66

year, being the first call after the discovery, was made by the guardians on each of the parishes of the union in February 1857. In making the estimate for these orders, under article 81. of the Consolidated Order, 1847, the deficit resulting from the frauds and embezzlements was treated as an extraordinary charge" upon the union, and thus the several debts above mentioned were included as chargeable upon the funds of the whole union; and, assuming them to be so chargeable, the parish of S. was charged in the order made upon it with its proper proportion. The parish of S. was not one of the nine parishes, and had paid up its quota charged on it by previous orders: -Held, by the Court of Queen's Bench, on a special case stated between the parish of S. and the guardians of the union, that the debts so left outstanding were "extraordinary charges, to which the union was liable in the coming half-year," and so were within the power conferred on the guardians by article 81. of the Consolidated Order, 1847; that the collector was the officer of the union, and not of the nine parishes, inasmuch as the orders of the guardians to him to pay over the money received by him direct to their treasurer negatived that his duty was regulated by article 6. of the Collection of Poor-rates Order, 1854, which directs the collector to pay over weekly to the overseers, their bankers, or otherwise under the direction of the overseers; and therefore that the parish of S. was liable to pay the whole amount charged upon it, and that the order upon it was valid.

But held, by the Court of Exchequer Chamber, reversing the judgment of the Queen's Bench, that the contribution order was wholly invalid, as it was made in part to pay old debts; that the guardians had no power by law to make a retrospective order, nor overseers to make a retrospective poor-rate; and that these old debts could not be included under the head of extraordinary charges, as that term must be limited to such charges as were legally chargeable on the parishes.

CASE stated without pleadings.

The plaintiffs, at the time of the making of the order hereinafter mentioned, were the churchwardens and overseers of the poor of the parish of "Saint Stephen, Coleman Street," in the city of London,

which, together with ninety-seven other parishes, is comprised within the City of London Union, which union was formed in the year 1837, under the 4 & 5 Will. 4. c. 76. ("The Poor Law Amendment Act"), under which boards of guardians have been annually elected, and have entered into office for the said union. According to the provisions of the said act the PoorLaw Commissioners for England and Wales from time to time issued rules, orders and regulations. A copy of Glen's Consolidated and other Orders of the PoorLaw Commissioners and of the Poor-Law Board, &c., accompanied the case, and was, so far as relates to the rules, orders and regulations, to be taken to form part of the case, and referred to, if necessary, in addition to the articles set out.

By articles 81. and 82. of an Order of the 24th of July 1847, commonly called "The Consolidated Order," it is provided and ordered as follows:Article 81. "The clerk" (meaning the clerk to the guardians · see art. 229.) "shall, four weeks at least before the 25th day of March and the 29th day of September respectively in each year, refer to and ascertain the cost to each parish in the union for the maintenance of the poor and other separate charges, as well as for the common charges incurred in the half of the last year corresponding to the halfyear next coming, and shall estimate and, as near as may be, divide amongst the parishes any extraordinary charges to which the union may be liable in the coming half-year, and he shall also estimate the probable balance due to or from the parish at the end of the current half-year, and shall then prepare the orders on the several parishes for the sums which, upon such computation, it shall appear necessary for them to contribute to the expenses of the union for the coming half-year, and the orders so prepared shall be laid before the guardians for their consideration three weeks at least before the expiration of the current half-year."

Article 82. "The guardians shall make orders on the overseers or other proper authorities of every parish of the union from time to time for the payment to the guardians of all such sums as may be required by them for the relief of the poor

of the parish, and for the contribution of the parish to the common fund of the union, and for any other expenses chargeable by the guardians on the parish; and in such orders the contributions shall be directed to be paid in one sum or by instalments, on days specified, as to the said guardians may seem fit."

[In addition to the above articles, the following articles of the Consolidated Order, 1847, were referred to in the course of the argument:

Article 41. "At every ordinary meeting the guardians shall duly examine the treasurer's account, and shall, when necessary, make orders on the overseers or other proper authorities of the several parishes in the union for providing such sums as may be lawfully required by the guardians on account of the respective parishes."

Article 202. "Duties of Clerk. No. 7.— To ascertain, before every ordinary meeting of the board, the balance due to or from the union in account with the treasurer, and to enter the same in the minutebook."

