the poor of the parish of St. Peter the Great, at Subdeanry within the faid city for the last year, three pounds and fifteen fhillings, which the now overfeers of the poor of the fame parish have not paid him. It is, in the prefence of the now overfeers of the poor of the faid parifh, having nothing to fay to the contrary, by this court ordered, That the now overfeers of the poor of the faid parifh, do forthwith pay unto the faid John Chantrel!, the faid three pounds and fifteen fhillings, fo remaining due to him on his faid account as aforefaid; and that they have allowance thereof in their accounts, to be made with the faid parish: It being made appear unto this court by Richard Libbard, that there were remaining due to him on his account, as one of the overfeers of the poor of the parish of St. Peter the Great, at Subdeanry within the faid city, for the last year, eleven pounds two fhillings and fixpence, and that he hath alfo paid Mr. John Halfey, attorney at law, one pound five fhillings and tenpence, for bufinefs by him. done for the faid parish, which the now overfeers of the poor of the fame parish have not paid him. It is, in the prefence of the now overfeers of the poor of the faid parish, having nothing to fay to the contrary, by this court ordered, that the now overfeers of the poor of the faid parifh, do forthwith pay unto the faid Richard Libbard, as well the faid eleven pounds two fhillings and fixpence, fo remaining due to him on his faid account as aforesaid, as the faid one pound five fhillings and tenpence, by him paid to Mr. John Halfey, for bufinefs done for the faid parish; and that they have allowance thereof in their accounts to be made with the faid parifh. The order of the court of K. B. is in these words: It is ordered, that the orders in this caufe made against the present overfeers of the poor of, &c. to pay a fum of money mentioned in the orders to 7. C and R. H. late overseers of the poor of the faid parifh, bé quafhed for infufficiency. over to the fuc 102. R. v. Juftices of Somer fetfhire, M. 8 G. 2. 2 Str. The balance 992. Mandamus to the Juftices to grant a warrant for must be paid levying thirty pounds, being the balance of the account ceeding overof the laft overfeers in their hands. They return that feers, notwiththere was fuch a balance, but that the veftry had ordered ftanding the vefthem to retain it, and employ an attorney to fue for fome ing to let them charity money, and get it laid out for the benefit of retain it to pay the poor; that one Young was fo employed, and the bill of expences balance exhaufted in fees, and that the overfeers had for fuing for a engaged to pay Young, et ea de caufa they had refufed to fum of money try may be will an attorney's to be laid out in grant charita le utes. Indictment againft overfeers grant the warrant. Per Cur. There must go a peremptory Mandamus, for the 43 Eliz. fays the balance fhall be paid over to the new overfeers under a penalty, and it is not in the power of the veftry to difpenfe with the ftatute. 103. R. v. King, E. 20 G. 2. Str. 1268. The court renot paying over, fufed to quafh an indictment against overfeers for not paying not quashed. over money to their fucceffors, as quafhing is not ex debito juftitia, and this is a growing evil, and in Comb. 374. An overfeer being indicted before the feffions, Holt Ch. J. faid that it seemed to be within the direction of the ftatute. A. brings an feer, A. was nonfuited, B. of inquiry to affels damages. Protection in their Office. 104. Brampton's cafe, M. 13 Jac. Roll's R. 272. He action against B. brought trespass against certain perfons who pleaded not who pleaded Not guilty, and guilty, and at Nifi prius (as appeared by the certificate juftified as over- of the judge upon the back of the poftea) the defendants juftified as overfeers, &c. and fhewed the fpecial matter fhall have a writ in evidence, by the ftatute Eliz. and the court B. R. was moved to grant a writ of inquiry of damages, for the treble damages, which he the overfeer ought to recover against the plaintiff by this ftatute 43 Eliz. And upon oyer of the ftatute, that the damages fhall be affeffed, &c. Dodd faid, This is to be intended that it fhall be tried by writ of inquiry of damages in fuch cafes as it ought to be by the law, viz. upon difcontinuance or demurrer; for the words (as the cafe requires) imply as much: And by the law, when