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the accounts of his colleague, which would be unknown to other persons. Fifthly, Of Besides, his being an overseer does not take away his right, as a parishioner, Appeals, 8c. to appeal against the accounts of the other. The words of the act fully bear out this interpretation; and it is obviously for the benefit and protection of parishes that it should be so acted upon whenever a proper occasion presents itself. Rex v. The Justices of Gloucestershire, T. T. 1830; Steer's Par. L. 622.
Rex v. The Justices of Worcestershire, 5 M. & S. 457. The overseers' An appeal against accounts for the parish of Elmley Lovett, for the years 1814 and 1815, were counts must be to allowed by two justices on the 31st March, 1815. Notice of appeal against the next general the same was given for the sessions to be holden on the 23d of April, 1816, quarter sessions at which sessions an appeal was entered; but the Court refused to enter ance of the acupon the merits, or to hear the appeal, on the ground that it came too late. counts. The 17 And the question was, whether the appeal ought to have been to the general in this respect quarter sessions next after the allowance of the accounts? A rule nisi limits the right of having been obtained for a mandamus to the justices to receive the appeal, appeal, givengeShutt, who shewed cause, contended that the 17 Geo. II. c. 38, s. 4, which Eliz. c. 2, s. 6. required that the appeal should be made to the next sessions, was a virtual repeal of the 43 Eliz. c. 2, s. 6, which gave an appeal generally. And he said, that although regularly an affirmative statute shall not repeal a precedent affirmative law, yet it is otherwise if the subsequent statute contain matter contrary to the former. (Dr. Foster's case, 11 Rep. 63 a.) As, if a former act says that a juror upon such a trial shall have 201. a year, and a new statute enacts that he shall have 20 marks; here the latter statute, though it doth not express, yet it necessarily implies a negative, and virtually repeals the former. (Jenk. 2, 73.) So, though the 43 Eliz. has imposed no limitation as to the time of appealing, yet the 17 Geo. II. enacts that the appeal should be to the next general or quarter sessions. This latter act, therefore, hath abrogated the former, because they are contrary in matter. And, therefore, it has been adjudged, that an appeal against a poor-rate must, in all cases, be to the next sessions. (Rex v. Coode, Cald. 464; 1 Bott, 290; Rex v. Micklefield, Cald. 507; 1 Bott, 291; Rex v. Atkins, 4 T. R. 12; Rex v. Just. of London, 15 East, 632.) It would be a strange construction, then, of these acts, if the very same words in the same two clauses were to bear a different sense with respect to overseers’ accounts, from that which has been given to them with respect to poor rates. The case of Rer v. Earl of Ashburnham (2 Nol. P. L. 462, notis) is the only authority for such a construction, but that has never yet been recognised.Peake and Puller, contra, relied principally upon Rex v. Lord Ashburnham, giving as a reason why its authority could not have been recognised, that it har but lately appeared in print. And they said, that Rex v. Coode regarded only appeals against a poor rate; whereas the other was an express decision upon the point: and in Rex v. Justices of Dorsetshire, (15 East, 200,) the Court considered it as by no means settled, that the 17 Geo. II. had, in this respect, repealed the 43 Eliz. Although it may be difficult to make a distinction between the two cases, yet it may be observed, that to limit an appeal to the next sessions against overseers' accounts, where, perhaps, the matters of account are voluminous and complicated, might be productive of great inconvenience; for it might be impossible, within so short a period, to unravel the account and detect fraud.—Lord Ellenborough, C. ). In Rex v. Coode, the case of Rex v. Lord Ashburnham was brought under the consideration of the Court, and yet they came to a decision directly contrary to it; and where good sense and convenience are all on one side, one is almost led to regret that Serjt. Kerby's note of that case ever got into print. The plain meaning of the 17 Geo. II., in enacting “ that it shall be lawful to appeal to the next sessions,” where, by a pre-existing act, the appeal was without limitation of time, is to negative the power of appealing to any but the next. In Rex v. Coode, Lord Mansfield was of opinion that the 17 Geo. II. did confine the appeal, and the Court agreed that they must decide that the statute had repealed the 43 Eliz. in this particular. I feel no inclination to disturb that decision, considering how much the public convenience is in its favour. I know not to what difficulties persons
appear to have
Fifthly, Of whose property is liable, and those who are bound to account, might be Appeals, &c.
