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subsequent sessions holden in Oetober, when his appeal was dismissed on the ground that B. ought to have ap

were couched in general terms, and did not import that the appeals were brought or to be proceeded on under 17 Geo. II.

The said John Beedon withdrew, and did not sit at the determination of the said appeal.

Mr. Dunning and Mr. Kenyon, in support of the rule, insisted, that as to six orders, they ought to be quashed, because they rejected the appeals; and the 7th, because they determined for the rate when they ought to have quashed it.

That the notice of appeal being general, the appellant might proceed either under the stat. Eliz. or Geo. II. The stat. Eliz. does not confine the appeal to the next sessions, and therefore the justices did wrong in refusing to receive the appeals.

That Mr. Beedon was a justice and party, and although it is stated that he withdrew at the time of the decision, yet that was not conclu, sive, because by the style of the court, it appears that he was present, which he ought not to have been.

If the court thinks, however, the state of the case is to be relied on, contrary to the style of the court, an information must be moved for, for procuring a falsehood to be stated.

The justices have stated upon the appeal which was heard, (viz. the 7th,) sufficient grounds to destroy their decision; for they allowed a large sum for eating and drinking, for rent for a man not a pauper, and 501. for reimbursing people who had been out of office a great while, which they cannot do ; the parish being a fluctuating body, it would be hard to make one set of parishioners pay debts contracted by another set.

Mr. Wallace and Mr. Bearcroft, on the other side. The court gave no opinion in the King v. Justices of Berks, whether an appeal under the stat. of Eliz. could be commenced after the next sessions ; but Mr. Bearcroft admitted the practice to be, that appeals under that stat. may be after the next session,

The court at first doubted whether the stat. of Eliz, and 17 Geo. II. being in pari materia, were not to be considered as one stats, and whether 17 Geo. II. had not confined the appeal to the next sessions, and introduced a new regulation; and Mr. J. Aston thought it would be most convenient so to limit the appeal ; upon which Mr. Dunning said, he did not contend but that the sessions might, upon hearing the merits, say, the appeal ought to be brought at the next sessions, and on that account particular circumstances might decide against the appellant, but they had no right to refuse to receive the appeal, without hearing any thing of it, merely because of its not being in time.

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pealed to those held in July. Upon a mandamus to com pel the justices to hear this appeal as being improperly dismissed, the court, after taking time to look into Rex Ashburnham (1), were of opinion that in every view of the case the mandamus should go, whether it be a proceeding under 43 of Eliz. or 17 Geo. II. For supposing it to be under stat. 17 Geo. II. and supposing that statute in this respect to have repealed the statute 43 Eliz. (which from the cases cited seems by no means settled), still under the circumstances, the July sessions could not be considered the next sessions for the purpose of appealing. For the allowance was on the 8th of July the last day when any effectual notice of appeal could be given, and it did not appear when B. had any notice of such allowance, and the transaction seems to carry with it the marks of design to defeat the appeal. (2)

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But it is now settled that since 17 Geo. II. c. 38., an ap peal against overseers' accounts must in every case be made Ld. Mansfield. - It is clear the appeal may be at

any

the stat. of Eliz. The court ought not to countenance charges for eating und

drinking; and therefore thought the order of sessions should be quashed; Jeunir innra but declared that the objection to Beedon was overcome by the state

znud of the case. He observed that the universal practice under stat. Eliz. walla 'rostius not to limit an appeal to the next sessions, was exceedingły material in deciding that question.

3-p10puso The sessions have done wrong in not receiving the appeal, as the stat. Eliz. prescribes no time.

Mr. J. Aston.— The churchwardens and overseers are to be allowed onde for their bare expences.

The court did not in the case of the Justices of Berks give their opinion, whether under stat. Eliz. the appeal is not tied up to the next sessions ; but I see by another note, of a case before that, the court said there was no limitation to an appeal under that stat, and I think there is not, though there may be great inconvenience in trying appeals at a great distance of time.

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Mr.'J. Willes and Ashhurst agreeing.

del bu bil124) 20u00 1979 Rule 'was made absolute.

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13,3 in bitta broty 9dt (2) Rex w: Justices of Dorsctshire, 15 East, 200.

* The King 1. The Earl of Ashburnliain and others, East. Térm, 1774. This note was taken by Mr. Serjcát Kirby, and communicated to me by my friend James Burrough, esq., now one of the judges of the common pleas,

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to the next possible sessions after the allowanee. That
act s.4. having directed the appeal to be brought at the
next sessions and there heard and finally determined, must,
according to the rule laid down in 6 Rep. 29. that a par-
ticular affirmative statute repeals a precedent general one,
be taken to have virtually repealed the 43 Eliz. c. 2. s.6.,
as otherwise the provisions of 17 Geo. II. c. 38. s. 4. would
be rendered inoperative. And unless such a construction
was adopted, it would always be in the power of an ap-
pellant to deprive the respondent of his costs by delaying to
bring his appeal until after the next sessions, the 43 Eliz.
giving no power of awarding costs to either party. (1)...!
jon Lusti Liit
4 Where) a justice had committed an overseer for not ac-
counting according to the directions of 17 Geo. Il. c.38.
and his accounts were afterwards allowed by another må-
gistrate, the justice by whom he was committed was not
permittted to apply to the court of King's Bench for a
mandamus to the justices at a sessions subsequent to the
allowance, commanding them to hear an appeal lodged be-
fore the commitment as being brought under 43 Eliz. (2)..

