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Qd. cloth. p "A vi'ry complete Manual of the Advocate's art in Trial by Jury." — Solicitors' Journal. S3S- *** A large stock of Second-hand Law Reports and Text-books on Sale. STEER'S PARISH LAW; A DIGEST OF THE LAW RELATING TO THE CIVIL AND ECCLESIASTICAL GOVERNMENT OF PARISHES, AND THE RELIEF OF THE POOR. SIXTH EDITION BY WALTER HENRY MACNAMARA, ASSISTANT MASTER OF THE STJPEEME COURT, REGISTRAR OF THE COURT CONSTITUTED UNDER THE BENEFICES ACT l8q8. LONDON : STEVENS AND SONS, Limited, 119 and 120, CHANCEEY LANE. SWEET AND MAXWELL, Limited, 3, CHANCERY LANE. 1899. (S99 LONDON : PRINTED BY 0. F. EOWORTH, GREAT NEW STREET, FETTER LANE, E.G. V PREFACE TO THE SIXTH EDITION. Nearly nine years have elapsed since the last edition of this work was published. The Editor has, in the present edition, not merely incorporated into the text the statutes passed and the cases decided during that period relating to the subjects here dealt with, but has, with the view of rendering the treatment of those subjects more complete and perspicuous, recast every chapter in the book. A new system of local government has been established in every parish in England by the passing of the Local Government Act, 1894. This Act, together with the Local Government Act, 1888, makes "a greater change in the local affairs of England than any other half-dozen statutes passed in the last four centuries." Chapters dealing with the constitution and powers of Parish Meetings, Parish Councils, and Pural District Councils have been added. As the Local Government Board have now issued permanent Orders as to the election of parish councillors and of rural district councillors, these Orders have been set out in the Appendix. A Bill is now passing through Parliament, and will doubtless soon become law, making the election of parish councillors triennial instead of annual. a 2 783183 IV PREFACE TO THE SIXTH EDITION. The Benefices Act, 1898, and the Eules issued under it, will also be found in the Appendix. The Editor ventures to hope that the work will be found useful, not only by those who are practically engaged iu the administration of the parochial affairs of the country, whether civil or ecclesiastical, but also by the professional reader. The Editor desires to acknowledge valuable assist- ance which has been rendered to him by Mr. Ralph Neville, of the Middle Temple. W. H. M. May, 1899. *.j* Mr. Steer edited the Second Edition ; Mr. H. J. Hodgson, one of the Masters of the Supreme Court of Judkatuie, edited the Third Edition ; and the present Editor the Fourth and Fifth Editions of this work. TABLE OF CONTENTS. Chap. I. — Parishes. Sect. 1 . Origin of Parishes 2 . Boundaries of Parishes .... 3. Formation of New Parishes. 1. Under Church Build- ing Acts Page Sect. Page 1 3. Formation — contd. 4 2. Under Church En- 6 dowment or New Parishes Acts .... 7 6 12 Chap. II. — Churches. Sect. Page 1 . Founding of Churches .... 13 2. Chancel 17 3. Body of the Church 18 4. Pews and Seats 20 1. In Old Parish Churches 20 2. In Churches built under Church Build- ing and Endowment Acts .. ..'.".' 25 Sect. Page 5. Goods and Ornaments of the Church 28 6. Repairs and Alterations of the Church 35 7. Dilapidations 36 8. Churchyards 39 Chap. III. — The Parochial Clergy. Sect. Page 1 . Vicars 43 2. Stipendiary Curates 45 1. Appointment of .... 45 2. Licence of 48 Sect. _ Page 2. Stipendiary Curates — contd. 3. Stipend of 50 4. Removal of 52 3. Perpetual Curates 54 VI TABLE OF CONTENTS. Chap. IV. — The Parochial Clergy — continued. Sect. Page 1 . Simony 57 2. Presentation and Admission 59 3. Induction 63 4. Reading in 65 5. Payment of Tithes 66 6. Privileges of Clergymen . . 68 7. Disabilities of Clergymen.. 68 8. Trading, Farming, &c 68 Sect. Page 9. Bankruptcy ............ 69 10. Sequestration 70 11. House of Residence 73 12. Pluralities 76 13. Union of Benefices 79 14. Resignation of Benefices. . 79 15. Relinquishment of Holy Orders 82 Chap. V. — The Parochial Clergy — continued. Sect, Correction of Clerks Orders Church Discipline Act, 1840 Public Worship Regulation Act, 1874 Page 83 85 86 Sect. 4. Clergy Discipline Act, 1892 5. Inquiries as to Inadequate Performance of Ecclesias- tical Duties 6. Enforcing Residence 92 96 Chap. VI. — Parochial Lay Officers. Sect. Page 1. Churchwardens 102 1. Persons eligible or exempt 103 2. Manner of Appoint- ment 106 Sect. 1. Churchwardens — contj. Page 3. Rights and Duties of 110 2. Parish Clerk 117 3. Sexton 120 4. Beadle 121 Chap. VII. — Sacraments and Eites of the Church. Page Sect. Page , Sect. 1. Baptism 123 I „ -.. . „ 2. The Holy Communion .... 124 | 3 " Dlvm e Service generally .. 128 TABLE OF CONTENTS. vn Chap. VIII. — Marriage. Sect. Page 1 . According to the Rites of the Established Church 132 1. By Publication of Banns 132 2. By Special Licence. . 135 3. By the Common or Ordinary's Licence. 135 4. On Registrar's Cer- tificate 136 2. Not according to the Rites of the Established Church 138 1. On the Registrar's Certificate 138 Sect. Page 2. Not according, &c. — eontcl. 2. On the Registrar's Licence 141 3. Without Presence of Registrar before au- thorized Person . . 146 3 . Marriage of Jews or Quakers 150 4 . Hours of Marriage 151 5. Undue Solemnisation of Marriage 151 6. Voidable and Void Mar- riages 153 Chap. IX. — Burial. Sect. Page 1. Generally 159 2. In Churches and Old Burial Grounds 172 3. Disused Burial Grounds . . 177 4. Provision of Burial Grounds by Local Authorities — 1. Generally 180 Sect. Page 4. Provision, &c. — contd. 2. Under the Burial Acts 183 3. Under the Public Health Interments Act, 1879 193 5. Proprietary cemeteries .... 194 6. Mortuaries 196 Chap. X. — Registers and Registration. Sect. Page 1. Ecclesiastical Registration of Baptisms and Burials. . 198 2. Ecclesiastical Registration of Marriages 201 Sect. Page 3. Civil Registration of Births 203 4. Civil Registration of Deaths 205 5. General Provisions as to Registration 207 Chap. XI. — Parish Vestries. Sect. Page 1 . General Vestries 209 1. Vestry Meetings 209 2. Proceedings at the Vestry 212 Sect. 1. General Vestries— contd. Page 3. Powers and Duties of Vestry 216 4. Vestry Clerk 218 2. Select Vestries by Custom. . 221 3. Select Vestries by Statute.. 222 vm TABLE OF CONTENTS. Chap. XII. — Parish Meetings. Sect. Page 1. Constitution of 223 2. Proceedings at 225 3. Powers and Duties of .... 226 Sect. Page 4. In Parish without Parish Council 229 Chap. XIII. — Parish Councils. Sect. Page 1. Constitution of 230 2. Election of 237 3. Proceedings at Meeting of . 210 Sect. Page 4. Powers and Duties of .... 24 •£ 1. Transferred Powers . 242 2. Additional Powers . . 243 3. Generally 251 5. Parish Officers 253 Chap. XIV. — Eural District Councils. Sect. Page 1. Constitution of 255 2. Election of 258 Sect. 3. Powers and Duties of Page 260 Chap. XV. — Constables. Sect. Page 1. High Constables 209 2. Parish Constables 269 3. Special Constables 270 Sect. Page 4. Police Constables in Coun- ties 272 5. Police Constables in Bo- roughs 277 Chap. XVI. — Coroners and Inquests. Sect. Page i Sect. 1. County Coroner 278 3. Inquests 2. Borough Coroner 280 I Pa-p 281 Chap. XVII. — Jury Lists 2SI TABLE OF CONTENTS. IX Chap. XVIII. — Highways. Sect. Page 1. Highways at Common Law 289 2. The Highway Acts 292 Sect. _ Page 3. Highway Authority for Rural Districts 293 4. Repair, &c, of Highways . 295 Chap. XIX.— Bates. Sect. Page 1. Church Rate 301 2. County Rate 304 3. Poor Rate 308 1. Howmade and autho- rised 308 2. Union Assessment Committee and the Valuation List .... 315 Sect. Tage 3. Poor Rate— contd. 3. Persons Rateable . . 318 4. In respect of what Property 326 5 . Appeal against a Poor Rate 327 6. Collecting and Levy- ing a Poor Rate . . 330 Chap. XX. — Administration of Poor Laws. Sect. Page 1. Local Government Board . . 335 2. Boards of Guardians 338 1. Election of 338 2. Powers and Duties of 339 3. District Auditors 349 4. Paid Officers of Guardians . 353 5. Overseers 357 1. Appointment of — 1. In Urban Parishes 357 Sect. Page 5. Overseers — contd. 2. In Rural Parishes 359 3. Generally 360 2. Powers and Duties of 361 6. Assistant Overseers and Collectors 370 7. Overseers' and Collectors' Accounts 373 Chap. XXI.— Belief. Sect. Page 1 . Relief generally 375 2. To Able-bodied Poor 381 3. By Relations 385 4. By Loan 390 5. By Emigration 392 6. Other Modes of Relief 393 1. Naval and Merchant Services 393 2. Medical Relief 393 Sect. Page 3. Boarding out Pauper Children 394 4. Outfits for Children sent to Service .... 394 5. Education 394 6. Apprenticing 395 7. Providing Allotments 395 7. Casual Poor 4 04 8. Bastards 405 9. Pauper Lunatics . . 408 TABLE OF CONTENTS. Chap. XXII. — Workhouses. Beet. 1. Generally 412 I 2. Casual Wards Page 422 Chap. XXIII. — Parochial Settlements. Sect. 1 . Settlements in General .... 2. By Residence in Parish for Three Years 3. By Occupying and being Rated for 10 1. Tenement . 4. By possession of Estate and Residence Page 428 430 431 432 Sect. Page 5. By Apprenticeship 435 6. Derivative Settlements .... 441 1. By Marriage 442 2. By Parentage 442 1. Legitimate Children 442 2 . Illegitimate Children 443 7. By Birth 444 Chap. XXIV. — Kemoyal op Paupers. Sect. Page 1. Removability in General .. 445 2. How Removed 450 3. Removal of Scotch, &c, Paupers 452 4. Orders of Removal 453 1. Form and Requisites of Order 453 2. Examination of Pau- per 455 Sect. Page 4. Orders, &c. — contd. 3. Notice of Charge- ability and Grounds of Removal 456 4. Abandoning and Su- perseding Order . . 457 5. Suspension of Orders 157 6. Appeal against Orders 459 Chap. XXV. — Free Public Libraries and Museums . . 461 Chap. XXVI. — Lighting and Watching Act, 1833 463 TABLE OF CONTENTS. XI Chap. XXVII. —Elementary Education. Sect. Page 1 . Providing and Management of Schools 467 1. School Board 469 1. Formation of .... 469 2. Election of 469 3. Duties of School Board 471 Sect. Page 2. School Attendance Com- mittee 472 3. Attendance of Children at School 472 4. Employment of Children . . 475 5. School Fees 477 6. Parliamentary Grant 478 7. Poor Law Education 479 APPENDIX. PAGE Local Government Act, 1894 483 Parish Councillors Election Order, 1898 541 Rural District Councillors Election Order, 1898 580 Benefices Act, 1898 625 Benefices Rules, 1898 633 Benefices Rules, 1899 641 TABLE OF CASES. A. PAGE Abergavenny v. Llandaff 63 Adams' Ecclesiastical Courts . . 211 Adey v. Theobald 105 Adlam v. Colthurst 171 Alchin v. Hopkins 85 Allehurch v.. Hendon 319 Allcroft v. Bishop of London . . 87 Alston v. Atlay 84 Anderson v. "Walker 164 Andrews v. Cawthorne 163 Angell v. Paddington Vestry . . 322 Anonymous Case 108 Anthony v. Seger 104,109 Arnold v. Bp. of Bath and Wells 45 v. Blaker 292 v. Holbrook 292 Arrow r smith, Ex parte 26 v. Dickenson .... 386 Arthington v. Bp. of Chester 45, 54 Ashby v. Harris 189 Asher r. Calcraft 112 Astle v. Thomas Ill Atchley v. Sprigg 406 Atkins v. Banwell 405 Att.-Gen. v. Croydon 212 v. Ruper 102 v. St. Cross Hospital 115 v. St. Pancras Vestry ISO v. Wycliffe 63 Austerberry v . Oldham Corpora- tion 292 B. Bailey v. Jamieson 290 Baker v. Greenhill 296 v. Locke 371 ■ v. Wood 214, 215 Banbury Peerage Case 405 Barber v. Waite 344 Bardin v. Calcott .... 162, 174, 175 PAGE Barlow, In re 104 Barraclough v. Johnson 291 Barrow v. Keen 20 Bartlett, Ex parte 100 v. Kirwood 100,101 Bateman v. Bluck 290 Bath Union v. Berwick-upon- Tweed Union 442 Batten v. Gedye 39, 41 Beale v. Liddell 29 Beaston v. Scisson 454 Bedford r. Patteson 354 Bell v. Bassett 302 v. Oakley 334 Bellamy's Case 4 Belper Board v. Bailey 473 Bennett v. Edwards 312 Berkhampstead v. St. Mary, Northchurch 442 Bermondsey v. Brown 291 Bevan v. Williams 101 Bfflington v. Cvples 40s Bird v. Ralph 38 Bishop's Case 116 Blackmore, Ex parte 173 v. Brider 155 Bonaker v. Evans 100 Borough v. Collins 84 Boroughfen v. St. John's 313 Bosvile r. Att.-Gen 405 Boyd v. Barker 74 r. Phillpotts 30, 31 Bradford v. Ery 31, 114 Bray v. Somer 110 Breeks v. Woolfrey 174 Bremner v. Hull 107, 110 Briggs, Ex parte H5, 218 Brighton Union v. Strand Union 430 Bristol Incorporation v. Barton Regis Union 430 Bristol Poor, Governors of, v. Wait 321 British Museum Trustees v. Einnis 291 TABLE OF CASES. Xlll PAGE Brook v. Brook 157 Bryan v. Whistler 172, 171 Bryant v. Foot 138, 103 Bryson v. Russell '276 Bulvver v. Bulwer 64 v. Hase 33 Bunter v. Cresswell 71, 84 Bur din v. Calcott 34 Burnley v. Methley 312 Bursledon Overseers v. Clarke. . 319 Burton v. Henson 112 Bute v. Grindall 319 Butt v. Fellowes 1 06 Byerley v. Windus 20 C. Campbell v. Lang 290 v. Maund 214 ■ v. Whitehead 71 Cansfield v. Blenkinsop 120 Carpenter v. Mason 368 Cart v. Marsh 33 Chambres v. Jones 369 Chapman -/'. Jones 18 Chappell v. Overseers of St. Botolph 320 Chilton v. Corporation of London 12 Chisholm v. Holland 276 Churton v. Frewen 20 Clear v. Booth 475 Cleaver v. McKenna 380 Clergyman, a, Ex parte 82 Cliffe v. Littlemore 122 Clifford v. Wicks 18 Clifton v. Ridsdale 31, 34 Clowes v. Clowes 151 Glutton v. Cherry 216 Cooper v. Allnutt 104 v. Dodd 161 v. Simmons 440 Cope v. Barber 113, 130 v. Cope 406 Cory v. Bristow 320 Cox v. Davies 259 Crayford Overseers v. Butter . . 465 Crisp v. Martin 24 Crook v. Sampson 19 Cuokfield District Council v. Goring 296 Culley v. Charman 387 Curtis v.Kesteren County Council 297 1). Dakins ?:. Seaman 49 Daniel v. Morton 51 PAGE Daunt v. Crocker 32 Davies v. Harvey 344 Davis v. Black 1 37 v. JJ., Pembrokeshire . . 280 • v. Witts 20 Dawe v. Wdliams 211 Dawney v. Dee 172 Dawson v. Fowle 106 Diddear v. Faucit 158 Dirachurch, Re 313 Diss v. Aldrich 331 Dixon v. Butler 36 v. Kershaw 16, 45 lie 172 v. Smith 72 Doe v . Clarke 363 v. Pearsey 289 Dorchester Union v. Weymouth Union 431 Dorking Union v. St. Saviour's Union 444 Dormer v. Williams 156 Downton, Ex parte 451 Druce v. Young 171 Duffield, Ex parte 109 Durham C. C. v. Chester-le- Street 322 Durst v. Masters 30 V. Eaden v. Titchmarsh 369 East India Co. v. Skinner .... 332 Easton v. Marlborough 450 Edwards, Ex parte 85 Egerton v. All of Odd Rode . . 33 Elliott v. Gurr 154, 155 Elphinstone v. Purchas 30, 34, 125, 129 Enraght v. Lord Penzance .... 34 Escott v. Mastin 160 Etherington v. Wilson . , , 12 Evans v. Slack 21 Eynshaw, Re 213 F. Farnworth v. Bishop of Chester 16 Faulkner v. Litchfield 29 Fellowes v. Stewart 132 Flamank v. Simpson 125 Ford v. Chancery 105 Fourth City Mutual Building Society v. Churchwardens of East Ham 332 Fox v. Davies 312 Frances v. Ley 19 XIV TABLE OF CASES. PAGE Frost v. Bolland 354 Fry v. Treasure Ill Fryer v. Johnson 173 Fulhara Union v. Thanet Union 450 Fuller v. Alford 13S ■ v. Lane 20 Furnivall v. Coombes Ill G. Gamble, In re 385 Gardener v. Parker 102 Garnett v. Ferrand 284 Gates v. Chambers 49 Gathercole v. Smith S2 Gell v. Birmingham 118, 189 Gent v. Tompkins 404 Gibbs v. Flight 103 Gill, Ex parte 440 Gompertz v. Kensit 151 Goslin v. Ellison 110 Gough & Cartwright v. Jones. . 211 Greaves v. Greaves 151 Green v. Airstin 44 v. The Queen 107 Greenslade r. Darby 40, 54 Greig v. Edinburgh University.. 320 Griffin v. Deighton 18 Grose v. West 289 Groves v. Rector of Hornsey . . 21, 23, 35 Gurney v. Gurney 406 Gwyn v. Hardwick 290 II. Hall v. Derby 320 v. Planner 112 Hance v. Fairhurst 473 Hansard v. Bcthnal Green .... 197 Harford v. Morris 154 Harmer v. Lewis 284 Harper v. Gary 330 v. Charlesworth 291 Harris v. Drue 25 . v. Perkins 88, 115 Harrison v. Forbes & Lisson . . 32 Harrow - on - the - Hill Church- wardens, Case of 162 Harvey's Case 172 Hawkins v. Compiegne 24 ■ In re 36 Hebbert v. Purchas 34 Henley v. Mayor of Lyme Begis 296 Heudebourck v. Langton 215 PAGE Highworth and Swindon Union r. Westbury-on-Severn Union 430 Hilliard v. Jefferson 40 Hiscock r. Wilmot 44 Hoare v. Ram 1 68 Hodgson v. Carlisle Board of Health 321 Holborn Union v. Chertsey Union 431 Holledge's Case 12 Holmes v. Simmons 139 Honeybone v. Hambridga .... 393 Horner v. Horner 155 Horsfall v. Holland & Woolley .112 Horton v. Walsall Union 329 Hoskins v. Featherstone 41 Howard v. Boddington 87 Hubbard v. Penrice 106 Hughes v. Edwards 30 v. Lloyd 159 Hull, In re 281, 282 Hunter v. Johnson 475 Huntley v. Russell ; . 38 Hurrell v. Wink 330 Hussey v. Leighton 19 Hutchins v. Chambers 332 v. Denziloe 209 Hutchinson r. Denziloe 114 Hyde v. Hyde 131 I. C, Ex parte 158 J. Jackson v. Courtenay 119 Jenkins' Case 386 v. Cook 86, 127 Johnson's Case 454 Jones v. Mersey Docks 321 Joyce, Ex parte 109 K. Keet v. Smith 33, 174 Kemp v. Wickes 123, 160 Keynsham Union v. Bedminster 443 Kimber v. Paravicini 73 Kirbv v. Banister 369 L. Lade r. Sheppard 289, 290, 292 Lamb v. Bunce 370, 405 TABLE OF CASES. XV PAGE Lamplugh v. Norton 318 Lanchester v. Frewer 215 v. Tricker 215 Lane v. Goodwin 151 Laurence v. Hedger 122 Lawrence v. Edwards 73, 118 Layard v. Ovey 68 Le Crew, Ex parte 34 Leveson, In re 26, 85 Lewis v. Bright 69 Lichfield v. Greene 354 Liddell v. Beale 30, 33 v. Westerton 30 Lincoln, Bishop of, v. Day 84 Llanelly Union v. Neath Union. 443 Lloyd v. Burrup 116 London & North-Western By. Co. v. Buckmaster 320 London C. C. v. Erith Church- wardens 320 London School Bd. v. Duggan . . 474 v. Harvey . . 473 v. Jackson . . 472 v. Wood .... 474 . v.Wright .. 478 Lousley v. Hay ward 4, 20 Louth District Council v. West. 298 Lowe, Ex parte 109 M. M'AUister v. Rochester, Bishop of 16,44 Maidman v. Malpas 33 Malkin v. Vickerstaff 369 Manchester Overseers v. Orms- kirk Guardians 431 Mansfield Union v. Wright .... 372 Marsh v. Fawcett 71 Martin v. Mackonochie. .29, 83, 126, 129 v. Nutkin Ill v. Roe 38 v. West Derby Assess- ment Committee 321 Matthews v. Jeffrey 189 Maund v.Mason 386 Mawbey, Ex parte 214 Mawley v. Barbet 216 May v. Gwynno 218, 219 Ex parte 331 Med way Union v. Bedminster Union 442 Mercer v. Woodgate 292 Mersey Dock Case 320 Middlesex C. C. v. St. George's, Hanover Square 321 Mills v. Alderbury 354 PAGE Molyneux v. Bagshaw 3 J5 Morgan v. Archdeacon of Car- digan 104 v. Curtis 18 Morris v. Phelps 71 Morten, In re 380 Much Hoole v. Preston 447 Munger Hunger v. Warden . . 45 5 N. Nevill v. Bridger 175 Newark v. Glandford Brigg. .. . 449 Nichols v. Davis 119 Nicholson v. Bradfield 344 Norfolk, Duke of, v. Arbuthnot. 18 Northampton Churchwardens, Case of 106 Norwood, Overseers of, v. Salter 325 O. Olive v. Ingram 105, 120 Ormerod v. Blackburn Burial Board 120 V. Chadwick 210 P. Paddington Burial Board v. Inland Revenue 190 Palmer v. Bishop of Exeter. .33, 173 Parkinson v. Potter 318 Paynter v. R 331 v. Williams 405 Peak v. Bourne 118 Peek v. Trower 21, 36 Perceval v. Cooke 38 Perry Almshouses, In re 249 Peterborough Corporation v. Wilsthorpe Overseers 330 Pettman v. Bridger 21, 216 Phelps v. St. John 71 Phillips v. Goff 469 v. Halliday 24 Phillybrown v. Ryland 212 Pinder v. Barr 118 Plomesgate Union v. West Ham Union 430 Plymouth Union v. Axminster Union 444 Ponsford School Board, In re , . 180 Poole v. Bishop of London .... 49 v. Huskinson 290, 291 Powell v. Hibbert 71 Pratt v. Harvey 36 Presgrove v. Shrewsbury 24 Pricket's Case 31 XVI TABLE OF CASES. R. PAGE Rand v. Green 211 R. v. Abergavenny Union .... 456 — v. Aberystwith 319 — v. Abingdon 449 — v. Abney Park Cemetery. . . . 322 — v. Aire and Calder Naviga- tion 30S — v. Aldstone 438 — v. All Saints, Derby 453 — v. Ampthill 44 5 — v. Angell 454 — v. Arkwright 42 — v. Arundel 1 : '>~> — v. Audley 311 — v. Austrey 441 — v. Aythrop Roodiug . . . .432, 442 — r. Bagworth 456 — v. Banbury 439 — v. Barlestone 439 — v. Barmby-in-the-Mai>h . . 439 — v. Barnstaple 308 — v. Barr 291 — v. Barrat 310 — r. Barrons 221 — v. Barrow 211,218 — v. Bartlett 318, 367 — v. Barton-upon-Irwell 439 — v. Bedford 322 — v. Bedinghara 453 — v. Bedminstei 328 — v. Belford -i'M — r.Benn 33d, — v. Best 210 — v. Bird 365 — v. Birmingham.. 109, 154, 157, 448 — v. Birmingham, Rector of . . 214 ■ — v. Blackawton 307 — v. Blackfriars Bridge Co. . . 322 — v. Bobbing 118 — v. Bolton 369 — v. Boroughfen 312 — v. Bourn 454 — v. Brampton Union 430 — v. Brighthelmston 439, 449 — v. Brograve 311 — v. Brotton 439 — v. Buckinghamshire J J 454 — v. Bucknell 44" — V. Burder 358 — v. Burnay 290 — v. Burslem 439 — v. Burton-upon-Trent 151 — v. Butler 311, 358 — v. Cantertmry, Archbishop of 49, 219 — r. Capel 318 — r. Cailtton 447 PAGE R. v. Carylon 318 — v. Catesby 103 — r. Chadwick 154 — v. Chailey 434 — v. Charles 439 — r. Chelmsford 273, 439 — v. Chester, Archdeacon of . . 215 — r. Christopherson 318 — v. Clerkenwell 213 — v. Clifton 361 — v. Coleridge 173 — v. Coin St. Aldwins .... 454, 455 — v. Combs 448 — v. Cooper 214 — r. Cornish 386 — v. Cottingham 447 — v. Crease 319 — v. Cromford 435 — v. Crowan 459 — v. Croydon 219, 221 — v. Cuckfield 446 — v. Cudham 447 — r. Davey 118 — v. Denbighshire JJ 329 — V. Ditchingham , 435 — v. Dobbyn 453 — v. Dorchester JJ 310 — v. Dorstone 433 — v. D'Oyley 107, 211, 212. 214, 215 — r. DuDchurch 434 — v. Eakring 440 — v. Eastbourne 442 — r. East Mark 290, 291 — v. East Stonehouse 447, 448 — r. Eaton 475 — v. Ecclesfield 440 — v. Edmonton 290 — v. Edwards 308, 310 — v. Ellis 137, 333 — r. Eltham 447 — v. Elvet 447 — r. Englefield 459 — v. Essex, Inhabitants of .... 366 — v. Eton College, Provost and Fellows of 60 — v. Everdon 456, 45S — v. Eyres 116 — v. Fearnley 386 — v. Field 319 — v. Finnis 352 — v. Fleet 436 — v. Flockton 438 — v. Fordham 311 — v. Forrest 358 — v. Foulness 439 — v. Frost 214 - — v. Gaiusborough 438 — v. Gardner 319 TABLE OF CASES. XV11 PAGE R. v. Gayer 104, 105, 359 — v. Geddington 433 — r. Glossop Union 449 — v. Godolphin, Lord 310 — v. Goodcheap 311 — v. Gomersal 457 — v. Graham 107 — v. Great Bolton 455 — v. Great Chart 453 — v. Great Farringdon 433 — v. Great Glen 434 — v. Great Marlow 358 — v. Great Western Railway Co. 367 — v. Great Wigston 441 — v. Greenaway 367 — v. Greene 354, 372 — v. Gulley 386 — v. Gwinear 439 — v. Hagbourne 213 — v. Hagworthingham 434 — v. Halifax 454 — v. Hamilton 271 — v. Hammersmith, Vicar of . . 214 — v. Handsley 332 — v. Harberton 441, 447 — v. Harding 105 — v. Harman 361 — v. Harrison 359 — v. Harrow-on-the-Hill .... 449 — v. Hartfield 459 — v. Haslehurst 355 — v. Haslingfield 287 — v. Hatfield Broadoak 433 — v. Hawkhurst 290 — v. Hayman 296 — v. Heaton Norris 444 — v. Hedger 214 — v. Helling 358 — V . Hemlington 448 — v. High Bickington 343 — v. Hinckley, Inhabitants of.. 104 — v. Holbeche 313 — v. Holy Trinity 440 — v. Honiton 454 — v. Hornchurch 434 — v. Houghton-le-Spring .... 434 — v. Houlditch 358 — v. Huddersfield 447 — v. Hull Dock Co 321 — v. Hulton 271 — v. Ideford 440 — v. Ilkeston 439 — v. Ingleton 433 — v. Ipswich Union 430 — v. James 137 — v. Johnson 366 — v. Jones 360 — v. Joyce 386 — v. Kempson 386 S. PAGE R. v. Kent 162 — v. Kent JJ 281 — v. Kerrison 296 — v. Kingsclere 121 — v. Knaresborough 434 — v. Knightley 312, 313 — v. Lakenham 311 — v. Lambeth 318 — v. Lampeter 456, 458 — v. Lancashire JJ 328 — v. Landillo, Commissioners of 289 — v. Langham 441 — v. Langriville, Overseers of.. 328 — v. Leake 291 — v. Leeds 447 — v. Linkinhorne 439 — v. Llanellchid 458 — v. Lloyd 290, 291 — v. London, Bishop of ... .71, 30 — v. London JJ 333 — v. London, Mayor of 319 — v. London School Board .... 322 — v . Lutterworth 436 — v. Lydlinch 433 — v. Maidstone Union 448 — v. Maiden 315 — v. Manchester 321, 447 — v. Manchester Overseers .... 450 — v. Mansfield 406 — v. Marriott 210 — v. Martley 434 — v. Marwood 433 — v. Mashiter 12 — r. Mattingley 434 — v. Maulden 454 — v. Middlesex 296 — v. Middlesex JJ 448 — v. Middlesex, Archdeacon of 109 — v. Midland Rail. Co 464 — v. Miles 239 — v. Milland 313 — v. Minchinhampton 454 — v. Morgan 319 — v. Morris 358, 361 — v. Mountsorrel 441 — v. Munden 386 — v. Napton 351 — v. Nash 407 — v. Netherton 454 — v. Newchurch 444 — v. Newcomb 312,333 — v. Norwood 449 — v. Oldland 446 — v. Olney 434 — v. O'Neil 130 — v. Owersby-le-Moor 434 — v. Oxford, Bishop of 85 — v. Parrot 318, 322 — v. Patteson 354 b XV111 TABLE OF CASES. PAGE R. v. Pemberton and Smith. ... 411 — v. Percivall 313 — v. Peterborough, Mayor of. . 214 — v. Petrie 290, 291 — v. Piddlehinton 433 — v. Porter 271 — v. Powell 360, 371 — v. Poynder 105, 360 — v.Price 171,281,332 — v. Prior's Hard wick 454 — v. Ripon 435 — v. Roberts and May 213 — v. Robinson 386 — v. Rochester, Bishop of .... 53 — v. Rotherham 454, 455 — v. Rothwell 457 — r. Ryton 442 — v. Saffron Walden 435 — v. St. Agnes 319 — v. St. Albans, Bishop of ... . 86 — v. St. Albans JJ 358 — v. St. Anne's, Rector of ... . 118 — v. St. Austell 319 — v. St. Faith 106 — v. St. George 35S, 446 — v. St. George, Bloomsbury. . 450 — v. St. George's, Hanover Square 439, 454 — v. St. George's Union 319 — v. St. Giles-in-the -Fields . . 155, 435 — v. St. James, Bury St. Ed- munds 404,446 — v. St. John, Bedwardine. . . . 437 — v. St. John's, Hackney .... 458 ■ — ■ v. St. Lawrence, Ludlow 404, 446 — v. St. Leonard's, Shoreditch. 449 — v. St. Margaret, Westminster 447 — v. St. Martin's, Exeter 440 — v. St. Martin's-in-the-Fields 319, 354 — v. St. Mary 178 — v. St. Mary Abbots 316 ■ — v. St. Mary, Beverley . . 444, 447 — v. St. Mary Bredin, Canter- bury 439 — v. St. Mary, Bungay 445 — r. St. Mary, Castlegate .... 433 — v. St. Mary, Durham 319 — v. St. Mary, Islington . . 448, 450 — v. St. Mary, Lambeth . . 212, 214 — v. St. Marylebone 448 — v. St. Mary, Marlborough . . 313 — v. St. Mary, Newington .... 214 — v. St. Mary, Whittiesey 147 — v. St. Michael's, Bath 434 — v. St. Nicholas, Nottingham. 436 — v. St. Olave's 447, 454 — r. St. Pancras 214, 404 PAGE R. v. St. Paul, Exeter 437 — v. St. Peter's-on-the-Hill . . 435 — v. St. Saviour's 214 — v. Salisbury, Marquis of ... . 319 — v. Saltern 435 — v. Sandwich 311 — v. Saxmundham 448 — v. Sculcoates 459 — v. Searle 358 — v. Severn & Wye Rail. Co. . . 219 — v. Seville 365 — v. Sheffield Canal Co 296 — v. Sheringbrook 358 — v. Shipley Parish Council . . 295 — v. Shrewsbury, Recorder of . . 457 — v. Silkstone 455 — v. Smith 119, 386 — v. Somerby 439 — v. Somersetshire JJ 460 — v. South Lvnn, All Saints . . 456 — v. South Weald 184 — v. Spurrell 105 — r. Standard Hill 359 — v. Standish-cum-Langtree . . 453 — v. Stapleton 449 — v. Stephenson 172, 281 — v. Stepney Lnion 431 — v. Stevens 108 — v. Stewart 159 — v. Stockland 434, 440 — v. Stockton-upon-Tees .... 457 — v. Stogumber 447 — v. Stoke Damerel 219, 437 — r. Stoke Goldiug 363 — v. Stone 433 — r. Stotfold 359 — v. Street 367 — v. Stubbs 360 — v. Sundrish 433 — v. Surrey JJ 328 — v. Sutton 296 — r. Swalcliffe 450 — v ■ Tacolnestone 449 — v. Taunton, Churchwardens of 121 — v. Taylor 173 — v. Telscombe 313 — v. Terrott 319 — r. Tetford 434 — v. Thame, Churchwardens of 121 — v. Thomas 213 — v. Thruscrops 432 — v . Tibbenham 454 — v. Tidy 221 — v. Tomlinson 311 — v. Tonbridge 185 — v. Tottenham, Vicar of . .211, 216 — v. Turmine 4 70 — v. Turner 318 TABLE OF CASES. XIX PAGE R. v. Ufculni 454 — v. Ufton 433 — v. Vange 322 — v. Wallingford Union 321 — v. Wall Lynn 319 — v. Walsall 359 — v. Warkworth 438 — v. Warwickshire JJ 363 — v. Watford 447 — v. Watts" 296 — v. Wearmouth Bishop 178 — v. Weddington 441 — r. Wellbank 319 — v. West Derby 322 — v. Whaddon 322 — v. Whipp 210 — v. Whissendine 435 — v. Whitchurch 440 — v. White 361 — v. Wilkinson 459 — v. Williams 109 — v. Wilson 333 — v. Winchester, Bishop of . . 107 — v. Wix 108 — v. Wodehouse 458 — v. Woodsford 442 — v. Woolstanton 436 — v. Worcestershire J J 321 — v. Wright 290 — v. Wykes 455 — v. York JJ 307 — v. Yorkshire, W. R., JJ. . . 439 Read v. Bishop of Lincoln , . 83, 84, 125, 126, 127 Reichel V. Bishop of Oxford . . 80 Reigate Union v. Croydon Union 442, 443, 444 Rennington v. Cole 155 Reynolds v. Monkton 21, 112 Reynoldson v. Blake and Bishop of London 79 Rich v. Bushnell 17 Richards v. Fincher 53 Richardson v. Methley School Board 470 v. Thomas 54 Ridsdale v. Clifton 125, 126 Ritchings v. Cordingley . .22, 31, 33 Roads v. Overseers of Trumping- ton 319 Roberts v. Karr 291 Robinson v. Dand 81 Rochester v. Thompson .... 121, 189 Rochester, Bishop of, v. Harris. 89 Rochdale Canal Co. v. Brewster. 320 Rogers v. Holled 63 Rose, Ex parte 84 Rosher v. Vicar of North fleet . . 175 Ross v. Adcock 38 PAGE Ross Charity, In re 250 Rugby Charity v. Merry weather 290 Rugg v. Bishop of Winchester . 86 Rumsey v. Nicholl 79 Ruttinger v. Temple 406 S. St. Agnes, Toxteth Park, In re. 31 St. Andrew Undershaft v. De Breta 386 St. Botolph Without, Aldgate, Vicar of, v. Parishioners .... 180 St. George v. St. Margaret 406 St. Giles, Reading, v. Eversley, Blackwater 442 St. John v. St. James 438 St. Laurence, Pittington, In re. 31 St. Mary-at-Hill, Rector of, v. Parishioners 102 St. Paul's, Walden, v. Kempton 433 St. Peter and St. Paul, Marl- borough 313 St. Sepulchre, Vicar of, v. Churchwardens of 114 St. Thomas's Hospital v. Stratton 320 Salford Union v. Manchester Overseers 431 Saunders v. Davies 83 v. Richardson 474 Saye and Sele, Barony of 406 Scadding v. Lorant 215 Seager v. Bowie 33 Sebright v. Sebright 154 Sergeant, In re 178 Sergeant v. Dale 87 Sharpe v. Bluck 46 Shaw v. Thompson 109, 211 Sheppard v. Bennett 127 Shermanbury v. Bolney. . . .386, 448 Showers v. Chelmsford 321 Simmons v. Wilmott 404, 405 Skelton v, Rushby 372 Skingley v. Surridge 331 Skinner v. Buckee 344 Slocombe v. St. John 106 Smart v. West Ham Union .... 372 Smith v. Deighton 211 v. Richmond 314 v. Seghill 319 v. Lambeth Assessment Committee 320 Sottomayor v. De Barros 157 Souch v. E. London Rail. Co. . . 290 Southell v. Needwell 454 Sowden v. Emsley 369 Sowerby v. Fryer 41 Spooner v. Brewster 175 b2 XX TABLE OF CASES. PAGE Sprott v. Powell 215 Spry v. Flood 18 v. Gallop 163, 164 Stafford, Marquis of, v. Coyney 291 Staffordshire, North, Re 33. of. 310 Stamford Union v. Bartlett 410 Starkey v. Berton 110 Steel v. Prickett 289 Steele v. Williams 207 Stephenson v. Langston. . . . 104, 110 Stevens v. Evans 330 Stewart v. West Derby Burial Board 192 Stoughton v. Reynolds , 106 Strachey v. Francis 41 Stroud Green, In re Holy Trinity Church 30 Stutter v. Freston 108 Sullivan v. Sullivan 154 Sumner v. Wix 30, 125, 129 Surrey Canal Co. v. Hall 290 Swayne v. Benson 127 T. Tattersall v. Knight 23, 24, 35 Taylor v. Timson 21, 113 Teather, Ex parte 354 Tenterden Union v. St. Mary, Islington 443 Thakeham, Be, Sequestration Moneys 71 Thomas v. Alsop 387 Thomas and Hughes v. Morris . 35 Thursby v. Churchwardens, &c. of Briercliff e- with- Ext wistle. 465 Tiarks v. Hutton 212 Titchmarsh, Ex parte 159 Tomlinson v. Bentall 405 Tuckniss v. Alexander 135 Tunnicliffe v. Birkdale Overseers 322 Vaughan, In re 174 Veley v. Burder 29 v. Pertwt e 110 Voysey v. Noble 84, 86 W. Walsall v. L. & N. W. Ry. Co. 329, 330 Walsh t\ Southworth 332 PAGE Walter v. Gunner 24 Wangford v. Brandon 448 Ward v. Plymouth Corporation 189 v. Radford 232 Wathng v. Walters 405 Wayman v. Monk 37 Webb v. Fearon 12 Welcome v. Lake 116 Wellington v. Whitchurch 449 Wendron v. Stithians 434 Wenmouth v. Collins 209 Weobly, Overseers of 358 Westerton v. Liddell 29, 31 Westgate-on-Sea Churchwar- dens v. Parishioners of same . 22 West Ham, Churchwardens of v. Fourth City Mutual Build- ing Society 324 West Ham Union v. Cardiff Union 431 West Ham Union v. St. Giles- in-the-Fields 442 West Ham Union i- . St. Matthew's 443 West v. Turner 101 Westminster, City of v. Gerrard 386 Wethered v. Calcutt 312 White v. Bowron 30 v. Norwood Burial Board 121 Wildbor v. Rainforth 369 Wilson v. M'Math 39, 209, 212 Wing v. Mill 405 Wise v. Metcalfe 38 Windeat v. Sharland 380 Wood v. Headingley 39 v. Headingley-cum-Bar- ley Burial Board . . 191 v. Veal 290, 291 Woodcock v. Gibson 103 Woodstock Union r. St. Pancras 443 ■ ■ v. Shipston- on-Stour Union , 435 Woodyer v. Hadden 290, 291 Wookey r. Hinton-Blewet .... 434 Woollocombe v. Ouldridge .... 25 Worcestershire C. C. v. Wor- cester Union 321 Worth r. Terrington 113 Wright v. Davies 38 ■ v. Wallasey Local Board 187 Wyndham r. Cole 34 Wynn v. Davies 152 Touno- v. Cuthbertson 290 PARISH LAW CIVIL, ECCLESIASTICAL, &c. CHAPTEE I. PARISHES. PAGS Section I. Origin of Parishes 1 II. Boundaries of Parishes 4 III. Formation of Neiv Parishes 6 IV. Parishioners 12 Section I. — Origin of Parishes. History. — As the ecclesiastical division of the kingdom, was not commenced till a long time after the introduction of Christianity, and as those who were most active and most immediately inte- rested in its establishment were also the historians of the times, it seems a little singular that the information respecting the infancy and extension of religious institutions in this country should be so scanty and uncertain. It is agreed among ecclesi- astical writers that dioceses existed before parishes, and that it was only when the number of converts within the district over which the bishop exercised his functions became too large for him, even with the aid of his presbyters, to minister to their spiritual wants, that parishes were instituted. Besides, the erec- tion of churches, in different parts of the country as religion spread among the people, would afford an additional reason, as a matter of convenience, for the division into smaller portions of the districts over which the bishop still maintained a general control and superintendence. Thus in process of time the presbyters or priests, who were little more than the curates or messengers to the higher dignitaries, became settled in the towns S. B 5^ 2 PARISHES. [CHAP. I. and villages distant from the cathedral churches in "which the bishops themselves officiated, and the limits of their spiritual superintendence being co-extensive -with the habitations of the persons who resorted to their churches, those districts were eventually marked out and determined, which were afterwards called and known by the distinctive appellation of parishes ; though in the more early times it is probable that diocesis and parochia were terms applied to either division indiscriminately. Com. Dig. "Parish;" 3 Burn, Ecc. L. 74. Provinces, Dioceses, &c. — The ecclesiastical division of the kingdom is primarily into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops ; they are styled suffragans in respect of their relation to the archbishop of their province ; but formerly each archbishop and bishop had also his suffragan to assist him in conferring orders, and in other spiritual parts of his office within his diocese. These, in our ecclesiastical law, are called suffragan bishops. They should not be confounded with the coadjutors of a bishop, who are appointed, in case of the bishop's infirmity, to super- intend his jurisdiction and temporalities, neither of which was within the interference of the former. 1 Gibs. Cod. 1st ed. 155. The term suffragan bishop is now usually applied to an inferior order of bishops who assist the regular diocesans. Their election and consecration is regulated by 26 Hen. 8, c. 14, as amended by the Suffragans Nomination Act, 1888. By Order in Council other towns than those named in 26 Hen. 8, c. 14, may be taken and accepted for sees of bishops suffragans. 51 & 52 Vict. c. 56. It is lawful to nominate, present, and appoint as suffragan bishop a person already consecrated as a bishop. 61 & 62 Vict, c. 11. Before the Orders in Council founded on 6 & 7 Will. 4, c. 77, the province of Canterbury included twenty-one dioceses ; seven- teen of ancient foundation, viz., Rochester, his principal chaplain, London, his dean, Winchester, his chancellor, Norwich, Lincoln, Ely, Chichester, Salisbury, Exeter, Bath and Wells, Worcester, Lichfield and Coventry, Hereford, Llandaff, St. David's, Bangor, and St. Asaph, with four founded by Henry the Eighth, and erected from the ruins of dissolved monasteries, viz., Gloucester, SECT. I.] ORIGIN OF PARISHES. 3 Bristol, Peterborough, and Oxford. The province of York had four only, though anciently more : viz., Chester, Durham, Carlisle, and the Isle of Man, which was annexed to the province of York by King Henry the Eighth. By the Orders in Council above mentioned, the sees of Gloucester and Bristol were united, the archdeaconry of Coventry was transferred from the diocese of Lichfield to that of "Worcester, and the bishopric of Eipon was founded in the province of York. By the 10 & 11 Vict. c. 108, the diocese of Manchester was created ; and the extent of the dioceses of St. Asaph, Bangor and Chester defined. By 38 & 39 Vict. c. 34, the diocese of St. Albans was founded, and the boundaries of the dioceses of London, Winchester, and Rochester altered. By 39 & 40 Vict. c. 54, the bishopric of Truro was founded out of a part of the diocese of Exeter. By 41 & 42 Vict. c. 68, provision was made for the foundation of four new bishoprics as soon as the requisite funds for their endowment should have been provided. The proposed new bishoprics were Liverpool, Newcastle, Wakefield, and Southwell. These bishoprics have now been founded. Under the provisions of 47 & 48 Vict. e. 66, 57 & 58 Vict. c. 21, and 59 & 60 Vict. c. 29, the sees of Gloucester and Bristol were disunited, and the bishopric of Bristol recon- stituted in 1897. Every diocese is divided into archdeaconries, and each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction. Each deanery is divided into parishes, and parishes have recently, in many cases, been subdivided into district chapelries, consolidated chapek-ies, and ecclesiastical districts. Parish. — A parish for ecclesiastical purposes is that circuit of ground which is committed to the charge of one parson or vicar, or other minister having cure of souls therein. According to the civil law the expression "parish" in every Act of Parliament passed after the year 1866 means, unless the contrary intention appears, a place (in England or Wales) for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed. 52 & 53 Vict. c. 63, s. 5. It has been estimated that these civil parishes are 15,000 in number, and the ecclesiastical parishes 13,000. Extent. — It seems to be tolerably certain that the boundaries of parishes were originally ascertained by those of a manor or manors : since it very seldom happens that a manor extends b2 4 PARISHES. [CHAP. I. itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships ; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the main- tenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general ; and this tract of land, the tithes whereof were so appreciated, formed a distinct parish. Extra-parochial Places. — Besides those portions of the kingdom which thus became included in parishes, there were other lands which were never united to any parish, and were, therefore, extra-parochial. 1 Blachst. Com. 114. Some of these places have, by Act of Parliament, been formed into parishes or parochial districts ; others continue to the present day extra- parochial. Certain extra-parochial places are incorporated with adjoining parishes for all civil parochial purposes. 31 & 32 Vict. c. 122, s. 27. An army station is extra-parochial for ecclesiastical purposes. 31 & 32 Vict. c. 83. Union of Parishes. — For the purposes of local government several parishes are sometimes joined together to form one district; and, on the other hand, a large parish is frequently divided into a number of districts. The ecclesiastical divisions of parishes and the municipal boundaries are not altered by the formation of such districts. Section II. — Boundaries of Parishes. Boundaries Traditionary. — The boundaries of parishes in most instances depend upon ancient and immemorial custom, having been originally established according to the particular circumstances of the times or districts. Still. 243. They were settled long after the foundation of churches, and were after- wards much varied, and in many cases abridged and narrowed, as new churches were built. Lousley v. Hay-ward, 1 Y. & J. 586. Perambulations. — For a long period, a sufficient inducement to define the boundaries of parishes accurately did not present itself; but when it became part of the law to require the SECT. II.] BOUNDARIES OF PARISHES. 5 attendance of the people upon the services of religion at the parish church, and numerous civil duties were conferred upon them as parishioners, it then was felt to be of consequence to have the limits of each parish ascertained and settled. For this purpose, perambulations were made, and are, in some places, still continued. These perambulations, though of evident utility, were accompanied with great abuses. At length the irregu- larities and excesses committed on these occasions attracted the apprehension of the sovereign, for we find that processions, in the manner in which they had been performed, were forbidden by injunctions from Queen Elizabeth, though it was at the same time required, that for the retaining of the perambidations of the circuits of parishes, the people should, once in the year, at the time accustomed, with the curate and the substantial men of the parish, walk about the parishes as they were accustomed, and at their return to the church make their common prayers. The perambulations were formerly made annually in Rogation week, but now, if made at all, it seems they should be made triennially, for the expenses of perambulations incurred by the parish officers can only be charged to the poor rate, "provided the perambidations do not occur more than once in three years." 7 & 8 Vict, c. 101, s. 60. It is said in Goodday v. Michell, Cro. Eliz. 441 ; Owen, 72, that it is not to be doubted that parishioners may well justify the going over any man's lands in their perambulations, according to their usage or custom, and may abate all nuisances in their way. See F. N. B. 185; Vin. Ab. "Perambulation" But an entry into a particular house cannot be justified, or a custom to that effect supported, unless the house stands on the boundary line, and it is necessary to enter it for the purposes of the perambulation. Taylor v. Devey, 7 A. & E. 412. Boundaries of Archdeaconries and Rural Deaneries. — The Ecclesiastical Commissioners may, with the consent of the bishop of the diocese, alter the area of any archdeaconry or rural deanery and diminish the number of them and constitute any new area a rural deanery, provided that in the case of any such scheme every parish must in its entirety be within a rural deanery, and every rural deanery must in its entirety be within an archdeaconry, and an archdeaconry must not extend beyond the limits of one diocese. 37 & 38 Vict. c. 63. 6 PARISHES. [CHAP. I. Altering and Defining Boundaries of Parishes. — The County Council, with the sanction of the Local Government Board, and after certain notices, may alter or define the boundaries of parishes. 51 & 52 Vict. c. 41, s. 57. Section III. — Formation of New Parishes. 1. Under Church Building Acts. 2. Under Church Endowment Acts. The increase of population induced the Legislature, in the early part of this century, to grant facilities for the erection of new churches. It was an important part of the general scheme to give to the churches so established a peculiar district, in the nature of a separate parish, wherever it might be found expe- dient. The powers for this purpose were vested in the Commis- sioners for Building New Churches, whose powers were in 1857 transferred to the Ecclesiastical Commissioners. These Church Building Acts (1818 — 1884) are very numerous. There are also other Acts, called the New Parishes or Church Endowment Acts, 1843, 1844, 1856, 1869, and 1884, which give extensive powers for forming new parishes in popidous districts to the Ecclesiastical Commissioners. The Church. Building Acts, 1818 to 1884, and the New Parishes Acts, 1843 to 1884, do not extend to the Isle of Man. 60 & 61 Vict. c. 33. " The difference in principle between the Church Building and New Parishes Acts seems to be, that under the former the church is first built and then the parish divided ; while under the latter the new parish is formed first, and a minister set over it, leaving the church to be built afterwards. The procedure under the New Parishes Acts is that generally preferred." — Whitehead's Church Law, 1899. 1. Under Church Building Acts. It is not necessary to summarise the provisions of the Church Building Acts, 1818 — 1884. These provisions will be found in the "Index to the Statutes in Force," published b} T the Govern- ment every few years. The principle of these Church Building Acts is not to interfere with the old parish for civil purposes, but merely to form a new district for ecclesiastical purposes. SECT. III.] FORMATION OF NEW PARISHES. 7 As to pews and seats in churches built under the Church Building Acts, see post, p. 25. All the newly-constituted ecclesiastical divisions of this country- were, previous to the year 1843, made under some of the provi- sions of the Church Building' Acts, and there are still cases in which the division and subdivision of parishes for ecclesiastical purposes must be made under such provisions. But since the passing of the Church Endowment Act, 1843 (6 & 7 Vict. c. 37), parishes are more frequently divided under the provisions con- tained therein. 2. Under Church Endowment or New Parishes Acts. The Ecclesiastical Commissioners may constitute any part of a parish, chapelry, district, or extra-parochial place containing a large population, and where there is insufficient provision for public worship, a separate district for ecclesiastical purposes ; and upon a church or chapel being provided and consecrated, the district is to become a separate parish, and the minister, duly licensed, the perpetual curate thereof. 6 & 7 Vict. c. 37, ss. 9, 15, and 16 ; see also 7 & 8 Vict. c. 94. These Acts have been extended by the 19 & 20 Vict. c. 104, which enables the commissioners to constitute districts under the provisions of the former Acts, notwithstanding that there may be within the dis- trict a consecrated church or chapel. Sect. 1. Division of Parishes. — The Ecclesiastical Commissioners may also, under the authority of an Order in Council, divide any parish into two or more separate parishes for all ecclesiastical purposes, and fix and settle the respective proportion of tithes, glebe lands, and other endowments which are to arise, remain, and be within each of such divisions. The scheme for the division is to set forth the particular expediency of it, and how far it may be necessary in consequence thereof to make any alteration in ecclesiastical jurisdiction, and how the changes consequent on such division in respect of patronage, rights of pew-holders, and other rights and privileges, glebe lands, tithes, rent-charges, and other ecclesiastical duos, &c, may be made with justice to all parties interested, and is to contain directions and regulations relative to the duties and character of the incumbents of the respective divisions, and tho performance of the offices and ser- vices of the church in the respective churches thereof, and to the 8 PARISHES. [CHAP. I. fees to be taken for the same, and to any other matter or thing which may be necessary or expedient by reason or in consequence of such change. But such division is to be made only with the consent of the patron and of the bishop of the diocese, to be testified as provided by the 1 & 2 Vict, c. 106, ss. 126 and 128. And no such provision is to take effect until after the first avoidance then next ensuing of the church of the parish to be divided, unless with the consent of the actual incumbent thereof. Sect. 25. And they may also, with the consent of the bishop, patron, and incumbent, apportion any sum arising from a permanent endowment belonging to a parish church and applicable to the repairs or maintenance of any church within the limits of such parish. Sect. 31. New cures formed partly out of one diocese and partly out of another now form part of one diocese only. 35 & 36 Vict. c. 14. "Where any parish has been thus divided, or a new district or parish has been formed out of an existing one, the commissioners may make a division of the lands, tithe, or other endowments, and re-settle the same, as may be deemed expedient. Sect, 26. The powers and provisions contained in the New Parishes Act, 1844, for the alteration of the boundaries of any and every ecclesiastical district, are now applicable in all cases. 32 & 33 Vict. c. 94, s. 1. These powers may be exercised in the case of any district constituted under the New Parishes Acts, in which no church has been provided and consecrated, as well as in the case of a district which has become a new parish for ecclesiastical purposes. 47 & 48 Vict. c. 65, s. 3. Rights, &c. of New Parishes. — The incumbent of every new parish created under these Acts is, saving the rights of the bishop of the diocese, to have sole and exclusive cure of soids, and the exclusive right of performing all ecclesiastical offices within its limits for the resident inhabitants thereof, ivho are, for all ecclesiastical piirposes, to be parishioners thereof, and of no other parish ; and such new parish is, for the like purposes, to possess all the same rights and privileges, and to be affected with the same liabilities, as belong to a separate parish, and no others. But this is not to affect the legal liabilities of any parish regu- lated by a local Act of Parliament, or the security for any money SECT. III.] FORMATION OF NEW PARISHES. 9 legally borrowed under the Act of Parliament or otherwise. 19 & 20 Vict. c. 104, s. 15. Sects. 23 and 26 provide for the endowments of any parish district or benefice, and the church or chapel thereof. 28 Vict. c. 142, empowers rectors or vicars to sell tithes to district church, with the assent of the bishop and the patron of the rectory or vicarage. Every separate parish, when the division becomes complete, is to be a rectory, vicarage, donative or perpetual curacy, according to the nature of the original church of the parish so divided, and subject to the same jurisdiction and laws. Sect. 19. Offices of the Church to be performed. — All Acts, laws and customs, relating to publishing banns of marriage, marriages, christenings, churcliings, and burials, and the registering thereof, and to all ecclesiastical fees, oblations or offerings, are to apply to all districts, and consolidated or district chapelries, and divisions of parishes or extra-parochial places, whereof the boundaries are enrolled in Chancery under the provisions of the Church Building Acts, and in the churches and chapels whereof banns are allowed to be published, and marriages, christenings, churchings, or burials allowed to be solemnized, and to the churches and chapels thereof, and to the ecclesiastical persons having cure of souls therein, or serving the same, in like manner as if the same had been ancient, separate and distinct parishes and parish churches by law. 59 Geo. 3, c. 134, s. 17. See 8 & 9 Vict. c. 70, s. 10. As to pews and seats in churches built under the new Parishes Acts, see post, p. 26. The Ecclesiastical Commissioners may, if they think fit, upon application of the incumbent of any church or chapel to which a district belongs, with the consent in writing of the bishop of the diocese, make an order, under their common seal, authorizing the publication of banns of matrimony and the solemnization therein of marriages, baptisms, churchings, and burials, according to the laws and canons now in force in this realm ; and all the fees payable for the performance of such offices, as well as all the mortuary and other ecclesiastical fees, dues, oblations or offerings arising within the limits of such district, are to be payable and be paid to the incumbent of such district. 19 & 20 Vict. c. 104, s. 11. But fees reserved or of right belonging to incumbent or clerk of original parish shall be payable to such 10 PARISHES, [CHAP. I. incumbent till he vacates his incumbency or relinquishes such fees, or to such clerk until he vacates his office, or is compensated, and then to incumbent or clerk of new district. Sect. 12. The incumbent of the church of every parish or new parish for ecclesiastical purposes not being a rector, who is authorized to publish banns of matrimony in such church, and solemnize therein marriages, churchings, and baptisms, and is entitled to have the entire fees arising from the performance of such offices without any reservation thereout, is, for the purpose of style and desig- nation only, to be deemed and styled the vicar of such church and parish or new parish, and his benefice to be styled a vicarage. 31 & 32 Yict. c. 117. Patronage may be Assigned. — The patronage of an}- church or chapel to which a district is assigned, and of which the incum- bent of the original parish is patron by virtue of such incum- bency, or of any new parish formed under the New Parishes Acts, or of any existing parish or district having neither incum- bent nor patron, or of any benefice the patronage of which is vested in the Crown, or in the Chancellor of the Duchy of Lan- caster, or in the Duke of Cornwall, or of any benefice the patronage of which is vested in any ecclesiastical or lay corpo- ration, aggregate or sole ; provided that the permanent annual endowment of such benefices respectively does not exceed 100/. per annum, nor the annual income of the same from all sources 250/. per annum (such income to be calculated as provided by the 1 & 2 Vict. c. 106, s. 8, and when any portion of such income shall arise from j>ew-rents, the value of such portion shall be calculated upon an average of the three years last preceding), may be assigned either in perpetuity or for one or more nomi- nations. 19 & 20 Yict. c. 104, s. 16. But the commissioners may not assign such patronage in per- petuity for any less consideration than the building the church and providing for the endowment the annual sum of at least forty-five pounds, or the permanent endowment of 150/. annually, or some benefaction which would be equivalent. Sect. 17. Such assignment is to be made with the consent of the patron, to whom notice is to be given. Sects. 18, 19. The consent of the patron of a benefice in the incumbent of which the patronage of the new benefice is for the time being SECT. III.] FORMATION OF NEW PARISHES. 11 vested is not required. Notice must be sent to him, and he can claim compensation. 32 & 33 Vict. c. 94, s. 10. Trustees (not to exceed five) are to ho appointed, to whom the patronage may be assigned. 19 & 20 Vict. c. 104, s. 24. Such an assignment is not simoniacal. 32 & 33 Vict. c. 94, ss. 12, 13. Patronage not to be Sold. — Whenever the right of patronage is, pursuant to the above provisions, vested in perpetuity in any body of persons by reason of their having augmented the endow- ment, and wherever the benefice is, at the time of the transfer of patronage, already permanently endowed with an annual sum of not less than 100/., or wherever its annual income from all sources, calculated upon an average of three years immediately preceding the augmentation, amounts to 150/., no subsequent sale, assignment or other disposition of the patronage is to be made for a valuable consideration for thirty years after the transfer, unless the entire proceeds bo legally secured to the further permanent augmentation of such benefice ; and every such sale, &c, is declared illegal, and the presentation, &c, thereupon void, and the right of patronage is to lapse to the bishop. Sect. 21. Temporary Assignment of Patronage. — The commissioners may, until the conditions relating to the assignment of the patronage in consideration of an endownment have been com- plied with, assign the patronage to the then incumbent of the original parish out of which such new parish shall have been taken, for the term of his incumbency ; and if such parish shall have been formed out of more than one parish, then to one or other of the then incumbents of such parishes, for the term of his incumbency, as they shall think fit. Sect. 22. Power to dissolve District. — Where a district has been con- stituted under any of the New Parishes Acts, but a church has not been provided, the district may be dissolved and incorporated in another parish. 47 & 48 Vict. c. 65. Meaning of Parish, &c. — The expression "parish, district, or place," in these Acts means and includes any ancient or dis- tinct and separate parish, district parish, chapelry, district chapelry, consolidated chapelry, or extra-parochial place ; and the word " extra-parochial place " includes any township, vill, village or hamlet being extra-parochial. 19 & 20 Vict. c. 104, s. 33. See ante, p. 3. 12 PARISHES. [CHAP. I. Section IV. — Paeishionebs. Definition. — " Parishioner" is a very large word, and includes not only inhabitants of the parish, hut persons who are occupiers of lands and pay the several parochial rates and duties, though they are not resident, nor do contribute to the ornaments of the church. Inhabitants. — "Inhabitants" is still a larger word : it takes in housekeepers, though not rated to the poor, and also persons who are not housekeepers ; as, for instance, those who have gained a settlement, and by that means become inhabitants. The word "inhabitant" varies in its import, according to the subject to which it is applied. R. v. Mashiter, 6 A. & E. 153 ; Chilton v. Corporation of London, 7 Ch. D. 7.05. In Webb y. Fear on, 14 Ves. 22, the words "inhabitants and parishioners" were held to mean inhabitants being parishioners. There the chiefest and discreetest of the inhabitants and parish- ioners were to nominate to a vicarage, and it was decided that the right must be confined to ratepayers. Generally an occupier is an inhabitant for all purposes of pecuniary charge ; as the repairs of the highways by the common law, or the repair of bridges by the statute 22 Hen. 8, c. 5, if not by the common law. Lord Coke, in his commentary on this statute (2 Inst. 702), after observing that the word "inhabitant" is the largest word of the kind, and describing all occupiers as inhabitants within the meaning of the statute, says that servants are not within the statute. Casual sojourners seem not to come within either of these descriptions. Holledge's Case, 2 Poll. Pep. 238. Where, under a scheme sanctioned by the Court for a charity entitling a parish to elect children for Christ's Hospital, it was provided that no child should be eligible unless born in the parish, or unless his or her parents, or one of them, should be or should have been parishioners, it was held that the word "parishioner" must be taken in its ordinary sense of a person occupying premises which are liable to be rated in the parish. Therefore, where a man took a house temporarily, before the election, for the purpose of obtaining a qualification for his son, for which he paid rent and rates, and his son was elected by the parishioners, it was held that the qualification was good and the election valid. Ether- ington v. Wilson, 1 Ch. D. 160; 45 L. J. Ch. 153. CHAPTEE II. CHURCHES. PAGE SECTION I. Founding of Churches 13 II. Chancel 17 III. Body of the Church 18 IV. Pews and Seats — 1. In old Parish Churches 20 2. Under Church Building Acts, §-c 25 V. Goods and Ornaments of the Church 28 VI. Repairs and Alterations of the Church 35 VII. Dilapidations 36 VIII. Churchyards 39 Section I. — Founding of Churches. Manner of Founding. — The ancient manner of founding churches, after Christianity had become established in the king- dom, was for the founders to make application to the bishop of the diocese, and when his licence had been obtained, the bishop or his commissioners fixed up a cross and set forth the ground where the church was to be built ; and then the founders pro- ceeded with the building, and when the church was finished and was endowed, and not till then, the bishop consecrated it. Hegge, Ft. I. c. 12. Consecration. — In the Church of England every bishop is left to his own discretion as to the form of consecrating churches and chapels. The form almost always used is the one sent down by the bishops in 1712 to the lower house of convocation. Wakes. — From the dedication of churches fairs and wakes originated, to commemorate the munificence of those who had founded and endowed them. It was on this account that fairs were generally kept in churchyards, and even in the churches, till the indecency and scandal became so great as to require a reformation. 14 CHURCHES. [CHAP. II. Conveyance of Property for Churches. — The number of churches was augmented from time to time, chiefly by the piety of individuals, till the practice of bequeathing their property to pious uses was encouraged by the priests to such an alarming extent, that the Statutes of Mortmain were passed to prevent the continuance of the evil. Within the present century, however, several Acts of Parliament have been passed, authorising the gift, by deed or will, of land to the extent of five acres, or other property not exceeding 500/. towards erecting, rebuilding, or providing any church or chapel, where the liturgy and rites of the Church of England are observed, or any house of residence, &c, &c. 43 Geo. 3, c. 108; 51 Geo. 3, c. 115. And a con- siderable addition has since been made under the powers of the 58 Geo. 3, c. 45 ; 59 Geo. 3, c. 134 ; and 3 Geo. 4, c. 72, through the agency of commissioners appointed to examine into the state of parishes, and to ascertain the means of church accommodation. The 5 Geo. 4, c. 103, and the 1 & 2 Will. 4, c. 38, extended by 1 & 2 Vict. c. 107, give power to persons willing to build churches by subscription, or partly by subscription and partly by rates, to do so without the concurrence of the Ecclesiastical Commissioners, if the consent of the bishop, and that of the in- cumbent and patron, where necessary, are procured. See also 2 & 3 Will. 4, c. 61 ; 2 & 3 Vict. c. 49 ; 3 & 4 Vict. c. 60 ; 8 & 9 Vict, c. 70. Any corporation (45 & 46 Vict. c. 21) or owner of land may give or convey any quantity not exceeding one acre, and not being part of a demesne or pleasure ground attached to any mansion-house, as a site for a church, or for the residence of a minister, or for a burial place, or any number of such sites, provided that each such site does not exceed one acre. If the land so conveyed ceases to be so used it is to revert. 36 & 37 Vict. c. 50, s. 1. Persons under disabilities are empowered to convey land for the same purpose. Sect. 3. Parochial property shall not be so granted without the consent of a majority of the ratepayers and owners of property in the parish to which the property belongs, assembled at a meeting to be convened according to the mode pointed out in 5 & 6 Will. 4, c. 69, the effect of which appears to be that three days' notice of the place and hour of the meeting and the special purpose thereof must be affixed on the principal door of the church of the parish. SECT. I.] FOUNDING OF CHURCHES. 15 The consent is also required of the Local Government Board and of the guardians of the poor of the parish, or of the union comprising the parish, testified by their being parties to the conveyance. 45 & 46 Vict. c. 21. And the Ecclesiastical Commissioners may act as trustees of any sites given under the Act for the purposes of the Church Budding Acts. 36 & 37 Vict. c. 50, s. 5. The freehold of any church or chapel, consecrated or unconse- crated, which, by virtue of any Act of Parliament or deed, is vested in any person, maybe absolutely transferred and conveyed to the commissioners by deed made without consideration. Upon such surrender all rights conferred as to such church are to cease. 32 & 33 Vict. c. 94, ss. 6, 7. The Trustee Appointment Act, 1890, applies to land when such land is held in trust for a place for religious worship, or for the expenses connected therewith, or for a burial ground, or minister's house. 53 & 54 Vict. c. 19, s. 2. A considerable change has been effected in the law of mort- main by Mortmain Acts, 1888 and 1891, but they exempt from their operation the Governors of Queen Anne's Bounty and the Ecclesiastical Commissioners. Church Trustees. — Trustees may be appointed in any parish for the purpose of accepting by bequest, donation, contract, or otherwise, and of holding any contributions which may be given to them for ecclesiastical purposes in the parish. The trustees are to be the incumbent, and two householders or owners or occupiers of land in the parish to be chosen, one by the patron, and the other by the bishop of the diocese. The trustees may pay over to the churchwardens to be applied by them either to the general ecclesiastical purposes of the parish, or to any specific ecclesiastical purposes of the parish, any f nnds in their hands, and the funds so paid over are not to be applied to any other purpose, provided that further powers are thereby conferred on churchwardens with regard to the ecclesi- astical purposes of the parish than they are by law entitled to, and provided also that due regard is had to the directions of the donors of funds contributed for any special ecclesiastical purposes. The trustees havo powers of investment, and are obliged 16 CHURCHES. [CHAP. II. annually to account to the vestry for their receipts and expendi- ture during the preceding year. 31 & 32 Vict. c. 109, s. 9. Queen Anne's Bounty. — Queen Anne, by royal charter, gave up in perpetuity the revenues in first-fruits and tenths, amount- ing to about 17,000/. a year, for the augmentation of poor livings, and thus restored to the church what had been indirectly taken from it. This charter was confirmed by the statute 2 & 3 Anne, c. 11, under which a corporate body, still existing, known as the "Governors of Queen Anne's Bounty," was formed. The governors make advances for the following purposes : — For the augmentation of poor livings ; to incumbents for repairs, buildings, buying land, &c. The governors will make grants of from 100/. to 200/. to increase private benefactions for the augmentation of livings of not less than 45/. and not more than 200/. a year. The time for the repayment of loans granted by the Governors of Queen Anne's Bounty is extended by 49 & 50 Vict. c. 34. See also Incumbent of Benefices Loans Extension Act, 1896 (59 & 60 Vict. c. 13). Chapels of Ease. — Many chapels of ease have become in effect churches under the provisions of the Church Building Acts. Parish churches may become chapels of ease under the Acts where, from local circumstances, it may be thought advisable to convert an existing chapel of ease into a parish church. 1 & 2 Vict. c. 107, s. 61. District chapels may become churches of separate parishes. 58 Geo. 3, c. 45 ; 3 Geo. 4, c. 72, s. 16. A bishop cannot consecrate a chapel of ease, or authorize a person to preach in it, without the consent of the incumbent. Dixo?i v. Kershaw, 2 Amb. 528 ; Farnicorth v. Bishop of Chester, 4 B. & C. 555. But the vicar of a parish is not entitled, as such, to present to any consecrated chapel in his parish, unless such chapel is a chapel of ease. MacAllister v. Bishop of Rochester, 5 C. P. D. 194. Private Chapels. — The bishop of the diocese within which any chapel belonging to any college, school, hospital, asylum, or public or charitable institution is situated, whether consecrated or unconsecrated, may license a clergyman of the Church of England to serve such chapel and administer therein the sacra- SECT. I.] FOUNDING OF CHURCHES. 17 ment of the Lord's Supper, and perform such other offices and services as shall be specified in such licence, provided that the bishop shall not include in any such licence the solemnization of marriage, and may revoke the licence at any time. 34 & 35 Vict. c. 66, s. 1. The minister officiating in such chapel is, in respect to the performance of the offices and services of the church specified in such licence, subject to no control or interference on the part of the incumbent of the parish or district in which such chapel is situate; but this is not to prejudice or affect the right of such incumbent to the entire cure of soids throughout such parish or district elsewhere than within such institution and the chapel thereof. Sect. 2. The offertory and alms collected in any such chapel are to be disposed of as the minister thereof shall determine, subject to the direction of the ordinary. Sect. 3. Proprietary Chapels. — Proprietary chapels are anomalous, being unknown to the constitution of the Church of England ; and can possess no parochial rights. Most of these chapels are unconsecrated. Section II. — Chancel. Whence so called. — Chancel, cancellus, seems properly to be so called from the lattice-work partition betwixt the choir and the body of the church, so framed as to separate the one from the other, but not to intercept the sight. 1 Burn, Ecc. L. 341. To whom it bslongs. — The freehold of the chancel is in the rector or impropriator, and the burthen of repairing it is, as a general rule, cast upon him, as the burthen of repairing the body of the church is cast upon the parishioners. But in London and other large towns there exists a custom for the parishioners to repair. Prid. Ch. 91. A lay rector is not entitled, as of right, to make a vault or affix tablets in the chancel without leave of the ordinary ; for although the freehold of the chancel may be in the rector, yet the use and enjoyment of it belongs to the parishioners. Rich v. Bushnell, 4 Hagg. 164. The circumstance that the freehold of a chancel, or aisle, form- ing part of the church, may be in the rector of the parish does not annul the right of a person to its exclusive use, if built and repaired by him and his ancestors from time immemorial, and s. c 18 CHURCHES. [CHAP. II. used as place of burial and for hearing divine service. Chur- ton v. Frewen, L. E. 2 Eq. 634 ; 36 L. J. Cli. 660. The freehold of a chapel or lesser chancel may be vested in a private person, though such chapel or chancel forms an integral portion of, and is under the same roof with a parish church. Chapman v. Jo?ies, L. E. 4 Ex. 273; Duke of Norfolk v. Arbuth- not, 5 C. E. D. 390 ; 49 L. J. Q. B. 782. The enjoyment of such chapel or chancel, and the right to its exclusive use, is not necessarily annexed to a dwelling-house. Id. Seats in Chancel.— In Clifford v. Wicks, 1 B. & Aid. 498, Bayley, J., says the general rule is, that the rector is entitled to the principal pew in the chancel, but that the ordinary may grant permission to other parishioners to have pews there. And see Morgan v. Curtis, 3 M. & Eyl. 389 ; Spry v. Flood, 2 Curt. 353. As to seats for the parson and his family in churches built under the Church Building Acts, see post, p. 25. Sectiox III. — Body of the Church. Nave. — The word nave is derived from the word navis, signi- fying a ship, and comes through the French "nef," which means both a ship and the nave of a church. It is the body or middle part of the church, extending from the west end to the transept or choir. See Skeat, Etym. Diet. s. v. Nave ; Littre, Diet. s. v. Nef. To whom it belongs. — The question of whether the freehold of the nave or body of the church (apart from the chancel) is in the lay rector or vicar is doubtful, but it is not of much practical importance. Though the freehold of a parish church may be in a lay rector, the right of the possession of the church is in the minister and churchwardens. Griffin v. Deighton, 33 L. J. Q. B. 181. Under Church Building Acts.— The freehold of the site of every church to which the provisions of the Church Building Acts apply vests in the incumbent for the time being of such church. 8 & 9 Vict, c. 70, s. 13. Under Church Endowment Acts.— The freehold of the site of the church of any new parish created under the Church Endow- SECT. 111.] BODY OF THE CHURCH. 19 ment Acts, as well as that of the churchyard, burial ground, and vaults, is vested in the incumbent, unless already vested in any vestry under a local Act, in which case the assent of such vestry is required before the site vests in the incumbent. 19 & 20 Vict. c. 104, s. 10. Aisle. — The lateral divisions of a church or of any part of it, as nave, choir, or transept, are called its aisles. The word is said to be derived from the French aile (ala), a wing ; as the Norman churches were built in the form of a cross, with the nave and two wings. Aisle may be Private Property. — As the chancel seems to be peculiarly the part of the church in which the incumbent or parson has an especial interest, so the aisle is frequently dis- tinguished as belonging either wholly or in part to private families or individuals, or rather to particular estates within the parish, the owners of which, it is presumed, originally erected the aisle for the accommodation of their household, and their successors in the estate claim it as appurtenant to the ancient mansion or dwelling-house. But in order to complete this exclu- sive right, it is necessary, not only that it should have existed immemorially, but that the owners of the mansion, &c, in respect of which it is claimed, shoidd have from time to time borne the expense of repairing that which they claim as having been set up by their predecessors. 3 Inst. 202. Thus an aisle in a church, which hath time out of mind belonged to a particular house, and been maintained and repaired by the owner of that house, is part of his frank tenement, and the ordinary cannot intermeddle therewith. But it is otherwise if he hath only used to sit and bury in the aisle and not repaired it ; for the constant sitting and burying, without reparation, doth not gain any pecu- liar property therein ; but the aisle being repaired at the common charge of the parish, the common right of the ordinary takes place, and he may, from time to time, appoint whom he pleaseth to sit there. Gibs. 197; Frances v. Ley, Cro. Jac. 366 — 604. Residence in the parish is not necessary to this right. Gibs. 198. But no such title can be good, either by prescription or upon a new grant, by faculty from the ordinary to a man and his heirs ; but the aisle must always be supposed to be held in respect of a house, and will always go with the house to him who inhabits it. Hussey v. Leiyhion, 12 Rep. 106 ; Crook v. Sampson, 2 Keb. 92 ; c2 20 CHURCHES. [CHAP. II. 2 Bulst. 150 ; Barrow v. Keen, 1 Sid. 361 ; see Churton v. Freicen. L. E. 2 Eq. 634 ; 36 L. J. Cli. 660. Seats in Aisle. — A seat in an aisle may be prescribed for by an inhabitant of another parish. Gibs. 198; Fuller v. Lane, 2 Add. E. 427 ; Barrow v. Keen, 1 Sid. 361. Or as appurtenant to a house out of the parish : Davis v. Witts, Forrest, B. 14 ; though not a seat in the nave of a church : Lousley v. Hat/ward, 1 Y. & J. 583. This case seems to throw doubt upon the proposition that an inhabitant out of another parish can prescribe for a seat even in an aisle. Sectiox TV. — Pews axd Seats. 1. In old Parish Churches. By whom Erected and Repaired. — The general charge of erecting seats in churches, and of keeping them in repair, lies upon the parishioners, unless they be relieved by any particular person being chargeable by prescription to rebuild or repair the same. Degge, Pt. 1, c. 12. Right to Seats. — By the general law, and of common right, all the pews in a parish church are the common property of the parish ; they are for the use, in common, of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. Accordingly, the churchwardens are bound in particular not to accommodate the higher classes beyond their real wants, to the exclusion of their poorer neighbours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation, supposing the seats not to be all equally convenient. Fuller v. Lane, 2 Add. E. 425. Upon a person quitting the parish, the right to use a seat in the body of the church, whatever was the nature and origin of that right, is at an end, because he has ceased to be a parishioner, lb. ; Byerley v. Windus, 5 B. & C. 18. Every parishioner has a right to a seat in the church without any payment, either for the purchase or as rent for the same ; and, if necessary, occupiers of pews who are not parishioners, having no prescriptive right therein, may be put out by the churchwardens to enable them to seat parishioners. Members of the Church of England are obliged, under pain of spiritual censure, to attend church ; they have, therefore, a right to attend SECT. IV.] PEWS AND SEATS. 21 their pariah church. The churchwardens have the duty of allotting scats, but have no right to exclude a parishioner, though they are of opinion that he cannot conveniently have a seat. Taylor v. Timson, 57 L. J. Q. B. 216. Pew rents are illegal except when authorized by, or under, a power given by statute. Galleries and additional Seats. — When the number of parishioners increase, so that the seats are insufficient to aceom- modate all who apply for them, the parish is bound, and may be comjielled by ecclesiastical censures to provide against these inconveniences ; and, therefore, a faculty to erect a gallery in the parish church will be granted if more accommodation is required. Groves v. The Rector of Hornsey, Sfe., 1 Hagg. P. 188 ; Evans v. Slack, 38 L. J. Ecc. 38. See Peek v. Troicer, 7 P. D. 21, post, p. 36, as to when a faculty for alterations in the parish church will be granted or refused. In that case Lord Penzance, in refusing to grant a faculty for alterations which consisted in lowering the pews and in refixing the backs of the pews so as to render them more comfortable for the occupants, said : " The question as to whether high pews (and they are not very high) with doors to them, or pews some nine or eleven inches lower without doors to them, constitute the preferable way of arranging the sittings in a church, when there is abundance, and more than abundance, of room for everybody, is one about which people will differ largely. . . . It is precisely one of those matters upon which the general opinion of the parishioners ought to have the greatest possible weight with the Court." Distribution of Seats. — In the absence of any custom to the contrary, the distribution of seats rests with the ordinary or bishop, who may place and displace whomsoever he pleaseth. 2 Boll. Abr. 288. Neither the minister nor the vestry have any right whatever to interfere in seating and arranging the parishioners, as often erroneously supposed. The churchwardens are the persons who, as the officers of the bishop, have a general authority from him to act in seating the parishioners, and they are subject to his control, if any complaint is made against them. Pettman v. Bridyer, 1 Phill. Ecc. Ca. 323; see Reynolds x. Monkton, 2 M. & Rob. 384. The rule that the general disposal of the scats appertains to the churchwardens must receive some limitation where the seats are all movable, or where 22 CHURCHES. [CHAP. II. chairs alone are in use. Ritchings v. Cording let/, L. E. 3 A. & E. 113. It seems that the churchwardens of a church built under the Church Building Acts may, in seating the parishioners in seats in the church not appropriated to pew-renters or allotted as free seats by the ecclesiastical commissioners, give a preference to applicants who voluntarily subscribe to a fund for church im- provements and expenses. Churchwardens iVestgate-on-Sea v. Parishioners of the same, [1898] P. 217. See further as to the powers of churchwardens with reference to seating the congrega- tion, post, p. 112. Where a Church is rebuilt or enlarged. — Whenever, from the increase of the population, or the dilapidated state of the struc- ture, it is determined either to pull down the church or enlarge it, or to make a new arrangement of the pews and sittings, the consent of the inhabitants in vestry should, as a matter of prudent precaution, be first obtained. This having been done, the churchwardens should obtain a faculty from the bishop empower- ing them to carry into effect the wishes of the parishioners, and if necessary a commission may issue directed to two or three clergymen, and the same number of laymen, named by the church- wardens, resident in the neighbourhood, but having no interest in the parish, authorising them to allot and appropriate the sittings. See 8 & 9 Vict. c. 70, s. 1. This they are generally directed to do in a certain order: l>t. Those who had, before the issuing of the commission, seats by faculty or prescription are to have others allotted to them as appurtenant to the same houses, as near as may be to the site of their former seats; 2nd. Those who have contributed by their subscriptions to the building, enlargement or repairs, or who have actually occupied seats, though not by faculty or proscription, are to have sittings according to the amount of their subscriptions, their quality, and the number of their families, but only so long as they continue to abide in the parish and habitually resort to church ; 3rd. To the rest of the inhabitants according to their station and requirements, and on the same tenure. The commission directs what notice shall be given by the com- missioners of the time and place of their meetings, and as soon as the church is in such a state of forwardness as to enable them to judge of the comparative advantages of the different sittings, they give the requisite notice and proceed to receive the claims, with SECT. IV.] PEWS AND SEATS. 23 a plan of the church before them. The churchwardens and parish clerk, or other old inhabitant, should he present for the guidance and assistance of the commissioners. Those who have a faculty to show, which is rarely the case, are of course entitled to an equivalent for the seats they have given up, or as nearly so as may be. In disposing of the other claims the commissioners of course regard, as far as possible, the wishes of the applicants in respect of the locality of their sittings. Allotting Free Seats. — When a grant has been obtained from a church-building society in aid of the reseating a church, it is always required, as a condition attached to the grant, that a certain number of sittings shall be reserved for the use of the poorer inhabitants. These are not allotted to individuals by the commissioners, but the particular seats are described in the allot- ment, and a mark, " Free Sittings," is placed upon them. These seats ought to be as advantageously situate as those allotted to the better class of inhabitants. See 19 & 20 Yict. c. 104, s. 6, post, p. 25. It is convenient to reserve one or two benches, near the pulpit and reading desk, for the aged and infirm poor, and these should, in practice, be placed at the disposal of the clergy- man. In Groves v. The Rector of Homsey, 1 Hagg. R. 188, it was objected against building a gallery to accommodate parishioners who had applied for seats, that the churchwardens might put different families into the same pew, as the pews were not appro- priated by any faculty and would afford more sittings than were then occupied ; but Lord Stowell said they might be appropriated by prescription or by possessory right on allotment by the church- wardens ; and a prescriptive title cannot be altered by any au- thority, nor a possessory title by the churchwardens alone, though it may be by the ordinary. And he intimated that, unless there was ample room, it woidd be improper to put individuals of different families in the same pews, which might produce con- tention and inconvenience. See also Tattersali v. Knight, 1 Phil. Ece. Ca. 232. Customs as to ordering Seats. — By custom the churchwardens may have the ordering of the seats, as in the city of London. Wats. c. 39. A custom, time out of mind, of disposing of seats by the churchwardens and major part of the parish, or by twelve 24 CHURCHES. [CHAP. II. or any particular number of the parishioners, is good, and if the ordinary interpose, a prohibition will be granted. Gibs. 198 ; Presgrove v. Shrewsbury, 1 Salk. 167. Exclusive Right to Pew. — But both the ordinary and the churchwardens may be excluded from, exercising any right in the disposal of a pew, where an individual has acquired an absolute and exclusive right therein. To exclude the jurisdiction of the ordinary, it is necessaiy that the person claiming a pew should show a faculty or a prescription, which supposes a faculty to have existed time out of mind, the faculty itself being lost. Tat- ter sail v. Knight, 1 Phil. Ecc. Ca. 237. By the general law there can be no property in pews. The ordinary may grant a pew to a particular person, while he resides within the parish, or there may be a prescription from which a faculty is presumed ; but as to personal property in a pew, the law knows of no such thing. Hawkins v. Compiegne, 3 Phil. Ecc. Ca. 16. By Faculty. — Faculties appropriating certain pews to certain individuals, in different forms, and with different limitations, have been granted in former times with too great facility. By Prescription. — To support a prescriptive right to a pew, there must be some evidence from which a faculty can reason- ably be presumed. The strongest evidence of the kind is the building and repairing time out of mind ; mere repairing for thirty or forty years will not exclude the right of the ordinary. The possession must be ancient, and going beyond living memory, though not extending to legal memory. Per Lord Stowell, Walter v. Gunner, 1 Hagg. E. 322. In Phillips v. Halliday, [1891] A. C. 229; 61 L. J. Q. B. 210; 64 L. T. 745, it was held that a faculty for a pew annexed to a dwelling-house might be presumed on evidence of exclusive possession and repair for a long period. A conclusion adverse to the pew owner is not to be drawn from the fact that no repairs have been done where no repairs have been required. Crisp v. Martin, 2 P. D. 28. The Prescription Act is said not to apply to a pew. Crisp v. Martin, supra; Proud r. Price, 68 L. T. 682. Seat goes with House. — A seat or pew in the nave or body of the church may be prescribed for, as belonging to a house ; and the occupier of the house for the time being is entitled to the use SECT. IV.] PEWS AND SEATS. 25 of the pew, and not the owner of the estate ; and it may he transferred with the messuage. Woollocombe v. Ouldridye, 3 Add. R. 6. The right to use a pew may he apportioned, and in consequence of a house heing subdivided several families may become entitled to use a pew belonging to the original messuage. Harris v. Drue, 2 B. & Ad. 167. 2. In Churches built under Church Building and Endoivment Acts. The Church Building Acts make provisions as to pews and seats in churches built under the provisions of those Acts subse- quently to the year 1818. Pew rents may be authorized by the Ecclesiastical Commissioners when they make a grant in aid towards building a church under those Acts. "Without such grant pew rents cannot be taken. It should be noted that "pews are to be let to parishioners only, and privately, rents payable in advance." 59 Geo. 3, c. 134, s. 32. Seats for Minister. — Prior to the consecration of any church built under the provisions of the Church Building Act, 1818, a seat or pew, sufficient to hold six persons at least, is to be set apart in the body or ground floor of the church, near the pulpit, for the use of the minister and his family ; and other seats, not among the free seats, for not less than four persons, for the minister's servants. 58 Geo. 3, c. 45, s. 75. Free Seats. — Pews, sittings, or benches in every such church or chapel, marked with the words '■'■free seats," amounting to not less than one-fifth of the whole sittings in every such church, shall be appropriated for the use of poor persons resorting thereto for ever, upon which pews or sittings no rent shall be charged. 58 Geo. 3, c. 45, s. 75. There is no restriction as to any larger proportion than one-fifth of the whole sittings being appropriated for free sittings. The Church Building Acts contemplate a gradual restoration of the system of freedom of seats, and greater facilities are afforded for the same object by 32 & 33 Vict. c. 94, which provides for the surrender of private pews or sittings to the bishop or the Eccle- siastical Commissioners. Such surrender is to be by deed, sect. 3 ; and after the surrender of such pews or sittings they are to be subject to the same laws as to all rights and property therein as tho pews and sittings of ancient parish churches. Sect. 5. 2G • CHURCHES. [CHAP. II. Pews to be Let. — Subscribers, being parishioners, are to have choice of pews at rates to be fixed. Sect. 76. Pews may be let or assigned to parishioners. 59 Geo. 3, c. 134, s. 32 ; 3 Geo. 4, c. 72, s. 23. Pew Rents. — The commissioners may fix the rents of pews to be let, and the produce is to form a fund, out of which provision is to be made for the spiritual person who is to serve the church or chapel, and a clerk ; the stipend is to be assigned by the commissioners, with the consent of the bishop. 58 Geo. 3, c. 45, s. 63; and see 59 Geo. 3, c. 134, s. 6. By sect. 26 of the latter Act, in the case of a church or chapel built, acquired or appro- priated under its provisions, or under 58 Geo. 3, c. 45, the com- missioners may direct that the pew rents shall be assigned to the parish or district ; and the churchwardens shall thereout pay the stipend assigned to the minister or clerk. But the sum to be paid to the minister and clerk is not to exceed the rent for which the pews were let during the preceding year. See also 5 Geo. 4, c. 103, s. 5. These enactments constitute not merely the relation of trustees and cestui que trust between the churchwardens and the minister, but they impose on the churchwardens the legal duty of paying over the pew rents applicable to the minister's stipend as soon as they are received, and the minister has there- fore a right of action at law on the statute, or for money received, against the churchwardens, in the event of their not performing that duty. Lloyd v. fiurrup, L. B. 4 Ex. 63 ; 38 L. J. Ex. 25. A mortgage by a vicar of the pew rents of a district church established under the Church Building Acts is void under 13 Eliz. c. 20. Ex parte Arroivsmith ; In re Leveson, 8 Ch. D. 96 ; 47 L. J. B. 46. Under Church Endowment Acts. — In churches built and en- dowed under the provisions of the first Church Endowment Act there was no provision as to pew rents. But now, if it appears to the Ecclesiastical Commissioners that sufficient funds cannot be provided from other sources, but not otherwise, they may, with the consent of the bishop order pew rents to be levied by the churchwardens according to a scale which may be altered by the commissioners from time to time. The proceeds, not other- wise appropriated by law, are to be ajrplied for repairs of the church, and maintenance of the minister, and the services thereof, and the endowment thereof in manner specified in such instru- SECT. IV. J PEWS AND SEATS. 27 nient, and to no other uses. But half, at least, of the sittings are to be free, and such free seats are to be as advantageously situate as those for which a rent is reserved. 19 & 20 Vict. c. 104, s. 6. Upon a permanent endowment being- provided for any church in which pew rents have previously been authorised to be taken, and on such endowment being approved by the commissioners they may, by such instrument and with such consent as aforesaid, make an equivalent reduction in the total amount of pew rents, if they are not appropriated for specific purposes, either by reducing the scale, or declaring certain specific sittings to be free. But this reduction is not to take place until after the payment of all sums borrowed under the authority of an Act of Parliament, or Order in Council, on the security of the pew rents. Sect. 7. The scale of pew rents may be altered with consent of the bishop ; but no alteration affecting the emoluments of the incum- bent is to take effect until the next avoidance of the benefice, without his consent. Sect. 8. Revoking provision as to Pew Rents. — "Where a church or chapel has been constituted the parish church of a parish, in the stead of the ancient parish church, under s. 18 of 1 & 2 Vict. c. 107, and provision has been made for the maintenance of the ministers and clerks of the respective churches, or either of them, out of the pew rents of either of such churches, the Ecclesiastical Commissioners may, with the consent of the bishop and of every patron and minister affected thereby, revoke in whole or part or in any way alter the deed or instrument making such provision. 47 & 48 Vict. c. 65, s. 4. Church Seats Act, 1872. — The Ecclesiastical Commissioners may accept a church site under a grant in which it is declared that the pews or seats, or some portion of them, shall not be let. 35 & 36 Vict. c. 49, s. 2. Where it is declared that no portion of sittings shall be let, a sufficient endowment or stipend of not less than 100^. per annum must be secured to the incumbent, and where a portion only of the sittings are not to be let, an endow- ment or stipend of such amount as the commissioners may determine. Sect. 3. Where New Church substituted. — If a new church built in a 28 CHURCHES. [CHAP. II. parish or district parish is substituted for the old parish church, the bishop may, or may be required to, issue a commission to the archdeacon, and two incumbents of parishes in the archdeaconry, and two laymen nominated by the churchwardens of the old church (not claiming any pew or seat in the old church), and such commissioners are to inquire into the rights of persons claiming to hold pews, &c, rent free by faculty or prescription, and examine such claims, and to send to the bishop the names of those who have substantiated claims ; and the bishop, if satisfied, is to assign them seats in the new church. 8 & 9 Vict. c. 70, s. 1. Parties to give up Sittings in the Old Church. — All persons resident within the limits of any now parish or district formed under the Church Building Acts, or to be formed under the New Parishes Acts, who have claimed and had assigned to them sit- tings in the church of such new parish, are thereby to surrender, as to any right that they possessed, an equal number of sittings in the church of the original parish or other ecclesiastical district out of which such parish shall have been taken, unless such sit- tings are held by faculty, or under Act of Parliament. 19 & 20 Vict, c. 104, s. 5. On Union of Benefices. — Upon any union of benefices the bishop by faculty may alter and re-adjust the seats and the appropriation thereof in the church of the united or separate benefice, so that not less than one-half of the sittings be left un- appropriated ; and all such seats, whether appropriated or free, are to be made, as near as possible, of the same size and general appearance. 34 & 35 Vict. c. 90, s. 7. Section V. — Goods and Ornaments of the Chujich. Ornaments in general. — It was enacted by the 1 Eliz. c. 2, s. 25, that "such ornaments of the church, and of the ministers thereof, shall be retained, and be in use, as were in the Church of England by authority of Parliament in the second year of the reign of King Edward the Sixth, until other order shall be therein taken." Pursuant to which clause, in the third year of the same reign, a commission was granted to reform the disorders of chancels, and to add to the ornaments of them, by ordering the Commandments to be placed at the east end. SECT. V.] GOODS AND ORNAMENTS OF THE CHURCH. 29 The words of this Act of Elizabeth which are quoted above are in the rubric before the Book of Common Prayer. This rubric has been construed and considered by the Privy Council in several cases {Westerton v. Liddell, 1 Jur. N. 8. 1178 ; Beale v. Liddell, 14 Moo. P. C. 7 ; Martin v. Mackonochie, L. E. 2 P. C. 365). The Privy Council have decided : — 1. That the words "authority of Parliament" in the rubric refer to and mean the Act 2 & 3 Edw. 6, c. 1, giving parlia- mentary sanction to the first Prayer Book of Edward VI. 2. That the term " ornaments " means only those articles the use of which, in the services and ministrations of the church, is prescribed by that Prayer Book. 3. That though there may be articles not expressly mentioned in the rubric, the use of which would not be restrained, they must be articles which are consistent with and subsidiary to the services : as an organ for singing, a credence table from which to take the sacramental bread and wine, cushions, has- socks, &c. The parish was bound to provide everything which is neces- sary for the due and orderly celebration of the services of the church, and the administration of the sacraments. Veley v. Burder, 12 A. & E. 265. But since the passing of the Abolition of Church Pates Act, 1868, the parish is not bound, nor is there any means of compelling them, to provide anything. All neces- sary ornaments, &c, must now be provided out of church funds, or by voluntary subscriptions. The churchwardens shall take care that all things in the church be kept in such an orderly and decent sort, without dust or anything that may be either noisome or unseemly, as best becometh the house of God, and as is prescribed in an homily to that effect. Canon 85. See chap. Churchwardens, post, p. 102. Communion Table. — The 82nd Canon appoints that com- munion tables shall, from time to time, be kept and repaired in sufficient manner at the charge of the parish. A stone altar fixed in the floor, and not movable, is not a communion table, and is illegal. Faulkner v. Litchfield, 9 Jur. 234. Lighted candles on the communion table or on a ledge immediately above the same are not ornaments within the meaniug of the rubric, and are illegal when not wanted for the purpose of giving light. Martin v. Mackonochie, L. E. 4 A. & E. 279 ; L. E. 2 P. C, 365 ; 30 CHURCHES. [CHAP. II. Sumner v. Wix, L. E. 3 A. & E. 58. It is not unlawful to place vases of flowers on the communion table and keep them there during the performance of divine service, provided they are used as decorations only. The leaving of the holy table bare and uncovered during divine service is unlawful. Elphinstone v. Purchas, L. B, 3 A. & E. 66 ; 39 L. J. Ecc. 124. A communion table with a cross attached to it, although made of wood and movable, is contrary to the ecclesiastical law. Liddell v. Wester- ton, 5 W. E. 470. A wooden cross placed on a retable or wooden ledge at the back of and immediately above the communion table, but so close to it that the communion table and the retable would, at a very short distance, bear the appearance of one entire structure, is an unlawful ornament. Durst v. Masters, 1 P. D. 123, 373; 45 L. J. P. C. 51. A faculty has been granted, on the ground of convenience and saving of expense, for the erection of a communion table in a side chapel of a church in which there was already a communion table. In re Holy Trinity Church, Stroud Green, 12 P. D. 199. A metal cross not attached to the communion table is a legal ornament, and a wooden ledge or a super-altar is not contrary to law. Liddell v. Beetle, 14 Moore, P. C. C. 7. A baldachino or marble canopy, erected over the communion table, is an unlawful ornament. White v. Boivron, L. E. 4 A. & E. 207 ; 43 L. J. Ecc. 7. See Holy Communion, post, p. 124. Reredos. — A reredos, of which the central compartment consists of a sculptured panel representing the crucifixion, having the figure of our Lord on the cross, and the figure of St. John and the three Maries on either side, all such figures being in high relief, is not an unlawful architectural adornment ; Hughes v. Edwards, 2 P. D. 361 ; and where the whole erection of a reredos is set up for the purpose of decoration only, it is lawf id. Boyd v. Phillpotts, L. E. 6 P. C. 435 ; 44 L. J. Ecc. 44. In that case the reredos was held lawful, although it contained sculptured images in relief, representing the Ascension, the Transfiguration, and the Descent of the Holy Ghost on the day of Pentecost. The reredos in St, Paul's Cathedral has been held to be lawful. It contains a central figure, five feet in height, of our Lord upon the cross, and a figure, five and a half feet in height, of the Virgin with the Child in her arms, in a conspicuous position above the figure of our Lord. R. v. Bishop of London, 24 Q. B. D. 213 ; 66 L. T. 92. SECT. V.] GOODS AND ORNAMENTS OF THE CHURCH. 31 A crucifix of metal in full relief and about eighteen inches long, placed on the top of the screen separating the chancel from the nave, is an unlawful structure. Clifton v. Ridsdale, L. R. 1 P. D. 316 ; 2 P. D. 276 ; 46 L. J. P. C. 27. Where there is danger of a representation on a reredos receiving "superstitious reverence," the Court ought, in its discretion, to refuse to sanction its intro- duction into a parish church. In re St. Laurence, Pittington, 5 P. D. 131. In that case the central figure was a representation of our Lord seated as king, surrounded by the Virgin Mary and three saints. Credence Table. — A credence table is not an unlawful orna- ment, its use being merely subsidiary to that of the communion table. Westerton v. Liddell and another, Moore, Sp. Pep. 1857 ; 5 W. P. 477. Chancel Gates. — A faculty for chancel gates was granted, it being shewn that the chancel, from its richness, reqiured protec- tion. In re St. Agnes, Toxteth Park, 1 1 P. D. 1 . See Bradford v. Fry, 4 P. D. 106. Removal of Unlawful Ornaments. — If any superstitious pictures are in a window of a church or aisle, it is not lawful for any to break or remove them without licence of the ordinary ; and the offender may be bound to his good behaviour. Pricket'' s Case, Cro. Jac. 367 ; Ritchings v. Cordingley, L. P. 3 A. & E. 113. The ordinary has jurisdiction to find that any image or sculj)ture has been unlawfully erected, and to order its removal. Boyd v. Phill- potts, L. P. 6 P. C. 435 ; 44 L. J. Ecc. 44. Delineations used in Poman Catholic churches, and commonly called " Stations of the Cross and Passion," are decorations forbidden bylaw in churches of the Church of England. Clifton v. Ridsdale, 1 P. D. 316; 2 P. D. 276 ; 46 L. J. P. C. 27. Font. — A font of stone shall be placed in every church and chapel where baptism is to be ministered, the same to be set in the usual place, i.e., just inside the door of the church. Canon 81. Chest for Alms. — A strong chest, with a hole in the upper part thereof, having three keys, should be provided; of which one shall remain in the custody of the parson, vicar, or curate, and the other two in the custody of the churchwardens for the timo 32 CHURCHES. [CHAP. II. being ; which chest they shall set and fasten in the most con- venient place, to the intent the parishioners may put into it their alms for their poor neighbours. And the keepers of the keys shall yearly, quarterly, or oftener, as need requireth, take such alms, &c, out of the chest, and distribute the same, in the presence of most or of six chief parishioners, to their most poor and needy neighbours. Canon 84. Chalice, &c. — A chalice, or more if necessary, should also be provided. Linchc. 252. See post, p. 125. Books, Bier, &c. — There should also be provided a Bible of the largest volume, and a true printed copy of the [present] Book of Common Prayer. 13 & 14 Car. 2, c. 4, s. 2. And the book of homilies should also be provided in like manner ; Canon 80 ; and a bier for the dead should likewise be furnished. Lindw. 252. Bells and Ringers. — The churchwardens have the custody of the ke}*s of the belfry, and are to take care that the bells are not rung without proper cause ; but the minister, conjointly with them, is to be the judge of the proper cause. Canon 88. Except under very special circumstances they are not authorised without the consent of the minister to give orders for the parish bells to be rung. Harrison v. Forbes and Lisson, 6 Jur. 1353. A criminal suit can be promoted against persons for ringing the church bells against the express wish of the incumbent. Daunt v. Crocker, L. R. 2 A. & E. 41. The property in the bells is in the churchwardens. It is the sexton's duty to ring the bell, but if "ringers" are required their appointment and dismissal rests with the minister. See Dale's Guide, 93. Register. — See post, p. 198. Table of Degrees. — The table of degrees of marriage prohibited should be, in every church, publicly set up. Canon 99. Ten Commandments. — The Ten Commandments should be set up on the east end of every church and chapel, where the people may best see and read the same. And the Kke is directed with respect to other chosen sentences. Cation 82. But as it is very possible that in many churches they could not easily be read or seen by the people if set up at the east end, they may be set up elsewhere in the body of the church where they may more easily SECT. V.] GOODS AND ORNAMENTS OF THE CHURCH. 33 be read. Liddell v. Beale, 14 Moore, P. C. C. 7. In that ease ihej were set up against the walls on each side of the chancel screen, and it was approved. Memorial Inscription. — Where an application was made to authorize by faculty the erection in a parish church of a stained glass memorial window, having placed below it an inscription in Latin, the translation of a portion of which was as follows : "Of your charity pray for the sold of H. F. . . . deceased," it was held that the ordinary ought not in his discretion to sanction the introduction into the church of any inscription of which the above words would form part. Egerton v. All of Odd Rode, [1894] P. 15. Monuments in Churches. — Although it is lawful to build or erect tombs, sepulchres, or monuments for the deceased, in church, chancel, chapel, or churchyard, in a manner not to the hindrance of the celebration of divine service ; 3 Inst. 202 ; yet this must be intended by licence of the bishop. Degge, Pt. 1, c. 12 ; Wats. c. 39 ; Gibs. 453. Though a well-established custom, or the authority of the rector and churchwardens, may occasionally suffice, yet no practice can absolutely legalise the erection of a monument without a faculty ; Seagar v. Bowie, 1 Add. P. 541 ; Jiitchings v. Cordingley, L. P. 3 A. & E. 113 ; for it is a general rule that they cannot be set up without the consent of the ordinary. Palmer v. Bishop of Exeter, 1 Stra. 576 ; Cart v. Marsh, 2 Stra. 1080. It appears that, if the ordinary shoidd grant a licence for erecting a monument in the church the incumbent could not prevent this being done. Keet v. Smith, L. P. 4 A. & E. 398 ; 1 P. D. 73. A faculty is in strictness requisite, though it be omitted under the confidence reposed in the minister. The consent of the incumbent is taken in practice, and especially for monuments in the chancel. Maid-man v. Malpas, 1 Hagg. R. 208. Though the ordinary is the proper judge in these cases, yet, notwithstanding his allowance, an appeal lies to the metropolitan, because the power of the ordinary in this respect must be exercised according to a prudent and legal discretion, which the superior has a right to look into and correct ; Cart v. Marsh, 2 Stra. 1080 ; and the paiiy cannot waive the appeal and apply to the Court of Queen's Bench for a prohibition instead. Buliver v. Hase, 3 East, 217. See further as to monuments and inscriptions, post, p. 173. S. D 34 CHURCHES. [CHAP. IT. Repairing Monuments. — After monuments have been once erected they may he repaired without any fresh consent of ordinary or incumbent, for this is of public consequence, when their importance in tracing family descents, &c, is considered. It may be proper to apply to the churchwardens for leave to do so, but they have no power to refuse such consent. Burdin v. Calcott, 1 Hagg. Eep. 16. Vestments. — The use of the chasuble, alb, and tunicle by the celebrant while officiating in the communion service is illegal. On high feast days in cathedrals and collegiate churches the cope may be worn in ministering the communion, but in all other ministrations the surplice must be used. The use of a biretta or cap as a vestment in the service of the Church is illegal. Enraght v. Lord Penzance, 6 Q. B. D. 376 ; 3 App. Cas. 240. Albs with patches called apparels, tippets of a circular form, stoles, dalmatics and maniples, are unlawful ornaments, and may not be used by a minister during divine service. Hebbert v. Purchas, L. E. 3 P. C. 605 ; 41 L. J. P. C. 40 ; Elphimtone v. Purchas, L. E. 3 A. & E. 66 ; 39 L. J. P. C. 67 ; Clifton v. Rklsdale, 1 P. D. 316 ; 2 P. D. 276 ; 46 L. J. P. C. 27. Organs. — In cathedrals organs may be deemed necessary, and the ordinary may compel their erection by the dean and chapter. In parish churches it is otherwise. A parish will not be com- pelled by mandamus to elect an organist. Ex parte Le Crew, 2 Dowl. & L. 571. The organist of a parish church, although appointed and paid by the vestry, is guilty of an ecclesiastical offence if he plays on the organ at any time contrary to the directions of the incumbent. Wyndham v. Cole, 1 P. D. 130. Property in Goods of the Church. — A person may give or dedicate goods to the service of religion in a parish church, and deliver them into the custody of the churchwardens, by which the property is immediately changed. Degge. Pt. 1, c. 12. The goods of the church do not belong to the incumbent, but to the parishioners ; and if they be taken away or injured, the church- wardens have their action at common law. Alienation of Goods, &c. — The goods belonging to a church may bo alienated ; yet the churchwardens alone cannot dispose of them without the consent of the parish ; and a gift of such SECT. VI.] REPAIKS AND ALTERATIONS OF THE CHURCH. 35 goods by them, without the consent of the sidesmen or vestry, is void. Wats. c. 39 ; 1 Burn. Eec. L. 377. Ritual or Ceremonial. — See post, p. 129. Section VI. — Repairs and Alterations of the Church. By Parishioners. — Custom, or the common law, has cast the burthen of repairing the church upon the parishioners, at least with respect to the nave of the church, and in some instances to the chancel also ; but this obligation, since the passing of the Church Rate Abolition Act of 1868, cannot be enforced. In the City of London there is a general custom for the parishioners to repair the chancel as well as the body of the church. Repair of Chancel. — See ante, p. 17. Applying Endowment to Repairs. — The Ecclesiastical Com- missioners, with the consent of the bishop of the diocese and of the patron and incumbent of the church of any parish, may apportion any sum arising from a permanent endowment belonging to such church, and applicable to the repair and maintenance thereof, to the repair or maintenance of any church or churches situate within the original limits of such parish, anything con- tained in any local Act to the contrary notwithstanding. 19 & 20 Vict. c. 104, s. 31. Altering or Enlarging. — If increased accommodation in a church is required, and might be provided by means of altera- tions made, it can only be legally effected by an application for a facidty or licence from the ordinary for that purpose. Gibs. Cod. 224. In granting such a faculty, the court would pay great attention to the fact that it was against the wish of the majority of the inhabitants or of the incumbent, but it is not bound to regard it. Tatlersall v. Knight, 1 Phil. 233 ; Groves v. Rector of Hornsey, 1 Hagg. Eep. 188 ; Fuller v. Lane, 2 Add. R. 425. Nor is the consent of the vestry necessary. Thomas and Hughes v. Morris, 1 Add. 470. A sum of money may lawf idly be left by will for the enlarge- ment of a church surrounded by its own churchyard, so that the enlargement is carried out by building on the churchyard. Such a legacy does not involve the bringing of additional land into d2 36 CHURCHES. [CHAP. II. mortmain. Dixon v. Butler, 3 Y. & C. 677 ; In re Hawkins, 43 L. J. Ch. 80 ; Pratt v. Harvey, L. E, 12 Eq. 544. See ante, p. 14. Where the incumbent and churchwardens, with the approval of the vestry, apply for a faculty for alterations in their parish church, and the grant or refusal of the faculty is merely a matter for the discretion of the ordinary, the faculty ought not to be granted unless it is proved to the satisfaction of the ordinary that, if the proposed alterations are carried out, the church will be thereby rendered more convenient, more fit for the accommo- dation of the parishioners who worship there, more suitable, more appropriate or more adequate to its purposes, or that there exists either on the part of the parishioners generally, or of the parishioners actually attending the church, a general desire in favour of the faculty being granted. Peek v. Trower, 7 E. D. 21. Reconsecration. — "Where a church has been rebuilt, repaired, or enlarged, and the external walls have been partly destroyed, or the position of the communion table altered, a reconsecration of such church is not necessary in order to the due and valid administration of divine offices there. 30 & 31 Vict. c. 133, s. 12. See Parker v. Leach, L. E. 1 E. C. 312. Section VII. — Dilapidations. Dilapidation is the pulling down or destroying in any manner any of the houses or buildings belonging to a spiritual living, or suffering them to run into ruin or decay, or wasting or destroy- ing the woods of the church, or committing or suffering any wilful waste in or upon the inheritance of the church. Degge, 118. Upon the avoidance of a benefice by death, resignation, or otherwise, it is the duty of the late incumbent to leave the buildings free from dilapidation. The procedure for enforcing such duty is now contained in the Ecclesiastical Dilapidations Acts, 1871 and 1872 (34 & 35 Vict. c. 43, and 35 & 36 Viet. c. 96). The provisions of these Acts apply to all such houses of residence, chancels, walls, fences, and other buildings and things as the incumbent of the benefice is by law or custom bound to maintain in repair. A surveyor of dilapidations is to be appointed in each diocese. Where Benefice vacant. — Within three months after the avoid- ance of a benefice, the bishop is to direct the surveyor to inspect SECT. VII.] DILAPIDATIONS. 37 and report to the bishop what sum is required to make good the dilapidations. Objections may be taken to this report by the new incumbent or the late incumbent, his executors or administrators, but they must be transmitted to the bishop, in writing, within one month after receipt of a copy of the report by the objecting party. The bishop is to make an order, specifying the repairs to be done, and their cost. This sum is a debt due from the late incumbent, his executors or adminis- trators, to the new incumbent, and is recoverable as such at law or in equity. The claim against an incumbent's estate for ecclesiastical dilapidations now ranks with those of other creditors. Wayman v. Monk, 35 Ch. D. 583 ; 56 L. J. Ch. 809 ; 56 L. T. 856. The money so received is to be paid to the Governors of Queen Anne's Bounty to the "dilapidations account " of the particular living, and the repairs are to be done by the new incumbent (within eighteen months after date of the order), and paid for out of such fund so far as it will go. When the repairs are finished, the surveyor gives a certificate of completion, and the new incumbent, his representatives and successors, will not be liable to any claim for dilapidations for five years from the date of the certificate, except for wilful waste or neglect to insure against fire in at least three-fifths of the value. Where Benefice not vacant. — Such surveyor, when so ordered by the bishop, may inspect and report on the buildings of a benefice at other times than when a benefice is vacant. The bishop can only order the surveyor to make such an inspection when he has received a complaint in writing of the archdeacon, or of the rural dean, or of the patron of a benefice, that the buildings of such benefice are in a state of dilapidation. If the incumbent shall within twenty-one days after notice inform the bishop, in writing, that he intends forthwith to put his buildings in proper repair, the bishop shall allow the incumbent a reason- able time to execute such repairs, and if satisfied, shall abstain from further proceedings. The incumbent is bound to execute the works prescribed in the report, as settled hy the bishop, in the manner and within the times therein prescribed, or within such extended time as the bishop in writing may direct. The money required for the repairs may be raised by sequestration, if necessary. 38 CHURCHES. [CHAP. II. Aii agreement that neither party on an exchange of livings shall pay dilapidations is not illegal. Wright v. Davies, 1 C. P. D. 638; 46 L. J. 0. P. 41. Cases where no Liability. — The case of Wise v. Metcalfe, 10 B. & C, is a leading authority to show the extent of liability for dilapidations in the case of house and buildings, and in what manner and according to what principle these dilapidations are to be calculated. No liability for dilapidations is incurred by pulling down and taking away an old barn, &c, and erecting another one more convenient on a different part of the glebe. Huntley v. Russell, 13 Q. B. 572. Where buildings on the glebe have been erected so as to be capable of removal, and have not been fixed to the freehold, there is, of course, no liability for dilapidations in respect of them. Ibid. Therefore the executors of a deceased rector may remove greenhouses, &c, which have been so erected as to be tenant's fixtures. Martin v. Roe, 2 L. J. Q. B. 129. "Any matter of needless expense in luxury or orna- ment in which the present incumbent has indulged himself, he is not only not bound, but he ought not to transmit to his succes- sors." Ibid. ; Cripps, 269. An incumbent is not liable to paint (unless it be necessary to preserve exposed timber from decay) or to whitewash and paper. Wise v. Metcalfe, supra. He is only bound to restore what is actually in decay, and need not leave the premises in a finished state of repair. Perceval v. Cooke, 2 Car. & P. 460. Rights as between Successive Tenants for Life. — The appor- tionment of rent between successive incumbents is now regulated by the Apportionment Act, 1870 (33 & 34 Vict. c. 35). No action will he by a successor for niiscultivation of lands ; Bird v. Ralph, 4 Barn. & Ad. 826 ; but the executors of a de- ceased incumbent are liable to the successor for dilapidations if hedges, fences, gates, &c., have been allowed to become decayed or ruinous. Littledale, J., in Bird v. Ralph, 2 Ad. & Ell. 773. The right of a rector to recover from the representatives of his predecessors damages for waste is confined to the case of dilapi- dations to houses and buildings, and does not extend to waste committed by digging gravel in the glebe. Ross v. Adcock, L. P. 3 C. P. 655. SECT. VIII.] CHURCHYARDS. 39 Section VIII. — Churchyards. Freehold of. — The freehold of the churchyard belongs to the incumbent; Comyns Dig. 2, 323; but only in a very limited sense. Wood v. Headingley, [1892] 1 Q. B. 727. If he injures the free- hold the churchwardens can get an injunction. Adlam v. Colt- hurst, 36 L. J. Ecc. 14. The freehold interest of the incumbent or lay rector is sufficient to enable him to maintain an action in the High Court against a trespasser. Batten v. Gedye, 41 Ch. D. 507 ; 58 L. J. Ch. 549 ; CO L. T. 802 ; 37 W. E. 540. Repair of Churchyards. — By a constitution of Archbishop Winchilsea, the parishioners shall repair the fence of the church- yard at their own charge. Lind. 253. But nevertheless, if the owners of lands adjoining to the churchyard have used, time out of mind, to repair so much of the fence thereof as adjoineth to their ground, such custom is a good custom ; and the church- wardens may have an action against them at the common law for the same. 2 Roll. Abr. 287 ; Gibs. 194. For the duty rests upon the churchwardens to take care that the churchyards be well and sufficiently repaired and fenced, as they have been in each place accustomed at the charge of those unto whom by law the same appertaineth. Canon 85. This liability cannot be enforced where the churchwardens have no funds and no means of raising any. It must now be done by voluntary subscriptions, as no compul- sory church rate can be levied. The incumbent is not bound to repair or fence- in the churchyard. A bequest for the repair of a churchyard is a good charitable gift. Re Tyler, [1891] 3 Ch. 252. The Ecclesiastical Commissioners may alter, repair, pull down and rebuild, or order to be altered, &c, the walls or fences of any existing churchyard or burial-ground of any parish or chapelry, and fence-off any additional or new burial ground. 59 Geo. 3, c. 134, s. 39. Trees and Herbage. — The minister may pasture the church- yard, subject to the right of any parishioner to have the pasturage broken up for the purpose of burial. The minister in turning cattle into the churchyard to feed must take care not to cause a nuisance to the parishioners by injury to the tombstones or trees, or trampling or defacing the graves. Wilson v. McMath, 3 Phill. 90. As to the right of a lay impropriator to herbage growing in 40 CHURCHES. [CHAP. II. a churchyard, see Greenslade v. Darby, L. B. 3 Q. B. 421 ; 37 L. J. Q. 13. 137. The right of property in the trees and grass of churchyards was formerly a subject of great contention ; but, upon the principle that laymen have no power to dispose of things ecclesiastical, it was determined that the parishioners have no right to cut down trees or mow the grass against the will of the rectors or vicars, or others deputed by them for the custody or care thereof, though such parishioners may even intend to apply the trees so cut down to the use of the church. Lind. 267. But if the defendant alleges that the trees in dispute grew upon his own freehold, a prohibition lies. Hilliard v. Jefferson, 1 Lord Bayni. 212. H in the same church there be both rector and vicar, "it may be doubted," says Lindwood, "to whether of them the trees or grass shall belong ; but I suppose they shall belong to the rector, unless in the endowment of the vicarage they shall be otherwise assigned." Lind. 267. And Bolle seems to make the right, as between rector and vicar, to turn upon this, that they belong to him who is bound to repair ; which determination agrees well with what is said in the statute, namely, that the parson shall not cut them down, but when the chancel wants reparation. Bellamy'' s Case, 2 Boll. Abr. 337 ; Gibs. 207. The 35 Edw. 1, st. 2, intituled Statutum ne Rector prosternat Arbor es in Ccemeterio, which is but a declaration of the common law (11 Rep. 49), is as follows: — "Forasmuch as a churchyard that is dedicated is the soil of a church, and whatsoever is planted belongeth to the soil, it must needs follow that those trees which be growing in the churchyard are to be reckoned amongst the goods of the church the which laymen have no authority to dispose of, but, as the Holy Scripture doth testify, the charge of them is committed only to juiests to be disposed of; and yet, seeing those trees be often planted to defend the force of the wind from hurting the church, we do prohibit the parsons of the church that they do not presume to fell them down unadvisedly, but when the chancel of the church doth want necessary reparations ; neither shall they be converted to any other use, except the body of the church doth need like repairs, in which case, the rectors of poor parishes, of their charity, shall do well to relieve the parishioners with bestowing upon them the same trees ; which we will not command to be done, but we will commend it when it is clone." Gibs. 208. SECT. VIII.] CHURCHYARDS. 41 Prohibition against Waste. — If the person who is entitled to cut the trees for these purposes is about to do so for any other, a prohibition will be granted to hinder waste. And if the trees be actually cut down by any person, for other use than is here specified, it is thought that he may be indicted and fined upon this statute. Gibs, 208 ; 11 Bep. 49. And in Strachey v. Francis, 2 Atk. 217, upon a motion for an injunction by the patron of the living to stay waste, Lord Hardwicke said: "A rector may cut down timber for the repairs of the parsonage house or the chancel, but not for any common purpose. Under the statute of 35 Edw. 1, if it is the custom of the country, he may cut down underwood for any purpose ; but if he grubs it up, it is waste. He may cut down timber likewise, for repairing any old pews that belong to the rectory ; and he is also entitled to botes for repairing barns and outhouses belonging to the parsonage." And an injunction Was granted accordingly. An injunction for the like purpose was also granted against the widow of a rector, during vacancy, at the suit of the patroness. Hoslcins v. Featherstone, 2 Br. C. C. 552. Trees cannot be cut down for the purpose of creating a general repairing fund. Suicerby v. Fryer, L. R. 8 Eq. 417. Churchway, &c. — It is said that a man may prescribe to have a way through the church or churchyard (2 Boll. Abr. 265) ; but he cannot make a private door into the churchyard without the consent of the minister, and a faculty also from the bishop for llii' same. Churchwardens cannot alter or vary the paths in the church- yard without the permission of the incumbent. A faculty is necessary for making new church paths. Batten v. Gedye, 41 Ch. D. at p. 515. The Ecclesiastical Courts have jurisdiction to grant relief in respect of interference with a path in a churchyard forming an approach for parishioners to their parish church: Ibid. In that case steps in a churchyard down to a highway were held to constitute a churchway, the right to which was solely in the parishioners. The Ecclesiastical Commissioners may stop up and discontinue, or alter, or order to be stopped up, &c, any such entrance to any churchyard or burial-ground, and the footways and passages over the same, as to them appear useless and unnecessary, or as they think fit to alter ; provided the same be done with the consent of two justices and on notice being given. 59 Geo. 3, c. 134, s. 39. 42 CHURCHES. [CHAP. II. This notice must be given before the order of the Commissioners is made. B. v. Arhcright, 12 Q. B. 960. Additional Churchyards. — Sites may be bought for adding to existing churchyards. 30 & 31 Vict. c. 133, s. 5 ; 36 & 37 Vict. c. 50, s. 4. Closed Churchyards. — To the parish council of a rural parish is now transferred the obligations of the churchwardens with respect to maintaining and repairing closed churchyards wherever the expenses of such maintenance and repair are repayable out of the poor rate under the Burial Act, 1855. 56 & 57 Vict. c. 73, s. 6 (1) (b). As to closed churchyards, see post, p. 177, and converting the same into public gardens and recreation grounds, see post, p. 180. As to new and additional churchyards, see^os/, p. 187. As to burial in churches and churchyards, see post, Chap. IX., p. 159. CHAPTER III. THE PAROCHIAL CLERGY. PAGKE Section I. Vicars 43 II. Stipendiary Curates 45 1. Appointment of 45 2. Licence of 48 3. Stipend of 50 4. Removal of 52 III. Perpetual Curates 54 Section I. — Vicars. Origin of. — A vicar is one that has spiritual promotion or living under the parson. 4 Burn, Ecc. L. 9. Endowments of vicarages were for the most part made upon the appropriating of churches to religious houses, &c, and upon the appropriation they usually assigned some small portion of the rectory to main- tain a perpetual vicar to serve the cure, and took the rest to the use of the abbey. And the vicar was so called, as being vice rectoris, there being no rector to serve the cure. But in process of time the abbots, &c., grew better husbands, and took the whole rectories to themselves without endowing any vicar, and served the cures with their own monks and friars, by which means hospitality was neglected, and the churches and rectory houses dilapidated, and the minister often wanting. Whereupon the 15 Eic. 2, and 4 Hen. 4, c. 12, were passed, for making void such appropriations of vicarages as were made without com- petent endowment, and likewise against such appropriations. Rogers, Ecc. L. 973, n., citing Degge, 161 ; Ayliffe Parerg. 510. At the Reformation, whatever interest the religious communities possessed in the parishes was seized by the Crown, and has since been either retained by it, or, as has usually been the case, has been sold to private persons, whence arises tho class of lay 44 THE PAKOCHIAL CLERGY. [CHAP. III. impropriators, who are, in fact, the rectors of the parish, the performance of the spiritual duties devolving on the vicar. The distinction between a rector and a vicar at the present day- is this, that the rector has generally the whole right to all the ecclesiastical dues within his parish ; the vicar is entitled only to a certain portion of those profits, the best part of which are absorbed by the appropriator, to whom, if appropriations had continued, as in their origin, he would in effect be perpetual curate with a fixed salary. Cripps, 6th ed., p. 140. Vicarage. — Ordinarily speaking, a vicarage is apart or portion of the parsonage allotted to the vicar for his support. This part is in some parishes a sum certain, but generally that part of the tithes which is called the small tithes. In some rdaces the vicar has a portion of the great tithes and the glebe, and this is a vicarage endowed. In some places vicarage lands occupied by the vicar 'pay' no tithes to the parson. Godol. Ab. 197. No tithes or profits of any hind de jure belong to the vicar, but only by endowment or prescription, which cannot be presumed, but must be shown by the vicar. Gibs. 753. The rector or parson is, prima facie, entitled to all the tithes ; therefore, payment to him is a discharge against the vicar. Green v. Austin, Gwill. 226. The loss of the original endowment may be supplied by pre- scription; and if the vicar has enjoyed any particular tithe for a long time, the law will presume that he was legally endowed of it, or is entitled to it by augmentation, which the bishop has a clear right to make. See Hiscoch v. Wilmot, Gow, 197. . The vicar of a parish has not, as vicar, the right of presenta- tion to any consecrated public chapel in his parish, unless such chapel is a chapel of case ; but he has the right to forbid any person to officiate therein, unless deprived of such right by some statute or some arrangement assented to and binding on the bishop of his diocese, the patron of the mother church and the incumbent thereof. JSPAUister v. Bishop of Rochester, 5 C. P. D. 194; 49 L. J. C. P. 114. All incumbents of parishes having cure of souls, and not being rectors, are, for the purposes of style and designation only, to be deemed to be vicars, and their benefices styled vicarages. 31 & 32 Vict. c. 117, s. 2, post, p. 55. SECT. II.] STIPENDIARY CURATES. 45 Section II. — Stipendiary Curates. Definition of Curate. — The word curate is of ambiguous signi- fication. Most property, it denotes the incumbent in general, who hath the cure of souls, but it is commonly understood to signify a clerk not instituted to the cure of souls, but exercising the spiritual office in a parish under the rector or vicar. Arthington v. Bishop of Chester, 1 H. Bl. 424. We shall con- sider it in the latter sense. There are two kinds of these curates : first, temporary, who are employed under the spiritual rector or vicar, either as assistants or substitutes in his absence, in the parish church or in a chapel of ease within the parish ; the other called perpetual curates, which is where there is neither spiritual rector nor vicar in the parish, but a clerk is employed to officiate there by the impropriator. 2 Burn, Ecc. L. 54. 1. Appointment of Stipendiary Curates. The appointment of a curate to officiate under an incumbent in his own church must be by such incumbent's nomination, under hand and seal to the bishop, setting forth the stipend for his maintenance. Arnold v. Bishop of Bath and Wells, 5 Bing. 316 ; see Capel v. Child, 2 Tyr. 700. The appointment also of a curate in a chapel of ease seems most properly to belong to the incumbent of the mother church, who is instituted to the cure of souls throughout the whole parish. Dixon v. Kershaw, Amb. 528. The form of nomination in this latter case, and to a per- petual curacy, is much the same. It states the vacancy by death or otherwise, and prays the bishop's licence for the curate nominated. 2 Burn, Ecc. L. 57. The law respecting the appointment of stipendiary curates, their stipend and other matters, is regulated by the 1 & 2 Vict. c. 10G ; 28 & 29 Vict. c. 122 ; and 48 & 49 Vict. c. 54. When Bishop may appointor require appointment of a Curate. — If any spiritual person holding any benefice who does not actually reside therein 9 months in each year, shall for three months, altogether or at several times in one year, absent himself from his benefice without leaving a curate or cm-ates duly licensed or ap- proved by the bishop to perform his ecclesiastical duties (unless with the consent of the bishop he performs the duties, being resi- 46 THE PAROCHIAL CLERGY. [ciIAP. III. dent in another benefice of which, he is incumbent, or unless he has a legal exemption from residence on his benefice, or a licence to reside out of it, or out of the usual house of residence) ; or shall for one month after the death, resignation, or removal of his curate neglect to notify the same to the Bishop ; or shall for 4 months after the death, &c, of such curate neglect to nominate to the bishop a proper curate, the bishop may appoint and license a proper curate with such a salary as is by the Act allowed. The licence must specify whether the curate is to reside within such parish or place, and, if he be permitted to reside out of the parish, &c, must specify the grounds of such permission ; and the dis- tance of the residence of the curate from the church shall not exceed 3 miles, except in cases of necessity, to be approved by the bishop, and specified in the licence. 1 & 2 Vict. c. 106, s. 75. So whenever the incumbent does not reside, or has not satisfied the bishop of his full purpose to reside during 4 months in the year, the curate is to be required to reside within the parish or place, or if no convenient residence can be procured there, then within 3 miles of the church, except in cases of necessity, to be specified in the licence, with the place of residence. Sect. 76. The year of residence is to be reckoned from 1st of January to 31st of December. Sect. 120 ; Sharp v. Bltich, 10 Q. B. 280. Where incumbent non-resident and population of benefice ex- ceeds 2,000 or there are 2 or more churches not less than a mile apart, the bishop may require 2 or more curates. 48 & 49 Vict. c. 54, s. 9. Non-performance of Duties by Incumbent. — The bishop may appoint a curate where the incumbent has not performed his ecclesiastical duties. See post, p. 94. Assistant Curates in large Parishes. — Whenever the annual value of any benefice exceeds 500/. and either the popidation is 3,000, or there is a second church or chapel with a hamlet or district containing 400, the bishop may require the clergyman holding such benefice, although he is resident thereon or engaged in performing the duties thereof, to nominate a fit and proper person to be licensed as a curate to assist in performing the duties of such benefice and to be j)aid by the person holding the same ; and if a fit person is not nominated to the bishop within three months after his requisition, the bishop may appoint and license SECT. II.] STIPENDIARY CURATES. 47 a curate with a stipend not exceeding 150?. The clergyman may appeal within one month after service upon him of such requisi- tion to the archbishop. 48 & 49 Vict. c. 54, s. 13. Where an incumbent of a benefice, the population of which exceeds 2,000, is not resident thereon, the bishop may require him to nominate two curates, and if for 3 months after such requisition he omits to make such nomination, the bishop may appoint and license two curates, or a second curate, and assign to each such curate a stipend, not exceeding together the highest stipend allowed in the case of one such curate, unless the incum- bent shall consent to a larger stipend. The incumbent niay, within one month after service upon him of such requisition, or notice of appointment of two curates or a second curate, appeal to the archbishop. 1 & 2 Viet, c. 106, s. 86. Additional Services. — The bishop is enabled to require a third or additional services to be performed, and to appoint a curate for that purpose, at a salary not exceeding 801. unless augmented by voluntary subscriptions. Such salary may be raised from pew rents. 58 Geo. 3, c. 45, s. 65. Benefice under Sequestration. — Whenever a benefice is under sequestration, except for providing a house of residence, if the incumbent does not perforin the duties, the bishop is required to appoint and license a curate or curates, and to assign a stipend or stipends not exceeding, in the case of one, the highest stipend allowed by the Act, nor, where more than one, exceeding 100?. to more than one such curate. More than one curate is not to be appointed, unless there is more than one church, or the popula- tion exceeds 2,000 persons. The stipend is to be paid by the sequestrators out of the profits of the benefice. 1 & 2 Vict. c. 106, s. 99. Upon the avoidance of any benefice by death, resignation, or otherwise, the sequestrator appointed by the bishop is out of the profits to pay the curate during the vacancy, and in proportion only to the time thereof. But if the profits which come to the hands of the sequestrator during such vacancy are insufficient, then the remainder of the stipend unpaid is to be paid to the curate by the succeeding incumbent — payment to bo enforced by monition and sequestration. Sects. 100, 101. See post, Chap. IV., p. 72. 48 THE PAROCHIAL CLERGY. [CHAP. III. Lunatic Incumbent. — In case of the incumbent being duly found of unsound mind, the curate's stipend assigned by the bishop is to be paid by the committee of the estate. Sect. 79. 2. Licence of. Application for Licence. — Every bishop, before licensing a curate to serve for any person not duly residing on his benefice, is to require a statement of all the particulars required by the Act to be stated by any person applying for a licence for non- residence. See post, p. 97. It must appear that he is in deacon's orders at least, if he is to be licensed to be an assistant curate. Declaration by Stipendiary Curate. — Every person about to be licensed to a stipendiary curacy is, before obtaining such licence, to present to the archbishop or bishop, by whom the licence is to be granted the stipendiary curate's declaration, signed by himself and by the incumbent of the benefice to which he is about to be licensed. 28 & 29 Vict. c. 122, s. 6. The declaration referred to is as follows : — "I, A. B., incumbent of , in the county of , bona fide undertake to pay to C. D. of , in the county of , the annual sum of pounds as a stipend for his services as curate, and I., C. D., bond fide intend to receive the whole of the said stipend. "And each of us, the said A. B. and C. D., declare that no al latement is to be made out of the said stipend in respect of rent or consideration for the use of the glebe house ; and that I, A. B., undertake to pay the same, and I, C. D., intend to receive the same without any deduction or abatement whatsoever." The curate must also send to the bishop the following papers : — 1st. A nomination, varying in fomi according as the incum- bent nominating may be resident or non-resident. 2nd. Letters of orders of deacon and priest. 3rd. Letters testimonial to be signed by three beneficed clergymen. Canon 48 provides that no curate or minister shall be permitted to serve in any place without examination and admission of the bishoj) of the diocese, or ordinary of the place having episcopal SECT. II.] STIPENDIARY CURATES. 49 jurisdiction, under Lis hand and seal, having' respect to the great- ness of the cure and meetness of the party. But a clerical person, who officiates for the rector occasionally, if not so licensed by the bishop of the diocese, does not, it seems, incur ecclesiastical cen- sures under this canon ; nor is he thereby rendered unable to recover his stipend. Dakins v. Seaman, 9 M. & W. 777. If he has a licence to preach, which need not be had of the local ordinary, it is considered sufficient ; and such licence to preach under the 50th and 52nd canons must be deemed to be contained in his letters of orders. Gates v. Chambers, 2 Add. R. 177. Declaration of Assent. — Every person licensed to a stipendiary curacy is, in the presence of the archbishop or bishop by whom he was licensed, or of the commissary of such archbishop or bishop (unless having been ordained on the same day, he has already made and subscribed the same), to make and subscribe the declaration of assent (see ante, p. 48), and on the first Sunday on which he officiates in the church, or in one of the churches in which he is licensed to serve, publicly and openly make the declaration of assent in the presence of the congrega- tion and at the time of divine service ; and if he wilfully fails to do so, his licence is void. 28 & 29 Vict. c. 122, s. 8. Licence and Revocation. — A bishop may license any curate actually employed by any non-resident incumbent without an ex- press nomination being made to him. And he may summarily revoke any curate's licence, and remove him for any reasonable cause, having first given him an opportunity of showing reason to the contrary. The curate may appeal to the archbishop within one month after service on him of the revocation. 1 & 2 Vict. c. 106, s. 98. Upon an appeal the curate has a right to be heard, if he wish for a hearing, it. v. Archbishop of Canterbury, 28 L. J. Q. B. 154. Subject to appeal, the bishop has an unbmited discretion. No appeal lies from the decision of the archbishop. Poole v. Bishop of London, 14 Moore P. C. 262 ; 7 Jur. N. S. 347. If the archbishop annul the revocation, the bishop is to make such order as is reqiured in the case of the revocation of a licence of non-residence being annulled (see post, p. 99). A copy of every curate's licence or revocation is to be entered in the registry of the diocese, and another copy sent to the church- wardens of the parish or place, and a list of such licences and s. E 50 THE PAROCHIAL CLERGY. [CHAP. III. i evocations is to be kept open for inspection on payment of a fee of 3s. Sect. 102. See Eemoval of, post, p. 52. Fees. — By sect. 82, 10*. for the licence is to be the only fee. There is no stamp duty on the licence when the annual amount of the stipend is specified therein. 54 & 55 Yict. c. 39. 3. Stipend of. The bishop is to appoint to every curate of a non-resident in- cumbent such stipend as is specified by 1 & 2 Vict. c. 106; and whether the incumbent be resident or not, every licence is to specify the amount of the stipend. And the bishop is to hear and determine without appeal any differences between the in- cumbent and curate relating to the stipend, or the payment thereof or of the arrears thereof, and, in case of wilful neglect or refusal to pay, may enforce payment by monition and sequestration. Sect. 83. The payment of curates in an ordinary case is a matter of arrangement between the incumbent and the curate. The scale of stipends of curates of non-resident incumbents instituted to benefices is provided for by sects. 85 and 86. The bishop may assign a less stipend than before mentioned, with the consent of the archbishop in writing upon the licence, in cases where the incumbent is non-resident, or has become in- capable of performing the duty by age, sickness, or other unavoidable cause. In such case the licence must state the special reasons for the lower stipend, and they must be entered in a separate book to be kept for that purpose in the registry of the diocese. Sect. 87. If an incumbent having two benefices, and bond fide residing on each during proportions of the year, employ a curate to do the duty interchangeably with himself, such curate is to have a stipend not greater than is allowed for the larger of the benefices, nor less than that allowed for the smaller. If such incumbent employ a curate or curates for the whole year on both benefices, the bishop may assign to each or either any such stipend, less than the amount specified by the Act, as he shall think fit. Sect. 88. If the bishop finds it expedient to license any incumbent to serve any adjoining or other parish or place as curate, or to license the same person to serve as curate for two parishes or SECT. II.] STIPENDIARY CURATES. 51 places, he may assign stipends less by 30/. than the stipends required by the Act. Sect. 89. Remedy for Recovery of Stipend. — Where the incumbent, whether resident or non-resident, wilfully refuses or neglects to pay the stipend or its arrears, the bishop is the proper person to enforce payment, and can enforce compliance with his award and decision by monition and sequestration. Sect. 109. Cripps, 158. Fraud as to Stipend. — All agreements made between incum- bents and their curates in fraud or derogation of the provisions of the Act, and all agreements by which a curate shall bind him- self to accept a stipend less than that assigned in the licence, are to be void to all intents and purposes, and not to be pleaded or given in evidence in any court of law or equity. The curate and his representatives are to be entitled to the full stipend assigned by the licence, notwithstanding the payment and acceptance of any less sum, or any receipt, discharge, or acquittance given for the same ; and payment of so much thereof as shall be proved to be unpaid, with full costs, as between proctor and client, is to be enforced by monition and sequestration, provided the application be made within twelve months after such curate shall have quitted the curacy, or have died. Sect. 90. Daniel v. Morton, 16 Q. B. 198. Deductions from Stipend. — Where the stipend is equal to the whole annual value, all charges and outgoings which legally affect the value are to be deducted from it, as well as any loss or diminution which may lessen the value without the default or neglect of the incumbent. Sect. 91. And in such cases the bishop may allow the incumbent to retain such sum, not exceed- ing one-fourth of the annual value, as shall have been expended during the year in repairs of the chancel or house of residence ; and also, when the annual value does not exceed 150/., to deduct from the stipend such sum so expended above the amount of the surplus remaining of such value after payment of the stipend, provided such sum so deducted does not exceed one-fourth part of the stipend. Sect. 92. Residence may be Assigned. — Where an incumbent does not resido for four months in each year, and the bishop requires the e2 52 THE PAROCHIAL CLERGY. [CHAP. 111. curate to reside in the house of residence, he may assign to him the house, gardens, offices, stables, and appurtenances, without payment of rent, and also any glebe land adjacent to the house, not exceeding four acres, at a rent to be fixed by the archdeacon or rural dean and one neighbouring incumbent, and approved by the bishop, during the curate's service or the incumbent's non- residence. If possession of the premises so assigned be not given up to the curate, the bishop may sequester the benefice until possession shall be given, and may direct the application of the profits of the benefice, as in cases of sequestration for non-resi- dence, or may remit the same or any part thereof. Sect. 93. Where the bishop directs that the curate shall reside in the house of residence, in addition to a stipend not less than the whole value, such curate, during the time of his serving such cure, is to be liable to the same taxes, parochial rates, and assessments in respect of such house, &c, as if he had been incumbent. In every other case in which the curate shall so reside, the bishop may order the incumbent to pay the curate any sums which he may have been required to pay and shall have paid, within one year ending at Michaelmas next preceding such order, for any such taxes, &c, as become due after the passing of the Act, pay- ment to be enforced by monition and sequestration. Sect. 94. As to stipend of curate where benefice is sequestered, see post, p. 72. Stipend during Vacancy of Benefice. — The bishop may assign to the curate or curates appointed to perform the duties of any benefice during the vacancy thereof such stipend or stipends as the bishop thinks fit, not exceeding for each curate 200Z. a year, and in proportion only to the time of such vacancy ; but such stipends are not to exceed in the whole the net annual income of the benefice. 