contract to be executed until his charges were paid: under an act authorising the commissioners to sue by their clerk, it was held that he could not sue as such clerk for these charges (i).

9.-TRUSTEES.

It seems that in general the only remedy by a cestui que trust against his trustees, for any breach of duty on their part in that character, is in equity (k). The principle upon which it has been decided, that executors and administrators are not liable to be sued at law for the recovery of legacies and distributive shares of an intestate's property, under the statute of distributions (1), equally if not more strongly applies to actions against trustees. But where by a marriage settlement the trustees covenanted to permit the husband to receive during his life the dividends. arising from bank stock vested in their names; and on the husband becoming a bankrupt, the trustees authorised a third person to receive the dividends, and pay them over to the bankrupt's wife; the court held that they were liable to his assignee in an action for money had and received; for the trustees had no power to receive the money under the trust deed, and acted wrongfully in enabling a person to receive it who had no valid claim thereto (m). So if a trustee state an account, and admit that a balance belonging to the cestui que trust is in his hands, an action for money had and received may be maintained against him by the cestui que trust on such admission (n).

In Reinon v. Hayward (2) the defendant signed a paper as

(i) Curling v. Johnson, 10 Bing. 89; 3 M. & Scott, 496, S. C.

(k) See Co. Litt. 272, b.; Allen_v. Impett, 2 Moore, 246, per Park, J.; Chidleigh's Case, 1 Coke R. 121, b. ; Foorde v. Hoskins, 2 Bulstr. 336; Raw v. Cutten, 2 M. & Scott, 123; 9 Bing. 96, S. C.; Mileham v. Eicke, 3 Mee. & W. 407; 1 Chitty, Pl. 6th ed., 34. (1) Ante, 270, 271.

(m) Allen v. Impett, 2 Moore, 240; 8 Taunt. 263, S. C.; overruling 1 Holt, R. 641, S. C. Gibbs, C. J., was absent, and Dallas, J., was it seems of a contrary opinion, at the trial before him. Under the particular circumstances of this case, the defendants appear to have lost all protection from their character as trustees, and were not charged in that character. Had

they merely refused to allow the bankrupt to receive the money, the only relief would, it seems, have been in equity. There may be other instances analogous to the case of executors, in which trustees may be liable as for money had and received; see ante, 271. The trustees of a savings' bank cannot be sued at law; arbitration is the remedy on 9 G. 4, c. 92, s. 45, amended by 3 & 4 W. 4, c. 14; Crisp v. Bunbury, 1 M. & Scott, 646; 8 Bing. 394, S. C.; Rex v. Trustees of Mildenhall Savings' Bank, 2 Nev. & P. 278; see 10 G. 4, c. 56.

(n) Roper v. Holland, 4 Nev. & M. 668; 3 Ad. & E. 99; 1 Harr. & Woll. 167, S. C.

(0) Reinon v. Hayward, 2 Ad. & E.

666.

follows: "I hold of M. T. 371., to put into a savings bank for her;" and this was held to be evidence of a legal debt of 371. from the defendant to M. T., the money not having been put into the savings bank, but partly paid to the use of M. T., and not of a mere trust and it was decided that M. T. might sue for the balance, though parol evidence was given that the defendant had originally received the money to be applied at his discretion to the use of M. T.

10. OF THE CONTRACTS OF PARISH OFFICcers.

The poor law amendment act, 5 & 6 Will. IV. c. 76, and other modern statutes, effect some important alterations in the mode of appointment, and of the duties of the officers of parishes (p). And by the seventh section of the 5 & 6 Will. IV. c. 69, guardians of the poor of unions and parishes are incorporated, and as such empowered to take and hold lands, hereditaments, goods, effects, and other property, and to use a common seal, and in their corporate name to sue and be sued; and all property theretofore conveyed to any person in trust for any union or parishes is without any further act vested in such guardians as such corporation.

The 4 & 5 Will. IV. c. 76, s. 49, provides that contracts "which shall be entered into by or on behalf of any parish or union, for or relating to the maintenance, clothing, lodging, employment, or relief of the poor, or for any other purpose relating to or connected with the general management of the poor," shall not be valid unless in conformity with the rules of the commissioners, or otherwise sanctioned by them.

Parish officers are bound by law to take care of the casual poor in the parish; and if a private individual pay for absolute necessaries for such casual poor, he may recover the money on an implied assumpsit from the parish officers personally (q). Nor

(p) See the statutes and decisions collected in Chitty's Burn's Justice, and Chit. & Hulme's Statutes, tit. Poor.

