under 5 Geo. II. c. 30. s. 5. The chancellor thought this merely an attachment to enforce the payment of money, and discharged the bankrupt. Exparte Parker, 3 Ves. jun. 554. So where one was in custody for non-payment of costs, taxed in pursuance of a recognizance, entered into by him, on his removal of an indictment from quarter sessions, under 5 & 6 W. III. c. 11. s.3. B. R. held, that he might be discharged under the lords' act, for, although a criminal proceeding in form, it is in substance of a civil nature, and an execution for a debt to the party. Rex v. Stokes, Cowp. 136. But quære, whether the justices have not power to commit, for refusing to deliver in and verify an account?

17 Geo.II.

c. 38. s. 3. If overseer

It is provided by 17 Geo. II. c. 38. s. 3. that if an overseer dies before the expiration of his office, his executors or dies, priority administrators shall within forty days after his decease, de

over other

debts.

Mandamus

where justices refuse to en

liver over all things concerning his office to some churchwarden or other of the place, and shall pay out of the assets left by such overseer all sums of money remaining due, which he received by virtue of his said office, before any of his other debts are paid and satisfied.

If justices decline to receive and proceed upon a complaint against an overseer, for refusing to pay over the baforce payment lance in his hands, the court of king's bench will grant a mandamus to compel them. (1)

of the balance.

Return of a consent by vestry, that the overseers should keep a balance, for

purposes not

43 Eliz. c. 2. is insufficient.

Mandamus to the justices to grant a warrant for levying thirty pounds, being the balance of the account of the last overseers in their hands. They returned, that there was such a balance, but that the vestry had ordered them (i. e. the overseers) to retain it, and employ an attorney to sue authorized by for some charity money, and get it laid out for the benefit of the poor; that one G. was so employed, and the balance exhausted in fees, and that the overseers had engaged to pay G.; et ea de causa, they had refused to grant the warrant. Per Curiam. There must go a peremptory mandamus; for the 43 Eliz. c. 2. s. 2. says, the balance shall be paid over to the new overseers, under a penalty, and it is not in the of the vestry to dispense with the statute. (2)

power

(1) See Rex v. Carter, 4 Term Rep. 246. post. 470, (2). Rex v. Pascoe, 2 M. & S. 343. ante, 455. post.

(2) Rex v. Justices of Somersetshire, 2 Str. 992. Cunn. 105. S. C. As to the sessions' power to order payment of the balance, see post.

SECT. VI.

Of Money due to Parish Officers during the Continuance or

at the Expiration of their Office.

It has been already seen, that if a balance is in the over- Balance due to old overseers, seers' favour, their successors cannot repay them (1) except recoverable in cases provided for by 17 Geo. II. c.38., and by 41 Geo.III. only under c. 23. s. 9. (2)

In a case prior to these statutes, where it appeared that an overseer had omitted to take credit in his account for a sum of money justly expended by him, it was held, that the sessions had no authority, upon appeal, to order his successors to pay the money to his executor, although the vestry consented (3); for otherwise, a man who came into the parish after the overseer's year, would be charged to the expence of that preceding year, while he had been contributing to the maintenance of other poor in another parish. (4)

But where one overseer is money out of pocket, and one of his co-officers has received a sufficiency to reimburse him, an order may be made upon such officer. (5)

There are four adjacent towns within the parish of Banbury, and there is an overseer within each town, and an overseer also within the borough; they all join in one account, and there is but one rate made for all the parish, but the overseers of each particular town collect and pay the money within such town. A person, who is tenant of lands

(1) See Tawney's case, 2 Ld. Raym. 1011. Rex v. Overseers of St. Peter's the Great, Chichester, fol. 35. But see the order as recited.

1 Const. 510. Pl. 351. and ante, Vol. I. 68. et seq.

(2) Ante, Vol. I. 67. et seq.

(3) Reg. v. Ware, 1 Bott, 314. Pl. 528.

(4) S. C. Fol. 19. 1 Bott, 314. n. (a). Rex v. Goodcheap, ante, 444. (1)

(5) Semb. Rex v. Limehouse, 1 Geo. I. Fol. 22.

17 Geo. II. c.38. and 41 Geo. III.

c.23.

Error against an overseer in

his accounts, not to be rectified by sessions after settlement, though

with the ves

try's consent.

But he might be reimbursed

from balance in his co-officer's hand, or if paid tohissuccessor.

When overseers of dis tricts within a parish are to receive from

each other.

in one of these towns, lives in the borough, and is assessed by the overseer of the borough for lands within the town, and paid to the overseer of the borough, and the like is done in the other towns; so that the overseer of the borough had a surplusage for the poor within the borough, and the overseers of the towns wanted money for the poor within the towns, though the poor within the towns were less than the poor within the borough. And upon this, the justices ordered that there should be distribution made; and this order, being removed, was confirmed, this being held not within the statute 13& 14 Car. II. c. 12. (1)

Mandamus to compel deli

very of parish books, &c.

SECT. VII.

Of compelling the Delivery of Books and other parochial
Documents.

THE books of the poor rates (and other public books and papers belonging to the parish) (2), ought to be kept so as all the parishioners may have access to them; and the overseers and churchwardens for the time being ought to have the custody thereof. A compulsory and summary proceeding, to oblige the old overseers to deliver them up to their successors is given by 17 Geo. II. c. 38. (3) It has been also held, that the court may grant a writ of mandamus to compel them. (4)

By 50 Geo. III. c. 49. s. 1. If they or any of them refuse or neglect to deliver over to their successors within ten days from the signing and attesting their accounts, any goods, chattels, or other things, which on the examination and allowance of their accounts (under that act) shall appear to be remaining in their hands, any two or more justices may commit him, her, or them to the common

(1) Case of the borough of Banbury, Skin. 258.

(2) Rex v. Bletshow, 1 Bott, 300. Pl. 306.

(3) Sect. 2. ante, 459.

(4) Rex v. Clapham, Trin. 24 & 25 Geo.II. 1 Wils. 305.

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