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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."

But they cannot be attached by the justices in sessions Sessions canfor disobeying an order made by them, for the sessions has not attach

them. no power to award an attachment for a contempt in disobeying, &c., the proper method being by indictment for a misdemeanour. (3) non 90 %

Fairit,tj If an overseer, therefore, does not provide for the poor, Indictment for

, , He 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 suf

ficient state of repair to protect them against the weather(5), 937 or exact labour from them when unable to work (6), it is indictable.

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Further, if they conspire to prevail upon a man to For conspiring marry a poor woman big with child, for the purpose of too many throwing the expence of maintaining her, and the issue, then another from themselves upon another parish or township, they may whether pu

parish. Quære, be indicted. (7) But, perhaps, this is not punishable where nishable if the the woman, settled in the defendants' parish previous to woman pregthe marriage, is with child by the man to whom the defend- man they in.

(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.

(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),

duce her to ants procure her to be married (1), and it is celebrated with marry.

the free will of the parties. (2)

Refusing to account.

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.

c. 14.(4)

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Not receiving or providing for paupers.

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)

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But where the

A justice made an order upon an overseer to pay a sum justices have no jurisdiction

of money to a surgeon, who had taken care of a pauper; to make an the overseer refusing to pay it, was indicted; but the court order, the officers may dis- quashed the indictment, the order being made in a matter obey.

over which the justice had no jurisdiction. For this kind of assistance does not come within the notion of relief to the

poor. (7)

Court seldom

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

,

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

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

(3) Rex v. Commings, 5 Mod. 179. ante,474.(4); this case occutred prior 20 17 Geo.II. c. 38.

(4) Rex v. Barlow, 2 Salk. 609. i 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 grounds, and will drive the party to a demurrer or motion the offenee is

shall.” (5) Rex v. Davis, i Bott, 347. Pl. 380. Say. 163. 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. 654., and the indictment must aver service of the order upon the defendant, iba

(7) Rex v. Smith, 1 Bott, 543. Pl. 376.

same as

serious. id in arrest of judgment. (1)

.

1.

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The proceeding by information, filed in the King's 5. Proceeding Bench, is of a higher nature, and discretionary in the by information court to grant. (2) To institute this proceeding, a motion is made for a rule to show cause why an information should not be granted, founded upon affidavits, which must state a criminal charge. If this ground of accusation seems sufficient in law and fact to warrant an information, the person accused is called upon to answer the charge, by showing cause why it should not be filed. This he may do by pointing out the insufficiency of the accusation, as stated by the prosecutor, or, by producing affidavits, either to deny the facts, or else to free himself from a criminal intention, in doing that which he must admit himself to have done. Counsel are usually heard on the day subsequent. to that given by the rule, or as soon after as suits with the court's convenience, both against and for it; after which the court either refuse the motion or make the rule absolute, according to the justice of the case.

But as this is an extraordinary remedy, the court will Granted only not' suffer it to be applied to the punishment of ordinary nary cases. offences. Thus, although it was usual formerly to grant Rule not to informations against overseers, for procuring a pauper's grant it for a marriage, with a view to burthen another parish, the court conspiracy to

marry paupers, has long come to a resolution not to grant them. (3) 1. The court granted an information against an overseer, Grant it forrfor that he, with others, had forcibly removed a poor moving a pai

per when sick.

&c.

(1) Rex o. Wetheril, Cald. 432. Reg. v. Pardy, 1 Bott, 347. Pl. 381. Rex o. Moorhouse, Cald. 554.

(2) When an information is moved for, and ordered by the court, it is filed in the name of a principal officer of the court, called the King's coroner and attorney, or more usually the master of the Crown-office. But an information may likewise be filed by his Majesty's attorneygeneral ex officio, or, when the office is vacant, by the King's solicitor-' general.

(3) Rex v, Slaughter, Cald. 246, n. (a). - Rex v. Compton, ibid.

woman, who was very sick and near her time, from one parish to another, to avoid the expence it might occasiog to the first parish, if the child should be born there. (1)

Or for altering * They would likewise have granted an information against a rate after allowance. an overseer, for altering a rate after it had been made and

allowed, by introducing a person therein for election par Look to de- poses. (2) But in granting or refusing informations, the fendant's motive in granting

court looks to the motive, and will refuse it; although the or refusing it. defendant has acted improperly, if he appears to have done so without a criminal intention. (3)

1 for

ori! font Information An information quo warranto was moved against the quo warranto lies not against churchwardens of a parish, who had been sworn in by a church mandamus, to shew by what authority they exercised that warden,

office. But the court denied the motion, a churchwarden not being such a public officer, against whom an information would lie; for it was not an usurpation upon the crown; and they might as well apply for an information against a constable or overseer; but the parties aggrieved might have their action; for his being sworn in by viftue of the mandamus would be no bar to such action, because a mandamus gives no right, but leaves the matter as it was before.(4)

ping 4. Actions An action may be maintained against overseers for against overmoney lent them to support the poor, or for necessaries

1019A

Sters.

wodt 30 (1) Rex o. Busby, 1 Bott, 544. Pl.377. But this was in 5 Geo. II. ; and see Rex v. Upsdale, East. 25 Geo. III., where an application for an inforination in a very gross case, for marrying a man by duress to do idiot, was refused. Cald. 247. n. (a).

ve .. bisa "(2) See Rex o. Barratt, Dougl.449. Although done with the approbation of the allowing justice. But the rule for an information de discharged, all criminal intention being clearly negatived. 3 M 4,91&

(3) Ib. The court discharged the rule; but as the defendant's conduct was irregular, though not criminal, they refused to discharge it with costs. 12,97112 0

SPEA! (4) Rex v. Daubney, 1 Bott, 301. Pl. 361, see ante, Vol. I. 56,

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and assistance found for the poor; and this upon an express (1), or an implied promise. (2)

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But where a pauper certificated by G. was removed by a common order of removal from M. whither the overseer 'n' tis, Irixo of M, delivered the pauper to the overseer of G. who received him and paid 8l. 9s. 4d. demanded from him by the former for maintenance of the pauper during the preceding four years, it was held that the latter could not recover it back from the overseer of M. in an action for money had and received. For even if the certificate is informal in not being directed to M. by name, it is evidence that G. has acknowledged the pauper as their parishioner, and it slacion is allowed that he has been maintained four years by M., admitting therefore that the money could not have been demanded by the defendant, (which it was unnecessary to decide) yet being an honest debt, and the plaintiff having once paid it, shall not by this, which is an equitable action, recover it back again. (3)

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Actions most frequently brought against overseers are for, things done, either without, or in violation of their authority.

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As for making an illegal distress, under a void warrant. (4)

Actions are also given in some instances for the recovery of penalties inflicted upon them by statute for a violation of their duty. (5)

(1) Howv. Keech, 1 Bott, 347. Pl. 382. Rex v. Woodsterton, 2 Bar, pard. K. B. 207. 340.

;) (2) Simmons- v. Wilmot, 3 Espin. Ni. Pri. Cas. 921 See the opinion of Buller J., Rex o. Micklefield, Cald. 510. and ante, 437. Lamb pa Bunce, 4 M. & S. 275.

Lai ,,ob $(3) Farmer' o. Arundell, 2 Black. Repi 894,- bezibune 3T JI (8)

(4) Hurrell v. Went, 2 B. Moore, 417071, ) 7 vincentis 78 Joli et, vt (5) As by 55 Geo. III. c. 137. See ante, 384,

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