And of the Collection of Poor-rates Order of 1854:

Article 6. "The collector shall every week pay over all monies collected by him, or in his hands belonging to the parish, to the banker whom the overseers may direct, to be placed to the account of one or more of them; or if directed by one of the overseers, to the treasurer of the guardians of the union, in payment of any order from such guardians then due; or, in the absence of any such direction, shall pay the same to one of the said overseers in person; provided that, as often as at any time in the course of any week the sum or sums of money in the hands of such collector belonging to the parish shall together exceed 50l., he shall forthwith pay over such sum or sums in the manner hereinbefore directed."]

On the 17th of February 1857 a call or order was made, according to Form (M.) in the said Consolidated Order, by the then guardians of the poor of the said union upon the then churchwardens and overseers of the poor of the said parish of St. Stephen, Coleman Street, as follows:

"To Messrs. James Waddington, &c., You are hereby ordered and directed to

pay to Samuel George Smith, Esq., at the banking-house of Messrs. Smith, Payne & Smith, No. 1, Lombard Street, in the city of London, on behalf of the guardians of the poor of the City of London Union, the sum of 2,800l. from the poor-rates of the said parish of St. Stephen, Coleman Street, towards the relief of the poor thereof, and to the contribution of the parish to the common fund of the union and such other expenses as are chargeable by the said guardians on the said parish, such sum of 2,800l. to be paid by instalments, at the times and in manner following," viz. by four instalments of 700l. each, on the 20th of March, April, June and August, 1857.

Similar orders were on the same day made by the guardians upon each of the other parishes comprised within the union; and by the aggregate of such orders the guardians sought to raise, and ordered to be raised, a sum of 61,430l. previously to the 29th of September then next.

Before the making of the order of the 17th of February 1857, for the purposes of complying with the requirements of the 81st section of the Orders of the PoorLaw Commissioners, the then clerk of the guardians referred to and ascertained the cost to each parish in the union for the maintenance of the poor and other separate charges, as well as for the common charges incurred in the last half-year, corresponding to the half-year next ensuing. The clerk also estimated the extraordinary charges to which, according to his view (the correctness of which the plaintiffs disputed) the union would be liable. The clerk, in his estimate of the extraordinary charges to which, according to his view, the union would be liable in the ensuing half-year, included the amount of the outstanding debts to the tradesmen of the union, and the advances made by the treasurer of the union, and not repaid to him as hereinafter stated. The following statement was prepared by him of the aggregate amount required, according to his view, for those purposes, and submitted to the board of guardians. [Then followed an abstract of tradesmen's accounts (with the dates of the first and last item in each bill) for articles supplied, chiefly during the years 1855 and

It is admitted, but for the purposes of this case only, that all the sum of 23,154l. 17s. 2d. had been properly incurred, and had not been paid to the tradesmen, and that the treasurer, who was the treasurer of the union named in the said orders, and had been duly appointed as such in pursuance of the orders of the Poor-Law Board, had, before the 31st of December 1856, made advances to the amount of 4,2001. to the guardians of the union, by allowing them to overdraw their account with him to that extent, and that these advances had not been replaced, which amount is the sum entered in the above statement as "balance due to treasurer to December 31st, 1856"; and that the estimate of 15,000l. for the expense of the union to Lady-day, 1857, and the estimate of 29,2301. for expenditure from Lady-day 1857 to Michaelmas 1857 were fair and reasonable estimates.

The sum of 61,430l. was apportioned amongst the various parishes of the union as follows:-Each parish was separately charged with the sum required by the guardians for the relief of the poor of such parish for the period specified, and the residue of the sum of 61,430l. was apportioned amongst the various parishes of the union as their estimated rateable contribution to the common fund of the union, and other expenses assumed to be chargeable by the guardians on the parishes respectively, according to the proportions last fixed by the Poor-Law Board, in pursuance of the 28th section of the Poor

law Amendment Act, 4 & 5 Will. 4. c. 76. And the orders were prepared by the clerk of the guardians according to such computation and apportionment, and laid before the guardians according to the said articles, and made and issued by them accordingly. To this apportionment the plaintiffs object.

