Rayleigh. Plea de injuriâ. At the trial of the cause before Wood, B. at the late assizes for Essex, it appeared that a warrant of distress was granted against the plaintiff on the 9th of January, 1817, and executed on him on the 13th day of that month, as inhabitant or occupier of a farm in the parish of Rayleigh, in the county of Essex, for the sum of 1047. 178. due for seven several poor rates and assessments. The plaintiff appealed to the last quarter sessions for that county, on the ground that he was not an inhabitant or occupier within the parish of Rayleigh; and, on the appeals being called on, an objection was taken, on the ground that the notice was insufficient in point of time as to the first six rates, as the stat. 17 Geo. II. c. 38, required an appeal to the next general quarter sessions, and as the warrant of distress was executed on the 13th of January, being only the day before the last quarter sessions for Essex, there was not even sufficient time to give notice of appeal to that session: on which the plaintiff abandoned the six first rates mentioned in the notice, and supported such notice as against the last, he having entered his appeal at the next session after that rate, and the last rate was quashed, on the ground that the plaintiff was not the occupier. Under these circumstances it was insisted, for the plaintiff, that the warrant of distress was void, on the authority of the case of Milward v. Caffin, (2 Bla. Rep. 1330), which was on action of replevin on a distress for a poor's rate; and Gould, J., there said (2 Bla. Rep. 1331), that it had been fairly and candidly conceded in the argument, that where a warrant was to levy an aggregate sum, composed of several rates, if one of the rates were illegal, the whole warrant was void. The jury, however, found a verdict for the defendant, but the learned Baron reserved the point, as to the validity of the warrant, for the opinion of the Court. After hearing Lens, Serj., Gibbs, C. J., held, that in this case it was necessary that the sum actually due from the plaintiff for poor rates should be demanded previous to the levy, and that it was distinguishable from a distress for rent; that whatever might be due as the amount of rent, might be distrained, and that although a larger sum were distrained for than was actually due, that the lessor might still be supported; as if a distress were made for three years' rent, and two only were due, still the avowant was entitled to recover for the two. So, if a person bring an action for goods sold and delivered, to the amount of 1007., still he may only be entitled to recover 40l. But in neither of these cases is a precise and previous demand necessary, as here, where the party distrained on is entitled to know what sum is actually due for poor rates, previous to the issuing of the warrant under which the levy is made. Rule absolute. able by certiorari. Rex v. Uttoxeter, 2 Str. 932; 1 Bott, 305; 2 Nol. P. L. 589. Upon Rate not removgreat debate, and search after precedents, it was held that a certiorari would not lie to remove the poor rate itself, the remedy being to appeal, or by action when a distress is taken, which will answer all the ends of justice in coming at an equal rate; whereas if the rate itself should be required to be sent up, great inconveniences and delays would follow. Rex v. The Justices of Salop, 1 Sess. Ca. 201; 2 Str. 975; 1 Bott, 306; 2 Nol. P. L. 589, by the name of Rex v. Shrewsbury. The true objection against a certiorari is, that if rates were removable, the poor might be starved whilst the rates were depending; and therefore the Court, from the great inconvenience that would attend the removal of rates, have refused to do it. (Thirteenthly)-Rate for taxing others in Aid. 66 By 43 Eliz. c. 2, s. 3. "If the said justices of peace do perceive, that the inhabitants of any parish are not able to levy among themselves sufficient sums of money for the purposes aforesaid; that then the said two justices shall and may tax, rate, and assess, as aforesaid, any other of other parishes, or out of any parish, within the hundred where the said parish is, to pay such sum and sums of money to the churchwardens and overseers of the said poor parish, for the said purposes, as the said justices shall think fit, according to the Thirteenthly, Of rate for taxing others in aid. Hundred contributory. Thirteenthly, of intent of this law: and if the said hundred shall not be thought to the said rate for taxing justices able and fit to relieve the said several parishes not able to provide for themselves as aforesaid; then the justices of peace, at their general quarter sessions, or the greater number