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Commitment should be until

Fourthly, Deli- that the warrant of the justices could only issue upon the application of the vering up books, major part at least of the subsequent church wardens and overseers. The 80. statute enacts, “ that in case the late church wardens and overseers, or any of

them, shall refuse, &c., it shall and may be lawful for the subsequent churchwardens and overseers, by warrant from any two or more justices, to levy all such sums," &c. That imports that the collective body of the parish officers must act in this instance, for otherwise the statute would have added, “ any of them,” as it had done in speaking of the late overseers. There is not any ground in this case to impute fraud to the overseers who refuse to concur.—But the Court, after hearing further argument, said, that without imputing fraud in this case, they should be restraining the meaning of the statute too much, if they did not put it into motion upon the application of any one of the overseers; that the mischief of a more strict construction would be great, for then the dissent of any one of the churchwardens and overseers would have the effect of suspending the statute. Per Curiam

Rule absolute. Where a balance Case of the Borough of Banbury, 1 Bott, 339. Where four towns lie in may be ordered

one parish, having each an overseer, and there being one rate for the whole four, each overseer collecting that of his respective town, and the inhabitants of each being respectively assessed by their respective overseers, the justices may order a distribution, where there is a want of money in some, and a

surplusage in others. Re-payment of So in Rex v. Churchwardens of Topsham, 1 Bott, 340. It was held the

justices might order payment of the balance to the succeeding overseers.

And in Rex v. Limehouse, 1 Bott, 342. That one overseer should reimimbursing an

burse another where the one had a surplus, and the other was money out of pocket. See also Malkin v. Vickerstaff, 3 B. & A. 89, ante, 260.

Until he have made a true account.] The Mayor v. Churchwardens of Norththey account.

ampton, Carth. 152; 1 Bott, 309; 2 Nol. P. L. 349. The mayor of Northampton committed the churchwardens, as overseers of the poor, for refusing to account: and the warrant of commitment concluded, until they be duly discharged according to law. The Court held the commitment void; because the warrant ought to conclude, there to remain until they should account, as the statute doth appoint. And the difference is, where a man is committed as a criminal, and where only for contumacy: for in the first case, the commitment must be until discharged according to law; but in the latter, until he comply and perform the thing required : for in that case, he shall not lie till a sessions, but shall be discharged upon performance of his

duty.—But see ante, 255, tit. Commitment, Vol. I. Books to be de- And the said books shall be preserved by the churchwardens and overseers.]

Rex v. Clapham, T. 24 & 25 Geo. II.; 1 Wils. 305; 1 Bott, 301. Ā mandamus was granted to oblige the old overseer of the poor to deliver over the books of the poor-rates to the new overseer; for, by the Court, they are public books, and ought to be delivered over by one overseer to another, that all the parishioners may have access to them, and the overseer and church warden for the time being ought to have the custody

thereof. A conviction by Groome v. Forrester, D. D. and Another, 5 M. & S. 314. Trespass for two justices under stat. 17

assault and false imprisonment against the defendants, justices of the peace Geo. 2, c. 38,

for the town and liberties of Wenlock, in the county of Salop. Plea, not upon complaint

guilty. At the trial before Holroyd, J., at Salop Lent assizes, 1816, there of a parish was a verdict for the plaintiff, damages 5l., with liberty to the defendants against the late to move to enter a nonsuit. A rule nisi for this purpose having been oboverseer, for refusing and neg

tained, W. E. Taunton was heard against the rule, and Pullen in support lecting to deliver of it:-Lord Ellenborough, C. J., delivered the judgment of the Court. This

was a motion to set aside a verdict against the defendants, justices of the peace certain book belonging to the for the town and liberties of Wenlock, in the county of Salop, in an action parish,

called for false imprisonment, and to enter a nonsuit. The imprisonment comThe Bastardy Ledger, convict

plained of was the commitment of the plaintiff to the common gaol at ing him of the Shrewsbury, under the warrant of the defendants as magistrates, founded

livered to the new overseers.

