LETT the disjunctive, there is no need of going before two juf- Rex₺. BARTtices at all. FoUR THLY, The order must be made to all; for all constitute but one officer, and payment to one is payment to all; and as to the perfons to pay, they are all jointly required, and the payment by one is a difcharge of all, and therefore the order is proper upon them all. It is every day's practice to give judgment against all jointly. FIFTHLY, I agree they ought to have paid to the next fucceeding overfeers; but as they have not done their duty till the truft is determined, they ought to pay it to the next. SIXTHLY, It does not appear there is any parish stock befides what arifes from 43. Eliz. c. 2.; and the Court will not prefume there is.-LORD HARDWICKE, Chief Justice. All the exceptions but one have received answers, viz. that touching the jurifdiction of juftices at the feffions, as to the continuances; and I do not think that the justices are bound to make formal entries. of them. As to the holding of the former feffions, we are not to prefume it to be held at a wrong day; and it is well enough to fay, that it was done at the laft general quarter-feffions, and if you had any objection you might have removed the former order; it is like the cafe of exception to the recitals of original writs, which cannot be taken advantage of unlefs the original is returned by certiorari. As to the payment by and to all, it is well enough as to the fucceeding overfeers, that too is not amifs. As to the fixth exception, it is anfwered; but I am not satisfied as to the not going before two juftices at first: the words must be taken respectively and distributively, therefore it should be fhewn the matter had been originally before two juftices: all that is here faid is, that it is an appeal from the difbursements, and from the allowance thereof; but it does not appear where allowed, nor does the word "allowance" fufficiently fhew it to have been before two juftices, as MR. NOEL Contends.-PAGE, Juftice. Whenever an act gives an appeal, you cannot come to the feffions firft. The queftion is, therefore, Whether that is fupplied by the fingle word "allowance?" It may be an allowance by the parish: fo that it does not neceffarily import the allowance of two juftices, to whom you must go before you can go to the feffions.-LEE, Juftice. Ifhould be glad to look into 43. Eliz. c. 2. If going before two juftices is neceffary, then to appeal without going before them is ill; but it is not very clear with regard to the jurifdiction of the two juftices. There is a recital of an allowance; now MR. NOEL cafe (a) is of (a) Reg. v. an improper allowance, which is no allowance of the Hedges, Salk. juftices. Afterwards LORD HARDWICKE delivered the 533. Ante, pl. opinion 286. LETT. REX U. BART- opinion of the Court, that this matter ought to have come to the quarter-feffions by appeal from two juftices, and that the quarter-feflions cannot take it up originally. If Sec 2. Stra. 983. authority be given to two justices to do an act, and no appeal is given, then it may commence at feffions; but if an appeal he given, then it cannot be begun at feffions, Previous appli eation to truo on the 17. Gra.2. c. 38. $. C. 1. Black. Rep, 395, 291. Rexv. Whitear and Others, Mich. 3. Geo. 3. 3. Burr. 1365. An original order was made at the quarter-feffions Juices neceffary for the borough of Portsmouth, purporting to be an order made upon the appeal of the prefent overfeers of the parifh of Portsmouth, directing their predeceffars, the late overfeers, to pay over to the appellants, the prefent overfcers, the balance of their accounts, which accounts were fettled and balanced by the faid order of feffions. Exception was now taken to the jurifdiétion of the feffions to make an order upon the late overfeers to pay over money to their fucceffors by an original order in the first inftance, without any previous application having been made to two juftices, pursuant to the directions of the 45. Eliz, c. 2. f. 4. & 6. To this it was anfwered by the counfel who attempted to fupport the order, that this order was not made upon the 43. Eliz. c. 2. but upon the 17. Geo. 2. c. 38. f. 4. But to this it was replied, that the ftatute of 17. Geo. 2. c. 38. does not give power to apply to the sesfions per faltum, to make fuch an order as this; but that the previous application to two juftices remains as neceffary as before. THE COURT was of the fame opinion, and that the 17. Geo. 2. c. 38. made no alteration in this refpect, but had quite another view. The order was quashed. 17.Geo.2. c.38. the appeal from them must be to the next fef ress if heiore two juftices, un If overfoers ac- 292. Rex v. Juices of Berkshire, Hilary, 10. Geo. 3counts are paf- Rule for a mandamus to the juftices of Berks, to proceed fed before ne in an appeal against the accounts of A. B. late overfeers uftice, by the of the parifh of C. The appeal was by Aldridge the prefent overfeer, for himself and the reft of the parish. The queftion upon fhewing caufe was, Whether an appeal from an overfeer's account, verified and allowed according to the directions of the 17. Geo. 2. c. 38, muft be to the next feffions after the allowance, or may be to any 8, 2. the appeal fubfequent feffions? But it appeared from the affidavits, may be to fef that the late overfeer A. B. had been very fev rely treated fous at any dif- by the juftice upon whofe affidavit this re had been sance of time. granted: he had been committed by him, for not accounting according to the ftatute; and when it appeared that his accounts had been allowed by another juftice before der the 43. Eliz. TICES Of BERKSHIRE. this commitment, an appeal was lodged, &c.-MR. WAL- REX v. JusLACE and MR. VANSITTART argued, that the juftices had rightly rejected the appeal, and that the 17. Ges. 2. c. 38. 