a jury ought to have found a thing, and do not find it, this fhall not be fupplied by a writ of inquiry of damages; and this was fo ruled in Banco, quod fuit conceffum, per Cur. That fuch defect fhall not be supplied by a writ of inquiry of damages, because then the party fhall be oufted of his attaint. But in the cafe at bar, the writ of inquiry of damages was granted by the court, inafmuch as the plaintiff was nonfuited, fo that the jury could not affefs the damages; and damages were found accordingly. Justices in fef hons cannot a 105. Thomas's cafe M. 3 Ch. Hetley, 36. Action on the cafe by a conftable of a parish, against Styrling; for faying, thou art a bribing kaave, and has cozen'd the parish of W. in rates to 30 l. 106. R. v. Bartlett, MSS. An award of an attachward an attachment by the Juftices in feffions, against overfeers for ment against difobeying difobeying an order made at a former feffions was quafhed; becaufe the feffions had no power to award an attachment for contempt in difobeying, &c. the proper method in. fuch cases being by indictment for a misdemeanor. 107 R. v. Daubney, M. 17 G. 2. MSS. 2. The churchwardens for the parith of—- -had been fworn in upon a Quo warranto Mandamus from the court, and had made rates, &c. which concerned the parish, and had otherwife acted in their offices; and now Mr. Henley moved for an information Quo warranto against one of them, to fhew by what authority he exercifed that office. But the court denied the mo-. tion, a churchwarden not being fuch a publick officer does not lie aagainst whom an information would lie; for it was no gairft churchulurpation upon the crown, and they might as well ap- mandamus gives ply for an information against a conftable or overfeer, and no right, nor is the parties aggrieved might have their action; for his be- a bar to an acing fworn in by virtue of the Mandamus, would be no bar to fuch action, because a Mandamus gives no right, but leaves the matter as it was before. wardens. But a tion by parties aggrieved. rate, and it was be brought. 108. R. v. Byce, T. 28 G. 2. MSS. Defendant was A. was indicted indicted for not paying twenty fhillings cofts, on the for not paying difmiffion of his appeal to quarter feffions at St. Albans, cofts on the diftwenty fhillings from a poors rate for Redburn. Indictment fet forth, that miffion of his apwhereas B. appealed from, &c. on hearing the feffions peal to the poor's ordered the fame rate to be confirmed, and by reafon the held that an inappeal appeared frivolous, the court ordered the defen- dictment might dant to pay twenty fhillings cofts, and then fets forth See pl. 149. the order verbatim, and then fates, that the defendant having notice thereof, injuriously, and contemptuously refufed to pay, &c. The court refufed to quafh; but on demurrer the objections were, Firft, that it was not an indictable offence. Second, that it was ftated by way of recital. Third, becaufe 17 G. 2. gives a remedy by diftrefs. Fourth, that it was not stated, that the de endant was an inhabitant, Fifth, that the act concerning cofts does not extend to inferior jurifdictions, as St. Albans: But they were over-ruled; and the court held, that the 8&9 W. 3. has in certain cales given remedy; but that this cafe does not fall within that remedy, 8 & 9 W. & M. gives relief in cafes of appeals concerning removals. overfeer, verdict 109. Bennet v. Hart, E. 28 G. 2. In an action of tref- A&ion of trefpafs against an overfeer of the poor, on account of fome- pais against an thing done by virtue of the 43 Eliz. c. 2. A verdict for the detenbeing found for the defendant; the jury omitted to affs dant,juryomitted the treble damages given by that ftatute. Mr. Juftice treble damages. Denifon. to assess the Where a ftatute directs that a thing may be dene, where it is be done. Denison. If judgment had been entered up, the application for a writ of inquiry would have been too late; but as it has not, the court may award one. There muft however be, as a foundation for awarding the writ, a fuggeftion entered upon the poftea, that the defendant was an overfeer of the poor; and that the action was brought against him for a thing done by virtue of the 43 Eliz. c. 2. Law of Damages by Mr. Serjeant Sayer, 245. Penalty upon Overfeers mifbehaving, fee 43 Eliz. c. 2. f. 2, & 11. & 3 W. & M. c. II. f. 12. & 17 G. 2. c. 33. f. 14. 