The word "substantial," must be taken generally in its proper sense, but it Fourthly, Who is so far relative, that where there were no other persons to serve, two day- to be appointed, labourers with some land annexed to their cottages, of whom one only was &c. a proprietor, and the other a farmer's servant, were held to be competent overseers, although the appointment of such men might be improper "in a Who may be place where there are a great many opulent farmers." Rex v. Stubbs, appointed. 2 T. R. 406; 1 Bott, 5. And in the same case it was held that the phrase "substantial householders" has no reference to sex; although men are more Women. proper to be appointed than women, where there are a sufficient number of men qualified; yet a woman may be appointed where the necessity of the case requires it. dents. The appointment of persons resident only for a part of the year, is dis- Occasional resicouraged by the courts: but such persons seem eligible in cases of necessity. Rex v. Moor, Carth. 161; 1 Bott, 9; 1 Nol. P. L. 50. And the justices are to determine where this necessity exists, being "invested with a discretionary power of approbation." Rex v. Stubbs, 2. T. R. 395; 1 Bott, 11; Rex v. Gayer, 1 Burr. 245. The following classes are exempt from serving this office, and the justices therefore are not at liberty to make their nomination from among any of these persons. 1. Peers, by reason of their dignity. 1 Gibs. Codex, 215. 2. Members of parliament, by reason of their privilege. Ibid. 3. Justices of the peace, as having the controul of overseers' accounts. Rex v. Gayer, 1 Burr. 245; 1 Bott, 9; and per Lord Kenyon, C. J., in Rex v. Pateman, 2 T. R. 779. In Rex v. Gayer, 1 Burr. 245, the sessions, upon appeal, quashed the appointment of Gayer, and stated their reason,-because he was a justice, &c.; and King's Bench supported the judgment, upon the ground that the sessions had the same latitude of discretion as the two justices had. And in Rex v. Pateman, 2 T. R. 779, Lord Kenyon said, In Rex v. Gayer, it seems to have been agreed that the office of justice of the peace and overseer are incompatible, because the accounts of the latter were subject to the control of the former. Aldermen of London, who are justices of the peace, for the same reason. Rex v. Abdy, Cro. Car. 585; 1 Bott, 8. 4. Practising barristers and attornies, and officers of the superior courts, are privileged, though there be a special custom for every parishioner to serve, according to the situation of his house. Rex v. Prouse, Cro. Car. 389; 1 Bott, 7; 1 Nol. P. L. 51; Et vide 8 T. R. 379, note (a). An officer of the Court of Exchequer, Cawthorne v. Campbell, 1 Anst. 205, 216; 8 T. R 376. The clerk of the treasury of the Court of Common Pleas, is bound to a personal attendance on his duties, and, therefore, is not compellable to serve the office. Ex-parte Jefferies, 6 Bing. 195. And these officers may be relieved by writ of privilege, id ibid.; 8 T. R. 377; 1 Chan. Rep. 196. Who are not to be appointed Overseers. Peers. parliament. Aldermen of London, Practising bar- officers of courts. 5. The president, commons, and fellows of the college of physicians, Physicians. (whose exemption, however, extends no further than the city of London,) but apparently no other physicians. 32 Hen. VIII. c. 40. (See 1 Bott, 13.) 6. Clergymen, though without cure of souls. Anon. 1 Bott, 9 Gibs. Clergymen. Codex, 215; 6 Mod. 140. 7. Dissenting ministers, taking the oaths and subscribing the declaration Dissenting and articles pointed out by 1 W. & M. c. 18, although they be also engaged ministers. in a trade. i W. & M. c. 18, s. 11; 52 Geo. III. c. 155, s. 9. Kenward v. Knowles, Willes, 463; 1 Gibs. Codex, 215. 1 Const. 14 P. L. 27; 1 Nol. 52. 8. Churchwardens during their continuance in office. Rex v. All Saints, Churchwardens. Derby, 13 East, 143. London. 9. Freemen of the company and corporation of surgeons, established by Freemen of the 18 Geo. II., c. 15, who have been examined and approved pursuant to the surgeons in rules of the company, so long as they exercise surgery and no longer. 18 Geo. II. c. 15, s. 10. 