built fall which cottages are let, along with the said capital messuage and the farm thereunto belonging to the said Thomas Showler); and of another tenement part of the said capital messuage; and all of them inhabited by families; and that one of the cottages is inhabited by the said John Atter, who is a daylabourer, and his family; and another of the said cottages is inhabited by another day-labourer and his family; and the other of the said cottages is inhabited by a shepherd and his family; and the tenement, part of the said capital messuage, is inhabited by a poor widow and her five children: All which occupiers of the said cottages, and of the said tenement part of the said capital messuage, are under-tenants to the said Thomas Showler.— It was moved to quash these orders, for that the facts stated shew that this place is neither a township nor a village. And the Court were clearly and unanimously of opinion, that both these orders ought to be discharged.-Ld. Mansfield C. J. observed, that by this method a place might be made into a village, which in fact was not so; and the inhabitants of it might by this contrivance withdraw themselves from contributing towards the support of the poor of their parish.

In Rex v. Justices of Peterborough, H. 23 Geo. 3. Cald. 238. 1 Bott. 50. 1 Nol. P. L. 15. On shewing cause against a rule which had been obtained for a mandamus, to require the appointment of overseers of the poor, for the Minster in Peterborough, it appeared that it was an extra-parochial place, containing upwards of sixty acres of ground, upon which were twenty-five dwelling-houses at least, besides poor houses, of the annual value of 401. at least; that these houses were inhabited, except in the instance of the bishop and three of the prebendal houses, altogether by laymen or by strangers to the cathedral, and mostly persons of fortune, who kept servants that acquired settlements therein. That the poor had been supported from some fund belonging to the dean and chapter; that there never was any constable or other civil officer appointed for the said precinct, or any overseer of the poor, or churchwarden; nor had the inhabitants ever contributed to the relief of the poor within the precinct, or been called upon so to do. - Ld. Mansfield. This space comprehends no ore than the site of the cathedral and the area round it, and consequently was in former times within sanctuary, and, as such, sacred and inviolable as the church itself. In modern times, to be sure, there is no such thing as sanctuary, but these places have throughout all ages without interruption enjoyed those immunities, as Westminster Abbey now does, and other places of the like nature. The ancient inns of court, though not exactly upon this principle, have also at all times been privileged; and a similar exemption was not questioned in a late case, Rex v. Gardner, (post.) with respect to that part of the court and garden ground of Catherine Hall in the university of Cambridge, which lay within the old and extra-parochial part of that foundation. Would you say that Christchurch in Oxford is a vill? I am not satisfied that this place is a vill, and the party applying do not even call it so.- Buller J. As the party applying for a mandamus does not state, as a fact, that this place was ever reputed a vill, (which, where the facts of the case do not upon some clear principle of law shew the place to be of that denomination, the

Vill and hamlet

terms.

court has holden to be indispensably necessary for the purpose of founding an application for a mandamus,) this case falls within the case cited. Rule discharged.

An order appointing overseers of the "hamlet" of B. in the are synonymous parish of C. is good; for it shall be intended, that the place was a vill, unless it be stated to be otherwise; for "vill" and "hamlet" are in common acceptation used as synonymous terms. v. Morris, 4 T. R. 550. 1 Bott. 6. 65. 1 Nol. P. L.11.

43 El. c. 2. § 1.

Rex

In Rex v. Ranton Abbey, 2 T. R. 207, 1 Bott. 56. which was a case sent up by the sessions, for the opinion of the Court of K. B., there were only three houses and no constable or tithingman, nor it seems any church or chapel, and this passed as a vill; but, then it was expressly found by the sessions to be a vill by reputation, which precluded all question before the Court above, whether it were so or not: So, that this case proves not that three houses alone make a vill, but only, that if a place be found by the sessions to be a vill by reputation, it may be taken to be such, though there be extant but three houses, and no other cha, racterising circumstances.

