and a rule to show cause why both the orders should not be quashed, it was argued, in support of the rule for quashing them, that the object of the 9 Geo. I. c. 7, s. 4, was to prevent idleness and to secure to parishes a benefit from the labour of persons asking relief. If parents receive assistance for the support of their children, that in truth is a relief to them. The case, therefore, states improperly, that the wife had not asked relief for herself: she did virtually, by asking it for her children, whom she, if able, was bound to maintain. And the case of Rex v. Carlisle was relied on as in point. On the other side it was contended, that as the mother had not asked relief for herself, and the order was only for the support of her children, she was willing to let them go into the workhouse; and although nurse-children cannot be separated by any compulsory order from their mother, she may by her consent permit the separation if she think it for their advantage. In the case of Rex v. Carlisle, the relief asked, and granted by the order, was partly personal, and therefore it was distinguishable from this case, and within the statute.-Lord Mansfield was not present during this part of the argument.-Willes, J., said, this was a humane order, and he wished to support it. He did not think the words of the act in the way, and inclined to adopt the distinction made by the counsel between this case and that of Rex v. Carlisle.-Ashurst, J., thought the act extended to the present case: that maintenance for the children was relief to the mother. There might be great inconvenience if the Court were to adopt the other construction. One object of the statute was to encourage industry, by holding out the disgrace of going into a workhouse; and if parents could obtain a maintenance for their children without being compellable to go to the workhouse, idleness would be thereby promoted among artificers and manufacturers.— Buller, J., on the contrary, thought the distinction between this case and that of Rex v. Carlisle to be clear. The act was meant in ease of parishes; but the effect would be quite the reverse, if, when one of a numerous family wants relief, the whole must go to the parish workhouse; and, on the other hand, that the parish is not entitled to the labour of a whole family, because one of them might want relief.-The case stood over for further argument, Willes, J., expressing a wish that it might be compromised.—And now he delivered the judgment of the Court: We think it unnecessary to give an opinion on the question which has been argued in this case, because I and my two brothers are satisfied that no appeal lies from an order of maintenance. The 3 W. III. c. 11, s. 11, gives a concurrent jurisdiction, in the making orders for the relief of the poor, in or out of sessions, and doth not authorise an appeal. The 9 Geo. I. c. 7, makes no alteration in this respect. The reason for not giving an appeal is, that the pauper might starve while the cause was in suspense. We have spoken to several gentlemen very conversant in sessions' law, and none of them ever heard of such an appeal. And the order of sessions was quashed, because they had no jurisdiction, and the original order affirmed. (See Rex v. Haigh, post, 193.)

Fourthly, Mode

of relief, &c.

No appeal lies

from an order of

maintenance.

It has been observed by Mr. Douglas, (Dougl. 333), that the words of 3 W. Observations on III. c. 11, are, "by authority under the hand of one justice residing within the the above cases. parish, or (if none be there dwelling) in the parts near or next adjoining, or by order of the justice in sessions." This, he says, it should seem, must mean by order of the court of quarter sessions, not of justices as individuals, when they happen to meet at the quarter sessions. Therefore he makes a query concerning the case of Rex v. Winship and Grunwell, (ante, 188), where the Court is stated to have held, that the sessions could not make an original order of maintenance. (See 36 Geo. III. c. 23, post, 194.)

Unto which it may be added, with respect to this last case of North Shields, that the great fundamental statute of 43 Eliz. c. 2, s. 6, enacts, that "if any person shall find himself aggrieved by any thing done by the churchwardens and overseers, or by the justices, in relation to the relief of the poor, he may appeal to the general quarter sessions, whose order therein shall be final." Which, by the rule that acts in pari materiâ are to be taken together and considered as one entire act, may seem to include this case concerning the order of maintenance. The Carlisle case above-mentioned was upon an original order at sessions, in which the jurisdiction was not

Fourthly, Mode of relief, &c.

But now settled that an appeal

does not lie to the quarter sessions against an order for relief;

but the overseer

must, if he can, obtain a fresh

order of removal

into the proper parish.