10. Apothecaries using their art in, or within seven miles of London, Apothecaries Fourthly, Who to be appointed, &c. Officers in the army. Officers of the customs, tidewaiters, revenue officers. Yeomen in ordinary. Non-commis. sioned officers, &c., of militia. Captains in the guards. PERSONS RESID- Power to appoint non-resident overseers. ASSISTANT OVER- APPOINTED (a). being free of the apothecaries' company (recognised by 6 & 7 W. III. c. 4), and having been examined and approved, and all persons using the said art in any other part of England, Wales, or Berwick-upon-Tweed, having served an apprenticeship of seven years according to the stat. 5 Eliz., so long as they exercise the art and no longer. 6 & 7 W. III. c. 4 s. 2, 3. 12. Officers of the army, navy, or marines, whether on whole or half-pay, from their liability to be sent on service. Rex v. Gayer, 1 Bott,9; 1 Burr. 245. 13. Officers of the customs, tide-waiters, exchequer, and all other revenue officers, both by reason, it should seem, of the incompatibility of the functions, and by reason of the exemption granted them by the king, who has power to exempt by patent, charter, or otherwise, not only from offices under the crown, but even from parochial offices. Rex v. Warner, 8 T. R. 375; Raymond v. St. Botolph's, Aldgate, 2 Chan. Rep. 196; Cawthorne v. Campbell, 1 Anstr. 216. See also Rex v. Routledge, Doug. 531. But these exemptions granted by the prerogative were available only where there were a sufficient number of persons to serve the office, without recourse to the individuals so exempted. 8 T. R. 379, note (a); Rex v. T. Clarke, 1 T. R. 686; but by 7 & 8 Geo. IV. c. 53, officers of customs and excise are absolutely exempt. 14. Yeomen in ordinary of the king's body guard. Ibid. Rex v. Great Marlow, 2 East, 245. 15. Serjeants, corporals, drummers, and privates of militia, from the time of their enrolment until they be regularly discharged; but there is no exemption enacted for the officers of that force. 42 Geo. III. c. 90, s. 174. 16. Captains in the guards. (See 1 Bott, 9, note (e).-1 Nolan, P. L. 51.) 17. Dissenters scrupling to take the office, on account of the oaths or other matters required by law, repugnant to their peculiar religious opinions, are permitted to execute it by deputy, approved by such persons, and in such manner as the principal should have been approved. 1 W. & M. sess. 1, c. 18, s. 7. 18. An immemorial custom to be exempted from all office, will exempt a person from this office, though it is an office created within legal memory. (See Littledale, J., in Farr v. Hollis, 9 B. & C. 338.) The exemption from parish and ward offices, given by the 10 & 11 W. III. c. 23, and 58 Geo. III. c. 70, to prosecutors of felons to conviction, no longer exists, those statutes having been repealed by 7 Geo. IV. c. 64, and 7 & 8 Geo. IV. c. 27. Subject to these exemptions, the justices of the peace may appoint such householders as they in their discretion think meet. And they are no longer limited of necessity to householders residing in the parish or township; for The 59 Geo. III. c. 12, s. 6, has provided, "That it shall be lawful for his Majesty's justices of the peace, in their respective special sessions for the appointment of overseers of the poor, upon the nomination, and at the request of the inhabitants of any parish in vestry assembled, to appoint any person who shall be assessed to the relief of the poor thereof, and shall be a householder resident within two miles from the church or chapel of such parish, or where there shall be no church or chapel, shall be resident within one mile from the boundary of such parish, to be an overseer of the poor thereof, although the person so to be appointed shall not be a householder within the parish of which he shall be so appointed an overseer of the poor; and it shall be sufficient, in every such appointment, to describe the person appointed by his name and residence, provided that no person shall be appointed to, or be compellable to serve the office of overseer of the poor of any parish or place in which he shall not be a householder, unless he shall have consented to such appointment." Sect. 7, enacts, "That