(4) Mr. Justice Willes, for the appellants to make their oppofition, but that they fhould have waived and appealed against the overfeers' accounts-THE COURT (a) agreed the objection might have been taken to the overfeers' accounts, but that it was alfo proper now, for that the inhabitants were aggrieved as foon as the money was improperly affeffed upon them, without waiting till it was raifed and exLORD MANS- pended. But the order of feffions was quafhed, because FIELD abfent. the appeal was not to the next feffions fubfequent to the () Vide this publication of the rate (b).` point, ante, page 239. pl. 241, IV. Of the payment of the balance. Juftices may 294. The Cafe of the Borough of Banbury, Mich. 2. Jac. 2. order the over. Skinner, 258.-There are four adjacent towns within the feer to make a parish of Banbury, and there is an overfeer within each. diftribution. The justices who take the overfeers may town, and an overfcer alfo within the borough; they all join in one account, and there is but one rate made for all the parish, but the overfeers of each particular town collect and pay the money within fuch town. A perfon who is tenant of lands in one of thefe towns lives in the borough, and is affeffed by the overfeer of the borough for lands within the town, and paid to the overfeer of the borough, and the like is done in the other towns; fo that the overfeer of the borough had a furplufage for the poor within the borough, and the overfeers of the towns wanted money for the poor within the towns, though the poor within the towns were lefs than the poor within the borough. And upon this the juftices ordered that there fhould be a diftribution made; and this order being removed was confirmed, this cafe being held not within the ftatute 13. & 14. Car. 2. c. 12. 295. Rex v. Churchwardens of Topfham, Hilary, 10.Will.3. 2. Salk. 484-Three juftices took the account of the accounts of the churchwarden, &c. of Topfham for the year 1697, and admake an order judged that fixty-nine pounds was thereupon due from for them to pay them to the faid parish, for the re-payment whereof to the balance to the fucceeding overfeers for the year 1698 the justices the fucceeding made an order; to which it was objected, that the juftices have no power to make fuch order, but only to iffue warrants to diftrain. But THE COURT held the order to be well made. overfeers. If overfeers have laid out their own 296. Tarney's Cafe. Hilary, 2. Ann. Ld. Raym. 1011. -Tawney, being overfeer of the poor, laid out his own money upon the maintenance of the poor, they may, previously to their going out of office, make a rate for the relief of the poor, and reimburse themfclves out of it; but cannot make a rate profeffedly to reimburse themfelves, nor can a rate be made to reimburse them after they arewut of office. money CASE. money in their relief, and being turned out of his office TAWNEY'S before the end of his year, obtained a mandamus directed to the churchwardens, &c. to reimburfe him. Upon the return being made, it was argued, that there could be no fuch charge or command either by the 43. Eliz. c. 2. or at common law.-HOLT, Chief fuftice: The itatute 43. Eliz. c. 2. directs a method for the relief of the poor, by way of rate made by the officers with confent of the parishioners, and Tawney has ditburfed his money without any rate; but he cannot difburfe what money he thinks fit. The ftatute never intended to give the overfeers fuch an authority, for then they might difpofe of the parith money as they pleafe. If new poor come into a parish after a fate made, the parishioners must maks a new rate to fupply them. The juftices have a fuperintendency by the act as to poor's tates, and the method appointed by the act mult be pursued. The poor's rate must be made for relief of the poor, and not to reim burfe overfeers; though, if they have laid out money be fore, they may reimburse themselves out of the money levied upon fuch rate: it is not material whether the money be difburfed before or after a rate is made. If a rate be made, and accidents happen which raife the ne ceffary fum higher, no doubt but the overfeers may dif burfe fo much as the rate falls fhort, and afterwards reimburfe themselves out of a rate made for the relief of the poor; and they muft not be their own judges in that cafe, but ought to apply to the juftices, who will certainly confirm fuch rate. Tawney fhould have made fuch a rate while he continued in his office, and if the juftices had refused to allow it, a mandamus fhould have been iffued against them. Tawney must bring an action against thofe who turned him out of his office. There is no neceflity that an overfeer fhould pay money out of his pocket, for the churchwardens and overfeers, with the confirmation of the juftices, may order a fum of money to be levied for the maintenance of the poor without the concurrence of the parish (and may levy the money by diftrefs) (a). He (4) 6. Mod. P Thould have made a rate during his own time; he laid out his money at his own peril.