Page images

The site of a

stitute a vill,


Secondly, which, in fact, was not so; and the inhabitants of it might, by this contrivWhat a town- ance, withdraw themselves from contributing towards the support of the ship or vill.

poor of their parish.

In Rex v. Justices of Peterborough, Cald. 238; 1 Bott, 50; 1 Nol. P. L. 15; cathedral and its on showing cause against a rule for a mandamus to require the appointment arca, do not con- of overseers of the poor for the Minster in Peterborough, it appeared that it though there be

was an extra-parochial place, containing upwards of sixty acres of ground, houses, upon which were twenty-five dwelling-houses at least, besides poor houses of &c., upon it. the annual value of 401. at least; that these houses were inhabited, except

in the instance of the bishop and three of the prebendal houses, altogether by laymen or strangers to the cathedral, and mostly persons of fortune, who kept servants that acquired settlements therein. That the poor had been supported from some fund belonging to the dean and chapter; that there never was any constable or other civil officer appointed for the said precinct, or any overseer of the poor, or church warden; nor had the inhabitants ever contributed to the relief of the poor within the precinct, or been called upon so to do.--Lord Mansfield. This space comprehends no more than the site of the cathedral and the area round it, and consequently was, in former times, within the sanctuary, and, as such, sacred and inviolable as the church itself. In modern times, to be sure, there is no such thing as sanctuary, but these places have, throughout all ages, without interruption, enjoyed those immunities, as Westminster Abbey now does, and other places of the like nature. The ancient inns of court, though not exactly upon this principle, have also, at all times, been privileged; and a similar exemption was not questioned in a late case, Rex v. Gardner, Coup. 79, with respect to that part of the court and garden ground of Catherine Hall in the university of Cambridge, which lay within the old and extra-parochial part of that foundation. Would you say that Christchurch, in Oxford, is a vill? I am not satisfied that this place is a vill, and the party applying do not even call it so.

- Buller, J. As the party applying for a mandamus does not state, as a fact, that this place was ever reputed a vill (which, where the facts of the case do not, upon some clear principle law, shew the place to be of that denomination, the Court has holden to be indispensably necessary for the purpose of founding an application for a mandamus), this case falls within

the case cited. Rule discharged. Vill and hamlet An order, appointing overseers of the “ hamlet” of B., in the parish of C., are synonymous is good; for it shall be intended that the place was a vill, unless it be stated

to be otherwise; for “ vill” and “ hamlet” are, in common acceptation, used as synonymous terms. Rex v. Morris, 4 T. R. 550; 1 Bott, 6, 65 ;

1 Nol. P. L. 11. If the sessions Rex v. Ronton Abbey, 2 T. R. 207; 1 Bott, 56. This was a case sent up find as a fact that by the sessions for the opinion of the Court of King's Bench; there were only the place is a

three houses, and no constable or tithing-man, nor, it seems, any church or chapel, and this passed as a vill; but there had been orders of removal to it executed, and some evidence was given of overseers and other officers having formerly been appointed; upon which it was expressly found by the sessions to be a vill by reputation, which precluded all question before the Court above, whether it were so or not; so that this case proves not that three houses alone make a vill, but only, that if a place be found by the sessions, upon the evidence there produced, to be a vill by reputation, it may be taken to be such, though there be but three houses remaining, and no other cha

racterizing circumstances. May be inquired Rer v. Standard Hill, 4 M. & S. 382. It appears by this case, (ante, 5,) into hy affidavit. that the Court of King's Bench will, on removal by certiorari of an ap

pointment by two justices of overseers of the poor, enquire, upon affidavit, whether the place for which the appointment is made, be a township or vill; and where it was neither stated, nor appeared from the affidavits, to be either a township, hamlet, or vill, or to be reputed such, the Court

quashed the appointment. Extra-parochial An extra-parochial district may become a township by act of parliament, place become a but, in that case, it cannot be treated for the purposes of settlement, &c., as township.


vill, it is conclu. sive.

having been of that denomination before the date of its creation, under the act, up to which period it must be regarded as if it had been wholly unin. habited. Rex v. Oakmere, 5 B. f: A. 775.

Secondly, What a louna ship or zill.