reduced, if we were to adopt a different construction. With respect to the objection, that the time may be too short to prepare for the appeal, if, upon any occasion, this should be made appear, the appeal may be lodged, and adjourned on a proper application. - Bayley, J. I think that the affirmative words of the 17 Geo. II. must be taken to imply a negative. If the statute had been silent as to the time of appeal, the 43 Eliz. would have attached; and it would have been open to the party to appeal at any time. But as the statute empowers the party to appeal to the next sessions, I think it virtually implies that he must appeal to those sessions, and to no other.Abbott, J. I agree that this rule must be discharged. The construction put on these statutes by my Lord and my brother Bayley, appears to be the true construction, conformably to the rule for the construction of acts of parlialiament so well laid down in the old cases, and adopted in Rex v. Coode.
Holroyd, J., absent. Rule discharged. Accounts must Rex v. Bartlett, 2 Str. 983 ; 1 Bott, 325 ; 2 Nol. P. L. 468. An order
made at the sessions relating to accounts of overseers was moved to be been allowed by the justices be. quashed, because it did not appear that the accounts had been before the fore the appeal justices out of sessions, and they cannot come per saltum to the sessions. On
the other side it was said, that it appeared there was an allowance, for the appeal is said to be against the disbursements and the allowance thereof, which the Court will presume was regular.—But by the Court: It doth not follow that this was an allowance by two justices, for the parish might do it; and therefore, for want of jurisdiction, this order must be quashed.
Rex v. Justices of Wilts, 8 B. & C. 385; 2 M.J. R. 401; 1 M. & R. Mag. Ca. 438. The 17 Geo. II. c. 38, s. 4, does not make it imperative on the justices to hear and determine an appeal at the sessions next following the publication of the rate, (or upon the same principle, next following the allowance of overseer's accounts) but they may adjourn it to the next sessious. Where a rate was published on the i6th of September, and the appeal was entered at the Michaelmas sessions, but the defendant did not give notice of his intention to try his appeal at those sessions, and the justices adjourned it as a matter of course to the Epiphany sessions, according to the usual practice, and the appellant gave notice of his intention to try his appeal at the Epiphany sessions, when the justices refused to hear it, on the ground that it ought to have been heard and determined at the preceding sessions,
this Court granted a mandamus to compel them to hear the appeal. Churchwardens, The 50 Geo. III. c. 49, s. 2, Provides, “ that if such churchwardens or &c., may appeal to quarter ses.
overseers, or any of them, shall feel themselves, himself, or herself aggrieved by sions, against re. the disallowance or reduction of any such charges or payments, and be desirous inctions made in of appealing against any order in that respect made by any such two or more
justices of the
peace, it shall and may be lawful for him, her, or them, to enter an appeal against such order, at the next general or quarter sessions to be holden next after the tenth day for the making of such order, he, she, or they having first paid or delivered over to the succeeding churchwardens and overseers such sum and sums of money, goods, chattels, and other things, as on the face of the account which shall have been submitted by him, her, or them, to such two or more justices in manner aforesaid shall appear and be admitted to be due and owing from him, her, or them, or remaining in his, her, or their hands, and having also entered into a recognizance before one or more such justice or justices with two sufficient securities to be approved of by such justice or justices before whom such recognizance shall be acknowledged, in not less than double the sum or value in dispute, to enter such appeal at such next general or quarter sessions, and abide by such order as shall at that or any subsequent sessions be made on such appeal
, and it shall and may be lawful for the justices of the peace assembled at such general or quarter sessions, on proof of the matters aforesaid, and on the production of such recognizance and proof
of the same having been duly entered into, to adjourn such appeal if they shall journ.
see occasion, or to hear the same, and to examine into and to confirm or reverse such disallowance or reduction in the whole or in part, as to such justices at such sessions shall seem just; and in any such case the said justices at such sessions may (if they shall think fit) make an order that such churchwardens
Power to ad
and overseers shall have the costs by them incurred upon any such appeal de- Fifthly, Of frayed out of the poor rates of the parish or place ; and the order of the
Appeuis, &c. ral quarter sessions in the execution of the powers given to them by this act shall be binding on all parties.".