-The writ was quashed. out of office. 297. Reg. v. Ware, Mich. Term, 11. Ann. Foley, 10-IT Overfeers canno WAS RESOLVED, that the juftices, or the feffions, have not be reimbursed authority to order the parish to reimburfe the overfeors after they are after they are out of office (two years in the prefent cafe), s. c. peit. pl. because otherwife a perfon who comes into a parish after 198. the overfeers year is expired, might be charged to the Expences of the year, 298. Rex Overfeers re- the balance not 298. Reg. v. Turner, Eafter, 9. Ann. Vin. Abr. title Poor, 418.-If accounts are adjusted, and the overfeers refuse to the balance, they cannot be committed immediately, but a warrant must iffue to diftrain upon them, and upon the return thereof there may be a commitment; and fo it was determined in Walrend's Cafe, before LORD CHIEF (a) Ante, page 260. pl. 274. JUSTICE KING, at Devon aflizes, 1719 (a). immediately. by the executor 66 of The feffion, on 299. Reg. v. Ware, Mich. 11. Ann. MSS.-A copy an appeal made the fpecial orders and rule of court in this cafe. At the of a deceafed Epiphany feffions for Hertfordshire in 1711 an order was overfeer, ftating made in these words: "WHEREAS at the laft general an omision in quarter feffions of the peace holden for this county on the accounts of "Monday in the first week after the Feast of St. Michael "the Archangel, viz. on the first day of October laft paft, "before Richard Helder, Richard Gouldstone, efquires, and "others her majefty's juftices of the peace for this county, the teftator, cannot order the fucceeding overfeer to pay the fum fo omitted, although found to be due, and confented to be paid by the parish. 66 (amongst other things) IT WAS ORDERED by this court "in manner and form as follows, tiz. Upon complaint "made to this court by Thomas Pettitt, of Ware, within "this county, bargemafter, fole executor of Sufan Town, "late of Ware aforefaid, widow, deceafed, who was the "late wife and fole executrix of Thomas Town, late of Ware S. C. 10. Mod." aforefaid, likewife deceased, that the faid Thomas Town "was in his lifetime legally nominated and appointed one "of the overfeers of the poor for the faid parish of Ware: "that he executed the office for one whole year: that in "execution thereof he the faid Thomas Town laid out, 104. S. C. Sett, and S. C. Foley, 10. difburfed, expended, or was otherwife out of pocket, "the fun of fixteen pounds fix thillings and ten-pence "more than he ever had or received from the faid parish : "that the faid fixteen pounds fix fhillings and ten-pence was never paid or fatisfied either to the faid Thomas "Town or Sufan his faid late wife and executrix in their refpective lifetimes, or to the faid Thomas Pettitt fince "their deaths, although the fame hath often been made fully appear to be fairly and justly due, and the fame "allowed of, ordered, and promifed to be paid by the in"habitants of the faid parish of Ware at feveral veftries "held for the faid parish and otherwife: and that he the "faid Thomas Pettitt cannot get the faid money of the pa"rishioners of the faid parish of Ware, although he hath "often applied himfelf to them for it. Now, UPON THE "PRAYER of the faid Thomas Pettitt for relief in the before"mentioned premifes, this court doth therefore order, that "the faid Thomas Pettitt, and the churchwardens and "overfeers of the poor for the faid parish of Ware, do 66 forth "forthwith attend Philip Boteler, Edmund Field, and REG..WA2. "William Berners, efquires, three of her majefty's juftices "of the peace for this county, with all accounts, papers, " and evidences relating to the said debt of fixteen pounds "fix fhillings and tenpence; which faid justices are hereby "defired to hear all parties concerning the faid debt, and "to examine into and ftate the fame, and to report the "fame in writing unto this court at the next general "quarter feffions of the peace to be holden for this county, "at which time all the parties