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duly assembled for that purpose, upon notice thereof first given. The defendant rejoined, that the select vestry in the replication mentioned was not a meeting of the parishioners of the parish in vestry or other parish meeting assembled; to which the plaintiffs demurred generally, and the defendant joined in demurrer.- Manning, in supportof the demurrer. The rejoinder of the defendant to the replication of the plaintiffs to the third plea of the defendant, is no answer to that replication. This depends upon the construction of the statutes 9 Geo. I. c. 7, s. 4, and 59 Geo. III. c. 12. By the former statute, the church wardens and overseers of the poor in any parish, town, township, or place, with the consent of the major part of the parishioners or inhabitants of the said parish, town, township, or place, in vestry or other parish or public meeting for that purpose assembled, or so many of them as shall be so assembled, upon usual notice thereof first given, are empowered to contract with any person or persons for the lodging, keeping, maintaining, and employing, any or all such poor in their respective parishes, townships, or places, as shall desire to receive relief or collection from the same parish; and the question is, Whether, by the latter statute, the controlling power, formerly vested in the body of the parishioners at large, is conferred upon the select vestry? Now that statute authorizes the inhabitants of any parish, in vestry assembled, to establish a select vestry for the care and management of the concerns of the poor of the parish, by the nomination and election of a certain number of inhabitant householders or occupiers, who, with the minister of the parish, and the church wardens and overseers for the time being, are lo constitute a select vestry for the care and management of the poor. The effect of this enactment is, that all powers relating to the care and management of the poor originally vested in the body at large, are now, where a select vestry is appointed, transferred from the general body to the select vestry, as representing the parishioners at large.--Chilton, contra. The statute 9 Geo. I. c. 7, s. 4, made that lawful, which before that time the church wardens and overseers had no authority to do; but, at the same time, careful of the interests of the poor, the legislature vested a controlling power in the parishioners Targe. The question then is, Whether, by the late statute, all powers formerly possessed by the parishioners generally, are vested in the select vestry? Arguing from the letter of the enactment, no such conclusion can be drawn, for there is no allusion to the previous provisions, nor are there any general words by which that authority is delegated, nor does the spirit of the statute, or the reason of the thing, support such a construction. Where the care and management of the poor is to be subject to the control of a large and tumultuous body, it may be prudent and politic to delegate, with the consent of the majority of that body, the direction of the poor to a single individual; but where that power is vested in a few, the necessity ceases, and the select vestry may discharge that duty personally, which the parishioners generally could only do efleetually through the instrumentality of another.—Hullock, B. The question in this case is, Whether the select vestry is or is not substituted in lieu of the larger and more tumultuous body of the parishioners generally? It is admitted upon the pleadings, that the select vestry is duly constituted in point of law, and that this contract relates to the care and management of the concerns of the poor. Wherever a select vestry is appointed, the right of the common law vestry has always in practice been considered as de facto superseded; and the language of this act of parliament appears to me to confer upon that body the authority relative to the care and management of the poor, which the parishioners at large were before in the habit of exercising. I think that the power of the select vestry is co-extensive with that which, before this act of Parliament, was in the parishioners generally. It is optional with the parishioners, whether they will or will not proceed upon the old law, or upon the provisions of this statute, by the appointment of a select vestry; but if they pursue the latter course, they delegate their authority to that body. With the policy of this provision we have nothing to do; but any informality or objection which may arise upon the contract itself, may be corrected by the magistrates by
whom, to be valid, it must be allowed. The allowance by the magistrates
P. 214.4"Whereas divers local acts of parliament have lately passed con- By 56 Geo. 3, c. taining enactments relative to the maintenance and regulation of the poor, 129, certain varying the general law with respect to particular districts, parishes, town- local poor acts, ships or hamlets; and it is expedient that some of such enactments should passed since the be repealed; Be it therefore enacted, That all enactments and provisions,
of the reign of contained in any act or acts of parliament since the commencement of Geo. 1, as to com. the reign of his Majesty King George the First, whereby any poor person pelling poor peror persons, other than such as shall actually apply for and receive parochial houses of indusrelief, or are compelled or made compellable to go or remain in any house of try, and hiring industry or workhouse; or whereby any poor person or persons may be detained them out &c.,
. or kept in any house of ind stry or workhouse, at the discretion of the governors or directors thereof, or of the church wardens or overseers of the poor of any district, parish, township or hamlet, after such persons are capable of maintaining themselves; or whereby any poor person or persons may be compelled to remain in any house of industry or workhouse, until the charges and expences to which any district, parish, township or hamlet, may have been put or become liable or chargeable for the maintenance or support of such poor person or persons, or any of his or her family, shall be repaid or reimbursed or satisfied by the earnings or labour of such poor person or persons; or whereby any poor child or children whomsoever is or are rendered liable to be apprenticed to any governor, director, or master of any such house of industry or workhouse; or whereby any parish, township or hamlet, at a greater distance than ten miles from such house of industry or workhouse, shall hereafter be empowered or authorized to become contributors to, or to take the benefit of such house of industry or workhouse; or whereby any directors, governors, guardians or masters of any such house of industry or workhouse, are authorized or empowered to hire out any poor person or persons of full age, or to contract or agree with any person or persons to have and take the profit of the labour of such poor person or persons; shall be wholly and severally, and the same are hereby wholly and severally, repealed.”
