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That of an assist-
ant overseer is
an office within

Ninthly, Of held that a tithing-man, a borsholder, an ale-taster, or a hayward, may gain settlement by a settlement by serving either of those offices; and the latter, whose duty it office. is merely to take care of the fences within his district, cannot be distin

Order of sessions confirmed. 2. What office, &c. guished from this case.

Rex v. Lew, 8 B. & C. 655. Order of removal of W. Purlrick from Charlbury to Lew, confirmed. Case : The pauper was, on the 16th of October,

1820, duly elected by the inhabitants of Charlbury, an assistant overseer, the act, but the appointment

pursuant to the 59 Geo. III. c. 12. The restry determined that the paupe must be duly should perform the duties, and receive the salary mentioned in the warrant stamped.

of appointment. On the 18th, he was appointed by a warrant under the hands and seals of two justices : it recited that the inhabitants had nominated the pauper to be the assistant overseer, and did fix the yearly sum of 101. as and for the yearly salary for the execution of the office; it then appointed him to be the assistant overseer, and authorized him to perform the duties, and receive the salary. It was not stamped: the pauper performed the office for a year.Bayley, J. I have no doubt that the pauper held an office within the meaning of the 3 & 4 W. & M. c. 11, and that he executed that office for himself, and on his own account. It was a public office in the parish; the duties were executed throughout the parish. He was appointed by the inhabitants in vestry assembled. I think also that was an annual office : the pauper was to receive a yearly salary for executing the duties of it; and although he might be removed within the year, he would continue in the office for a year, unless something was done to determine it during that period. He had an estate for a year in his office, defeasible on a particular event; as in the case of a lease for a year, determinable by notice within the year. In that case the lessee is in the estate for the year, though it may be determined by notice. (Rex v. Hertmonceaux, 6 B. &. C. 550.) The office held by the pauper was held by him in his own right, not as deputy of the principal overseer. The great difficulty in this case arises from the want of a stamp. If I were at liberty to conjecture, I should say, the legislature did not contemplate an appointment of this description, but I am bound to give effect to the words of the statute. The 55 Geo. III. c. 184, Sched. tit. Grant, requires that any grant or appointment made by any person to any office or employment by writing, where the salary, fee, or emolument, appertaining thereto, shall not amount to 50l. per annum, shall have a stamp of 21. Here there is an appointment in writing to an office or employment, where the yearly salary does not amount to 501. It is, therefore, within the very words of the act, and required a stamp.-Littledale, J. The appointment requires a stamp; There are some general exemptions at the end of that part of the schedule which relates to offices, but this is not among them. I have no doubt on the other point. This is called an office in the act. It is from the nature of the thing an office. If an overseer be an officer, an assistant overseer is equally so. It is also an annual office, for there is an annual salary; and although he may be removed within the year, still he is appointed to the office for the year.

Parke, J., concurred. Order confirmed. Collector of the Rex v. Hammond, 2 Bott, 157.—By Pratt, C. J. Serving the office of land-tax is a pub- collector of the land-tax is a sufficient office to gain a settlement within the Jic annual office.

3 & 4 W. III. c. 11, s. 6, for it is not necessary that the office should be a parish office: any office is sufficient, so that by the notoriety of it, it may be presumed that the parish had notice of the person's being come into the

parish. Collector of du- Bisham v. Cook, 1 Stra. 411. The pauper lived in Bisham, and executed ties on births and there the office of collector of the duties given by 6 & 7 W. III. c. 6, on births

and burials. It was moved to quash it, because this was not a parish office, and it would be giving the commissioners (who are to appoint the collectors) a power to bring what charge they would upon the parish: besides, it was not stated in the order, that this was an annual office, as it must be to give a settlement, within the express words of the act.—By the Court. The reason why the executing an office gives a settlement without notice, is, because of the notoriety of the thing, of which the parliament thought it impossible but the parish should have notice: can any thing be more notorious than this, which

burials,

oftice.

is to collect a duty from house to house? We cannot suppose a fraud in the Ninthly, Of commissioners; that they would appoint a person of no substance to be col- settlement by lector, only to bring a charge upon the parish. It needs not to be a parish office. office, but a public annual office in the parish. And as to its not being said, that