of them, shall rate and assess as aforesaid, any other of other parishes, or out of any parish within the said county, for the purposes aforesaid, as in their discretion shall seem fit.” others in aid. A vill is within statute. That the Inhabitants of any Parish are not able.] Anon. Fol. 25; 1 Nol. the equity of the P L. 241. The case was this:-There were two vills in one parish, and the justices recite in their order, that one of the vills was very rich, and the other very poor; and further, that the vill which was rich, did not pay half so much to the poor as the poor vill did. Objected, one vill ought not to contribute to another, because the statute mentions parishes only. 2. The reason given for charging the rich vill to contribute to the poor vill is uncertain; viz. because they do not pay half so much as the poor vill does, without shewing that either vill pays any thing to the poor.-By the Court: As to the first objection, surely this will come within the equity of the statute, though the statute only makes mention of parishes; and it is highly reasonable that one vill should contribute to another in the same parish. But this order must be quashed on the second objection, for the uncertainty. The sessions cannot rate in aid. The assessment must be by the justices, and they cannot delegate their power. Mandamus. The rate in aid may be on particular persons. Then the said two Justices.] Rex v. Griesley, Sett. & Rem. 259. The sessions rated the adjacent parishes: quashed; because the statute appoints it to be done by the two justices, and hereby they prevent an appeal. See Dimchurch v. Eastchurch, 2 Salk. 480. The said two Justices shall Tax, Rate, and Assess.] St. Mary's v. St. Peter & Paul's, in Marlborough, 2 Str. 1114; 1 Bott, 406. Two justices order the churchwardens and overseers of St. Peter and Paul's to assess, raise, and levy a sum towards the maintenance of the poor of St. Mary's. But the order was quashed by the Court; because the justices had delegated their power to the churchwardens and overseers: whereas by the statute they themselves are to make the rate on all, or on particular persons. In this case, a mandamus was moved for to the justices, to make a rate for the support of the poor of the parish of St. Mary's; which was opposed, because the parish officers ought to make the rate, and the justices are only to sign it. To which it was answered, that this motion was grounded on this clause of the statute; and thereupon a mandamus was granted, directed to the justices; and as this is a matter of right, they ought to make a return, 16 Vin. Abr. 416. And the justices are to make the taxation, and leave it to the churchwardens and overseers to levy it, 2 Salk. 480. Any other of other Parishes.] Resolved, that the justices may impose the charge upon any of the inhabitants of the neighbouring parishes, and are not obliged to put a general tax upon the whole parish. Comb. 309; 1 Vent. 350; Fol. 29. Either particular persons, or the whole parish, Dimchurch v. Eastchurch, 2 Salk. 481. An order for taxing one parish in aid of another under the 43 Eliz. c. 2, s. 3, was held well; although the two parishes, together with others, were incorporated for the maintenance of their poor, with fixed quotas of contribution between each other, under special officers, who were empowered to purchase land for the erection of poor-houses, and for a burial-ground; there being a proviso in the act in general terms, that nothing therein contained should extend to repeal or lessen the power of justices of the peace, "to tax parishes in aid of others by virtue of the 43 Eliz. as fully as if this act had not been made." Rex v. St Helen's, Worcester, 2 East, 417. Rex v. Boroughfen, Fol. 29; 1 Bott, 405; 1 Barnard. B. R. 122; 1 Nol. P. L. 244. There was a taxation of several persons in a parish: Objected, that it should be of all the persons in a particular place or parish. The Court thought it unreasonable, that several persons in a parish should be charged, and not all, but that the words of the act are very strong and did not quash the order for this objection. It has been decided also, that it should appear by the order that the place on which the rate is made is not within the parish in aid of which it is assessed, and that this is necessary, although the names of both appear on the face of the order and are different. S. C. 1 Nol. P. L. 246. But in Rex v. St. Helen's, 1 Nol. P. L. 246, (n.) The above was cited to this point, when Lord Ellenborough, C. J., observed that the diversity of name imports diversity of place, unless the contrary be shewn. And see Anon. Fol 25, ante, 160. Within the Hundred.] Boroughfen