an order of two justices, whereby Joseph Miller and his two children were removed from the parish of Sturminster Marshall, in Dorsetshire, to the parish of Corfe Mullen in the same county, the sessions confirmed the order, subject to the opinion of this Court on the following case :-The pauper having obtained a settlement by hiring and service in the parish of Corfe Mullen, went to reside in the tithing or chapelry of West Holme, a place maintaining its own poor, as shepherd to Mr. Kemp. On the 5th of October 1824, a court leet for the hundred of Hasler was held, in which hundred the tithing or chapelry of West Holme is situated. At that court, Kemp, the tithing-man for the preceding 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 the office of tithing-man for the tithing or chapelry of West Holme, and he 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 Holme. George Kemp appears, and Joseph Miller is chosen into the office for the year ensuing, and he is directed to be sworn in before a magistrate within one month, under the penalty of 51." But Miller not being present, the steward gave him notice of the appointment as follows:-"Hundred of Hasler to wit. At a court leet held this day for the said hundred, you were chosen tithing-man for the tithing of West Holme, and you are hereby required to be sworn into your office before a magistrate for the county of Dorset, within one month after the date hereof, under the penalty of 51. Given under my hand and seal in the said court the 5th day of October, 1824. E. Castleman, Steward." When this notice was shewn to the pauper, he refused to received it, or to pay the usual fee to the person who served it. The pauper was never sworn into office, but executed all its duties. He was not a householder either at the time of his appointment, or at any time while serving the office; but occupied part of a house, rent free, found for him by his master, Mr. Kemp, in West Holme, and resided there while serving the said office. On the 4th of October 1825, another court leet for the hundred of Hasler was held, when the pauper was present, and acted as the tithing-man of West Holme, and paid the essoign pence and lawday silver, as is customary with other persons serving the office. At this court another person was appointed tithing-man for the year ensuing. The entry of this appointment in the books of the court leet was exactly in the same form as the entry of Miller's in the preceding year. Gambier and Moody were heard in support of the order of sessions. They contended that supposing that the words "being legally placed," &c. in the act of 9 & 10 W. III. are not to be incorporated in the statute 3 & 4 W. & M. c. 11, still, under this last act, taken by itself, there must be a legal appointment to the office which is to confer a settlement; and a person cannot be said to execute an office, so as thereby to acquire a civil right for himself, unless he is fully and completely installed in such office. He is not so until sworn in. In Rex v. Whitechurch, the Court assumed that the oath of office was necessary to constitute a churchwarden 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. All Cannings, but only as tending to shew that the VOL. IV. TT Ninthly, Of settlement by office. 2. What office, &e. pauper served as a deputy. Barstow having argued on the other side, on a subsequent day, Bayley, J., delivered the judgment of the Court. The 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. 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 office 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 case, 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 sworn, 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. 3. Of the Time of Serving. (a) Ninthly, Of settlement by office. serving. Rex v. Fittleworth, Burr. S. C. 238; 2 Bott, 252. A certificate-man was elected and sworn a tithing-man. He executed the office a little more 3. Of the time of than five months, and then became chargeable, and was removed.-Lee, C. J. The question is, Whether a person coming into a parish, under a certificate, who is made a tithing-man, and exercises his office in part only of the parish, and for half a-year only, gains a settlement? To this three objections have been made. 1st. That the order of removal is bad, because, at the time when he was removed, he was in the execution of a public office, from whence they had no power to remove him, and it has been compared to the case of a servant, whom the justices cannot remove: but to this they have not cited any authority; and if a servant should become chargeable to a parish, I think he may be removed. This act of the 8 & 9 W. III. describes the time when a certificate-man shall be removed, that is, when he becomes chargeable, without any limitation: so that the justices by this act had certainly power to remove the pauper. The second objection is, that this office did not extend to the whole parish: but it is stated in the order, that he exercised it in the parish: which is complying with the very words of the act of parliament, which says, that he shall execute it in such, and not through such parish. As to the third objection, which is the chief, I do not know that any case has been determined as to that purpose. That of Garsington was never determined, and, besides, differs essentially from the present case, as Sir John Strange has shown. The 3 & 4 W. & M. differs in words from this act, yet it would be odd to place him on a different footing from other paupers, who are to gain settlements by the exercises of annual offices, and that is for and during a year: which must be the construction of this act, otherwise the bare placing a certificate-man in office would gain him a settlement immediately. As to the case of Mr. Lloyd about the taking of a tenement, there are no words about his living a year, and it is the credit he gets by the taking that fixes him in the parish; but, in the present case, he gains it by the execution of the office; and though the words of the 3 & 4 W. & M. have no relation by words to this act, yet, I should think, it ought to have the same construction.