Sivut kuvina
PDF
ePub

to specify any particular ground of objection to the several items. The respondent's counsel objected to the hearing of the appeal, on the ground that the particular causes and grounds of appeal against the items contained in the notice were not specified therein as required by 41 Geo. III. c. 23. s.4.; the day before the hearing of the appeal, the attorney for the appellant and respondent entered into the following admissions : Upon an appeal against the accounts, &c., we do hereby agree to admit on the hearing of this appeal, that all the payments charged in the accounts of the said respondents to which the appellant objects, were actually made to or for the use of the several persons to whom the same are charged to be paid, and that the several sums charged in such accounts to have been paid to J. S. and Mrs. H. respectively, were for debts contracted by the overseers of the poor of the said township of S., in one or more years previous to the year in which the said respondents were overseers, and were not contracted by the said respondents for the service of their current year; and the respondents undertake to produce, upon the hearing the appeal, the original accounts, and vouchers regarding the sum and sums of money objected to by the appellants. The court of quarter sessions without expressing any opinion as to the goodness of the notice, considered the admissions as a complete waiver of the objection to it, and entered into the merits of the said appeal.

Bayley J. The statute 41 Geo. III. c. 23. requires one of two things, either notice in writing stating and specifying the particular causes or grounds of appeal ; or, secondly, consent by the overseers to be signified by them or their attorney in open court, that the sessions may proceed, though there has been no proper notice. The notice in writing is to be signed by the party giving it, or his attorney, and to be left at the place of abode of the officers, and the sessions shall not examine into any other cause or ground of appeal than the notice specifies. Two questions therefore arise, Has there been such a notice as the statute requires? Has there been such a waiver? In this case, the original notice which was served eleven days before the commencement of the sessions, stated only, that the appellant would object to thirty-five items or charges of payment, which he specified. On what grounds he would object he does not state. The day after the sessions commenced, being the day before their adjournment day, the attornies for the appellant and respondents, agreed to admit that all the payments objected to, were in fact made, but that four of them were for debts contracted in prior years, not for debts contracted for the service of the year to which the accounts referred, and the respondents agreed to produce the original accounts and vouchers regarding the items objected to. The sessions expressed no opinion

to the notice, but thought these admissions a waiver of all objections to it. As to the waiver the statute expressly provides that the sessions shall not examine or inquire into any ground of appeal not specified in the notice, with the single exception only of consent by the overseers, signified by them or their attorney in open court, and we think the statute has excluded, and intended to exclude all questions of waiver in any other way, and that as there was no such consent as the statute requires, we cannot enter into the question of any other species of waiver. Then can it be said that this notice states and specifies the particular causes and grounds of appeal? It states only that the appellant will object to the thirty-five items or charges of payment; but why? It may be because they are false items, that they have not been paid; it may be because though paid, and rightly paid, they ought not to be brought in charge against the parish, but ought to be paid personally by the overseers ; and where a notice is general and leaves it uncertain, upon which of several possible grounds of objection an item is questioned, can we say that it states and specifies a particular ground? We think not. Then will the admissions supply the defect in this notice not as a waiver, but as a good notice in itself. The statute prescribes no form of notice, it specifies no time within which it shall be delivered ; and its only object being that the respondents may know distinctly what objections they are to prepare to meet; and so long as that knowledge is fairly communicated to them in writing, it may be thought that the mode in which it is communicated is immaterial. But it can never be supposed that the respondent's attorney ineant, by entering into these admissions, to waive any other objections which would otherwise have been open to him: his authority would be to uphold the rights of the respondents, not to give them up; and where the statute requires notice in writing to be left at the place of abode of the person on whom it is to be served, we think we ought not, except upon very clear grounds, to allow it to be dispensed with. (1)

No time limit

The 43 Eliz. imposed no limitation as to the time of ed for appealing, by 43 Eliz. appealing; it was held, therefore, that, under that statute,

the parish might appeal against accounts several years after How far limit- they had been allowed and confirmed. (2) And it was once sessions, after decided that the 17 Geo. II. had made no alteration in this allowance by respect, where the party appealed against the allowance of 17 Geo.II.

overseers' accounts, and an order to pay over his balance (3), or such other acts as are required to be done by virtue of 43 Eliz. (4)

(1) Rex v. J. Sheard and another, Sittings after Hil. T. 5 Geo. IV. 2 B. & C. 856.

(2) Rex v. Bowen, Sett. Poor, 111. Rex v. Bartlet, post, 467.(3)
(3) Rex v. Whitear and others, 3 Burr. 1365. post, 469. (3)
(4) This was decided in the following case:

Rule to shew cause, why an order of sessions dismissing six appeals to overseers' accounts, on the ground of not being made within due time, (being after the next session,) whereas by 43 Eliz. no time is specified ; should not be quashed.

Another objection to the order of sessions was, that one of the churchwardens, whose accounts were appealed against, sat as a justice and judge when the question was brought on at the sessions.