Power to build or enlarge workhouses.

objected to, but the cause was determined on the real merits. The case of Rex v. Winship and Grunwell, also was upon an original order of sessions, which order the report says was quashed, because the Court was of opinion that the sessions had no power to make such order. This present case of North Shields was an appeal against an order of a justice out of sessions, and in this case of appeal likewise the Court was of opinion that the sessions had no jurisdiction. From which two last cases it seems to follow that an order of maintenance by a private justice out of sessions is absolutely conclusive; which imports a power in this respect not usual in other like cases; especially as such justice is required by the statute to be an inhabitant of the parish, if any such be there residing, and consequently in all probability essentially interested in the poor rate. As to the matter of practice, it is certain, that nothing is more common at the sessions, than applications for the maintenance of poor persons as well by original motion as by way of appeal from the order of private justices. In some places this makes up almost half the business of the sessions, even to a degree of ridicule among the unthinking part of mankind; as if magistrates could be better employed than in relieving the miseries of the distressed. The reason that has been sometimes alleged against removing the poor rate into the courts at Westminster, lest the poor might starve before the cause should be determined, does not hold with regard to appeals against orders of maintenance. The justices' order takes effect immediately, and continues in force till altered by other legal authority. The usual way is, for the justices to order the overseer to pay to the pauper so much weekly or otherwise, until he shall be otherwise ordered according to law to forbear the said allowance, or, more generally, till further order. And this, if not acquiesced in, brings on an appeal to the sessions; where the court enlarges, mitigates, or takes off the charge, as they shall see cause. See 21st edit. of Burn, Vol. IV. p. 117.

But in Rex v. Justices of Devon, 4 M. & S. 421, it was held, that an appeal does not lie to the quarter sessions against an order for relief, but the overseers must go back to the sessions where the order was made, and point out that the paupers resided in another parish, and obtain a fresh order. Gifford moved for a rule nisi for a mandamus to the justices, to enter continuances at their next quarter sessions, upon an appeal against an order for the relief of a pauper, which appeal the justices had dismissed at the last sessions, conceiving that they had not any jurisdiction in the matter. He referred to Burn's Justice, Vol. IV. p. 117, 21st edit. for the author's opinion that, notwithstanding the determination in Rex v. North Shields, Doug. 331, an appeal lies against an order for relief; for Burn says, that the great fundamental statute of 43 Eliz. c. 2, s. 6, gives an appeal for any thing done by the justices in relation to the relief of the poor; which, by the rule that acts in pari materiâ are to be taken together and considered as one entire act, may seem to include this case concerning the order of maintenance. He also speaks of such appeals as of a practice than which nothing was more common at the sessions; and Rex v. Woodsterton, Barnard. 207, 247, is one instance of it. The reason assigned in Rex v. North Shields for not giving the appeal, lest while the matter is in suspense the poor should starve, does not hold, because the order continues in force until altered by legal authority. And the 43 Eliz. does not seem to have been adverted to in that case. Here, if there be no appeal, there is no remedy; for the objection to the order is, that it is to a wrong parish; yet if the overseers acting upon this were indicted for disobeying the order, the Court would not, upon such a proceeding, try a question of boundary.-Per Curiam. If, in every case of an order for relief, an appeal will lie, this will divert the funds of the poor into other channels. This order is not in perpetuum, it is to pay until further order; and why cannot the overseers go back to the quarter where it was made, and point out that the pauper's residence is in another parish, and obtain a fresh order?-Rule refused.

59 Geo. III. c. 12, s. 8, enacts, "that in any parish not having a workhouse for the poor thereof, or where the workhouse shall be found insufficient or inconvenient, it shall be lawful for the churchwardens and overseers of the poor, by the direction of the inhabitants in vestry assembled, to erect

and build in such parish a suitable workhouse, or to alter and enlarge any messuage or tenement belonging to such parish for that purpose, and to purchase or take on lease any ground within the parish for the purpose of such building, or for enlarging any such other messuage or tenement belonging to such parish for that purpose; or such churchwardens and overseers may and they are hereby authorised to add to and enlarge any such insufficient workhouse, as the inhabitants of the parish in vestry shall think fit and direct."

By s. 9. "And whereas it would be advisable to enable parishes to sell and dispose of their present workhouses, or any other houses or tenements belonging to such parishes, in cases where the same are insufficient and incapable of being enlarged or used as workhouses, and to apply the produce thereof in aid of building new workhouses; be it therefore enacted, that it shall and may be lawful for the churchwardens and overseers of the poor of any parish, and they are hereby authorised, by the direction of the inhabitants in vestry assembled, and with the consent of two justices, to be certified under their hands, to sell and dispose of any workhouse, or any other houses or tenements belonging to such parish which shall be found to be insufficient or unfit for the purpose, with the site thereof, and the outhouses, offices, yards, and gardens thereto belonging, for the best price and prices that can be reasonably obtained, and to convey and assure the same to the purchaser or purchasers thereof, his, her, or their heirs and assigns, or as he, she, or they shall direct, and to apply the produce of such sale, after deducting the reasonable expences thereof, towards the purchase or building of a new workhouse, or in or towards the payment of any money to be borrowed under the authority of this act, as the inhabitants in vestry shall direct." By s. 10. “And whereas there may be parishes in which no sufficient poorhouse or workhouse can be procured for the accommodation of the poor thereof; be it further enacted, that it shall and may be lawful for the churchwardens and overseers of the poor of every such parish, by the direction of the inhabitants thereof in vestry assembled, to purchase or hire any suitable and convenient house or houses, building or buildings, for that purpose, in any adjoining parish, with the consent of two or more justices, such consent to be written upon or annexed to the agreement for purchasing or hiring such house or houses, building or buildings: provided always that no such house or building shall be situate more than three miles from the parish for which the same shall be purchased or hired."

be

ings, and the purchase of lands, &c.