Sect. 2. “ That from and after the passing of this act, it shall not be lawful for any governor, director, guardian or master, of any house of industry or workhouse, on any pretence, to chain or confine by chains or manacles, any poor person of sane mind.”
P. 234.—In a case of immediate and urgent necessity, an overseer must find immediate relief, or may be indicted; but in ordinary cases he is not indictable unless there has been a justices' order to afford relief. Rex v. Meredith, and Rex v. Booth, Russ v. Ry, Crown Cases, 46, 48, where see forms of indictment.
On the other hand it is said, that an indictment lies against an overseer for relieving a pauper, when there was no necessity. Tawney's case, M.S. 16 Vin. Ab. 415.
P. 273.—See further Walsh v. Tissell, 6 Bingh. 163; Hill v. Eastoff, 6 Bingh. 176; Rex v. Londonthorpe, and Rex v. Otley, as to freehold.
P. 527, 539.—But see in Rex v. The Inhabitants of Otley, Suffolk, 1 A pauper rented Bar. F. Adol. 161; where a pauper, upon appeal against an order of two jus- tage and garden ices, whereby Samuel Stammers and his four children were removed from the at the rent of 301. parish of St. Mary, Lambeth, in the county of Surrey, to the parish of Otley, per apnum for in the county of Suffolk, the sessions confirmed the order, subject to the opinion during that time of this Court on the following case :-Samuel Stammers, the pauper, rented held and occuof James Bedwell, of Ipswich, carpenter, in the appellant parish, a windmill pied the same, called a smock mill, a brick-built cottage, and a small garden, at the rent paid that rent,
rates for the re.
The cottage and
mill, were toge
wood-work was not inserted in the brick
of the mill touched the
part of the foundation :
and was rated to of 30l. per annum, during the space of six years, and three quarters of and paid the
another year, ending Midsummer, 1827; and during the whole of that time lief of the poor. held, occupied, and actually paid for the same the said sum of 301. per
annum, and was rated to and paid several rates for the relief of the poor of garden, with the
the parish of Otley in respect of the cottage and garden, and also of the of more than the mill, at the estimated value of 61. per annum. The cottage and garden, annual value of
with the mill, are together more than the annual value of 10l., but the cotsive of the mill, tage and garden, exclusively of the mill, are not of that annual value. The they were pot of mill is of a circular form, and of wood having a foundation of brick, twelve value. The mill inches high from the ground, in which the wood-work is not inserted, but was of wood, and rests upon it by its own weight alone. No part of the machinery of the mill had a foundation touches the ground or any part of the foundation; the whole is confined to
the wooden part of it, which has two floors; but on the ground within the
brick foundation, planks are laid down so as to form a flooring, and the mill foundation, but
would work as well upon the ground as upon the brick foundation. Some rested upon it by time after the erection of the mill, the tenant placed mortar on the inside its own weight
and outside of the cill or bottom part of the wood-work of the mill, for the alone. No part of the machinery purpose of excluding the weather, mortar so placed not acting as a cement
between wood and brick-work; and he also fixed posts in the ground, which ground or any
sloping towards the mill, supported steps by which the mill was entered. The question for the opinion of the Court was, Whether the mill in question
was a tenement by the renting of which the pauper could acquire a settleHeld, that the windmill, not ment in Otley ?-Bayley, J. The question is, Whether the mill be parcel being affixed to of a tenement ? To be so, it must be part and parcel of the freehold. Now, the freehold, nor it is not parcel of the freehold unless it be affixed to it, or to something pre
viously connected with it. Here the mill was not affixed to the land, but it, was not parcel merely rested on a foundation of brick. The sessions have found that if it of a tenement, and, conse
had stood upon the ground, it would have worked as well. If it had, the quently, that the only difference would have been, that it probably would have rotted. This is pauper gained no
analogous to the case of a barn set upon pillars; and that is nothing more than a chattel. The windmill in this case would clearly have gone to the execuur, and
not to the heir.—Littledale, J. This is precisely within the case of Rez v. The Inhabitants of Londonthorpe. It is attempted to be distinguished, because the tenant in that case bad permission from the landlord to put up the mill, and it was treated by both as a chattel ; but that circumstance can make no difference. Suppose there were two mills in two distinct townships and one of the townships treated the mill as a tenement, and the other as a mere chattel. That would make no difference. It must depend upon the nature of the building, and not upon the mode of treating it, whether it be a tenement or not.-Parke, J. I am of the same opinion. To constitute a tenement, it is necessary that the structure should be affixed to the soil, or to something annexed to the soil. Here the windmill rested merely upon the brick foundation, without being annexed to it by cement. Order of