Mr. Dunning and Mr. Kenyon, in support of the rule, contended that by stat. Eliz. the appeal need not be to the next sessions. That it did

appear that the proceedings were on 17 Geo. II., which limits the appeal to the next sessions; consequently, that the appeals were improperly disinissed; that the 17 Geo.II. could not be considered as repealing the stat. of Eliz.; that it would be dangerous to leave it in the power of the officers whose accounts were impeached, to limit the time of appeal by going before one justice.

not

[ocr errors]

Where overseers' accounts were verified and allowed 8th July, being the last day permitted by the practice of

That no man can be a judge in his own case, as appears by a case in Salk. page 607. Hard. 503.

Mr. Wallace and Mr. Bearcroft, on the other side, insisted that 17 Geo. II. and 43 Eliz. being in pari materia, must be taken as one act, and that stat. of Geo. II. had limited the time of appeal, which the stat. of Eliz. had left open. That 17 Geo. II. was made to supply the defects of the act of Eliz., one of which was the not limiting the time of appeal. That it did not appear that one of the church wardens did act as judge.

Lord Mansfield. — The churchwarden's acting as judge vitiates the whole.

Mr. J. Aston. In the King and Sunninghill the court gave no opinion whether the time of appeal to overseers’ accounts is the same by stat. Eliz. and 17 Geo. II. ; but they inclined to think that, being in pari materia, it was confined by 17 Geo. II. to the next sessions. I give no opinion about it. The case must be sent back to be re-stated, particularly with respect to the manner of proceeding on the several appeals.

Mr.J. Willes and Ashhurst said nothing, as the case was determined on the ground of the churchwarden's acting as judge in his own case. But Mr. J. Aston expressed very strongly the inclination of his opinion, that the appeal was confined to the next sessions, and that 17Geo. II. had in that respect altered the 43 Eliz.

This case came on again in Easter Term, 1775.
Copy of the amended return to the certiorari:

The general quarter sessions held pursuant to adjournment, &c. before John Beedon, esq. &c. 14th June, 1773. Also at this sessions, the six several appeals of the Earl of Ashburnham, against the accounts of the overseers of Pevenisey aforesaid, for the six years preceding the last, from Easter 1766 to 1772, and lodged at the last general quarter sessions of the peace

holden for the said town and liberty, were ordered to be dismissed, as coming too late, and the same are by this court dismissed accordingly.

The said J. Beedon, esq. the bailiff, was overseer of Pevensey, from Easter 1767 to 1768. The account made up at Easter 1767 was allowed 30th April 1767 by two justices, being first verified on oath of one of the overseers.

The account made up at Easter 1768 was allowed 15th April 1768 by two justices, and verified

upon

oath. From Easter 1768 to the present time, Beedon has always been one of the church wardens of said parish.

The account of Easter 1769 was allowed 6th April 1769 by two justices, and verified as aforesaid.

The account of Easter 1770 was allowed 26th June by two justices, and verified.

the sessions for giving notice of appeal to the next ensuing sessions, holden in July, B. an inhabitant appealed to the

The account of Easter 1771, allowed 12th April 1771, &c. Do. of Easter 1772, allowed on 29th April 1772, &c. Do. of Easter 1773, allowed 23d April 1773, &c.

During all these years Beedon and one of the allowing justices were rated to Pevensey.

General quarter sessions, 16th July 1773, before John Beedon, esq. &c., on the appeal of the Rt. Hon. the Earl of Ashburnham, against the accounts of J.Reppington and Mr. Man, the late overseers of said parish, lodged at the last general quarter sessions, and respited to this, it is ordered, that the said account be confirmed, and the same is by this court confirmed accordingly.

Also on the appeal of the said Earl of Ashburnham against the last rate or assessment made for said parish of Pevensey, it is ordered that the same be amended as follows: That John Beedon be taxed for his dwelling-house at 41. a year instead of 38.; that Eliz. Jarrett be taxed at 41. for her dwelling-house, instead of 1l.; and that the said rate be with such amendments confirmed, and the same is confirmed accordingly.

At this sessions previous to the determinations of the said appeals, the attorney for the appellant moved, whether as Beedon the bailiff was one of the churchwardens, and, therefore, as pretended a party, and there being no deputy-bailiff, this court had jurisdiction to determine the same. The bailiff and jurats were unanimously of opinion they had.

In the account from Easter 1772 to 1773, it appeared to the court, on the hearing of the appeal against it, that the overseers had charged 8l. 18š. 4d. for their own and their companions eating and drinking at an inn.

No order of any justice was obtained for any of the disbursements therein charged. No proof was made of many sums charged, though insisted on. In said account was charged a bill as paid to Beedon, which was not at hearing the appeal paid.

The account contained the following articles :
Paid for collecting and making the book, 158.
Paid for making a book, 5s.
Transcribing do. in the great book, 58.

A sum of 158. was charged as aforesaid, for rent of a tenement for one Geare, who was not a pauper, and it appeared, at the time of determining the appeal, that neither that sum nor the sums of 6l. 10s. and 14.106. were then paid. A sum of 501. borrowed by former overseers, on their notes in 1769 and 1771, were charged. Proof was made before the court proceeded to dismiss the appeals against the six first years' accounts, on the ground of their coming too late, that the notices of appeal

« EdellinenJatka »