it shall be lawful for the inhabitants of any parish (a) As to the duties and liabilities of use of poor, for his profit, same as an overseer, id. But he is not liable for neglect of any supposed duty not prescribed in his appointment, id. ibid. &c. The word "substantial,” must be taken generally in its proper sense, but it Fourthly, Who is so far relative, that where there were no other persons to serve, two day- to be appointed, labourers with some land annexed to their cottages, of whom one only was a proprietor, and the other a farmer's servant, were held to be competent overseers, although the appointment of such men might be improper" in a who may be place where there are a great many opulent farmers." Rex v. Stubbs, appointed. 2 T. R. 406; 1 Bott, 5. And in the same case it was held that the phrase "substantial householders" has no reference to sex; although men are more Women. proper to be appointed than women, where there are a suflicient number of men qualified; yet a woman may be appointed where the necessity of the case requires it. The appointment of persons resident only for a part of the year, is dis- Occasional resicouraged by the courts: but such persons seem eligible in cases of necessity. dents. Rex v. Moor, Carth. 161; 1 Bott, 9; 1 Nol. P. L. 50. And the justices are to determine where this necessity exists, being "invested with a discretionary power of approbation." Rex v. Stubbs, 2. T. R. 395; 1 Bott, 11; Rex v. Gayer, 1 Burr. 245. The following classes are exempt from serving this office, and the justices who are not to therefore are not at liberty to make their nomination from among any of be appointed these persons. 1. Peers, by reason of their dignity. 1 Gibs. Codex, 215. 3. Justices of the peace, as having the controul of overseers' accounts. Rex v. Gayer, 1 Burr. 245; 1 Bott, 9; and per Lord Kenyon, C. J., in Rex v. Pateman, 2 T. R. 779. In Rex v. Gayer, 1 Burr. 245, the sessions, upon appeal, quashed the appointment of Gayer, and stated their reason,-because he was a justice, &c.; and King's Bench supported the judgment, upon the ground that the sessions had the same latitude of discretion as the two justices had. And in Rex v. Pateman, 2 T. R. 779, Lord Kenyon said, In Rex v. Gayer, it seems to have been agreed that the office of justice of the peace and overseer are incompatible, because the accounts of the latter were subject to the control of the former. overseers. Peers. parliament. Aldermen of London, who are justices of the peace, for the same reason. Aldermen of Rex v. Abdy, Cro. Car. 585; 1 Bott, 8. 4. Practising barristers and attornies, and officers of the superior courts, are privileged, though there be a special custom for every parishioner to serve, according to the situation of his house. Rex v. Prouse, Cro. Car. 389; 1 Bott, 7; 1 Nol. P. L. 51; Et vide 8 T. R. 379, note (a). An officer of the Court of Exchequer, Cawthorne v. Campbell, 1 Anst. 205, 216; 8 T. R 376. The clerk of the treasury of the Court of Common Pleas, is bound to a personal attendance on his duties, and, therefore, is not compellable to serve the office. Ex-parte Jefferies, 6 Bing. 195. And these officers may be relieved by writ of privilege, id ibid.; 8 T. R. 377; 1 Chan. Rep. 196. London, risters and officers of courts. 5. The president, commons, and fellows of the college of physicians, Physicians. (whose exemption, however, extends no further than the city of London,) but apparently no other physicians. 32 Hen. VIII. c. 40. (See 1 Bott, 13.) 6. Clergymen, though without cure of souls. Anon. Ì Bott, 9 Gibs. Clergymen. Codex, 215; 6 Mod. 140. 7. Dissenting ministers, taking the oaths and subscribing the declaration Dissenting and articles pointed out by 1 W. & M. c. 18, although they be also engaged ministers. in a trade. i W. & M. c. 18, s. 11; 52 Geo. III. c. 155, s. 9. Kenward v. Knowles, Willes, 463; 1 Gibs. Codex, 215. 1 Const. 14 P. L. 27; 1 Nol. 52. 8. Churchwardens during their continuance in office. Rex v. All Saints, Churchwardens. Derby, 13 East, 143. London. 