REG. v. TYRWHITT.

(2 El. & Bl. 77—81; S. C. 17 Jur. 893; 21 L. T. O. S. 113.)

By a local and personal Act (6 Geo. IV. c. clxxv.) provision was made for electing governors and directors for the relief of the poor and for the watching and lighting of a district, consisting of one parish and part of another; and the governors and directors were empowered to elect auditors for the purpose of auditing the accounts of the district. The governors and directors were empowered to make rules for the application of moneys to be raised under the Act; to bring or defend actions affecting the property vested in them under the Act, or relating to the due execution of the Act; and to meet and ascertain the amount necessary to be assessed for the purposes of the Act, which amount the inhabitants were to raise by rate. The governors and directors were also empowered to appoint a clerk, and to make such allowance to him and their other officers as they should think proper. Auditors were also to be elected by the inhabitants, who were to meet half yearly, at least, and were empowered to appeal against any part of the accounts of which they should disapprove. After the passing of this Act, the Poor Law Commissioners included the district within one of several unions comprised in the N. W. M. district, for which last district they appointed an auditor under stat. 7 & 8 Vict. c. 101, s. 32. The last mentioned auditor disallowed part of a bill of costs, paid by the governors and directors to their clerk, and surcharged three of the governors and directors with the amount disallowed:

Held, that he had power so to disallow and surcharge, notwithstanding the provisions of the local Act.

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PASHLEY, in last Michaelmas Term, obtained a rule calling on Robert Philip Tyrwhitt, Esq., one of the magistrates of the Police Courts of the metropolis sitting &c. within the Metropolitan Police District, William Law, Thomas Southgate and Edward Tyrrel Smith to show cause why a distress warrant should not be issued under the hand and seal of the said R. P. T., to levy the sum of 63l. 16s. 1d., by an order under the hand and seal of the said R. P. T. ordered to be paid by the said W. Law, T. Southgate and T. Smith, on the goods and chattels of the said W. Law, T. Southgate and T. Smith.

The affidavits in support of the rule set forth Mr. Tyrwhitt's order to pay. The order was dated 30th January, 1851. It recited a complaint made to Mr. Tyrwhitt, on 10th October, 1850, by James Hales Mitchiner. The substantial facts of the complaint, as set out in the order, appeared to be that, on 7th July, 1836, the part of the parish of St. Andrew, Holborn, which lies above the Bars, and the parish of St. George the Martyr, in Middlesex, were united for the administration of the poor-laws, and were parts of and included within the Holborn Union: and afterwards, by order of that date, the Poor Law Commissioners ordered that that union and several others, and also certain single parishes, "should be

1853.

May 2.

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REG.

t.

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united, and thenceforth be and be deemed, a union for the purpose of appointing an auditor in the manner thereinafter provided: " and "that the guardians of such parishes and unions should, at the time and in the manner therein mentioned, appoint an auditor for the examining and auditing, allowing or disallowing, of accounts in the said respective parishes and unions, and in each of the said respective parishes comprised in such unions, respectively, and to perform such other duties of an auditor at such places, within such limits, for such period, and at such salary, to be paid at such time, and in such modes and proportion, as the said *Commissioners should in and by the said order, or by any order to be thereafter made touching such office of auditor, direct or determine." That, on 28th July, 1836, Mitchiner was appointed auditor. Other orders of the Commissioners were then set out, the effect of which was that certain additions to and subtractions from the union were made, and that finally there was constituted a district, called the North West Metropolitan Audit District, of which Mitchiner was appointed, and still continued, auditor, and which included the Holborn Union, St. Andrew Holborn above Bars, and St. George the Martyr. That, on 30th March, 1849, and after the passing of stat. 6 Geo. IV. c. clxxv. (1), Law, Southgate and Smith *were,

(1) Local and personal, public, "For the better ascertaining, charg ing and collecting of the rates for the relief of the poor within that part of the parish of Saint Andrew Holborn which lies above the Bars in the county of Middlesex, and the parish of St. George the Martyr, in the said county; for the better maintenance, employment and regulation of the poor thereof; and for regulating the nightly watch thereof."

