Of the Poor rate,

Who to be taxed

towards relief of

poor, and a con

venient stock

shall be provided

to set the poor on work, &c.

First, Who to make.

Concurrence of the inhabitants not necessary. Mandamus to compel the making a rate. But not the making of an equal rate.

Secondly, For

what purposes, &c.

Expences of litigating questions of settlement.

of two or more justices in the same county, whereof one to be of the quorum, dwelling in or near the same parish or division where the same parish doth lie, "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 (i. e. poor) 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 disposing of the said stock, as otherwise, concerning the premises, as to them shall seem convenient."

The overseers of townships and vills have the like duty and power, under 13 & 14 Car. II. c. 12, s. 21, and the 43 Eliz. c. 2, s. 8, 9, provides for towns corporate and parishes extending into two counties, &c.

(First)-Who are to make the Rate.

The Churchwardens and Overseers.] Tawney's case, 2 Ld. Raym. 1009; 2 Salk. 531; 1 Bott, 77; 1 Nol. P. L. 61, 62. The concurrence of the inhabitants in making a rate is not at all necessary; for by these words the churchwardens and overseers may make one without them.

Shall.] And the court of King's Bench will grant a mandamus to compel overseers to make a rate. Rex v. Barnstaple, 1 Barnard, 137; 1 Bott, 78; Lidleston v. Mayor of Exeter, 1 Bott, 77; Rex v. Weobly, 1 Bott, 112.

But the Court will not grant a mandamus to make an equal rate, or to insert or omit any person or property, because it is to be presumed the overseers will do justice, and if they do not, there is a proper remedy by appeal to the sessions. Rex v. Barnstaple, 1 Barnard, 137; 1 Bott, 78; 1 Nol. P. L. 62; 2 Stra. 1259.

(Secondly)-For what Purposes: and Reimbursement of Overseers.

The statutes declaring the purposes for which a poor rate may be made are many, in addition to the 43 Eliz. c. 2. (a) It has been seen, that by this last-mentioned statute the purposes for which a rate might be made were, for setting to work the children of those poor who are not themselves able to keep them: also, all persons not able to maintain them, and using no ordinary trade of life to get their living by; and for the putting out poor children apprentices. The remaining sections of this act contain various regulations relating to the conduct and duty of overseers.

The 9 Geo. I. c. 7, relates to the mode in which the poor shall (in particular cases) be relieved; and it also gives the churchwardens and overseers power and authority, with the consent of the major part of the parishioners, to purchase houses, and contract with any persons for the lodging, &c., of the poor: see this act more fully set out (post.)

The 18 Geo. III. c. 19, relates to re-payment to constables of the money expended by them in the relief and removal of poor persons, and of vagrants.

And see 41 Geo. III. U.K. c. 23, s. 9, post.

In Rex v. Inhab. of Essex, 4 T. R. 595; 1 Nol. P. L. 63; it was said, per Ashhurst, J., to have been the constant practice to allow the expences of litigating the questions of settlement consequent upon the removal of

to the enforcing of those duties in the
only way in which they could be en-
forced, namely, by raising a fund from
persons who are deemed competent to
pay it.
Per Lord Kenyon, C. J., 4

T. R. 775.

(a) See more particularly 22 Geo. III. c. 83, s. 20; 42 Geo. III. c. 74; 43 Geo. III. c. 110, s. 1, 2; 59 Geo. III. c. 12, s. 8 to 16; 36 Geo. III. c. 10, s. 1; and 52 Geo. III. c. 73.

paupers, to be defrayed out of the parish stock; the legality of which had never been disputed. (a)

In Tawney's case, 2 Salk. 531; 1 Nol. P. L. 68, 69; Tawney, being overseer of the poor, laid out his money in the relief of the poor, and was turned out of his office by the justices before the end of the year; by which means he lost the opportunity of making a rate to reimburse himself. Upon this he applied to the court of K. B. for a mandamus to the churchwardens and overseers to make a rate to reimburse him.—By Holt, C. J. We cannot order the parish or overseers by a mandamus to make a rate to reimburse an overseer, but only to raise money for the relief of the poor; nor can they make a rate otherwise. The act of parliament is expressly so, and must be pursued. An overseer is not bound to lay out money till he have it: if he do, he must make a new rate for the relief of the poor, and out of that he may retain to pay himself. Tawney should have done so; he trusted where he need not have done it. He hath not pursued the means the statute gave him, and we cannot relieve him.-And by the whole Court. The mandamus lies not.

Also in Rex v. Goodcheap, 6 T. R. 159; 1 Bott, 108; 1 Nol. P. L. 69; it was determined, that where a person is appointed an overseer for four successive years, and does not make any rate in the three first years to reimburse himself what he expends in those three years, he cannot in the fourth year make a rate for that purpose: and Lord Kenyon said it was impossible to raise any doubt upon the question; that the overseers ought not to include in their accounts charges for several years, but all the items of the accounts should be confined to that year when the accounts are directed by the act to be passed.

