Fifthly, When and by whom to be appointed. An appointment on a Sunday is improper. Where two or more appointments are made the first is valid. act of queen Elizabeth, shall in every year be made on the 25th day of March, or within fourteen days next after the said 25th day of March, in all and every the same manner as directed by the said act to be made in Easter week. It is obvious that any other day is more proper than Sunday, to appoint overseers; though the circumstance of the officers being required by the 43 Eliz., to meet once a month on a Sunday, raises a doubt whether an appointment made on a Sunday may not be valid. However, if made on that day, unless it be shown to have been made fairly, the fact of its having been made on a Sunday will incline the court of K. B. against it, as affording a presumption that it was clandestine. Rex. v. Clerkenwell, Fol. 4; Rex. v. Butler and others, 1 Bla. Rep. 649; Rex. v. Overseers of Bridgewater, Cowp. 139. It has been repeatedly decided, that although ministerial acts may be performed on a Sunday, judicial acts done on that day are void: and the appointing overseers is clearly a judicial act. Waite v. Stokes, God. 280; Swan v. Broome, affirmed on a writ of error in parliament, 3 Burr. 1595; Rex. v. Forrest, 3 T. R. 78; 1 Bott, 17. See 1 Chitty's Col. Stat., tit. Sunday. Rex. v. Serle, 1 Bott, 24; 1 Nol. P. L. 54, 56. There were in this case two sets of overseers certified on the same day. It was objected that on the same day, both of the appointments were for this reason void: as, where two informations on a penal statute are made on the same day, both are void. (Hob. 209.) Sed non allocatur; for although in some judicial proceedings the law considers the day as entire, and knows no fraction; yet in a bond and release, and many other things, that fiction does not hold, and these niceties should not be allowed to overthrow such orders; therefore that appointment, which is prior in time, is good, and the second void. The magistrates having made their appointment, their jurisdiction in that respect is at an end. Rex. v. Great Marlow, 2 East, 244. If the appoint- Appointment once made cannot be changed or superseded, But it seems that the time of the appointment is not material to its validity, though it ought to be made at the period mentioned in the 54 Geo. III. c. 91. Thus in Rex. v. Sparrow, 2 Sess. Ca. 140; 2 Str. 1123; 1 Bott, 25; upon a rule to show cause why the appointment of overseers for the parish of St. Margaret in Ipswich should not be quashed, the objection was, that the mandamus, in obedience to which the justices had appointed overseers, was issued after the month after Easter was expired, and that therefore it appeared that the appointment was not within the month after Easter, but afterwards, and that consequently the appointment was void. But by Lee, C. J., who delivered the opinion of the Court; As the justices are punishable by the act for not doing their duty, it would be a very hard construction to make the appointment itself void, for it would subject the parish to very great inconveniences, for a thing which it is not in their power to prevent. To interpret an act of parliament, we must consider the mischief to be remedied, the remedy provided, and the true reason of that remedy. In this case, the defect is, the want of a proper officer to take care of the poor. The remedy is, that the justices shall appoint overseers, and that within such a time. Now the justices have neglected their duty, in not appointing overseers within the proper time, and by the act have forfeited 57., but that doth not make such appointment void. Were it the express direction of the act, that they should appoint in that and no other time, it would be otherwise; but here the statute is only directory, and a penalty inflicted on the justices for not following such directions. A second appointment, on the same day, is invalid, though made only in consequence of a reasonable claim of exemption by the first appointees; unless where the first appointees are regularly discharged by the sessions on except on appeal appeal, in which event it seems that the magistrates may constitute others in to the quarter sessions. the place of those so discharged: for it then stands as if the full number had not been appointed at first, in which case the justices have jurisdiction to make a supplementary appointment, and the lapse of the fourteen days after the 25th of March does not, it is conceived, take away that jurisdiction. . Rex v. Gt. Marlow, 2 East, 244; 1 Bott, 18. See also Rex v. Morris, 4 Fifthly, When T. R. 550. and by whom to be appointed. The appointment is to be made under the hand and seal of two or more justices, that is, out of quarter sessions; for the quarter sessions have no power sessions cannot to make it; the reason whereof is, that the courts have the determination of appoint overappeals against the appointment, and if they had also power to make the seers, because appointment in the first instance, there could be no appeal, but ab eodem ad appeal is given. eundem. Rex v. Flag and Chilmerton, 1 Sess. Ca. 260; Fol. 7; 1 Bott, 16. If a parish is partly within a corporate jurisdiction, and partly without, though all the overseers, when appointed, may act indiscriminately for the whole parish, yet their original appointment should be made