sessions quashed. By the 6 Geo. 4, P. 579.—This case of Rex v. Ditcheat, 9 B. f. C. 176, was confirmed
in Rex v. the Inhabitants of Great Bentley, 10 B. & C. 520. Upon repealed the 59 Geo. 3, c. 50, it appeal against an order of two justices, whereby J. Peeling, his wife and is enacted, that
children, were removed from Little Clacton to Great Bentley, both in the acquire a settle- county of Essex, the sessions confirmed the order, subject to the opinion of ment by reason courtof K.B. on the following case:-J.Peeling, the pauper, hired a tenement, of settling upon consisting of a separate and distinct dwelling-house, and a pasture field of unless it shall two acres, in the respondent parish of Little Clacton, the hiring to commence consist of a
on December 25th, 1826. He engaged to pay for this tenement the rent of
131. 10s. a year, for the term of two years; but in the latter part of March, ing-house or or the beginning of April, 1827, the pauper sold the grass in the field, from building, or of
that time till New Michaelmas, to John Townsend, for ten guineas, to be land, or of both, bona fide rented mowed or fed by him, as he pleased, and during that time he discontinued to by such person turn his donkey and cow into the field as he had before done, as he did not at the sum of lol. consider that he could feed the grass after he had sold it to Tounsend; and a least, for the having a quantity of clover, which he wished to stack in the field, he asked term of one whole year; nor
Townsend's leave to stack it there; and having obtained that leave, abated
c. 57, which
no person shall
separate and distinct dwell.
per totam cu.
that statute a pauper who
andland at a
one shilling from a claim he had upon Townsend, for labour which he had unless such performed for him, and which Townsend accepted as an acknowledgment ing, er land, for the damage done to the grass by the stack. The pauper sold the grass to shall be occuTownsend in the same way in the second year, though with some variation pied under such in the price. The court of quarter sessions held, that during the operation and the rent for of the pauper's agreements with Townsend he did not occupy the field under the same to the his yearly hiring, in the manner required by the 6 Geo. IV. c. 57, and, amount of 10l. therefore, that he had not gained a settlement by the hiring of this tenement. the term of one - Knox and Brodrick argued in support of the order of sessions.—Mirehouse, whole year at the
least, &c. : Held, contra.-Lord Tenderden, C. J. The question in this case turned on the tenement act, 6 Geo. IV. c. 57. Upon consideration we are all of opinion, riam, that under that all that was required to be done by that act has been done in this case, and, consequently, that the pauper gained a settlement by renting the tene- rented for a year ment in question. That statute enacts, that “no person shall acquire a a dwelling house settlement in any parish or township by, or by reason of settling upon, rent
rent exceeding ing, or paying parochial rates for any tenement, not being his or her own 101. per annum, property, unless such tenements shall consist of a separate and distinct which was actu. dwelling-house or building, or of land, or of both, bona fide rented by such per- who underlet the son in such parish or township, at and for the sum of 101. a year, at the least, land, gained a for the term of one whole year.” Here the tenement consisted of a separate and distinct dwelling-house and land: it was bonâ fide rented by the pauper in the parish, and at and for a rent exceeding 101. per annum for one whole year. But then the statute continues, “nor unless such house or building, or land, shall be occupied under such yearly hiring, and the rent for the same to the amount of 101. actually paid for the term of one whole year at the least.” The rent for the term of one whole year has been actually paid. The only question is, Whether there was an occupation of the whole of the premises hired under the yearly hiring? It was objected, that the pauper did not occupy the whole of the premises hired under the yearly hiring ; that he let off the land, and that this clause of the act of parliament, therefore, was not satisfied. There is a difference between the language of the statute 6 Geo. IV. c. 57, s 2, and that of the 59 Geo. III. c. 50. The lastmentioned statute required that the house should be held, and the land occupied, by the person hiring the same; but those words, by the person hiring the same, are omitted in the 6 Geo. IV. c. 57. The legislature, when they passed that statute, must have had in their minds the very act (59 Geo. 111. c. 50,) which they were repealing. We cannot, therefore, but consider that those words were left out by design. Then the only question is, Whether the whole of the premises were occupied under the yearly hiring? It is clear that they were. That being so, every condition that was required by the terms of the act of parliament has been complied with, and the pauper has gained a settlement. We think it much the safer course to adhere to the words of the statute, construed in their ordinary import, than to enter into any enquiry as to the supposed intention of the persons who framed it. The order of sessions must therefore be quashed. Order of sessions quashed.