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The overseers' accounts must be examined and allowed Appeal must by two justices, before an appeal against them can be made be against the to the quarter sessions (3), the 17 Geo. II. c. 38, s.4. having ance. madé no alteration in the statute of Eliz in this respect.(4)

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(1) Rex v, Justices of Worcestershire, 5 M. & S. 457. 4 Burn's Just. 190. S. C. bud!

(2) Rex v, Justices of Berkshire, 1 Const. 308. Pl. 345. The appeal was brought by the then overseer for himself and the rest of the parish. The question as stated in the report was, “ whether an appeal from an overseer's accounts, verified and allowed according to the directions of the 17 Geo. II. c.38. must be to the next sessions after the allowance, or may be to any subsequent sessions.” The rule for the mandamus was discharged, on the ground stated in the text. But Yates J: observed, “ I am very clear that the appeal should have been to the next sessions. (3) Rex v. Bartlett, 7 Geo. II. 1 Bott, 306. Pl. 320. 2 Str. 985,

PI (4) Rex v. Whitear, 3 Burr. 1365. 1 Black, Rep. 395.

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As such a previous application is necessary to give the sessions jurisdiction, it should appear on the face of their order made on the subject. (1)

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Under 43 Eliz. It was adjudged under 43 Eliz. c. 2. that upon an appeal may find a dif- from the allowance of overseers' accounts, the justices at ferent balance due, and order sessions, if they see reason, may disallow them, and order the overseer to the overseers to pay a certain sum over, which they judge

to be in their hands. (2)

pay it.

1

accounts,

The two jus

The defendants having been 'overseers of the parish of tices first referred to have Ash, laid their accounts before two justices of the peace; exclusive juris- but before the said two justices had either allowed or disdiction of al- allowed the accounts, or had in any manner proceeded to lowing and examining the examine them, the defendants laid them before two other

justices, who immediately, allowed them. On an appeal

against these accounts, the sessions ordered the defendants If they are to account before the two first justices. On a motion to allowed by

quash the order, it was contended that the sessions have others, the sessions on

only power to determine the dispute finally, so that if the appeal may allowance of these accounts had not been good, they should remit them back to the either have set them totally aside, or have confirmed so first, to be

much of them as were good, and set aside the rest ; but allowed.

that here they had only referred the overseers back to the two first two justices, without assigning any error or fault in the allowance by the other two justices. Parker Cd.

(1) Rex o. Bartlett, ante, 467.(7),where all that appeared by the order of sessions was,

that it was

an appeal from the disbursements and from the allowance thereof.” The court held that the single word " allowance," did not sufficiently shew that the accounts had been originally before two justices, for it might be an allowance by the parish, and did not necessarily import the allowance of two justices; and the order was quashed.

(2) Rex v. Hedges, 2 Salk. 533. An overseer charged the parish with 31. for putting out an apprentice, and his accounts were allowed by two justices; but in fact the apprentice never was put out. Upon complaint to the sessions, they ordered that the late overseer should the money, so fraudulently obtained, with costs, &c. Eyre J. This order cannot be maintained, the sessions have no jurisdiction; but there may be another remedy, by indictment. Moulsworth's case, Comb. 287.

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- By 43 Eliz. c. 2. The overseers have four days after their year to apply to any justices they please to pass their accounts, and within which time they cannot be summoned before any justice; but when the accounts are once laid before any justice, either by themselves or by the parish,

f ;;- ; after these four days, no other justices can then meddle with them; and if they do, any allowance or disallowance by such justices is void.” The words of 43 Eliz. c. 2. s. 4. are, « shall make such order therein as to them shall be thought convenient;" and therefore they need not finally determine the disputes; and the reason is plain, for they cannot allow the accounts themselves, and therefore it is necessary that they should remit them, with their observations, to those that had the just cognizance. They do Sessions cannot by this delegate any authority to such justices, but theirauthority only desire them to execute their own authority, and therefore it differs from the case where the sessions refer any thing, and give an authority to the referee. This in

98.oxidato deed they cannot do; but here the sessions could not take it out of the hands of the first justices, and if such justices make an unreasonable delay in passing their accounts, the party may apply to this court to hasten them, which is his only remedy. The order, however, was quashed, because it was stated to have been made on the hearing of Smith, one of the justices, and did not state that the parties had been heard. (1)

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The quarter sessions retain the same jurisdiction since 17 Geo. II, c. 38. which they possessed under the act of Elizabeth (2); but they have no power to make an original order upon the late overseers to pay their balance, although ascertained by them, unless a previous application has been made to two justices for that purpose; for the 17 Geo. II. has m'ade no alteration in this respect, but has quite another view. (3) (1) Rex v. Townsend, 1 Bott, 305. Pl. 318. S. C. 16 Vin, Abr. 417.

(2) Rex v. Goodcheap, 6 Term Rep. 159. ante, 444. (1). Rex v. Whitear, ante, 462. (3). (5) Rex v. Whitear, ante, 462. (3).

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