2. What office, &c. this man executed it for a year, we must take it he did so, because it appears, Needs not be'a on looking into the statute, that the power given to the commissioners is to parish office, but appoint a person who shall be collector of the duties for a year, and then give a public annual in his accounts. It hath been held a settlement in the case of the land-tax, parish. and why not in this? Order confirmed. Helsington v. Over, Burr. S. C. 746; 2 Bott, 243. Order of removal of A curacy is not a

public annual Rev. John Langhorn from Helsington to Over, confirmed. Case: On the Ist day of October, 1766, the vicarage of the parish of Over was sequestered for three years, or till the bishop should release the same: On the 12th, the pauper was ordained deacon, in order to supply the cure of Over during the sequestration : From the 15th, to the 15th of June, 1768, he, by an exchange with the curate at Acton, resided and did duty in Acton, but received his salary regularly from the sequestrators of Over : From the 15th of June, 1768, to the 1st of October, 1769, he resided and did duty as curate at Over, when the sequestration ended : It did not appear that he had any licence to the curacy of Acton.-Lord Mansfield, C. I. There is no colour for considering this as an annual office: It is no office at all.–And Aston, J., said, You cannot call it an annual office, when the sequestration may be determined at any time. It is not like the annual office of a constable or a tithing-man. They are appointed generally, and to serve for a year. That of parish clerk is a freehold; and it is upon that foot that a parish clerk gains a settlement. Orders quashed.

Rex v. Wantage, 2 East, 65. R. Puzey, clerk, was nominated by the rector of East Lochinge, to be curate of the same, and was duly licensed, with a yearly stipend of 45l. The licence authorised the party, during pleasure, “ To perform the office of curate in the parish, &c., in reading the common prayer, and performing other ecclesiastical duties belonging to the said office, according to the form prescribed,” &c. Puzey entered on the curacy the same year, and performed the duties for six years, during which he resided in the parsonage house in the parish.—Lord Kenyon, C.J. There is no pretence to say that this is an office, the executing of which, for a year, will give a settlement. The statute of 3 & 4 W. & M. c. 11, s. 6, was evidently intended to be confined to inferior annual officers, such as constables and the like, known to the parish; and though in some instances the construction has been carried farther, yet I am not inclined to extend it to cases still farther from the contemplation of the legislature. Order of sessions confirmed.

Rex v. Milborne, 2 Stra. 1225. T. Membury was certificated from Sheeps- Schoolmaster not head to Milborne, and staid there ten years, during which time lady Eliza

a public officer. beth Hastings conveyed lands to trustees for several charities out of the profits ; and among others, the sum of 101. a-year to the charity-school at Milborne, to be paid to the vicar there for the time being. In the special order of sessions it was stated, that the certificate-man officiated as school-master several years, and received the 101. a-year from the vicar: and this, the sessions held, gained him a settlement in Milborne, where they declared he had a freehold estate; and so had both the requisites to obtain a settlement to a certificate-person, namely, a tenement of 101. a-year, and executing an annual office.-But by the Court. The order must be quashed ; a schoolmaster is not an office, but only an employment; and what interest T. M. had in the school, whether for life or otherwise, or how he came into this employment, doth not appear; and the legal right to receive the salary is in the vicar, who not caring to officiate himself, has therefore paid it over to this man as his deputy, which could never give any person a settlement, much less a certificate-man.

Rex v. Mersham, 7 East, 167. Removal from Boxley to Mersham, con- Master of a workfirmed. The parts of the case upon which the question was decided, were, be a public of that the pauper at a vestry meeting offered his proposals to become master of cer. the workhouse: that at a subsequent vestry meeting, at which twelve of the

Ninthly, Of inhabitants were present, he was informed by the parish officers that he was settlement by appointed master of the workhouse of the parish of B. at a salary of 161. per

office. annum. No time was ever mentioned for which he was to hold his situation. 2.What office, &c.

No appointment was made in writing, nor any entry in the parish books. After serving for four years, he was dismissed at a quarter's notice.—After argument, lord Ellenborough, C. J. said, The principle on which this mode of gaining a settlement has been given, is undoubtedly notoriety to the parish, but a settlement can only be gained in this mode upon the terms of the act of parliament; viz. by executing “a public annual office or charge in the parish :" which brings us back to the question, Whether that which the pauper was appointed to execute were a public office or charge ? And it appears to me that he cannot be considered as a public officer. An office must be derived either immediately or mediately from the crown, or be constituted by statute; and this is neither one nor the other, but merely arising out of a contract with the parish, which the parish officers, with the consent of the parishioners, are, by the statute, enabled to make with any person for the inaintenance and employment of the poor. It might as well be said that a nurse employed to look after the pauper, or any other employed in like manner to do any part of the parish business, was an officer. The question might admit of a different consideration, if any distinction had been established between an office and a charge, but I can find none either in any case or in the sense of the statute. The determination of the appointment at a quarter's notice, repels the presumption that it was an annual office or charge; therefore, as far as we can collect the intended duration of the employment from the acts of the parties, it appears that the parish might put an end to it within the year if they thought proper; upon the whole, therefore, it appears neither to have been an office, nor a public office, nor a public annual office within the statute.-Lawrence, J., said, it was clearly no office; but only an employment arising out of a contract, between which and an office there is a great distinction. (Rex v. Milborne, ante, 615.) And he agreed in the definition of the word charge, that it must be taken to mean something of the same kind with office, though it may not commonly be known under the name of an office.Le Blanc, J. If this were to be deemed a public annual office or charge within the act, it would extend to every case where a person had a duty to perform which, from its nature, must be known to the parish in general. But there is a difference between an employment created by the parties themselves, which they may put an end to whenever they please, and that which exists or is created by law. Now this man was in the former situation. It was in the option of the overseers and parishioners to have such a person in such an employment or not; and they could put an end to the employment altogether, whenever they pleased. It was created by themselves, and depended upon their contract. I cannot therefore call this an office or charge within the meaning of the act of parliament. Both orders confirmed.

