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![handle is hein.slavery/ssactsengr0953 and id is 1 raw text is: 1HILARY TERM, 7 WILL. 3. IN B. R.
relief of the poor, and did refuse to account within four days after the end of the
said year, and, after other overseers were nominated, to give an account to two justices
of the peace of the sums by them received, and to deliver over the same to the new
overseers, but converted it to their own use, and did.use other fraudulent practices to
deceive the poor, &c. contra formam statuti, &c.
This indictment was removed into the Court of King's Bench by certiorari ; and
the exceptions to it were,
First, that an indictment will not lie for this offence ; for it is grounded on an
Act of Parliament, which appoints the overseers to account, and provides a punish-
ment for refusing, viz. to be committed by two justices of the peace till they
account, [180] and pay what remains in their hands, there to remain without bail.
So that this being an offence made by a particular statute, which was not so at
common law, and directing how the offender shall be punished, that must be the
remedy, and no other can be pursued.
The Court. The overseers are required by the 43 Eliz. c. 2, s. 2, to account, and
their refusal is a contempt of the law, for which they may be indicted: and as to
that, there is no difference when a thing is enjoined and when it is prohibited by a
statute; for when it is prohibited, the party shall not only have his action for the
injury done, but the offender shall be punished at the King's suit for the contempt of
his law. It is true, two justices of peace have power to commit the overseers refusing
to account, which is a proper means to come at the right; but it does not satisfy the
King for the contempt (a).
Secondly, if an indictment will not lie for this offence as set forth, it will not for
the other fraudulent practices mentioned in it, because it is too general (b). And so it
has been adjudged in like cases, viz. where a man was indicted for being a common
misdoer (c), it was held void without laying some particular offence.
Thirdly, it is said, that being overseers of the parish of Lynn they did collect
several sums, &c.; but they have laid no venue where the money was collected,
neither is it mentioned what sums were received.
As to the objection, that the indictment does not set forth what sums were
collected, it is not material, for the offence is for not accounting.
Fourthly, two are indicted ; and it is said, that they et uterque eorum did receive
money, which they had not brought to account. This is likewise void for the
uncertainty, because the act of one is not the act of the other; as where four were
indicted for using a trade contra formam statuti (d), setting forth, that they et uterque
eorum did use the trade, it was quashed for this reason, for the using of one cannot
be the using of the other (e).
[181] The Court. Though it be true, that two cannot be indicted for refusing to
become apprentices, because the service of one cannot be the service of the other, yet
two may be indicted for a cheat (f), and for several other offences.
A djournatur.
CASE 90. LITTLETON against COLE.
A declaration for negligently keeping a fire, by which the plaintiffs house was
burned, viz. in parietibus partitionibus, ornamentis, &c. is good.
An action on the case was brought for negligently keeping his fire, by reason
whereof the plaintiff's house was burned, viz. in parietibus, in partitiovibus fenestris, in
operibus ferrariis, et ornamentiis ejusdem dom~s.
(a) The Court doubted upon this point of the case, S. C. 3 Salk. 187 ; but said,
that an indictment at sessions seems to be within the statute, S. C. Comb. 373. And
the Court has refused on motion to quash an indictment against overseers for not
paying over money to their successors. Rex v. King, 2 Stra. 1268.
(b) See Rex v. Mason, 2 Term Rep. 581.
(c) 2 Roll. Abr. 79.
(d) 2 Roll. Abr. 81.
(e) Salk. 382. 2 Sess. Cases, 221. Stra. 623. 2 Ld. Ray. 1248.
(f) See Benfield v. Saunders, 2 Burr. 980; Rex v. Young, 3 Term Rep. 98.
595
5 MOD. 180.](ViewImageLocal?handle=hein.slavery/ssactsengr0953&div=1&collection=&method=preview&ext=.png&size=3)