48 & 49 Vict. c. 54, s. 10. 4. Removal of. Every curate, upon the vacancy of the benefice to the cure of which he has been licensed, and upon having six weeks' notice from the new incumbent admitted or instituted to the benefice, must quit or give up the curacy ; and if he has been residing in the house of residence, he must, upon having such notice, give up possession thereof, provided that such notice must be given within six months of admission or institution. In other cases, SECT. II.] STIPENDIARY CURATES. 53 the incumbent, whether resident or non-resident, having obtained permission under the hand of the bishop, may require any of his curates to quit his curacy and the house of residence, &c, upon six months' notice thereof, and in the case of the house of resi- dence, &c, the bishop may alone give such notice. 1 & 2 Vict. c. 106, s. 95. In the event of the bishop refusing permission to give notice to quit the curacy, and the incumbent being resident or wishing to reside, there is an appeal to the archbishop. But there is no appeal in the event of the bishop refusing permission to give notice to quit the house. If the curate, having duly received notice, shall refuse to deliver up such premises, or any of them, he is to forfeit 40s. for every day of wrongful possession after service of the notice. Sects. 95 and 96. These sections do not apply to a clergyman officiating in an unconsecrated chapel, by Licence of the bishop and consent of deceased incumbent. Richards v. Fincher, L. E. 4 A. & E. 255. In the case of district churches and chapelries, the licence of the stipendiary curate is not to be rendered void by the avoidance of the church of the parish in which the chapel is, unless revoked by the bishop under his hand and seal. 1 & 2 Vict. c. 107, s. 13. But, in addition to these cases of removal by the incumbent, a summary power is given to the bishop of removing a curate at any time he may think proper by revoking his licence. See ante, p. 49. A licensed curate cannot be summarily dismissed by the incum- bent, even for misconduct, though he may be kept from officiating. R. v. Bishoj) of Rochester, 6 T. R. 165. Curate Quitting his Curacy. — No curate is to quit his curacy until after three months' notice given to the incumbent and the bishop, unless with the consent of the bishop under his hand, on pain of paying to the incumbent a sum not exceeding the amount of the stipend for six months, to be specified under the hand of the bishop. This sum may be retained out of the stipend, if any part thereof remain unpaid, or if it cannot be so retained, may be recovered by action of debt. 1 & 2 Vict. c. 106, s. 97. By canon 48, if curates remove from one diocese to another, they shall not be, by any means, admitted to serve, without testimony in writing of the bishop of the diocese, or ordinary of the place having episcopal jurisdiction, from whence they came, 54 THE PAROCHIAL CLERGY. [CHAP. III. of their honesty, ability, and conformity to the ecclesiastical lays of the Church of England. See Lind. 48 ; Gibs. 896. Section III. — Perpetual Curates. A perpetual curate is practically the same as a vicar. The origin of perpetual curacies was this : By the 4 Hen. 4, c. 12, it is enacted, that in every church appropriated there shall be a secular person ordained vicar perpetual, canonic-ally instituted and inducted, and convenably endowed. If the benefice was given ad mensam monachorum, and by way of union pleno jure, it was served by a temporary curate of their own house as occasion required. And the bike liberty was sometimes granted, by dis- pensation, in benefices not annexed to their tables, in considera- tion of the poverty of the house, or the nearness of the church. But when such appropriations, together with the charge of pro- viding for the cure, were transferred, by the dissolution of the religious houses, from spiritual societies to single lay persons, who were not capable of serving them by themselves, they were obbged to nominate some particular person to the ordinary for his licence to serve the cure ; the curates, by this means, became so far perpetual as not to be wholly at the pleasure of the appro - priator, nor removable but by due revocation of the licence of the ordinary. Gibs. 819. Nature of. — A perpetual curacy is an ecclesiastical benefice, so as to be untenable with any other benefice. See 1 & 2 Viet, c. 106, s. 124. The grant of a rectory passes a perpetual curacy belonging thereto. Arthington v. Bishop of Chester, 1 H. Bl. 418. A perpetual curate has an interest for life in his curacy, and can only be deprived by the bishop in due course of law. He stands, in many respects, in the same position as a vicar before the 4 Hen. 7, c. 12. A perpetual curate cannot lease land annexed to his curacy, so as to bind his successor, without the assent of the ordinary. Doe d. Richardson v. Thomas, 9 A. & E. 556. The right to herbage in a churchyard niay be vested in the lay impropriator and not in the perpetual curate, who may have possession of the churchyard for spiritual purposes only. Green- slade v. Darby, L. E. 3 Q. B. 421 ; 37 L. J. Q. B. 137. SECT. III.] PERPETUAL CURATES. 55 In Newly-erected Benefices. — The churches built or acquired under the Church Building Acts, and appropriated to distinct parishes, are to be perpetual curacies, and considered as benefices presentative so far only that the licence thereto shall operate in the same manner as institution to any such benefice ; and the incumbents thereof are to have perpetual succession, and be bodies politic and corporate, and may take endowments in lands, or tithes, or any augmentations granted to them ; and all such incumbents and persons presenting them are to be subject to all jurisdictions and laws, and to lapse on neglecting to nominate an incumbent for six months, as in cases of actual benefices. 58 Geo. 3, c, 45, s. 25 ; 8 & 9 Vict. c. 70, s. 17. No chapel built or acquired under the 58 Geo. 3, c. 45, in any district parish made so for ecclesiastical purposes under the Act, and which shall not be made the church of such district, shall be a perpetual curacy or benefice, presentative under that Act. 59 Geo. 3, c. 134, s. 19. Churches of district chapelries formed under these Acts are to be perpetual curacies and benefices, whether they have been or have not been augmented by Queen Anne's Bounty — 8 & 9 Vict. c. 70, s. 17; and the like as to churches of separate parishes — 2 & 3 Vict. c. 49, s. 8 ; and consolidated chapelries — 8 & 9 Vict. c. 70, s. 9. Title of Vicar. — Since 1868 the incumbent of the church of every parish or new parish for ecclesiastical purposes, not being a rector, who is authorised to publish banns, and solemnize marriages, churchings, and baptisms in such church, and receive the entire fees for his own use, is, for the purpose of st}de and designation, but not for any other purpose, deemed and styled vicar, and his benefice a vicarage. 31 & 32 Vict. c. 117. Election of. — The right to nominate to a perpetual curacy is sometimes vested in the parishioners by custom, the terms and conditions of which must bo observed in the exercise of the right ; but the courts are generally inclined to support a liberal inter- pretation of such customs, so as to admit the largest number of voters, rather than to abridge the privilege by a rigid construc- tion of the language in which the custom is expressed. Particular Customs to Elect. — By agreement of tho bishop, patron, and incumbent, the inhabitants may have a right to elect 56 THE PAROCHIAL CLERGY. [CHAP. III. and nominate a curate ; and there are instances in which, accord- ing to the custom, he is nominated by the inhabitants (as founders and patrons) to the vicar, and by him presented to the ordinary. In other cases a curate is to be presented by the patron of the church to the vicar, and by him to the archdeacon, who is then obliged to admit him. In some places, the lord of the manor presents a fit person to the appropriators, who, without delay, are to give admission to the person so presented. Kennett, Paroch. Antiq. 589. Lapse. — It is not necessary, in order to prevent a lapse, that the appointment be within six months, unless specially provided for by the founder ; Co. Lit. 344 ; Serjeant HilVs MSS. notes ; except in the case where there has been an augmentation from Queen Anne's Bounty. But the bishop may compel the patron, by spiritual censures, to make the appointment. 1 Inst. 344 ; Gibs. 819. This was so held in Fair child and Gayre, Cro. Jac. 63, with regard to donatives ; and it holds more strongly in the case of curacies, where both church and patron are subject to the ordinary's jurisdiction, and where, therefore, he ma}- like- wise sequester the profits and appoint another to take care of the cure till the patron shall nominate a fit and proper clerk. Gibs. 819. Curates must be Licensed. — By canon 48 no curate or minister shall be permitted to serve in any place without examination, and it must appear that he is in priest's orders, if he is to be licensed to a perpetual curacy; for, by the 13 & 14 Car. 2, c. 4, s. 14, no person shall be admitted to any benefice or ecclesiastical promotion before he shall be ordained priest. Which words extend to all chapels of ease which have received the augmenta- tion of Queen Anne's Bounty, as they are thenceforth to be per- petual cures and benefices. 2 Burn, Ecc. L. 62. As to the subscription and declaration to be made on being licensed to a perpetual curacy, see post, p. 65. CHAPTER IV. THE PAROCHIAL CLERGY— continued. PAGE Section I. Simony 57 IT. Presentation and Admission 59 III. Induction 63 IY. Reading in 65 V. Payment of Tithes 66 VI. Privileges of Clergymen 68 VII. Disabilities of Clergymen 68 VIII. Trading, Farming, Sfc 68 IX. Bankruptcy , , 69 X. Sequestration 70 XI. House of Residence 73 XII. Pluralities 76 XIII. Union of Benefices 79 XIV. Resignation of Benefice 79 XV. Relinquishment of Holy Orders 82 Section I. — Simony. Simony. — In Blacks tone' 's Commentaries simony is defined as tlie corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. In 31 Eliz. c. 6, it is defined to be a corrupt agreement to present. The Royal Commissioners on church patronage made a report in 1879, in which they state that " clergymen of good character and repute have been parties to transactions which the law con- siders simoniacal . . . that it appears doubtful whether simony in the legal sense is committed if a presentation be obtained by corrupt means without the knowledgo of the presentee . . . that the abuses for which a remedy must be sought arise most fre- quently from secret trafficking in livings by clerical agents." In 1884 a Select Committee of the House of Commons reported 58 THE PAROCHIAL CLERGY — Continued. [CHAP. IV. that in their opinion the sale of next presentations should be pro- hibited. These recommendations have at last been given effect to by the Benefices Act, 1898 (61 & 62 Vict. c. 48), which enacts that a transfer of a right of patronage of a benefice is not valid unless — (a) it is registered in the prescribed manner in the registry of the diocese within one month from the date of the transfer, or within such extended time as under special circumstances the bishop may think fit to allow ; and (b) it transfers the whole interest of the transferor in the right, except as hereinafter provided ; and (c) more than twelve months have elapsed since the last insti- tution or admission to the benefice. It is not lawful to offer for sale by public auction any right of patronage, save in the case of an advowson to be sold in con- junction with any manor, or with an estate in land of not less than one hundred acres situate in the parish in which the benefice is situate or in an adjoining parish and belonging to the same owner as the advowson, and any person who offers any right of patronage for sale by auction in contravention of this section, or who bids at any such sale, is liable, on summary conviction, to a fine not exceeding 100/. 61 & 62 Vict. c. 48, s. 1. Any agreement for any exercise of a right of patronage of a benefice in favour or on the nomination of any particular person, and any agreement on the transfer of a right of patronage of a benefice — (a) for the re-transfer of the right ; or (b) for postponing payment of any part of the consideration for the transfer until a vacancy or for more than three months ; or (c) for payment of interest until a vacancy or for more than three months ; or (d) for any payment in respect of the date at which a vacancy occurs ; or (e) for the resignation of a benefice in favour of any person, is invalid. Ibid. If any clergyman is knowingly party or privy to any transfer, presentation, or agreement which is invalid under this section, or commits any breach of the promissory part of his declaration, he is guilty of an offence in respect of which proceedings may be SECT. I.] SIMONY. 59 taken under section two of the Clergy Discipline Act, 1892 (post, p. 88). Ibid. The expression "transfer" in this section includes any con- veyance or assurance passing or creating any legal or equitable interest inter vivos, and any agreement for any such conveyance or assurance, but does not include — (a) a transmission on marriage, death, or bankruptcy, or other- wise by operation of law ; nor (b) a transfer on the appointment of a new trustee where no beneficial interest passes. Ibid. Nothing in this section prevents the reservation or limitation in a family settlement of a life interest to the settlor, or in a mortgage the reservation of a right of redemption. Ibid. As to the meaning of the term "benefice" in the above Act, Bee post, p. 78. Under the Church Building and New Parishes Acts the Ecclesiastical Commissioners have power to assign the patronage of, or presentation to, the churches of new parishes in return for endowment, ante, p. 10. A clergyman can sell or assign any patronage or presentation belonging to him by virtue of his office for the purpose of forming new parishes or augmenting a living. 9 & 10 Vict. c. 88 ; 32 & 33 Vict. c. 94, ss. 12, 13. Section II. — Pbesentation and Admission. Incumbent. — By incumbent is meant the individual, whether rector, vicar, or by whatever title he is known, who is the eccle- siastical head of the parish and temporal representative of his church. The rights and duties of the incumbent, with respect to the various temporalities of his church, will be detailed under the different heads into which the general subject is divided. How appointed. — Every incumbent must be presented, ad- mitted, instituted, and inducted. Presentation is the offering of the clerk to the bishop. Admission is the approval of the presentee by the bishop after examination; and institution is the act by which he commits the cure to him. Wats. c. 15. "When the benefice is in the bishop's gift or falls to him by lapse, the bishop does not present, but institutes at once, and this is called Collation. Induction is the giving actual possession of the temporalities of the benefice. Presentation gives to the 60 THE PAROCHIAL CLERGY — Continued. [CHAP. IV. clerk a right ad rem, but institution or collation gives him a right in re, and enables him, to enter into the glebe. It is a prerogative of the Crown to present to a benefice in England which becomes vacant by the promotion of the incumbent to a bishopric in England. R, v. Provost and Felloics of Eton College, 27 L. J. Q. B. 132. AH presentations must be in writing. 29 Car. 2, c. 3, s. 4. The}' need not be under seal. If the instrument of presentation is drawn up by the bishop's secretary, he is entitled to charge a fee of 27. 2s. No other fee is payable, and there is no stamp duty. Abolition of Donatives. — Every benefice with cure of souls which on the 1st of January, 1898, is donative shall as from that date be presentative. 61 & 62 Vict. c. 48. Grounds for Refusal to Institute or Admit a Presentee. — A bishop may refuse to institute or admit a presentee to a bene- fice — (a) if, at the date of the vacancy, not more than one year has elapsed since a transfer, as defined by section 1 of the Benefices Act, 1898 [ante, p. 58), of the right of patronage of the benefice, unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year ; or (b) on the ground that at the date of presentation not more than 3 years have elapsed since the presentee was ordained deacon, or that the presentee is unfit for the discharge of the duties of the benefice by reason of physical or mental infirmity or incapacity, pecuniary embarrassment of a serious character, grave misconduct or neglect of duty in an ecclesiastical office, evil life, having by his conduct caused grave scandal concerning his moral character since his ordination, or having, with reference to the presenta- tion, been knowingly party or privy to any transaction or agreement which is invalid under the Benefices Act, 1898. A bishop cannot collate, institute, or admit any person to a benefice until the expiration of one month after notice, in the prescribed manner, that he proposes to collate, institute, or admit such person has been served on the churchwardens of the parish, who must publish the notice in the prescribed manner. 61 & 62 SECT. II.] PRESENTATION AND ADMISSION. 61 Vict. c. 42, s. 2. The expression "duty" in this section means ecclesiastical duties as defined by Pluralities Acts Amendment Act, 1885, s. 2, omitting the following words therein "and the performance of which shall have been required of him in writing by the bishop." Appeal against Refusal to Institute. — Where a bishop, on any ground included in section two of this Act or of unfitness or disqualification of the presentee otherwise sufficient in law, except a ground of doctrine or ritual, refuses to institute or admit a presentee to a benefice, he shall signify the refusal in writing together with the grounds thereof to the person pre- senting to the benefice and to the presentee in the prescribed manner, and within one month after the signification either of those persons may, in the prescribed manner, require that the matter be heard by a court consisting of the archbishop of the province and of a judge of the Supreme Court, who shall be nominated by the Lord Chancellor from time to time for the purposes of this Act, and the bishop shall be made a party to the proceedings. The court constituted under this Act shall be a court of record and shall be held in public, and at any hearing the legal rules of evidence shall prevail. The judge shall decide all questions of law and find as to any fact alleged as reason of unfitness or disqualification and his decision on such questions of law and his finding as to any such fact shall be binding on the archbishop, who shall thereupon — (i) if the judge finds that no such fact sufficient in law exists, direct institution or admission ; or (ii) if the judge finds that any such fact sufficient in law exists, decide if necessary whether by reason thereof the presentee is unfit for the discharge of the duties of the benefice and determine whether institution or admission ought, under the circumstances, to be refused, and in either case tho archbishop shall give judgment accord- ingly, and that judgment shall be final. The court shall have the same powers of administering oaths and of requiring the attendance of witnesses and the production by them of documents, and as to the payment and recovery of costs and expenses, as are exerciseable by the High Court of Justice. If, within one month after a j udgmont of the court in favour 62 the parochial clergy — continued, [chap. IV. of a presentee, the bishop fails to institute or admit him, the official principal of the archbishop shall institute or admit him if thero is no other impediment. If in any case to which this section applies the bishop signi- fies his refusal in manner provided by this section, no proceeding in the nature of quare impedit or duplex querela shall be taken in any other court in respect of the refusal. Where the presentation is made to an archbishop, the arch- bishop of the other province, whether Canterbury or York, and such judge as aforesaid, shall constitute the court. Sect. 3. Provision as to Grounds of Refusal.- — The bishop may, on the hearing of any case under sect. 3 of this Act, rely on — (i) any ground included in his signification of refusal ; and (ii) by the leave of the judge (on such terms as to notice, costs, adjournment, or otherwise, as the judge thinks fit), any other ground sufficient in law (not being of doctrine or ritual). Sect. 4. Provision as to Lapse. — In reckoning the date for lapse, no account shall be taken, in the case of the first and second pre- sentations by a patron in respect of the same vacancy, of the period between a presentation by the patron and the refusal by the bishop to institute or admit the presentee, or of the period between the refusal of the bishop to institute or admit and the decision of the court upon such refusal ; nor in case of a bishop having a right to collate to a benefice of the period between the service of the notice on the churchwardens under the provisions of this Act and the expiration of a month from the said service. Sect. 5. Eight of Presentation. — A patron may not present again a person who has been refused by the bishop in respect of the same vacancy, and any such second presentation shall be void. In the event of the presentee of a clerical patron being refused institution or admission by the bishop, and of such decision being upheld, the patron shall have the same right of further presentation as though he were a lay patron. Sect. 6. The bishop may, in the four Welsh dioceses, refuse institution or licence to any person who is found unable to preach, adminis- ter the sacrament, and converse in Welsh. 1 & 2 Vict. c. 106, s. 104. The bishop of a Welsh diocese, on presentment for SECT. II.] PRESENTATION AND ADMISSION. 63 institution to a benefice of a clergyman who cannot speak "Welsh, has an absolute discretion as to the mode of ascertaining the needs of the parish, and is not bound to hold a formal enquiry of a judicial character, and is justified in refusing institution on the report of persons commissioned by himself. Abergavenny v. Llandaff, 20 Q. B. D. 460. Requirements as to Age. — Every person must have been ordained priest before he can be admitted to any parsonage, vicarage, benefice or other ecclesiastical preferment whatever ; and any one presuming to be admitted without such ordination forfeits 100?. 14 Car. 2, c. 4. No person can be ordained priest until he is twenty-four years of age, or admitted deacon until he shall have attained the age of twenty-three years. Gibs. 848. The rubrical age for ordination is ratified by 44 Geo. 3, c. 43. A deacon is qualified to act as an assistant to the priest, but has no independent authority to perform the higher offices of the ministry, and is forbidden to hold any benefice, or to consecrate and administer the Holy Sacrament of the Lord's Supper under a penalty of 1,000/. There has been much difference of opinion as to whether only a priest ought to be allowed to pronounce the absolution. By the Act of Uniformity (13 & 14 Car. 2, c. 4), the morning and evening prayers are expressly ordered to be openly, publicly, and solemnly read in every church by some priest or deacon, and no exception is therein made for the abso- lution, although a deacon is liable to a penalty under that Act if he administer the Lord's Supper. It therefore seems that if no priest is present, it is the statutory duty of a deacon conducting the service to read the absolution. A presentation before institution may be revoked. Rogers v. Holled, 2 W. Bl. 1039; Att.-Gen. v. Wyclife, 1 Ves. sen. 81. Or the patron may, before admission, present a second clerk, but if he does so, the ordinary may admit which he chooses. Vin. Ab. " Presentation" V. a. The death of the patron before insti- tution is not a revocation. Ibid. Section III. — Induction. Induction is an act of a temporal nature ; for by it the incum- bent becomes seised of the temporalities of the church. By this ceremony he is put in tho actual possession of part for the whole, 64 THE PAROCHIAL CLERGY — continued. [CHAP. IV. as the key, and may afterwards maintain an action for a trespass on the glebe, though he has not actually entered upon the glebe itself. Bulwer v. Bulwer, 2 B. & Aid. 470. The mandate for induction is usually addressed to the archdeacon of the diocese. The ceremony of induction is as follows : The person who in- ducts takes the clergyman by the hand and lays it upon the ring of, or the key in, the church door and says — " By virtue of this mandate I do induct you into the real, actual, and corporeal possession of the church of A., with all the rights, profits, and appurtenances thereunto belonging," after which the inductor opens the door and puts the clerk into the church, who usually tolls the bell to make his induction public and known to the parishioners. Freehold of Church. — Although the freehold of the parish church, with all its appurtenances, vests in the incumbent upon his induction, he is liable to deprivation, unless he confirm his possession by the due observance of the several conditions required by law. Oaths. — Before institution, collation, or licensing, the parson must take the oaths of allegiance and supremacy in the presence of the archbishop or bishop by whom he is instituted, collated, or licensed, or the commissary of such archbishop or bishop ; 28 & 29 Vict. c. 122, s. 5 ; and also must make and subscribe the declaration of assent (see post, p. 65), and the declaration against simony. The declaration against simony is as follows : — "I, C. D., hereby solemnly and sincerely declare in reference to the presentation made of me to the rectory (or vicarage, &c.) of as follows — "(1.) I have not received the presentation of the said rectoiy (or vicarage, &c.) in consideration of any sum of money, reward, gift, profit, or benefit directly or indirectly given or promised by me, or by any person to my knowledge or with my consent, to any person whatsoever, and I will not at any time hereafter per- form or satisfy any payment, contract, or promise made in respect of that presentation by any person without my knowledge or consent. "(2.) I have not entered, nor, to the best of my knowledge and belief, has any person entered, into any bond, covenant, or SECT. III.] INDUCTION. 65 other assurance or engagement, otherwise than as allowed by sections one and two of the Clergy Resignation Bonds Act, 1828 (9 Geo. 4, c. 94), that I should at any time resign the said rectory (or vicarage, &c). "(3.) I have not by myself, nor, to my knowledge, has any person on my behalf, for any sum of money, reward, gift, profit, or advantage, or for or by means of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly procured the now existing avoidance of the said rectory (or vicarage, &c). " (4.) I have not, with respect to the said presentation, been party or privy to any agreement which is invalid under section one, sub-section three, of the Benefices Act, 1898. Dated this day of 18 . C. DP 61 & 62 Vict. c. 48. Section IV. — Reading in. The incumbent is bound, within two months after induction, to read the morning and evening prayers at the proper times appointed ; and after such reading, to declare publicly, before* the congregation assembled, his unfeigned assent to the use of all things therein prescribed, in the form provided by the Act. 13 & 14 Car. 2, c. 4, s. 4. Every person instituted or collated to any benefice with cure of souls, or licensed to a perpetual curacy, shall, on the first Sunday on which he officiates in the church of such benefice or perpetual curacy, or on such other Sunday as the ordinary may appoint and allow, publicly and openly, in the presence of the congregation there assembled, read the Thirty-nine Articles of religion and, immediately after reading the same, make the declaration of assent, adding after the words "articles of religion " in the declaration the words "which I have now read before you." 28 & 29 Vict. c. 122, s. 7. The declaration of assent is as follows : — "I, A. B., do solemnly make the following declaration: I assent to the Thirty-nine Articles of religion and to the Book of Common Prayer, and of the ordering of bishops, priests, and deacons. I believe the doctrine of the Church of England, as s. F 66 '1HE PAROCHIAL CLEKGY continued. [CHAP. IV. therein set forth, to be agreeable to the word of God ; and in public prayer and administration of the sacraments I will use the form iu the said book prescribed, and none other, except so far as shall be ordered by lawful authority." Sect. 1. Non-compliance with such requirements involves an absolute forfeiture of the benefice or perpetual curacy. Sect 7. A curate on being licensed need not read the Articles, but must make the declaration of assent on the first Sunday on which he officiates in the church to which he is licensed, in the presence of the congregation, and at the time of divine service. Sect. 8. Section V. — Payjiext of Titiies. This subject will probably soon have lost all its interest, and already most of the decisions on the law of tithes have become obsolete. Formerly all lands in the hands of laymen were subject to the payment of tithes, until special exemption could be shown ; but now all lands, with certain exceptions, are freed and discharged from the actual render of tithes. This discharge has been accom- plished either (1) by non-payment of tithe for a certain length of time ; (2) by special Acts of Parliament, such as the Inclosurc Acts; (3) by the Tithe Commutation Act (6 & 7 Will. 4, c. 71), which substituted a rent-charge on all lands at that time subject to the payment of tithes, for the tithe of the produce of those lands ; (4) by other lands given in lieu of the tithe or rent-charge (6 & 7 "Will. 4, c. 71, s. 29) ; (5) by the redemption (9 & 10 Vict. c. 73 ; 23 & 24 Vict. c. 93), merger (6 & 7 WiU. 4, c. 71, s. 71 ; 1 & 2 Vict, c. 64 ; 2 & 3 Vict. c. 62 ; 9 & 10 Vict. c. 73), and extinguish- ment of tithe and tithe rent-charge. Provision is now made for the redemption of the rent-charge on lands required for churches, cemeteries, schools, public buildings, sewage-farms, sewers, gas or waterworks. 41 & 42 Vict. c. 42. Also, by the same Act, where the rent-charge does not exceed 20s., and also where it exceeds that sum, with the consent of the bishop and patron. The Tithe Commutation Acts are amended by 49 & 50 Vict, c. 54, as to extraordinary tithe rent-charge on hop grounds, orchards, fruit plantations, and market gardens ; that Act provides for fixing the capital value thereof, and the redemption of the same. SECT. V.] PAYMENT OF TITHES. 67 Who liable to Pay. — Formerly tithe or tithe rent-charge was payable by the tenant, now it is payable by the owner of the lands, notwithstanding any contract between him and the occupier of such lands, and any contract made between an occupier and owner of lands after the paying of the Tithe Act, 1891, for the payment of the tithe rent-charge by the occupier, is void. 54 Vict. c. 8, s. 1. Recovery of. — The recovery of tithe rent-charge is now regulated by the Tithe Act, 1891. Where any sum due on account of any tithe rent-charge issuing out of any lands is in arrear for not less than three months, the person entitled to such sum may, whatever is the amount, apply to the county court of the district in which the lands or any part thereof is situate. 54 Vict. c. 8, s. 2. It cannot be recovered in any other manner, but an appeal on points of law, &c, to the nigh Court is provided for. Proceed- ings for such recovery must be commenced before the expiration of two years from the date at which the tithe rent-charge became payable. Sect. 10. Only two years' arrears are recoverable, and the land cannot be sold. Nothing in the Act is to impose or con- stitute any personal liability upon any owner or occupier of lands for the payment of tithe rent-charge, and the county court judge has no power to imprison any such occupier or owner by reason only of the non-payment of such tithe rent-charge. Where a sum claimed on account of tithe rent-charge exceeds two-thirds of the annual value of the lands the county court judge shall order the remission of so much, whether the whole or part of the sum claimed, as is equal to the excess, and the amount so ordered to be remitted shall not be recoverable. Sect. 8. It is important to note that the provisions of the Tithe Act, 1891, apply to tithe rent-charge issuing out of lands and payable in pursuance of the Tithe Acts, and include auy rent-charge into which a corn rent has, either before or after the passing of the Act, been converted under the Tithe Act, 18 GO, and which is subject to the like incidents as such tithe rent-charge as afore- said ; but do not apply to a rent-charge payable under the Extraordinary Tithe Redemption Act, 1866 (49 & 50 Vict. c. 54), nor to a rent-charge payable under the Tithe Act, 1860, in respect of the tithes on any gated or stinted pasture, nor to a sum or rate payable for each head of cattle or stock turned on land subject to eommon rights, or held or enjoyed in common. i-2 68 the parochial clergy — continued. [chap. IV. Section VI. — Privileges of Clergymen. Any rector, vicar, or curate " going to or returning from visit- ing any sick parishioner, or on other parochial duty within his parish," is exempted from toll on turnpike roads; 3 Geo. 4, c. 126, s. 32 ; and from arrest whilst performing divine service, or whilst going to perform or returning from performing it. 24 & 25 Vict. c. 100, s. 6. A clergyman bona fide going to visit a sick parishioner is not, by reason of his having other persons in the carriage with him, disentitled to the exemption. Layard v. Ovey, L. E. 3 Q. B. 415 ; 37 L. J. M. C. 158 ; 18 L. T. 632. Clergymen are exempted from serving on juries. 33 & 34 Vict. c. 77, s. 90. They are not compellable to serve as sheriff, con- stable, or overseer of the poor. Degge, p. 120. Section VII. — Disabilities oe Clergymen. Clergymen cannot be elected as councillors or aldermen of any borough. 45 & 46 Vict. c. 50, s. 12. Clerks in holy orders and other ministers of religion may be elected and be aldermen or councillors of a county council; 51 & 52 Vict. c. 41, s. 2; and they may be members of school boards. 33 & 34 Vict. c. 75. Clergymen (but not dissenting ministers) are disqualified from being members of the House of Commons ; 41 Geo. 3, c. 63; but on relinquishment of the sacred office, under 33 & 34 Vict. c. 91, they are discharged from all restraints and prohibition under those Acts. See post, p. 82. Section VIII. — Trading, Farming, &c. The statute in force with respect to trading is the 1 & 2 Vict. c. 106, s. 28 of which enacts, that no spiritual person licensed to perform the duties of an} 7 ecclesiastical office whatever shall take to farm for occupation by himself any lands exceeding 80 acres in the whole, for the purpose of cultivation, without permis- sion in writing by the bishop, specially given for that purpose under his hand, every such permission to specify the number of years, not exceeding seven, for which it is given. And every spiritual person so offending is to forfeit 40s. for every acre above 80 acres for each year of such occupation and cultivation. By sect. 29 no spiritual person, as above, is to trade or deal for gain SECT. VIII.] TRADING, FARMING, ETC. G9 or profit in any goods, &c, unless such trading or dealing shall be carried on by more than six partners, or unless such trading or dealing shall have devolved on him by devise, bequest, inheri- tance, settlement, marriage, bankruptcy, or insolvency ; but in no case is he to act as director or managing partner, or to carry on such trade in person. See 4 Vict. c. 14, which provides that no association or co-partnership, or contract entered into by any of them, is to be illegal or void by reason only of spiritual persons being members or shareholders thereof. Exceptions. — Sect. 80 of 1 & 2 Vict. c. 106, contains certain exceptions in the cases of spiritual persons engaged in education, or of articles bond fide bought to be consumed in the family, though in part sold at an advanced price ; or of books sold by means of a bookseller or publisher ; or of being director, partner, or shareholder in any benefit or fire or life assurance society ; or of buying and selling articles necessary for his glebe or demesne lands ; or selling the produce of his mines. Therefore, the restric- tion against taking farms of above 80 acres, without the con- sent of the bishop, does not prevent an incumbent from farming his own glebe lands, or lands allotted to him under any Inclosure Act in lieu of tithes. But no spiritual person is to buy or sell in any market, fair, or place of public sale. Penalties. — Spiritual persons trading or dealing contrary to the Act may be cited by the bishop before a competent judge ; and the penalty is, for the first offence, suspension for a period not exceeding one year; for the second offence, suspension for such period as the judge shall think fit ; for the third offence, depriva- tion. Sect. 31. Contracts not Void. — But no contract is to be deemed void by reason only of its having been entered into by a spiritual person trading or dealing against the Act ; but such contract may be enforced by or against such spiritual person, though both parties contracted with knowledge of the facts constituting the illegality. Lewis v. Bright, 4 E. & B. 917 ; 24 L. J. Q. 33. 191. Section 3X. — Bankruptcy. A clergyman may bo made a bankrupt in the same way as a layman, but the emoluments of the benefice do not vest in the trustee in bankruptcy. 70 THE TAROCHIAL CLERGY — Continued. [cHAr. IV. The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), sect, 52, pro- vides that, where a bankrupt is a beneficed clergyman, the trustee may apply for a sequestration of the profits of the benefice, and the certificate of the appointment of the trustee is to be sufficient authority for the granting of a sequestration ; but the sequestra- tor is to allow out of the profits of the benefice to the bankrupt, while he performs the duties of the parish or place, such an annual sum, payable quarterly, as the bishop of the diocese directs. The sequestrator shall also pay out of the profits of the benefice the salary payable to any licensed curate of the church of the benefice in respect of duties performed by him as such during four months before the date of the receiving order not exceeding 50/. This sequestration has priority over any other sequestra- tion issued after the commencement of the bankruptcy in respect of a debt provable in the bankruptcy, except a sequestration issued before the date of the receiving order, by or on behalf of a person who at the time of the issue thereof had not notice of an act of bankruptcy. 46 & 47 Vict. c. 52, s. 52. Where incum- bents presented or collated after 1st of January, 1899, become bankrupt and sequestration issues, their benefices may become void in certain cases. 61 & 62 Vict. c. 48, s. 10, post, p. 72, Section X. — Sequestration. There are two kinds of sequestration : first, where it issues at the suit of a creditor, and the bishop acts ministerially in aid of the sheriff ; and second, where it issues as an ecclesiastical sen- tence and the bishop acts originally. We will first consider the latter kind of sequestration. 1. Ecclesiastical Sequestration. A sequestration may issue originally from the bishop acting judicially, for many causes, as for dilapidations, Godol. App. 14 ; default of insurance, or non-payment of principal and interest due on mortgages, under 17 Geo. 3, c. 53, s. 6 ; 1 & 2 Vict. c. 106, s. 67 ; on account of vacancy of the benefice, Godol. App. 14 ; trading, non-residence, or other causes under 1 & 2 Vict. c. 106, which Act also directs the application of the profits, and provides that sequestration under it shall have priority, with the exception of prior sequestrations issued under 17 Geo. 3, c. 53. See sect, 110, and 34 and 35 Vict. c. 43. SECT. X,] SEQIESTRATIOIsr. 71 A sequestration issued by virtue of a decreo of suspension under the Church. Discipline Act has the effect, from the time of its publication, of suspending the right to tako the profits of the benefice under a prior sequestration founded on a writ of levari facias. Banter v. Cressivell, 14 Q. B. 825. The fruits of the sequestration belong to the bishop as chief pastor of the church, subject to the duty of providing for the services. Re Thakeham Sequestration Moneys, L. E. 12 Eq. 494. See post, Eights of Sequestrators, p. 73. 2. Civil Sequestration. No levy can be made by the sheriff under a writ oifi.fa. upon an incumbent's ecclesiastical goods. Where it appears, upon the return of any writ of fieri facias, or any writ of elegit, that the person against whom such writ was so issued is a beneficed clerk, and has no goods or chattels, nor any lay fee in the bailiwick of the sheriff to whom such writ was directed, the person to whom the sum of money or costs mentioned in such writ is or are payable shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out one or more writs of fieri facias cle bonis ecclesiasticis, or one or more writs of sequestration. Such writs when sealed are to be delivered to the bishop to be executed by him, and such writs when returned by the bishop are to be delivered to the parties or solicitors. Eules, Supreme Court, 1883, 0. XLIII. rr. 3, 4. In these cases the bishop is a ministerial officer in place of the sheriff, and is bound to execute the first valid writ in point of date, and the Queen's Bench Division has the same power over him as over the sheriff. R. v. Bishop of London, 1 D. &. E. 48G; Campbell v. Whitehead, 1 Hagg. Con. 311, n. This kind of sequestration is a continuing execution, and con- tinues in force until the debts and costs are realized, without reference to the time at which the writ is made returnable, or until the bishop is ruled to return it, which puts an end to the writ. Marsh v. Fawcett, 2 II. Bl. 582; Powell v. Hibbert, 15 Q. B. 138. Therefore a bishop may return a writ directed to his predecessor. Phelps v. St. John, 10 Exch. 895. Upon the bishop's return the Court will refer it to the master to examine the propriety of the deductions made f rom the sum levied. Morris v. Phelps, 4 Exch. 895. 72 the farochial clergy— continued. [chap. IV. Under a sequestration the landlord is entitled to be paid arrears of rent. Dixon v. Smith, 1 Swanst. 457. Where Benefice becomes Void. — In the case of incumbents presented or collated after the 1st of January, 1899, if, on bankruptcy, or in aid of any writ of execution against property, the benefice of any such incumbent is sequestrated "within 12 months after his institution, or if such sequestration, if issued after that period, continues for the space of one whole year, or if any such incumbent incurs two such sequestrations in the space of two years, the benefice is to (unless the bishop in the manner and within the time to be prescribed otherwise direct) become void, and sect. 58 of the Pluralities Act, 1838 (post), is to apply in like manner as if the benefice had become void under that section. 61 & 62 Yict. c. 48, s. 10. Bishop to appoint Curate. — Where, under a judgment re- covered against the incumbent of a benefice or under the bank- ruptcy of such incumbent, a sequestration issues, and remains in force for six months, the bishop shall, after the expiration of such six months, and as long as the sequestration remains in force, provide for the due performance of the sendees of the church of the benefice, and have power to appoint and license curates for that purpose, with such stipend as the bishop thinks fit, provided that such stipend shall not exceed in the whole two thirds of the annual value of the benefice. 34 & 35 Vict. c. 45, s. 1. Every stipend so assigned is to be paid by the sequestrator out of moneys coming to his hands under the sequestration, as long as it is in force, in priority to all sums payable by virtue of the judgment or the bankruptcy under which the sequestration issues, but not in priority of liabilities in respect of charges on the benefice. Sect. 3. Bishop may Inhibit. — Where such a sequestration remains in force for more than six months, the bishop may, if it appears to him that scandal or inconvenience is likely to arise from the incumbent continuing to perform the services of the church while the sequestration remains in force, inhibit the incumbent from performing any servici is of the church within the diocese. Sect. 5. During sequestration the incumbent's right of presentation to any vacant benefice of which ho may be patron, in right of the benefice, under sequestration, is suspended. Sect. 6. SECT. X.] SEQUESTRATION. 73 During sequestration the incumbent of the sequestered benefice cannot accept any other benefice or preferment without the written consent of the bishop and the sequestrator. Sect. 7. The incumbent's right to appoint a parish clerk, and all other rights not expressly taken away by the Sequestration Act, 1871 (34 & 35 Vict. c. 45), remain untouched. Lawrence v. Edwards, (1891) 1 Ch. 144 ; (1891) 2 Ch. 72 ; 60 L. J. Ch. 336 ; 64 L. T. 343. Rights of Sequestrators. — Sequestrators are not to meddle with any timber, trees, wood or underwood standing upon the glebes of the living, unless it be for necessary repairs of the church or parsonage, nor to commit any other waste thereupon. 9 Hen. 3, c. 5. A bishop within six months after sequestration issued may direct a surveyor elected under the Ecclesiastical Dilapidations Act, 1871, to inspect the buildings of a benefice, and such inspec- tion is to be renewed in every fifth year, while such benefice is under sequestration. 34 & 35 Vict. c. 43, s. 13. Within one month after inspection, the report of the surveyor must be sent to the sequestrator. Sect. 14. As to further proceedings thereon, see ante, p. 37. A sequestrator has no authority to expend on repairs out of the proceeds of the benefice a larger sum than that estimated as necessary by the surveyor's report under the Ecclesiastical Dilapidations Act, 1871. lumber v. Paravicini, 15 Q. B. D. 222 ; 54 L. J. Q. B. 471 ; 53 L. T. 299. And in the case of a seques- tration for dilapidations, all the profits are not to be taken, but a portion is to be left to the minister for his livelihood. 34 & 35 Vict. c. 43. The sequestrator whilo in possession collects all the rents and profits, and can sue in his own name, and recover tithes, rent- charges, fees, or any other payments in respect of the benefice, and givo effectual discharges for the same. 12 & 13 Vict. c. 67. Section XL — House of Eesidence. Many statutes have been passed with the object of providing houses of residence for incumbents. See 17 Geo. 3, c. 53; 21 Geo. 3, c. 66 ; 7 Geo. 4, c. 66 ; 1 Vict. c. 23 ; 1 & 2 Vict. c. 106 ; 5 & 6 Vict. c. 26, and 28 & 29 Vict. c. 69. These Acts are often called " Gilbert's Acts," because the first of them was introduced 74 the parochial CLERGY — continued. [chap. IV. by a Mr. Gilbert. In the case of these Acts dealing with the position of houses of residence " it has unfortunately happened, as in the case of the Church Building Acts, that enactments for the same purposes have heen multiplied without any apparent utility, and that much has heen specifically re-enacted, which might have heen accomplished by reference to former Acts ; so that it has become a difficult matter, especially for those for whoso use they are principally designed, to know which of the provisions of these statutes are practically repealed, or by which their own particular case is to be regulated." Cripps, 6th ed., p. 259. The principal Act on this subject (17 Geo. 3, c. 53, commonly called " Gilberts Act ") states that " Whereas many of the parochial clergy, for want of proper habitations, are induced to reside at a distance from their benefices, by which means the parishioners lose the advantage of their instruction and hospitality, which were great objects in the original distribution of tithes and glebes for the endowment of churches." That Act enables the incumbent of a living, with the consent of the bishop and patron, to add to, as well as to repair or build, a rectory house ; and necessary or sufficient repairs within the meaning of the Act are such repairs or additions as the bishop thinks fit, for making the rectory a fit and comfortable habitation for a clergyman. Boyd v. Barker, 28 L. J. Ch. 445. It was also decided in that case that an incumbent may advance his own money, and charge the living with the money so advanced. An incumbent may in manner provided by these Acts raise money for the purpose of purchasing any lands or hereditaments not exceeding twelve acres, contiguous to or desirable to be used with the parsonage house or glebe, or for the purpose of building any offices, stables, or out-buildings, or fences necessary for the occupation or protection of such parsonage, or for the purpose of restoring, repairing, or rebuilding the fabric of the chancel of the church (where the incumbent is liable to repair the same), or for the purpose of building, improving, enlarging, or purchasing any farm house, or farm buildings, or labourers' dwelling-houses, belonging to or desirable to be acquired for any farm or lands appertaining to such benefice, any sum not being less than 100/., and not exceeding three years' net income of such benefice. Cer- tain expenses incidental to such purchase may bo paid out of the sum to be borrowed. 28 & 29 Vict. c. 69, s. 1. SECT. XI.] HOUSE OF RESIDENCE. 75 The incumbent of any benefice may after the prescribed notice to the bishop of the diocese and the patron of the benefice, apply to the Board of Agriculture to approve the sale of the glebe land of such benefice, or any part thereof, except parsonage house, &c. 51 & 52 Vict. c. 20. Charges for improvements upon ecclesiasti- cal lands, otherwise than with the consent of the bishop, are pro- hibited. 47 & 48 Vict, c. 67. Corporations and persons under disability or incapacity are now authorised to convey houses and lands for parsonages. Sect 4. These Acts also contain provisions for the purchase, sale, and exchange of residence houses, and for grants»of land or money being made for the same purposes. See also 43 Geo. 3, c. 108 ; 51 Geo. 3, c. 1 15 ; 55 Geo. 3, c. 147 ; 19 & 20 Vict. c. 104, s. 27. Fire Insurance. — The incumbent of every benefice is to insure, and during his incumbency keep insured, the house of residence, and farm, and other buildings belonging to the benefice, and also the chancel of the church when the incumbent is liable to repair it, against loss or damage by fire, in some fire office to be selected by the incumbent, in at least three-fifths of the value thereof. 34 & 35 Vict. c. 43, s. 54. The annual receipt for the premium for such insurance is to be exhibited at the first visitation of the bishop or archdeacon next ensuing, after the same becomes payable. Sect. 55. Sums received from the insurance office on the destruction of buildings by fire are to bo expended in restoring them. Sect. 56. If, when any building belonging to a benefice is destroyed or damaged by fire, guch building is not insured against loss or damage by fire for an amount sufficient to reinstate and make good the same, the cost of restoration is to be paid by the incumbent, and to be recoverable by sequestration. Sect. 57. Removal of Unnecessary Building. — If any building belonging to or forming part of any house of residence is unnecessary, the bishop may, upon the application of the incumbent, and with tho written consent of the patron of the benefice, authorise in writing the removal of the said building, and the proceeds, if any, of such removal are to be applied to the improvement of the benefice in such manner as tho bishop of the dioceso and the patron of the benefice may agree on. 34 & 35 Vict. s. 71. 76 the parochial clergy — continued. [(HAP. IV. Farming 1 Leases, &c. — Incumbents of benefices, with the con- sent of bishop anl patron, may lease lands belonging to their benefices for fourteen years, under certain restrictions. The term to be granted by any such lease may be twenty years in any case where the lessee shall covenant thereby to improve the demised premises by drainage, buildings, &c. 5 Vict. c. 27, s. 1. No such lease is to be valid unless the parsonage house and offices, and 10 acres of glebe land situated most conveniently for the actual occupation of the incumbent, are omitted from the lease. Where the lands comprised in any lease under the Act are situate five miles or upwards from the parsonage house, the provision for the reservation of a stipulated number of acres of the glebe land is not applicable. Sect. 2. Any agreement for letting the house or the buildings, gardens, orchards, or appurtenances necessary for the convenient occupation of the same, belonging to any benefice, to which house of residence any spiritual person may be required by order of the bishop to proceed and reside therein, is to be void. 1 & 2 Vict. c. 106, s. 59. Ecclesiastical corpora- tions, aggregate or sole, may grant building leases under certain restrictions. 5 & 6 Vict. c. 108. Widow occupying Residence. — On the decease of any spiritual person holding any benefice to which a house of residence is annexed, and in which he shall have been residing at the time of his death, his widow may occupy such house for any period not exceeding two calendar months after his death, holding and enjoying therewith the curtilage and garden belonging to such house. 1 & 2 Vict. c. 106, s. 36. Sectiox XII. — Pluralities. Pluralities — The law on this subject now depends on the 1 & 2 Vitt. c. 106; 13 & 14 Vict. c. 98; 48 & 49 Vict. c. 54; 50 & 51 Vict. c. f 8 ; and 61 & 62 Vict. c. 48. Their chief provi- sions are as follows : — Cathedral Preferments and Benefices. — No spiritual person holding more than one benefice shall take to hold therewith any cathedral preferment or any other benefice; or, holding any cathedral preferment and also a benefice, shall take to hold there- with any other cathedral preferment or benefice ; or, holding any preferment in any cathedral or collegiate church, shall take to SECT. XII.] PLURALITIES. 77 hold therewith any preferment in any other cathedral or collegiato church. But a cathedral preferment, with or without a benefice, may he held with any office in the same cathedral or collegiate church, the duties of which are statutably or accustomahly per- formed by the person holding such preferment. 1 & 2 Vict. c. 106, s. 2. Such canons as have assigned to them for their support a fixed proportion of the cathedral revenue are called ''prebendaries." 3 & 4 Vict. c. 113. Honorary Canonries. — The holding of an honorary canonry or of any prebend, dignitj^, or office, not endowed, or whereof the emoluments, &c, are vested in the Ecclesiastical Commissioners, or which may be hereafter endowed to an amount not exceeding 201. a year, is not to prevent the holding therewith of more benefices than one ; 4 & 5 Vict. c. 39, s. 3 ; or of one benefice and one cathedral preferment in the same church. 13 & 14 Vict. c. 98, s. 11. Archdeacon. — An archdeacon may hold with his archdeaconry two benefices, under the limitations of the Act as to population, one of them being within the diocese of which his archdeaconry forms a part ; or one preferment in any cathedral or collegiate church of such diocese, and one benefice within such diocese. 1 & 2 Vict. c. 106, s. 2. By 4 & 5 Vict. c. 39, s. 10, this is extended to peculiar localities situate within the diocese ; and by sect. 9 an archdeaconry may be endowed by annexing to it a benefice within the archdeaconry. The Ecclesiastical Com- missioners may raise the income of any archdeaconry to 200^. a year. 48 & 49 Vict. c. 55. A clergyman is not qualified for the office of archdeacon unless he has been six years in priest's orders. 3 & 4 Vict. c. 113, s. 27. An archdeacon must reside in the diocese for eight months in every year, unless he has a licence. Ibid. s. 34. Dispensation in certain Cases. — Any clergyman, by licence or dispensation, may take and hold together any two benefices, the churches of which are within four miles of one another by the nearest road, and the annual value of one of which does not exceed 2001. or if in one of the said benefices there be no church, then the distances between the two benefices, for the purposes of this enactment, shall be computed in such manner as shall bo directed by tho bishop of the diocese ; but, except as aforesaid, it 78 the parochial clergy — continued. [chat. IV. is not lawful for any clergyman to take and hold together any two benefices. 48 & 49 Vict. c. 54, s. 14. For the purpose of estimating the annual value of the benefice, all taxes, rates, dues, and permanent charges may be deducted, but not curate's stipend, or tenants' taxes in respect of or repairs to the house of residence or glebe. 13 & 14 Vict. c. 98, s. 4. Licence. — Before any two benefices can be held together, a licence must be obtained from the Archbishop of Canterbury, under the seal of his office of faculties, the fees for which are : to the registrar, 30s. ; to the seal-keeper, 2s., and no stamp duty : and the applicant need give no security. Should the archbishop refuse, application may be made to her Majesty to enjoin him to grant such licence. 1 & 2 Vict. c. 106. Sect. 6. Additional fees amounting to 31. 3s. 6d. have since been made payable. The person desirous of obtaining the licence must deliver to the bishop or bishops a statement under his hand, to be verified as he or they shall require, according to a form promulgated by the Archbishop of Canterbury, setting forth the yearly income on an average of three years ending the 29th of the previous September, the sources from which derived, the yearly amount of taxes, rates, tenths, dues, and other charges and outgoings on the same average, the population according to the last returns, and the distance be- tween the livings. The bishop may inquire into the correctness of this statement, and within one month is to transmit a certifi- cate to the Archbishop of Canterbury, setting forth a coj)y of the statement and other particulars. Sect. 7. Meaning of " Benefice." — The term "benefice" in the Benefices Act, 1898, comprehends all rectories with cure of souls, vicarages, perpetual curacies, endowed public chapels, and parochial chapelries, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and districts formed for ecclesiastical purposes by virtue of statutory authority, and includes benefices in the patronage of the Crown or of the Duchy of Cornwall, but does not extend to any of Her Majesty's Royal Chapels, or to any Royal peculiar, nor to any cathedral or capitular preferment or dignity, nor to any chapel belonging to any college, school, hospital, inns of court, asylum, or public or charitable institution, nor to any private chapel. 61 & 02 Vict. c. 48, s. 13. SECT. X11I.] UNION OF BENEFICES. 70 Section XIII. — Union of Benefices. Union is the uniting, consolidating, and combining two churches into one, by which consolidation one of tho benefices becomes extinct in law. And the principal reasons assigned for it by tho canon law are for hospitality, nearness of the places, want of in- habitants, poverty, or smallness of the living. Reynoldson v. Blake and Bishop of London, 1 Ld. Eaym. 195 ; Cripps, 514. The 1 & 2 Vict. c. 106, s. 16 ; the 13 & 14 Vict. c. 98, s. 8 ; tho 23 & 24 Vict. c. 142 ; and the 34 & 35 Vict. c. 90, contain pro- visions for uniting two or more benefices, or one or more benefices, and one or more spiritual sinecure rectories or vicarages, contiguous to each other, without any limitation as to aggregate population or yearly value ; and also for partly disuniting benefices previously united. A sej^aration scheme under 1 & 2 Vict. c. 106, s. 26, may provide for the transfer of the separated part of a parish to another diocese. 50 & 51 Vict. c. 68. Where two or more benefices are united and held by one incumbent, and there are more churches than one within tho limit of such united benefice, the bishop may decree that one of such churches shall be the parish church, and that any other church shall either be pulled down, or suffered to remain standing and be used for divine service or as a mortuary chapel. 34 & 35 Vict. c. 90, s. 3. Where there is a union of benefices, and the bishop has by faculty altered or readjusted the seats and the appropriation thereof in the church of the benefice, at least one half of tho sittings are to be left unappropriated. 34 & 35 Vict. c. 90, s. 7. The power of allotment is thus limited to the other half of tho seats. As to the union of contiguous benefices in the metropolis and in other cities, towns, and boroughs, see 23 & 24 Vict. c. 142. Section XIV. — Resignation of Benefice. An incumbent may voluntarily resign his benefice which he docs by delivering it up to the bishop. Tho benefico is not vacant until the resignation is accepted. The resignation must be un- conditional, even where an exchange is intended. Ramsey v. Nicholl, 2 C. P. D. 294. A resignation of a benefice may be made either in person or by deed. It is not essential to the validity of a deed of resignation that it should bo made by the 80 THE PAROCHIAL CLERGY — CmthlUed. [cHAP. IV. clergyman before a notary public ; the bisbop can dispense with that formality, and accept a resignation made by a deed duly executed and sent to him by tbe clergyman. It is not necessary that the bishop's acceptance of a resignation sbould be in writing, and no particular form is necessary, and if the resignation is sent in at the bishop's request no further acceptance is required. The resignation of a benefice is not void, because it is made at the request of the bishop in order to avoid scandal and legal pro- ceedings. Reichel v. Bishop of Oxford, 14 App. Cas. 259 ; 59 L. J. Ch. G6; 61 L. T. 131. Resignation with Pension. — Clergymen permanently incapaci- tated by illness can resign their benefices with provision of pensions. On a representation being made to tbe bishop in tbe form contained in the scbedule to 34 & 35 Vict. c. 44, by the incumbent of any benefice (provided be bas been the incumbent of such benefice for seven years continuously), tbat he desires, on the ground tbat he is incapacitated by permanent mental or bodily infirmity from the due performance of bis duties, to retire from his benefice under tbe provisions of tbe Act, the bishop, if be sees fit, may cause a commission to be issued to five persons to inquire and report upon all sucb matters in anywise affecting such resignation. 34 & 35 Vict. c. 44, s. 5. One of the five commissioners is to be an arcbdeacon or a rural dean of tbe diocese wherein tbe benefice is situate ; one other of the commissioners is to be an incumbent of the diocese nominated by the incumbent wishing to retire ; one other an incumbent nominated by the bisbop ; one other a magistrate (member of the Establisbed Churcb) for the county nominated by tbe presiding chairman of the last preceding quarter sessions, or tbe lord lieutenant of tbe county ; and tbe remaining commissioner is to be nominated by tbe patron. Sect. 6. If any three of tbe commissioners deem the resignation ex- pedient, they shall specify tbe amount of pension wbich in their opinion ought to be allowed out of the revenues of tbe benefice of the retiring incumbent ; provided that in no case sball such pension exceed one-third part of the annual value of the benefice resigned (sect. 8), or be an amount which shall not leave a sufficient income to secure the due performance of tbe services of the church, according to the scale of stipends set forth in s. 85 of 1 & 2 Vict. c. 106. 50 & 51 Vict. c. 23, s. 5. SECT. XIV.] -RESIGNATION OF BENEFICE. 81 The annual value of a benefice for the purposes of the In- cumbents' Resignation Acts is " the net annual value, exclusive of the parsonage, vicarage, or other place of residence of the incumbent, after deducting all rates, taxes, and charges assessed upon and payable out of the benefice, which charges shall include the salary of any curate who is compulsorily employed, and any annual payments in respect of any terminable mortgage having at the time of the sitting of the said commission more than two years to run." Sect. 5. Pensions to Vary with Tithe Averages. — The amount of every half -yearly payment on account of such pension is to vary and be from time to time regulated by the averages published under 6 & 7 "Will. 4, c. 71, in the month of January next preceding the date of every such half-yearly payment, except that, if no part of the income of the benefice is derived from tithe rent- charge, or glebe lands, then the pension is not to be subject to variation. 50 & 51 Viet. c. 23, s. 4. Setting off Pension against Amount Due for Dilapidations. — If a clergyman on retirement has become liable to the payment to his successor of any sum on account of dilapidations under the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 43), and has not paid such sum, it is lawful for the incumbent of the benefice for the time being to withhold the amounts due from time to time in respect of any pension granted under the Incum- bents' Eesignation Act, 1871 (34 & 35 Vict. c. 44), and to apply the same in discharge of the sum due for dilapidations until the whole debt has been discharged. The amount so withheld in any one year is not to exceed one half the total amount of the pension for such year without the consent of the bishop of the diocese in which such benefice is situate. 50 & 51 Vict. c. 23, s. 6. A pension is not liable to diminution from subsequent agri- cultural depression or any other cause. Rohinson v. Dand, 17 Q. B. D. 341 ; 55 L. J. Q. B. 585. The pension is to be charged on the benefice, and is not trans- ferable at law or in equity. 34 & 35 Vict. c. 44, s. 10. The words " not transferable " not only prevent the incumbent from assigning himself, but prevent any transfer by operation of law, so that the annuity does not vest in a trustee in bankruptcy, and cannot be attached under a garnishee order by an execution 82 THE PAItOCHIAL CLERGY — Continued. [CHAP. IV. creditor, or be otherwise transferred. Gathercole v. Smith, 17 Ch. D. 1 ; 7 Q. B. D. 626 ; 50 L. J. Ch. 671. The pensioned clerk is to be amenable to ecclesiastical discipline. Sect. 13. The parsonage house is to belong to the new incumbent; sect. 14 ; and the pension is to cease or be altered under certain circumstances. Sect. 15. 35 Yict. c. 8, provides for the relief of deans and canons who, by reason of age or any mental or bodily infirmity, may be per- manently incapacitated from the due performance of their duties ; and 32 & 33 Yict. c. Ill, and 38 & 39 Vict. c. 19, for the resigna- tion of bishops. Section XV. — Relinquishment of Holy Orders. Formerly a clergyman could not wholly relinquish his sacred calling, but now 33 & 34 Vict. c. 91, enables him (after resigning all preferment) to relinquish holy orders. He must execute a deed of relinquishment in the fonn given in the schedule to that Act, and cause the same to be inrolled in the High Court of Chancery, and deliver an office copy of the ini'olment to the bishop of the diocese in which he last held a preferment, or if he has not held any preferment, then to the bishop of the diocese in which he is resident. At the expiration of six months, after the bishop has received such inrolment, the bishop shall, on the application of the person executing the deed, cause the deed to be recorded in the registry of the diocese, and thereupon such person becomes incapable of officiating in any manner as a minister of the church, and is discharged from all the disabilities of his former office. The Act does not relieve any person or his estate from any liability in respect of dilapidations or from any debt or other pecuniary liability incurred or accrued before or after the execution of such deed. Sect. 8. Where a clergyman had executed the deed, and caused it to be inrolled, but did not take any further steps under the Act, it was held, the clergyman having subsequently abandoned his intention of relinquishing his office, that the inrolment might be vacated. Ex parte A Clergyman, L. B. 15 Eq. 154; 42 L. J. Ch. 260. CHAPTEE V. THE PAROCHIAL CLERGY— continued. PAGE Section I. Correction of Clerks in Orders 83 II. Church Discipline Act, 1840 85 III. Public Worship Regulation Act, 1874 86 IV. Clergy Discipline Act, 1892 88 V. Inquiries as to Inadequate Performance of Ecclesiastical Duties i 92 VI. Enforcing Residence 90 Section I. — Correction of Clerks in Orders. Clergymen are liable to be punished for irregularity in the discharge of their duties, and preaching doctrines contrary to the articles of the Church. The modes of punishment vaiy according to the gravity of the offence, and are admonition, suspension, degradation, or deprivation. Saunders v. Davies, 1 Add. 299. Where promoters have established the commission of an ecclesiastical offence, they are not entitled as of right to a monition ; but the archbishop or bishop is entitled, on being satisfied that the offence ■will not be repeated, to accept the assurance of future submission. Read v. Bishoj) of Lincoln, (1892) A. C. 644 ; 62 L. J. P. C. 1. Suspension is from office and benefice jointly, or from office or benefice singly ; and is a temporary degradation or deprivation, or both. 3 Bum, Ecc. L. 667. Unless there are very aggravating circumstances, the Ecclesias- tical Courts have been inclined to suspend rather than deprive. A clergyman disobeying a monition of the Court of Arches not to repeat unlawful practices in the performance of divine service can be sentenced to be suspended ab officio et benefcio for three years. Martin v. Machonochie, 6 App. Cas. 424 ; 50 L. J. Q, B. 61 1 . The bishop may annex to a suspension for a specified time the condition that the clerk shall, at the expiration of that time, g2 84 the parochial clergy — continued. [chap. v. procure a certificate of good behaviour, to be approved by the bishop before the suspension is removed. Bishop of Lincoln v. Day, 1 Eobert, Ecc. E. 724 ; Ex parte Rose, 18 Q. B. 751. A decree of suspension regularly enforced operates for the time of its endurance as if the clergyman were dead or absolutely removed from his benefice. Bunter v. Cresswell, 14 Q. B. 825. The Court of Arches has jurisdiction to suspend a clerk ab officio on account of the scandal caused by the conviction without considering whether the offence charged has been actually com- mitted. Borough v. Collins, 15 P. D. 81. Degradation is an ecclesiastical censure whereby a clergyman is incapacitated from exercising any holy function. Gibs. 1066. It is practically unused. Deprivation is an ecclesiastical sentence whereby a clergyman is deprived of his parsonage or other spiritual promotion. By Canon 122 the two latter sentences must be pronounced by the bishop, with the assistance of his chancellor and the dean (if they may conveniently be had), and some of the prebendaries, if the Court be kept near the cathedral church ; or of the archdeacon (if he may be had conveniently), and two other, at least, grave ministers and preachers, when the Court is kept elsewhere. An archbishop has jurisdiction to cite a bishop in respect of ecclesiastical offences, and an appeal lies to the Privy Council froni his refusal to exercise such jurisdiction. Read v. Bishop of Lincoln, 13 P. D. 221. "Where the clergyman is a licensed curate, withdrawal of licence is the usual punishment. The writ under which disobedience to the Ecclesiastical Courts is punished by imprisonment is called de contumace capiendo. Where a statute declares that upon doing or omitting a certain act the party shall be ipso facto deprived, there is no need of a sentence of deprivation. Alston v. Atlay, 7 A. & E. 306 ; Cripps, 559. The advisedly maintaining or affirming doctrines contrary to the Thirty-nine Articles, and persisting therein ; Voysey v. Noble, L. E. 3 P. C. 357 ; 40 L. J. P. C. 40 ; and disobedience to the constitutions of the Church ; Cro. Jac. 37 ; are grounds of depri- vation. So conviction for felony or per jury; 5 Rep. 58; incon- tinence, drunkenness, and others enumerated in Gibs. Cod. 1116; Rogers, Ecc. L. 303 ; and simony, dilapidations, and offences under the Church Discipline Act. A more simple remedy for crimes and other offences against morality committed by clergy- SECT. I.] CORRECTION OF CLERKS IN ORDERS. 85 men is provided by the Clergy Discipline Act, 1892, post, p. 88). Charges on Benefices. — By 13 Eliz. c. 20, all charges on benefices are invalid. A mortgage by a vicar of the pew rents of a district church established under the modern church build- ing Acts is void under this Act. In re Leveson, 8 Ch. D. 96 ; 47 L. J. Bk. 46. So an agreement with a clergyman that his future income should be received by a trustee, and applied, after providing for a curate, in payment of his debts, is void. Alchin v. Hopkins, 1 Bing. N. C. 99. Section II. — Church Discipline Act, 1840. "Where a clergyman is "charged with any offence against the laws ecclesiastical, or concerning whom there exists scandal or evil report, as having offended against such laws," the bishop of the diocese in which the offence is alleged to have been committed may, on the application of any party complaining, or of his own mere motion, issue a commission to five persons, one of them to be his vicar-general, or an archdeacon or rural dean, to inquire into the charge or report. 3 & 4 Vict. c. 86, s. 3. Offences against morality are taken out of the scope of this Act by the Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32), s. 4, sub.-s. 3, post, p. 88. Notice of the intention to issue the commission, with an intima- tion of the nature of the offence, and the names, addition, and residence of the party on whose application or motion the com- mission is to issue, is to be sent to the accused party fourteen days before it issues. 3 & 4 Vict. c. 86, s. 3. If the commissioners report that there is sufficient prima facie ground for instituting proceedings, articles are drawn up and served on the party accused. The bishop may require the party to appear before him and pronounce judgment on admission. Sects. 7, 8, 9. The bishop has a discretion whether he will issue the com- mission of inquiry ; and no mandamus will lie to compel him to do so. R. v. Bishop of Oxford, 5 App. Cas. 214; 49 L. J. Q. B. 577. The bishop is not bound, before issuing a commission, to hoar objections to the party complaining. Ex p. Edwards, L. E. 9 Ch. 108 ; 43 L. J. Ch. 350. 86 THE PAROCHIAL CLERGY — CO)lti tilled . [CHAP. V. If the bishop bo not [patron of any preferment held by the party accused, the mere fact that the bishop is, by his secretary, promoter of the suit does not, in the absence of any personal interest or bias, disqualify him from adjudicating on the case. li. v. Bishop of St. Albans, 9 Q. B. D. 454 ; 46 L. T. 692. The promulgation of erroneous doctrine is an offence "within the Act. Vosey v. Noble, L. E. 3 P. 0. 357 ; 40 L. J. Eccl. 11. So is the shutting up of a church ; Eugg v. Bishop of Winchester, L. P. 2 P. C. 223 ; and the unlawful refusal to administer the holy communion to a member of the congregation. Jenkins v. Cook, 45 L. J. P. C. 1 ; 34 L. T. 1 . Section III. — Public Worship Regulation Act, 1874. In 1874 an Act (37 & 38 Vict. c. 85) was passed for the better administration of the law relating to the performance of divine service according to the use of the Church of England. If the archdeacon of the archdeaconry, or a elmrchwarden of the parish, or any three parishioners (being males over twenty- one) of the parish, within which archdeaconry or parish any church or burial ground is situate, who have signed the declara- tion contained in the schedule, and have lived in the diocese during one year next before taking any proceeding under the Act, are of opinion — (1) That in such church any alteration in or addition to the fabric, ornaments or furniture thereof, has been made without lawful authority, or that any decoration forbidden by law has been introduced into such clnirch ; or (2) That the incumbent has within the preceding twelve months used or permitted to be used in such church or burial- ground any unlawful ornament of the minister of the church, or neglected to use any prescribed ornament or vesture ; or (3) That the incumbent has within the preceding twelve months failed to observe, or to cause to be observed, the directions contained in the Book of Common Prayer relating to the performance in such church or burial-ground of the ser- vices, rites and ceremonies ordered by the said book, or has made or permitted to be made any unlawful addition to, alteration of, or omission from such services, rites, and ceremonies — SECT. III.] PUBLIC WORSHIP REGULATION ACT. 87 they may represent the same to the bishop. No proceedings can be taken under the Act as regards any alteration in or addition to the fabric of a church, if such alterations and additions have been completed for five years. Sect. 8. Unless the bishop is of opinion, after considering the whole circumstances of the case, that proceedings should not be taken on the representation (in which case he is to state in writing the reason for his opinion and transmit a copy thereof to the person who has made the representation, and to the person complained of) he is within twenty-one days after receiving the representa- tion to transmit a copy thereof to the person complained of, and require such person, and also the person making the representa- tion, to state in writing within twenty-one days whether they are willing to submit to the directions of the bishop in the matter without appeal ; and if they state their willingness the bishop is forthwith to proceed to hear the matter and pronounce such judgment and issue such monition (if any) as he thinks proper. No such judgment finally decides any question of law so that it may not be again raised by other parties. The parties may at any time after the making of a representation to the bishop join in stating any questions arising in such proceedings in a special case signed by a barrister for the opinion of the judge. If the parties do not state their willingness to submit to the directions of the bishop, the bishop must forward the represen- tation to the archbishop of the province who must forthwith require the judge to hear the matter at any place within the diocese or province, or in London or Westminster. Sect. 9. This provision as to time is imperative. Howard v. Boddington, 2 P. D. 203. The bishop cannot act if he is patron. Serjeant v. Dale, 2 Q. B. D. 558 ; 46 L. J. Q. B. 781. If the bishop declines to take proceedings a mandamus will not be granted, as his discre- tion is absolute. Allcroft v. Bishop of London, (1891) A. C. 666 ; 61 L. J. Q. B. 62 ; 65 L. T. 92. An appeal lies from the judge to the Privy Council. Sect. 9. Obedience by an incumbent to a monition or order of the bishop or judge is to be enforced, if necessary, by an order inhibiting the incumbent from performing any service of the Church or otherwise exercising the cure of souls within the diocese for a term not exceeding three months ; provided that, at the expiration of such term the inhibition is not to be relaxed until the incum- 88 THE PAROCHIAL CLERGY — continued. [CHAP. V. bent, in writing, undertake to pay due obedience to such monition or order. If such inhibition remain in force for more than three years, or if a second inhibition in regard to the same monition issue within three years from the relaxation of an inhibition, any benefice, &c, held by the incumbent in the parish in which the church, &c, is situate, in relation to which church such moni- tion has been issued, shall thereupon become void, unless the bishop postpone the period for three months. Upon any such avoidance the patron may appoint as if the incumbent were dead. The bishop may, during such inhibition, unless he is satisfied that due provision is otherwise made for the spiritual charge of the parish, make such provision and raise the sum required by sequestration of the profits of such benefice or other ecclesiastical preferment. Sect. 13. If any bishop be patron of the benefice, &c, held by the incum- bent respecting whom a representation has been made, or is unable by illness to discharge his duties under the Act, the arch- bishop of the province shall act in his place ; and if such arch- bishop be the patron, or is unable from illness to act, the Queen may appoint an archbishop or bishop to act. Sect. 1 6. A suit under the Public Worship Regulation Act does not abate by reason of the churchwarden who instituted it going out of office. Harris v. Perkins, 51 L. J. P. C. 83 ; 7 P. D. 161. Section IY. — Clergy Discipline Act, 1892. This Act was passed for "better enforcing discipline in the case of crimes and other offences against morality committed by clergymen." (a) If a clergyman is convicted of treason or felony, or is convicted on indictment of a misdemeanour, and on any such conviction is sentenced to imprisonment with hard labour or any greater punishment, or (b) An order under the Acts relating to bastardy is made on a clergyman, or (c) A clergyman is found in a divorce or matrimonial cause to have committed adultery, or (d) An order for judicial separation is made against a clergy- man in a divorce or matrimonial cause, or SECT. IV.] CLERGY DISCIPLINE ACT. 89 (e) A separation order is made against a clergyman under the Matrimonial Causes Act, 1878 ; Then, after the date at -which the conviction, order, or finding becomes conclusive, the preferment (if any) held by him shall, within twenty-one days, without further trial, be declared by the bishop to be vacant as from the said date, and he shall be incapable (unless when so con- victed he receives a free pardon from the Crown) of holding preferment. 55 & 56 Vict. c. 32, s. 1. Parishioner may prosecute for Ecclesiastical Offence or Im- moral Act. — If any clergyman either is convicted by a temporal court of having committed an act constituting an ecclesiastical offence (to which the foregoing section does not apply), or is alleged to have been guilty of any immoral act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality (the offence of "occasioning scandal and evil report " is not included; Bishojj of Rochester v. Harris, (1893) P. 137), and not being a question of doctrine or ritual, he may be prosecuted by any of the parish- ioners of the parish in which such clergyman holds preferment, or by the bishop of the diocese, or by any person approved by the bishop, and tried in the consistory court of the diocese in which he holds preferment. Ibid. s. 2. If the complaint made against the clergyman appears to the bishop of the diocese to be too vague or frivolous to justify proceedings, he is to disallow the prosecution. The prosecutor may be ordered to give security for costs. Assessors on Questions of Fact. — If any question of fact (other than the fact of a conviction of a temporal court) has to be determined, and either party to a case so requires, five assessors are to be chosen in the prescribed manner, and for deciding a question of fact are to be members of the court ; and the decision of such question must either be the unanimous decision of the assessors, or that of the chancellor and at least a majority of the assessors. The chancellor at the trial is to preside, and alone determine any question of law, and also any question of costs; and whether a question is one of law or of fact is to be deemed a question of law. Ibid, 90 the parochial clergy — continued. [chap. v. Election of Assessors. — Every three years assessors are to be elected as follows : — (a) Three from their own number by the members of the cathedral church of the diocese ; (b) Eour from their own number by the beneficed clergy of each archdeaconry in the diocese ; and (c) Eive from the justices of the county by the court of quarter sessions of each county, wholly in the diocese, and of such of the counties partly in the diocese as raay be prescribed. Ibid. s. 3. The consent of an assessor to serve must be obtained before he is elected. When the presence of assessors is required, three clergymen and two laymen are to be chosen out of the assessors on the list by ballot conducted by the registrar in the presence of such (if any) of the parties as desire to be present by themselves or their representatives. The assessors chosen are bound to attend when required, and if anyone fails to attend with- out a reasonable excuse satisfactory to the chancellor he is disqualified for acting or being elected again as assessor, and the chancellor is to declare a vacancy, and the vacancy is to be filled by a new election. If any assessor is objected to by either party for reasons approved by the chancellor, he is discharged from serving. Ibid. s. 3. Appeals from Consistory Court. — Either party to a case may appeal against any judgment of a consistory court under the Act in respect of a matter of law. If a defendant desires to appeal against any judgment of a consistory court under the Act in respect of the facts, he may petition for leave to appeal; and if he satisfies the appellate court that there is a prima facie case, leave is to be given. An appeal or petition is to be to the pro- vincial court or to the Queen in Council. Ibid. s. 4. Rules for regulating the procedure under the Act are in force, dated September, 1892. Prosecution within Five Years. — A complaint under the Act for an offence cannot be made after five years from the date of the offence, or of the last of a series of acts alleged as part of the offence, except that complaint may be made within two years after a conviction by a temporal court becomes conclusive. Ibid. s. 5. SECT. IV.] CLERGY DISCIPLINE ACT. 91 Sentences. — When a clergyman is, under the Act, adjudged guilty— (a) Regard is to be had in considering the sentence to the interests of the ecclesiastical parish or place concerned, and not to precedents of punishments ; and (b) He may be sentenced in every case to deprivation, and, if so sentenced, is incapable, save as in the Act mentioned, of holding preferment ; and (c) If he is sentenced to suspension for a term, he cannot, during that term, exercise or perform without leave of the Court any right or duty of, or incidental or attached to, his preferment, nor reside in or within such distance from the house of residence of that preferment as is specified in the sentence, and cannot, at the end of the term, be re-admitted until he has satisfied the Court of good conduct during the term. "Where, by virtue of anything in or done under the Act, a clergyman becomes incapable of holding preferment, his inca- pacity is to cease if he receives a free pardon from the Crown ; and is not to extend to any preferment which the bishop of the diocese and archbishop of the province in which it is situate, after such public notice, if any, as they think desirable, allow him to hold. Ibid. s. 6. Disobedience to Sentence. — If a clergyman wilfully disobeys a sentence passed under the Act, or any requirement or direction contained in such sentence, he may be cited before the consistory court ; and if, after the prescribed proceedings for enabling him to show cause to the contrary, the chancellor is satisfied that the clergyman has been so wilfully disobedient and ought to be punished for it, the chancellor may pronounce judgment against him (which is subject to the like appeal as if pronounced on a trial under the Act), and sentence him to such ecclesiastical punishment as the gravity of the case appears to require, including a sentence of deprivation ; and where any sentence is so passed, the writ de contumaee capiendo is not to be issued. Ibid. s. 7. Deposing from Holy Orders. — Where, by virtue of the Act, or of any sentence passed in pursuance of it, the preferment of a clergyman becomes vacant, and it appears to the bishop of 92 the parochial clergy — continued. [chap. v. the diocese that such clergyman ought also to be deposed from holy orders, the bishop may, by sentence and without any further formality, depose him, and the sentence of deposition is to be recorded in the registry of the diocese ; but such clergyman may appeal against such sentence within one month from the date thereof to the archbishop of the province, whose decision is to be final. Ibid. s. 8. Exclusion of Question of Doctrine. — Nothing in the Act is to render a clergyman liable to be tried or sentenced under the Act in respect of any question of doctrine or ritual ; or affect any prerogative of the Queen as respects pardon or otherwise ; or affect the liability of a clergyman to any prosecution, action or proceeding in any court other than an ecclesiastical court ; but if he can be prosecuted under the Act for an offence, any other criminal proceeding against him for that offence is not to be instituted in an ecclesiastical court. Ibid. s. 13. The Act applies only to a clergyman who either holds prefer- ment within the meaning of the Act, or resides or has committed the offence in England or Wales ; and where a clergyman holds a licence from a bishop in England or Wales, the Act applies to that clergyman, notwithstanding that he resides elsewhere, as if he held preferment in the diocese of that bishop. Ibid. The bishop may pronounce sentence by consent without further pro- ceedings. 3 & 4 Vict. c. 86, s. 6. The bishop is empowered to inhibit the party accused from performing services of the church, &c. 3 & 4 Vict. c. 86, s. 14. Section V. — Inquiries as to Inadequate Performance of Ecclesiastical Duties. Whenever the bishop has reason to believe that the ecclesiasti- cal duties of any benefice are inadequately performed he may issue a commission to four commissioners, one of whom shall be an archdeacon or rural dean of the archdeaconry or rural deanery wherein the benefice is situated ; one other of such commissioners shall be a canon residentiary, prebendary, or honorary canon of the cathedral church of the diocese wherein the benefice is situated, elected as provided ; one other of such commissioners shall be a beneficed clergyman of the archdeaconry wherein the benefice is situated, elected as provided ; one other of such com- SECT. IV.] INADEQUATE PERFORMANCE OF DUTIES. 93 rnissioners shall be a layman in the commission of the peace for the county wherein the benefice is situated, nominated for the purpose of such commission, on the requisition of the bishop, by the person who presided as chairman of the quarter sessions for the county or division of the county last preceding such requisi- tion, or if there be no such person, then by the lord lieutenant of the county ; and the incumbent of the said benefice may add one other commissioner, being either an incumbent of a benefice within the same diocese or a magistrate in the commission of the peace. 1 & 2 Vict. c. 106, s. 77 ; 48 & 49 Vict. c. 54, s. 3. To the commission appointed in pursuance of those Acts there shall be added two other commissioners, being either laymen in the com- mission of the peace for the county in which the benefice is situate, or barristers or solicitors of not less than ten years' standing, nominated by the person who has presided as chairman of the last preceding quarter sessions for the county or division of the county in which the benefice is situated, or, fading him, by the lord lieutenant of the county. 61 & 62 Vict. c. 48, s. 8. The secretary of the bishop or the registrar of the diocese cannot be appointed a commissioner. Ibid. The bishop is to give the clergyman holding the benefice notice of his intention to issue such commission, and if the clergyman does not within fourteen days nominate in writing one such commissioner, the other com- missioners may proceed alone. 48 & 49 Vict. c. 54, s. 3. Deans and chapters or canons of cathedral churches are to appoint triennially one of their body to act as commissioner. Sect. 4. The beneficed clergy of every archdeaconry are to elect triennially a beneficed clergyman to act as commissioner. Sect. 5. The commissioners may require the attendance of witnesses and pro- duction of dociunents. Sect. 6. AVitnesses are to be examined on oath, and liable to punishment for perjury. Sect. 7. And if the major part of such commissioners shall report in writing that the duties are inadequately performed, the bishop may in writing (specifying the grounds of the requisition) require the holder of such benefice, though resident and performing the duties, to nominate a proper person as curate with a proper stipend to per- form or assist in performing the duties. And if such holder of the benefice, for three months after the requisition, omits so to nominate, the bishop may appoint and license a curate or curates with a stipend not exceeding the respective stipends allowed in 94 the parochial clergy — continued. [chap. v. cases of non-resident incumbents, nor (except in case of negli- gence) exceeding one half of the net annual value of the benefice. The holder of the benefice may, •within one month of the service of such requisition or of the notice of such appointment, appeal to the archbishop. A copy of such requisition, and the evidence to found it is to be filed in the registry. 1 & 2 Vict. c. 106, s. 77. The bishop may assign an extra stipend of 70?. to a curate appointed by him under this section, so long as the stipend so augmented does not exceed 150?., except in cases where the whole net income of the benefice exceeds the sum of 300/. a year. 48 & 49 Vict. c. 54, s. 8. Power to Inhibit on report of Negligence in Discharge of Duties. — Where a commission appointed as above reports that the ecclesiastical duties of a benefice are inadequately performed, and that this is due to the negligence of the incumbent of the benefice in the performance of those duties (which report the commission is empowered to make), the bishop, if he thinks the appointment of a curate desirable, can himself appoint a curate or curates, as above mentioned, without requiring the incumbent to do so, and may also, if in his opinion the adoption of such a course is expedient in the interests of the benefice, inhibit the incumbent from performing all or any of those duties. 61 & 62 Vict. c. 48, s. 9. The power conferred as above, of appointing and requiring the appointment of a curate, may bo exercised from time to time in case of any vacancy in the curacy. Where a curate has, before the 1 st January, 1889, been appointed under 1 & 2 Vict. c. 106, s. 77, the bishop rnay, if he sees reason to believe that the incumbent is negligent in the performance of the ecclesiastical duties of the benefice, issue a commission under the said section to inquire into the facts of the case, and if that commission reports that the incumbent is so negligent, the bishop may inhibit him from performing all or any of the said duties. When an incumbent is so inhibited, he shall not interfere with or control any curate in the performance of the ecclesiastical duties of the benefice, and any right of patronage vested in him by virtue of his incumbency shall, while he is inlnbited, vest in the patron of his incumbency, or, if the incumbent be the patron, then in the archbishop of the province. An incumbent so inhibited shall not bo liable to any penalty SECT. IV.] INADEQUATE PERFORMANCE OF DUTIES. 95 or forfeiture for non-residence, but sect. 93 of the Pluralities Act, 1838 (post, p. 101), shall apply as if the incumbent were not resident as therein mentioned, and thereupon sect. 94 of the same Act (post, p. 101) shall apply as in the case where the curate's stipend is not less than the whole value of the benefice. The incumbent shall remain liable for repairs, but shall be entitled to retain out of the curate's stipend such amount in respect of repairs during the curate's occupation, and shall be entitled to such facilities for executing repairs as the bishop may, in case of difference, decide to be reasonable. The incumbent may appeal against the appointment of a curate by the bishop under this section and against any such inhibition to the Court constituted under this Act (ante, p. 61) within one month after such appointment or the issue of such inhibition. On any such appeal the judge shall determine whether the incumbent has been negligent as aforesaid, and the archbishop shall thereupon — (i) if the judge finds that the incumbent has not been negligent as aforesaid, rescind the appointment and inhibition, if any; or (ii) if the judge finds that the incumbent has been negbgent as aforesaid, decide whether by reason thereof the said appointment should have been made, and also whether the incumbent shoidd be inhibited from performing any and what ecclesiastical duties of his benefice ; and shall give judgment accordingly, and that judgment shall be final. Subject as aforesaid the provisions of sect. 3 of this Act with respect to procedure (ante, p. 61) shall apply to pro- ceedings under this sub-section. 61 & 62 Vict. c. 48, s. 9. By sect. 11 of this Act, the Rule Committee as defined by sect. 9 of the Clergy Discipline Act, 1892, may make rules for regulating the procedure, &c. See Rules in Appendix. Definition of "Ecclesiastical Duties." — The terra includes not only the regular and due performance of divine service on Sundays and holidays, but also all such duties as any clergyman holding a benefice is bound by law to perform, or the performance of which is solemnly promised by every clergyman of the Church of England at the time of his ordination, and the performance of which shall have been required of him in writing by the bishop. 48 & 49 Vict. c. 54, s. 2. And also tho observance of all the 96 THE PAROCHIAL CLERGY — COntiltUCd. [CHAP. V. promises as to conduct which every clergyman of the Church of England solemnly makes at the time of his ordination ; and the expression "negligence" in the performance of ecclesiastical duties includes wilful defaidt in the performance of such duties. 61 & 62 Vict. c. 48, s. 13. Section VI. — Enforcing Eesidence. 1 & 2 Vict. c. 106, and 13 & 14 Vict. c. 98, are the statutes upon which the whole law of clerical residence now depends, and no proceedings for enforcing spiritual residence can he taken otherwise than under the powers contained in those Acts, or in any Act amending the same. 32 & 33 Vict. c. 109. Penalty for Absence. — If any spiritual person holding a bene- fice shall absent himself from it, or from the house of residence, for any period exceeding three months together, or to be accounted at several times, in any one year, he is to forfeit, if the absence exceeds three but not six months, one third ; if it exceed six, but not eight months, one half ; if it exceed eight months, two thirds ; if for the whole year, three fourths of the annual value, unless he has such licence or exemption as is by the Act allowed, or unless he be resident at some other benefice of which he may be possessed. 1 & 2 Viet, c 106, s. 32. Licence where no House of Residence. — Where there is no house, or no fit house of residence, the bishop may, on applica- tion in writing by anj r spiritual person, by licence under his hand and seal (to be registered by the registrar of the diocese), permit such person to reside in some fit and convenient house, although not belonging to such benefice, such house to bo par- ticularly described and specified in the licence, and for a certain time to be therein also specified, not exceeding the period by the Act limited [till the 31st of December in the year next after the year in which it was granted ; sect. 46]. This licence may be renewed, and every such house shall be a legal house of residence for such specified time. But the house must be within three miles of the church or chapel of the benefice, and within two miles if such church or chapel is in any city, market, or borough town. 1 & 2 Vict. c. 106, s. 33. SECT. VI.] ENFORCING RESIDENCE. 97 Exemptions. — Certain spiritual persons, viz., heads of colleges at Oxford and Cambridge, deans, royal chaplains, chancellors, archdeacons, principals of Eton, Winchester, &c, are partially exempt from non-residence. Sects. 38, 39. Repairing Residence. — Every spiritual person having a house of residence and not residing, is to keep it in repair ; and if he fail to repair within ten months after monition from the hishop, he is to he liable to the penalties for non-residence so long as the house remains out of repair. Sect. 41. Licence, how obtained. — Every applicant for a licence for non- residence must present a petition in writing to the bishop, signed by himself or by some person approved by the bishop ; and the petition must state — 1. Whether the applicant is to perform the duty in person, and if so, where and at what distance from the church or chapel he intends to reside. 2. If he intends to employ a curate, and at what salary ; and whether the curate proposes to reside or not. 3. If the curate is to reside, whether in the house of residence or in what other house ; if he does not intend to reside in the parish, at what distance from it, and at what place ; and whether such curate serves any other and what parish as curate or incumbent, or has any or what cathedral pre- ferment, and any or what benefice, or officiates in any other and what church or chapel ; the annual value and population of the benefice in respect of which the licence is applied for, the num- ber of churches and chapels therein, and the date of the appli- cant's admission : no licence is to be granted unless these particulars are stated ; the petition is to be duly filed by the registrar, to be open to inspection by leave of the bishop. Sect. 42. Upon such petition being presented, and such proofs adduced as he may require, the bishop may grant a licence in writing, under his hand, for such person to reside out of the proper house of residence, or out of the limits of the benefice, or out of the limits prescribed by the Act ; and the licence is to express the cause of granting it, which may be — 1 . On account of incapacity of mind or body. 2. For six months, and only to be renewed with the allowance of the archbishop under his hand, on account of the dangerous illness of wife or child residing with him. s. u 98 the parochial clergy — continued. [chap. v. 3. On account of there being no house of residence, or the house being unfit for residence, such unfitness not being caused by the negligence, default, or misconduct of the petitioner, he keeping the house, &c, in good repair. A certificate under the hands of two neighbouring incumbents, countersigned by the rural dean, must be produced to the bishop that no convenient house can be obtained in the parish, or "within the precincts prescribed by the Act. 4. On account of occupying in the same parish a mansion whereof he is owner, he keejnng the house of residence in good repair, and producing to the bishop proof of such house of resi- dence, &c, being in good repair at the time of granting the licence. If the licence be refused there is an appeal to the archbishop. Sect. 43. The bishop may grant a licence to reside out of the benefice in cases not enumerated in sect. 43 ; but in every such case the nature and special circumstances thereof and the reasons of the bishop must be sent to the archbishop, who may allow or dis- allow the licence, in whole or in part, or alter the period for which it is granted ; and it is not to be valid till signed by him. Sect, 44. No licence is to be void by the death or removal of the bishop. Sect, 48. Fees. — A fee of 10s. is payable to the secretary of the bishop, above the stamp duty ; 3s. to the registrar of the diocese ; and 5s. to the secretary of the archbishop, if the licence is signed by him. Sect, 47. Appointing Curates. — If a non-resident incumbent neglects to appoint proper curates, the bishop may do so, and assign them stipends, ante, p. 46. Return of non-resident Incumbent. — Whenever the incumbent of a benefice is non-resident with the licence of the bishop, he shall not be at Hberty, without the bishop's permission, to re- sume the duties of his benefice before the expiration of the period mentioned in such licence ; nor shall he, if non-resident for more than a year during such time, interfere with the dis- charge of the duties of the benefice as entrusted to the curates thereof by the bishop. 48 & 49 Vict. c. 54, s. 12. SECT. VI.] ENFORCING RESIDENCE. 99 Revocation. — Any archbishop or bishop who has granted a Licence, or his successor, may, by writing under his hand, revoke the same if there appear good cause. But the incumbent must have sufficient opportunity of showing reason to the contrary, and may appeal to the archbishop within one month after service of the revocation. Sect. 49. Registry, &c. — Sections 50 and 51 contain provisions for filing copies of licences and revocations in the registry of the diocese, and keeping a List for inspection ; also for transmission of copies to the churchwardens, to be kept by them and publicly read at the first visitation ; also for the transmission of the list of licences granted or allowed by the archbishop to her Majesty, who may revoke the same. What is House of Residence. — Houses purchased by the governors of Queen Anne's Bounty, if approved by the bishop, by writing under his hand and seal duly registered, are to be deemed houses of residence, though not situate within the parish where the benefice Lies. Sect. 34. And in all cases of rectories having vicarages endowed or perpetual curacies, the residence of the vicar or perpetual curate in the rectory house is to be deemed a legal residence, if the house belonging to the vicarage or per- petual curacy be kept in proper repair to the satisfaction of the bishop. Sect. 35. Return of Residents. — By sect. 52 each bishop is required to transmit, in the month of January in each year, certain questions as to residence, &c. [for these questions see the Schedule ; and as to fire insurance, 34 & 35 Vict. c. 43, s. 55], to every incum- bent within his diocese, to which full and specific answers must be sent within three weeks of the delivery of such questions, signed by such incumbent. This is in order to enable the bishop to make the annual return to her Majesty of residents and non- residents reqiured by sect. 53. Monition. — Where it shaLL appear to any bishop that any holder of a benefice, having neither exemption or licence, does not sufficiently reside thereon within the meaning of the Act, the bishop may, instead of proceeding for penalties under this Act, or 57 Geo. 3, c. 99, or after proceeding for the same, issue a monition, requiring him to reside forthwith and to perform the duties, and to make a return to the monition within a certain h2 100 THE PAROCHIAL CLERGY — Continued. [CHAP. V. number of days ; but there must be thirty days between tbe time of serving such, monition and the time of the return thereof. Sect, 54. The monition need not be preceded by a citation. Bartlett v. Kirwood, 2 E. & B. 771. Order to Reside. — The bishop may require any fact in the return to be verified by evidence [see mode of verification, sect. 123] ; where no return is made, or is unsatisfactory or not verified when recpiired, the bishop may issue an order, under his hand and seal, requiring such person to reside within thirty days after service of such order, in like manner as directed with respect to the service of monitions. Ibid. Sequestration. — If such order be not complied with, the bishop may sequester the profits of the benefice until it is complied with, or sufficient reason for non-compliance proved, such profits to be applied as therein provided. There is an appeal to the archbishop within one month of service of the order of sequestration, but the sequestration is to be in force during the appeal. Ibid. Before sequestration issues, the incumbent ought to have an opportunity to be heard. Bonaker v. Evans, 16 Q. B. 162; 20 L. J. Q. B. 137. The bishop, in issuing the monition, may determine the fact of residence and the sufficiency of the excuse for non-residence, and a prohibition will not be issued to question his decision, the remedy being by appeal. Ex p. Bartlett, 12 Q. B. 488 ; 3 Exch. 28. Imprisonment for crime is no legal ground of exemption from residence. Ibid. Profits, Costs, &c. — There are further provisions as to the application of the profits by the bishop or archbishop, if there is an appeal ; and by sect. 55, with respect to costs of the monitiou or order, which are to be paid by the incumbent, if by obeying the order he avoids the sequestration, and the proceedings are not to be stayed till payment is made. Renewed Absence. — If any spiritual person, not having a licence of non-residence or lawful cause of absence, shall, in obedience to such order, have begun to reside, and before twelve months next after the commencement of such residence, wilfully absents himself for one month together, or to be accounted at several times, the bishop may, without further monition or order, SECT. VI.] ENFORCING RESIDENCE. 101 sequester according to sect. 54, and may so proceed from time to time, subject to an appeal as by sect. 54. Sect. 56. Benefice, when void. — If a benefice continue for one whole year [calculated from the issuing of the sequestration ; Bartlett v. Kirwood, 2 E. & B. 771] under a sequestration issued under this Act for disobedience of the bishop's order to reside, or if two such sequestrations be incurred by any spiritual person, and be not relieved, with respect to either of them, by appeal, the benefice becomes void, and the patron may present as if tho incumbent were dead. Sect. 58. Remission of Penalty. — When the archbishop or bishop, after proceeding by monition for recovery of any penalty under the Act for non-residence of more than one-third part of the yearly value of any benefice, for non-residence exceeding six months in the year, thinks proper to remit the whole or any part of such penalty, a statement of the nature of the case and the reasons must be transmitted by the bishop to the archbishop, or by the archbishop to her Majesty, who may allow or disallow such remission. Sect. 57. Penalties. — All penalties are to be sued for only in the court of the bishop of the diocese, and by some person didy authorized by him under hand and seal [see West v. Turner, 6 A. &E. 614]; and payment is to be enforced by monition and sequestration. The penalties may be applied to the improvement of the benefice, or the house or buildings thereof; sect. 114; otherwise they go to Queen Anne's Bounty. Sect. 119. No penalty can be recovered which has not been incurred subsequently to the 1st of January in the year preceding the year in which proceedings are commenced. Sect. 118. For the purpose of a prosecution, it is sufficient to prove that the defendant assumed to be and acted as parson, without proving admission, institution, and induction. Bevan v. Williams, 3 T. E. 535, n. Benefice. — As to tho meaning of this term, see ante, p. 78. CHAPTEE VI. PAROCHIAL LAY OFFICERS. PAGE Section I. Churchwardens 102 1 . Persons Eligible or Exempt 103 2. Manner of Appointment 106 3. Rights and Duties of 110 II. Parish Clerk 117 III. Sexton 120 IY. Beadle 121 Section I. — CnuRcnwARDENS. Churchwardens are the guardians or keepers of the church, and representatives of the body of the church.. They must be ratepayers and householders in the parish, and are, for some purposes, a kind of corporation, being enabled, by that name, to have a property in goods and chattels, and to bring actions for them ; 1 Bla. Com. 394 ; Gibs. 243 ; whether the goods were taken in their own time or that of their predecessors. 2 Will. Saund. 47 c. They may take money or things by legacy, gift, &c, for the benefit of the church. Att.-Gcn. v. Ruper, 2 P. Wins. 125. But one churchwarden cannot singly dispose of the goods of the parish; Cro. Car. 234 ; nor both, without the consent of the parishioners; 1 Roll. Ab. 393; 1 Vent. 89; Yelv. 173; and the licence of the ordinary. Nor have they virtute officii the custody of the title deeds of the advowson, though they are kept in a chest in the church, as they are not the goods of the church. Gardner v. Parker, 4 T. R. 351. The church ornaments, the church furniture, and the framework of the pews are vested in the churchwardens. Rector of St. Mary-at-Hill v. Parishioners, (1892) P. 394, 398. Pormerly, when an ecclesiastical parish was also a poor-law parish, the churchwardens were ex officio overseers of the poor ; 43 Eliz. c. 2, s. 1 ; and in any parish the SECT. I.] CHURCHWARDENS. 103 same person might hold jointly the offices of churchwarden and overseer. 29 & 30 Vict. c. 113. Now, by the Local Government Act, 1894, in rural parishes the churchwardens have ceased to he overseers ; references in any Act to ' ' churchwardens and over- seers " are (except so far as such references relate to the affairs of the church) construed as reference to the overseers ; and the legal interest in all property vested in the overseers, or the church- wardens and overseers (other than property connected with the affairs of the church, or held for an ecclesiastical charity), is, subject to any trusts or liabilities, vested in the parish council, or, if there is no council, in the chairman of the parish meeting and the overseers. 56 & 57 Vict. c. 73, ss. 5, 19. The powers, duties, and liabilities of the churchwardens, except so far as they relate to the affairs of the church, or are powers and duties of overseers, the powers, &c, of churchwardens and overseers with respect to appeals in connection with rating, the provision of parish books, parish chest, fire engine, &c, the holding of parish property, not being property relating to affairs of the church, or held for an ecclesiastical charity, management of village greens, or of allotments, &c, are transferred to the parish council. Sect. 6. As to the transfer of the obligation of churchwardens as to maintaining closed churchyards, see post, p. 178. In the case of non-ecclesiastical charities, the parish council, or in small parishes the parish meeting, may appoint trustees instead of the church- wardens, except in the case of recent charities. Sects. 14, 19. The accounts of non-ecclesiastical parish charities are not now sent to churchwardens; sect. 14; and the consent of churchwardens to certain vesting orders mentioned in sect. 52 is no longer required. The churchwardens still retain their powers as to affairs of the church, and have access to parish books, the custody of which is now transferred to the parish council. Sect. 17. Provision is now made for determining questions as to the transfer of powers to the parish council in a summary way by the High Court, or as to charities by the Charity Commissioners. Sect. 70. 1. Persons Eligible or Exempt. Churchwardens are usually two in number ; but a custom that there shall be only one churchwarden may be good. R. v. Catesby, 2 B. & C. 817; Woodcock v. Gibson, 4 B. & C. 463; Gibbs v. Flight, 16 L. J. Ch. 136. But a custom that there shall be no 104 PAROCHIAL LAY OFFICERS. [CHAP. VI. churchwardens is necessarily bad. 7?. v. Inhabitants of HineJcley, 12 East, 361. Although, it has been said that the parishioners may choose and trust whom they think fit, without limitation — Morgan v. Archd. of Cardigan, 1 Salt. 166— yet this doctrine must not be taken to be correct in its largest sense ; for, although it is the duty of the ordinary not to make slight objections, he is bound to take care that an election, in his opinion void in itself, should have no legal effect ; and this is a duty which he owes to the parish and to the general law of the country. Anthony v. Seger, 1 Hagg. Con. P. 11. In that case Sir "VVni. Scott said, "If a parish return an alien, a Papist, or a Jew, or a child of ten years of age, or a person convicted of felony, I conceive the ordinary woidd be bound to reject." But poverty is not a dis- qualification. Morgan v. Archd. of Cardigan. 1 Salk. 166; R. v. Simpson, 1 Stra. 609. Bodily infirmity, unless perhaps it be such as positively to disqualify the person from performing the duties of the office, does not exempt him from serving. Cooper v. Allnutt, 3 Phil. 165. Who are exempt. — The exemptions from serving this office include peers of the realm, members of Parliament, sheriffs, Stephenson v. Langston, 1 Hagg. Con. P. 380 ; acting justices of the peace, 7?. v. Gayer, 1 Burr. 245 ; 1 Ld. Payni. 492 ; and clergymen — these persons are exempt by the common law — Gibs. 215; Eoman Catholic priests, 31 Geo. 3, c. 32; dissenting ministers, 1 Will. & Mar. c. 18 ; 52 Geo. 3, c. 155, s. 9 ; barristers and solicitors, Com. Dig. " Attorney ; " law courts officers, 1 Roll. Rep. 368 ; practising physicians, 5 Lien. 8, c. 6 ; 32 Hen. 8, c. 40 ; members of the College of Surgeons in London in actual practice, 18 Geo. 2, c. 15 ; practising apothecaries, 6 & 7 Will. & Mar. c. 4 ; 30 & 31 Vict. c. 59 ; medical practitioners registered under 21 & 22 Vict. c. 90, s. 35; and persons living out of the parish, although they occupy lands within it, Gibs. 215; 18 Geo. 2, c. 15; but if they occupy a house of trade there, although they take their meals and sleep in another parish, they are liable. Stephenson v. Langston, 1 Hagg. Con. P. 379. A person who is not resident nor the occupier of any house or land within the parish, is not legally qualified to serve as churchwarden ; and where such a person has been nominated, the Court will issue a mandamus to the rector to nominate a churchwarden for the parish. In re Barlow, 30 L. J. Q. B. 271. An inhabitant to be SECT. I.] CHURCHWARDENS. 105 qualified for the office of churchwarden must in some sense be a resident in the parish, the mere payment of rates is not sufficient. R. v. Harding, 54 J. P. 35 ; 6 T. L. E. 54. Each of three partners in trade has been held liable to serve as a householder within the 43 Eliz. c. 2, although no one of them resided on the premises. R. v. Poyncler, 1 B. & C. 178 ; 2 D. & Eyl. 258. By the word "householder" is meant a person who occupies as tenant. A servant who occupies a house of his master, in part payment of his services, and as subservient thereto and necessary for the performance thereof, and not merely as a matter of con- venience, is not a householder. R. v. Spurrell, L. R. 2 Q. B. 72 ; 35 L. J. M. C. 74. A mere lodger is not liable to serve. Ford v. Chancery, 1 Hagg. 382. All officers in the army, navy, and marines, although upon half -pay. R. v. Gayer, 1 Burr. 245. All persons in the regular militia are exempt, 45 & 46 Vict. c. 49, s. 40 ; and local militia, 52 Geo. 3, c. 138, s. 197 ; and men enrolled in, and officers and non-commissioned officers appointed to the army and navy reserve forces, 45 & 46 Vict. c. 48, s. 7 ; 16 & 17 Vict. c. 73, s. 8; and naval volunteers, 22 & 23 Vict. c. 40, s. 7 ; post-office officials, and registrars of births, deaths and marriages, 7 Will. 4 & 1 Vict. cc. 33 & 22 ; and Income Tax, 5 & 6 Vict. c. 35, s. 35 ; Inland Revenue, 16 & 17 Vict. c. 59, s. 17; and Customs commissioners and officers, 39 & 40 Vict. c. 36, s. 9. Dentists registered under 41 & 42 Vict. c. 33, need not servo unless they desire to do so. Sect. 30. Inspectors of factories and workshops are exempt. 41 & 42 Vict. c. 16, s. 67. A quaker will not be compelled to serve. Adeyv. Theobald, 1 Curt. 447. It would appear that women are eligible for the office of church- warden. Olive v. Ingram, 2 Stra, 1114 ; 7 Mod. 263. It does not appear that any of these persons who are exempt (except aliens, minors, Jews, lunatics and felons) are ineligible to serve such office if they are willing. With the above excep- tions, it may be stated generally, that every parishioner mvist serve the office of churchwarden if legally chosen into it. Dissenters. — If any person, dissenting from the Church of England, be appointed to the office of churchwarden, or any other parochial office, and scruple to take upon himself the office in person, he may execute the same by a deputy, provided such 106 PAROCHIAL LAY OFFICERS. [CHAP. VI. deputy be duly approved. 52 Geo. 3, c. 155. This was enacted as to Protestant dissenters by 1 Will & Mar. c. 18, s. 5, and extended to Eoruan Catholics by the 31 Geo. 3, c. 32, s. 7. 2. Manner of Appointment. When and by whom chosen. — The churchwardens shall be chosen in Easter week. Canon 90. An election at any other time is valid in law. Butt v. Fellowes, 3 Curt. 680 ; R. v. St. Faith, 25 L. J. Q. B. 168. And by Canon 89 the choice shall be made by the joint consent of the minister and the parishioners, if it may be ; but if they cannot agree, the parishioners shall choose one, and the minister another ; and a curate may stand in the place of the minister for this purpose ; Hubbard v. Penrice, 2 Stra. 1246; unless where the incumbent is under sentence of deprivation, in which case the right to elect both results to the parishioners. Carth. 118. Without such joint or several choice, none shall take upon themselves to be churchwardens. Gibs. 241. In The Churchwardens of Northampton case, Carth. 118, Holt, C. J., is reported to have said: "Of common right the choosing of churchwardens belongs to the parishioners ; 'tis true, in some places, the incumbent chooses one, but that is only by usage ; and the canon concerning the choosing of churchwardens is not regarded by the common law : this was the opinion of Lord Hale. See Daivson v. Fowle, Hardr. 378." But iu Slocombe v. St. John, tried at the Croydon Summer Assizes, 1829, which was an issue to ascertain whether the right of election was in the parishioners in exclusion of the minister, in support of the affirmative the above decision in Carthew was quoted, and on the other side 1 Burn, Fee. L. 401, and the authorities there collected were relied upon; and it was held by Parke, J., that in general the minister and the parishioners are to choose the two churchwardens, and if they do not concur, then the minister is to choose one and the parishioners the other. Where the right of appointing exists in the parishioners, it is to be exercised in vestry assembled : and the parson, it is said, cannot intermeddle in the election. Stoughton v. Reynolds, 2 Stra. 1045. By Custom. — By custom, both may be chosen by the parishioners without the parson. 2 Roll. Abr. 234 ; Warner's case, Cro. Jac. 532. As to the validity of a custom to elect SECT. I.] CHURCHWARDENS. 107 churchwardens, see Bremner v. Hull, L. E. 1 C. P. 748 ; 35 L. J. C. P. 332; and Green v. The Queen, 1 App. Cas. 513. Mode of Election. — The method of conducting the election by the parishioners is similar to that by which all other proceedings in vestry are determined. See post, Chap. XL, p. 209. In B. v. Z)' Oyly, 4 Per. and Dav. 60, Lord Denman, in delivering judg- ment, said : "We think the proper place to elect churchwardens is some convenient place in the precincts of the church, and that the rector has a common law right and authority to preside at such election as being the functionary who is at the head of the parish for ecclesiastical purposes ; and though the churchwardens, when they are once elected, are the temporal officers of tho parish, yet they are so far connected in ecclesiastical matters, that the rector has a clear and undisputed right to interfere in bringing them into existence." The proceedings at the election may be regulated by custom. B. v. Bishop of Winchester, 7 East, 573. If a poll is taken, all the ratepayers may vote. The rector has a discretion as to fixing the time for the closing of the poll, but such discretion must be exercised reasonably. The chairman of a vestiy meeting, held for the purpose of taking a poll for the election of a churchwarden, has no power to close the poll on account of disturbance. B. v. Graham, 9 TV. E. 738. Under Church Building Acts. — The Legislature, in the Church Building Acts, has proceeded upon the same principle as the canon. Two fit persons are to be appointed churchwardens for every church or chapel built or appropriated under the Acts, at the usual period of appointing parish officers in every year, one by the incumbent and the other by the inhabitant householders in the district, and to be admitted and make a declaration according to law. They are to receive the rents of the pews and seats, pay their stipends to the minister and clerk, and do all acts requisite for the repairs, management, and good order in the church or chapel ; and to continue in office till others be chosen ; and, on non-payment of the rents of seats and pews, they may enter upon and sell the same, or recover them by action, in the names of "The Churchwardens of the Church or Chapel of" [describing the same], without specifying their own names. 58 Geo. 3, c. 45, s. 73. And see 59 Geo. 3, c. 134, s. 23 ; 1 & 2 Will. 4, c. 38, ss. 16—25 ; 8 & 9 Vict. c. 70, ss. 0—8. 108 PAROCHIAL LAY OFFICERS. [CHAP. VI. Under New Parishes Acts. — The New Parishes Act, 1843 (6 & 7 Vict. c. 37), s. 17, provides for two churchwardens (who must be members of the Established Church) being chosen in every case of a district becoming a new parish under that Act. The incumbent appoints one and the vestry the other. In all cases not otherwise expressly provided for, two persons are to be appointed churchwardens for the church of every dis- trict chapelry or consolidated chapelry formed under these Acts, in the like manner and with similar duties. 8 & 9 Vict. c. 70, s. 6. In any new church, without a district, built upon a site con- veyed to the Commissioners, two churchwardens are to be appointed annually, one by the minister and the other by the majority of the renters of pews ; but if there are no rented pews in the church, both are to be appointed hj the minister. If such church is made the church of a separate parish, district parish, district chapelry, or consolidated chapelry, the provisions of this and the former Acts touching the election of church- wardens are to apply to it. Sect. 7. Churchwardens appointed under this Act are not to be church- wardens for any other duties than those there specified. All other legal duties are to be performed by the churchwardens who would have discharged the same if the Act had not passed ; and they are not to be deemed overseers of the poor. Sect. 8. Though a district of an old parish appropriated to a new church under 58 Geo. 3, c, 45, the 6 & 7 Vict, c. 37, and the 19 & 20 Vict. c. 104, becomes a separate parish for all ecclesiastical pur- poses, yet, as it remains part of the old parish as to rates, the inhabitants of the district have a right to vote in vestry in the election of churchwardens for the old parish. R. v. Stevens, 32 L. J. Q. B. 90. Mandamus to Elect.— If the parishioners and minister neglect to choose churchwardens they may be compelled to do so by mandamus ; R. v. Wix, 2 B. & Ad. 197; and the ordinary cannot interfere. Although the parishioners and parson neglect for ever so long to choose churchwardens, yet the ordinary hath no jurisdiction, for churchwardens are a corporation at common law. Stutter v. Freston, 1 Stra. 52. In an Anonymous case, 2 Stra, 680, the Court of King's Bench SECT. 1.] CHURCHWARDENS. 109 refused to grant a mandamus to churchwardens to call a vestry in Easter week for the election of churchwardens, saying' that there was no instance of such a mandamus, and they could not take notice who had a right to call the vestry, and consequently did not know to whom it should be directed. See Com. Dig. "Man- damus," (B.). But where the circumstances attending the elec- tion of one churchwarden by a vestry were such as to raise a suspicion that the proceedings were wholly void, and that there had in fact been no election, the Court granted a mandamus, calling on the rector and churchwardens to convene a vestry for the election of a churchwarden. If the election is void, said Lord Denman, there should be another, and if not, it is fit the parties should make a return to show how it is maintainable. R. v. Birmingham, 7 A. & E. 259. The Court will not grant a rule for a mandamus where there has been an election de facto, unless it be shown that the result would probably have been different if the proceedings had been properly conducted, or that the proceedings were otherwise null and void. Ex parte Joyce, 23 L. J. M. C. 153 ; Shaw v. Thompson, 3 Ch. D. 233. Mandamus to Admit.— If the ordinary refuse to admit a churchwarden, the Queen's Bench will grant a mandamus to compel him, though the validity of the election is disputed, and other parties claim to have been elected. R. v. Archdeacon of Middlesex, 3 A. & E. 615 ; Ex parte Duffield, 3 A. & E. 617. And the mandamus has sometimes been absolute in the first instance made. Ex parte Lowe, 4 Dow. P. C. 15; Cripps, 182. In R. v. Williams, 8 B. & C. 681, it was held that a return stat- ing that the party was not didy elected is good; and Parke, J., said : "The commissary may deny any material allegation in the writ. He cannot exercise any judicial authority, but he may inquire whether the party has been didy elected, otherwise he woidd be bound to admit any person who presents himself for admission, even if he knew the fact to be that such person was never elected. The party who obtains the mandamus states the foundation of his right in the writ. The commissary may deny it. In this case he has done it, by showing that the party who seeks to be admitted was not duly elected." See also Anthony v. iSeger, 1 Hagg. Con. 10. Must make a Declaration. — Since the 5 & 6 Will. 4, c. 62, s. 9, every person entering upon the office of churchwarden or sides- 110 PAROCHIAL LAY OFFICERS. [CHAP. VI. man, before beginning to discharge the duties thereof, is, in lieu of the oath of office, to make and subscribe in the presence of the ordinary, or other person before whom the oath would have been taken, a declaration faithfully and diligently to perform the duties of his office. This declaration is to be administered by the arch- deacon or proper ordinary of the diocese. No fee, except by special custom, can be demanded for doing this, or taking the presentments. Goslin v. Ellison, 1 Salk. 330. But it is stated in Cripps on Clergy that fees amounting to 18s. are customarily payable by the churchwardens when they attend at the arch- deacon's visitation to make their declaration. But where church- wardens have no funds for the repair of the church, or for any other expenses incidental to their office, except by voluntary subscriptions, they are not liable to pay the fee of the registrar upon a visitation of the archdeacon, for the liabihty is not personal. Veley v. Pertwee, L. B. 5 Q. B. 573; 39 L. J. Q. B. 195; 22 L. T. 713 ; 18 W. B. 1024. A churchwarden ought not to enter on his duties until he has made the declaration, but if he does his acts will not be altogether void. Bray v. Somer, 31 L. J. M. C. 135; Bremner v. Hull, L. B. 1 C. F. 748 ; 35 L. J. C. F. 748. Continuance in Office. — By the 89th Canon churchwardens are to continue in office one year, except they are again chosen in like manner. Com. Diy. " Esylise," F. 1. But this refers only to the time when others should be appointed in their stead ; for when once having subscribed the declaration, they continue in office until their successors do the same in like manner. Canon 118; Bray v. Somer, 31 L. J. M. C. 135. If a churchwarden cpiits the parish before the end of his year of service, his place may be supplied by a new election. See Prideaux, 52 ; and Stephenson v. Langs ton, 1 Hagg. 379. 3. Rights and Duties of Churchwardens. Their Rights in Personal Property. — It has already been observed that churchwardens are held to be a corporation at common law for some purposes. They may, in that capacity, purchase goods for the use of the parish ; and may bring actions to recover the goods of the church, or for damages done to them. 1 Burn, Ecc. L. 408 a. But one churchwarden cannot dispose of such goods without the consent of the other ; Starkey v. Berton, Cro. Jac. 234 ; nor both together, without the consent of the SECT. I.] CHURCHWARDENS. Ill parishioners ; for the goods belong to them, and the church- wardens can do nothing to the disadvantage of the church. 1 Roll. Abr. 393 ; 13 Hen. 7, 10, a ; Yelv. 173 ; and 2 Broivnl. 215. And the licence of the ordinary is said also to he necessary ; therefore, if it is thought expedient to sell an old hell towards other repairs, or to dispose of old communion plate to buy new, or the like, the churchwardens cannot safely do it without first obtaining the concurrence of the above parties. But, although the goods belong to the parishioners, the churchwardens are the corporation in whom they are vested ; consequently, if they im- properly dispose of them, the parishioners cannot sue thereupon, either to recover them, or otherwise ; but they must tarry till new churchwardens are chosen, who have a right to call their predecessors to account before the ordinary, and to commence a suit against them for any damage done the parish by their viola- tion of the trust reposed in them. Prid. Direct. 78. And they may bring their action against their predecessors for money re- maining in their hands. Astle v. Thomas, 2 B. & C. 271 ; 3 D. & Ryl. 492. Where there are two churchwardens, one cannot sus- tain a suit in respect of moneys belonging to the church without the concurrence and joinder of his co-churchwarden. Fry v. Treasure, 2 Moore, P. C. N. S. 539. See post, p. 116. Where an obligation is made to churchwardens and their successors, and they die, their executors shall have the action, and not their successors. Vin. Ab. " Churchwardens," D. And although churchwardens and overseers are a corporation for some purposes, yet, not having a common seal, they cannot bind their successors by a covenant. Furnival v. Coombes, 5 M. & Gr. 736 ; 6 Scott, N. E. 522. In Martin v. Nutkin, 2 P. Wins. 267, it was held that churchwardens were a corporation, so as to bind their successors, and the parishioners, whom they represent in matters beneficial to the church and parish. It appears from that case that if the agreement was not clearly so beneficial it could not be supported. Their Ecclesiastical Duties. — Churchwardens are the officers of the parish in ecclesiastical matters, as constables are in civil ; most of their duties will appear incidentally under different heads in the course of the work. As to the duties and powers of churchwardens in relation to repairs of the church, see Chap. II., ante, p. 35 ; as to goods and ornaments of the church, ante, 112 PAROCHIAL LAY OFFICERS. [cHAP. VI. p. 28 ; as to arranging sittings, ante, p. 21 ; as to presenting the clergy for ecclesiastical offences, ante, Chap. V., p. 86 ; as to vestries, post, Chap. XI., p. 213. The great changes in the manners and habits of the people have relieved churchwardens from the invidious task of enforcing the attendance of the people upon the services of religion, and presenting those to ecclesias- tical censures who absent themselves from church, as well as preventing the excommunicated from entering within its walls. But they are bound, and may occasionally have to exercise their authority, to preserve due decorum in the time of divine service. Thus, they may justify taking off the hat of a person who refuses to do so himself, upon request. Hall v. Planner, 1 Lev. 197. A churchwarden has, for the jmrpo-se of maintaining decency and decorum, the right to dictate to persons (not possessed of a pew by faculty or prescription) where to sit during divine service, and a person who resists by force the exercise of such right by a churchwarden is liable to conviction for brawling under s. 2 of 23 & 24 Vict. c. 32. Aslier v. Calcraft, 18 Q. B. D. 607; 56 L. J. M. C. 57. See also Reynolds v. Monkton, 2 M. & Eob. 384. By the Brawling in Churches Act (23 & 24 Vict. c. 32), if any person is guilty of riotous, violent, or indecent behaviour in any parish or district church, &c, whether during the celebration of divine service or at any other time, or in any churchyard or burial ground, or who shall molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman ministering' or celebrating any sacrament, service, rite, or office in any church, churchyard, or burial ground, he is liable to conviction before justices. Every such offender may be immediately appre- hended by any constable or churchwarden of the parish or place where the offence is committed, and taken before a justice of the peace. If any person is, in fact, guilty of riotous, violent, or indecent conduct in church he may be convicted, although such conduct was in assertion of a claim of right. Asher v. Calcraft, supra. Churchwardens are not justified in dispossessing anyone of a sitting which he has enjoyed for a time without giving notice of their intention and offering an opportunity for objection or explanation. Horsfall v. Holland 8f Woolley, 6 Jur. 278. In Barton v. Henson, 10 M. & W. 105, the churchwardens were held justified in removing a parish clerk, who had been dis- SECT. I.] CHURCHWARDENS. 113 missed, hut had taken possession of the clerk's seat hefore divine service had commenced, on the ground that they had reason to think he would offer interruption to the service, and was likely to create a disturbance. A churchwarden has no right forcibly to prevent an inhabitant of the parish from entering the church for the purpose of attending service on the ground that, in his opinion, such person could not be conveniently accommodated in the church. Taylor v. Timson, 20 Q. B. D. 671 ; 57 L. J. Q. B. 216. See, as to seating the congregation in church, ante, p. 21. But it is questionable whether they can justify, in their own right, turning a person out of a church on a week day when no service is going on. Worth v. Terrington, 13 M. & ~W. 781. Offertory. — The duty of collecting the offertory is a lay duty imposed by the rubric upon "the deacons, churchwardens, or other fit person" (of lower degree) "appointed for that purpose." Cope v. Barber, L. E. 7 C. P. 393. It seems that churchwardens have a right, in conjunction with the incumbent, to dispose of the alms collected at celebrations of Holy Communion, but are not entitled to interfere with the disposal of moneys collected in church at other times (post, p. 130). Churchwardens are required by the Canons to see that curates are duly licensed by the bishop, and that strangers, unless duly qualified, shall not preach in the church. They are also to present the minister at the annual visitation for non-residence, or for irregular and incontinent living, or any other excess or irregularity calculated to bring disgrace upon the sacred office. 1 Burn Ecc. L. 399, post, p. 115. In the administration of divine service, the churchwardens have no authority to interfere ; but they may and ought to repress all indecent interruption of the service by others. And if a case could be imagined in which even a preacher himself were guilty of any act grossly offensive, either from natural infirmity or from disorderly habits, it seems that the churchwardens, and even private persons, may interpose, to preserve the decorum of public worship, but only in a case of instant and overbearing necessity which supersedes all ordinary rules. In cases which fall short of such singular pressure and can await the remedy of a proper legal complaint, and a private application to the minister himself fails in preventing a repetition of the irregularity, the church- s. i 114 PAROCHIAL LAY OFFICERS. [cHAP. VI. wardens may complain to the ordinary. Hutchinson v. Denziloe, 1 II a gg. Con. 174. Churchwardens may make a representation to the bishop under the Public Worship Act (37 & 38 Vict. c. 85) in respect of any of the offences mentioned in sect. 8. See ante, p. 8G. It seems that ornaments which have been illegally or irregularly placed in a parish church by the incumbent cannot be lawfully removed save under the sanction of the ordinary. Iiitchings v. Cordingley, L. E. 3 A. & E. 113. Churchwardens have a right of access to the church at proper seasons, but they are not entitled to the custody of the keys of the church. They cannot remove ornaments which have been illegally placed in the church without the consent of the ordinary. Ibid. The powers conferred upon the churchwardens of a parish cannot be exercised by one of the churchwardens without the concurrence of his colleague. Ibid. But a faculty may be applied for by one only. Bradford v. Fry, 4 P. D. 93. If all the churchwardens are desirous of being joined in the grant of a faculty, the Court will not exclude any of them. Vicar of v. Churchwardens of St. Sepulchre, 5 E. D. 64. Duty as Sequestrators.— It is part of the office of church- wardens to have the care of benefices during their vacancy, whether by death of the incumbent or otherwise. Upon any such avoidance, they are to apply to the chancellor of the diocese for the sequestration of the profits thereof ; and being thereupon authorised by instrument under seal, they are to manage the profits and expenses for the benefit of the successor. In this capacity they are to till the glebe, gather the tithes, and dispose of the produce at the best market, and do everything for the interest of the next incumbent. They are also to take care that the church be duly served by a curate, and to pay him out of the profits of the benefice such sum as the ordinary may fix, if applied to for the purpose. They are bound to account to the new minister when he is instituted ; and if he is satisfied, and gives them a discharge, this concludes the matter. Although the churchwardens are the proper officers for this business, and are bound to perform it if required, yet the ordinary may confide the trust to others, willing to accept it (28 Hen. 8, c. 11). SECT. I.] CHURCHWARDENS. 115 A church. warden without such authority has no right to provide for the service of a church during a vacancy in the incumbency. The churchwarden, in providing for the services under a seques- tration, acts as officer of the bishop, and not as churchwarden. Att.-Gen. v. St. Cross Hospital, 25 L. J. Ch. 202. Presentments. — At the visitation of the archdeacon or other ordinary they must present whatever is amiss or irregular in their parish, either in the conduct of the parson or the parishioners, and this whether the}- know it of their own knowledge or from common fame. Canons 115, 118. At the Easter visitation, when the churchwardens go out of office, and before their successors are admitted, they must make their presentments of all things amiss within their parish. Con. 116, 117. A succeeding churchwarden cannot be substituted for the churchwarden by whom a representation has been made, as he has no interest in the matter. Harris v. Perkins, 7 P. D. 161. Accounts. — At the end of their year of office, or within a month afterwards, the churchwardens must, before the minister and parishioners in vestry, present their accounts of receipts and disbursements ; and if they are allowed, an entry in the church book of accounts should be made to that effect, which should be signed by the parties allowing the same ; and the balance of money, if any remains in the hands of churchwardens, must be delivered over to their successors, with the goods, &c. of the church, according to the inventory, by bill indented. Canon 89; Bum, Ecc. L. 411. If upon going out of office they should refuse to account, they may be presented at the next visitation by the now churchwardens, or an inhabitant of the parish may cull on them to account before tlic ordinary. Prideaux on Ch. 527. Justices have no jurisdictions over churchwardens in respect of church accounts. 1 Keble, 574. There is no general unqualified right on the part of the rate- payers to inspect and take extracts from the churchwardens' books of accounts. To entitle a ratepayer to a mandamus to compel such inspection, some special and public ground must he shown. Ex parte Briggs, 28 L. J. Q. B. 272. T 2 116 PAROCHIAL LAY OFFICERS. [ciIAP. VI. Proof of Disbursements. — The oath of the churchwardens is generally held sufficient, with respect to all items in their ac- counts under 40s., unless they are suspected to be unfair; but the payment of larger sums must be verified by receipts and vouchers ; and if required, witnesses should also be produced who were present at the making thereof, who shall subscribe their names to the vouchers, &c, in proof of the authenticity of the same. Prid. Direct. 93. Church wardens are not liable for money received by their pre- decessors. Lloyd v. Burrup, L. E. 4 Ex. 63 ; 38 L. J. Ex. 25. Responsible to the Ordinary. — The churchwardens may be cited by the ordinary to give further accounts of the church goods, although their accounts have been already allowed in vestry ; and if it appear that they have disposed of any of the said utensils or goods, with the approbation of the parishioners, but without the consent of the ordinary, in order to defray any part of the church rates or expenses, the ordinary may compel the churchwardens to replace the same out of their own pockets. or inflict such other punishment as he may deem expedient. Godb. 279 ; Prid. Direct. 94. See Bishops Case, 2 Koll. E. 71. Agreements. — Churchwardens in their corporate capacity may enter into reasonable agreements, beneficial to the parish, which shall be binding on their successors and the parishioners. Martin v. Nutkin, 2 P. Wins. 268. Actions, &c, by. — AVe have already seen that churchwardens may bring actions for the recovery of, or damage done to, the goods of the church. 1 Bac. Abr. 372. Proceedings against. — Churchwardens may be removed for misbehaviour, and others chosen before the year expires ; Lamb, Off. Ch. sect. 3 ; the mode of removal seems to be by complaint to the bishop or other ordinary, or they may be sued for neglect of duty in the Ecclesiastical Court. Welcome v. Lake, 1 Sid. 281. So an indictment lies against them, if they take money, &c, corrupte colore officii, and do not account for it ; P. v. Eyres, 1 Sid. 307 ; but they cannot be sued by their successors for a thing honestly done ratione officii. Godb. 279. No proceedings, civil or criminal, against churchwardens, for neglect to repair the church can be successfully instituted since SECT. I.] CHURCHWARDENS. 