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And where; upon appeal, the sessions find a balance due from an overseer, but do not proceed to direct by their order that he pay it over to the succeeding overseers, application may be made to two justíces, out of sessions, to enforce payment (1) And if they refuse, the court of King's Bench will grant a mandamus to compel them so
For the justices have jurisdiction in this case. The effect of the appeal was the ascertaining of the quantum of the arrears, and then the statute attaches, and enables the magistrates out of sessions to enforce the payment of the balance. (2)
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!: puerto The appeal given to persons aggrieved against the at lowance of the churchwardens and overseers' accounts under 43 Eliz. and 17 Geo. II., is expressly preserved to them by 50 Geo. III. c. 49. s. 3. (3)
50 Geo.III. c. 50.
But that which is given to the officer accounting, against an order making a disallowance or reduction in their recounts, by sect. 2. of that statute is subject to the following regulations :
1. It must be to the next general or quarter sessions to be holden after the tenth day from making the order. 2. The person appealing must first have paid or delivered over to the succeeding officers such money, goods, chaitels, and other things, as on the face of the account submitted to the justices for allowance shall appear due and owing, or in their hands. 3. He must enter such a recognizance before one or more such justice or justices, with two sufficient sureties to be approved by them, in Bot less than double the sum or value in dispute; to enter sach appeal at such next sessions, and abide by such order a shall at that or any subsequent sessions be made on such appeal.
(1) See 43 Eliz. c. 2. s. 2., and 17 Geo. II. c. 38. s. 2.
(2) Rex v. Carter, 4 Term Rep. 246. See also Rex o. Pascoe, 2 M. &S 343., as to enforcing payment of the balance under 50 Geo. III. c. €
(5) Rex v. Justices of Dorsetshire, ante, 466.(2). which is sets qucnt to that act. And see post. 471.(1).
It has been decided that where accounts have been duly allowed by two justices pursuant to 17 Gea. II. c. 38. at a petty sessions, a parishioner may appeal against them, although they have not been examined and allowed at a special sessions, pursuant to 50 Geo. III. c. 49. and the sessions have jurisdiction and ought to hear the appeal. (1)
The sessions, on production and proof that the recognizance was duly entered into, may adjourn the appeal or hear it, and confirm or reverse such disallowance or reduction, either in the whole or in part, and may, if they think fit, order that the appellant shall have the costs incurred upon the appeal defrayed out of the poor rates.
(1) Rex v. Justices of Colchester, 5 B.& A, 535.
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ProceedingsThe modes of proceeding against parish officers for a against parish officers; and breach or neglect of duty are, Ist, By conviction before a 1st, for penal justice of peace, under particular statutes (1). 2d, By ties by statute.
indictment. 3d, By information in the court of king's bench. 4th, By action.
43 Eliz. c. 2. The punishments inflicted by statute are, 1st, By 43 Eliz. 20s. penalty for c. 2. s. 2. The churchwardens and overseers are to meet not meeting once a month, at least once a month, in the parish church, upon Sunday
afternoon, after divine service, to consider of all things concerning their office; and any absenting himself without lawful excuse, or being negligent in their office, or in the execution of the said orders being made, by and with the assent of the justices, or any two of them, shall forfeit for every such default of absence or negligence 20s.
Sect. 4. deny.
Sect. 4. gives power to levy sums due by former officers, due money: 7: and to commit in default of distress, as also to commit such
as shall refuse to acount. (2) will, 1.109 13 &14.Car.II. By 13 & 14 Car. II. c.11. an overseer refusing to receive c. 11. 56. pe
a person removed by warrant of two justices from one nalty for refusing to receive county, city, or town corporate, to another, forfeits 51. to a pauper. the use of the poor of the parish from whence such person
was removed, to be levied by distress, &c. by warrant of any justice of the place to which such person was removed; and for want of sufficient distress, he is to commit him to gaol for forty days.
(1) As to the form of proceeding before magistrates, in the case of convictions, see Boscawen on Convictions. (2) Ante, 452.