3. What number may be appointed.

Four, three, or two.] The number of overseers for any one parish, exclusively of the churchwardens, must be not more than four, nor fewer than two, except where it is subdivided into townships, in which case each township may have four, three, or two overseers, or where a greater latitude is given by some special statute; and no usage for a greater or smaller number than the stat. of the 43 Eliz. prescribes, will avail against the strong and express terms of its enactment. Nay, if more than four be appointed, the instrument is void, not only as to the excess beyond four, but, as to every one of the persons appointed. Rex v. Loxdale, 1 Burr. 446. 1 Bott. 21. 1 Nol. P. L. 45. ris, 4 T. R. 550. 1 Bott. 6. 1 Nol, P. L. 45. 2 Sess. Ca. 148. 1 Bott. 19. Rex v. Clifton, 2 East. 168. 1 Bott. 24. 1 Nol. P. L. 45. Rex v. All Saints, Derby, 13 East. 143. Vol. I. page 113. title Apprentices. 1 Nol. P. L. 45. Rev v. Forrest, 3 T. R.38. 1 Bott. 17. Rex v. Wymondham, 6 T. R2 52.

Rex v. MorRex v. Harman,

The statute requires, that there shall be two overseers at least distinct from the churchwardens, and that the aggregate body should consist of at least more than two persons. 13 East. 142, 1 Nol. P. L. 45.

Quere, whether there must be more than one churchwarden? See Rex v. All Saints, Derby, supra.

4. Who may be appointed.

Substantial householders there.] The overseers for any district, beside the churchwardens for the time being, who are always overseers by virtue of their office without any specific appointment to be overseers, are to be substantial householders. Reg. v. Searle, 1 Bott. 3.

And the court of K. B. will quash the appointment as to any appointees, who are not so. Rex v. Weobly in Herefordshire,

2 Str. 1261. 1 Bott. 4. 1 Nol. P. L. 49.

19

But the word "substantial" is so far relative, that where there were no persons more wealthy, two day-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 place where there are a great many opulent farmers." Rex v. Stubbs, 2 T. R. 406. 1 Bott. 5.

R. v. Chardstock,

The phrase "substantial householders" has no reference to sex: wherefore although men are more 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 note (b).

requires it. Rex v. Stubbs, 2 T. R. 395. 1 Bott. 10.

16 Vin. Abr.

415. 1 Bott. 11.

Occasional re

The appointment of persons resident only for a part of the year is discouraged by the Courts: but such persons seem eligible sidents. in cases of necessity. Rex v. Moor, Carth. 161. 1 Bott. 9. 1 Nol. P. L. 47.

The justices are to determine where this necessity exists, being "invested with a discretionary power of approbation." Rex v. Stubbs, 2 T. R. 395. 1 Bott. 11. Rex v. Gayer, 1 Burr.245. 1 Bott. 9. 1 Nol. P.L. 47.

But they are not at liberty in any case to make a nomination from the following classes;

1. Churchwardens during their continuance in office. Rex v. ChurchAll Saints, Derby, 13 East. 143.

wardens.

2. Clergymen, though without cure of souls. Anon. 1 Bott. 9. Clergymen. Gibs. Codex. 215.

3. Dissenting ministers, taking the oaths and subscribing the Dissenting declaration and articles pointed out by 1 W. & M. c. 18. although ministers. they be also engaged in a trade. I W. & M. c. 18. § 1. Kenward v. Knowles, Will. 463. 1 Gibs. Codex. 215. 4. Peers by reason of their dignity. Ibid.

Peers.

5. Members of parliament, by reason of their privilege. Ibid. Members of 6. Aldermen of London. Rex v. Abdy, Cro. Car. 585. parliament. 1 Bott. 8.

Aldermen of

7. Justices of the peace, as having the control of overseers' London. accounts. Rex v. Gayer, 2 Burr. 245. 1 Bott. 9. and per Ld. Justices of the Kenyon C. J. in Rex v. Pateman, 2 T.R. 779.

peace.

8. Practising barristers and attornies, though there be a special Practising barcustom for every parishioner to serve, according to the situation risters and at. of his house. Rex v. Prouse, Cro. Car. 389. I Bott. 7. 1 Nol. tornies. P. L. 47. Et vide 8 T. R. 379. note (a).

9. 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. Stat. 32 H. 8. c. 40. See 1 Bott. 13.

10. Freemen of the company and corporation of surgeons esta- Freemen of the blished by 18 Geo. 2. c. 15. who have been examined and ap- corporation of proved pursuant to the rules of the company, so long as they ex- surgeons in ercise surgery, and no longer. 18 Geo. 2. c. 15. § 10.