by four justices, two for the part within the county at large, and two for the part within the corporate jurisdiction. Rex v. Butler and another, 1 Bott, 16; 1 Nol. P. L. 45. See 43 Eliz. c. 2, s. 9, (ante, 8). Rex v. Houlditch, 1 Bott, 4; 1 Nol. P. L. 53. An appointment of overseers for the parish of W., but it was not stated that the parish of W. was in the county of Surrey (according to the fact) or in any other county, and the Court held the order bad for this reason. In some of the ancient statutes, not now in force, as particularly the 22 Hen. VIII. c. 12, the justices were required to divide themselves, for the better execution of the regulations concerning the poor. And thence came the clause in the subsequent statute, that the justices of the division were to do such and such things. But as there is no law at present which requires them to divide for the aforesaid purposes, there is properly no division in the sense which the statutes intended; and consequently it cannot be necessary to set forth now, that the justices are in or near the division. Where the parish is part within and part without a coporation. Must shew the county. Origin of term "Division." (Sixthly)—Construction of 13 & 14 Car. H. c. 12, for appointing Overseers in Townships or Villages; and of Townships reuniting, &c. (ante, 5, 6.) It will be observed that this statute names several counties as standing in need of the provisions which it enacts, (ante, 5, 6) and in Skillington v. Norton, 2 Lev. 142; 1 Nol. 10, it was held, that the statute did not extend to any other counties. But afterwards, in the case of Dolting v. Stokelane, Fol. 98; Fort. 219; 1 Bott, 35; 1 Nol. P. L. 10, it was held by the whole Court, that by reason of the words " and many other counties in England and Wales," the act is general, and extends to other counties than those named in the act, otherwise it would not extend to one county in Wales. And in Clifton v. Churcham, 1 Nol. P. L. 10, Lee, C. J., said, that so it was determined, upon great debate and consideration, in the aforesaid case of Dolting v. Stokelane, which case hath been ever since adhered to. Andr. 314. And he expressly denied the case in 2 Lev. 142, to be law. The largeness of the parishes is expressly put forward as the ground on which, in particular parishes, the benefit of the statute of Elizabeth cannot be enjoyed. A parish cannot be legally divided for the relief of the poor, unless it cannot otherwise have the full benefit of that act. Bastock v. Ridgway, 6 B. & C. 496. The question may be properly tried in a feigned issue before a jury. Lane v. Cobham, 7 East, 1; Rex v. Watson, 214; 4 T. R 266. Speaking of the words in the statute of Charles, Buller, J., says, “The phrase, that a parish cannot reap the benefit of that statute, does not mean that it is absolutely impossible for them to maintain their own poor as a parish, for that would not be the case, even if the parish were 100 miles in circumference; but that it is inconvenient for them so to do." Rex v Leigh, 3 T. R. 748; 1 Bott, 58. But the inconvenience must be real, and. a mere trifling advantage which it is supposed may arise from a subdivision, will not warrant that proceeding. But where districts have maintained their Sixthly, Construction, &c. This statute extends to all counties. Dividing parishes to secure the be nefit of 43 Eliz. Sixthly, Con struction, &c. poor respectively from distinct funds, even from a period subsequent to the 13 & 14 Car. II., either on account of the increase of population, or other changes having made it positively and really inconvenient to continue the union, or the court of King's Bench, upon a knowledge of the facts, has directed a separation; there it is taken as decided that the parish is incapable of reaping the benefit of the 43 Eliz., and the townships or districts become entitled to separate overseers, thus : In Rex v. Newell, 4 T. R. 266, the parish consisted of two separate districts, each of which immemorially made a separate rate, but the money when raised was blended together in one joint fund, though applied in certain proportions, and the sessions did not find it as a fact that the parish could not reap the benefit of the 43 Eliz.; it was held that the districts were not entitled to maintain their own poor separately and distinctly, though, since the year 1648, they have constantly had, in the whole, more than four overseers, and though the hamlet part has immemorially had a constable of its own. Lord Kenyon, in the course of his judgment said, 'The only circumstance that can bear the semblance of an argument against this decision is, that these districts have had more than four overseers; but that appeared to be the case in several other parishes, on an enquiry directed to be made by Lord Mansfield, in Rex. v. Loxdale, (Bott, 9, 1 Burr. 445.) So that though it may be a very material ingredient in these cases, it is not a decisive one. See also Rex v. Justices of Middlesex, 1 Bott, 39. Rex v. Uttoxeter, Doug. 346, Cald. 84. Peart v. Westgarth & another, 3 Burr. 1610. The question in this case was by consent of the parties, tried upon a feigned issue, at the last assizes at Durham, and a verdict was found for the plaintiffs, (with 1s. damages, and 40s. costs,) subject to the opinion of this Court upon the following case : -That from 43 Eliz. to 9 Geo. I., (1723), the