« PreviousContinue »
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- tu 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 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 diseretionary power of approbation.” Rex v. Stubbs, 2. T. R. 395; 1 Bott, 11 ; Rer 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. 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 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. Aldermen of Rex v. Abdy, Cro. Car. 585; 1 Bott, 8. 4. Practising barristers and attornies, and officers of the superior courts, Practising bar
being justices, are 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 389; 1 Bott, 7; 1 Nol. P. L. 51; Et vide 8 T. R. 379, note (a).
officers of courts.
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, 13.)
6. Clergymen, though without cure of souls. Anon. i Boti, 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. (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. Church wardens 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. waiters, revenue officers.
Fourthly, Who being free of the apothecaries' company (recognised by 6 & 7 W. III. 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 Beruick-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. Oflicers 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 otfices 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 oflice, 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 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 Boti, 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 fit 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. &. 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 non-resident his Majesty's justices of the peace, in their respective special sessions for the
appointinent 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 he 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 APPOINTED (a).
(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 preYoung & J. 464. An assistant overseer scribed in his appointment, id. ibid. is liable to penalty for selling goods for
in vestry assembled, to nominate and elect any discreet person or persons to Fourthlu, 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
&c. 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 bereby 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 church wardens 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 when appoint. assistant overseer, with salary, under the above act, being an appointment in ment must be
stamped. 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 10l. a-year, it was said, “ this is an appointment in writing to an office or employment where the yearly salary does not amount to 501. a-year; it is therefore within the very words of the act, and requires a 21. stamp.” (Rex v. Inh. of Leu, 8 B. & C. 655.)
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.)
Fifthly-At what Time and by whom to be appointed.(a)
(a) The 43 Eliz. c. 2, terms the in- appoint the overseers out of a list selected vesting a person with authority as over- by the parishioners assembled in vestry seer, a nomination ;” the 54 Geo. III. and to take those placed at the head; c. 91, calls it an “ appointment.” The and under the 59 Geo. III. c. 12, s. 6 magistrates alone can by law make the add 7 (ante, 14, 15), the inhabitants are nomination or appointment, and no to select non-resident and assistant overusage can entitle the parishioners to seers, and whom the justices must apelect them. 3 T. R. 138, post, 21. point. llowever it is usual for the magistrates to
Where two or
ments are made
the first is valid.
Fifthly, When act of queen Elizabeth, shall in every year be made on the 25th day of und by whom to March, or within fourteen days next after the said 25th day of March, in all be appointed.
every the same manner as directed by the said act to be made in Easter
week. An appointment It is obvious that any other day is more proper than Sunday, to appoint on a Sunday is improper.
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, Corp. 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 more appoint
case two scts 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 infor
mations 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- But it seems that the time of the appointment is not material to its vali
dity, though it ought to be made at the period mentioned in the 54 Geo. III. limited by stat. 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 void, the act parish of St. Margaret in Ipswich should not be quashed, the objection was, being merely that the mandamus, in obedience to which the justices had appointed overdirectory.
seers, 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 51., 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. Appointment
A second appointment, on the same day, is invalid, though made only in not be changed
consequence of a reasonable claim of exemption by the first appointees; or superseded, 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
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.
ment be made after the time
51 Geo. 3, c. 91,
once made can
Rez v. Gt. Murlow, 2 East, 244; 1 Bott, 18. See also Rex v. Morris, 4 Fifthly, When T. R. 550.
and by whom to The appointment is to be made under the hand and seal of two or more be appointed. 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. Rer 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, Where the parish though all the overseers, when appointed, may act indiscriminately for the
and part without whole parish, yet their original appointment should be made by four justices, a coporation. 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 over- Must shew the seers for the parish of W., but it was not stated that the parish of W. was in county. 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 Origin of term Hen. VIII. c. 12, the justices were required to divide themselves, for the
“ Division." 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 thein to diride 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.
(Sixthly)–Construction of 13 & 14 Car. H. c. 12, for appointing
Overseers in Townships or Villages ; and of Townships re: uniting, &c. (ante, 5, 6.)
It will be observed that this statute names several counties as standing in Sixthly, Conneed of the provisions which it enacts, (ante, 5, 6) and in Skillington v. Norton, struction, &c. 2 Ler. 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; extends to all Fort. 219; 1 Bott, 35; 1 Nol. P. L. 10, it was held by the whole Court, that counties. 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 pot 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 Dividing parishes which, in particular parishes, the benefit of the statute of Elizabeth cannot to secure the bebe enjoyed. A parish cannot be legally divided for the relief of the poor,
nefit of 43 Eliz. 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. Watso, 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