9. Freemen of the company and corporation of surgeons, established by Freemen of the 18 Geo. II., c. 15, who have been examined and approved pursuant to the surgeons in rules of the company, so long as they exercise surgery and no longer. 18 Geo. II. c. 15, s. 10. 10. Apothecaries using their art in, or within seven miles of London, Apothecaries Fourthly, Who to be appointed, &c. Officers in the army. Officers of the customs, tidewaiters, revenue officers. Yeomen in ordinary. Non-commis. sioned officers, &c., of militia. Captains in the guards. PERSONS RESID- Power to appoint non-resident overseers. ASSISTANT OVER- APPOINTED (a). being free of the apothecaries' company (recognised by 6 & 7 W. III. c. 4), and having been examined and approved, and all persons using the said art in any other part of England, Wales, or Berwick-upon-Tweed, having served an apprenticeship of seven years according to the stat. 5 Eliz., so long as they exercise the art and no longer. 6 & 7 W. III. c. 4 s. 2, 3. 12. Officers of the army, navy, or marines, whether on whole or half-pay, from their liability to be sent on service. Rex v. Gayer, 1 Bott,9; 1 Burr. 245. 13. Officers of the customs, tide-waiters, exchequer, and all other revenue officers, both by reason, it should seem, of the incompatibility of the functions, and by reason of the exemption granted them by the king, who has power to exempt by patent, charter, or otherwise, not only from offices under the crown, but even from parochial offices. Rex v. Warner, 8 T. R. 375; Raymond v. St. Botolph's, Aldgate, 2 Chan. Rep. 196; Cawthorne v. Campbell, 1 Anstr. 216. See also Rex v. Routledge, Doug. 531. But these exemptions granted by the prerogative were available only where there were a sufficient number of persons to serve the office, without recourse to the individuals so exempted. 8 T. R. 379, note (a); Rex v. T. Clarke, 1 T. R. 686; but by 7 & 8 Geo. IV. c. 53, officers of customs and excise are absolutely exempt. 14. Yeomen in ordinary of the king's body guard. Ibid. Rex v. Great Marlow, 2 East, 245. 15. Serjeants, corporals, drummers, and privates of militia, from the time of their enrolment until they be regularly discharged; but there is no exemption enacted for the officers of that force. 42 Geo. III. c. 90, s. 174. 16. Captains in the guards. (See 1 Boti, 9, note (e).—1 Nolan, P. L. 51.) 17. Dissenters scrupling to take the office, on account of the oaths or other matters required by law, repugnant to their peculiar religious opinions, are permitted to execute it by deputy, approved by such persons, and in such manner as the principal should have been approved. 1 W. & M. sess. 1, c. 18, s. 7. 18. An immemorial custom to be exempted from all office, will exempt a person from this office, though it is an office created within legal memory. (See Littledale, J., in Farr v. Hollis, 9 B. & C. 338.) The exemption from parish and ward offices, given by the 10 & 11 W. III. c. 23, and 58 Geo. III. c. 70, to prosecutors of felons to conviction, no longer exists, those statutes having been repealed by 7 Geo. IV. c. 64, and 7 & 8 Geo. IV. c. 27. Subject to these exemptions, the justices of the peace may appoint such householders as they in their discretion think meet. And they are no longer limited of necessity to householders residing in the parish or township; for The 59 Geo. III. c. 12, s. 6, has provided, "That it shall be lawful for his Majesty's justices of the peace, in their respective special sessions for the appointment of overseers of the poor, upon the nomination, and at the request of the inhabitants of any parish in vestry assembled, to appoint any person who shall be assessed to the relief of the poor thereof, and shall be a householder resident within two miles from the church or chapel of such parish, or where there shall be no church or chapel, shall be resident within one mile from the boundary of such parish, to be an overseer of the poor thereof, although the person so to be appointed shall not be a householder within the parish of which he shall be so appointed an overseer of the poor; and it shall be sufficient, in every such appointment, to describe the person appointed by his name and residence, provided that no person shall be appointed to, or be compellable to