117 the abolition of compulsory church rates, where the church- wardens have no funds, and no means of raising any. Protection of.: — As to the protection of churchwardens in an action, see Public Authorities Protection Act, 1893. Section II. — Parish Clerk. Clerks in Holy Orders. — From and after July, 1844, whenever any vacancy occurs in the office of church clerk, chapel clerk, or parish clerk in any district, parish, or place, the rector, incum- bent, or other persons entitled to elect, may appoint a person in holy orders to fill the office ; and such person when duly licensed is to be entitled to have all the profits, &c. belonging to the office and to be liable to perform all the ecclesiastical duties. But such clerk in holy orders so appointed is not to have a freehold in the office, and may be suspended or removed in like manner as a stipendiary curate ; but subject to an appeal to the arch- bishop. 7 & 8 Vict. c. 59. The appointment of a clerk in orders is not to exempt the incumbent from the obligation of employing a curate where he is liable so to do. Sect. 4. Clerks not in Holy Orders. — By Canon 91, it is required that the clerk shall be twenty years of age at least, known to the minister to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in singing (if it may be). By whom chosen. — The nomination of clerks, it is said, was at one time vested in all incumbents by the common law and custom of the realm. Gibs. 214. But differences having arisen between ministers and their parishioners about the conferring of such offices, Archbishop Boniface decreed that the same rectors and vicars, whom it more particularly concerned to know who were fit, should make the choice. By Canon 91, no parish clerk, upon any vacancy, shall be chosen within the City of London or elsewhere, but by the parson or vicar ; or, where there is no parson or vicar, by the minister of that place for the time being; which choice shall be signified by tin' said minister, vicar, or parson, to the parishioners the next Sunday following, in time of divine service. A verbal appointment by the rector to the office of parish clerk 118 PAROCHTAL LAY OFFICERS. [CHAP. VI. is sufficient, and it seems no notice need be given to the parish. P. v. Bobbing, 1N.&P. 166. Mere sequestration of a benefice does not deprive the incumbent of the right to appoint a parish clerk, if the incumbent is not suspended or inhibited. Lawrence v. Edwards, (1891) 2 Ch. 72 ; 60 L. J. Ch. 336 ; 64 L. T. 343. An incumbent suspended under the Clergy Discipline Act, 1892, cannot appoint -without the leave of the Court. 55 & 56 Vict. c. 32, s. 6. A licensed curate during the suspension of the incumbent may appoint the parish clerk, if such office becomes vacant. Pinder v. Barr, 4 E. & B. 105 ; 24 L. J. Q. B. 30. Election by Custom. — Since the making of the above canon, the right has often been contested between incumbents and parishioners. Where the nomination is in the rector with the consent of the vestry, parties intending to dissent should do so at the time of nomination. 7?. v. Hector of St. Anne's, 3 Burr. 1887 ; R. v. Davie, 6 A. & E. 374. How admitted. — Parish clerks, after having been did}- ap- pointed, are usually licensed by the ordinary. Johns. 205 ; Peak v. Bourne, 2 Str. 942. There is a 10s. stamp duty on the licence. 54 & 55 Vict. c. 39. Remuneration. — Canon 91 directs that the clerk shall have and receive his accustomed wages, either at the hands of the churchwardens or by his own collection, according to the custom of the parish. As for the fee itself and its amount, it seems to depend entirely upon custom. The Ecclesiastical Commissioners are empowered, with consent of the vestry, to fix clerk's fees in any parish, and with the consent of the bishop, to fix his fees in district or parochial chapelries. 59 Geo. 3, c. 134, s. 11. If there be a burial board for the parish, the parish clerk is entitled to perform the same duties, and receive the same fees in respect of burials of parishioners as in the case of burials in the parish churchyard. 15 & 16 Vict. c. 85, s. 32. The burial board cannot deprive him of such fees by appointing another person to do his duty. Gell v. Birmingham, 10 L. T. 497 ; 28 J. P. 583. How dismissed. — A parish clerk may be deprived by those who placed him in his office ; but if he is unjustly deprived, a SECT. II.] PARISH CLERK. 119 mandamus will lie. lies Case, 1 Ventr. 143, 153; R. x. Smith, 13 L. J. Q. B. 166. Formerly there was considerable difficulty in removing a parish clerk from his office, which is a freehold, and he must have been summoned to answer the charges made against him. Now, how- ever, if it appears, upon complaint or otherwise, to any archdeacon or other ordinary, that any person, not in holy orders, holding or exercising the office of church clerk, chapel clerk, or parish clerk in any district, parish or place, subject to his jurisdiction, has been guilty of any wilful neglect or misbehaviour in his office, or that by reason of any misconduct he is an unfit and improper person to hold and exercise the same, such archdeacon, &c. may sum- mon such clerk to appear before him, and by writing under his hand, or such process as is used in the Ecclesiastical Courts for procuring the attendance of witnesses, call before him all persons competent to give evidence respecting the matters imputed to such clerk, and may summarily hear and determine the truth of the matters charged against him ; and if on such investigation it appears to the satisfaction of such archdeacon, &c. that they are true, he may forthwith suspend or remove such clerk from his office, and by certificate under his hand and seal, directed to the officiating minister, declare the office vacant ; a copy of the certi- ficate is to be affixed to the principal door of the church, and the persons entitled to elect are forthwith to elect another person in his place. But the exercise of the office by a sufficient deputy, who duly and faithfully performs the duties and in all respects well and properly demeans himself, is not to be deemed a wilful neglect of office on the part of the clerk, so as to render him, for that cause alone, liable to be suspended or removed. 7 & 8 Vict. c. 59, s. 5. The office of parish clerk is not assignable. Nichols v. Davis, L. E. 4 C. P. 80 ; 38 L. J. C. P. 127. In new Churches. — As to all churches built or aecpiired under the earlier Church Budding Acts, it is expressly enacted that the clerks to such churches and chapels shall be annually appointed by the minister thereof. 59 Ceo. 3, c. 134, s. 29. The con- tinuance of the clerk in office in successive years without an express reappointment amounts to a reappointment in each year. Jackson v. Courtenay, 27 L. J. Q. B. 37. The minister has no power to dismiss the clerk dining the year of office without cause. Ibid. When any parish is divided, all fees and emolu- 120 PAROCHIAL LAY OFFICERS. [CHAP. VI. merits of the clerk and sexton afterwards arising in any division are to belong to the clerk and sexton of the division to which they are assigned. Sect. 10. In the churches of parishes con- stituted under the Church Endowment Acts, the parish clerk and sexton are to be appointed by the incumbent, and to be by him removable, with the consent of the bishop of the diocese, for any misconduct. 19 & 20 Vict. c. 104, s. 9. Civil Duties. — The only remaining civil function of a parish clerk is the custody of certain documents and maps required to be deposited with him under standing orders of Parliament before certain public works are begun. 7 "Will. 4 & 1 Vict, c. 83 ; 8 & 9 Vict. c. 20, s. 9. Where there is a parish council, such documents, plans, &c. will now be deposited with the chairman or clerk of the council. 56 & 57 Vict. c. 73. Sectiox III. — Sextox. How chosgn. — The sexton (segsten, segerstane, sacristan, the keeper of the things belonging to divine worship) is sometimes chosen by the parish, though usually by the minister. Where the sexton's duties consist in the care of the sacred vestments, and of the church, and in opening it for service, the presumption would be that the churchwardens have the power to appoint ; but where his duties are confined to the churchyard, as digging graves, &c, the incumbent is presumed to have the right. If the offices of parish clerk and sexton are united, the clergyman, it seems, would have the right of appointing ; but where tin y are separate, the presumption, in the absence of any custom, is that the appointment is in the incumbent and churchwardens jointly. Cansfield v. Blenkinsop, 4 Exch. 234. The office of sexton is probably the only ecclesiastical one which may be held by a woman. It has been decided that a woman may be chosen for and exercise the office of sextoness, and also that women who are ratepayers can vote at the election. Olive v. Ingram, 2 Stra. 1114; Ormerod v. Blackburn Burial Board, 28 L. J. 438. Salary. — The salary of the sexton depends upon custom, and is paid by the churchwardens. His fees are generally settled by order of the vestry, and a table of them is hung up in the vestry- room, or in the church. Shaw's Par. L. 71. SECT. III.] SEXTON. 121 A sexton's fees are an equivalent for the duties of Ms office, and where by transfer of a portion of the parish he is relieved of so much of his duties he is no longer entitled to the fees payable in respect of the transferred portion. While v. Norwood Burial Board, 16 Q. B. D. 58 ; 55 L. J. Q. B. 63. "Where a new burial ground is provided for a parish, the soxton is entitled to continue to perform his duties there and to receive the accustomed fees, and a burial board is not entitled to refuse to allow him to perform those duties. 15 & 16 Vict. c. 85, s. 32 ; Rochester v. Thompson, infra ; Wliite v. Norivood Burial Board, supra. Duty of Sexton. — His business is generally to keep the church clean, swept and adorned ; to open the pews ; to make and fill up the graves for the dead ; and to provide, under the direction of the churchwardens, candles and necessaries belonging to the church ; to get the linen washed, &c. ; to attend during divine service ; to keep out excommunicated persons ; and to prevent any disturbance in the church. Shaw's Par. L. 71. The sexton may delegate the performance of his duties to a deputy. Rochester v. Thompson, L. P. 6 C. P. 445. A Freehold Office. — Sextons are considered by the common law to have freeholds in their offices ; and therefore, if they be improperly removed, a mandamus lies to restore them. R. v. Kiiujscleere, 2 Lev. 18; Salk. 428; lie's Case, 1 Ventr. 153. But a return to such a mandamus, that there is a custom for the inhabitants to remove the sexton at pleasure, is good. R. v. Churchwardens of Taunton, 1 Cowp. 413; R. v. Churchwardens of Thame, 1 Stra. 115. In New Parishes. — In parishes formed under the New Parishes Acts the sexton is appointed by the incumbent, and is removablo by him with the consent of the bishop for any mis- conduct. 19 & 20 Vict. c. 104, s. 9. Section IV. — Beadle. Nature of Office. — Beadle (in the Saxon by del, from bcodan, to bid) signifies generally a crier or messenger of a Court. How chosen — Duty. — The beadle of a parish is chosen by the vestry, and his business is to attend the vestry, and givo 122 TAROCHIAL LAY OFFICERS. [CHAP. VI. notice to the parishioners when and where it is to meet ; to execute its orders, as messenger or servant ; to assist the con- stahle in taking up beggars, passing vagrants, &c. Shaw's Par. L. c. 19 ; 1 Burn, Ecc. L. 415 r. His appointment is during pleasure. Unless he is regularly sworn as a peace officer, he cannot, in that character, receive into his custody a person charged with a breach of the peace or other offence. Cliffe v. Littlemore, 5 Esp. 39 ; but he is an assistant of the constable. Laurence v. Hedger, 3 Taunt. 14. He is now usually a con- stable, and as such siunmons the jury on coroners' inquests. In rural parishes the parish council or parish meeting would appear to have power to appoint a beadle to perform similar services to those hitherto performed for the vestry, but they could not pay him a salary. CHAPTER VII. SACRAMENTS AND RITES OF THE CHURCH. PAGE Section I. Baptism 123 II. The Holy Communion 124 III. Divine Service Generally 128 Section I. — Baptism. Where Administered. — Children ought, if possible, to he bap- tized in the church of the parish iu which they are born. But upon great cause and necessity they may be baptized at home, and children so baptized are declared to be well and sufficiently baptized, and ought not to be baptized again. Rubric to Bap- tismal Service. If the acting minister, being duly informed, with- out collusion, of the weakness and danger of death of any infant unbaptized in the parish, and being thereupon desired to go to its residence to baptize it, shall either refuse, or by gross negli- gence so defer the time that it dieth unbaptized through his def aidt, he shall be suspended for three months ; and before his restitution shall acknowledge his fault, and promise before his ordinary, that he will not wittingly incur the like again. Canon 60. Baptism by Dissenting ministers or laymen is valid, provided that water be sprinkled on the person baptized in the name of the Father, the Son, and the Holy Ghost. Kemp v. Wickes, 3 Phill. Ecc. R. 276. Sponsors. — It is required by the Rubric, that there shall bo for every male child to be baptized, two godfathers and one god- mother ; and for every female, one godfather and two godmothers. This appears to mean that there shall be this number at the least, and does not place a restriction on a larger number if desired. Canon 29. According to this canon godparents must havo received the Holy Communion, and parents cannot be sponsors. 124 SACRAMENTS AND RITES OF THE CHURCH. [CHAP. VII. In practice the law on this point is frequently ignored, and con- vocation has sanctioned parents being sponsors. Naming the Child. — By a constitution of Archbishop Peccham, the ministers shall take care not to permit wanton names, which, being pronounced, do sound to lasciviousness, to be given to children baptized, especially of the female sex. And if other- wise it be done, the same shall be changed at confirmation. Lind. 245 ; 1 hist. 3. But now, as the bishop does not pronounce the name of the person to be confirmed, it is said he cannot alter it. 1 Burn, Ecc. L. It seems, therefore, doubtful whether a parent can insist upon the minister baptizing the child in a name which offends against the above constitution of the archbishop. Fees. — It is unlawful for the minister, clerk in orders, parish clerk, vestry clerk, warden or any other person, to demand any fee or reward for the celebration of the sacrament of baptism, or for the registry thereof. 35 & 36 Vict. c. 36. This Act does not apply to persons holding office at the time it came into force (July 1872), and entitled by Act of Parliament to fees. As to the duty of the minister to register the baptism, see post, p. 198. Section II. — The Holy Communion. The minister is to give notice on the Sunday, or on some holy day immediately preceding ; and those who intend to be partakers shall signify their intention some time the day before the com- munion. But if there be not a convenient number to communi- cate, there shall be no celebration ; and there must be three communicants at the least, even where the parish contains no more than twenty persons qualified to receive the communion. 2 Burn, Ecc. L. 425 ; Rubric to Communion Service. Administration of. — In all churches, convenient and decent communion tables being provided, they must be kept in a seemly condition, covered, in time of divine service, with a carpet of silk, or other decent stuff ; and at the time of ministration they should be covered with a fair linen cloth, at which time the table shall be placed in so good sort within the church or chancel as thereby the minister may be more conveniently heard, and the greater number of communicants may be accommodated. SECT. II.] THE HOLY COMMUNION. 125 Canon 82. And it is forbidden to administer tlie Holy Communion in private houses, except in times of necessity to the dangerous sick and impotent. Canon 71. It appears that in no case may the sacrament be administered to one person only. Although a priest only can consecrate and administer the Holy Communion, it would appear that a deacon may legally read the other parts of the communion service. It being admitted that two candles, not required for the pur- pose of giving light, were alight throughout the celebration on the holy table without objection on the part of the bishop, who was officiating as bishop, but there being no evidence either of a ceremonial use of the lights, or that the bishop had introduced them as unlawful ornaments, the Court held that the bishop was not responsible therefor, and that his mating no objection thereto was not an ecclesiastical offence. Head v. Bishop of Lincoln, (189 J) A. C. 644 ; G2 L. J. P. C. 1. The ceremonial use of incense immediately before the celebra- tion of the Holy Communion, so as to be preparatory or sub- sidiary to such celebration, is unlawful. Sumner v. Wix, L. E. 3 A. & E. 58 ; 39 L. J. Ecc. 25. A bell may not be rung during the prayer of consecration. Elphinstone v. Purchas, L. E. 3 A. & E. 98. The alms may not bo elevated or placed on a credence table. Flamank v. Simpson, L. E. 2 A. & E. 218. The churchwardens are to provide a sufficient quantity of fine white bread and of good and wholesome wine, with the advice of the minister, which wine is required to be brought to the Com- munion table in a clean and sweet standing pot or stoup of pewter, if not of purer metal. Canon 20. And if any remain unconsecrated, the curate shall have it to his own use ; but the surplus of that which was consecrated shall be eaten and drunk, after the blessing, in the church, by the priests and such com- municants as he shall then call unto him. Rubric to Communion Service. If the churchwardens have no funds for providing the bread and wine, the minister must provide. It is unlawful to use bread unleavened, or made with honey, instead of bread such as is usually eaten. Ridsdale v. Clifton, L. E. 2 P. D. 276 ; 45 L. J. P. C. 12. The mixing of water with wine as pai-t of the Communion 126 SACRAMESTS AND RITES OF THE CHURCH. [CHAP. VII. service is illegal, but the use of water and wine which has been mixed beforehand is not. Read v. Bishop of Lincoln, (1892) A. C. 644 ; 62 L. J. P. C. 1 ; 67 L. T. 30. The singing of the "Agnus Dei" before and during the service is not illegal. Ibid. By Canon 27, no minister, when he celebrateth the Com- munion, shall wittingly administer the same to any but to such as kneel. But it is declared that no adoration of the elements is intended or ought to be done, for that were idolatry. And, by the statute 1 Edw. 6, c. 1, s. 7, it is enacted, that the blessed Sacrament be administered unto the people, with the priest. under both the kinds, that is to say, of bread and wine, and not bread only, except necessity require otherwise ; as more con- formable to the usage of the Apostles and the primitive Church, than that the priest should receive it alone. The word " minis- ter," in the rubrics relating to the administration of the Holy Communion, must be taken to include a bishop, and a bishop officiating as minister in the service of the holy Communion is bound to celebrate it in the order and form prescribed by the Book of Common Prayer. Read v. Bis/top of Lincoln, 14 P. D. 158. The minister standing at the northern end of the west side of the table during the whole of that part of the Communion ser- vice which intervenes between its commencement and the order- ing of the bread and wine before the prayer of consecration is not illegal. Read v. Bishop of Lincoln, (1892) A. C. 644; 62 L. J. P. C. 1. The minister during the prayer of consecration must so stand that he may in good faith enable the communicants present, or the bidk of them, being properly placed, to see, if they wish, the breaking of the bread, and the performance of other manual acts mentioned in the rubric. Ridsdale v. Clifton (see ante, p. 125). The manual acts must be performed so as to be visible to the communicants. Read v. Bishop of Lincoln, (1891) P. 9. The celebrant during the prayer of consecration must stand and not kneel or prostrate himself before the consecrated elements during the reciting of the prayer. Martin v. Machonochie (see post, p. 129). An unnecessary elevation of the elements is unlawful. Ibid. Making the sign of the cross during the absolution and bene- SECT. II.] THE HOLY COMMUNION. 127 diction is a ceremony additional to the ceremonies of the Church and unlawful. Ready. Bishop of Lincoln, (1891) P. 9. Pouring the water and wine into the paten and chalice and drinking the water and wine is not unlawful if done after the benediction and not as part of the service. Read v. Bishop of Lincoln, (1891) P. 9. A minister of the Church may affirm or promulgate the doctrine that there is an actual or real presence external to the act of the communicant in the elements consecrated in administration of the sacrament of the Lord's Supper ; but he must not teach that there is a visible presonce of our Lord upon the altar at the celebration, nor that adoration is due to the consecrated elements. Sheppard v. Bennett, L. E. 3. A. &. E. 167 ; 39 L. J. Ecc. 59. Refusal to Administer. — See Rubric, and Canon 27 ; and Jenkins v. Cook, L. R. 1 P. D. 80 ; 45 L. J. P. C. 1. The refusal is not justified because the person attends a Wesleyan chapel. Swayne v. Benson, 6 T. L. R. 7. The refusing to administer the sacrament to anyone without sufficient cause is an offence for which the minister should be proceeded against under the Church Discipline Act (ante, p. 85). It is also declared b} r statute (1 Edw. 6), that the minister shall not,- without a lawful cause, deny the sacrament to any person that will devoutly and humbly desire it. Vestments. — As to what may be "worn in ministering the Com- munion, ante, p. 34. Offertory. — The ecclesiastical law enjoins the collection of alms for the poor by the churchwardens, or other fit j^i'sons, during the reading of the offertory ; and they are to bring them to the priest to be disposed of after divine service. The sums thus obtained are to be employed in such pious and charitable uses as the minister and churchwardens shall think fit, or, in case of their disagreement, by the ordinary. Rubric to Communion Service; see also ante, p. 113. Penalty for Reviling. — The 1 Edw. 6, c. 1, s. 1, enacts that whoever shall deprave, despise, or contemn the Lord's Supper, in contempt thereof, by any contemptuous words, or by any words of depraving, despising, or reviling, shall suffer imprisonment of 128 SACRAMENTS AND RITES OF THE CHURCH. [cHAP. VII. his body, and make fine and ransom at the King's will. See also 1 Eliz. c. 1, s. 5. See also Ornaments, ante, p. 28. Section III. — Divine Service Generally. The Act of Uniformity of Charles 2 (13 & 14 Car. 2, c. 4) regulates the lawfulness of doctrine and worship in the Church of England. The Prayer Book of 1662 was annexed to that statute by conformity to which, in the present day, questions of orthodoxy and ritual are tried. The Thirty-nine Articles were recognised by that Act as well as by 13 Eliz. c. 12. The bishop may require a third service to be performed in any ehurch or chapel in his diocese under certain circumstances ; 58 Geo. 3, c. 45, s. 65 ; (ante, p. 47), and the bishop may order two full services, including a sermon or lecture, on every Sunday during the whole or part of the year, in any benefice of whatever value. See also 1 & 2 Vict. c. 106, s. 80. In the present reign two statutes have been passed which have made modifications in the Prayer Book of 1662. The Prayer Book (Tables of Lessons) Act, 1871 (34 & 35 Vict, c. 37), substitutes revised tables of lessons proper to be read on Sundays and holy days and revised table of daily first and second lessons for the tables of lessons in the calendar prefixed to the Book of Common Prayer. The Act of Uniformity Amendment Act, 1872 (35 & 36 Vict. c. 35), provides that the shortened form of morning and evening prayer contained in the schedule may be used on any day except Sunday, Christmas Day, Ash Wednesday, Good Friday, and Ascension Day. Sect. 2. That when any special form of service approved by the ordinary is given on special occasions, there shall not be introduced into such service anything except anthems or hymns which does not form part of the Holy Scriptures or Book of Common Prayer. Sect. 3. That an additional form of service varying from any form pre- scribed by the Book of Common Prayer may be used at any hour on any Sunday or holy day in any cathedral or church in which there are duly read, said, or sung, as required by law on such Sunday or holy day at some other hour or hours the order for morning prayer, the litany, such part of the order for the ad- SECT. III.] DIVINE SERVICE GENERALLY. 129 ministration of tlio holy communion as is required to be read on Sundays or holy days if there be no communion, and the order for evening 1 prayer, so that there be not introduced into such additional service any portion of the order for the administration of the holy communion, or anything except anthems or hymns, which does not form part of the Holy Scriptures or Book of Common Prayer, and so that such form of service and the mode in which it is used is approved by the ordinary. Sect. 4. The order for morning prayer, the litany, and the order for the administration of the holy communion, may be used together or in varying order as separate services, or the litany may be said after the third collect in the order for evening prayer, either in lieu of or in addition to the use of the litany in order for morning prayer, without prejudice nevertheless to any legal powers vested in the ordinary, and any of such forms of service may be used with or without the preaching of a sermon. Sect. 5. A sermon or lecture may be preached without the common prayers or services appointed by the Book of Common Prayer being read before it is preached, so that such sermon or lecture be preceded by any service authorised by the Act, or by the bidding prayer, or by a collect taken from the Book of Common Prayer, with or without the Lord's Prayer. Sect. 7. Unlawful Ceremonies. — To cause lighted candles to be held one on each side of the priest when reading the gospel, such lighted candles not being required for the purpose of giving light, is unlawful. The ceremonial use of incense at a service is also unlawful. Sumner v. Wix, L. R. 3 A. & E.. 58 ; 39 L. J. Ecc. 25 ; Martin v. Mackonochie, L. R. 4 A. & E. 279 ; 39 L. J. Ecc. 11. Processions proceeding round the interior of a church immediately before the commencement of morning or evening- service, or immediately after the conclusion of morning or even- ing service, so conducted as to constitute a rite or ceremony in connection Avith the service, are illegal. The ceremonial use of crucifixes or images during divine service is unlawful. Elphin- stone v. Purchas, L. E. 3 A. & E. 66 ; 39 L. J. Ecc. 67. And see ante, p. 28, Ornaments; and p. 124, The Holy Communion. Vestments. — See ante, p. 34. Offertory. — The collection of alms forms a part of the com- munion servico (p. 127), but there is no direction in the rubric S. K 130 SACRAMENTS AND RITES OF THE CHURCH. [CHAP. VI T. as to offertories at either morning or evening prayer. It appears to be lawful for an incumbent to collect alms for church expenses at a service other than the communion service, and the church- wardens have no right to interfere with the money so collected. H. v. O'Neill, 31 J. P. 742. A priest collecting the alms himself is not "ministering or celebrating any sacrament or any divine service, rite or office," and, therefore, cannot take proceedings under 23 & 24 Vict. c. 32, against a person molesting him. Cope v. Barber, L. E. 7 C. P. 393. CHAPTER VIII. MARRIAGE. PAGE Sectiox I. According to the Rites of the Established Church 132 i. By Publication of Banns 132 ii. By Special Licence 135 iii. By the Common or Ordinary 1 s Licence .... 135 iv. On Registrar'' s Certificate 136 II. Not according to the Rites of the Established Church 138 i. On the Registrar's Certificate 138 ii. On the Registrar's Licence 141 iii. Without Presence of Registrar before " Authorised Person " 146 III. Marriage of Jews or Quakers 150 IV. Hours of Marriage 151 V. Undue Solemnisation of Marriages 151 VI. Voidable and Void Marriages 153 Nature of the Contract. — Marriage, as understood in Christen- dom, is the voluntary union for life of one man and one woman, to the exclusion of all others. (Per Lord Penzance in Hyde v. Hyde, L. Ii. 1 P. & D. 130.) It is the voluntary social union of man and woman for an unlimited time, entailing certain mutual rights and duties, evidenced hy some legal form or ceremony, religious or secular, expressive of the consent of the parties to enter such union. Eversley, Law of Horn. Relat. 4. Marriage Acts. — The Legislature has from time to time enacted statutes for the regulation of marriages. The first of the more important Acts of recent times was that of Lord Hard wick e (26 Geo. 2, c. 33), which was principally directed against clandestine marriages. This statute was repealed by 4 Geo. 4, c. 76, which, subject to modifications introduced by later Acts, governs the k2 132 MARRIAGE. [CHAP. VIII. solemnisation of marriages celebrated according to the rites of the Church of England. The Act of 6 & 7 Will. 4, c. 85 (Lord John Eussell's Act, 1836), as amended and modified by 19 & 20 Vict. c. 119, governs the celebration of marriages not in accord- ance with the rites of the Established Church. Mode of Solemnising. — Every person under the above Act of William 4 may contract marriage according to the forms of the religious denomination to which he belongs, or without reference to any religious ceremony whatever, should he wish to treat it as a merely civil contract. This subject will be divided as follows : — («) Mode of solemnisation according to the rites of the Established Church of England ; (b) not according to the rites of the Estab- lished Church. Section I. — According to the Eites of the Established Church. i. By Publication of Banns. — The word "bann" is of Anglo- Saxon origin, and in its primary sense signifies a "proclamation." See FellowesY. Stewart, 2 Phill. 238. All banns of matrimony shall be published in an audible manner in the parish church, or in some public chapel in which banns of matrimony may be lawfully published of or belonging to such parish or chapelry wherein the persons to be married shall dwell, according to the form of words prescribed by the rubric, upon three Sundays preceding the solemnisation, during the time of morning service, or of evening service (if there shall be no morning service), immediately after the second lesson. When the persons to be married dwell in different parishes or chapelries, the banns must be so pubbshed in both parishes or chapelries. In all cases where banns shall have been pubbshed, the marriage shall be solemnised in one of the parish churches or chapels where such banns shall have been published, and in no other place whatsoever. 4 Geo. 4, c. 76, s. 2. Notice to Publish Banns. — No parson, vicar, minister, or curate shall be obliged to publish the banns of matrimony between any persons whatsoever, unless the persons to be married shall, seven days at the least before the time required for the first pubbcation of such banns respectively, deliver or cause to bo delivered to SECT. I.] ACCORDING TO RITES OF ESTABLISHED CHURCH. l'i-'i such parson, &c, a notice in "writing, dated on the day on which the same shall be so delivered, of their true Christian names and surnames, and of the house or houses of their respective abodes within such parish or chapelry as aforesaid, and of the time during which they have dwelt, inhabited, or lodged in such house or houses respectively. 4 Geo. 4, c. 7(5, s. 7. Parties living in different Ecclesiastical Districts. — "When the parties live within different ecclesiastical districts {i.e., districts carved out of original parishes for ecclesiastical purposes), the banns are to be published as well in the church or chapel wherein such marriage is intended to be solemnised as in the chapel licensed, under the provisions of the 6 & 7 Will. 4, c. 85, ss. 26 — 29, for the other district within which one of the parties is resident, and if there be no such chapel, then in the church or chapel in which the banns of such last-mentioned party might be legally published if that Act had not been passed. 1 Vict. c. 22, s. 34. Marriages may be legally solemnised in all churches and chapels erected since the passing of 26 Geo. 2, c. 33, and duly consecrated, in which it has been usual since the passing of that Act to solemnise marriages. 6 Geo. 4, c. 92, s. 2. Banns published in chapels duly consecrated before the passing of that Act (May 29, 1830) shall not be questioned by reason that they have been published in a chapel not legally authorised for the publication of banns, or the solemnisation of marriages. 11 Geo. 4, c. 18, s. 4. In Chapels, District Churches, &c. — The bishop of the diocese, with the consent of the patron and incumbent of the parish, may authorise the publication of banns and the solemnisation of marriages in any public chapel having a chapelry thereunto annexed, or in any chapel situate in an extra-parochial place. 4 Geo. 4, c. 76, s. 3. Bishops, with the like consent, may license chapels for marriages in populous parishes, whether such chajiels have or have not chapelrics annexed. 6 & 7 Will. 4, c. 85, s. 26. And banns may be published in any chapels licensed by the bishop under the last-mentioned Act, provided that notice be affixed in conspicuous parts of the interior of such chapels, that "banns may be published and marriages solemnised at this chapel." 1 Vict, c. 22, s. 33. All Acts relating to publication of banns and marriages and tho 184 MARRIAGE. [CHAP. VIII. registering thereof are to apply to all separate and distinct parish churches, and all churches and chapels of ecclesiastical districts or consolidated chapelrics built under statutory authority. 58 Goo. 3, c. 45; 59 Geo. 3, c. 134. All marriages solemnised in such churches, &c, are as valid as if solemnised in parish churches. 11 Geo. 4 and 1 Will. 4, c. 18, s. 3. The Ecclesiastical Commissioners, -with the consent of the bishop, or the bishop alone, may determine whether banns of marriage shall be published and marriages celebrated in churches and chapels to which districts are assigned under 1 & 2 "Will. 4, c. 38 ; and if it is so determined a certificate to that effect is to issue. 7 & 8 Vict. c. 56, s. 1. The power of authorising the publication of banns in churches or chapels to which a district belongs is given to the Ecclesiastical Commissioners, on the application of the incumbent, with the consent in writing of the bishop of the diocese. 19 & 20 Tier. c. 104, s. 11 (ante, p. 9). In Places having no Church or Chapel. — In parishes where there is no parish church or chapel, or none having usual Sunday service, and in extra-parochial places without a public chapel wherein banns can be published, the banns may be published in the adjoining parish church. 4 Geo. 4, c. 76, s. 12. Marriages may be authorised by the bishop in chapels in extra- parochial places, and such marriages are to be valid. 23 Yict. c. 24. When the church of any parish, or chapel of any chapelry, is pulled down, or rebuilding, or under repair, the bishop may direct banns to be published and marriages to be solemnised "in any consecrated chapel of such parish or place which he shall by order in writing direct ; " and the fees in respect thereof . are to be applied as the bishop, with the incumbent's consent, shall direct. 11 Geo. 4 and 1 Will. 4, c. 18, s. 2. All marriages, rites, and ceremonies celebrated or performed in a consecrated church or chapel which may have been built, repaired, or enlarged prior to such celebration, and wherein such marriages, rites, and ceremonies might have been legally solemn- ised or performed previously to such alteration of the structure, are to be valid and effectual for all purposes, notwithstanding that upon such repair or enlargement the external walls have not remained entire, or the position of the communion table has SECT. I.] ACCORDING TO RITES OF ESTABLISHED CHURCH. 135 been altered, and notwithstanding that since such rebuilding 1 , repair, or enlargement no reconsecration of the church or chapel has taken place. 30 & 31 Vict. c. 133, s. 12. Republication of Banns. — Whenever a marriage shall not be had within three months after the complete publication of banns, no minister shall proceed to the solemnisation of the same until the banns shall have been republished on three several Sundays, in the form and manner prescribed, unless by licence duly obtained according to the provisions of the Act. 4 Geo. 4, c. 76, s. 9. Register of Banns. — The churchwardens and chapelwardens of churches and chapels wherein marriages are solemnised are to provide a proper book of substantial paper, marked and ruled in manner directed for the register-book of marriages ; and the banns are to be published from the said register-book of banns by the officiating minister, and not fi-om loose papers ; and after publication are to be signed by the officiating minister, or by some person under his direction. Ibid. Sect. 6. ii. By Special Licence. — A licence is a dispensation by virtue of which marriage is permitted to be solemnised without the publication of banns, and is to be granted only by a person having episcopal authority. Gibs. Cod. Jur. Eccl. Angl. 428. The power to grant a special licence was reserved to the Arch- bishop of Canterbury by 25 Hen. 8, c. 21, s. 4, and has been confirmed by later Marriage Acts. It enables the parties who obtain it to dispense with the necessity of residing in any par- ticular place before its grant, and to be married at any time or place within three months from the date of issue. Its grant is altogether in the discretion of the archbishop. The cost of the licence is 25/., and 51. for stamp duty. iii. By the Common or Ordinary's Licence. — Where a licence is granted in due form for marriage at a particular church, the incumbent is under no obligation to inquire whether there has been a sufficient residence to justify the granting of the licence. His proper course is to assume the regularity of the licence and to perform the marriage ceremony. Tuckniss v. Alexander, 32 L. J. Ch. 794. 136 MARRIAGE. [CHAP. VIII. How Licence granted. — For avoiding all fraud and collusion in obtaining licences, one of the parties shall personally swear before the surrogate, or other person having authority to grant the licence, that he or she believeth that there is no impediment of kindred or alliance, or of any other lawful cause, nor any suit commenced in any Ecclesiastical Court, to bar or hinder the proceeding of the said matrimony, according to the tenour of the said licence ; and that one of the said parties hath, for the space of fifteen days immediately preceding such licence, had bis or her usual place of abode within the parish or chapelry witbin which such marriage is to be solemnised ; and where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, that tbe consent of the person or per- sons, whose consent to such marriage is required under the provisions of this Act, has been obtained thereto : Provided always, that if there shall be no such person or persons having authority to give such consent, then, upon oath to that effect by the party requiring such licence, it may be granted without such consent. 4 Geo. 4, c. 76, s. 14. The cost of an ordinary licence is 11. Is. 6d., including stamp duty, 10s. Time within which Marriage must be had.— Whenever a marriage shall not be had within three months after the grant of a licence, no minister shall proceed to the solemnisation of such marriage until a new licence shall have been obtained, unless by banns duly published. Ibid., sect. 19. All licences granted for the solemnisation of marriages in the church of any parish or chapel of any chapelry shall be taken to authorise marriages in any place witbin the bmits of such parish or chapelry which shall be licensed by the bishop for the per- formance of divine service during the repair or rebuilding of an}* such chapel ; or if no such place shall be so licensed, then in the church or chapel of any adjoining parish or chapelry wherein marriages have been usually solemnised. 5 Geo. 4, c. 32, s. 2. See also 30 & 31 Vict. c. 133, s. 12. Caveat against Licence. — See 4 Geo. 4, c. 76, s. 11. iv. Registrar's Certificate.— By 6 & 7 Will. 4, c. 85, s. 1, and 1 Yict. c. 22, s. 36, any marriage, which by any law or canon might be solemnised after publication of banns, may be solemn- SECT. I.] ACCORDING TO RITES OF ESTABLISHED CHURCH. 137 ised on production of a registrar's certificate ; and notice to such registrar and the issue of such certificate are to stand iustead of the publication of banns, where no such publication lias taken place, to all intents and purposes ; and every parson, &c. may solemnise marriage after such notice and certificate in like manner as after due publication of banns, provided the church in which the marriage is solemnised be within the district of the superintendent registrar by whom the certificate has been issued. It is only optional and not obligatory on the part of the clergy of the Church of England to marry persons who have obtained this certificate. 19 & 20 Vict. c. 119, s. 11. The mode of obtaining it will be discussed lower down, pp. 139 — 141. Refusal of Clergyman to perform Marriage Service. — It is very doubtful whether he can be proceeded against by action, especially since the passing of 6 & 7 Will. 4, c. 75, which enables parties to be married elsewhere than in their parish churches. For the same reason it is doubtful whether such a refusal could be made the subject-matter of an indictment. 7?. v. James, 19 L. J. M. C. 179. In this latter case two parties brought to a clergyman a registrar's certificate, and requested him to appoint a time to marry them. He refused to do so until the man was willing to be confirmed. He was indicted and con- victed, but the conviction was reversed on the ground there had not been a sufficient demand to render him liable to an indict- ment if it could lie. This case is no longer law on its special facts since 19 & 20 Vict. c. 119, s. 11. Sir Walter Phillimore has expressed the opinion that a clergyman is not bound to marry an unbaptised couple. See also Davis v. Black, 1 Q. B. 900 ; R. v. Ellis, 1G Cox, C. C. 469. No clergyman is subject to any penalties, ecclesiastical or civil, for refusing to marry any person whose former marriage has been declared void by a decree of dissolution of marriage. 20 & 21 Vict. c. 85, s. 57. But such clergyman must permit any other minister entitled to officiate within the diocese to per- form in the church such marriage service between any persons, who but for such refusal would be entitled to have the same service performed in such church. Sect. 58. Marriage Fees. — No foe is duo to the clergyman of common right for performing the marriage ceremony, although it is said 138 MARRIAGE. [cHAI\ VIII. in the rubric to the office of matrimony that at the time of delivering the ring the man shall also lay clown the accustomed duty to the priest and clerk. But it may become payable by custom upon performance of the duty. See Bryant v. Foot, L. E. 3 Q. B. 497; 37 L. J. Q. B. 217. When a district be- comes a separate and distinct parish for ecclesiastical purposes under Lord Blandford's Act (19 & 20 Vict. c. 104), s. 2, the incumbent of such parish has the exclusive right of performing the office of marriage in the case of persons resident in his parish, and of receiving the fees for such marriages. Fuller v. Alford, 10 Q. B. D. 418 ; 52 L. J. Q. B. 265. The usual fees for a church marriage are — after banns, 12s. ; and if by licence, 17*. 6d. Section II. — Not According to ttie Bites of the Established Church. It has been before observed that a new mode of solemnising marriage has been introduced by 6 & 7 Will. 4, c. 85, and the Acts amending it, especially 1 Vict. c. 22, and 19 & 20 Vict. c. 119. The superintendent registrar of births and deaths of every union, parish, or place is, in right of his office, superintendent registrar of marriages. 6 & 7 Will. 4, c. 85, s. 3. Appointment of Registrars. — The Eegistrar-General may appoint persons, with such qualifications as he thinks fit, to bo registrars of marriages within the district of a superintendent registrar, and every appointment made by any superintendent registrar of registrars, for the purpose of being present at mar- riages to be solemnised under these Acts, is to be by writing under the hand of such superintendent registrar, and subject to the approval of the Eegistrar-General. 19 & 20 Vict. c. 119, s. 15. Registrar may appoint Deputy. — Every registrar of marriages is empowered, subject to the approval of the Eegistrar-General, to appoint by writing under his hand, a fit jierson to act as his deputy, in case of his illness or unavoidable absence. Ibid., sect. 16. i. Marriage on the Registrar's Certificate. Notice to the Superintendent Registrar. — Whenever a marriage is intended SECT. II.] NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 139 to bo solemnised under the above Acts, one of the parties is to give a notice to the superintendent registrar of the district in which they have dwelt for not less than seven days next pre- ceding. If the parties have dwelt in the districts of different superintendent registi*ars, notice must be given to each. Ibid., sect. 4. Marriage Notice Book. — The superintendent registrar is to file all such notices, and enter them in a book, called the " Marriage Notice Book," which is to be open to free inspection, by all persons at reasonable times. He is entitled to Is. fee for each entry. Ibid., sect. 5. Form, of Notice. — Every notice of marriage given after 1st January, 1857, is to be in the form given in the schedule (A) of 19 & 20 Vict. c. 119, or to the like effect. The " due notice" required by these Registration Acts for the validity of a marriage before a registrar has been held to be a notice conforming to the formalities provided by 6 & 7 Will. 4, c. 85, and the words " duo notice" to be satisfied, though the contents of the notice in respect of Christian names and residences of the parties or other details are not accurate. Holmes v. Simmons, L. E, 1 P, & I). 523 ; 37 L. J. P. D. & A. 58. Declaration to accompany Notice. — The party intending marriage is, at the time of giving this notice, to make and sign or subscribe a solemn declaration in writing, in the body or at the foot of the notice, that he or she believes that there is no impediment of kindred or alliance or other lawful hindrance to the said marriage, and that the parties to the said marriage (in case the marriage is intended to be had without licence) have, for the space of seven days immediately preceding the giving of such notice, had their usual place of abode and residence within the district of the superintendent registrar or respective superintendent registrars to whom such notice or notices, as the case may be, are given . . . and when either of the parties intending marriage, and not being a widower or widow, is under the age of twenty-one years, the party making such declaration is further to declare that the consent of the person or persons whose consent to such marriage is by law required has been given, or (as the case may be) that there is no person whose consent to such marriage is by law required ; and every declaration is to be 140 MARRIAGE. [CHAP. VIII. signed and subscribed by tbe party making the same, in the presence of the superintendent registrar to whom the notice of marriage containing it is given, or in the presence of his deputy, or of some registrar of births and deaths or of marriages for the district in which the party giving such notice resides, or of the deputy of such registrar, who is to attest the same by adding thereto Ids name, description, and place of abode; and no certificate for- marriage is to be issued pursuant to any such notice unless the notice be accompanied by such solemn declara- tion duly made and signed or subscribed and attested as aforesaid ; and every person who knowingly or wilfully makes and signs or subscribes any false declaration, or who signs any fals? notice for the purpose of procuring any marriage under the provisions of any of the former Acts or of the Act under recital, is to suffer the penalties of perjury. 19 & 20 Vict. c. 119, s. 2. Notice to be affixed in Office. — If the marriage is to bo without licence, that is, on the certificate, the superintendent registrar, to whom notice of such intended marriage has been given, is to cause the notice, or a true and exact copy thereof, as entered in the marriage notice book, under his hand, to be suspended or affixed in some conspicuous place in his office during twenty- one successive days next after the day of the entry of the notice in his marriage notice book, before any marriage shall be solemnised in pursuance of such notice. Ibid., sect. 4. "When Certificate to be issued. — "Where the marriage is to be without licence, the superintendent registrar is, after the expiration of twenty-one days next after the date of the entry of the notice in his marriage notice book, to issue (in the absence of any impediment) his certificate in the prescribed form. Ibid. Forbidding Certificate. — The issue of the certificate may be forbidden by writing the word "forbidden" opposite the entry in the marriage notice book, and subscribing thereto the name, abode, and character of the person so forbidding in respect of either of the parties. 6 & 7 "Will. 4, c. 85, s. 9. Every person whose consent is required by law to a marriage by licence ma}* forbid the issue of the certificate where the marriage is to be without licence. Delivery of Certificate. — The certificate, or (in case the parties have given notice to different superintendent registrars) the cer- SECT. II.] NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 141 tificates of each are to be delivered to the officiating minister, if the marriage is to be according to the rites of the Church of England. It is to be delivered to the registering officer of the Quakers for the place where the marriage is solemnised, if it is to be according to the usages of that people ; or to the officer of the synagogue by whom the marriage is solemnised, if according to the usages of the Jews ; and in all other cases to the registrar present at the marriage. 6 & 7 Will. 4, c. 85, s. 16. Time within which Marriage to be Solemnised. — If the marriage is not had within three calendar months after the notice, the notice and certificate which may have been granted thereupon, and all other proceedings are to be utterly void. 6 & 7 Will. 4, c. 85, s. 15 ; 19 & 20 Vict. c. 119, ss. 4—9. Fee for Certificate. — For every certificate the superintendent registrar shall be entitled to a fee of Is. 19 & 20 Vict. c. 119, s. 4. Where one Party resident in Ireland or Scotland.— For notices of marriages where one of the parties resides in Ireland or Scotland, see 19 & 20 Vict. c. 119, ss. 7, 8. ii. Marriage on the Registrar's Licence. Notice to the Superin- tendent Registrar. — Whenever a marriage is intended to be solemnised, one of the parties is to give notice to the superin- tendent registrar of the district in which they have dwelt for not less tban seven days next preceding. 6 & 7 Will. 4, c. 85, s. 4. If they live in different districts a notice to the superintendent registrar of the district where one of the parties resides is sufficient. 19 & 20 Vict. c. 119, s. 6. Declaration to accompany Notice. — The declaration to accompany notice is the same as that required for the obtaining a certificate (see p. 139), except that it shall not be required that the notice shall state how long each of the said parties has resided in his or her dwelling place, but only how long the party residing in the district in which the notice is given has so resided ; 19 & 20 Vict. c. 119, s. 6 ; but must contain a statement that one of the said parties hath, for the space of fifteen days immediately preceding the giving of such notice, had his or her usual place of abode and residenco within the district of the superintendent registrar to whom such notice is givon. Ibid., sect. 2. 142 MARRIAGE. [CHAP. VIII. Non-suspension of Notice in Office. — If the marriage is to be by licence, the notice need not be suspended in the office, but the party giving it must state therein that the marriage is to be celebrated by licence. Ibid., sect. 5. When Certificate of Licence to be issued. — A superintendent registrar, receiving notice of a marriage to be solemnised by licence, is, after the expiration of one whole day after the entry of the notice in the marriage notice book, to issue a certificate in the like form, and also a licence to marry, subject to the same restrictions as in the last section ; and the certificate is to contain the same statements. 19 & 20 Vict. c. 119, s. 9. Delivery of Licence. —The superintendent registrar's licence is to be delivered to the person by or before whom the marriage is to be solemnised. 6 & 7 Will. 4. c. 85, s. 16. See Delivery of Certificate, ante, p. 140. Time within which Marriage to be Solemnised. — Marriage by licence may be solemnised after the expiration of one whole day after the entry of the notice. 19 & 20 Vict. c. 119, s. 9. If it is not had within three calendar months after the notice, the notice and any licence which may have been granted thereupon, and all other proceedings, are to be utterly void. 6 & 7 Will. 4, c. 85, s. 15. Form of Licence, and Fee. — The licence is to be according to the form in schedule (C), and the superintendent registrar is entitled for it to a fee of 11. 10s. above the amount paid for stamp. 19 & 20 Vict. c. 119, s. 10. The sum of 10s. is the price of the stamp. 54 & 55 Vict. c. 39. Certificates for marriages by licence are to have a water-mark in the form of the word "licence" in the paper, and are to be printed in red ink to distinguish them from certificates for marriages without licence. 6 & 7 Will. 4, c. 85, s. 8. Forbidding Licence. — Every person whose consent is required by law to a marriage by licence may forbid its issue. 6 & 7 Will. 4, c. 85, s. 10. Caveat against Certificate and Licence. — A caveat may be entered with the superintendent registrar against the grant of a certificate or licence by him on payment of a fee of 5s. ; and SECT. II.] NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 143 such, certificate or licence is not to issue unless the superintendent registrar be satisfied that the caveat ought not to obstruct the marriage, or unless it be withdrawn ; in cases of doubt he may refer the matter to the Registrar-General, to whom also the party applying for the certificate or licence may appeal in case of the refusal of the superintendent registrar to issue it. Ibid., sect. 13. If the Registrar- General declares the grounds of such caveat frivolous, the party entering the same is to be Hable for the costs of the proceedings and in damages in an action by the party against whose marriage the caveat was entered. Ibid., sect. 37. A copy of the declaration of the Registrar-General, sealed with the seal of his office, is evidence that the caveat was frivolous. 1 Vict. c. 22, s. 5. Marrying at Registrar's Office. — Persons may, after the proper formalities, marry at the registrar's office, and in the presence of the superintendent registrar, or some registrar of the district, aud two witnesses, making the declaration using words expressive of their mutual consent to take each other for husband and wife, see p. 144. The doors of the building or office must be open. 6 & 7 Will. 4, c. 85, s. 21. At no marriage solemnised at the registry office of any district shall any religious service be used. 19 & 20 Vict, c. 119, s. 12. Fees for Marriages. — The registrar is entitled to a fee of 10s. for every marriage by licence in his presence, and of 5s. for every marriage without licence. Ibid., sect. 22. Addition of a Religious Ceremony. — If the parties to any marriage contracted at the registry office of a district desire to add the religious ceremony ordained or used by the church or persuasion of which they are members to the marriage so con- tracted, they may present themselves for that purpose to a clergyman or minister of the church or persuasion of which they are members, having given notice to him of their intention so to do ; and such clergyman, &c, upon the production of their certi- ficate of marriage before the superintendent registrar, and upon payment of the customary fees (if any) may, if he sees fit, in the church or chapel whereof he is the regular minister, by himself or by some minister nominated by him, read or celebrate the marriage service of the persuasion to which such minister belongs. But no minister of religion who is not in holy orders 144 MARRIAGE. [CHAP. VIIT. of the Church of England shall, under the provisions of this Act, officiate in any church or chapel of the Church of England. Nothing in the reading or celebration of such service is to supersede or invalidate any marriage so previously contracted. 19 & 20 Vict. c. 119, s. 12. Non-registration of Religious Service. — Such reading or cele- bration is not to be entered as a marriage among the marriages in the parish register. Ibid. Solemnising Marriage in Registered Building. — At the ex- piration of the period limited, the marriage may be solemnised in the registered building stated in the notice, according to such form and ceremony as the parties please, provided that it is solemnised with open doors, between the hours of eight in the forenoon and three in the afternoon (49 Vict. c. 14, s. 1), and in the presence of a registrar of the district and of two or more credible witnesses; and provided that during the ceremony each of the parties declares, in the presence of the registrar and wit- nesses : "I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D." And each of the parties is to say to the other: "I call upon these persons here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband)." 6 & 7 Will. 4, c. 85, s. 20. But no marriage is to be solemnised in any such registered budding without the consent of the minister or of one of the trustees, owners, deacons, or managers thereof, nor in anv regis- tered building of the Church of Eome without the consent of the officiating minister thereof, nor in any church or chapel of the Church of England without the consent of the minister thereof, nor in such latter case by any other than a duly qualified clergy- man of the said Church, or with any other forms or ceremonies than those of the said Church, any statute or statutes to the contrary notwithstanding. 19 & 20 Vict. c. 119, s. 11. Registering Buildings. — Any proprietor or trustee of a separate building, certified according to law as a place of rebgious worship, may apply to the superintendent registrar of the district in order that such building may be used for solemnising marriages therein, and in such case he is to deliver to the superintendent registrar a certificate signed in duplicate by twenty householders at least. SECT. II. J NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 145 that such building has been used by them during one year at least as their usual place of public religious worship, and that they are desirous it should be registered. Each of these certifi- cates must be countersigned by the proprietor or trustee by whom it is delivered ; the building will then be registered by the Regis- trar-General, who will return one of the certificates to the superin- tendent registrar, to be by him entered in a book ; he is also to give a certificate of the registry to the proprietor or trustee, and to publish it in a county newspaper and the Gazette, for which he is entitled to a fee of 3/. If it be made to appear to the Registrar-General that such building has been disused for public worship, he may cancel the registry, and substitute some other public building, although it has not been used for public worship for one year, and after such disuse and substitution such old build- ing cannot be used for marriages unless again registered. The superintendent registrar is to go through the same proceedings with respect to such cancelling and substitution, and is entitled to the same fee. 6 & 7 Will. 4, c. 85, ss. 18, 19. Marriage out of the District. — No superintendent registrar is to give a certificate of notice of marriage where the building in which the marriage is to be solemnised, as stated in the notice, is not within the district wherein one of the parties shall have dwelt for the requisite time, except as hereafter mentioned. 3 & 4 Vict. c. 72, s. 1. But if the party intending marriage indorses on his notice the religious appellation of the body of Christians to which he belongs, and the form which the parties wish to adopt in marrying and that there is not within the district in which one of the parties dwells any registered building in which marriage is solemnised according to such form, as well as the nearest dis- trict in which there is such a registered building ; then, after the expiration of the prescribed time, the superintendent registrar may issue his certificate, and the marriage may be solemnised in such building. The truth of the facts so to be indorsed need not be proved in support of the marriage, nor is evidence to the con- trary admissible. Ibid., sect. 2. Where a marriage is intended to be solemnised in the usual place of worship of the parties, or one of them, and such place of worship is a registered building situated out of the district of their, his, or her residence, the superintendent registrar, or registrar to whom notice has been given, may grant a licence or certificate S. L 14G MARRIAGE. [CHAP. VIII. (as the case may be) for the solemnisation of such marriage in the registered building stated in the notice, provided it be not more than two miles beyond the limits of the district in -which notice has been given ; and the party giving notice is to state therein, in addition to the description of the building where the marriage is to be solemnised, that it is the usual place of worship of one of the parties, and the name of such party. Ibid., sect. 14. iii. Marriages without Presence of Registrar. — By the Mar- riage Act, 1898 (61 & 62 Vict. c. 58), which comes into operation 1st April, 1899, notwithstanding anything contained in sect. 20 of the Marriage Act, 1836 (6 & 7 Will. 4, c. 85), marriages may be lawfully solemnised in the registered building named in the notice of the marriages and in the superintendent registrar's certificate or certificate and licence issued pursuant to the pro- visions of that Act, or any Act amending the same, between and by the parties described in the notice and certificate or certificate and licence, according to such form and ceremony as they may see fit to adopt, without the presence of any registrar, but in the presence of such duly authorised person as hereinafter mentioned, and subject in all other respects, excepting as pro- vided, to all the conditions and provisoes contained in the said Act and any Acts amending the same. Notices and Forms. — Whenever a marriage is intended to be solemnised in a registered building, and the parties intending to contract the marriage have duly fulfilled all the conditions from time to time required by law to entitle the superintendent regis- trar to issue a certificate or certificate and licence authorising the marriage, and the superintendent registrar does not receive notice, at the time when the form of notice of marriage as required by law is given to him, that the parties intending to contract the marriage require a registrar to be present at the marriage, the superintendent registrar shall, subject to the pro- visions of this Act, issue under his hand to one of those parties a certificate, or certificate and licence, as the case may require, in accordance with the forms set forth in schedules B and C annexed to the Marriage and Eegistration Act, 1856 (19 & 20 Vict. c. 119). The superintendent registrar shall at the same time give to one of the parties intending to contract the marriage printed SECT. II.] NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 147 instructions in the prescribed form for the due solemnisation of the marriage. 61 & 62 Vict. c. 58, s. 5. Declarations to be made in Presence of Authorised Person. — Where a marriage is solemnised under this Act each of the parties contracting the marriage shall in some part of the ceremony make the following declarations : — " I do solemnly declare that I know not of any lawful impedi- ment why I, A.B., may not be joined in matrimony to CD." And each of the parties shall say to the other the words following : — "I call upon these persons here present to witness that I, A.B., do take thee, CD., to be my lawful wedded wife [or husband]," or in lieu thereof the words following : — "I, A.B., do take thee, CD., to be my wedded wife [or husband]." The aforesaid declarations shall be made in the presence of the authorised person hereinafter mentioned and two or more witnesses. No marriage under this Act shall be solemnised in any regis- tered building except in the presence of a person (in this Act referred to as an authorised person) certified as having been duly authorised for the purpose by the trustees or other governing body of the building, or of some registered building in the same registration district. Where a person has been so authorised in respect of any regis- tered building, the trustees or governing body of that building shall, within the prescribed time and in the prescribed manner, certify the name and address of the person or persons authorised for that building to the registrar-general and to the superinten- dent registrar of the district in which the building is situate. Ibid., s. 6. Register Books and Returns. — In the case of the solemnisation of a marriage under this Act, the certificate or certificate and licence required by law shall be delivered to the authorised person in whoso presence the marriage is solemnised, who shall, immediately after the marriage, register in duplicate in two of the marriage register books provided for the purpose the several 1.2 14S MARRIAGE. [cHAP. VIII. particulars relating to the marriage according to trie form in schedule C annexed to the Births and Deaths Registration Act, 1836 (6 & 7 "Will. 4, c. 86), and every such entry shall be signed by the authorised person, and by the parties to the marriage, and by two witnesses ; and all such entries shall be made in consecutive order from the beginning to the end of each book, and the numbers of the place of entry of each duplicate marriage register book shall be the same. The registrar-general shall, when so requested by the authorised person, or the trustees or governing body of any registered building in which marriages may be solemnised under this Act, supply a sufficient number, in duplicate, of such marriage register books and forms for certified copies thereof as may be required for the purposes of this Act. A marriage under this Act shall not be solemnised in any registered building until duplicate register books have been so supplied. If the registrar-general is not satisfied with respect to any building registered, or proposed to be registered, for the solemni- sation of marriages therein, that sufficient security exists for the due registration of marriages under this Act and for the safe custody of marriage register books, he may in his discretion attach to the continuance on the register or registration of the building a condition that no marriages under this Act shall be solemnised therein. Ibid., sect. 7. Sect. 35 of the Births and Deaths Registration Act, 1836, shall apply in the case of a person having the custody of a marriage register book under rules made in pursuance of this Act, in like manner as it applies in the case of a rector, vicar, or curate. Custody of Certificate and Licence. — The certificate or certificate and licence, as the case may be, shall be kept in the prescribed custody, and shall be produced with the marriage register books as and when required by the registrar-general. Ibid., sect. 8. Fees. — The fees payable to the superintendent registrars under the Marriage Act, 1836, and the Marriage and Registration Act, 1856, in respect of marriages, whether with or without licence, shall be payable in respect of marriages under this Act. Ibid., sect. 9. Saving for Right to require Attendance of Registrar. — "Where the contracting parties give notice to the superintendent registrar SECT. II.] NOT ACCORDING TO RITES OF ESTABLISHED CHURCH. 149 that it is the wish of the parties to be married in the presence of the district registrar, nothing in this Act contained shall relieve the registrar from attendance at such marriage as now by law required and the fulfilment of the duties now imposed by law, and in case of such attendance the registrar shall be entitled to the fees now authorised by law. Ibid., sect. 10. Offences. — If any authorised person refuses or fails to comply with this Act, or the enactments or regulations for the time being in force with respect to the solemnisation and registration of marriages, he shall be guilty of an offence under this Act, and shall be liable, on summary conviction, to a penalty not exceeding £10, or on conviction on indictment to imprisonment with or without hard labour for a term not exceeding two years or to a fine not exceeding £50, and shall, upon conviction, cease to be an authorised person. Ibid., sect. 12. Saving for Society of Friends and Jews. — Nothing in this Act shall be taken to relate or have any reference to marriages solemnised in accordance with the practice and usages of the Society of Friends or of persons professing the Jewish religion. Ibid., sect. 13. Provisions for Marriage in the Welsh Tongue. — Sect. 23 of the Births and Deaths Registration Act, 1837, relating to marriages in the Welsh tongue, shall apply in the case of marriages under this Act. Ibid., sect. 14. Repeal. — So much of sects. 39 and 42 of the Marriage Act, 1836, as punishes the solemnisation of or renders void any marriage by reason of the absence of the registrar is repealed in respect of any marriage authorised by and solemnised in accord- ance with this Act. Ibid., sect. 15. Rules. — The registrar-general may, with the approval of the Local Grovernment Board, make rules for carrying into effect the provisions of this Act. Ibid., sect. 16. Temporary Provision as to Fees. — On the issue of any certificate for a marriage to be solemnised in accordance with this Act, the parties to the marriage shall pay to the superintendent registrar of the district in which the registered building selected for the marriage is situate, an additional fee of 6s. 6r/. if the 150 MARRIAGE. [CHAP. VIII. marriage is by licence, and otherwise a fee of 4s. Provided that not more than one such fee shall he paid in respect of any one marriage. This section is not to continue in force for more than ten years from the commencement of this Act, and is not to apply to a district unless there is acting ^therein a registrar of marriages appointed before the passing of this Act. Ibid., sect. 17. The term " registered building " in the above Act means any building registered for solemnising marriages therein under the Marriage Act, 1836 (6 & 7 "Will. 4, c. 85). Section III. — Marriage of Jews or Quakers. The Marriage Acts have an express exception of marriages where both parties are Jews or Quakers. 6 & 7 Will. 4, c. 85, s. 2. Where both parties are Quakers or Jews, they may con- tract and solemnise marriages according to the usages of their society and religion respectively, proAuded notice be given and a certificate issued according to the provisions of the Act, not- withstanding the building where the marriage is celebrated be not within the district in which the parties dwell. 3 & 4 Vict, c. 72, s. 5. See also 10 & 11 Vict. c. 58, which declares the validity of all such marriages. Any marriage according to the usages of the Society of Friends or of persons professing the Jewish religion, where the parties thereto are both members of the said society or both Jews, may be solemnised by bcence (which the superintendent registrar, to whom notice of the intended marriage has been given, is author- ised to grant in the form or to the effect set forth in the schedide to the Act) as effectually in all respects as if such marriage were solemnised after the issue of a certificate. 19 & 20 Vict. c. 119, s. 21. For marriage according to the usages of the Society of Friends or Quakers, due notice must be given to the superintendent registrar of the district, or such of the districts in which the parties are residing. 6 & 7 Will. 4, c. 85, s. 2. This Act required that the parties "be both of the said society ; " but this requirement has been modified by 23 Vict, c. 18, and 35 Vict. c. 10. When notice is given for marriage at a Friends' meeting house, if both parties are declared to be either members or in profession with or of the persuasion of the SECT. III.] MARRIAGE OF JEWS OR QUAKERS. 151 society, the notice will be accepted without any corroboration of the statement ; but where both or either of the parties do not fall within this description, the certificate of a registering officer that they are authorised to marry according to the usages of the society must be produced to the superintendent registrar when the notice is given. Section IV. — Hours of Marriage. All marriages, whether according to the rites of the Church of England or not, must (except in the case of a special licence) be celebrated within the hours of eight in the forenoon and three in the afternoon. 49 & 50 Vict. c. 14, s. 1. Section V. — Undue Solemnisation of Marriage. According to the Rites of the Church of England. — If any persons knowingly and wilfully intermarry in any other place than a church or chapel (wherein banns may be lawfully pub- lished, unless by special licence), or without due publication of banns or licence, the marriage is to be null and void. 4 Geo. 4, c. 76, s. 22. A marriage is vabd, although celebrated without banns or licence first had and obtained, unless both the parties were aware at the time of the ceremony of the absence of banns and licence. Greaves v. Greaves, L. E. 2 P. & M. 423; 41 L. J. P. & M. 66. A marriage solemnised after an undue publication of banns will not be held null and void under this section unless it be shown that both parties "knowingly and wilfully" concurred in such undue publication. Gompertz v. Kensit, L. E. 13 Eq. 369. If a licence be granted to a man in the name by which he is usually known the marriage will be valid, although that be not his real name. R. v. Bur ton-upon- Trent, 3 M. & Sel. 537; Clowes v. Clowes, 3 Curt. 185. But if a licence Avere obtained in the name of one person with the intention that it should be used by another, it would be invalid. Lane v. Goodwin, 4 Q. B. 361. See Cope v. Burt, 1 Hagg. Con. Eep. 434. Publication of Banns of Party resident in Scotland. — No marriage solemnised in any church in England, after publication 152 MARRIAGE. [CHAP. VIII. of banns in such church, is invalid by reason only that one of the parties to such marriage was at the time of publication resident in Scotland, and that banns may have been published or proclaimed in any church of the parish or place in which such party was resident according to the law or custom prevailing in Scotland, and not in the manner requisite for the publication of banns in England. 49 Vict. c. 8. Penalty on Undue Solemnisation of Marriage. — Any person solemnising matrimony in any other place than a church, or such public chapel wherein banns may be lawfully published, or at any other time than between the hours of eight in the forenoon and three in the afternoon (49 Vict. c. 14), unless by special licence from the Archbishop of Canterbury, or without due publication of banns, unless licence of marriage be first had and obtained from some person or persons having authority to grant the same (or unless there is a registrar's certificate) ; or if any person falsely pretending to be in holy orders solemnise matrimony according to the rites of the Church of England, every person knowingly and wilfully so offending and being lawfully convicted thereof is guilty of felony. But all prosecutions for such felony must be commenced within three years after the offence committed. 4 Geo. 4, c. 76, s. 21. The authority of the Ecclesiastical Courts is not taken away by the Marriage Acts, and a clergyman may still be punished in them for publishing banns between and marrying persons not parishioners or resident in his parish. Wynn v. Davies, 1 Curt. 69. Not according to the Rites of the Church of England. — Marriages solemnised in any other place than that specified in the notice and certificate, or without due notice to the superin- tendent registrar, or without certificate of notice, or licence, if necessary, or in the absence of a registrar or superintendent registrar, if his presence be necessary, are null and void. 6 & 7 Will. 4, c. 85, s. 42. Every person knowingly and wilfully solemnising any marriage in England except by special licence, in any other place than a church or chapel in which marriages may be solemnised according to the rites of the Church of England, or than the registered building or office specified in the notice or certificate (except marriages between two Quakers or Jews according to the usages SECT. V.] UNDUE SOLEMNISATION OF MARRIAGE. 153 of such, people), or knowingly and wilfully solemnising any marriage in any such building or office in the absence of a registrar of the district in which such building or office is situated, or (except by licence) within twenty-one days after entry of notice to the superintendent registrar, or, if the marriage be by licence within [one whole day, 19 & 20 Vict. c. 112, s. 9] after such entry, or more than three calendar months after such entry, shall be guilty of felony. Ibid., sect. 39. Penalty on Undue Issue of Registrar's Certificate. — Every superintendent registrar who knowingly and wilfully issues any certificate for marriage after the expiration of three calendar months after the notice has been entered by him, or any certificate for marriage by licence before the expiration of [one whole day, 12 & 20 Vict. c. 119, s. 9] after the entry of such notice, or any certificate for marriage without licence before the expiration of twenty-one days after the entry of such notice, or any certificate the issue of which shall have been forbidden by a person authorised so to do, or who knowingly and wilfully registers any marriage declared by the Act to be null and void, or any registrar [or superintendent registrar, 1 Vict. c. 22, s. 3] who knowingly and wilfully issues any licence for marriage after the expiration of three calendar months after notice has been entered by the registrar [or superintendent registrar, 1 Vict. c. 22, s. 3], or who knowingly and wilfully solemnises in his office any marriage by the Act declared to be null and void, shall be guilty of felony. & 7 Will. 4, c. 85, s. 40. Forgery of Entry, &c. — Forging entries in a marriage register, or forging a marriage licence is a felony. 24 & 25 Vict. c. 98, ss. 35, 36, 37. See also 19 & 20 Vict. c. 112, s. 18. Section VI. — Voidable and Void Marriages. There are two kinds of disabilities constituting impediments to lawful and valid marriage, viz. — canonical and civil. The first make a marriage voidable, the latter make it void. A marriage is voidable when in its constitution there is an imperfection which can be inquired into only during the lifetime of both the parties in a proceeding carried on for the very purpose of obtaining a sentence declaring it null. Until set aside it is practically valid ; when set aside it is rendered void from the beginning. 154 MARRIAGE. [CHAP. VIII. A marriage is void when it is good for no legal purpose ; and its invalidity may be maintained in any proceeding in any court between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally. Voidable. — A marriage is voidable as affected by canonical disabilities, and to obtain a decree of nullity on this ground the suit must be brought by one of the parties during the lifetime of both ; the sole remaining instance of these canonical disabilities is Impotency. Elliott v. Gun; 2 Pliill. Ecc. Cas. 16; A. v. B. and another, L. E. 1 P. & D. 559. Void. — A marriage is void as affected by civil disabilities. These are — (1 .) Want of Consent, based on (a) nonage; (b) Insanity at time of marriage ; (c) Drunkenness under certain circumstances ; (d) Force or Duress (see Harford v. Morris, 2 Hagg. Con. Eep. 423; Scott f. c. Sebright v. Sebright, 12 E. D. 21); (e) Fraud, as by conspiracy, if a state of disability creating want of reason and volition, and amounting to an incapacity to consent is thereby produced. Sullivan v. Sullivan, 2 Hagg. Con. E. 238. But the marriage of a pauper brought about by the fraudulent contrivance of parish officers was held to be not thereby invalidated. Hex v. Birmingham, S. B. & C. 29. But now any officer of an union, parish, or place, who endeavours to induce any person to contract a marriage by threat or promise respecting any application to be made, or any order to be enforced, with respect to the maintenance of any bastard, shall be guilty of a misdemeanour. 7 & 8 Vict, c. 101, s. 8. (2.) Relationship within the Prohibited Degrees. — Before 5 & 6 Will. 4, c. 54 (Lord Lyndhurst's Act), the disabilities arising from consanguinity and affinity were considered as constituting only a canonical impediment and rendering the marriage voidable during the lifetime of both the parties, but not void ; but now, by sect. 2 of that Act, all marriages which are thereafter celebrated between persons within the prohibited degrees of consanguinity or affinity are made absolutely null and void. Hence a marriage with a deceased wife's sister is, since the date of that Act, absolutely void. B. v. Chadwicl; 11 Q. B. 173. Prohibited Marriages. — The prohibited degrees are all those which are within the fourth degree of the civil law, except in the SECT. VI.] VOIDABLE AND VOID MARRIAGES. 155 asconding and descending line ; between collaterals, it is universally true that all who are in the fourth or any higher degree are permitted to many ; thus, first cousins are in the fourth degree and therefore may marry ; and nephew and great aunt, or niece and great uncle, are also in the fourth degree, and may intermarry ; and though a man may not marry his grand- mother, it is certainly true that he may marry her sister. Gibs. Cod. Jur. Eccl. Angl 413. The same degrees by affinity are prohibited. Affinity is the relationship arising from marriage between one married party and the blood relations of the other married party ; thus, a husband is related by affinity to all the consanguinei of his wife, and vice versa, the wife to the husband's consanguinei ; for the husband and wife being considered one flesh, those who are related to the one by blood are related to the other by affinity. Gib. Cod. Jur. Eccl. Angl. 412. Therefore a man, after his wife's death, cannot marry her sister, aunt, or niece, or daughter by her former husband. Blackmore v. B rider, 2 Phil. Ecc. Ca. 359. And a woman cannot marry her nephew by affinity, such as her former husband's sister's son. Elliott v. Gurr, 2 Phil. Ecc. Ca. 18. So a niece of a wife cannot, after the wife's death, marry the husband. Bennington v. Cole, Noy, Pep. 29. But the consanguinei of the husband are not at all related by the marriage to the consanguinei of the wife. Hence two brothers may marry two sisters ; or father and son, a mother and daughter ; or, if a brother and sister marry two persons not related, and the brother and sister die, the widow and widower may intermarry, for though a man is related to his wife's brother by affinity, he is not so to his wife's brother's wife, whom, if circumstances would admit, it would not be unlawful for him to marry. 1 Bla. Com. 435, n. As the rules of prohibition of marriage arise out of natural relationships, so illegitimate relations are within theai. Horner v. Horner, 1 Hagg. Con. Pep. 337. See 7?. v. St. Giles in the Fields, 11 Q. B. 173. (3.) Previous Marriage. — A pre-existing valid marriage on the part of both or either of the spouses is another impediment to a valid marriage. This second marriage is popularly termed bigamous, and the contracting it is treated as a felony, and severely punishable by the criminal law. 156 MARRIAGE. [CHAP. VIII. (4.) Wilful Breach of Statutory Requirements. — Marriages may be made void — («) If persons knowingly and wilfully intermarry in any other place than a church, or such public chapel wherein banns may be lawfully published, unless by special licence ; (b) Or knowingly and wilfully intermarry without due publica- tion of banns, or a licence from a person or persons having authority to grant the same. See Dormer v. Williams, 1 Curt. 870; (c) Or knowingly and wilfully consent to, or acquiesce in, the solemnisation of such marriage by any person not being in holy orders. 4 Geo. 4, c. 76, s. 22 ; (r/) Or if persons knowingly and wilfully intermarry under the provisions of 6 & 7 Will. 4, c. 85, in any other place than the church, registered building, office, or other place specified in the notice and certificate, or without due notice to the superintendent registrar, or without certificate duly issued, or without licence, if a licence be necessary under the Act, or in the absence of a registrar or superintendent registrar, where his presence is necessary under the Act. Sect. 42. But after any marriage has been solemnised under the authority of the Marriage Acts, it shall not be necessary in support of such marriage to give any proof of the actual dwelling or of the period of dwelling of either of the parties previous to the marriage within the district stated in any notice of marriage to be that of his or her residence, or of the consent to any marriage having been given by any person whose consent thereto is required by law, or that the registered building in which any marriage inay have been solemnised had been certified according to law as a place of religious worship of either of the parties, nor shall any evidence be given to prove the contrary in any suit or legal proceedings touching the validity of such marriage ; and all marriages solemnised under the authority of any of these Acts in any 1 milding or place of worship which has been registered pursuant to the 6 & 7 Will. 4, c. 85, but which may not have been certified as required by law, shall be as valid in all respects as if such place of worship had been so certified. 19 & 20 Vict. c. 119, s. 17. Law Governing Marriage Contracts. — The forms of entering into the contract of marriage are regulated by the lex loci con- SECT. VI.] VOIDABLE AND VOID MARKIAGES. 157 tracius ; the essentials of the contract depend upon the lex domicilii. If the contract is in essentials contrary to the law of the domicil, the marriage (although duly solemnised elsewhere) is void in the country of domicil. Brook v. Brook, 9 H. L. C. 193. See Sottomayor v. Be Barros, 3 P. D. 1 ; 5 V. D. 94. Marriage of Minors. — Consent. — Formerly the marriages of minors made without parental consent were invalid both by the canon and civil law ; Ayliffe, Par erg. 362 ; but not by the common law, and the consent of jiarents or guardians was first made neces- sary by Lord Hardwicke's Act. 1756 (26 Geo. 2, c. 33, s. 11) ; and without such consent they were made invalid. This harsh provision was altered by the later Act of 4 Geo. 4, c. 76, which provides that the father, if living, of any party under twenty-one years of age, such party not being a widower or widow ; or, if the father shall be dead, the guardian or guardians of the person of the party so under age lawfully appointed, or one of them ; and in case there shall be no such guardian or guardians, then the mother of such party, if unmarried ; and if there shall be no mother unmarried, then the guardian or guardians of the person appointed by the Court of Chancery, if any, or one of them, shall have authority to give consent to the marriage of such party ; and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorised to give such consent.- Sect. 16. This section is directory only in recpiiring consent, and does not make the marriage void if solemnised without it. R. v. Birmingham, 8 B. & C. 29. Where Parent, &c. Insane. — In case the father of the parties to be married, or one of them, so under age as aforesaid, or the guardian, mother, or any whose consent is made necessary as aforesaid to the marriage of such parties, are non compos mentis, or in parts beyond the seas, or unreasonably or from undue motives refuse or withhold his, her, or their consent to a proper marriage, any person desirous of marrying, in any of the before- mentioned cases, may apply by petition to the Lord Chancellor, who may proceed upon such petition in a summary way ; and in case the marriage proposed, upon examination, appears to be proper, the Lord Chancellor, &c, is judicially to declare the same to be so ; and such judicial declaration shall be as good as if the father, &c, had consented to such marriage. 4 Geo. 4, c. 76, s. 17. 158 MARRIAGE. [CHAP. VIII. This clause does not apply where the father is of sound mind, and unreasonably withholds his consent. Ex parte I. C. (An Infant), 3 Myl. & Or. 471. Banns of Minors. — No minister, vicar, or curate solemnising marriages between persons, both or one of whom shall be under the age of twenty-one years, after banns published, shall be punishable by ecclesiastical censures for solemnising such mar- riages without consent of parents or guardians, unless such minister, &c. shall have notice of the dissent of such parents or guardians ; and in case such parents or guardians, or one of them, shall openly and publicly declare, or cause to be declared, in the church or chapel where the banns shall be so published, at the time of such publication, his, her, or their dissent to such marriage, such publication of banns shall be absolutely void. 4 Geo. 4, c. 76, s. 8. But though dissent thus expressed will make banns void, yet consent in marriages, by banns, is not necessary. See Diddear v. Faucit, 3 Phill. 581. Penalty for procuring Marriage of Minor by Fraud or False Oath. — Where a marriage is solemnised in which one or both of the parties is under age, and which was procured by a false oath or fraud of one of the parties, the guilty party shall forfeit all property which has or shall accrue to him or her by force of the marriage, in a suit on an information riled by the Attorney or Solicitor-General (4 Geo. 4, c. 76, s. 23), which information must be filed within a year after the solemnisation of such marriage. Ibid., sect. 25. All agreements and settlements entered into previous to such marriage are to be void. Ibid., sect. 24. Decree of Validity of Marriage. — See Legitimacy Declaration Act, 1858 (21 & 22 Vict, c. 93). As to the registration of marriages, see post, Chap. X. Marriage of British Subjects outside the United Kingdom. — All marriages between parties of whom one at least is a British subject, solemnised in the manner in the Foreign Marriage Act, 1892, provided in any foreign country or place by or before a marriage officer, within the meaning of that Act, are valid in law. 55 & 56 Vict. c. 23. CHAPTER IX. BURIAL. PAGE Section I. Generally 159 II. In Churches and Old Burial-grounds 172 III. Disused Burial-grounds 177 IV. Provision of Burial-grounds by Local Authorities i. Generally 180 ii. Under the Burial Acts 183 iii. Under the Public Health Interments Act, 1879 193 V. Proprietary Cemeteries 194 VI. Mortuaries 196 Section I. — Generally. Duty to Bury. — Every person dying in this country, and not within certain ecclesiastical prohibitions, is entitled to Christian burial : and every householder in whose house a corpse lies is by the common law bound to have it decently buried. R. v. Stewart, 12 A. & E. 773. A person has only a light of burial in the churchyard or burial-ground of his own parish. Hughes v. Lloyd, 22 Q. B. D. 162. As to the burial of a non-parishioner see post, p. 162. Refusing Burial. — The duty cast upon the clergyman by his office, in respect of burials, is enforced by Canon 68, which pro- vides that no minister shall refuse or delay to bury any corpse that is brought to the church or churchyard, convenient warning being given him thereof (see Ex parte Titchmarsh, 9 Jur. 159), in such manner and form as is prescribed in the Book of Common Prayer. And if he shall refuse so to do (except the deceased were denounced, excommunicated majori excommunicatione for some grievous and notorious crime, and no man able to testify of his repentance), he shall bo suspended by the bishop of the 1G0 BURIAL. [CHAP. IX. diocese from his ministry by the space of three months. But ■whore sufficient evidence has appeared to the bishop of the repentance of the deceased, commissions have been granted, both before and since the Reformation, not only to bury persons who died excommunicated, but to absolve them, in order to Christian burial. Gibs. 450. The rubric (confirmed by 13 & 14 Car. 2, c. 4) forbids the use of the customary office in the burial of any that die unbaptised. This was at one time thought to have made church baptism essential ; but in Kemp v. Wickes, 3 Phill. Ecc. Ca. 286, the baptism of a child by a layman was held sufficient to entitle the child to Christian burial by a minister of the Church of England. See Escott v. Mastin, 4 Moore, P. C. C. 104. Other Exclusions. — The rubric, before the office of burial, is in this form : " Here it is to be noted, that the office ensuing is not to be used for any that die unbaptised, or excommunicate, or have laid violent hands upon themselves." It seems to be clear that attainted traitors and felons, who die before execution, are entitled to Christian burial; and, as they are admitted to the receiving of the sacrament and other rites of the Church, and may be attended by ministers of the Church of England in their last extremity, there appears to be no good reason why death by the law should deprive them of this privilege, though by two ancient canons it was denied them. 1 Burn, Ecc. L. 261. The body of a person executed for murder is to be buried within the walls of the prison within which judgment of death was executed on him ; provided that if there is no convenient space within the walls for such burial, then in a fit place appointed by a Principal Secretary of State. 24 & 25 Vict. c. 100, s. 6 ; 31 Vict. c. 24, s. 6. Suicides. — Of the class who have laid violent hands upon themselves is to be understood, not all who have procured death unto themselves, but those only who have done it voluntarily, having the capacity to govern themselves ; and not idiots, lunatics, or persons otherwise of insane mind. The proper judges whether persons who died by their own hands were out of their senses are, doubtless, the coroner's jury. The minister of the parish is neither entitled nor able to judge in the affair, but may well actpiiesce in the public determination, without SECT. I.] GENERALLY. 161 making any private inquiry. Cooper v. Dodd, 2 Robert, Eec, R. 270. The coroner is bound to receive evidence to prove that the deceased was non compos, which, if he refuse, the inquisition may be quashed by the Queen's Bench, who are the sovereign coroners. 3 Inst. 55. And though there may be reason to sup- pose that the coroner's jury, from motives of compassion, readily yield to slight evidence of this nature, yet on their returning an acquittal of the crime of self-murder — the body in that case not being demanded by the law — it seemeth that a clergyman may and ought to admit that body to Christian burial. 1 Burn, Ecc. L. 266. Interment of Persons felo-de-se. — By 45 & 46 Vict. c. 19, it is not lawful for any coroner, or other officer having authority to hold inquests, to issue any warrant, or other process, directing thp interment of the remains of persons against whom a finding of felo-de-se shall be had in any public highway, or with any stake being driven through the body of such person, but such coroner or other officer shall give directions for the private inter- ment of the remains of such person felo-de-se in the churchyard or other burial-ground of the parish or place in which the remains of such person might, by the laws or customs of England, be in- terred if the verdict of felo-de-se had not been found against such person. 45 & 46 Vict. c. 19, s. 2. The interment of any such person may be made in any of the ways prescribed or authorised by the Burial Laws Amendment Act, 1880 {post, p. 167). Sect. 3. Save as aforesaid, this Act does not authorise the performing of any of the rites of Christian burial in such cases. Sect. 4. The effect of this enactment is, that any form of religious service allowed by the Act of 1880 (post, p. 167) may now be used at the interment of a person felo-de-se, except that of the Church of England by a minister of the Church of England. Burial of Bodies cast on Shore. — The 48 Geo. 3, c. 75, s. 1, enacts, that the churchwardens and overseers in any parish in which an} r dead human body is cast on shore from the sea shall, upon notice thereof given to them, cause such body to be con- veyed to some convenient place, and with all speed cause it to be interred, with the customary duties, in the parish churchyard or burial-ground of such parish, so that the expenses thereof, and fees, &c, do not exceed the sum allowed by such parish for the burial of persons buried at the expense of the parish. The pro- S. M 162 BURIAL. [CHAP. IX. visions of this Act are extended by 49 Vict. c. 20, to dead human bodies found in, or cast on shore from, any tidal or navigable waters, and to all bodies found floating or sunken in any such waters, and brought to shore. By the Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 5, sub-s. 2, references in any Act to the churchwardens and overseers shall, as respects any rural parish, except so far as those references relate to the affairs of the church, be construed as references to the overseers. The expenses of such burials must not exceed the sum usually allowed for burying at the expense of the parish, and proper expenses are re-imbursed to the churchwardens or overseers by the county treasurer on a justices' order, it. v. Kent, 2 Q. B. D. 603. Sailors Dying whilst on Service. — If any master, seaman, or apprentice receives injury in the service of the ship to which he belongs, and dies therefrom, the expense (if any) of his burial is to be defrayed by the owner of such ship, without any deduc- tion on that account from the wages of such master, seaman, or apprentice. In other cases, the reasonable expenses so incurred by the owner in respect of the burial of any seaman or apprentice who dies whilst on service is, if duly proved, to be deducted from the wages of such seaman or apprentice. 17 & 18 Yict. c. 104, s. 28. Non-parishioners. — Non-parishioners cannot be buried in the churchyard without the consent both of the incumbent and churchwardens, and the incumbent may be restrained by injunc- tion from burying non-parishioners in the churchyard without the leave of the churchwardens. 1 Seton's Judgments, Sfc. (5th ed.) 485 ; Kerr on Injunctions, 607. It has been doubted whether churchwardens can give such consent in the absence of a custom to that effect. In the case of the Churchwardens of Harrow-on-thc-IIiU, Perkins, 1740, an admonition was given to the churchwardens not to suffer strangers to be buried in their churchyard ; but they, or the parishioners whose parochial right of burial is invaded thereby, may give permission for the purpose, though it shoiddbe sparingly granted ; Bardin v. Calcott, 1 Hagg. B.ep. 17; and the sanction of the incumbent whose soil is broken is neces- sary. See 1 Burn, Ecc. L. 258. But where a parishioner dies at a considerable distance froni his own parish, being absent on a journey or otherwise, the obvious expediency of interment SECT. 1.] GENERALLY. 163 where the death happens may supersede this right of exclusion. Ibid. Taking Corpse into Church, &c. — It seems to he discretionary in the minister whether the corpse shall he carried into the church or not. And there may he good reason for this, especially in cases of infection. 1 Burn, Ecc. L. 267. Ringing at Funerals. — The 67th Canon directs, that after the party's death there shall he rung no more hut one short peal, and one hefore the burial, and one after the burial. Regulation of Services, &c. — A representation may be made under the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85), complaining that the person in holy orders legally respon- sible for the due performance of the order for the burial of the dead in any churchyard, cemetery, or burial-ground, has within the preceding twelve months used or permitted to be used un- lawful ornaments, or neglected to use any prescribed ornament or vesture, or has failed to observe the directions, &c, contained in the Book of Common Prayer, relating to the service in such burial ground. Brawling, &c, in Churchyards. — Any clerk brawling in a churchyard may be suspended from his ministrations for such time as the ordinary may think fit. 5 & 6 Edw. 6, c. 4 ; 23 & 24 Yict. c. 32. Any persons guilty of riotous, violent, or indecent behaviour in a churchyard or burial-ground, or who shall molest, disturb, vex, or trouble any minister celebrating any divine service, rite, or office in a churchyard or burial- ground, may be fined and imprisoned. 23 & 24 Yict. c. 32, s. 2. Burial Fees. — All the ecclesiastical authorities concur in de- claring that payment of fees is not a condition precedent to the right of interment of a parishioner ; for burial ought not to be sold, though, if there be a custom or prescription to pay, they may be recovered. 1 Burn, Ecc. L. 268 ; Bind. 278 ; Andrews v. Cawthorne, Willes, 536; Spry v. Gallop, 16 M. & W. 716. It is now clearly established that burial fees may be payable by custom. Customary fees for the burial of parishioners must be reasonable and certain. Bryant v. Eoote, L. P. 3 Q. P. 497; 37 L. J. Q. P. 217; 18 L. T. (N.S.) 587. When burial fees are duo by custom, they are not recoverable M 2 164 BURIAL. [CHAP. IX. in a court of law, but must be sued for in an ecclesiastical court. Spry v. Gallop, 16 M. & W. 617 ; 16 L. J. Ex. 218. But if the custom is denied its existence must be tried in the law courts. Anderson v. Walker, 2 Lutw. 1080. As to the rights of incumbents, &c, to fees for burials in new burial-grounds, see post, p. 191, and in cemeteries, post, p. 196. The 6 & 7 Will. 4, c. 86, s. 49, provides that the registration of deaths under it is not to affect the right of any officiating minister to the fees usually paid for burials ; and a similar reser- vation is contained in the 15 & 16 Vict. c. 85, for providing new burial-grounds. Burial of Paupers. — The guardians (in rural parishes the district councillors are the guardians (56 & 57 Vict. c. 73, s. 24 (3))), or, where there are no guardians, the overseers of the poor may biiry the body of any poor person which may be within their parish or union, and charge the expenses to any parish under their control to which such person may have been chargeable, or in which he may have died, or otherwise, in which such body may be ; and unless the guardians, in compliance with the desire expressed by such person in his lifetime, or by any of his relations, or for any other cause, direct the body of such poor person to be buried in the churchyard or burial-ground of the parish to which such person has been chargeable (which they are hereby authorized to do), every dead body which the guardians or any of their officers duly authorized shall direct to be bui'ied at the expense of the poor rates, shall (unless the deceased person, or the husband or wife, or next-of-kin of such deceased person have otherwise desired) be buried in the churchyard or other consecrated burial-ground in or belonging to the parish, division of parish, chapelry, or place in which the death may have occurred. 7 & 8 Vict. c. 101, s. 31. For this purpose the workhouse of the union and district school are to be considered as situate in the parish to which the poor person dying there was chargeable. Sect. 56. Where the churchyard of the parish is closed, then the burial is to be in the ground substituted for it. 18 & 19 Vict. c. 79, s. 1. For the jmrposes of the burial of any poor person dying in the workhouse of any union, such work- house is to be considered as situate in the parish in the union where such poor person resided last, previously to his removal to the workhouse. 28 & 29 Vict. c. 79, s. 10. When a union is SECT. I.] GENERALLY. 165 comprised in any school or other district, the death of any pauper in the school or asylum of such district shall, for the purposes of burial, be deemed to have taken place in the parish of the union from which such pauper was sent to the said school or asylum, or to the workhouse of the union, as the case may be, and the charges of the burial shall be borne by the common fund of such union. 39 & 40 Vict. c. 61, s. 21. In the event of any pauper having- any money or property in his possession or belonging to him, the guardians or overseers of a parish or union may reimburse themselves therefrom the expenses incurred in and about such burial. 12 & 13 Vict. c. 103, s. 16. Guardians are empowered to pay the cost of burial of any poor person dying out of the limits of the union or parish, who was at the time of death in receipt of relief from such guardians, and may recover the cost in like manner, and from the same parties as the cost of any relief (if given to such person when living) would have been recoverable. Ibid., s. 17. Guardians may pay the cost of burial of pauper idiots dying in asylums. The necessary expenses attending the burial of pauper lunatics in asylums are to be paid by the union to which the lunatic is chargeable, or by the local authority liable for his maintenance. 53 Vict. c. 5, s. 297. The guardians of a union or parish may contribute out of the common fund of the union, or out of the poor rates, such sum as the Local Government Board approves, towards the enlargement of an} r churchyard or consecrated public burial-ground in the parish wherein the workhouse is situate, or in any other parish of the union, or towards obtaining any such consecrated public burial-ground ; and where any such burial-ground has been enlarged or obtained with the aid of such contributions, they may bury therein any poor persons dying in the workhouse. But this is not to affect the obligation to bury elsewhere in case the deceased or his relatives, &c, so request. The fees are to be paid by the guardians for such burials, and charged in the same manner as the relief to the deceased was last chargeable. 13 & 14 Vict, c. 101, s. 2. Guardians or overseers may make agreements with cemetery companies or burial boards for the burial of any paupers whom tiny may undertake to bury, or towards whose burial they may ]■ mder assistance ; and thereupon the burial of such body by the 166 BU1UAL. [chap. IX. guardians or overseers in such cemetery, or in the burial-ground of such burial board, shall be lawful, unless the deceased, or the husband or wife or next-of-kin of the deceased, have otherwise expressly desired. 18 & 19 Vict. c. 79, s. 2. Such agreements are not to be valid unless made in such form and with such stipulations as the Local Government Board approve. "Where the guardians of any parish or union possess any land suitable to the purposes of a burial-ground, and the Local Government Board consent to the same being appropriated to the reception of the dead bodies of any poor persons, whom such guardians are required by law to bury, it is lawful for the ordinary, if he sees fit, to consecrate such land for burial pur- poses. It shall be kept in order and decently maintained by the guardians. 20 & 21 Vict. c. 81, s. G. Fees on Pauper Funerals. — In all cases of burial under the direction of the guardians or overseers, the fees payable by the custom of the place in which the burial may take place, or under the provisions of any Act of Parliament, shall be paid out of the common fund of the union to the person or persons who by such custom or such Act may bo entitled to receive them. 7 & 8 Vict. c. 101, s. 31 ; 28 & 29 Vict. c. 79. In the case of the burial of a destitute wayfarer, or wanderer, or foundling, or pauper irremovable by reason of one year's residence (28 & 29 Vict. c. 79, s. 8), dying within the union, the expenses are to be charged to the common fund of the union. 11 & 12 Vict. c. 110, ss. 1, 3; 12 & 13 Vict. c. 103, s. 1. Persons Dying from Infectious Diseases. — No person, without the sanction in writing of the medical officer of health, or of a registered medical practitioner, shall retain unburied elsewhere than in a public mortuary or in a room not used at the time as a dwelling-place, sleeping-place, or workroom, for more than forty-eight hours, the body of any person who has died of any infectious disease. 53 & 51 Vict. c. 34, s. 8. The bodies of persons dying of infectious diseases in hospitals or places of temporary accommodation for the sick are to be removed only for burial. Ibid., s. 9. Where the body of any person who has died from any infectious disease remains unburied elsewhere than in a mortuary or in a room not used at the time as a dwelling-place, sleeping-place, or workroom, for more than forty- SECT. 1.] GENERALLY, 167 eight hours after death without the sanction of the medical officer of health or of a registered medical practitioner, or where the dead body of any person is retained in any house or building so as to endanger the health of the inmates of such house or building, or of any adjoining or neighbouring house or building, any justice may, on the application of the medical officer of health, order the body to be removed at the cost of the local authority to any available mortuary, and direct the same to be buried within the time to be limited in the order ; and any justice may in the case of the body of any person who has died of any infectious disease, or in any case in which he shall con- sider immediate biirial necessary, direct the body to be so buried. Ibid. The relieving officer is bound to bury the body of any deceased person in respect of which such order has been made, unless the Mends or relatives of the deceased bury such body within the time limited by such order. The guardians may recover in a Court of summary jurisdiction any expense so incurred from any person liable to pay the expenses of such burial. Ibid., s. 10. Registrar's Certificate. — Every registrar's certificate of death, and every coroner's order for burial, must be delivered to the person who buries or performs any funeral or religious service for the burial of the deceased under a penalty not exceeding 40s. And the person who buries or performs any funeral or religious service for the burial of any dead body, as to which no order or certificate has been delivered to him, must, within seven days of the burial, give notice thereof in writing to the registrar under a penalty not exceeding 10/. 37 & 38 Yict. c. 88, s. 17. If the coffin contains more than one body, notice must be given to the person performing the burial service. Sect. 18. Burial in Graveyard without the Bites of the Church of England. — Before the passing of the Burial Laws Amendment Act, 1880, no deceased persons (with certain exceptions specified in the rubric) could be buried in consecrated ground without the service of the Church of England being read over their remains. Now, whore any person is entitled to be buried in any churchyard or graveyard, any relative, friend, or legal repre- sentative having the charge of or being responsible for the burial may give forty-eight hours' notice in writing, indorsed on 168 BURIAL. [CHAP. IX. the outside "Notice of Burial," to, or leave or cause the same to be left at the usual place of abode of the rector, vicar, or other incumbent, or in his absence the officiating minister in charge of any parish or ecclesiastical district or place, or any person appointed by him to receive such notice, that it is intended that such deceased person shall be buried within the churchyard or graveyard of such parish, &c, without the performance of the church service. 43 & 44 Vict. c. 41. Such notice is to be in writing, plainly signed with the name and stating the address of the person giving it. The omission of the address renders the notice bad. Hoare v. Ram, 45 J. P. 729. The word "graveyard" in the Act includes any burial-ground or cemetery vested in any burial board, or provided under any Act relating to the burial of the dead, in which the parishioners or inhabitants of any parish or ecclesiastical district have rights of burial ; and in the case of any such burial-ground or cemetery, if a chaplain is appointed to perform the burial service of the Church of England therein, notice under the Act shall be addressed to such chaplain, but the same shall be given to or left at the office of the clerk of the burial board, if any, in whom any such burial-ground or cemetery may be vested. Sect. 1. Such notice, in the case of any poor person deceased whom the guardians of any parish or union are required or authorised by law to bury, may be given to the rector, vicar, or other incumbent in manner aforesaid, and also to the master of any workhouse in which such poor person may have died, or other- wise to the said guardians, by the husband, wife, or next of kin of such poor person, who, for the purposes of the Act, shall bo deemed to be the person having the charge of the burial of such deceased poor person ; and in any such case it shall be the duty of the said guardians to permit the body of such deceased person to be buried in the manner provided by the Act. Sect. 2. Such notice shall state the day and hour when such burial is proposed to take place, and in case the time so stated be incon- venient on account of some other service having been, previously to the receipt of such notice, appointed to take place in such churchyard or graveyard, or the church or chapel connected therewith, or on account of any byelaws or regulations lawfully in force in any graveyard limiting the times at which burials may take place in such graveyard, the person receiving the notice shall, SECT. I.] GENERALLY. 169 unless some other day or time shall be mutually arranged within 24 hours from the time of giving or leaving such notice, signify in writing, to be delivered to or left at the address or usual place of abode of the person from whom such notice has been received, or at the house where the deceased person is lying, at which hour of the day named in the notice, or (in case of burial in a churchyard, if such day shall be a Sunday, Good Friday, or Christmas Day) of the day next following, such burial shall take place ; and it shall be lawful for the burial to take place, and it shall take place, at the hour so appointed or mutually arranged, and in other respects in accordance with the notice. Unless it shall be otherwise mutually arranged, the time of such burial shall be between 10 a.m. and 6 p.m. from 1st April to 1st October, and between 10 a.m. and 3 p.m. from 1st October to 1st April. No such burial shall take place in any churchyard on Sunday, or on Good Friday, or Christmas Day, if any such day being proposed by the notice shall be objected to in writing for a reason assigned by the person receiving such notice. Sect. 3. When no such intimation of change of hour is sent to the person from whom the notice has been received, or left at the house where the deceased person is tying, the burial shall take place in accordance with and at the time specified in such notice. Sect. 4. All regulations as to the position and making of the grave which would be in force in such churchyard or graveyard in the case of persons interred therein with the service of the Church of England, shall be in force as to burials under the Act ; and any person who, if the burial had taken place with the service of the Church of England, would have been entitled by law to receive any fee, shall be entitled, in case of a burial under the Act, to receive the like fee. Sect. 5. At any burial under the Act all persons shall have free access to the churchyard or graveyard. The burial may take place, at the option of the person so having the charge of or being respon- sible for the same as aforesaid, either without any religious service, or with such Christian and orderly religious service at the grave, as such person shall think fit ; and any person or persons who shall be thereunto invited, or be authorised by the person having the charge of or being responsible for such burial, may conduct such service or take part in any religious act thereat. The words "Christian service" in this section include every 170 BURIAL. [CHAP, IX. religious sen-ice used by any church, denomination, or person professing to he a Christian. Sect. 6. All burials under the Act, whether with or without a religious service, shall be conducted in a decent and orderly manner ; and every person guilty of any riotous, violent, or indecent behaviour at any burial under the Act, or wilfully obstructing such burial or any such service as aforesaid thereat, or who shall, in any such churchyard or graveyard as aforesaid, deliver any address, not being part of or incidental to a religious service permitted by the Act, and not otherwise permitted by any lawful authority, or who shall, under colour of any religious service or otherwise, in any such churchyard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion, or the belief or wor- ship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanour. Sect 7. All powers and authorities now existing by law for the preserva- tion of order, and for the prevention and punishment of disorderly behaviour in any churciryard or graveyard, may be exercised in any case of burial under the Act in the same manner and by the same persons as if the same had been a burial according to the rites of the Church of England. Sect. 8. The Act gives no right of interment in any place where no such right existed previous to the passing of the Act. Sect. 9. A certificate of the burial must be transmitted to the rector or registrar, who must enter the burial in the register. Sect. 10. Every order of a coroner or certificate of a registrar given under the provisions of sect. 17 of the Births and Deaths Registra- tion Act, 1874 (post, p. 206), shall, in the case of a burial under this [44 Vict. c. 2] Act, be delivered to the relative, Mend, or legal representative of the deceased, having the charge of or being responsible for the burial, instead of being delivered to the person who buries or performs any funeral or religious service for the burial of the body of the deceased. 43 & 44 Vict. c. 41, s. 11. Using Church Service in Unconsecrated Ground. — No minister in holy orders of the Church of England shall be subject to any censure or penalty for officiating with the service prescribed by law for the burial of the dead according to the rites of the said Church in any unconsecrated burial-ground or cemetery or part of a burial-ground or cemetery, or in any building thereon, in SECT. I.J GENERALLY. 171 any case in which he might have lawfully used the same service if such burial-ground or cemetery or part of a burial-ground or cemetery had been consecrated. The relative, friend, or legal representative having charge of or being responsible for the burial of any deceased person who had a right of interment in any such unconsecrated ground vested in any burial board, or pro- vided under any Act relating to the burial of the dead, shall be entitled, if he think fit, to have such burial j>erformed therein according to the rites of the Church of England by any minister of the said Church who may be willing to perform the same. Sect. 12. "Using other than Church Service. — Any minister in holy orders of the Church of England authorised to perform the burial service may, in any case where the office for the burial of the dead according to the rites of the Church of England may not be used, and in any other case at the request of the relative, friend, or legal representative having the charge of or being responsible for the burial of the deceased, use, at the burial, such service, consisting of prayers taken from the Book of Common Prayer and portions of Holy Scripture, as may be pre- scribed or approved of by the ordinary, without being subject to any ecclesiastical or other censure or penalty. Sect. 13. Exhumation. — Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it is not lawful to re- move any body, or the remains of any body, which may have been interred in any place of burial, without the licence of a Secretary of State. 20 & 21 Vict. c. 81, s. 25. See Adlam v. Colthurst, L. E. 2 A. & E. 30 ; 37 L. J. Ecc. 3. A faculty may be granted authorising the opening of a vault in a consecrated burial-ground, and the opening and inspection of a coffin there buried, for the purpose of identification. It seems that such a faculty may be lawfully acted upon without the licence of a Secretary of State. Druce v. Young, (1899) P. 84. Cremation. — To burn a dead body, instead of burying it, is not unlawful, unless it is so done as to amount to a public nuisance {R. v. Price, 12 Q. B. D. 247 ; 53 L. J. Q. B. 236), or is resorted to for the purpose of preventing the coroner from 1 72 BURIAL. [CHAP. IX. holding- an inquest. H. v. Stephenson, 13 Q. B. D. 331 ; 53 L. J. M. C. 17G. After cremation there may be burial of the ashes in consecrated ground with the burial service. Re Dixon, (1892) P. 386. With regard to registration of burials, see post, Chap. X., Sect. I. Sectiox II. — Tx Churches axd Old Burial- Grounds. Bight of Burial in the Church. — The common law hath given the privilege of granting permission to bury in the church to the parson only. Acc-ordingly, by a resolution in the case of Frances v. Ley, Cro. Jac. 3G7, neither the ordinary himself nor the church- wardens can grant license of burying to any within the church, but the parson only, which right belongs to him in his general capacity of incumbent, and as the person whom the ecclesiastical laws have appointed the judge of the fitness or unfitness of this or that person to have this favour ; because, when the burying in churches came to be allowed, the canon law directed that none but persons of extraordinary merit should be buried there, of which merit the incumbent was in reason the most proper judge, and was accordingly so constituted by the laws of the Church. Gibs. 453 ; Wats. c. 39. But he can only grant leave for the par- ticular burial about to take place, and cannot confer a general right to bury in a particular place. Bryan v. Whistler, 8 B. & C. '203. But the common law has one exception to this necessity of the leave of the parson : namely, where a burying-place within the church is prescribed for, as belonging to a manor- house, the freehold of which is in the owner of that house, and by consequence he hath a good action at law, if he is hindered to bury there. Gibs. 453 ; Harvey's Case, cited in Dawney v. Dee, Cro. Jac. GOG. Prohibition of Burials. — No burials are to be permitted in any church or chapel erected under any of the Church Building Acts, or in the adjacent cemetery at a less distance than 20 feet from the external walls, except in vaults wholly arched with brick or stone under any church or chapel, and to which the only a shall be by steps on the outside of the external walls, under the penalty of 50/. upon conviction before two justices of the peace, SECT. II.] CHURCHES AND OLD BURIAL-GROUNDS. 173 one-half to the informer, the other to the poor of the parish. 58 Geo. 3, c. 45, s. 80. No vault or grave is to be constructed or made within the vails of or underneath any church or other place of "worship, built in any urban district other than the metropolis, after August, 1848. 38 & 39 Vict. c. 55, s. 343, sch. 5, pt. 3. In the metropolis burial is not to take place in any church after an order in council for discontinuance. 15 & 16 Vict. c. 85, s. 4. But there is a saving with respect to St. Paid's Cathedral and Westminster Abbey. In Churchyards. — "The custom of praying for the dead seems to have been the true original of churchyards, as encompassing or adjoining to the church. "Which being laid out, and enclosed for the common burial-places of the respective parishioners, every parishioner hath, and always had, a right to be buried in them." Gibs. 453. But a custom that every parishioner has a right to bury his dead relations in the churchyard, as near their ancestors as possible, is bad. Fryer v. Johnson, 2 W r ils. 28. Though, where the mode of burial is not in question, the Queen's Bench Division will grant a mandamus to compel the clergyman to inter the body of a parishioner, if he should refuse. R. v. Coleridge, 2 B. & Aid. 806 ; 1 Chitt. Eep. 588. And an information was granted against a clergyman in one instance for a similar neglect. R. v. Taylor, "Willes, 538. A mandamus wid not be granted ordering the rector to bury a corpse in a par- ticular part of the churchyard; he has a right to exercise a discretion on that subject. Ex parte Blackmore, 1 B. & Ad. 122. The Compulsory Church Bate Abolition Act provides that nothing in that Act contained shall affect any right of burial to which the inhabitants of the district may be entitled in the churchyard of the mother church. 31 & 32 Vict. c. 109, s. 6. Tombs, Monuments, &c. — A churchyard is the freehold of the incumbent, subject to the right of the parishioners to interment. No monument can legally be erected in a church or churchyard without the permission of the ordinary. Palmer v. Bishop of Exeter, 1 Str. 570. In practice the permission of the incunibrnt is usually substituted for that of the ordinary. Brooke Little's Law of Burials, 62. A monument once set up cannot be removed without the consent of the ordinary. Where a tombstone or monument has been lawfully erected, it may be repaired without 174 BURIAL. [CHAP. IX. a faculty for that purpose. Ibid. An incumbent has the right to supervise the placing of inscriptions upon tombstones. B reeks v. Woolfrey, 1 Curt. 880. But the discretion of the incumbent may be overruled by the ordinary, or by the superior ecclesiastical courts, and a faculty will be granted without the incumbent's consent if such consent is unreasonably withheld. A bequest to keep a vault or tombstone in repair is void on the ground of perpetuity. In re Vaughan, 33 Ch. D. 187. "Where the incumbent has refused to allow a gravestone to be erected, and application is made to the ordinary for a faculty for its erection, or where the bishop has expressed an opinion adverse to the gravestone, and his chancellor has refused a faculty, the Court of Appeal will not overrule the discretion, unless it is clear that the discretion vested in the ordinary has been improperly exercised. Keet v. Smith, L. P. 4 A. & E. 398 ; 44 L. J. Ecc. 70. In that case the judicial committee of the Privy Council held that a AYesleyan minister might be described as "reverend" upon a tombstone in a churchyard. 1 P. D. 73 ; 45 L. J. P. C. 10. See further as to monuments and inscriptions, ante, p. 33. Vaults. — The rector has the freehold of the church for public purposes, not for his own emolument, and is able to supply jdaces for burial from time to time, as the necessities of his parish require, but not to grant away vaults, which cannot be done unless a faculty be obtained. Bryan v. Whistler, 8 B. & C. 288. The grant of a faculty for a vault within the church is entirely within the discretion of the ordinary, and would pro- bably not be granted unless there are exceptional eircunistances. Rugg v. Kingsmill, L. P, 2 P. C. 59; 37 L. J. Ecc. 132. The vicar or perpetual curate of a church, though entitled to officiate and have free access to the chancel, has no right to fees for the erection of monumental tablets or the construction of vaults in the chancel. Id. And a party who erects a tomb in a church- yard, without due authority, may be proceeded against in the Ecclesiastical Court. Bardin v. Calcotf, 1 Hagg. P. 14. And where a faculty is sought to be obtained for erecting a vault in a churchyard, the Court will scruple to decree it without being satisfied that the proposed erection is not likely to be generally prejudicial to the parish, even though the issuing of the faculty be unopposed, either on the part of the parish or of any SECT. II.] CHURCHES AND OLD BURIAL-GROUNDS. 175 particular parishioner. Rosher v. Vicar of Northfleet, 3 Add. E. 14. Fees on Erecting and Opening Vaults, &c. — There is no general common law right to take fees for erecting a stone, or anything else, by which the grave may be protected and the memory of the person interred preserved ; but where this is shown to be customary, such practice will be supported. Barclin v. Calcott, 1 Hagg. Rep. 14. And whether this fee, or a portion of it only, belongs to the incumbent, seems to rest upon similar authority ; though it is observed, that after the soil hath been broken for interring the dead the grass will grow again, and continue beneficial to the incumbent, but after the erection of a monument there ceaseth to be any further produce of the soil in that place. And if the incumbent's leave is necessary for the erecting a monument, it seemeth that he may prescribe his own reasonable terms, unless an accustomed fee hath been paid. 1 Bum, Ecc. L. 273. Where a vicar had made a special contract for the payment of a fee, other than the customary burial fee, for the burial of a non-parishioner in a particular vault in the parish church, it was held that the sum agreed upon could be recovered in an action. Nevill v. Bridger, L. E. 9 Ex. 214; 43 L. J. Ex. 147. Ownership of Tombstones. — The possession and right of property in tombstones erected in a churchyard belong not to the parson, but to those who erected them ; and if anyone deface or injure them, such owners may have their action of trespass against the wrongdoer. Spooner v. Brewster, 2 Car. & E. 34 ; 3 Bing. 136. Additional Churchyards. — Any lands adjoining any church- yard or burial-place niay be conveyed for the purpose of adding thereto by a deed in the form set out in 30 & 31 Yict. c. 133, s. 5. Exclusive right of burial in a portion of the land so added to a churchyard, not exceeding one-sixth of the whole of the said land, may be secured to the giver thereof. 31 & 32 Vict. c. 47, s. 9. The bishop, or any person acting under his authority, has the same powers with regard to the erection of monuments and gravestones in land in which such exclusive right of burial shall have been reserved as he had before this Act. 31 & 32 Vict. c. 47, s. 1. The bishop in consecrating lands added to existing 176 BURIAL. [CHAP. IX. churchyards may dispense with some of the ordinary requirements and formalities. 30 & 31 Vict. c. 133, s. 1. The statutes for the erection of additional churches provide that all such parishes or extra-parochial places as shall he re- quired by the commissioners, shall furnish lands for enlarging existing or making additional churchyards or burial-grounds, as the commissioners shall deem necessary. 59 Geo. 3, c. 134, s. 36. The commissioners may accept, from persons willing to give, any lands or tenements for sites, not exceeding in quantity what may be sufficient for providing a churchyard. .58 Geo. 3, c. 45, s. 33. Persons seised in fee simple, fee tail or for life in any manor, or freehold lands, or copyhold, or customary tenure are now em- powered to convey land not exceeding one acre for a burial-place. 30 & 31 Vict. c. 50. A tenant in fee or in tail, and a tenant for life or lives with the concurrence of the remainderman has the same power. 36 & 37 Vict. c. 50. This authority is extended, subject to certain restrictions, to all corporations, lay or ecclesi- astical, and to all officers, justices of the peace, trustees or com- missioners holding land for public, ecclesiastical, parochial, charitable, or other purposes. 45 & 46 Vict. c. 21. Grant or Purchase of Lands.— All the powers and provisions of the 58 Geo. 3, c. 45, or this Act, which relate to the grant, sale, conveyance, purchase and resale of lands or hereditaments, to or by the commissioners, for the purpose of building any additional churches or chapels, shall extend to grants, &c, of lands or hereditaments necessary for enlarging, or making any church- yard or burial-ground, and approaches thereto, under this Act. 59 Geo. 3, c. 134, s. 37. Lands added to any existing churchyard or burial-ground, or appropriated for a new burial-ground, shall, as soon as convenient, be consecrated for the burial of the dead ; and shall for ever be used as an additional burial-ground ; and the freehold of the land so consecrated shall thereupon vest in the jierson or persons in whom the freehold, the ancient burial- ground of such parish or chapelry, shall from time to time be vested. Sect. 38. Authority to enlarge, &c. — The commissioners may authorise any parish, chapelry, township, or extra-parochial place, desirous of procuring or adding to any burial-ground, to purchase any land the commissioners may think sufficient and properly situate SECT. II.] CHURCHES AND OLD BURIAL-GROUNDS. 177 for that purpose, whether within the parish, place, &c. ; and to repay with interest any money borrowed for making such pur- chase ; and the churchwardens are to exercise all the powers of the said Acts for making such purchases ; and when any land so purchased is situate out of the parish or place for which it is intended, the same, after consecration, to be deemed part of such parish or place. 3 Geo. 4, c. 72, s. 26. See 8 & 9 Vict. c. 70, s. 14. By 1 & 2 Will 4, c. 38, s. 17, after five years from the conveyance of any lands, &c, as a site for any church or chapel, or any church or chapel yard or cemetery, under that Act, they shall be absolutely vested in the persons to whom they are con- veyed ; provided, that if recovered in ejectment, they tender the value found by the jury and costs within two months after the judgment. The Queen in Council may order that no new burial-ground shall be opened in any city or town, or within any other limits, without the previous approval of a Secretary of State. 16 & 17 Vict. c. 134, s. 1. Section III. — Disused Burial-Grounds. The Queen in Council may order that, after a time mentioned in the order, burials in any city or town, or within any other limits, or in any burial-grounds or places of burial, shall be dis- continued wholly, or subject to exceptions or qualifications. 16 & 17 Vict. c. 134, s. 1. Burials Prohibited after Order— Penalty. — After the time mentioned in such order no burial shall take place in any church, chapel, churchyard, or burial place, or elsewhere within the parts to which the order extends, or in places of burial in which burials have by such order been ordered to be discon- tinued. Any person burying or assisting in the burial of any body contrary to this enactment is guilty of misdemeanour. 15 & 16 Vict. c. 85, s. 4; 16 & 17 Vict. c. 134, s. 3. A 10/. penalty is imposed, which is to be recovered summarily. 18 & 19 Vict. c. 128, s. 2. Not to extend to Quakers or Jews, or Private Burial- Grounds. — No such order is to extend to any burial-ground of Quakers or Jews, or to any non-parochial burial-ground being S. N 178 BURIAL. [CHAP. IX. the property of a private person, unless it be expressly mentioned in the order ; 15 & 16 Vict. c. 85, s. 3 ; 16 & 17 Vict. c. 134, s. 2 ; or to any portion of a churchyard reserved to a donor with exclu- sive right of burial. 30 & 31 Vict. c. 133, s. 9. Burying in Vaults, &c. preserved. — "Where, under any faculty, or by usage or otherwise, any right of interment in any church, or vault, or churchyard or burial-ground, affected by such order, has been acquired before the 20th August, 1853, a Secretary of State may, on being satisfied that the exercise of such right "will not be injurious to health, grant a licence for its exercise during such time and subject to such conditions as he thinks fit ; but such licence is not to prejudice or affect the authority of the ordinary to prohibit or control interment under such right. 15 & 16 Vict. c. 85, s. 6 ; 16 & 17 Vict. c. 134, s. 4. "Where, by an Order in Council, a churchyard was closed except as to burials in reserved grave spaces allotted to members of the families of parishioners, it was held that a faculty for the reservation of a space in the churchyard for exclusive burial could be granted to a living non-parishioner, member of the family of a parishioner. In re Sargeant, 15 P. D. 1C8. Closed Burial-Groimds to be maintained. — A closed parochial burial-ground must be kept in decent order, and the walls and fences repaired by the burial board of the district ; and a closed churchyard must be kept in order and the fences in repair by the churchwardens of the parish in which it is situate. The expense must be defrayed out of the poor rates (upon the certificate of the burial board or churchwardens; R. v. St. Mary, 25 Q. B. D. 523) of the parish or place where such burial-ground is situated (18 & 19 Vict. c. 128, s. 18), whether it belongs to such parish or place or not. R. v. Bishop If'earmotith, 5 Q. B .D. 67. This obli- gation of keeping a closed churchyard in repair is transferred to the parish council of a rural parish. 56 & 57 Vict. c. 73, s. 6. An urban authority constituted a burial board may repair the fences of any closed burial-ground within its jurisdiction, and shall prevent its desecration, and keep it in a proper sanitary condition, and pass bye-laws for its preservation and regulation, and defray the expense out of the rates authorised to be levied by any urban authority constituted a burial board. 38 & 39 Vict. c. 55, s. 343, sch. 5, pt. 3. SECT. III.] DISUSED BURIAL-GROUNDS. 179 Buildings on Disused Burial-Grounds. — No buildings (includ- ing any temporary or moveable buildings) may be erected upon any burial-ground which is no longer used for interments, except for the purpose of enlarging a church, chapel, meeting-house, or other places of worship. 47 & 48 Vict. c. 72 ; 50 & 51 Vict. c. 32, s. 4. This Act does not apply to any burial-ground which has been sold and disposed of under the authority of any act of parliament. Removal of Tombstones and Monuments.— In the case of any disused churchyard, cemetery, or burial-ground, at least three months before any tombstone or monument is moved, a state- ment is to- be prepared sufficiently describing by the name and date appearing thereon the tombstones and monuments standing or being in the ground, and such other particulars as may bo necessary. Such statement is to be deposited with the clerk of the board or vestry, and an advertisement of the intention to remove or change the position of such tombstones and monu- ments is to be inserted three times at least in some newspaper circulating in the neighbourhood of the burial-ground, and a notice in terms similar to the advertisement is to be placed on the door of the church (if any) to which such churclryard, cemetery, or burial-ground is attached, and is to be delivered or sent by post to any person known or believed by the board or vestry to be a near relative of any person whose death is recorded on any such tombstone or monument. In the case of any consecrated ground no application for a faculty is to be made until the expira- tion of one month at least after the appearance of the last of such advertisements. Provided that on any application for a faculty, nothing is to prevent the bishop from directing or sanctioning the removal of any tombstone or monument if he is of opinion that reasonable steps have been taken to bring the intention to effect such removal to the notice of some person having a family interest in such removal. 50 & 51 Vict. c. 32, s. 3. Opening Disused Burial-Ground as an Open Space. — Any churchyard, cemetery, or burial-ground closed for burials, situated within any sanitary district in England, Wales, or Ireland, may be conveyed to the local authority of the parish or district in which it is situate, to be kept as an open space; and such local authority may fence, drain, level, lay out, plant, ornament, light, N2 180 BURIAL. [CHAP. IX. seat and improve the same. 44 & 45 Vict. c. 31, ss. 4, 5 ; 50 & 51 Vict. c. 32. The local authority may not exercise any power of management with reference to any consecrated ground without a faculty, which may extend to the removal of any tombstone or monument under such conditions and subject to such restrictions as to the bishop may seem fit. Vicar of St. Botolph Without, Aid- gate v. Parishioners, (1892) P. D. 173. An injunction has been granted restraining a vestry from building a band-stand on certain disused burial-grounds, on the ground that they were acting ultra vires. Att.-Gen. v. St. Pancras Vestry, 69 L. T. 627. A "dis- used burial-ground" means a piece of ground set apart for inter- ments, in which interments have or have not taken place, whether it has been partially or wholly closed under a statute or Order in Council, or has become otherwise disused. In re Ponsford, Sfc. School Board, (1894) 1 Ch. 454 ; 65 L. J. Ch. 278. The playing of any games or sports is not allowed in any churchyard, cemetery, or burial-ground in or over which any estate, interest, or control is required under 44 & 45 Vict. c. 34. Provided that (a) in the case of consecrated ground, the bishop by licence or faculty, and (b) in the case of any churchyard, cemetery, or burial-ground which is not consecrated, the body from which any such estate, interest or control is acquired, may expressly sanction any such use of the ground, and may specify any conditions as to the extent or manner of such use. 50 & 51 Vict. c. 32, s. 2. Section IV. — Provision of Burial-Grounds by Local Authorities. 1 . Generally. For the purpose of providing burial-grounds, local authorities can proceed either (1) under what are known as the Burial Acts, 1852 to 1885, or (2) under the Public Health (Interments) Act, 1879. In 1898 a Select Committee of the House of Commons was appointed to enquire into the subject. The committee reported that in their opinion the existing laws relating to the provision of burial-grounds by public authorities are unduly complex, and some of their provisions unjust, and that the machinery by which they are administered is cumbrous and defective, and that the Acts ought to bo consolidated, simplified, and amended. SECT. IV.] PROVISION OF BURIAL-GROUNDS. 181 The following is a summary of the committee's recommenda- tions : — I. That it is desirable to consolidate, simplify, and amend the existing laws which relate to burial, and to concentrate the ad- ministration of these laws in a single government department. II. That the Department should be the Local Government Board. III. That the local authorities over cemeteries should be, in boroughs, the town council ; in urban districts, the urban district council. In rural districts, the local authority for a cemetery which serves one parish only should be the parish council, or in a parish which has no parish council, the parish meeting. Pro- vision should be made for the combination of parishes or authorities in suitable areas where it may be desired. The local authority for a cemetery which serves more than one parish should be representative of the parish councils or parish meet- ings concerned. The case of a parish situated partly in a rural and partly in an urban district would require special adjustment. IV. That the local authority should have discretionary power to apply for the consecration of part of a cemetery. V. That if the local authority should decline to apply for the consecration of any part of a cemetery, and if a demand for con- secrated ground should be made by a reasonable number of parishioners, then the Local Government Board should intervene, and apply for consecration. There should also be a right of appeal to the Local Government Board as to the extent and situation of the ground to be consecrated. In such cases the legal fees for consecration shoidd be paid by those who have demanded it. Consecration should not prevent the performance in the conse- crated ground of such Christian and orderly services, other than the service of the Church of England, as may be desired by the relatives of the deceased, in accordance with the Burial Laws Amendment Act of 1880. " Having regard to the proposals which we have made in the interests of those who desire consecrated ground, wo recommend, on the other hand, that in the unconsecrated ground the system of allotments under the Burial Acts which we have described (page iv.) should be continuod. "As to the boundary-fences, we consider that the nature of tho 182 BURIAL. [CHAP. IX. fence may well be left to the local authority, and that the rule under the Cemeteries Clauses Act, that it should be eight feet high, is unnecessary. The limits between the consecrated and unconsecrated ground should, we think, be clearly defined." VI. That in every cemetery the chapel or chapels which may hereafter be erected at the cost of the ratepayers should be un- consecrated, and be open to all. VII. That a religious body should have power, with the con- sent of the local authority, to erect at its own cost a chapel for services according to the rites of that body ; and, if the local authority should refuse consent, there should be an appeal to the Local Government Board. VIII. That all ecclesiastical fees, other than fees for services rendered, should be abolished in cemeteries which may hereafter be provided by local authorities. "With regard to existing cemeteries, we recommend that the present fees should be con- tinued until the next vacancy, or for fifteen years, whichever period should be the longer : but, if there should be a desire sooner to commute such fees by local agreement under proper safe- guards, facilities to effect that object should be afforded. The fees chargeable should be of the same amount in the consecrated and the unconsecrated parts of a cemetery. The scale of fees to be paid for services rendered should be fixed by the local authority, subject to an appeal to the government department, and such fees should be paid to the ministers of all religious bodies alike. That fees to clerks and other ecclesiastical officers shoidd be abolished, but equitable compensation should be given to existing holders of those offices. IX. That the parochial clergy should be bound to officiate in consecrated ground where the service of the Church of England is required, subject to their statutory right to appoint a duly qualified substitute. The local authority should have no power to appoint a chaplain. X. That the forty-eight hours' notice to incumbents, at present required under the Burial Laws (Amendment) Act, 1880, should be abolished, and the local authority should have power to deter- mine what notice shall be given in respect both to consecrated and to iinconsecrated ground. SECT. IV.] PROVISION OF BUR1 \L-GROUNDS. 