Sect. 3 provides, “ that nothing herein contained shall take away or be Appeal by any construed to take away any power of appeal against any such account, by any taken away. other person entitled to appeal against the same by virtue of the said recited acts or either of them.”
Sect. 4 enacts, “ That every mayor, bailiff, or other head officer of every Magistrates of toun or place corporate and city in Great Britain, or any two magistrates corporations shall of such town or place corporate or city, being justice or justices of peace jurisdiction as respectirely, shall have the same authority by virtue of this act within the two or more juslimits and precincts of their jurisdictions as is by this act limited, prescribed, or appointed to justices of the peace of the county, or any two or more of them for the execution of this act; subject nevertheless to an appeal to the general or quarter sessions in every such town or place corporate or city respectively as aforesaid : Provided always, that in any toun or place corporate, or city, ühere there are not four justices of the peace, it shall and may be lawful for any person or persons, where an appeal is given by this act, to appeal, if he or they shall think fit, to the next general or quarter sessions of the peace for the county, riding, or division wherein such town or place corporate or city is situate.”
Sect. 5 enacts, “ that no certiorari shall be granted to remove any order or Proceedings of proceeding of any general or quarter sessions, or of any justices, made or had quarter sessions under this act, into any superior court of record : but ihat all orders and proceedings of such sessions, and all orders and proceedings of such justices (subject to such a peal as aforesaid) under this act, shall be final and conclusive to all intents and purposes.”
Sect. 6 prorides, “ that nothing in this act contained shall extend or apply, Not to extend to or be construed to extend or apply to the accounts of any churchwarden or
&c., exempted overseer of the poor in any parish or place where, by the provisions of any act from accounting or acts relating to the poor of such parish or place, or by the construction of under the recited any such act or acts, such churchwardens and overseers are exempted from the rendering the accounts required by the herein-before recited acts of the 43d year of the reign of her late Majesty Queen Elizabeth, and of the 17th year of the reign of his late Majesty King George the Second, or either of them; any thing herein-before contained to the contrary notwithstanding : Provided also, that nothing in this act contained shall extend or be construed to extend to the city of London.
Sect. 7 provides also, “ that nothing in this act contained shall alter or Nor to the city of repeal any of the provisions or regulations contained in the said recited London. acts of the forty-third year of the reign of her late Majesty Queen Elizabeth, Recited acts, unand of the seventeenth year of the reign of his late Majesty King George less unless where the Second, or either of them, other than and except only such provisions pressly mentionor regulations as are expressly mentioned in this act, and so far as the ed, not to be afsame are expressly amended or altered by this act.”
fected. It will be perceived, that s. 5, supra, prevents the orders and proceedings of justices from being removed by certiorari into the King's Bench, and makes the decision of the sessions final ; but this only applies to appeals brought by churchwardens and overseers against the disaslowance of any items in their accounts by the magistrates ; leaving appeals by other persons as they stood under the prior act, 17 Geo. II. c. 38, s. 4. Rex v. Bird and others, 2 B. f. A. 522.
Rer v. The Justices of Dorsetshire, 15 East, 200; 1 Bott, Cont. 329; Where overseers' Casberd obtained a rule in Mich. T. last, calling upon the defendants accounts were to show cause why a writ of mandamus should not issue, commanding the last day, that them to cause continuances to be entered to the then next general quarter an effectual nosessions, upon the appeal of Charles Bowles, against the allowance of tice of appeal to the account of William Goddard, as overseer of the poor of the parish could have been of the Holy Trinity in Shaftesbury, and at such sessions to hear and de- given, and it did termine the matter of the said appeal. This rule was obtained on the the party objectaffidavit of Bowles, which stated the appointment of Goddard and Baker as ing had notice of
Fifthly, Of overseers in 1810 ; that soon after the 7th of May, 1811, when they ceased Appeals, &c. to be overseers, the account of Goddard's receipts and payments as overseer,
was submitted to the magistrates of the borough of Shaftesbury at their such allowance : Held, that a no
special sessions holden for the purpose, for their allowance of the same, tice of appeal to
when Boules objected to certain items in that account, and stated, that if the next subse. they were allowed, he should appeal against the allowance; and thereupon quent sessions for which an ef
the justices refused the allowance of the said account, but did not strike fectual notice of out the items objected to, alleging that the stat. 50 Geo. III. c. 49, was appeal could be given, was good.