v. St. Jones, Fol. 27, 31; 1 Bott, 402; 1 Nol. P. L. 245, 246. Motion to quash an order of two justices; for that it doth not appear upon the order, that the parish which is charged to aid the parish that is not able to maintain its own poor, is within the same hundred. And quashed by the whole Court. St. Benedict v. St.Peter's, Fol. 31; 1 Bott, 409; 1 Nol. P. L. 246, 247; 11 Mod. 269. Motion to quash an order of two justices, which was made to assess the parishes of St. Stephen and St. Mary Magdalen, in Norwich, in aid of the parish of St. Benedict, which was not able to maintain its own poor. Objection: These parishes are not in the same hundred; they are in the county of the city of Norwich where there is no hundred, so the justices have no jurisdiction, though the sessions have in such case. Order quashed. Rex v. The Tithing of Milland, 1 Burr. 576; 1 Bott, 354; 1 Nol. P. L. 242. Two justices tax the inhabitants of the tithing of Milland in aid of the parish of St. Peter's Cheesehill, in the same county. The sessions confirm the order, setting forth that the tithing of Milland, and the parish of St. Peter's Cheesehill, both lie in the same liberty of the soke where the said parish lies. On referring it back to the sessions to be more particularly stated, it appeared (substantially) to be a hundred, though called by another name. And the Court held, they were not restrained to the particular word hundred, but it is sufficient if it be signified by any word equivalent. And the orders were affirmed. In the case of Rex v. T. Holbeche, Esq. and another, 4 T. R. 778; 1 Bott, 419; 1 Nol. P. L. 243. It was determined, that county justices cannot rate a parish within their jurisdiction in aid of another parish, lying within a borough which has an exclusive jurisdiction. be for a time limited. As the said Justices shall think fit.] Rex v. St. Mary's in Marlborough, The order must 2 Stra. 700; 1 Bott, 406; 1 Noľ. P. L. 250. An order was made for a neighbouring parish to contribute so long as we the said justices shall think fit. But by the Court: It must be quashed; for the discretion that is left in the justices, is not to make a perpetual order, which this would be. Rex v. Knightly, Comb. 309; 1 Bott, 399; 1 Nol. P. L. 245. A sum The sum may be in gross was taxed upon a neighbouring parish for a whole year; which was objected to as unreasonable, because their ability may change; nevertheless the order was confirmed. imposed in gross for a year. The order must be to raise a sum certain. Rex v. Telscombe, 1 Stra. 314; 1 Bott, 403; 1 Nol. P. L. 245. By the Court: The order for the contributory parish to make a rate at 6d. in the pound is ill for uncertainty; it should have been to raise such a sum certain. Quashed. Case of the parish of St. Peter and Paul in Marlborough, 2 Stra. 1114; The sum may be 1 Bott, 406; 1 Nol. P. L. 244. Two justices, reciting the inability of the parish of St. Mary to maintain its own poor, order the parish of St. Peter and St. Paul to contribute 607. for the maintenance of the poor of the other parish: An objection being made to their ordering such a gross sum, the Court held it in that respect to be well. And by stat. 43 Eliz. c. 2, s. 3, if the said hundred shall not be in gross. Thirteenthly, Of rate for taxing others in aid. County contributory. The sessions may charge parishes out of the hun dred, although two justices have not adjudged that the parishes within the hundred tribute. thought by the said justices able and fit to relieve the said several parishes not able to provide for themselves as aforesaid; then the justices at their general quarter sessions, or the greater number of them, shall rate and assess, as aforesaid, any other of other parishes, or out of any parish within the county, &c. Rex v. Percivall, 1 Stra. 56; 1 Bott, 413; 1 Nol. P. L. 249. Order of sessions, reciting that the parish is not able to maintain its own poor, nor any other parish within the hundred to contribute, therefore the justices at the sessions tax other parishes in another hundred within the same county. It was moved to quash it, and insisted that the statute gives no authority to the sessions to charge people out of the hundred, till two justices have enare unable to con- quired whether any parish in the hundred can contribute: the first application to be to two justices, and the second to the sessions.