parish of Stanhope had one joint appointment of overseers of the poor of the said parish, and during all that time the poor of the said parish were jointly relieved and maintained by entire and general rates upon the whole parish. During the time above mentioned, there were four churchwardens and four overseers of the poor, which four overseers were nominated one out of each of the four quarters or districts within the said parish, called Forest quarter, Newlandside quarter, Park quarter, and Stanhope quarter; and in each quarter there was one churchwarden and one of the said overseers, who collected the poors' rates in the quarter or district wherein they respectively resided; but the money collected by the several churchwardens and overscers was levied under one entire assessment, upon the whole parish, and carried to one general fund, and was applied to the joint relief of all the poor of the said parish. The parish is twenty miles in length from east to west, and eight miles at a medium in breadth. The Park quarter is one distinct constablery, the Forest quarter one, and the Stanhope quarter one, and the Newlandside quarter consists of three constableries, but these three constableries compose and are considered as one quarter only. On the 17th July, 9 Geo. I., at the general quarter sessions holden at the city of Durham, in and for the county of Durham, it was ordered That the several townships or constableries of Stanhope, Fosterley, Newlandside, Eastgate, and Westgate, should separately maintain their own proper poor." From that time there have been separate appointments of overseers of the poor for each of the said four quarters or districts, and each of the said quarters maintain their own poor separately, excepting that, about twelve years ago, two townships or constableries called Bishopley and Fosterley within Newlandside quarter, separated themselves from the rest of that quarter, and have ever since had separate overseers and maintained their own poor separately. The case further stated that orders of removal had from time to time been made since the year 1729, to the year 1761, (exclusive of each of those years), for the removal of poor persons from one of the said quarters or districts to another, and appeals made by one quarter against another, concerning orders of justices relating to the poor of each. The case was twice argued. Lord Mansfield said he had no doubt upon the first argument. The policy of this law of 13 & 14, Car. II., was mistaken; it went upon a wrong principle. The divisions ought rather to be enlarged than diminished. As to the question itself, consider Ist, what was done; 2ndly, upon what foundation. It ought to appear "That there was an inability in the parish to have the benefit of the act of 43 Eliz." Now here no such inability appears, but quite the contrary for a great number of years, so that there is no foundation for the division. The acquiescence under it was upon a false notion, "That the sessions had such a power," which they had not. And there is no inconvenience in setting right this wrong usage, which has obtained for forty years. In the case of Kentish Town, all the judges held "That the foundation of such a division of a parish must be an inability of having the benefit of 43 Eliz." Here the foundation is wanting, therefore judgment must be for the plaintiffs. Wilmot, J., also thought the larger the circle the better: therefore it would be more proper to enlarge than to lesson the divisions. The sessions do not seem to have had any sort of power to make such an order, therefore their order is a mere nullity. It was not made upon any appeal; but upon a motion made on behalf of some of the quarters and opposed by another. The subsequent usage for forty years cannot vary the right. For we cannot presume "That omnia ritè acta sunt ;" because we see that it was founded upon this order of sessions, and it does not appear that the parish is so large that it cannot have the benefit of 43 Eliz. Therefore they ought to appoint running overseers over the whole parish. Mr. J. Denison and Mr. J. Yates were both of them absent.-Per Curiam, judgment for the plaintiff. Nor is a parish entitled to a separation, merely because its different districts lie each in different jurisdictions, or even counties. See Lane v. Cobham, 7 East,2; Rex v. Gordon, 1 B. & A. 524 ; Rex v. Palmer, 8 East, 416. Though it appears to be the policy of the law to discourage the division of parishes into separate districts and even to promote their reunion, yet where the district is extra-parochial, or being part of a parish, it has maintained its own poor on a distinct account," time out of mind," or from a more modern date, if change of circumstances required the separation, it has a clear right to a distinct set of overseers. Rex v. Walsall,2 B. & A. 157. The two districts of which a parish consisted, had, from the 43 Eliz. down to the 13 & 14 Car. II., maintained their poor jointly, and, at the time of the passing of the latter act, agreed to separate in the maintenance of their poor, and that separate overseers should be appointed, upon condition that the rateable property in the parish, whether situated in the one or the other district, should be rated where the occupiers resided. In consequence of that agreement, they had ever since uniformly maintained their own poor separately, and had had separate overseers, constables, &c. The Court held, that this clearly shewed, that the parish, at the time of the agreement, could not reap the full benefit of the statute of Eliz., and that therefore the separation of the two districts was valid, and that an appointment of overseers for the whole parish was now bad. It was held also, that the agreement consisted of two distinct parts, and that the invalidity of the latter part, as to rating property not situated within the district rated, did not affect the question on the former part.