The King against Payn

[392] the king against payn. Monday, January 30th, 1837. By stat. 12 G. 2, c. 29, s. 7, the treasurer of every county is to keep books of entries of sums received and paid by him; and is also to deliver in accounts to the justices at every Quarter Sessions, with vouchers ; and, by sect. 8, the accounts and vouchers, after having been passed by the justices, are to be deposited with the clerk of the peace, who is to keep them among the records of the county, to be inspected by the justices. A treasurer delivered in documents, consisting of separate papers, containing respectively the clerk of the peace's account of the county rate, and other charges to the treasurer's debit, and also the bills which he had paid, and the vouchers. At the same time he exhibited his book of entries of the sums received and paid. The justices compared the book with the documents, deposited the documents and vouchers with the clerk of the peace, signed the treasurer's discharge (under sect. 9) in his book of entries, and returned it to him so signed. Held, 1. That the book of entries thereby became the accounts passed, and therefore that such book was to be kept by the clerk of the peace, not by the treasurer himself. 2. That a mandamus lay to the treasurer to deposit it. 3. And this, although it contained, besides the discharges of the treasurer, those of his father, who had been treasurer before him, and had passed the accounts in the same way. 4. And although the affidavits on which the rule was granted contained (besides the above facts) charges of dishonesty against the treasurer, which the opposing affidavits alleged to be false within the knowledge of the applicants, and omitted facts exculpating the treasurer from such charges, which also the opposing affidavits alleged to be within the knowledge of the applicants. The mandamus issued, reciting the book to be in the defendant's custody, power, and control; and was tested the day on which the rule for the mandamus was made absolute. Return, that the book was not at the time of the teste, nor since, nor at the time of the return, in the custody, &c. The Court refused to take the return off the file, or quash it, on motion, upon affidavit of the facts as above stated, and of the belief of deponents that the defendant's object was to evade the process of the Court. But the Court refused the defendant the costs of the last motion, though moved with costs. [S. C. 1 N. & P. 524; W. W. & D. 142; 6 L. J. M. C. 62; 1 Jur. 54.] Sir John Campbell, Attorney-General, obtained a rule in last term, calling upon William Payn, the treasurer of Berkshire, to shew cause why a mandamus should not issue commanding him to deposit with the clerk of the said county the two books (a) 2 A. & E. 405. See ibid. p. 409, note (a). ' See p. 387, note (c), ante. SAD. ttS. 393. THK KING V. PAYN 151 containing his accounts of the sums of money received and paid by him as such treasurer from the date of his appointment, arid which accounts had been passed by the justices in Quarter Sessions (a). The rule was obtained at the instance, and on the joint affidavits, of two justices of the county. They deposed that the defendant was appointed in 1822; and that, from the early part of 1825 up to Epiphany Sessions, 1835, he passed his accounts by producing to a [393] committee of the justices, called the Finance Committee, certain books, one from the date of his appointment to 1833, the other from thence to the time of making the affidavit, represented by him to contain a true account of sums received and paid, and distinguishing the uses to which the sums were applied, with such vouchers as he thought proper; and that such accounts had been passed by the justices, and the books and vouchers returned to the defendant: that he had passed no other accounts till Epiphany Sessions 1836 : that none of the accounts so passed and entered in the said books had been deposited with the clerk of the peace, or formed part of the county records : that, from his appointment to July 1825, the defendant published an annual abstract of his accounts, and since then a quarterly abstract, which abstracts had been deposited by him with the clerk of the peace, together with such vouchers as the defendant thought fit. The affidavits then stated certain inaccuracies and omissions in the defendant's accounts, appearing, as was alleged, from the above abstracts ; and one of the deponents stated that, if the abstracts were correct (which he had no means of knowing, from the accounts not being deposited), certain receipts had been omitted, and certain payments twice charged : and items were specified in support of this. It was added that the treasurer had disclaimed being bound by the abstracta, and had said that he would be bound only by his books, which were correct. The deponents also stated that they believed the accounts could not be understood, and did not know what steps the justices should adopt, till the accounts in the books were deposited; and that they had demanded that the books should be deposited, but defendant had refused. [394] The defendant, in answer, made affidavit that he had delivered to the magistrates, at the time for passing the accounts, the bills for all his disbursements, with the receipts for the payments, and separate accounts of his own receipts, such as the clerk of the peace's account of sums levied for the county rates, &c. : that he had also kept books of entries, being the two books in question, of the several suras respectively received and paid by him : that these books were examined by the justices with the separate accounts of receipts and disbursements above mentioned, at the time of passing the accounts ; and that the...