Worth and Others v Newton
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1854 |
| Date | 07 July 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 435
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C L. R 1471, 23 L. J. Ex. 338, 2 W. R. 628
[247] worth and others v newton July 7, 1854 -The acceptance by the holder of one office of another incompatible office, does not vacate the former, unless it be such as he could determine by his own act simply, or unless that authority concurred in the new appointment, which could accept the surrender of or amove from the old one -In the year 1843, P. was, according to the provisions of the 59 Geo 3, c 12, s 7, nominated and elected by the vestry of a certain parish, and appointed by two justices, assistant overseer of that parish The warrant of appointment defined the duties of assistant overseer, one of which was, to account, when required by the overseers or vestry, for money received or expended, to the persons authorised to receive the same. By the above statute, every person so appointed is to continue assistant overseer until he shall resign such office, or until his appointment shall be revoked by the vestry Security was, according to the statute, taken for the faithful execution of the office by bond with sureties, made to the churchwardens and overseers of the parish. P continued to act in the execution of such office until March, 1852, when he lesigned. In the year 1847, P was appointed one of the overseers of the same parish, and he was afterwards, from year to year, re-appomted and acted as such until 1852. P having made default in accounting for monies received by him as assistant overseer, and an action having been brought on the bond against one of the sureties -Held, first, that assuming the two offices to be incompatible (which they weie not), the acceptance of the office of overseer did not vacate that of assistant overseer, since the holder could not divest himself of the Litter office by his own act simply,- the word resign in the statute meaning a formal notification to the vestry of the act of giving up the office and since, also, there was no implied amotion from the old by appointment to the new office, for the authority appointing to that office could not remove, nor was there any implied surrender, because the same authority could not accept a surrender of the old office.-Secondly, that, if the offices were incompatible, the appointment as overseer would be either void or voidable only, in which case it would be vacated on appeal - Thirdly, that, as the assistant overseer was not bound to account to the overseer, his appointment as overseer did not make such an alteration in the mode of accounting as would affect the liability of the sureties [S. C. 2 C L. R 1471, 23 L. J. Ex. 338, 2 W. K. 628 ] This was an action by the Churchwardens and Overseers of the Poor of the Parish of East Ketford, in the county of Nottingham, against the defendant, on a 436 WORTB V. NEWTON 10 EX 248. bond conditioned for the faithful execution by one John Pierey of the office of assistant overseer of the poor of the said parish. By consent of the parties, and by order of a Judge, the following case was stated for the opinion of this Court, without any pleadings :-In 1843, the said J Pierey was, according to the provisions of the statute 59 Geo. 3, c 12, nominated and elected by the vestry of the said parish, and appointed by two justices of the borough of East Retford, assistant overseer of the poor of the said parish, at a yearly salary of sixpence in the pound, upon the rates annually collected by him. Such nomination, election, and appointment were not limited to any particular period, but weie made generally, and security was, according to the said statute, taken for the faithful execution of the said office, by a bond with [248] sureties, made to the then churchwaidens and overseers of the poor of the said palish [The case then set out the bond, which was in the penal sum of 2001, to l e paid to the said chuichwardens and overseers, and their successors, subject to the following condition.]-"Whereas, in and by an Act of Parliament made and passed in the 59th yeai of the reign of his late Majesty George the Third, intituled ' An Act to amend the Laws for the Relief of the Poor,' after giving certain powers and authorities for the nomination and election of select vestries in manner as therein mentioned, it was enacted, that it shall be lawful for the inhabitants of any parish in vestrj- assembled to nominate and elect, and afterwards for two justices to appoint, any discreet person or persons to be assistant overseei or ovei seers of such parish, with such salary and under such regulations as in the said Act are directed ; and that it shall be lawful for the inhabitants of any parish, upon the nomination and election by them of any assistant overseer or overseers, to require and take security for the faithful execution of his or their office by bond, with or without a surety or sureties, and in such penalty as they shall think fit, and every such bond shall be made to the churchwaidens and overseers of the poor, and may, on any bleach of the condition thereof, be put in suit by and in the name of the churchwardens and overseers...
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