London.

11. Apothecaries using their art in, or within seven miles of Apothecaries. London, being free of the Apothecaries' company (recognised by 6 & 7 W. 3. c. 4.) and having been examined and approved, and all persons using the said art in any other part of England, Wales or Berwick-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. 3. c. 4. § 2. 3.

Non-commis

sioned officers, &c. of militia.

Captains in the

guards.

Yeomen in ordinary.

Officers in the

army.

Persons appre

12. Serjeants, corporals, drummers and privates of militia, from the time of their enrolment until they be regularly discharged: but there is no exemption enacted for the officers of that force. 42 Geo. 3. c. 90. 174.

13. Captains in the guards. See 1 Bott. 9. note (e).

14. Yeomen in ordinary of the king's body guard. Ibid. Rex v. Great Marlow, 2 East. 245.

15. Officers of the army, navy or marines, whether on whole or half-pay, from their liability to be sent on service. See Rex v. Gayer, 1 Bott. 9. Sed qu. as to those on full pay. See Rex v. Warner, 8 T. R. 375. 1 Bott. 11. as to incompatibility of

offices.

16. Persons apprehending and prosecuting to conviction any one hending felons. guilty of privately stealing by night or day to the value of five shillings in a shop, warehouse, coach-house or stable, or any accessaries before the fact to any of those offences, are entitled to a certificate not transferable, whereby every such person shall be exempt from all parish and ward offices within the parish or ward wherein the felony shall have been committed. Stats. 10 & 11 W. 3. c. 23. § 2. and 58 G. 3. c. 70. § 2. See Vol. II. page 374.

Officers of the

customs, tidewaiters, revenue officers.

59 G. 3. c. 12. § 6.

Power to appoint nonresident over

seers.

And lastly, 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 offices 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. 1 Bott. 8. Cawthorne v. Campbell, 1 Anst. 216. See also Rex v. Routledge, 2 Doug. 531. But these exemptions granted by the prerogative are available only, where there are a sufficient number of persons to serve the office, without recourse to the individuals so exempted. 8 T. R. 379. note (a). Rex v. T. Clarke, 1 T. R. 686. Dissenters scrupling to take the office, in regard of oaths or other matters required by law in respect of such office, though not absolutely exempted, are permitted to execute it by deputy approved by such persons, and in such manner as the principal should have been approved. 1 W. & M. sess. 1. c. 18. § 7.

Subject to these exemptions, the magistrates may appoint such householders as they think meet. And the appointment is no longer limited of necessity to householders living in the parish or township; for

By 59 Geo. 3. c. 12. § 6. "it shall be lawful for his majesty's justices of the peace, in their respective special sessions for the appointment 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 be 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 an 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 59 G. 5. c. 12. parish or place in which he shall not be a householder, unless he

shall have consented to such appointment."

§7. Enacts," that it shall be lawful for the inhabitants of any Assistant overparish in vestry assembled, to nominate and elect any discreet seer may be apperson or persons to be assistant overseer or overseers of the pointed. poor of such parish, and to determine and specify the duties to be by* or them executed and performed, and to fix such * Sic. 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, 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 Security may be inhabitants of any parish, upon the nomination and election by taken. 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 surety or sureties, and in such penalty as they shall think fit; and every such bond shall be made to the churchwardens 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 churchwardens 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 herein-after provided."

§ 35. The same provision is extended to all townships, vills, and places having separate overseers, and maintaining their poor separately.

5. At what time to be nominated, and by whom.

To be nominated early in Easter week.] But by the 54 Geo. 3. 54 G. 3. c. 91. c. 91. the appointment of overseers of the poor, so directed by the said act of Queen Elizabeth shall, in every year be made on the 25th day of March, or within 14 days next after the said 25th day of March, in all and every the same manner as directed by the said act to be made in Easter week.

Notwithstanding the inference afforded by 43 Eliz. c. 2. § 2. which requires the officers to meet once in a month on a Sunday, it is doubted whether an appointment made on a Sunday can, under any circumstances, be valid: at all events, unless it be shewn to have been made fairly, the fact of its having been made on a

43 El. c. 2. § 2. Whether an appointment on a Sunday be valid.