By 17 Geo. II. c.5. s. 1, if any overseer shall refuse to 17Geo. II. c.5. pay the sum of 5$. when ordered to be paid, for appre- for refusing to hending idle and disorderly persons, it may be levied upon pay for the aphim by distress, and he shall not be allowed it in his ac- and disorderly
By 17 Geo. II. c. 38. s. 14. churchwardens and overseers, 17Geo.II.c.38. who refuse or neglect to obey and perform the directions penalty of 5l,
for disobeying. of this act, where no penalty is before thereby provided, or. who shall act contrary thereto, shall, on oath thereof before two justices, within two months after commission of the of some fence forfeit not more than 5l. nor less than 40s. to be levied by distress, &c. (1)
By 9 Geo. III. c. 37. churchwardens, &c. wilfully and 9Geo11.c.37.5 knowingly making any payment, to or for the poor's use, in penalty from a base or counterfeit money, or any other than lawful money paying poor in of Great Britain, shall, upon conviction by one justice, base money. either upon non-appearance, confession, or by the oath of one witness, be adjudged to forfeit not less than 10s. nor more than 20s. to be levied by distress, &c. and applied to the use of any poor person or persons of the parish, &c, in sạch manner as the justice who shall adjudge the forfeiture shall direct and appoint.
19லாயார் 33 Geo. III. c.55. s.l. impowers two or more justices," 33 Geó. III, gul at their special or petty sessions, upon complaint on oath, not exceeding and after due summons, to impose a reasonable fine, not 40s. for disexceeding 40s., upon any constable, overseer, &c. for any rants and or->
obeying war- & 1 neglect of duty or disobedience of any lawful warrant or ders. order of any justice or justices; which sum, unless paid, is to be levied by distress, and applied to the relief of the poor of the parish, &c. where the offender resides; and for want of distress, he is to be committed to the house of correction, for any space of time not exceeding ten days.
It also gives the party aggrieved an appeal to the quarter Power of sessions, upon giving ten days' notice.
appeal. (1) But sce 5 Geo. IV. c.73. s.11.
113 By 48 Geo. III. c.96. s. 18. a penalty not exceeding 101. nor less than 40s is imposed upon any overseer, neglecting to give information to a justice of the peace of any
By 59 Geo. III. c. 127. s. 3. the like penalty is inflicted when they neglect to give a justice information as to the state of the lunatic.
poids? ITVO Parish officers If any churchwarden, or overseer of the poor, be conmust levy on
victed of the penalties inflicted by 43 Eliz. c. 2. s. 2. anet leies for other must levy it. (1) The penalties for not meeting in not meeting in
the church shall not be inflicted on the overseers of the the church. Parish officers poor of extraparochial places, because the inhabitants have must have notice of their
no church to meet in (2); and a parochial overseer must appointment. have notice of his appointment, or he cannot be charged
for neglect. (3)
Overseers may be punished for most breaches of their of overseers, &c. by indici- duty, by information or indictment, notwithstanding that a ment... particular punishment is created by statute, and a specific turl.4 RYTT.
method of recovering the penalty is pointed out'; for their 1511210,53:13 917776, pull disobedience of the statute is a contempt of the law.(4)
One is indictable, therefore, not only for refusing to take ansluten
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(1) Anon. 16 Vin. Abr. 415. །
(2) Rex v. Rufford, 8 Mod. 39. ante, Vol. I. 58. (7) But they are punishable by indictment for not meeting as often as is necessary to discharge their duty.
(3) Rex v. Harman, 1 Bott, 314. Pf.378. In this case, the defendant was adjudged guilty of eleven neglects; five of which were for absenting himself from monthly meetings; four for absenting himself from other meetings; one, that his maid refused to take the rate-book; and another, that he refused to take half a year's parish-rate. The order was quashed. See also Rex v. Moorhouse, post, 477. (1). Quære, if it must not be alleged in these convictions, that the defendant had accepted the office ? See the opinion of Chapple J., Rex v. Harman, in which case one ques. tion was, whether the proceeding was an order which K. B. would take notice of, or only the justice's process, with which they nover intermeddle.
(4) Rex v. Commings, 5 Mod. 179. See also Rex v. Robinson, 2 Burr. 799. ante, 265. (2), and Rex v. Jones, i Bott, 345. Pl. 379. post,(1).