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Sect. 5 empowers the inhabitants of the part of the parish of St. Andrew Holborn which lies above the Bars, and of the parish of St. George the Martyr, to elect annually, from among themselves, in certain proportions, fifty persons as governors and directors of the poor" of the said part of the parish of St. Andrew Holborn and the parish of St. George the Martyr, in conjunction with the rectors, churchwardens and overseers of the two parishes, and the justices of the peace for the county residing within them; "and such governors and

directors shall and may from time to
time make such orders, rules, and
regulations for the better government,
relief, maintenance, and employment
of the said poor, and" (subject to
certain provisions thereinafter men-
tioned) for the ascertaining, charg-
ing, collecting, managing, and regu-
lating of the poor rates for the said
part" &c. "and the said parish" &c.,
"and for the appointment, regulation,
and management of the watchmen and
beadles hereinafter directed to be
employed, and also for the regulation
of the constables duly appointed to
serve for the same, as to them shall
appear necessary and expedient."
By sect. 10 the governors and
directors are empowered to bring or
cause to be brought, and to defend or
cause to be defended, any suit or suits,
action or actions, relating to or in any-
wise affecting" the property *provided
for the purposes of the Act, or other.
wise relating to the due execution of
this Act."

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Sect. 12 fixes the times at which the

according to the provisions of the Act last mentioned, appointed governors and directors of the *poor of the said part of St. Andrew Holborn and St. George the Martyr. That, on 1st, 5th and 18th January, 1850, Mitchiner (after certain formal steps, which were recited in the complaint) held the half-yearly audit for that district, and disallowed, in the accounts of the said part of St. Andrew Holborn and St. George the Martyr, the sum of 631. 168. 1d., forming part of a gross sum of 821. 16s. 11d. which had been paid to their clerk. That Mitchiner surcharged Law, Southgate and Smith with this sum of 631. 16s. 1d., and certified accordingly, and reported the certificate to the Commissioners within less than nine calendar months before the complaint. That Law, Southgate and Smith had not paid the sum. Mr. Tyrwhitt's order then adjudged that they should pay the same to the treasurer

governors and directors are to meet, "to calculate, ascertain, and settle the amount of the several sums of money which shall be considered requisite to be assessed and charged, as well for the relief, maintenance, lodging, and employment of the poor of the said part" &c. "and the said parish" &c., "and for regulating and maintaining a nightly watch and beadles within the same, as for discharging any debt' remaining unsatisfied by reason of the deficiency of any former rate.

Sect. 13 directs the inhabitants, within twenty days "after the several sums of money shall have been so ascertained as aforesaid," to meet and "make two distinct rates or assessments, to be raised by an equal pound rate," the gross amount not to exceed the gross amount of the sums so ascertained, after allowing for deficiencies in collecting; "one of such rates to be for and to be applied towards the relief, maintenance, lodging, and employment of the poor of the said part" &c. "and the said parish" &c., "and the other of such rates to be for and to be applied towards defraying the expenses of the watch and beadles to be employed for and within the same."

Sect. 28 enables the governors and directors to appoint a clerk, collectors, treasurers, assistant overseers, inspectors, "together with such other officers

and servants as they shall deem neces-
sary for the due execution of this
Act;" and, "out of the rates to be
collected by virtue of this Act," "to
pay and make such salaries, remunera-
tions, and allowances to the clerk and
other officers and servants (except the
treasurer or treasurers) as they the
said governors and directors shall in
their discretion think proper."

