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1869.

Friday, January 29th.

4 & 5 W. 4.
c. 76. s. 99.

7 & 8 Vict.
c. 101. s. 32.
Balance certi-

fied by poor
law auditor.
Defaulting

overseer.

Bankruptcy.

The QUEEN against T. W. C. MASTER, Esq., and others, Justices of GLOUCESTERSHIRE, and W. JAMES.

Stat. 7 & 8 Vict. c. 101. s. 32. directs the poor law auditor to charge in every account audited by him the amount of any sum for which the person accounting is accountable, and to certify on the face of the account any money found by him to be due; and if it be not paid within seven days he is to proceed to enforce the payment; and all moneys so certified to be due are to be recovered in the same manner as penalties and forfeitures may be recovered under stat. 4 & 5 W. 4. c. 76. By sect. 99 of the latter statute all penalties and forfeitures for any offence against the Act shall, upon proof and conviction of the offence or upon order made, be levied by distress and sale of the goods of the offender, or person liable or ordered to pay, by warrant of justices; and in default of sufficient distress the offender is to be committed to prison for a term not exceeding three calendar months, &c. An auditor having certified a balance to be due from an overseer, which was not paid within seven days, an information was laid against him before justices, who declined to act on the ground that since the information he had obtained an order of discharge in bankruptcy. A rule nisi was thereupon obtained for a distress warrant, and made absolute, no cause being shewn. A distress warrant having issued, to which there was a return of nulla bona, the justices again declined to act. Upon a rule for a warrant of commitment: Held, that the balance certified by the auditor was a debt, and that the mode of enforcing payment in default of sufficient distress by warrant of commitment did not make the nonpayment an offence, and therefore the bankruptcy was a discharge.

JANUARY 18. Jelf obtained a rule, under stat. 11

& 12 Vict. c. 44. s. 5., calling upon T. W. C. Master, Esq., and two other justices of Gloucestershire, and W. James, to shew cause why the justices should not issue their warrant to commit W. James to the common gaol or house of correction of the county, pursuant to stat. 4 & 5 W. 4. c. 76. s. 99.

Upon the accounts presented by W. James, overseer of the parish of Ampney Crucis, in the county of Gloucester, for the quarter ending at Lady Day, 1868, the auditor of the Wilts and Gloucestershire Audit District certified, in accordance with stat. 7 & 8 Vict. c. 101. s. 32., that a balance of 821. 6s. 7d. was due from him,

XXXII. VICTORIA.

1869.

V.

MASTER

and others.

and reported the same to the Poor Law Board. That sum not having been paid within seven days, the auditor, The QUEEN on the 5th May, caused an information to be laid against him before justices, which was heard on the 18th, when he proved that on the 11th he had obtained an order of discharge under The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134., upon an adjudication of bankruptcy dated the 4th January, and relied on it as a bar to the proceedings. The justices thereupon declined to issue a distress warrant without a direction from this Court. In Michaelmas Term, Nov. 9th, a rule was obtained calling on them and James to shew cause why the justices should not issue a distress warrant under stat. 4 & 5 W. 4. c. 76. s. 99. No cause being shewn, this rule was made absolute in Michaelmas Term. A distress warrant was then issued, and a return of nulla bona made to it on the 19th December. On the 9th January, 1869, an application was made to the justices, under stat. 4 & 5 W. 4. c. 76. s. 99., to issue their warrant to commit James to prison. The former rule having been made absolute without argument, they again declined to act without the direction of this Court.

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Stat. 4 & 5 W. 4. c. 76. s. 99. enacts, "That all penalties and forfeitures by this Act inflicted or authorized to be imposed for any offence against the same shall, upon proof and conviction of the offences respectively before any two justices, order made as aforesaid, be levied, together with the costs attending the information, summons, and conviction, by distress and sale of the goods and chattels of the offender or person liable or ordered to pay the same respectively, by warrant under the hands of the justices before whom the party may have been convicted, or, on proof of such conviction, by a warrant under the

1869.

The QUEEN

V.