of the overseers

over to them a

mitted to the common gaol,

commitment

upon a conviction of the plaintiff, as late overseer of the parish of Brosely, Fourthly, Deliin that county; which conviction was had before the defendants, under the vering up books, 17 Geo. II. c. 38, against the plaintiff, for not delivering over to the suc

&c. ceeding overseers of the parish a certain book belonging to the parish, called

said offence, and the Bastardy Ledger, in breach of his duty under that statute, which re- adjudging that he quired him to deliver over all such sums of money, goods, chattels, and should be com other things, as should be in his hands, to such succeeding overseers. In case of his refusal or neglect so to do, the statute (s. 2) authorises two or to be safely kept more justices of the peace to commit him to the common gaol, until he shall until he should have paid and yielded up such monies, goods, chattels, and other things in all and every the his hands. The conviction, as far as relates to the withholding of the par

books concerning ticular book in question, the offence charged in the information, is correct.

his said office of

overseer belong After finding him guilty thereof, it proceeds to adjudge that Thomas Groome ing to the parish, (the plaintiff and late overseer) for his offence aforesaid, (that is, in not deli- was held void as vering over the particular book, The Bastardy Ledger,) be forth with com- tion respecting mitted to the common gaol at Shrewsbury, to be safely kept, “ until he the imprison. shall hare yielded up all and every the books concerning his said office of the same extendoverseer, belonging to the said parish.” This is the adjudication; and the ing beyond what warrant of commitment follows the adjudication, and of course directed the was previously gaoler to keep Groome until he should have yielded up all and every person convicted; the books concerning his office of overseer; thereby, in effect, casting upon and a warrant of the gaoler the function of enquiring and determining, what were " all

founded on this and every the books concerning the office of overseer,” upon the yielding conviction, and up of which the gaoler was to discharge his prisoner, instead of requir- directing the ing the gaoler to detain his prisoner, (as it should have done) until he him in the terms should have yielded up the particular book specified and described in the of the adjudicainformation, and for the non-delivery of which he was convicted. Such a holden void in commitment was certainly not authorised either by the letter or the spirit of toto, for which the act of parliament, and subjected the prisoner to the risk of an imprison- trespass and false ment for an indefinite period, viz., until he had complied with a condition of would lie against greater extent than was imposed by the act of parliament; and where the the justices, al. gaoler who should have to detain him under the warrant had no adequate viction had not

. means of judging, whether his prisoner should have, in fact, complied with been quashed. the terms of such condition, and, of course, whether he was entitled to his discharge or not. This, it will be observed, is a conviction and commitment on the ground of a supposed contumacy; but the defendant could have been guilty of no contumacy in respect of the non-delivery of any other book or thing, than that book which alone he had been required to deliver, viz. The Bastardy Ledger. The conviction and commitment, therefore, in respect of a supposed contumacy to any greater extent than that in which obedience had been previously required from him, must of course be unfounded. Previously to commitment for refusing to do a thing, there must have been a charge and proof, and the party cannot be committed“ until he does something,” which is not charged and proved upon him that he has previously refused to do. Assuming that the warrant is in this respect illegal and void, the question is whether it be therefore void in toto ; and if it be, whether the defendants, as committing magistrates, are liable to an action of trespass and false imprisonment for having committed the plaintiff thereupon. And that it is void in toto, the case of Milward v. Coffin, 2 Bl. R. 1331, is an authority; there Gould, J., in the absence of De Grey, C. J., said, “ It is fairly and candidly conceded, that if one of the rates be illegal, the whole warrant is bad; and I take the first to be illegal, for assessing the plaintiff beyond the extent of his occupation. All that related to the assessment of lands, not in the occupation of the plaintiff, was coram non judice ; the justices therein exceeded their jurisdiction, and their determination is a nullity.” In 2 Inst. 52, there are to be found several good rules in respect to commitments : the fifth of which is, “ The warrant or mittimus, containing a lawful cause, ought to have a lawful conclusion, viz., and him safely to keep until he be delivered by law, &c., and not until the party committing doth further order.” Likewise, in 2 Inst. 591, there is a further rule : “ Now as the miltimus must contain the cause, so the conclusion must be according to law, viz., the prisoner safely to keep, until he be delivered by due order of law, VOL. IV.