1.4. which limits the time for appealing to the next general or quarter-feffions, and gives a power to the juftices of awarding costs to either party, had to this purpose repealed the 43. Eliz. c. 2, notwithstanding both the ftatutes are in the affirmative; and that Dr. Burn, from that circumstance, concludes, that they may well stand together, and an appeal may be upon either (a): for the (a) Vide ante 17. Geo, 2. c. 38 was profeffedly made, as the title of it ch. 2. fect. 9. imports, to remedy fome defects in the 43. Eliz. c. 2. One in notis. great defect was, that however vexatious an appeal might be, the feffions had no power to punish the litigious party, by awarding cofts against him; and this mifchief will remain altogether unremedied, if appeals may still be made upon the 43. Eliz. c. 2.; for whenever a party intends to be vexatious, and to harrafs his adverfary by a groundlefs appeal, he will let one feffions pafs, and then prefer his appeal upon the 43. Eliz. c. 2. and by that means avoid the payment of cofts. In the cafe of the Juftices of Suf fex, 15. Geo. 2. the Court was of opinion, that it might be highly inconvenient to leave the ftatute of appealing unlimited, and rather inclined to think, that by analogy to other cafes the appeal ought to be to the next feffions, though the words of the ftatute were general; and the legiflature, two years afterwards, were of the fame opinion, and expressly confined the appeal to the next fefhons. As the 17. Geo. 2. c. 38. was made to remedy fome defects in the 43. Eliz. c. 2, wherever a method is preferibed by that ftatute different from that prefcribed by this in the fame matter, it is the fame thing as if the le giflature had faid, the method prescribed by the 43. Eliz.c.2. being defective, the following fhall, in the ftead thereof, for the future take place; which would clearly have been a repeal of the former ftatute in the particular confidered. Befides, the 43. Eliz. c. 2. f. 2. having enacted, "that the overfeers hall, within four days after other overseers "are nominated, make and deliver to two juftices a true "account, &c." this ftatute, 17. Geo. 2. c. 38. f. 1. alters this provifion, and enacts, "That the overfeers fhall, "within fourteen days after others are appointed, deliver "over to their fucceffors a true account, verified by oath "before one juftice, &c. ;" and then by f. 4. it is enacted, "That if any perfon have any material objection to fuch account as aforefaid, it shall be lawful for fuch perfon "to appeal to the next feffions ;" and " fuch account as "aforefaid" muft mean an account verified and allowed according Rax. Jua- according to the directions of this ftatute. The account TICIS of in question was fo verified and allowed; and therefore BERKSHIRE the appeal ought to have been to the next feflions. This was no account under the 43. Eliz. c. 2.; and therefore the overfeer could make no defence to an appeal upon that ftatute (if fuch an appeal could be), although he had purfued with the minuteft exactnefs all the directions of the 17. Geo. 2. c. 38.-MR. SOLICITOR GENERAL and MR, COTTON, è contra. The words of 43. Eliz. c. 2. f. 6. are general and clear, and import nothing like appeals to the next feffions, after the party appealing fhall be aggrieved, nor do they on the fcore of convenience require any fuch conftruction, for all the inconveniences of deferring an appeal fall on the fide of the appellant: the longer his grievances are unredreffed, the more difficult it will be to obtain redrefs; the difficulties will encreafe upon the appellant by delay, and therefore every person thinking himfelf aggrieved, will appeal as foon as he can. But on the other hand, fubftantial injuftice is often done, by limiting appeals to the next feffions after the caufe of appeal arifes, as in the prefent cafe. The parith appealing did not know that the accounts were allowed, until the time for appealing was elapfed, if the doctrine contended for on the other fide be true. Had this matter therefore stood only upon the appeal, it would have been in time, and the rule must have been made abfolute. But it is faid, that the ftatute 17. Geo. 2. c. 38. has repealed this claufe in the 43. Eliz. c 2. That is not fo; for it is a general rule, that an affirmative law is not repealed by a fubfequent affirmative, and thefe ftatutes are both in the affirmative, and may ftand together, and have also been (a) See 3 Burn's ever fo understood (a). Had the legislature intended to Juftice, p. 332. repeal this claufe in the 43. Eliz. c. 2. as the fubject was and ante, ch. 2. before them, they could have done it by an exprefs clause fect, 9. pl. 218. for the purpofe. There are neither any negative words in the 17. Geo. 2. c. 38. nor any words of fubftitution, as inftead of the method prefcribed, &c. which would have thewn an intention to repeal the former claufe. Indeed it feems, the only defect which the legislature intended to remedy refpected the cofts; and then it was reafonable not to give the appellant a chance for cofts, unless he had profecuted his appeal with due diligence. It has been objected, that when a man intends to bring a vexatious appeal, he will let one feffions pafs before he lodges his appeal, in order to avoid cofts. The objection proceeds upon this foundation, that a man will bring an appeal, knowing at the time he prefers it that it is groundlefs and vexatious. There is little room to fear however, as moft men are partial to their own interefts, that they will not i think they are injured before they complain; and for this Rex. Tus TICES OF BERKSHIRE. 293. Rex v. Micklefield, Hilary Term. 25. Geo. 3. EDI- Objection may TOR'S MSS.-The feffions, on appeal, quafhed a poor's be made to overrate affeffed for the purpofe of reimburfing overfeers for feers accounts before appeal the expence of law proceedings. On a cafe referved for the opinion of the court of king's bench a preliminary objection was made, that this was not the proper ftage grieved as foon (a) See the cafes of Rex v. Coode, ente, page 236. pl. 240. Rex v. Micklefield, ante, page 239. pl. 241. and Rex v. Atkins, ante, page 247. pl. 245, where it is now fettled, that za appeal against a poor's rate must be to the feffions next after the pub for the inhabi tants are ag as the money is fication of the rate; and as the appeal affilled. against an allowance of overfeer, account is given by the fame claufes of . the two acts, the EDITOR prefumes the decifion on the former will govern the latter fubje&t. for |