pot imperative upon them, but only authorised them to examine the accounts of overseers if they thought proper. That on the 8th of July last, and not before, the said account was verified on the oath of Goddard before two magistrates of the borough, and by them allowed ; and that the said 8th of July was the last day permitted by the practice of the sessions for giving notice of appeals to the then next sessions, which were holden in the same month of July; and that the items objected to still remaining in the account, Bowles gave notice of appeal against such account and allowance to the next subsequent sessions holden on the 8th of October, at which sessions, the justices conceiving the deponent ought to have appealed at the former sessions, dismissed the appeal on that account. After hearing Pell, Serj., against, and Cusberd in support of the rule, the Court took time to look into the case of Rex v. Lord Ashburnham, 2 Nol. P. L. 462; and afterwards Lord Ellenborough, C. J., delivered their opinion.—It seems to the Court that in every view of the case the mandamus should go, whether this be a proceeding under the 43 Eliz. or under the 17 Geo. II.; for supposing it to be under the 17 Geo. II., and supposing that statute in this respect to have repealed the 43 Eliz., (which from the cases cited seems by no means to be settled,) still under the circumstances of this case, we think the July sessions could not be considered the next sessions for the purpose of appealing ; for the allowance by the justices was on the 8th of July, the last day when any effectual notice of appeal could have been given; and it does not appear when the appellant had any notice of such allowance; and the transaction seems
to carry with it marks of design to defeat the appeal.-Mandamus granted. The justices may Rex v. Thackwell, 4 B. f. C. 62; 6 D. f. R. 61; 3 D. f. R. Mag. Ca. respite the ap
337. In this case the overseers of Monmouth went out of office on the 25th peal, although the respondents do March. Their accounts were allowed by three justices on the 27th. On not complain of the 7th April the next quarter sessions were held at Usk, thirteen miles from want of sufficient notice, and object Monmouth. On the same day, at two o'clock, when it was too late to enter to the delay. an appeal, they delivered their accounts allowed as aforesaid to their suc
cessors. At the following (Midsummer) sessions an appeal against the allowance of the accounts was entered, and respited, although the respite was objected to by the respondents; and at the Michaelmas sessions the order for the allowance was quashed. The order of sessions quashing the allowance was removed by certiorari into the King's Bench. And it was objected that as the words of the 17 Geo. II. c. 38, s. 4, were, " that if it shall appear to the said justices that reasonable notice was not given, then they shall adjourn the said appeal to the next sessions,” it was plain that, supposing the appeal to the Midsummer sessions to be in time, still the justices had no power to adjourn it: that this power is limited to cases where reasonable notice has not been given; but that in this case, so far from objecting to the insufficiency of the notice, the respondents objected to the adjournment of the appeal. -Abbott, C. J. It is quite clear that, under the circumstances of this case, the parties were not bound to appeal at the Easter sessions, and at the Midsummer, it was for the justices and not for us to decide whether it would be
proper to respite the appeal to Michaelmas. Order of sessions confirmed. Inhabitants not By stat. 54 Geo. III. c. 170, s. 9. No inhabitant or person rated or to be incompetent liable to be rated to any rates or cesses of any district, parish, township, or witnesses in Cee hamlet, or wholly or in part maintained or supported thereby, or executing
or holding any office thereof or therein, shall, before any court or person or against, their
persons whatsoever, be deemed and taken to be by reason thereof an incomparishes.
petent witness for or against such district, parish, township, or hamlet, in any matter relating to such rates or cesses; any law, usage, statute, or custom to the contrary in anywise notwithstanding.
half of, or
fied by name in
Notice of Appeal.
appeals, &c. The 41 Geo. III. c. 23, s. 4, (which see, ante, 141,) prescribes that the notice
Notice of appeal shall be in writing, and shall specify the particular causes or grounds of
(a) appeal. The following decisions have taken place upon this enactment.