s

Fourthly, Deli. and not until he that made it shall give other order, or the like.” The case of rering up books, The Mayor and Churchwardens of Northampton, Carth. 152, is a leading &c.

case, upon the proper form of conclusion of a commitment, until a particular act should be done by the party committed. That case was thus. The mayor of Northampton committed the churchwardens for refusing to account before him, and the warrant of commitment concluded in the common form, (viz.) “until they be duly discharged according to law;" and all this appearing upon the return to a habeus corpus, the Court held the commitment void, because the warrant ought to have been thus concluded, (viz.) there to remain until he shall account, as the stat. 43 Eliz. c. 2, doth appoint. And the difference is, where a man is committed as a criminal, and where only for contumacy, (as in this case,) in refusing to do a thing required, &c.; for in the first case, the commitment must be until discharged according to law; but in the latter, until he comply and perform the thing required; for in that case he shall not lie till a sessions, but shall be discharged upon the performance of his duty. Wherefore the churchwardens were discharged by rule of Court. Bracy's case is an authority to the same effect; it is reported in 5 Mod. 308; 1 Salk. 348; 1 Lord Raym. 99 ; also in the margin of Cartheu', 153, from which I cite it. One Bracy was committed by commissioners of the statute of bankrupts, for refusing to answer; and they concluded their warrant, that he be committed to prison, there to remain, “ until he conform himself to our authority, and be thence delivered by due course of law;" and upon the return of a habeas corpus, he was discharged, because this conclusion was not pursuant to the statute of bankrupts; and the mayor of Northampton's case was cited for an authority. In Lord Raymond's report, it is laid down, that if he had been committed“ until he should conform to their authority, in the special matter, it had been good. And of that opinion was Lord Holt; and he said, that the word 'submit' (which is the word in the statute, and not conform') does not mean an act of humble submission, but only to make answer to the question proposed.” In Salkeld's report, the Court held the word “ conform," instead of the word “submit,” to be well enough, because it was of the same sense; but because the commissioners had other authorities besides that of examining, and it did not appear but that it might require a submission to them in other respects, and for that all powers given in restraint of liberty must be strictly pursued, and in this case they had but a special authority, and must not exceed it, they held the retum naught. Yaxley's case, Carth. 291, was “a commitment by the Secretary of State, under the stat. 35 Eliz., for refusing to answer whether he was a Jesuit, &c., and on a habeas corpus he prayed to be bailed. The exception to the commitment was, that the conclusion thereof, was there to remain until he shall be from thence discharged by due course of law, when the words of the statute are until he shall answer unto the questions;' and therefore the commitment ought to be special, according to the statute ; and the churchwardens of Northampton's case was cited and relied on; and for that objection the Court held the commitment ill.” Other cases might be cited to the same effect, such as Rex v. Hall, Cowp. 60. The foregoing cases are cases of discharge from commitment, on the ground of an illegality apparent on the face of the warrant. The two following cases, Baldwin and wife v. Blackmore, 1 Burr. 595, and Crepps v. Durden, Cowp. 640, establish that in such case, that is, of warrants illegal upon the face of them, for an excess of jurisdiction in the magistrate, trespass is maintainable against the committing magistrate; and this was held in the latter case, although the conviction had not been quashed. In Baldwin and wife v. Blackmore, a warrant to commit the wife, as an idle and disorderly person, for returning with her husband to the parish from whence removed, without a certificate, was holden to be void, and that trespass lay for the imprisonment under it. So, where the warrant ought to be to imprison for a month, and it is until discharged by due course of law. Crepps v. Durden, Cowp. 640, was a conviction in four penalties, for exercising his ordinary calling of a baker on a Sunday. As there can be but one offence on the same day, it was held an excess of jurisdiction, for which an action would lie before the convictions were quashed. There the question immediately before the Court was, whe

affidavit.