-Wright and Den nison, Js., of the same opinion. Cold Ashton v. Woodchester, Burr. S. C. 444; 2 Bott, 253. There was a custom to serve the office of tithing-man, for half a year only at a time.By Lord Mansfield, C. J. This cannot be an annual office to gain a settlement. In this case the pauper had served the office of tithing-man in Cold Ashton for half a year, and twenty days after for another half year. Rex v. Bow, 8 T. R. 445. The pauper, at a Michaelmas court-leet, holden by adjournment for Chumleigh, November 16, 1792, was appointed to the office of ale-taster of the borough, and duly sworn according to the custom of the manor, to execute the office for one year thence next ensuing, or until he should be lawfully discharged. He entered upon the office, and served till November 1, 1793, when, at a similar court holden by adjournment, a new officer was appointed. No business is transacted at the original court; and there is only one original court in the year, and it is held within the month after Michaelmas at the convenience of the steward.Lord Kenyon, C. J. This is an attempt to carry the point further than in Rex v. Newstead. This is not an appointment for a year, from one movable feast to another, but from one court till it should please the steward to hold another. The statute is express, and Rex v. Fittleworth shews that it has been construed according to its plain meaning. Rex v. Holy Cross, Westgate, 4 B. § A. 619. Order of removal of Edward Best, from Holy Cross, Westgate, in Canterbury, to Holy Cross, Westgate, in Kent, confirmed. Case: The city of Canterbury is divided into six wards, and two of the twelve aldermen of the city are appointed for each ward; a court-leet is held annually by the two aldermen, at which (a) Sce division of the subject, ante, 636. Serving office for half a year at a time only, gains no settlement. An appointment till the steward should please to hold another, from one court, confers no settlement. A pauper was executed the regularly discharged from of Ninthly, Of settlement by office. 3. Of the time of serving. fice by two magistrates, and another person appointed; but he acquiesced in this, and did not, in fact, execute that this did not confer a settle ment. a constable and borsholder for the ward are chosen. In October, 1817, and for some time previously, the pauper resided and carried on business in St. Mary Northgate, Canterbury, which is in the ward of Northgate, that ward containing the parishes of St. Mary Northgate, and St. Alphage. On the 21st of October, 1817, the annual court-leet was held for the ward of Northgate, at which the pauper was duly chosen borsholder of the ward for the year ensuing, and upon being sent for, he attended at the court, and was regularly sworn in; the staff of office was delivered to him by the former borsholder. A day or two afterwards, a dispute arose between some persons, and he was desired to preserve the peace; in consequence of which he the office: Held, fetched his staff, and put an end to the dispute, but he did not do any other act as borsholder than that. After he had been sworn in a few days, he was desired to attend the monthly meeting of the magistrates, and he attended with his staff; he was called into the council chamber, and informed by the then mayor, that as it was a question as to what parish he belonged, he must leave his staff there for the present, and that he should know further about it in a few weeks; he left his staff accordingly, and not having heard any thing more, he did not act, nor was he called upon afterwards to act as borsholder. The steward of the leet notified the pauper to the magistrates, as the sworn borsholder for the ward of Northgate, and he appeared so in the list of peace officers entered in their record book. The succeeding courtleet, for the ward of Northgate, was holden on the 20th October, 1818, and the pauper resided during the whole of the year in St. Mary Northgate. The duties that were required to be performed by the borsholder of the ward of Northgate, during the remainder of the year, were performed by another person, who resided part of that time within the ward, and part in the borough of Staplegate, adjoining to the ward, but not within the jurisdiction of the city of Canterbury; but that other person was not chosen or sworn in, as borsholder of the ward, nor did he attend the sessions in that character, nor was his name enrolled in the list of peace-officers.