183 XI. That, subject to the foregoing provisions, the existing power of the Bishop in consecrated ground should be retained. XII. That the existing law, which secures consecrated ground against being converted to profane uses, should be retained ; and that equal protection should be given to unconsecrated as to consecrated ground. XIII. That the existing inequalities in parochial rating for the provision of parochial cemeteries should be considered. XIV. That further provision should be made for the compul- sory acquisition, when necessary, of land for parochial cemeteries, and that the existing law should be simplified. 2. Under the Burial Acts. The administration of the Burial Acts, 1852 — 1885, is vested in the Home Office ; except that, in cases where the parish council is the authority for the execution of the Burial Acts in a rural district, the Local Government Board is concerned with the exercise of borrowing powers by the parish council, and with the acquisition of, or other dealing with, land for burial-grounds. In every rural district the parish meeting, exclusively, has the power of adopting the Burial Acts for that parish. When the Acts have been adopted by the parish meeting, the parish council, if any, becomes the authority for the execution of the Acts. In a parish having no parish council, the parish meeting can act as the authority only if specially authorised by the county council ; 56 & 57 Vict. c. 73, s. 19 (10) ; and, if not so authorised, must appoint a burial board under the Acts. In urban districts, a vestry, or meeting of the nature of a vestry, of a parish, whether poor law or ecclesiastical, or of a district for which such meetings have customarily been held, can, with the consent of the urban district council, appoint a burial board, and provide a burial-ground. A burial board cannot be newly appointed in any parish having a parish council, and where the area of jurisdiction of an existing burial board is co-extensive with a rural parish all the powers, &c. of such burial board shall, on the parish council coming into office, be transferred to that council. 56 & 57 Vict. c. 73, s. 7 (1), (5), (7). In such a case the burial board ceases to exist without any adoption of the Burial Acts by tho parish meeting. As to the transfer of powers whore the area of a burial 184 BURIAL. [CHAI>. IX. board is part only of a rural parish, or where the area is in two or more rural parishes, see sect. 53 (1), (2). The churchwardens or other persons to whom it belongs to convene meetings of the vestry of the parish, upon the requisition in writing of ten or more ratepayers of any parish in which the places of burial appear to such ratepayers insufficient or danger- ous to health (whether any Order in Council in relation to such parish has or has not been made), (or at their own discretion, without requisition, in any parish in which no burial board has been appointed ; 18 & 19 Vict. c. 128, s. 3), are to convene a meeting of the vestry for the special purpose of determining whether a burial-ground shall be provided for the parish. If it be resolved by the vestry to provide a new burial-ground, a copy of the resolution, signed by the chairman, is to be sent to the Secretary of State. 15 & 16 Vict, c, 85, s. 10. This and follow- ing enactments must be read, in reference to a rural parish, as though the words, "parish council," were used for church- wardens, and "parish meeting" for "vestry" wherever they occur. 56 & 57 Vict. c. 73, s. 7, sub-ss. 1, 8. Burial Board to be Appointed. — In case of such resolution as aforesaid, the vestry are to appoint a burial board, consisting of not less than three nor more than nine ratepayers of the parish, one-third of whom go out of office yearly at a time fixed by the vestry, but are re-eligible. The incumbent is eligible, though not a ratepayer. 15 & 16 Vict. c. 85, s. 11. If a member of a burial board is adjudged bankrupt, his office thereupon becomes vacant. 46 & 4 7 Vict. c. 52, s. 34. Any member of the board may at any time resign on giving written notice to the proper persons. 15 & 16 Vict. c. 85, s. 11. Vacancies in the burial board are to be immediately notified to the churchwardens or other persons to whom it belongs to con- vene meetings of the vestry ; and the vestry are to fill them up within a month ; if they neglect to do so, the burial board may appoint a ratepayer to supply the vacancy. 18 & 19 Vict. c. 128, s. 4. If a vacancy occurs, the vestry may fill it up after the month, the burial board not having done so. ft. v. South Weald, 33 L. J. M. C. 193 ; 10 L. T. (N. S.) 498. Burial Board for United Parishes. — Vestries (or, in rural parishes, parish councils, after a resolution to provide a burial- SECT. IV.] PROVISION OF BURIAL-GROUNDS. 185 ground has been passed by the parish meeting) of parishes, which have resolved to provide burial-grounds, may concur in providing one burial-ground for their joint use, and may agree as to the proportions in which the expenses shall be borne by the several parishes ; and, according, and subject to such terms, the several burial boards are to act as a joint board for all the parishes, and to have a joint office, clerks and officers. 15 & 16 Vict. c. 85, s. 23 ; and see 20 & 21 Vict. c. 81, s. 9 ; and 18 & 19 Vict. c. 128, s. 11. Where any parish or place has been divided into two or more parts or districts for all or any ecclesiastical purposes, and any one of such parts has a separate burial-ground, it is not lawful for the vestry of such entire parish or place to appoint a burial board without the consent of the Secretary of State. 23 & 24 Vict. c. 65, s. 4 ; 34 & 35 Vict. c. 33, s. 1. In future no burial board will be appointed in a rural parish ; but on the passing of a resolution by the parish meeting to pro- vide a burial ground under the Burial Acts, the parish council will be the authority to provide burial-grounds. 56 & 57 Vict. c. 73, s. 7, sub-ss. 1, 7, 8. Burial Boards in Places not Maintaining their own Poor. — The vestry or meeting in the nature of a vestry of any parish, township, or other district not separately maintaining its own poor, which has heretofore had a separate burial-ground, may appoint a burial board and exercise all the powers given to the vestry of a parish separately maintaining its own poor. 18 & 19 Vict. c. 128, s. 12. The provisions of this section are extended to places which have had no separate burial-ground. 20 & 21 Vict. c. 81, s. 5. The existence of a legally constituted burial board for the whole of a parish does not prevent the vestry of an ecclesiastical district formed out of such parish under 1 & 2 "Will. 4, c. 38, and which does not separately maintain its own poor, from legally appointing a burial board for such district under 18 & 19 Vict. c. 128, s. 12. It. v. Tunbriclge, 13 Q. B. D. 339; 53 L. J. Q. B. 488. If the parish, township, or other district, is a rural parish or part of a rural parish, the power of passing the resolution to pro- vide a burial-ground is transferred from the vestry, or meeting in the naturo of a vestry, for such place to the parish meeting of the 186 BURIAL. [CHAP. IX. parish, or to a parish, meeting held for the part of the parish affected. 56 & 57 Vict. c. 73, s. 7, sub-ss. 1, 4, and 8. Where any district not separately maintaining its own poor, but forming part of a parish maintaining its own poor, or of an incor- poration or union maintaining the poor of the places comprised therein by means of a common rate, shall have a burial board, or forms part of a place or union of places not co-extensive with the area rated to the relief of the poor, and having one burial board, the expenses of such burial board, or, where such district forms part only of the area of the burial board, the portion of the expenses to be borne by the district, are to be paid by the overseers or other persons authorised to make and collect such common rate, according to the directions and under a certificate of the burial board. 18 & 19 Yict. c. 128, s. 13. If the district forms part of one rural parish, the powers, duties and liabilities of an existing burial board for such district may, at the option of the burial board or of the parish meeting for such part, be transferred to the parish council of such rural parish. 56 & 57 Vict. c. 73, s. 53, sub-s. 1. If such district is not comprised within one rural parish, the powers and duties of an existing burial board for such district will be transferred to the parish councils of the rural parishes wholly or partly comprised in such district ; or if such district is partly comprised in an urban district, to those parish councils and the district council of the urban district, and will be exercised by a joint committee appointed by such councils. Ibid., sub-s. 2. Meetings. — A burial board may meet when it pleases. It may be summoned at any time after 48 hours' notice by any two of its members for a special purpose mentioned in writing ; it must hold its meetings at its office or other convenient place previously publicly notified. Three members form a quorum. 15 & 16 Vict. c. 85, ss. 13, 14. Contested Election. — The reasonable expenses incurred in tak- ing a poll of the ratepayers of any parish on the occasion either of the appointment or re-appointment by the vestry of persons to be the burial board for such parish, or the filling up by the vestry of any vacancy on such board, are to be defrayed by the burial board. 48 & 49 Vict. c. 21. SECT. IV.] PROVISION OF BURIAL-GROUNDS. 187 Providing New Burial-Ground. — The burial "board is with all convenient speed to proceed to provide a burial-ground within or without the parish or parishes for which they act, and to make arrangements for facilitating interments therein, reference being made to the convenience of access thereto from the parish or parishes for which it is provided. 15 & 16 Vict. c. 85, s. 25. No ground (not already used or appropriated as a cemetery) is to be used for burials within one hundred yards of any dwelling- house without the consent in writing of the owner, lessee, and occupier of such dwelling-house. 18 & 19 Yict. c. 128, s. 9. This distance of one hundred yards is to be measured from the walls of the dwelling-house itself. Wright v. Wallasey Local Board, 18 Q. B. D. 783. See Cowley v. Byas, 5 Ch. D. 944; 56 L. J. Q. B. 259. Cemeteries must be two hundred yards distant from a dwelling-house. 10 & 11 Yict. c. 65, s. 10. The burial board (or in a rural parish the parish council) may, with the consent of the vestry (or parish meeting in a rural parish ; 56 & 57 Vict. c. 73, s. 7, sub-s. 3), contract for and purchase lands for a burial-ground or for additions thereto, or they may purchase from companies or persons entitled thereto any cemeteries or parts thereof, subject to the rights in graves and vaults and other subsisting rights previously granted therein ; or they may, in lieu of providing a burial-ground, contract with such companies or persons for the interment in such cemeteries, either in any allotted part thereof or otherwise, of the bodies of persons who would have had rights of interment in the burial-grounds of the parish. 15 & 16 Vict. c. 85, s. 26. Burial boards may provide more than one burial-ground. 20 & 21 Vict. c. 81, s. 3. Consecrated and Unconsecrated Parts. — The new burial-ground is to be divided into consecrated and unconsecrated parts in such proportions, and the unconsecrated part shall be allotted in such manner and in such portions as sanctioned by a Secretary of State ; 16 & 17 Vict. c. 134, s. 7 ; unless at a vestry specially called for the purpose it is unanimously resolved that the new ground shall be held and used in all respects as the existing churchyard ; in which case another ground, not consecrated, may be provided within ten years. 18 & 19 Vict. c. 128, s. 10. No wall or fence is necessary between the consecrated and un- consecrated portions of the burial-ground, but boundary marks 188 MJRIAL. [CHAP. IX. of stone or iron must be placed between them. 20 & 21 Vict. c. 81, s. 11. Chapels. — When a burial board builds on any burial-ground a chapel for the performance of the burial service according to the rites of the Church, they are also to build on the unconsecrated part chapel accommodation for the performance of burial service by persons not being members of the Church. 1 6 & 1 7 Vict. c. 134, s. 7. If, however, three-fourths of the vestry represent that such chapel on the unconsecrated portion is unnecessary, the Secretary of State may dispense with the obligation to build the same. 18 & 19 Viet. c. 128, s. 14. Where the parish council (or, in a parish not having a parish council, the parish meeting) is the authority for the execution of the Burial Acts in a rural parish, the representation of a majority of the vestry will be unnecessary, but there must be a representation of a similar majority of the parish council. 56 & 57 Vict. c. 73, s. 6, sub-s. 1. Where the burial-grounds provided for two separate parishes adjoin each other, the respective burial boards may concur in building either on one of the said burial-grounds, or partly on one and partly on the other, a chapel for their common use. A burial board, having provided a burial-ground on which chapels have been built, may contract with another board whose burial- ground adjoins for the use of such chapels. 18 & 19 Vict. c. 128, s. 16. New Burial-Ground to be Burial-Ground of the Parish. — After consecration of any burial-ground provided under the Acts (except any portion not intended to be consecrated), such burial-ground is to be deemed the burial-ground for the parish or parishes for which it is provided ; and the incumbent or minister and the clerk and sexton thereof are to perform the same duties and have the same rights and authorities for the performance of religious service in the burial there of the remains of parishioners, &c, and shall be entitled to receive the same fees, as they previously per- formed, had and received ; and the parishioners, &c, are to have the same rights of sepulture therein as they had in the burial- grounds of their respective parishes. 15 & 16 Vict. c. 85, s. 32. The effect of the 30th ami 32nd sections, taken together, is to SECT. IV.] PROVISION OF BURIAL-GROUNDS. 189 make the chapel erected in the consecrated part of the new burial-ground a substitute for the parish church for the purposes of such burial. Rochester v. Thompson, L. R. 6 C. P. 445 ; 40 L. J. C. P. 213. The burial board cannot deprive any existing clerk or sexton of his right to such fees by appointing another person to do his duties. Gell v. Birmingham, 10 L. T. (N. S.) 497. The general management, regulation, and control of the burial- grounds provided under the Act is vested in the respective burial boards providing the same. Any question touching the fitness of a monumental inscription placed in the consecrated part of the ground is to be determined by the bishop of the diocese. 15 & 16 Vict. c. 85, s. 38. Any urban authority constituted a burial board may pass bye-laws for the preservation and regula- tion of the burial-ground. 38 & 39 Vict. c. 55, s. 343. A burial board may, under the Burial Acts (15 & 16 Vict. c. 85; 16 & 17 Vict. c. 134), grant a grave-space to the grantee and his heirs, and the title to the burial rights under such grant will descend to the heirs of the grantee, and will not be vested in all members of the family of the grantee. Matthews v. Jeffrey, 6 Q. B. D. 290; 50 L. J. Q. B. 164. Where a burial board had granted the right and privilege of constructing a private grave in their cemetery, and the exclusive right of burial and interment therein to be held in perpetuity for the purpose of burial, and of erecting and placing therein a monument or stone, it was held that it was not competent to the board, by a regula- tion subsequently made by them for the management of the cemetery, to deprive the grantee of the right of planting and ornamenting the grave. Ashhy v. Harris, L. P. 3 C. P. 523 ; 37 L. J. M. C. 164. New Burial-Grounds not to be Opened without Approval of Secretary of State. — No new burial-ground or cemetery (parochial or non-parochial) is to be provided or used in the metropolis, or within two miles of any part thereof, without the previous approval of a Secretary of State; 15 & 16 Vict. c. 85, s. 9; or, with like approval, in the case of any city or town, or its limits, after an order has been made that no new burial-ground shall be opened in such city or town. 16 & 17 Vict. c. 134, s. 6. These provisions apply to an addition to an existing burial- ground. Ward v. Plymouth Corporation, (1898) 2 Ch. 191. 190 BURIAL. [CHAP. IX. Facilitation of Funerals. — A burial board may make such, arrangements as they think fit for facilitating the conveyance of the bodies of the dead from the parish or the place of death to the burial-ground. 15 & 16 Vict. c. 85, s. 41. Expenses of Burial Boards. — The expenses incurred by any burial board are to be paid out of the poor rates of the parish ; the expenses incurred in providing and laying out the burial- ground and building chapels not to exceed such sum as the vestry authorise. 15 & 16 Vict. c. 85, s. 19. If the vestry refuse or neglect to authorise the expenditure of such sums as the burial board declare to be necessary for these purposes, the Secretary of State may, in certain cases, authorise the expendi- ture. 18 & 19 Vict. c. 128, s. 6. The overseers are bound to pay the authorised ex])enses on receiving a "certificate" signed by a majority of the board. Where a parish council acts as a burial board the certificate will be signed by a majority of the council. Sections 20 & 21 of the 15 & 16 Vict. c. 85, empower the burial board to borrow money. The money raised and the income arising from the burial-ground (except the fees speci- fically appropriated by the Act) are to be applied towards defraying the expenses, and the surplus to be paid to the over seers in aid of the poor rate. Sect. 22. Income tax is payable on such surplus. Paddington Burial Board v. Inland Revenue, 13 Q. B. D. 9 ; 53 L. J. Q. B. 224. Burial boards may borrow money on mortgage ; 20 & 21 Vict. c. 81, s. 19 ; or on terminable annuities ; sect. 21 ; and the councils of boroughs may make a separate burial rate. 20 & 21 Vict. c. 81, s. 22. Where the powers, duties, and habihties of a burial board within an urban district are transferred to the council of such district in pursuance of sect. 62 of 56 & 57 Vict. c. 73, the only portion of the district that can be made bable for the expenses incurred by the council in respect of the powers so transferred is the area which has been previously under the burial board. Sect. 53, sub-sect. 3, and sect. 67. Assessment to Rates. — Land acquired under the Burial Acts for the purpose of a burial-ground shall not be assessed to any rates at a higher value or rent than the value or rent at which it was assessed at the time it was so acquired. 18 & 19 Vict. c. 128, s. 15. SECT. IV.] PROVISION OF BURIAL-GROUNDS. 191 Contracts. — A burial board may enter into contracts for doing all works and things necessary for the purposes of the Burial Acts ; but no contract for over 100/. may be entered into without advertising for tenders fourteen days previously in a local news- paper. 15 & 16 Vict. c. 85, s. 31. Fees. — The burial board may (subject to approval of Secretary of State; 18 & 19 Vict. c. 128, s. 7) fix and settle the fees and payments in respect of interments in any burial-ground provided by them ; or for the right of constructing a vault with such exclusive right of burial, or of erecting monuments, &c. A table of such fees is to be printed and published, and affixed at all times in some conspicuous part of the burial-ground. 15 & 16 Vict. c. 85, s. 34. Fees of Incumbent, &c. — See ante, p. 163, as to right of incumbent or minister or clerk or sexton of a parish to receive fees in respect of the burial in a new burial-ground. The incumbent or minister is also entitled to be paid by the burial board out of the payments received by the board for the sale of exclusive rights of burial, the right of constructing vaidts, erecting monuments, &c. in the consecrated portion of the burial-ground such fees as shall be settled or fixed by the vestry with the approval of the bishop. 15 & 16 Vict. c. 85, s. 33. The incumbent or minister is rot entitled to any fee for burial unless he actually performs the service ; nor is he entitled to any payment from the burial board on the sale by the board of exclu- sive rights of burial, &c. to non-parishioners. Woody. Headingley- cum-BarUy Burial Board, (1892) 1 Q. B. 713; 66 L. T. 90. Where at the time of the discontinuance of interments in any burial-ground the burial fees are divided between the incumbent of the parish and the incumbent of any district parish or other ecclesiastical district, each incumbent is to have the same pro- portion of the fees for burials in the new ground as he was entitled to for burials in the old ground. 15 & 16 Vict. c. 85, s. 35. Fees for burials or for monuments, &c, by law or custom pay- able to the churchwardens, or to trustees, or other persons for payment of an annuity or stipend to the incumbent or minister, or any other parochial purpose, or the discharge of any debt or liability, aro to continue to be paid by the burial board to the 192 BURIAL. [CHAP. IX. persons entitled to receive the same ; and if such fees have been received for the purpose of discharging any periodical payment or other liability, the burial board, on the request of the church- wardens, &c, are to pay out of the fees received by them on account of the parish the amount necessary to discharge such periodical payment or liability. Ibid., sect. 36. The vestry, with the consent of the bishop of the diocese, may revise and vary the fees payable under the Act to the incumbent, clerk, sexton, or substitute a fixed annual sum to be paid by periodical payments, in which case the fees are to be received by the burial board, Avho are to make the fixed payments. Ibid., sect. 37. As this power relates "to the affairs of the church," it will apparently still be exercised by the vestry. 56 & 57 Vict. c. 73, s. 6. The fees to be charged or received by any burial board for any service done, or right granted in unconsecrated portion of burial-ground, are to be identical in amount as in consecrated ground, less any portion of such fees which may be . received for or on account of any incumbent, churchwarden, clerk, or sexton. 20 & 21 Vict. c. 81, s. 17. When the parish council is the burial authority in a rural parish, the words "parish council" must be substituted for the words "burial board" in this enactment. When a bui'ial-ground is provided for two or more parishes in common, and any question arises between the incumbents as to the performance of the burial service by a chaplain to be paid by contributions from them, or deductions from fees or sums payable to them, or otherwise touching the performance of service in the consecrated part of the ground, the bishop is to confirm any arrangement which a majority or, in case of equal numbers, half of the incumbents ajiprove, and such arrangement so confirmed is to be binding on all parties concerned. 15 & 16 Vict, c. 85, s. 39. Where a cemetery is formed by a burial board under the Burial Acts for a parish which never had any burial-ground, the incumbent of the parish is bound to perform the services in the consecrated part of the cemetery over bodies of parishioners and inhabitants of his parish, and is entitled to take any ecclesiastical fees which the board may collect in respect of such services. Steicart v. West Derby Burial Board, 34 Ch. D. 314 ; 56 L. J. Ch. 425. SECT. IV.] PROVISION OF BURIAL-GROUNDS. 193 3. Under The Public Health Interments Act, 1879. A local authority [i.e., a county borough council, an urban dis- trict council, or a rural district council) is authorized to acquire, construct, and maintain a cemetery, either wholly or partly, within or without their district, without the appointment of a burial board. A local authority may accept a donation of land for the purpose of a cemetery, and a donation of money or other property for enabling them to acquire, construct, or maintain a cemetery. 42 & 43 Vict. c. 31, ss. 2, 3. Under sect. 141 of the Public Health Act, 1875, as extended by this Act, the Local Government Board are empowered to require a local authority to provide a cemetery. The council may provide the cemetery by acquiring one already in existence, or by construct- ing it on land to be acquired under the Public Health Act, 1875, or on land accepted as a donation for the purpose. The local authority may set apart a portion of the cemetery for burials according to the rites of the Church of England ; and the bishop, on the application of the local authority, may, if he thinks fit, consecrate it. But the local authority may leave the whole of the cemetery unconsecrated. 10 & 11 Vict. c. 65. The Cemeteries Clauses Act, 1847 (10 & 11 Vict. c. 65), being incorporated with the Interments Act, 1879, a cemetery provided under the latter Act is subject to all the provisions of the incor- porated Act. This has led to serious inconvenience, which is commented on in the report of the Select Committee of the House of Commons {ante, p. 180) in the following passage of their report : — " The original purpose of the Cemeteries Clauses Act, 1847, was altogether different from that of the Burial Acts. The Burial Acts were passed for the purpose of enabling a public authority to provide burial grounds. The Cemeteries Clauses Act was intended to supply general rules applicable to all public companies, which (as a matter of private enterprise and profit) might establish large cemeteries ; while special matters, affecting each particular cemetery company, were left to be determined by special Acts. It is thus analogous to the Eailway Clauses Acts, applicable to railways generally, which leave special matters to be determined by the special Act affecting a particular railway company. This origin explains the distinctive features of the Cemeteries Clauses Act, as contrasted with the Burial Acts. The Burial Acts specially refer to locality ; they give the parishioners 191 BURIAL. [CHAP. IX. of places to be served by tbe new burial-grounds the same rights of interment in the new cemetery as they had before in the parish graveyard. The Cemeteries Clauses Act has nothing to do with locality, and gives no such rights. The ideas expressed by ' parish ' and ' parishioners ' were foreign to the aims of com- panies which sought to provide, at a profit, a large burial-place for all comers." The amendments of the law proposed by the committee are stated, ante, p. 181. Section V. — Proprietary Cemeteries. "We have already noticed cemeteries made and maintained by a local authority for its own district (ante, p. 193). It remains to notice cemeteries made and maintained as commercial under- takings under special Acts of Parliament. The jDrovisions of the Cemeteries Clauses Act, 1847 (10 & 11 Vict. c. 65), extend to such cemeteries as incorporate that Act in the special Act of the company authorized to construct the ceme- tery. Every part of the cemetery is to be inclosed by walls or iron railings of the height of 8 feet at least. Sect. 15. Consecrated Ground. — The bishop of the diocese in which the cemetery is situated may, if he thinks fit, consecrate any portion of the cemetery set apart for the burial of the dead according to the rites of the established church. Sect. 23. The consecrated and unconsecrated portions of the cemeteiy are to be defined by suitable marks, and within the consecrated portion a chapel is to be built according to a plan approved of by the bishop of the diocese, for the performance of the burial service according to the rites of the established church. Sects. 24, 25. Chaplain. — With the consent of the bishop a chaplain is to be appointed to officiate in the consecrated part of the cemeteiy. He is to be licensed by and subject to the jurisdiction of the bishop, and the bishop may revoke any such licence, and remove such chaplain for any cause which appears to him reasonable. Sect. 27. The chaplain shall, when required, unless prevented by sickness or other reasonable cause, perform the burial service over all bodies brought to be buried in the consecrated part of the cemeteiy which are entitled to be so buried. Sect. 28. Any clergyman of the established church, not being prohibited SECT. V.] PROPRIETARY CEMETERIES. 195 by the bishop, nor under ecclesiastical censure, may perform the burial service at the request of the executor of the will of any deceased person, or any other person having the charge of the burial of the body of any deceased person, and with the consent of the chaplain of the cemetery. Sect. 29. The cemetery company are to pay the chaplain a stipend approved by the bishop. Sect. 30. Unconsecrated Ground. — The cemetery company may set apart the whole or a portion of that part of the cemetery which is not set apart for burials according to the rites of the established church as a place of burial for the bodies of persons not being members of the established church, and may allow such bodies to be buried therein under such regulations as the company appoint. Sect. 35. In any chapel built within the unconsecrated part of the ceme- tery, a burial service may be performed according to the rites of any church or congregation other than the established church, by any minister of such other church or congregation, duly authorized by law to officiate in such church or congregation, or recognized as such by the religious community, or society, to which he belongs. Sect. 36. Exclusive Rights of Burial. — Parts of the cemetery may be set apart for the purpose of granting exclusive rights of burial therein, and the company may sell such rights either in per- petuity, or for a limited time, and may sell the right of placing any monument or gravestone in the cemetery, or any tablet or monumental inscription on the walls of any chapel, or other building within the cemetery. Sect. 40. Such exclusive right of burial is to be considered as the per- sonal estate of the grantee, and may be assigned in his lifetime, or bequeathed by his will. Monumental Inscriptions. — The bishop of the diocese and all persons acting under his authority, have the same right and power to object to the placing, and to procure the removal of any monumental inscription within the consecrated part of the cemetery, as he by law has in any church or chapel of the established church, or the burial-ground belonging to such church or chapel, or any other consecrated ground. Sect. 51. See ante, p. 33. o2 196 BURIAL. . [CHAP. IX. Payments to Incumbents, &c, of Parishes. — The cemetery company on the burial of every body within the consecrated part of the cemetery are to pay to the incumbent for the time being of the parish or ecclesiastical district froni which such body shall have been removed for burial, such sums, if any, as shall be prescribed for that purpose in the special Act. Sect. 52. Accounts of payments due are to be rendered to such incumbents half-yearly, and the fees paid half-yearly. Sects. 54, 55. When any body is buried in any cemetery established under the authority of parliament at the expense of a union, parish, hospital, or infirmary, the fee payable to the incumbent on such interment shall not exceed Is., unless such incumbent has been accustomed to receive more, and in no case shall exceed 2s. 6d. ; and nothing shall be payable to any parish or district officer in respect of such interment. 15 & 16 Vict. c. 85, s. 49 ; 16 & 17 Vict. c. 134, s. 7. Compensation is to be paid to the parish clerk, if he held office at the time of passing of the cemetery company's special Act, but not otherwise. Sect. 57. Burials in the consecrated . portion of a cemetery are to be registered by the chaplain. Sect. 32. The approval of the Secretary of State is required before a new cemetery can be opened within a town, or within a certain distance therefrom. (See ante, p. 189.) Section VI. — Mortuaries. Any local authority may, and if required by the Local Govern- ment Board must, provide a mortuary and make bye-laws with respect to the management and charges for use of the same ; they may also provide for the decent and economical interment, at charges to be fixed by such bye-laws, of any dead body which may be received into a mortuary. 38 & 39 Vict. c. 55, s. 141. Where the body of one who has died of any infectious disease is retained in a room in which persons five or sleep, or any dead body which is in such a state as to endanger the health of the inmates of the same house is retained in such house, a magistrate may order its removal to a mortuary. Sect. 142. Any local authority may provide places for post-mortem examinations. Sect. 143. A burial board, with the approval of the vestry, or SECT. VI.] MORTUARIES. 197 the churchwardens and overseers of the poor of any parish for which a burial board has not been appointed, by the direction of the vestry, may provide mortuaries and make arrangements for the reception and care of the bodies to be deposited therein. 15 & 16 Vict, c. 85, s. 42; 16 & 17 Vict, c. 134, s. 7. The sanction of the vestry is not required for expenditure of the burial board in connection with such mortuary. 18 & 19 Vict. c. 128, s. 6. A Secretary of State may make regulations and authorise any person to inspect the mortuary and to see whether such regulations have been observed and complied with. Sect, 8. A facility has been granted for the erection of a mortuary in a churelryard. Hansard v. Bethnal Green, L. E. 4 P. D. 46. Unidentified Bodies. — The London County Council is em- powered to provide and fit up in London one or two suitable buildings for the reception of dead bodies found in London, which are not identified, with a view to preserving them to afford an opportunity of identification. 54 & 55 Vict. c. 70, ss. 72, 89. CHAPTEE X. REGISTERS AND REGISTRATION. PAGE Section I. Ecclesiastical Registration of Baptisms and Burials 198 II. Ecclesiastical Registration of Marriages 201 III. Civil Registration of Births 203 IV. Civil Registration of Deaths 205 V. General Provisions as to Registration 207 Section I. — Ecclesiastical Registration of Baptisms and Burials. Registers of public and private baptisms and burials, solemnized according to the rites of tlie Church of England, within all parishes or ehapelries in England, whether subject to the ordinary, peculiar, or other jurisdiction, must be kept by the rector, vicar, curate, or officiating minister of every parish, or of any chapelry where baptisms and burials have usually been performed. 52 Geo. 3, c. 146, s. 1. Register Books. — The registration is to be in books of parch- ment or durable paper, to be provided by her Majesty's printer, at the expense of the parish or chapelry, -whereon shall be printed the heads of information reqxured to be entered accord- ing to the forms in the schedides to the Act. Sect. 1. Entries of Baptisms or Burials. — The officiating minister is, as soon as possible (and never later than seven days, unless pre- vented by sickness or unavoidable impediment) after the solemni- zation of every baptism or burial, to enter in the proper register book the required particulars, and sign the same. Sect. 3. "Whenever the baptism or burial is performed in any other place than the church or churchyard, by any other minister than the rector, curate, &c, thereof, the minister performing it is, on that or the next day, to transmit to such rector, &c, or his curate, a certificate of such baptism or burial as in Schedide D, who is SECT. I.] ECCLESIASTICAL REGISTRATION OF BIRTHS, ETC. 199 thereupon to enter it in such book, adding to such entry, " According to the certificate of the Rev. , transmitted to me on the day of ," &c. Sect. 4. This section applies to the case of private baptism, but not to burial-grounds — provided under the Burial Acts. 20 & 21 Vict. c. 81, s. 16. Signing Certificate if required. — Every minister or person who performs the rite of baptism is to deliver on demand to the parent or guardian or other person who procured a name to be given to the child (if the child's birth has been already regis- tered) a certificate of baptism in the form given in the schedule to the Act, on payment of a fee not exceeding one shilling. 37 & 38 Vict. c. 88, s. 8. Registration of Burials. — All burials in any burial-ground shall be registered in registered books, to be provided for each such burial-ground by the company, body, or persons to whom the same belongs, and to be kept for that purpose according to the laws in force by which registers are required to be kept by rectors, vicars, or curates of parishes or ecclesiastical districts. 27 & 28 Vict. c. 97. A person is to be appointed to keep the books by the owners of the burial-ground. Sect, 2. Copies of such books are to be sent to the registrar of the diocese wherein the burial-ground is situated. Sect. 3. Burials in the consecrated portion of a cemetery are to be registered by the chaplain. 10 & 11 Vict. c. 65, s. 32. When any burial has taken place under the Burials Act, 1880 (ante, p. 167), the person having the charge of or being respon- sible for such burial is, on the day thereof, or the next day there- after, to transmit a certificate of such burial to the rector, vicar, incumbent, or other officiating minister in charge of the parish or district in which the churchyard or graveyard is situate or to which it belongs, or, in the case of any burial-ground or ceme- tery vested in any burial board, to the person required by law to keep the register of burials in such burial-ground or cemetery, who is thereupon to enter such burial in the register of burials of such parish or district, or of such burial-ground or cemetery, and such entry is to form part thereof. Such entry, instead of stating by whom the ceremony of burial was performed, is to state by whom the same has been certified under that Act. Any 200 REGISTERS AND REGISTRATION. [CHAP. X. person who wilfully makes any false statement in such certificate, and any person receiving such certificate, who refuses or neglects duly to enter such burial in such register, is guilty of a misde- meanour. 43 & 44 Vict. c. 41, s. 10. The form of certificate in the schedule of the Act is as follows : — I, , of , the person having the charge of [or being responsible for] the burial of the deceased, do hereby certify that on the day of , A.B. of , aged , was buried in the churchyard [or graveyard] of the parish [or district] of To the Hector \_or as the case may be~\ of Custody of Register Books. — The register books are to be kept by the rector, &c, in a chest, which is to be constantly kept locked, in his house, if resident within the parish, &c, or in the church or chapel, and are not to be removed therefrom, except for making entries, and for inspection of persons desirous to search or to obtain copies thereof, or to be produced as evidence in some Court. 52 Geo. 3, c. 146, s. 5. The custody of registers of baptisms, marriages, and burials is still in the rector, &c, and not in the parish council. 56 & 57 Vict. c. 73, s. 17 (8). Copies to be made and verified. — At the expiration of two months after every year, fair copies of all the entries of baptisms and burials, solemnized in the year preceding, are to be made by the officiating minister (or church or chapelwarden's clerk, or other person under his direction), and verified by the declaration of the minister, attested by one, at least, of the church or chapel- wardens. Sect. 6. Copies of the register books, so verified and attested, are to be transmitted by the churchwardens, through the post (post free), to the registrar of the diocese, by the 1st June in each year; and the registrar, on or before the 1st July, is to report to the bishop whether such copies have been sent to him, and if not, specially to state the default. Sect. 7. If the minister neglect to verify or sign such copies and such declaration, so that the churchwardens are not able to transmit them, they shall, within the time required for the transmission thereof, certify such default to the registrar, who shall specially state the same in his report to the bishop. Sect. 9. In extra-parochial Places. — In extra-parochial places where there is no church or chapel, the officiating minister is, within one SECT. II.] ECCLESIASTICAL REGISTRATION OF BIRTHS, ETC. 201 month, to deliver to the rector, vicar, or curate of the parish immediately adjoining a memorandum of such baptism, signed by the parent of the child baptized, or of such burial, signed by the person employed therein, with two of the persons attending the same, containing the particulars hereinbefore required, which memorandum, so delivered, is to be entered in the parish register. Sect. 10. Searching the Register Book.— See ])ost, p. 207. False Entries or Copies. — See 24 & 25 Vict. c. 95, s. 5. As to false statements, post, p. 208 ; and as to losing or damaging register, post, p. 208. Extent of Act. — The Act is to extend to cathedral and collegiate churches, chapels of colleges or hospitals, and their burying- grounds, and to the ministers officiating therein, although such churches, &c, be not parochial, and such ministers officiating therein may not be parochial ministers and there be no church- wardens thereof ; and in all such cases the books are to be pro- vided at the expense of the body having the right to appoint the officiating minister in every such cathedral, or collegiate church or chapel of a college or hospital ; and copies thereof, attested by two of the officers of such church, &c, are to be transmitted to the registrar of the diocese by such officiating minister. 52 Geo. 3, c. 146, s. 20. Section II. — Ecclesiastical Registration of Marriages. The Registrar-General is to furnish every rector, vicar, or curate of every church or chapel in England, wherein marriages may legally be solemnized, with a sufficient number, in duplicate, of marriage register books, printed according to a particular form prescribed by the Act, and forms for certified copies thereof. 6 & 7 Will. 4, c. 86, ss. 17, 30. Every clergyman of the Church of England, immediately after solemnization of matrimony ; every registering officer of the Quakers, as soon as conveniently may be after a marriage between two Quakers ; aud every secretary of a synagogue, immediately after a marriage between two Jews, shall register or cause to be registered, in duplicate in two of the marriage register books, the particulars required, according to the form in 202 REGISTERS AND REGISTRATION. [CHAP. X. Schedule C to the Act, and every such entry in the register is to be signed by the clergyman, registering officer, or secretaiy, as the case may be, by the parties married, and by two witnesses. Sect. 81. Questioning the Parties. — The clergjmian, the registering officer of the Quakers, and the secretaiy of the synagogue respectively may ask the parties married the several particulars which are by the Act required to be registered touching such marriage ; and the party who wilfully makes any false answer to the questions is guilty of perjury. Sects. 40, 41. Correcting erroneous Entries. — If the clergyman should dis- cover any error to have been committed in the form or substance of any entry, he may, within one calendar month after discover- ing such error, in the presence of the parties married, or in the case of their death or absence, in the presence of the superin- tendent registrar and two other credible witnesses, who shall respectively attest the same, correct the erroneous entry, accord- ing to the truth of the case, by entry in the margin without any alteration of the original entry, in which ease he must sign the marginal entry, and add the date when correction made, and make the like alteration in duplicate marriage register book, and in certified copy of the register book ; or in case such certi- fied copy be already made, then he must make and deliver in like manner a separate certified copy of the original erroneous entry, and of the marginal correction therein made ; and if all this be properly done he is not liable for penalties. 6 & 7 Will. 4, c. 86, s. 44. Any clergyman who shall refuse or, without reasonable cause, omit to register any marriage solemnized by him, or who shall carelessly lose or injure the register book, or allow it to be injured while in his keeping, shall forfeit 50/. 6 & 7 Will. 4, c. 86, s. 42. Non-registration of Re-marriages. — Where persons after con- tracting marriage at the register office add the religious cere- mony, the clergyman performing the ceremony must not register it as a marriage among the marriages in the parish register. 19 & 20 Vict. c. 119, s. 12. Searching Marriage Register. — See post, p. 207. SECT. III.] ECCLESIASTICAL REGISTRATION OF MARRIAGES. 203 Returns to Superintendent Registrar. — Every rector, &c, is, in the months of April, July, October, and January, to deliver to the superintendent registrar true copies certified by him of all entries of marriages made by him ; and if none have been made, to certify that fact. "When the duplicate register boohs ai*e filled, one copy is to be sent to the superintendent registrar of the district, and the other to be kept by the rector, &c, with the registers of baptisms and burials of the parish. The superintendent registrar is to pay such rector, &c, the sum of sixpence for every entry contained in such certified copy, which sum shall be reimbursed to such registrar by the guardians or overseers of the union, parish or place, for which he is the superintendent registrar. 7 Will. 4 & 1 Vict. c. 22, s. 27.' If such rector, &c, neglect to make out and deliver such certified copies, or the certificate that no marriages have taken place, as the case may be, and after being duly required to deliver them, shall refuse or neglect to do so, he is liable for every such offence to forfeit a sum not exceeding £10. Sect. 28. Marriage before a Registrar. — With regard to marriages under the 6 & 7 Will. 4, c. 85, the registrar is, by sect. 23, forth- with to register them in a book, furnished by the Registrar- General according to the Form C in the Schedule annexed to 6 & 7 Will. 4, c. 86. Each such entry is to be signed by the person by or before whom the marriage is solemnized, by the registrar, the parties married, and attested by two witnesses. The registrar may ask of the parties to be married the particu- lars required to be registered. 6 & 7 Will. 4, c. 85, s. 36. Cer- tified copies of the entries of marriages solemnized by a registrar are to be sent by him to the superintendent registrar. Sect. 24. As to registration and books and returns where marriage is solemnized without presence of registrar, but in presence of authorized person, see 61 & 62 Vict. c. 58 {ante, p. 146). Section III. — Civil Registration of Births. Registering Births. — It is the duty of the father and mother of every child born alive, and, in default of the father and mother, of the occupier of the house in which to his knowledge the child is born, and of each person present at the birth, and of the person having charge of the child, to give to the registrar, 204 REGISTERS AND REGISTRATION. [CHAP. X. within 42 days next after the birth, information of the particulars required to be registered, and in the presence of the registrar to sign the register. 37 & 38 Vict. c. 88, s. 1. Where a birth has not been duly registered, the registrar may, at any time after such 42 days, by notice in writing, require any of the persons required by sect. 1 to give information concerning the birth, to attend personally and to give information, and to sign the register, and it is the duty of such person to comply with such requisition. Sect. 2. It is the duty of any person finding any living new-born child exposed, and of any person in whose charge it may be placed, to give, within 7 days, to the registrar such particulars as to regis- tration as the informant possesses. Sect. 3. It is the duty of the registrar to inform himself carefully of every birth within his sub-district ; and upon receiving person- ally from the informant, at any time within 3 months after the date of the birth of any child, or the finding of any living new- born child, information of the particulars required to be regis- tered, forthwith to register the birth and particulars without fee or reward. Sect. 4. After the expiration of 6 months from the day of the birth, no registrar is to register the birth of any child unless the informant makes before the superintendent registrar a solemn declaration, according to the best of the declarant's knowledge and belief, of the particulars required to be registered concerning the birth, and signs the register in the presence of the registrar and the superintendent registrar ; and, after the expiration of a year from the birth, it is not to be registered without the written authority of the Registrar-General. Sect. 5. Any person required by the Act to give information concerning a birth, who removes before such birth out of the sub-district in which such birth has taken place, may, within 3 months after such birth, give the information by making a declaration of the particulars of the birth before the registrar of the sub-district in which he resides. Sect, 6. The father of an illegitimate child is not required to give infor- mation under the Act concerning the birth of such child, and the registrar cannot enter in the register the name of any person as father of such child, unless at the joint request of the mother and of the person acknowledging himself to be the father of such SECT. IV.] CIVIL REGISTRATION OF DEATHS. 205 child ; and such person is, in such case, to sign the register, together with the mother. Sect. 7. When the birth of any child has been registered and the name by which it was registered is altered, or, if it was registered with- out a name, the parent or guardian of such child, or other person procuring such name to be altered or given, may, within a year after the registration of the birth, have such name added to the register by delivering to the registrar a certificate signed by the minister or person who performed the rite of baptism upon which the name was given or altered, or, if the child is not baptised, signed by the person procuring the name of the child to be given or altered. Sect. 8. See ante, p. 199. A registrar, upon demand made at the time of registering any birth by the person giving the information concerning the birth, and upon payment of a fee not exceeding 3d., is to give such person a certificate of having registered that birth. Sect. 30. Section IV. — Civil Kegistration of Deaths. The registrar is to inform himself of every death happening within his sub-district, and to register it without fee. 37 & 38 Vict. c. 88, s. 14. "When a person dies in a house it is the duty of the nearest relatives of the deceased present at the death, or in attend- ance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same sub-district as the deceased, and, in default of such relatives, of each person present at the death, and of the occupier of the house in which, to his knowledge, the death took place, and, in default of such persons, of each inmate of such house, and of the person causing the body of the deceased person to be buried, to give, to the best of his knowledge and belief, to the registrar, within 5 days next following the day of such death, information of the particulars required to be registered. Sect. 10. Where a person dies in a place which is not a house, or a dead body is found elsewhere than in a house, information must be given by the relatives, or by a person present at the death, or by any person finding the body, or by the person causing the body to be buried. Sect. 11. If a person required to give information concerning any death sends to the registrar a written notice of the occurrence of the 206 REGISTERS AND REGISTRATION. [CHAP. X. death, accompanied by such, medical certificate of the cause of death as is required by the Act to be delivered to the registrar, the information of the particulars required to be registered need not be given within the 5 days, but must be given within 14 days next after the day of the death. Sect. 12. Where any death has, from the default of the persons required to give information concerning it, not been registered, the registrar may, at any time after the expiration of 14 days, and within one year from the day of such death, or from the finding of the dead body elsewhere than in a house, by notice in writing, require any person required by the Act to give information concerning such death to attend personally at the registrar's office, to give such information to the best of the informant's knowledge. Sect. 13. After the expiration of a year next after any death, or the find- ing of any dead body elsewhere than in a house, that death shall not be registered except with the written authority of the Registrar- General. Sect. 15. When an inquest is held on any dead body, the coroner is to send to the registrar, within 5 days after the finding of the jury is given, a certificate under his hand giving information concern- ing the death, and specifying the finding of the jury as to the cause of death, and the registrar shall enter the death and par- ticulars. Sect. 16; 50 & 51 Vict. c. 71, ss. 4, 45. The registrar, upon registering any death, or upon receiving a written requisition to attend at a house to register a death, or upon receiving written notice of the occurrence of a death, accompanied by a medical certificate, is forthwith, or as soon after as he is required, to give, without fee or reward, either to the person giving the information, or sending the requisition or notice, or to the undertaker or other person having charge of the funeral of the deceased, a certificate that he has registered or received notice of the death, as the case may be. 37 & 38 Yict. c. 88, s. 17. Such certificate is to be delivered to the minister who officiates at the burial of the deceased. See Burial, p. 159. Certificate of Cause of Death. — The Eegistrar-General is to furnish to every registrar printed forms of certificates of cause of death by registered medical practitioners, and every registrar is to furnish such forms gratis to any registered medical practitioner residing or practising in such registrar's sub-district. Sect. 20. SECT. V.] GENERAL PROVISIONS AS TO REGISTRATION. 207 In case of the death of any person who has been attended during his last illness by a registered medical practitioner, that practitioner shall sign and give, to some person required by the Act to give information concerning the death, a certificate, stating, to the best of his knowledge and belief, the cause of death, and such person shall deliver such certificate to the registrar. If a person to whom such a medical certificate has been given fails to deliver that certificate to the registrar, he is liable to a penalty not exceeding 40s. Sect. 20. Section V. — General Provisions as to Registration. Returns to Registrar-General. — The registrar is to make out a quarterly account of the births and deaths registered, which the superintendent registrar is to verify and sign ; for the first twenty entries of births and deaths (in each quarterly account ; 37 & 38 Vict. c. 88, s. 31) he is to receive 2s. 6d. each, and for every sub- sequent entry Is., to be paid by the guardians or overseers, and to be charged to the parish in which the birth or death occurred. 6 & 7 Will. 4, c. 86, s. 29. All the certified copies of the registers of births, deaths, and marriages received by the superintendent registrar are to be by Mm transmitted quarterly to the Registrar-General. The super- intendent registrar is to receive 2d. for every entry in such certified copies ; and he is to make out an account four times a year of the number of such entries. Sect. 34. Searches. — By sect. 35, every rector, vicar, or curate, and eveiy registrar, registering officer, and secretary, is to allow searches to be made, and to give copies of entries, certified under his hand, on payment of Is. for every search over a period of not more than one year ; 6d. additional for every additional year ; and 2s. 6d. for every single certificate. Sect. 35. Minutes made by the party searching cannot be charged for, if an unreasonable time is not occupied. Steele v. Williams, 8 Exch. 625; 22 L. J. Exch. 225. The superintendent registrar and Registrar-General are, by sects. 36, 37, to cause indexes to bo made out, to allow searches, 208 REGISTERS AND REGISTRATION. [CHAP. X. and give certified copies, between ten and four, on the payment of the following fees : — Superintendent's office. Registrar-General's office. General searches . . 5s. Od. General searches . . 20s. Od. Particular ditto . . Is. Od. Particular ditto . . Is. Od. Certified copies . . 2s. 6f/. Certified copies . . 2s. 6d. The term " general search" means a search during any number of successive hours not exceeding six, without stating the object of the search; and the term "particular search" means a search over any period not exceeding five years for any given entry. 37 & 38 Vict. c. 88, s. 42. By sect. 38, all certified copies given at the Registrar-General's office are to be stamped and sealed with the seal of the register office ; and every such copy, purporting to be so stamped or sealed, is to be received as evidence of the birth, death, or marriage to which it relates. Wilful False Statements. — All persons wilfully making or causing to be made any false statements as to any of the par- ticulars required to be inserted are to be deemed guilty of perjury. 6 & 7 Will. 4, c. 86, s. 41. Losing or Damaging Register. — Any person having the custody of any register book, or certified copy thereof, or any part thereof, who shall carelessly lose or injure the same, or carelessly allow the same to be injured while in his keeping, shall forfeit a sum not exceeding 507. Sect. 42. CHAPTER XI. PARISH VESTRIES. PAGE Section I. General Vestries 209 1. Vestry Meetings 209 2. Proceedings at the Vestry 212 3. Powers and Duties of Vestry 216 4. Vestry Clerk 218 II. Select Vestries by Custom 221 III. Select Vestries by Statute . .", 222 Section I. — General Vestries. 1. Vestry Meetings. Vestry, where held. — A vestry, properly speaking, is the assembly of the whole parish, met together in some convenient place for the despatch of the affairs and business of the parish ; and this meeting being formerly held in the vestry adjoining to or belonging to the church, it thence took the name of vestry, as the place itself doth from the minister's vestments, which are usually deposited and kept there. Shaw's Par. L. c. 17. Where held. — It was never, indeed, essential to the validity of the meeting that it should be held in the vestry or in the church ; but, if held in either of those places, the Ecclesiastical Court had jurisdiction ratione loci over any misconduct or disorder committed therein. Wenmouth v. Collins, 2 Ld. Raym. 850 ; Wilson v. 31 l Math, 3 B. & Aid. 241. More licence is permitted in the vestry room than would be considered excusable in the church, as the vestry is the place for parish business, and the Court would not interpose in such case, further than might be necessary for the preservation of duo order and decorum. Hutchins v. Denziloe, 1 Hagg. R. 185. 210 PARISH VESTRIES. [CHAP. XI. In order to obviate the scandal and inconvenience arising from vestry and other parochial meetings being held in the church or vestry, power is given to the Local Government Board, upon the application of the churchwardens of any parish where the popu- lation exceeds 2,000 by the last preceding census, pursuant to a resolution of the vestry, ordering that after twelve months from the making of the order, no vestry meeting is to be held in the church, or, except in case of urgency, in the vestry room attached thereto ; and power is given to hire, purchase, or lease other rjlaces for holding such meetings. 13 & 14 Yict. c. 57, s. 2. In rural parishes where such places have been provided, they will now vest in the parish council; 56 & 57 Vict. c. 73, s. 5 (2) (c) ; or if there is no parish council, in the chairman of the parish meet- ing and the overseers of the parish. Sect. 19 (7). Notice of Vestry. — These meetings are usually assembled according as the exigencies of the parish require. No vestiy or meeting of the inhabitants in vestry of or for any parish shall be holden until public notice shall have been given of such vestry, and of the place and hour of holding the same, and of the special purpose thereof, three days at least before the day to be appointed for holding such vestry. 58 Geo. 3, c. 69, s. 1 ; 7 Will. 4 & 1 Vict, c. 45. The publication of such notice is to be made by written or printed copies of it being affixed on or near to the principal doors of all the churches or chapels within the parish or place on Sunday, previously to the commencement of divine service. The notice must before it is affixed, be signed by a churchwarden, or by the rector, vicar, or curate of the parish, or by an overseer. 7 Will. 4 & 1 Viet. c. 45, s. 3. The notice need only "he fixed on the principal doors of all churches and chapels in which divine service is actually performed, and semble, this does not extend to private or proprietary chapels. Ormerody. Chadwick, 16 M. & W. 367; see R. v. Marriott, 12 A. & E. 779; R. v. Whipp, 4 Q. B. 141. The meeting cannot be held before the Thursday after the Sunday on which the notice is given. R. v. Best, 16 L. J. M. C. 338. The notice required by this section does not apply to parishes created under the Church Building Acts for ecclesiastical purposes only, and not separately maintaining their poor. It appears that SECT. I.] GENERAL VESTRIES. 211 in such parishes a reasonable notice is sufficient. R, v. Barrow, L. E. 4 Q. B. 577. It is usual for one of the church bells to be tolled for half an hour before the meeting begins, to give the parishioners notice of their assembling together. Shaw's Par. L. c. 17. By whom called. — Vestries for church matters regularly are to be called by the churchwardens, with the consent of the minister. Although this is the usual way, it appears that the vestry may be called by the minister alone (R. v. D'Oyly, 12 A. & E. 139; 4 Jur. 1056), or both churchwardens. Shaw v. Thompson, 3. Ch. Div. 233, 244. If the minister and churchwardens improperly refuse to give the notices for calling a vestry meeting, a mandamus will issue to compel them to do so. A private parishioner has no right, of his own authority, to publish a notice for a vestry. Daioev. Williams, 2 Add. Bep. 138. Adam's Ecclesiastical Courts, vol. ii., pp. 1823-25. It is essential to the validity of the proceedings of the vestry that the notice should clearly point out the special purposes for which the vestry meeting is to be called. Smith v. Deighton, 8 Moore, P. C. 1 80. The following notice has been held sufficient: — "Notice is hereby given ; the churchwardens, overseers, and other principal inhabitants of this parish are requested to meet in vestry on, &c, to examine the churchwardens' accounts, and to grant them a rate." Rand v. Green, 30 L. J. C. P. 80. Also a notice that the vestry meeting was "for the purpose of granting a church rate for and towards the repair and expenses of the parish church " was held sufficient, although an estimate for the completion of some windows of the church was to be considered. Gough Sf Cartwright v. Jones, 11 W. E. 107 ; 9 Jur. 82. The vicar and churchwardens of a parish have power to fix the hour of holding vestry meetings, and the parishioners cannot, by mandamus, compel them to alter it. R. v.. Vicar of Tottenham, 4 Q. B. D. 367 ; 49 L. J. Q. B. 870. All inhabitants (of either sex) rated to the relief of the poor, whether resident inhabitants of the parish (58 Geo. 3, c. 69, s. 2), or not (59 Geo. 3, c. 85, s. 1 ; 59 Geo. 3, c. 12, s. 22), are, unless disqualified by non-payment of their rates in manner hereafter pointed out, entitled to attend the vestry and vote thereat ; and r 2 212 PARISH VESTRIES. [CHAP. XI. this right is also extended to all inhabitants coming into the parish since the last rate for the relief of the poor, if they consent to he rated. 58 Geo. 3, c. 69, s. 4. But no person who has refused or neglected to pay any rate for the relief of the poor (except a rate which shall have been made or become due within three calendar months immediately preced- ing such vestry meeting; 16 & 17 Yict. c. 65, s. 1), which is due from and has been demanded of him, shall be entitled to vote or to be present in any vestry of the parish for which such rate was made, until he has paid the same. 59 Geo. 3, c. 85, s. 3. Rate- ability is necessary to entitle a parishioner to vote at vestry meetings, although in some cases the occupier may vote where the rates are paid by the owner. 32 & 33 Vict. c. 41 ; 42 Yict. c. 10; Att.-Gen. v. Croydon, 42 Ch. D. 178; 61 L. T. 291; 53 J. P. 726. An action will, it seems, lie for excluding from the vestry a duly qualified parishioner. Vin. Abr. " Vestry''''; Phillybrown v. Ryland, 1 Str. 624 ; R. v. St. Mary, Lambeth, 8 A. & E. 356. 2. Proceedings at the Vestry. Chairman of Vestry. — The minister of the parish {i.e., rector, vicar, or perpetual curate) has a right to preside at all vestry meetings. Wilson v. M '< Math, 3 Phil. Ecc. Ca. 87 ; 3 B. & Aid. 246, note. And this right exists equally whether the meeting be held in the church or elsewhere. Ii. v D'Oyly, 12 A. & E. 139. The 58 Geo. 3, c. 69, s. 2, provides that in case the rector or vicar, or perpetual curate, is not present, the persons assembled shall forthwith nominate, by plurality of votes, to be ascertained as is directed by the Act, one of the inhabitants to be chairman. The chairman must be careful that all the proceedings are conducted regularly and legally ; but if there should have been irregularity through mistake or inadvertence, it woidd not necessarily follow that the proceedings woidd be held void. Tiarks v. Hutton, L. P. 1 A. & E. 270; 35 L. J. Ecc. Cas. 14. The chairman must not improperly refuse to put an amendment. At a vestry meeting it was proposed that a certain person shoidd be re-elected church- warden. An amendment was moved that correspondence as to certain charity funds should be first produced. The chairman refused to put the amendment, and declared that the person pro- SECT. I.] GENERAL VESTRIES. 213 posed was duly elected churchwarden. The Court held that the chairman was wrong in not putting the amendment, and in not putting it to the meeting whether the person proposed should be elected churchwarden. R. v. Hagbourne, 51 J. P. 276. The opinion of the meeting is taken by show of hands, but any one present is entitled to demand a poll after the show of hands has been taken and the chairman has given his decision. The demand must be made at once and before the meeting proceeds to other business. R. v. Thomas, 11 Q. B. D. 282 ; 52 L. J. Q. B. 671 ; 47 J. P. 792. If a poll is taken the system of voting is plural, the voters having from one to six votes according to rating. An assessment to the poor rate of less than 50/. gives one vote, and an assessment of a complete 50/. gives two votes; every additional 25/. gives one extra vote, until the total of six votes is reached. 58 Geo. 3, c. 69, s. 3. This scale of voting applies not only to matters at common law determinable by the vestry, but also to other things required by statute to be there done. R, v. Clerkenwell, 1 A. & E. 317. Votes of Companies, &c— The clerk, secretary, steward, or agent, didy authorised for that purpose, of any corporation or company, may vote on behalf of his corporation or company. 59 Geo. 3, c. 85, s. 2. But no such clerk, &c. is to be entitled to be present or to vote, unless all rates for the relief of the poor assessed and charged upon or in respect of the rent, &c. in right of which such clerk, &c. claims to be present and vote, which are due and have been duly demanded before the meeting, have been paid. Sect. 3. Mode of taking Votes. — In matters determined upon at vestry meetings there must be a majority of the votes of those present in favour of the resolution ; those who refuse to take part in the proceedings cannot be treated as absent. Re Eynshaw, 12 Q. B. 398, n. After an adjournment of the meeting for the purpose of taking a poll, and when the result of the poll has been declared, no further amendments can be moved. R. v. Roberts §• May, 32 L. J. M. C. 153. "Where several persons are put in nomination, and more than one is to be elected, a show of hands will not decide the election ; rind where a plurality of votes is allowed, a poll is absolutely 214 PARISH VESTRIES. [CHAP. XT. necessary ; Campbell v. Maund, 5 A. & E. 865 ; R. v. Rector of Birmingham, 7 A. & E. 254; and it is no objection in such a case that the chairman directed a poll without taking a show of hands, though one was demanded. Ibid. A poll is generally demandable, as a matter of right, provided the question before the meeting be a legal one, the decision of the chairman upon the show of hands not being conclusive. R. v. St. Saviours, 1 A. & E. 380 ; R. v. St. Pancras, 11 A. & E. 15 ; R. v. Cooper, L. E. 5 Q. B. 457. Application for a mandamus to take, a poll and the affidavit upon which it is made, must be made by some person who has an interest in the result. R. v. Frost, 8 A. & E. 822 ; R. v. Mayor of Peterborough, 44 L. J. Q. B. 85. . All qualified persons are entitled to vote at the poll, whether present at the show of hands or not ; and a resolution confining the poll to those who were so present is inoperative. R. v. St. Mary, Lambeth, 8 A. & E. 356 ; R. v. Hedger, 12 A. & E. 139. A mandamus to proceed to a new election, on account of the improper rejection of votes, will not be granted, unless it is shown that the result would have been altered by the reception of the votes. Ex parte Maicbey, 3 E. & B. 718. " If there is no other business and it can be done conveniently, the poll should be taken immediately ; but the chairman is the proper person to determine this. R. v. D ' Oyly, 12 A. & E. 139 ; R. v. St. Mary, Newington, 6 Dowl. & L. 162. The doors of the vestry must be kept open during the poll. R. v. St. Mary, Lambeth, 8 A. & E. 356. And the poll should be kept open a sufficient time to enable all to exercise their privilege, regard being had to the numbers and the distance at which they reside. Raker v. Wood, 1 Curt. 507. In all cases of equality of votes, the chairman shall ( in additio n to such vote or votes as he may by virtue of the Act be entitled to give in right of his assessment) have the casting vote. 58 Geo. 3, c. 69, s. 2. It is generally better, as regards disputed votes, to adjourn the poll for a scrutiny, than to discuss the votes when tendered, but the chairman may decide as to the validity of the votes tendered. A scrutiny cannot bo demanded as a matter of right. R. v. Vicar of Hammersmith, 3 B. & S. 504 (») ; 19 L. T. 203. Adjournment. — Any ratepayer may move the adjournment of the meeting. The right of adjourning a vestry is in the chair- SECT. I.] GENERAL VESTRIES. 215 man, if circumstances render an adjournment indispensable, especially where it is for the purpose of taking a poll. li. v. Archdeacon of Chester, 1 A. & E. 342 ; Baler v. Wood, 1 Curt. 507; R. v. D'Oyly, 12 A. & E. 139. This right, however, must be exercised by the chairman for the purpose of f acilitating the proceedings of the meeting ; and if it were resorted to improperly for the purpose of interrupting or procrastinating the business, the Queen's Bench Division would interfere. Ibid. No poll can be demanded on a motion for adjournment. Where notice of the purpose of a meeting was d.uly given, and certain business was there begun, and the meeting was regularly adjourned, it was held that the same business might be concluded at the adjourned meeting, although the notice for the adjourned meeting did not state the purpose for which it was summoned. Scadding v. Lor ant, 3 H. L. Ca. 418. Minutes of Proceedings. — The minutes of the proceedings and resolutions of every vestry are to be fairly and distinctly entered in a book, to be provided for the purpose by the churchwardens and overseers of the poor. 58 Geo. 3, c. 69, s. 2. The pro- ceedings are by the same section required to be signed by the chairman, and such of the inhabitants present as shall think proper may also sign them. But they incur no separate or individual responsibility for anything which may be done in pursuance of a resolution of vestry so signed by them. Thus vestrymen, who sign a resolution ordering the parish surveyor to take steps for defending an indictment for not repairing a road, are not responsible for the payment of the solicitor em- ployed by the surveyor; Sprott v. Powell, 3 Bing. 478; for in signing the resolution, they act merely as vestiyraen, without any intention of becoming individually responsible. Lanchester v. Tricker, 1 Bing. 201 ; Lanchester v. Frewer, 2 Bing. 361. But if the resolution expressly guarantees the payment of the expenses, all those who sign it are individually liable. Heudebourch v. Lanyton, 10 B. & C. 546. In rural parishes it may be the duty of the overseers to provide the vestry book. The churchwardens cannot pay for the same out of the poor rate. 56 & 57 Viet. c. 73, s. 5 (b). Confirming Minutes of the Meeting. — It is a common practice to confirm the acts of the vestry at a subsequent vestry, but this 216 PARISH VESTRIES. [CHAP. XI. is not necessary to give them validity. Mawley v. Barbet, 2 Esp. 687 ; B. v. The Vicar of Tottenham, 4 Q. B. D. 367 ; 49 L. J. Q. B. D. 870. 3. Bowers and Duties of Vestry. Control in Parish Matters. — Even before the passing of the Local Government Act, 1894 (56 & 57 Yict. c. 73), matters which were under the control of the parishioners assembled in vestry- were neither numerous nor important, owing to the abolition of compulsory church rates arid the institution of sanitary autho- rities. This Act of 1894 transfers from vestries in rural districts all their powers (except their powers with regard to the church and ecclesiastical charities) to the parish council where there is one (56 & 57 Vict. c. 73, s. 6 (1) (a)), and to the parish meeting where there is no parish council. Sect. 19 (4). The vestry has still to determine the expediency of enlarging or altering the churches and chapels, or of adding to or disposing of the goods and ornaments connected with those sacred edifices. The election of some of the parish officers is either wholly or in part to be made by the vestry. It elects at least one churchwarden, and in some cases also an incumbent, parish clerk or sexton. The vestry has, as such, no authority in the distribution of pews, though an expression of its opinion ought to weigh with the churchwardens, as being that of the parish. Bettman v. Bridger, 1 Phil. Ecc. Ca. 316. See ante, p. 106. The various Acts dealing with civil matters which a vestry might formerly adopt for the benefit of the parish can now, in rural parishes, only be adopted by parish councils or parish meetings. The Act of 1894 does not take away the powers of urban vestries except in connection with these adoptive Acts. Acts of Vestry binding. — If a vestry is called, every parishioner ought to attend, or, if he do not, he is bound by the acts of those who do. Glutton v. Cherry, 2 Phil. Ecc. Ca, 380. But the acts (if one vestry are not absolutely binding on a succeeding vestry ; they may be confirmed or rescinded ; though the confirmation of the succeeding vestry is not necessary to make the acts of the preceding one valid. Mawley v. Barbet, 2 Esp. 687. Extent of General Vestry Act. — The provisions of the 58 Geo. 3, c. 69, are expressly extended (sect. 7) to all townships, vills, and SECT. I.] GENERAL VESTRIES. 217 places, having separate overseers of the poor, and maintaining their poor separately ; and all its directions and regulations in regard to vestries are to extend and be applied to all meetings which may by law be holden of the inhabitants of any parish, township, vill, or place for any of the purposes in the Act ex- pressed ; and the notices of vestry meetings may, in places where there is no parish church or chapel, or where divine service is not performed in such church or chapel, be given and published in such manner as notices of the like nature are there usually pub- lished, or as is most effectual for communicating the same to the inhabitants thereof. But this is not to alter the time of holding any vestry, parish, or town meeting, which is by the authority of any Act required to be holden on any certain day, or within any certain time in such Act prescribed and directed ; nor to take away, lessen, prejudice, or affect the powers of any vestry or meeting holden in any parish, township, or place, by virtue of any special Act, or of any ancient and special usage or custom, or to change or affect the right or manner of voting in any vestry or meeting so holden. Sect. 8. Vestry Books. — The books directed to be provided by the Act, and kept for the entry of the proceedings of vestries [ante, p. 215), as well as all former vestry books, and all rates and assessments, accounts and vouchers of the churchwardens, overseers of the poor, and surveyors of the highways and other parish officers, and all certificates, orders of courts and of justices, and other parish books, documents, writings, public papers of every parish (except the registry of marriages, baptisms, and burials), are to be kept by such person, and deposited in such place and manner as the inhabitants, in vestry assembled, direct ; and if any person in whose hands or custody any such book, &c. is, wilfully or negligently destroys, obliterates, or injures the same, or suffers the same to be destroyed, &c, or, after reasonable notice and demand, refuses or neglects to deliver the same to such person, or to deposit the same in such place as by order of any such vestry is directed, every person so offending, and being lawfully convicted thereof on his own confession, or on the oath of one or more credible witness or witnesses, before two justices, upon complaint thereof to them made, shall for every such offence forfeit and pay such sum, not exceeding 50^., nor less than 40*., as the justices adjudge and determine, to be recovered and levied 218 PARISH VESTRIES. [CHAP. XI. by warrant of the justices, in such manner and hy such means as poor rates in arrear are by law to be recovered and levied, and to be paid to the overseers of the poor of the parish against which the offence is committed, or to some of them, and applied towards the relief of the poor thereof. But every person unlawfully retaining in his custod}*, or refusing to deliver to any person authorised to receive the same, or obliterating, destroying, or injuring, or siiffering to be obliterated, &c. any book, &c. be- longing to any parish, or to the churchwardens, overseers of the poor, or surveyors of the highways, may be proceeded against, civilly or criminally, as if this Act had not been made. 58 Greo. 3, c. 69, s. 6. As to the custody of these books in rural parishes, see 56 & 57 Vict. c. 73, s. 17 (8), post, Appendix. A ratepayer has no general right to inspect and take extracts from the churchwardens' books of accounts ; to enable him to do so some special and public ground must be shown. Exp. Briggs, 1 E. & E. 881 ; May v. Gtcynne, 4 B. & A. 301. The Vestry Acts apply only to parishes and places having separate overseers of the poor, and maintaining their poor separately. R. v. Barrow, L. R. 4 Q. B. 577. They do not therefore apply to parishes or other districts created under the Church Buildings Acts for ecclesiastical purposes only, except where and to the extent that they may be made applicable by the parish, and by the statute regidating the proceedings of the district vestry. 4. Vestry Clerk. Election and Duty. — The vestry clerk is an officer chosen by the vestry, and acts as registrar or secretary thereto, but he has no right to vote upon or take part in the questions submitted to the vestry. His business is to attend at all parish meetings, and to draw up and copy all orders and other acts of the vestry, and to give out copies thereof when necessary ; and therefore he hath the custody of all books and papers relating thereto. Shaw's Par. L. c. 18. But although it is his duty to produce such books and papers, and permit copies to be taken for the ordinary parish purposes, or when they are wanted for the purpose of advancing any parochial right, he cannot be compelled to furnish such documents if they are required for any mere personal object, as for the purpose of affording evidence against himself, in an action SECT. I.] GENERAL VESTRIES. 219 of libel brought by an inhabitant of the parish. May v. Gioynne, 4 B. & Aid. 301. If the parish books be in the custody of any other person, it seems the vestry clerk may have a mandamus to compel the delivery of them to him. R. v. Croydon, 5 T. R. 713. Though in a later case, where the application was against a churchwarden, Lord Ellenborough said, "If the muniments be- long to the vestry clerk, as annexed to his office, he may bring an action of detainer or trover " ; and refused the rule. Anon., 2 Chitt. P. 255. This decision rests upon the general rule that, in all cases where a mandamus is applied for, there should be a specific legal right, as well as the want of a specific legal remedy. See R. v. Archbishop of Canterbury, 8 East, 213; R. v. Stoke Darner el, 5 A. & E, 584 ; and see R. v. Severn and Wye Rail. Co., 2 B. & Aid. 646. The 58 Geo. 3, c. 69, s. 6, gives the right to the custody of parish books, not to the vestry clerk, but to such person as the vestry appoint. Appointment of, in populous Parishes. — In parishes the popu- lation whereof exceeds 2,000, according to the last preceding census, and in which the Local Government Board have made an order for the appointment of a vestry clerk, the churchwardens or other persons to whom it belongs to convene meetings of the vestry are, within one calendar month after the publishing of such order, and also, in case of any subsequent vacancy in the office of vestry clerk, within one calendar month after such vacancy, to convene a meeting of the vestry for the special pur- pose of electing a vestry clerk to perform such of the duties in the Act specified as are applicable to such parish, in addition to those imposed on vestry clerks by any Act of Parliament. Public notice of such vestry and the place of holding the same, and of the special purpose thereof, is to be given in the usual manner, at least seven days before the day appointed for holding the vestry ; and at such meeting the vestry are to elect a fit and competent person to be vestry clerk. 13 & 14 Vict. c. 57, s. 6. Duties. — The duty of such vestry clerk, unless otherwise directed by the Local Government Board, is — To give notice of and attend meetings of the vestry, and com- mittees appointed thereat. To summon and attend meetings of the churchwardens and overseers, when required, and to enter the minutes thereof. To keep the account of charity moneys distributed by the churchwardens or overseers. 220 PARISH VESTRIES. [CHAP. XI. To keep the vestry books, parisli deeds, &c, rate books and accounts which are closed, and to give copies and extracts from the same at the rate of 4d. for seventy-two words, and to permit all ratepayers of the parish to inspect them at reasonable times, on pain of dismissal for neglect. "Where there is no collector of poor rates or assistant overseer, to make out the poor rate and procure its allowance, and to make all subsequent entries in the rate books, and to give the notices thereof required by law. To prepare and issue the necessary process for recovering arrears of such rates, and to procure the summons to be served, and to attend the justices thereon, and to advise the church- wardens and overseers as to the recovery of such arrears. To keep and make out the churchwardens' accounts, and to present them to the vestry or other legal authority to be passed ; and to examine the collectors' accounts and returns of arrears. To attend the audit of overseers' accounts and conduct all correspondence arising therefrom. To assist the churchwardens and overseers in preparing and making out all other parochial assessments and accounts, and in examining the accounts of the collectors of such assessments. To ascertain and make out the list of persons liable to serve on juries, and to cause them to be duly printed and published and returned to the justices. To give the notices for claims to vote for members of Parlia- ment ; to make out lists of voters, and get them printed and published and duly returned, according to law ; to attend the Revising Court ; and to prepare, make out, and publish the burgess lists and lists of constables. To make all returns required of the churchwardens or overseers by law or proper authority. To advise the churchwardens and overseers in all the duties of their office ; and to perform such other duties and services of a like nature as the Local Government Board from time to time, at the request of the churchwardens or overseers, or otherwise, may prescribe and direct. Sect. 7. Churchwardens, &c. not Discharged. — Nothing in the Act is to exempt or discharge any churchwarden or overseer from the performance of any duty required of him by law, or to oblige him to avail himself of the assistance of the vestry clerk, unless he thinks fit to do so. Sect. 9. SECT. I.] GENERAL VESTRIES. 221 Duration of Office. — The office of vestry clerk is, in ordinary cases, not a fixed and permanent one for which a mandamus will lie. It generally depends altogether on the will of the inhabi- tants, who may appoint a different clerk at each vestry, notwith- standing any supposed agreement made by the parishioners that it should be an annual office. R. v. Croydon, 5 T. R. 713. Where, however, there has been an order of the Local Govern- ment Board to elect a vestry clerk under the 13 & 14 Vict. c. 57, "the person so elected shall not be removable from office, except by a resolution passed at a vestry to be called for that special purpose," and with the consent of the Board, or by an order under their seal. The validity of the election of a vestry clerk can be tested by a writ of quo warranto. R. v. Barrons, (1892) 1 Q. B. 399 ; 61 L. J. Q. B. 88 ; R. v. Tidy, 67 L. T. 319. Salary. — No salary is annexed to this office, unless it be so expressly provided by Act of Parliament. Where a vestry clerk is required to be appointed by order of the Local Government Board, the amount of salary is fixed by the Board, and paid out of the poor rate. 13 & 14 Yict. c. 57, s. 8. A parish council cannot appoint to the office of vestry clerk (56 & 57 Vict. c. 73, s. 17 (4)) ; so that no new vestry clerk under 13 & 14 Vict. c. 57, can be appointed in a rural district. Where there is in a rural parish an existing vestry clerk appointed under 13 & 14 Vict. c. 57, he will become clerk of the parish council. 56 & 57 Vict. c. 73, s. 81 (2). Section II. — Select Vestries by Custom. In a few parishes there are select vestries by custom. They " have arisen through the apathy of the majority of the inhabi- tants as to their parochial rights." Origin. — Select vestries seem to have grown up from the practice of choosing a certain number of persons yearly to manage the concerns of the parish for that year ; which by degrees came to be a fixed method, and the parishioners lost not only their right to concur in the public management as oft as they would attend, but also in most places, if not in all, the right of electing the managers. And this custom of government of pailshes by a 222 PARISH VESTRIES. [CHAP. XI. select number has been held to be a good custom, and tbe churchwardens accounting to them has been held a good account. Gibs. 219. Government of Select Vestries. — The ordinary rules and prin- ciples of law which relate to vestries generally are also applicable to select vestries. If a member of a select vestry is adjudged bankrupt, his office thereupon becomes vacant. 46 & 47 Yict. c. 22, s. 34. Section III. — Select Yesteies by Statute. A new description of vestry was introduced by the 1 & 2 Will. 4, c. 60 (commonly called Hobhouse's Act), which, how- ever, applies only to such parishes as choose to adopt it, being within or part of any city or town, in which parish there shall be a greater number than 800 persons rated as householders and having paid the rates for the relief of the poor within the year preceding that in which the provisions of the Act may be desired to be put in execution. Sect. 43. This Act, which was adopted in many of the metropolitan parishes, has been repealed, so far as relates to such parishes, by the 18 & 19 Vict. c. 120, and it is believed that there are not now many parishes governed under it. CHATEE XII. PARISH MEETINGS. PAGE Section I. Constitution of 223 II. Proceedings at 225 III. Powers and Duties of 226 IV. In Parish without Parish Council 229 Section I. — Constitution of. The Local Government Act, 1894, constitutes Wo new local authorities, namely, the parish meeting and the parish council. This chapter deals with the former, and the following chapter with the latter. Where required. — There shall he a parish meeting for eveiy rural parish {i.e., every parish in a rural sanitary district). 56 & 57 Vict. c. 73, s. 1 (1 & 2). Where a parish is situate partly within and partly without a rural sanitary district, such two parts shall he separate parishes. Where held. — In any suitahle public room vested in the parish council or in the chairman of a parish meeting and the overseers, which can he used free of charge for the purposes mentioned in this section. If no such room then, free of charge, in any suitahle room, at all reasonable times and after reasonable notice, in the schoolhouse of any public elementary school receiving a grant from Parliament or in any suitable room, the expense of main- taining which is payable out of any local rate. Sect. 4. This does not authorise the interference with school hours, or regular use for purposes of justice or police. Any expense incurred by use of room is to be defrayed as part of the expenses of the parish meeting. Sect. 4 (2). No parish meeting is to be held in premises licensed for the 224 PARISH MEETINGS. [CHAP. XII. sale of intoxicating- liquor, unless no other suitable room is avail- able either free of charge or at reasonable cost. Sect. 61. Notice of Meeting. — Public notice is to be given specifying time, place, and business to be transacted, signed by the chairman of the parish council or other conveners of the meeting (1st Sched. Pt. I. (2) ), in manner required for giving notice of vestry meetings. Sect. 51. See ante, p. 210. The length of the notice is not to be less than 7 clear daj's or 14 days if business relates to : — Establishment or dissolution of parish council ; or grouping of a parish ; or adoption of any of the adoptive Acts {post, p. 227). The President of the Local Government Board (Mr. Shaw Lefevre) stated in the House of Commons that he had no authority to determine the question ; but it appeared to him that, if it was intended to bring a subject before an annual parish meeting, previous notice of such intention ought to be given. When held. — An annual assembly of the parish meeting is to be held some day between the 1st of March and the 1st of April, both inclusive, in each year (60 Vict. c. 1), and not earlier than 6 o'clock in the evening. 56 & 57 Vict. c. 73, s. 2 (3). The meeting must be held for the whole parish, even if it is divided into wards. Separate parish meetings in wards are only held for the election of parish councillors. This removes the difficulty in the way of one meeting being held both for the election of parish councillors and for the annual assembly of the parish meeting. The dates in the Parish Councils Election Order, 1898 {post, Appendix), have been so arranged as to admit of one meeting being held for the two purposes, where this is deemed desirable. The Order, however, requires that the business relating to the election shall be the first business trans- acted at the meeting held for the election. The chairman of the parish council or any two parish coun- cillors, or the chairman of the parish meeting, or any six parochial electors may at any time convene a parish meeting. 56 & 57 Vict. c. 73, s. 45 (3). Who may attend a Parish Meeting. — The parish meeting con- sists of the parochial electors of the parish, i.e., persons registered in such portion either of the local government register of electors, or the parliamentary register of electors, as relates to the parish. SECT. I.] CONSTITUTION OF. 225 Sect, 2(1), sect. 44 (2). The Municipal Corporations Act, 1882, s. 9, defined as a burgess a person who had been in occupation, "joint or several," of a house, warehouse, counting-house, shop, or other buildings, who had resided for 12 months in the borough or within 7 miles thereof, who had been rated, and had paid his rates. The County Electors Act, 1888, s. 2, extended this provision to counties, and it also created a new qualification — the right to be registered in respect of a 10/. occupation qualification within the meaning of the Registration Act, 1885. The persons on the parliamentary register are the following : — In counties, persons entitled to be registered in respect of ownership of property within the parish of the requisite value, also persons entitled to be registered as occupation electors in respect of the 50/. rental, the 10/. occupation, the household and lodger qualifi- cation ; and in boroughs, persons entitled to be registered in respect of the 10/. qualification, the household and lodger qualifi- cation. Women may vote as to parish as well as county matters, and the Local Government Act, 1894, s. 43, expressly states that a woman shall not be disquaHfied by marriage for being on any local government register of voters ; but a husband and wife will not be qualified in respect of the same property. The Act also expressly states that nothing shall prevent a person from being on more than one register of parochial voters. Section II. — Proceedings at Meetings. Chairman of Meeting. — If the chairman of parish council is present and is not a candidate for election at the meeting, he shall be chairman of the meeting (sect. 45 (2) ), otherwise the meeting may choose their own chairman. Sect. 2 (4). A parish meeting has no power to elect a vice-chairman. The law officers of the Crown have advised that if the chairman of the parish council is not a parochial elector, he is not entitled to be present at the parish meeting, or to be chairman of it. The Local Government Board have expressed the opinion that the vice- chairman of the parish council, even although he is a parochial elector, cannot claim to act as chairman of the parish meeting, if the chairman of the council is absent or unable to preside. Procedure. — Every question to be decidod by a parish meeting is to be decided in the first place by the majority of those present 226 TARISH MEETINGS. [CHAP. XII. and voting on the question. The chairman to announce his decision as to result : which shall be final unless a poll is de- manded. 1st Sched. Pt. I. (5). The chairman having a casting vote. Ibid. (8). Each parochial elector is entitled to give one vote and no more on any question. A poll may be demanded at any time before the conclusion of a parish meeting. Ibid. (6). A poll may be demanded by any one parochial elector in the case of a resolution respecting any of the following matters, viz. : — (a) Any application, representation, or complaint to a county council or district council. (b) The appointment of a chairman for the year, or of a com- mittee, or the delegation of any powers or duties to a committee, or the approval of the acts of a committee. (c) The appointment of an overseer, the appointment or revo- cation of the appointment or dismissal of an assistant overseer or parish officer. (d) The appointment of trustees or beneficiaries of a charity. (e) The adoption of any of the adoptive Acts. (f ) The formation or dissolution of a school board. (g) The consent or refusal of consent to any act, matter, or thing which cannot by law be done without that consent. (h) The incurring of any expense or liability. (i) The place and time for the assembly of the parish meeting. (k) Any other prescribed matter. But in other cases the assent of the chairman is necessary, or the demand must be made by not less than 5 parochial electors, or one-third of those present, whichever number is least. Ibid. (7). Subject to the provisions of the Local Government Act, 1894, a parish council may make, vary and revoke standing orders for the regulation of the proceedings and business at parish meetings for a rural parish having a parish council. 1st Sched. Pt. III. (5). Section III. — Powers and Duties of Parish Meetings. Establishment of Parish Council. — The first duties of a parish meeting are with regard to the establishment of a parish council. If the parish meeting of a rural parish having a population of between 100 and 300 so resolve, the county council is obliged to provide for the establishment of a parish council by its order to that effect ; and the county council has it in its discretion to pro- SECT. III.] POWERS AND DUTIES OF PARISH MEETINGS. 227 vide for the establishment of a parish council for a smaller parish, with the consent of the parish meeting. The county council may also group parishes under a common parish council, provided each separate parish so grouped has a separate parish meeting, which consents to such grouping. Sect. 1 (1). The parish meeting elects the parish council. A detailed account of the procedure is given {post, p. 237). Adoptive Acts. — The next most important duty of the parish meeting is that of adopting, if they see fit, any of the following Acts, which are known in the Local Government Act, 1894, as the " Adoptive Acts," viz. : — The Lighting and Watching Act, 1833 {post, p. 463). The Baths and Washhouses Act, 1846 to 1882. The Burial Acts, 1852 to 1885 {ante, p. 183). The Public Improvements Act, 1860. The Public Libraries Act, 1892 {post, p. 461), s. 7 (1). Where in these Acts the consent of the vestry of a rural parish is required in relation to any expense or rate, the parish meeting is now substituted for the vestiy. Sect. 7 (3). The parish meeting of every rural parish possesses the exclusive power of adopting the above Acts. If the parish in which any of these Acts is adopted has a parish council, that council becomes the authority for carrying it into execution. Sect. 7. Where there is power to adopt any of the adoptive Acts for a part only of a rural parish, the Act may be adopted by a parish meeting held for that part. Sect. 7 (4). Further Powers of Parish Meeting. — The parish meeting has also the power of restricting the expenditure of the parish council, where it would involve a rate exceeding three pence in the pound for any local financial year, or would involve a loan. Sect. 11 (1). The other functions of the parish meeting are — (1.) To discuss parish affairs, and pass resolutions thereon. Sched. I. Pt. I. (4). (2.) To consent to grants of parochial lands for sites for schools and literary and scientific institutions. Sect. 52 (1). (3.) To apply for a school board. Sect. 52 (2). (4.) To refuse or sanction stopping up of right of way when the parish council consented to such stopping up. Sect. 13 (1). 228 PARISH MEETINGS. [CHAP. XII. (5.) To consent, or refuse consent, to sale of any parish land, &c. Sect. 8 (2). (6.) To receive accounts of all parochial non-ecclesiastical charities, and to consent to parish council supporting or opposing charity schemes. Sect. 14 (5), (6). [The accounts of all parochial charities, not being ecclesiastical charities, are to he delivered within 14 days from the day appointed for making them out to the chairman of the parish meeting, who is to present them at the next parish meeting. Ibid. "When charities are administered by parish councils or parish meetings, their accounts will be audited by the district auditor in like manner as the other accounts of these authorities. In the case of other charities the Local Government Board have no jurisdiction over them.] (7.) To consent to expenditure involving rate between 3d. and 6d. in the £. Sect. 11 (1), (3). (8.) "Where the popidation of the parish falls below 200, to petition the county council for the dissolution of the parish council. Sect, 39 (2). (9.) To guarantee extra postal facilities in parishes where there is no parish council. 58 & 59 Vict. c. 18; 61 & 62 Vict, c. 18 (post, p. 250). In addition to the above, the following enactment relates to the transfer of powers to the parish meeting and council : — "All enactments in any Act, whether general or local and personal, relating to any powers, duties, or liabilities, transferred by this Act to a parish council or parish meeting from justices or the vestry or overseers or churchwardens and overseers shall. subject to the provisions of this Act and so far as circumstances admit, be construed as if any reference therein to justices or to the vestry or to the churchwardens and overseers, referred to the parish council or pariah meeting as the case requires, and the said enactments shall be construed with such modifications as may be necessary for carrying this Act into effect. 56 & 57 Vict. c. 73, s. 52 (5). Expenses of Parish Meeting. — The expenses of a parish meeting (including the expenses of a poll) shall be paid out of the poor rate, by the parish council if there is one, otherwise the chairman SECT. IV.] IN PARISH WITHOUT PARISH COUNCIL. 229 of the parish meeting shall have same powers of obtaining pay- ment as a board of guardians have of obtaining contributions to their common funds. Sect. 11 (4). The demand note for such rate must separate the proportion of the rate levied for the expenses of the meeting, and that (if any) for the purposes of any of the adoptive Acts. Ibid. (5). Section IV. — In Parish without Parish Council. In the case of parishes where there are no parish councils, certain powers which would otherwise belong to the council are vested in the parish meeting. Sect. 19. All the powers, duties, and liabilities of the vestry, except where they relate to the affairs of the church, or to ecclesiastical charities, are transferred to the parish meeting. Sect. 19 (4). Also the power and duty of appointing overseers {ibid. (5) ), and the power given by the Local Government Act, 1894, of appointing trustees of a charity in place of overseers or churchwardens vest, in this case, in the parish meeting. Ibid. (5). The provisions of the same Act with regard to rights of way and highways, and with respect to a complaint to a county council of a district council's default, apply to the parish meeting. Ibid. (8). And further, on the application of the parish meeting, the county council may confer on that meeting any of the powers conferred on the parish council by the Local Government Act, 1894. Ibid. (10). In parishes which have not separate parish councils, a rate levied to defray the expenses of the parish meeting (when added to expenses under any of the adoptive Acts) is not to exceed 6d. in the £ in any local financial year. Ibid. (9). There are also the following differences in procedure in this case : — At the annual assembly the parish meeting chooses a chairman for the year. Ibid. (1). The parish meeting is to assemble not less than twice in each year. Ibid. (2). The parish meeting may appoint a committee of their own number, where they consider it advisable, but all the acts of the committee are to bo submitted to the parish meeting for their approval. Ibid. (3). The chairman of the parish meeting and the overseers of the 230 PARISH MEETINGS. [CHAP. XII. parish (in a parish which has not a separate parish council) fomi a body, corporate by the name of the chairman and overseers of the parish, and have perpetual succession and the power to hold land irrespective of mortmain for the purposes of the parish. Their acts are under the direction of the parish meeting, and are executed under their hands, and seals, if necessary. Ibid. (6). In this body corporate there vests the legal interest in all property which would vest in the parish council (if there were one) under the Local Government Act, 1894. Ibid. (7). In the case of there being no parish council, the parish meeting may (subject to the provisions of the Local Government Act of 1894) regulate their own proceedings and business. Sched. I. Pt. III. (6). Any act of the parish meeting may be signified by an instru- ment executed at the meeting under the hands (and seals, if so necessary), of the chairman presiding at the meeting, and two other parochial electors present at the meeting. Sect. 19 (11). CHAPTER XIII. PARISH COUNCILS. PAGE Section I. Constitution of 231 II. Election of 237 III. Proceedings at Meetings of 240 IV. Powers and Duties of 242 i. Transferred Powers 242 ii. Additional Powers 243 iii. Generally 251 V. Parish Officers 253 Section I. — Constitution oe. Where required. — There is to be a parish council in every rural parish which has a population of 300 or upwards. 56 & 57 Vict. c. 73, s. 1 (1). In the case of smaller parishes it depends on a resolution of the parish meeting. See "Powers and Duties of Parish Meetings," ante, p. 226. How constituted. — The parish council consists of a chairman and councillors. The number of councillors is to be fixed from time to time by the county council, and is not to be less than 5 nor more than 15. Sect. 3 (1). Who may be Councillors. — Parochial electors or residents within the parish, or within 3 miles thereof, during the whole of the 12 months preceding the election. Sect. 3(1). Any person who has entered into residence on or before tho 25th March in any year is, if otherwise qualified for election, eligible for election at tho parish council elections of the succeeding year, notwithstanding that the period of his residence is under one year. 60 Vict. c. 1 . No porson is disqualified by sex or marriage. 56 & 57 Vict, c. 73, s. 3 (2). 232 PARISH COUNCILS. [CHAP. XIII. The disqualifications for "being a member or chairman of a parish council, or of a district council, or of a board of guardians, are : — 1. Being an infant or alien. 2. Receiving union or parochial relief within 12 months before or after election. 3. Being convicted (within 5 years before or since election) on indictment or summarily, and sentenced to imprisonment with hard labour, without the option of a fine, or to any greater punishment, without having received a free pardon. 4. Being (within 5 years before or since election) adjudged bankrupt or has made a composition or arrangement with creditors. This disqualification shall cease, in case of bankruptcy, when the adjudication is annulled, or when the bankrupt obtains his discharge with a certificate that his bankruptcy was caused by misfortune without any misconduct on his part, and in case of composition or arrangement, on payment of his debts in full. A person who within 5 years before an election of parish councillors has been a member of a firm which has executed and registered under the Deeds of Arrangement Act, 1877, a deed of arrangement for the benefit of its creditors, is dis- qualified for election to the office of parish councillor. Ward v. Radford, 59 J. P. 632. 5. Holding any paid office under the parish council, or district council, or board of guardians, as the case may be. 6. Being concerned in any bargain or contract entered into with the council or board, or participating in profit of any such bargain or contract, or of any work done under the authority of the council or board. Sect. 46 (1). No person is disqualified for being so elected b} T reason of being interested — 1 . In the sale or lease of any lands or in any loan of money to the council or board, or in any contract with the council for the supply of road-making or repairing materials from land which he owns or occupies, or for the transport of such materials for the repair of roads or bridges in his own immediate neighbourhood. 2. In any newspaper in which any advertisement relating to the affairs of the council or board is inserted. SECT. I.] CONSTITUTION OF. 233 3. In any contract with the council or board as a shareholder in any joint stock company; but such person shall not vote at any meeting of the council or board on any question in which such company are interested, except that in the case of a water company, or other company established for the carrying on of works of a like public nature, this pro- hibition may be dispensed with by the county council. Sect. 46 (2). In the case of disqualification owing to being interested in any such bargains or contracts with the parish council, such disquali- fication may be removed by the county council, if they consider such removal beneficial to the parish. Sect. 46 (3). The law officers have expressed the opinion that a member of a parish council does not become disqualified for continuing in office by reason of his taking an allotment. Six months' consecutive absence from meetings of the parish council, or of the district council, or of a board of guardians, except in case of illness or for some reason approved by the council or board, vacates the seat. Sect. 46 (6). If any person acts when disqualified, or votes when prohibited, he shall for each offence be liable on summary conviction to a fine not exceeding 20^. Ibid. Where hsld. — The parish council may be held in the places mentioned in the case of parish meetings. Ante, p. 223. These same places are also available for candidates for the parish council, but any expenses or damage incurred is to be defrayed by the persons by whom or on whose behalf the meeting- is convened. Sect. 4(1) (d) ; sect. 4 (2). When held. — A parish council shall hold not less than four meetings in each year, of which one shall be the annual meeting (see infra), and every such meeting shall be open to the public, unless the council otherwise direct. Sched. I. Pt. II. (13). If any casual vacancy arises in the council, the council shall forthwith be convened for filling tho vacancy. Ibid. (2). The chairman may at any time convene a meeting of the parish council. If tho chairman refuses to convene a meeting after a requisition signed by two members of the council, any two members may forthwith convene a meeting ; and if the chairman 234 PARISH COUNCILS. [CHAP. XIII. delays for 7 days after such, a requisition, any two members may convene a meeting at the expiration of those 7 days. Ibid. (4). Notice of Meeting. — At least 3 clear days, signed by or on behalf of the chairman of the council — or persons convening the meeting — specifying time, place, and business to be transacted, to be given to every member. As regards the annual meeting, notice as above to be given to every member immediately after his election. Sched. I. Pt. II. (5). Any such notice may be left or sent by post to usual place of abode of member. Ibid. (6). Annual Meeting. — This must be held within 7 days after ordinary day of coming into office (April 15th). It appears that it is not necessary that at the annual meeting of a parish council the reading and signing of the minutes of the last meeting should be postponed until the chairman of the parish council is elected and the overseers appointed. The first business to be transacted at the annual meeting is the election of the chairman of the parish council for the ensuing year. The chairman must be elected either from the parish council "or from other persons qualified to be councillors of the parish, i.e., from among parochial electors of the parish, or persons who have, during the whole of the 12 months pre- ceding the election, resided in the parish or within 3 miles of it. By the Local Government Act, 1897, any person who has entered into residence on or before the 25th March in any year is, if otherwise qualified for election as a parish councillor, eligible for election at the parish council elections of the suc- ceeding year, notwithstanding that the period of his residence shall be under 1 year. The present chairman of the parish council will be empowered to preside at the commencement of the annual meeting, but his successor, as soon as he is appointed, will be entitled to take the chair, if he is present. The question has been raised whether the present chairman can preside at the meeting, if he is a candidate for re-election as chairman. The Local Government Board think that the proper course is for the chairman not to preside under such cir- cumstances. If there is a vice-chairman, and he is present, he SECT. I.] CONSTITUTION OF. 235 should preside, but otherwise the parish council may elect one of their number to preside. The person elected chairman of the parish council (subject to resignation or disqualification) continues in office until his successor is elected. 56 & 57 Vict. c. 73, s. 3 (7), (8). When the chairman of the parish council has been elected, the next business will be the appointment of the overseers. Committees. — A parish (or district) council may appoint com- mittees — consisting either wholly or partly of members of the council — to exercise any powers which the council consider proper ; but a committee must not hold office be3 r ond the next annual meeting of the council, and the acts of every such committee are to be submitted to the council for approval. Sect. 56 (1). If the parish council have any powers and duties which are to be exercised in a part only of the parish, or in relation to a recreation ground, building, or property held for the benefit of a part of the parish, and the part has a defined boundary, the parish council must, if required by a parish meeting held for that part, appoint annually to exercise such powers and duties a committee, consisting partly of members of the council and partly of other persons representing that part of the parish. Sect. 56 (2). The quorum, proceedings, and place of meeting of a committee, whether within or without the parish, and the area, if any, within which they are to exercise their authority, will be such as may be determined by regulations of the parish council. Sub- ject to such regulations, the quorum, proceedings, and place of meeting, whether within or without the parish, will be such as the committee direct, and the chairman at any meeting of the committee will have a second or casting vote. Ibid. Joint Committees. — A parish or district council may concur with any other parish or district council or councils in appointing out of their respective bodies a joint committee for any purpose in respect of which they are jointly interested, and in conferring, with or without conditions or restrictions, on any such committee any powers which the appointing council might exercise if the purposo related exclusively to their own parish or district. Sect. 57 (1). 236 TARISH COUNCILS. [CHAP. XIII. A council must not, however, delegate to any such committee any power to borrow money or make any rate. Sect. 57 (2). A joint committee thus appointed will not hold office beyond the expiration of 14 days after the next annual meeting of any of the councils who appointed it. Sect. 57 (3). The costs of a joint committee must be defrayed by the councils by whom it is appointed, in such proportions as they may agree upon, or as may be determined in case of difference by the county council. Sect. 57 (4). Where the parish council can, as above explained, be required to appoint a committee consisting partly of members of the council and partly of other persons, that requirement may also be made in the case of a joint committee, and must be duly complied with by the parish councils concerned at the time of the appointment of such committee. Sect. 57 (5). Joint Committee for Burial Acts. — Under sect. 53 of the Local Government Act, 1894, where the area under any burial board was not, on that Act coming into operation, comprised within one rural parish, the powers and duties of that board were transferred to the parish or district councils of the parishes or urban districts wholly or partly comprised in the area and became exerciseable by a joint committee to be appointed by those councils. "Where any such rural parish had not a parish council, the parish meeting was for these purposes substituted for the parish council. The Local Government (Joint Committees) Act, 1897 (60 & 61 Vict. c. 40), provides that where such committees have been ajipointed, any expenses incurred in carrying out the provisions of the Burial Acts are to be defrayed, any money borrowed for these purposes is to be borrowed, and any receipts arising from these purposes are to be divided by the councils (including any parish meeting) appointing the committee, in such proportion as they may agree upon. If they fail to agree, the proportion is to be determined by the county council, or by the Local Government Board if one of the appointing councils is the council of a county borough. The consent of the Local Government Board is required to the raising of any loan and that consent is to be conclusive as to the power of the authority to borrow, and no other consent under any other Act is to be required. If any difference arises as to the constitution of any such com- mittee, it may be determined by order of the Local Government Board. 60 & 61 Vict. c. 40. SECT. I.] CONSTITUTION OF. 237 In the case of a parish not having a parish council, the above references to a council include the parish meeting, and the parish meeting' has the same power of borrowing for the purposes of the Burial Acts as a parish council would have. Ibid. Section II. — Election of. The parish councillors shall be elected by the parochial electors of the parish (56 & 57 Vict c. 73, s. 3 (5) ) at a parish meeting, or at a poll consequent thereon (sect. 48 (1) ), according to Bules framed under the Local Government Act, 1894, by the Local Government Board. Sect. 3 (6). These Bides are set out in the Appendix. These Bules provide amongst other things for every candidate being nominated in writing by two parochial electors and no more (sect. 48 (2) (i) ), and for preventing an elector in the case of a parish divided into wards (see below) subscribing a nomination paper or voting for more than one ward. Sect. 48 (2) (iii). Each parochial elector has one vote for each of any number of persons not exceeding the number to be elected. Sect. 2 (2). Parish Wards. — On application by the parish council, or by not less than one-tenth of the parochial electors of a parish, a county council may order that the parish be divided for the pur- pose of electing parish councillors into wards to be called parish wards, with such boundaries and such number of councillors for each ward as may be provided by the order. This division into wards can only take place where the council consider it to be convenient, owing to the size or population of the parish, or to be desirable for any reason that certain parts of the parish should be separately represented on the council. Sect. 18 (1). Such an order may be revoked or varied by the county council on application as before mentioned. Ibid. (3). If a parish is divided into parish wards, there is to be a separate election of parish councillors for each ward. Ibid. (4). Rights of Candidate. — A candidate for the parish council is entitled to attend and speak at the parish meeting held for the election, but not to vote unless he is a parochial elector. Sched. I. Pt. I. (9). 238 PARISH COUNCILS. [CHAP. XIIT. The Poll for Election of Parish Councillors. — The poll is to he taken hy hallot according to Rules framed under the Local Government Act, 1894, by the Local Government Board. Per- manent Rules on this subject were issued by the Local Govern- ment Board on this subject on 1st January, 1898, and they are printed in the Appendix. A question arose as to whether the demand for a poll in con- nection with the election of parish councillors could be withdrawn unless all the persons who made the demand joined in withdrawing it, the Local Government Board has now made express provision on the subject. The Order as to such elections makes it necessary, if the demand for a poll is withdrawn, that the withdrawal shall be made either by all the parochial electors who made it, or by such number of them that the number remaining is less than 5, or than one-third of those present when the demand was made, whichever number is least. If all the electors who made the demand for a poll withdraw it, the assent of the chairman to the withdrawal will in no case be necessary ; but if some only of these electors withdraw the demand, and the number left is less than 5 or than one-third of those present when the demand was made, whichever number is least, the assent of the chairman to the withdrawal will bo required. (Report of Local Government Board, 1897-98.) It is especially provided that (under sect. 6 of the Ballot Act, 1872) the returning officer may use the schools and public rooms therein mentioned free of charge, not only for taking the poll, but also for hearing objections to nomination papers and for counting votes, and also these elections are especially exempted from the provisions as to' maximum expenses by the applica- tion to them of sect. 37 of the Municipal Elections Act, 1884. Sect. 48 (3). But the expenses of any election or poll are not to exceed the scale fixed by the county council, or in default by the Local Government Board. Ibid. (7). Provision is made for the borrowing of ballot boxes, &c, belonging to any public authority for any election, if not required for immediate use, by the return- ing officer for these elections either free of charge or at a reason- able charge. Ibid. (6). Mode of Questioning Result. — The mode of questioning tho validity of a parish council election is by petition under the pro- visions of the Municipal Corporations Act, 1882; or by an SECT. II.] ELECTION OF. 239 application to the county council under sect. 48, sub-sect. 5, and sect. 80 of the Local Government Act, 1894. A mandamus will not be granted. E. v. Miles, 64 L. J. Q. B. 420 ; 72 L. T. 502 ; 43 W. E. 445 ; 59 J. P. 407. Power of County Council to remove Difficulties at Elections. — If any difficulty arises with respect to any election of parish or district councillors or of guardians, or to the first meeting after any ordinary election of such councillors or guardians, or if, frora an election not being held, or being defective, or otherwise, the council or board has not been properly constituted, the county council may by order make any appointment or do anything which appears to them necessary or expedient for the proper holding of any such election or meeting, and properly consti- tuting the council or board, and may, if it appears to them neces- sary, direct the holding of an election or meeting, and fix the dates for any such election or meeting. 59 Vict. c. 1. Anj r such order may modify the provisions of the Local Government Act, 1894, and the enactments applied by, or rules framed under, that Act, so far as may appear to the county council necessary or expedient for carrying the order into effect. Ibid. A county council may delegate their powers under this section to a com- mittee. Ibid. Resignation of Office. — A parish councillor may resign his office by notice in writing to the chairman, and a chairman of a parish council (or parish meeting) by notice in writing to the council (or parish meeting). Sect. 47 (3). A retiring parish councillor or chairman of a parish council (or parish meeting) is re-eligible. Sect. 47 (2).' Where Office Vacant. — Whore a member of a parish council becomes disqualified for holding office, or vacates his seat for absence, the council shall forthwith declare the office to be vacant, and signify the same by notice signed by three members, and counter-signed by the clerk of the council, and notified as council directs. Sect. 46 (7). A casual vacancy among parish councillors, or in the office of chairman of the council, shall be filled by the parish council (and, where no parish council, a casual vacancy in office of chairman of parish meeting shall bo filled by the parish meeting). The person elected retiring from office when the vacating councillor or chairman would have 240 PARISH COUNCILS. [CHAP. XIII. retired. Sect. 47 (4). If at the annual election of parish coun- cillors any vacancies are not filled by election, those of the retiring councillors who are not re-elected are to continue to hold office (if willing). Those highest on the poll at the previous election are to continue, or if the numbers were equal, or there was no poll, the parish meeting is to determine who shall con- tinue, or if they do not determine, then the chairman of the parish council. Sect. 47 (1). If any parish council become unable to act by reason of want of councillors, the county council may order a new election, and may by order authorise any person to act temporarily in the place of the parish council and of the chairman thereof. Sect. 47 (5). Expenses of Election. — The expenses of any election are not to exceed the scale fixed by the county council. Sect. 48 (7). Term of Office. — The term of office of a parish councillor shall be one year. Councillors to go out of office and their places to be filled by newly elected councillors on the 1 5th day of April in each year. Sect. 3 (3), (4). Making Declaration. — Every parish councillor is to sign a declaration of acceptance of office at first meeting after his elec- tion (unless postponement permitted by the council at such first meeting), in presence of some member of the council, otherwise his office is void. Sched. I. Pt. II. (1). It would appear that the chairman of a parish council elected from outside the councillors is not required to make any declaration of acceptance of office. Section III. — Proceedings at Meetings of. Procedure. — No business shall be transacted unless one-third of the full number of members are present thereat, and in no case shall the quorum be less than 3. Sched. I. Pt. II. (7). The parish council may (if they think fit) appoint one of their number to be vice-chairman, and the vice-chairman shall, in the absence, or during the inability of the chairman, have the power and authority of the chairman. Ibid. (11). Every question at a meeting of the parish council is to be decided by a majority of votes of members present and voting on that question. In case of an equal division of votes the chairman of the meeting has a second or casting vote. Ibid. (9), (10). The names of members SECT. III.] PROCEEDINGS AT MEETINGS OF. 241 present at any meeting 1 , and their manner of voting on each division is to he recorded, so as to show whether each vote given was for or against the question. Ibid. (8). The proceedings of a parish council are not to he invalidated by any vacancy among their members, or by any defect in the election or qualification of any members thereof. Ibid. (12). Every cheque or other order for payment of money by a parish council is to be signed by two members of the council. Ibid. (14). Any notice required to be given to or served on the council, may be given to or served on the clerk of the parish council. Ibid. (15). The parish council may appear before any court or in any legal proceeding, by their clerk or by any officer or member, generally or specially authorised by resolution of the council. Ibid. (16). And their clerk or any member or officer shall, if so authorised, be at liberty to institute and carry on any proceeding which the parish council are authorised to institute and carry on. Ibid. Subject to the provisions of the Local Government Act, 1894, a parish council may make, vary, and revoke standing orders for the regulation of their proceedings and business, and of the pro- ceeding and business at parish meetings for a rural parish having a parish council. Sched. I. Pt. III. (5). Annual Meeting. — As to proceedings at the annual meeting of the parish council, see ante, p. 234. Procedure of Committees. — The quorum, proceedings, and place of meeting of a committee, and the area within which they are to exercise their authority, is to be determined by the regula- tions of the council or councils appointing the committee. Subject to such regulations, the committee shall determine these matters, and the chairman at any meeting of the committee shall have a casting vote. Sched. I. Pt. IV. Minutes. — Minutes of the proceedings of every parish council and parish meeting are to be kept in a book provided for that purpose. Sched. I. Pt. III. (1). Such minutes (including those of a committee of a parish or district council) signed at the same or the next ensuing meeting by a person describing himself as or appearing to be chairman, are to be received in evidence without further proof. Ibid. (2). Any instrument purporting to be executed under the hands (or hands and seals) of the chairman and of two other members of a parish council or of a parish meeting, shall 242 PARISH COUNCILS. [CHAP. XIII. be deemed to be duly so executed, until the contrary is proved. Sched. I. Pt. III. (4). Section IV. — Powers and Duties of. 1 . Transferred Poivers. Overseers. — The appointment of overseers and assistant over- seers of the poor is transferred to and vested in the parish council, who have to give written notice of such appointment in the prescribed form to the board of guardians. Sect. 5 (1). As to the appointment of overseers and their duties, see post, Chap. XX., p. 357. The legal interest in all property vested in the overseers or in the churchwardens and overseers of a rural parish (other than property connected with the affairs of the church or held for an ecclesiastical charity), vests in the parish council. Sect. 5 (2), (c). The powers, duties and liabilities of the overseers or of the churchwardens and overseers of the parish are transferred to the parish council with respect to the following matters : — (i) Appeals or objections by them in respect of the valuation list, or of the poor rate, or county rate, or basis of the county rate. (ii) The provision of parish books, and of a vestry room or parochial office, parish chest, a fire-engine, fire-escape, or matters relating thereto, (iii) The management of parish property (as before mentioned) and the holding or management of village greens, or of allotments, whether for recreation grounds or for gardens, or otherwise for the benefit of the inhabitants or any of them. Sect. 6 (l)(c). The power now vested in a parish council of providing a fire- engine includes a power to agree with the council of any neigh- bouring borough or district that any fire-engines with their appurtenances and firemen provided by such council shall be used for extinguishing fires in the parish. By making such an arrangement where practicable, a parish council will be able for the future to secure the services of a fire-engine without them- selves providing one under the enactments above referred to. The details of the arrangement and the amount to be paid by a parish council for the use of the fire -engine and firenien will be SECT. IV.] POWERS AND DUTIES OF. 243 matters to be settled by agreement between the councils concerned. 61 & 62 Vict. c. 38. Churchwardens. — The powers, duties, and liabilities of the churchwardens of the parish are transferred to the parish council, except so far as they relate to affairs of the church or to charities, or are powers and duties of overseers, but inclusive of their obli- gations of maintaining closed churchyards under the Burial Act, 1855 (ante, p. 42). 56 & 57 Vict. c. 73, s. 6 (1) (b). Vestry. — The powers, duties, and liabilities of the vestry of the parish are transferred to the parish council, except where they relate to the affairs of the church or to ecclesiastical charities, or where they are transferred by the Local Government Act of 1894 to any other authority. Sect. 6 (1) (a). Other Authorities. — The powers exerciseable (with the approval of the Local Government Board) by the board of guardians for the poor law union comprising the parish, in respect of the sale, exchange, or letting of any parish property, are transferred to the parish council. Ibid. (d). The power of inhabitant householders under the Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70), to complain as to unhealthy dwellings or obstructive buildings, is conferred on the parish council, but without prejudice to the powers of such householders. Sect. 6 (2). The power conferred on parliamentary electors by the Allotments Acts of 1887 and 1890 (50 & 51 Vict. c. 48 ; 53 & 54 Vict. c. 65), to make representations with respect to allotments, and to apply for the election of allotment managers, is conferred on the parish council, but without prejudice to the powers of those electors. Ibid. (3). The parish council takes the place of any wardens, committee, or managers, established under any Act for the purpose of allotments. Ibid. (4). As to Allotments, see post, Chap. XXL, p. 395. The parish council is the authority for the execution of any of the adoptive Acts (see powers and duties of parish meetings, ante, p. 227) adopted by the parish meeting. Sect. 7(7). 2. Additional Poivers. Buildings and Land. — The parish council is authorised to pro- vide or acquire buildings for public offices, and for meetings and for any purposes connected with parish business or with the powers k2 244 PARISH COUNCILS. [CHAP. XIIT. or duties of the parish council or parish meeting. Sect. 8 (1) (a). Also to provide or acquire land for such buildings, and for a recreation ground, and for public walks. Ibid. (1) (b). This sub-section confers on a parish council the right, either to hire or to purchase land for the purpose of a recreation ground. If they are unable to acquire suitable land by agreement and on reasonable terms, they may rejiresent the case to the county council, and the county council shall inquire into the representation. Sect. 9 (2). The following is the procedure of the county council (in this case and under the Allotments Acts, 1887 and 1890). On being satisfied as to the facts represented by the parish council, they cause a public inquiry to be held (after prescribed notice to those interested), they having the right to attend at the inquiry, and to suppport or oppose the taking of the land. Ibid (3). After the completion of the inquiry and considering all objec- tions made, the county council may make an order putting in force the provisions of the Lands Clauses Act with respect to the taking of land otherwise than by agreement. Ibid. (4). In the event of the county council refusing to make such an order, the parish council may petition the Local Government Board, and that Board may, after local inquiry, make the order. Ibid. (5). A copy of such order shall be served as prescribed, together with a statement that the order will become final and have the effect of an Act of Parliament unless within the prescribed period, a memorial of some person interested is presented to the Local Government Board. Ibid. (C). The order is to be deposited with the Local Government Board who, after due inquiry as to compliance with regulations, shall confirm the order at the expira- tion of the prescribed period, if no memorial has been presented. If a memorial has been presented, a local inquiry shall be held before the order is confirmed (with or without amendment) or disallowed, such confirmation being final. Ibid. (7). The order is then carried into effect by the county council. Ibid. (9). In determining the amount of disputed compensation (which is to be dealt with in the manner provided by sect. 3 of the Allot- ments Acts, 1887) the arbitrator is not to make any additional allowance in respect of the purchase being compulsory. Ibid. (10). At the inquiry or arbitration, the parties interested are to be heard by themselves or their agents, and witnesses are to be heard, but not counsel or expert witnesses (unless otherwise pre- SECT. IV.] POWERS AND DUTIES OF. 245 scribed). Sect. 9 (11). The expenses of the county council inquiry are to be paid by the parish council, or, in the case of a parish which has not a parish council, by the parish meeting'. Sect. 72 (4). When the land is acquired, it is to be assured to the parish council. Sect. 9 (14). The parish council may not acquire, otherwise than by agreement, any land for the purpose of any supply of water, or of any right of way. Ibid. (15). A parish council may let, or, with the consent of the parish meeting, sell or exchange, any land or building vested in the council, but in the case of property which has been acquired at the expense of any rate (or was available in aid of any rate in 1894), the consent of the Local Government Board is necessary before exercising their power (unless it is only that of letting for less than a year), and the approval required under the Charitable Trusts Acts, 1853 to 1891, is always necessaiy, except in the case of letting for allot- ments land vested in the parish council. Sect. 8 (2). Notice of any application to the Board of Agricidture in relation to a common, is to be served upon the council of every parish in which any part of that common is situate. Ibid. (4). The parish council may apply to the Board of Agriculture under sect. 9 of the Commons Act, 1876. Ibid. (1) (c). With regard to recreation grounds, village greens, open spaces, or public walks, which are under the control of the parish council, or to the expense of which they have contributed, a parish council has the powers of an urban authority under sect. 1 64 of the Public Health Act, 1875, or sect. 44 of the Public Health Acts Amendment Act, 1890. Ibid. (d). Under sect. 8 (1) (d), of the Local Government Act, 1894, parish councils may make byelaws for the regulation of village greens and other open sjoaces not being recreation grounds or public walks provided or acquired under sect. 8(1) (b) of the Act. In dealing with the proposed byelaws, the Local Government Board deem it necessary to make enquiry as to the facts upon which the parish council rely in support of their claim to regard the village green or other open space as one which, within the meaning of the enactment in sect. 8 (1) (d), was for the time being under their control, or to the expense of which they had contributed. A parish council has the power to accept and hold any gifts of property, real or personal, for the benefit of the inhabitants of the parish, or any part thereof. Ibid. (h). 246 PARISH COUNCILS. [CHAP. XIII. A parish council may execute any works (including works of maintenance or improvement) incidental to or consequential on the exercise of any of the foregoing powers, or in relation to any parish property (not being property relating to the affairs of the church, or held for an ecclesiastical charity). Sect. 8 (i). And a parish council may make contributions towards the expense of doing any of the things above mentioned, or com- bine with any other parish council in contributing towards such expenses. Ibid. (k). Water. — The parish council may utilize any well, spring, or stream within their parish, and provide facilities for obtaining water therefrom, but so as not to interfere with the rights of any corporation or person. Ibid. (e). They may also deal with any pond, pool, open ditch, drain, or place containing, or used for the collection of, any drainage, filth, stagnant water, or matter likely to be prejudicial to health, by draining, cleansing, covering it, or otherwise preventing it from being prejudicial to health, but so as not to interfere with any private right, or the sewage or drainage works of any local authority ; Ibid, (f ) ; but the obligation of a district council witli respect to the supply of water or the execution of sanitary works remains in force. Ibid. (3). Footpaths and Roads. — A parish council may acquire by agree- ment any right of way, whether within their parish or an adjoining parish, the acquisition of which is beneficial to the inhabitants of the parish or any part thereof. Sect. 8 (g). The consent of the parish council and of the district council is required for the stopping (in whole or in part) or diversion of a public right of way within a rural parish ; and the consent of the parish council is required for a declaration that a highway in a rural parish is unnecessary for public use, and not repairable at the public expense, and the parish councd must give public notice of a resolution to give any such consent, and the resolu- tion is not to operate unless confirmed by the parish council at a meeting held not less than 2 months after the public notice is given ; nor if a parish meeting held before the confirmation resolve that the consent ought not to be given. Sect. 13 (1). A parish council may (subject to restrictions on expenditure, see post, p. 252) undertake the repair or maintenance of all or any of the public footpaths within their parish, not being foot- paths at the side of a public road ; but the exercise of this SECT, IV.] POWERS AND DUTIES OF. 247 power does not relieve any other authority or person from their liability with respect to repair or maintenance. Ibid. (2). The Local Government Board are of opinion that, where an existing stile or gate on a public footpath in a rural parish having a parish council is in so defective a state as to make it necessary for the public convenience in the use of the path that such stile or gate should be repaired or removed, the parish council can, under sub-sect. 2 of sect. 13 of the Local Govern- ment Act, 1894, effect such repair or removal, and substitute, without the consent of the owner of the soil, a stile or gate giving equal facilities to the public using the path, and that a parish council may substitute gates for existing stiles if they obtain the consent of the owner of the soil to the consequent enlargement of the rights of the public. The parish council woidd have no right to remove or substantially alter an existing stile, which was not in so defective a state, except with the con- sent of the owner of the land where it lies. Allotments. — In addition to putting into operation the Allot- ments Acts, 1887 and 1890 (see post, Chap. XXL, and ante, p. 243), parish councils are empowered to hire land for allot- ments, and, if they are unable to hire suitable land for the pur- pose by agreement, and on reasonable terms, they are enabled to represent the case to the county council, who may make an order authorizing the compulsory hiring for a period of not less than 14 nor more than 35 years of such land in or near the parish as is specified in the order. 56 & 57 Vict. 73, s. 10. Parish councils are empowered by sects. 9 and 10 of the Act to make regulations as to allotments, where land is hired by the council for the purpose, or is purchased by the county council and assured to the parish council under sub-sect. 14 of the former section. The Local Government Board have framed a model series of regulations. The Local Government Board has issued a return showing the proceedings taken by various authorities for the acquisition of land for allotments, &c, between the coming into operation of the Local Government Act, 1894, and the 24th June, 1897. The return showed that land had been acquired for allotments during the specified period by 1,009 parish councils and 4 parish meetings. In almost all cases the acquisition was by hiring by agreement, the powers of compulsory hiring being duly exer- 248 PARISH COUNCILS. [cHAP. XIII. cisod in 6 cases. The total amount of land so acquired for purposes of allotments was 12,986 acres, and it was let to 24,436 tenants. Public Property and Charities. — There is now vested in the parish council {ante, p. 228) — 1. The general powers as to non-ecclesiastical charities. 56 & 57 Vict. c. 73, s. 6 (1) (a). 2. The legal interest in non-ecclesiastical charities, vested either in overseers or in them jointly with the church- wardens. Ibid. s. 5 (2) (a). 3. The powers of overseers and churchwardens as to the hold- ing or management of parish non-ecclesiastical property, such as allotments, village greens, &c. Ibid. s. 6 (1) (c). Such powers in the case of a parish without a council being transferred to the parish meetings, and such legal interest being vested in the chairman and overseers. Ibid. s. 19 (4), (7). Sect, 14 of the Parish Councils Act contains some important provisions as to the powers of parish councils in relation to pro- perty held by trustees for the benefit of the inhabitants of, or for any public purpose connected with the parish, and in relation to charities. The section is too long to insert here : it will be found in the Appendix. It will be observed that sub-sect. 1 of this section is permissive only. The scheme of the section is that the trustees of a parish charity may transfer the property to the parish council, and that "where the governing body of a parochial charity other than an ecclesiastical charity does not include any persons elected by the ratepayers, or parochial electors, or inhabitants of the parish, or appointed by the parish council, the parish council may appoint additional members of that governing body not exceeding the number allowed by the Charity Commissioners." A later section (66) enacts that " nothing in this Act shall affect the trusteeship, management, or control of any elementary school." Charities founded less than 40 years ago — unless the overseers are now the trustees — are also exempt from the pro- visions of the Act. Ecclesiastical charities are outside the purview of the Act. The definition of these includes endowments "for any spiritual purpose which is a legal purpose ; or for the benefit of any SECT. IV.] POWERS AND DUTIES OF. 249 spiritual person or ecclesiastical officer as such ; or for use, if a building, as a church, chapel, mission room, or Sunday school, or otherwise, by any particular church or denomination ; or for the maintenance, repair, or improvement of any such building as aforesaid, or for the maintenance of Divine service therein ; or otherwise for the benefit of any particular Church or denomi- tion, or of any members thereof as such." Sect. 75, sub-sect. (2). The expression "ecclesiastical charities," also includes buildings which, in the opinion of the Charity Commissioners, have been erected within the last 40 years, mainly at the cost of members of a particular church or denomination. The words "or otherwise for the benefit of any particular church ... or any members thereof as such," are not to be construed as limited to religious "benefit" to the exclusion of mere temporal benefit. There may be a charity in the legal sense for purposes which are both eleemosynary and ecclesiastical or religious. In re Perry Almshouses, (1899) 1 Ch. 21 ; 68 L. J. Ch. 66 ; 79 L. T. 366. Two recent cases in the Court of Appeal have helped to decide what are or are not " ecclesiastical charities" within the meaning of sects. 