The plaintiffs object to the statement or estimate, on the ground that it appears by the dates, which are admitted to be correct, that it includes alleged debts, which had been accruing for several previous years, and that the alleged debt of 4,2001. to the treasurer had been gradually accruing during several years previously to the 17th of February 1857, which is admitted by the defendants.

The plaintiffs further object to this statement or estimate, on the ground that such alleged debts, or a portion of them, ought to have been paid out of monies raised by calls or orders previously made. Such non-payment, in fact, arose from the frauds and embezzlements of two of the officers of the union, viz. Charles Guerrino Manini and John Paul.

Charles Guerrino Manini was, on the 16th of May 1843, appointed by the board of guardians collector for nine of the parishes of the union, the parish of St. Stephen, Coleman Street, not being one of those nine. This appointment was duly confirmed by the Poor-Law Board; and in pursuance of an order of the Poor-Law Board Manini thereupon entered into a bond with two sureties (from whom nothing has been or could be recovered), in the penal sum of 500l. to the board of guardians, for the faithful performance of his duties. Manini collected the whole of the rates levied for the relief of the poor in such nine parishes. His orders from the guardians were, to pay the whole amount to the treasurer of the union, to be placed by the clerk of the union to the credit of the respective nine parishes in the union accounts, the parish officers receiving cheques from time to time from the board of guardians, for monies required by them for parochial payments not connected with the union. Shortly before the making of the order or call of the 17th of February 1857, Manini had absconded, having embezzled from the

money so collected by him for the rates of the nine parishes large sums of money, amounting, as has since been ascertained, to 22,4071. 8s. 2d.

John Paul had been duly appointed, and was the assistant clerk of the board of guardians. Returns were laid by John Paul before the board of guardians weekly, shewing that large sums had been paid to the treasurer by Manini on account of the said several nine parishes, which sums were carried to their credit in the union parochial ledger, the greater portion of which amounts never reached the treasurer's hands, but were in fact embezzled by Manini. The returns were thus false, and they were in this respect false to the knowledge of both Manini and Paul, and Manini and Paul acted in concert in making this false representation by means of returns so laid before the board of guardians.

The parochial accounts were regularly produced to the district auditor, signed by the parish officers; but these accounts were made up from figures and returns concocted by Manini, and handed by him to the parish officers, from which they were copied into their receipt and payment book. Thus credits were given for large sums which never reached the treasurer's hands, and the balance-sheets of the overseers' receipts and payments were signed by the auditor, with the usual memorandum at the foot, certifying the balance to be correct. The parochial accounts had been audited up to the 29th of September 1856. These fraudulent entries have been published in the annual statement of accounts, which was printed and circulated by order of the guardians, up to Lady-day Lady-day 1855.

John Paul defrauded the union of various sums of money, amounting to 3,000l. at the least, by appropriating to his own use orders or cheques drawn in favour of tradesmen of the union, and which were entrusted to him for the purpose of being handed by him to such tradesmen, and which in fact were not so handed over. In some of the accounts so audited and published as aforesaid, some portions of the debts included in the statement or estimate of the clerk of the guardians were entered and debited as paid, and the accounts, though fraudulently concocted,

were so audited and passed as correct, and acquiesced in by all parties.

Manini and Paul absconded in December 1856. The former has not yet been apprehended. The latter was apprehended and convicted of felony, and sentenced to transportation.

The frauds and embezzlements aforesaid were first discovered in December 1856, and the call made in February 1857 was the first call made after such discovery. In making the estimate for such call, the deficit resulting from the said frauds and embezzlements was treated as an extraordinary charge upon the union; and so the several debts aforesaid were included in the statement or estimate as chargeable upon the funds of the whole union. And, assuming that they were so chargeable, the parish of St. Stephen, Coleman Street, was charged with its fair proportion by the order or call of February 1857, and the amount of the order or call was on that assumption correct.

All calls or orders made upon the parish of St. Stephen, Coleman Street, previously to the making of the call or order of the 17th of February 1857, had, previously to the making of such last-mentioned call or order, been fully paid and obeyed.