Must not exceed

(Thirdly)—What Number of Overseers may be appointed. In stating the number of overseers, the words of the statute are, four, Thirdly, Ilhat three, or two. This means, exclusive of the churchwardens, and it has long number, &c. been held that there must not be more than four, nor fewer than two, except where the parish is subdivided into townships, in which case each township four unless hy may have four, three, or two overseers appointed. In some cases, particularly special enact in larger towns, a greater latitude is given by some special statute; but no meut. usage for a greater or smaller number than the 43 Eliz. prescribes, will avail against the express terms of its enactment: and if more than four be appointed, the instrument is void, as to every one of the persons appointed. Rex v. Loxdale, 1 Burr. 446; Rex v. Morris, 4 T. R. 550; Rex v. Clifton, 2 East, 168; Rex v. All Saints, Derby, 13 East, 143; Rex v. Forrest, 3 T. R. 38; Rex v. Wymondham, 6 T. R. 552.

Rex v. Pinney and another; 2 B. &. C. 322 ; 3 D. f. R. 578. By 47 A local act diGeo. III. s. 2, c. 111, s. 92, (local and personal act) it was enacted that rected that the the then overseers of the parish of Woolwich, should continue to be overseers the parish of W. for the remainder of the year 1807, and until two other overseers should be should continue nominated and appointed, in the manner and at the time by law directed, for the remainder to succeed them; and in Easter week, or within one month of Easter, in of the current every year, two persons, being substantial householders in the said parish, year, and until should be nominated and appointed, in the manner by law directed, to be should be apoverseers of the poor of the said parish. By an order of two justices, made pointed, and that on the 25th March, 1823, four persons therein named were appointed over- should be apseers of the poor of the parish of Woolwich ; and upon appeal the sessions pointed annually. confirmed that order. A rule nisi having been obtained for quaslıing the held that this order of sessions, Bolland f. Andrews shewed cause, Scarleti f. Adolphus, the statute 43 contrà.— Abbott, C. J. It is a general rule of construction, that affirmative Eliz.c. 2, s. 1, words in a later statute do not repeal a former, unless there be something pointment of wholly inconsistent in the provisions of the two statutes.- Lord C. B. Comyns, four over

eers for in his Digest, tit. Parliament, R. 25, lays it down that such aifirmative words the parish of W. do not take away a former statute, unless they in sense contain a negative. Now the statute of Elizabeth directs that the overseers for parishes shall be four, three, or two substantial householders. The local act merely directs that the then overseers should continue in office to the end of the year, and until two others should be appointed, and that two others should be annually appointed. These words do not, in sense, contain a negative, nor is there any inconsistency between a provision authorizing the appointment of four, three, or two overseers, and another directing the appointment of two. The latter statute requires absolutely that two shall be appointed, but it does not say that more than two shall not be appointed. That being so, I am of opinion that the provision of the statute of Elizabeth, as to the appointment of overseers, is not repealed by the local act, and that the order of justices was right. Rule discharged (a).

was valid.

(a) See Plouden, 112, 113, and Rer v. Burridge, 3 l'eere Il'. 461

(Fourthly)-Wiho may be appointed, and herein of Non-residents,

and Assistants, and Guardians of the Poor.


none of them

house was in.

ness for them, but the rent, rates, and taxes

holder within
stat. 43 Eliz. c. 2,
and liable to


Fourthly, Il'ho The statute requires that the persons chosen as overseers shall be substanto be appointed, tial Householders there, that is, in the parish or place for which they are


Rex v. Poynder, 2 D. f. R. 258; 1 B. & C. 178; 1 D. f. Ryl. Mag. A., B., and C., carrying on trade Ca. 247. Indictment against the defendant for refusing to take upon in partnership, him the office of overseer of the poor of the parish of St. Ann, Blackhad a dwelling. house, yard, and friars. Plea, not guilty. At the trial, before Abbott, C. J., the only premises in a question was, whether the defendant was a householder within the meaning parish in Lon.

of the 43 Eliz. c. 2. It appeared that the defendant, William Hopson don, all the partners were in and Thomas Poynder the younger, were lime merchants and co-partners, the habit of fre. and were the owners of a dwelling-house, yard, premises and building qucnting the premises daily

in Earl-street, in the parish of St. Ann, Blackfriars, in the city of for the purpose

London, but that neither of them ever slept there, the defendant and of business, but

Poynder the younger dwelling at Clapham Common, and Hopson at Stamresided there.

ford-hill, in the parish of Tottenham, in the county of Midillesex. One The dwelling. Medlicott, who managed the business for them, resided in the house in Earlhabited by a

street. The rent, rates, and taxes, were paid by the firm. Each of the partclerk, who ma- ners frequented the premises daily, for the purpose of business, and the denaged the busi.

fendant had once voted at an election of a lecturer, which was a privilege belonging to resident householders. It was contended at the trial, that the

defendant was not a householder within the statute of Elizabeth. The Lord were paid by the