—Bayley, J., observed, that the case of Rex v. Palmer, 8 East, 416, only decided that where a parish has, with the consent of all its districts, re-united itself, that re-union is invalid in law. Rex v. Sir Watts Horton, 1 T. R. 374. Where one or more, but not all, of eight several and distinct townships composing a parish, have obtained a separate appointment by mandamus, or have been accustomed to maintain their poor from separate funds, under circumstances authorising such separation, and the remaining townships have maintained their poor jointly, every one of them has a right to a separate appointment also, and the Court of King's Bench will grant a mandamus for the purpose; for the circumstances prove the inability of the parish to maintain its poor as a parish; that is, collectively out of one fund. Sixthly, Con struction, &c. poor respectively from distinct funds, even from a period subsequent to the In Rex v. Newell, 4 T. R. 266, the parish consisted of two separate districts, each of which immemorially made a separate rate, but the money when raised was blended together in one joint fund, though applied in certain proportions, and the sessions did not find it as a fact that the parish could not reap the benefit of the 43 Eliz.; it was held that the districts were not entitled to maintain their own poor separately and distinctly, though, since the year 1648, they have constantly had, in the whole, more than four overseers, and though the hamlet part has immemorially had a constable of its own. Lord Kenyon, in the course of his judgment said, ‘The only circumstance that can bear the semblance of an argument against this decision is, that these districts have had more than four overseers; but that appeared to be the case in several other parishes, on an enquiry directed to be made by Lord Mansfield, in Rex. v. Loxdale, (Bott, 9, 1 Burr. 445.) So that though it may be a very material ingredient in these cases, it is not a decisive one. See also Rex v. Justices of Middlesex, 1 Bott, 39. Rex v. Uttoxeter, Doug. 346, Cald. 84. Peart v. Westgarth & another, 3 Burr. 1610. The question in this case was by consent of the parties, tried upon a feigned issue, at the last assizes at Durham, and a verdict was found for the plaintiffs, (with 1s. damages, and 40s. costs,) subject to the opinion of this Court upon the following case: -That from 43 Eliz. to 9 Geo. I., (1723), the parish of Stanhope had one joint appointment of overseers of the poor of the said parish, and during all that time the poor of the said parish were jointly relieved and maintained by entire and general rates upon the whole parish. During the time above mentioned, there were four churchwardens and four overseers of the poor, which four overseers were nominated one out of each of the four quarters or districts within the said parish, called Forest quarter, Newlandside quarter, Park quarter, and Stanhope quarter; and in each quarter there was one churchwarden and one of the said overseers, who collected the poors' rates in the quarter or district wherein they respectively resided; but the money collected by the several churchwardens and overscers was levied under one entire assessment, upon the whole parish, and carried to one general fund, and was applied to the joint relief of all the poor of the said parish. The parish is twenty miles in length from east to west, and eight miles at a medium in breadth. The Park quarter is one distinct constablery, the Forest quarter one, and the Stanhope quarter one, and the Newlandside quarter consists of three constableries, but these three constableries compose and are considered as one quarter only. On the 17th July, 9 Geo. I., at the general quarter sessions holden at the city of Durham, in and for the county of Durham, it was ordered That the several townships or constableries of Stanhope, Fosterley, Newlandside, Eastgate, and Westgate, should separately maintain their own proper poor." From that time there have been separate appointments of overseers of the poor for each of the said four quarters or districts, and each of the said quarters maintain their own poor separately, excepting that, about twelve years ago, two townships or constableries called Bishopley and Fosterley within Newlandside quarter, separated themselves from the rest of that quarter, and have ever since had separate overseers and maintained their own poor separately. The case further stated that orders of removal had from time to time been made since the year 1729, to the year 1761, (exclusive of each of those years), for the removal of poor persons from one of the said quarters or districts to another, and appeals made by one quarter against another, concerning orders of justices relating to the poor of each. The case was twice argued. |