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It may be a
joint order on
all the officers.
Payment to the overseers
at the time of making the order, good.
Warrant of distress must
issue prior to a commitment.
Power to com
17 Geo. II.
43 Eliz. had power to make an order for them to pay the balance, as well as to issue warrants to distrain. (1)
They might likewise make a joint order upon all the officers to pay; for all constitute but one joint officer; and payment to one is payment to all, and the payment by one a discharge of all. (2) And although the 43 Eliz. directs, that the balance shall be paid to the succeeding overseers, yet if it has not been paid to them, the order may direct it to be paid to those who are overseers at the time when such order is made. (3)
If overseers refused to pay the balance, they could not be committed immediately, but a warrant must issue to distrain upon them, and upon the return thereof, there may be a commitment; and so it was determined in Walrond's case before Lord C. J. King. (4)
The 17 Geo. II. c. 38. s. 2. gave any two or more justices a power, upon the overseer's neglect or refusal to pay and until they yield deliver over such money, goods, or other things in their up the balance. hands, as by that act is directed (i. e. within fourteen days after the nomination of new overseers), to commit them to
(1) Rex v. Topsham, 2 Salk. 484.
(2) Rex v. Bartlett, 1 Bott, 306. Pl.320. An order made at sessions. (3) Ib. But it may be otherwise where an action is brought by a person advancing money, at the request of one officer, for the use of the parish. The divisions within the parish had separate overseers and separate rates, and paid and managed their poor separately, but at the end of every year, in making up their accounts, if one division was out of purse and the overseers of the other had money in hand, they paid the balance over to the former. This is a joint parochial account, and all the overseers are overseers of the parish at large. But where a payment has been made at the sole request of one overseer, without the knowledge of the rest, and no demand was made upon them until after they were out of office; it was held a question for the jury, whether the creditor is not to be considered as having relied solely upon the credit of the overseer, at whose request such payment was made. Malkin v. Vickertaff, 3 B. & A. 89.
(4) Reg. v. Turner, 16 Vin. Abr. 418. See also Rex v. Hedges,2 Salk. 535. An order made at sessions upon appeal against an allowance by two
the common gaol until they shall have given an account, and yielded up such monies, &c. as are in their hands. (1)
c. 49. s. 1.
But it is now provided by 50 Geo. III. c. 49. s. 1. that if 50 Geo. III. the churchwardens and overseers, or any of them, refuse or neglect to deliver over to their successors, within ten days from the signing or attesting their accounts, any goods, chattels, or other things, which, on the examination and allowance thereof, shall appear remaining in their hands, any two or more justices may commit him, her, or them, to the common gaol, until they shall have delivered them over. And in case they, or any of them, shall refuse or neglect to pay their successors, within fourteen days from signing and attesting the account, any money or arrearages, which, upon examination and allowance thereof, shall appear due and owing from them, or any of them, or remaining in their hands, the subsequent officers may, by warrant from any two or more justices, levy the same by distress and sale of the offender's goods, restoring the overplus; and in default of such distress, the justices may commit the offender or offenders to the county gaol, to remain, without bail or mainprize, until payment.
And where an order is made under this act to pay the balance to their successors, two justices, in the event of a refusal, may issue their warrant to levy it upon the application of one of the succeeding overseers, although the remainder refuse to concur in the application. For by a more strict construction of the words, the dissent of any one of the churchwardens or overseers would have the effect of suspending the statute. (2)
A further remedy for neglecting to pay over such balance is by indictment, which lies for this offence (3), as also for
(1) But quære, whether this power extends beyond the balance, &c. admitted to be in their hands, by their own accounts, as verified by oath or affirmation?
(2) Rex v. Pascoe, 2 M. & S. 343. The justices having in this case refused to grant a warrant under these circumstances, the B.R. granted a mandamus to compel them.
(3) Rex v. King, 20 Geo. II. 2 Str. 1268.
2d, By indictment for not accounting,
3d, When overseer becomes bankrupt before
expiration of his year.
refusal to account within the time limited by statute (1), or for making a fraudulent charge in the account. (2)
If an overseer become bankrupt whilst in office, and at the end of his year a balance is found due from him to the parish, he may be committed for not paying it, although the sums from whence it accrued were received previous to his bankruptcy. For the parishioners had no cause of action against him before his bankruptcy; at that time they could not have sued him for his debt, for he had a right to retain the money until fourteen days after the expiration of his office. His bankruptcy did not discharge him from his office of overseer; and if this sum had been kept by itself, the bankrupt's assignees could not have touched it: he was a mere trustee for the parish. (3)
But in a subsequent case before Lord Eldon, chancellor. The object of a petition was to prove, under a commission of bankruptcy against one of the overseers of the poor, in respect of money in his hands at the time of his bankruptcy. The case of the King v. Egginton was mentioned as unsatisfactory; for though there could be no action, still there might be a good equitable debt, which might be proved. The lord chancellor disapproved that case; observing it was very dangerous to hold, that because the time of accounting had not arrived, in case of the bankruptcy of the trustee, there was not such an assumpsit as would enable the parish to prove. (4)
(1) Although the statute provides another remedy by commitment. Rex v. Commings, et alt. 7 W. III. 5 Mod. 179. 1 Bott, 342. Pl. 372. Rex v. King, 2 Str. 1268. See Rex v. Robinson, ante, 265.