-Parker, C. J. I do not see to what purpose it would be, for the two justices to make an order, only to adjudge that no parish within the hundred is able to contribute. We will presume the sessions is satisfied of that, and if the two justices should make such an adjudication, yet the sessions must enquire into the truth of it; and if no order appear which charges any parish within the hundred, it is a sufficient ground for the sessions to act. If the two justices had charged any parish within the hundred, that would have stopped the sessions from proceeding; and the sufficiency of the hundred depends on this, whether two justices have ever charged the hundred,—If the said hundred shall not be thought by the said justices able,—that is, if the two justices do not adjudge it so. If two justices should adjudge the hundred not able, yet, if other two justices adjudge the contrary, their charge would be good, and the sessions be ousted of their jurisdiction, notwithstanding the first adjudication.-Eyre, J. Here are two jurisdictions, that of the two justices and that of the sessions, and both are original jurisdictions. They are different in all respects, for the two justices have no power out of the hundred, nor the sessions within it. There need be no appeal from any adjudication of two justices, for that would be to appeal from a nullity. And the order was confirmed. And in Rex v. Eastchurch, 1 Bott, 410; 1 Nol. P. L. 248. It was decided by Holt, C. J., that the sessions cannot make an original order on a parish within the hundred. III. Of the Relief and Ordering of the Poor. and law. The 43 Eliz. c. 2, s. 1, enacts, that the overseers, or the greater part of The general rule them, shall take order from time to time, by and with the consent of two or more such justices of peace as is aforesaid, for setting to work the children of all such whose parents shall not, by the said churchwardens and overseers, or the greater part of them, be thought able to keep and maintain their children; and also for setting to work all such persons, married or unmarried, having no means to maintain them, as use no ordinary and daily trade of life to get their living by; and also to raise weekly or otherwise, by taxation of every inhabitant, parson, vicar, and other and of every occupier of lands, houses, tithes impropriate, propriations of tithes, coal mines, or saleable underwoods, in the said parish, in such competent sum and sums of money as they shall think fit, a convenient stock of flax, hemp, wool, thread, iron, and other necessary ware and stuff, to set the poor on work; and also competent sums of money for and towards the necessary relief of the lame, impotent, old, blind, and such other among them being poor and not able to work, and also for the putting out of such children to be apprentices, to be gathered out of the same parish, according to the ability of the same parish; and to do and execute all other things, as well for the disposing of the said stock as otherwise, concerning the premises as to them shall seem convenient. This statute and subsequent enactments regulate the relief and ordering of the poor. It is the duty of every overseer when a person requiring immediate relief applies for it, to afford the same instantly out of the parish funds, without regard to any question whether he is legally settled in the parish, or has other ultimate sources of support; and thereupon, as to future and continuing support, in cases of doubt, to refer the question as to future relief to magistrates for their order and direction. This duty is clear from the decisions relative to casual poor, post, No. 8. On the other hand, an overseer should not, in cases of doubt whether a party is legally settled in his parish, relieve him, without first obtaining an order of a justice, except in cases of sudden and emergent occasion. This subject may be classed under eight distinct heads; as, Firstly, Of the Liability of Parents and Children to maintain each other. Secondly, Of the Order of Maintenance. Thirdly, Of Persons Deserting or Absent from their Families. Fourthly. Of the Mode of Relieving and Ordering the Poor, and herein of Fifthly, Of the Regulation of Parish Vestries under stats. 58 Geo. III. c. 69, Sixthly, Of Select Vestries under authority of stat. 59 Geo. III. c. 12. Eightly, of Casual Poor. (a) (First)-Of the Liability of Parents and Children to maintain each other. (b) 43 Eliz. c. 2, s. 7; 7 Jac. I. c. 4, s. 8; 5 Geo. I. c. 8; 59 Geo. III. c. 12, s. 31, 32; 5 Geo. IV. c. 83, s. 3; 11 Geo. IV. c. 10, s. 2. Stat. 43 Eliz. c. 2, s. 7, enacts, "that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, (a) This head was differently treated in the former editions, but the editor thinks it proper here to insert it. (b) The natural obligation upon such near relatives as parent and child can not be disputed. See the doctrine, 1 First, Of compelling parents and children of poor persons to maintain each other. |