MASTER and others.

hands of any two justices acting for the county, riding, or division" &c. And if the fines, penalties, and forfeitures be not forthwith paid upon conviction, the justices may order the offender convicted to be detained until return can be made to the warrant of distress, unless he shall give security for his appearance on the day appointed for the return of the warrant; "but if upon the return of such warrant it shall appear that no sufficient distress can be had thereupon, then it shall be lawful for any such justices as aforesaid, as the case may be, and they are hereby authorized and required, by warrant or warrants under their hands, to cause such offender or offenders to be committed to the common gaol or house of correction of the county, riding, or place where the offender shall be or reside, there to remain, without bail or main prize, for any term not exceeding three calendar months, unless such penalties and forfeitures, and all reasonable charges attending the same, shall be sooner paid and satisfied; and the penalties and forfeitures, when so levied, shall be paid to or for the use of the parish or union where such offence shall have been committed, to be applied in aid of the poor rate of such parish or union."

By stat. 7 & 8 Vict. c. 101. s. 32. the Poor Law Commissioners are empowered to combine parishes and unions into districts for the audit of accounts; and the mode of election of an auditor of the district is prescribed; "and every auditor appointed for such a district shall have full powers to examine, audit, allow, or disallow of accounts, and of items therein, relating to monies assessed for and applicable to the relief of the poor of all parishes and unions within his district, and to ali other money applicable to such relief; and such anditor shall charge in every account audited by him

the amount of any deficiency or loss incurred by the negligence or misconduct of any person accounting, or of any sum for which any such person is accountable, but not brought by him into account against such person, and shall certify on the face of every account audited by him any money, books, deeds, papers, goods or chattels, found by him to be due from any person; and when any such auditor has so certified any money, books, deeds, papers, goods, or chattels, to be due from any person, he shall forthwith report the same to the said Commissioners; and the person from whom any money is so certified to be due shall within seven days pay or cause to be paid such money to the treasurer of the guardians of the union or parish, if there be any such treasurer; &c.; and all books, deeds, papers, goods and chattels, and in the case where there is no treasurer as aforesaid all monies

so certified to be due, shall be delivered over or paid, within seven days of the same being certified, to the person or persons authorized to receive the same; and if any such money, books, deeds, papers, goods or chattels, be not duly paid or delivered over as hereinbefore directed, the said auditor, or any auditor subsequently appointed, shall proceed, as soon as may be, to enforce the payment or delivering over of the same; and all monies so certified to be due by such auditor shall be recoverable as so certified from all or any of the persons making or authorizing the illegal payment, or otherwise answerable for such monies, and shall be recovered on the application of such auditor, or of any such auditor subsequently appointed, or by any such person for the time being entitled or authorized to receive the same, in the same manner as penalties and forfeitures may be recovered under the provisions of"

1869.

The QUEEN

V.

MASTER and others.

1869.

stat. 4 & 5 W. 4. c. 76.; and if any persou from whom The QUEEN any books, deeds, papers, goods or chattels may be due,

V.

MASTER and others.

neglect or refuse to deliver over the same, he shall be liable to the penalties and proceedings provided in the case of overseers refusing or neglecting to pay and deliver over to their successors any sum of money, goods, chattels, and other things in their hands.

Grantham shewed cause on behalf of the justices.— The balance certified by the auditor to be due from the overseer is a debt. By stat. 4 & 5 W. 4. c. 76. s. 47. the balances due from an overseer might be recovered in the same manner as any penalties and forfeitures were recoverable under that Act, that is by summary proceedings before justices. Embezzlement or misapplication of money belonging to the parish was, by sect. 97, an offence for which the overseer, on conviction before justices, was liable to a penalty. But under that Act the nonpayment of this balance would have been treated as a debt, and not as an offence. Stat. 7 & 8 Vict. c. 101. s. 32., which supersedes sect. 47 of stat. 4 & 5 W. 4. c. 76., does not convert nonpayment of the debt into an offence. Imprisonment may be a process for the purpose of enforcing payment of money due. But here none is due, the debt being extinguished by bankruptcy. In Rex v. Tucker (a) it was held that an overseer was discharged by his bankruptcy and certificate from a debt due in respect of a sum of money in his hands as overseer at the time of his bankruptcy, although it happened before the expiration of his year of office, until which time he could not be called on to account. In Rex v. Edwards (b) it was held that an attorney in custody (b) 9 B. & C. 652.

(a) 5 M. & S. 508.

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