Sect. 14. Provides, "that no sum exceeding the amount of a rate or Limiting the assessment at one shilling in the pound upon the annual value of the pro- amount to bildperty in any parish assessable to the rates for the relief the poor, shall be raised, expended, or applied, in any one year, in purchasing, building, and repairing any buildings, or land, by this act authorised to be purchased, taken, built, or repaired, and in fitting up, preparing, and furnishing such buildings, and in stocking such land, or for any one or more of such purposes or objects, unless the major part of the inhabitants and occupiers assessed to the relief of the poor, in vestry assembled, shall consent thereto, nor until two-third parts in value of all the inhabitants and occupiers so assessed as aforesaid (whether present in vestry or not) shall have also signed their consent thereto in the vestry or parish book.”

Sect. 15. Enacts, "that in every case where the inhabitants of any parish shall in manner aforesaid consent that a greater sum than the amount of a rate or assessment of one shilling in the pound will raise, shall be expended in one year for all or any of such purposes and objects, it shall be lawful for the churchwardens and overseers of the poor of such parish, with the consent of such majority as aforesaid of the inhabitants and occupiers thereof, to be given and signed in the manner herein-before directed (after the rate or rates at or amounting to one shilling in the pound shall have been actually levied and applied for such purposes or some of them), to raise any additional sum or sums, by loan, or by sale of an annuity or of annuities or any life or lives, not being under the age of fifty years respectively, or for any certain term not exceeding fifteen years, so as the whole sum to be raised for all or any of such purposes by loan, and by the sale of annuities,

Power to raise

further sums by sale of annuities. loans, or by the

or by either of such means, shall not be more than five shillings in the pound of or upon the true annual value of the property which shall in such parish be assessed to the poor's rates (every proposal for any such annuity being first stated to and approved by the inhabitants and occupiers of such parish in vestry assembled); and the churchwardens and overseers of the poor shall and they are hereby authorised, in the names and on the behalf of the inhabitants of the parish, to sign and execute securities for the money which shall be so borrowed, and for the annuities to be so granted; and by every such security to charge the produce of the future rates to be made for the relief of the poor of every such parish with the repayment of the principal sum which shall have been so borrowed, and the interest thereof, or with the payment of the annuity thereby granted (as the case may be), at and upon the days and times, and in such manner and proportions, as in and by the security for every such loan and annuity respectively shall be appointed and expressed for the payment thereof; and the money to be raised by such future rates shall be subject and liable to the payment of every such loan, and the interest thereof, and of every such annuity accordingly."

Sect. 16. Provides," that no greater sum in the whole than the amount of a rate or assessment at one shilling in the pound shall in any parish be charged upon the future rates thereof, unless two-third parts in value of the proprietors of messuages, lands, and tenements within such parish (whether for estates of freehold or copyhold, or by virtue of leases for terms of not less than fifteen years absolute or determinable upon a life or lives,) shall have consented to raise the money for which the charge or security shall purport to be made; such consents to be given by writing under the hands of all persons and corporations sole, and the consent of every corporation aggregate under the hand of the president, head, or chief member thereof for the time being, and the consents of femes covert, minors, insane persons, and persons out of the kingdom, by and under the hands of their respective husbands, guardians, committees, trustees, attornies or agents, who are respectively authorised to give such consents, and the consent of the major part of the trustees for any charitable or other purpose shall be sufficient in respect of the trust estates."

pur

Sect. 17. Enacts, "that all buildings, lands, and hereditaments, which shall be purchased, hired, or taken on lease, by the churchwardens and overseers of the poor of any parish, by the authority and for any of the poses of this act, shall be conveyed, demised, and assured to the churchwardens and overseers of the poor of every such parish respectively, and their successors, in trust for the parish; and such churchwardens and overseers of the poor, and their successors, shall and may, and they are hereby empowered to accept, take, and hold, in the nature of a body corporate, for and on behalf of the parish, all such buildings, lands, and hereditaments, and also all other buildings, lands, and hereditaments belonging to such parish; and in all actions, suits, indictments, and other proceedings, for or in relation to any such buildings, lands, or hereditaments, or the rent thereof, or for or in relation to any other buildings, lands, or hereditaments belonging to such parish, or the rent thereof; and in all actions and proceedings upon, or in relation to, any bond to be given for the faithful execution of the office of an assistant overseer, it shall be sufficient to name the churchwardens and overseers of the poor for the time being, describing them as the churchwardens and overseers of the poor of the parish for which they shall act, and naming such parish; and no action or suit, indictment or other proceeding, shall cease, abate, or be discontinued, quashed, defeated, or impeded, by the death of the churchwardens and overseers named in such proceeding, or the deaths or death of any of them, or by their removal or the removal of any of them from, or the expiration of, their respective offices."

