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to the next possible sessions after the allowance. That act $.4. having directed the appeal to be brought at the next sessions and there heard and finally determined, must, according to the rule laid down in 6 Rep. 29. that a particular affirmative statute repeals a precedent general one, be taken to have virtually repealed the 43 Eliz. c.2. s.6., as otherwise the provisions of 17 Geo. II. c. 38. s. 4. would be rendered inoperative. And unless such a construction was adopted, it would always be in the power of an appellant to deprive the respondent of his costs by delaying to bring his appeal until after the next sessions, the 43 Eliz. giving no power of awarding costs to either party. (1) Pe on Lib 1 La est
Where a justice had committed an overseer for not aecounting according to the directions of 17 Geo. II. c. 38. and his accounts were afterwards allowed by another magistrate, the justice by whom he was committed was not permittted to apply to the court of King's Bench for a mandamus to the justices at a sessions subsequent to the allowance, commanding them to hear an appeal lodged before the commitment as being brought under 43 Eliz. (2)
The overseers' accounts must be examined and allowed Appeal must by two justices, before an appeal against them can be made be against the justices' 2o the quarter sessions (3), the 17 Geo. II. c. 38. s. 4. having ance. nade no alteration in the statute of Eliz. in this respect. (4)
(1) Rex v. Justices of Worcestershire, 5 M. & S. 457. 4 Burn's 120. S. C.
(2) Rex v, Justices of Berkshire, 1 Const. 308. Pl. 345. The appeal as brought by the then overseer for himself and the rest of the parish. he question as stated in the report was, "whether an appeal from an verseer's accounts, verified and allowed according to the directions of le 17 Geo. II. c.38. must be to the next sessions after the allowance, or ay be to any subsequent sessions." The rule for the mandamus was ischarged, on the ground stated in the text. But Yates J. observed, I am very clear that the appeal should have been to the next sessions." (3) Rex v. Bartlett, 7Geo, II. 1 Bott, 306. Pl. 320. 2 Str. (4) Rex v. Whitear, 5 Burr. 1365. 1 Black, Rep. 395,
Under 43 Eliz.
may find a dif
As such a previous application is necessary to give the sessions jurisdiction, it should appear on the face of their order made on the subject. (1)
It was adjudged under 43 Eliz. c.2. that upon an appeal from the allowance of overseers' accounts, the justices at due, and order sessions, if they see reason, may disallow them, and order the overseer to the overseers to pay a certain sum over, which they judge pay it. to be in their hands. (2)
The two jus
tices first re
The defendants having been overseers of the parish of ferred to have Ash, laid their accounts before two justices of the peace; exclusive juris- but before the said two justices had either allowed or disdiction of al- allowed the accounts, or had in any manner proceeded to lowing and examining the
If they are allowed by others, the sessions on
appeal may remit them
back to the first, to be allowed.
examine them, the defendants laid them before two other justices, who immediately allowed them. On an appeal against these accounts, the sessions ordered the defendants to account before the two first justices. On a motion to quash the order, it was contended that the sessions have only power to determine the dispute finally, so that if the allowance of these accounts had not been good, they should either have set them totally aside, or have confirmed so much of them as were good, and set aside the rest; but that here they had only referred the overseers back to the two first two justices, without assigning any error or fault in the allowance by the other two justices. Parker C.J.
(1) Rex v. Bartlett, ante, 467.(5),where all that appeared by the order of sessions Сс that it was was, an appeal from the disbursements and from the allowance thereof." The court held that the single word " allowance," did not sufficiently shew that the accounts had been originally before two justices, for it might be an allowance by the parish, and did not necessarily import the allowance of two justices; and the order was quashed.
(2) Rex v. Hedges, 2 Salk. 533. An overseer charged the parish, with 31. for putting out an apprentice, and his accounts were allowed by two justices; but in fact the apprentice never was put out. Upon complaint to the sessions, they ordered that the late overseer should repay the money, so fraudulently obtained, with costs, &c. Eyre J. This order cannot be maintained, the sessions have no jurisdiction; but there may be another remedy, by indictment. Moulsworth's case, Comb. 287.
-“By 43 Eliz. c. 2. The overseers have four days after their year to apply to any justices they please to pass their accounts, and within which time they cannot be summoned before any justice; but when the accounts are once laid before any justice, either by themselves or by the parish, after these four days, no other justices can then meddle with them; and if they do, any allowance or disallowance by such justices is void." The words of 43 Eliz. c. 2. s. 4. are, "shall make such order therein as to them shall be thought convenient;" and therefore they need not finally determine the disputes; and the reason is plain, for they cannot allow the accounts themselves, and therefore it is necessary that they should remit them, with their observations, to those that had the just cognizance. They do Sessions cannot delegate not by this delegate any authority to such justices, but theirauthority. only desire them to execute their own authority, and therefore it differs from the case where the sessions refer any thing, and give an authority to the referee. This indeed they cannot do; but here the sessions could not take it out of the hands of the first justices; and if such justices make an unreasonable delay in passing their accounts, the party may apply to this court to hasten them, which is his only remedy. The order, however, was quashed, because it was stated to have been made on the hearing of Smith, one of the justices, and did not state that the parties had been heard. (1)
The quarter sessions retain the same jurisdiction since 17 Geo. II. c. 38. which they possessed under the act of Elizabeth (2); but they have no power to make an original order upon the late overseers to pay their balance, although ascertained by them, unless a previous application has been made to two justices for that purpose; for the 17 Geo. II. has made no alteration in this respect, but has quite another view. (3)
(1) Rex v. Townsend, 1 Bott, 305. Pl. 318. S. C. 16 Vin. Abr. 414. (2) Rex v. Goodcheap, 6 Term Rep. 159. ante, 444. (1). Rex v. Whitear, ante, 462. (3).
(3) Rex v. Whitear, ante, 462. (3).
50 Geo.III. c. 50.
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 justices, out of sessions, to enforce payment. (1) And if they refuse, the court of King's Bench will grant a mandamus to compel them to do 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)
The appeal given to persons aggrieved, against the allowance 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)
But that which is given to the officer accounting, against an order making a disallowance or reduction in their ac counts, 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, chattels, 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 not less than double the sum or value in dispute; to enter such appeal at such next sessions, and abide by such order # shall at that or any subsequent sessions be made on such appeal.
(1) See 45 Eliz. c. 2. s. 2., and 17 Geo. H. c. 38. s. 2.
(2) Rex v. Carter, 4 Term Rep. 246. See also Rex v. Pascoe, 2 M. &8. 343., as to enforcing payment of the balance under 50 Geo. III. c. 4 (5) Rex v. Justices of Dorsetshire, ante, 466. (2). which is subse quent 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 Geo. 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.