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passed; otherwise, as the inhabitants of the parish are a fluctuating body, the present inhabitants would be burdened with the expences of their predecessors. (1)

Of the justices'

SECT. III.

Of the Justices' Jurisdiction as to the making up, Delivery, and Allowance of Accounts, and a Neglect thereof.

By 43 Eliz. the account is to be given to two justices, accounts under and not to the succeeding overseers. (2)

power to audit

43 Eliz. c. 2.

Commit for

accounts.

The parish officers might, within the four days allowed them by 43 Eliz. c. 2., submit their accounts to any magistrates of their own choosing, within which time they could not be summoned before any justices: but when once laid before particular justices, either by the overseers themselves, or by the parish, after these four days, no other justices could meddle with them; and if they did, any allowance or disallowance by such justices was void. (3)

The justices' authority in stating overseers' accounts could not be delegated to any other. (4)

Upon that statute they cannot commit an overseer, for not delivering not bringing in an account until after the year is expired (5), nor for bringing in one to which they object; for they ought to hear it, strike out what is amiss, and balance the account. (6) So, if he tendered an account in gross ceipts and payments, and refused to deliver in a particular account, or produce his books, by which he received the

Not when he has rendered

an account in gross.

(1) Rex v. Goodcheap, 6 Term Rep. 159.

(2) Anon. 2 Salk. 525.

(3) Rex v. Townsend, 1 Bott, 305. Pl. 318. post, 468.

of re

(4) Reg. v. Turner, 16 Vin. Abr. 415. Rex v. Townsend, 1 Const, 304. Pl. 341.

(5) Rex v. Gibson, Fol. 20.

(6) Per King C. J., Walrond's case, 1 Bott, 500. Pl. 505.

monies on rates assessed, &c. and also a particular account to whom he had paid such money charged in gross, they had no authority under this act to commit for refusing to give an account, for it appears that an account had been tendered. (1)

It was resolved that justices might fine overseers, as well May fine as as imprison them, for refusing to account. (2)

well as imprison for refusing to account. Form of the

commitment for not ac

The commitment should state the party to be overseer. It is said to have been determined, therefore, that where a churchwarden was committed for refusing to account, he counting. was discharged upon an habeas corpus; " for if he be committed as overseer, it must be so expressed in the mittimus, although the office of overseer is annexed to the office of churchwarden, for the justices have no power over him as churchwarden." (3)

The adjudication of imprisonment should be until he shall do the precise thing which he is charged with and proved to have refused doing.

An overseer was charged with and convicted of not delivering over to his successors a book belonging to the parish, called the Bastardy Ledger. The conviction adjudged him to be committed to gaol, to be safely kept until he shall have yielded up all and every the books concerning his said office of overseer belonging to the said parish. It was held void. It should have been until he should have yielded up the particular book specified and described in the information, and for the non-delivery of which he was convicted. It ought not to convict him for contumacy to a greater extent than the matter which had been previously required of him. (4)

(1) Rex v. Carrocke, Show. 395. But see Rex v. Justices of Worcestershire, ante, 442. (1).

(2) Rex v. Sedgecold, 1 Bott, 300. Pl. 307.

(3) Rex v. Peake, 1 Keb. 574.

(4) Groome v. Forrester et alt., 5 M. & S. 314.

That he had accounted

the warrant.

It should likewise aver, that he has not accounted before with no other any other justice: if the order only says, that he has not justice. accounted before the justices who make it, that is insuffiConclusion of cient. (1) The warrant must conclude, "There to remain until they shall account," and not, "until they be duly discharged according to law." For there is a difference whether a man is committed as a criminal, or for contumacy in refusing to do a thing required. In the first case, the commitment must be, "until discharged according to law;" but in the latter, " until he comply and do the thing required of him ;" for in that case he should not lie till the sessions, but shall be discharged on performing his duty. (2)

And as has been already stated it should direct the commitment specifically until he does the particular thing which he has refused, and was by law bound to do. Thus, in the case just referred to, where an overseer had refused to deliver up one particular book; the adjudication and warrant of commitment directed the gaoler to keep him until he should have delivered up all and every the books concerning his office; both were void in toto; and the justices having exceeded their jurisdiction were held liable to an action of trespass and false imprisonment, although the conviction was not previously quashed; for such a commitment was not authorised either by the letter or the spirit of 17 Geo. II. c. 38. It subjected the prisoner to the risk of an imprisonment for an indefinite period, casting upon the gaoler the function of determining what books concerned the overseer's office, and requiring him to detain his prisoner until he had complied with a condition, without affording him adequate means of judging whether he had done so or not. (3)

(1) Rex v. Gibson, ante, 444. (5). But this seems unnecessary when the commitment is under 50 Geo. III. c.49.