But now succeed. ing churchwar dens and overseers are empowered to expended by preceding churchwardens, &c., for the maintenance of the poor, while rate: or during an appeal: and in default of such quarter sessions, on application them, shall make an order for

repay money

there was no

repayment, the

But now by 41 Geo. III. U. K. c. 23, s. 9, after reciting that "whereas it may have happened that the church wardens and overseers of the poor have not been able to collect a sum sufficient for the relief and maintenance of the poor, but they or the guardians of the poor have advanced and expended considerable sums for that purpose; it is enacted, that the churchwardens and overseers, or any of them, out of any money they shall collect in pursuance of any rate for the relief of the poor, may reimburse the preceding churchwardens and overseers or guardians such sums as they or any of them have heretofore advanced or expended for the relief or maintenance of the poor of such place, during the time that no rate or assessment for the relief thereof has been made, or during the time that any appeal has been depending which affected the whole of such rate or assessment, or upon hearing of which the whole might be quashed; and, in default of payment of such money so advanced and expended within fourteen days next after demand in writing, such preceding churchwardens and overseers or guardians, or any of them, may apply to the then next general or quarter sessions, giving due notice in writing of such application to the then churchwardens and overseers, or any two of them; and such court shall examine the parties and witnesses upon oath, and shall make an order upon the then churchwardens and overseers, Order. or any of them, out of the money collected or to be collected by them or any of them in pursuance of any rate made for the relief of the poor, to pay such sum to the preceding churchwardens and overseers or guardians, or any of them, as the said court shall think fit: and such sums so ordered to be paid may be levied by distress, and by all such other ways and means as the poor rate may."

Rex. v. Wavell, Doug. 116; 1 Bott, 102; 1 Nol. P. L. 68. On a rule to shew cause, why a rate for the relief of the poor of the parish of Effingham, in the county of Surrey, and an order of sessions confirming the rate, should not be quashed, the sessions had refused to state a special case; but the counsel for the appellants being of opinion that the rate would appear to be bad from the title of it, they removed it by certiorari, and obtained the present rule. The title of the rate was as follows:-" Surrey, to wit. An

(a) Quere. Whether the expences of a valuation of the property of a parish which has been directed by a majority of

the vestry, can be legally defrayed out of
the poor rate? See 1 Nol. P. L. 67,
note 3.

being made to

payment.

Notice.

Distress, &c.

Rate cannot be money borrowed, though for building or repairing

made to repay

workhouses.

assessment on all and every the occupiers of lands and houses, in the parish of Effingham, for the necessary relief of the poor, and towards payment of money borrowed for building and repairing the workhouse." In support of the rate it was contended that the title of the rate would undoubtedly have been good, if it had been only "An assessment for relief of the poor," and that the acts and orders of magistrates (except convictions) are entitled to every intendment from the court that can support them; and, therefore, that the court would intend the whole money to have been assessed for the first purpose expressed in the title, (if it should be thought that the other was not within the statute,) and would reject the additional words as surplusage. That if the present objection was founded in law, the proper method of getting at it would have been by an appeal from the allowance of the overseer's accounts. However, this purpose of building or repairing a workhouse was manifestly within the spirit of the statute, since it would be in vain to provide for the sustenance of the poor, without being able to furnish them with a lodging. On the other side, it was said to be a general rule, without exception, that the parish officers cannot borrow money for any purpose whatever. (Lord Mansfield, C. J., was absent.)-Willes, J. Can we reject, as surplusage, what is a material part of the title of the rate? If we cannot, is a rate good to repay money borrowed? Tawney's case, (ante, p. 45,) is in point. And as to an appeal against the overseers' accounts, is a parishioner obliged to pay money, and be turned round in that manner to get it back if levied without authority? The rate cannot be supported.— Ashurst, J., of the same opinion.-Buller, J. This rate imports to be made for two purposes, and we are desired to consider it as only made for one. conceive that a rate cannot be made for money borrowed, even though within the year. Tawney's case goes that length; for it is not confined to the mandamus. The rule for quashing was made absolute. (a)

I

In Rex v. Glyde, 2 M. & S. 323, Lord Ellenborough, C. J., said, We have no doubt on the face of the order, that the overseer has no title to a salary for any meritorious services, or for any services at all.

But by 59 Geo. III. c. 12, s. 7, it shall be lawful for the inhabitants of any parish in vestry assembled, to nominate and elect any discreet person or persons to be assistant overseer or overseers of the poor of such parish, and to determine and specify the duties to be by* or them executed and performed, and 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 hereby empowered, by warrant under their hands and seals (b), to appoint any person or persons

(a) This principle also prevails as to church rates, although the money to be reimbursed may have been laid out underan order of vestry. [See Lanchester v. Thompson, et al.; 5 Madd. 64; Lanchester v. Tricker, 8 J. B. Moore, 20; 1 Bing. 201, S. C.; Lanchester v. Frewer, 9 J. B. Moore, 688; 2 Bing. 361, S. C.]