serve the office of overseer of the poor of any parish or place in which he shall not be a householder, unless he shall have consented to such appointment." Sect. 7, enacts, "That it shall be lawful for the inhabitants of any parish (a) As to the duties and liabilities of an assistant overseer, see Bennet v. Edwards, 7 B. & C. 586; 6 Bing, 230; 3 Young & J. 464. An assistant overseer is liable to penalty for selling goods for use of poor, for his profit, same as an overseer, id. But he is not liable for neglect of any supposed duty not prescribed in his appointment, id. ibid. * Sic. &e. in vestry assembled, to nominate and elect any discreet person or persons to Fourthly, Who be assistant overseer or overseers of the poor of such parish, and to deter- to be appointed, mine and specify the duties to be by* or them executed and performed, and to fix such yearly salary for the execution of the said office as shall by such inhabitants in vestry be thought fit; and it shall be lawful for any two of his Majesty's justices of the peace, and they are hereby empowered, by warrant under their hands and seals, to appoint any person or persons who shall be so nominated and elected to be assistant overseer or overseers of the poor, for such purposes, and with such salary, as shall have been fixed by the inhabitants in vestry; and such salary shall be paid out of the money raised for the relief of the poor, at such times and in such manner as shall have been agreed upon between the inhabitants in vestry and the respective persons so to be appointed; and every person to be so appointed assistant overseer shall be and he is hereby authorised and empowered to execute all such of the duties of the office of overseer of the poor as shall in the warrant for his appointment be expressed in like manner and as fully, to all intents and purposes, as the same may be executed by any ordinary overseer of the poor; and every person or persons so appointed shall continue to be an assistant overseer of the poor until he or they shall resign such office, or until his or their appointment shall be revoked by the inhabitants of the parish in vestry assembled, and no longer; and it shall be lawful for the inhabitants of any parish, upon the nomination and election by them of an 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 Security may be as they shall think fit; and every such bond shall be made to the church- taken. wardens and overseers of the poor, and may, on any breach of the condition thereof, be put in suit by and in the names of the churchwardens and overseers of the poor for the time being, by the direction of the vestry or select vestry, for the benefit of the parish, in the manner hereinafter provided.” Sect. 35. The same provision as to the election of an assistant overseer, is extended to all townships, vills, and places having separate overseers, and maintaining their poor separately. The election, and confirmation thereof by warrant of the justices, of assistant overseer, with salary, under the above act, being an appointment in writing to an office or employment, it comes within the stamp act (55 Geo. III. c. 184, tit. "Grant"). And where a pauper had been so appointed at a salary of 101. a-year, it was said, "this is an appointment in writing to an office or employment where the yearly salary does not amount to 50l. a-year; it is therefore within the very words of the act, and requires a 21. stamp." (Rex v. Inh. of Lew, 8 B. & C. 655.) When appoint ment must be stamped. As to the appointment of guardians of the poor, see Gilbert's act, 22 Appointment of Geo. III. c. 83, s. 7; 33 Geo. III. c. 55. (See Index, tit. Guardians.) guardians. Fifthly-At what Time and by whom to be appointed.(a) (a) The 43 Eliz. c. 2, terms the investing a person with authority as overseer, a "nomination;" the 54 Geo. III. c. 91, calls it an appointment." The magistrates alone can by law make the nomination or appointment, and no usage can entitle the parishioners to elect them. 3 T. R. 138, post, 21. However it is usual for the magistrates to appoint the overseers out of a list selected Fifthly, When and by whom to be appointed.(a) |