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CHAP. XXXVI.

Remedies against Parish Officers for Misbehaviour.

Proceedings THE modes of proceeding against parish officers for a against parish officers; and breach or neglect of duty are, 1st, By conviction before a 1st, for penal- justice of peace, under particular statutes (1). 2d, By indictment. 3d, By information in the court of king's bench. 4th, By action.

ties by statute.

43 Eliz. c. 2.

20s. penalty for not meeting

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The punishments inflicted by statute are, 1st, By 43 Eliz. c. 2. s. 2. The churchwardens and overseers are to meet 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.

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13&14.Car.II. c. 11. 51. pe

Sect. 4. gives power to levy sums due by former officers, and to commit in default of distress, as also to commit such as shall refuse to acount. (2)

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By 13 & 14 Car. II. c.11. an overseer refusing to receive 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.

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(1) As to the form of proceeding before magistrates, in the case of convictions, see Boscawen on Convictions.

(2) Ante, 452.

pay

By 17 Geo. II. c. 5. s. 1. if any overseer shall refuse to 17Geo. II. c. 5. the sum of 5$. when ordered to be paid, for appre- for refusing to s. 1. 5s. penalty 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

counts.

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persons.

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 51. 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 offence forfeit not more than 57. nor less than 40s. to be levied by distress, &c. (1)

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penalty from paying poor in

10s. to 20s. for..

By 9 Geo. III. c. 37. churchwardens, &c. wilfully and 9Geo.lll.c.37. knowingly making any payment, to or for the poor's use, in base or counterfeit money, or any other than lawful money 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 such manner as the justice who shall adjudge the forfeiture shall direct and appoint.

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33 Geo. III. ul c. 55. penalty not exceeding 40s. for disobeying ware & rants and or-12

33 Geo. III. c.55. s. 1. impowers two or more justices, at their special or petty sessions, upon complaint on oath, and after due summons, to impose a reasonable fine, not exceeding 40s., upon any constable, overseer, &c. for any 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.

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(1) But see 5 Geo. IV. c.73. s.11.

Parish officers must levy on each other.

By 48 Geo. III. c. 96. s. 18. a penalty not exceeding 10%. nor less than 40s, is imposed upon any overseer, neglect ing to give information to a justice of the peace of any lunatic pauper.

$

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.

on surrobeig be con

poor,

c. 2.

an

c. 2, s. 2. a

If any churchwarden, or overseer of the victed of the penalties inflicted by 43 Eliz. 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

Penalties for

the church.

2

must have notice of their

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Parish officers poor of extraparochial places, because the inhabitants have 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)

of overseers,

ment.d

2. Punishment Overseers may be punished for most breaches of their &c. by indict- duty, by information or indictment, notwithstanding that a particular punishment is created by statute, and a specific method of recovering the penalty is pointed out; for their disobedience of the statute is a contempt of the law. (4) One is indictable, therefore, not only for refusing to take

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(1) Anon. 16 Vin. Abr. 415.

(2) Rex v. Rufford, 8 Mod. 59. ante, Vol. I. 58. (7) punishable by indictment for not meeting as often as discharge their duty..

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But they are

is necessary to

(3) Rex v. Harman, 1 Bott, 314. Pl.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 question was, whether the proceeding was an order which K. B. would take notice of, or only the justice's process, with which they never intermeddle.

(4) Rex v. Commings, 5 Mod. 179. See also Rex v. Robinson, 2 Burr. 799. ante, 265. (2), and Rex v. Jones, 1 Bott, 545. Pl. 579. post, (1).

upon himself the office of overseer (1), but also when in office for disobeying an order of justices (2), or any other misfeasance, or wilful neglect of duty.

them.

But they cannot be attached by the justices in sessions Sessions canfor disobeying an order made by them, for the sessions has not attach no power to award an attachment for a contempt in disobeying, &c., the proper method being by indictment for a misdemeanour. (3)

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If an overseer, therefore, does not provide for the poor, Indictment for is indictable; and if he relieve where there is no necessity for the poor. for it, that is a misdemeanour. (4) So, if they misuse the For misusing poor, as by keeping and lodging several poor persons in them. a filthy unwholesome room, with the windows not in a sufficient state of repair to protect them against the weather (5), or exact labour from them when unable to work (6), it is indictable.

Further, if they conspire to prevail upon a man to marry a poor woman big with child, for the purpose of throwing the expence of maintaining her, and the issue, from themselves upon another parish or township, they may be indicted. (7) But, perhaps, this is not punishable where the woman, settled in the defendants' parish previous to the marriage, is with child by the man to whom the defend

(1) Rex v. Jones, supra, (4), ante, Vol. I. 58. (4) But they must have previous notice of their appointment. Rex v. Harpur, 5 Mod. 96. Fletcher v. Ingram, ib. 127., which were cases of indictment for not executing the office of constable. See also Rex v. Harman, 1 Bott, 344. Pl. 378. ante, 474. (3).

(2) Rex v. Boys, for not paying costs, Say. Rep. 143. post, and see ante, (4).

(3) Rex v. Bartlett, 1 Bott, 342. Pl. 357.

4 (4) Tawney's case, 16 Vin. Abr. 415.

(5) Rex v. Wetheril et alt. Cald. 432., and that the paupers need not be named in the indictment. Per Buller J. ibid.

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(6) Per Lord Mansfield C. J., Rex v. Winship and Grunwell, Cald. 76. (7) Rex v. Compton, Cald. 246., and the cases ante, Vol. I. 292. (7),

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duce her to ants procure her to be married (1), and it is celebrated with the free will of the parties. (2)

marry.

Refusing to

account.

Not receiving or providing for paupers.

But where the justices have no jurisdiction to make an

order, the offi

It was held indictable where they refused to account within four days after the appointment of new overseers, under 43 Eliz. c. 2. (3); as likewise if they do not make a rate to reimburse constables, under 14 Car. II, c. 14. (4)

Also, overseers may be indicted for not receiving a pauper sent to them by the order of two justices (5), or not providing for one in obedience to an order of sessions, unless the order is illegal. (6)

of

A justice made an order upon an overseer to pay a sum money to a surgeon, who had taken care of a pauper; the overseer refusing to pay it, was indicted; but the court cers may dis- quashed the indictment, the order being made in a matter over which the justice had no jurisdiction. For this kind of assistance does not come within the notion of relief to the poor. (7)

obey.

Court seldom

When the indictment is for a serious offence, the court quash indict refuse to quash it, unless upon the clearest and plainest

ments, when

<(1) That the court would not grant an information in such cases, see Mr. Caldecott's note (6) to Rex v. Compton. Cald. 247.

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(2) Rex v. Fowler and others, Taunton Spring assizes, Cor. Buller J., 1 East, Cro. Law, 461.

(3) Rex v. Commings, 5 Mod. 179. ante,474.(4); this case occurred prior to 17 Geo.II. c. 58.

(4) Rex v. Barlow, 2 Salk. 609. 1 Bott, 341. Pl. 371. The objection was that the word used in the act is "may," which does not require it as a duty. But the court held the word "may" to be imperative and the same as shall."

66

(5) Rex v. Davis, 1 Bott, 347. Pl. 380. Say. 165. S. C. But see 50 Geo. III. c. 49. s. 1. ante, 453.

(6) Rex v. Winship and Grunwell, Cald. 72. If one order of maintenance be made with reference to another, both must be set forth in the indictment, or it will be bad, ibid. Rex v. Moorhouse, Cald. 554., and the indictment must aver service of the order upon the defendant, ib. (7) Rex v. Smith, 1 Bott, 543. Pl. 376.

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