The parish of St. Stephen, Coleman Street, contains upwards of 500 houses or tenements, which were separately assessed to the rates for the relief of the poor in every year for six or seven years now last past, during which last-mentioned period there have been various changes in the occupations and rateable value of such houses and tenements. Many valuable messuages, tenements and premises,-which were, during all or some parts of the years in which the said old alleged outstanding debts were in the manner stated accruing, chargeable with the poor-rates, and of which the occupiers were during such years or parts of years liable, in common with other occupiers of premises within the said union, to be rated and assessed to the poorrates of the several parishes comprised therein, and were well able so to contribute rateably, and did, in fact, contribute towards the payment of the expenses in respect of which the said old alleged outstanding debts accrued,-were, during all the period between the 17th of February

1857 and the 29th of September 1857, pulled down and unoccupied and not rateable or assessable to the poor-rates, or liable so to contribute; and many persons have become the occupiers of tenements within the said parish or union since the old outstanding debts respectively accrued and became due, who would not have been liable to contribute to the expenses in respect of which such debts accrued by virtue of any poor-rates made previously to the 17th of February 1857, and such persons are now liable to be respectively assessed to the poor-rates of parishes comprised in the union, and will thus be liable to contribute towards the payment of such old outstanding debts, if the said call or order of the 17th of February 1857 is a valid and legal order, enforceable for the amount for which it is made.

It was contended, by the plaintiffs, that the order or call was altogether bad in law and cannot be enforced; and that, even if good as to any part, it was bad and cannot be enforced for such portion as relates to the quota of the parish of St. Stephen, Coleman Street, of the alleged debts inIcluded in the statement or estimate as aforesaid.

[Some correspondence between the parties was then set out, which it is unnecessary to give.]

The questions for the opinion of the Court were: first, whether the call or order of the 17th of February 1857 was a valid and enforceable call or order for the whole, or for any, and what, portion of the sum of 2,800. Secondly, whether the plaintiffs, or the churchwardens and overseers for the time being of the parish of St. Stephen, Coleman Street, were liable and bound in law to pay any, and what, portion of the sum of 2,800l.

If the Court should be of opinion that the call or order was not valid or enforceable, and that the plaintiffs were not liable or bound to pay any portion of the said sum of 2,8007., then judgment was to be entered for the plaintiffs for the sum of 5l. 5s.

If the Court should be of opinion that the call or order was valid and enforceable, or that the plaintiffs, or the churchwardens and overseers for the time being of the parish of St. Stephen, Coleman Street, were liable and bound in law to pay a portion

of the sum of 2,8007., then judgment was to be entered for the defendants. The sum, if any, to be paid by the plaintiffs, or by the churchwardens and overseers for the time being of St. Stephen, Coleman Street, was, as the Court should direct, to be fixed either by the Court or by such arbitrator as the Court should name, upon such principles as the Court should lay down, with costs as the Court should direct.

Hawkins (April 27) for the plaintiffs.The order in question was bad, including, as it did, past debts. The principle established ever since the 43 Eliz. is, that a rate for retrospective purposes is bad, and the new poor-law (4 & 5 Will. 4. c. 76.) has introduced no new principle, and has in no degree affected the non-liability to pay old debts. Thus, section 26, which enables the creation of unions, expressly leaves the liability of each parish of a union to maintain its own poor as before, and, therefore, each parish is liable for that only. Section 38. points out the way the guardians of a union are to be constituted; and section 44. the mode of giving relief. Section 15. puts the relief of the poor under the controul of the Commissioners, who are to make rules for the administration of the poor-laws; but there is no change in the principle of rating: and these rules must be taken to be in accordance with the law, and interpreted accordingly, and can have no validity beyond that. Section 46. enables the Commissioners to direct the guardians of parishes and unions to appoint officers. By the Consolidated Order made by the Commissioners on the 24th of July 1847, in pursuance of the act, Art. 41, sixthly, the guardians of the union are to make orders on the overseers of the several parishes for providing such sums as may be lawfully required by the guardians on account of the respective parishes. By article 81. the clerk of the union is to estimate as near as may be, and divide amongst the parishes any extraordinary charges to which the union may be liable during the coming half-year; and by article 82. the guardians are to make orders on the officers of every parish for the payment to the guardians of all such sums required for the relief of the poor of the