concerned are hereby or"dered to attend, to the end that this court may then "make fuch further order relating to the premises as fhall "be thought fit. AND WHEREAS the faid William Berners, Philip Boteler, and Edmund Field, efquires, the "three juftices of the peace named in the said order, did "now, in pursuance of the fame, deliver into this court "their report in writing, under their hands, writ on the "faid order, in manner and form following, viz. Pur"fuant to the above order, we the justices in that behalf "therein named have met, and all parties attending with "their accounts and papers, and we having infpected the "fame, and examined several witneffes on oath in relation "to the matters referred, do find, that Mr. Thomas Town, "in the order named, and his partners, overseers of the poor of Ware, for the year one thousand fix hundred "ninety and feven, at a veftry held for that parifh the 30th "day of May 1698, had their accounts paffed, allowed, "and figned by the then minifter and many other of the principal inhabitants of the faid parish: that the ba"lance of their faid accounts was duly anfwered to the parish, fave as to the fum of 41. 10s. 1d. which neither "fully appeared to have been paid, nor did it appear that "ever the parifh objected to the non-payment thereof: "that, by mistake, Mr. Town having omitted in the said "account to charge 161. 16s. 10d. by him actually laid "out in relation to his office, upon application to the "parish the fame was examined into, and at three several "fubsequent veftries, the first held the ninth day of No"vember 1698, acknowledged and certified to be justly "due, and allowed to be reimbursed; all which appeared "under the hands of Mr. Humphry Ives, and many other "of the principal inhabitants affembled at the said veftry: "that allowing the parish the above fum of four pounds "ten fhillings and one penny, we find twelve pounds fix "fhillings and ninepence ftill due and unpaid of the faid "fum of fixteen pounds fixteen fhillings and tenpence, "which T .REG. WARE. “ which twelve pounds fix fhillings and ninepence, we "conceive, ought to be reimburfed by the parish. AND "WE DO FARTHER FIND, that Mr. Thomas Pettitt, in "the faid order named, is duly intitled to the fum of "twelve pounds fix fhillings and ninepence in fuch right One overfter as in the faid order is in that behalf fet forth (the pro"bates of the feveral wills in the order to that purpose " mentioned being produced before us at our faid meet"ing); all which, in obedience to the faid order, we do "hereby certify and report. DATED at the George Inn "at Ware this fixth day of November 1711, anno regni "Ann. reg. decimo. Will. Berners, Philip Boteler, Edmuné "Field. Now, UPON READING the faid report, and fully "hearing all parties and all allegations as well for the faid Thomas Pettitt as for the inhabitants of the faid parifh " of Ware, THIS COURT is of opinion, that the faid re"port fo made to this Court by the faid William Berners, "Philip Boteler, and Edmund Field as aforefaid, is juft and "true, and this Court doth allow thereof; and doth ad"judge, that there is now juftly due and owing unto the "faid Thomas Pettitt, as executor and for the purposes "aforefaid, the fum of twelve pounds fix fhilings and "ninepence from the faid parish of Ware; and doth therefore order, that the faid juftices report be, and is hereby confirmed. And this Court doth further order, that the churchwardens and overfeers of the poor "of the faid parish of Ware, or fome or one of them, do "forthwith pay, or caufe to be paid, to the faid Thomas "Pettitt, the fum of twelve pounds fix fhillings and nine pence fo due to him from the faid parish of Ware as "aforefaid; and this fhall be their warrant and discharge for fo doing."-The rule of the Court of King's Bench is, that the orders against the defendants be quafhed for infufficiency (a). 300. Rex v. Limehouse, Easter, 1. Geo. 1. Foley, 22.may be ordered There was a cuftom in that parifh for the churchwardens as they called them, and the over to reimburse another out of money already raifed. to pay the cafual poor, (a) In the report of this cafe, Foley, 1o. the order of feffions is faid to be quashed becaufe the juftices have no fuch authority; for if they had, a perfon who was not then an inhabitant might be charged to pay to the poor: as if a man.come into the parish after the overfeer's year is over, he would be charged to the expences that he was at in the preceding year in another parish. Vide feers |