duties, &c. Eleventhly, of 100l. imposed by the act.—Bayley, J., said, The object of the act was, to Of the powers, prevent imposition upon the parish by the overseers. If, therefore, goods are required for the parish workhouse, or if any other general supply for the poor is wanted, the overseer is not to furnish that supply; but it seems to me, these are the only cases contemplated by the act. Where a pauper carries an order for relief to the overseer, he has a right to demand it in money; and, in case of refusal, has a speedy remedy, by complaint to the justice who made the order. If the conduct of the overseer in selling the articles be oppressive, the justice may punish him for it; but if the overseer be absolutely prohibited from selling, it might be a hardship upon the pauper. For there being no words distinguishing the case of money laid out by the pauper, after full payment by the overseer, from that of a payment partly in goods and partly in money, a pauper might be compelled, in case the overseer kept the only shop in the village were the articles were supplied, to go to a very inconvenient distance, for the purpose of purchasing them from some one else.-Holroyd, J. However desirable it may perhaps be, to prevent the mischief attending such cases as the present, yet we cannot extend a penal statute so as to bring this case within it. The words of this statute appear to me applicable only to a general supply of the poor by the parish Where a church warden supplied corn and flour to the poor of the parish to which he was appointed, it was held that he was liable to the penalty, inflicted by 55 Geo. though such ar. ticles were furnished at a fair market price. officers. Pope v. Backhouse, 2 B. Moore, 186; 8 Taunt. 239, S. C. This was an action of debt founded on the 55 Geo. III. c. 137, s. 6, and brought to recover certain penalties from the defendant, as one of the churchwardens of the parish of Cleobury-Mortimer, in the county of Salop. The first count of the declaration stated that the defendant was a churchwarden of that parish, duly appointed in that behalf, and that during the time in which he retained such appointment, he did, in his own name, provide, furnish, and 3, c. 137, s. 6, al- supply, for his own profit, certain bread, flour, wheat, and meal, for the support and maintenance of the poor of the parish for which he was appointed such churchwarden, against the form of the statute, &c., whereby he forfeited the sum of 100l. There were several other counts charging the defendant as collector of the rates for the relief of the poor of the said parish, and as a person duly appointed to order the management, control, and direction of such poor, and charging him with different offences on different days. Plea, nil debet. At the trial of the cause before Burrough, J., at the Shrewsbury Lent assizes, 1818, it was proved that the defendant was a farmer, and had supplied corn and flour to some of the poor of the parish in which he resided, and for which he was churchwarden; but the jury found that the defendant sold it only at a fair market price, upon which the learned judge having, in the course of the trial, intimated an opinion to the contrary, directed a verdict to be entered for the plaintiff for one penalty on the first count, with liberty for the defendant to move to set it aside, and to enter a verdict for himself, if such sale did not come within the construction of the statute. Copley, Serj., moved accordingly; and contended, that to bring the case within the statute, it was necessary for the jury to find that the defendant sold at a profit.-Gibbs, C. J. It is to be presumed, that a farmer does make a profit by selling the produce of his land at a fair market price. If a churchwarden or overseer purchase provisions at a certain price, and afterwards, in the event of a scarcity which presses on the poor, let them have them at that price, he would not come within the act; but if he should sell them to the poor as he would to other individuals, at the market price, and make a profit on them, he would be within the act. The plaintiff is certainly liable, and the verdict properly entered for the plaintiff. The rest of the court concurred. Rule refused. I. S. being the master of the workhouse appointed by, and receiving orders from, the guar West v. Andrews, 5. B. & A. 328. Debt on 55 Geo. III. c. 137, s. 6, for a penalty of 100l. Declaration stated, that defendant, on 1st June, 1820, was overseer of the poor of Westhamprett, in Sussex, and during the time he was overseer furnished and supplied, in his own name, goods and provisions for the support of the poor. The second count described him as a person in whose hands the collection of the rates was. Plea, general issue. At the W., brought pro- trial before Burrough, J., at the last assizes for the county of Sussex, it appeared that defendant was one of the guardians of the poor of the parish, dians of the poor of the parish of visions from A. B., one of such Eleventhly, Of the powers, duties, &c. guardians: Held, that A. B. was liable to the peposed by statute 55 Geo. 3, c. 137. nalty of 1007. im and that the poor-house there was under their control, being managed by a West v. Andrews, 1 B. & C. 77; 2 D. & R. 184; 1 D. & Ryl. Mag Ca. 213, S. C. Debt on 55 Geo. III. c. 137, s. 6, for a penalty of 100l. The first count stated, that the defendant was overseer of the poor of the parish of Westhamprett, in Sussex, duly appointed in that behalf; and that during the time he retained such appointment, he did, in his own name, provide, furnish, and supply, for his own profit, certain goods and provisions for the support and maintenance of the poor of said parish, for which he was so appointed overseer as aforesaid. The second count stated, that the defendant was a person in whose hands the collection of the rates for the relief of the poor of the said parish was placed, under and by virtue of certain acts of parliament. The third count stated, that he was a person in whose hands the providing for, ordering, management, control, and direction of the poor of the said parish was placed, by virtue of certain acts of parliament. The 1th, 5th, and 6th counts were similar to the 1st, 2nd, and 3rd, varying only in stating that the defendant was directly concerned in furnishing and supplying for his own profit, certain other goods, &c. The 7th, 8th, 9th, 10th, 11th, and 12th counts varied in stating, that the supply was for the use of certain workhouse, of and belonging to the said parish of Westhamprett, for the support, amongst other poor in the said workhouse, of the poor of the said parish of Westhamprett. The 13th count stated, that the defendant was a person amongst others in whose hands the providing for, ordering, control, and direction of the poor of the united parishes of Westhamprett, Boxgrove, Mildivant, and West Stoke, was placed by virtue of certain acts of parliament; and that the defendant, in his own name, provided, &c., certain goods for the support and maintenance of the said united parishes. The 14th count stated, that he was directly concerned in providing, &c., goods for the support and maintenance of the said poor of the said united parishes, &c. The 15th and 16th counts stated the supply to be for the use of a certain workhouse, of and belonging to the said united parishes, &c., for the support and maintenance of the poor of the said united parishes, &c. The defendant pleaded the general issue.-At the trial at the last Lent assizes for the county of Sussex, before Wood, B., it appeared that the defendant was guardian of the poor of the parish of Westhamprett, and that the poor of that parish, together with the poor of four parishes, including those mentioned in the declaration, were jointly maintained in a workhouse, but the parish of Westhamprett was regularly united according to the provisions of stat. 22 Geo. III. c. 83, s. 43, with only one of those parishes. The supply of the provisions in question was to the master of the workhouse, who, in 1820, bought of the defendant four sheep for the use of the poor, and paid him for them. The master of the workhouse had a contract for providing for the poor at so much a head, and found all the meat, &c. The learned A guardian of the under 22 Geo. 3, poor appointed c. 83, is within the 55 Geo. 3, c. 137, s. 6, not guardian. supplied the poor withstanding the former act, s. 42, imposes a penalty for the supply of the provisions for the poor by such Where a count stated that A. B. of the parish of w. with provisions, and the that he supplied the poor of the other parishes in a workhouse : Held, first, that riance, the proof being larger than the allegation. Secondly, that the objection as to a variance gation of a supply of the poor, evidence was, parish of W., and it was no va between the alle and the proof of a supply of the poor, in the workhouse, not being taken at nisi prius, could not be afterwards available. Eleventhly, Of the powers, duties, &c. judge was of opinion, that this was a case within the statute, pursuant to the decision of this court in West v. Andrews; and the plaintiff obtained a verdict for one penalty, which was entered on the third count. Marryat, in Easter term last, obtained a rule nisi for entering a nonsuit, on the ground that the evidence was not applicable to that count, or to any other count in the declaration, the supply being in fact for the poor of the united parishes in the workhouse, and only four parishes being stated as united in the declaration, whereas the proof was either of a legal union of two, or an union de facto of five parishes.—Gurney and Long, were to have shewed cause, but, the Court called upon Marryat and Courthope, to support their rule.