14 and 75 of the Local Government Act, 1894. In the first of these cases the founder of an eleemosynary charity by her deed of endowment, declared that the objects of the charity should be selected by the trustees thereof (one of whom was to be the rector of the parish) from amongst poor men and women resident in a certain parish who should have (1) regularly attended divine service in the church of the parish for a fixed period ; (2) been partakers of the Holy Communion ; (3) lived a godby, righteous, and sober life to the glory of God's holy name ; and she also declared that the lay trustees should always be members of the Church of England. The Court held that the charity was one for the benefit of members of the Church of England "as such," i.e., in their character of members of that Church, and to the exclusion of non-members thereof, and was accordingly an ecclesiastical charity within sect. 75 of the Local Government Act, 1894 ; and therefore that the parish council had no power, under sect. 14, sub-sect. 1, to appoint trustees of it. In re Perry's Almhouses, supra. In the second case a testatrix by her will (made in 1799) devised a rentcharge to be paid to the churchwardens for the 250 PARISH COUNCILS. [CHAP. XIII. time being of the parish of B. H. on a certain day in every year for ever, and to he laid out in the purchase of garments to he given to " six old and poor widows of the said parish whom they shall judge the properest objects to receive the same with pre- ference to those who, not being disabled by infirmity or sickness, are most constant in their attendance on the public service of the church." The Court held that the charity thus created was not an ecclesiastical one within the meaning of the Local Government Act, 1894; and further that sect. 14, sub-sect. 2, of that Act applied to the case of a non-ecclesiastical charity, the only trustees of which were churchwardens, and acccordingly that the parish council had power to appoint trustees of such a charity in place of the churchwardens. In re Ross Char if ij, (1899) 1 Ch. 21 ; 68 L. J. Ch. 66; 79 L. T. 366. Extra Postal Facilities. — The parish council of a parish, or where there is no parish council the parish meeting, have like powers as are given to a rural sanitary authority under sect. 8 of Post Office Act, 1891, to guarantee the Postmaster-General against loss sustained by the provision of postal or other facili- ties as named in that section ; and any expenses incurred under such undertaking are to be deemed to be expenses of the council or of the meeting (as the case may be) within the Local Govern- ment Act, 1 894. 58 & 59 Vict. c. 18. The Post Office (Guarantee) Act, 1898, extend the provisions of the Post Office Acts of 1891 and 1895, so as to make the powers given by them to rural district councils and parish councils exerciseable in respect of the provision of facilities outside the boundary of any contributory place or rural district or of the parish, if the district council or parish council think that the exercise of these powers will be for the benefit of the contributory place or parish proposed to be charged with any expenses that may be thus incurred. In cases, however, where a rural district council propose to exercise the powers conferred by the Act, the parish council, or, if there is no parish council, the parish meeting, of any parish wholly or partly situate in any contributory place proposed to be charged with the expenses incurred, must have consented to the exercise of such powers. 61 & 62 Vict. c. 18. Burial Acts. — As to expense incurred in carrying out the Burial Acts, see ante, p. 236. SECT. IV.] POWERS AND DUTIES OF. 251 3. Generally. Delegated Powers. — As to rural district council delegating certain powers to a parish council, see sect. 15 of Local Govern- ment Act, 1894, ])ost, Appendix. Complaints to County Councils. — As to complaints by parish councils of default of district council in providing parish with proper sewerage or water, or in repairing or maintaining high- ways, see sect. 16 of Local Government Act, 1894, post, Appendix. Parish Documents. — Those relating wholly or partly to affairs of the church or to ecclesiastical charities, to remain as at present provided. All others are either to remain in existing custody, or where the parish council directs. Reasonable access to all parish documents is to be given both to the incumbent and churchwardens, and to the parish council. Differences as to custody or access are to be settled by the county council. Sect. 17 (8). Questions have arisen as to the custody of the tithe-maps under the Tithe Commutation Act, 1886, such maps are to be kept " with the public boots, writings, and papers of the parish," and, therefore, they must either remain in their existing custody or be deposited in such custody as the parish council may direct. The county council is to enquire from time to time into the custody of parish documents, and may make binding orders on the parish council or meeting for their safe preservation. Ibid. (9). Every parochial elector of a rural parish may, at all reasonable times, without payment, inspect and take copies of and extracts from all books, accounts, and documents, belonging to, or under the control of the parish council of the parish or parish meeting. Sect. 58 (4). Expenses. — The ordinary expenses of the parish council are to be paid out of the poor rate. The parish council must also pay out of the poor rate the expenses of any parish meeting in the parish, including the expenses of any poll. 56 & 57 Vict. c. 73, s. 11. For the purpose of obtaining payment of their expenses, the council hare the same powers as a board of guardians have for the purpose of obtaining contributions to their common fund. 252 PARISH COUNCILS. [CHAP. XIII. They must therefore issue precepts to the overseers for the sums they require, directing the overseers to pay a specified sum or sums to the treasurer of the parish council on a particular day or days. Under certain circumstances the parish council may be the authority for executing some of the Acts known as " adoptive Acts" in the parish. See sect. 7. Where this is the case a separate precept should he issued for any sum required in respect of expenditure under any of these Acts. The precept shoidd mention the Act for executing which the money is required, and should state that the sum is to be raised in the manner provided by that Act. The parish council cannot, without the consent of the parish meeting, incur expenses or liabilities which would involve a rate exceeding 3d. in the £ for any year ending on March 31, or which would involve a loan. Nor can they, without the approval of the county council, incur any expense or liability winch will involve a loan. 56 & 57 Vict. c. 73, s. 12. Moreover, the sum raised in any year ending on March 31 by the parish council for their expenses (other than expenses under the adoptive Acts) must not exceed a sum equal to a rate of 6d. in the £ on the rateable value of the parish at the commencement of the year. For this purpose the expression "expenses" includes any annual charge, whether of principal or interest, in respect of any loan. Borrowing. — The parish council may borrow for purchasing of land, or building of buildings, which they are authorised to purchase or build — and their powers of purchase are con- siderable — for any purpose for which the parish .councils are authorised to borrow under the Acts, the working of which they may take over, and for any permanent works they are autho- rised to construct. Ibid. It cannot borrow without the consent of the county council and the Local Government Board, and the total debt must not exceed one-half of the assessable value of the parish. Ibid. A county council may lend to a parish council any money which the parish council are authorised to borrow, and may, if necessary, without the sanction of the Local Government Board and irrespectively of any limit of borrowing, raise the money by loan subject to the like conditions and in the like manner as any other loan for the execution of their duties, and subject to any further conditions which the Local Government Board may by general or special order impose. Ibid. SECT. IV.] POWERS AND DUTIES OF. 253 Accounts. — The accounts of the receipts and payments of parish councils, and of parish meetings in case of parishes not having parish councils, and their committees and officers, must be made up yearly to the 31st day of March (or, where required to he audited half-yearly, to the 30th day of September, and the 31st day of March), in the form prescribed by the Local Govern- ment Board. Sect. 58 (1). The Local Government Board have issued an order prescribing forms for this purpose. Every parochial elector of the parish may, at all reasonable times, without payment, inspect and take copies of and extracts from all accounts of the parish council. Ante, p. 251. Such accounts are to be audited by a district auditor, and the enactments relating to audit by district auditors of accounts of urban sanitary authorities are to apply. Sect. 58 (2). The Local Government Board may with respect to such audits make rides modifying the enactments as to publication of notice of the audit and of the abstract of accounts and the report of the auditor. Ibid. (3). Section V. — Parish Officers. Clerk of the Council. — A parish council may appoint one of their number to act as clerk of the council, but he cannot be paid any remuneration (56 & 57 Vict. c. 73, s. 17 (1) ), other- wise, the assistant overseer (or, if more than one, that one appointed by the council) shall be the clerk of the parish council, and these duties shall be considered in determining his salary. Ibid. (2). If there is no assistant overseer, the council may appoint a collector of poor rates, or some other fit person, to be their clerk, with such remuneration as they think fit. Ibid. (3). When a parish council act as a parochial committee by delega- tion from the district council, they shall have the services of the clerk of the district council, unless the district council otherwise direct. Ibid. (5). Depositing Documents.— With regard to documents required by statute or by standing orders of Parliament to be deposited with the parish clerk, the clerk of the parish council, or, if there is none, the chairman takes the place of the parish clerk. Ibid. (7). 254 PARISH COUNCILS. [CHAP. XIII. Treasurer. — The parish council may appoint one of their own number, or some other person to act as treasurer without re- muneration. The treasurer must give such security as may be required by regulations of the county council. Sect. 17 (7). The Local Government Board think that in all cases the parish council should appoint a treasurer. Every cheque or other order for payment of money by the parish council must be signed by two members of the council. CHAPTEE XIV. RURAL DISTRICT COUNCILS. PAGE Section I. Constitution of 255 II. Election of 258 III. Powers and Duties of 260 District councils differ from the parish meeting and the parish council, described in the two previous chapters, in that they are not except in name, and in some minor details, new creations under the Local Government Act, 1894. The various bodies which that Act converted into district councils, already existed as urban and rural sanitary authorities. Urban district councils (which are the old local boards of health under a new name, with a new form of election, and extended powers) do not come within the scope of a book on Parish Law. The substitution of the rural district council for the rural sanitary authority is accompanied by important changes in the board of guardians. Prior to the Act of 1894, the rural sanitary authority was constituted from the board of guardians. The changes made by that Act relative to the election of guardians are vital. Ex officio guardians and plurality of votes are abolished. The parishioner who is elected to serve on the rural district council, will, by virtue of his office of councillor, sit also as guardian for his parish, and no guardian, as such, will be elected for that parish. Section I. — Constitution of. For every rural sanitary district there is a rural district council, whose district is called a rural district. 56 & 57 Vict. c. 73, s. 21. In the Local Government Act and every other Act of Parliament, unless the context otherwise requires, the expression "district 256 RURAL DISTRICT COUNCILS. [cHAP. XIV. council" includes the council of every rural district, and the expression "county district" includes every rural district. 56 & 57 Vict, c. 73, s. 21. The rural district council is a body corporate by the name of " The Rural District Council of ."If there is any difficulty as to the name of the district, the county council may direct what the name of the district is to be for this purpose. The council have perpetual succession and a common seal, and may hold land for the purposes of their powers and duties without licence in mortmain. The rural district council is an entirely distinct body from the board of guardians of the union ; they have a separate corporate existence and a separate common seal. There are no ex officio members of the rural district council, and the statutes, orders, and legal provisions applicable to boards of guardians which formerly applied to the rural sanitary authority do not apply to the rural district council. The rural district council consists of a chairman and of the persons who have been elected as rural district councillors by the parishes, united parishes, and wards of parishes in the district. Sect. 24 (1). The provisions of the Act with respect to the qualification, election, and tenure of office, and retirement of guardians, and to the qualification of the chairman of the board of guardians, are by sect. 24 (4) made apphcable to district councillors and to the chairman of the rural district council. Any person qualified to be a guardian of the union comprising the district is qualified to be a district councillor for the district. Hence women, whether married or single, may be members of the rural district council, as sect. 20 (2) provides that no person shall be disqualified by sex or marriage for being a guardian. Formerly, the guardians elected for rural parishes were members of the rural sanitary authority. Now, the converse is practically the case, as sect. 24 (3) provides that the district councillors for any parish or other area in the rural district shall be the repre- sentatives of that parish or area on the board of guardians, and when acting in that capacity shall be deemed to be guardians of the poor, and guardians, as such, shall not be elected for that parish or area. Committees and Joint Committees. — The rural district council may, under sect, 56 of the Act of 1894, appoint committees con- SECT. I.] CONSTITUTION OF. 257 sisting either wholly or partly of members of the council, for the exercise of any powers which, in the opinion of the council, can he properly exercised by committees, but a committee must not hold office beyond the next annual meeting of the council, and the acts of every committee must be submitted to the council for their approval. If, however, a committee is appointed by the rural district council for any of the purposes of the Public Health Acts or Highway Acts, the council may authorise the committee to institute any proceeding or do any act which the council might have instituted or done for that purpose other than the raising of any loan or the making of any rate or contract. The quorum, proceedings, and place of meeting of a committee, whether within or without the district, and the area, if any, within which they are to exercise their authority, are such as may be determined by regulations of the rural district council. Subject to such regidations, the quorum, proceedings, and place of meeting, whether within or without the district is such as the committee direct, and the chairman at any meeting of the committee has a second or casting vote. See ante, p. 235. Parochial Committee. — Sect. 201 of the Public Health Act, 1875, under which a rural sanitary authority might delegate for their year of office all their powers to a committee consisting wholly of their own members, is repealed by the Local Govern- ment Act, 1894. The power of appointing parochial committees, conferred by sect. 202 of the Act of 1875, is transferred to the rural district council ; but if the district council appoint a parochial committee consisting partly of members of the district council and partly of other persons, those other persons must, where there is a parish council, be, or be selected from, the members of the parish council. Moreover, the district council may delegate to a parish council any power which may be delegated to a parochial committee under the Pubhc Health Acts. See supra. The Local Government Act, 1894, prohibits a rural district council or a parish council from holding a meeting on licensed premises, except in cases where no other suitable room is avail- able, either free of charge or at a reasonable cost ; but it is doubtful whether the prohibition extends to a parochial com- mittee appointed by a district council where the parish council are not themselves the committee. The right conferred by the Act on the parochial electors to use tho public elementary school s. s 258 RURAL DISTRICT COUNCILS. [cHAP. XIV. for certain meetings does not appear to extend to the meetings of such a committee. The rural district council are, however, em- powered to determine the place of meeting of the committee. Chairman of Council to be Justice. — The chairman of a district council, unless a woman or personally disqualified by any Act, is by virtue of his office a justice of the peace for the county in which the district is situate, but before acting as such justice he must take the usual oaths required by law other than the oath respecting the qualification by estate. 56 & 57 Vict. c. 73, s. 22. If such chairman is re-elected to that office on the expiration or other determination of his term of office, he may continue to act as a justice of the peace without again taking the above-men- tioned oaths. 59 & 60 Vict. c. 22. Place of Meeting. — See sect. 61 of Local Government Act, 1894, post, Appendix, and ante, p. 223. Section II. — Election of. "The provisions of the Local Government Act, 1894, with respect to the qualification, election, and term of office and retire- ment of guardians, and to the qualification of the chairman of the board of guardians, shall apply to district councillors and to the chairman of the district council of a rural district, and any person qualified to be a guardian for a union comprising the district shall be qualified to be a district councillor for the district." 56 & 57 Vict. c. 73, s. 24. Such provisions with respect to guardians are contained in sect. 20 of the Act, and are as follows : — " (2.) A person shall not be qualified to be elected or to be a guardian for a poor law union unless he is a parochial elector of some parish within the union, or has during the whole of the twelve months preceding the election resided in the union, or in the case of a guardian for a parish wholly or partly situate within the area of a borough, whether a county borough or not, is qualified to be elected a councillor for that borough, and no person shall be disqualified by sex or marriage for being elected or being a guardian. So much of any enactment, whether in a public, general or local and personal Act, as relates to the quali- fication of a guardian shall be repealed : SECT. II.] ELECTION OF. 2-59 " (3.) The parochial electors of a parish shall be the electors of the guardians for the parish, and, if the parish is divided into wards for the election of guardians, the electors of the guardians for each ward shall be such of the parochial electors as are regis- tered in respect of qualifications within the ward : " (4.) Each elector may give one vote and no more for each of any number of persons not exceeding the number to be elected : " (5.) The election shall, subject to the provisions of this Act, be conducted according to rules framed under this Act by the Local Government Board." The Local Government Board have issued permanent rules generally applicable to such an election. These rules will be found in the Appendix under the title of "Rural District Coun- cillor's Election Order, 1898." It has been held that a nomination paper of a candidate for election as a rural district councillor is not invalid by reason of its having been signed by the proposer or seconder before the name of the candidate was filled in. Cox v. Davies, (1898) 2 Q. B. 202 ; 67 L. J. Q. B. 925. The decision of the returning officer that a nomination paper is valid is final under Rule 7 (2) of the Rural District Councillor's Election Order, 1898. As to who is a "parochial elector," see ante, p. 224. As to disqualification for membership of rural district council, see ante, p. 232. The Local Government (Elections) Act, 1896, gives power to county councils to remove difficulties in connection with the election of district councillors or of guardians, ante, p. 239. Term of Office and Retirement. — The provisions of the Act of 1894 regulating the term of office and mode of retirement of the guardians under ordinary circumstances will be found in sect. 20 (6) and sect. 60, post, Appendix, and need not be epitomized here. They will apply to the rural district councillors. Resignation of Office. — It is provided by sect. 48 (4) that rural district councillors shall be in the same position with respect to resignation as guardians. Hence, if a rural district councillor wishes to resign his office, he shoidd tender his resignation to the Local Government Board, and state the cause of his desiring to resign. If the Board deem the cause reasonable they may accept the resignation. s2 260 RURAL DISTRICT COUNCILS. [CHAP. XIV. Section III. — Powers and Duties of. As to Sanitary and Highway Matters. — It is not proposed to set out in detail here the powers which the rural district council possess under the Local Government Act, 1894. They are stated in sects. 25, 26 and 27 of that Act, which will he found in the Appendix. It may, however, he pointed out that the district council have all the powers, duties, and liahilities of the rural sanitary authority in the district, and of any highway authority in the district. The rural district council are the successors of the rural sanitary authority and highway authority, and also have, as respects highways, all the powers, duties, and liabilities of an urban sanitary authority under sects. 144 to 148 of the Public Health Act, 1875. The county council were, however, empowered to postpone within the county, or any part of it, the operation of the section so far as it related to highways, for a term not exceed- ing three years from the appointed day, or such further period as the Board might, on the application of the county council, allow. This power was exercised by county councils in a large number of cases. As to Rights of Way, Roadside Wastes, and Rights of Common. — The Local Government Board have issued the following memo- randum as to the powers and duties of rural district councils under the Local Government Act, 1894, with respect to rights of way, roadside wastes, and commons : — 1. Rights of Way. " It is the duty of a district council, whether they be the high- way authority or not, under sect. 26 (1) of the Local Government Act, 1894, to protect all public rights of way and to prevent, as far as possible, the stopping or obstruction of any such right of way, whether within their district, or in an adjoining district in the county or counties in which the district is situate, where the stoppage or obstruction thereof would, in their opinion, be pre- judicial to the interests of their district ; and under sub-sect. 3 of the same section they may, for the purpose of carrying into effect the section, institute or defend any legal proceedings and generally take such steps as they deem expedient. "This section applies not merely to future obstructions or SECT. III.] POWERS AND DUTIES OF. 261 stoppages of rights of "way, but to any past obstructions or stoppages which, have been effected in recent times ; and where there is clear evidence that the public have in past times enjoyed such rights, the district council will be entitled to take proceed- ings for the purpose of recovering them, or putting an end to the obstructions. It is not necessary, however, to point out that it will not be expedient to rake up cases which have long been allowed to pass unquestioned, for although there is no limit of time to the enforcement of public rights, there may be difficulty of proof in respect of rights which in fact have not been exer- cised for a length of time. "The Act by sect. 26 (4) provides that where a parish council have represented to the district council that any public right of way within the district, or an adjoining district in the county or counties in which the district is situate, has been unlawfully stopped or obstructed, it shall be the duty of the district council, unless satisfied that the allegations of such representation are incorrect, to take proper proceedings accordingly. "If the district council refuse or fail to take proceedings in consequence of such representation, the parish council may peti- tion the county council of the county within which the way is situate, who are then empowered to take such proceedings as the district council might have done. In view of this provision it will be necessary for the district council carefully to enquire into any such case of obstruction or stoppage which is brought before them by a parish council, and to take action upon it if it shoidd be clear to them that the right of the public has been infringed. It may, however, be pointed out that the duties of a district council are not limited to cases where they are set in motion by a parish council, but that, in any case where it is brought to their notice from any quarter that a footpath has been obstructed or stopped, it will be their duty to take steps to vindicate the right of the public, if fully satisfied of the validity of the claim. "These observations apply equally to bridleways as to foot- paths. It not infrequently happens that the right of the public to use a way for horses is questioned, while that of its use for foot passengers is admit led. In cases of bridleways it will be the duty of the district council to assert the right of the public to use the way for horses. "With respect to the proceedings to be adopted by the district 262 RURAL DISTRICT COUNCILS. [CHAP. XIV. council where they are clearly of opinion that a footway or bridleway has been obstructed or stopped, there appear to be three courses open to them : — " (1) To direct the removal of the obstruction. " (2) To indict the person who has caused the obstruction for a misdemeanour. " (3) To proceed by way of action in the name of the Attorney- General, for which Ms Jiat must be obtained in the usual way. "The last of these courses will, in many cases, be found preferable to that of indictment. As a general rule, however, where the public right appears to be qiute clear, it will be better for the district council to direct their surveyor to remove the obstruction to a footpath, leaving it to the person who has placed it there, if he wishes to raise a question of law, to do so by bringing an action of trespass. This course should be adopted only after due notice to the parties concerned. "With respect to the legal diversion or stoppage of footpaths, it is to be observed that under the Local Government Act, 1894, sect. 13, sub-sect. (1), the consent of both the parish council (or of the parish meeting where there is no parish council) and the district council is necessary before justices in quarter sessions can give their sanction to such a course. The only ground on which a footpath can bo wholly stopped without the substitution of another is that it is unnecessary, and this question will be for the consideration of both the parish and the district council. Where it is proposed to divert a footpath the question for con- sideration will be whether the proposed footpath is more com- modious for the public than the existing footway." See Highway Act, 1835, 5 & 6 Will. 4, c. 50, ss. 84, 92. " The district council may refuse their consent to the stoppage or diversion of a footpath even after the parish council has given consent. "The owner of the land over which a public footpath lies has the right to maintain existing stiles or swing gates across it, provided that they are of a reasonable kind, and are such that the public are not debarred from the use of the footway. But it will be the duty of the district council to see that the use by the public of a footpath is not hindered by the erection of stiles or gates which are substantially less convenient than have existed in the past. SECT. III.] POWERS AND DUTIES OF. 2Go 2. Roadside Wastes. "Where on either side of a public road strips of land exist, open to the public, between the metalled road and the fences beyond, prima facie, the public right of way extends, unless there be evidence to the contrary, over such strips or roadside wastes, and they cannot lawfully be enclosed by the owner of the adjoining land, or by the lord of the manor, or by any other person. Such strips may be of varying width, and the adjoining owner has no right to straighten the line of his fences by taking in any part of the roadside waste. It is not uncommonly believed that there is a right to enclose up to 15 feet from the centre of the road. This is not so ; the public, unless it can be proved to the contrary, have the right to the roadside waste beyond this limit, and between the fences and the road, and, moreover, the district council have no power to authorise the enclosure of any portion of such roadside waste. The fact that trees or shrubs have been allowed to grow up on these roadside wastes, so as to interfere with their use by the public, does not necessarily destroy such right or justify their enclosure. "The Local Government Act, 1894, by sect. 26 (1) and (3), makes it obligatory on the part of district councils to enforce the law for the protection of such roadside wastes. ' It shall be the duty,' the Act says, ' of every district council to prevent any unlawful encroachment on any roadside waste within their dis- trict,' and they may for the purpose of performing this duty 1 institute or defend any legal proceedings, and generally take such steps as they deem expedient.' As in the case of footpaths, a parish council may make representation on this subject to the district council, and if the district council neglect or refuse to act the parish council may appeal to the county council, who may then, if they think fit, take action in the matter at the expense of the district council. The district council, however, are not limited in their action to cases where representation is made under the section referred to. They should at once take into consideration any information which they may receive that en- croachments have been made on a roadside waste, from whatever source the information may come. The power of appealing to the county council conferred on the parish council may be exer- cised by a parish meeting where there is no parish council." Sect. 19, sub-sect. 8. 264 RURAL DISTRICT COUNCILS. [CHAP. XIV. "It should be recollected that this right of the public to the maintenance of the roadside waste in rural districts does not moan that the soil of the land belongs to the public. As a general ride the ownership of the land of the roadside waste in rural districts is vested in the owner of the adjoining land, subject to the right of passage by the public. In some cases, however, it is part of the waste of a manor and belongs to the lord of the manor subject to any manorial rights, and in some few cases the roadside waste belongs to the highway authority, where the road has been laid out under an enclosure Act or other private Act. As in the case of footpaths, the powers of the district council are not limited to future encroachments or en- closures of roadside wastes. There is no limit of time to the assertion of the right of the public to the use of roadside wastes. The district council should, therefore, consider all encroachments which have been made within recent times. "The legal remedies in the hands of the district council, where encroachments on roadside wastes have been made, are the same as in the case of stoppage of footpaths, and need not be repeated. In the case of all future encroachments where there is no doubt as to the public right, it will, as a general rule, be advisable to assert the right of the public by removing the obstruction, after due notice to the person who has made the encroachment, leaving it to the person claiming the right to obstruct to assert it by an action of trespass. "It will be borne in mind that as regards main roads the Local Government Act, 1888, confers on county councils the necessary powers for preventing and removing obstructions, and for asserting the right of the public to the use and enjoyment of the roadside wastes. The district council should therefore, in the case of a main road, bring under the attention of the county council any such obstruction or interference with the public rights in respect of roadside wastes within their district which may come to their knowledge. 3. Commons. "The Local Government Act, 1894, contains very important provisions framed with the object of keeping open, in the interest of the public, any existing commons or open lands subject to common rights, of preventing their enclosure, and enabling SECT. III.] POWERS AND DUTIES OF. 265 district councils to propose schemes for their maintenance and regulation. These must be considered in connection with the provisions of other Acts passed in late years. " With a view to prevent the enclosure of commons, the Law of Commons Amendment Act, 1893 (56 & 57 Vict. c. 57), has provided that no enclosure under the Statute of Merton should thenceforward be valid unless made with the consent of the Board of Agriculture, and further, that the Board should not consent to any such enclosure unless satisfied that it would be for the benefit of the neighbourhood. In combination with this it should also be noticed that the Commons Act, 1876, by sect. 31, provides that any person intending to enclose a common or part of a common must publish a statement of his intention at least three months beforehand, three times in two or more of the prin- cipal local newspapers; and the Local Government Act, 1894, by sects. 8 (4) and 26 (2) requires that notice of any application to the Board of Agriculture in relation to a common shall be served upon the district council and upon the council of any parish in which any part of the common is situate. "In future, therefore, it is clear that where any lord of a manor or other person attempts to make an enclosure of a common or any part of it, without the previous consent of the Board of Agriculture, he will commit an illegal act, and proceedings may be taken by the district council to restrain him. Where, how- ever, he applies to the Board of Agriculture for their consent to the enclosure, the parish council and the district council will have due notice, and they should at once make representations to the Board of Agriculture in any case where they are satisfied that the enclosure will not be for the public benefit. " With the view of affording means of preventing the complete extinction of all rights of common which might entitle the owner of the soil to claim that the common no longer exists as such, the Local Government Act, 1894, by sect. 26, sub-sect. 2, empowers a district council, with the consent of the county council, to exercise the powers conferred by sect. 8 of the Commons Act of 1876 on certain urban sanitary authorities, and thus to acquire by gift or by purchase any land or houses having common rights annexed thereto. Where they have done this the district council will be in the position in the future to claim that tho land in question remains at law a common, and cannot be lawfully en- 266 RURAL DISTRICT COUNCILS. [CHAP. XIV. closed under the Statute of Merton or otherwise without the eon- sent of the Board of Agriculture, who are bound, by the statute above referred to, to refuse their consent if it be not proved to their satisfaction that the enclosure is for the benefit of the neigh- bourhood. "In view of these provisions, the council of any district within whose area any common land now exists will probably deem it right to consider whether they should not purchase one or more cottages or a small plot of land having a right of common annexed. The transaction need not be a costly one to the council, for the house or land thus purchased may be let on lease or otherwise for its full value without risk to the council of losing their locus standi. "It will be obvious that the proceedings under the Law of Commons Amendment Act, 1893, on the part of a local authority who have acquired an interest in a common to prevent the en- closure will be simple and inexpensive, as compared with a suit previous to that Act to prove that rights of common still exist, and that sufficiency of common has not been left as provided by the Statute of Merton. " The Local Go vcrnment Act further vests in district councils important functions with respect to the regulation of commons. It often happens that, in the case of commons in populous dis- tricts or near to large towns which are largely resorted to for recreation, it is desirable that regidations should be made for the preservation of order, for the prevention of nuisances, and for maintaining the surface and natural features of the common. In such cases a district council may, under sect. 26 (2) of the Local Government Act, 1894, with the consent of persons representing one-third in value of the legal interests in a common, and with the consent of the county council, apply to the Board of Agriculture for a provisional order for regulation of the common, which will then be proceeded with in accordance with the provisions of the Commons Act, 1876. Where a regulation scheme has been con- firmed by Parliament the common cannot afterwards be enclosed. If application is made by any other person or persons to the Board of Agriculture for the regulation of a common, the district council and the parish council within whose area the common is situate are entitled to notice of the same, with a view to their making any representation they may deem necessary to the Board SECT. III.] POWERS AND DUTIES OF. 267 upon the subject." Local Government Act, 1894, s. 8 (4), and 26 (2). "In the case of commons within the metropolitan police district application for a regulation scheme must be made in accordance with the Metropolitan Commons Acts, 1866 — 1869, and no consent of the commoners is required. "As the protection of the rights of the public in the matters above referred to, and the processes to be adopted in their asser- tion, will often involve difficult questions of fact and law, it will be well that district councils should consult their legal adviser before taking action in such cases." Transfer of Certain Powers from Justices. — See sect. 27 of Local Government Act, 1894, post, Appendix. As to giving Facilities for a Pure Water Supply. — See 60 & 61 Vict, c. 44. As to Extra Postal Facilities. — See ante, p. 250. As to Cleansing of Persons Infested with Vermin. — See 60 & 61 Vict, c. 31. Expenses. — The expenses incurred by the rural district council are, subject to the provisions of the Act of 1894, to be defrayed in manner directed by the Public Health Act, 1875, with respect to expenses incurred in the execution of that Act by a rural sanitary authority. 56 & 57 Vict. c. 73, s. 29. As to highway expenses payable by a rural district council, see post, p. 294. Under sect. 229 of the Public Health Act, 1875, the Local Government Board may declare expenses incurred in respect of a contributory place in a rural district to be special expenses, and they are then payable out of a rate levied in such place to which certain property is only assessed at one-fourth of its rateable value. The Board had no power to provide that the expense should be made a charge on the particular place in respect of which it was incurred, and yet be defrayed out of the same rate as it would have been if it had not been made a special exj)ense. Under sect. 29 (b) of the Act of 1894, however, where the Board determine any expenses under that Act to bo special expenses and a separate charge on any contributory place, they may further direct that such special expenses shall be raised in like manner as general expenses. 268 RURAL DISTRICT COUNCILS. [CHAP. XIV. Accounts. — The accounts of the receipts and payments of the rural district council and of their committees and officers must be made up half-yearly to the 30th of September and the 31st of March in such form as the Local Government Board prescribe. 56 & 57 Vict. c. 73, s. 58. The Board have issued an order pre- scribing- forms for the accounts of rural district councils. As to County Council Acquiring Powers of District Council. — See sect. 63 of Local Government Act, 1894, post, Appexdix. Inspection of Accounts, &c. — Every parochial elector of a parish in a rural district may, at all reasonable times, without payment, inspect and take copies of and extracts from all books, accounts, and documents belonging to or under the control of the district council of the district. 56 & 57 Vict. c. 73, s. 58 (5). CHAPTEE XV. CONSTABLES. PAGE Section. I. High Constables 269 II. Parish Constables 269 III. Special Constables 270 IV. Police Constables in Counties 272 V. Police Constables i)i Boroughs 276 Section I. — High Constables. In 1869 an Act was passed which declared that it was expe- dient to abolish the office of high constable, and enacted that after January, 1870, no high constable should be apj)ointed unless the justices assembled at quarter sessions should deter- mine it to be necessary. By that Act where any action or summary claim is preferred against any hundred or district of which there is no high constable, the chief constable of the county in which such hundred or district is situated is to do all acts which a high constable was formerly authorized or required to do. 32 & 33 Vict. c. 47. Section II. — Parish Constables. Although parish constables are in some few instances stib 1 appointed, their duties are almost entirely performed by the county police. And it was provided by the Parish Constables Act, 1872 (35 & 36 Vict. c. 92), that for the future no parish constable should bo appointed unless the county quarter sessions or the parish council (or meeting) of any parish should deter- mine it to be necessary, with a view to the preservation of the peace, or the proper discharge of public business. The parish council (or meeting) of any parish not included wholly or in part within a borough, after due notice, may at any time resolve that 270 CONSTABLES. [CHAP. XV. one or more parish, constables shall he appointed for their parish, with a salary payable out of the poor rate, and on a copy of such resolution being delivered to the justices for the petty sessional division in which the parish is situated, may appoint constables for the said parish. 35 & 36 Vict. c. 92, s. 4. Two or more parishes may unite for the appointment by the justices of a constable, if the parish councils (or meetings) thereof pass separate resolutions and agree upon the proportionate parts of the salary to be paid in respect of each parish. Sect. 5. Section III. — Special Constables. Appointment. — Where it is made to appear to two justices of any county or town, on oath, that any tumult, riot, or felony has taken place or may be apprehended in any parish, &c, for which they act, and they think the ordinary peace officers insufficient for the protection of persons and property, they may appoint, 1 y precept under their hands, as many householders or other per- sons (not legally exempt from serving the office of constable) residing in such place or in the neighbourhood, as they think fit, to act as special constables. 1 & 2 Will. 4, c. 41, s. 1. Any persons willing to act may be appointed and act as special con- stables whether so resident or not. 5 & 6 Will. 4, c. 43. Special constables may now make a declaration (31 & 32 Vict. c. 72, s. 12), instead of the oath set out in 1 & 2 Will. 4, c. 41, s. 1. The Secretary of State may order persons who are exempt by law to be sworn in. 1 & 2 Will. 4, c. 41, ss. 2, 3. Rules. — Any two of the justices who have appointed such special constables, or a majority of the justices acting for the division or limits within which such constables have been called out, in special sessions, may make rides for the management of such constables, and may remove them for misconduct. Sect. 4. Powers of. — Such special constables have all the powers, advantages and immunities of common constables throughout the entire jurisdiction of the justices appointing them ; and the justices may order them to act in an adjoining county, if it be made to appear by the justices of such adjoining county that it is expedient that they should do so. Sects. 5, 6. SECT. III.] SPECIAL CONSTABLES. 271 Refusal to Serve. — Any special constable convicted before two justices of refusing to make the declaration, or of neglecting to appear at the proper place and time for taking it, or of neglect- ing to serve when called upon, or to obey lawful orders, is liable to a penalty not exceeding 51. Sects. 7, 8. Determination of Service. — The same justices may suspend or determine the services of any or all the special constables so called out. Sect. 9. The authority of a special constable, appointed for an indefinite time, continues until determined under this section. R. v. Porter, 9 C. & P. 778. To deliver up Staves, &c. — Every special constable, wdthin a week after the expiration of his office, is to deliver up the staff and every other article provided for him. Sect. 10. Expenses. — The justices, at a special session to be held for the purpose, may order reasonable allowances and expenses for special constables to be paid out of the county rate ; or if in a town, &c, not contributory to the county rate, out of the fund raised in the nature of a county rate. Sect. 13. See R. v. Hulton, 13 Q. B. 592 ; R. v. Hamilton, L. E. 3 Q. B. 718. Appointment of, in Municipal Boroughs. — Two justices having jurisdiction within a borough are, in October in every year, to appoint, by precept signed by them, so many of the inhabitants not legally exempt from serving the office of constable as they think fit to act as special constables in their borough. Such warrant must recite that, in the opinion of the justice granting it, the ordinary police force is insufficient to maintain the peace of the borough. Such constables are to make a declaration to the effect of the oath set forth in 1 & 2 Will. 4, c. 41, and are to receive, for every day they are called on to act, 3s. 6d. from the borough fund. 45 & 46 Vict. c. 50, s. 196. Parliamentary Election. — No person having a right to vote at the election for any county, city, borough, or other place, can bo compelled to serve as a special constablo at or during the parlia- mentary election in such place. 17 & 18 Vict. c. 102, s. 8; 45 & 46 Vict. c. 50, s. 196. Actions against. — Special constables acting in execution or intended execution of their duty are within tho protection of tho Public Authorities Act, 1893. 272 CONSTABLES. [CHAP. XV. Section IV. — Police Constables in Counties. In 1856 Parliament provided (19 & 20 Vict, c. 69) for the establishment for the whole of each county of one general county police, and the appointment of a chief constable in each county. Detached parts of counties may, for the purposes of the constabulary and the Acts relating to them, be considered as forming part of the county by which the same is surrounded, or with which they have the longest common boundary. 21 & 22 Vict. c. 68. Joint Committee of Sessions and County Council. — The powers, duties and liabilities of quarter sessions and of justices out of sessions as to county police are now transferred to a standing joint committee of the quarter sessions and county council. 51 & 52 Vict. c. 41, s. 9. This committee consists of such equal number of justices appointed by the quarter sessions and of members of the county council appointed by that council as may from time to time be arranged between the quarter sessions and the council, and in default of arrangement such number taken equally from the quarter sessions and the council as may be directed by a Secretary of State. Ibid. s. 30. Nothing in the above Act affects the powers, duties, and liabilities of justices of the peace as conservators of the peace, or the obhgation of the chief constable or other constables to obey their lawful orders given in that behalf. Ibid. s. 9. The Queen in Council may, on the petition of persons contri- buting or liable to contribute to the police rate, order and require police districts to be formed in a county ; in which case the powers contained in 3 & 4 Vict. c. 88, s. 27, are to be exercised by the joint committee. Notice of such petition, and of the time when it will be tahen into consideration, is to be published in the Gazette one month at least before it is considered. 19 & 20 Viet, c. 69, s. 4. Consolidation of County and Borough Police.— The joint committee and the council of any incorporated borough may agree for the consolidation of the county and borough police, in which case the constables on both establishments are to have all the powers, throughout the county and borough, which count3* constables have under 2 & 3 Vict. c. 93 ; and the provisions of ECT. IV.] POLICE CONSTABLES IN COUNTIES. 273 which are to apply to borough as well as to county constables. In case of such consolidation the government of the consolidated police is to be in the chief constable of the county. 3 & 4 Vict. c. 88, ss. 14, 15. If application has been made by a town council to the joint committee to consolidate the police, as above provided, and such consolidation has not been effected, the Queen in Council, upon the report of a Secretary of State, may order the consolidation to be made, as if it had been effected by agreement under the former Act, save so far as relates to the determination of such agreement ; and the Queen in Councd may at any time vary the terms of such consolidation, or determine it upon such terms as seem just. 19 & 20 Yict. c. 69, s. 5. No agreement for consolidation made under the 3 & 4 Vict, c. 88, s. 14, is to be put an end to without the sanction of a Secretary of State. 19 & 20 Vict. c. 69, s. 20. Appointment of Chief Constable. — The joint committee are to appoint a chief constable, subject to the approval of the Secretary of State, and in the same manner to appoint another in case of vacancy. 2 & 3 Vict. c. 93, s. 4. The chief constable may, in case of illness, subject to the approval of the joint committee, appoint one of the superinten- dents as his deputy ; but no such deputy can act with the powers of chief constable for more than three months after a vacancy. Sect. 7. Duties, &c, of Chief Constable. — The chief constable is to attend quarter sessions, and make quarterly reports to the joint committee. The superintendents are to attend the sessions of their respective divisions, and to report in Hke manner. Sect. 17. The extraordinary expenses necessarily incurred by the chief constable and the constables Tinder his orders are to be allowed to him, and to be audited by the joint committee. Sect. 18 ; see R. v. Chelmsford, 5 Q. B. 66. Appointment of Constables and Superintendents. — The chief constable, subject to the approval of the joint committee, is to appoint the other constables, and a superintendent for each division, and may dismiss them at pleasure ; he also has the general government of all of them, subject to the lawful order of the justices in quarter sessions. Sect. 6. s. t 271 CONSTABLES. [CHAP. XV. Declaration by Constables. — The "chief constable and other constables are at the time of their appointment to make a declara- tion before a justice as required by 2 & 3 Vict. c. 93, s. 8. Also, if required, a constable is to make a declaration as to his previous service in a police force or public enrploynient. 53 & 54 Vict. c. 45, s. 26. Powers of. — The chief constable and other constables have all the powers, throughout the county and in all liberties, &c, and also in any adjoining county, which any constable has within his constablewick by virtue of the common law or any statute. The 1 & 2 Will. 4, c. 41, is to apply to them, except as to the manner of their appointment and the other special provisions of this Act. Sect. 8. The constables of a county are to have, in every borough situate wholly or in part within such county, or within any county or part of a county in which they have authority, all such powers and privileges, and are to be liable to all such duties and responsibilities, as the constables appointed for such borough have and are liable to within any such county, and are to obey all such lawful commands as they ma}- from time to time receive from any of the justices having jurisdiction within any such borough in which they are called on to act as constables, for conducting themselves in the execution of their office. 1 9 & 20 Vict. c. 69, s. 6. No county constable shall be required to act in any borough having a separate police establishment, except in execution of warrants of justices of such county, or by order of his chief constable or superintendent ; and no constable of any borough having a separate police establishment shall be required to act out of his borough, except in execution of warrants of justices of such borough, or in pursuance of directions from the watch committee in case of special emergency. 22 & 23 Vict. c. 32, s. 2. The constables acting under the 45 & 46 Vict. c. 50, s. 190, or 19 & 20 Vict. c. 69, s. 6, are, in addition to their ordinary duties, to perform all such duties connected with the police in their respective counties or boroughs as the justices in quarter sessions or the county council or the joint committee of such respective counties or boroughs from time to time direct and require. 19 & 20 Vict. c. 69, s. 7 ; 51 & 52 Vict. c. 41, s. 9. SECT. IV.] POLICE CONSTABLES IN COUNTIES. 275 Assistance by one Police Force to Another. — Where a police authority deem it expedient for any special emergency or under any exceptional circumstances to strengthen their police force by constables belonging to another police force, the police authorities of such forces may agree to carry this out. 53 & 54 Vict. c. 45, s. 25. Expenses — Police Rate. — The expenses of the force (which, by the 2 & 3 Vict. c. 93, were paid out of the county rate) are to be paid out of a police rate to be made by the county council, and to be levied with the county rate ; the value of rateable property is to be computed according to the last valuation for the county rate. 3 & 4 Vict. c. 88, ss. 3, 4 ; 53 & 54 Vict. c. 41, s. 3. If police districts are formed, the expenses of the force are to be divided into general and local expenditure, the former of which is to be defrayed in common by all the districts, and the latter, consisting of the salaries and clothing of the constables appointed for the district, and such other expenses as the county council, with the approval of the Secretary of State, direct to be included, is to be defrayed by each district separately, and the police rates are to be assessed and levied in each district separately. 3 & 4 Vict. c. 88, s. 28. Contribution by Treasury.— See 19 & 20 Vict. c. 69, ss. 16, 17. Fees. — Every police authority must at least once in every 5 years submit for approval to a Secretary of State a table of fees payable to constables in respect of the service of summonses, the execution of warrants, and the performance of other occa- sional duties which may be required of the constables under that authority, and in respect of the performance of any other act done by constables in the execution of their duty. No other fee than that mentioned in such table is to be taken by a constable for any service performed by him. Every constable must duly account for any fee taken by him. 53 & 54 Vict. c. 45, s. 23. Pensions. — Provision is now made for the granting of pensions, allowances and gratuities to police constables in any force in England and "Wales and their widows and children. 53 & 54 Vict. c. 45 ; 56 Vict. c. 10. Constables employed on fire duty are deemed to bo engaged on polico duty for the purpose of pensions, &c. 56 Vict. c. 10, s. 1. T 2 2?C> CONSTABLES. [CHAP. XV. Other Provisions.— The 2 & 3 Vict, c. 93, contains further provisions disqualifying- constables from exercising any other employment, and exempting them from serving in the militia. Sect. 10. Penalties are also imposed on constables neglecting their duty; sect. 12; see Chisholm v. Holland, 50 J. P. 197; resigning without leave; sect. 13; not delivering up accoutre- ments, &c. ; sect. 14 ; and on others who have in their possession such accoutrements, &c. ; or personate constables for an unlawful purpose; sect. 15; or who harbour constables during the hours of duty. Sect. 16. Police constables are no longer incapacitated from voting at parliamentary, municipal, school board, and other elections. 50 Viet. c. 9, s. 2 ; 56 Vict. c. 6. The 3 & 4 Vict. c. 88, provides for the appointment of addi- tional constables at the cost of individuals; sect. 19; for the alteration of the number of superintendents by the joint com- mittee ; sect, 26 ; for providing station-houses and strong rooms for the confinement of persons in custody. Sect. 12; see 19 & 20 Vict. c. 69, ss. 22, 23. The 19 & 20 Vict. c. 69, s. 15, provides for the appointment of three inspectors of police by the Crown; and by sect. 14, for an annual statement of crime to be furnished by the joint committee of counties and the watch committees of boroughs to the Secretary of State. County constables have the privileges set out in the Public Authorities Protection Act, 1893, only when acting under the Special Constables' Act. Ante, p. 270 ; Bryson v. Russell, 54 L. J. Q. B. 144. Section V. — Police Constables in Boroughs. All boroughs with a population under 10,000 persons are to form part of the county for police purposes. 51 & 52 Vict. c. 41, s. 39. In other boroughs the town council is to appoint out of their own body a sufficient number of persons, not exceeding one- third, who, with the mayor, are to be the watch committee. This watch committee is to appoint constables who are to make a declaration before a justice having jurisdiction in the borough. Such constables are to have, not only within the borough, but SECT. V.] POLICE CONSTABLES IN BOROUGHS. 277 also within the county in which the borough or any part thereof is situate, and in every county being- within seven miles from any part of the borough, and in all liberties in any such county, all the powers and privileges, and to be liable to all the duties and responsibilities, which any constable, duly appointed, has within his constablewiek by virtue of the common law or any statute. The watch committee are to make rules for the manage- ment of the constables, and they, or any two justices having jurisdiction within the borough, may suspend or dismiss any constable. 45 & 46 Vict. c. 50, ss. 190, 191. Borough poHce may be employed as a fire brigade. 56 Vict. c. 10, s. 2. Borough constables may vote at parliamentary elections ; 50 Vict. sess. 2, c. 9 ; and also at municipal, school board, and other elections. 56 Vict. c. 6. Salaries, &c. — The salaries, wages, and allowances are to be such as the watch committee, with the approbation of the council, direct. 45 & 46 Vict, c. 50, s. 140. As to declarations, fees, pensions, &c, see ante, pp. 274, 275. Expenses of. — The expense of the borough police force is paid out of the borough fund. Sects. 140, 197—200, sch. 5. In New Boroughs. — A new separate police force not consoli- dated with the county police force, is not to be established in a new borough with less than 20,000 inhabitants. 45 & 46 Vict. c. 50, s. 215. CHAPTEE XYI. CORONER AND INQUESTS. PAGE Section T. County Coroner 278 II. Borough Coroner 280 III. Inquests 281 The office of coroner is ancient and was one appointed by the Crown. The name is a translation of the term coronorator, because the coroner was originally a royal officer. The word " crowner " has the same signification. Section I. — County Coroner. Election of. — Until the passing of the Local Government Act, 1888, a coroner for a county was elected by the freeholders of that county. On any vacancy occurring after the passing of that Act in the office of a coroner for a county, who is elected to that office in pursuance of a writ de coronatore eliyendo, a like writ for the election of a successor is to be directed to the county council of the county instead of to the sheriff, and the county council thereupon are to appoint a fit person, not being a county alder- man or county councillor, to fill such office, and, in the case of a county divided into coroners' districts, is to assign him a district ; and any person so appointed is to have like powers and duties, and be entitled to like remuneration, as if he had been elected coroner of the county by the freeholders thereof. 51 & 52 Vict, c. 41, s. 5. The council may postpone the appointment of a coroner to fill a vacancy, either generally or in a particular case, for a period not exceeding 3 months from the date at which that vacancy occurs. 55 & 56 Vict. c. 56, s. 1 (3). Qualification of Coroner. — A county coroner must "be a fit person having land in fee sufficient in the same county whereof SECT. I.] COUNTY CORONER. 279 he may answer to all manner of people." 50 & 51 Viet. c. 71, s. 12. A person who holds the office of coroner is not qualified to be elected as a county alderman or county councillor for the county for which he is coroner. 51 & 52 Vict. c. 41, s. 5. Division of Counties. — The division of the county into coroners' districts, and the assignment of such districts, is now vested in the county council. Ibid. s. 3. The Queen, if she think fit, with the advice of her Privy Council, may direct the issue of a writ de coronatore ellgendo, for the purpose of authorising the election of an additional coroner above the number customarily elected in such county, or order that such county shall be divided into so many districts which are to be assigned to coroners. 7 & 8 Vict. c. 92, s. 4. Every coroner for any particular district of a county shall hold imprests only within his own district, except during illness or incapacity or unavoidable absence of a coroner for another district. Sects. 19, 20. Residence of. — The county coroner is to reside within the district in and for which he is elected, or in some place wholly or partly surrounded by such district, or not more than two miles beyond the boundary of such district. 7 & 8 Vict. c. 92, s. 5. Salary. — County coroners are to be paid by annual salary. 23 & 24 Vict. c. 116, s. 4. The salary, and the fees, allowances, and disbursements allowed to be paid by a county coroner are authorised and paid by the county council. 51 & 52 Vict. c. 41, s. 3. Accounts of Coroner. — Every coroner is, within four months after holding an inquest, to cause a full and true account of all sums paid by him to be laid before the local authority of the county or borough by whom the sums are to be reimbursed to him. 50 & 51 Vict. c. 71, s. 27. Deputy Coroner. — Every coroner, whether for a county or a borough, must appoint, by writing under his hand, a fit person approved by the chairman or mayor, as the case may be, of the council who appointed the coroner, not being an alderman or councillor of such council, to bo his deputy, and may revoke such appointment. Such deputy is only to act during illness of the coroner, or during his absence for any lawful or reasonable 280 CORONER AND INQUESTS. [CHAP. XVI. cause, or at any inquest -which the coroner is disqualified for holding. 55 & 56 Yict. c. 56. It is a "lawful or reasonable cause " that the coroner was engaged in holding another inquest. Coroner as Justice of the Peace. — A justice of the peace does not become disqualified from acting as such by reason of his being elected coroner for the county or division for which he so acts as justice. Davis v. J J. Pembrokeshire, 7 Q. B. D. 513. The coroner is ex officio a justice of the peace, and he may there- fore cause any person suspected of homicide to be apprehended even before the jury have found their verdict. Section II. — Borough Coroner. Where the district of any count}* coroner is wholly situated within a county borough, the coroner for that district is appointed by the council of that borough ; and where the district of any county coroner is situated partly within and partly 'without a county borough, the writ for the election of such coroner is issued to the county council ; but if there is a joint committee of the county and borough councils for the purpose, the question of the person to be elected is to be referred to that joint committee, and the county council is to appoint the person recommended by the majority of such committee. 51 & 52 Yict. c. 41, s. 34. In Boroughs having separate Quarter Sessions. — The council of a borough having a separate court of quarter sessions are to appoint a fit person, not an alderman or councillor of the borough, to be coroner of the borough. 45 & 46 Yict. c. 50, s. 171. In the case of such a borough -with a population under 10,000 in 1881, the powers, etc., of the council of the borough as regards coroners are transferred to the county council. 51 & 52 Yict. c. 41, s. 38. The area of such a borough is subject to the authority of the county coroner, and may be annexed b}- the county council to a coroner's district of the county. Ibid. Remuneration of. — A borough coroner is to receive for every inquisition which he takes in the borough £1, and 9d. for every mile exceeding two miles which he is compelled to travel from his usual place of abode to take such inquisition. 45 & 46 Yict. c. 50, sch. 4, 5. SFX'T. III.] INQUESTS. 281 Power to appoint Deputy. — See ante, p. 279. Duties of. — The duties of a borough coroner are the same as those of a county coroner. Section' III. — Inquests. When Inquest to be held. —Where a coroner is informed that the dead body of a person is lying within his jurisdiction, and there is reasonable cause to suspect that such person has died either a violent or an unnatural death, or has died a sudden death of "which the cause is unknown, or that such person has died in prison, or in such place or under such circumstances as to require an inquest in pursuance of any Act, the coroner, whether the cause of death arose within his jurisdiction or not, shall summon jurors to inquire touching the death of such person. 50 & 51 Vict. c. 71, s. 3. The coroner and jury, at the first sitting of the inquest, are to view the body, and the coroner is to examine on oath, touching the death, all persons who tender their evidence respecting the facts and all persons having knowledge of the facts whom he thinks it expedient to examine. Sect. 4. Where a person dies a natural death the coroner has no right to interfere and obtrude himself into a private family without pretence. Per Lord Ellenborough, in R. v. //. Kent, 1 1 East, 231. A coroner has power to hold an inquest where he has reason- able suspicion that a death is due to other causes than common illness. R. v. Stephenson, 13 Q. B. D. 331 ; 53 L. J. M. C. 176. As to receiving evidence that a person who has committed suicide was non compos mentis, ante, p. 161. It is a misdemeanour to destroy a dead body with intent to pre- vent an inquest in a case where a coroner has jurisdiction to hold one. Ibid., and 7?. v. Price, 12 Q. B. D. 247 ; 53 L. J. M. C. 51. A coroner is not justified in delajdng the inquest upon a dead body in a state of decomposition for so long a period as 5 days in order that the body may be identified and buried and registered under the right name ; and the mere fact that it has been placed in a mortuary can make no difference. In re Hull, 1 Q. B. D. 689. Refusal to hold Inquest. — If a coroner refuse or neglect to hold an inquest in any case when such inquest ought to be held, the Attorney-General may apply to the Queen's Bench Division, or 282 CORONER AND INQUESTS. [cHAP. XVI. during vacation to a judge, for a rule to show ca.use. 50 & 51 Vict. c. 71, s. 6. A coroner received from the proper police authorities a report, with a view to an inquest, that a man in his district, aged 61, had been found dead in his bed. It did not appear, on the one hand, that there had been any previous disease or illness, or, on the other hand, that there was any susjHcion of violence, suicide, or crime. A medical man, moreover, refused to give a certificate of the cause of death, and the friends and relatives of the deceased made no objection to an inquest. The Court held that the coroner had, in the absence of further information as to the cause of death, no discretion to refuse to hold an inquest upon the ground that it was unnecessary. In re Hull, 9 Q. B. D. 689. Adjourning Inquest to Assizes. — In case twelve, at least, of the jury do not agree on a verdict, the coroner may adjourn the inquest to the next sessions of oyer and terminer or gaol delivery, held for the county or place in which the inquest is held. 50 & 51 Vict. c. 71, s. 4. Attendance of Jurors and Witnesses. — The jury must consist of not less than twelve nor more than twenty-three "good and lawful men." 50 & 51 Vict. c. 71, s. 3. They are sworn by the coroner, and are then charged to inquire how the deceased came by his death. If any person, having been duly summoned as a juror or witness to give evidence upon any coroner's inquest, shall not, after being openly called three times, appear and serve as such juror, or appear and give evidence on such inquest, the coroner may impose a fine not exceeding 405. in the case of a witness, and 51. in the case of a juror, and shall make out and sign a certificate, containing the name and surname, the residence, and trade or calling of every such person so making default, to- gether with the amount of the fine imposed, and the cause of such fine, and transmit the certificate to the clerk of the peace for the county in which the defaulter resides. 50 & 51 Vict. c. 71, s. 19. As to who are exempt from serving on coroner's juries, see post, p. 287. Medical Witnesses. — Whenever it appears to the coroner that the deceased was attended at his death, or during his last illness, by any legally qualified medical practitioner, the coroner may summon such practitioner as a witness ; but if it appears to the SECT. III.] INQUESTS. 283 coroner that the deceased person was not attended at, or imme- diately before, his death by any legally qualified medical practi- tioner, the coroner may summon any legally qualified medical practitioner, being at the time in actual practice in or near the place where the death happened, and any such witness may be asked to give evidence as to how, in his opinion, the deceased came to his death. 50 & 51 Vict. c. 71, s. 21. If a majority of the jury sitting at an inquest are of opinion that the cause of death has not been satisfactorily explained by the evidence of the medical practitioner or other witnesses brought before them, they may require the coroner, in writing, to summon as a witness some other legally qualified medical practitioner named by them, and further to direct a post-mortem examination of the deceased. If the coroner refuse to issue such an order, he is guilty of a misdemeanour. Ibid. Penalty for Neglecting to Attend. — Where a medical practi- tioner fails to obey a summons of a coroner, he is, unless he shows a good and sufficient cause for not having obeyed the same, liable, on summary conviction, on the prosecution of the coroner or of any two of the jury, to a fine not exceeding 5/. Sect. 23. Post-mortem Examination. — The coroner may, either in his summons for the attendance of such medical witness, or at any time between the issuing of that summons and the end of the inquest, direct such medical witness to make a post-mortem examination of the body of the deceased, with or without an analysis of the contents of the stomach or intestines. If any person states upon oath before the coroner that, in his belief, the death of the deceased was caused partly or entirely by the improper or negligent treatment of a medical practitioner or other person, such medical practitioner or other person shall not be allowed to perform or assist at the post-mortem examination. Sect. 21. No fee or remuneration is to be paid to any medical practitioner for the performance of a post-raortem examination instituted without the previous direction of the coroner. Sect. 22. By the same section, where an inquest is held on the body of a person who has died in a public hospital, the medical officer whose duty it is to attend the deceased as medical officer of the hospital is not entitled to fee or remuneration for making a post- 284 CORONER AND INQUESTS. [CHAP. XVI. mortem examination and attending to give evidence. See Harmer v. Lewis, 67 L. J. Q. B. 524 ; 78 L. T. 792. Fees to medical witnesses are to be paid by the coroner imme- diately after the termination of the proceedings at any inquest. Sect. 26. The fee for giving evidence is one guinea, and for the making of a post-mortem examination either with or without an analysis of the contents of the stomach and intestines, and for attending to give evidence thereon, is two guineas. Sect. 22. Exclusion of the Public. — As the court of the coroner is a court of record of which the coroner is the judge, he has the power of excluding not only particular individuals, but the public generally. Garnett v. Ferrand, 6 B. & C. 611 ; Jervis on Coroners, 233. Of course, this power of exclusion ought not to be used for the purpose of keeping out those who might be entitled to be present, whether as witnesses or interested parties. Power to Remove Coroner. — The Lord Chancellor may remove a coroner for inability or misbehaviour in the discharge of his duty. 50 & 51 Vict. c. 71, s. 8. A coroner is not by himself or his partner to act as solicitor and as coroner in the same case. Sect. 10. As to a coroner's directions for burial on a verdict oifelo de se, ante, p. 161. CHAPTER XVII. JURY LISTS. It is not within the scope and object of this work to state more of the law respecting juries than relates to the duties to be per- formed by certain parish and other local officers, in preparing and returning the lists from which juries are ultimately to be summoned, and the persons who are exempt from serving on juries at all. Warrants of Clerk of Peace. — The clerks of the peace of every county are, on or before the 20th day of July in every year, to issue their precepts to the [churchwardens and] overseers, re- quiring them to prepare, before the 1st of September, lists of all men residing within their parishes and townships liable to serve on juries. 25 & 26 Vict. c. 107, s. 4. In rural districts the churchwardens have now nothing to do with the matter. 56 & 57 Vict. c. 73, s. 5. Lists, by whom made. — The [churchwardens and] overseers, upon receiving the precept, are required to make out a list of all men liable to serve on juries, residing in the parish or township (and the extra-parochial place thereto annexed ; sect. 7), with their Christian and surnames, and their true places of abode, title, &c, or business, according to the form set forth in the schedule. 25 & 26 Vict. c. 107, s. 8. If any overseer, without reasonable excuse, to be allowed by the justices having cognizance of the case, insert in the list of persons qualified to serve as jurors prepared by him the name of any person whose name ought not to have been inserted therein, or omit therefrom the name of any person whose name ought not to have been omitted, he shall on summary conviction, be liable to a penalty for each offence not exceeding 40s. 33 & 34 Vict. c. 77, s. 13; and see 6 Geo. 4, c. 50, s. 11. 286 JURY lists. [chat. XVII. Special Jurors. — In making out such lists the overseers shall Bpecify which of such persons are, in the judgment of such over- seers, qualified as special jurors, and shall also specify in every case the nature of the qualification and also the occupation, and the amount of the rating or assessment of every such person. Sect. 11. E very m an whose name is in the jurors' books for any county in England or Wales, or for the county of the city of London, who is legally entitled to be called an esquire, or who occupies a private dwelling-hous i rated or n sessed to the poor rate or to the inhabited house duty on a value of not less than 100/. in a town containing, according to the census next preceding the pre- paration of the jury list, 20,000 inhabitants and upwards, or rated or assessed to the poor rate or to the inhabited house duty on a value of not less than 50/. elsewhere, or who occupies premises, other than a farm, rated or assessed as aforesaid on a value of not less than 100/., or a farm rated or assessed as aforesaid on a value of not less than 300/., is qualified and liable to serve on special juries. Sect. 6. As to liability to serve on other juries, see 6 Geo. 4, c. 50, s. 1. Publication of Lists. — The churchwardens and overseers are, on the three first Sundays in September, to fix a copy of the list upon the principal door of every public place of religious worship within their parishes or townships, with a notice stating when and where objections to the list will be heard by the justices. They are to keep the original list, or a copy, to be perused by any inhabitant at any reasonable time during the three first weeks of September, without fee, that improper omissions or insertions may be corrected ; and they ma}' cause a sufficient number of copies of the lists to be printed for these purposes at the expense of their parishes or townships. 6 Geo. 4, c. 50, s. 9. Sessions for Correcting Lists, &c. — The justices in every divi- sion are to hold a special petty sessions, within the last seven days of September in every year, of which notice is to be given before the 20th of August preceding to the churchwardens and overseers, at which the churchwardens, &c, are to produce the lists of men liable to serve on juries within their parishes or townships, and to answer upon oath such questions respecting the same as are put to them by the justices. The justices may CHAP. XVII.] JURY LISTS. 287 strike out the names of persons exempt, and insert the name of any man omitted, and reform any errors or omissions in respect to names, qualifications, &c, upon the application of, or notice to, the parties immediately interested. The justices present, or two of them, are to sign the lists with their allowance. Ibid. s. 10. As to fee to clerk to justices, see 39 & 40 Vict. c. 61, s. 32. It is not payable by the overseers. R. v. Haslingjield, L. E. 9 Q. B. 203; 43 L. J. Q. B. 38. Upon completing the revision of the jury lists, the justices are to certify in writing that they have examined such lists and that the same are, to the best of their knowledge and belief, true and proper lists ; and their decision as to the qualifications of persons marked as special jurors shall be final. 33 & 34 Viet. c. 77, s. 14. Regulations. — No person is to be summoned to serve on any jury or inquest (except a grand jury) more than once in any one year, unless all the jurors upon the list have been already summoned to serve during such year, and no person is exempt from serving as a common juror by reason of his being on any special juror's list, or being qualified to serve as a grand juror; and no person is to be summoned or liable to serve as a juror in more than one court on the same day. 33 & 34 Vict. c. 77, s. 19. Six Days' Notice. — No juror is liable to any penalty for non- attendance on any jury, unless the summons requiring him to attend be duly served six days at least before the day on which he is required to attend. Sect. 20. Exemptions from Service. — The following persons are exempt from being returned to serve and from serving upon any juries or inquests whatsoever : — Peers. Members of Parliament. Judges. Clergymen. Roman Catholic priests. Ministers of any congregation of Protestant Dissenters and of Jews, whose place of meeting is duly registered, provided they follow no secular occupation except that of a schoolmaster. Serjeants, barristers-at-law, certificated conveyancers, and special pleaders, if actually practising. Members of the society of doctors of law and advocates of the civil law, if actually practising. Attorneys, solicitors, and proctors, if actually practising and having taken out their annual certificates, and their managing clerks, aud notaries public in actual practice. Officers of the courts of law 288 JURY lists. [chat. XVII. and equity, and of the Admiralty and Ecclesiastical Courts, including- therein the Court of Probate and Divorce, and the clerks of the peace or their deputies if actually exercising the duties of their respective offices. Coroners. Gaolers and keepers of houses of correction, and all subordinate officers of the same. Keepers in public lunatic asylums. Members and licentiates of the Royal College of Physicians in London, if actually practising as physicians. Members of the Eo3"al Colleges of Surgeons in London, Edinburgh, and Dublin, if actually practising as sur- geons. Apothecaries certificated by the court of examiners of the Apothecaries' Company, and all registered medical prac- titioners, or pharmaceutical chemists (or registered dentists ; 41 & 42 Vict. c. 33) respectively. Officers of the navy, army, militia, and yeomanry while on full pay. Every soldier in her Majesty's regular forces. 44 & 45 Yict. c. 58, s. 147. The members of the Mersey Docks and Harbour Board. Licensed pilots. The household servants of her Majesty, her heirs and successors. Officers of the post office, commissioners of customs, and officers, clerks, or other persons acting in the management or collection of the customs, commissioners of inland revenue, and officers or persons appointed by the commissioners of inland revenue or employed by them or under their authority or direc- tion in any way relating to the duties of inland revenue (including certificated income tax commissioners ; 34 & 35 Yict. c. 103, s. 30). Sheriffs' officers. Officers of the rural and metropolitan police. Magistrates of the metropolitan police courts, their clerks, ushers, doorkeepers, and messengers. Members of the council of the municipal corporation of any borough, and every justice of the peace therein, and the town clerk and treasurer, so far as relates to any jury summoned to serve in the county where such borough is situate. Burgesses of every borough in and for which a separate court of quarter sessions is held, so far as relates to any jury summoned for the trial of issues joined in any court of general or quarter sessions of the peace in the county wherein such borough is situate. Justices of the peace, so far as relates to any jury summoned to serve at any sessions of the peace for the jurisdiction of which he is a justice. (Superintendents and registrars of births, deaths, and marriages. 26 & 27 Yict. c. 11, s. 29.) Officers of the houses of Lords and Commons. 33 & 34 Vict. c. 77, schedule. CHAPTEE XVIII. HIGHWA YS. PAGE Section I. Highways at Common Law 289 II. The Highway Acts 292 III. Highway Authority for Rural Districts 293 IV. Repair, Sfc, of Hi glue ays 295 Section I. — Highways at Common Law. Nature of Highways. — A highway is a public road which all subjects of the realm are entitled to use. Blacks tone. There are three kinds of ways : first, foot-way for man alone to pass along, called in Latin iter; secondly, a foot and horse-way, actus (ab agendo), commonly called a pack and prime way ; and thirdly, via or aditus, a road for carriages, horses, and men, which includes both the former ; this last being twofold, viz., regia via, the king's highway for all men, &c. ; and communis strata, belonging to a city, or town, or private persons. Co. Lit. 56 a. In legal acceptation, a way comprehends no more than the mere surface upon which it passes, and includes neither the fences on either side ; R. v. Commissioners of Landillo, 2 T. E. 232 ; nor the minerals or earth under it. Roll. Abr. 392. The freehold of the highway is in the owner of the soil. Lade v. Sheppard, 2 Stra. 1044. The law will presume that waste land adjoining a road and the road itself usque ad medium filum via belong to the owner of the soil of the adjoining enclosed land, whether he be freeholder, copyholder, or leaseholder, and not to the lord of the manor, but this presumption will be rebutted by acta of ownership or other evidence of property. Steel v. Prickett, 2 Stark. 468 ; Doe v. Pearsey, 7 B. & C. 304. This presumption is much weakened, if not destroyed, if the strip by the side of tho highway communicate with open commons ; Grose v. West, s. v 290 HIGHWAYS, [CHAP. XVIII. 7 Taunt. 39 ; nor does it apply to roads set out under an Inclo- sure Act. R. v. Wright, 3 B. & Ad. 681 ; R. v. Edmonton, 1 M. & Bob. 32. A public highway may exist over a place which is not a thoroughfare. Trustees of Rugby Charity v. Merryweather, 11 East, 376, n. ; Woody er v. Hadden, 5 Taunt. 125; Woody. Veal, 5 B. & Aid. 474 ; Bateman v. Bluck, 21 L. J. Q. B. 406; i?. v. Lloyd, 1 Camp. 260. As to whether it is necessary, in order to constitute a highway, that the road should lead from one public place to another, see Campbell v. Lang, 1 Macq. H. L. Cas. 451 ; Young v. Cuthbertson, Ibid. 455 ; R. v. Hawkhurst, 7 L. T. (N. S.) 267. See also a decision of Malins, V.-C, that a passage may be a public way or " street," though it is a cul-de-sac. Souch v. E. London Ry. Co., L. E. 16 Ecp 111 ; 42 L. J. Ch. 477. "Where a highway is legally stopped up at one end only, the public hare the right of going over from the other end ; Gu-yn v. Hardivick, 25 L. J. M. C. 97 ; R. v. Bumay, 31 L. J. 828 ; but a way ceases to be a " public highway " where the access to it at either end has become impossible by reason of ways leading to it having been legally stopped up. Bailey v. Jamison, 1 C. P. D. 239. Dedication. — A highway must be dedicated to the public by the owner of the soil ; that is, he must have done some act or conducted himself in some manner, showing an intention to give the public an irrevocable licence to travel along it, at their free will and pleasure. Poole v. Huskinson, 11 M. & "W. 827 ; Surrey Canal Company v. Hall, 1 M. & Gr. 392. "Where no express dedication and acceptance can be shown, uninterrupted user of a way by the public is, in the absence of explanatory evidence, conclusive proof of an accepted and valid grant of a highway. This presumption arising from user niay be rebutted by proof of acts which negative an intention to dedicate, or of facts which show a lawful origin of the user consistent with the absence of any such intention. Uninterrupted user by the public for a number of years is, therefore, evidence from which a dedication may and ought to be presumed. R. v. East Mark, 11 Q. B. 877 ; R. v. Petrie, 4 E. & B. 737. So, where a man builds a street on his own land, and it is used by the public as a highway, and no bar or other impediment is erected thereon by him, a dedication to the public will be presumed. Lade v. Shcppard, SECT. I.] HIGHWAYS AT COMMON LAW. 291 2 Str. 1004; R. v. Lloyd, 1 Camp. 260. But if a bar, rail, or gate, however slight, be kept across it, although the public be permitted in general to pass, the presumption of dedication will be rebutted; Woody e r v. Hadden, 5 Taunt, 125; and a single act of interruption will outweigh the effect of several acts of user. Pooler. Huskinson, 18 M. & W. 827; Trustees of British Museum v. Finnis, 5 C. & P. 463. If the bar, &c, erected at first be afterwards knocked down, and not replaced, still the presumption is rebutted, for a dedica- tion must be made openly, and with a deliberate purpose. Roberts v. Karr, 1 Camp. 262, n. If a person allows the public to pass over his land and does not mean to dedicate it, but only to give a licence, he should do some act to show that a licence only is intended. Barraclouyh v. Johnson, 8 A. & E. 99. Repairs done upon a road by the parish in which it is situated are evidence of its being a highway. R. v. Leake, 5 B. & Ad. 469. The dedication of a highway can be presumed in favour of the public only, not of any specific body. Bermondsey v. Brown, L. E. 1 Eq. 204; 13 L. T. 574. Dedication, by whom made.— In general, the dedication must be by the owner of the fee ; and a leaseholder, however long his term, or a person having only a limited estate, cannot devote any portion of the land to a highway, so as to bind the reversioner. Wood v. Veal, 5 B. & A. 454. But where an user by the public is proved, it is evidence of a dedication by the owner of the fee, whoever he may be, and it is not necessary, in support of the presumption, to show who the particular owner is. R. v. East Mark, 11 Q. B. 877; R. v. Petrie, 4 El. & B. 737. If the existence of a term or other limited estate be shown, yet a con- tinuance of the user after its determination is evidence that the owner of the fee assented to it, if it was with his knowledge. Harper v. Charlcsworth, 4 B. & C. 574 ; R. v. Barr, 4 Camp. 16. Trustees in whom lands are vested by statute for special purposes inconsistent with the public having a right of way over them cannot dedicate such land, and no user will in such case raise a presumption of dedication. R. v. Leake, 5 B. & Ad. 478. Partial Dedication. — It has not yet been expressly decided how far there may be a partial dedication of a highway to the public. In Marquis of Stafford v. Coyney, 7 B. & C. 257, u 2 292 HIGHWAYS. [CHAP. XVIII. Bayley, J., and Holroyd, J., said they saw no objection in prin- ciple to such a dedication, and were disposed to think it might be made, though Littledale, J., entertained some doubt on the subject. A landowner may dedicate a way to the public, subject to a right reserved of ploughing up the soil, and temporarily de- stroying the Avay at particular times. Mercer v. Woodgate, L. E. 5 Q. B. 26; 39 L. J. M. C. 21 ; Arnold v. Blaher, L. E. 6 Q. B. 433; 40 L. J. Q. B. 185; Arnold v. Holbrook, L. E. 8 Q. B. 96; 42 L. J. Q. B. 80. It appears that an individual cannot, without legislative authority, dedicate a road to the public, if he reserves the right to charge tolls for the user. Ausierberry v. Oldham Corporation, 29 Ch. D. 750 ; 55 L. J. Ch. 633. The dedicating a way to the public communicates no more than the right of passage ; the original owner retains his interest in the soil, with all trees that grow upon it and mines which may be opened beneath it ; 2 Inst. 705 ; and ti'espass may be main- tained by such an owner, for damaging the soil of the highway. 1 Burr. 143; Lade v. Shepherd, 2 Str. 1004. Section II. — The Highway Acts. The following are the principal Highway Acts now in force. The 5 & 6 Will. 4, c. 50, which is to be cited as "The Highway Act, 1835"; the 25 & 26 Vict. c. 61, cited as "The Highway Act, 1862" ; the 27 & 28 Vict. c. 101, cited as "The Highway Act, 1864"; the 41 & 42 Vict. c. 77, cited as "The Highways and Locomotives (Amendment) Act, 1878" ; the 45 & 46 Vict. c. 27, cited as " Tho Highway Eate Assessment and Expenditure Act, 1882"; and the 48 & 49 Vict. c. 13, cited as "The Highway Act Amendment Act, 1885." Turnpike Roads. — The greatest portion of the highways throughout the kingdom were, imtil comparatively recently, turnpike roads, from their having been either originally formed or subsequently regulated by Acts of Parliament, which pro- vided the means of keeping them in repair by the tolls which were taken at the turnpikes erected upon them for the purpose. The sole remaining turnpike trust ceased to exist in 1895. SECT. II.] THE HIGHWAY ACTS. 293 Main Roads. — Under the Highway Acts highways are con- sidered to be of two kinds, viz., ordinary highways and main roads. County Councils may apply to the Local Government Board under sect. 16 of the Highways and Locomotives (Amend- ment) Act, 1878 (41 & 42 Vict. c. 77), as amended by sect. 4 of Highways and Bridges Act, 1891 (54 & 55 Vict. c. 63), for an order declaring that the whole or parts of certain roads within their jurisdiction which have become main roads within the meaning of the former Act, either by ceasing to be turnpike roads since 31st December, 1870, or by subsequent declaration under sect. 15, should be reduced to the status of ordinary highways. 51 & 52 Vict. c. 41. A main road and the materials thereof, and all drains belonging thereto vest in the county council. Sect. 1 1 (6). Where a county council declares a road to be a main road, such declaration does not take effect until the road has been placed in proper repair and condition to the satisfaction of the county council. Any highway authority may contract with the county council for the undertaking by the highway authority of the duty of dealing with a main road, or may be required by a county council to undertake that duty. Ibid. sect. 1 1 . Section III. — Highway Atjthokity for Bubal Districts. The important effect of the Local Government Act, 1894, is to make the rural district council the highway authority for the rural district in place of the former highway authorities. The county council may postpone this transfer of highway powers, and as long as such postponement lasts the old highway authorities will be in existence. These authorities were : — (1.) In a highway parish not comprised in an urban district or highway board district, the surveyor of highways, who was appointed annually by the vestry under the Highway Act, 1835. (2.) In highway districts (which comprised a number of parishes grouped together for the parish highway administration under the Highway Acts, 1862 and 1864), the highway board. 294 HIGHWAYS. [CHAP. XVIII. (3.) In some cases where the rural sanitary district was coinci- dent with the highway district, the rural authority might (under 41 & 42 Vict. c. 77) be constituted the highway board -for such district. Under the provisions of sect. 25 of the Local Government Act, 1894, the operation of that section with respect to the transfer of the powers of highway authorities to rural district councils had been postponed either up to or beyond the 31st March, 1896, in the whole of 11 administrative counties aud parts of 10 others, and in these cases the highway boards or surveyors of highways continued to act during the year ended on that date. In the remaining 40 counties and parts of 10 others, the powers, duties and liabilities of the highway authorities had been transferred to rural district councils. No useful purpose would, therefore, be served by stating the statutory recpiirernents as to the office of surveyor of highways or the constitution of highway boards. Sect. 25 of the Local Government Act, 1894 (56 & 57 Vict. c. 73), enacts that " as from the appointed day, there shall be transferred to the district council of every rural district all the powers, duties, and liabilities of the rural sanitary authority in the district, and of any highway authority in the district, and highway boards shall cease to exist, and rural district councils shall be the suc- cessors of the rural sanitary authority and highway authority, and shall also have as respects highways all the powers, duties, and liabilities of a sanitary authority under sects. 144 — 148 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), and those sections shall apply in the case of a rural district and of the council thereof in like manner as in the case of an urban district and an urban authority." The effect of the application of the above-mentioned sections of the Public Health Act, 1875, is that rural district councils have all the powers, duties, and liabilities of surveyors of highways and the vestry under the Highway Acts. The rural district council may enter into an agreement with any person for the making of new public roads or bridges over railways or canals. Highway Expenses. — Any highway expenses which may be payable by the rural district council must be defrayed as general expenses, subject to this — that the council, if they think it just SECT. III.] HIGHWAY AUTHORITY FOR RURAL DISTRICTS. 295 by reason of material differences of soil or locality, or otlier exceptional circumstances, that any contributory places within the district should hear the expense of maintaining their own highways, may, with the approval of the county council, divide their district into two or more parts, and charge exclusively on each of such parts the expenses payable by them in respect of maintaining and keeping in repair the highways situate in each such part. But each part must consist of one or more con- tributory places. "Where highway expenses would, if the Local Government Act, 1894, had not passed, have been wholly or partly defrayed in any parish or other area out of any property or funds other than rates, the district council must make such provision as will give to that parish or area the benefit of such property or funds by way of reduction of the rates on the parish or area. "Where before the transfer to the rural district council the highway expenses were charged on a particular parish or other area and not on a district, the district council may determine that the highways in that parish or area shall be placed in proper repair before the expenses of repairing the same become a charge upon the district, and, failing such highways being placed in proper rerjair to the satisfaction of the district council, the district council may themselves place the highways in proper repair. The expense incurred by them in so doing will be a separate charge on the parish or area, and any question which arises as to whether any such expenses are properly a separate charge on the parish or area is to be determined by the county council. Section IV. — Uepair, &c, or Highways. Duty to Repair. — The primary obligation of repairing high- ways is, by the common law, laid upon the parishes in which they are situated, but as this obligation is practically transferred by statute to various highway authorities it is not necessary as it was in former editions of this work on parish law to enter at large on the subject of highways. A parish council cannot bo indicted for the non-repair of a highway. JR. v. Shipley Parish Council, 18 Cox, C. C. 531 ; Gl J. P. 488. 29G HIGHWAYS. [CHA.P. XVIII. Liability to Repair ratlone tenurce. — An individual may be liable to repair a highway by reason of his tenure of certain land, if it appear that those who have held the land have been immemorially accustomed to repair the highway. R. v. Hayman, Moo. & M. 401 ; R. v. Middlesex, 3 B. & Ad. 210. In such a case it is presumed that the land was originally granted in considera- tion of such repairs being done. The occupier, and not the owner, of the land is the person to be indicted for non-repair, since the public are not bound to inquire further than who is in the visible enjoyment of the property charged with the d;ity. R. v. Watts, 1 Salk. 357; see Baker v. Greenhill, 3 Q. B. 148; R. v. Sutton, 3 A. & E. 597. An individual or a corporation may likewise become liable to repair a road by reason of the proprietorship of a navigation, or by charter; 7?. v. Kerrison, 1 M. & Sel. 435; Henley v. Mayor of Lyme Regis, 5 Bing. 51 ; and in such case the liability will not be limited merely to the amount of tolls received. R. v. Sheffield Canal Company, 13 Q. B. 913. Where a highway repairable rationc tenures appears on the report of a competent surveyor not to be in proper repair, and the person liable to repair the same fails when requested so to do by the district council to place it in proper repair, the district council may place the highway in proper repair, and recover froni the person liable to repair the highway the necessary expenses of so doing. 56 & 57 Viet. c. 73, s. 25 (2). The person liable to proceedings under this section is the occupier of the land charge- able with the obligation, and there is no liability in the owner of such land to repay sums so expended. Cuckfield District Council v. Goring, (1898) 1 Q. B. 865 ; 67 L. J. Q. B. 539 ; 78 L. T. 530 ; 46 W. E. 451. Entire maintenance of Main Roads by County Council. — Every road in a county, which is for the time being a main road within the meaning of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), inclusive of every bridge carrying such road if repairable by the highway authority, is now wholly maintained and repaired by the council of the county in which the road is situate, and such council, for the purpose of the maintenance, repair, improvement, and enlargement of, and other dealing with such road, have the same powers and are subject to the same duties as a highway board, and may further exercise any powers vested in the council for the purpose of the main- SECT. IV.] REPAIR, &C. OF HIGHWAYS. 297 tenance and repairs of bridges, and the enactments relating- to highways and bridges are to apply accordingly ; and the county council have the same powers as a highway board for preventing and removing obstructions, and for asserting the right of the public to the use and enjoyment of the roadside wastes and the execution of all such matters as a general county purpose, and the costs thereof are charged to the general county account. 51 & 52 Yict. c. 41, s. 11. Strips of grass bordering the metalled parts of a main road are "road-side wastes" within this section. Curds v. Kesteren County Council, 45 Ch. D. 504. The county council and any district council may from time to time contract for the undertaking by the district council of the maintenance, repair, improvement, and enlargement of, and other dealings with any main road, and, if the county council so require, the district council shall undertake the same, and such undertaking shall be in consideration of such annual payment by the county council for the costs of the undertaking as may from time to time be agreed upon, or, in the case of difference, be determined by the Local Government Board ; and for the purposes of such under- taking the district council have the same powers and are subject to the same duties and liabilities as if the road were an ordinary road vested in them. Sect. 11 (4). In no case can a county council make any payment to a district council towards the cost of such undertaking as respects any road until the county council are satisfied by the report of their sur- veyor, or such other person as the county council may appoint for the purpose, that the road has been properly maintained and repaired, or that the improvement or enlargement of, or other dealing with the road, as the case may be, has been properly executed. Sect. 11 (5). Anything authorised or required by law to be done by or to a highway or road authority, as respects a main road maintained by a county council, be authorised or required to be done by or to that council. Sect. 11 (12). Complaint by County Council. — If at any time the county council are satisfied, on the report of their surveyor or other person appointed by them for the purpose, that any portion of a main road, the maintenance and repair of which are undertaken by any district council, is not in proper repair and condition, the county council may cause notice to be given to such district 298 HIGHWAYS. [CHAP XVII I. council requiring them to place the road in proper repair and condition ; and if such notice is not complied with within a reasonable time, the county council may do everything that seems to them necessary to place the road in proper repair and condition, and the exj)enses of so doing shall he a debt of the said district council to the county council. If any difference arises between a county council and a district council as to the refusal of the county council to make a payment under this section to the district council in respect of any undertaking or road, or as to the road having been placed in proper repair or condition previously to its becoming a main road, or as to any notice given to the district council by the county council to place a road in proper repair and condition, such difference, if either council so require, is to be referred to the arbitration of the Local Government Board. 51 & 52 Vict. c. 41, s. 11 (8), (9). Complaint by Parish Council. — A parish council (or parish meeting in a small parish) may pass a resolution that the dis- trict council has failed to maintain and repair any highway (including a footpath) in a good and substantial manner, and may complain to the county council, and the county council may remedy the evil. See Local Government Act, 1894, s. 16 (1), (2), post, Appendix. As to a parish council representing to a district council that a public right of way has become unlawfully stopped or obstructed, or that an unlawful encroachment has taken place on a roadside waste, see sect. 2G (1) of Local Government Act, 1894, post, Appendix, and ante, p. 260. The district council in exorcising the duties imposed upon them by this section are entitled to remove an obstruction which has been placed upon the roadside waste within their district, and they can recover the expenses of so doing in an action against the obstructor. Louth District Council v. West, 65 L. J. Q. B. 535 ; 60 J. P. 600. Contribution by County Council. — The county council may. if they think fit, contribute towards the costs of the maintenance, repair, enlargement, and improvement of any highway or public footpath in the county, although the same is not a main road. 51 & 52 Vict. c. 41, s. 11 (10). The county council may make SECT. IV.] REPAIR, &C. OF HIGHWAYS. 299 terms and conditions for the proper maintenance and repair of such, highways upon making such contribution. 56 & 57 Vict. c. 73, s. 25 (3). Public Footpaths. — A parish council, subject to the provisions of the Local Government Act, 1894, with respect to restrictions on expenditure, may undertake the repair and maintenance of all or any of the public footpaths within their parish, not being footpaths at the side of a public road ; but this power does not, nor does the exercise thereof relieve any other authority or person from any liability with respect to such repair or maintenance. 5G & 57 Vict. c. 73, s. 13 (2). The county council may contribute towards the cost of the maintenance, repair, enlargement, and improvement of any public footpath in the county. 51 & 52 Vict. c. 41, s. 11 (10) ; 56 & 57 Vict, c. 73, s. 25 (3). Stopping and Diverting Highways. — If any authority liable to keep any highway in repair is of opinion that so much of such highway as lies within any parish situate in a petty sessional division is unnecessary for public use, and therefore ought not to be maintained at the public expense, such authority may apply to the court of summary jurisdiction of such petty sessional division to view the highway and to make an order (with consent of parish council, infra) declaring such highway unnecessary for public use and not repairable at the expense of the public. 41 & 42 Vict. c. 77, s. 24. When the parish council (or parish meeting) deem it expedient that any highway bo stopped or diverted, the chairman must direct the surveyor to apply to two justices to view the same, and if any other party is desirous of stopping up or diverting any highway, he is, by a notice in writing, to recpiire the surveyor to submit the wish ; and if the parish council (or parish meeting) agree to the proposal, the surveyor must apply to the justices. 5 & 6 Will. 4, c. 50 ; 56 & 57 Vict. c. 73, s. 6 (1) (a), s. 19 (8). The consent of the parish council and of the district council is required for the stopping, in whole or in part, or diversion, of a public right of way within a rural parish, and the consent of the paiish council is recpiircd for a declaration that a highway in a rural parish is unnecessary for public use and not repairable at the public expense, and the parish council must give public notice 300 HIGHWAYS. [CHAP. XVIII. of a resolution to give any such consent, and the resolution will not operate — (a) Unless it is confirmed by the parish council at a meeting held not less than two months after the public notice is given ; nor (b) If a parish meeting held before the confirmation resolve that the consent ought not to be given. 56 & 57 Vict, c. 73, s. 13 (1). As to proceedings for the stoftpage or diversion of a highway, see 5 & 6 Will. 4, c. 50, ss. 84—92 ; 27 & 28 Vict. c. 101 ; 41 & 42 Vict. c. 77, supra. CHAPTEE XIX. RATES. PAGE Section I. Church Rate , . 301 II. County Rate 304 III. Poor Rate 308 1. How made and authorised 308 2. Union Assessment Committee and Valua- tion List 315 3. Persons Rateable 318 4. In respect of what Property 326 5. Appeal against a Poor Rate 327 6. Collecting and Levying a Poor Rate 330 Section I. — Church Eate. In 1868 an Act (31 & 32 Vict, c 109) was passed for the abolition of compulsory church rates. The Act recites that " church rates had for some years ceased to be made or collected in many parishes by reason of the opposition thereto, and in many other parishes where church rates had been made the levying thereof had given rise to litiga- tion and ill-feeling." The right to recover church rates by legal process is abolished, and statutable rates, which under the provisions of the statutes would be applicable partly to church rate purposes and partly to other purposes, are to be applicable to such last-named purposes only. Such portions of mixed funds, arising partly from rates affected by the Act and partly from other sources, as are derived from such other sources, are to be primarily applicable to church rate purposes. Sects. 1, 2. The right to levy by compulsory rates money due under the provisions of any statute on the security of church rates, and 302 RATES. [CHAP. XIX. rates in the nature of church rates, or ordered to be raised in the name of church rates under any such provisions, at the time of the passing of the Act, is reserved. Sect. 3. There is also reserved the full effect of enactments in private and local Acts authorising the making or levying of rates in lieu of tithes, customary payments, or other property previously appropriated by law to "ecclesiastical purposes," or in con- sideration of the abolition of tithes, or upon any contract made, or for good or valuable consideration. See sect. 5 ; and Bell v. Bassett, 52 L. J. Q. B. 22, and 50 L. T. 65. Voluntary Church Rate. — The right of vestries, and the right of making, assessing, receiving, and otherwise dealing with church rates, except so far as relates to the recovery of them, is preserved. Every ecclesiastical district with a consecrated church is in effect constituted a separate and independent parish for church rate purposes. Sect. 6. Bodies corporate, trustees, guardians, and committees have the right to pay the church rate, if they think fit, whether they or their cestui que trust be in occupation, and to have the amounts allowed in their accounts. Sect. 7. No person who makes default in paying the amount of a church rate for which he is rated is entitled to inquire into, or object to, or vote in respect of, the expenditure of the moneys arising from such church rate, and if the occupier of any pre- mises make default for one month after demand in payment of any church rate, the owner may pay the same, and is thereupon entitled, until the next succeeding church rate is made, to stand for all purposes relating to church rates (including the attend- ing at vestries and voting thereat) in the place in which such occupier would have stood. Sect. 8. Trustees may be appointed in any parish for the purpose of accepting, by bequest, donation, contract, or otherwise, and of holding any contributions which may be given to them for eccle- siastical purposes in the parish. The trustees are to consist of the incumbent and of two householders or owners, or occupiers of land in the parish, to be chosen, one by the patron, and the other by the bishop of the diocese in which the parish is situate. Sect. 9. The trustees are to be a body corporate by the name of the church trustees of the parish to which they belong, having a SECT. I.] CHURCH RATE. 303 common seal, and with power to sue and be sued in their cor- porate name. The trustees may pay over to the churchwardens, to be applied by them either to the general ecclesiastical purposes of the parish, or to any specific ecclesiastical purposes of the parish, any funds in their hands, and the funds so paid are not to be applied to any other purpose ; provided always that no power is thereby conferred on the churchwardens to take order with regard to the ecclesiastical purposes of the parish otherwise than they are now by law entitled to do ; provided also, that due regard is to be had to the directions of the donors of funds contributed for any special ecclesiastical purposes. The trustees may invest in Government or real securities any funds in their hands, and accumulate the income thereof, or otherwise deal with such funds as they think expedient, subject to the provisions of the Act. The incumbent is to be the chairman of the trustees, who are every year to lay before the vestry an account of their receipts and expenditure during the preceding year, and of the mode in which such receipts have been derived and expenditure incurred, together with a statement of the amount of funds in hand. "Ecclesiastical purposes "are defined to mean the building, re-building, enlargement, and repair of any church or chapel, and any purpose to which, by common or ecclesiastical law, a church rate is applicable, or any of such purposes. Sect. 10. "Church rate" means any rate for ecclesiastical purposes as defined by the Act. " Parish " means any parish, ecclesiastical district, chapelry, or place within the limits of which any person has the exclusive cure of souls. The above Act does not make church rates illegal ; nor does it relieve the churchwardens from the duty of repairing the church. The churchwardens were never bound to effect the repairs if they could not procure the necessary funds ; but if they can procure them they are as much bound to effect the repairs now as they were before the passing of the Act. The above Act abolishes compulsory church rates, except in cases where, at the time of the passing of the Act, money had been borrowed and remained duo on tho security of the church rate, or where the rate was applicable to purposes other than 304 RATES. [CHAP. XIX. "ecclesiastical purposes," as defined by the Act, or had been originally authorised by special legislation to be levied in con- sideration of the abolition of tithes or for other valuable con- sideration. Section II. — County Eate. Origin of. — There are various expenses to which parishes, as integral portions of counties, are liable, for which it was the custom formerly to make separate rates, but the great incon- venience of making distinct rates for these purposes induced the Legislature in 1738 (12 Geo. 2, c. 29) to provide that one general fund for the whole should be raised, called the county rate, under the direction of the county justices in quarter sessions assembled. All the former statutes relating to the assessment and collec- tion of the county rate were repealed by the 15 & 16 Vict. c. 81. The Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 3, transferred from quarter sessions to the county council the making, assessing, and levying of county rates, and the applica- tion and expenditure thereof, and the making of orders for the payment of sums payable out of such rate or out of the county stock or county fund, and the preparation and revision of the basis or standard for the county rate. The county council, as respects the business transferred to them from quarter sessions, are made subject to all the powers, duties, and liabilities which the quarter sessions or any committee thereof were subject to in respect of the business so transferred. Sect. 28 (1). The county council may delegate, with or without any restrictions or conditions, as they may think fit, any powers or duties trans- ferred to them by the Local Government Act, 1888, either to the justices of the county sitting in petty sessions or to any committee of the county council appointed in pursuance of that Act or to any district council. Sect. 28 (2). Committee to prepare Basis. — The county council of even- county are from time to time to appoint a committee for the purpose of preparing a basis or standard for fair and equal county rates. 15 & 16 Vict. c. 81, s. 2. Nothing contained in the Union Assessment Committee Act, 1862, is to apply to any assessment made by such committee. 29 & 30 Vict. c. 78, s. 1. SECT. II.'] COUNTY RATE. 305 Overseers, &3., to make Returns. — For the purpose of pre- paring such basis or standard the committee may, by order in writing signed by their clerk, direct the overseers to make returns of the full and fair annual value {i.e., the net annual value, as required to be estimated in assessing the poor rate — sect. 6) of the whole or any part of the property within the parish, &c, liable to be assessed to the county rate, with the date of the last valuation for the assessment of such parish, &c, and the name of the surveyor or other person by whom it was made. The overseers, &c, are to lay these returns before the parish council (or in a small parish the meeting) before presenting them to the committee. 15 & 16 Vict. «. 81, s. 5. Rates, &c, may be inspected. — The committee may require the said overseers, &c, to produce all parochial rates and docu- ments relating to the value or assessment of property in the several parishes, &c, and to be examined on oath touching such rates, &c. ; sect. 7 ; and they may direct that the whole or any part of a parish, &c, be valued, and may appoint valuers. Sect. 9. If the parish officers neglect to make returns, or make false returns, the expense of ascertaining the annual value is to be paid by the parish, &c. Sect. 10. Where the committee have directed a valuation, and the basis is confirmed, or not reduced below the sum set forth in the return, the cost is to be paid by the parish. Sect. 1 1 . They cannot require the production of documents relating to the assessment of the income tax or concerns in the nature of trade. 26 & 27 Vict. c. 33, s. 22. Basis to be printed. — If the committee have prepared the basis, in which the total annual value of the property in any parish, &c, is estimated at a greater or less amount than in the preceding basis, they are to cause it to be printed and copies to be sent to the overseers, charged with the collection or levy of the county rate in every parish, &c. ; and such overseers, &c, are, within twenty-one days, to call a meeting of the parish council (or in a small parish the meeting) and submit such copy to it. 15 & 16 Vict. c. 81, s. 13. The committee are also to send to the overseers, &c, a notification of a time, not less than one calendar month after the date, within which objections may s. x 306 RATES. [CHAP. XIX. be made to the proposed basis, and of a time and place for con- sidering them, and bearing tbe parties objecting. Sect. 14. Basis to be confirmed by County Council. — When the proposed basis has been finally corrected and approved by the committee, they are to lay it before the county council, by whom it will be taken into consideration, and altered, or allowed and confirmed, or referred back to the committee. Sect. 15. Appeal against Basis. — After the basis has been confirmed, any overseer, &c, or inhabitant of a parish, &c, who has reason to think such parish, &c, is aggrieved by such basis, whether on account of other parishes, &c, being omitted or rated too low, or of such parish, &c, being rated too high, may appeal to the next quarter sessions after the confirmation against such part only of the basis as affects the parishes overrated, or underrated or omitted. 15 & 16 Vict. c. 61, s. 17. In parishes with a council this power of appeal is transferred from the overseers to the council. 56 & 57 Vict. c. 73, s. 6. The appeal to the sessions is not transferred to the county council. Sect. 8. Instead of hear- ing the appeal, the sessions may adjourn it, and order, on the application of the appellant or respondent, a survey and valua- tion of any parishes, &c, in respect of which the appeal is made, and fix a subsequent session for receiving, and appoint a proper person to make, such survey and valuation. Such survey and valuation is to be reported to the sessions fixed for receiving it, and the Court then and there assembled are to hear and determine the appeal. 15 & 16 Vict. c. 61, s. 18. Costs of the appeal and valuation may be given. Sect. 19. Sessions to make Rate. — The justices at quarter sessions may, whenever circumstances appear to require it, order a fair and equal county rate to be made for all purposes to which such rate is liable, according to the basis in force for the time being ; and may assess every parish, &c, within the limits of their commis- sions, rateably and equally according to a pound rate to be fixed by such justices, upon the said basis, upon the full annual value of the property, &c, rateable to the relief of the poor. 15 & 16 Vict. c. 81, s. 21. Appeal against Bate. — The overseers, or other inhabitants of any parish, &c. [in parishes with a council this power of appeal SECT. II.] COUNTY RATE. 307 is transferred from the overseers to the council; 56 & 57 Vict. c. 73, s. 6] may appeal to the next quarter sessions against such part of the rate as affects their parishes, on account of the pro- portions assessed on the respective parishes being unequal, or of some of them being omitted or underrated, or of the appellant parish being overrated, or of the altered state of the value of the property assessed. Fourteen clear days' notice in writing is to be given to the parties against whose rate the appeal is, and to the clerk of the peace, of the grounds of appeal and of the inten- tion to try it. The sessions are either to confirm the rate, or correct such inequalities, &c, as exist therein, as well in respect of the basis as of the rate made thereon. But no rate is to be quashed on appeal in regard to any other parish, &c, unless the sessions make an entire new rate. 15 & 16 Vict. c. 81, s. 22. It is no ground of appeal that individuals in one parish are rated in a higher proportion than those in another. R. v. Blackawton, 10 B. & C. 792. As to the inequality of the proportions assessed on different parishes, see ibid., and R. v. //. Yo?-k, 2 B. & C. 771. The rate is to continue to be raised, notwithstanding an appeal against it, until the appeal is decided ; and any sums overpaid by parishes are to be refunded out of the general rate. Sect. 23. The costs of appeals are to be borne by the parishes as the sessions order. Sect. 24. Guardians to pay Rate. — A precept is to be sent to the guardians of each union stating the sums at which each parish in the union is rated, and requiring the same to be paid to the county treasurer. Sect. 26. When payable by Overseers. — If the guardians fail to pay the sum required to be paid on behalf any parish, warrants may be sent to the overseers of such parish, to collect and pay to the county treasurer the rates charged on such parish, with the addition of 10 per cent, to be applied in the same manner as the county rate ; and such overseers, &c, may reimburse themselves such additional sums, as well as the original rate, out of the moneys which they are empowered to levy for the county rate, but are to receive no compensation for their trouble or expense. Sect. 27. If the overseers, &c, fail to pay, the rate may be levied by distress and sale of their goods. Sect. 28. Parishes not in arrear with contributions, whose moneys have been x2 308 RATES. [CHAP. XIX. applied by the guardians to the use of other parishes, are to he reimbursed by such other parishes the 10 per cent, and all costs. Sect. 29. Section III. — Poor Bate. 1. How made and authorized. Statutes authorizing. — The funds for the relief of the poor are supplied by the poor rate which is levied under the 43 Eliz. c. 2, s. 1, in parishes. The guardians of an union may agree, with the approbation of the Local Government Board, that the parishes comprised in the union shall be deemed one parish for the purpose of rating, in which case all expenditure for the poor is to be in common. 4 & 5 Will. 4, c. 76, ss. 34, 35, 36. See further as to combina- tion of parishes and unions for poor relief, post, p. 337. By whom made. — The power of making a poor rate is vested exclusively in the [majority of the churchwardens and] overseers of parishes. 43 Eliz. c. 2. The Local Government Act, 189 J, declares that the churchwardens of every rural parish are no longer to be overseers, but that additional overseers may be appointed in their place. Any reference in any Act to the churchwardens and overseers as respects any rural parish, except references relating to affairs of the church, are to be construed as referring to the overseers. 56 & 57 Vict. c. 73, s. 5. The Court will compel overseers to make a sufficient rate by mandamus if necessary ; R. v. Edwards, 1 "W. 131. 637 ; or to rale a particular description of property improperly omitted ; but they will not interfere with the equality of the rate or assess- ment, this being a matter within the jurisdiction of the quarter sessions, it. v. Barnstaple, 1 Barnard. 137. Requisites of Rate. — The rate must include the names of all persons rateable within the parish or township, and it must state the property in the parish with respect to which the party is rated. R. v. Aire and Colder Navigation, 2 B. & C. 713. And " every such rate shall, in addition to any other particular which the form of making out such rate shall require to be set forth, contain an account of every particular set forth at the head of the respective columns, in the form given in the schedule, so far SECT. III.] POOR RATE. 309 as the same can be ascertained ; and the churchwardens and overseers, or other officers, whose duty it may be to make and levy the rate, or such a number of them as are competent thereto, shall, before the rate is allowed by the justices, sign the declaration, and otherwise the rate shall be of no force or vali- dity." G & 7 Will. 4, c. 96, s. 2. The Union Assessment Committee Act, 1862 (25 & 26 Vict. c. 103), enacts that in every parish where a valuation list under that Act {post, p. 315) has been approved and delivered to the overseers no poor rate is to be of any force, unless the heredita- ments included in such rate be rated according to the annual rateable value thereof appearing in the valuation list in force in such parish ; and instead of the declaration required by the (5 & 7 Will. 4, c. 96, s. 2, the overseers are, before the rate is allowed by the justices, to sign a declaration in the form set out in the schedule. But where by reason of any alteration in the occupation of any property included in such list, such property has become liable to be rated in parts not mentioned in such list as rateable hereditaments, and separately rated therein, such parts may, where a supplemental valuation list showing the annual rateable value of such parts has not been approved and delivered as required, and whether such list has or has not been made, be rated according to such amounts as shall be fair appor- tioned parts of the annual rateable value appearing in such valuation list so in force of the hereditaments out of which such parts have been constituted. Sect. 28. In every parish, after such valuation list has been so approved and delivered, every poor rate shall show the annual rateable value of each hereditament comprised therein, according to the valuation list in force in such parish. Sect. 43. The overseers when they make a poor rate are to set forth in the title of the rate the period for which the same is estimated, and if the rate is payable by instalments, the amount of each instalment and the date at which each instalment is payable. 32 & 33 Vict. c. 41, s. 14. Allowance of Rate. — The 43 Eliz. c. 2, requires the consent of two or more justices, dwelling in or near the parish, &c, whereof one is to be of the quorum, which is called "their allowance." In this they act ministerially merely, and have no discretion to refuse the allowance, though they may think the rate improperly 310 KATES. [CHAP. XIX. made. R. v. JJ. Dorchester, 1 Stra. 393. They may be com- pelled by mandamus to allow the rate. R. v. Edwards, 1 W. Bl. Bep. 637 ; R. v. Lord Godolphin, 1 Dowl. & L. 830. Before the rate is allowed by the justices a declaration must be signed by the overseers that the rate is in conformity with the valuation list in the form given in the schedule to 25 & 26 Vict. c. 103, s. 28. See Re Justices of North Staffordshire, 23 L. J. M. C. 17. A poor rate is deemed to be made on the day when it is allowed by the justices, and if the justices sever in their allowance, then on the day of the last allowance. 32 & 33 Vict. c. 41, s. 17. Alteration of Rate. — After the rate has been thus allowed, it should not be altered by inserting the names of others, even with the magistrates' approbation. R. v. Barrett, 2 Doug. 465. Excusal on ground of Poverty. — Two or more justices in petty sessions may, upon application, and with the consent of the overseers or other parish officers, and on proof of the party's inability from poverty to pay such rate, excuse the payment, and strike out the name of such party from the rate. 54 Geo. 3, c. 170, s. 11. Value on which made. — The poor rate is at the present day imposed in respect of the value of the occupation of the rateable subject, and not the value of the rateable subject itself. In order to estimate the value of the occupation, it is enacted by 6 & 7 Will. 4, c. 96, s. 1, that no rate for the relief of the poor shall be allowed by any justices, or be of any force, which shall not be made upon an estimate of the net annual value of the several hereditaments rated thereunto ; that is to say, of the rent at which the same might be reasonably expected to let from year to year, free of all the usual tenants' rates and taxes, and tithe commutation rent-charge (if any), and deducting there- from the probable annual average cost of the repairs, insurance, and other expenses (if any) necessary to maintain them in a state to command such rent. Survey for new Valuation. — The Local Government Board, upon a representation in writing from the guardians of any union or parish under their common seal, or from the overseers, or other officers competent to the making and levying the # rate, that a fair and correct estimate cannot be made without a new SECT. III.] POOR RATE. 311 valuation, may order a survey to be made of the messuages, lands and other hereditaments liable to poor rates in such parish, or in all or any of the parishes of such union, and a valuation to be made of the said messuages, &c, according to their annual value. 6 & 7 Will. 4, c. 96, s. 3. The guardians of an union may, on the application of the majority of the overseers of any parish comprised in it, or of any person assessed to the poor rate, cause a new valuation to be made of part only of the rateable property in the parish, and charge the expense to the overseers or the party applying. 11 & 12 Vict. c. 110, s. 7. These provisions apply to the guardians of a parish not comprised in any union. 31 & 32 Vict. c. 122, s. 28. Rate must be equal. — All persons must be rated on the same scale. If any one be rated on a comparatively higher scale than others, he may appeal. R. v. LaJcenham, 1 Bott. 129. But the inequality must be manifest, or the Court will presume the rate to be equal ; and they will not presume it to be unequal because lands and houses are rated differently. R. v. Brograve, 4 Burr. 2491 ; R. v. Butler, Cald. 93; R. v. Tomlinson, 9 B. & C. 163. The proportion must ever depend upon local circumstances. R. v. Sandwich, 2 Dougl. 562. Period for which made. — A standing rate cannot be made, it must be varied as circumstances change. R. v. Audley, 2 Salk. 526. A rate must not be retrospective. R. v. Goodcheap, 6 T. E. 159. There cannot be two rates in force for the same period. R. v. Fordham, 11 A. & E. 73. "When the overseers make a rate they are to set forth in the title of the rate the period for which the same is estimated, and if the same is pay- able by instalments the amount of each instalment. 32 & 33 Vict. c. 41, s. 14. Publication of. — The 17 Geo. 2, c. 3, s. 1, requires that the overseers, &c, shall give public notice of the rate on the next Sunday after it has been allowed by the justices, otherwise it is null and void. This is done by affixing the notice, previously to divine service, on or near to the principal doors of all the churches and chapels within the parish or place for which it is made. 7 Will. 4 & 1 Vict. c. 45, s. 2. Publication by affixing a notice upon the church door previously to the evening service 312 RATES. [CHAP. XIX. is sufficient. Burneley v. Methley, 28 L. J. M. C. 152. Where a poor rate is made for a parish in which there is no church or chapel to which the notice can be affixed, the rate is to be deemed duly published if, within 14 days after it is made, notice of it has been affixed in some public and conspicuous place or situation in the parish. 45 & 46 Yict. c. 20. If notice is not given on the next Sunday, it is a radical defect in the rate itself, which is therefore a nullity. R. v. Neivcomb, 4 T. R. 368 ; Fox v. Davies, 6 C. B. 11. The production of the book containing a poor rate, with the allowance of the rate by the justices is, if the rate is made in the form prescribed by law, prima facie evidence of the due making and publication of such rate. 32 & 33 Vict. c. 41, s. 18. Demand of Inspection. — The 17 Geo. 2, c. 3, s. 2, enacts that the overseers shall permit inhabitants of the parish to inspect the rates at all seasonable times ; and by sect. 3, if any overseer does not permit an inhabitant to inspect the rate, he is to forfeit for every such offence to the party aggrieved 207. An assistant overseer is liable to this penalty if, on demand, he refuses to produce a rate-book in his custody. Bennett v. Edwards, 8 B. & C. 702. The persons entitled to demand inspection under this Act are the inhabitants. Wethered v. Calcutt, 4 M. & Gr. 566. Any person rated may, at all reasonable times, take copies of or extracts from the rate without paying anything for the same ; and in case the person having the custody of such rate refuses to permit such person so rated to take copies thereof, or extracts therefrom, he is liable to a penalty of 51. 6 & 7 Will. 4, c. 96, s. 5. As to inspection of valuation list, post, p. 315. Sate in Aid. — If the said justices perceive that the inhabitants of any parish are not able to raise sufficient for the relief of their poor, they may assess any other of other parishes, or out of any parish within the hundred, or if the hundred is too poor, the justices at their quarter sessions are to assess any other of other parishes, or out of any parish, within the same county, in such sums as they think fit. 43 Eliz. c. 2, s. 2. This rate may be made on particular persons onlv, or on the whole parish. R. v. Knightley, Comb. 309 ; Anon., 1 Tent. 350 ; R. v. Borough fen, Foley, 29. SECT. III.] POOR RATE. 313 If the parish, rated in aid be within the same hundred, the rate must be made by two justices out of sessions, and not by the quarter sessions. Re Dimchurch, 2 Salk. 480. The order must show that the parishes are in the same hundred. Boroiighfen v. St. John's, Foley, 27; R. v. Mil/and, 1 Burr. 576. If the parishes be not in the same hundred, but in the same county, the order must be made by the quarter sessions, and it is not necessary for such order to show that two justices have adjudged the inability of the hundred. R. v. Percivall, 1 Stra. 56. County justices cannot make a rate in aid of a parish in a borough having exclusive jurisdiction. R. v. Holbeche, 4 T. R. 778. In a city or borough which is a county of itself and not within a hundred, it seems doubtful who ought to make a rate in aid. The Recorder, who is sole judge at quarter sessions, appears to be expressly prohibited by the 6 & 7 Will. 4, c. 105, s. 8. The justices must themselves assess the rate. St. Peter and St. Paul, Marlborough, 2 Stra. 1114. And an order, "as long as we the said justices shall think proper," is bad; R. v. St. Mary, Marlborough, 1 Stra. 700 ; but a sum in gross for a year is good ; R. v. Knightley, Comb. 309 ; or to raise the sum of 60/.; St. Peter and St. Paul, Marlborough, 2 Stra. 1114; but if the rate be to levy a certain sum in the pound, it is bad. R. v Tclscombe, 1 Stra. 314. Exemption of Agricultural Land from Payment of Half of Rates. — The Agricultural Rates Act, 1896, made an important alteration in the incidence of local expenditure by transferring a burden of more than 1,300,000/. from local rates in England and Wales to imperial revenue. The Act relieves the occupiers of agricultural land of a large part of the rates which had previously fallen ujion them ; and provides for the deficiency thus created being made good by an annual grant from the state. For a period of 5 years from 31st March 1897, the occupier of agricultural land of England is liable, in the case of every rate (except those mentioned below) to pay one-half only of the rate in the pound payable in respect of buildings and other heredita- ments. 59 & 60 Vict. c. 16, s. 1. The excepted rates are : — (1.) A rate which the occupier of agricultural land is liable, as 314 RATES. [CHAP. XIX. compared with the occupier of buildings or other here- ditaments, to be assessed to or to pay in the proportion of one-half or less than one-half, or (2.) "Which is assessed under any commission of sewers or in respect of any drainage, wall, embankment, or other work for the benefit of the land. Ibid. The expression "agricultural land " in the above enactment means " any land used as arable, meadow, or pasture land only, cottage gardens exceeding one quarter of an acre, market gardens, nursery grounds, orchards, or allotments, but does not include land occupied together with a house, as a park, gardens, other than as aforesaid, pleasure grounds, or any land kept or pre- served mainly or exclusively for purposes of sport or recreation, or land used as a racecourse." 59 & 60 Yict. c. 9. Glasshouses in a market garden, although used only for the cultivation of the soil covered by the houses, are not, if buildings, included in the term "market garden" so as to be exempted under sect. 1, from payment of half the rates. Smith v. Richmond, (1898) 1 Q. B. 683; 67 L. J. Q. B. 439; 78 L. T. 174. The occupier of a market garden covered with such glasshouses is not an occupier of agricultural land within the meaning of the Act. Ibid. Purposes of Rate. — " The expenditure out of the poor rate during the year ended at Lady-day, 1897, on purposes wholly unconnected with the relief of the poor, amounted to 13,149,547/., which was an increase of 790,054/. as compared with the expen- diture in the preceding year. This amount included payments on account of borough rates, county contributions and metro politan police, contributions to highway boards, burial boards, school boards, parish councils, parish meetings, commissioners of baths and wash-houses and of public libraries, and to rural district coun- cils in respect of general expenses (including highway expenses) and certain special expenses, payments for the expenses of school attendance committees, expenses connected with the registration of births, deaths and marriages, and the registration of voters, vaccination fees and expenses, cost of jury lists, school fees for non-pauper children, and other minor payments." 27th Annual Report of Local Government Board. SECT. III.] POOR RATE. 315 2. Union Assessment Committee and the Valuation List. How appointed. — The board of guardians of every union [and of every parish not included in an union ; 43 & 44 Vict. c. 7] are, at their first meeting after the annual election of guardians, to appoint from among themselves any number not less than six nor more than twelve to be a committee, to be called the assess- ment committee of the union for the investigation and super- vision of the valuations to be made. 25 & 26 Vict. c. 103, s. 2. Their Authority. — The authority of such committee appointed for any union is to extend over every parish comprised in such union. Sect. 7. Their Clerk. — The committee are to employ the clerk or assistant clerk of the board of guardians as their clerk, with such remuneration for his services as the Local Government Board shall sanction. Sect. 10. Their Proceedings. — The proceedings of the committee are to be entered in books and signed by the presiding chairman. The books are to be open to inspection. Sect. 11. The board of guardians are, in every April, to report the proceedings of their assessment committee to the Local Government Board. Sect. 12. The committee may require returns from overseers, &c, and examine persons attending before them. Making "Valuation List."- — The overseers of each parish are to make a list of all the rateable hereditaments in such parish, with the annual value thereof respectively, and may revise such valuation, and the overseers are to sign every list so made by them, and such list is to be styled "The Valuation List." Sect. 14. Houses newly erected and not yet occupied are rate- able hereditaments within this Act, and ought to be inserted in the valuation list. R. v. Maiden, L. E. 4 Q. B. 32G ; 10 B. & S. 323. Inspection of Valuation List. — A copy of the valuation list is to be forthwith delivered to the board of guardians, and the overseers are to give public notice of the deposit of such list on the following Sunday, and such notice is to be given in the same manner, and all persons assessed or liable to be assessed to tho relief of the poor of such parish are to have the like right of 316 RATES. [CHAP. XLX. inspecting, and of demanding and taking copies of and extracts from sncli list, as in the case of a poor rate allowed by the justices (ante, p. 312), the overseers, at the expiration of 14 days from the giving of such notice, are to transmit the list to the committee, and any overseer or other ratepayer has the right of inspecting and taking copies of and extracts from any of the lists so transmitted. Sect. 18. By whom and how objected to. — Any overseer who has reason to think that such parish is aggrieved by the valuation list, or any person who may feel himself aggrieved on the ground of the unfairness or incorrectness in the valuation of any hereditaments included therein, or on the ground of the omission of any rate- able hereditament from such list, may, before the expiration of 28 days after the notice of the deposit, give to the committee and the overseers a written notice of his objection, specifying the grounds thereof, and where the ground of any objection is unfairness or incorrectness in the valuation of any hereditaiuent, in respect of which any person, other than the person objecting, is liable to be rated, or the omission of such hereditament, must also give written notice of such objection, and of the ground thereof to such other person. Sect. 18. It would seem that in a rural parish with a council that this power of the overseers to object is transferred to the parish council. 56 & 57 Vict. c. 73, s. 6 (1) (c) (i). The right of private ratepayers to object still remaining. Objections, how heard and decided. — The committee are to hold meetings to hear objections, and may direct a further valu- ation to be made and correct the valuation, and when corrected approve the same. 25 & 26 Vict. c. 103, ss. 19 and 20. They are bound to hear an agent for the objecting ratepayer, although he is not a barrister or solicitor. Ii. v. St. Mary Abbots, (1891) 1 Q. B. 378; 64 L. T. 240; 55 J. P. 439. In what custody Lists to be kept. — When the valuation list has been approved by the committee it is to be delivered to the overseers of the parish to which it relates, and is to be dealt with in the same way as the poor-rate books, and is to be pro- duced by the overseers before the justices, upon application, for the allowance of rates, and at the sessions where an appeal is to SECT. III.] POOR RATE. 317 be heard, and also at such times and places as the committee may direct. Sect. 23. Supplemental Valuation List. — The overseers are to prepare supplemental valuation lists in case of additions to or alterations in the rateable property of the parish. Sect. 25. New Valuation. — The committee upon the application of any person aggrieved by the valuation list in force in any parish, or where they themselves think the same expedient, direct a ne w valuation of the rateable hereditaments in such parish, and new or supplemental valuation lists. Sect. 2G. Paid Valuer. — The guardians may appoint a paid valuer to assist the assessment committee. 31 & 32 Vict. c. 122, s. 32. Appeal against Valuation List. — If the overseers of a parish in an union [in rural parishes with a council, the parish council (56 & 57 Vict. c. 73, s. 6 (1) (c) (i) )] think that such parish is aggrieved by the valuation list, whether it be on the ground that the rateable hereditaments comprised in the valuation list of such parish are valued at sums beyond the annual rateable value thereof, or on the ground that the rateable hereditaments comprised in the valuation list of some other parish in such union are valued at sums less than the annual rateable value thereof, they may appeal to the quarter sessions of the county or borough in which the greatest number of parishes belonging to the union is situated. 