Phillips v. Pearce, 5 B. & C. 433; 8 D. & R. 43, S. C. Land belonging to a parish was occupied by A., and he paid rent to the churchwardens. They executed a lease of the same land for a term of years to B., and gave A. notice of the lease. In an action for use and occupation by B. against A.: held, that A. was not estopped by having paid rent to the church

wardens, from disputing B.'s title, and that the latter could not derive a valid title from the churchwardens.-Abbott, C. J. The legislature has provided for the inconveniences experienced in consequence of lands belonging to parishioners, who are not by law a corporation, in certain cases, by the 59 Geo. III. c. 12, s. 17, which enacts, that the churchwardens and overseers shall take and hold, in the nature of a body corporate, for and on behalf of the parish, all buildings, lands, and tenements, belonging to the parish. That statute does not extend to this case. I think, therefore, that the churchwardens alone had no title to the land, or the rent which issues from it. And see Rogers v. Pitcher, 6 Taun. 202, S. P.

In Woodcock v. Gibson and others, 4 B. & C. 462; 6 D. § R. 524; 3 D. & R. M. Ca. 277; the Court of K.B. held, that the 59 G. III. c. 12, s. 17, vests in the churchwardens and overseers of the poor, in the nature of a body corporate, all buildings, lands, and hereditaments, belonging to the parish; but that in order to constitute the body corporate intended by the act, there must be two overseers and a churchwarden or churchwardens; and that where there were two overseers appointed, one of whom was afterwards appointed (by custom) sole churchwarden, the act did not vest parish property in them, so as to support a plea stating that the freehold was

in them.

59 Geo. III. c. 12, s. 18, enacts, "that the clauses, powers, provisions, and directions contained in an act passed in the twenty-second year of his present Majesty's reign, intituled an act for the relief and employment of the poor, for the purposes of enabling bodies politic and corporate, trustees, guardians, and incapacitated persons, to contract for the sale of, and to convey and lease, lands, tenements, and hereditaments, for the purposes in that act expressed, and for and with regard to the payment and application of the purchase money to be paid for the lands, tenements, and hereditaments, to be purchased by virtue of the said act, shall extend and be applied to all lands, tenements, and hereditaments, to be purchased, hired, or taken, for the purposes and under the authority of this act, and to the payment and application of the purchase money for the same, as fully and effectually to all intents and purposes as if such clauses, powers, provisions, and directions were herein repeated and contained, and were hereby expressly enacted and applied to lands and buildings, to be purchased and taken on lease for any of the purposes of this act."

Rex v. James Haigh and another, 3 T. R. 637; 2 Nol. P. L. 357. The defendants (the churchwarden and overseer of Shelf, in the West Riding of York) were indicted for disobeying an order of a justice, for the payment of a weekly sum to Mary Gray for the maintenance of her bastard child. At the trial before Buller, J., at the York Assizes, it appeared that the mother applied for relief for her child only; and the question was, Whether the defendants were bound to obey the order, as the mother of the child refused to go into the workhouse? A verdict was given for the prosecutor, subject to the opinion of the Court on the above question. For the prosecutor, Rex v. North Shields, Cald. 68, (ante, p. 188.) was relied upon; and for the defendants, Rex v. Carlisle, (ante, p. 187.) The words of the 9 Geo. I. c. 7. s. 4, are," in case any poor person, in any parish where any such house shall be so purchased, shall refuse to be lodged, kept, or maintained in such house, such poor person or persons, so refusing, shall be put out of the book where the names of the persons who ought to receive collection are registered, and shall not be entitled to ask or receive collection or relief from the churchwardens or overseers."-Lord Kenyon, C. J. The only question is, For whom was the relief asked? For such person only is, according to the terms of this act of parliament, to be sent to the workhouse. It is stated that the child only wanted relief: the application indeed was made by the mother, but it was not on her own account, but for her child only, who was of too tender an age to apply herself. This is, therefore, very distinguishable from the case of Rex v. Carlisle, where the relief was asked both for the parent and the child. It would be extremely hard, and contrary to the spirit and words of this act of parliament, if, when all the children of a family, except one, were capable of supporting them