&c. 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 books, reason of the thing, we are obliged to pronounce that the commitment 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. Rex v. James and others, 2 M. & S. 321; 1 Bott, 331. A rule nisi was obtained in the last term for quashing an order of sessions, allowing the accounts of the overseers of the poor of the parish of Croydon, in the county of Surrey, upon appeal against them by the defendants at the last Midsummer sessions. The order of sessions was upon the face of it generally, allowing the said accounts, and dismissing the appeal, and further ordering that the appellants should pay to the overseers, 40s. costs. The defendants, in their affidavit on which the rule was obtained, disclosed several grounds of objection 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 have 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. (Fifthly)—Appeals relating to Overseers' Accounts. The 43 Eliz. c. 2, s. 6, enacts, that if any person shall find himself aggrieved by any act done by the said overseers or justices, he may appeal to the general or quarter sessions, whose order therein shall bind all parties. 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 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 the next sessions; and the Court may order and award to the party for whom the appeal shall be determined, reasonable costs, as in cases of The Court of K. B. will not, upen removal of an order of sessions allowing overwhich is good upon the face of it, go into the accounts upon affidavit. seers' accounts, merits of those Fifthly, Appeals relating to overseers' ac. counts. Appeal against the account, must be to the next sessions. Fifthly, Of Corporations, &c. Where it is provided that appeals shall be first made to, and determined by, the govern. ing body named in a local act, that course must be followed. An overseer may Co-overseer's ac counts. settlement by 8 and 9 W. III. c. 30. See the other part of this section, ante, 140. 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 parish poor be vested in the churchwardens, overseers, governors, and directors, by a local act, which also gives an appeal to the body so constituted to 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 with it, this course of proceeding must be strictly pursued. Thus where a parishioner objected to the payment of 160l. 18s. voted in vestry out of the poor 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. & 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 ought 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 the accounts of his colleague, which would be unknown to other persons. Besides, his being an overseer does not take away his right, as a parishioner, 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' accounts for the parish of Elmley Lovett, for the years 1814 and 1815, were allowed by two justices on the 31st March, 1815. Notice of appeal against the same was given for the sessions to be holden on the 23d of April, 1816, at which sessions an appeal was entered; but the Court refused to enter upon the merits, or to hear the appeal, on the ground that it came too late. And the question was, whether the appeal ought to have been to the general quarter sessions next after the allowance of the accounts? A rule nisi having been obtained for a mandamus to the justices to receive the appeal, Shutt, who shewed cause, contended that the 17 Geo. II. c. 38, s. 4, which 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 Rex 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 had 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. J. 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 Fifthly, Of Appeals, &c. Accounts must appear to have been allowed by the justices before the appeal. Churchwardens, &c., may appeal to quarter ses sions, against reductions made in their accounts. Power to adjourn. whose property is liable, and those who are bound to account, might be 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. 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 quashed, because it did not appear that the accounts had been before the 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. & 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 sessions. Where a rate was published on the 16th 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. The 50 Geo. III. c. 49, s. 2, Provides, "that if such churchwardens or overseers, or any of them, shall feel themselves, himself, or herself aggrieved by the disallowance or reduction of any such charges or payments, and be desirous 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 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 and overseers shall have the costs by them incurred upon any such appeal defrayed out of the poor rates of the parish or place; and the order of the general 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 construed to take away any power of appeal against any such account, by any 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 town or place corporate and city in Great Britain, or any two magistrates of such town or place corporate or city, being justice or justices of peace respectively, shall have the same authority by virtue of this act within the limits 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 town or place corporate, or city, where 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." final. 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 that all orders and proceedings of such sessions, and all orders and proceedings of such justices (subject to such appeal as aforesaid) under this act, shall be final and conclusive to all intents and purposes." Sect. 6 provides, "that nothing in this act contained shall extend or apply, or be construed to extend or apply to the accounts of any churchwarden or overseer of the poor in any parish or place where, by the provisions of any act or acts relating to the poor of such parish or place, or by the construction of 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 repeal any of the provisions or regulations contained in the said recited acts of the forty-third year of the reign of her late Majesty Queen Elizabeth, and of the seventeenth year of the reign of his late Majesty King George the Second, or either of them, other than and except only such provisions or regulations as are expressly mentioned in this act, and so far as the same are expressly amended or altered by this act." 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 disallowance 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. & A. 522. Rex v. The Justices of Dorsetshire, 15 East, 200; 1 Bott, Cont. 329; Casberd obtained a rule in Mich. T. last, calling upon the defendants to show cause why a writ of mandamus should not issue, commanding them to cause continuances to be entered to the then next general quarter sessions, upon the appeal of Charles Bowles, against the allowance of the account of William Goddard, as overseer of the poor of the parish of the Holy Trinity in Shaftesbury, and at such sessions to hear and determine the matter of the said appeal. This rule was obtained on the affidavit of Bowles, which stated the appointment of Goddard and Baker as Not to extend to churchwardens, &c., exempted from accounting under the recited acts. Nor to the city of Recited acts, un- it is hereby ex fected. Where overseers' accounts were the last day, that an effectual notice of appeal to could have been given, and it did the party objecting had notice of not allowed till the next sessions not appear when |