Rexv. Ilminster. 1 East,83. Removal from Honiton to Ilminster, confirmed. workhouse, if

The case originally stated' was, That the pauper was appointed governor of found by the

the workhouse in Ilminster, under the annual salary of 201. He served for public annual office, gains a

five years, and regularly received his salary: at the end of that time he was dismissed : at the time of his appointment he was put by the parish officers into possession of certain apartments in the workhouse appointed for that purpose, and which had been occupied by the former governor. Upon the first amended case, these words following were added after the word officers, " (in conjunction with two of the principal people of the town who acted as inspectors of the accounts, and conduct of the overseers.)”—Lord Kenyon, after the case had been argued the first time, intimated a strong opinion against the settlement, considering the appointment of the pauper merely in the nature of a servant to the parish officers, by whom he might have been dis

; missed at any time. In the second amended case it was stated, that the said office of governor “ was a public annual office.” And the Court then said, that by this finding, “ that it was a public annual office,” they had precluded any further discussion.

Rex v. Corfe Mullen. 1 Bar. Adolph. 211, MS. Upon appeal against

Governor of a

sessions to be a

settlement.

Miller was

ber 5th, 1824, and was ordered to

an order of two justices, whereby Joseph Miller and his two children were Ninthly, Of removed from the parish of Sturminster Marshall, in Dorsetshire, to the parish settlement by of Corfe Mullen in the same county, the sessions confirmed the order, subject office. to the opinion of this Court on the following case :-The pauper having ob- 2. What office, &c. tained a settlement by hiring and service in the parish of Corfe Mullen, went

A tithing-man, to reside in the tithing or chapelry of West Holme, a place maintaining its going out of own poor, as shepherd to Mr. Kemp. On the 5th of October 1824, a court leet office, nominated for the hundred of Hasler was held, in which hundred the tithing or chapelry Miller, to serve as of West Holme is situated. At that court, Kemp, the tithing-man for the pre- tithing-man the

following year. ceding year, appeared, and acted in his office of tithing-man. On the same day at the same court, Kemp nominated the pauper as a fit person to serve chosen at a court the office of tithing-man for the tithing or chapelry of West Holme, and he leet holden Octo was appointed by the jury for one year. The entry, from the books of the court leet, appeared as follows:-October 5th, 1824. Tithing-man of West be sworn into Holme. George Kemp appears, and Joseph Miller is chosen into the office office within one for the year ensuing, and he is directed to be sworn in before a magistrate the penalty of within one month, under the penalty of 5l.” But Miller not being present, five pounds. He the steward gave him notice of the appointment as follows :—“Hundred of never was sworn Hasler to wit. At a court leet held this day for the said hundred, you were the office; while chosen tithing-man for the tithing of West Holme, and you are hereby he did so he was required to be swom into your office before a magistrate for the county of er, but lived in Dorset, within one month after the date hereof, under the penalty of 51. part of a house

found for him by Given under my hand and seal in the said court the 5th day of October,

his employer. 1824. E. Castleman, Steward.” When this notice was shewn to the pauper, His successor was he refused to received it, or to pay the usual fee to the person who served it. chosen at a court The pauper was never sworn into office, but executed all its duties. He 1825 : Held, was not a householder either at the time of his appointment, or at any time that he gained a while serving the office; but occupied part of a house, rent free, found for settlement in the him by his master, Mr. Kemp, in West Holme, and resided there while he served, alserving the said office. On the 4th of October 1825, another court leet for though not sworn, the hundred of Hasler was held, when the pauper was present, and acted as there, on his own the tithing-man of West Holme, and paid the essoign pence and lawday account, a public

annual office for silver, as is customary with other persons serving the office. At this court

one whole year, another person was appointed tithing-man for the year ensuing. The entry pursuant to 3 & 4 of this appointment in the books of the court leet was exactly in the same wo & M. c. 11, form as the entry of Miller's in the preceding year.