25 & 26 Vict. c. 103, s. 32. On the hear- ing of such an appeal the Court may adjourn the same, and order a survey or valuation to be made. Sect. 33. Expenses of Overseers. — The expenses of overseers as to rating incurred with consent of the vestry [in rural parishes, of the council (56 & 57 Vict. c. 73, s. 6 (1) (a)) ; or in a small parish, of the meeting (sect. 19 (4) )], or allowed by assessment committee, may be charged on the poor rates. 27 & 28 Vict. c. 39, s. 7. The guardians may, with the consent of the Local Government Board, borrow money for valuation expenses. Sect. 8. Sending List to Clerk of Peace. — The clerks of assessment committees are to furnish clerks of the peace with totals of valuation list annually in the month of December. Sect. 9. 318 RATES. [CHAP. XIX. 3. Persons Rateable. The poor rate is to be made " by taxation of every inhabitant, parson, vicar and other, and of every occupier of lands, houses, tithes impropriate, or propriations of tithes, or coal mines in the parish." 43 Eliz. c. 2, s. 1. Extended to improved or drained waste and barren lands, fens, &c, by 17 Geo. 2, c. 37. The Act of Elizabeth is further extended by 37 & 38 Vict. c. 54, s. 11, to (1) land used for a plantation or a wood, or for the growth of saleable underwood, and not subject to any rights of common ; (2) to rights of fowling, of shooting, of taking or killing game and rabbits, and of fishing when severed from the occupation of the land ; and (3) to mines of every kind. Ambassador, or his Servant. — A foreign ambassador cannot be rated in respect of his residence, nor can any of his suite be rated, if they be clearly within the meaning of the stat. 7 Anne, c. 12. An attache to an ambassador in this country of a foreign State is not liable for rates assessed on his private residence. Parkinson v. Potter, 16 Q. B. D. 152 ; 55 L. J. Q. B. 153. Parson and Vicar. — The parson and vicar, whether resident in the parish or not, are liable to be rated for their tithes in the parish. P. v. Turner, 1 Stra. 77; P. v. Capel, 12 A. & E. 382; although they let them to their parishioners. P. v. Bartlett, 16 Vin. Abr. 427. They are liable also with respect to oblations and other offerings. P. v. Carylon, 3 T. R. 385. They are also liable to be rated for other property in their occupation in the same manner as other persons. But if they let their tithes to a tithe farmer, the farmer only can be rated for them. P. v. Lam- beth, 1 Stra. 525. A rate paid to a rector on houses under a local Act was held not rateable to the poor as paid in lieu of tithes. P. v. Christopherson, 16 Q. B. D. 7 ; 55 L. J. M. 0. 1. Poor rate upon a tithe rent-charge must be recovered bydistress against the occupiers of the land out of which the rent-charge issues, and not against the owner of the rentcharge. Lamping h v. Norton, 22 Q. B. D. 452. Occupier. — The word occupation implies possession, and, therefore, the tenant, and not the landlord, is the occupier within the meaning of the statute ; P. v. Parrot, 5 T. R. 593 ; provided the tenant has the legal right to occupy. But where SECT. III.] POOR RATE. 319 the demise does not operate, as if tolls be let by parol instead of by deed, which is a nullity, the owner and not the lessee is rateable. R. v. Marquis of Salisbury, 8 A. & E. 716. So, where the landlord receives a portion of the land itself, as ore in kind, instead of rent, he is rateable. R. v. St. Agnes, 3 T. E. 480 ; R. v. St. Austell, 5 B. & Aid. 693; Reg. v. Crease, 11 A. & E. 677. But where the owner occupies by his servants he is rateable, for actual residence is not essential to occupancy ; R. v. Aberystwith, 10 East, 354; and the actual occupation of any portion will make him rateable for the whole. Thus, where a man hired a house, but resided elsewhere, keeping only some corn for his horse and some garden tools therein, but occasionally came there for an hour or two, and allowed a man and his wife to live in the kitchen, which did not communicate with the rest of the house, he was held rateable for the whole. R. v. St. Mary's, Durham, 4 T. E. 477 ; Bursledon Overseers v. Clarke, 61 J. F. 261. But where a landlord occupies a coal mine and lets the surface to another, these are distinct subjects of occupation, for which each is separately rateable. R. v. Wellbank, 4 M. & Sel. 222. See R. v. Mayor of London, 4 T. E. 21 ; R. v. St. Martin-in-the- Fields, 3 Q. B. 204. If a landlord puts a man into a vacant farm to take care of it, he is not rateable as an occupier, since it does not follow that the landlord becomes occupier when the tenant ceases to be so. R. v. Morgan, 2 A. & E. 618, n. If a building is let out in chambers, each occupier is separately rateable. R. V. St. George's Union, L. E. 7 Q. B. 90; 41 L. J. M. C. 30; Allchurch v. Hendon, (1891) 2 Q. B. 436. Servant. — A person occupying merely as a servant is not to be rated, 7?. v. Terrott, 3 East, 506 ; even though the occupation be treated as part of the wages. R. v. Field, 5 T. E. 587. But if a house be given to a servant upon such terms that he has the exclusive occupation of it, he will be rateable, even though his master is bound to pay the rent, taxes and rates. R. v. Wall Lynn, 8 A. & E. 379 ; R. v. Gardner, Cowp. 79. See Smith v. Seghill, L. E. 10 Q. B. 422 ; 44 L. J. M. C. 114. Occupation must be exclusive. — The occupier is not rateable unless he has some exclusive interest in the land. See Roads v. Overseers of Trumpington, L. E. 6 Q. B. 56 ; 40 L. J. M. C. 35 ; a tenant at will is rateable. Bute v. Grifidal, 1 T. E. 338, but a 320 RATES. [CHAP. XIX. mere licensee is not. L. §• N. W. Ry. Co. v. Buckmaster, L. ~R. 10 Q. B. 444. An occupation of land which, is at all times subject to the control of the owner is not such an occupation as to render the occupier rateable to the poor. Rochdale Canal Co. v. Breioster, (1894) 2 Q. B. 852; 64 L. J. Q. B. 37; 71 L. T. 243. The House of Lords, however, have held that the occupiers of moorings and a derrick in the Thames, removable at the pleasure of the Conservators at a week's notice, are rateable ; Cory v. Bristoiv, 2 App. Cas. 262 ; 46 L. J. M. C. 273 ; and lands and heredita- ments used temporarily or permanently for exhibition of advertise- ments, or for the erection of any hoarding, &c, used in the same way, are now rateable. 52 & 53 Yict. c. 27. A building con- tractor who had let a hoarding for advertisements has been held to be in beneficial occupation, and therefore rateable under this Act. Chappell v. Overseers of St. Botolph, (1892) 1 Q. B. 561. Book-stalls at a railway station are not separately rateable if there be no exclusive occupation of the railway platform. Smith v. Lambeth Assessment Committee, L. R. 10Q.B. 327; 52 L. J. M.C 1. Beneficial Occupation. — To render parties liable to be rated as occupiers they must have an occupation beneficial in its nature, that is, capable of yielding a profit to the occupier. It is not necessary that it should be such as to yield a pecuniary profit, but the true test is whether it is of value to the occupier. London C. C. v. Erith Churchwardens, (1893) A. C. 562 ; 63 L. J. M. C. 9. Charitable Institutions. — By the decision of the House of Lords in the case of St. Thomas 's Hospital v. Stratton, L. R. 7 H. L. 477 ; 45 L. J. M. C. 23, charitable institutions are no longer exempt from rating. In that case it was held that the principle laid down in the Mersey Docks case, supra, and Greiy v. University of Edinburyh ; L. E. 1 H. L. 348 ; that trustees of property held for public purposes are rateable out of such pro- perty. As to what is a "public charity," see Hall v. Derby, 16 Q. B. D. 163; 55 L. J. M. C. 21. Court Houses, &e. — Where county courts and judges' lodgings were erected under an Act of Parliament and vested in the justices, as trustees for public purposes only, the lodgings being used by the judges during the assizes and by the justices during the sessions, and containing sleeping apartments, plate and wine ; it was held, that this was not a rateable occupation by SECT. III.] POOR RATE. 321 the justices. R. v. J J. Worcestershire, 11 A. & E. 57 ; Hodgson v. Local Board of Health of Carlisle, 8 El. & B. 116; see also R. v. Manchester, 3 E. & B. 336, where a building used exclu- sively as a county court was held not rateable on this ground. Buildings occupied for the county police, being in the occupa- tion of the Crown for public purposes, are exempt from rate- ability to the poor rate according to the principle recognized in Jones v. Mersey Docks, supra. But a house occupied by a super- intendent of police, such house being no part of the police station, does not come within the recognized heads of property which is treated as Crown property, and the superintendent therefore was held to be rateable as the occupier. Martin v. West Derby Assessment Committee, 1 1 Q. B. D. 145 ; 52 L. J". M. C. 56 ; 48 J. P. 775. Residences beneficially occupied by the chief constable and chief police officers within the precincts of the barracks of the county constabulary are rateable. Showers v. Chelmsford, (1891) 1 Q. B. 339. County councils are rateable in respect of the occupation of property for administrative pur- poses, as such purposes are not Crown purposes ; Middlesex C. C. v. St. George's, Hanover Square, (1897) 1 Q. B. 64 ; 66 L. J. Q. B. 101 ; also for premises vested in and occupied b} r them for the purposes of the administrative business of the county, although the same premises are also used by other persons for Crown purposes. Worcestershire C. C. v. Worcester Union, (1897) 1 Q. B. 480; 66 L. J. Q. B. 323. Workhouses. — Guardians of the poor are rateable in respect of their occupation of a workhouse, whether it be in their own or in another parish ; for although the occupation is not benefi- cial to the guardians individually, yet the most beneficial mode of relieving the poor is an advantage to the body. Gov. Bristol Poor v. Wait, 5 A. & E. 1 ; R. v. Wallingford Union, 10 A. & E. 259. Actual Profit need not be made. — If the occupation be of a beneficial nature and capable of producing profit communions annis, it is immaterial whether an actual profit has been made in any particular year. Thus a dock company is rateable, although they have expended more than the amount of dues received in repairs during the year. 7?. v. Hull Dock Co., 5 M. & Sel. 394. So, occupiers of a coal mine who worked it at a S. Y 322 RATES. [chap. XIX. loss, for the purpose of more advantageously working an adjoin- ing mine through it, were held rateable. R. v. Parrot, 5 T. B. 593. But if the coal be exhausted, the subject of occupation is gone, and there is no rateability. R. v. Bedford, 8 East, 387. So, also, the proprietors of a bridge are rateable for it, where they might, if the speculation turned out well, receive seven and a half per cent, on their shares, although, in fact, the receipts were all absorbed by debts and incumbrances. R. v. Blaclfriars Bridge Co., 9 A. & E. 828. See R. v. Vange, 3 Q. B. 242. The result of the decisions is, first, that property must be valued in communibus annis, for the rent at which the property may be expected to let must be based on an average of past years ; R. v. Abney Park Cemetery, L. K. 8 Q. B. 515 ; 42 L. J. M. C. 124 ; secondly, the entire value of the property occupied within the year is to be taken. R. v. Whaddon, L. B. 10 Q. B. 230; 44 L. J. M. C. 73. Churches and Chapels. — No persons are to be rated to any poor rates for any church, district church, chapel, meeting-house or premises, or for such part thereof as is exclusively appro- priated to public worship, and which (other than churches, district churches, and episcopal chapels of the Established Church) are duly certified for the performance of such religious worship. 3 & 4 Will. 4, c. 30. The user for Sunday or infant schools, or for the charitable education of the poor, will not render them liable to rates. Sect. 2. The Ecclesiastical Com- missioners are not liable to be rated for land attached to the church. Angell v. Paddington Vestry, L. B. 3 Q. B. 714 ; 37 L. J. M. C. 171. Schools. — In calculating the rateable value of schools occupied by the School Board, the School Board itself ought to be con- sidered as a possible hypothetical yearly tenant of the premises, and the rateable value calculated by the rent which the board would be willing to pay for the premises for use as schools. R. v. London School Board, 17 Q. B. D. 738 ; 55 L. J. M. C. 169. "A certified industrial school" is rateable; R. v. West Derby, L. E. 10 Q. B. 283; Durham C C. v. Chcster-le-Street, (1891) 1 Q,. B. 330 ; so are premises occupied as a reformatory school, certified and carried on under 29 & 30 Vict. c. 117, s. 4. Tunmcliffe v. Overseers of Birhdale, 20 Q. B. D. 280 ; 56 L. J. M. C. SECT. III.] POOR RATE. 323 109. Sunday and ragged schools maybe exempted by the rating authority from the payment of rates. 32 & 33 Vict. c. 40. Voluntary elementary schools are exempt from the payment of rates except to the extent of any profit derived by the managers of the school from the letting thereof. 60 Vict. c. 5. Successive Occupants. — If the occupier assessed in the rate ■when made ceases to occupy before the rate has been wholly discharged, or if the hereditament being unoccupied at the time of the making of the rate becomes occupied during the period for which the rate is made, the overseers are to enter in the rate- book the name of the person who succeeds or comes into the occupation, and the date when such occupation commences ; and such occupier is henceforth deemed to have been actually rated from the date so entered by the overseer, and be liable to pay so much of the rate as is proportionate to the time between the commencement of his occupation and the expiration of the period for which the rate was made. 32 & 33 Vict. c. 41, s. 16. The outgoing occupier is only liable to pay so much of the rate as is proportionate to the time of his occupation, notwithstanding that he may not be succeeded in his occupation by an incoming tenant. 45 & 46 Vict. c. 20. New Buildings. — When a new house or building is occupied in any parish where the poor rate is not made under the pro- visions of a local Act, which house or building was incomplete or not fit for occupation, or was not entered as such in the valuation list in force in the parish at the time when the current rate for the time being was made, the overseers may enter such house or building, with the name of the occupier thereof, and the date of the entry, in the rate-booh, and require the occupier to pay such amount as according to their judgment shall be the proper sum, having due regard to the rateable value and the time which has elapsed from the making of the current rate to the date of entry. 31 & 32 Vict. c. 122, s. 38. Such occupier is considered as actually rated from such date, and is subject to the penalty of distress for non-payment, and has a power of appeal. Ibid. When the overseers so enter the said house or building in the rate-book, they must forward to the assessment committee of the union a supplemental list with reference to such building, and y2 324 RATES. [chap. XIX. the same is to be dealt with as a supplemental list made by the overseers under sect. 5 of Union Assessment Committee Act, 1862. Rating Landlords of small Tenements, &c. — Owners of small tenements can now be rated to the relief of the poor instead of the occupiers under the provisions of the Poor Rate Assess- ment Act, 1869. Sturges Bourne's Act (59 Geo. 3, c. 12), s. 19, is repealed by implication by virtue of the provisions of the subsequent Assessment Acts. Churchwardens of West Ham v. Fourth City Mutual Building Society, Div. Ct., (1892) 1 Q. B. 654. Where the rateable value of an hereditament situated in the metropolis does not exceed 207., or in the city of Liverpool 13/., or in the city of Manchester or borough of Birmingham 10/., or situated elsewhere 8/., and the owner is willing to enter into a written agreement with the overseers to become liable to them for the poor rates in respect of such hereditament for any term not less than one year, and to pay the poor rates, whether the hereditament is occupied or not, the overseers may, subject to the control of the vestry, agree with the owner to receive the rates from him, and to allow to him a commission not exceeding 25 per cent, on the amount thereof. 32 & 33 Yict. c. 41, s. 3. The vestry (parish council in rural districts, and parish meeting in a small parish) may order that the owners of all such here- ditaments shall be rated instead of the occupier, and thereupon as long as the order is in force — 1. The overseers shall rate the owners, and allow them a de- duction of 15 per cent, from the amount of the rate : 2. If the owner of one or more rateable hereditaments gives written notice to the overseers that he is willing to be rated for any term not less than a year in respect of all such rateable hereditaments of which he is the owner, whether the same be occupied or not, the overseers are to rate such owner accordingly, and allow him a further deduction not exceeding 15 per centum from the amount of the rate during the time he is so rated : 3. The vestry (parish council, or in a small parish the meeting) may rescind any such order after a day to be fixed by them, such day not being less than six months after the date of such resolution. This section does not apply to any here- SECT. 111.] POOR RATE. 325 ditament in which a dwelling-house is not included. 32 & 33 Vict. c. 41, s. 4. The rating authority is only entitled to order the owner of a hereditament to he rated instead of the occupier, so long as the rateahle value of such here- ditament does not exceed the limits specified by sect 3. Overseers of Norwood v. Sailer, (1892) 2 Q. B. 118. This order extends to, and includes the highway rate. 45 & 46 Vict. c. 27. If owners omit to pay rates due on the 5th of January before the 5th of June they forfeit the commission. 32 & 33 Vict. c. 41, s. 5. Such payments of rates by occupiers or owners are to be deemed a payment of the full rate by the occupier for the purpose of any qualification or franchise which, as regards rating, depends upon the payment of the poor rate. Sect. 7. Where the owners omit to pay the rates, the occupiers paying the same may deduct the amount from the rent, and the receipt for such rate is a valid discharge of the rent to the extent of the rate so paid. Sect. 8. An owner so paying the poor rate to give names of occupiers. Sect. 9. Every owner so rated may appeal against the valuation list and rate. Sect. 13. Tenements Let for Short Terms. — The occupier of any rateable hereditament let to him for a period not exceeding three months is entitled to deduct the amount paid by him in respect of any poor rate assessed upon such hereditament from the rent due or accruing due to the owner, and every such payment is to be a valid discharge of the rent to the extent of the rate so paid. 32 & 33 Vict. c. 41, s. 1. Such occupier need not pay to the over- seers at one time or within four weeks a greater amount of the rate than would be due for one quarter of the year. Sect. 2. Entering Name in Eate-book. — The overseers, in making out the poor rate, must, in every case, whether the rate is collected from the owner or occupier, or the owner is liable to the payment of the rate instead of the occupier, enter in the occupier's column of the rate-book the name of the occupier of every rateable here- ditament, who is then deemed to be duly rated for any qualifica- tion or franchise. 32 & 33 Vict. c. 41, s. 19. This enactment is 326 RATES. [chap. XIX. of general application, and does not apply exclusively to cases where an agreement has been made under sect. 3, or an order under sect. 4. 41 & 42 Yict. c. 26, s. 14. 4. In respect of ivhat Property. "Want of space renders it impossible to describe the different descriptions of rateable property, and the statutory enactments and legal decisions relating to the same. These will be found in the last edition of Mr. Castle's book on the Law and Practice of Eating, and in other books on rating. The following principles apply in whatever manner land is occupied to a profit; the difficulty lies in applying the principle to each particular case. 1 . The occupiers of lands, whether for pleasure or the ordinary purposes of cultivation, and the occupiers of houses, are rateable according to the value of their occupation, in whatever manner they are occupied, provided it be such as is capable of producing profit. 2. Land or houses in the possession of the Crown are not liable to be rated. 3. "When the occupiers of land are prevented by statute from deriving the full pecuniary benefit which it is capable of producing, the land is to be rated with reference to the amount of profit actually made. 4. The annual sum for which the property would let, at the time when the rate is made, is the proper criterion of rate- able value, and not the rent actually paid for it, if the latter for any reason does not represent the real present value of the occupation. 5. Whenever the value of the occupation is enhanced by collateral circumstances arising out of the occupation itself, and not merely personal to the individual occupier, such improved value is that upon which the rate should Le based. 6. It is only profits arising from the occupation of the land in the rating parish which can increase the rateable value there. 7. Any pecuniary advantage received by the occupier, which does not spring out of the fruits of the occupation, but is merely personal, or at all events so disconnected with the SECT. III.] POOR RATE. 327 value of the rateable sub j ect that it cannot add to its rent, ought not to be included. 8. While, on the one hand, any collateral increase of profit adds to the rateable value, any expenses properly applic- able to the occupation, and necessary to keep the land or other subject in a state to command the assumed rent, ought to be deducted from its rateable value. 5. Appeal against a Poor Rate. Any person grieved with any tax, or other act done, may appeal to the justices in quarter sessions, who may make an order which shall conclude and bind all parties. 43 Eliz. c. 2, s. 6. Any person aggrieved by any rate or assessment made for the relief of the poor, or who shall have any material objection to any person being put on or left out of such rate or assessment, or to the sum charged on any person therein, or shall have any material objection to such account, may appeal. 17 Gfeo. 2, c. 38, s. 4. Every owner of any hereditament for the rates of which he has become liable has the same right of appeal as if he were an occupier. 32 & 33 Yict. c. 41, s. 13. By the Local Grovern- ment Act, 1894, the powers, duties and liabilities of the over- seers, or of the churchwardens and overseers of a rural parish, with respect to appeals or objections by them in respect of the valuation list, or appeals in respect of the poor rate, are trans- ferred to the parish council. 56 & 57 Vict. c. 73, s. 6 (1). Grounds of Appeal. — The several grounds of appeal against a rate may be classed as follows: — 1. That the appellant should not have been rated at all. 2. That the rate is unequal, by reason of the appellant being over-rated ; of other persons beiug under-rated ; or of other persons being omitted. 3. That the rate is bad on the face of it. 4. That the rate is not made by proper persons. 5. That the rate is not made for a proper pur- pose. 6. That the rate is not made for a proper period. To what Sessions. — In counties the appeal must be to the "next quarter sessions " of the county in which the parish is situate. 17 Geo. 2, c. 38, s. 4. In boroughs which have a separate court of quarter sessions the appeal is to the quarter sossions of the borough (45 & 46 Vict. c. 50, s. 164); and in 328 RATES. [chap. XIX. boroughs -which have no separate court, the appeal is to the sessions of the county in which the borough is situate. Sect. 154. Notice of Appeal. — "Fourteen clear days' notice of appeal must be given by the party aggrieved by the rate or assessment" (12 & 13 Vict. c. 45) to the overseers of the parish, and the assessment committee of the union, &c. 17 Geo. 2, c. 38, s. 4 ; 27 & 28 Vict. c. 39, s. 1. An appellant under these provisions is, however, entitled to a further reasonable time in which to make up his mind whether to appeal or not. R. v. J J. Surrey, 6 Q. B. D. 100 ; 50 L. J. M. C. 10. Notice to Assessment Committee. — Before any appeal can be heard by any special or quarter sessions against a poor rate for any parish contained in any union to which the Union Assess- ment Committee Act, 1862 (25 & 26 Vict. c. 103), s. 42, applies, the appellant must give twenty-one days' written notice to assess- ment committee of such union of his intention to appeal, and the grounds thereof. No person can appeal to any sessions against a poor rate made in conformity with the valuation list approved of by such committee unless he has given them notice of objec- tion against the list, and has failed to obtain such relief in the matter as he deems just. 27 & 28 Vict. c. 39, s. 1. Where a ratepayer, aggrieved by his assessment to the poor rate, gave notice of his objection to the assessment committee under this section, and the committee adjourned their decision until after the decision in a superior court on a governing case was given, and the ratepayer appealed against the rate to quarter sessions, it was held that he had not "failed to obtain relief" from the assessment committee, and that therefore the appeal was prema- ture. R. v. Eedminster, 1 Q. B. D. 503; 45 L. J. M. C. 117; 34 L. T. 795 ; 40 J. P. 743. The notice mentioned in this section means only the notice to be given by the objecting party to the committee, to be served in the manner prescribed by sect. 42 of 25 & 26 Vict. c. 103. R. v. Overseers of Langriville, 14 Q. B. D. 83 ; 54 L. J. Q. B. 124. Where a ratepayer objects to the rateability of the property and not to the valuation, he must still have given notice to the assessment committee, and failed to obtain relief, before appeal- ing to quarter sessions. R. v. JJ. Lancashire, 43 L. J. M. C. 116; 38 J. P. 361. SECT. III.] POOR RATE. 329 A person who has once given to the assessment committee notice of objection against a valuation list, and failed to obtain such relief as he deems just, may appeal to quarter sessions against any subsequent poor rate made in conformity with the list, and this section does not make it a condition precedent of such appeal that previously thereto he should repeat his appli- cation to the committee for relief. H. v. JJ. Denbighshire, 15 Q. B. D. 451 ; 54 L. J. M. C. 142. The gross estimated rental of premises as it appears in the rate-book and valuation list is final, and it is not competent to a court of quarter sessions, upon a ratepayer's appeal from the assessment committee, to admit evidence tendered by the rating authority to show that the gross estimated rental has been understated. Horton v. Walsall Union, (1892) 2 Q. B. 237; 64 L. J. Q. B. 804; 78 L. T. 684. Judgment. — The sessions are to amend the rate, in such manner only as is necessai'y for giving relief, without altering it with respect to other persons mentioned in it ; but if, upon appeal from the whole rate, it is found necessary to quash it, the sessions are to order the parish officers to make a new equal rate, and they are required to do so accordingly. 17 Geo. 2, c. 38, s. 6. A justice is not disqualified for hearing the appeal because he is rated for some other parish in the same union than that against which the rate appealed against is made. 27 & 28 Vict. c. 39, s. 6. Under sect. 19 of the Judicature Act, 1873, the Court of Appeal have jurisdiction to entertain an appeal from a decision of the Queen's Bench Division upon a rule for quashing an order of quarter sessions as to the validity of a rate. Walsall v. L. if N. W. liy. Co., 4 App. Cas. 30 ; 48 L. J. M. C. 336. Agreement as to Costs. — Where an appeal is brought against the poor rate of a parish in a union, which appeal appears to involve a principle in which some neighbouring parish has a common interest, the guardians of the unions comprising such parishes may enter into an agreement mutually to bear the costs of the appeals, if any, which may be awarded against the respondents in such proportions as shall be determined with reference to the amount of interest of the several unions in the question. 31 & 32 Vict. c. 122, s. 29. 330 RATES. [CHAP. XIX. Special Case. — At any time after notice of appeal has been given, the parties may, by consent, and by order of a judge of one of the Superior Courts, state the facts in a special case for the opinion of such Court, and agree that a judgment in con- formity with the decision of such Court, and for costs, may be entered on motion by either party at the sessions. 12 & 13 Vict. c. 45, s. 11. The sessions also, at the hearing, may state a case for the opinion of the Queen's Bench Division, and decide the appeal subject to that case. An appeal will lie to the Court of Appeal from the decision of the Queen's Bench Division, and to the House of Lords, whether the case is stated by the sessions at the hearing ; Walsall v. L. §■ N. W. I'i/. Co., supra; or by the parties under 12 & 13 Vict. c. 45, s. 11. Peterborough Corporation v. Wilsthorpe Over- seers, 12 Q. B. D. 1 ; 53 L. J. M. C. 33. 6. Collecting and Levying Poor Rate. It is the duty of the overseers of every parish supporting its own poor to collect the poor rate. The vestry usually assign the duty to the assistant overseer, unless there be a collector ap- pointed by the guardians. The guardians of a union may appoint a collector for any of the parishes in the union, if the Local Government Board, upon their application, order them to do so. 7 & 8 Vict. c. 101, s. 62, 2>ost, p. 371. Power to Distrain. — Overseers, by warrant from any two justices, may levy all arrearages, according to the assessments, by distress and sale. 43 Eliz. c. 2, s. 4. It seems doubtful whether, in strictness, a rate due from a person who dies before it is paid, can be levied upon his representative. But, at all events, before this can be done, the latter must be summoned, for he may be able to show good cause against such a demand, as want of assets, &c. Stevens v. P~va?is, 2 Burr. 1152. Summons. — In every case the exact sum due must be de- manded, and the party summoned to appear before the justices, before a distress warrant issues. R. v. Benn, 6 T. B. 198; Hurrell v. Wink, 8 Taunt. 369 ; Harper v. Gary, 7 T. B. 270. Each of several joint occupiers is liable for the whole rate. SECT. III.] POOR RATE. 331 Paynter v. R. 10 Q. B. 908. The goods of one churchwarden or overseer may be seized under a distress by the others. Skingley v. SurrUlye, 11 M. & W. 503. The summons must be directed to the party rated ; 12 Vict. c. 14, s. 5 ; and may be in the form given in the schedule to that Act, or to like effect. It may be served either personally or at the last place of abode. If the party does not appear, the justices, on proof of service of the summons, may proceed ex parte. Consolidation of Proceedings. — Wheie any number of local rates and taxes, whether of the same, or of different kinds, are due from the same person, the rates and taxes so due may be included in the same document required bylaw to be laid before justices, or to be issued by justices, and every such document, as respects each rate or tax comprised in it, is to be construed as a separate document, and its validity as respects any one rate is not to affect its validity as respects any other rate. 25 & 26 Vict. c. 82, s. 1. No costs are to be allowed in respect of such several documents where the justices think one document would have sufficed. Ibid. Warrant of Distress. — Justices may, in their warrant, order that the costs of obtaining it, together with the costs of the distress, be levied. 12 Vict. c. 14, s. 1. They may also order the party to be imprisoned for a period not exceeding three calendar months in default of distress. Sect. 2. One warrant of distress may be issued against any number of persons neglecting or refusing to pay the rate ; but a single warrant of commitment cannot issue against several in default of distress. Sect. 3. The warrants may be directed to the overseers, and to the constable and any other persons, or to any one or more of them. Sect. 4. The justices who are called upon to issue a warrant of distress have no right to entertain the question of its validity, if good on the face of it, because in issuing the warrant they are acting only ministerially, and not judicially. Exp. May, 31 L. J. M. C. 1G1 ; Diss v. Aldrich, 2 Q. B. D. 179; 46 L. J. M. C. 83. They are not exercising a merely ministerial duty, but are authorized to inquire into the validity of the objections taken by the party 332 RATES. [CHAP. XIX. summoned. Fourth City Mutual Building Society V. Church- wardens of East Ham, (1892) 1 Q. B. 661. Justices in issuing a distress warrant for the recovery of poor rates have no power to order that there shall be any delay in the execution of the warrant. H. v. Handsley, 7 Q. B. D. 398. The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 57, does not apply to poor rates so as to make them a civil debt recoverable in the manner provided for in that section. R. v. Price, 5 Q. B. D. 300 ; 49 L. J. M. C. 49 ; 42 L. T. 439. It is expressly provided by sect. 10 of the Summary Jurisdic- tion Act, 1884 (47 & 48 Yict. c. 43), that nothing in that Act is to alter the procedure for the recovery of, or any remedy for the non-payment of any poor rate. Where Distress may be made. — The goods may be levied by warrant of distress, not only in the same parish or place, but in any other place within the same county ; and if sufficient distress cannot be found there, then on oath being made before some justice of any other county, and certified on the said warrant, the defaulter's goods may be levied in such other county or precinct, subject to an appeal to the next general or quarter sessions of the peace for the county or precinct where such assessment was made. 17 Geo. 2, c. 38, s. 7. The 54 Geo. 3, c. 170, s. 12, is to the same effect, including the right so to distrain for poor or highway rates. Tender of Rate. — If before the party is imprisoned he tenders the rate and costs to the churchwardens or overseers, or person authorized to eolhet it, all further proceedings for the recovery thereof are to cease. 12 Yict. c. 14, s. 6. A tender of the rate without the costs is bad. Walsh v. Southicorth, 6 Exch. 150. What may be distrained. — Money may be distrained for the poor rate as well as goods. East India Company v. Skinner, 1 Bott , 249 ; Ilutchins v. Chambers, 1 Burr. 579. A bill of sale is no protection in respect of personal chattels included in a bill of sale which, but for such bill of sale, would have been liable to distress under a warrant for the recovery of taxes and poor and other parochial rates. 45 & 46 Yict. c. 43, s. 14. All parochial or other local rates due from the bankrupt at the SECT. III.] POOR RATE. 333 date of the receiving order, or from a company at the date of the winding up, and having become due and payable within 12 months next before that time, are to be paid in priority to all other debts. 51 & 52 Vict. c. 62, s. 1 (1). Such debts have priority over the claims of holders of debentures or debenture stock under any floating charge created by the company. 60 & 61 Vict. c. 19. When Distress proper. — The justices cannot refuse a warrant of distress to enforce the payment of a poor rate, on the ground that there is a want of certainty as to the property included in it ; such a defect being ground of appeal only. R. v. Wilson, 5 N. & M. 119. The justices who issue a distress warrant to levy a rate are not Liable to be sued for any irregularity or defect in the rate, or by reason of the party not being liable to be rated. 11 & 12 Vict. c. 44, s. 4. A distress for a poor rate is not to be deemed unlawful (if the sum is really due) on account of any defect in the rate or warrant, but the party grieved is to recover for special damage only in an action on the case, and not at all if tender of sufficient amends has been made before action brought. 17 Geo. 2, c. 38, s. 8. An appeal will not lie against the issue of a distress warrant for poor rate before the distress has been levied. R. v. J J. London, (1899) 1 Q. B. 532; 68 L. J. M. C. 383. Costs. — In all cases where a warrant of distress is issued against a person for the recovery of a poor rate he is liable to pay the cost of such warrant, and of the broker or other officer for his attendance to make the levy, although such person may tender the amount of the rate before any levy is made. 39 & 40 Vict. c. 61, s. 31. Mandamus to grant Warrant. — The Court will not grant a mandamus to justices commanding them to grant a distress war- rant for a poor rate, where the validity of the rate or liability of the party is doubtful ; R. v. Newcomb, 4 T. R. 368 ; nor where the party has not been summoned to show cause why a distress should not issue against him. R. v. Benn, 6 T, E. 198. One writ of mandamus may go commanding the issue of two warrants of distress for two distinct rates against the same individual. R. v. Ellis, 12 L. J. M. C. 20. A rule calling upon justices to 334 RATES. [chap. XIX. show cause why they should not issue a warrant may he ohtained under the 11 & 12 Vict. c. 44, s. 5, in which case the justices are not liable to he sued for anything which they do in obedience to such rule. Also, they cannot be sued for anything done in obedience to a peremptory writ of mandamus. 6 & 7 Vict. c. 67, s. 3. Distress illegally executed. — The parties executing a distress for a poor rate are liable as trespassers if they commit any excess not excused by law. Bell v. Oakley, 2 M. & Sel. 259. CHAPTER XX. ADMINISTRATION OF POOR LAWS. PAGE Section I. Local Government Board 335 II. Boards of Guardians 338 1. Election of 338 2. Powers and Duties of 339 III. District Auditors 349 IV. Paid Officers of Guardians 353 V. Overseers 357 1. Appointment of 357 i. Tn Urban Parishes 357 ii. In Rural Parishes 359 iii. Generally 360 2. Powers and Duties of 3G1 VI. Assistant Overseers and Collectors 370 VII. Overseers and Collectors' Accounts 373 Section I. — Local Government Board. Appointment of. — In 1871, by 34 & 35 Vict. c. 70, the old Poor Law Board, which was originally constituted in 1835, was abolished, and the supervision which it formerly exercised was transferred to the Local Government Board. The Local Government Board consists of a president, who may sit in Parliament, and the following ex officio members: — The Lord President of the Council, Lord Privy Seal, all the principal Secretaries of State, and the Chancellor of the Exchequer, for the time being. Powers and Duties of. — The Local Government Board have vested in them all the powers and duties which were vested in or imposed on the Poor Law Board by the several Acts of Parliament relating to the relief of the poor, or vested in or imposed on one of the Secretaries of State by the Acts relating 336 ADMINISTRATION OF POOR LAWS. [CHAP. XX. to public health, local government, registration of births, &c, drainage, baths and washhouses, recreation grounds, towns improvements, artizans' and labourers' dwellings ; or vested in or imposed on the Privy Council by the Acts relating to vaccina- tion (34 & 35 Vict. cc. 70, 98), the prevention of disease (34 & 35 Vict. c. 70), and to dairies (49 & 50 Vict. c. 32, s. 9). The Board have other duties imposed upon them by the Elementary Education Acts {post, Chap. XXVII. , p. 467), the Highway Acts {ante, pp. 293, 298), and the Local Government Acts, 1888 and 1894. Under the Local Government Act, 1888, the Board may confirm orders of county councils altering the future boundaries of county districts, boroughs, parishes and wards. 51 & 52 Vict. c. 41, s. 57. The Local Government Board have issued regulations as to inquiries and notices under this section, dated 14th September, 1889. The board also confirm byelaws made by county councils. Ibid. s. 16. The Board are also to exercise all the powers of a Secretary of State, the Treasury, Board of Trade, &c, under local Acts for sanitary purposes, Baths and "Washhouses, Alkali, Metropolis Water, Highway, and Bridges Acts. 38 & 39 Vict. c. 55, s. 343, sched. 5, pt. 3. The Board are to exercise and perform all such powers and duties in the like manner and form as the same were exercised and performed by the authorities in whom the same were then vested respectively. 34 & 35 Vict. c. 70, s. 2. The Board have power to repeal or alter local Acts which relate to the poor or to the same subject-matters as the Public Health Act, 1875, by provisional orders. 30 & 31 Vict. c. 106, s. 2 ; 42 & 43 Vict. c. 54, s. 9. All duplicate returns relating to rates are to be sent to the Board. 34 & 35 Vict. c. 70, s. 8. Every general order of the Board is to be published in the London Gazette, and when so published is to take effect without any further proceeding, and as regards any single order of the Board, it is not necessary to send a copy thereof to the clerk to the justices of the petty sessions. 38 & 39 Vict. c. 55, s. 343, sched. 5, pt. 3. Annual Report. — The Board is to make annually a general report of their proceedings, which is to be laid before Parlia- ment. 10 & 11 Vict. c. 109, s. 13. The powers and duties of the Local Government Board are SECT. I.] LOCAL GOVERNMENT BOARD. 337 far too numerous to refer to in detail. They will be found fully stated in the Board's Annual Report. To form Unions. — The Board may, by order under their hands and seal, declare so many parishes, as they think fit, to be united for the administration of the laws for the relief of the poor ; and such parishes are thereupon to be deemed a union, and the work- houses of such parishes are to be for their common use. 4 & 5 Will. 4, c. 76, s. 26. The union may be defined as the area which is under the juris- diction of a board of guardians. For the most part it consists of an aggregation of poor law parishes ; but the constitution of a union may be conferred on a single parish if the popidation warrant it. A poor law parish is a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed. 39 & 40 Vict. c. 61. Combination of Unions. — Where on any representation it appears to the Local Government Board that the combination of two or more unions, for any purpose connected with the adminis- tration of the relief of the poor, would tend to diminish expense, or otherwise be of public or local advantage, the Board may, with the consent of the guardians of the unions affected, make an order for combining such unions, and for con- stituting a joint committee of the guardians of each of them for the execution of the purposes named in the order. 42 & 43 Vict. c. 54, s. 8. Dissolution of Unions. — The Boards are authorised, by order under seal, to dissolve unions and to separate parishes from or add them to such unions, and to cause a board of guardians to be elected for any single parish so separated from a union. 4 & 5 Will. 4, c. 76, s. 32 ; 7 & 8 Vict. c. 101, s. 66. With reference to any poor law union which is situate in more than one county, the Local Government Board instead of dis- solving the union, may by order provide that the same shall continue to be one union for the purposes of indoor paupers or any of those purposes, and shall be divided into two or more poor law unions for the purpose of outdoor relief, and may by the order make such provisions as seem expedient for deter- mining all other matters in relation to which such union is to be one union or two or more unions. 51 & 52 Vict. c. 41, s. 58. s. z 338 ADMINISTRATION OF POOR LAWS. [CHAP. XX. County Audit Districts. — In connection with the audits of the accounts of county councils, the Local Government Board have rearranged the county audit districts. Section II. — Boards of Guardians. In 1834 the management of poor relief was taken out of the hands of the vestries, and transferred to the guardians. Between the years 1834 and 1894 in the country generally, apart from the metropolis, the guardians consisted of two classes, namely, elective guardians and ex officio guardians. Important changes were made in the system of the election of poor law guardians by the Local Government Act, 1894. Rural district councillors elected for a parish or other area, are, under that Act, the representatives of that parish or area on the board of guardians, and guardians as such are not elected in rural districts. Rural district councillors in a purely rural district form, and sit as, the board of guardians. 56 & 57 Vict. c. 73. In a mixed rural and urban district the rural district councillors elected by the rural parishes and the guardians elected by the urban district, will together, form the board of guardians. 1. Election of Guardians. The general effect of the Local Government Act, 1894, is to abolish ex officio and nominated guardians, and to substitute for the existing qualifications for the office of elective guardian, a qualification which consists in being either a parochial elector of a parish within the union, or in having resided witbin the union during the whole of the 12 months preceding the election. The guardians are elected by the parochial electors, each of whom has one vote only for each of any number of candidates not exceeding the number to be elected. The term of office of guardians is 3 years. A board of guardians can elect as "additional guardians" a chairman and vice-chairman, and not more than two other persons from outside their own body. 56 & 57 Vict. c. 20. As to who is a "parochial elector," see ante, p. 224. The law as to the election of guardians, &c. will be found fully SECT. II.] BOAHDS OF GUARDIANS. 339 stated, ante, pp. 258, 259, and in the " Rural District Councillor's Election Order, 1898," in the Appendix. A joint committee of guardians may be appointed for a com- bined union. 42 & 43 Vict. c. 54, s. 8. Number of Guardians. — The council of each county may, from time to time, by order, fix or alter the number of guardians or rural district councillors to be elected for each parish within their county, and for those purposes may exercise powers of adding parishes to each other and dividing parishes into wards, similar to those which by the Acts (4 & 5 Will. 4, c. 76, ss. 38, 39 ; 7 & 8 Vict. c. 101, s. 18), relating to the relief of the poor are, for the purpose of the election of guardians, vested in the Local Government Board. 56 & 57 Vict. c. 73, s. 60. Retirement of Guardians. — The council of each county may, for the purpose of regulating the retirement of guardians, in cases where they retire by thirds, and in order that as nearly as may be, one third of the persons elected as guardians for the union, shall retire in each year, direct in which year or years of each triennial period the guardians for each parish, ward, or other area in the union shall retire. Ibid. Where a poor law union is situate in more than one county, the above powers of fixing or altering the number of guardians, and of regulating the retirement of guardians, is to be exercised by a joint committee of the councils of the counties concerned. Ibid. 2. Powers and Duties of Guardians. The duties of guardians are prescribed by the Local Govern- ment Board. 4 & 5 Will. 4, c. 76, s. 38 ; 34 & 35 Vict. c. 70. The proceedings of the guardians at meetings are now regulated by the same rules as govern the proceedings of urban authorities under the Public Health Act, 1875, these rules having been applied to meetings of guardians by sect. 59 (1) of the Local Government Act, 1894. Poor Relief. — The chief duty of tbe guardians is the adminis- tration of poor relief. They have to decide in any particular case whether outdoor relief shall be given, or the workhouse test applied. See post, p. 376. The guardians, subject to confirma- tion by the Local Government Board, appoint the relieving and 340 ADMINISTRATION OF POOR LAWS. [CHAP. XX. medical officers for the union, and the workhouse master, chaplains, and other officers. Post, pp. 354, 356. They also supervise the management of the workhouse and pauper schools. Post, pp. 421 ; 479. Relief Committees. — The Local Government Board upon receiving requests from guardians authorise them to appoint committees for the purpose of hearing and determining applica- tions for relief as well as applications by non-pauper parents for payment of school fees. District Relief Committees.— Sect. 7 of the 5 & 6 Vict. c. 57, enables the Local Government Board, on the application of the guardians of any union, in which the whole of any parish or parishes is situated more than 4 miles from the place of meeting of the guardians, to form such parish or parishes into a relief district, and to direct the guardians to appoint a relief committee for the district. District committees are only enabled to examine into the relief cases and make their recommendations to the guardians, and are not empowered, like the ordinary relief com- mittees to decide upon the applications. Under the Elementary Education Acts. — See post, p. 377, as to payment of school fees for children of non-pauper parents. In rural districts, where there is no school board, a committee of the guardians constitute the school-attendance committee. Post, p. 472. Registration of Births and Deaths. — It is the duty of guardians to appoint and pay the registrars of births and deaths, and to see that they are provided with suitable offices. Parish Valuation Lists. — The parish valuation lists made out by the overseers are subject to a revision by a committee of the guardians called the assessment committee, who hear and decide objections. Ante, p. 316. Control over deserted Children. — Where a child is maintained by the guardians of any union and was deserted by its parent, or where a parent is imprisoned under a sentence of penal servitude or imprisonment in respect of an offence committed against a child, the guardians may at any time resolve that such child shall be under the control of the guardians until it reaches SECT. II.] BOARDS OF GUARDIANS. 341 the age, if a boy, of 16, and if a girl, of 18 years, and thereupon until the child reaches that age all the powers and rights of such parent in respect of that child vest in the guardians ; provided that the guardians may rescind such resolution, if they think that it will be for the benefit of the child that it should be rescinded, or may permit such child to be either permanently or temporarily under the control of such parent, or of any other relative, or of any friend. A parent of the child may appeal to a Court of summary jurisdiction. For the purposes of this Act a child is deemed to be maintained by the guardians if it is wholly or partially maintained by them in a workhouse or in any district school, separate school, separate infirmary, sick asylum, hospital for infectious diseases, institution for the deaf, dumb, blind, or idiots, or any certified school under 25 & 26 Vict. c. 43, or is boarded out by the guardians, whether within or without the limits of the union. Nothing in this Act is to relieve any person from any liability to contribute to the maintenance of a child, but the fact of such contribution being made shall not deprive the guardians of any of the above-mentioned powers and rights. The guardians are not authorised to cause a child to be educated in any religious creed other than that in which the child would have been educated but for any resolution of the guardians under this Act. 52 & 53 Vict. c. 56, s. 1. Cruelty to Children. — As to prosecutions by guardians for assault on or offences against children, see 24 & 25 Vict. c. 100, s. 73, and 57 & 58 Vict. c. 27. Guardians a Corporation. — The guardians are a corporation, and are called " The Guardians of the poor of the union, or of the parish of in the county of ," and as such may accept, take and hold, on behalf of such union or parish, any buildings, lands or hereditaments, goods, effects, or other property, and may use a common seal ; and by that name may bring actions, prefer indictments, and sue and be sued ; and in all actions and indictments the property may be stated to be that of the guardians of the union, or of the parish of . 5 & 6 Will. 4, c. 69, s. 7 ; 5 & 6 Vict. c. 57, s. 16. Powers, how exercised. — No guardian has power to act, except as a member and at a meeting of the board, unless otherwise ordered by the Local Government Board, or except for the pur- 342 ADMINISTRATION OF POOR LAWS. [CHAP. XX. pose of consenting to the dissolution or alteration of the union, or any addition thereto, or to the formation of any union for settlement or rating ; and no act of such meeting is valid unless three members are present and concur therein. 4 & 5 Will. 4, c. 76, s. 38. In case of an equality of votes upon any question at a meeting, the presiding chairman has a second or casting vote. 12 & 13 Vict. c. 103, s. 19. The General Order of 24th July, 1847, Art. 37 et seg., regulates the mode of proceedings at meetings of the Board. Mode of Consent by Guardians. — Where the consent in writing of a majority of the guardians of a union is required, it is a sufficient compliance with such requirement if a resolution giving consent is passed at a meeting of the guardians, of which meet- ing and of the business to be transacted thereat, not less than 14 days' notice has been given to each guardian. 45 & 46 Yict. c. 58, s. 12. Admission of Documents in Evidence. — Wherever a board of guardians makes any order, or prefers any complaint, claim, or application, before justices or otherwise, a copy of the minute of such resolution, purporting to be signed by the presiding chair- man of such board, and to be sealed with their seal, and to be counter-signed by their clerk, is to be taken to be sufficient proof of the directions respecting such order, complaint, &c, having been given ; and whenever it is necessary to prove to what parish a pauper has become chargeable, a certificate, in the form in the schedule, of such pauper having so become charge- able, purporting to be signed, sealed and countersigned as aforesaid, is to be sufficient proof of the truth of all the state- ments contained in such certificate, without proof of the signatures or the official characters of the persons signing, or of the seal, or the meeting ; and in all cases in which the guardians of any parish or union are empowered to make any application or com- plaint, or to take any proceedings, before any justices at petty or special or general or quarter sessions, any officer of such guardians empowered by the board, by an order in writing under the hand of the presiding chairman of such board, and sealed with the common seal of such guardians, may make such appli- cation or complaint, or take such proceedings, on behalf of such guardians, as effectually, to all intents and purposes, as if the SECT. II.] BOARDS OF GUARDIANS. 343 same were made or taken by such guardians, or any of them, in person. 5 & 6 Vict. c. 57, s. 17; 7 & 8 Vict. c. 101, s. 69; see E. v. High Bickington, 8 Q. B. 889. Borrowing by. — The guardians of any union may, with the sanction of the Local Government Board, borrow for the purpose of raising the expenses incurred, or proposed to be incurred, for any permanent work or object, or any other thing, the costs of which ought, in the opinion of the Local Government Board, to be spread over a term of years. A loan shall not be of such amount as exceeds, or will make the total debt of the guardians under the Acts relating to the relief of the poor exceed, one- fourth of the total annual rateable value of the union. The Local Government Board may by provisional order extend the said maximum to double the amount above authorized. The unapplied balance of any loan raised by any guardians may, with the consent of the Local Government Board, be applied to any purpose for which a loan can be raised under this Act by such guardians. All prior enactments touching the purposes for which and the amount to which guardians of unions and managers of any school or asylum district may borrow are repealed, but every loan under this section is to be made on the like security and be paid off in the like time and manner, as is provided by the enactments in force at time of passing of this Act with respect to loans of such guardians and managers. 52 & 53 Vict. c. 56, s. 2. The Public Works Loan Commissioners can advance money to guardians for a period not exceeding 30 years without any action on the part of the Treasury. Contracts and Payments by. — Any contract entered into by or on behalf of a parish or union, relating to the maintenance, &c, or general management of the poor, which is not in conformity with the rules, &c, of the Local Government Board, or otherwise sanctioned by them, is to be voidable, and, if the Local Govern- ment Board so direct, null and void ; and all payments made under a contract so declared void are to be disallowed. 4 & 5 Will. 4, c. 76, s. 49. The order of 24th July, 1817, Arts. 44 et seq., provides for the mode of making such contracts. 55 Geo. 3, c. 137, s. 6, and 4 & 5 Will. 4, c. 76, ss. 51 and 77, impose penalties on guardians who are concerned in contracts 344 ADMINISTRATION OF POOR LAW?. [cHAP. XX. for, or who supply for their own profit goods which are fur- nished for the relief of the poor. Davies v. Harvey, L. E. 9 Q. B. 433 ; 43 L. J. M. C. 121. If the goods are supplied by a guardian without profit to him- self it appears that he incurs no penalties. Skinner v. Buckee, 3 B. & C. 6 ; Barber v. Waite, 1 A. & E. 514. As to the necessity for contracts by guardians being under seal, see Nicholson v. Bradjleld, L. E. 1 Q. B. 620 ; 35 L. J. Q. B. 176. All payments, &c, made by guardians and charged upon the poor rates contrary to the provisions of the Act, or at variance with any rule, &c, of the Local Government Board are declared illegal, and are to be disallowed. 4 & 5 Will. 4, c. 76, s. 89. Vaccination. — The guardians of every union or parish are to divide their union or parish into vaccination districts, or to con- solidate or alter them, subject to the approval of the Local Government Board. 30 & 31 Vict. c. 84, s. 1. The Board have the same powers with respect to guardians and vaccination officers in matters relating to vaccination as they have with respect to guardians and officers of guardians in matters relating to the relief of the poor. 34 & 35 Vict. c. 98, s. 5 ; 37 & 38 Vict. c. 75. Subscribing to and using Hospitals. — Guardians may, with the consent of the Local Government Board, pay out of the funds of the union or parish any sum, as an annual subscription towards the support of a public hospital or infirmary for the reception of sick, diseased, disabled or wounded persons, or persons suffering from any permanent or natural infirmity. 14 & 15 Vict. c. 105, s. 4. Guardians may, with the consent of the Local Government Board, make arrangements with any public general hospital or dispensary situated within the limits of their parish or union, to receive and treat pauper patients, on terms to be arranged with the sanction of the Board. 32 & 33 Vict. c. 63, s. 16. The guardians may, with such consent, subscribe towards any asylum or institution for persons who are blind, deaf, or dumb, or suffering from any permanent or natural infirmity, or for providing nurses, or for aiding girls or boys in service, or towards any other asylum or institution which appears to the SECT. II.] BOARDS OF GUARDIANS. 345 guardians to be calculated to render useful aid in administration of relief of the poor. 42 & 43 Vict. c. 54, s. 10. Costs of Proceedings by. — The guardians may pay, out of the funds in their hands, the costs of the apprehension and prosecu- tion of persons charged with deserting their families ; with disobedience to the rules of the Local Government Board ; with offences in or running away from workhouses, and carrying away goods belonging thereto ; with neglecting or disobeying the orders of justices; with assaulting persons engaged in ad- ministering the poor laws ; or with fraudulently obtaining, &c, any property connected with the relief of the poor ; or of prose- cuting any officer employed in the administering the poor laws for a neglect or breach of duty. They may also, subject to the approval of the Local Government Board, pay the costs of all legal proceedings taken by an auditor for the protection of the poor rates or property of any parish, union, &c, and charge them to the common fund of the union, or to the parish. 7 & 8 Vict. c. 101, s. 59. As to the time for the payment of debts incurred by Boards of Guardians, see 22 & 23 Vict. c. 49. Expenses of obtaining Information. — Guardians of unions and parishes may pay out of the funds under their control for information required for the effectual discharge of their duties. The amount payable to the officers of guardians for such infor- mation may be settled by the Local Government Board. 39 & 40 Vict. c. 61, ss. 15, 16. Guardians' Deputation Expenses. — When any board of guar- dians deem it advisable to confer with the Local Government Board upon any matter connected with the relief of the poor in their union, or arising out of the discharge of any duty imposed upon them by law, and shall, after notice in writing sent to every guardian of the union, resolve to send a deputation to confer with the Board upon such matter, a copy of the resolution is to be forwarded to the Board, and if the Board, upon receipt thereof, appoint a time for the reception of such deputation, the auditor of the district comprising the union may allow the reasonable costs, properly verified, of such deputation to the extent of three members, together with the clerk, and no more, as a charge upon the common fund of the union. General Order of 27th June, 1870. 346 ADMINISTRATION OF POOR LAWS. [CHAP. XX. Poor Law Conference Expenses. — The guardians of any union may, "when empowered by and subject to any regulations made by the Local Government Board, pay the reasonable expenses of any guardians, or clerk to the guardians, incurred in attending any conference of guardians held for the purpose of discussing any matter which is connected with the duties which devolve on them, and any reasonable expenses incurred in purchasing reports of the proceedings of any such conference, and may charge the amount to their common fund, or if they have no common fund, to the fund under their control. 46 & 47 Yict. c. 11, s. 2. The Board, by a general order, dated 17th Sept., 1883, em- powered the guardians of the poor of the several unions in England and "Wales to pay the reasonable expenses incurred in attending any such conference, and in purchasing reports of the proceedings of any such conference, subject to the following regulations : — (1.) The expenses incurred in attending a conference shall only be paid in respect of attendance at the central conference held in London, or at a conference convened for a district including the union from which the persons attending as representatives are sent, and held at a place distant not more than 100 miles from such union. (2.) The attendance at any conference of a guardian, or guardians or the clerk to the guardians of any union shall be expressly authorised by a resolution passed at a meeting of the guardians of such union, a written or printed notice that the proposal is to be considered at that meeting having been sent, by post or otherwise, to each guardian not less than 4 days prior to the date of the meeting : and where the attendance of more than one guardian is authorised, the number of guardians autho- rised to attend shall be specified in the resolution. (3.) The maximum number of guardians authorised to attend any conference shall be 3, and in the case of the central conference held in London only one guardian shall be authorised to attend from any union which is at a distance of more than 50 miles from the place of meeting. (4.) The number of copies which may be purchased by the guardians of any union of the report of the central conference, or of any conference for a district including the union, shall be such as the guardians of the union may, by resolution, determine. SECT. II.] BOARDS OF GUARDIANS. 347 Poor Law Unions Association. — In 1898 provision was made by 61 & 62 Vict. c. 19, for the establishment of an association of poor law unions in England and Wales for the purposes of con- sultation as to their common interests and the discussion of matters relating to the poor law, and other matters relating to their powers and duties. The guardians of any poor law union may, when empowered by and subject to any regulations made by the Local Government Board, pay any sum not exceeding 51. in any one year as an annual or other subscription to the funds of the association, as well as the reasonable expenses of the attendance of two representatives at meeting of the association, and may charge such payments to their common fund, or if they have no common fund to the fund under their control. Guardians can only make such payments if the attendance of such repre- sentative at a meeting of the Association has been expressly authorised by a resolution passed at a meeting of the guardians held after no less than 7 days' notice in writing that the proposal is to be considered at such meeting of the guardians has been sent to each guardian. A representative must be either a guardian of the poor law union or (without power of voting) the clerk to the guardians of the union. Financial Statement. — As to the financial statement required to be submitted by guardians to the district auditor, see post, p. 350. Register of Securities. — The guardians are to keep a register of the securities in respect of all sums borrowed by them in such form and subject to such regulations as to inspection or other- wise as the Local Government Board may prescribe. 45 & 46 Yict. c. 58, s. 14. These regulations are contained in the following general order of the board dated Dec. 7th, 1882 : — Art. 1 . The register of securities required by the above-cited enactment to be kept shall be in the form prescribed in the schedule to this order. Art. 2. With respect to securities executed by the guardians or managers after the passing of the Act of 1882, it shall be the duty of the clerk to make the entries required in columns 1 to 13, both inclusive, of the said register, and to authenticate such entries by placing his signature in column 14 of the said register. Such entries shall be made and authenticated as aforesaid in the 348 ADMINISTRATION OF POOR LAWS. [CHAP. XX. ease of every security so executed before the date of this order as early as practicable ; and in the case of every security so executed on or after the date of this order, after the same has been executed and before it is delivered to the lender. Art. 3. With respect to every transfer of any security, which shall have been or shall be executed by the guardians or managers, as the case may be, after the passing of the Act of 1882, it shall be the duty of the clerk, within 7 days after the same shall be produced to him by or on behalf of the transferee, to make the entries required in columns 16, 17, and 18 of the said register, and to authenticate such entries by placing his signature in column 19 of the said register. Art. 4. At the meeting of the guardians or managers, as the case may be, held next after any entries required to be made under Articles 2 and 3 of this order have been duly made and authenticated as aforesaid, it shall be the duty of the clerk to submit the said register to the guardians or managers, and the chairman shall at such meeting place his signature, in the case of securities executed by the guardians or managers, in column 15 of the said register, and in the case of transfers, in column 20 of the said register. Art. 5. When the final instalment due on any security included in the said register has been paid, it shall be the duty of the clerk to enter in column 21 of said register the date of the pay- ment of such final instalment, and to place his signature at the foot of such entry. Art. 6. No notice of any trust expressed, implied, or construc- tive, in relation to any security shall be entered in the said register. Art. 7. The said register shall remain in the custody of the clerk, and shall be produced by him to the district auditor at every audit. Art. 8. The clerk shall allow the said register to be open at all reasonable times to the inspection of any guardian or manager, as the case may be, and of any other person, and any such person may make copies of or extracts from the entries in the register in relation to any security or transfer included therein without fee or reward. SECT. III.] DISTRICT AUDITORS. 849 Section III. — District Auditors. Appointment of. — The Local Government Board may appoint such number of district auditors as they may, with the sanction of the Treasury, think necessary for the performance of the duties of auditing the accounts which are subject to be audited by district auditors, and may, from time to time, remove such auditors. 42 & 43 Vict. c. 6, s. 4. Assistants. — The Board may, with the consent of the Treasury, appoint persons, either temporarily or otherwise, to assist a district auditor in the performance of his duties. Sect. 4. Powers and Duties. — The chief duties of the district auditors are to audit the accounts of — 1. County Councils, Joint Committees of County Councils, County Treasurer, and Officers of such Council. 2. Parish Councils, and Rural District Councils. 3. Guardians and Officers of Poor Law Unions. 4. Overseers of the Poor. 5. Urban Authorities, other than Town Councils. 6. School Boards. 7. Highway Authorities. 8. Committees of Visitors of Lunatic Asylums. 9. Boards of Management of Asylum and School Dis- tricts. 10. Sea Pisheries Committees. The Board may assign to district auditors their duties, and the districts in which they are to act, and may change wholly or in part such duties or districts. Sect. 4. Regulations as to Audit. — The Board may make regulations as to the audit of the accounts of a local authority which are liable to be audited. Sect. 5. Every rate and assessment made and levied by an overseer is to be audited by the district auditor, and is not to be audited in any other way. 39 & 40 Vict. c. 61, s. 37. The auditor who is authorised to audit the accounts of any guardians, overseers, or officers, may, when authorised by the Local Government Board so to do, inspect the accounts of such 350 ADMINISTRATION OF POOR LAWS. [CHAP. XX. persons. Any person refusing such inspection is liable to a penalty of 5/. 29 & 30 Vict. c. 113, s. 7. Salaries and Expenses. — The whole of the salaries and ex- penses of auditors are paid out of moneys provided by Parlia- ment ; and for the purpose of contributing towards the payment of such salaries and expenses there is charged on every local authority, whose accounts are subject to audit by a district auditor, a stamp duty, according to a scale based upon the amount of the expenditure included in the financial statement, which is required to be prepared and submitted by the local authority at the audit. 42 Vict. c. 6, s. 2. Financial Statement. — When the accounts of the receipts and expenditure of a local authority are audited by a district auditor, the local authority are to submit to the auditor at every audit (other than an extraordinary audit) a financial statement in the prescribed form; one of such duplicates is to have the stamp charged under the Act affixed thereon, which is to be cancelled by the auditor. Sect. 3. The local authority failing to submit a financial statement are liable to a penalty of 20/. Sect. 7. The Local Government Board, by their general order of 28th of April, 1890, have prescribed the forms of the financial statements. Audit. — Seven clear days at least before the day fixed for the audit, the overseers, collectors, and assistant overseers of every parish are to make \ip and balance their rate books, which are then to be deposited at the house, within the parish, of one of such overseers, &c, and notice thereof and of the time and place of the audit is to be given ; and the books are to be open to the inspection of ratepayers. Fourteen days' notice of the audit is to be sent by the auditor, by post or otherwise, to the overseers [and it is to be advertised in a newspaper circulating in the county. 11 & 12 Vict. c. 91, s. 7]. Every ratepayer maybe present at the audit, and may object to the accounts. The auditor may require any person holding or accountable for money, books, &c, relating to the poor rate or relief of the poor, to produce his accounts and vouchers, and to sign a declaration, under a penalty if he refuses. 7 & 8 Vict. c. 101, s. 33. SECT. III.] DISTRICT AUDITORS. 351 Except where a party (not being an officer bound to account) is surcharged, it is not necessary to prove that the audit was adjourned, and that notice of such adjourned audit was given. 11 & 12 Vict. c. 91, s. 7. If the auditor sees cause to surcharge any person liable to be surcharged, and to whom no notice is required to be given, he is, if the person be not present at the audit, to give notice to him, and adjourn the audit, to allow him to appear and show cause against the surcharge. Sect. 8. Where any overseer or officer is continuing in office at the time when the accounts are audited, the auditor is to certify as due such sums only as are disallowed or surcharged hj him ; but where the term of office of such overseer, &c, has expired, he is to ascertain the balance due on the accounts, together with the sums (if any) disallowed or surcharged, and give credit for all sums proved to have been paid in respect of such balance to the succeeding overseers, or otherwise lawfully applied on behalf of the parish or union interested therein, before the date of his audit ; and he is to certify, report, and recover the balance remaining due after such credit given. 11 & 12 Vict. c. 91, s. 5. Sums paid by overseers to constables by order of justices under 5 & 6 Vict. c. 109, are not to be disallowed. 11 & 12 Vict. c. 91, s. 6. Bills due to solicitors for parish or union business may be taxed by the clerk of the peace or his deputy, and such taxation is to be evidence of the reasonableness of the amount, but not of the legality of the charge ; if not so taxed, the auditor's decision is final on both grounds. 7 & 8 Vict. c. 101, s. 39. The effect of this section is to take away the certiorari given by sect. 35, in the case of an auditor's decision upon a solicitor's bill. R. v. Nap/on, 25 L. J. Q. B. 296. The accounts must be audited once in every half-year. Sect. 38. The Local Authorities (Expenses) Act, 1887, provides that ex- penditure which has been sanctioned by the Local Government Board shall not be disallowed by the district auditor. Extraordinary Audit. — When the Local Government Board require an auditor to hold an extraordinary audit of the accounts of any guardians or overseers, or of any officer, whether still continuing or upon his resignation or removal from office, such audit is to be deemed to be an audit within the meaning of the several Acts relating to the audit of the accounts of the poor 352 ADMINISTRATION OF POOR LAWS. [CHAP. XX. rate, and may be held after 3 days' notice thereof given in the usual manner. 29 & 30 Yict. c. 113, s. 6. Recovery of Balances. — When the auditor has certified any money, &c, to be due, he is to report it to the Local Government Board, and the person from whom it is certified to be due is, ■within 7 days, to pay it to the treasurer of the union or parish, to be applied (in the case of a union) to the use of all or any of the parishes, according as they are interested in it ; and all books, &c, and (where there is no treasurer) all sums certified to be due, are to be delivered over or paid, within 7 days, to the persons authorised to receive them ; if they are not so delivered or paid, the auditor may proceed, as soon as may be, to enforce the delivery or payment ; and all sums certified to be due are recoverable from the persons answerable for them, as penalties and forfeitures are recoverable under the 4 & 5 Will. 4, c. 76, and persons refusing to deliver over boohs, &c, are liable to the penalties imposed by the same Act. 7 & 8 Yict. c. 101, s. 32. The proceedings may be taken before justices of the county, &c, where the treasurer resides or has his place of business, or where the overseer, &c, resides. 14 & 15 Yict. c. 105, s. 9. In proceedings by auditors to recover before justices sums certified to be due, it is sufficient for them to produce a certificate of their appointment under the seal of the Local Government Board, and to state and prove that the audit was held, that the certificate was made in the book of account of the union or parish to which it relates, and that the sum certified to be due had not been paid within 7 days after it was so certified, nor within 3 clear days before laying the information. A certificate pur- porting to be signed by the treasurer is sufficient proof of such non-payment. If the sum is proved to have been paid subse- quently to such certificate, the auditor's costs are to be paid by the party informed against, unless he gave notice to him of the payment 24 hours at least before laying the information. 11 & 12 Yict. c. 91, s. 9. It is the duty of justices to issue a distress warrant if the statutable proof of the surcharge required by this section be complete. R. v. Finnis, 28 L. J. M. C. 201 ; 33 L. T. 146. The 11 & 12 Yict. c. 43, s. 11, is not to apply to informations by auditors, but such proceedings must be commenced within 9 calendar months from the disallowance or surcharge, or, in SECT. III.] DISTRICT AUDITORS. 353 the event of an appeal, from the determination thereof. 12 & 13 Vict. c. 103, s. 9. If the auditor proceeds for a penalty for the default of any officer or person to attend an audit, or to produce accounts or vouchers, or to sign a declaration, the costs incurred by the auditor, when not recovered from the defendant, are, if the Local Government Board consent, to be payable to the auditor, and chargeable as costs incurred by him in enforcing the pay- ment of sums certified to be due. Sect. 11. Remedy for Parties aggrieved. — If any person aggrieved by any allowance, disallowance, or surcharge by an auditor requires it, the auditor is to state the reasons for such allowance, &c, in the book of account in which it is made ; and every person aggrieved by such allowance may apply to the Queen's Bench Division for a certiorari to remove the said allowance, &c. The auditor's decision upon a joint account may be reversed or remitted by the Court or the Local Government Board, in favour of one or some only of the parties appealing. 39 & 40 Vict. c. 61, s. 38. The party so aggrieved may, in lieu of applying for a certiorari, apply to the Local Government Board to inquire into and decide on the lawfulness of the reasons stated by the auditor, and they may make such order therein as they deem requisite for deter- mining the question; 7 & 8 Vict. c. 101, s. 36; and they may decide the same according to the merits of the case ; and if they find that any disallowance or surcharge was lawfully made, but that the subject-matter thereof was incurred under such circum- stances as make it fair and equitable that it should be remitted, they may direct it to be remitted, upon payment of the costs (if any) incurred by the auditor or other competent authority in the enforcing such disallowance or surcharge. 11 & 12 Vict. c. 91, s. 4; 29 & 30 Vict. c. 113, s. 5. Section IV. — Paid Officers of Guardians. Appointment of. — The Local Government Board may direct the overseers or guardians to appoint paid officers for super- intending or assisting in the relief or employment of the poor ; and the Board may specify the duties of such officers, and direct S. A A 35-1 ADMINISTRATION OF POOR LAWS. [CHAP. XX." the mode of appointment, and the amount of the security to be given by them ; they may also regulate their salaries, and such salaries are to be chargeable upon the poor rate, and recoverable against the guardians or overseers. 4 & 5 "Will. 4, c. 76 s. 46. The giving security is not a condition precedent to the validity of the appointment. R. v. Patteson, 4 B. & Ad. 9 ; and see as to the liability of sureties of officers, Mills v. Alderbnry, 18 L. J. Ex. 252 ; Lichfield v. Greene, 26 L. J. Ex. 140 ; Bedford v. Patteson, 25 L. J. Ex. 91. If the Board of Guardians fail for 28 days after receipt of a requisition of the Local Government Board, ordering them to appoint any officer whom they may be lawfully required to appoint, the Local Government Board may appoint an officer and fix the salary to be paid him by the guardians. 31 & 32 Yict. c. 122, s. 7. Appointments of Officers. — An officer is appointed by a resolu- tion of the Board of Guardians entered on their minutes ; and it is not necessary that there should be a formal appointment in writing. Frost v. Holland, 5 B. & C. 611 ; R. v. Greene, 21 L. J. M. C. 137. Dismissal. — The Board may, by their order, remove the master of any workhouse, or 'other paid officer, upon or without the suggestion of the overseers or guardians ; and the person so removed is not to be competent to fill any paid office connected with the relief of the poor without the sanction of the Board. Sect. 48. Such an order may come into ojieration within 14 days. 5 & 6 Vict. c. 57, s. 4. The Board have an absolute discretion to remove without summoning or hearing the party dismissed. Ex parte Feather, 1 L. M. & P. 7. As to disqualification for a parochial offiee, see p. 104. Clerk to Guardians. — A quo warranto will lie for this office. R. v. St. Martin! s-in-the- Fields, 17 Q. B. 149. In the election of a clerk to the guardians the chairman ought to vote. Ibid. The clerk or other officer to a Board of Guardians, if duly em- powered by such Board, may conduct any proceedings on behalf of the Board, before justices at petty sessions, although he is not a solicitor. 7 & 8 Vict. c. 101, s. 68. SECT. IV.] PAID OFFICERS OF GUARDIANS. 355 Rules of Local Government Board as to paid Officers. — By the Order of 24th July, 1847, it is provided :— Art. 153. The guardians shall, whenever it may be requisite, or whenever a vacancy may occur, appoint fit persons to hold the under-mentioned offices, and to perform the duties respectively assigned to them. 1. Clerk to the guardians. 2. Treasurer of the union. 3. Chaplain. 4. Medical officer for the workhouse. 5. District medical officer. 6. Master of the workhouse. 7. Matron of the workhouse. 8. Schoolmaster. 9. Schoolmistress. 10. Porter. 11. Nurse. 12. Relieving officer. 13. Superintendent of out-door labour. And also such assistants as the guardians, with the consent of the Local Government Board, may deem necessary for the efficient performance of the duties of any of the said offices. The appointment of a workhouse chaplain must be confirmed by the bishop. The duties are regulated by the guardians. The incumbent of the parish in which the workhouse is situated may not interfere with the performance of them. Molyneux v. Bagshaw, 11W.E. 687 ; 9 Jur. (N. S.) 553. Under this order it is competent to the guardians to appoint and pay a Roman Catholic clergyman to minister to the religious wants of the Roman Catholic inmates of the workhouse. R. v. Ilaslehurst, 13 Q. B. D. 253; 53 L. J. M. C. 127; 51 L. T. 95. * . Art. 154. The officers so appointed to or holding any of the said offices, as well as all persons temporarily discharging the duties of such offices, shall respectively perform such duties as may bo required of them by the rules and regulations of the Local Government Board in force at the time, together with all such other duties conformable with the nature of their respec- tive offices as the guardians may lawfully require them to per- form. Order of Local Government Board, July 24th, 1847. A A 2 356 ADMINISTRATION OF POOR LAWS. [CHAP. XX. The guardians, with the consent of the Local Government Board, may determine the appointment of masters, matrons, schoolmasters, and schoolmistresses of workhouses, and of re- lieving officers, within the first year of their service, and at any time may dismiss them with the like consent. Order of Local Government Board, February 12th, 1879. Relieving Officer. — Art. 2. Where a change in the extent or the district of a relieving officer appointed after the 28th of February, 1879, or where the transfer of any such relieving officer from one district to another in the same union or separate parish, shall be deemed necessary for the more convenient or efficient administration of relief, or otherwise, and he shall decline to acquiesce in such change or transfer, the guardians may, with the consent of the Local Government Board, and after 6 months' notice in writing, signed by the clerk and given to such officer, determine his office. Ibid. Medical Officer. — Art. 3. Every medical officer appointed by the guardians, whether for a district or a workhouse, shall, immediately upon the occurrence of any case of contagious, infectious, or epidemic disease of a dangerous character amongst the pauper patients under his care, give notice thereof to the clerk of the Urban or Rural District Council, as the case may be, within which he acts as medical officer, or to the medical officer of health of such authority. He shall also furnish from time to time to the medical officer of health of such sanitary authority such information with respect to the cases of sickness and the deaths amongst the pauper patients under his care as the Local Government Board may direct, and whenever the Local Government Board shall make regulations for all or any of the purposes specified in sect. 134 of the Public Health Act, 1875, he shall observe such regulations as far as the same relate to or concern his office. Art. 4. No district medical officer shall, except in cases of sudden accident immediately threatening life, be entitled to receive the remuneration prescribed by the orders for any am- putation unless, before performing it, he shall have obtained, at his own cost, the advice of some person who shall be registered under the Medical Act of 1858, and shall be qualified by law to practise in England and Wales either medicine or surgery, or SECT. IV.] PAID OFFICERS OF GUARDIANS. 357 both ; and unless he shall produce to the guardians a certificate from such person, stating that, in his opinion, it was right and proper that such amputation should be then performed. Ibid. Superannuation Allowances to Officers. — Every officer and servant in the service or employment of the guardians of a union or parish who becomes incapable of discharging the duties of his office with efficiency, by reason of permanent infirmity of mind or body, or of old age, or who has attained the age of 60 years and completed an aggregate service of 40 years, or who has attained the full age of 65 years, is entitled on resigning or otherwise ceasing to hold his office or employment, to receive during life out of the common fund of the union a superannua- tion allowance according to the scale laid down in this Act. 59 & 60 Vict. c. 50 ; 60 & 61 Vict. c. 28. Section V. — Overseers. The officers of the civil parish are " the overseers of the poor." Where a civil parish is also an ecclesiastical parish a church- warden is virtute officii an ex-officio overseer. 43 Eliz. c. 2, s. 1. But by the Local Government Act, 1894, churchwardens of rural parishes are not to be overseers. 56 & 57 Vict. c. 73, s. 5 (2). In any parish the same person may hold jointly the offices of churchwarden and overseer. 29 & 30 Vict. c. 113, s. 12. The justices have nothing to do with the appointment of overseers in rural districts. 1 . Appointment of Overseers. i. In Urban Parishes. In urban districts the Local Government Act, 1894, makes no difference, but it enables the Local Government Board to confer on the urban council the power of appointing overseers, and assistant overseers, or any powers of overseers. 56 & 57 Vict. c. 73, s. 33. When appointed. — In an urban parish the overseers are nominated annually by the justices, and the appointment must be made on the 25th of March, or within 14 days afterwards. 54 Geo. 3, c. 41. In the case of death, removal to another place, or bankruptcy of an overseer, two justices may, on oath thereof, 358 ADMINISTRATION OF POOH LAWS. [CHAP. XX. appoint another in his stead till new ones are appointed. 17 Geo. 2, c. 38, s. 3. The Queen's Bench Division would pro- bably grant a mandamus to compel an appointment where it is neglected beyond the proper time. 1 Nol. P. L. 44. By whom. — In an urban parish the appointment must be made by two or more justices of the county in which the parish or township is situate. 43 Eliz. c. 2, s. 1, and 13 & 14 Car. 2, c. 12, s. 21. In corporate towns and cities it is made by the justices having jurisdiction therein, whether they be justices of the city, or borough, or of the county in which it is situate. 12 & 13 Vict. c. 8, s. 1 ; 15 & 16 Vict. c. 38. To enable the justices to make a fit selection, the existing overseers usually, towards the close of their year, form a list of substantial householders proper to succeed them. Form of Appointment. — The appointment must be in writing, and under the hand and seal of two justices, executed in the presence of each other. R. v. Great Marlow, 2 East, 244. It should appoint the parties "overseers" eo nomine; R. v. St. George, Fort. 320 ; and state them to be substantial householders in the parish; describing them as "principal inhabitants" is bad ; R. v. Sheringbrook, 2 Ld. Raym. 1394 ; Overseers of Weobly, 2 Stra. 1261 ; and it must state that the appointment is for a parish, township, &c. ; R. v. Morris, 4 T. R. 550 ; and show that it is within the magistrates' jurisdiction. R. v. Houlditch, 1 Bott, 4. It should express the time for which the appoint- ment is made, as for "one year next ensuing," or "the present year." R. v. Rurder, 4 T. B. 778 ; R. v. Helling, 3 Burr. 1904. If made on a Sunday, it will be bad, unless under peculiar cir- cumstances, and done bond fide. R. v. Butler, 1 W. Bl. 649. If two sufficient appointments are made on the same day the last is void, for when the appointment is once legally made, the magistrates' jurisdiction ceases. R. v. Great Marlow, 1 Bott, 30. See R. v. Searle, ibid. 25. Appeal against Appointment. — Persons aggrieved by the appointment, whether the appointee, or the parishioners at large, may appeal to the next quarter sessions. 43 Eliz. c. 2, s. 6 ; R. v. Forrest, 3 T. B. 38 ; R. v. JJ. St. Albans, 3 B. & C. 698. The want of jurisdiction in the magistrates making the appointment, or the impropriety of their choice, are good SECT. V.] OVERSEERS. 359 grounds for quashing their order. Albrighton v. Skiplon, 1 Str. 300 ; R. v. Stotfold, 4 T. E. 596. The appointment or order of sessions confirming it on appeal may also be removed by certiorari into the Queen's Bench, and there quashed for any defect appearing on its face or shown by affidavit. R. v. Gayer, 1 Burr. 245 ; R. v. Walsall, 2 B. & Aid. 157 ; R. v. Standard Hill, 4 M. & Sel. 378. But a mandamus to an overseer to produce his appointment to a rated inhabitant, on a surmise that it is bad, was refused, the alleged defect being the subject of an appeal. R. v. Harrison, 9 Q. B. 794. ii. In Rural Parishes. The power and duty of appointing overseers of the poor for every rural parish having a parish council is transferred to and vested in the parish council, and that council in each year, at their annual meeting, appoint the overseers of the parish, and as soon as may be fill any casual vacancy occurring in the office of overseer of the parish. 56 & 57 Vict. c. 73, s. 5. They are required, in either case, forthwith to give written notice of the appointment to the Board of Guardians in a form prescribed by the Local Government Board. If notice in the prescribed form is not received by the guardians within 3 weeks after the 15th April, or after the occurrence of a vacancy as the case may be, the guardians shall make the appointment or fill the vacancy. Even if an appointment had in fact been made by the parish council, it might be thus set aside, unless the requisite notice had been given, for the section provides that any overseer appointed by the guardians shall supersede any overseer pre- viously appointed, whose appointment has not been notified. Sect. 50. In any case the number to be appointed cannot exceed 4, nor can the number be less than 2, unless 2 cannot be conveniently appointed from the inhabitant householders of the parish. The ordinary qualification for office of overseer is being a sub- stantial householder of the parish. But the parish council may appoint a person who is not a householder of the parish as over- seer, if he is assessed to the poor rate of the parish, and is a householder resident within 2 miles from the church of the parish, or where there is no church resident within 1 mile from the boundary of the parish. 360 ADMINISTRATION OF POOR LAWS. [CHAP. XX. A person who is not a householder in the parish cannot, how- ever, be compelled to serve as overseer without his consent. If it appears to the parish council that there is no householder in the parish liable or fit to be appointed overseer, they must appoint some inhabitant householder of an adjoining parish who is willing to serve. In such a case they may make the appoint- ment either with or without salary, but except in this case no remuneration can be awarded to any person for acting as overseer. As to disqualified persons, see ante, p. 104. The appointment of overseers and assistant overseers by a parish council or parish meeting would appear to be complete by election, and no document is required beyond a minute of the appointment. R. v. Powell, (1899) 1 Q. B. 396. No appeal appears to be given where the appointment is by the parish council or meeting, but in some cases a certiorari might be available. iii. Generally. Who may be appointed. — The persons appointed must be rate- payers ; but neither personal residence nor payment of rent or taxes is essential. Thus, every partner in a business, carried on in a dwelling-house, though only a servant reside there, is a householder for this purpose; R. v. Poynder, 1 B. & C. 178; and a woman may be appointed overseer. R. v. Stubbs, 2 T. E. 395. The 43 Eliz. c. 2, requires that they shall be substantial householders ; but this is a relative term, and therefore labourers, being householders, have been held sufficient, where there were no more competent persons in the township. Ibid. By the 59 Geo. 3, c. 12, s. 6, residents within 2 miles of the parish church, or 1 mile of the boundary of the parish, may be appointed, by their own consent, and on the request of the parish in vestry assembled, although they be non-resident in the parish, if they are assessed to the poor thereof. Service compulsory. — Service in the office is compulsory, sub- ject to certain exemptions as disqualifications. If a person appointed overseer, and having had notice thereof, refuses to undertake or execute the duty, he may be indicted. R. v. Jones, 2 Str. 1146; R. v. Poynder, 1 B. & C. 178. SECT. V.] OVERSEERS. 361 Exemptions. — The persons exempt from serving otter parish, offices are also exempt from serving the office of overseer. See ante, p. 104. Appointing a Deputy. — The overseers have no power to appoint or pay a deputy ; hut the vestry may elect one or more " discreet persons " to be assistant overseers (post, p. 370), and to perform all or any of the duties of the overseers. A Nonconformist or Boruan Catholic can serve the office by deputy. Ante, p. 105. Disqualifications. — Persons concerned in contracts for the supply of goods, &c, for the relief of the poor of a parish or union, cannot be appointed overseers for that parish, or for any parish in that union. 12 & 13 Yict. c. 103, s. 6. Nor can the master of the workhouse or relieving officer. 13 & 14 Vict. c. 101, s. 6. Nor an assistant overseer. 29 & 30 Yict. c. 113, s. 10. Nor a person convicted of felony, fraud or perjury. 4 & 5 "Will. 4, c. 76, s. 48. Nor a person convicted of corrupt prac- tices at a municipal election. 47 & 48 Vict. c. 70. Number of Overseers. — The Act of Elizabeth directed that "4, 3, or 2 substantial householders" should be nominated in every parish as overseers. There cannot be more than 4 over- seers appointed; R. v. Harman, 1 Bott, 16; nor less than 2; R. v. Morris, 4 T. B. 550; R. v. Clifton, 2 East, 168; unless it appear to the justices, who are required to appoint overseers, that 2 overseers cannot be conveniently appointed from the in- habitant householders in any parish, then such justices may appoint 1 overseer only, and if it appear to them that there is no such householder liable or fit to be appointed, they must appoint some inhabitant householder of an adjoining parish willing to serve to be such overseer, either with or without an annual salary to be paid out of the poor rate of the parish, which last-mentioned appointment is to endure until the usual time of the appointment of overseers, and may be renewed from year to year as long as the justices find it necessary. 29 & 30 Vict. c. 113, s. 11. 2. Powers and Duties of Overseers. Powers and Duties of Overseers. — The present position and duties of overseers were referred to by the Master of the Eolls (Lord Esher) in R. v. White, 14 Q. B. D. 358 ; 54 L. J. M. C. 23, 362 ADMINISTRATION OF POOR LAWS. [CRAP. XX. in the following words : — " It has been argued that overseers are mere ministerial agents or officers. It is admitted in the old days they were not, but it is said that by a course of legislation they have become so. In my opinion they are not now any more than they formerly were so. They are the persons who by law are to make the rate. It is true they have to make the rate to meet expenditures which have been incurred by other people indepen- dently of them, as for instance, for the relief of the poor, which is now under the control of the guardians of unions, subject to the control of the Local Government Board. There are many other expenses put upon the poor rate, and for which the over- seers in making the rate must provide. The overseers, when about to make a rate, have to take into account all the different things which they have to provide for out of the rates, and then it is their duty to make the rate, and, as it is admitted, with a margin, as to the extent of which they are the judges. More- over, the rate in a great many respects, if not in all respects, is a prospective rate ; therefore, to say that overseers who have to make those calculations and to consider those matters are merely ministerial officers seems to me to be clearly wrong. If it is the duty of overseers to make the rate, it is to make a rate which upon the whole shall produce no more than it fairly ought, because if they make too large a rate they lay an improper burden on the ratepayers. They must not, therefore, make an exorbitant rate. Further, it cannot be denied that it is part of the duty of overseers to see that no improper, that is, illegal, burden is put upon the rates. For instance, it is admitted that if there is an attempt to impose upon their parish a pauper who really is not settled in their parish, it is the duty of the overseers to resist that. Then, if it is their duty to see that the rates are not improperly burdened, what is the necessary consequence, but that they are entitled to defend the rates for the benefit of the parish ? Overseers are persons upon whom the law casts a con- siderable duty without remuneration, and it necessarily follows that where they have rightly protected the ratepayers, their moderate expenses of so doing have always been allowed in any rating or settlement case." Parish Depositories. — The powers, &c, of overseers, &c, as to parish books, &c, are now transferred to the parish council. 56 & 57 Vict. c. 73, s. 6 (1) (c). SECT. V.] OVERSEERS. 363 Notices to, and Acting of, Overseers. — Every matter by the Municipal Corporations Acts directed to be done by overseers may be lawfully done by the major part of them. Any notice by those Acts required to be given to overseers may be delivered to any of them or left at his place of abode, or at his office for transacting parochial business. 45 & 46 Yict. c. 50, s. 238. All acts which the whole body are competent to perform may pro- perly be clone by a majority. Doe v. Clarke, 14 East, 488 ; R. v. //. Warwickshire, 6 A. & E. 873. The overseers have by law the custody of the instruments by which they are appointed. R. v. Stoke Golding, 1 B. & Aid. 173. Making Poor Rate. — The chief duty of the overseers is the making and levying of the poor rate. See ante, pp. 30S, 330. Relief of the Poor. — The various modes in which parish relief may be afforded are stated under the title Relief, post, Chap. XXI. The duty of administering relief in parishes which are under guardians, or form part of a union, is now transferred to the guardians, and it is not lawful for any overseer to give any further or other relief or allowance from the poor rate than such as is ordered by the guardians, except in cases of sudden neces- sity. 4 & 5 "Will. 4, c. 76, s. 54. The overseers are also required to keep registers of the names of persons in receipt of relief. Sect. 55. By the following general order of April 22nd, 1842, the Local Government Board have laid down the duties of overseers of parishes in unions, with respect to temporary relief ordered by them. Art. 1. Every overseer, in any case of sudden and urgent necessity, giving temporary relief to any poor person in articles of necessity, or in any case of sudden and dangerous illness giving an order for medical relief, shall forthwith report such case in writing to the relieving officer of the district or to the board of guardians of the union, and the amount of such relief or the fact of having made such order. Art. 2. Every overseer receiving an order under the hands and seal of two justices, according to the provisions of the " Poor Law Amendment Act, 1831," directing relief to be given to any aged or infirm person, without such person being required to reside in any workhouse, shall forthwith transmit the same to 364 ADMINISTRATION OF POOR LAWS. [CHAP. XX. the relieving officer of the district to be laid before the guardians at their next meeting. Art. 3. Every overseer receiving an order for medical relief from any justice in case of sudden and dangerous illness, shall, as soon as may be after complying with such order, report the fact of his having received the same, and the manner in which he has complied with it, in writing, to the relieving officer of the district, or to the board of guardians of the union. Payments out of Poor Pates. — By the general order of April 22nd, 1842: — Art. 5. Every overseer shall pay over from time to time, out of the poor rates, all such sums as by any order of the guardians of the union addressed to the overseers in writing, according to the form prescribed by any order of the poor law board or the Local Government Board in force for the time being, shall be directed to be provided from the poor rates of the parish ; and shall pay over such sums to such person or persons, at such times and places as by the same order shall be directed, and take the receipt of such person or persons, and produce such order and such receipt as his voucher for such payments before the auditor of the union at the audit of his accounts. The overseers in the case of a parish are the rating authority under the Elementary Education Act, 1870 ; and any sum required to meet any deficiency in the school fund, whether for satisfying past or future liabilities, is to be paid by the rating authority out of the local rate. 33 & 34 Tict. c. 75, s. 54. A general order of the Local Government Board, dated 11th February, 1895, sets out the following form of precept to be issued by parish councils to overseers, requiring the latter to pay money. Precept. Parish of To A.B. and CD., overseers of the poor of the parish of You are hereby directed to pay to F.G., of [treasurer of the parish council of the above-named parish], at on the day of , 189 , the sum of pounds shillings and pence [or on the following days, that is to say, on the day of , 189 , the sum of pounds SECT. V.] OVERSEERS. 365 shillings and pence ; and on the day of , 189 , the sum of pounds shillings and pence], from the poor rate of the parish to meet the expenses payable by the parish council under the Local Government Act, 1894, other than any expenses under any of the adoptive Acts, and to take the receipt of the said F.G. endorsed upon this paper, for the said sum (or sums). Signed at a meeting of the parish council held on the day of , 189 . Presiding Chairman. ITico members of the parish. Countersigned. Countersigned. Clerk to the Parish Council. If there is no treasurer the words in the first brackets must be omitted. Registration of Voters.— 6 & 7 Vict. c. 18 ; 28 & 29 Vict. c. 36; 30 & 31 Vict. c. 102; 41 & 42 Vict. c. 26 (boroughs); and 48 & 49 Vict. c. 3 ; impose various duties on overseers as to pub- lishing notices and lists of voters for parliamentary and municipal elections, and of claims and objections in counties and boroughs. The overseers are bound to attend with their books at the revision court. They annually make out the burgess list for each parish in the borough for submission to the revision court. Jury Lists. — As to the preparation of jury lists by overseers, see ante, p. 285. Fire Engine and Escape.— See 30 & 31 Vict. c. 106, s. 29 ; and 56 & 57 Vict. c. 73, s. 6. Burial of Bodies cast on Shore. — See ante, p. 161. What Disbursements allowed. — Overseers may take credit for all sums properly expended, but not for disbursements to which the rate is not by law applicable. R. v. Seville, 5 B. & Aid. 180 ; R. v. Bird, 2 B. & Aid. 522. 366 ADMINISTRATION OF TOOK LAWS. [CHAP. XX. Reimbursement. — If an overseer has advanced his own money for the maintenance of the poor, &c, he may repay himself during his year of office, and the succeeding overseers may levy such sums as remained due to him at the expiration of his office, and reimburse him out of the amount. 17 Geo. 2, c. 38, s. 11. If the amount to be recovered by the overseers or their succes- sors in the rate last made before the termination of their year of office is insufficient to meet the demands upon them, and the said overseers pay the necessary excess out of their funds, it is lawful for an overseer to pay to his predecessor any money so paid by him in excess, and such payment may be allowed by the auditor if it appears to him that the said payment in excess did not arise from the negligence or wilful action of the overseer so paying the same out of his own funds. 39 & 40 Yict. c. 61, s. 29. If the overseers lawfully, by virtue of their office, contract a debt on account of the parish within 3 months prior to the ter- mination of their year of office, and the same has not been dis- charged by them before their year of office is determined, such debt is payable by and recoverable from the succeeding overseers and chargeable upon the poor rate ; if the debt was contracted during the year of office, but more than 3 months prior to its termination, it may be paid by the immediate successors if the vestry and the Local Government Board consent. 11 & 12 Vict. c. 91, s. 1. See Chambres v. Jones, 5 Exch. 229. The expenses of litigating settlements and other law expenses properly incurred will be allowed. Where a private Bill before Parliament attempted to place a burden upon the rates, and the overseers, with the authority of the vestry, successfully opposed the Bill, and in so doing incurred certain expenses which were not immoderate, and were allowed by the auditor, it was held by the Court of Appeal that the overseers were entitled to charge the expenses so incurred upon the poor rate. R. v. White, 14 Q. B. D. 358; 54 L. J. M. C. 23, ante, p. 361. See R. v. Inhabitants of Essex, 4 T. B-. 591. The costs of defending an appeal against the overseers' accounts cannot be allowed, it. v. Johnson, 5 A. & E. 340. But where overseers have acted bond Jicle, and not improvidently, in contesting an appeal against a poor rate which they afterwards refused to support, the costs of so doing ought not to be disallowed because they acted without SECT. V.] OVERSEERS. 367 first obtaining the sanction of the vestry. R. v. Street, 18 Q. B. 682 ; see R. v. Fouch, 2 Q. B. 308 ; R. v. Great Western Rail. Co., 13 Q. B. 327. All payments, charges, or allowances made by any overseer or guardian, and charged upon the poor rates contrary to this Act, or at variance with any rule, &c, of the Local Government Board, are declared to be illegal, and are to be disallowed. 4 & 5 Will. 4, c. 76, s. 89. The Local Government Board may, by their order, on receipt of a copy, under the hands of the overseers of a parish, of a resolution passed at a meeting of ratepayers and owners of pro- perty consenting to such order, direct the overseers, by equal annual instalments, not exceeding ten, to pay out of the poor rate, or other moneys applicable in aid thereof, any bond fide parish debt. 5 & 6 Vict. c. 18, s. 5. And by sect. 6, the over- seers, if directed by such order and resolution, may borrow any sum requisite to pay such debt, &c, and charge the same on the poor rates, such sum to be repaid by equal annual instalments, not exceeding ten, and the instrument charging the rates to be approved by the Local Government Board. Misconduct. — An attachment lies against an overseer for dis- obeying a Crown Office subpoena to produce rate books before justices on an inquiry as to a pauper's settlement. R. v. Green- away, 7 Q. B. 126. Bankruptcy. — If an overseer is adjudged bankrupt, his office thereupon becomes vacant. 46 & 47 Vict. c. 52, s. 34. Neglect of Duty. — The sessions have no power to attach over- seers for disobedience of their orders ; in such case, the proper mode is to indict them for the misdemeanour. R. v. Bartlett, 1 Bott, 322. The 17 Geo. 2, c. 38, imposes a penalty not exceed- ing 51., nor less than 20s., for every neglect or refusal to obey the directions of that Act. If any overseer or other officer of any parish or union wilfully disobeys the legal and reasonable orders of the justices or guardians in carrying the rules, &c, of the Local Government Board or the provisions of the Act into execution, he is liable, on conviction before two justices, to pay a sum not exceeding 51. 4 & 5 Will. 4, c. 76, s. 95. But, by sect. 96, he is not to be 368 ADMINISTRATION OF POOR LAWS. [_ CHAP - XX - subject to any prosecution or penalty for not executing any illegal order of such justices or guardians. Embezzling Money, &c. — If any overseer, assistant overseer, master of a workhouse, or other paid officer, or any other person employed by or under the authority of the guardians, purloins, embezzles, or wilfully (see Carpenter v. Mason, 12 A. & E. 629) wastes or misapplies any of the moneys, goods, or chattels belonging to any parish or union, every such offender is (in addition to such other penalties as he may be liable to), upon conviction before any two justices, to forfeit and pay a sum not exceeding 20/., and also treble the amount or value of the goods, &c, so purloined, &c, and is for ever thereafter incapable of serving any office under any Act for the relief of the poor. 4 & 5 Will. 4, c. 76, s. 97 ; and see 24 & 25 Vict. c. 96, ss. 68, 81—84. False Declaration. — Overseers omitting to make the declara- tion required by the Union Assessment Committee Act, 1862, or making the same falsely, knowing it to be untrue, are hable to a penalty of 51. 27 & 28 Vict. c. 39, s. 11. Supplying Provisions, &c, for Profit. — Churchwardens and overseers of parishes comprised in unions are not now prohibited from supplying goods for the relief of the poor. 31 & 32 Vict. c. 122, s. 44. Vesting of Parish Property. — By 59 Geo. 3, c. 12, s. 17, all buildings, lands, and hereditaments, purchased, hired, or taken on lease by the churchwardens and overseers of the poor of any parish, by the authority and for any of the purposes of the Act, were to be conveyed, demised, and assured to the churchwardens and overseers and their successors, in trust for the parish, and they might take and hold, in the nature of a body corporate for the parish, all such buildings, &c, and also all other build- ings, &c, belonging to such parish. Property so vested is now transferred to the parish council. 56 & 57 Vict. c. 73, ss. 5 (1) (c), 6 (1) (c). Property in Goods for Poor. — The property in all goods, furni- ture, provisions, clothes and materials whatsoever, provided for the use of any parish, township, hamlet or place, is vested in the SECT. V.] OVERSEERS. 369 overseers for the time being and their successors, and they may bring any action or indict any person who steals, buys, or receives any such goods, &c. ; and in every such action or indict- ment the said goods, &c, are to be laid to be the property of the overseers of the parish for the time being, without stating their names. 55 Geo. 3, c. 137, s. 1. Recovery of Parish Lands. — If any person to whom any parish land has been let for his own occupation refuses to quit and deliver up the possession thereof to the churchwardens and over- seers of such parish, at the expiration of the term for which the same have been demised to him, or if any person unlawfully enters upon, or takes or holds possession of any such land, or any other land or hereditaments belonging to such parish or to the churchwardens or overseers, such churchwardens and over- seers, after such notice and demand of possession as is directed in the case of parish houses, may exhibit a complaint before justices, who are required, if they adjudge the same to be true, to cause possession to be delivered to the churchwardens and overseers, in the like manner as is directed with regard to parish houses. 59 Geo. 3, c. 12, s. 25. These provisions have been extended to guardians of unions and parishes by 5 & 6 Will. 4, c. 69, s. 5. If the justices have acted within their jurisdiction, the Queen's Bench Division will not review their decision. E. v. Bolton, 1 Q. B. 66. This statute was not intended to take away the right which the owner of property had at common law to enter and take possession, if it could be done peaceably, but to provide a more expeditious mode of obtaining possession where it is obstinately withheld. Wildbor v. Rainforth, 8 B. & C. 4. Actions against Overseers. — Where all the overseers jointly order goods to be supplied to the poor, all may be jointly sued; and an assistant overseer joining in the order is liable. Kirby v. Banister, 5 B. & Ad. 1069. But it is a question for the jury whether credit was given to one overseer individually or to the parish. Eaden v. Titchmarsh, 1 A. & El. 691 ; Malkiny. Vicker- staff, 3 B. & Aid. 89. Overseers cannot by their contracts render their successors liable. Sowclen v. Emsley, 3 Stark. 28 ; Chambres v. Jones, 5 Exch. 229. Overseers are liable for necessaries or medical attendance s. h B 370 ADMINISTRATION OF POOR LAWS. [CHAP. XX. supplied to paupers, if ordered or recognised by them. Lamb v. Bunce, 4 M. & Sel. 275. But where the relief is given in another parish to casual poor, they are only liable if they expressly promise to pay. Protection of Overseers. — In actions against overseers in matters connected with their office they have the advantages of the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61). Section VI. — Assistant Overseers axd Collectors. Assistant Overseer, how appointed. — By sect. 81 (6) of the Local Government Act, 1894, so much of any enactment as authorises the appointment of assistant overseers by a board of guardians is repealed. In rural parishes assistant overseers are now appointed by the parish council, if there be one (56 & 57 Vict. c. 73, s. 5 (1) ), and by the parish meeting if there is no parish council. No appoint- ment or confirmation by justices is required. Overseers must be appointed annually, but the assistant overseers may be appointed or their appointment may be revoked at any time as occasion demands. If the parish council appoint or reappoint an assistant over- seer, they must pass a resolution to this effect, and the resolution must specify the salary to be paid to the officer, and must assign to him his duties. As regards the salary, it will be borne in mind that, if the assistant overseer is clerk to the parish council, the performance of his duties as clerk is to be taken into account in determining his salary as assistant overseer. A separate salary must not be assigned to him as clerk. The duties to be assigned to him may be all or any of the duties of an overseer, except that where there is a collector of poor rates appointed by the guardians the duty of collecting the poor rates cannot be assigned to the assistant overseer. Subject to this, if it is intended that he should perform all the duties of an overseer, it will be sufficient if the resolution assigns to him all the duties of an overseer. The duties need not be specified. But if only some of the duties of an overseer are to be performed by him, the duties assigned must be clearly stated. If there is only one assistant overseer for the parish, the resolution need not appoint him as clerk to the parish council. SECT. VI.] ASSISTANT OVERSEERS AND COLLECTORS. 371 Unless there is a vestry clerk for the parish, or one of the mem- bers of the parish council acts as clerk, the assistant overseer will be entitled to act as clerk without any appointment as such. But if there is more than one assistant overseer for the parish, and there is no vestry clerk, and no member of the parish council acts as clerk, then the council must appoint one of the assistant overseers to act as clerk. It is not necessary that the assistant overseer should be appointed for any particular period. If no period is specified, he will hold office until he resigns, or until his appointment is revoked by the parish council. No warrant of justices will be required. As to the appointment not being in writing, see ante, p. 360. An assistant overseer cannot be appointed a guardian ; 5 & 6 Yict. c. 57, s. 14 ; nor can he be appointed an overseer. 29 & 30 Vict. c. 113, s. 10. An assistant overseer is to give security to the guardians. 7 & 8 Vict. c. 101, s. 61, post, p. 372. An assistant overseer, appointed under 59 Geo. 3, c. 12, s. 6, may sign the poor rate as one of the overseers, if he be appointed to perform all the duties of the overseers. Baker v. Lock, 34 L. J. M. C. 49. He is to assist the overseer in making out and serving notices of arrears of poor rates. Order of Local Government Board of 15th November, 1867. "When the overseers of a parish have expressed their intention of collecting the rates themselves, but the parish council have by resolution appointed an assistant overseer, the Court will grant a mandamus to the overseers to deliver to the assistant overseer the rate-books and all other books in their custody as overseers, for the purpose of enabling him to perform the duties of his office. R. v. Powell, (1899) 1 Q. B. 396 ; 68 L. J. Q. B. 274. Collector. — The power of appointing a paid collector of rates is still vested in the guardians. If the guardians of a parish or union make application to the Local Government Board to direct the appointment of a paid collector of rates in such parish or union, or any parish of such union, tho Board may order them to do so ; and are to have the samo powers with respect to such collectors as they have with respect to paid officers. 7 & 8 Vict. B B 2 372 ADMINISTRATION OF POOR LAWS. [CHAP. XX. c. 101, s. 62; see 2 & 3 Vict. c. 84. That section makes the salary chargeable upon and payable out of the poor rates, and recoverable against the overseers and guardians in the same way as the salaries of paid officers are recoverable. But the guardians cannot be sued by a collector for his salary. Smart v. West Ham Union, 10 Exch. 867. "When a collector of rates has been appointed for a parish under the order of the Local Government Board, the power of any other persons than the guardians to appoint a collector or assistant overseer is to cease, except where they are appointed under a local Act for a parish containing above 20,000 inhabitants. 7 & 8 Vict. c. 101, s. 61 ; see R. v. Greene, 17 Q. B. 793. In a parish situate in a district for which a collector or assistant overseer is appointed by order of the Local Government Board, such collector or assistant overseer may be appointed to dis- charge all the duties of overseer, in addition to those of collector, in the same manner as if he had been appointed under the 59 Geo. 3, c. 12. But no overseer is to be discharged by such appointment from his responsibility for the provision and supply of moneys necessary for the relief of the poor, or for any piirposes for which poor rates may be made. All collectors and assistant overseers are, subject to the rules of the Local Government Board, to obey, in all matters relating to the duties of overseer, the directions of the majority of the overseers of the parish for which they act. They are also to give to the guardians of the parish or union, or (if there be none such) to the overseers, security for the due performance of their duties ; such bonds are not liable to stamp duty ; and all such bonds given under this Act or the 59 Geo. 3, c. 12, and not contrary to the rules of the Local Govern- ment Board, may, if the guardians see fit, be put in suit by the board of guardians, notwithstanding they were originally given to the overseers or other persons ; and every bond or security given by or on account of any officer appointed by the guardians, for the due performance of his duties, is to remain in force not- withstanding any change in the district for which he is appointed or required to act, or the addition or separation of any parish to or from the union, since the giving of the security. 7 & 8 Vict. c. 101, s. 61. See Skelton v. Rushby, 4 Exch. 545; Mansfield Union v. Wright, 9 Q. B. D. 683. SECT. VI.] ASSISTANT OVERSEERS AND COLLECTORS. 373 Assistant overseers and collectors are subject to the control of the Local Government Board, as paid officers under the 4 & 5 Will. 4, c. 76, s. 46. 7 & 8 Yict. c. 101, s. 61. Powers and Duties of Collector. — The duties of collector, as prescribed by orders of the Local Government Board of March 20, 1879, &c, are to assist the overseers in making and levying the poor rates ; to collect the rates ; to assist in filling up receipts, keeping books, and making returns relating to the rates ; to produce the rate and other account books when required, to balance the rates, and to furnish the overseers with a list of defaulters, and under their direction to institute proceedings against them ; to attend the meetings of the guardians, and obey the lawful directions of the guardians and of the majority of the overseers. Provision is also made for the payment of his salary and for its discontinuance in case of removal from office, for the mode of taking security, and for the continuance of the collector in office. By an order of the Local Government Board of November 15, 1867, collectors of poor rates are to receive increased remunera- tion in certain cases, and are to assist overseers in making out and serving notices of arrears of poor rates. The duties of the collector as to parish accounts are set out in orders of the Board, dated January 14, 1867, and June 14, 1875. 42 & 43 Vict. c. 54, s. 17, empowers the overseers of any parish, with the con- sent of the vestry, to require the collectors of the poor rate to collect any rate levied by the overseers over part of the parish only, and to remunerate them for the extra work thus imposed. Tenure of Office and Remuneration. — This is governed by the general order of the Local Government Board, dated 17th of June, 1886. Section VII. — Overseers' and Collectors' Accounts. Special Rates.— The Divided Parishes and Poor Law Amend- ment Act, 1876 (39 & 40 Vict. c. 61), s. 37, enacts that "when an overseer shall make and levy any rate or assessment which is not now subject to be audited hj the district auditor, or by any auditor or auditors appointed under or by virtue of the Metro- polis Local Management Act, such rate or assessment, and the 374 ADMINISTRATION OF POOR LAWS. [CHAP. XX. accounts relating thereto, shall be submitted by him and by the collector thereof, if any, to the said auditor, in the like manner, and with the like incidents, consequences, liabilities, and power of appeal as in the case of the poor rate made by such overseer ; and every other audit of every such rate or assessment, if any, shall cease. And the Local Government Board shall have the same power to make orders to regulate the keeping of such accounts as they have in regard to other local rates." The Local Government Board on 20th of March, 1879, issued a general order on the subject. CHAPTEE XXI. RELIEF. PAGE Section I. Relief generally 375 II. To Able-bodied Poor 381 III. By Relations 385 IV. By Loan 390 V. By Emigration 392 VI. Other Modes of Relief 393 1. Naval and Merchant Services 393 2. Medical Relief 393 3. Boarding out Pauper Children 394 4. Outfts for Children sent to Service .... 394 5. Education 394 6. Apprenticing 395 7. Providing Allotments 395 VII. Casual Poor 404 VIII. Bastards 405 IX. Pauper Lunatics 408 Section I. — Eeliee Generally. The present mode of administering our poor law system dates from 1834, when the management of poor relief was taken out of the hands of the vestries and transferred to the guardians {ante, p. 338). By whom. — The administration of relief to the poor is made subject to the direction and control of the Local Government Board, who, however, cannot interfere in any individual case for the purpose of ordering relief. 4 & 5 "Will. 4, c. 76, s. 15; 34 & 35 Vict. c. 70. Limited Power of Overseers and Justices to Order. — The ordering, giving, and directing of all relief to the poor of any ;>?6 RELIEF. [CHAP. XXI. parish under the government and control of guardians is to belong exclusively to such guardians ; and it is not lawful for any overseer to give any further relief or allowance from the poor rate than such as is ordered by such guardians, except in cases of sudden and urgent necessity, in which cases he is required to give such temporary relief as each case requires, in articles of absolute necessity, but not in money, and whether the applicant for relief be settled in the parish where he applies for relief or not ; and in case such overseer refuses or neglects to give such necessary relief in any such case of necessity to poor persons not settled nor usually residing in the parish to which such overseer belongs, a justice of the peace may order him to give such temporary relief in articles of absolute necessity, but not in money ; and in case he disobeys such order, he is, on conviction, to forfeit a sum not exceeding 51. And a justice may give a similar order, for medical relief only, to any parishioner, as well as out-parishioner, where any case of sudden and dangerous illness may require it ; and an overseer is liable to the same penalties as aforesaid for disobeying such order. But a justice cannot order relief to any person from the poor rates, except as hereinbefore provided. 4 & 5 Will. 4, c. 76, s. 54. Guardians of parishes or unions under local Acts may grant outdoor relief in the same manner. 11 & 12 Vict. c. 91, s. 12. As to relief granted by overseers, seo ante, p. 363. Outdoor Relief. — In any union, two justices, acting for the district in which such union is situated, may direct that relief be given to any adult person who, from old age or infirmity of body, is wholly unable to work, without requiring that he shall reside in the workhouse; but one of the justices must certify in the order, of his own knowledge, that such person is wholly unable to work ; and such person must be lawfully entitled to relief in the union, and desire to receive the same Out of a workhouse. 4 & 5 Will. 4, c. 76, s. 27. An order of justices under this section cannot bo made without summoning the parties to be affected by it to show cause why it should not be made. R. v. Totnes Union, 7 Q. B. 690. Work to be done in return for. — When the guardians pre- scribe a task of work to be performed by any poor person to whom, or to whose wife, if he be liable to maintain such wife, or SECT. I.] RELIEF GENERALLY. 377 child under sixteen, relief has been granted out of tho workhouse, such task being suited to the age, strength, and capacity of such person, and being of a description previously approved of by the Local Government Board, and such person refuses or wilfully neglects such task, or wilfully destroys or damages any of the tools, materials, or other property of the guardians, he is to be deemed a disorderly person within the meaning of 5 Geo. 4, c. 83. 29 & 30 Vict. c. 113, s. 15. Outdoor Relief on condition of Attendance of Child at School. — Where relief out of the workhouse is given by the guardians by way of weekly or other continuing allowance to the parent of any child above the age of 5 years who has not reached the standard in reading, writing, and arithmetic, prescribed by Standard III. of the 1876 standard, or who for the time being either is prohibited by this Act from being taken into full labour, or is required by any bye -law under sect. 74 of the Elementary Education Act, 1870, to attend school, or to any such child, it shall be condition for the continuance of such relief that elementary education in reading, writing, and arithmetic shall be provided for such child, and the guardians shall give such further relief (if any) as may be necessary for that purpose. Any such relief to a parent shall not be granted on condition of the child attending any public elementary school other than such as may be selected by the parent, nor refused because the child attends or does not attend any particular elementary school. The guardians have not power under this section to give any relief to a parent in order to enable such parent to pay more than the ordinary fee payable at the school which he selects, or more than the fee which under this Act they can enable a parent to pay in any other case. 39 & 40 Vict. c. 79, s. 40. Outdoor Relief to Members of Friendly Societies. — A board of guardians, if they think fit, may grant relief out of the poor rates to any person otherwise entitled to such relief, notwith- standing that the said person shall, by reason of his membership of a friendly society be in receipt of any sum. 57 & 58 Vict. c. 25, s. 1. False Statement to obtain Relief. — If any person, for the purpose of obtaining relief from the rates raised for the relief of the poor, for himself or for any other person, wilfully gives a 378 RELIEF. [CHAP. XXI. false name, or makes or uses a false statement to the guardians of any union or any of their officers, he is to be deemed an idle and disorderly person within the meaning of sect. 3 of 5 Geo. 4, c. 83. 45 & 46 Yict. c. 36. Relief Committees. — See ante, p. 340. Overseers to provide Funds. — By an order of 26th February, 1866, the clerk to the guardians is, 4 weeks at least before 29th of September and 25th of March in each year, to estimate the probable amount of expenditure in the relief of the poor, &c, and estimate the probable balance due to or from each parish at the end of the current half year, and apportion the sums to be contributed by the several parishes comprised in the union, and prepare the orders on the overseers for the payment of such con- tributions, and such orders are to be laid before the guardians for their consideration a reasonable time before the expiration of the current half year. Orders for contribution of the amount are to be made by the guardians on the overseers at the com- mencement of each half year ending on the days above-men- tioned, and from time to time as occasion may arise, and in such orders the contributions are to be directed to be paid in one sum or by instalments on days to be specified by the guardians in the orders. By an order of July 24th, 1847, the orders for contribu- tion are to be in writing, according to the form specified, signed by the presiding chairman and two other guardians present at the meeting, and countersigned by the clerk. As to the mode of computing such contributions, see post, p. 379. If the over- seers fail to pay the money required, the guardians may proceed against them before justices under 4 & 5 Will. 4, c. 76, s. 98. By 2 & 3 Vict. c. 84, s. 1, whenever any such contribution is in arrear, two justices, acting for the district in which such parish is situated, may, on application under the hand of the chairman or acting chairman of such Board, summon the overseers, &c, to show cause, at a special sessions, why such contribution has not been paid, and, after hearing the complaint, the justices may, by warrant, cause the amount of the contribution in arrear, with the costs to be levied upon the said overseers, &c, or any of them, in the same manner as money assessed for the relief of the poor, and paid to the said Board. See li. v. Boteler, 33 L. J. M. C. 101. If a copy of the guardians' order has been SECT. I.J REI IEF GENERALLY. 379 served on one of the overseers, &c, it may be enforced against him as fully as if it had been served on all. 12 & 13 Vict. c. 103, s. 7. If the overseers wilfully neglect to make or collect sufficient rates for the relief of the poor, or to pay the guardians such moneys as they may require, and if, by reason of such neglect, any relief directed by the guardians to be given to any poor person is delayed or withheld for seven days, every such over- seer is, on conviction, to forfeit for every such offence a sum not exceeding 20/. 7 & 8 Vict. c. 101, s. 63. Charging Common Fund. — The guardians are to distribute the charges upon the common fund during and at the close of every half year, in the proportions according to which the orders for the contributions to the common fund were made upon the several parishes comprised in such unions, at the commencement of such half year, notwithstanding the change which may be made in the valuation list of any parish during such period. 28 & 29 Vict. c. 79. The cost of relief to the poor, and the expenses of the burial of the dead body of any poor person dying within the union, and charges incurred by guardians in respect of vaccination and registration are to be chargeable upon the common fund of such union. 28 & 29 Vict. c. 79, s. 1 ; see 24 & 25 Vict. c. 55, s. 8. Lunatics are chargeable upon the common fund. 24 & 25 Vict. c. 55, s. 6 ; 27 & 28 Vict. c. 29, s. 5. Parishes in unions are to contribute to the common fund according to the annual rateable value of their assessable pro- perty. 24 & 25 Vict. c. 55, s. 9 ; 28 & 29 Vict. c. 79, s. 14. The guardians, in computing the amount of contribution to the common fund from the several parishes, are to take the valuation lists, when approved, for all the parishes comprised in the union. 25 & 26 Vict. c. 103, s. 30. Money found on any poor person professing to be a destitute wanderer or wayfarer, applying for relief by admission to a work- house, or otherwise, is to be delivered to the guardians, and applied in aid of the common fund. 11 & 12 Vict. c. 110, s. 10- Money borrowed by guardians is to be a charge on the common fund. 32 & 33 Vict. c. 45, s. 4. As to the manner in which money borrowed by guardians may be repaid, see sect. 5 and 42 & 43 Vict, c. 54, ss. 12, 13. 380 RELIEF. [CHAP. XXI. Recovering Cost of Relief. — Guardians may appropriate money or securities of paupers to reimburse amount expended in relief during prior twelve months ; and in the event of death the expenses incurred in the burial and maintenance during the twelve months previous to his decease. 12 & 13 Vict. c. 103, s. 16. Administration to the effects of a pauper who died chargeable to a union has been granted to the guardians of the union as creditors under this section. Cleaver- v. McKenna, 35 L. J. P. & M. 91 ; Windeatt v. Sharland, L. E. 2 P. & D. 217 ; 25 L. J. 574, 783. The guardians may pay the cost of the burial of any pauper, dying out of the limits of the union or parish, who was at the time of the death in receipt of relief from such guardians ; and the cost of burying may be recovered in like manner and from the same parties as the cost of relief (if given to such person when living) would have been recoverable. Sect. 17. If any artificer, or his wife, or widow, or children under twenty-one years of age, become chargeable to the parish, the overseers may recover any wages earned by him within the three preceding months, and not paid in cash. 1 & 2 Will. 4, c. 37, s. 7. As to recovering relief of pauper lunatic, see 53 Vict. c. 5, s. 299. Where any pauper is entitled to an annuity, or periodical pay- ment, the trustee, &c., may pay cost of relief of such pauper to the guardians. See post, p. 391. As to recovering relief from Pelatioxs, see post, p. 385. As to recovering relief given by way of loan, see post, p. 390. Poor Relief in Metropolis. — The system of poor relief differs in the metropolis from the system under which relief is adminis- tered in other parts of England. 30 Vict. c. 6, provides for the establishment in the metropolis of asylums for the sick, insane, and other classes of the poor, and of dispensaries ; and for the distribution over the metropolis of portions of the charge for poor relief. In nearly all the unions and parishes in the metropolis, dispensaries have been provided, at which the medical officers attend at stated times for the purpose of seeing those patients whose ailments are not such that it is necessary that they should be attended at their own homes, and in the SECT. I.] RELIEF GENERALLY. 381 case of each dispensary there is a paid dispenser, who supplies the medicines which the medical officers prescribe. The drugs are provided by the guardians, and not by the medical officers. The relieving officer, when he gives an order for medical attend- ance, specifies in the order whether it is for attendance at the home of the patient or at the dispensary. See also 28 Vict. c. 34 ; 33 & 34 Vict. c. 18 : 34 Vict. c. 15. Section II. — To Able-bodied Poor. Power to give. — 4 & 5 Will. 4, c. 76, s. 52, enacts that the Local Government Board may declare to what extent and for what period the relief to be given to able-bodied persons or to their families in any particular parish or union may be adminis- tered out of the workhouse, and all relief given by any overseer, guardian, &c, contrary to such orders, &c, is to be unlawful and disallowed in the accounts of the persons giving the same. The overseers or guardians may, however, in cases of emergency, depart from these rules, with the approval of the Board. Rules. — The following rules were laid down by an order of the 21st December, 1844, with respect to unions which have provided adequate workhouse accommodation. Art. I. Every able-bodied person, male or female, requiring relief from any parish within any of the said unions, shall be relieved wholly in the workhouse of the union, together with such of the family of every such able-bodied person as may be resident with him or her and may not be in employment, and together with the wife of every such able-bodied male person, if he be a married man, and if she be resident with him ; save and except in the following cases : — 1st. Where such person shall require relief on account of sudden and urgent necessity. 2nd. Where such person shall require relief on account of any sickness, accident, or bodily or mental infirmity affecting such person, or any of his or her family. 3rd. Where such person shall require relief for the purpose of defraying the expenses, either wholly or in part, of the burial of any of his or her family. See 38 & 39 Vict. c. 55, s. 142. 382 RELIEF. [CHAP. XXT. 4 tli. Where such person, being a widow, shall be in the first six months of her widowhood. 5th. "Where such person shall be a widow and have a legiti- mate child or legitimate children dependent upon her, and incapable of earning his, her, or their livelihood, and no illegiti- mate child born after the commencement of her widowhood. 6th. Where such person shall be confined in any gaol or place of safe custody. 7th. Where such person shall be the wife or child of any able- bodied man who shall be in the service of her Majesty as a soldier, sailor, or marine. 8th. Where any able-bodied person, not being a soldier, sailor, or marine, shall not reside within the union, but the wife, child, or children of such person shall reside within the same, the Board of Guardians of the union, according to their discretion, may afford relief in the workhouse to such wife, child, or children, or may allow outdoor relief for any such child or children being within the age of nurture, and resident with the mother within the union. Art. II. In every case in which outdoor relief shall be given, on account of sickness, accident, or infirmity, to any able-bodied male person resident within any of the said unions, or to any member of the family of any able-bodied male person, an ex- tract from the medical officer's weekly report (if any such officer shall have attended the case), stating the nature of such sick- ness, accident, or infirmity, shall be specially entered in the minutes of the proceedings of the Board of Guardians of the day on which the relief is ordered or subsequently allowed. But if the Board of Guardians shall think fit, a certificate under the hand of a medical officer of the union, or of the medical practitioner in attendance on the party, shall be laid before the Board, stating the nature of such sickness, accident, or infirmity, and a copy of the same shall be in like manner entered in the minutes. Art. III. No relief shall be given from the poor rates of any parish comprised in any of the said unions to any person who does not reside in some place within the union, save and except in the following cases : — 1st. Where such person, being casually within such parish, shall become destitute. SECT. II.] TO ABLE-BODIED POOR. 383 2nd. Where such person shall require relief on account of any sickness, accident, or bodily or mental infirmity, affecting such person, or any of his or her family. 3rd. Where such person shall he entitled to receive relief from any parish in which he may not he resident, under any order which justices may by law be authorised to make. 4th. Where such person, being a widow, shall be in the first six months of her widowhood. See 9 & 10 Vict. c. 66, s. 2. 5th. Where such person is a widow, who has a legitimate child dependent on her for support, and no illegitimate child born after the commencement of her widowhood, and who at the time of her husband's death was resident with him in some place other than the parish of her legal settlement, and not situated in the union in which such parish may be comprised. See 7 & 8 Vict. c. 101, s. 26. 6th. Where such person shall be a child under the age of sixteen maintained in a workhouse or establishment for the education of pauper children not situate within the union. See 7 & 8 Vict. c. 101, s. 51 ; 25 & 26 Vict. c. 43; 31 & 32 Vict. c. 122, s. 42. 7th. Where such person shall be the wife or child, residing within the union, of some person not able-bodied, and not residing within the union. 8th. Where such person shall have been in the receipt of relief from some parish in the union, at some time within the twelve calendar months next preceding the date of the order, being settled in such parish, and not being resident within the union. Art. IV. Where the husband of any woman is beyond the seas, or in custody of the law, or in confinement in a licensed house or asylum as a lunatic or idiot, all relief which the guardians give to his wife, or her child or children, shall be given to such woman in the same manner and subject to the same conditions as if she were a widow. See 7 & 8 Vict. c. 101, s. 25. Such relief is extended to a married woman living separate from her husband. 39 & 40 Vict. c. 61, s. 18. By another order of December 14, 1852, the following regula- tions have been made applicable to unions not having adecpuate workhouse accommodation. Art. I. Whenever tho guardians allow relief to any able-bodied 384 RELIEF. [CHAP. XXI. male person out of tho workhouse, one-half at least of the relief so allowed shall be given in articles of food or fuel, or in other articles of absolute necessity. Art. II. In any case in which the guardians allow relief for a longer period than one week to an indigent poor person resident within their union or parish, without requiring that such person shall be received into the workhouse, such relief shall be given or administered weekly, or at such more frecpient periods as they deem expedient. Art. III. It shall not be lawful for the guardians or their officers to establish any applicant for relief in trade or business ; nor to redeem from pawn for any such applicant any tools, imple- ments, or articles; nor to purchase and give him any tools, &c, except articles of clothing or bedding where urgently needed, and such articles as are mentioned in Art. I. ; nor to pay directly or indirectly the expense of his conveyance (except in certain cases) ; nor to give money to or on his account for the purpose of effecting any of the above objects; nor to pay wholly or in part the rent of his house or lodging ; nor to apply any portion of the relief ordered in payment of such rent ; but this article does not apply to any shelter or temporary lodging procured for a poor person in case of sudden or urgent necessity or mental imbecility. Art. IV. is substantially the same as Art. III. of the preceding order. Art. V. No relief shall bo given to any able-bodied male person while he is employed for wages or other hire or remunera- tion by any person. Art. YI. Every able-bodied male person, if relieved out of the workhouse, shall be set to work by the guardians, and be kept employed under their direction and superintendence so long as he continues to receive relief. Art. VII. provides for certain exceptions to the two preceding articles similar to those contained in the first article of the order of December 21, 1844. Art. X. If the guardians shall, upon consideration of the special circumstances of any particular case, deem it expedient to depart from any of the above regulations (except Art. III.), and within 21 days report the same, with the grounds thereof, to the Local Government Board, the relief given, before an SECT. II.] BY ABLE-BODIED POOR. 385 answer to their report has been returned, shall not be deemed to be contrary to the provisions of this order, and if the Local Government Board approve of such departure, and notify such approval to the guardians, all relief given after such notification, in accordance with such approval, shall be lawful. Section III. — By Eelations. Orders to enforce Liability. — The 43 Eliz. c. 2, expressly recognizes the right of the indigent to claim support from their relatives, and, by sect. 6, enacts that parents, or grandfathers, or grandmothers, may be assessed by justices to the relief of their children or grandchildren, and that children may be assessed to the relief of their parents ; the party assessed being of sufficient ability, and the party to be maintained being " poor, old, blind, lame, or impotent, or not able to work," or, in other words, actually chargeable, in the technical language employed on this subject. Maintenance orders are to be made by the justices in petty sessions having jurisdiction in the union or parish to which the poor person in whose behalf the same is sought to be made is chargeable, and are to be enforced under 1 1 & 12 Yict. c. 43. 