By sect. 30 the inhabitants are
empowered to elect, annually, "audi-
tors of the accounts of the said gover-
nors and directors," who are to meet
twice at least in each year, for the
purpose of auditing the accounts:
"and in case the said auditors should
think there is just cause to disapprove
of any part of the accounts so to be
presented, it shall be lawful for the
said auditors, or the major part of
them, if they shall think fit, to appeal
against the same," as provided in the
Act.

of the guardians of the said part of St. Andrew Holborn and

St. George the Martyr; and that the same if not paid should be levied by distress and sale; and, in default of distress, they should be imprisoned for a month, unless the sums and costs &c. should be sooner paid.

The affidavits in support of the rule stated that legal evidence was given before Mr. Tyrwhitt of all the facts mentioned in the order. That application for payment had been made to Law, Southgate and Smith, but they had not paid. That they had been summoned before Mr. Tyrwhitt to show cause why a distress warrant should not issue: but he, on the hearing (29th May, 1852), declined to issue the warrant.

Lush now showed cause :

The union auditor had no power to disallow the payment in question. That payment was made under the provisions of stat. 6 Geo. IV. *c. clxxv., which gives to the district of St. Andrew Holborn above Bars and St. George the Martyr auditors of their own, distinct from those appointed by the Poor Law Commissioners. By sect. 5 of that Act power is given to the inhabitants of the district to elect governors and directors of the poor. By sect. 10 the governors and directors are empowered to cause actions to be brought or defended. By s. 28 the directors are empowered to appoint a clerk; and also to appoint collectors and treasurers; and, out of the rates to be collected under the Act, to "pay and make such salaries, remunerations and allowances to the clerk and other officers and servants (except the treasurer or treasurers) as they the said governors and directors shall in their discretion think proper." By sect. 30 the inhabitants are empowered to elect, annually, "auditors of the accounts of the said governors and directors," who are to meet twice at least in each year, for the purpose of auditing the accounts. It is clear, therefore, that the local Act gives the governors and directors unlimited discretion as to what allowances they make to their clerks and other officers and the district auditor, under stat. 7 & 8 Vict. c. 101, s. 32, has no power to strike out any items. It is only where no local Act exists that he has this power. Here the district has auditors of its own. Moreover, the local Act, under which the payment is made, is for other purposes besides the relief of the poor; and therefore the payment which has been disallowed does not fall within the jurisdiction of the poor law auditor.

:

REG.

(ERLE, J. The auditor's power to disallow is given by stat. 7 & 8 : Vict. c. 101, s. 32; the whole question turns upon the interpreta- TYRWHITT. tion of that section. I think the words are verba generalissima.) [83]

Stat. 7 & 8 Vict. c. 101, s. 32, provides that every auditor "shall have full powers to examine, audit, allow, or disallow of accounts, and of items therein, relating to moneys assessed for and applicable to the relief of the poor of all parishes and unions within his district, and to all other money applicable to such relief." The provision for disallowing applies only where there are no auditors. under a local Act. In Reg. v. Governors of St. Andrew (1), it was held that the governors and directors of this district were bound to submit their accounts to the union auditor, appointed under stat. 4 & 5 Will. IV. c. 76, s. 46, but not that the latter had authority to disallow such an item as this in the accounts.

(LORD CAMPBELL, Ch. J.: The submission of the accounts would be useless unless the union auditor had some control over them.)

No doubt, he has control over all items with respect to which the local Act does not give the governors and directors a discretionary power.

Pashley, contrà, was stopped by the COURT.

LORD CAMPBELL, Ch. J.:

It seems quite clear that the union auditor had power to disallow this payment. The case mentioned is directly decisive upon the point: and, were there no precedent, I should have no hesitation in coming to the same conclusion.

WIGHTMAN, J. concurred.

ERLE, J.:

Reg. v. Governors of St. Andrew (1) *shows that the auditors appointed under stat. 4 & 5 Will. IV. c. 76, s. 46, had power to enquire into the expenditure of all the money raised under a poor rate, though some of it might be applicable to purposes other than the relief of the poor.

CROMPTON, J. concurred.

(1) 66 R. R. 290 (6 Q. B. 78).

Rule absolute.

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