Chief Justice was of opinion that he was, and a verdict was found for the firm : Held, that each of the part. crown.Denman, C. S., now moved for a new trial, and cited Rex v. Hall, pers was a house. I B. g. C. 123 ; 2 D. & R. 241; 1 D. J. Ryl. Mag. Ca. 232, 259, S. C.;

in which this court decided that one of several partners resorting daily for

the purpose of business to a house rented by all, but which was inhabited by serve the office of their servant, was a householder in the place where the house was situate, so

as to qualify him to be a commissioner of a court of requests. The object of the statute in that case was to confer a privilege. The object of the 43 Eliz. was to impose a burden on the persons therein described. Besides, the defendant was a househoulder in Clapham, and might therefore be called upon to serve in two places at the same time, an office requiring persunal attendance.- Abbott, C. J. When a similar question was under our consideration last term, we were not insensible that a distinction might be attempted to be made between those cases where the legislature intended to confer a benefit, and others where it intended to impose a burden. We were of opinion that there was no foundation for such a distinction, and that the same rule of construction ought to prevail in all cases. We have no doubt in this case that the defendant is a householder within the meaning of the statute of Eliz. It was in evidence that he had enjoyed one of the privileges of a resident householder; for he had voted for a lecturer, which was a privilege belonging to resident householders only.Bayley, J., observed, that a large number of houses in the metropolis are merely occupied by clerks or servants, but that is no reason why their owners should not be called upon to discharge those duties which fall upon other householders.-Holroyd, J., and Best, J., concurred. Rule refused. (See also Rex v. Adlard, 5 B. & C. 772; 7 D. f. R. 340.)

Rex v. Weobly in Herefordshire, 2 Str. 1261; 1 Bott, 4; 1 Nol. P. L. 53. quash the appointment as to

In this case the defendants were appointed overseers for the town of Weobly, and in the appointment were styled principal inhabitants. It was moved to

quash this appointment, because they were not described to be substantial householders.

househollers.-El per Curiam. The justices must certainly pursue the power given them, which is to appoint substantial householders, which is a inuch more limited description than inhabitants ; for a man may be an inhabitant, and a principal inhabitant, and not be a householder; so this appointment is void. (See 1 B. & C. 131, n.)

The Court will

those who are not substantial



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.

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 Butt, 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. I Gibs. Codex, 215.

Peers, 2. Members of parliament, by reason of their privilege. Ibid.

Members of 3. Justices of the peace, as having the controul of overseers' accounts. parliament. Rex v. Gayer, 1 Burr. 245 ; 1 Bott, 9; and per Lord Kenyon, C. J., in Justices of peace 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 5. 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. Aldermen of Rex v. Abdy, Cro. Car. 585; 1 Bott, 8.

being justices, 4. Practising barristers and attornies, and officers of the superior courts, Practising barare privileged, though there be a special custom for every parishioner to risters and serve, according to the situation of his house. Rex v. Prouse, Cro. Car. attornies, and

officers of courts. 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.

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, 133.)

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.

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


Officers in the army.

Officers of the customs, tide


. 5

Yeomen in


Fourthly, Who being free of the apothecaries' company (recognised by 6 & 7 W.IJI. c. 4),
to be appointed, and having been examined and approved, and all persons using the said art
&c. 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,

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 funcwaiters, revenue

tions, 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. Camp-
bell, 1 Anstr. 216. See also Rex v. Routledge, Doug. 531. But these ex-
emptions granted by the prerogative were available only where there were a
sufficient number of persons to serve the office, without recourse to the indi-
viduals 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 abso-
lutely exempt.

14. Yeomen in ordinary of the king's body guard. Ibid. Rex v. Great ordinary.

Marlow, 2 East, 245.

15. Serjeants, corporals, drummers, and privates of militia, from the time sioned officers,

of their enrolment until they be regularly discharged; but there is no &c., of militia.

exemption enacted for the officers of that force. 42 Geo. III. c. 90, s. 174. Captains in the 16. Captains in the guards. (See 1 Bott, 9, note (e).—1 Nolan, P. L. 51.) guards.

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 lit by deputy, approved by such persons, and in such manner as the principal should have been approved. i 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. f. 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 Power to appoint

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
an assistant overseer, see Bennet v. Ed. overseer, id. But he is not liable for
wards, 7 B. & C. 586; 6 Bing, 230 ; 3 neglect of any supposed duty not pre-
Young & J. 464. An assistant overseer scribed in his appointment, id. ibid.
is liable to penalty for selling goods for


non-resident overseers.

[ocr errors]


« PreviousContinue »