-Abbott, C. J. In this case it is clear, that if the evidence given at the trial be sufficient to sustain any one of the counts of the declaration, there ought not to be a nonsuit entered. The first objection is, that this was provided for, and must fall under stat. 22 Geo. III. c. 83, s. 42. But if stat. 53 Geo. III. c. 137, s. 6, does not extend to a case like the present, a great many words in it would be altogether insensible. For that clause speaks of persons having the providing for, ordering, management, control, or direction of the poor of any parish or parishes, township or townships, hamlet or hamlets, place or places. It therefore clearly extends to persons having the control of the poor in more parishes than one, and applies, as it seems to me, to the present case. The next objection is, that the character of the defendant is not properly described. He is described in the third count as a person in whose hands the providing for, ordering, management, control, and direction of the poor of the parish of Westhamprett was placed. How is that allegation sustained? It appears, that under Gilbert's act, (22 Geo. III. c. 83,) where more parishes than one are united, every guardian of the poor appointed under that act, has, and is invested with, all the powers and authorities given to overseers of the poor by any act or acts of parliament, and is to all intents and purposes, except with regard to the making and collecting rates, an overseer of the poor for the parish for which he is appointed guardian. If then this defendant was lawfully appointed guardian of the poor of the parish of Westhamprett, he is a person in whose hands was placed the control of the poor of that parish for which he was so appointed guardian. The objection, therefore, that his character is improperly described, cannot prevail. The last objection is, that in the third count the supply is stated to have been for the support and maintenance of the poor of the said parish; whereas by the proof it appears to have been for their support and maintenance in the workhouse, and it is urged that as the 55 Geo. III. c. 137, s. 6, describes these as two distinct classes, the allegation should have strictly conformed to the proof. I am by no means satisfied that this objection, even if taken at nisi prius, could have prevailed. But I am clearly of opinion, that a mere formal objection of this sort, if not so taken, cannot be available afterwards. I think, therefore, that all the objections are insufficient, and that this rule must be discharged.—Bayley, J. The 55 Geo. III. c. 137, s. 6, seems to have been intended as a general provision, and the legislature could not have meant that there should be one rule for parishes united under 22 Geo. III. c. 83, and another in cases of parishes not so united. It may be true, that this case would have fallen under Gilbert's act, previously to 55 Geo. III.; but the latter statute, when passed, contained a general provision, within which this case, if not excepted, would fall. I can see no reason for any such exception being made, and in the absence of any express exception, it seems to me that no exception can be implied from Gilbert's act. I am also of opinion, that a guardian appointed under 22 Geo. III. is clearly a person having the ordering, management, control and direction of the poor of the parish for which he is appointed, and that he falls under the provisions of the 55 Geo. III. The guardians have the power of recommending the master of the workhouse, and may make agreements with respect to the diet of the poor over which they are to exercise a strict control. It is the duty, therefore, of each of them to take care that wholesome food is supplied. Now all these objects will be defeated if the guardian, who is to inspect the conduct of the governor, supplies the workhouse with provisions. The case, therefore, is clearly within the mischief to be remedied. As to the objection that the declaration does not sufficiently describe the persons for whose care and support the goods were supplied, it seems to me that the allegation is substantially proved, for if a person supplies the poor of any parish, it is immaterial whether he supplies them in or out of a workhouse; and if he supplies a workhouse which contains the poor of the parishes, A., B., C., and D., he does in fact supply the poor of each of these parishes. This rule must therefore be discharged. -Holroyd, J. I am of the same opinion. The 55 Geo. III. c. 137, is not confined to cases not falling under Gilbert's act. The words seem intended to include cases like the present, and we ought to give them a liberal construction, so as to remedy the mischief contemplated. It is contended that inasmuch as this defendant was only guardian of the poor, he was not charged with the maintenance of the poor of this particular parish, and that the allegation to that effect in the declaration is not proved. It appears, in fact, that he had a control over the maintenance of the poor of the parish. And as to the description of his character in the declaration, it is sufficiently proved by the evidence; for in pleading it is not necessary that the allegation should be as extensive as the proof. Where a prescription is pleaded for a right of common for sheep, and the proof is of a right for all commonable cattle, it is sufficient (a); and so here the allegation is, that he had the ordering and direction of the poor of one parish; and the proof is, that he had the ordering and direction of the poor of that parish and others. As to the third objection, I agree with my Lord Chief Justice, that it not being taken at the trial, it cannot prevail now.