31 & 32 Yict. c. 122, s. 36. The guardians of a union are entitled to obtain orders of maintenance upon the relations liable under any statute to main- tain any poor person whose relief would be chargeable to the common fund of the union. 11 & 12 Vict. c. 110, s. 8. The guardians of a parish may recover the costs of and obtain orders for the maintenance of a pauper in like manner. 39 & 40 Vict. c. 61, s. 25. Money due under an order of justices made upon a person for the maintenance of his father under 43 Eliz. c. 2, s. 6, is recoverable before a Court of summary jurisdiction as a civil debt and not as a penalty ; and an order of justices for the payment of the money so due cannot be enforced by imprison- ment in default of distress, unless it be proved that the person in default has since the date of the latter order had the means to pay the sum in respect of which he has made default. In re Gamble, (1899) 1 Q. B. 305 ; 68 L. J. Q. B. 195. Who may be relieved. — This mode of relief can only be obtained for persons who, from impotence or infirmity, are s. c c 386 RELIEF. [CHAP. XXI. unable to work. St. Andrew's Undershaft v. Be Breta, 1 Ld. Kayin. 699. Those who can, but are unwilling to labour for their subsistence, are not to be supported by their relations. R. v. Gulley, Foley, 47. The justices cannot order the relation to maintain them, but should make an order of so much a week upon the relation. Shennanbury v. Boldney, Comb. 208; R. v. Jones, Fol. 41. What Relations chargeable. — The Act extends to natural relations only. A father is not liable to support his son's wife or Avidow ; R. v. Kempson, 2 Stra. 955 ; nor a man his wife's mother; R. v. Munden, 1 Str. 190 ; nor is a man bound to sup- port his brother — brothers not being mentioned in the statute. R. v. Smith, 2 C. & P. 449. But such an order may be made on a grandfather, though the father be living, if he is unable to support his child; R. v. Joyce, 16 Yin. Ab. 423; and, as it seems, even if the father is able. Per Lord Tenterden, C.J., R. v. Cornish, 2 B. & Ad. 498. Grandchildren cannot be compelled to support their grandparents, Maund v. Mason, L. R. 9 Q. B. 254 ; 43 L. J. M. C. 62. If the child to be relieved is a bastard, this is not within the statute. City of Westminster v. Gerrard, 2 Bulst. 346. The children of a woman by her first marriage are bound to contribute towards her maintenance after her second marriage, and while living with her second husband. Arroicsmith v. Dickenson, 20 Q. B. D. 252. Requisites of Order. — The order must direct and require the party to relieve the pauper. It should also define the time for which the relief is to be given. An order to pay so much a week, indefinitely or while the pauper continues chargeable, is bad. In re Morten, 5 Q. B. 591. But an order to pay until the Court shall order to the contrary has been considered sufficient. Jenkins'' Case, 1 Bott, 365. If a sum is directed to be paid weekly, it is due at the begin- ning of the week. R. v. Fearnley, 1 T. E. 316. It seems the order may be retrospective, as well as for future relief. R. v. Joyce, 16 Yin. Ab. 423. And it may order the party to con- tribute to the relief of several children in one family. R. v. Robinson, 2 Burr. 799. But in that case it should specify the sum to be paid to each. Re Morten, supra. SECT. III.] BY RELATIONS. 387 Liability of Husbands and Fathers. — All relief given to or on account of the wife, or to or on account of any child or children under the age of 1G, not being blind or deaf and dumb, is to be considered as given to the husband of such wife, or to the father of such child or children, as the case may be ; and any relief given to or on account of the child or children of any widow is to be considered as given to such widow. 4 & 5 Will. 4, c. 76, s. 56. But this does not affect the right to proceed against the relations under the 43 Eliz. c. 2. Every man who marries a woman having a child or children at the time of such marriage, whether legitimate or illegitimate, is liable to maintain such child or children as a part of his family, and is chargeable with all relief, granted to or on account of such child or children, until such child or children attain the age of 16, or until the death of their mother, and such child or children are, for the purpose of this Act, to be deemed a part of the husband's family. 4 & 5 Will. 4, c. 76, s. 57. AVhen a married woman requires relief without her husband, the guardians or overseers of the union or parish to which she becomes chargeable may apply to the justices having jurisdic- tion in such union or parish in petty sessions, and thereupon such justices may summon such husband to show cause why an order should not be made upon him to maintain his wife, and make an order upon him to pay a sum, weekly or otherwise, towards the cost of the relief of the wife. 31 & 32 Yict. c. 122, s. 33; Thomas v. Alsop, L. E. 5 Q. B. 151 ; 39 L. J. M. C. 43. A husband is not liable under this section to maintain a wife who has committed adultery and is living apart from him. C'ullcy v. Charman, 50 E. J. Q. B. D. Ill ; 7 Q. B. I). 89. But if he had connived at her adultery he would be liable. Any married woman whose husband shall have been convicted summarily of an aggravated assault upon her within the mean- ing of s. 43 of 24 & 25 Vict. c. 100, or whose husband shall have been convicted upon indictment of an assault upon her, and sentenced to pay a fine of more than 51. or to a term of imprison- ment exceeding 2 months, or whoso husband shall have deserted her, or whose husband shall have been guilty of persistent cruelty to her, or wilful neglect to provide reasonable mainten- ance for her or her infant children whom he is legally liable to c c2 388 RELIEF. [CHAP. XXI. maintain, and shall by such cruelty or neglect have caused her to leave and live separately and apart from him, may apply to a Court of summary jurisdiction. Such Court may make an order containing all or any of the provisions following, viz. : — (a) That the applicant be no longer bound to cohabit with her husband. (b) That tho legal custody of any children of the mai'riage between the applicant and her husband, while under the age of 16 years, be committed to the applicant. (c) That the husband shall pay to the applicant personally, or for her use, to any officer of the Court or third person on her behalf, such weekly sum not exceeding 21. as the Court shall, having regard to the means both of the husband and wife, consider reasonable. And the pay- ment of any sum so ordered is enforceable and enforced against the husband in the same manner as the pay- ment of money is enforced under an order of affiliation ; and the said justices or magistrate by whom any such order for payment shall be made, or other justices or magistrate sitting in their or his stead, have power from time to time to vary the same, on the application of either the husband or wife. No order for payment of any such sum by the husband may be made in favour of a wife who shall be proved to have committed adulter} 7 , unless such adultery has been condoned. 58 & 59 Yict. c. 39. As to liability of husband for maintenance of wife in lunatic asylum, see post, p. 410. Deserting Family. — Persons able to maintain themselves and their families, but neglecting to do so, whereby they become chargeable, are punishable as rogues and vagabonds. 5 Geo. 4, c. 83, s. 3. Proceedings may be taken against any person who runs away and leaves his wife, or his or her child, chargeable, or whereby she or they or any of them become chargeable to any union or parish within 2 years after the commission of the offence, and a summons or warrant may be issued upon the information of any relieving officer of the guardians stating that relief has been applied for on behalf of the wife or child, and that he believes that the husband or parent has left the wife or SECT. III.] BY RELATIONS. 389 child, and gone away. 39 & 40 Vict. c. 61, s. 19. And if a husband, father, or mother abscond from their place of abode, leaving any wife or children chargeable, upon the application of the parish officers, the goods or profits of lands, &c, of such party may be seized by order of two justices, and after confirma- tion by the sessions, may be disposed of to reimburse the parish for providing for such wife, &c. 5 Geo. 1, c. 8, s. 1. As to control of guardians over children deserted by parents, see ante, p. 340. Liability of Wives and Mothers. — Where the husband of any woman having separate property becomes chargeable to any union or parish, the justices having jurisdiction in such union or parish may, upon application of the guardians, issue a summons against the wife, and make and enforce such order against her for the maintenance of her husband out of such separate property, as, by 31 & 32 Vict. c. 122, s. 33, they may make an order against a husband for the maintenance of his wife. 45 & 46 Vict. c. 75, s. 20. A married woman having separate property is subject to the same liability for the maintenance of her children and grandchildren as the husband is now by law subject to, provided always that her husband is not relieved thereby from his legal liability to maintain her children and grandchildren. Sect. 21. As to a wife deserting her children, see 5 Geo. 1, c. 8, supra. liability of Mothers of Bastards. — See post, p. 406. Soldiers. — A man who is or subsequently becomes a soldier of the regular forces is liable to contribute to the maintenance of his wife and children and any bastard child to the same extent as if he were not a soldier ; but no execution can issue against his person, kit, &c, nor is he liable to be punished for offence of deserting or neglecting to maintain his wife or family, or of any member thereof, or of leaving them chargeable to any union. For the purposes of such maintenance and relief 6d. may be stopped from the daily pay of a non-commissioned officer not below the rank of sergeant, and 3c/. from the daily pay of an ordinary soldier. 44 & 45 Vict. c. 58, s. 145 ; 46 Vict. c. 6, s. 7 ; 54 & 55 Vict. c. 5, s. 7. Merchant Seamen's Families. — If the wives, children, or step- children of seamen in the merchant service become chargeable 390 RELIEF. [CHAP. XXI. whilst they are absent on a voyage, the parish or union is to be reimbursed out of the wages of the seamen earned during the voyage any sums properly expended during his absence in the maintenance of those members of his family or any of them, so that the sums do not exceed the following proportions of his wages : — (a) If only one of those members is chargeable, one-half of the wages. (b) If two or more of those members are chargeable, two- thirds of the wages. 57 & 58 Vict, c. 60, s. 182. Lascars, Asiatic and African Seamen. — If any person, being a native of any country in Asia or Africa, or of any island in the South Sea or the Pacific Ocean, &c, is brought to the United Kingdom as a seaman, and is left in the United Kingdom, and within 6 months of his being so left becomes chargeable upon the poor rate, or commits any act of vagrancy, the master or owner of the ship, or in case of a foreign ship the person who is consignee of the ship, is liable to be fined. The Court inflicting the fine may order the whole or any part of the fine to be applied towards the relief of the person so left. The Secretary of State in Council of India are to repay boards of guardians all monies duly expended by them in relieving or maintaining Lascars or other destitute natives of India. 57 & 58 Vict. c. 60, s. 185. Sectiox IV. — Bt Loax. Any relief, or the cost price thereof, given to or on account of any poor person above the age of 21, or to his wife, or any part of his family under the age of 16, and which the Local Government Board direct to be given by way of loan (and whether any receipt for such relief, or engagement to repay the same, or the cost price thereof, or any part thereof, shall have been given or not by the person to or on account of whom the same shall have been so given), shall be considered to be a loan to such poor person. 4 & 5 Will. 4, c. 76, s. 58. By the orders of December 21, 1844, and December 14, 1852, no relief which is contrary to any regulation in those orders (see ante, pp. 381, 384) is to be given by way of loan ; but any relief given in conformity with those orders, to or on account of any SECT. IV.] BY LOAN. 391 person, to whom relief may be lawfully given, above the age of 21, or to his wife or any part of his or her family under the age of 16, may, if the guardians think fit, be given by way of loan. Recovery of Loan. — Upon the application of overseers or guardians, justices may attach wages in hand of employer for repayment of relief given by way of loan. 4 & 5 Will. 4, c. 76, s. 59. All relief granted by the guardians to any pauper upon loan, and which is chargeable to the common fund of the union, or to any parish therein, may be recoverable in the County Court on the plaint of the guardians, who may apply and be heard in such Court by any officer appointed by them for such purpose, in manner prescribed by the statutes enabling them to appoint officers. Provided that the remedy already provided for the recovery of relief granted on loan shall be applicable to the relief so chargeable to the common fund. 11 & 12 Vict. c. 110, s. 8. The guai'dians of a parish may recover the costs of and obtain orders for the maintenance of a pauper in like manner as the guardians of a union under the above provision. 39 & 40 Yict. c. 61, s. 25. Repayment of Cost of. — If any pauper is entitled to any annuity or periodical payment, the trustee or other person bound to make payment of the same to the pauper may pay to the Board of Guardians, out of the instalments which have become due, the cost incurred in the relief of such pauper accrued since the last instalment, and such payment is to be a legal discharge. If any trustee or other person decline to make any payment, the guardians may apply to justices for an order to have such pay- ment made. This clause only applies where the guardians or their relieving officer has declared the relief to be given on loan. 39 &40 Vict. c. 61, s. 23. The above provisions do not apply to any moneys which a pauper, having a wife or other relative dependent upon him for maintenance, may be entitled to receive as a member of any friendly or benefit society. Such moneys, subject to any deduc- tions for keeping up his membership required by the rules of such society, are to be paid or applied by the officers of such society to or for the maintenance of such wife or relative. 42 Vict. c. 12. If a pauper having no wife or relative so 392 RELIEF. [CHAP. XXI. dependent upon him is entitled to any such moneys, no claim is to be made by the guardians upon any such society of which he is a member, until the guardians, or their relieving officer, have declared the relief to be given on loan, and have within 30 days thereof given written notice thereof to the secretary or trustees of the society. 42 Vict. c. 12. Section V. — By Emigration. Expenses of, how defrayed. — The ratepayers and owners of a parish may raise money on security of rates for expenses of emigration of poor persons having settlements in the parish; and recover the expenses incurred from persons refusing to emigrate after consenting, or returning. 4 & 5 "Will. 4, c. 76, s. 62. Guardians may assist in the emigration of paupers rendered irremovable by 9 & 10 Yict. c. 66, and charge the cost upon the common fund of the union, or on the parish. 11 & 12 Vict, c. 110, s. 5. Guardians may expend, with the order of the Local Govern- ment Board, any sum not exceeding 101. for each person, in and about the emigration of poor persons having settlements in such parish, or in any parish in the union, without a previous meeting of ratepayers, and the guardians are to charge the same to the parish of the settlement, in every case where such poor person resided therein or was removable thereto, at the time of the emigration. 12 & 13 Vict. c. 103, s. 20. The aggregate amount of money expended in the course of 1 year about the emigration of such persons is not to exceed half the average yearly poor rate raised in the parish for the 3 preceding years. As to the disposal of surplus money raised for emigration purposes, see 29 & 30 Vict. c. 113. Emigration of Children. — Guardians may defray the expenses of the emigration of orphans and deserted children, chargeable on any parish or on the common fund. The consent of an orphan or deserted child is required before the emigration of the child can take place. 13 & 14 Vict. c. 101, s. 4. The Local Government Board authorise the emigration of orphan and deserted pauper children to Canada under certain conditions. SECT. VI. 1 OTHER MODES OF RELIEF. 393 Section YI. — Other Modes oe Relief. 1. Naval and Merchant Services. If any boy not already an apprentice in the merchant service, who or whose parent is receiving relief, is desirous of serving in the navy, the guardians may pay the expenses of forwarding such boy for approval by a competent authority, and for pro- viding outfit, &c. 39 & 40 Vict. c. 61, s. 28. And by 32 & 33 Vict. c. 63, s. 13, the guardians may, with the consent of the Local Government Board, purchase, hire, or otherwise acquire and fit up a ship for training boys to the sea service. 2. Medical Relief. Guardians may provide for the reception, maintenance, and instruction of any adult pauper, being blind or deaf and dumb, in any hospital or institution established for the reception of per- sons suffering under such infirmities. 30 & 31 Vict. c. 106, s. 21. Pauper Idiots. — 49 & 50 Vict. c. 25, does not operate to deprive the guardians of the poor of any union of the power of sending pauper idiots or imbeciles to hospitals, institutions, and licensed houses registered under the Act, or from receiving, in respect of such idiots or imbeciles, such sums of money as Parliament grants towards the maintenance and care of pauper lunatics, as if the same idiots and imbeciles were pauper lunatics. Medical Relief Disqualification. — Any person who has received for himself, or for any member of his family, any medical or surgical assistance, or any medicine, at the expense of the poor rate, is not to be deprived by reason thereof of any right to vote in certain elections. 48 & 49 Vict. c. 46. The disqualification of any such person as is above referred to for 'voting in an election of guardians remains in force. Ibid. The attendance of a midwife instead of a medical man, by the orders of the relieving officer, upon a wife in her confinement does not dis- qualify her husband from being registered as a voter. Honey- bone v. Hambridye, 56 L. J. Q. B. D. 46. 394 RELIEF. [CHAP. XXI. 3. Boarding -out Orphan and Deserted Pauper Children. The regulations on the subject are contained in the following general orders of the Local Government Board, viz. : — (1) Boarding-out in homes beyond the limits of union or separate parish (dated 28th May, 1889). (2) Boarding-out in homes within the limit of union or separate parish (dated 28th May, 1889). These orders authorise boards of guardians to board out orphan and deserted pauper children under the superintendence of boarding-out committees in homes either beyond or within the limits of the unions and parishes to which such children belong. 4. Outjits for Children sent out to Service. The Local Government Board have issued a general order (dated 10th July, 1897) relieving guardians from the necessity of obtaining the Board's sanction to their incurring a reasonable expenditure in providing an outfit for any child chargeable to the poor rate on such child being sent to service by them, or, if the child is boarded or boarded out under the supervision of a duly authorised boarding-out committee, on such child being sent to service by the guardians or otherwise. It was the prac- tice of the Board, in cases where their sanction had been required, to object to a child being sent to service without money wages, or to an inn or public house (imless in exceptional circumstances), or to any place of service, the conditions of which appeared unsatisfactory ; and the Board required to be satisfied that the child had attained the standard, or made the attendances qualify- ing for employment under the Education Acts, or the byelaws in force in the particular school district. 5. Education. Expenses of Education of Pauper Children. — The expenses of guardians in respect of elementary education are chargeable as relief. 39 & 40 Vict. c. 79, ss. 10, 16, 34, 40. The amount which might be paid by a board of guardians for the mainten- ance of a child in a school supported wholly or partially by voluntary subscriptions, and certified by the Local Government Board as fitted for the reception of pauper children, was limited SECT. VI.] OTHER MODES OF RELIEF. 395 to the cost of the maintenance of the child in the workhouse ; 25 & 26 Yict. c. 43 ; but now the guardians of any union, who send any pauper child to a school certified under that Act, may pay the reasonable expenses incurred in the maintenance, clothing, and education of such child whilst in such school, to an amount not exceeding such rate of payment as may be sanc- tioned by the Local Government Board. 45 & 46 Vict. c. 58, s. 13. School Attendance of Indoor Pauper Children. — See post p. 421. 6. Apprenticeship of Pauper Children. This subject is dealt with, post, p. 436. 7. Providing Allotments, The powers for the acquisition of land for allotments have been much extended by sects. 9 and 10 of the Local Government Act, 1894 (see Appendix). This Act transfers to the parish council all the powers of the vestry as to allotments ; 56 & 57 Vict. c. 73, s. 6 (1) (a), (b) ; and of the churchwardens and overseers as to their management. Sect. 6 (1) (c). Also it vests in the parish council the legal interest in allotments which were vested in such parish officers ; sect. 5 (2) (c) ; and it enables the parish council, with the consent of the parish meeting and of the Local Government Board, to sell such allotments as are parish property. Sect. 6 (1) (c), (d). It substitutes the parish council for allotment wardens, committees, or managers. Sect. 6 (4). The churchwardens and overseers may, with the consent of the vestry, let portions of parish land to poor inhabitants of the parish, to be by them cultivated for their own benefit, for such term as is fixed by the vestry. 59 Geo. 3, c. 12, s. 13. The trustees of allotments made under Acts of Parliament for the benefit of the poor with the churchwardens and overseers may let portions of such allotments, not being more than one acre to one individual, as a yearly occupation from Michaelmas, to industrious cottagers of good character, being day labourers or journeymen, legally settled in the parish or dwelling within or near it, at such rent as land of the same quality is usually let for in the said parish. 2 & 3 Will. 4, c. 42, s. 1. 396 RELIEF. [CHAP. XXI. Sects. 4, 5, and 7 provide for payment and recovery of the rent, and for the eviction of the tenant if the rent is 4 weeks in arrear, or the land has not been duly cultivated. [Rent may be required for the whole year in advance. 36 Yict. c. 19, s. 12.] If the tenant refuses to quit, or if any other person unlawfully holds possession, two justices may, on the complaint of the churchwardens and overseers, give them possession of the land. Sect. 6. Provision for the management of poor law allotments by a committee of not more than 12 or less than 6, where the number of allotment wardens, trustees, &c, is larger than is found convenient for proper management of same, is made by 36 Yict. c. 19. The benefit of these Acts is now extended by the Allotments Extension Act, 1882 (45 & 46 Yict. c. 80), to all the irremovable poor, and to all lands, whether cultivated or uncidtivated, held for the benefit of the poor. Trustees of lands vested for the benefit of the poor, and whereof the rents cr produce are distributed in gifts of money, doles, fuel, clothing, bread, or other articles of sustenance or necessity, are, where such lands are not otherwise used for the benefit of the parish in which it is situate as a recreation ground, or otherwise for the enjoyment or general benefit of the inhabi- tants, to take proceedings for letting such lands in allotments to cottagers, labourers, and others, and to set apart such field or other portion of the said lands as is most suitable, as regards distance and otherwise, for allotments, and give public notice of the field or portion set apart, and of the rent which they are ready to accept for the same when let in allotments, and the times and places at which applications for allotments are to be made. Sect. 4. If any of the said lands are found to lie at an inconvenient distance from the residences of cottagers and labourers, the trustees may let such lands and hire other lands for the purpose of allotments. Sect. 5. If the trustees neglect to comply with the Act, cottagers may complain to the Charity Commissioners. Sect. 10. Every allotment is to be let free of all charges, and one person is not to hold any allotment or allotments exceeding one acre. Sect. 13. No building whatever is to be erected for or used as a dwelling or workshop on any part of any allotment. Ibid, SECT. VI.] OTHER MODES OF RELIEF. 397 All the powers of the preceding Acts are to be exercised (under the conti-ol of the Local Government Board) by the overseers, in any parish not under guardians, and by the guardians of a union or pai-ish established by any statute. 5 & 6 Will. 4, c. 69, s. 4. The Allotments Act, 1887. — The object of this Act is to afford facilities for the provision of allotments for the labouring classes. Eural district councils may take action under the statute, either on their own motion, or on a requisition in writing addressed to them by any 6 registered Parliamentary electors or ratepayers resident in some parish in their district, or the parish council. 56 & 57 Vict. c. 73, ss. 21, 24. If any such representation is made to them, it will be the duty of the district council to take the same into consideration. The Act does not contemplate that proceedings should be taken under the statute except in cases where the district council are of opinion that there is a demand for allotments for the labouring population in any parish in their district, and that such allotments cannot bo obtained at a reasonable rent (the expression "reasonable rent" is defined as meaning the rent, exclusive of rates, taxes, and tithe rentcharge, which a person taking an allotment might reasonably be expected to pay, taking one year with another, to a landlord, having regard to the value of similar land in the neighbourhood, to the extent and situation of the allotment, to the expenses of adapting the land to the pur- poses of the allotment, and to the repairs and other outgoings payable by the landlord, and to the cost and risk of collecting the rents and otherwise managing allotments) and on reasonable conditions by voluntary arrangement between the owners of land suitable for such allotments and the applicants for the same. But in these cases, provided that certain conditions can be ful- filled, it will be the duty of the district council to acquire by purchase or hire any suitable land which may be available, whether within or without the parish, adequate to provide a sufficient number of allotments, and to let such land in allotments to persons belonging to the labouring population resident in the parish and desiring to take the same. The conditions subject to which land may be acquired under the Act are that it shall bo acquired at such price or rent that, in the opinion of the district council, all the expenses incurred by them in acquiring tho land and otherwise in relation to the 398 RELIEF. [CHAP. XXI. allotments, except expenses incurred in making roads to be used by the public, may reasonably be expected to be recouped out of the rents obtained in respect of the allotments. Sect. 2. For the purpose of the hiring of land by a district council for allotments, any person or body of persons or body corporate authorised to sell land to the district council for the purposes of the Act may, without prejudice to any other power of leasing, lease land to the district council without any fine or premium for a term not exceeding 35 years. Sects. 3, 7. With a view to diminishing the expenses of acquiring land for allotments otherwise than by agreement, any question of dis- puted compensation will be referred to the arbitration of a single arbitrator appointed by the parties, or if they cannot agree in the appointment, then on the application of either of them by the Local Government Board, who in that case will fix his remuneration. No provisional order may be made for purchasing any park, garden, pleasure ground, or other land required for the amenity or convenience of any dwelling-house, or any land the property of a railway or canal company, which is or may be required for the purposes of their undertaking, nor may any such order be made for purchasing any right to coal or metalliferous ore. In making a provisional order for purchasing land for allot- ments, the Local Government Board are to have regard to the extent of land held in the neighbourhood by any owner, and to the convenience of other property belonging to the same owner, and they are, so far as is practicable, to avoid taking an undue or inconvenient quantity of land from one owner. Sect. 3. "When the district council have acquired land under the Act they may improve it, and adapt it for letting in allotments, by draining, fencing, and dividing it, acquiring approaches, making roads, and otherwise, as they think fit, and may from time to time do such things as may be necessary for maintaining such drains, fences, approaches, and roads, or otherwise for maintain- ing the allotments in a proper condition. Sect. 5. Powers are also given by the Act to the district council to make regulations, which will require the confirmation of the Board, for regulating the letting of allotments, preventing undue preference in such letting, and generally for carrying the pro- visions of the Act into effect. These regulations may define the SECT. VI.] OTHER MODES OF RELIEF. 399 persons eligible to be tenants of the allotments, the notices to be given for the letting, the size of the allotments, the conditions nnder which they are to be cultivated, and the rent to be paid for them. The regulations must also make provision for reason- able notice to be given to a tenant of the determination of his tenancy. Allotment Managers. — The Act empowers the district council to appoint allotment managers, who must consist either of persons residing in the locality and contributing to the rate out of which the expenses of the authority under the Act are paid, or partly of such persons and partly of members of the district council. The proceedings and powers of these managers are to be such as, subject to the provisions of the Act, may be pre- scribed from time to time by the district council, who may empower them to do anything in relation to the management of the allotments which they are themselves authorized to do, and to incur expenses to such amount as they may prescribe. Any expenses properly so incurred will be deemed to be expenses of the district council. Sect. 6. The parish council, in a rural parish with a council, will supersede any " allotment managers." Letting and use of Allotments. — The district council and the parish council will have the powers contained in sects. 5 — 8 of the Act of 1887, when the land is assured to the parish council. Special provisions are contained in the Act with respect to the letting and use of the allotments. The rents must be fixed at an amount not less than such as may reasonably be expected to insure the district council from loss ; but in calculating such loss any expenses incurred in an unsuccessful attempt to acquire land for allotments are to be excluded, and, subject to these conditions, such rents may be from time to time charged as are reasonable, having regard to the agricultural value of the land. Not more than a quarter's rent may be required to be paid in advance in any case where it is deemed necessary by the district council to require the payment of rent in advance. The district council will for the purposes of all rates, taxes, and tithe rentcharge be deemed to be the occupiers of the allot- ments which are let, but they must cause the sums from time to time paid by way of rates, taxes, and tithe rentcharge in respect of the allotments to be appointed, and the sum so appointed in 400 RELIEF. [CHAP. XXI. respect of each allotment to be certified to tlie tenant, and such, sum must be added to the rent otherwise payable by the tenant in respect of the allotment, and will be deemed to be part of such rent, and be recoverable accordingly. For the purposes of the Parliamentary franchise, and the municipal and all other local franchises, the tenants will be deemed to be the occupiers, and the rates so apportioned will be deemed to have been paid by them. No allotment may be sub-let, and no person may hold any allotment or allotments acquired under the Act exceeding 1 acre, subject to this exception, that if at any time any allotment cannot be let in accordance with the provisions of the Act and the regu- lations made by the district council the same may be let to any person whatever at the best annual rent which can be obtained for it, without any premium or fine, and on such terms as may enable the district council to resume possession within a period not exceeding 12 months if it should at any time be required to be let under the provisions of the Act. No building other than a tool-house, shed, greenhouse, fowl- house, or pigstye may be erected on any part of any allotment, and if any other building is erected the district council are forth- with to pull it down and sell and dispose of the materials, and the proceeds of the sale will be applicable in like manner as the rent of the allotment. If any tool-house or other building so allowed to be erected is erected upon an allotment, then at the end of the tenancy neither the district council nor the incoming tenant will be bound to take any such building or pay any com- pensation for it, but the outgoing tenant will be at liberty, before the expiration of his tenancy, to remove the building, and, if he fails to do so, the district council may pull it down and dispose of the materials, and apply the proceeds in like manner as if it were a building prohibited to be erected. A tenant of an allotment may, before the expiration of his tenancy, remove any fruit and other trees and bushes planted or acquired by him, for which he has no claim for compensation. Sect. 7. Provision is also made in the Act for recovery of rent ; the determination of tenancies in the event of non-payment of rent, or of breach of the regulations of the district council, or from other causes ; the payment of compensation to outgoing tenants ; SECT. VI.] OTHER MODES OF RELIEF. 401 the register of tenancies and unlet allotments ; the sale or ex- change of land acquired in pursuance of the Act when the dis- trict council are of opinion that it is no longer needed for the purpose of allotments, or that any other land more suitable for such purpose is available ; the application of the proceeds of such sales, and the moneys received for equality of exchange ; and other similar matters. Sects. 8, 11, and 15. All expenses incurred by the district council under the Act, including allowances to their officers for duties under the Act, are to be defrayed as special expenses incurred in the execution of the Public Health Act, and to be charged to the parish on account of which the land is acquired ; and all sums received by them in respect of any land acquired under the Act, otherwise than from any sale or exchange, must be applied in aid of the expenses incurred by them in respect of such land, and, so far as they may not be required for that purpose, in aid of the special expenses incurred in the execution of the Public Health Act, and are to be credited to the parish on account of which the land was acquired. Common Pasture. — In addition to the power of providing allotments, the Act enables a district council to submit to the county council a scheme for providing common pasture for any parish in their district, if it appears to them that land can be acquired for affording common pasture, at such price or rent that all expenses incurred by them in acquiring it, and otherwise in relation to it when acquired, may reasonably be expected to be recouped out of the charges paid in respect thereof, and that the acquisition of such land is desirable in view of the wants and circumstances of the labouring population. The county council, if satisfied of the expediency of any such scheme, may by order authorise the district council to carry it into effect. "When any such scheme is carried out, the regulations made under the Act may extend to regulating the turning out of animals on the common pasture, to defining the persons entitled to turn them out, the number to be turned out, and the condi- tions under which animals may be turned out, and fixing the charges to be made for each animal, and otherwise to regulating the common pasture. Sect. 12. S. D D 402 RELIEF. [CHAP. XXI. The Allotments Act, 1890. — Further powers with respect to allotments have been conferred on county councils by the Allot- ments Act, 1890, which provides an appeal to the county council where the rural district council fail to perform their duty under the Allotments Act, 1887. If a representation has been made to the rural district council under sect. 2 of the Allotments Act, 1887, with respect to a district or parish to which the new Act applies, and it appears to any six persons qualified to make such a representation that the circumstances are such as to make it the duty of the rural district council to take proceedings for the acquisition of land for allotments, and that the rural district council have failed to acquire lands adequate and suitable for the purpose. These persons may petition the county council to put the Act of 1887 in force for the purpose of providing a sufficient number of allotments. For the purposes of the Act of 1890 a standing committee of the county council is to be appointed, to whom any petition under the Act is to be referred as of course, without any order of the council, and who may direct a local inquiry into the cir- cumstances of the case. If, on the report of the inquiry, the county council are satisfied that land should be acquired for allotments, a resolution to that effect is to be passed by them, and thereupon the powers and duties of the rural district council under the Allotments Act, 1887, so far as regards the particular district or parish concerned, will be transferred to the county council, and the latter are to proceed to acquire the necessary land, and otherwise execute the Act in the district or parish. Compulsory taking of Land for Allotments. — The Local Government Act, 1894, makes important alterations of the law relating to the compulsory acquisition of land for the purpose of allotments for the labouring classes. The principal of these alterations enables orders for the compulsory purchase of land to be made without confirmation by Parliament, and empowers parish councils to hire land cornpulsorily for allotments by means of similar orders. If a district council are prepared to provide allotments, but are unable to do so by agreement, they may apply to the county council, and in that case or in any case where, by way of appeal from the district council, a petition is presented to the county council, and compulsory powers are necessary to enable the latter to acquire land for the purposes of SECT. VI.] OTHER MODES OF RELIEF. 403 allotments, the county council may, after local inquiry, make an order for putting in force, as respects the land proposed to be acquired, the provisions of the Lands Clauses Acts, with respect to the purchase and taking of land otherwise than hy agreement. See 23rd Annual Report of Local Government Board. If the county council refuse to make an order, the district council may apply to the Local Government Board by petition, who, after local inquiry, may make the order. Any order thus overruling the decision of the county council must be laid by the Local Government Board before Parliament. Compulsory purchase of Land by Parish Council. — If a parish council are unable to acquire land by agreement and on reason- able terms for any purpose for which they are authorised to acquire it, they may represent the case to the county council, and on any such representation the county council may take the same proceedings as those above described with respect to the issue of an order for the taking of lands for allotments. Sect. 9 (2). The Local Government Board have issued a general order, dated 22nd May, 1895, prescribing regulations as to the com- pulsory purchase of land under sect. 9 of the Local Government Act, 1894. The provisions of this order relate to cases of two kinds, viz., (1) representations by parish councils under sect. 9 (2) of the Local Government Act, 1894; and (2) certain proceed- ings under the Allotments Acts, 1887 and 1890. Compulsory hiring of Land for Allotments. — Parish councils are empowered to hire land for allotments, and if they are unable to hire suitable land for the purpose by agreement and on reasonable terms, they are enabled to represent the case to the county council, who may make an order authorising the com- pulsory hiring, for a period not less than 14 nor more than 35 years, of such land in or near the parish as is specified in the order. 56 & 57 Vict. c. 73, s. 10. Any such order must be deposited with the Local Government Board, and if the proceed- ings are found to have been regular, and no memorial is pre- sented against the order within the prescribed period by some person interested, the Board are required to confirm it. If, however, a memorial is presented, a local inquiry must be held, and it is in the discretion of the Board whether the order shall be confirmed, with or without amendment, or disallowed. Ibid, Dl)2 404 RELIEF. [CHAP. XXI. The procedure is similar to that prescribed as regards an order for compulsory purchase of land for allotments {ante, p. 403). If, after receiving a representation, the county council refuse to make an order for compulsory hiring, the parish council may present a petition to the Local Government Board, and they are empowered, after local inquiry, to make the order. Ibid. The Act gives no power to a parish council to purchase land expressly for allotments. The Local Government Board have issued general orders, dated 20th and 21st May, 1895, prescribing reo-ulations under sect. 10 of the Local Government Act, 1894, as to the compulsory hiring of land for allotments. A parish council can only hire land for allotments for the benefit of persons of the labouring population, which may be taken to include persons employed in manual labour, and any others who may usually be considered as belonging to the labouring class. Section VII. — Casual Poor. Definition of. — Casual poor are those who, in consequence of accident, calamity, or any other circumstance, require immediate parochial relief, and thus become a burthen upon the funds of the parish in which they may happen to be at the time when the necessity for such relief arises, although their legal settlement is elsewhere. "Casual pauper " means any destitute wayfarer or "wanderer applying for or receiving relief. 34 & 35 Vict. c. 108, s. 3. The parish officers must relieve them, and they are not removable to their legal settlement while detained by the effect of such accident, &c. 7?. v. St. James, Bury St. Edmunds, 10 East, 25 ; R. v. St. Lawrence, Ludlow, 4 B. & Aid. G60 ; R. v. St. Pancras, 7 A. & E. 750. See as to the removeability of casual poor, post, p. 446. Liability for Casual Poor. — The officers of the parish where the casualty occurs are under a legal obligation to relieve the pauper and pay all the necessary expenses. They may be, therefore, sued by the surgeon for medical attendance ; Gent v. Tompkins, 5 B. & C. 746, n. ; or by a parishioner who takes care of the pauper. Simmons v. Wilmott, 3 Esp. 91. If any of the parish officers stand by and see the services performed and do not object, the law raises an implied promise by them to pay. SECT. VII.] CASUAL POOR. 405 Lamb v. Butice, 4 M. & Sel. 275 ; Tomlinson v. Bentall, 5 B. & C. 738. The relief given to casual poor cannot be recovered from the parish to which they belong or from any others than the parish where they are, even in the case of continued illness, unless such parish or persons have expressly promised to pay; the legal obligation being cast on the parish where the casualty occurred, and the moral obligation imposed on the parish of settlement not being sufficient to support an implied promise. Atkins v. Bamvell, 2 East, 505; Wing v. Mill, 1 B. & Aid. 104; Paynter v. Williams, 1 C. & M. 810. A stranger, if he directs a surgeon to attend a pauper, is liable to pay the surgeon's bill. Watling v. Walters, 1 C. & P. 132. Where any poor person having a fixed place of abode in a parish in any union formed under the 4 & 5 Will. 4, c. 76, by reason of accident, bodily casualty or sudden illness occurring to him while in some other parish in which he has no legal settle- ment, requires relief, the cost of all such relief shall be repaid by the parish or union in which he is or would be otherwise chargeable. 11 & 12 Vict. c. 110, s. 2. See Casual Wards, post, p. 422. A servant falling sick in domestic service becomes a casual pauper and is entitled to be attended and relieved by the parish authorities. Simmons v. Wilmott and others, 3 Esp. 91. Section VIII. — Bastards. Definition of. — A bastard is one born out of lawful matrimony. The child of a married woman is in all cases presumed to be legitimate, until it be proved that the husband could not have had access at a time when by the laws of nature he could be the father of the child, whether throiigh physical impossibility, or by reason of circumstances which raise a presumption that he did not have such access or connection with the mother. Banbury Peerage Case, 1 Sel. N. P. 673; 1 Sim. & Stu. 153. The presumption in favour of the legitimacy of a child born in wedlock is not a presumptio juris et dejure, but may be rebutted by evidence, which must be clear and conclusive, and not resting merely on a balance of probabilities. Bosvile v. The Att.-Gen., 12 P. D. 177. Access, and consequently sexual connection, will 406 RELIEF. [CHAP. XXI. be presumed unless the contrary be proved, but the presumption of sexual intercourse may be rebutted notwithstanding oppor- tunities for it occurred. Cope v. Cope, 1 M. & Rob. 269. And the presumption may be rebutted by evidence of the conduct of the parties. Atchley v. Sprigg, 33 L. J. Ch. 345 ; Gurnet/ v. Gurney, 32 L. J. Ch. 456. But the fact of the mother living in open adultery is not alone sufficient to rebut the presumption of legitimacy. 7?. v. Mansfield, 1 Q. B. 444. See Barony of Saye and Sele, 1 H. L. Ca. 507. Marriage, though so recent that the child could not have been begotten in wedlock, is quasi an ad- mission of the husband that the child is his. 1 Roll. Abr. 358 ; 1 Bla. Com. 456. "Where a decree of judicial separation exists, obedience to it is to be presumed, and the child born of the woman divorced or separated is presumed not to be the hus- band's ; but if the husband and wife are separated by voluntary deed merely, the issue of the wife will be deemed legitimate until non-access be proved. St. George and St. Margaret Parishes, 1 Salt. 123. A bastard is not by the law of England made legitimate by the subsequent marriage of its parents. 20 Hen. 3, c. 9. Liability to maintain. — The mother, as lorig as she is un- married or a widow, is bound to maintain the child until it attain the age of 16 ; and all relief granted to it while under 16 i s to be considered as granted to the mother. But the liability of the mother is to cease on the marriage of the child, if a female. 4 & 5 Will. 4, c. 76, s. 71. There is no legal obligation on the part of the personal representative of the deceased mother of an illegitimate child under 16 years of age to pay out of assets for the expenses of its maintenance incurred after the mother's death. Rnttinger v. Temple, 33 L. J. Q. B. 1. A man marrying a woman having an illegitimate child is bound to maintain it as part of his family until it attains 16, or the death of its mother. Sect. 57. The mother of a bastard neglecting to maintain it, being able wholly or in part so to do, whereby it becomes chargeable to any parish or union, is punishable as an idle and disorderly person under 5 Geo. 4, c. 83 ; and, upon a second conviction, or for deserting her bastard child, whereby it becomes chargeable, is punishable as a rogue and vagabond under 7 & 8 Vict. c. 101, s. 6. SECT. VIII.] BASTARDS. 407 The mother of an illegitimate child has a natural right to its custody. 7?. v. Nash, 10 Q. B. D. 454. It is a misdemeanour for any parish officer to induce any person to contract marriage by threat or promise respecting any applica- tion to be made, or any order to be enforced, with respect to the maintenance of any bastard child. 7 & 8 Vict. c. 101, s. 8. The father of a bastard is not required to give information concerning the birth of such child. 37 & 38 Vict. c. 88, s. 7, ante, p. 164. It is the duty of the mother of a bastard to have it vaccinated. See 30 & 31 Vict. c. 84, ss. 29, 35. As to the liability of a soldier or marine to support his bastard child, see ante, p. 389. Order of Affiliation. — After the death of the mother, or if she be incapacitated, so often as any bastard for whose maintenance an order has been made becomes chargeable to any parish or union by the neglect of the putative father to mate the pay- ments, the guardians, or if there be no guardians then the over- seers, may make such application for the enforcement of the order as might have been made by the mother ; but all payments for maintenance of the child, made in pursuance of such application, are to be made to some person appointed by the justices, and on condition that such bastard child cease to be chargeable to such parish or union. 36 Vict. c. 9, s. 7. When a bastard child becomes chargeable to a union or parish, the guardians may apply to justices having jurisdiction therein for a summons against the alleged father to show cause why he should not contribute to relief of the child. The justices, after hearing evidence, may make an order on such putative father to pay to guardians, or one of their officers, such sum, weekly or otherwise, towards the relief of the child during such time as the child is chargeable, as they think proper ; and any payment so ordered is recoverable in the same way as money payable under an order obtained by the mother : provided that — 1 . No payments are to be recoverable under such order, except in respect of the time during which the child is actually in receipt of relief . 2. An order is not to be made, and if made, shall cease, except for the recovery of arrears, when the mother of the child has obtained an order. 408 RELIEF, [CHAP. XXI. 3. Nothing in this section is to be deemed to relieve the mother of a bastard child from her liability to maintain it. 4. A person against whom an order is made under this section is to have a right of appeal. 5. If after an order has been made under this section the mother apply for an order, the order made under this section is to be prima facie evidence that the man upon whom the order is made is father of the child. 36 Yict. c. 9, s. 5. An order under this section cannot be treated as an order obtained by the mother who has become chargeable, and she must make application for an order on her own behalf within the proper time. Billing ton v. Cyples, 52 L. T. 854 ; 49 J. P. 582. By sect. 6 the Local Govern- ment Board may issue new forms of proceedings in matters of bastardy. They were issued August 4, 1873, and January 8, 1874. Recovering Cost of Bastard's Relief. — When any bastard child, for whose maintenance an order has been made on the application of the mother, becomes chargeable to any parish or union, the justices having jurisdiction therein may appoint some relieving or other parish officer, to receive on account of such parish or union such proportions of the payments then due or becoming due, under the order, as may accrue during the period for which such child is chargeable, and such appointment is to remain in force for one year, and may afterwards be renewed, for the like period, by endorsement by one justice. Amj payment so ordered to be made is recoverable in the same manner as payments under an order obtained by the mother. 35 & 36 Yict. c. 65, s. 7. Section IX. — Pauper Lunatics. Providing Asylums.— The county council are to provide, en- large, maintain, manage and visit and deal with asylums for pauper lunatics. 51 & 52 Vict, c. 41, ss. 3, 86. Different counties and boroughs may combine for the purpose of providing a common asylum. Ibid. "The number of pauper lunatics chargeable to counties and boroughs has to some extent decreased of late years, but the number of these paupers chargeable to the poor rate has increased in each year for which we have records of the numbers relieved." Twenty-seventh Annual Beport of Local Government Board, 1898. SECT. IX.] PAUPER LUNATICS. 409 The enactments relating to pauper lunatics are consolidated by the Lunacy Act, 1890. 53 & 54 Vict. c. 5. Committee of Visitors. — The county council are to appoint a " committee of visitors " of the asylum. Workhouse. — No lunatic, insane person, or dangerous idiot is to be detained in a workhouse more than 14 days, unless in the opinion of medical officer such lunatic is a proper person to be kept in a workhouse, and there is sufficient accommodation there. The visitors of an asylum, and the guardians for a place within the district for which the asyluni has been provided, may make arrangements, subject to approval of Lunacy Commissioners and President of Local Government Board, for the reception and care of a limited number of chronic lunatics in the workhouse in the parish or union. Paupers in a workhouse suffering from mental disease may be detained and sent to an asylum. Guardians may send idiots to asjdums, and also idiotic or insane paupers who may lawfully be detained in a workhouse, to a workhouse of any other union or parish with the consent of the guardians, and pay the cost of removal, maintenance, and burial. 31 & 32 Vict. c. 122, s. 13. Hospitals and Licensed Houses. — Eegistered hospitals and licensed houses maj r be provided for the reception of pauper and other lunatics. If a pauper lunatic is sent from a borough, wholly or partly comprised within a union or parish, to any licensed house or registered hospital, the guardians are only liable for amount which would have been paid for maintenance of lunatic if he had been in the county asylum ; all extra expenses are to be paid by the town council. 39 & 40 Vict. c. 61, s. 26. This does not apply to a borough which has provided or contributed to a pauper lunatic asylum. Maintenance of Lunatics. — Where any lunatic is sent to an asylum, &c, under an order of two justices, if it appears to such justices that he has an estate applicable to his maintenance, and more than sufficient to maintain his family, they may apply in writing to his nearest known relation or friend for payment of the charges of the examination, removal, lodging, maintenance, clothing, medicine, and care of such lunatic. If such charges 410 RELIEF. [CHAP. XXI. are not paid within a month, after the application, the justices may direct a relieving officer or overseer of the parish from "which the lunatic was sent or where any of his property is, to seize and sell so much as is necessary to pay such charges. But the justices may, notwithstanding, in the meantime and until such charges are paid, make an order on the guardians of the union or parish, or the overseers of the parish, from which the lunatic was sent for confinement, for payment of the charges of the removal, &c, of such lunatic ; and such guardians and over- seers are to be reimbursed such charges, under any order to be made as aforesaid for payment of such charges, out of the pro- perty of the lunatic, unless the same be sooner repaid by some relative or friend of the lunatic in pursuance of such application as aforesaid. 53 & 54 Viet. c. 5. The liability of any relation or person to maintain any lunatic is not to be taken away or affected where such lunatic is sent to or confined in an asylum, &c, by any provision in the Act con- cerning the maintenance of such lunatic. Ibid. Maintenance of a pauper lunatic in an asylum by the guardians of the poor of the parish to which he is chargeable, constitutes a debt of the lunatic to the guardians. Stamford Union v. Bartlett, (1899) 1 Ch. 72; 68 L. J. Ch. 21 ; 79 L. T. 462. In an action by the guardians against his legal personal represen- tative for arrears of maintenance the statute of limitations may be set up. Ibid. Where any married woman being lunatic is duly removed to an asylum, the guardians or overseers of the union or parish to which the lunatic is chargeable may summon the husband to appear before the justices having jurisdiction in the union or parish, the guardians whereof shall make the application to show cause why an order should not be made upon him to main- tain or contribute towards the maintenance of his wife in such asylum, and such justices may make an order upon him to pay such sum, weekly or otherwise. 13 & 14 Vict. c. 101, s. 5, and 39 & 40 Vict. c. 61, s. 20. If guardians incur any expenses in the relief of a pauper lunatic being a member of a benefit or friendly society, and as such entitled to receive any payment, and not having a wife or other relative dependent upon him for maintenance, they may recover from him as a debt, or from his representatives, in case SECT. IX.] PAUPER LUNATICS. 411 of his death, the sum so expended by them, and the managing body of that society, after notice from the clerk to the guardians, served previously to the money being paid over, is required to pay the same to such guardians, and is exonerated on payment thereof from any further liability. The guardians may apply to the justices for an order for such payment to be made, but no claim can be made upon any such society until the guardians have declared the relief to be given on loan, and have, -within 30 days thereof, notified the same in writing to the secretary and trustee of the society. 39 & 40 Yict. c. 61, s. 23; 42 Viet, c. 12. If such pauper lunatic has a wife, or other relative dependent upon him for maintenance, such moneys are, subject to any deductions for keeping up his membership required by the rules of such society, to be paid or applied by the officers of such society to or for the maintenance of such wife or relative. 42 Vict. c. 12. Chargeability of Pauper Lunatics. — Any pauper lunatic con- fined under the provisions of the Act is, for the purposes of the Act, to be chargeable to the parish from, or at the instance of some officer or officiating clergyman of, which he has been sent, unless and until such parish has established, under the pro- visions herein contained, that he is settled in some other parish, or it cannot be ascertained in what parish he is settled ; and every pauper lunatic chargeable to any parish is, whilst he resides in an asylum, &c, to be deemed for the purposes of his settle- ment to be residing in the parish to which he is chargeable. Orders. — Orders for maintenance, &c, may be removed into Queen's Bench Division by certiorari, and without leave of such Division may be taken to Court of Appeal. R. v. Pemberton and Smith, 5 Q. 13. D. 95 ; 49 L. J. M. C. 29. The guardians of any union may obtain orders upon the guardians of any other union, or upon the guardians and overseers of any parish not comprised in a union, or upon the treasurer of the county, and may appeal against or defend in respect of any lunatic paupers made charge- able upon the common fund of the union. The guardians of a parish have the same powers. 39 & 40 Vict. c. 61, s. 2.5. CHAPTEE XXII. WORKHOUSES. PAGE 1 . Generally 412 2. Casual Wards 422 1. Generally. Provision -was first made for the general establishment of workhouses throughout the kingdom by 9 Geo. 1, c. 7, s. 4 (repealed 50 & 51 Vict. c. 59), by which the churchwardens and overseers were empowered, with the consent of the major part of the inhabitants in vestry assembled, to purchase or hire houses, or to contract for the maintenance of the poor, and there to main- tain and employ them and take the benefit of their labour ; and any poor person refusing to be maintained in such houses was not to be entitled to receive relief. Now, subject to the rules and regulations of the Local Govern- ment Board, the guidance, government, and control of the work- house and of the officers and servants, and the inmates, are placed in the hands of the guardians, and the responsibility for the management of the workhouse and the welfare of the inmates rests with them and the officers under their control. Por an epitome of the duties of a guardian in connection with the workhouse reference should be made to a circular letter issued by the Local Government Board, dated 29th January, 1895, but most if not all these duties are enumerated in the present chapter. Guardians may borrow money for furnishing workhouses. 42 & 43 Vict. c. 54, s. 11. Power of Local Government Board. — The Local Government Board are to make such rules for the management of the poor, CHAP. XXII.] WORKHOUSES. 413 the government of workhouses, and the education of the children therein as they think proper. 4 & 5 Will. 4, c. 76, s. 15. The Board have power to enforce provision of drainage, ventilation, &c. 31 & 32 Vict. c. 122, s. 8. Receiving Poor of other Parishes. — Guardians and managers of pauper asylums may contract to receive paupers chargeable to some other union or parish with the consent of the Local Government Board. 39 & 40 Vict. c. 61, s. 22; 12 & 13 Vict. c. 103, s. 14. Appointment of Officers. — The Local Government Board may order the overseers or guardians to appoint paid officers, and may remove any master of the workhouse or other paid officer, and require others to be appointed. 4 & 5 Will. 4, c. 76, ss. 46, 48. See ante, p. 353. Register to be kept. — The master of every workhouse, or such other paid officer as the Local Government Board may direct, is to keep a register of the name of every person receiving relief within such workhouse, with the particulars respecting their families and settlements, relief and employment. Sect. 55. Rules for the Government of Workhouses. — By an order of the 24th July, 1847, the guidance, government, and control of every workhouse and of the officers, &c, therein are to be exercised by the guardians of the union ; and the following rules and regulations are made : — Admission of Paupers. — Art. 88. Every pauper who shall be admitted into the workhouse, either upon his first or any subse- quent admission, shall be admitted in some one of the following modes only, that is to say : — By a written or printed order of the board of guardians, signed by their clerk. By a provisional written or printed order, signed by a relieving officer or an over- seer. By the master of the workhouse (or during his absence or inability to act, by the matron), without any order, in any case of sudden or urgent necessity. Provided that the master may admit any pauper delivered at the workhouse under an order of removal to a parish in the union. See 9 & 10 Vict. c. 66, s. 7. Art. 89. No pauper shall be admitted under any written or printed order, as above mentioned, if the same bear date more 414 WORKHOUSES. [CHAP. XXII. than 6 clays before the pauper duly presents it at the work- house. Art. 90. If a pauper be admitted otherwise than by an order of the board of guardians, the admission of such pauper shall be brought before the board of guardians at their next ordinary meeting, who shall decide on the propriety of the pauper's con- tinuing in the workhouse or otherwise, and make an order accordingly. Classification of the Paupers. — Art. 98. The paupers, so far as the workhouse admits thereof, shall be classed as follows : — Class 1. Men infirm through age or any other cause. Class 2. Able-bodied men, and youths above the age of fifteen years. Class 3. Boys above the age of seven years, and under that of fifteen. Class 4. "Women infirm through age or any other cause. Class 5. Able-bodied women, and girls above the age of 15 years. Class 6. Girls above the age of 7 years, and under that of 15. Class 7. Children under 7 years of age. To each class shall be assigned that ward or separate building and yard which may be best fitted for the reception of such class, and each class of paupers shall remain therein without communi- cation with those of any other class. Art. 99. Provided, firstly, that the guardians shall from time to time, after consulting the medical officer, make such arrange- ments as they may deem necessary with regard to persons labour- ing under any disease of body or mind. Secondly. The guardians shall, so far as circumstances will permit, further sub-divide any of the classes enumerated in Art. 98, with reference to the moral character or behaviour, or the previous habits of the inmates, or to such other grounds as may seem expedient. Thirdly. That nothing in this order shall compel the guardians to separate any married couple, both being paupers of the first and fourth classes respectively, provided the guardians shall set apart, for the exclusive use of every such couple, a sleeping apartment separate from that of the other paupers. [When two persons, being husband and wife, both of whom CHAP. XXII.] WORKHOUSES. 415 shall be above the age of 60 years, shall be received into any ■workhouse, such persons shall not be compelled to Live separate and apart from each other in such workhouse. 10 & 11 Vict. c. 109, s. 23. When two persons, being husband and wife, either of whom are infirm, sick, or disabled by any injury, or above the age of 60 years, are received into a workhouse, they may be permitted by the guardians to live together. 39 & 40 Yict. c. 61, s. 10.] Fourthly. That any paupers of the fifth and sixth classes may be employed constantly or occasionally in any of the female sick wards, or in the care of infants, or as assistants in the household work ; and the master and matron shall make such regulations as may enable the paupers of the fifth and sixth classes to be employed in the household work, without communication with the paupers of the second and third class. Fifthly. That any pauper of the fourth class, whom the master may deem fit to perform any of the duties of a nurse or assistant to the matron, may be so employed in the sick wards, or those of the fourth, fifth, sixth or seventh classes ; and any pauper of the first class, who may by the master be deemed fit, may be placed in the ward of the third class, to aid in the management and superintend the behaviour of the paupers of such class, or may be employed in the male sick ward. (The Local Government Board have issued a general order, dated 6th August, 1897, prohibiting the employment of pauper inmates as nurses, and making other provisions, with the view of increasing the efficiency of the nursing staff in workhouses.) Sixthly. That the guardians, for the special reason to be entered on their minutes, may place any boy or girl, between the ages of 10 and 16 years, in a male or female ward respectively different from that to which he or she properly belongs, unless the. Local Government Board shall otherwise direct. Seventhly. That the paupers of the seventh class may be placed in such of the wards appropriated to the female paupers as shall be deemed expedient, and the mothers of such paupers shall be permitted to have access to them at all reasonable times. Eighthly. That the master of the workhouse (subject to any directions given or regulations made by the guardians) shall allow the father or mother of any child in the same workhouse, who may bo desirous of seeing such child, to have an interview 416 WORKHOUSES. [CHAP. XXII. with such child, at some one time in each day, in a room in the said workhouse to be appointed for that purpose. And the guardians shall make arrangement for permitting the members of the same family, who may be in different workhouses of the union, to have occasional interviews with each other, at such times and in such manner as may best suit the discipline of the several workhouses. Ninthly. That casual poor wayfarers, admitted by the master or matron, shall be kept in a separate ward of the workhouse, and shall be dieted and set to work, in such manner and under such regulations as the guardians, by any resolution now in force or to be made hereafter, may direct. See post, p. 422. Art. 100. The guardians shall not admit into the workhouse or any ward of the same, or retain therein, a larger number or a different class of paupers than that heretofore or hereafter, from time to time, fixed by the Local Government Board ; and in case such number shall at any time be exceeded, the fact of such excess shall be forthwith reported to the Board by the clerk. Discipline and Diet of the Paupsrs. — See Arts. 102 — 126. The Local Government Board by a general order, dated 3rd November, 1892, empowered guardians to allow such a quantity as they may prescribe of tobacco or snuff to the workhouse in- mates who are not able-bodied or who are employed upon work of a specially disagreeable character. And by a general order dated 8th March, 1894, empowered guardians, if they think fit, to cause dry tea with sugar and milk to be supplied to such of the female inmates of the workhouse as they may consider should be supplied with the same, the quantity to be allowed in each case, or in any class of cases, to be such as the guardians may by resolution prescribe. Workhouses in the Metropolis. — Previous to the legislation of 1867, the classification of the inmates of workhouses in London was, in very many respects, defective. Children of school age had, indeed, for some years before that period, been placed in separate institutions in the neighbourhood of London. But the separation of the sick from the other inmates was in most cases imperfect, and the large class of harmless lunatics were aggre- gated with the other inmates. Cases of infectious disease were CHAP. XXII.] WORKHOUSES. 417 also freely admitted into the sick wards. The establishment of the Metropolitan Infirmaries has remedied the first evil ; that of the Metropolitan Asylum District has dealt with the two latter. Misconduct of Paupers. — The overseers may prosecute paupers who pawn or sell apparel, tools, utensils, goods, &c, given them "by the parish, or who steal any such tools, &c, and the persons who receive or buy them ; and the property in such goods and chattels is to be laid in the overseers for the time being, without specifying their names. 55 Geo. 3, c. 137, s. 1. Sect. 2 directs that the tools, &c, are to be marked, and imposes a penalty of 51. or 2 months' imprisonment for defacing such marks, or for buying goods, &c, so marked, or receiving them in pledge, and 3 months' imprisonment with hard labour upon paupers absconding with any such goods, &c. By sect. 5, if any poor person maintained in any workhouse refuses to work at any employment suited to his age, strength, and capacity, or is guilty of drunkenness or other misbehaviour, he is, on conviction before any justice, to be imprisoned and kept to hard labour for not exceeding 21 days. The regulations as to punishments for misbehaviour of paupers are contained in the order of 24th July, 1847. Arts. 127 — 147. No master, &c, is to punish with any corporal punishment whatever, any adult person under their charge for any offence or misbehaviour whatever, or to confine any such person whatsoever for any offence or misbehaviour for a longer term than 24 hours, or such further time as may be necessary to bring him before a justice. 54 Geo. 3, c. 170, s. 7. No governor, &c, of any work- house is on any pretence to chain, or confine by chains or manacles, any poor person of sane mind. 56 Geo. 3, c. 129, s. 2. Art. 143. The master shall keep a book, to be furnished him by the guardians, in which he shall duly enter — Firstly. All cases of refractory or disorderly paupers, whether children or adults, re- ported to the guardians for their decision thereon. Secondly. All cases of paupers, whether children or adults, who may have been punished without the direction of the guardians, with the particulars of their respective offences and punishments. Art. 145. Such book shall bo laid on the table at every ordinary meeting of the guardians, and every entry made in such book since the last ordinary meeting shall bo read to the board by the clerk. The guardians shall thereupon, in the first place, give direction as to any confinement or other punishment s. F " 418 "WORKHOUSES. [CHAP. XXII. of any refractory or disorderly pauper reported for their decision, and such direction shall be entered on the minutes of the pro- ceedings of the day, and a copy thereof shall be inserted by the clerk in the book specified in Art. 143. The guardians, in the second place, shall take into their consideration the cases in which punishments are reported to have been already inflicted by the master or other officer, and shall require the master to bring before them any pauper so punished who may have signified a wish to see the guardians. If the guardians in any case are of opinion that the officer has acted illegally or im- properly, such opinion shall be entered on the minutes, and shall be communicated to the master, and a copy of the minute of such opinion shall be forwarded to the Local Government Board by the clerk. Art. 146. If any pauper above the age of 14 years unlaw- fully introduce or attempt to introduce spirituous or fermented liquor into the workhouse, or abscond from the workhouse with clothes belonging to the guardians, the master may cause such pauper to be forthwith taken before a justice of the peace, to be dealt with according to law ; and whether he do so or not, he shall report every such case to the guardians at their next ordinary meeting. Any person carrying, bringing, or introducing, or attempting or endeavouring to carry, &c, into any workhouse, any spirituous or fermented liquor, without the order in writing of the master, may be apprehended by the master or any officer acting under his direction, and carried before a justice, who is empowered to determine the offence in a summary way. 4 & 5 "Will. 4, c. 76, s. 92. Sect. 93 imposes a penalty of 201. on any master allowing the use or introduction of spirituous or fermented liquor (except for the use of themselves and the officers and their families), or ill-treating paupers. Sect. 94 requires them to hang up copies of the two preceding clauses in the workhouse, under a penalty of 10*. Persons deserting or running away from a workhouse, and carrying away with them any clothes, linen, or other things, the property of the guardians, may, on conviction, be committed to prison for not less than seven days, nor more than three months. 55 Geo. 3, c. 137, s. 2 ; 7 & 8 Vict. c. 101, s. 58. As to discharge and detention of paupers, see 34 & 35 Vict, c. 108. CHAP. XXII.] WORKHOUSES. 419 Art. 147. The master shall cause a legible copy of Arts. 127 to 131 to be kept suspended in the dining-hall of the workhouse, or in the room in which the inmates usually eat their meals, and also in the board-room of the guardians. Inspection of Workhouses. — Any justice or any physician, surgeon, or apothecary, or the officiating clergyman of the parish, authorized by the warrant of a justice, may, at all times in the daytime, visit any workhouse within the jurisdiction of such justice, and examine into the condition of the poor therein and of such house ; and if such visitor, so authorized, finds cause of complaint, he may certify the state and condition of the house and of the poor therein to the next quarter sessions, under his hand and seal, and cause the overseers of the poor or the governor of the house to be summoned to appear at the sessions to answer the complaint ; and the justices in sessions may make orders for removing the cause of complaint. 30 Geo. 3, c. 49, s. 1. Visiting Committee. — Justices are empowered to see regula- tions of Local Government Board enforced, and to visit work- house. 4 & 5 Will. 4, c. 76, s. 43. By the order of 24th July, 1847, Art. 148, the guardians shall appoint one or more Visiting Committees from their own body ; and each of such committees shall carefully examine the workhouse or workhouses of the union once in every week at the least ; inspect the last reports of the chaplain and medical officer ; examine the stores ; afford, so far as practicable, to the inmates an opportunity of making any complaints, and investigate any complaiuts that may be made to them. Art. 149. The visiting committee shall from time to time write such answers as the facts may warrant to the queries, which are to be printed in a book entitled the " Visitors' Book," to be pro- vided by the guardians, and kept in every workhouse for that purpose, and to be submitted regularly to the guardians at their ordinary meetings. The visiting committee are, once at least in every quarter, to enter in a book provided and kept by the master of the work- house such observations as they may think fit with respect to dietary, accommodation, and treatment of lunatics, being in the workhouse. 25 & 26 Vict. c. Ill, s. 37. E e 2 420 WORKHOUSES. [CHAP. XXII. Visitation of Workhouses. — The Local Government Board have issued an order, dated 26th January, 1893, with regard to the visitation and inspection of workhouses, giving authority to any guardian to visit any part of a workhouse or other establish- ment belonging to the union or separate parish of which he is a guardian at any time he may think fit. The same order em- powers boards of guardians to appoint at their discretion com- mittees of ladies, who need not be guardians, with authority, subject to rules to be framed by the guardians, to visit the parts of the workhouse in which female paupers or pauper children are accommodated. The order provides that the appointment of such a committee shall not in any way affect the powers and duties of the visiting committees appointed by the guardians from among their own members. Paid Visitor. — "Where the guardians neglect to appoint a visiting committee, or where 3 months have elapsed during which such committee has neglected to visit the workhouse, the Local Government Board are required to appoint a visitor, not being one of the guardians, at a salary to be fixed by them, to be paid out of the general fund of the union. The appointment of such paid visitor is to cease at the expiration of 3 calendar months next after the appointment of a visiting committee by the guardians, subject nevertheless to his reappointment in case of any repetition of such neglect of the guardians or visiting committee as aforesaid. 10 & 11 Vict. c. 109, s. 24. Such paid visitor is also to register and visit children taken as servants from workhouse. Cleansing and Repairing the Workhouse.— Art. 150. The guardians shall, once at least in every year, and as often as may be necessary for cleanliness, cause all the rooms, wards, offices, and privies belonging to the workhouse to be limewashed. Art. 151. The guardians shall cause the workhouse and all its furniture and appurtenances to be kept in good and substantial repair ; and shall, from time to time, remedy without delay any such defect in the repair of the house, its drainage, warmth or ventilation, or in the furniture or fixtures thereof, as may tend to injure the health of the inmates. Births and Deaths. — As to the registration of births and deaths in a workhouse, see 7 & 8 Vict. c. 101, s. 56, and 39 & 40 Vict. c. 61, s. 21. As to the burial of paupers, see ante, p. 204. CHAP. XXII.] WORKHOUSES. 421 Religious Creed Register. — The officer for the time being acting as the master of a workhouse, or as the master or super- intendent of a district or other pauper school, is to keep a register of the religious creeds of the pauper inmates of such workhouse or school separate from all other registers in such form and with such particulars as shall be prescribed by the Board, and is, upon the admission of every inmate therein, to make due inquiry into the religious creed of such inmate, and enter such religious creed in such register. 31 & 32 Vict. c. 122, s. 16. School Attendance of Indoor Pauper Children. — The educa- tion of indoor pauper children takes place either in public elementary schools, district schools, separate poor law schools or workhouse schools. The Local Grovernment Board have issued a general order, dated 30th January, 1897, amending the regula- tions regarding the instruction of children in workhouses and separate and district schools who are not sent out to public elementary schools. It provides that every child in good health, between the ages of 3 and 7 years, shall receive during the ordinary school hours at least 3 hours of instruction every day ; and every child in good health, between the ages of 7 and 14 years, at least 4 hours every day. A child over 1 1 years of age, who has passed the 4th standard under the code of the educa- tion department, may be withdrawn from instruction during half of the time prescribed, but no child may be entirely withdrawn until it has reached the age of 14 years, 2>ost, p. 479. Paupers' Conveyance Expenses. — In pursuance of the pro- visions of the Paupers' Conveyance (Expenses) Act, 1870, the Local Government Board issued the following order dated the 7th February, 1898:— Art. 1. Subject to the regulations hereinafter contained, the guardians of the poor of any poor law union may pay the reasonable expenses incurred by them in conveying any person chargeable to such union from the union to any institution specified in this article, for the purpose of visiting the husband, wife, child, or other relative of such person, who shall be an iumate of such institution, and in conveying such person back to the union. Art. 2. The expenses of conveyance as aforesaid shall not be 422 WORKHOUSES. [chap. XXII. payable unless permission for the visit is given by the guardians of the union to which the person seeking such permission is chargeable as aforesaid, nor unless such permission is duly recorded in the minutes of the guardians : Provided that in order to meet any cases of urgency which may occur between the meeting of the guardians, the guardians may, if they think fit, authorise the master of the workhouse as regards indoor paupers, and the relieving officer, as regards outdoor paupers, to pay in such cases the reasonable expenses of conveyance as aforesaid, subject to such regulations as may be prescribed by the guardians ; and the master of the work- house or the relieving officer shall report each case so dealt with by him to the guardians at their next meeting, and a record of such report shall be entered in the minutes of the guardians. Art. 3. The visits to any such person as aforesaid in any of the institutions described in the several paragraphs of Art. 1 of this order, shall at all times be subject to such regulations as may be made in that behalf by the guardians, or other autho- rity having the control of such institutions respectively. Art. 4. The amount allowed for the expenses of conveyance shall be paid by the guardians out of the fund applicable by the guardians to their general expenses under the Acts relating to the relief of the poor. 2. Casual Wards. The guardians of every union are to provide casual wards. 34 & 35 Vict. c. 108, s. 9. A casual pauper is not entitled to dis- charge himself from a casual ward before nine o'clock (but see post, p. 425) in the morning of the second day following his admission, nor before he has performed the work prescribed for him by the regulations of the Local Government Board, and where a casual pauper has been admitted, on more than one occasion during one month, into any casual ward of the same union, he is not entitled to discharge himself before nine o'clock in the morning of the fourth day after his admission, and he may at any time during that interval be removed by any officer of the guardians, or by a police constable, to the workhouse of the union, and be required to remain in such workhouse for the remainder of the period of his detention. Provided that, in computing the number of days during which a casual pauper CHAP. XXII.] WORKHOUSES. 423 may be detained under this section, Sunday is not to be included. 45 & 46 Vict. c. 36, s. 4. On the 18th of December, 1882, the Local Government Board issued the following general order prescribing regulations as regards the admission and discharge of casual paupers, their diet and task of work : — Admission. — Art. 3. A casual pauper shall not be admitted into any casual ward except upon an order signed either — By a relieving officer or an assistant relieving officer, Or, in cases of sudden and urgent necessity, by an overseer. Provided as follows : — 1. The master of the workhouse (or, during his absence or inability to act, the matron) or the superintendent of the casual ward shall admit any casual pauper without an order, where the case appears to be one of sudden or urgent necessity. 2. Where a person is refused admission to a casual ward, a record of the name of the applicant, and of the circumstances under which he was refused admission, shall be entered by the master, matron, or superintendent in a book, and laid before the guardians at their next meeting. Art. 4. The following regulations shall be observed with respect to orders of admission : — 1. The order shall, in addition to any other particulars which may be required, show the hour and place at which it was given : 2. The order shall be available only on the day on which it was issued : 3. The order shall not be available for admission earlier than 4 o'clock in the afternoon during the months between October and March, both inclusive, or earlier than 6 o'clock in the after- noon during the months between April and September, both inclusive, nor unless it is presented within a reasonable time after it has been obtained, except where, at the time of the presentation of the order, the master or matron of the work- house, or the superintendent of the casual ward, may consider the case to be one of sudden or urgent necessity. Art. 5. Every casual pauper shall, immediately upon admis- sion, be searched, in the case of a male, by or under the inspec- tion of the master or other male officer, and in the case of a female, by or under the inspection of the matron or other female 424 WORKHOUSES. [chap. XXII. officer, and all articles which, may be found upon the person of such pauper shall be taken away, and (except as regards any money, which may be dealt with in the manner prescribed by sect. 10 of the Poor Law Amendment Act, 1848) shall be restored to him at the time of his discharge. Art. G. Every casual pauper shall, as soon as practicable after his admission, be cleansed in a bath with water of suitable temperature : provided that this regulation shall not be enforced if, on account of the state of health of the pauper or other cir- cumstances, there is reason to believe that the use of the bath would be injurious. Art. 7. The clothing worn by a casual pauper shall, after his admission, be taken from him, and, if requisite, be dried or dis- infected, and such garment or garments as the guardians may deem necessary shall be supplied to him for the night, his own clothes being returned to him in the morning. Art. 8. The master of the workhouse or the superintendent of the casual ward shall duly keep, or cause to be kept, a book con- taining the particulars set forth in the form in Schedule A, and such other particulars as may be required by the guardians ; and such book shall be laid before the guardians at such times as they may appoint, and shall be submitted to the district auditor at the usual audits, and at other audits when required by him. Discharge. — Art. 9. Whereas, by sect. 4 of the Casual Poor Act, 1882, it is enacted {ante, p. 422) — ■ A casual pauper shall not be allowed to discharge himself at an earlier period than that at which he is entitled to discharge him- self under the section above cited. Provided as follows : — 1 . The guardians may give any directions to the master of the workhouse, or to the superintendent of the casual ward, with respect to the discharge of any class or classes of casual paupers before the expiration of the respective periods specified in the section above cited, and such directions shall be followed by the master or superintendent. 2. If, in the opinion of the master of the workhouse, or the superintendent of the casual ward, any special circumstances shall require that a casual pauper shall be discharged before the expi- ration of either of the periods mentioned in the section above CHAP. XXII.] WORKHOUSES. 425 cited, he may discharge such pauper accordingly, and shall report the facts of the case to the guardians at their next meeting. Under a general order issued by the Local Government Board, dated 11th June, 1892, the above-cited Article 9 of the said general order is amended by the addition thereto of the follow- ing proviso : — A casual pauper, who has been detained for more than one night, and who represents to the master of the workhouse or the superintendent of the casual ward that he is desirous of seeking work, shall, if he has to the best of his ability performed the prescribed task of work, be allowed to discharge himself at the time hereinafter mentioned on the day upon which he is dis- charged ; that is to say, — During the period between Lady Day and Michaelmas Day, half-past 5 o'clock in the morning. During the period between Michaelmas Day and Lady Day, half-past 6 o'clock in the morning. The request of such casual pauper shall not be refused except on the ground that he has not performed the prescribed task of work to the best of his ability, and every such refusal shall be reported to the guardians at their next ordinary meeting by the master of the workhouse or the superintendent of the casual ward, as the case may be. Nothing in this order shall be deemed to prevent the guardians, or the master of the workhouse, or the superintendent of the casual ward, from exercising the powers conferred upon them, respectively, by paragraphs (1) and (2) of the proviso to the above cited article of the said general order with respect to the discharge of casual paupers. Dietary. — Art. 10. The casual paupers received into the casual ward shall be dieted as prescribed in the table in the Schedule B. Provided as follows : — 1. The dietaries may be varied from time to time by a resolu- tion of the guardians, approved by the Local Government Board. 2. If a casual pauper be sick or infirm, the medical officer of the workhouse or casual ward shall prescribe the ^dietary for such pauper. The Local Government Board by a general order, dated 4th May, 1897, amended the regulations as to casual paupers so as to provide for a more suitable diet being supplied to children of this class under the age of 7 years. 42G WORKHOUSES. [chap. XXII. Task of Work. — Art. 11. The master of the workhouse or the superintendent of the casual ward shall set every casual pauper, not suffering under any temporary or permanent infirmity of body, to perform one of the tasks of work prescribed in the Schedule C, according to the class to which he may belong. Provided as follows : — 1 . A person shall not be recpiired to perform the whole or any part of such task of work if it shall appear that the same is not suited to his age, strength, or capacity. 2. The tasks of work may be varied from time to time by a resolution of the guardians, approved by the Local Government Board. 3. Any task of work which, at the date when this order takes effect, shall have been approved by the Local Government Board, in pursuance of the order hereby rescinded, shall remain in force until the guardians pass a resolution revoking it, and the master of the workhouse or the superintendent of the casual ward shall, until such resolution is passed, set every casual pauper within the terms of this article to perform the task of work so approved, or one of the tasks of work prescribed in the Schedule C, according to the class to which he may belong. General Regulations. — Art. 12. The following regulations shall be observed by every casual pauper, viz. : — 1 . He shall not use obscene or profane language, or act or write indecently or obscenely. 2. He shall not by word or deed insult or revile, or threaten to strike or assault, the master or matron, the superintendent of the casual ward, or any other officer or assistant officer in the employ of the guardians. 3. He shall not unlawfully strike or otherwise unlawfully assault any person. 4. He shall not smoke in the casual ward, or in any part of the premises connected therewith. Art. 13. In the event of any casual pauper being ill, the master of the workhouse or the superintendent of the casual ward shall, as soon as practicable, obtain the attendance of the medical officer, who shall give directions as to the treatment of such pauper, and if, in the opinion of the medical officer, the pauper cannot be properly treated in the casual ward, he shall CHAP. XXII.] WORKHOUSES. 427 be transferred to a sick ward of the workhouse, and be deemed to be an ordinary inmate thereof. Art. 14. Proper sleeping accommodation, consisting of separate cells, beds, or compartments, or other arrangements which have been approved by the Local Government Board, and suitable bed clothing, shall be provided in every casual ward ; and, except in the case of a mother and her infant child or children, more than one casual pauper shall not be allowed to sleep in the same cell, bed, or compartment. Suitable means of communica- tion between the inmates of the casual ward and the person having charge of the ward shall be provided. Art. 15. The master of the workhouse or the superintendent of the casual ward shall cause to be hung up and kept suspended in some conspicuous place in the casual ward and in the yard or room where the casual paupers are set to work, a printed copy of Articles 5, 6, 7, 9 and 12 of this order, as well as of the dietary table and the tasks of work in force for the time being, and of sect. 7 of the Pauper Inmates Discharge and Regulation Act, 1871 (omitting the provisoes to that section), of sect. 44 of the Divided Parishes and Poor Law Amendment Act, 1876, and of sect. 5 of the Casual Poor Act, 1882. CHAPTEE XXIII. PAROCHIAL SETTLEMENTS. PAGE Section I. Settlements in General 428 II. By Residence in Parish for Three Years 430 III. By Occupying and being Rated for a 10Z. Tenement 431 IV. By Possession of Estate and Residence 432 V. By Apprenticeship 435 VI. Derivative Settlements 441 1 . By Marriage 442 2. By Parentage 442 (a) Legitimate Children 442 (b) Illegitimate Children 443 VII. By Birth 444 Section I. — Settlements in General. In England a settlement may be obtained by birth or by a 3 years' residence in a parish, and a status of irremovability is arrived at by 1 year's residence in a union. These, though not the only means of obtaining a settlement are, together with certain forms of derivative settlement, the most important heads of settlement. In Scotland settlement is obtained by birth, or by 3 [61 & 62 Vict. c. 21] years' residence in a parish, and there are the usual derivative settlements. In Ireland there is no law of settlement or removal. A Select Committee of the House of Commons in 1879 recom- mended that in England the law of removal should be abolished, and that, for the purposes of poor relief, settlement should be disregarded, with the exception of relief granted at seaports, to persons landing in a destitute condition. An interesting and exhaustive article on the history of settle- ment and removal will be found in Vol. 4 of Law Quarterly Review, p. 40 (January, 1888). SECT. 1.] SETTLEMENTS IN GENERAL. 429 The statute law concerning settlement is in a very confused condition. There are upwards of 30 statutes on the subject, the later of which have often been passed without much regard to what has gone before. In addition to the statute law there is an enormous amount of case law. Settlement, Definition of. — A settlement is the right acquired in any one of the modes pointed out by the poor laws to become a recipient of the benefit of those laws, in that parish or place which provides for its own poor, where the right has been last acquired. Settlement, how acquired. — A settlement may be acquired either by the act of the party himself, or derivatively from another. The former of these modes comprehends residence for 3 years in a parish ; renting a tenement ; payment of parochial rates ; estate ; and apprenticeship. The other mode is by derivation, in right of another who has previously acquired it, and without any act of the party entitled to the derivative settlement. In this case, such a relation subsists between the two persons that the settlement of the one, by operation of law, devolves upon the other, who is regarded as dependent upon him. A derivative settlement may be acquired, either by marriage, which entitles the wife to the husband's settlement, or by parentage, which is the settlement legitimate children under the age of 16 acquire in right of one or other of their parents. The third and remaining kind of settlement vests in the indi- vidual in his own right, but without any act of his own, being acquired by birth. This is the settlement which may be resorted to in default of any other, if the individual be born in any parish in England or Wales. The importance of the law of settlement has been materially diminished by 28 & 29 Vict. c. 79, s. 8, which confers the status of irremovability by one year's residence in a parish. See post, p. 445. Decisions on disputed Questions of Settlement. — Questions as to the settlement, removability, or chargeability of paupers are occasionally submitted to the Local Government Board by guardians of unions under written agreement, in pursuance of sect. 12 of the 14 & 15 Vict. c. 105, which empowers the Board 430 PAROCHIAL SETTLEMENTS. [CHAP. XXIII. to decide the question by an order under seal, which " shall be in all courts and for all purposes final and conclusive between the parties submitting such question, as to the question therein determined." Boards of guardians are thus enabled to avoid the costs which would be incurred if the question were submitted to the ordinary tribunals for decision. Section II. — By Eesidence in Parish for Three Years. "Where any person has resided for three years in any parish, in such manner and under such circumstances in each of such years as would, in accordance with the several statutes in that behalf, render him irremovable, he is to be deemed to be settled therein until he shall acquire a settlement in some other parish by a like residence or otherwise : provided that an order of removal in respect of a settlement so acquired is not to be made upon the evidence of the person to be removed, without such corroboration as the justices or Court think sufficient. 39 & 40 Vict. c. 61, s. 34. The provisions of this section do not apply to persons removed before the Act. Brighton Union v. Strand Union, (1891) 2 Q. B. 156; 60 L. J. M. C. 105. Eesidence for 3 years partly while under the age of 16 may give a settlement under this section. High-worth and Swindon Union v. Westbury-on-Sevem Union, 14 App. Cas. 465 ; 59 L. J. M. C. 29 ; 61 L. T. 733 ; 38 W. E. 295 ; 53 J. P. 580. A person who has resided in a parish for 3 years, but whose residence therein has ended before the j)assing of the Act, does not acquire a settlement under this section ; R. v. Ipsivich Union, 2 Q. B. D. 269 ; 46 L. J. M. C. 207 ; but a person who has resided for the 3 years, and has continued to reside until the passing of the Act, but during the period subsequent to the 3 years was in receipt of relief from the parish, does acquire a settlement therein. R. v. Brampton Union, 3 Q. B. D. 479; 47 L. J. M. C. 114. "Parish" in sect. 34 does not include " union." Eesidence for 3 years partly in one parish and partly in another within the same union does not confer a settlement on a pauper under this section, which applies to persons residing for 3 years in any parish. Plomesgate Union v. West Ham Union, 6 Q. B. D. 576 ; 50 L. J. M. C. 51 ; Bristol Incorporation v. Barton Regis Union, 66 L. T. 190 ; 56 J. P. 311. SECT. II.] BY RESIDENCE IN PARISH FOR THREE YEARS. 431 A pauper who has not acquired a legal settlement for himself by actual residence in a parish for 3 years does not acquire it by constructive residence owing to his wife having taken up her own residence therein at the time when he was not resident in the parish, and without his knowledge, direction, consent, or ratifica- tion, although she continues to reside there during the requisite period, and the pauper is himself resident there with her at intervals during such period. West Ham Union v. Cardiff Union, (1895) 1 Q. B. 766 ; 64 L. J. M. C. 167 ; 72 L. T. 497. Three years in this section means three consecutive years. Dorchester Union v. Weymouth Union, 16 Q. B. D. 31 ; 55 L. J. M. C. 44. A temporary absence to fulfil part of the duties of a servant is not a break of residence. Manchester Overseers v. Ormskirk Guardians, 16 Q. B. D. 723; 54 L. J. 573. A sailor staying with his mother during intervals between his voyages does not reside in the parish so as to acquire a status of irre- movability. R. v. Stepney Union, 54 L. J. M. C. 12 ; 52 L. T. 959. An idiot, who was illegitimate, has been held to acquire a settlement by residing, after the age of 16, for more than 3 years continuously in a parish, although such residence was with her mother and her mother's husband as part of their family. Salford Union v. Manchester Overseers, 10 Q. B. D. 172; 52 L. J. M. C. 34. The "residence" of young children so as to make them irremovable under the poor law, so far as it is a question of intention, depends on the intention of the parent. Holbom Union v. Chertsey Union, 15 Q. B. D. 76; 54 L. J. M. C. 53. Section III. — By Occupying and being Rated for a 10/. Tenement. The 13 & 14 Car. 2, c. 14, made it lawful for two justices to remove within 40 days, upon complaint by churchwardens or overseers, all persons coming to settle in tenements under the yearly value of 10/. that had become [actually chargeable; 35 Geo. 3, c. 101, s. 1] to the parish. To acquire a settlement by the yearly hiring of a tenement or land, the tenement must consist of a separate and distinct dwelling-house or building, or land, or both ; must all be in the parish in which the party dwells or resides; must be bond fide rented at 10/. a year; must be rented for 1 whole year ; must be actually occupied during 432 PAROCHIAL SETTLEMENTS. [CHAP. XXIII. 1 whole year, and 1 year's rent must be actually paid. 6 Geo. 4, c. 57, s. 2; 1 Will. 4, c. 18. No settlement can be acquired since the 14th of August, 1834, by occupying a tenement, unless the person occupying the same has been assessed to the poor rate, and has paid the same, in respect of such tenement, for 1 year. 4 & 5 Will. 4, c. 76, s. 66. By Payment of Parochial Rates.— The 3 Will. &M. c. 11, s. 6, enacts that if any person, who comes to inhabit in any town or parish, is charged with and pays his share towards the public taxes or levies of the said town or parish, he shall be deemed to have a legal settlement there. The tenement, in respect of which the taxes, &c, are paid, must be of the yearly value of 107. 35 Geo. 3, c. 101, s. 4. In order to acquire a settlement by paying parochial rates, all the conditions must be observed and fulfilled which suffice to give a settlement by renting a tenement. 6 Geo. 4, c. 57. Settlement by payment of parochial rates is virtually repealed, since it is restricted to payment of rates in respect of a 10/. tenement. Section V. — By Possession of Estate and Residence. Foundation of this Settlement. — The principle upon which this settlement is founded is, that a party cannot be removed from a parish in which he has an estate in land, and in which he has resided for 40 days. This seems to extend to any interest in things immovable situate within a parish, since, as they cannot be taken by a man to his place of settlement, he must be allowed to remain where they are for the purpose of superintending them. 2 Nol. P. L. 58 ; R. v. Aythrop Roodlng, Burr. S. 0. 412. What Estate necessary. — With the exception of estates pur- chased, any estate in land, whatever be its value, and whether it be freehold or copyhold, and whether it be held in fee simple, fee tail, for life, or a term of years, will suffice to confer a settle- ment. A copyhold estate will confer a settlement, even before admittance. R. v. Th)-uscross, 1 A. & E. 126. If a person acquires such an estate by descent, devise, or marriage, whatever be the value, and resides on it, or in the same parish, for 40 days, though he part with it immediately SECT. IV.] BY POSSESSION OF ESTATE AND RESIDENCE. 433 afterwards, he gains a settlement, R. v. Great Farringdon, 6 T. E. 679 ; R. v. Sundrish, 2 Str. 983 ; R. v. Dor stone, 1 East, 29G. And this is so where the estate devised is held merely from year to year, and is under the yearly value of 10/. R. v. Stone, 6 T. E. 295. Licence to occupy. — A mere permission to occupy land, &c, is not sufficient to give a settlement by estate. It. v. St. Alary, Castlegate, 21 L. J. M. C. 106. Incomplete Purchase. — The principle deducible from the cases is, that the relation of trustee and cestui que trust, at least, must be created to give a settlement, where there has been an incom- plete purchase. R. v. Geddington, 2 B, & C. 129. Right or Franchise. — A mere right or franchise, falling short of an interest in land, is not sufficient to give a settlement by estate ; as, for instance, the right of freemen of a borough to turn cattle on the waste, which is only a personal privilege. R. v. Warhcorth, 1 M. & SeJ. 473. Where the Estate is purchased. — The 9 Geo. 1, c. 7, e. 5, pro- vides that no person shall be deemed, adjudged, or taken to gain a settlement for or by virtue of any purchase of any estate or interest, whereof the consideration of such purchase does not amount to 30/. bona fide paid, for any longer or further time than such person inhabits in such estate ; and he is then liable to be removed to his last place of settlement. To what Cases the Act applies. — In order that the statute may apply, the consideration for the purchase must consist wholly of money ; and therefore a conveyance in consideration of natural love and affection ; it. v. Marwood, Burr. S. C. 386 ; R. v. Ingle- ton, Burr. S. C. 560 ; or of that and money ; R. v. Uj'ton, 3 T. E. 251 ; R. v. Hatfield Broadoak, 3 B. & Ad. 566 ; see R. v. Lyd- linch, 4 B. & Ad. 150 ; is not within the Act. R. v. Piddlehinton, 3 B. & Ad. 460. The statute is satisfied if 30/. be bond fide paid for the purchase, whether that be the value of the estate or not. If 30/. be actually paid, though part of this consists of fines, fees, or expenses, or is paid, without fraud, by the parish officers, it is sufficient. St. Paul's, Walden v. Kemp ton, Fol. 238. Nor will an estate S. F F 434 PAROCHIAL SETTLEMENTS. [CHAP. XXIII. purchased for less than 30/., but afterwards raised to that value by improvements, confer a settlement. R. v. Dunchurch, Burr. S. C. 553 ; 1 W. Bla. 596 ; Wendron v. Stithian's, 4 E. & B. 147. A purchase for 39/., actually paid by the purchaser, but 30/. of which he had borrowed, is sufficient. R. v. Tetford, Burr. S. C. 57. But a purchase for 60/., the property being already mort- gaged for 50/., and 10/. only being paid, the mortgage remaining is insufficient. R. v. OIney, 1 M. & Sel. 387 ; R. v. Mattingley, 2 T. R. 12. But if the mortgage be paid off, though another of the same amount be immediately granted, it is otherwise. R. v. Chailey, 6 T. E. 755. A mortgage is a purchase within this Act. R. v. Stocldand, 2 Str. 1162 ; Burr. S. C. 169. A grant of land by a lord of the manor at a quit-rent is also within the Act; R. v. Hornehurch, 2 B. & Aid. 189; R. v. Martley, 5 East, 40; but not a licence at a quit-rent. R. v. Hagworthingham, 1 B. & C. 634. As to the grant of a lease in consideration of past improvements, see Wendron v. Stithian's, 24 L. J. M. C. 1 ; R. v. Belford, 32 L. J. M. C. 156. Effect of Fraud. — If a party, having parted with his interest in property, fraudulently obtains possession and resides on it, this will not give a settlement. R. v. St. JJichacPs, Bath, 2 Doug. 630 ; see R. v. Great Glenn, 5 B. & Ad. 188; R. v. Owersby-le-JIoor, 15 East, 356. Residence. — In order to acquire a settlement by estate, the party must reside 40 days in the parish in which his estate lies, and while his interest in it continues. A person, therefore, cannot be removed to a parish in which there is an estate which has descended on him, but where he has never resided. Wookey v. Hint on Bleivet, 1 Str. 476. But it is immaterial whether the residence be of a permanent character, provided it continues for 40 days. R. v. Houghton-le-Spring , 1 East, 247. And the days need not be consecutive. R. v. Knaresborough, 16 Q. B. 446. Must be within 10 miles. — No person shall retain any settle- ment gained by virtue of any possession of an estate or interest in any parish for any longer time than such person shall inhabit within 10 miles thereof; and in case any person shall cease to inhabit within such distance, and thereafter become chargeable, such pauper shall be liable to be removed to the parish wherein, SECT. IV.] BY POSSESSION OF ESTATE AND RESIDENCE. 435 previously to such inhabitancy, he may have been legally settled, or in case he may have, subsequently to such inhabitancy, gained a legal settlement in some other parish, then to such other parish. 4 & 5 Will. 4, c. 76, s. 68 ; R. v. Si. Giles-in-the- Fields, 2 Q. B. 446; R. v. Saffron Walden, 9 Q. B. 76; R. v. Whisscndine, 2 Q. B. 450. Section V. — By Apprenticeship. General Requisites. — The settlement by apprenticeship is founded upon the 3 Will. & M. c. 11, which enacts that " if any person shall be bound an apprentice by indenture, and inhabit in any town or parish, such binding and inhabitation shall be adjudged a good settlement." The Binding in ordinary Cases. — It was formerly held that the binding must be by deed, duly stamped and executed with the usual formalities. R. v. Ditchingham, 4 T. R. 769 ; but it has been recently decided that the binding may be by writing, properly stamped, and not necessarily by deed. Woodstock Union v. Shipston-on-Stour Union, 62 L. J. M. C. 43 ; 68 L. T. 449. In the case of voluntary bindings, that is, where the apprentice binds himself, both master and apprentice should be parties to the contract, and it is essential that it should be executed by the latter, and an execution by the boy's father is not equivalent. R. v. Cromford, 8 East, 25; R. v. Ripon, 9 East, 295. But execution by the master is only material to give the apprentice a remedy against him. R. v. St. Peter s on the Hill, 2 Bott, 367. The age of the person binding himself is immaterial, so as he be not under the age of 7 years. R. v. Saltern, 1 Bott, 613 ; R. v. Arundel, 5 M. & Sel. 257. Stamp Duty. — An instrument of apprenticeship requires a 2s. Gd. stamp. 54 & 55 Yict. c. 39. Exemptions from Duty. — The 54 & 55 Viet. c. 39, exempts from duty indentures for placing out poor children apprentices by or at the sole charge of a parish or township, or any public charity, or pursuant to any Act for the regulation of parish apprentices. f f2 436 PAROCHIAL SETTLEMENTS. [CHAP. XXIII. Parish Apprentices. — Binding. — The churchwardens and over- seers, or the greater part of them, by the assent of two justices, may bind any children, whose parents they adjudge not able to maintain them, to be apprentices, where they see convenient, till such man-child come to the age of [21 years ; 18 Geo. 3, c. 47], and such woman-child to the age of 21, or marriage. 43 Eliz. c. 2, s. 5. But by the 7 & 8 Vict. c. 101, s. 12, no poor child is to be bound apprentice by the overseers of any parish in a union or under guardians, but the guardians are to bind, and to execute the indentures, and no allowance, assent, or execution by justices is required. The guardians are to have all the powers for binding apprentices possessed by overseers, and the apprentices are to be registered under the 42 Geo. 3, c. 46. Parish Indentures. — The parish officers must be parties to and execute a parish indenture. The law having given to parish officers the power of putting out pauper children as apprentices, it is not necessary that the apprentice should be a party to the deed ; if the master and parish officers sign the indenture, it will be valid ; R. v. St. Nicholas, Nottingham, 2 T. E. 726 ; the consent of the apprentice is implied if he lives under the binding. R. v. Woohtanton, 1 Bott, 606. And it need not be even executed by the master. R. v. Fleet, Cald. 31. Indentures executed under their corporate seal, by directors, guardians, and other officers of incorporated hundreds, parishes, and other districts, authorized to bind poor persons ajrprentices, are to be deemed good and valid. 3 & 4 Will. 4, c. 63, s. 2. See R. v. Lutterworth, 3 B. & C. 487 ; and see 51 Geo. 3, c. 80, and 54 Geo. 3, c. 107. Allowance of Indenture. — The 56 Geo. 3, c. 139, s. 1, requires the same justices who made the order for binding to sign their allowance of the indenture of apprenticeship before it is executed by any of the other parties. 3 & 4 Will. 4, c. 63. Allowance where Parish Officers are not Parties.— No inden- ture of apprenticeship, by reason of which any expense whatever shall at any time be incurred by the public parochial funds, shall be valid and effectual unless approved by two justices under SECT. V.] BY APPRENTICESHIP. 437 their hands and seals, according to the provisions of the 43 Eliz. c. 5, and of this Act. 56 Geo. 3, c. 139, s. 11. This section applies to cases where some part of the expense is borne by the parish, but the parish officers do not join in the indenture ; and this allowance must be under seal, and not signed only, otherwise it will be void. JR. v. Stoke Damerel, 7 B. & C. 563 ; JR. v. St. PauVs, Exeter, 10 B. & C. 12. This section is confined to indentures of poor children. R. v. St. John, Bedivardine, 5 B. & Ad. 169. Register of Parish Apprentices. — The overseers (or guardians ; 7 & 8 Vict. c. 101, s. 12) are to enter in a book, to be provided by them, the name of every child bound apprentice by them, together with the other particulars in the schedule to the Act. 42 Geo. 3, c. 46, s. 1. Orders of Local Government Board. — The Local Government Board may prescribe the duties of masters to whom poor children are apprenticed, and the terms and conditions to be inserted in the indentures, and any master who wilfully refuses or neglects to perform them is liable to a penalty of 20/. 7 & 8 Vict. c. 101, s. 12. Regulations have accordingly been made by the Consolidated Order of 24th July, 1847, Arts. 52 — 74, which are, however, applicable only to bindings by guardians. Apprentices to the Sea Service. — No settlement can be acquired by being apprenticed to the sea service. 4 & 5 Will. 4, c. 76, s. 67. The statute under which boys may now be apprenticed to the sea service by overseers or guardians is the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 106, 107. Apprentices to the Sea-fishing Trade. — See circular letter of Local Government Board to boards of guardians, dated 2nd March, 1895. Boards of guardians in apprenticing boys to the sea-fishing service shall not cause or permit such ajiprenticeship to be made except in conformity with Part IV. of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 393 (3). Apprentices to Chimney-sweepers. — The 3 & 4 Vict. c. 85, prohibits the apprenticing any child under 16 to a chimney- sweeper, and all such indentures are to be void, and makes it 438 PAROCHIAL SETTLEMENTS. [CHAP. XXIII. unlawful to compel or allow any one under the age of 21 to climb chimneys for the purpose of sweeping, &c. 27 & 28 Viet, c. 37, makes it unlawful for a chimney-sweeper to employ a child under the age of 10 years to do any work about the trade of such chimney-sweeper, except in his place of business, sect. 1 ; and also to take with him, when entering a house to sweep a chimney, any person under 1 6, sect. 2. Chimney-sweepers are now required to take out an annual certificate, issued by the chief officer of the police district. 38 & 39 Vict. c. 70. Assignment of Parish Apprentices. — A parish apprentice can only be assigned by the consent of two justices, in the manner prescribed by 32 Geo. 3, c. 57, s. 7, which is directed to be by indorsement upon the indenture ; and the new master is also by indorsement on the counterpart, or by writing under his hand, to declare his acceptance of the apprentice, and acknowledge that he becomes bound by all the covenants ; and the apprentice is thereupon to be deemed to be his apprentice to all intents and purposes, and the new master becomes subject to the authority of justices. Covenant for Maintenance. — If the original master of a parish apprentice (with whom, by sect. 9, not more than 51. has been given as premium) shall, during the apprenticeship, or if his executors shall, during 3 months after his death, refuse or neglect to maintain and provide for any such apprentice, accord- ing to the terms of the covenant, two justices, on the complaint of the apprentice or the churchwardens, may, by warrant under their hands and seals, levy, by distress and sale of the effects or assets of such master, such sum as is necessary for the clothing and maintenance of the apprentice, and for reimbursing the churchwardens, &c, for any sums expended by them for that purpose. 32 Geo. 3, c. 57, s. 6. Inhabitancy by Apprentice. — There must be an inhabiting in some parish for 40 days under the indenture. See R. v. Flockton, 2 Q. B. 535. The inhabitancy is where the apprentice sleeps, and the settlement is gained there, though the service be in another parish. St. John v. St. James, 1 Str. 594. The 40 days need not be consecutive ; R. v. Gainsborough, Burr. S. G. 586 ; nor within one year. R. v. Aid stone, 2 B. & Ad. 207. But where the apprentice resides alternately in two parishes, the SECT. V.] BY APPRENTICESHIP. 439 settlement is gained where he lodges for the last 40 days of the apprenticeship; R. v. Brighthelmston, 5 T. R. 188; even though he does no service during that time ; R. v. Charles, Burr. S. C. 707; R. v. Barton-upon-Irwell, 32 L. J. M. C. 102; unless he lodge there merely on account of illness ; R. v. Barmby-in-the- Marsh, 7 East, 381 ; for the lodging must he for the purposes of the apprenticeship. R. v. Gu-inear, 1 A. & E. 152. If he per- form services generally, for and at the command of his master, in the parish where he sleeps on account of illness, though he do not actually work at his trade. R. v. Somerby, 9 A. & E. 310. And the fact of the master contributing to his maintenance during his absence may be sufficient to connect the residence with the indentures. R. v. Banbury, 3 B. & Ad. 706 ; R. v. Linkinhome, 3 B. & Ad. 413. "Where an apprentice, not being wanted, was allowed by his master to go to school, the residence there was held not to be as apprentice. R. v. St. Mary Bredin, Canterbury, 2 B. & Aid. 382. Residence and Service must concur. — The residence must be for 40 days while the apprentice is serving under the indentures. R. v. //. W. R. Yorkshire, 2 Dowl. N. S. 707. When the apprentice resides with his master, no question can arise as to the residence being in furtherance of the indentures. R. v. Burslem, 11 A. & E. 52 ; R. v. Foulness, 6 M. & Sel. 351. If the apprentice be allowed to sleep in another parish, as a matter of indulgence, he gains no settlement there in conse- quence. R. v. Ilkeston, 4 B. & 0. 64. Where the master and apprentice were both in the local militia at B. during the last 40 days, the apprentice was holden to have gained a settlement in B. R. v. Chelmsford, 3 B. & Aid. 411. But where the apprentice is absent from the master, the service must be actually or constructively going on to enable the apprentice to gain a settlement during that time. R. v. Brotton, 4 B. & Aid. 84. Service with a third Party. — Service during the term with a third party is sufficient, if it be by his master's directions, and his master receive his earnings ; R. v. St. George's, Hanover Square, Burr. S. C. 12 ; or if his master consent to his serving a particular person, and he serve him accordingly, although his master is not to receive his earnings. R. v. Barlcstone, 5 B. & 440 PAROCHIAL SETTLEMENTS. [cHAP. XXIII. Aid. The service must be under the indentures. R. v. Eccles- field, 6M. & Sel. 174. But serving another without the master's cod sent will give no settlement. R. v. St. Martin's, Exeter, 2 A. & E. 655. And it is the same where the apprentice serves another under a general licence from his master to serve whom he chooses ; R. v. Holy Trinity, 3 T. R. 605 ; there being no express assent of the master to the particular service ; or where he serves another with the knowledge of the master, but without his actual consent. R. v. Ideford, Burr. S. C. 821. Where the consent of the first master is subsequent to the service, it will not be considered a service under the indenture. R. v. Whitchurch, 1 B. & C 574. Service after Death of Master. — Although ordinarily the con- tract of apprenticeship is determined by the death of the master ; R. v. Eakring, 2 Bott, 541 ; yet, if the apprentice chooses to serve the representatives of the master, he may do so, and such service will be effectual under the indentures. R. v. Stockland, Cald. 60. In the case of a parish apprentice with whom no premium, or a premium not exceeding ol., has been paid, the covenant for maintenance is not in force for more than 3 months after the death of the master. 32 Geo. 3, c. 57, s. 1 ; 5 Yict. c. 7. On the death of the master the justices may (upon appli- cation being made within 3 months afterwards by the widow, husband, son, daughter, brother, sister, executor or administrator), by indorsement on indenture, order apprentice to serve remainder of his term with any one of such persons making the application. 32 Geo. 3, c. 57, s. 2 ; see Cooper v. Simmons, 31 L. J. M. C. 138. Discharging Indentures. — The Queen's Bench Division has no authority to discharge an apprentice from his indentures. Ex parte Gill, 7 East, 376. But the indentures maybe discharged, — 1st, by application of either party to two justices, or to the quarter sessions; — 2nd, by death or bankruptcy of the master; — 3rd, by the apprentice attaining his majority ;— 4th, by consent. Two justices may discharge any parish apprentice with whom a premium not exceeding 5/. [or no premium ; 5 Yict. sess. 2, c. 7] has been paid, upon the master becoming unable to maintain his apprentice. 32 Geo. 3, c. 57, s. 8. Discharge by Bankruptcy. — When a petition for adjudication is presented and any person is apprenticed to the bankrupt, the SECT. V.] BY APPRENTICESHIP. 441 order of adjudication (if either the bankrupt or apprentice has given written notice to the trustee to that effect) is a complete discharge of the indenture of apprenticeship. If any money has been paid by or on behalf of apprentice to the bankrupt, the trustee may make payments to such aj)prentice. If it appears expedient to the trustee he may, instead of acting as above, on the application of any such apprentice, or any person acting on his behalf, transfer the indenture of apprenticeship to some other person. 46 & 47 Vict. c. 52, s. 41. Discharge by Consent. — An apprentice may be discharged by the indenture being given up or cancelled by the consent of both parties ; but if he is an infant, proof must be given that the dissolution of the contract is for his benefit. R. v. Great Wigston, 3 B. & C. 484 ; R. v. Mountsorrel, 3 M. & Sel. 497 ; R. v. Wed- dington, Burr. S. C. 766. In the case of parish apprentices under age, the parish officers, as well as the other parties, must concur ; R. v. Lang ham, Cald. 126 ; R. v. Austrey, Burr. S. C. 441 ; but the master, and parish apprentice of full age, may cancel the indenture by agreement ; R. v. Harberton, 1 T. E. 139. Disputes between Masters and Apprentices. — As to the powers of a court of summary jurisdiction in disputes between apprentices and masters, see 38 & 39 Vict. c. 90, and 43 & 44 Vict. c. 16, s. 1 1. Section VI. — Derivative Settlements. 1. By Marriage. 2. By Parentage. (a) Legitimate Children. (b) Lllegitimate Children. Partial Abolition of Derivative Settlements. — No person shall be deemed to have derived a settlement from any other person, whether by parentage, estate, or otherwise, except in the case of a wife from her husband, and in the case of a child under the ago of 1 6, which child shall take the settlement of its father, or of its widowed mother, as the case may be, up to that age, and shall retain the settlement so taken until it shall acquire another. 39 & 40 Vict. c. 61, s. 35. 442 PAROCHIAL SETTLEMENT!?. [CHAP. XXIII. This section is retrospective for the purpose of determining the settlement of children born after 187G, if not for all purposes, except adjudication of settlement prior to the Act. Bath Union v. Berwick-upon-Tweed Union, (1892) 1 Q. B. 731 ; 61 L. J. M. C. 137 ; 66 L. T. 258. 1. By Marriage. If a woman marry a man who has a known settlement, she instanter and ipso facto by the marriage acquires her husband's settlement, and continues to take any new settlement he may obtain until his death ; St. Giles, Beading v. Eversley, Black- water, 1 Str. 580; 2 Ld. Eaym. 1332; whether he be a native or a foreigner. B. v. Eastbourne, 4 East, 103. But she cannot gain a new settlement by any act of her own during the marriage ; B. v. Aythrop Booding, Burr. S. C. 412; even by residence on her own estate. Berkhampsteadv. St. Mary, Northchnrch, 2 Bott, 25. If she is deserted by her husband she may gain a settle- ment in her own right by residence after her desertion in the parish in which her husband is settled. Medway Union v. Bed- minster Union, 14 App. Cas. 4G5; 59 L. J. M. 0. 29; CI L. T. 733. A wife takes the settlement (if any) of her husband, although the husband's settlement is derivative. West Ham Union v. St. Giles-in-the-Fields, 25 Q. B. D. 272 ; 59 L. J. M. C. 144 ; 63 L. T. 496. If the husband have no settlement, the wife does not by her marriage lose or relinquish the settlement she had previously to her marriage. B. v. Woodsford, Cald. 236. If the husband's settlement is unknown, his wife and children may be removed to the place of her settlement before marriage, as if the husband had no settlement. B. v. Byton, Cald. 39. A widow retains the settlement (if any) which she derives as a wife from her husband until she acquires a new settlement in her own right, and does not on the death of her husband revert to her settlement previous to marriage. Bcigate Union v. Croy- don Union, 14 App. Cas. 465 ; 59 L. J. M. C. 29; 61 L. T. 733; 38 W. B. 295; 53 J. P. 580. 2. By Barcntage. (a) Legitimate Children. See settlement by Birth, post, p. 444. If any child has not acquired a settlement for itself, or being a SECT. VI.] DERIVATIVE SETTLEMENTS. 443 female has not derived a settlement from her husband, and it cannot be shown what settlement such child or female derived from the parent, without inquiring into the derivative settlement of such parent, such child or female is to be deemed to be settled in the parish in which he or she was born. 39 & 40 Vict. c. 61, s. 35. See Woodstock Union v. St. Pancras, 4 Q. B. D. 1 ; 43 L. J. M. C. 1 ; 39 L. T. N. S. 256. The child gains no settlement by the second marriage of its widowed mother. Keynsham Union v. Bedminster Union, 3 Q. B. D. 344 ; 47 L. J. M. C. 73 ; 38 L. T. N. S. 507. The decision of the House of Lords in Guardians of Reigate Union v. Guardians of Croydon Union {ante, p. 442) has not altered the then settled law that children of a first husband do not take the settlement acquired by their mother on her second marriage. Llanelly Union v. Neath Union, (1893) 2 Q. B. 38. "Whether a wife and children, who have no other settlement than that of the husband and parent, as the case may be, have become irremovable from any place or parish under sect. 34 of the Divided Parishes and Poor Law Amendment Act, 1876, depends in all cases upon the removability of the husband or parent. The test is not to be confined to those cases in which a separation would otherwise be effected between husband and wife or parent and child. West Ham Union v. St. Matthew's, Bethnal Green, (1894) A. C. 230; 63 L. J. M. C. 97; 70 L. T. 818; 42 W. E. 473. (b) Illegitimate Children. If the mother of an illegitimate child has no settlement, such child takes its birth settlement. An illegitimate child retains the settlement of its mother until such child acquires another settlement. 39 & 40 Vict. c. 61, s. 35. This enactment places illegitimate children almost on the same footing with legitimate children. Reigate Union v. Croydon Union, {ante, p. 442). The enactment does not apply retro- spectively to an illegitimate child who was over 16 years of age when the Act came into force. Tentcrden Union v. St. Mary, Islington, 47 L. J. M. C. 81 ; 38 L. T. 485. On inquiry as to the place of settlement of an illegitimate pauper with no settlement of its own, whose mother also has acquired no settlement of her own, it is not necessary in order that the pauper shall bo deomod 444 PAROCHIAL SETTLEMENTS. [cHAP. XXIII. to be settled in the parish in which he was horn, within par. 3 of s. 35 of the Divided Parishes Act, 1876, to ascertain what the mother's derivative settlement is ; it is enough to show that the mother was the legitimate offspring of an English father. Plymouth Union v. Axminster Union, (1898) A. C. 58G ; 67 L. J. Q. B. 871 ; 79 L. T. 4. Section VII. — By Birth. Of Legitimate Children. — The place of birth is primd facie the place of settlement of legitimate children. R. v. Heaton Norris, 6 T. ~R. 653. But this is so only until another settle- ment, acquired by the pauper in his own right, is shown to exist, or in default of any such acquired settlement being made out, until the father's or (if he have none) the mother's place of settlement is ascertained ; since the place of birth is that of settlement only until a better be found. R. v. St. Mary's, Beverley, 1 B. & Ad. 201 ; R. v. Newchurch, 32 L. J. M. C. 19. Since the passing of s. 35 of 39 & 40 Vict. c. 61 [ante, p. 441), it is not sufficient to prove that the father or mother had a settle- ment in order to displace the birth settlement. It must be proved that the father or the widowed mother had a settlement at a time when the pauper was under 1 6 years of age. A child no longer takes a settlement acquired by a parent after the child is over that age. The settlement of the parent acquired while the pauper is under 16 must be an original settlement, otherwise the place of birth of the pauper is his place of settlement. Reigate Union v. Croydon Union {ante, p. 442). As to loss of birth settlement by division of parish into sepa- rate parishes. Dorking Union v. St. Saviour s Union, (1898) 1 Q. B. 594 ; 67 L. J. Q. B. 408 ; 78 L. T. 29 ; 46 TV. R. 309. CHAPTEE XXIV. REMOVAL OF PAUPERS. PAGE Section I. Removability in General 445 II. How Removed 450 III. Removal of Scotch, Sj'c, Paupers 452 IV. Orders of Removal 453 1. Form and Requisites of Order 453 2. Examination of Pauper 455 3. Notice of Chargeability and Grounds of Removal 456 4. Abandoning and Superseding Order 457 5. Suspension of Orders 457 6. Appeal against Orders 459 Section I. — Eejiovability in General. Statutes authorizing Removal. — The effect of recent statute?, by which the area of the parish is, for the purposes of charge- ability, enlarged to that of a uniou, and of those by which the status of irremovability is conferred by one year's residence in the same union, is to reduce the importance of this branch of parish law. The authority of magistrates to remove paupers to the places where they are settled exists only by express provision of the Legislature. This power is founded on the 13 & 14 Car. 2, c. 12. Chargeability. — It is recpuisite, before a person can be removed from a parish, that he should be at the time actually chargeable thereto. Application for and receipt of relief from the parish constitute actual chargeability, although the pauper has property enougli to maintain him, if sold. R. v. Ampthill, 2 B. & C. 847; R. v. St. Mary, Bungay, 12 Q. B. 38. 4 tG REMOVAL OF PAUPERS. [cHAF. XXIV. Casual Poor. — Persons who are detained in a parish by sick- ness, accident, or casualty, and thus become chargeable there, are not removable, as they do not come there with any intention of settling as inhabitants. Thus, if a labourer, passing through a parish to which he does not belong, accidentally breaks his leg, and is relieved during his illness in that or in a neighbour- ing parish, he cannot be removed therefrom, but must be relieved as casual poor. R. v. St. James, Bury St. Edmunds, 10 East, 25 ; R. v. St. Lawrence, Ludlow, 4 B. & Aid. 660. Where, however, the pauper is resident in the parish at the time when he meets with the accident there, he is removable, and cannot be treated as casual poor ; R. v. Oldland, 4 A. & E. 929 ; and if he chooses to remain there after he gets into such a state that he might quit the parish, he must be taken to have come to settle there, and is removable. R. v. Cuckfield, 5 E. & B. 523. Pregnancy. — An unmarried woman with child cannot be removed unless she become actually chargeable, and pregnancy is not to be taken as presumptive evidence of chargeability. 4 & 5 Will. 4, c. 76, s. 69. Felons and Vagrants. — Persons convicted of felony, or who are by law deemed rogues, vagabonds, or idle or disorderly persons, or who appear to two justices of the division where they reside, upon the oath of one or more credible witnesses, to be persons of evil fame, or reputed thieves, and not able to give a satisfactory account of themselves or their way of living, are to be considered as actually chargeable. 35 Geo. 3, c. 101, s. 5. And by 5 Geo. 4, c. 83, s. 20, every person convicted under that Act as an idle and disorderly person, or as a rogue and vagabond, is to be deemed actually chargeable to the place in which he resides, and removable therefrom. See 12 & 13 Vict. c. 103, s. 3. Sickness. — No warrant is to be granted for the removal of any person becoming chargeable in respect of relief made necessary by sickness or accident, unless the justices granting the warrant state therein that they are satisfied that it will produce permanent dis- ability. 9 & 10 Vict. c. 66, s. 4. This section applies only to persons actually sick, and not to the case of the husband lying sick in a hospital in another parish, whose wife and children during his absence become chargeable to the parish in which they are residing. R. v. St. George, 31 L. J. M. C. 85. Pregnancy is SECT. 1.] REMOVABILITY IN GENERAL. 447 not necessarily " sickness" within this section ; R. v. Huddersjield, 26 L. J. M. C. 169; but incurable blindness is. R. v. Bucknell, 23 L. J. M. C. 129. "Whether lunacy is seems to be question- able. R. v. Manchester, 26 L. J. M. C. 1, and 24 & 25 Vict. c. 55, s. 6. If the justices who make an order state that they are satisfied that the sickness is such as would produce permanent disability, the quarter sessions cannot inquire into the fact whether it will do so or not. R. v. St. Mary, Whittlesey, 32 L. J. M. C. 78. Who are not removable. — There are certain classes of persons who are by statute rendered irremovable from the parishes in which they are inhabiting, and to which they have become charge- able. The object of the 13 & 14 Car. 2, c. 12, being to authorise the removal of paupers from parishes in which they had not gained a settlement to those in which they are settled, it follows that no person can be removed from a parish where he is settled. Wife. — A wife becoming chargeable in the permanent absence of her husband, as where he has deserted her, may be removed to his settlement, or if he does not appear to have any, to her maiden settlement. R.v. Ilarberton, 13 East, 311; R. v. Cottiny- ham, 7 B. & C. 615 ; R. v. Watford, 9 Q. B. 626. But not if it appears that her husband has a settlement, though the exact place of such settlement cannot be ascertained. R. v. St. Mary, Beverley, 1 B. & Ad. 201 ; R. v. St. Margaret, Westminster, 7 Q. B. 569. But a wife, residing with her husband, cannot be removed from him, whether he have a settlement or not, except with the consent of both. R. v. Carleton, Burr. S. C. 813; R. v. Eltham, 5 East, 113; R. v. Leeds, 5 Q. B. 916. And this is so even where the husband is confined in gaol in the same parish as that in which his wife resides. R. v. Stoyumber, 9 A. &. E. 622. Whenever any person has a wife or children having no other settlement than his own, such wife and children are to be removable whenever he would be removable, and not removable when he would not be removable. 9 & 10 Vict. c. 66, s. 1 ; 11 & 12 Vict. c. 111. This relates only to the irremovability arising from one year's residence under that statute (see post, p. 419); R. v. East Stonehouse, 3 E. & B. 596; Much Iloole v. Preston, 17 Q. B. 548; R. v. Cudham, 28 L. J. M. C. 105; R. v. Elvet, 29 L. J. M. C. 17 ; R. v. St. Glare's, L. E. 9 Q. B. 38. 448 REMOVAL OF PAUPERS. [CHAP. XXIV. Where a wife is deserted by her husband, and after his desertion resides for one year ; 29 & 30 Vict. c. 1 1 3, s. 17 ; in such a manner as would, if she were a widow, render her irremovable, she is not liable to be removed from the parish wherein she is resident, unless her husband return to cohabit with her. 24 & 25 Vict. c. 55, s. 3. As to what amounts to desertion, see R. v. St. Mary, Islington, L. R. 5 Q. B. 445; and as to desertion of adulterous wife, R. v. Maidstone Union, 5 Q. B. D. 31 ; 49 L. J. M. C. 25 ; 41 L. T. 586. Widow. — No woman residing in any parish with her husband at the time of his death is to be removed from such parish for 12 calendar months next after his death, if she so long continue a widow. 9 & 10 Vict. c. 66, s. 2 ; R. v. East Stone- house, 24 L. J. M. C. 121 ; R. v. St. Marylebone, 20 L. J. M. C. 174. Children. — Children under the age of nurture, i.e., 7 years, cannot be removed from their mother, even though they have not the same settlement as she has ; Wangford v. Brandon, Carth. 449 ; Anon., 2 Salt. 482 ; R. v. Saxmundham, 2 Bott, 18 ; but the parish where they are resident must relieve them, and may procure an order upon the parish where the settlement of the children is to reimburse themselves. R. v. Hemlington, Cald. 6 ; Shermanbury v. Bolney, Carth. 279 ; see R. v. J J. Middlesex, 4 B. & Aid. 298. Neither can the mother of a child under 7 years of age consent to the child being removed without her; since the object of the rule against separation is that the child should, during that tender age, have the benefit of its mother's nurture. R. v. Birmingham, 5 Q. B. 210. No child under the age of 16, whether legitimate or illegiti- mate, residing in any parish with its father or mother, stepfather or stepmother, or reputed father, is to be removed from such parish in any case where such father, &c, may not be lawfully removed from such parish. 9 & 10 Vict. c. 66, s. 3; R. v. Combs, 25 L. J. M. C. 59. Where a child under 16, residing with its surviving parent, is left an orphan, and such parent at the time of death has acquired an exemption from removal by reason of a continuous residence, such orphan is, if not otherwise irremovable, exempt from removal in like manner, and to the same extent as if it had SECT. I.J REMOVABILITY IN GENERAL. 449 acquired for itself an exemption from removal by residence. 24 & 25 Yict. c. 55, s. 2. Irremovability by 1 year's Residence. — No person is to be removed, nor is any warrant to be granted for the removal of any person, from any parish [or union; 24 & 25 Vict. c. 55, s. 1] in which he has resided for 1 year next before the application for the warrant ; but no person exempted from liability is thereby to acquire any settlement in such parish. 9 & 10 Vict. c. 66, ss. 1,5; 28 & 29 Vict. c. 79, s. 8; and see 39 & 40 Vict. c. 61, s. 34, ante, p. 430. Residence must be continuous. — There must have been a resi- dence in the parish from which the party is sought to be removed for 1 year continuously, up to the time of the application for the warrant, in order to give the status of irremovability. R. v. Harrow-on-the-Hill, 12 Q. B. 103. And the period may be made up of residence partly as widow and partly as wife. R. v. Glossop, 12 Q. B. 117. A voluntary absence with an intention to return is no break. R. v. Tacolnestone, 12 Q. B. 157 ; R. v. Bright helms ton, 24 L. J. M. C. 41 ; but an absence ever so short, without such intention, is a break. Newark v. Glandford Brigg, 2 Q. B. D. 522. Sleep- ing out by a homeless pauper in a refuge for houseless poor is no break. R. v. St. Leonard, Shoreditch, L. R. 1 Q. B. 21. A conditional intention to return to the house of the pauper's mother is not a sufficient intention to return. R. v. Glossop Union. See, further, as to "intention to return." R. v. Abingdon, L. E. 5 Q. B. 406 ; R. v. Norwood, L. E. 2 Q. B. 457 ; Wellington v. Whitchurch, 32 L. J. M. C. 189, and R. v. Staphton, 22 L. J. M. C. 102. Period, how computed. — The 1 year's residence must be next before the application for the warrant. But the time during which such person is a prisoner in a prison, or is serving her Majesty as a soldier, marine or sailor, or resides as an in-pen- sioner in Greenwich or Chelsea hospitals, or is confined in a lunatic asylum, or house licensed or hospital registered for the reception of lunatics, or is a patient in a hospital, or during which he receives relief from any parish, or is wholly or in part main- tained by any rate or subscription raised in a parish in which ho 450 REMOVAL OF PAUPERS. [CHAP. XXIV. does not reside, not being a bond fide charitable gift, is for all purposes to be excluded from the computation of the time before mentioned. 9 & 10 Yict. c. 66, s. 1 ; see R. v. Manchester Over- seers, 8 Q. B. D. 50 ; 51 L. J. M. C. 6. A pauper maintained in a home supported by subscriptions for 3 years has been held to have attained a settlement by irremovability. Fulham Union v. Thanet Union, 7 Q. B. D. 539; 50 L. J. M. C. 10. Where a person becomes chargeable in any parish comprised in a union not being the parish of his settlement, the period of time during which he has resided in the parish of the settlement, if in the same union, is not to be excluded in the computation of the time of residence required to render him exempt from removal. 27 & 28 Yict. c. 105. A wife's absence with her husband on service is not excepted. Easton v. Marlborough, L. E. 2 Q. B. 128. Belief to a child above the age of 16, although unemancipated and residing with the parent, does not affect the parent's status of irremovability by residence. R. v. St. Mary, Islington, 31 L. J. M. C. 233. Where a woman has been removed to a lunatic asylum at the instance of her husband, and is maintained there at the cost of the parish, such maintenance is parish relief to the husband. R. v. St. George, Bloomsbury, 32 L. J. AT. C. 217. Section II. — How Behoved. To what Place the Removal may be.— The removal can only be to a parish or place where the pauper is last legally settled, and which maintains its own poor. R. v. Swalcliffe, Cald. 248. Removal by Consent without Order. — Where the guardians of any union or parish are satisfied that any pauper is settled within and removable to their union or parish, and consent under seal to receive such pauper without an order of removal, the guardians seeking to remove such pauper may do so without such order. 28 & 29 Vict. c. 79, s. 6. By whom to be removed. — The churchwardens, overseers, &c, may remove the pauper, or may employ any proper persons to remove and deliver him. 54 Geo. 3, c. 170, s. 10. Guardians of unions may obtain orders of removal in respect of paupers settled elsewhere. 28 & 29 Yict. c. 79, s. 2. If the SECT. II.] HOW REMOVED. 451 guardians are satisfied that any pauper is settled within and removable to their union, they may consent under their common seal to receive such pauper without any order of removal. Sect. 6. Guardians can call for parish hooks and papers from the overseers. Sect. 5. At what time Removal may be. — No pauper can be removed under an order of removal until 21 days after a notice of chargeability, and a copy or counterpart of the order of removal, and a statement of the grounds of removal have been sent to the overseers of the parish to which the order is directed, unless such overseers, by writing under their hands, agree to submit to the order before the expiration of that period. 4 & 5 Will. 4, c. 76, s. 79; 11 & 12 Yict. e. 31. As to removals under suspended orders, see post, p. 458. Delivery of the Pauper, — The delivery of a pauper, under a warrant of removal directed to the overseers of a parish, at the workhouse of such parish, or of any union to which such parish belongs, to any officer of such workhouse, is to be deemed a delivery to the overseers. 