Where the notice A notice of appeal against the allowance of overseers' accounts, which is insufficient. merely general, stating that the different items, enumerating all of them, will be objected to, without stating for what cause or reason any one of them will be objected to, is clearly insufficient. And where the sessions overruled this preliminary objection, and upon hearing the appeal made an order disallowing the accounts, the Court of King's Bench upon the case reserved quashed this order, on the ground that the notice was not sufficient under the 41 Geo. III. c. 23, s. 4. Rex v. Mayall and others, 3 D. f. R. 383; and 2 D. & R. Mag. Ca. 88.
Rér. v. Joseph Sheard and another, overseers of Soothill, 2 B. &. C. 856 ; A notice of appeal 4 D. J. R. 480 ; 2 D. f. R. Mag. Ca. 261. Case: The appellant was a againstoverseers'
accounts, stated rated inhabitant of the township of Soothill, and having, at the October
that the appellant sessions, 1823, entered an appeal against the accounts of the respondents, on objected to cer. the 2d of January, 1824, served the following notice upon the respondents. taimepesifiedmayn This notice stated, that the appellant, at the last adjourned quarter sessions, the accounts to had entered his appeal against the accounts of Joseph Sheard and Thomas have been made Tong, overseers of the poor of the township of Soothill, from the month of
to persons speci. April, 1822, to the month of April, 1823, and that the appellant would ob- the notice: Held, ject to thirty-five items or charges of payments in the accounts specified in that the notice the notice. It then set out the names of the persons on whose account the it did not state payments were made, the sums paid, and, in some instances, the purposes the cause and for which they were made. It then proceeded to state that the appellant ground of appeal. would insist upon the appeal that all these items ought to be struck out of some days before the accounts and disallowed. The counsel for the respondents objected to the appeal was the hearing of the appeal, on the ground that the particular causes and admit that the grounds of appeal against the items contained in the said notice were not sums objected to specified and stated in the said notice, as directed and required by 41 Geo. were paid to the
: III. c. 23, s. 4. On the 14th day of January, 1824, the day before the ap- Held, that this peal came on to be heard, the attorney for the respondents and the attorney was not any for the appellant entered into the following admissions :-“We do agree to regularity in the admit that all the payments charged in the accounts of the respondents to notice. which the appellant objects, were actually made to or for the use of the several persons to whom the same are charged to have been paid, and that the several sums charged in such accounts to have been paid to three several persons (named in the notice of appeal) respectively, were for debts contracted by the overseers of the poor of the township of Soothill, in one or more years previous to the year in which the respondents were overseers, and were not contracted by the respondents for the service of their current year, and the respondents undertake to produce upon the hearing of the appeal the original accounts, and vouchers regarding the items and sums of money objected to by the appellant. The court of quarter sessions, without expressing any opinion as to the validity of the notice, considered the admissions as a complete waiver of the objections to it, and entered into the merits of the said appeal. Blackburn having been heard in support of the order of sessions, and Alderson and Greenwood contra, Bayley, J., on a subsequent day, delivered the judgment of the Court. “ The 41 Geo. III. c. 23, requires one of two things, either notice in writing, stating and specifying the particular causes or grounds of appeal ; or, secondly, consent by the overseers, to be signified by them or their attorney in open court, that the sessions may proceed, though there has been no proper notice. The notice in writing is to be signed by the party giving it, or his attorney, and to be left at the place of abode of the officers; and the sessions are not to examine into any other cause or ground of appeal than those which the notice specifies. Two questions therefore arise : Has there been such a
(a) See Form of Notice of Appeal against Overseers' Accounts, post, Appendix.