-Bes!, J., concurred. Rule refused. Skinner v. Buckee, 3 B. & C. 6; 4 D. § R. 628; 2 D. & Ryl. Mag. Ca. 360, S. C. This was a penal action, founded on the 55 Geo. III. c. 137, s. 6. The first count of the declaration charged, that the defendant on, &c., was overseer of the poor of the liberty of Saffron Hill, Hatton Garden, and Ely Rents, in the county of Middlesex, duly appointed in that behalf, to wit, at, &c.; and that during the time he retained such appointment as aforesaid, to wit, on, &c., he did in his own name, provide, furnish, and supply certain goods, to wit, coals for the use of a workhouse belonging to the said liberty for which he was appointed, to wit, at, &c., contrary to the form of the statute, by reason whereof, &c. Another count stated, that the defendant did, in the name of a certain other person, furnish and supply for his, defendant's own profit, coals for the use of a certain workhouse, &c. The third count stated, that he was concerned indirectly in supplying for his own profit, coals, &c. The fourth stated, that he was concerned directly in supplying coals for the use of the workhouse (omitting the words " for his own profit.") The fifth count was, that he was concerned indirectly in supplying coals for the use of the workhouse. The sixth count, that he was concerned in a certain contract relating to the providing, furnishing, and supplying goods, materials, and provisions for the use of the workhouse. At the trial before Abbott, C. J., at the sittings after Michaelmas term, it appeared that the defendant was a coal merchant, and that he was duly appointed overseer of the liberty of Saffron Hill, Hatton Garden, and Ely Rents; and during the time that he was overseer, a quantity of coals were provided for the workhouse nominally by one Gaubert, who was the brother-in-law of the defendant, but that the latter had an interest in the coals. It was doubtful upon the evidence, however, whether either he or Gaubert made any profit by them. The Lord Chief Justice was of opinion, that unless the defendant acted with a view to profit, it was not a case within the 55 Geo. III. c. 137, s. 6; and he told the jury to find for the defendant, if they were of opinion upon the evidence that the defendant did not send in the coals with a view of making a profit. The jury having found for defendant, a rule nisi was obtained, when Scarlett shewed cause, and Gurney, contrà.-Per Abbott, C. J. We are all of opinion that this rule must be discharged. The question in this case arises upon (a) See Bushwood v. Pond, Cro. Eliz. 722; Bruges v. Searl, Carth. 219; Bailiffs, &c. of Tewkesbury v. Bricknett, Eleventhly, Of the powers, duties, &c. Twelfthly, Thirteenthly, Recovering pos session summarily. Justices empowered, in certain cases, to deliver possession of parish houses to overseers. Recovering possession of parish houses, &c. Mode of proceeding. the construction of the 55 Geo. III. c. 137, s. 6; the words are, (Twelfthly)-Vestries. For the regulation of parish vestries, see stats. 58 Geo III. c. 69, and 59 Geo. III. c. 58, post, 205; and for the establishment of select vestries, see 59 Geo. III. c. 12, post, 210. (Thirteenthly)—Of recovering Possession of Parish Houses or Lands. By the 59 Geo. III. c. 12, s. 24. (a) After reciting, "Whereas difficulties have frequently arisen, and considerable expences have sometimes been incurred, by reason of the refusal of persons who have been permitted to occupy, or who have intruded themselves into parishes or town houses, or other tenements or dwellings built or provided for the habitation of the poor, or otherwise belonging to such parishes, to deliver up the possession of such houses, tenements, or dwellings, when thereto required; and it is expedient to provide a remedy for the same;" be it enacted, that if any person who shall have been permitted to occupy any parish or town house, or any other tenement or dwelling belonging to or provided by or at the charge of any parish, for the habitation of the poor thereof, or who shall have unlawfully intruded himself or herself into any such house, tenement, or dwelling, or into any house, tenement, or hereditament belonging to such parish, shall refuse or neglect to quit the same, and deliver up the possession thereof to the churchwardens and overseers of the poor of any such parish, within one month after notice and demand in writing, for that purpose, signed by such churchwardens and overseers, or the major part of them, shall have been delivered to the person in possession, or in his or her absence affixed on some notorious part of the premises, it shall be lawful for any two of his Majesty's (a) See the words of the statute, and cases, 1 Chitty's Col. Stat. 680, 847. |