-Abbott, C. J. At the time of passing 3 & 4 W. & M. c. 6, it was possible for any individual to gain a settlement by a residence for forty days in the parish. The object of that act was, to add to this the necessity of delivering to the parish officers a notice in writing, which they were required to read in the church, and to register, in order that there might be public notice to all the inhabitants, that they might, in case the individual was likely to become chargeable, procure his removal from the parish. But that act contemplated two cases, in which no notice in writing was to be given, viz. the serving an annual office, and the payment of parish rates. Its object was, obviously, notoriety. Now, this is only attained by the actual execution of the office, and not by the appointment to it. Although, therefore, it does appear that the pauper, in this case, was irregularly discharged from his office, and another person irregularly appointed to succeed him, yet, as he did forbear to do the duties of it, I think he cannot within the statute be considered as having executed a public annual office in the parish, and that he did not thereby gain a settlement. Order confirmed. 4. Residence. [See also Rex v. Yalding, (ante, 638,) one of the points in which case was that the pauper had not served for a year, which was held a good objection.] 4. Residence. (a) The office of town crier and bellman is an annual office, within the 3 W. & M. c. 11, s. 6, by which a settlement may be gained. And if the town comprises several parishes, the settlement will be gained in that parish in which such officer has last resided forty days, while serving the office. It was before undecided, (see 2 N. P. L. 629), whether a year's residence and a year's service, in the same parish, were not essential in such case. But the Court said, that as the notice in writing of a coming to settle required to be delivered, according to the third section of the above act, and from the (a) See division of the subject, ante, 636. Ninthly, Of settlement by office. delivery of which the forty days are to be calculated, is dispensed with in the case of an annual office by the sixth section, a residence of forty days, without notice, by analogy to the cases of settlement by hiring and service, renting a tenement, &c. is sufficient. So that neither a year's residence, nor a year's 4. Of residence. service in the parish where the settlement is claimed, is essential according to the words of the act Rex v. St. Nicholas, Hereford, E. T. 1830, (Steer's Par. L. 595.) (Tenthly)—Of Settlement by being Charged with, and Paying Parish Taxes, or Levies.(a) For some time this mode of acquiring a settlement was seldom relied on, for in most instances where the tenement was of the yearly value of 10., the occupier could obtain a settlement on other grounds. But at that period it does not appear to have been the intention of the legislature to abrogate entirely this head of settlement. This was the state of the law from 1795, when the 35 Geo. III. c. 101, was passed, down to June 22nd, 1819, the date of the 59 Geo. III. c. 50, by which latter statute the expediency of resorting to this mode of establishing a settlement was revived, as it required that in order to gain a settlement by renting a tenement, such tenement must be bona fide hired for one whole year at 107. a year, and the rent for a year actually paid. But although the means of acquiring that kind of settlement were thus narrowed, the statute did not affect the right of acquiring a settlement by payment of parish taxes, &c. as it previously existed, and consequently, if a person paid parish rates, &c. in respect of a tenement of 10l. yearly value, whether he rented such tenement at that sum or not, or hired it for a year or not, or paid rent for a year or not, it was immaterial, for he was still entitled to his settlement, as being charged with and paying public taxes or levies of the parish. Many, therefore, were driven to rely upon this ground of settlement, who, but for the passing of this act, might have rested their claim upon having taken and held or occupied a tenement for forty days, of 101. annual value. Such was the state of the law until the 22nd June, 1825, when the 6 Geo. IV. c. 57, virtually abolished the use of claiming a settlement by payment of rates, &c.; for in order to acquire a settlement by paying rates, that act requires that all the conditions must have been observed and fulfilled which it imposes upon settlements by renting a tenement; the party, therefore, need not go further, and prove that he has paid rates, when his settlement is already established by proof of all the preliminary conditions, which are in themselves sufficient to entitle him to a settlement by renting a tenement; and it can be of no importance to him whether his settlement is of the one class or the other. See Rex v. Ringstead, 7 B. C. 607, post, 653. It is proper to remark, that before the passing of the 35 Geo. III. c. 101, the annual value of the tenement, in respect of which the taxes or levies were charged and paid, was immaterial; and that it was this statute which first required that the tenement for which the person was rated, should be of the value of 10l. a year at the least. [See Rex v. St. Pancras, post, 651.] This head of settlement may be considered under the following titles. Tenthly, Of settlement by payment of rates. (a) See division of the subject, ante, 273. |