110. If an overfeer does not provide for the poor he is indictable, and if he relieves the poor when there is no neceflity, it is a misdemeanor. Vin. Abr. title Poor, 515. 3 Ann. 111. R. v. Barlow. 5 W. & M. 2 Salk. 609. Indictment on 14 Car. 2. c. 12. against churchwarden and overfeers for not making a rate to reimburse the confor the publick ftables: exception was taken, that the ftatute only puts good, it is to be it in their power to do fo, by the words may, &c. (fee conftrued fhall, the 18th fection) but not require it as a duty, the neglect of which fhould be punishable. By the court: Where a ftatute directs the doing a thing, for the fake of justice or the publick good, the word may is the fame as the word fhall. Thus the 23 H. 6. fays, the sheriff may take bail; which is conftrued, he hail, and he is compellable fo to do. Indictment lies. for refufing to accept the office of overfeers, or for difobedience to an order of Juftices, or to an act of parlia ment. 112. R. v. Jones, M. 14 G. 2 MSS. Three Juftices of the peace for the county of Kent, did within a month after Eafter, under their hands and feals appoint Hodges and Jones as being fubftantial householders to be overfeers of the poor of Maidstone for the year next enfuing: Upon notice, ones obftinately refufed to accept the office, and thereupon was indicted upon 43 El. Jones demurred to the indictment, and there was a joinder in demurrer. For the demurrant feveral objections were taken to the indictment. 1. That by the above act Jones was complete overfeer by the very appointment of the Juftices, in spite of his refufal; if fo the indictment is improper; for if fones did not by any act refuse the office, he ought to have been indicted for not executing the office, or for his feveral neglects during the time he was overfeer; and though The though it be admitted that a constable might be indicted for his refufal of his office, after an appointment in the court leet, as if he refused to take the oath, yet there was this diftinction, that an overfeer who is an officer by ftatute had nothing further to do after his appointment to complete his being an officer; but a conftable is an officer at common law, and must take an oath in the leet after his appointment before he can act or be a complete officer; and therefore a refufal of the oath is a renunciation of the office. 2. That this appointment is for a year abfolutely, and therefore bad, because overfeers being appointed in Easter week, or within a month after, and Eafter being a moveable feaft, there may be fometimes two fets of overfeers. Mr. Solicitor General e contra. penalty of this act is to be levied only where he has once accepted of the office, and neglects afterwards to do his duty in it; and it is but as one equivalent for one omiffion, and not for neglecting the whole office; he is not a complete officer till he has acted in it, and therefore the indictment is for not accepting of the office when he has been legally appointed. Salk. 308. R. v. Loan M. 5 G. 2. R. v. Winlefborn, 2 G. 1. Lee Ch. J. cited R. v. Inhabitants of Marlow, T. 13 G. 1. To fhew that the appointment of an overfeer for a year is fufficient, though the time of his continuance is uncertain, it depending upon Eafter day. As to the main objection whether an indictment lies upon 43 Eliz. for an overfeer refufing to accept the office, I am of opinion it will. The ftatute enacts that four, three or two fubftantial inhabitants of the parifh to be nominated by two Juftices of the Peace fhall be overfeers of the poor. This is the manner in which this act hath constituted this officer, and then it goes on, and directs particularly what are the Agenda of an overfeer; and then there is a fubfequent claufe that directs farther facts to be done by overfeers; as to meet monthly at the church in the afternoon after divine fervice, &c. and annexes the penalty of 20 s. to every omiffion: If this claufe reaches only to the particular inftances therein enumerated, then the refufal of fuch office of overfeers is a cafe that is not provided against by this claufe to undergo the penalty of 20 s. for it only extends to omiffion after the actual acceptance of the office. I am of opinion that Jones may, and has refused the office, and though no exprefs indictment is given by this act of parliament for a refufal of office, yet Jones will be indictable upon this statute, upon the prin |