(2) Per Eyre J., Moulsworth's case. Comb. 287. (5) Rex v. Egginton, 1 Term Rep. 369. These and the subsequent determinations were decided prior to 50 Geo.III. c.49.; but they seem equally applicable to cases under this statute.
(4) His lordship said, if there was no opposition, the order should be made. Ex parte Exleigh, 6 Ves. jun. 811. and quære whether 49 Geo.III. c. 121. s.9. has any operation on cases of an overseer's bankruptcy during his continuance in office? It provides, "that all and every person or
An overseer was committed until he should give in and verify his accounts. He became a bankrupt before the expiration of his year, with a balance of the parish money in his hands. He accounted for the balance under his commission, and afterwards obtained his certificate, which was held to entitle him to be discharged out of custody upon verifying his account: for the money in his hands at the time of his bankruptcy was debitum in præsenti, although he might be only accountable for it in futuro. (1)
rupt after its expiration.
If an overseer becomes bankrupt subsequent to the ex- 4th, If bankpiration of his year, and before payment of any balance due from him, the parish may prove the amount under his commission. And where the object of an overseer's commitment is only to enforce payment, he seems protected from such imprisonment, because the bankrupt laws exempt him from arrest by any process used to compel the discharge of a debt. (2)
persons who have or shall give credit to any person or persons who become bankrupts, upon good and valuable consideration bonú fide, for any money whatsoever, which is or shall not be due or payable at or before the time of such persons becoming bankrupt, shall be entitled to, and receive proportional dividends of the bankrupt's estate equally with his or their other creditors, deducting only a rebate of interest for what they receive at the rate of five per cent.
(1) Rex v. Tucker, 5 M. & S. 508.
(2) The petitioner absconded, to avoid paying money, reported to be in his hands as assignee, under a commission of bankruptcy, and which under an award made, and rule of court, he was ordered to pay. Upon that act of bankruptcy a commission issued against him. He surrendered under the commission; and as he was going out of Guildhall from his examination, he was arrested under an attachment for the contempt. The petitioner prayed that he might be discharged from custody, under 5 Geo. II. c. 30. s. 5. The chancellor thought this merely an attachment to enforce the payment of money, and discharged the bankrupt. Exparte Parker, 3 Ves. jun. 554. So where one was in custody for non-payment of costs, taxed in pursuance of a recognizance, entered into by him, on his removal of an indictment from quarter sessions, under 5 & 6 W. III. c. 11. s.3. B. R. held, that he might be discharged under the lords' act, for, although a criminal proceeding in form, it is in substance of a civil nature, and an execution for a debt to the party. Rex v. Stokes, Cowp. 136. But quære, whether the justices have not power to commit, for refusing to deliver in and verify an account?
17 Geo. II. c. 38. s. 3. If overseer
It is provided by 17 Geo. II. c. 38. s.3. that if an overseer dies before the expiration of his office, his executors or dies, priority administrators shall within forty days after his decease, de
where justices refuse to en
liver over all things concerning his office to some churchwarden or other of the place, and shall pay out of the assets left by such overseer all sums of money remaining due, which he received by virtue of his said office, before any of his other debts are paid and satisfied.
If justices decline to receive and proceed upon a complaint against an overseer, for refusing to pay over the baforce payment lance in his hands, the court of king's bench will grant a mandamus to compel them. (1)
of the balance.
Mandamus to the justices to grant a warrant for levying thirty pounds, being the balance of the account of the last overseers in their hands. They returned, that there was such a balance, but that the vestry had ordered them (i. e. the overseers) to retain it, and employ an attorney to sue for some charity money, and get it laid out for the benefit of the poor; that one G. was so employed, and the balance exhausted in fees, and that the overseers had engaged to pay G.; et ea de causa, they had refused to grant the warrant. Per Curiam. There must go a peremptory mandamus; for the 43 Eliz. c. 2. s. 2. says, the balance shall be paid over to the new overseers, under a penalty, and it is not in the power of the vestry to dispense with the statute. (2)
(1) See Rex v. Carter, 4 Term Rep. 246. post. 470, (2). Pascoe, 2 M. & S. 343. ante, 453. post.
(2) Rex v. Justices of Somersetshire, 2 Str. 992. Cunn. 105. S. C. As to the sessions' power to order payment of the balance, see post.