PP. 637, 842. Rex v. Inhabitants of Stogursey, Hil. T. K.B. A.D. The pauper must 1831. Joel Leversham was moved from Stogursey, in the county of have been Somerset, to Kilton. Order quashed, subject to a-Case: “The office an annual office. of parish clerk of the parish of Kilton being vacant in October, 1818, A person perthe pauper began then to perform the duties of that office, and conti- duties of a parish nued to perform them until his removal in January, 1830, and until the clerk without order appealed against, and received a yearly salary of 21. 138. from the any appointment, parish; but neither he nor any other person was, during that period, chosen and without any to the said office by the vicar in whom the appointment is vested, nor was any appointment such choice signified to the parishioners according to the canon. The pauper, the parishioners, when he first served the office, was resident in the parish of Kilve. On the does not acquire 2nd of February, 1819, he took a lodging in the parish of Kilton, and resided a legal settiethere until the 25th of March following, when he went to the parish of Sto- parish, although gursey, where he has since continually resided. The question for the opinion he resides
therein upwards of the Court is, Whether the pauper gained a settlement in the parish of
of 40 days, and
duties for 12
which he re.
performs the Kilton.—Cabbel and Jeremy in support of the order of sessions. Three points
were intended to be raised in this case. First, whether a performance of the years, during
duties of the office was sufficient within the statute of 3 & 4 Wm. III. ceives an annual without a legal appointment. Secondly, whether a residence of forty days salary from the parish. (a)
was sufficient, though such residence was not before the pauper entered upon his office. Thirdly, whether the office of parish clerk is an annual office within the statute. Since this order was brought up, the first point has been decided in this Court in Rex v. Corfe Mullen, 1 Bar. & Adol. (a) The second point also appears to have been decided in Rex v. St Nicholas, Hereford, ante, p. 651 (b). It is not found by the case that this was a public annual office; there being no appointment, the court of quarter sessions and this Court cannot know whether this was an annual office held by the pauper, or whether he merely performed a voluntary service. None of the requisites pointed out in 4 Burn's Ecclesiastical Law, p. 66, canon 91, hare been attended to. If the pauper had absented himself from the church, or had quitted it in the middle of service, there would have been no means of punishing him, or compelling him to perform the duties of the office. Rex v. Lew. This is a case of the first impression. The acts of the pauper hegan by sufferance. There is a mistake in using the word officer.' Hdsington v. Over. (d). In that case it was held that a curate appointed by the sequestrator did not gain a settlement. [Taunton, J. That went on the ground that a curacy was not an office.] Lord Mansfield says, The appointment must be made by a party having authority. The pauper could not have maintained an action for the fees attached to his office of clert, nor could he have voted as a freeholder at a county election. Rer v. Hely Cross, Westgate,(e) shews that notoriety is the object, but here the parishioners would have a right to suppose that the services of a party whose appointment had never been announced, and who did not even reside in the parish, were merely occasional. Erle and Bere, contra. The pauper could not have been removed while executing this office. It is said, (2 Strange, 932, under 9 & 10 W. III.,) a certificated person, to gain a settlement, must be legally placed therein, but execution of the office de facto is sufficient under 3 4 W. & M., and the pauper here was not a certificated person; that the execution and not the appointment, is the material circumstance.- Abboti, J. In Rex v. Holy Cross, and again in Rex v. Corfe Mullen, Bayley, J. says, It having been determined that a parish clerk is within the act of 3 & 4 W. III., the respondents are entitled to read the act as if the word parish clerk had been introduced into it. It is said that the settlement of a parish clerk is gained in respect of bis freehold. If this had been so, the cases would have been under title Estate; but they are uniformly found in all the books ranged under the head of Settlement by Office.—Lord Tenterden, C. J. Suppose the pauper resided forty days on his freehold, he could not be removed if he had been legally appointed. How do you distinguish between the case of a curate and a parish clerk ? Simply because the curate has no office, and the parish clerk has, as decided in Gatten v. Milwich, anti, 637.—Taunton, J. The question is, not whether the office is sufficient, but whether it can be said that the pauper has executed this office within the meaning of the statute.
The case states that he performed the duties, which is equivalent to stateing he executed the office.
In Rex v. Lew, where the appointment had no stamp, there was no evidence of any office being held by the pauper ; but in that case it was held that the circuinstance of the bill being defeasible made no difference. It is desirable to avoid nice questions, in settlement law, and the plain intelligible rule is, to enquire whether the duty has been performed. The party enjoys an
(a) I was favoured with this note by Mr. Manning
(6) 1 B. A., 211.
(c) Steer's P. L., 595.