ther an objection could be made to the legality of a conviction before it was Fourthly, Deliquashed, and it was held that it might. Upon these authorities, and the vering up bouks, reason of the thing, we are obliged to pronounce that the commitment &c. made in pursuance of the said adjudication in this case, as well as the adjudication itself, in respect to the imprisonment, being, in this particular, a clear excess of jurisdiction, was not warranted by law, and that the imprisonment thereunder was a trespass in the committing magistrates, for which this action is maintainable : which we cannot but regret, as the facts of the case would have authorised a commitment, if the warrant had been framed in a manner conformable to the powers of the magistrates under the statute. The consequence is, that the rule nisi for setting aside the verdict must be discharged.

Rer v. James and others, 2 M. f. S. 321 ; 1 Bott, 331. A rule nisi was The Court of K. obtained in the last term for quashing an order of sessions, allowing the B:will not upon accounts of the overseers of the poor of the parish of Croydon, in the county order of sessions of Surrey, upon appeal against them by the defendants at the last Midsum- allowing over. mer sessions. The order of sessions was upon the face of it generally, allowing which is good the said accounts, and dismissing the appeal, and further ordering that the upon the face of appellants should pay to the overseers, 40s. costs. The defendants, in their it, go into the affidavit on which the rule was obtained, disclosed several grounds of objec- accounts upon tion to these accounts: 1st, that they contained charges of sums in gross as monthly payments, without stating the several items of expenditure which made up the gross amount, some of which items were stated to be for charges illegal or excessive; 2ndly, that they contained a charge for a salary to one of the overseers, &c. And now the rule coming on, Lord Ellenborough, C. J., interposed by enquiring if there was any objection to the order upon the face of it; for otherwise the Court would not go into the overseers' accounts upon affidavit. The sessions was the proper forum for deciding such matters; the time of the Court would otherwise be absorbed in taking parish accounts. The Attorney-General and Lawes, in support of the rule, admitted the inconvenience that would follow from entertaining motions to revise the overseers' accounts, if the practice were general; but urged, on the other hand, the great injustice that might be done if there was no relief against accounts so made up as the present, without specifying any particulars. And they referred to Rex v. Battel, a recent case, where they said the Court had granted relief against the overseers' accounts, upon a rule obtained upon affidavit that they contained a charge for an allowance paid to the overseer.—Lord Ellenborough, C. J., said, If there is likely to be a defect of justice, the remedy must be by application to the legislature; for the Court cannot enlarge the limits of its jurisdiction in order to supply a remedy; the sessions have jurisdiction over these matters; if, on the removal of the record by certiorari, it had appeared to be erroneous, this Court would then bare acted upon it. Rule discharged.

The Reporters presume the case of Rex v. Glyde (ante, 257), to be that alluded to in argument, in the above case, under the title of Rex v. Battel, which is printed by them in a note to the above case, and is stated to have been decided in Hilary term, 1813. The rule for the certiorari was obtained upon an affidavit as above stated, but the case, as it appears, was decided upon objections apparent on the face of the order.

counts.

(Fifthly)--Appeals relating to Overseers' Accounts. The 43 Eliz. c. 2, s. 6, enacts, that if any person shall find himself ag- Fifthly, Apgrieved by any act done by the said overseers or justices, he may appeal to peals relating to the general or quarter sessions, whose order therein shall bind all parties. overseers' ac.