(4) Simmons v. Wilmot, 3 Esp. 91; Wennall v. Adney, 3 B. & P. 253; Gent v. Tomkins, cited in Tomlinson v. Bentall, 5 B. & C. 745, 746, note. Deputy overseer not liable unless he personally retain the surgeon; Watling v. Walters, 1 C. & P. 132; see id. note (a). By the 4 & 5 Will. 4,

c. 76, s. 54, in all parishes having guardians or a select vestry, in cases of sudden and urgent necessity the overseer is required to give temporary relief, whether the poor person is settled in his parish or not, and any justice of the peace may give an order for medical relief in cases of sudden and dangerous illness. As to who are "casual poor," see per Bayley, B. Paynter v. Williams, 1 C. & M. 815.

can the parish officers recover from the master of a pauper the amount of a surgeon's bill for curing the pauper, although the injury arose whilst the pauper was acting in his master's employ; the master not having expressly rendered himself liable (r). And where a pauper being casually in the parish of A., met with an accident therein which disabled her, and which required immediate medical assistance, but the constable of that parish improperly removed her to her own adjoining parish, and sent for the surgeon of that parish to attend her; the court held that it was the duty of the parish officers of A. to have taken the pauper to the nearest house in A., and to have procured medical attendance there; that they could not, by improperly removing her to another parish, relieve themselves from this liability, and were therefore bound to pay the surgeon's bill (s). But where a pauper had his leg accidently fractured in one parish, and was conveyed to the nearest and most convenient house, which was in an adjoining parish, and was confined there and visited by the overseer of the poor of the latter parish, and attended by the surgeon who attended such poor, with the knowledge of the overseer; it was held that the surgeon might have assumpsit against the overseer for the expenses of the cure; for the overseer's knowledge that the parish surgeon attended the invalid, and his omission to repudiate such attendance, were equivalent to a request to the surgeon to render his assistance (t). And under such circumstances the parish would be liable not only to a surgeon, but to any person who took care of or furnished necessaries to such pauper (u). The law will not raise an implied promise in the parish where a pauper is settled, to reim

(r) Newby v. Wiltshire, 4 Dougl. 284; 2 Esp. R. 739, S. C.; Wennall v. Adney, 3 B. & P. 247.

(s) Tomlinson v. Bentall, 8 D. & R. 493; 5 B. & C. 738, S. C.

(t) Lamb v. Bruce, 4 M. & Selw. 275; Paynter v. Williams, 1 C. & M. 810. There it appeared that a pauper whose settlement was in the parish of A., resided in the parish of B., and whilst there received relief from the parish of A., which relief was afterwards discontinued, the overseers objecting to pay any more unless the pauper removed into his own

burse the money laid out by another parish in which he happened to be, in providing necessary medical assistance for him upon the occasion of his illness, &c. in the latter parish (x).

Two divisions within a parish had separate overseers and separate rates, and managed their poor separately; but at the end of every year, in making up their accounts, the overseers of the one (if they had money in hand) paid the balance over to the overseers of the other: it was decided that this was in effect one joint parochial account, and that all the overseers were to be considered as joint overseers of the parish at large. It was also held, that where a payment has been made by a party at the sole request of one overseer, and without the knowledge of the others, and no demand is made upon them till after they are out of office, it is a question proper for the jury to say whether, under special circumstances, the party ought not to be considered as having relied upon the sole responsibility of the overseer at whose request the payment was made (y).

The 4 & 5 Will. IV. c. 76, s. 69, repeals the former acts relating to the liability and punishment of the putative fathers of bastard children, and the punishment of the mothers of such children. The 71st section provides, that the mother of such children born after the passing of that act shall, so long as she be unmarried or a widow, be bound to maintain such children until they attain the age of sixteen; and section 62 gives the justices at the general quarter sessions power, where the mother is unable to support her child, to make an order on the father for its support, provided the evidence of the mother of such child shall be corroborated in some material particular by other testimony to the satisfaction of the court.

In case of marriage by any woman having children, either legitimate or illegitimate, the husband is made liable by the same act (z)" to maintain such child or children as part of his family," until such child or children shall respectively attain the age of sixteen, or until the death of the mother. The settlement of such children is however not changed by the act (a), and the

(r) Atkins v. Banwell, 2 East, 505; Tomlinson v. Bell, 5 B. & C. 738.

(y) Malkin v. Vickerstaff, 3 B. & Ald. 89; Astle v. Thomas, 2 B. & C. 271; 3 D. & R. 492, S. C.; and see

post, 288.

(z) 4 & 5 Will. 4, c. 76, s. 57.

(a) Rex v. Walthamstow, 6 A. & E. 301; Reg. v. Wendron, 7 A. & E.

819.

power of removal to the mother's previous settlement, in case of the children becoming chargeable to the stepfather's parish, is still left (b).

The poor law amendment act also makes void all securities and recognizances for the indemnity of parishes against children. likely to be born bastards, whereof any single woman should be pregnant at the time of the passing of the act (c).