(2) Case of the Mayor and Churchwardens of Northampton, Carth. 152., cited and commented on by Lord Ellenborough C. J., Groome v. Forrester et alt., 5 M. & S. 314. ante, 445.

(3) Post, 448. (2). Groome v. Forrester et alt, 5 M. & S. 314. ante, 445. (2).

17 Geo.II.

It appears from the foregoing cases, and also from some Provisions of which will be detailed hereafter, that many imperfections existed in the manner in which parish officers were directed to pass their accounts by 43 Eliz. To remedy these defects, together with others in the same act, the 17 Geo.II. c. 38. was passed.

By this last statute the churchwardens and overseers are required, 1. Within fourteen days after their year expires, to deliver to their successors a just and perfect account in writing, fairly entered in a book, of their receipts and expenditures, &c.—Whereas they could not be compelled to give in a particular account in items under 43 Eliz. (1) 2. They are to deliver these accounts to the succeeding overseers, who are required to keep them safely; whereas under 43 Eliz. they must be given to the justices, who were to allow them. (2) 3. As a farther security to the parish, the accounts are to be verified by the oaths of the parties, which the 43 Eliz. did not require. The oath may be taken before one magistrate, and if any parish officer neglects or refuses to take it, or to make and yield up such account verified as aforesaid, two justices may commit him or them to gaol until they do. 4. They are allowed 14 days after they go out of office to pay and deliver over to their successors the money and other property of the parish remaining in their hands. Whereas the 43 Eliz. seemed to require that it should be done within four days, or at least as soon as their accounts were allowed. 5. When they do not deliver in their account, and pay over the money, &c. as required by 17 Geo. II., two justices may immediately commit such as refuse until they do. But under 48 Eliz. they could not be committed in the first instance, nor until a warrant had issued to distrain upon them. (3) 6. Remedies are provided to enforce making up the accounts, and paying over the balance, where an overseer leaves the parish, or dies during his year.

(1) Rex v. Carrocke, ante, 445. (1).

(2) Ante, 444. (2), (4).

(3) See post, 452. (4). See also Rex v. Hedges, 2:Salk. 533. ibid.

Examination

and allowance

The powers given by 43 Eliz. c. 3. seem unaltered in any under 43 Eliz. other material respect by this act; therefore the right of examining the disbursements by two justices, and allowing the accounts, pursuant to that statute, still continues, where the parish had reason to suspect their accuracy, and chose to proceed upon it. (1)

Remedy for refusing to account under 17 Geo. II.

c. 38.

Must swear him to the account he tenders.

Or the court

will grant a mandamus.

When an officer refused or neglected to make up and verify his account, under 17 Geo. II. c. 38., two justices might, upon complaint, commit him to gaol. (2) But they could not refuse to swear him before he had accounted, according to 43 Eliz. c. 2. If an overseer, therefore, delivered an account, and was ready to swear to the truth of it, and one or more justices refused to admit his oath, the court of king's bench, upon affidavit of the fact, would grant a mandamus to compel them.

On such a motion for a mandamus, the justices showed, for cause against it, that when the overseer delivered in his account, it consisted of gross sums; and that the justices asked him some questions touching the particulars, which he refused to answer; and therefore they refused to swear him to his account. Wright J.-This court hath two jurisdictions over justices of peace: 1. To punish and restrain them, when they exercise a jurisdiction which they have not. 2. To compel them by mandamus, when they refuse to do what they by law ought to do. This motion is founded on the statute 17 Geo. II. c. 38., which re

(1) See Rex v. Whitear et alt., 3 Burr. 1565., post, 462.(3), and see the opinion of Yates J. Rex v. Justices of Berkshire, 1 Bott, 309. Pl. 322. (2) Sect. 2. A collector of the parish rates, appointed under a local act, 25 Geo.III. c. 41., refusing to account and pay over the money collected, was committed to the county gaol, there to remain until he should have made a true account, and until such money as upon the said account should appear to be remaining in his hands should be paid over by him or his sureties, and this commitment is good, although the warrant directs the gaoler to keep him " until he shall be discharged by due course of law." For when he has accounted and paid over the money, he will be entitled to be discharged by due course of law. Rex v. Goff, 5 M. & S. 205.

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