And by 17 Geo. II. c. 38, s. 4, if any person shall have any material objection to such account, or any part thereof, he may, giving reasonable

Appeal against notice to the churchwardens and overseers, appeal to the next sessions; but if reasonable notice was not given, then they shall adjourn the appeal to must be to the the next sessions; and the Court may order and award to the party for next sessions. whom the appeal shall be determined, reasonable costs, as in cases of

the account,

Where it is pro

in a local act,

Fifthly, Of settlement by 8 and 9 W. III. c. 30. See the other part of this section, Appeals, dic.

ante, 140. Corporations, &c.

And by s. 5, in all corporations or franchises, which have not four justices, persons aggrieved may appeal, if they think fit, to the next county sessions. See 1 Geo. IV. c. 36; ante, 144, 145.

The decisions respecting appeals against poor rates will be found applicable in most cases when questions as to notice, the time of appealing, &c., arise upon appeals against overseers' accounts. See ante, 139 to 150.

It may be expedient to repeat in this place that if the management of the shall be first made parish poor be vested in the churchwardens, overseers, governors, and directo, and determin- tors, by a local act, which also gives an appeal to the body so constituted to ing cole by the govern any person aggrieved by any thing done under the act, and a subsequent

appeal to the quarter sessions against their determination, if he is dissatisfied that course must with it, this course of proceeding must be strictly pursued. Thus where a be followed,

parishioner objected to the payment of 1601. 18s. voted in vestry out of the pour rate, for services rendered by the vestry clerk, on the ground that it was illegal, and at a meeting of the governing body a resolution was regularly carried, that no further notice should be taken of the application against this allowance, and the complainant afterwards appealed to the quarter sessions; and upon their refusal to hear the appeal, a rule nisi for a mandamus to compel them to hear it was obtained in the Court of King's Bench. After cause had been shewn against the rule, Lord Tenterden, in delivering the judgment of the Court, after adverting to the facts that the governing body resolved to take no notice of the complainant's application for relief, said, “The proper course under these circumstances would have been to have applied to this Court for a mandamus to compel them to hear his appeal; if they had heard it, and come to a determination upon it, and he had been dissatisfied with that determination, he might then have appealed to the quarter sessions. The rule for a mandamus must be discharged.” Rex v. Justices of Kent, 9 B. g. C. 283.

The overseers of the poor are not so united and identified in their office appeal against his and duties, as to preclude one from appealing under 17 Geo. II. c. 38, s. 4,

against the accounts of the other. Upon a motion for a mandamus to the Justices of Gloucestershire, to hear an appeal against an overseer's accounts, it appeared that upon an appeal against the accounts, after the case had been shortly gone into, it was objected, on behalf of the overseer, that the appellant was his co-overseer, appointed with him contemporaneously, and answerable alike to the parish for the faithful discharge of the duties of the office; and that, therefore, the appellant being joint overseer with the respondent, he was, in effect, appealing against his own accounts, which was manifestly absurd and not sanctioned by anything to be found in the above, or any other statute on the subject; the sessions yielded to this objection, and dismissed the appeal with costs. Upon these facts the Court of K. B. granted a rule nisi for a mandamus : upon shewing cause it was contended, first, that the sessions had heard and determined the case, as they had examined a witness, quashed the appeal, and given costs to the respondent; and, although they might have come to a wrong conclusion, yet, as they had decided the question, the mandamus ought not to be granted.

But the Court said, that it was clear the justices had dismissed the appeal, not upon the merits, but because they thought they had no jurisdiction, which was a question of law; and if they were mistaken in that the mandamus ought to go. It was then contended, upon the same grounds as had been taken at the sessions, that one overseer could not appeal against the accounts of the other; that, although they were several individuals, their duties were not several, both having the same authority, and the same liabilities in the management of the poor. The Court, however, were of opinion that the rule for the mandamus onght to be made absolute, and observed, that in this case it appeared each overseer kept a separate account; and it was clear each overseer may act by himself, and make separate disbursements, against which the other would have a right to appeal. It might happen,

that one overseer might have grounds for appealing against

An overseer may

counts,

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