(b) Form of Appointment of an Assistant

Overseer.

for the execution of the said office. Now we, two of his Majesty's justices of the peace in and for the said county, in pursuance of the statute in such case made and provided, do hereby appoint the said

to be an assistant overseer of the poor of the said parish, and we do hereby authorise and empower him to execute and perform the said duties and to receive the said salary so as aforesaid fixed by the said inhabitants in their said vestry. Given under our hands and seals this day of in the year of our

Lord, 18

The instrument of appointment must be stamped. Rex v. Inh. of Lew, 8 B. & C. 655, ante, 16.

who shall be so nominated and elected to ve 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.

Rex v. Bird and others, 2 B. & A. 522. The expences, which are to be allowed a constable out of the parish rates, are those necessarily incurred by him on behalf of the parish, as relieving or conveying vagrants, &c., within 18 Geo. III. c. 19, s. 4 but the expences of indicting a party for assaulting him in the execution of his duty, are not expences so incurred, although the prosecution was directed by a magistrate. See also Rex v. Seville, 5 B. & A. 180; ante, Vol. I., title Constable, s. 7.

(Thirdly)—For what Time a Poor Rate may be made.

Raise weekly or otherwise. Durrant v. Boys, 6 T. R. 580; 1 Bott, 80; 1 Nol. P. L. 66. A poor rate may be made prospectively; and if it were made for six months, it would not (it seems) be bad on that account.-Lord Kenyon, C. J., said, every person who is conversant in matters of this kind, knows the impossibility of foreseeing and providing for every expence that may arise and therefore a rate may be made prospectively, not indeed wantonly, but such as is adapted to the probable exigencies of the parish. Rex v. Audley, 2 Salk. 526; 1 Bott, 110. 272; 1 Nol. P. L. 3d edit. 192. A rate was agreed on in 1665 by the inhabitants of Audley, which had been followed ever since till the last year, when a new rate was made. On appeal to the sessions, the new rate was quashed, and the old one ordered to stand. By Holt, C. J., the old rate, however just at first, may be unequal now; and therefore the justices cannot make a standing rate.

(Fourthly)-On whom (a) (in respect of themselves personally) the Rate may be made.

"By taxation of every inhabitant, parson, vicar, and other, and of Fourthly, On every occupier (a) of lands, houses, tithes impropriate, propriations of tithes, whom to be made. coal mines, or saleable underwoods in the said parish."

(a) The liability to the poor-rate is divisible into two principal heads; first, that of inhabitancy, as connected with certain property; second, that of the occupation of property, independently of the question of inhabitancy. The cases upon the first of these heads may be subdivided into those which relate to the character of inhabitancy, and those which relate to property; in respect of which, inhabitants, as such, may be chargeable. See a long note in Evans's Coll. Stat. 8th vol. 21. The word inhabitant means a person resident permanently and sleeping in the parish. Rex v. Nicholson, 12 East, 330. And therefore, a person who is lessee of a stall in a market, and comes there on market-days to sell his wares, is not rateable (Holledge's Case, 1 Bott, 123,) unless also resident in the parish. And he must have local visible property within the parish; and he shall not be rated in that parish, by reason of any property he may have out of it. Sir Anthony Earby's Case, 1 Bott, 124.

He is not rateable by reason of money

he has out at interest, or in the public
funds; (Rex v. White and others, 4 T. R.
771; 1 Bott, 89, 202; Rex v. St. John's
Maddermarket, 6 East, 182; 1 Bott,
239), or by reason of his salary as clerk,
or pay as an officer in the navy, &c.
(Rex v. Shalfleet, 4 Burr. 2011; 1 Bott,
133; Rex v. White and others, supra);
or in respect of the profits of his profes-
sion of attorney, (Rex v. Startifant, 7
T. R. 60; 1 Bott, 217), nor for house-
hold furniture merely. Rex v. White,

supra.

But he is rateable for his stock in trade, within the parish, of which he makes a profit (Per Lord Ellenborough, C. J., in Rex v. Macdonald, 12 East, 324; Bott, cont. 75), whether there be a custom in the parish to that effect (Rex v. Hill, Cowp. 613) or not. Rex v. Ambleside, 16 East, 380; see also Rex v. Andover, Cowp. 550; 1 Bott, 153; Rex v. Whitney, 5 Burr. 2634; 1 Bott, 141; Rex v. Ringwood, Cowp. 326; 1 Bott, 148; Rex v. Dursley, 6 T. R. 513; 1 Bott, 210, 290; Rex v. Sherborne, 8 East,

Fourthly, On whom to be made.

Who an inhabitant.

The words "inhabitant, parson, vicar, and other," (a) include all those who possess property not coming within the several species of it described in the next following part of the same clause of the act.

The word inhabitants in the statute of bridges, the riot act and the black act, has been construed to include in it all persons possessed of property in