Gambier aud Moody question whether were heard in support of the order of sessions. They contended that sup- pr not he was posing that the words “ being legally placed,” &c. in the act of 9 & 10 W. legally placed in

. İ1. are not to be incorporated in the statute 3 & 4 W. & M. c. 11, still, ing to 9 & 10 W. under this last act, taken by itself, there must be a legal appointment to the 3, c. 11, did not office which is to confer a settlement; and a person cannot be said to arise, he not havexecute an office, so as thereby to acquire a civil right for himself, unless ficated person. he is fully and completely installed in such office. He is not so until sworn in. In Rex v. Whitechurch, the ourt assumed that the oath of office was necessary to constitute a church warden de jure. _In Foot v. Prowse, Lord King, C. J., compared the case of the aldermen of Truro, to that of “ a constable and other annual officers, who are good officers after the year is out, until another is elected and sworn.” The constable's oath, as given in Burn's Justice, tit. Constable, is to serve for the year, or till another be sworn in. A mandamus lies to swear in a constable. Why should this be, unless that such proceeding is necessary to his full appointment? A further question arises in this case, whether the pauper can at any rate be said to have borne the office for a year, he having been appointed on the 5th of October, and his successor on the 4th of October following. Another objection is, that the pauper did not serve the office on his own account, but as deputy to Kemp, Rex v. All Cannings.Bayley, J. The sessions have not found so, and we cannot infer it. In Rex v. All Cannings, the facts expressly appeared on the case. The pauper here was not of the description of persons liable to serve the office.—Parke, J. That might have been an objection to the appointment, but he has been appointed and served. A similar objection was noticed in Rex v. dll Cannings, but only as tending to shew that the VOL. IV.

Τ Τ

Ninthly, of pauper served as a deputy. Barstow having argued on the other side, settlement by on a subsequent day, Bayley, J., delivered the judgment of the Court. The office.

question in this case was, Whether the pauper obtained a settlement in the

tithing of West Holme, by serving the office of tithing-man for that place. 2.What office, &e.

He was appointed to the office on the 5th October, 1824, and we think we must infer from the special case, that he accepted the office on that day, and executed all its duties until and upon the 4th October, 1825, which, as the law does not regard a fraction of a day, constitutes

one whole

year.” There is do doubt that the pauper acted on his own account, and the objection that he was not compellable to serve the office, is of no weight. The pauper was never sworn into his office; and the only remaining point in the case is, Whether that circumstance was necessary to enable him to gain a settlement? The statute, 3 & 4 W. & M. c. 11, s. 6, upon which this question turns, provides, “ That if any person who shall come to inhabit in any town or parish, shall for himself, and on his own account, execute any public annual oflice or charge in the said town or parish, during one whole year," &c. “ then he shall be adjudged and deemed to have a legal settlement in the same, though no such notice in writing be delivered and published as is hereby before required.” The words of this section, in their ordinary sense, require nothing more than the execution of the office, de facto, during one whole year; there is nothing in the context to induce us to come to a conclusion that the legislature meant to use the words in any other than that sense; and this construction is consistent with the supposed object of the statute, which appears to have been to substitute the notoriety of the execution of the office for the notice in writing required in most other cases, as explained in the judgment of Lord Tenterden, in Rex v. Holy Cross, Westgate. But it is said, that this statute and that of 9 & 10 W. III. c. 11, are in pari materiâ, and are to be construed together; and that the latter statute may be considered as giving a parliamentary exposition of the former: and if so, that no one can be “legally placed” in an office, unless he takes the oath under which it should be executed. We do not, however, think that the latter statute is to be deemed to alter or affect the construction of the former, as the latter relates to a particular class of persons, namely, certificated paupers, alone; and it is impossible to say that the legislature did not mean to superadd, with reference to that class of persons, another circumstance, namely, that of being legally placed in the office, as a condition of their obtaining a settlement. It becomes, therefore, in this view of the case, unnecessary to decide whether the pauper was “legally placed” in the office, according to this latter statute, not having taken the required oath. There can be no question that he executed the office de facto, nor, indeed, can there be any that, for some purposes at least, he executed it de jure. Swearing in may be rendered necessary, either to enable the party to serve the office, or to impose a greater sanction on his discharge of it. We think, in this the latter is the object. A month is given for taking the oath; yet the year commences from the appointment. Can it then be said, that the party is not in office till he is sworn ? In one of the cases which have been cited, the swearing in of a tithing-man at the end of half a year, was considered as taking effect ab initio. It is laid down in an Anonymous case, 1 Ventr. 267, that a churchwarden (and no distinction can be drawn between his case and that of a constable) may execute his office before he is swom, though it is convenient he should be sworn. And it may be observed, that a mandamus to swear such an officer in, is referred to by the Court immediately afterwards in that case; which must, therefore, be issued, not on the ground that the oath is essential to the due execution of the office, but because it is fit and proper, for the interest of the public, that the office should be executed under its sanction. But on the statute 4 & 5 W. & M. c. 11, alone, we think it clear, that the pauper gained a settlement in West Holme, by the execution of the office de facto. Order of sessions quashed.

case,

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