9 & 10 Vict. c. 66, s. 7. Refusal to receive the Pauper. — The 13 & 14 Car. 2, c. 12, s. 3, makes it an indictable offence if churchwardens and over- seers refuse to receive and provide for persons removed to their parishes. And by the 3 Will. & M. c. 11, s. 10, the church- wardens or overseers of the parish to which a pauper is ordered to be removed are required to receive him under a penalty of 51. for each refusal, to be levied by distress and sale, with a power of imprisonment for 40 days, if no sufficient distress. This does not supersede the power of indicting under the former statute. Ex parte Doivnton, 27 L. J. M. 0. 281. Returning after Removal. — Every person returning and be- coming chargeable to a parish, &c, from which he has been lawfully removed, unless he produces a certificate acknowledging him to be settled in some other parish, is to bo deemed an idle and disorderly person, and may be punished accordingly. 5 Geo. 4, c. 83, s. 3. Any pauper removed under an order obtained by guardians of G G 2 452 REMOVAL OF PAUPERS. [CHAP. XXIV. a union returning to and becoming chargeable to such union again within a year is to be deemed an idle and disorderly person, &c. 28 & 29 Vict. c. 79, s. 7. Section III. — Kemoval of Scotch, &c, Paupers. How removed. — If any person born in Scotland or Ireland, or the Isle of Man, Scilly, Jersey or Guernsey, and not settled in England, becomes chargeable to any parish in England, by reason of relief given to him or herself, or to his wife, or any legitimate or bastard child, such person, his wife, and any child so chargeable are liable to be removed respectively to Scotland, Ireland, &c. 8 & 9 Vict. c. 117, s. 2. Persons born in England, Ireland, or the Isle of Man, and not settled in Scotland, who become chargeable to any parish in Scotland by reason of relief, are removable to England; but where an English born or Irish born poor person has resided continuously in Scotland for not less than 5 years (of which not less than 1 year shall have been continuously in the parish in which he applies for parochial relief), and shall have maintained himself without having recourse to common begging, either by himself or his family, and without having received or applied for parochial relief ; and no person who shall have acquired a settlement by residence in any such parish, shall be held to have retained such settlement if during any subsequent period of 4 years he shall not have resided in such parish continuously for at least 1 year and a day. 61 & 62 Vict. c. 21. Guardians, &c, may take persons removable before two jus- tices without a summons, and have the powers of constables. 10 & 11 Vict. c. 33. The warrant of removal is to be signed in petty sessions by two justices, or by a police magistrate, and is to contain the name and age of person to be removed, and other particulars. 24 & 25 Vict. c. 76, s. 2. A copy of the warrant is to be sent to the place to which removal is to be made. Sect. 3. Women and children are not to be removed as deck passengers in the winter. Sect. 6. Persons executing such warrants of removal are to detain the paupers mentioned therein in custody until they arrive at the place to which they are ordered to be removed, and are for that purpose to have, in every county and place through which they pass, the powers of a constable, SECT. III.] REMOVAL OF SCOTCH, &C. PAUPERS. 453 although, they may not otherwise be empowered to act as a con- stable for such county or place. 8 & 9 Vict. c. 117, s. 3. This section is extended to Ireland by 26 & 27 Vict. c. 89, s. 2. Relieving officers, &c, are to receive persons named in warrant under penalty of 10/. 25 & 26 Vict. c. 113, s. 5. Parochial boards and guardians may forward the pauper to his destination and recover the costs. Sect. 6. The forms of warrant for removal from England to Ireland are set out in the schedule to 26 & 27 Vict. c. 89. As to appeal, see sect. 7. To what Persons the Statute extends. — Unless the father is in a situation to be removed, and the children are at the time part of his family, the Act does not apply to the children. R. v. All Saints, Derby, 19 L. J. M. C. 14. Section IV. — Orders of Removal. 1. Form and Requisites of the Order. By whom made. — An order for the removal of a pauper must be made by two justices acting in and for the county in which the parish to which the pauper is chargeable is situated. 35 Geo. 3, c. 101, ss. 1—5 ; R. v. Dobbyn, 2 Salk. 474. The justices who make the order must not be interested parties. R. v. Great Chart, Burr. S. C. 194. But the 16 Geo. 2, c. 18, renders justices who are rated inhabitants of any parish affected by the order competent to act. The Complaint, how made. — Guardians of unions may obtain orders of removal in respect of paupers settled elsewhere. 28 & 29 Vict. c. 79, s. 2. Also guardians of single parishes. 39 & 40 Vict. c. 61, s. 25. The Local Government Board issue orders under this section authorizing boards of guardians, in the placo of the overseers, to apply to justices for orders of removal of paupers to their places of settlement, and to defend appeals against such orders. The practice is to make complaint before one justice, and he grants his warrant to bring the pauper before two justices. The complaint need not be upon oath ; R. v. Standish-cum- Langtree, Burr. S. C. 150 ; nor in writing. R. v. Bedingham, 5 Q. B. 053. 454 REMOVAL OF PAUPERS. [CHAP. XXIV. What should be stated in the Complaint. — The complaint as set out in the order of removal should state that the pauper has come to inhabit in the complaining parish, and is at that time actually chargeable thereto, and that he is settled elsewhere. R. v. Angell, Ca. temp. Hardw. 124; R. v. Ufculm, Burr. S. C. 138; R. v. //. Buckinghamshire, 3 Q. B. 800; R. v. Rotherham, Ibid. 776. Description of the Paupers. — The names of all the persons to be removed should be inserted in the order, or if they are un- known it should be so stated. Southell v. Needwell, Set. & Bern. 35. An order to remove " a man and his family," or, " and his children," is bad. Johnson's Case, 2 Salk. 485 ; Beaston v. Scisson, 1 Stra. 114. The Adjudication. — The order should adjudge the truth of the complaint and the place of the pauper's last legal settlement with certainty, and positively. The form " we do adjudge " is the most proper. R. v. Maulden, 8 B. & C. 78. Actual chargeability must be adjudged, either expressly or by reference to the complaint. R. v. Minchinhampton, 2 Sess. Ca. 92 ; R. v. Netherton, Burr. S. C. 139; R. v. Bourn, Ibid. 39. The order need not negative that the chargeability was occasioned by relief made necessary by sickness or accident (see 9 & 10 Vict, c. 66, s. 4, ante, p. 416) ; R. v. Halifax, 12 Q. B. Ill ; but if the fact be so, the order will be bad on appeal, unless the justices find in the order that such sickness, &c, will produce permanent disability; see R. v. Priors Harchciclc, 12 Q. B. 168; nor need the order find that the pauper has not resided in the removing parish for 1 year next before the application for the warrant. R. v. St. George, Hanover Square, 13 Q. B. 642. The justices are not required to state the grounds upon which they arrive at their conclusion. R. v. Honiton, Burr. S. C. 680 ; R. v. Tibbenham, 9 East, 388 ; though, if they are set out, the Court will inquire into their sufficiency. R. v. Coin, St. Aldivins, Burr. S. C. 136. Direction of the Order. — The order should be directed to the guardians of both parishes, or unions, and should require those of the complaining parish to remove the pauper, and those of the parish in which the settlement is adjudged to be to receive and provide for him. R. v. St. Olave's, 3 Salk. 256. SECT. IV.] ORDERS OF REMOVAL. 455 Signature, &c, of the Order. — The order must be under the hands and seals of the justices making it. See R. v. Great Bolton, 7 Q. B. 387. Form of the Order. — The order may direct the removal to be made absolutely or "on sight hereof." R. v. Itotherham, 3 Q,. B. 776. The 11 & 12 Vict. c. 31, s. 6, authorizes the amend- ment of any omissions or mistakes in the drawing up of the order, if sufficient grounds were in proof before the magistrates making it to have authorized the drawing up thereof free from such omissions or mistakes. Disputes as to Removal. — As to guardians or overseers refer- ring disputed questions as to removal to the Local Grovernment Board, see mite, p. 429. 2. Examination of the Pauper. How taken. — Before justices make an order of removal they should take the examination of such witnesses as can depose to the facts requisite to be proved as the foundation of the order — viz., the inhabitancy, chargeability, and settlement of the pauper. By the 11 & 12 Vict. c. 31, s. 3, the clerk to the magistrates who made the order is to keep the depositions upon which such order was made, and within 7 days to furnish a copy of them to the overseers or guardians of the parish to which the removal is directed to be made, if they apply for such copy. It is therefore necessary that the examination should be taken in writing. And it should be upon oath. Munger Hunger v. Warden, 2 Cas. Ses. 40. By whom taken. — The examination ought to be taken by two justices ; see R. v. Silkstone, 2 Q. B. 520 ; and they should be the same justices who make the order ; R. v. Wykes, 2 Str. 1092 ; both of whom should be present at the same time. R. v. Coin, St. Aldwins, Burr. S. C. 13G. By the 49 Geo. 3, c. 124, s. 4, whenever any pauper is, by age, illness, or infirmity, unable to be brought up to the petty sessions to be examined as to his settlement, any one magistrate, acting for the district where such pauper is, may take his examination and report the same to any other magistrates acting for the same district, and they may, upon such report, adj udge the settlement of tho pauper. In such a case the special circumstances under which the examination 456 REMOVAL OF PAUPERS. [tHAP. XXIV. was taken need not be stated. R. v. South Lynn, All Saints, 4 1L & Sel. 354. What Evidence should be taken. — The usual course is to examine the pauper himself as to his settlement ; and, as said hy Holt, C. J. (Comb. 478), " if it can be, it is fit it should be so, but not absolutely necessary." See R. v. Bagicorth, Cald. 179 ; R. v. Everdon, 9 East, 101. On the trial of any appeal agaiust an order of removal, no order is to be quashed or set aside, either wholly or in part, on the ground that the depositions taken do not furnish sufficient evidence to support, or that any matter therein contained or omitted raises an objection to, the order or grounds of removal. 11 & 12 Yict. c. 31, s. 3. This, however, still leaves it incumbent on the justices not to make the order except upon legal and sufficient evidence laid before them. 3. Notice of Chargeability and Grounds of Re?7ioval. An order of removal in respect of a settlement acquired under sect. 34 of 39 & 40 Vict. c. 61 {ante, p. 430), is not to be made upon the evidence of the person to be removed without such corroboration as the justices think fit. See R. v. Abergavenny Guardians, 6 Q. B. D. 31. Notice of Chargeability, &c., to be served before Removal.— No person is to be removed until 21 clays after a notice in writing of his being chargeable has been sent to the parish to which order of removal is directed. Provided, that if guardians agree to submit to such order he may be removed, although the said period of 21 days has not elapsed. If notice of appeal against such order is received by the parish from which such poor person is directed to be removed, within 21 days, it is not to be lawful to remove him uutil after the time for prosecuting such appeal has expired. 4 & 5 "Will. 4, c. 76, s. 79. Service, when and how made. — The order, notice of charge- ability, and grounds of removal should be served within a reasonable time after the order is made. See R. v. Lampeter, 3 B. & C. 454. And by the 4 & 5 Will. 4, c. 76, s. 84, costs of maintenance can only be recovered from the time of the service of notice of chargeability. Until the notice of charge- SECT. IV.] ORDERS OF REMOVAL. 4-j7 ability is sent there is no grievance against which an appeal will lie, and the sessions have no jurisdiction in such a case to entertain an appeal. R. v. Recorder of Shreiosbury, 1 E. & B. 711. Notice of Chargeability. — The notice of chargeability should state in the body of it, and not merely by reference, the names of the paupers to be removed. R. v. Gomersal, 12 Q. B. 76. But where a woman and her illegitimate child, 5 years old, were ordered to be removed, a notice of chargeability naming only the mother was held sufficient. R. v. Stockton-on-Tees, 7 Q. B. 520. Grounds of Removal. — The statement of grounds of removal is substituted for the examinations which were formerly served with the notice of chargeability. They are required to include the particulars of the settlement relied upon by the removing parish, and should therefore disclose the precise kind of settle- ment or evidence of settlement (as relief, prior order, &c.) intended to be set up, with such particularity, in respect of names, dates, &c, as will enable the other parish to inquire into the facts. It is, however, sufficient, in alleging a settlement by parentage, to state that the pauper was " unemancipated," without negativing the different modes in which emancipation might take place. R. v. Rothicell, 7 Q. B. 574, n. On the hearing of an appeal against an order of removal, it is not lawful for the respondents to give evidence of any other grounds of removal than those set forth in such statement. 11 & 12 Yict. c. 31, s. 2. 4. Abandoning and Superseding the Order. When Orders may be abandoned. — See 11 & 12 Vict. c. 31, s. 8. 5. Suspension of Orders. Power to suspend. — Where a pauper is brought before jus- tices for the purpose of being removed by virtue of an order of removal, and it appears that he is unable to travel by reason of sickness or other infirmity, or that it would be dangerous for him or her so to do, the justices are required to suspend the 458 REMOVAL OF PAUPERS. [CHAP. XXIV. execution of the order until they are satisfied that it may be safely executed without danger to any person who is the subject thereof ; which suspension of, and subsequent permission to execute the same, are to be respectively indorsed on the order of removal, and signed by such justices. 35 Geo. 3, c. 101, s. 2. This power of suspending the order applies, although the pauper was not brought personally before the justices. R. v. Everdon, 9 East, 101. Where any order of removal is suspended, its execution is also to be suspended for the same period, with respect to every other person named therein, who was actually of the same household or family of such sick or infirm person, at the time of such order of removal made. 49 Geo. 3, c. 124, s. 3. Service of suspended Order. — The justices have only jurisdic- tion to make the order of suspension at the time of making the order of removal, not afterwards. R. v. Llanellchid, 29 L. J. M. C. 102. No charges under a suspended order of removal can be re- covered unless notice of such order, with a copy of the same [and a notice of ehargeability and statement of grounds of removal, 11 & 12 Vict. c. 31, ss. 2, 10], have been served on the overseers within 10 days of such order being made. 4 & 5 Will. 4, c. 76, s. 84. See R. v. Wodehouse, 15 Q. B. 1037. The death of the pauper during the suspension of the order does not render it a nullity ; R. v. Lampeter, 3 B. & C. 454 ; but it gives the parish obtaining the order a right to the costs of maintenance. 35 Geo. 3, c. 101, s. 2. No Settlement during Suspension. — No act done by any poor person continuing to reside in any parish, &c, under the suspen- sion of an order is to be effectual, either in whole or in part, for the purpose of giving him a settlement in the same. 35 Geo. 3, c. 101, s. 2. Therefore the occupation of a tenement during such period cannot be included in the time requisite to confer a settlement. R. v. £7. John, Hackney, 2 A. & E. 54S. The subsequent Removal. — Subsequent permission to execute the order is to be endorsed on the order, and signed by any two justices of the county or other jurisdiction. 35 Geo. 3, c. 101, s. 2 ; 49 Geo. 3, c. 124, s. 1. The absence of such a permission SECT. IV.] ORDERS OF REMOVAL. 40!) does not vitiate the order, if a removal actually takes place under it. R. v. Englefield, 13 East, 317. But the order per- mitting the removal must purport to be made within the juris- diction of the justices. R. v. Crowan, 14 Q. B. 221. Costs during Suspension. — Charges incurred by suspension are to be paid by the officers of the parish to which they are ordered to be removed, which may be levied with costs. 35 Geo. 3, c. 101, s. 2 ; 4 & 5 Will. 4, c. 76, s. 84, takes away the right to such costs in case the order, &c, is not served within 10 days. Order for costs of maintenance under orders of removal, which have been suspended because of the ill-health of the pauper, must be made by summons and not ex parte. R. v. Wilkinson, (1891) 1 Q. B. 722. Where the execution of an order of removal has been sus- pended, the overseers of the parish to which the removal is thereby ordered to be made may from time to time, during the continuance of the suspension, if they think fit, pay to the over- seers of the parish obtaining such order the costs and expenses incurred in the maintenance and relief of the pauper mentioned in such order, either directly or through the guardians of the union comprising either or both of such parishes, and are to have credit for every such pavinent in the charges allowed by any order of justices subsequently made. 14 & 15 Vict. c. 105, s. 8. Orders of removal may be suspended in the case of unions, and the expenses recovered quarterly. 30 & 31 Vict. c. 106, s. 26 ; see R. v. Sculcoates, L. R. 4 Q,. B. 33. 6. Appeal against Orders. All persons who think themselves aggrieved by the justices having made an order of removal may appeal to quarter sessions. 13 & 14 Car. 2, c. 12, s. 1 ; 3 Will. & M. c. 11, s. 9. It has been held that the pauper himself may appeal against it ; R. v. Hart field, Carthew. 222 ; but that an individual parishioner cannot appeal. The parishioners are represented by the guardians. Guardians of a union upon whom an order has been made may appeal. 30 & 31 Vict. c. 106, s. 24. Also 460 KEMOYAL OF PAUPEBS. [CHAP. XXIV. guardians obtaining an order of removal may defend the same. 39 & 40 Yict. c. 61, s. 25. Appeals must now be brought under the provisions of the Summary Jurisdiction Acts, 1879 and 1884. 47 & 48 Vict. c. 43. The 7 days' notice required by Summary Jurisdiction Act, 1879, s. 31, for appeals from justices' convictions or orders does not apply to orders for removing paupers. R. v. Justices of Somersetshire, 22 Q. B. D. 625. CHAPTER XXV. FREE PUBLIC LIBRARIES AND MUSEUMS. Parish Libraries. — The 7 Anne, c. 14, ss. 1 — 10, makes pro- vision for the preservation and inspection of libraries given for the use of parishes. Free Public Libraries.— In 1892 an Act (55 & 56 Vict. c. 53) was passed which consolidated and amended a group of Acts (now repealed) for promoting the establishment of free public libraries and museums in parishes. Adoption of Public Libraries Act, 1892. — For the purposes of the Libraries Act, 1892, every parish in England and Wales, which is not within an urban district is to be a library district. 55 & 56 Vict. c. 53, s. 1. In a rural district the Act may be adopted by a parish meeting by a ballot. See sect. 7 of the Local Government Act, 1894, post, Appendix. The Libraries Act, 1892, when adopted for a library district which consists of a parish, is to be carried into execution by the commissioners appointed under that Act and such commissioners executing the Act are referred to as the " library authority." 55 & 56 Vict. c. 53, s. 4. In a rural parish with a council such council will act as commissioners, and such parish council so acting is included in a " library authority." In a small rural parish without a council commissioners (consisting of parochial doctors) will be appointed by the parish, meeting, unless the meeting obtains special powers from the county council. Sect. 7 of Local Government Act, 1894, post, p. 488. Execution of Act. — The library authority may, subject to the provisions of the Act, provide all or any of the following institu- tions, namely, public libraries, public museums, schools for science, art galleries, and schools for art, and for that purpose 462 FREE PUBLIC LIBRARIES AND MUSEUMS. [CHAP. XXV. may purchase and hire land, and erect, take down, rebuild, alter, repair and extend buildings, and fit up, furnish, and supply the same with all requisite furniture, fittings, and convenience. No charge shall be made for admission to a library or museum so provided, or, in the case of a lending library, for the use thereof by the inhabitants of the district ; but the library authority, if they think fit, may grant the use of a lending library to persons not being inhabitants of the district, either gratuitously or for payment. 55 & 56 Yict. c. 53, s. 11. The general management, regulation, and control of every library, museum, art gallery, and school provided are to be vested in and exercised by the library authority, and that authority may provide therein books, newspapers, maps, and specimens of art and science, and cause the same to be bound and repaired when necessary. The Library authority may appoint salaried officers and ser- vants, and dismiss them, and make regulations for the safety and use of ever} 7, library, museum, gallery, and school under their control, and for the admission of the public thereto. Sect. 15. Offences in Libraries. — The purpose of the Libraries Offences Act, 1898, is to provide for the punishment of offences in libraries, and amongst the libraries to which it applies is any library under the Public Libraries Act, 1892. The new Act directs that any person who, in the library, to the annoyance or disturbance of any person using the same — (1) behaves in a dis- orderly manner ; (2) uses violent, abusive, or obscene language ; (3) bets or gambles ; (4) or who, after proper warning, persists in remaining therein bej-ond the hours fixed for the closing of the library shall be liable, on summary conviction, to a penalty not exceeding 40s. 61 & 62 Vict. c. 53. CHAPTEE XXVI. LIGHTING AND WATCHING ACT, 1833. The Lighting and Watching Act, 1833 (3 & 4 Will. 4, c. 90), is one of the Acts which it is in the power of parish meetings to adopt. 56 & 57 Vict. c. 73, s. 7. So much of the Act as relates to watching has become obsolete. The Act can be adopted at the parish meeting without a poll. The Act may be adopted for part of a parish. The parish meeting has power to abandon the Act. Election of Inspectors. — The Lighting and Watching Act, 1833, provides for the Act being carried into execution by in- spectors. The number of such inspectors to be elected being determined by the inhabitants of the parish at the time they adopt the Act. Where there is a parish council no inspectors will be elected. In a small parish without a parish council, the parish meeting called in the way prescribed by the Local Government Act, 1894, will elect inspectors. Vacancies among Inspectors. — See sect. 21. Meetings of Inspectors. — The inspectors are to meet on the first Monday in every month, at noon, at some convenient place or office previously publicly notified ; and at such monthly meeting any inhabitant rated to the relief of the poor of any such parish may appear, and prefer any matter of complaint which he may think proper to make concerning any matter or thing done by force or in pursuance of or under pretence of the provisions of the Act. Sect. 22. Where there is a parish council it will per- form the duties of the inspectors. As to special meetings, see sect. 23. Appointment of Officers, their Duties, &c. — The inspectors are to appoint, during pleasure, a treasurer and other officers, with 4G1 LIGHTING AND WATCHING ACT, 1833. [CHAP. XXVI. suitable salaries, and may remove them ; they may also hire an office for the transaction of business, and pay such salaries and rent out of the moneys received under the authority of the Act. Sect. 24. Rates, how levied. — As soon as the inspectors have been elected, they, or any two or more of them, may, from time to time, issue an order under their hands to the overseers of the poor of any parish to -which the provisions of the Act are extended, requiring them to levy the amount mentioned in the said order. Sect. 32. AVhere the duties of inspectors are carried out by the parish council, they will issue their order by instrument executed at the meeting under the hands of the chairman presiding at the meeting, and two other members of the council. The overseers are, for the purpose of collecting, raising, and levying the rate necessary for the purposes of the Act, to proceed in the same manner and have the same powers, remedies, and privileges, as for levying money for the relief of the poor. Sect. 33. A rate under this Act must be published in the same manner as a poor rate. See ante, p. 308. Amount of Rate, and how assessed. — Owners and occupiers of houses, buildings, and property (other than land) rateable to the relief of the poor in such parish are to be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land are rated at and pay for the purposes of the Act. But the total amount of the sum to be collected, raised, and levied for the purposes of the Act within any one year is not to exceed such sum as has been agreed on by the inhabitants of the parish as aforesaid ; and the said sum is to be assessed upon the full and fair annual value to which lands, houses, buildings, and other property within the parish are rated or rateable, according to the last valuation made and acted upon for the rate for the relief of the poor within the said parish. Sect. 33. See R. v. Midland By. Co., L. E. 10 Q. B. 389 ; 44 L. J. M. C. 137, where it was held that a fine of railway was "land," &c, and therefore rateable at the lower rate. The question whether land with buildings upon it should be rated as "land" or as "buildings" or as "property other than land," under sect. 33, depends upon whether the buildings are to be considered as accessory to the land or the land to the buildings. Cray ford CHAP. XXVI.] LIGHTING AND WATCHING ACT, 1833. 465 Overseers v. Rutter, (1897) 1 Q. B. 650; 66 L. J. Q. B. 506; 76 L. T. 392. Coal mines are not "land," but are "property (other than land) rateable to the relief of the poor," within the meaning of sect. 33, and are therefore liable to be rated under that section at the higher rate. Thursby v. Churchwardens, 8fc. of Briercliffe-with-Extwistle, (1894) 1 Q. B. 567. The overseers are required, whenever, according to the rate made for the relief of the poor, one and the same person is rated in one sum in respect of land, and also of houses, buildings, and other property, to cause such land, and also such houses, build- ings and other property, to be separately assessed, and the sum hereby authorised to be levied is to be assessed accordingly. Provided that every court-yard, yard, or garden (such garden not being a market garden or nursery ground), is to be included in and made part of the assessment to be made on the house, buildings, or other property to which they are respectively attached; and that such land, houses, buildings, and other property is not in the whole to be assessed at a higher amount than they were in the last rate made for the relief of the poor within the parish. Sect. 34. Annual Return as to Rates. — An annual return as to rates, &c, is to be made to the Local Government Board. 40 & 41 Vict. c. 66. Collection and Payment of Rates. — See sects. 35 — 38. Fire Engines, Lamps, Gas, &c. — Fire engines are to be pro- vided, and lamp irons put up by the inspectors (or parish council). Sects. 44, 45. A parish council where they have not adopted this Act, have power to provide a fire engine and fire escape {ante, p. 242). Gas pipes are not to be laid on private premises without the consent of the owner or occupier, and such owner may alter the position of the pipes after they have been laid. Sects. 46, 47. The Act contains a number of provisions as to the laying down of gas pipes, escape of gas, and contamination of water supply by gas. Sects. 48 — 54. Offences, &c. — Persons wilfully damaging watch-houses or lamps, &c, or extinguishing the latter, may be apprehended by any one, and are to forfeit a sum not exceeding 40s. for every lamp, &c, so damaged, and not exceeding 51. for any other such offence, together with full satisfaction for the damage. Half s. n n 46(3 LIGHTING AND WATCHING ACT, 1833. [CHAP. XXVI. the forfeiture is to go to the person apprehending, and half to be applied for the purposes of the Act ; and it is to he levied in the same manner as a forfeiture in the case of an assault on a watchman in the execution of his duty. Sect. 55. If any person accidentally breaks a lamp, or does any damage, and refuses to make satisfaction, one justice may award a reason- able sum of money to be paid to the inspectors, which, with the expenses, may be levied as above. Sect. 56. Powers of Inspectors. — Sects. 57 — 60 relate to the powers of the inspectors ; they are authorised to contract for works directed to be done by the Act, and to sue for breach of contract, or to compound with the contractor, and to purchase or rent ground or buildings, for the purposes of the Act. The property in all watch-houses, lamps, materials, &c, is vested in them. Inspectors of adjoining parishes, having adopted the pro- visions of the Act, may unite for the better carrying it into effect. Sect. 61. Appeal against Orders of Inspectors. — Any persons aggrieved by any order of the inspectors, or by any order or conviction of justices, may appeal to the quarter sessions for the county, &c, in which the parish is situate, holden within 4 months after the cause of complaint shall have arisen, or if such sessions be held within 1 month, then to the secondly succeeding sessions. The appellant must give 14 days' notice in writing of his intention to appeal, and of the matter or cause thereof, to the inspectors or other respondents, and, within 5 days after such notice, he must enter into a recognisance to try such appeal, and to abide the order and pay the costs awarded. Sect. 66. Appeal against Rate. — Appeals against rates made by the overseers for the purposes of this Act are to be subject to the same rules, and prosecuted in like manner, as appeals against rates for the relief of the poor. Sect. 67. Action against Inspectors. — Inspectors are entitled to the protection given by the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61). CHAPTER XXVII. ELEMENTARY EDUCATION. PAGE Section I. Providing and Management of Schools 467 1. School Board 469 i. Formation of 469 ii. Election of, Sfc 469 iii. Duties of 471 II. School Attendance Committee 472 III. Attendance of Children at School 472 IV. Employment of Children 475 V. School Fees 477 VI. Parliamentary Grant 478 VII. Poor Law Education 479 Section I. — Providing and Management of Schools. In 1870 an Act (33 & 34 Vict. c. 75) was passed to provide for public elementary education in England and Wales. That Act has been several times amended by subsequent statutes. In order that those Acts may be efficiently carried out, statutory duties are imposed on (1) Parents {post, p. 472); (2) The Education Department of the Privy Council ; and (3) Local Authorities. School Districts. — The whole of England and Wales, for the purposes of the Education Acts, is divided into " school districts." The districts are the metropolis, every borough under tho Municipal Corporations Act, 1882, and every parish not included in the metropolis or a municipal borough. 33 & 34 Vict. c. 75, s. 4. 11 h 2 468 ELEMENTARY EDUCATION. [CHAP. XXVII. "When a parish is partly within and partly without a municipal borough the part outside the borough is to be deemed a parish by itself, and, therefore, a separate school district. Sect. 77 ; 39 & 40 Vict. c. 79, s. 49. Where a part of a parish is detached from the principal part of the parish, and the Education Department with the consent of the Local Government Board have so directed, each part of the parish is in like manner, for the purposes of the Education Acts, to be a separate parish. 36 & 37 Vict. c. 86, s. 12 ; 39 & 40 Vict. c. 79, s. 49. Alteration of School District. — See Local Government Act, 1894 (post, p. 210), s. 1 (3) and 36 (2), the effect of which has been in many cases to subdivide existing civil parishes. United Districts. — The Education Department, may, by order, unite any two or more adjoining school districts not included in the metropolis. 33 & 34 Vict. c. 75, s. 40. When a united school district is formed it is to be deemed a school district. Contributory Districts. — The Education Department may direct that a proportion of the expenses of providing and main- taining public elementary schools are to be contributed by a school district other than that in which the schools are provided. Sect. 49. Supply of Schools. — School districts being constituted it de- volves on the Education Department to take steps to insure the provision of a sufficient amount of accommodation in public elementary schools available for all the children resident in each district, for whose elementary education efficient and suitable provision is not otherwise made. Sect. 5. "Elementary school" means a school at which elementary education is the principal part of the education there given. It does not include any school at which the ordinary payments in respect of instruction from each scholar exceed 9d. a week. Sect. 3. The local education authority in a school district may be either a school board or a school attendance committee (post, p. 472). Such district must be under either one or the other. Of the total number of public elementary schools in England and Wales, 14,434 schools, with a total average attendance of 2,471,996 children, are voluntary schools, and 5,524 schools, SECT. I.] PROVIDING AND MANAGEMENT OF SCHOOLS. 469 with a total average attendance of 2,016,547 children, are board schools. 1. School Board. i. Formation of. A school board may be created either (1) by the action of the Education Department, or (2) by the voluntary action of the ratepayers of the district. If the Education Department, after inquiry, find there is not sufficient public school accommodation, they must require the local authorities to supply it. 33 & 34 Vict. c. 75, s. 6. If, after 6 months' notice, the local authorities have neglected to provide the required accommodation, the Education Depart- ment must cause a school board to be created for the district. Sects. 10, 40. ii. Election of, $r. The mode of conducting elections is under the control of the Education Department. There is no qualification required for school board candidates. The nomination of candidates must be in writing, and when there is a contest, the poll is to be taken according to the provisions of the Ballot Act, 1872. The return- ing officer in a borough is the mayor, and in rural districts the clerk to the guardians. The electors have a cumulative vote. In a borough the school board is to be elected by the persons whose names are on the burgess roll. In a parish not included in the metropolis or in a municipal borough, the members of the board are to be elected by the ratepayers. 33 & 34 Vict. c. 75, s. 29. When a parish is partly within and partly without a borough the ratepayers of the part outside the borough may meet for the purpose of electing members of the school board in the same manner as if they were inhabitants of a separate parish. The regulations for elections of school boards contained in the rules of the Education Department are directory, and it is sufficient if they are substantially complied with. A voting-paper ought not to be rejected for uncertainty if it is apparent that the voter meant to exercise his franchise in favour of one or more of the candidates. Phillips v. Goff, 17 Q. B. D. 805 ; 55 L. J. Q. B. 512. Corrupt Practices at Elections. — See 33 & 34 Vict. c. 75, s. 91, and 47 & 48 Vict. c. 70. 470 ELEMENTARY EDUCATION. [CHAP. XXVII. Tenure of Office. — Members of the school board are elected triennially, all retiring. A member of the school board who, in accordance with 33 & 34 Tict. c. 75, ceases to be a member by reason of 6 successive months' absence from the meetings of the board without sufficient excuse, is not permanently disqualified for the office, but is re- eligible for election at any succeeding triennial election of members of the board. It. v. Turmine, 4 Q. B. D. 79. Rule 14 of Sched. II., Pt. I. of 33 & 34 Yict. c. 75, does not entitle a school board to elect a new member in place of a member who has absented himself on account of ill health, without giving him an opportunity of explaining or excusing his absence. Richardson v. Methley School Board, (1893) 3 Ch. 510. Bankruptcy. — If a member of a school board is adjudged bankrupt, the office thereupon becomes vacant. 46 & 47 Yict. c. 52, s. 34. Dissolution of School Boards. — Where the Education Depart- ment are of opinion that in the ease of any school district the school board for such district are in default, or are not properly performing their duties, they may by order direct that the then members of the school board shall vacate their seats and the vacancies shall be filled by a new election. 33 & 34 Vict. c. 75, s. 66; 39 & 40 Vict. c. 79, s. 41. The following are the causes for which a school board may be declared in default : — 1. Failure to supply sufficient amount of public school accom- modation. 33 & 34 Vict. c. 75, s. 6. 2. If the school board do or permit any act in contravention of, or fail to comply with, the regulations according to which a school provided by them is required by the Act to be conducted. Sect. 1 6. 3. If the board fail to comply with requisition to supply sufficient school accommodation. Sects. 11 and 18. 4. If the school board either are not elected at the time fixed for the first election, or at any time cease to be in existence, or to be of sufficient number to form a quorum by reason of non- election, resignation, or otherwise, or neglect or refuse to act. Sect. 32. 5. If the school board fail to fulfil their duty under the Act of 1876. 39 & 40 Vict. c. 79, s. 27. SECT. I.] PROVIDING AND MANAGEMENT OF SCHOOLS. 471 iii. Duties of School Boards. The school board, on their formation, are to take the necessary steps for providing the school accommodation specified by the Education Department. 33 & 34 Vict. c. 75, s. 10. The school board may provide school houses for the district by building or otherwise. They may improve, enlarge, and fit up any school house provided by them, and supply school apparatus and everything necessary for the efficiency of the schools. Sect. 19. The school boards of two or more districts may com- bine together for the purpose of providing, maintaining, and keeping efficient schools common in such districts. Sect. 52. Loans. — Loans are advanced to meet expenditure incurred in providing school accommodation or school board offices, and the repayment of a loan is spread over such a number of years not exceeding 50, as may be sanctioned by the Education Depart- ment. E. A. 1813, s. 10; E. A. 1876, s. 42. Appointment of Managers. — If the school board think it ex- pedient they may appoint a body of managers, consisting of not less than three persons, and may delegate to them the control and management of any school provided by the Board or any other of their powers, except those relating to the raising of money. Sect. 15. A joint body of managers may be appointed for combined districts. Sect. 52. School Board Accounts. — " The Local Government Board may from time to time make such regulations as may be necessary respecting the form of keeping the accounts, the audit thereof, the mode of publishing the time and place of holding the audit, the time within which the accounts are to be examined by the school board and signed by the chairman, and (with the consent of the Education Department) the school boards or class of school boards the accounts of which are to be made up only annually, and the day to which they are to be so made up in every year." 36 & 37 Vict, c. 86, s. 18. School Fund. — The expenses of the school board are to be paid out of a fund called the school fund. There is to be carried to the school fund all fees from scholars, or out of moneys pro- vided by Parliament, or raised by way of loan, or in any manner whatever received by the School Board. 33 & 34 Vict. c. 75, s. 53. 472 ELEMENTARY EDUCATION. [CHAP. XXVII. Section II. — School Attendance Committee. The local authorities for the purpose of carrying out compul- sory education are the school boards in districts for which school boards have been elected, and in other districts school attendance committees. In a borough not under the jurisdiction of a school board the school attendance committee are elected by the council of the borough, and in a parish not included in a school board district or a borough the committee are elected by the guardians of the union in which the parish is comprised. The committee are appointed annually, and consists of not less than 6 nor more than 12 members of the council or board of guardians by which the committee are appointed. 39 & 40 Vict. c. 79, s. 6. A school attendance committee appointed by guardians is to act for every parish in the union, which is not for the time being under any other "local authority" within the meaning of the Act. Sect. 32. As to school attendance committees in urban sanitary districts, which are not and do not comprise boroughs, see sect. 33. School attend- ance committees may appoint local committees for different parishes or other areas in their district. A local committee may consist of not less than three persons, either wholly members of the council, guardians or authority by whom the committee are appointed, or partly of such members and partly of other per- sons. Sect. 32. Section III. — Attendance of Children at School. It is the duty of the parent of every child to cause such child to receive efficient elementary instruction in reading, writing and arithmetic. 39 & 40 Vict. c. 79, s. 4. The term " parent " includes " guardian and every person who is liable to maintain, or has the actual custody of any child." 33 & 34 Vict. c. 75, s. 3. This does not affect the jirimary liability of the parent, if there be one. London School Board v. Jackson, 7 Q. B. D. 502 ; 50 L. J. M. C. 134. One effect of the Education Act of 1891 (53 & 54 Vict. c. 22) has been to bring into school a largely increased number of infants, especially of those between 3 and 5 years of age. In any case in which the parent of a child between the ages of 5 and 14 years who is prohibited from being taken into SECT. III.] ATTENDANCE OF CHILDREN AT SCHOOL. 473 full time employment (see post, p. 475), habitually and without reasonable excuse neglects to provide efficient elementary educa- tion for the child, and in any case in which a child within the limits of the age referred to is found habitually wandering, or not under proper control, or in the company of rogues, vaga- bonds, disorderly persons, or reputed criminals, it is the duty of the local authority (vide infra), after due warning to the parent, to complain to a court of summary jurisdiction. The court is empowered to make an attendance order requiring that the child shall attend such certified efficient school as the parent may select, and in the event of the parent not making a selec- tion, such public elementary school as the court may think expedient. Sect. 11. A conviction for non-compliance with an attendance order may be proved by the minute books of the court containing an entry of the order. London School Board v. Harvey, 4 Q. B. D. 451 ; 48 L. J". M. C. 130. An attendance order against a father is not enforceable against the mother on his death. Hance v. Fairhtirst, 51 L. J. M. C. 139. The attendance of children at school is secured by direct or indirect compulsion. The direct compulsion is carried out by bye-laws and school attendance orders. The indirect compulsion is secured by imposing restrictions on the employment of chil- dren, except when they have attained a certain standard of proficiency in reading, writing, and arithmetic, or have obtained a certificate of previous due attendance at school, and also by making the attendance at school of the children of paupers a condition of relief being given out of the workhouse. The following reasons are deemed a "reasonable excuse" for the non-attendance of a child at school: (1) that the child is under efficient instruction in some other manner ; (2) that the child has been prevented from attending school by sickness or any unavoidable cause ; (3) that there is no public elementary school open which the child can attend within three miles from the residence of the child, measured according to the nearest road. 43 & 44 Vict. c. 23, s. 2 ; 39 & 40 Viet. c. 79, s. 21 ; 33 & 34 Vict. c. 75, s. 74. Where the parent was informed that the child arrived late twice out of 158 times, but the child was always sent in time, the parent was held "reasonably excused." Helper Board v. Bailey, 9 Q. B. D. 259 ; 51 L. J. M. 0. 91. 474 ELEMENTARY EDUCATION. [CHAP. XXVII. Where it was shown that non-attendance was caused by the child, a girl aged twelve, with fair elementary instruction, having been in respectable employment, earning wages, which she gave to her parents, who were poor, industrious, and respectable people, and applied them to the support of their other children, whom otherwise, from no fault of the parents, they would have been unable sufficiently to support, it was held that these facts constituted a reasonable excuse for non-attend- ance. London School Board v. Duggan, 13 Q. B. D. 176 ; 53 L. J. M. C. 104. Bye-laws. — It is the duty of the local authorities (including the school attendance committee for a union comprising a parish) to make bye-laws requiring the parents of children of such age, not less than 5 years, nor more than 13 years (unless there is some reasonable excuse), to cause such children to attend school. No child is obliged to attend school whom one of her Majesty's inspectors certifies has reached a standard of education specified in the bye-law. Bye-laws made by school boards and school attendance com- mittees have to be approved by Order in Council. These bye- laws are usually to the following effect : — The parent of every child of between certain years residing within the school district is to cause the child to attend school unless there is a reasonable excuse. Reasonable excuse is defined as either efficient instruc- tion elsewhere, sickness, or distance from school (generally 2 or 3 miles) of child's residence. Children of 1 1 years of age who have passed certain standards are wholly or partially exempt from attendance. No child is to be bound to receive religious instruction, nor to attend school on days his parents set apart for religious observances. If parents plead poverty a portion of fees is to be remitted. Penalty with costs not to exceed a stated sum, and to be incurable only once in 1 week. A parent does not "cause his child to attend school " who sends his child to the school, but does not pay the school fees ; although the child be admitted to the school and receive instruc- tion. Saunders v. Richardson, 7 Q. B. D. 388 ; 50 L. J. M. C. 137; London School Board v. Wood, 15 Q. B. D. 415; 54 L. J. M. C. 145. Detention of Scholar. — The Elementary Education Acts do not authorise the setting of lessons to be prepared at home by SECT. III.] ATTENDANCE OF CHILDREN AT SCHOOL. 475 children attending a board school. The detention at school after school hours of a child for not doing home lessons is therefore unlawful, and renders the master who detains the child liable to be convicted for an assault. Hunter v. Johnson, 13 Q. B. D. 225; 53 L. J. M. C. 182. The authority of a schoolmaster to punish a pupil extends to acts done by such pupil while on his way to and from school. Clear v. Booth, (1893) 1 Q. B. 465. Union extending into Several Counties. — The effect of sect. 34 of 39 & 40 Vict. c. 79 — which incorporates for certain purposes all enactments relating to guardians and their officers — is to enable proceedings before justices for non-compliance with attendance orders and for breach of bye-laws under the Elemen- tary Education Acts, in cases where the parents proceeded against reside in a union extending into different counties, to be taken before the justices of either county. R. v. Eaton, 8 Q. B. D. 158. Canal Boats. — The Education Department have power to make regulations with respect to the form of certificates or pass-books as to attendance at school to be used by children in canal boats. That department must every year report to Parliament as to the manner in which the Elementary Education Acts are enforced with respect to children in canal boats, and for that purpose direct her Majesty's inspector of schools to communicate with the school boards and school attendance committees in their dis- trict. 47 & 48 Yict. c. 75, ss. 5, 6. Section IV. — Employment oe Children. No person is to take into his employment a child under 1 1 (56 & 57 Vict. c. 51), or any child between the ages of 11 and 14, who has not obtained a certificate of proficiency, or of due attendance at a public elementary school, unless the child is employed and attending school in accordance with the Factory Acts or of a bye-law, 39 & 40 Vict. c. 79, s. 5. A person is not deemed to have taken a child into his employment contrary to the provisions of the Education Acts, if it is proved to the satisfaction of the court that during the em- ployment there is not an available school within 2 miles of child's residence; (2) that the employment does not interfere 476 ELEMENTARY EDUCATION. [CHAP. XXVII. ■with the efficient elementary instruction of the child, (3) or is exempted by a notice of the local authority. This exemption applies to the employment above the age of 8 for the ingathering of crops, &c, for a period not exceeding 6 weeks. Copies of such notices are to be sent to the overseers of each parish within the jurisdiction of the local authority, and the overseers are to cause copies to be affixed on church and chapel doors. 39 & 40 Vict. c. 79, s. 9. By the Education Act, 1880 (43 & 44 Vict. c. 23, s. 4), it is provided that every person who takes into his employment a child of the age of 11 (56 & 57 Vict. c. 51), and under the age of 13 years, resident in a school district, before that child has obtained a certificate of having reached the standard of educa- tion fixed by a bye-law in force in the district for the total or partial exemption of children of the like age from the obligation to attend school, shall be deemed to take such child into his employment in contravention of the Education Act, 1876, and be liable to a penalty accordingly. By 56 & 57 Vict. c. 51 the age for exemption from school attendance was raised from 10 to 11 years of age. Labour Certificates. — Any parent or other person interested in the employment or education of any child may apply to the local authority of the district in which the child resides for a labour certificate. The applicant must present to the local authority the prescribed evidence of age and proficiency ; and the local authority if they are satisfied that the child is qualified for total or partial exemption from school attendance under the bye-laws of the district or for employment under the first section of the Elementary Education Act, 1876, shall furnish the certifi- cate asked for. Certificates of School Attendance. — Any local authority, parent or other person interested in the employment or education of a child over 13 and under 14, may require the principal teacher for the time being of any certified efficient school, which such child has attended, to furnish a certificate specifying the number of school attendances made by the child in the school during each year since the age of 5, for which the school registers are pre- served. See Revised Regulations of 28th February, 1898. SECT. V.] SCHOOL FEES. 477 Section V. — School Fees. In consequence of the operation of the Education Act, 1891 (53 & 54 Yict. c. 22), the vast majority of elementary schools in England and Wales are free schools. In England and Wales there are now 16,912 free public elementary schools, and 4,771,897 free scholars. Every child attending a school provided by any school board is to pay such weekly fee as may be prescribed by the school board with the consent of the Education Department. The school board may, in the case of a child whose parent is unable from poverty to pay the school fees from time to time for a renewable period not exceeding G months, remit the whole or any part of the fee payable for attendance at a board school. But such remission of school fees is not to be deemed parochial relief to the parent of the child. 33 & 34 Vict. c. 75, s. 17. When a parent, not being a pauper, by reason of poverty is unable to pay the ordinary fee for his child at a public elemen- tary school, he is to apply to the guardians of his parish, and they, if satisfied of his inability, are to pay the fee not exceeding 3d. a week, or such part as the parent in the opinion of the guardians is unable to pay. Such payment by the guardians is not to deprive the parent of any right or subject him to any disability. 39 & 40 Vict. c. 79, s. 10. Money given for the payment of school fees for any child of a parent who is not a pauper, and is resident in any parish, shall be charged by the guardians having jurisdiction in such parish to that parish, with other parochial charges. Sect. 35. The guardians, with the approval of the Local Government Board, may appoint a person or persons or one or more of their officers, as inquiry officer or officers, to discharge the prescribed duties with reference to applications by parents, not being- paupers, for payment of school fees. (Begulations of Local Government Board, dated 22nd March, 1877.) Allowance of School Fees by way of Loan. Art. I. In every case in which the guardians decide to pay the school fee, or any part thereof, under the provisions of sect. 10 of the Elementary Education Act, 187G, and declare the money so paid to be given by way of loan to the parent of the child, 478 ELEMENTARY EDUCATION. [CHAP. XXVII. such money shall be considered as given by way of loan to the parent accordingly. Art. II. In every case where the money paid in respect of such fee is so given by way of loan, the same shall be recoverable in accordance with the provisions of the Poor Law Acts applicable to the recovery of other relief given on loan. {Order of the Local Government Board, dated 9th January, 1878.) Enforcing Payment of Fees. — No action to recover arrears of fees for tuition can be maintained by a school board against the parent of a child attending a public elementary school ; for, it being compulsory upon the parent to cause his child to attend a school, his act in sending the child to school is not voluntary, and no promise to pay the fees can be implied. London School Board v. Wright, 12 Q. B. D. 578. The Elementary Education Acts contemplate that the remedy to enforce payment of fees shall be by an attendance order and by summary proceedings before justices and not by action. Ibid. Section VI. — Parliamentary Grant. Public elementary schools are the only schools for which a grant for the maintenance of the school can be allowed, and to obtain such grant the conditions prescribed by the minutes of the Education Department in force for the time being must be fulfilled. 33 & 34 Yict. c. 75, s. 96. Under sect. 1 of the Voluntary Schools Act, 1897 (60 Vict. c. 5), an annual aid grant of 5s. per scholar in average attendance in voluntary schools is made available for distribution among such of those schools as are necessitous. The section further contains provisions for the constitution of associations of voluntary schools the governing bodies of which may submit for approval of the Education Department, schemes providing for the distribution of the aid grant to the associated schools. By sect. 2, the limit imposed upon the annual parliamentary grant by sect. 19 of the Elementary Education Act, 1876, which has been commonly known as "the 17s. 6d. limit" is removed, as regards all day schools, and sect. 3 exempts voluntary schools from rates. Under the provisions of the Elementary Education Act, 1897 (60 Vict. c. 15), which amended sect. 97 of the Elementary Educa- SECT. VI.] PARLIAMENTARY GRANT. 479 tion Act, 1870, additional government grants are given in aid of the expenses of school boards. The principle on which these grants are based is the relation between the rateable value of a school district and the number of children in the board schools. Section VII. — Poor Law Education. The education of pauper children in the several unions and parishes of England and Wales is either in — 1 . "Workhouse schools ; 2. Detached or separate schools, other than district schools ; 3. District schools ; 4. Schools of another union ; 5. Public elementary schools. The Local Government Board encourage the sending of work- house children to neighbouring public elementary schools. The Local Government Board have power to certify any schools supported wholly or partially by voluntary subscriptions, as fitted for the reception of pauper children (25 & 26 Vict. c. 43) and to fix the amount which may be paid by the guardians for the maintenance, clothing, and education of each pauper child whilst in the school. 45 & 46 Vict. c. 58, s. 13. As to outdoor relief given by guardians, on condition of attend- ance of child at school, see ante, p. 377. As to school attendance of indoor pauper children, see ante, p. 421. As to expenses of indoor pauper children, see ante, p. 394. The Local Government Board issued a general order (dated 30th January, 1897) to the guardians of the poor of the several Poor Law unions in England and "Wales and to the boards of management of the several district schools formed under the Poor Law Amendment Act, 1 844, and the amending Acts. The order prescribes regulations with respect to the school attend- ance of children in workhouses and Poor Law schools, and the time during which they may be employed in industrial training or manual or industrial work. In a covering letter circulated with the order the Board state that the regulations will not apply to children who are receiving instruction in public elemen- tary schools. The Board also observe in the covering letter that they consider it very desirable that in the case of children 480 ELEMENTARY EDUCATION. [CHAP. XXVII. who attend school half-time the school attendance should be in the morning and the industrial training in the afternoon when the arrangements will admit of this. It provides that, except on Sundays and certain holidays, every child between the ages of 3 and 7 shall receive at least 3 hours, and every child between the ages of 7 and 14 shall receive at least 4 hours, of instruction every day. Of the time occupied in any week in the instruction of girls in needlework at least two-thirds shall be occupied in plain needlework, knitting, and cutting out and making garments, and not more than one-third in mending. A child over the age of 11 who shall have passed the fourth standard may be withdrawn during half of the time for instruction, but no child shall be entirely withdrawn under the age of 14. No child under the age of 11 shall be employed in industrial training or manual or industrial work for more than 1 hour, and no child over the age of 11, who is receiving whole-time instruction, for more than 3 hours in any day. No child receiving half-time instruction shall be employed in industrial training or manual or industrial work for more than 5 hours, and no child wholly withdrawn from instruction for more than 8 hours, in any day. The time occu- pied in instruction under this order shall not include the time occupied in religious instruction. Regulations are added pro- viding for a weekly holiday or two weekly half-holidays and for a six weeks' holiday in the year, and for intervals of recreation during the hours of instruction. The expression " instruction " means instruction in any of the subjects for which grants may be made under the code of regulations of the Education Depart- ment for the time being in force except cookery, laundry work, dairy work, or cottage gardening. APPENDIX. -♦- PAGE LOCAL GOVERNMENT ACT, 1894 483 PARISH COUNCILLORS ELECTION ORDER, 1898 . . 541 RURAL DISTRICT COUNCILLORS ELECTION ORDER, 1898 580 BENEFICES ACT, 1898 625 BENEFICES RULES, 1898 , 633 BENEFICES RULES, 1899 641 i i APPENDIX. LOCAL GOVERNMENT ACT, 1894. (5G & 57 Yict. c. 73.) PAET I. Paeish Meetings and Paeish Councils. Constitution of Parish Meetings and Parish Councils. Constitution of Parish Meetings and Establishment of Parish Councils.'] 1. — (1 ) There shall be a parish meeting for every rural parish, and there shall be a parish council for every rural parish which has a population of 300 or upwards : Provided that an order of the county council in pursuance of Part III. of this Act— (a) shall, if the parish meeting of a rural parish having a population of 100 or upwards so resolve, provide for establishing a parish council in the parish, and may, with the consent of the parish meeting of any rural parish having a population of less than 100, provide for establishing a parish council in the parish ; and (b) may provide for grouping a parish with some neighbouring parish or parishes under a common parish council, but with a separate parish meeting for every parish so grouped, so, however, that no parish shall be grouped without the consent of the parish meeting for that parish. (2.) For the purposes of this Act every parish in a rural sanitary district shall be a rural parish. (3.) Where a parish is at the passing of this Act situate partly within and partly without a rural sanitary district, the part of the parish which is within the district, and the part which is without, shall as from the appointed day, but subject to any alteration of area made by or in pursuance of this or any other Act, be separate parishes, in like manner as if they had been constituted separate parishes under the Divided Parishes and Poor Law Amendment Act, 1876, and the Acts amending the same. u2 484 Appendix. Parish Meetings.'] 2. — (1.) The parish, meeting for a rural parish shall consist of the following persons, in this Act referred to as parochial electors, and no others, namely, the persons regis- tered in such portion either of the local government register of electors or of the parliamentary register of electors as relates to the parish. (2.) Each parochial elector may, at any parish meeting, or at any poll consequent thereon, give 1 vote and no more on any question, or, in the case of an election, for each of any number of persons not exceeding the number to be elected. (3.) The parish meeting shall assemble at least once in every year, and the proceedings of every parish meeting shall begin not earlier than 6 o'clock in the evening. (4.) Subject to the provisions of this Act as to any particular person being the chairman of a parish meeting, the meeting may choose their own chairman. (5.) A poll consequent on a parish meeting shall be taken by ballot. (6.) The reasonable expenses of and incidental to the holding of a parish meeting or the taking of a poll consequent thereon shall be defrayed as hereinafter provided. (7.) With respect to parish meetings the provisions in the First Schedule to this Act shall have effect. Constitution of Parish Council.] 3. — (1.) The parish council for a rural parish shall be elected from among the parochial electors of that parish or persons who have during the whole of the 12 months preceding the election resided in the parish, or within 3 miles thereof, and shall consist of a chairman and councillors, and the number of councillors shall be such as may be fixed from time to time by the county council, not being less than 5 nor more than 15. (2.) No person shall be disqualified by sex or marriage for being elected or being a member of a parish council. (3.) The term of office of a parish councillor shall be 1 year. (4.) On the loth of April in each year (in this Act referred to as the ordinary day of coming into office of councillors) the parish councillors shall go out of office, and their places shall be filled by the newly elected councillors. (5.) The parish councillors shall be elected by the parochial electors of the parish. (6.) The election of parish councillors shall, subject to the provisions of this Act, be conducted according to rules framed under this Act for that purpose by the Local Government Board. (7.) The parish council shall in every year, on or within 7 days after the ordinary day of coming into office of councillors, hold an annual meeting. (8.) At the annual meeting, the parish council shall elect, from their own body or from other persons qualified to be councillors Local Government Act, 1894. 485 of the parish, a chairman, who shall, unless he resigns, or ceases to be qualified, or becomes disqualified, continue in office until his successor is elected. (9.) Every parish council shall be a body corporate by the name of the parish council, with the addition of the name of the parish, or if there is any doubt as to the latter name, of such name as the county council after consultation with the parish meeting of the parish direct, and shall have perpetual succession, and may hold land for the purposes of their powers and duties without licence in mortmain ; and any act of the council may be signified by an instrument executed at a meeting of the council, and under the hands or, if an instrument under seal is required, under the hands and seals, of the chairman presiding, at the meeting and two other members of the council. (10.) With respect to meetings of parish councils the pro- visions in the First Schedule to this Act shall have effect. Use of Schoolroom."] 4. — (1.) In any rural parish in which there is no suitable public room vested in the parish council or in the chairman of a parish meeting and the overseers which can be used free of charge for the purposes in this section mentioned, the parochial electors and the parish council shall be entitled to use, free of charge, at all reasonable times, and after reasonable notice, for the purpose of— (a) the parish meeting or any meeting of the parish council ; or [h) any inquiry for parochial purposes by the Local Govern- ment Board or any other Government department or local authority ; or (c) holding meetings convened by the chairman of the parish meeting or by the parish council, or if as to allotments in the manner prescribed by the Allotments Act, 1890, or otherwise as the Local Government Board may by rule prescribe, to discuss any question relating to allot- ments, under the Allotments Act, 1887 and 1890, or under this Act ; or (d) the candidature of any person for the district council or the parish council ; or (e) any committee or officer appointed, either by the parish meeting or council or by a county or district council, to administer public funds within or for the purposes of the parish any suitable room in the schoolhouse of any public elementary school receiving a grant out of moneys provided by Parliament, and any suitable room the expense of maintaining which is payable out of any local rate : Provided that this enactment shall not authorise the use of any room used as part of a private dwelling-house, nor authorise any interference with the school hours of an elementary day or evening school, nor, in the case of a room used for the administra- 486 Appemdix. tion of justice or police, with, the hours during which it is used for these purposes. (2.) If, by reason of the use of the room for any of the said purposes, any expense is incurred by the persons having control over the room, or any damage is done to the room or to the building of which the room is part or its appurtenances, or the furniture of the room or the apparatus for instruction, the expense or damage shall be defrayed as part of the expenses of the parish meeting or parish council or inquiry as the case may be ; but when the meeting is called for the purpose of the candidature of any person, such expense or damage shall be reimbursed to the parish meeting or the parish council by the persons by whom or on whose behalf the meeting is convened. (3.) If any question arises under this section as to what is reasonable or suitable, it may be determined, in the case of a school-house by the Education Department, in the case of a room used for the administration of justice or police by a Secretary of State, and in any other case by the Local Government Board. Poivers and Duties of Parish Councils and Parish Meetings. Parish Council to appoint Overseers.'] 5. — (1.) The power and duty of appointing overseers of the poor, and the power of appointing and revoking the appointment of an assistant over- seer, for every rural parish haviug a parish council, shall be transferred to and vested in the parish council, and that council shall in each year, at their annual meeting, appoint the overseers of the parish, and shall as soon as may be fill any casual vacancy occurring in the office of overseer of the parish, and shall in either case forthwith give written notice thereof in the prescribed form to the board of guardians. (2.) As from the appointed day — (a) the churchwardens of every rural parish shall cease to be overseers, and an additional number of overseers may be appointed to replace the churchwardens, and (b) references in any Act to the churchwardens and overseers shall, as respects any rural parish, except so far as those references relate to the affairs of the church, be construed as references to the overseers, and (c) the legal interest in all property vested either in the over- seers or in the churchwardens and overseers of a rural parish, other than property connected with the affairs of the church, or held for an ecclesiastical charity, shall, if there is a parish council, vest in that council, subject to all trusts and liabilities affecting the same, and all persons concerned shall make or concur in making such transfers, if any, as are requisite for giving effect to this enactment. Local Government Act, 1894. 487 Transfer of certain Powers of Vestry and other Authorities to Parish Council.'] 6. — (1.) Upon the parish, council of a rural parish coming into office, there shall be transferred to that council : — (a) The powers, duties, and liabilities of the vestry of the parish except — (i.)so far as relates to the affairs of the church or to ecclesiastical charities ; and (ii.) any power, duty, or liability transferred by this Act from the vestry to any other authority : (b) The powers, duties, and liabilities of the churchwardens of the parish, except so far as they relate to the affairs of the church or to charities, or are powers and duties of overseers, but inclusive of the obligations of the churchwardens with respect to maintaining and repair- ing closed churchyards wherever the expenses of such maintenance and repair are repayable out of the poor rate under the Burial Act, 1855 : Provided that such obligations shall not in the case of any particular parish be deemed to attach, unless or until the churchwarden subsequently to the passing of this Act shall give a certificate, as in the Burial Act, 1855, provided, in order to obtain the repayment of such expenses out of the poor rate. (c) The powers, duties, and liabiHties of the overseers or of the churchwardens and overseers of the parish with respect to — (i.) appeals or objections by them in respect of the valuation list, or appeals in respect of the poor rate, or county rate, or the basis of the county rate ; and (ii.) the provision of parish books and of a vestry room or parochial office, parish chest, fire engine, fire escape, or matters relating thereto ; and (iii.) the holding or management of parish property, not being property relating to affairs of the church or held for an ecclesiastical charity, and the holding or management of village greens, or of allotments, whether for recrea- tion grounds or for gardens or otherwise for the benefit of the inhabitants or any of them ; (d) The powers exerciseable with the approval of the Local Government Board by the board of guardians for the poor law union comprising the parish in respect of the sale, exchange, or letting of any parish property. (2'.) A parish council shall have the same power of making any complaint or representation as to unhealthy dwellings or obstruc- tive buildings as is conferred on inhabitant householders by the Housing of the Working Classes Act, 1890, but without prejudice to the powers of such householders. (3.) A parish council shall have the same power of making a 488 Appendix. representation -with respect to allotments, and of applying for the election of allotment managers, as is conferred on parliamentary electors by the Allotments Act, 1887, or the Allotments Act, 1890, hut without prejudice to the powers of those electors. (4.) "Where any Act constitutes any persons wardens for allot- ments, or authorises or requires the appointment or election of any wardens committee or managers for the purpose of allot- ments, then, after a parish council for the parish interested in such allotments comes into office, the powers and duties of the wardens, committee, or managers shall he exercised and performed by the parish council, and it shall not be necessary to make the said appointment or to hold the said election, and for the purpose of sect. 16 of the Small Holdings Act, 1892, 2 members of the parish council shall be substituted for allotment managers or persons appointed as allotment managers. Transfer of Powers under adoptive Acts.~] 7. — (1.) As from the appointed day, in every rural parish the parish meeting shall, exclusively, have the power of adopting any of the following Acts, inclusive of any Acts amending the same (all which Acts are in this Act referred to as " the adoptive Acts") ; namely, — (a) The Lighting and Watching Act, 1833 ; (b) The Baths and Washhouses Acts, 1846 to 1882 ; (c) The Burial Acts, 1852 to 1885 ; (d) The Public Improvements Act, 1860 ; (e) The Public Libraries Act, 1892. (2.) Where under any of the said Acts a particular majority is required for the adoption or abandonment of the Act, or for any matter under such Act, the like majority of the parish meeting or, if a poll is taken, of the parochial electors, shall be required, and where under any of the said Acts the opinion of the voters is to be ascertained by voting papers, the opinion of the parochial electors shall be ascertained by a poll taken in manner provided by this Act. (3.) Where under any of the said Acts the consent or approval of, or other act on the part of, the vestry of a rural parish is required in relation to any expense or rate, the parish meeting shall be substituted for the vestry, and for this purpose the expression "vestry " shall include any meeting of ratepayers or voters. (4.) Where there is power to adopt any of the adoptive Acts for a part only of a rural parish, the Act may be adopted by a parish meeting held for that part. (5.) Where the area under any existing authority acting within a rural parish in the execution of any of the adoptive Acts is co-extensive with the parish, all powers, duties, and liabilities of that authority shall, on the parish council coming into office, be transferred to that council. (6.) This Act shall not alter the incidence of charge of any rate Local Government Act, 1894. 489 lpvied to defray expenses incurred under any of the adoptive Acts, and any such rate shall be made and charged as heretofore, and any property applicable to the payment of such expenses shall continue to be so applicable. (7.) When any of the adoptive Acts is adopted for the whole or part of a rural parish after the appointed day, and the parish has a parish council, the parish council shall be the authority for the execution of the Act. (8.) For the purposes of this Act the passing of a resolution to provide a burial ground under the Burial Acts, 1852 to 1885, shall be deemed an adoption of those Acts. Additional Powers of Parish Council.~\ 8. — (1.) A parish council shall have the following additional powers, namely, power — (a) to provide or acquire buildings for public offices and for meetings and for any purposes connected with parish business or with the powers or duties of the parish council or parish meeting ; and (b) to provide or acquire land for such buildings and for a recreation ground and for public walks ; and (c) to apply to the Board of Agriculture under sect. 9 of the Commons Act, 1876; and (d) to exercise with respect to any recreation ground, village green, open space, or public walk, which is for the time being under their control, or to the expense of which they have contributed, such powers as may be exercised by an urban authority under sect. 164 of the Public Health Act, 1875, or sect. 44 of the Public Health Acts Amendment Act, 1890, in relation to recreation grounds or public walks, and sects. 183 to 186 of the Public Health Act, 1875, shall apply accordingly as if the parish council were a local authority within the meaning of those sections ; and (e) to utilise any well, spring, or stream within their parish and provide facilities for obtaining water therefrom, but so as not to interfere with the rights of any corpora- tion or person ; and (f) to deal with any pond, pool, open ditch, drain, or place containing, or used for the collection of, any drainage, filth, stagnant water, or matter likely to be prejudicial to health, by draining, cleansing, covering it, or other- wise preventing it from being prejudicial to health, but so as not to interfere with any private right or the sewage or drainage works of any local authority ; and (g) to acquire by agreement any right of way, whether within their parish or an adjoining parish, the acquisition of which is beneficial to the inhabitants of the parish or any part thereof ; and 490 Appendix. (h) to accept and hold any gifts of property, real or personal, for the benefit of the inhabitants of the parish or any part thereof ; and (i) to execute any works (including works of maintenance or improvement) incidental to or consequential on the exercise of any of the foregoing powers, or in relation to any parish property, not being property relating to affairs of the church or held for an ecclesiastical charity ; and (k) to contribute towards the expense of doing any of the things above mentioned, or to agree or combine with any other parish council to do or contribute towards the expense of doing any of the things above mentioned. (2.) A parish council may let, or, with the consent of the parish meeting, sell or exchange, any land or buildings vested in the council, but the power of letting for more than a year and the power of sale or exchange shall not be exercised, in the case of property which has been acquired at the expense of any rate, or is at the passing of this Act applied in aid of any rate, or would but for want of income be so applied, without the consent of the Local Government Board, or in any other case without such consent or approval as is required under the Charitable Trusts Acts, 1853 to 1891, for the sale of charity estates, provided that the consent or approval required under those Acts shall not be required for the letting for allotments of land vested in the parish council. (3.) Nothing in this section shall derogate from any obligation of a district council with respect to the supply of water or the execution of sanitary works. (4.) Notice of any application to the Board of Agriculture in relation to a common shall be served upon the council of every parish in which any part of the common to which the application relates is situate. Porvers for Acquisition of Land.'] 9. — (1.) For the purpose of the acquisition of land by a parish council the Lands Clauses Acts shall be incorporated with this Act, except the provisions of those Acts with respect to the purchase and taking of land otherwise than by agreement, and sect. 178 of the Public Health Act, 1875, shall apply as if the parish council were referred to therein. (2.) If a parish council are unable to acquire by agreement and on reasonable terms suitable land for any purpose for which they are authorised to acquire it, they may represent the case to the county council, and the county council shall inquire into the representation. (3.) If on any such representation, or on any proceeding under the Allotments Acts, 1887 and 1890, a county council are satisfied that suitable land for the said purpose of the parish council or for Local Government Act, 1894. 491 the purpose of allotments (as the case may be), cannot be acquired on reasonable terms by voluntary agreement, and that the cir- cumstances are such as to justify the county council in proceeding under this section, they shall cause such public inquiry to be made in the parish, and such notice to be given both in the parish and to the owners, lessees, and occupiers of the land pro- posed to be taken as may be prescribed, and all persons interested shall be permitted to attend at the inquiry, and to support or oppose the taking of the land. (4.) After the completion of the inquiry, and considering all objections made by any persons interested, the county council may make an order for putting in force, as respects the said land or any part thereof, the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement. (5.) If the county council refuse to make any such order, the parish council, or, if the proceeding is taken on the petition of the district council, then the district council, may petition the Local Government Board, and that Board after local inquiry may, if they think proper, make the order, and this section shall apply as if the order had been made by the county council. Any order made under this sub-section overruling the decision of the county council shall be laid before Parliament by the Local Government Board. (6.) A copy of any order made under this section shall be served in the prescribed manner, together with a statement that the order will become final and have the effect of an Act of Parliament, unless within the prescribed period a memorial by some person interested is presented to the Local Government Board praying that the order shall not become law without further inquiry. (7.) The order shall be deposited with the Local Government Board, who shall inquire whether the provisions of this section and the prescribed regulations have been in all respects complied with ; and if the Board are satisfied that this has been done, then, after the prescribed period — (a) If no memorial has been presented, or if every such memorial has been withdrawn, the Board shall, without further inquiry, confirm the order : (b) If a memorial has been presented, the Local Government Board shall proceed to hold a local inquiry, and shall, after such inquiry, either confirm, with or without amendment, or disallow the order : (c) Upon any such confirmation the order, and if amended as so amended, shall become final and have the effect of an Act of Parliament, and the confirmation by the Local Government Board shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made, and is within the powers of this Act. 49'2 Appendix. (8.) Sects. 293 to 29G, and sub-sects. (1) and (2) of sect. 297 of the Public Health Act, 1875, shall apply to a local inquiry held by the Local Government Board for the purposes of this section, as if those sections and sub-sections were herein re-enacted, and in terms made applicable to such inquiry. (9.) The order shall be carried into effect, when made on the pi tition of a district council, by that council, and in any other case by the county council. (10.) Any order made under this section for the purpose of the purchase of land otherwise than by agreement shall incorporate the Lands Clauses Acts and sects. 77 to 85 of the Railways Clauses Consolidation Act, 1845, with the necessary adaptations, but any question of disputed compensation shall be dealt with in the manner provided by sect. 3 of the Allotments Act, 1887, and provisoes (a), (b), and (c) of sub-sect. (4) of that section are incorporated with this section and shall apply accordingly : Pro- vided that in determining the amount of disputed compensation, the arbitrator shall not make any additional allowance in respect of the purchase being compulsory. (11.) At any inquiry or arbitration held under this section the person or persons holding the inquiry or arbitration shall hear any authorities or parties interested by themselves or their agents, and shall hear witnesses, but shall not, except in such cases as may be prescribed, hear counsel or expert witnesses. (12.) The person or persons holding a public inquiry for the purposes of this section on behalf of a county council shall have the same powers as an inspector or inspectors of the Local Govern- ment Board when holding a local inquiry; and sect. 294 of the Public Health Act, 1875, shall apply to the costs of inquiries held by the county council for the purpose of this section as if the county council were substituted for the Local Government Board. (13.) Sub-sect. (2) of sect. 2, if the land is taken for allotments, and, whether it is or is not so taken, sub-sects. (5), (6), (7), and (8) of sect. 3 of the Allotments Act, 1887, and sect. 11 of that Act, and sect. 3 of the Allotments Act, 1890, are incorporated with this section, and shall, with the prescribed adaptations, aj ply accordingly. (14.) Where the land is acquired otherwise than for allotments, it shall be assured to the parish council ; and any land purchased by a county council for allotments under the Allotments Acts, 1887 and 1890, and this Act, or any of them, shall be assured to the parish council, and in that case sects. 5 to 8 of the Allotments Act, 1887, shall apply as if the parish council were the sanitary authority. (15.) Nothing in this section shall authorise the parish council to acquire otherwise than by agreement any land for the purpose of any supply of water, or of any right of way. (16.) In this section the expression "allotments" includes Local Government Act, 1894. 49:} common pasture where authorised to be acquired under the Allotments Act, 1887. (17.) Where, under the Allotments Act, 1890, the Allotments Act, 1887, applies to the purchase of land by the count}' council, that Act shall apply as amended by this section, and the parish council shall have the like power of petitioning the county council as is given to 6 parliamentary electors by sect. 2 of the Allotments Act, 1890. (18.) This section shall apply to a county borough with the necessary modifications, and in particular with the modification that the order shall be both made and confirmed by the Local Government Board and shall be carried into effect by the council of the county borough. (19.) The expenses of a county council incurred under this section shall be defrayed in like manner as in the case of a local inquiry by a county council under this Act. Hiring of Land for Allotments.'] 10. — (1.) The parish council shall have power to hire land for allotments, and if they are satisfied that allotments are required, and are unable to hire by agreement on reasonable terms suitable land for allotments, they shall represent the case to the county council, and the county council may make an order authorising the parish council to hire compulsorily for allotments, for a period not less than 14 years nor more than 35 years, such land in or near the parish as is specified in the order and the order shall, as respects confirmation and otherwise, be subject to the like provisions as if it were an order of the county council made under the last preceding section of this Act, and that section shall apply as if it were herein re- enacted with the substitution of "hiring" for "purchase" and with the other necessary modifications. (2.) A single arbitrator, who shall be appointed in accordance with the provisions of sect. 3 of the Allotments Act, 1887, and to whom the provisions of that section shall apply, shall have power to determine any question — (a) as to the terms and conditions of the hiring ; or (b) as to the amount of compensation for severance ; or (c) as to the compensation to any tenant upon the determination of his tenancy ; or (d) as to the apportionment of the rent between the land taken by the parish council and the land not taken from the tenant ; or (e) as to any other matter incidental to the hiring of the land by the council, or the surrender thereof at the end of their tenancy ; but the arbitrator in fixing the rent shall not make any addition in respect of compulsory hiring. (3.) The arbitrator, in fixing rent or other compensation, shall tako into consideration all the circumstances connected with the 404 Appendix. land, and the use to which, it might otherwise be put by the owner during the term of hiring, and any depreciation of the value to the tenant of the residue of his holding caused by the withdrawal from the holding of the land hired by the parish council. (4.) Any compensation awarded to a tenant in respect of any depreciation of the value to him of the residue of his holding caused by the withdrawal from the holding of the land hired by the parish council shall as far as possible be provided for by taking such compensation into account in fixing, as the case may require, the rent to be paid by the parish council for the land hired by them, and the apportioned rent, if any, to be paid by the tenant for that portion of the holding which is not hired by the parish council. (5.) The award of the arbitrator or a copy thereof, together with a report signed by him as to the condition of the land taken by the parish council, shall be deposited and preserved with the public books, writings, and papers of the parish, and the owner for the time being of the land shall at all reasonable times be at liberty to inspect the same and to take copies thereof. (6.) Save as hereinafter mentioned, sects. 5 to 8 of the Allot- ments Act, 1887, shall apply to any allotment hired by a parish council in like manner as if that council were the sanitary authority and also the allotment managers : Provided that the parish council — (a) may let to one person an allotment or allotments exceeding 1 acre, but, if the land is hired compulsorily, not exceed- ing in the whole 4 acres of pasture or 1 acre of arable and 3 acres of pasture ; and (b) may permit to be erected on the allotment any stable, cowhouse, or barn ; and (c) shall not break up, or permit to be broken up, any permanent pasture, without the assent in writing of the landlord. (7.) On the determination of any tenancy created by com- pulsory hiring a single arbitrator who shall be appointed in accordance with the provisions of sect. 3 of the Allotments Act, 1887, shall have power to determine as to the amount due by the landlord for compensation for improvements, or by the parish council for depreciation, but such compensation shall be assessed in accordance with the provisions of the Agricultural Holdings (England) Act, 1883. (8.) The order for compulsory hiring may apply, A\ith the pre- scribed adaptations, such of the provisions of the Lands Clauses Acts (including those relating to the acquisition of land other- wise than by agreement) as appear to the county council or Local Government Board sufficient for carrying into effect the order, and for the protection of the persons interested in the land and of the parish council. Local Government Act, 1894. 405 (9.) Nothing in this section shall authorise the compulsory hiring of any mines or minerals, or confer any right to take, sell, or carry away any gravel, sand, or clay, or authorise the hiring of any land which is already owned or occupied as a small holding within the meaning of the Small Holdings Act, 1892. (10.) If the land hired under this section shall at any time during the tenancy thereof by the parish council he shown to the satisfaction of the county council to be required by the land- lord for the purpose of working and getting the mines, minerals, or surface minerals thereunder, or for any road or work to be used in connection with such working or getting, it shall be lawful for the landlord of such land to resume possession thereof upon giving to the parish council 12 calendar months previous notice in writing of his intention so to do, and upon such resumption the landlord shall pay to the parish council and to the allotment holders of the land for the time being such sum by way of com- pensation for the loss of such land for the purposes of allotments as may be agreed upon by the landlord and the parish council, or in default of such agreement as may be awarded by a single arbitrator to be appointed in accordance with the provisions of sect. 3 of the Allotments Act, 1887, and the provisions of that section shall apply to such arbitrator. The word "landlord" in this sub-section means the person for the time being entitled to receive the rent of the land hired by the parish council. (11.) The Local Government Board shall annually lay before Parliament a report of any proceedings under this and the pre- ceding section. Restrictions on Expenditure^ 11. — (1.) A parish council shall not, without the consent of a parish meeting, incur expenses or liabilities which will involve a rate exceeding 2>d. in the pound for any local financial year, or which will involve a loan. (2.) A parish council shall not, without the approval of the county council, incur any expense or liability which will involve a loan. (3.) The sum raised in any local financial year by a parish council for their expenses (other than expenses under the adoj)tive Acts) shall not exceed a sum ecjual to a rate of 6d. in the pound on the rateable value of the parish at the commencement of the year, and for the purpose of this enactment the expression "expenses" includes any annual charge, whether of principal or interest, in respect of any loan. (4.) Subject to the provisions of this Act, the expenses of a parish council and of a parish meeting, including the expenses of any poll, shall be paid out of the poor rate ; and where there is a parish council that council shall pay the said expenses of the parish meeting of the parish ; and the parish council, and where there is no parish council the chairman of the parish meeting, 196 Appendix. shall, for the purpose of obtaining payment of such expenses, have the same powers as a board of guardians have for the purpose of obtaining contributions to their common fund. (5.) The demand note for any rate levied for defraying the expenses of a parish council or a parish meeting, together with other expenses, shall state in the prescribed form the proportion of the rate levied for the expenses of the council or meeting, and the proportion (if any) levied for the purpose of any of the adoptive Acts. Borrowing hy Parish Council.^ 12. — (1.) A parish council for any of the following purposes, that is to say — (a) for purchasing any land, or building any buildings, which the council are authorized to purchase or build ; and (b) for any purpose for which the council are authorized to borrow under any of the adoptive Acts ; and (c) for any permanent work or other thing which the council are authorized to execute or do, and the cost of which ought, in the opinion of the county council and the Local Government Board, to be spread over a term of years ; may, with the consent of the county council and the Local Government Board, borrow money in like manner and subject to the like conditions as a local authority may borrow for defray- ing expenses incurred in the execution of the Public Health Acts, and sects. 233, 234, and 236 to 239 of the Public Health Act, 1875, shall apply accordingly, except that the money shall be borrowed on the security of the poor rate and of the whole or part of the revenues of the parish council, and except that as respects the limit of the sum to be borrowed, one half of the assessable value shall be substituted for the assessable value for 2 years. (2.) A county council ma} r lend to a parish council any money which the parish council are authorized to borrow, and may, if necessary, without the sanction of the Local Government Board, and irrespectively of any limit of borrowing, raise the money by loan, subject to the like conditions and in the like manner as any other loan for the execution of their duties, and subject to any further conditions which the Local Government Board may by general or special order impose. (3.) A parish council shall not borrow for the purposes of any of the adoptive Acts otherwise than in accordance with this Act, but the charge for the purpose of any of the adoptive Acts shall ultimately be on the rate applicable to the purposes of that Act. Footpaths and Roads.~\ 13. — (1.) The consent of the parish council and of the district council shall be required for the stop- ping, in whole or in part, or diversion, of a public right of way within a rural parish, and the consent of the parish council shall Local Government Act, 1894. 497 be required for a declaration that a highway in a rural parish is unnecessary for public use and not repairable at the public expense, and the parish council shall give public notice of a resolution to give any such consent, and the resolution shall not operate — (a) unless it is confirmed by the parish council at a meeting- held not less than 2 months after the public notice is given ; nor (b) if a parish meeting held before the confirmation resolve that the consent ought not to be given. (2.) A parish council may, subject to the provisions of this Act with respect to restrictions on expenditure, undertake the repair and maintenance of all or any of the public footpaths within their parish, not being footpaths at the side of a public road, but this power shall not nor shall the exercise thereof relieve any other authority or person from any liability with respect to such repair or maintenance. Public Property and Charities.~] 14. — (1.) Where trustees hold any property for the purposes of a public recreation ground or of public meetings, or of allotments, whether under Inclosure Acts or otherwise, for the benefit of the inhabitants of a rural parish, or any of them, or for any public purpose connected with a rural parish, except for an ecclesiastical charity, they may, with the approval of the Charity Commissioners, transfer the property to the parish council of the parish, or to persons appointed by that council, and the parish council, if they accept the transfer, or their appointees, shall hold the property on the trusts and subject to the conditions on which the trustees held the same. (2.) Where overseers of a rural parish as such are, either alone or jointly with any other persons, trustees of any parochial charity, such number of the councillors of the parish or other persons, not exceeding the number of the overseer trustees, as the council may appoint, shall be trustees in their place, and, when the charity is not an ecclesiastical charity, this enactment shall apply as if the churchwardens as such were specified therein as well as the overseers. (3.) Where the governing body of a parochial charity other than an ecclesiastical charity does not include any persons elected by the ratepayers or parochial electors or inhabitants of the parish, or appointed by the parish council or parish meeting, the parish council may appoint additional members of that governing body not exceeding the number allowed by the Charity Commissioners in each case ; and if the management of any such charity is vested in a sole trustee, the number of trustees may, with the approval of the Charity Commissioners, be in- creased to 3, one of whom may be nominated by such sole s. k K 498 Appendix. trustee and one by the parish council or parish meeting. Nothing in this sub-section shall prejudicially affect the power or authority of the Charity Commissioners, under any of the Acts relating to charities, to settle or alter schemes for the better administration of any charity. (4.) Where the vestry of a rural parish are entitled, under the trusts of a charity other than an ecclesiastical charity, to appoint any trustees or beneficiaries of the charity, the appointment shall be made by the parish council of the parish, or in the case of beneficiaries, by persons appointed by the parish council. (5.) The draft of every scheme relating to a charity, not being an ecclesiastical charity, which affects a rural parish, shall, on or before the publication of the notice of the proposal to make an order for such scheme in accordance with sect. 6 of the Charitable Trusts Act, 1860, be communicated to the council of the parish, and where there is no parish council to the chairman of the parish meeting, and, in the case of a council, the council may, subject to the provisions of this Act with respect to re- strictions on expenditure, and to the consent of the parish meeting, either support or oppose the scheme, and shall for that purpose have the same right as any inhabitants of a place directly affected by the scheme. (6.) The accounts of all parochial charities, not being ecclesi- astical charities, shall annually be laid before the parish meeting of any parish affected thereby, and the Charitable Trusts Amendment Act, 1855, shall apply with the substitution in sect. 44 of the parish meeting for the vestry, and of the chair- man of the parish meeting for the churchwardens, and the names of the beneficiaries of dole charities shall be published annually in such form as the parish council, or where there is no parish council the parish meeting, think fit. (7.) The term of office Of a trustee appointed under this sec- tion shall be 4 years, but of the trustees first appointed as aforesaid one half, as nearly as may be, to be determined by lot, shall go out of office at the end of 2 years from the date of their appointment, but shall be ebgible for re-appointment. (8.) The provisions of this section with respect to the appoint- ment of trustees, except so far as the appointment is transferred from the vestry, shall not apply to any charity until the expira- tion of 40 years from the date of the foundation thereof, or, in the case of a charity founded before the passing of this Act by a donor or by several donors any one of whom is living at the passing of this Act, until the expiration of 40 years from the passing of this Act, unless with the consent of the surviving donor or donors. (9.) "Whilst a person is trustee of a parochial charity he shall not, nor shall his wife or any of his children, receive any benefit from the charity. Local Government Act, 1894. 499 Delegated Powers of Parish Councils.'] 15. A rural district council may delegate to a parish council any power which may be delegated to a parochial committee under the Public Health Acts, and thereupon those Acts shall apply as if the parish council were a parochial committee, and where such district council appoint a j)arochial committee consisting partly of mem- bers of the district council and partly of other persons, those other persons shall, where there is a parish council, be or be selected from the members of the parish council. Complaint by Parish Council of Default of District Council.] 16. — (1.) Where a parish council resolve that a rural district council ought to have provided the parish with sufficient sewers, or to have maintained existing sewers, or to have provided the parish with a supply of water in cases where danger arises to the health of the inhabitants from the insufficiency or unwholesome- ness of the existing supply of water, and a proper supply can be got at a reasonable cost, or to have enforced with regard to the parish any provisions of the Public Health Acts which it is their duty to enforce, and have failed so to do, or that they have failed to maintain and repair any highway in a good and substantial manner, the parish council may complain to the county council, and the county council, if satisfied after due inquiry that the district council have so failed as respects the subject matter of the complaint, may resolve that the duties and powers of the district council for the purpose of the matter complained of shall be transferred to the county council, and they shall be transferred accordingly. (2.) Upon any complaint under this section the county council may, instead of resolving that the duties and powers of the rural district council be transferred to them, make such an order as is mentioned in sect. 299 of the Public Health Act, 1875, and may appoint a person to perform the duty mentioned in the order, and upon such appointment sects. 299 to 302 of the Public Health Act, 1875,- shall apply with the substitution of the county council for the Local Government Board. (3.) Where a rural district council have determined to adopt plans for the sewerage or water supply of any contributory place within the district, they shall give notice thereof to the parish council of any parish for which the works are to be provided before any contract is entered into by them for the execution of the works. Parish Officers and Parish Documents.] 17. — (1.) A parish council may appoint one of their number to act as clerk of the council without remuneration. (2.) If no member of the parish council is appointed so to act, and there is an assistant overseer, he, or such one of the assistant Kk2 500 Appendix. overseers, if more than one, as may be appointed by the council, shall be the clerk of the parish council, and the performance of his duties as such shall be taken into account in determining his salary. (3.) If there is no assistant overseer, the parish council may appoint a collector of poor rates, or some other fit person to be their clerk, with such remuneration as they may think fit. (4.) A parish council shall not appoint to the office of vestry- clerk. (5.) When a parish council act as a parochial committee by delegation from the district council they shall have the services of the clerk of the district council, unless the district council otherwise direct. (6.) The parish council may appoint one of their own number or some other person to act as treasurer without remuneration, and the treasurer shall give such security as may be required by regulations of the county council. (7.) All documents required by statute or by standing orders of Parliament to be deposited with the parish clerk of a rural parish shall, after the election of a parish council, be deposited with the clerk, or, if there is none, with the chairman, of the parish council, and the enactments with respect to the inspection of, and taking copies of, and extracts from, any such documents shall apply as if the clerk, or chairman, as the case may be, were mentioned therein. (8.) The custody of the registers of baptisms, marriages, and burials, and of all other books and documents containing entries wholly or partly relating to the affairs of the Church or to ecclesiastical charities, except documents directed by law to be kept with the public books, writings, and papers of the parish, shall remain as provided by the existing law unaffected by this Act. All other public books, writings, and papers of the parish, and all documents directed by law to be kept therewith, shall either remain in their existing custody, or be deposited in such custody as the parish council may direct. The incumbent and churchwardens on the one part, and the parish council on the other, shall have reasonable access to all such books, documents, writings, and papers, as ai*e referred to in this sub-section, and any difference as to custody or access shall be determined by the county council. (9.) Every county council shall from time to time inquire into the manner in which the pubbc books, writings, papers, and documents under the control of the parish council or parish meeting are kept with a view to the proper preservation thereof, and shall make such orders as they think necessary for such preservation, and those orders shall be complied with by the parish council or parish meeting. Local Government Act, 1894. 501 Parish Wards.~] 18. — (1.) A county council nia} r , on applica- tion by the parish council, or not less than one-tenth of the parochial electors of a parish, and on being 1 satisfied that the area or population of the parish is so large, or different parts of the population so situated, as to make a single parish meeting for the election of councillors impracticable or inconvenient, or that it is desirable for any reason that certain parts of the parish should be separately represented on the council, order that the parish be divided for the purpose of electing parish councillors into wards, to be called parish wards, with such boundaries and such number of councillors for each ward as may be provided by the order. (2.) In the division of a parish into wards regard shall be had to the population according to the last published census for the time being, and to the evidence of any considerable change of population since that census, and to area, and to the distribution and pursuits of the population, and to all the circumstances of the case. (3.) Any such order may be revoked or varied by the county council on application by either the council or not less than one tenth of the parochial electors of the parish, but while in force shall have effect as if enacted by this Act. (4.) In a parish divided into parish wards there shall be a separate election of parish councillors for each ward. Provisions as to small Parishes.^ 19. In a rural parish not having a separate parish council, the following provisions shall, as from the appointed day, but subject to provisions made by a grouping order, if the parish is grouped with some other parish or parishes, have effect : — (1.) At the annual assembly the parish meeting shall choose a chairman for the year ; (2.) The parish meeting shall assemble not less than twice in each year ; (3.) The parish meeting may appoint a committee of their own number for any purposes which, in the opinion of the parish meeting, would be better regulated and managed by means of such a committee, and all the acts of the committee shall be submitted to the parish meeting for their approval ; (4.) All powers, duties, and liabilities of the vestry shall, except so far as they relate to the affairs of the church or to ecclesiastical charities, or are transferred by this Act to any other authority, be transferred to the parish meeting ; (5.) The power and the duty of appointing the overseers, and of notifying the appointment, and the power of ap- pointing and revoking the appointment of an assistant overseer, shall be transferred to and vest in the parish 502 Appendix. meeting, and the power given by this Act to a parish council of appointing trustees of a charity in the place of overseers or churchwardens, shall vest in the parish meeting ; (6.) The chairman of the parish meeting and the overseers of the parish shall be a body corporate by the name of the chairman and overseers of the parish, and shall have perpetual succession, and may hold land for the purposes of the parish without licence in mortmain ; but shall in all respects act in manner directed by the parish meeting, and any act of such body corporate shall be executed under the hands, or if an instrument under seal is required under the hands and seals, of the said chairman and overseers ; (7.) The legal interest in all property which under this Act would, if there were a parish council, be vested on the appointed day in the parish council shall vest in the said body corporate of the chairman and overseers of the parish, subject to all trusts and liabilities affecting the same, and all persons concerned shall make or concur in making such transfers (if any) as are re- quisite to give effect to this enactment ; (8.) The provisions of this Act with respect to the stopping or diversion of a public right of way, or the declaring of a highway to be unnecessary and not repairable at the public expense, and with respect to a complaint to a county council of a default by a district council, shall apply, with the substitution of the parish meeting for the parish council ; (9.) A rate levied for defraying the expenses of the parish meeting (when added to expenses under any of the adoptive Acts) shall not exceed sixpence in the pound in any local financial year ; (10.) On the application of the parish meeting the county council may confer on that meeting any of the powers conferred on a parish council by this Act ; (11.) Any act of the parish meeting may be signified by an instrument executed at the meeting under the hands, or, if an instrument under seal is required under the hands and seals, of the chairman presiding at the meeting and two other parochial electors present at the meetins:. Local Government Act, 1894. 503 PAET II. Guardians and District Councils. Election and Qualification of Guardians.'] 20. As from the appointed day the following provisions shall apply to boards of guardians : — (1.) There shall be no ex-officio or nominated guardians : (2.) A person shall not be qualified to be elected or to be a guardian for a poor law union unless he is a parochial elector of some parish within the union, or has during the whole of the 12 months preceding the election resided in the union, or in the case of a guardian for a parish wholly or partly situate within the area of a borough, whether a county borough or not, is qualified to be elected a councillor for that borough, and no person shall be disqualified by sex or marriage for being elected or being a guardian. So much of any enactment, whether in a public general or local and personal Act, as relates to the qualification of a guardian shall be repealed : (8.) The parochial electors of a parish shall be the electors of the guardians for the parish, and, if the parish is divided into wards for the election of guardians, the electors of the guardians for each ward shall be such of the parochial electors as are registered in respect of qualifications within the ward : (4.) Each elector may give one vote and no more for each of any number of persons not exceeding the number to be elected : (5.) The election shall, subject to the provisions of this Act, be conducted according to rules framed under this Act by the Local Government Board : (6.) The term of office of a guardian shall be 3 years, and one third, as nearly as may be, of every board of guardians shall go out of office on the loth day of April in each year, and their places shall be filled by the newly elected guardians. Provided as follows : — (a) Where the county council on the application of the board of guardians of any union in their county consider that it would be expedient to provide for the simultaneous retirement of the whole of the board of guardians for the union, they may direct that the mem- bers of the board of guardians for that union shall retire together on the 15th day of April in every third year, and such order shall have full effect, and where a union is in more than one county, an order may be made by a joint committee of the councils of those counties : 504 Appendix. (b) Where at the passing of this Act the whole of the guardians of any union, in pursuance of an order of the Local Government Board, retire together at the end of every third year, they shall continue so to retire, unless the county council, or a joint committee of the county councils, on the application of the board of guardians or of any district council of a district wholly or partially within the union, otherwise direct : (7.) A boai'd of guardians may elect a chairman or vice- chairman, or both, and not more than two other per- sons, from outside their own body, but from persons qualified to be guardians of the union, and any person so elected shall be an additional guardian and member of the board. Provided that on the first election, if a sufficient number of persons who have been ex-officio or nominated guardians of the union, and have actually served as such, are willing to serve, the additional members shall be elected from among those persons. Names of County Districts and District Councils.] 21. As from the appointed day, — (1.) Urban sanitary authorities shall be called urban district councils, and their districts shall be called urban dis- tricts ; but nothing in this section shall alter the style or title of the corporation or council of a borough : (2.) For every rural sanitary district there shall be a rural district council whose district shall be called a rural district : (3.) In this and every other Act of Parliament, unless the context otherwise requires, the expression "district council " shall include the council of every urban dis- trict, whether a borough or not, and of every rural district, and the expression "county district" shall include every urban and rural district whether a borough or not. Chairman of Council to be Justice.'] 22. The chairman of a district council unless a woman or personally disqualified by any Act shall be by virtue of his office justice of the peace for the county in which the district is situate, but before acting as such justice he shall, if he has not already done so, take the oaths required by law to be taken by a justice of the peace other than the oath respecting the qualification by estate. Rural District Councils.] 24. — (1.) The district council of every rural district shall consist of a chairman and councillors, and the councillors shall be elected by the parishes or other areas for the election of guardians in the district. (2.) The number of councillors for each parish or other area in Local Government Act, 1894. 505 a rural district shall be the same as the number of guardians for that parish or area. (3.) The district councillors for any parish or other area in a rural district shall be the representatives of that parish or area on the board of guardians, and when acting in that capacity shall be deemed to be guardians of the poor, and guardians as such shall not be elected for that parish or area. (4.) The provisions of this Act with respect to the qualification, election, and term of office and retirement of guardians, and to the qualification of the chairman of the board of guardians, shall apply to district councillors and to the chairman of the district council of a rural district, and any person qualified to be a guardian for a union comprising the district shall be qualified to be a district councillor for the district. (5.) Where a rural sanitary district is on the appointed day situate in more than one administrative county, such portion thereof as is situate in each administrative county shall, save as otherwise provided by or in pursuance of this or any other Act, be as from the appointed day a rural district ; Provided that where the number of councillors of any such district will be less than 5, the provisions, so far as unrepealed, of sect. 9 of the Public Health Act, 1875, with respect to the nomination of persons to make up the members of a rural authority to 5, shall apply, unless the Local Government Board by order direct that the affairs of the district shall be temporarily administered by the district council of an adjoining district in another county with which it was united before the appointed day, and, if they so direct, the councillors of the district shall be entitled, so far as regards those affairs, to sit and act as members of that district council, but a separate account shall be kept of receipts and expenses in respect of the district, and the same shall be credited or charged separately to the district. (6.) The said provisions of sect. 9 of the Public Health Act, 1875, shall apply to the district council of a rural district to which they apply at the passing of this Act. (7.) Every district council for a rural district shall be a body corporate by the name of the district council, with the addition of the name of the district, or if there is any doubt as to the latter name, of such name as the county council direct, and shall have perpetual succession and a common seal, and may hold land for the purposes of their powers and duties without licence in mortmain. Powers of District Council with respect to Sanitary and Highway Matters.'] 25. — (1.) As from the appointed day, there shall be transferred to the district council of every rural district all the powers, duties, and liabilities of the rural sanitary authority in the district, and of any highway authority in the district, and highway boards shall cease to exist, and rural district councils 50 G Appendix. shall be the successors of the rural sanitary authority and high- way authority, and shall also have as respects highways all the powers, duties, and liabilities of an urban sanitary authority under sects. 144 to 148 of the Public Health Act, 1875, and those sections shall apply in the case of a rural district and of the council thereof in like manner as in the case of an urban district and an urban authority. Provided that the council of any county may by order postpone within their county or any part thereof the operation of this section, so far as it relates to highways, for a term not exceeding 3 years from the appointed day or such further period as the Local Government Board may on the application of such council allow. (2.) Where a highway repairable ratione tenures appears on the report of a competent surveyor not to be in proper repair, and the person liable to repair the same fails when requested so to do by the district council to place it in proper repair, the district council may place the highway in proper repair, and recover from the person liable to repair the highway the necessary expenses of so doing. (3.) Where a highway authority receives any contribution from the county council towards the cost of any highway under sect. 11, sub-sect. (10), of the Local Government Act, 1888, such contribu- tion may be made, subject to any such conditions for the proper maintenance and repair of such highways, as may be agreed on between the county council and the highway authority. (4.) Where the council of a rural district become the highway authority for that district, any excluded part of a parish under sect. 216 of the Public Health Act, 1875, which is situate in that district, shall cease to be part of any urban district for the pur- pose of highways, but until the council become the highway authority such excluded part of a parish shall continue subject to the said section. (5.) Rural district councils shall also have such powers, duties, and liabilities of urban sanitary authorities under the Public Health Acts or any other Act, and such provisions of any of those Acts relating to urban districts shall apply to rural districts, as the Local Government Board by general order direct. (6.) The power to make such general orders shall be in addition to and not in substitution for the powers conferred on the Board by sect. 276 of the Public Health Act, 1875, or by any enactment applying that section ; and every order made by the Local Government Board under this section shall be forthwith laid before Parliament. (7.) The powers conferred on the Local Government Board by the said sect. 276, or by any enactment applying that section, may be exercised on the application of a county council, or with respect to any parish or part of a parish on the application of the parish council of that parish. Local Government Act, 1894. 507 Duties and Poivers of District Council as to Rights of Way, Rights of Common, and Roadside Wastes.~\ 26. — (1.) It shall be the duty of every district council to protect all public rights of way, and to prevent as far as possible the stopping or obstruc- tion of any such right of way, whether within their district or in an adjoining district in the county or counties in which the district is situate, where the stoppage or obstruction thereof would in their opinion be prejudicial to the interests of their district, and to prevent any unlawful encroachment on any roadside waste within their district. (2.) A district council may with the consent of the county council for the county within which any common land is situate aid persons in maintaining rights of common where, in the opinion of the council, the extinction of such rights would be prejudicial to the inhabitants of the district ; and may with the like consent exercise in relation to any common within their district all such powers as may, under sect. 8 of the Commons Act, 1876, be exercised by an urban sanitary authority in relation to any common referred to in that section ; and notice of any application to the Board of Agriculture in relation to any common within their district shall be served upon the district council. (3.) A district council may, for the purpose of carrying into effect this section, institute or defend any legal proceedings, and generally take such steps as they deem expedient. (4.) Where a parish council have represented to the district council that any public right of way within the district or an adjoining district in the county or counties in which the district is situate has been unlawfully stopped or obstructed, or that an unlawful encroachment has taken place on any roadside waste within the district, it shall be the duty of the district council, unless satisfied that the allegations of such representation are incorrect, to take proper proceedings accordingly ; and if the district council refuse or fail to take any proceedings in conse- quence of such representation, the parish council may petition the county council for the county within which the way or waste is situate, and if that council so resolve the powers and duties of the district council under this section shall be transferred to the county council. (5.) Any proceedings or steps taken by a district council or county council in relation to any alleged right of way shall not be deemed to be unauthorized by reason only of such right of way not being found to exist. (6.) Nothing in this section shall affect the powers of the county council in relation to roadside wastes. (7.) Nothing in this section shall prejudice any powers exer- ciseable by an urban sanitary authority at the passing of this Act, and the council of every county borough shall have the additional powers conferred on a district council by this section. 508 Appendix. Transfer of certain Powers of Justices to District Councils.^ 27. — (1.) As from the appointed day the powers, duties, and liabilities of justices out of session in relation to any of the matters following, that is to say, — (a) the licensing of gang masters ; (b) the grant of pawnbrokers' certificates ; (c) the licensing of dealers in game ; (d) the grant of licences for passage brokers and emigrant runners ; (e) the abolition of fairs and alteration of days for holding fairs ; (f) the execution as the local authority of the Acts relating to petroleum and infant life protection ; when arising within a county district, shall be transferred to the district council of the district. (2.) As from the appointed day, the powers, duties, and liabilities of quarter sessions in relation to the licensing of knackers' yards within a county district shall be transferred to the district council of the district. (3.) All fees payable in respect of the powers, duties, and liabilities transferred by this section shall be payable to the district council. Expenses of Rural District Council. ~\ 29. The expenses incurred by the council of a rural district shall, subject to the provisions of this Act, be defrayed in manner directed by the Public Health Act, 1875, with respect to expenses incurred in the execution of that Act by a rural sanitary authority, and the provisions of the Public Health Acts with respect to those expenses shall apply accordingly. Provided as follows : — (a) Any highway expenses shall be defrayed as general expenses : (b) When the Local Government Board determine any expenses under this Act to be special expenses and a separate charge on any contributory place, and such expenses would if not separately chargeable on a contributory place be raised as general expenses, they may further direct that such special expenses shall be raised in like manner as general expenses, and not by such separate rate for special expenses as is mentioned in sect. 230 of the Public Health Act, 1875: (c) A district council shall have the same power of charging highway expenses under exceptional circumstances on a contributory place as a highway board has in respect of any area under sect. 7 of the Highways and Locomotives (Amendment) Act, 1878 : Local Government Act, 1894. 509 (cl) Where highway expenses would, if this Act had not passed, have been in whole or in part defrayed in any parish or other area out of any property or funds other than rates, the district council shall make such provision as will give to that parish or area the benefit of such property or funds by way of reduction of the rates on the parish or area. PAET III. Areas and Boundaries. Duties and Powers of County Council with respect to Areas and Boundaries.^ 36. — (1.) For the purpose of carrying this Act into effect in the case of — (a) every parish and rural sanitary district which at the passing of this Act is situate partly within and partly without an administrative county ; and (b) every parish which at the passing of this Act is situate partly within and partly without a sanitary district ; and (c) every rural parish which has a population of less than 200 ; and (d) every rural sanitary district which at the passing of this Act has less than 5 elective guardians capable of acting and voting as members of the rural sanitary authority of the district ; and (e) every rural parish which is co-extensive with a rural sanitary district ; every county council shall forthwith take into consideration every such case within their county, and whether any proposal has or has not been made as mentioned in sect. 57 of the Local Govern- ment Act, 1888, shall as soon as practicable, in accordance with that section, cause inquiries to be made and notices given, and make such orders, if any, as they deem most suitable for carrying into effect this Act in accordance with the following provisions, namely : — (i.) the whole of each parish, and, unless the county council for special reasons otherwise direct, the whole of each rural district shall be within the same administrative county ; (ii.) the whole of each parish shall, unless the county council for special reasons otherwise direct, be within the same county district ; and (iii.) every rural district which will have less than 5 elected councillors shall, unless for special reasons the county council otherwise direct, be united to some neighbour- in": district or districts. 510 Appendix. (2.) "Where a parish is at the passing of this Act situate in more than one urban district, the parts of the parish in each such district shall, as from the appointed day. unless the county council for special reasons otherwise direct, and subject to any alteration of area made by or in pursuance of this or any other Act, be separate parishes, in like manner as if they had been constituted separate parishes under the Divided Parishes and Poor Law Amendment Act, 1876, and the Acts amending the same. (3.) "Where a parish is divided by this Act, the county council may by order provide for the application to different parts of that parish of the provisions of this Act with respect to the appointment of trustees or beneficiaries of a charity and for the custody of parish documents, but the order, so far as regards the charity, shall not have any effect until it has received the approval of the Charity Commissioners. (4.) AVhere a rural parish is co-extensive with a rural sanitary district, then, until the district is united to some other district or districts, and unless the county council otherwise direct, a sepa- rate election of a parish council shall not be held for the parish, but the district council shall, in addition to their own powers, have the powers of, and be deemed to be, the parish council. (5.) "Where an alteration of the boundary of any county or borough seems expedient for any of the purposes mentioned in this section, application shall be made to the Local Government Board for an order under sect. 54 of the Local Government Act, 1888. (6.) "Where the alteration of a poor law union seems expedient by reason of any of the provisions of this Act, the county council may, by their order, provide for such alteration in accordance with sect. 58 of the Local Government Act, 1888, or otherwise, but this provision shall not affect the powers of the Local Government Board with respect to the alteration of unions. (7.) Where an order for the alteration of the boundary of any parish or the division thereof, or the uuion thereof or of any part thereof, with another parish is proposed to be made after the appointed day, notice thereof shall, a reasonable time before it is made, be given to the parish council of that parish, or if there is no parish council, to the parish meeting, and that parish council or parish meeting, as the case may be, shall have the right to appear at any inquiry held by the county council with reference to the order, and shall be at liberty to petition the Local Government Board against the confirmation of the order. (8.) Where the alteration of the boundary of any parish, or the division thereof or the union thereof or of part thereof with another parish, seems expedient for any of the purposes of this Act, provision for such alteration, division, or union may be made by an order of the county council confirmed by the Local Local Government Act, 1894. 511 Government Board under sect. 57 of the Local Government Act, 1888. (9.) Where a parish is by this Act divided into two or more parishes, those parishes shall, until it is otherwise provided, be included in the same poor law union in which the original parish was included. (10.) Subject to the provisions of this Act, any order made by a county council in pursuance of this Part of this Act shall bo deemed to be an order under sect. 57 of the Local Government Act, 1888, and any board of guardians affected by an order shall have the same right of petitioning against that order as is given by that section to any other authority. (11.) Where any of the areas referred to in sect. 57 of the Local Government Act, 1888, is situate in two or more counties, or the alteration of any such area would alter the boundaries of a poor law union situate in two or more counties, a joint com- mittee appointed by the councils of those counties shall, subject to the terms of delegation, be deemed to have and to have always had power to make orders under that section with respect to that area ; and where at the passing of this Act a rural sanitary district or parish is situate in more than one county, a joint committee of the councils of those counties shall act under this section, and if any of those councils do not, within two months after request from any other of them, appoint members of such joint committee, the members of the committee actually appointed shall act as the joint committee. Provided that any question arising as to the constitution or pro- cedure of any such joint committee shall, if the county councils concerned fail to agree, be determined by the Local Government Board. (12.) Every report made by the Boundary Commissioners under the Local Government Boundaries Act, 1887, shall be laid before the council of any administrative county or borough affected by that report, and before any joint committee of county councils, and it shall be the duty of such councils and joint committees to take such reports into consideration before framing any order under the powers conferred on them under this Act. (13.) Every county council shall, within two years after the passing of this Act, or within such further period as the Local Government Board may allow either generally or with reference to any particular matter, make such orders under this section as they deem necessary for the purpose of bringing this Act into operation, and after the expiration of the said 2 years or further period the powers of the county council for that purpose shall be transferred to the Local Government Board, who may exercise those powers. Provisions as to Parishes having Parts u-itli defined Boundaries. ~\ 37. Where it is proved to the satisfaction of the county council 512 Appendix. that any part of a parish has a defined boundary, and has any property or rights distinct from the rest of the parish, the county council may order that the consent of a parish meeting held for that part of the parish shall be required for an}" such act or class of acts of the parish council affecting the said property or rights as is specified in the order. Orders for grouping Parishes and dissolving Grotips.~\ 38. — (1.) "Where parishes are grouped, the grouping order shall make the necessary provisions for the name of the group, for the parish meetings in each of the grouped parishes, and for the election in manner provided by this Act of separate representatives of each parish on the parish council, and may provide for the consent of the parish meeting of a parish to any particular act of the parish council, and for any other adaptations of this Act to the group of parishes, or to the parish meetings in the group. (2.) Where parishes are grouped the whole area under each parish council shall, unless the county council for special reasons otherwise direct, be -within the same administrative county and county district. (3.) Where parishes are grouped, the grouping order shall provide for the application of the provisions of this Act with respect to the appointment of trustees and beneficiaries of a charity, and the custody of documents, so as to preserve the separate rights of each parish. (4.) The parish meeting of any parish may apply to the county council for a grouping order respecting that parish, and, if the parish has a less population than 200, for a parish council, and any such application shall be forthwith taken into consideration by the county council. (5.) The county council may, on the application of the council for any group of parishes or of the parish meeting for any parish included in a group of parishes, make an order dissolving the group, and shall by the order make such provision as appears necessary for the election of parish councils of the parishes in the group and for the adjustment of property, rights, and liabilities as between separate parishes and the group. Provisions for Increase and Decrease of Popidation.~] 39. — (1.) Where the population of a parish not having a separate parish council increases so as to justify the election of such council, the parish meeting may petition the county council, and the county council, if they think proper, may order the election of a parish council in that parish, and shall by the order make such provision as appears necessary for separating the parish from any group of parishes in which it is included, and for the alteration of the parish council of the group, and for the adjustment of property, rights, and liabilities as between the group and the parish with a separate parish council. Local Government Act, 1894. 513 (2.) Where the population of a parish, according to the last published census for the time being is less than 200, the parish meeting may petition the county council, and the county council, if they think proper, may order the dissolution of the parish council, and from and after the date of the order this Act shall apply to that parish as to a parish not having a parish council. The order shall make such provision as appears necessary for carrying it into effect, and for the disposal and adjustment of the property, rights, and liabilities of the parish council. Where a petition for such an order is rejected, another petition for the same purpose may not be presented within 2 years from the presentation of the previous petition. Certain Orders of County Council not to require Confirmation .1 40. A grouping order, and an order establishing or dissolving a parish council, or dissolving a group of parishes, and an order relating to the custody of parish documents or requiring the approval of the Charity Commissioners, and an order requiring the consent of the parish meeting for any part of the parish to any act or class of acts of the parish council, shall not require submission to or confirmation by the Local Government Board. Reduction of Time for appealing against County Council Orders. ~\ 41. The time for petitioning against an order under sect. 57 of the Local Government Act, 1888, shall be 6 weeks instead of 3 months after the notice referred to in sub-sect. 3 of that section. Validity of County Council Orders.~\ 42. When an order under sect. 57 of the Local Government Act, 1888, has been confirmed by the Local Government Board, such order shall at the expira- tion of 6 months from that confirmation be presumed to have been duly made, and to be within the powers of that section, and no objection to the legality thereof shall be entertained in any legal proceeding whatever. PAET IV. Supplemental. Parish Meetings and Elections. Removal of Disqualification of Married Women.'] 43. For the purposes of this Act a woman shall not be disqualified by marriage for being on any local government register of electors, or for being an elector of any local authority, provided that a husband and. wife shall not both be qualified in respect of the same property. Register of Parochial Electors.] 44. — (1.) The local government register of electors and the parliamentary register of electors, so far as they relate to a parish shall, together, form the register s. 1. I. 51 1 Appendix. of the parochial electors of the parish ; and any person whose name is not in that register shall not he entitled, to attend a meeting or vote as a parochial elector, and any person whose name is in that register shall be entitled to attend a meeting and vote as a parochial elector unless prohibited from voting by this or any other Act of Parliament. (2.) "Where the parish is in a parliamentary borough, such portion of the parliamentary register of electors for the county as contains the names of persons registered in respect of the ownership of any property in the parish shall be deemed to form part of the parliamentary register of electors for the parish within the meaning of this section. (3.) The lists and register of electors in any parish shall be framed in parts for wards of urban districts and parishes in such manner that they may be conveniently used as lists for polling at elections for any such wards. (4.) Nothing in any Act shall prevent a person, if duly quali- fied, froin being registered in more than one register of parochial electors. (5.) Where in that portion of the parliamentary register of electors which relates to a parish a person is entered to vote in a polling district other than the district comprising the parish, such person shall be entitled to vote as a parochial elector for that parish, and in addition to an asterisk there shall be placed against his name a number consecutive with the other numbers in the list. (6.) "Where the revising barrister in any list of voters for a parish would — (a) In pursuance of sect. 7 of the County Electors Act, 1888, place an asterisk or other mark against the name of any person ; or (b) In pursuance of sect. 4 of the Registration Act, 1885, erase the name of any person otherwise than by reason of that name appearing more than once in the lists for the same parish ; or (c) In pursuance of sect. 28 of the Parliamentary and Municipal Registration Act, 1878, as amended by sect. 5 of the Registration Act, 1885, place against the name of a person a note to the effect that such person is not entitled to vote in respect of the qualification contained in the list, the revising barrister shall, instead of placing that mark or note, or erasing the name, place against the name, if the person is entitled to vote in respect of that entry as a county elector or burgess, a mark signifying that his name should be printed in division 3 of the list, or if ho is entitled to vote only as a parochial elector, a mark signifying that he is entitled to be registered as a parochial elector, and the name so marked shall not be printed in the parliamentary register of electors, but shall be printed, as Local Government Act, 1894. 515 the case requires, either in division 3 of the local government register of electors, or in a separate list of parochial electors. (7.) Where the name of a person is entered both in the owner- ship list and in the occupation list of voters in the same parish, and the revising barrister places against that name a mark or note signifying that the name should be printed in division 3 of the lists, an asterisk or other mark shall be there printed against the name, and such person shall not be entitled to vote as a parochial elector in respect of that entry. (8.) Such separate list shall form part of the register of parochial electors of the parish, and shall be printed at the end of the other lists of electors for the parish, and the names shall be numbered consecutively with the other names on those lists, and the law relating to the register of electors shall, with the necessary modifications, apply accordingly, and the lists shall, for the jmrposes of this Act, be deemed to be part of such register. (9.) Any person may claim for the purpose of having his name entered in the parochial electors list, and the law relating to claims to be entered in lists of voters shall apply. (10.) The clerk of the county council or town clerk, as the case may be, shall, in printing the lists returned to him by the revising barrister, do everything that is necessary for carrying into effect the provisions of this section with respect to the persons whose names are marked by the revising barrister in pursuance of this section. Supplemental Provisions as to Parish Meetings.^ 45. — (1.) Subject to the provisions of this Act, parish meetings shall be held on such days and at such times and places as may be fixed by the parish council, or, if there is no parish council, by the chairman of the parish meeting. (2.) If the chairman of the parish council is present at a parish meeting and is not a candidate for election at the meeting, he shall, save as otherwise provided by this Act, be the chairman of the meeting. (3.) The chairman of the parish council, or any two parish councillors, or the chairman of the parish meeting, or any 6 parochial electors, may at any time convene a parish meeting. Disqualifications for Parish or District Council. ~\ 46. — (1.) A person shall be disqualified for being elected or being a member or chairman of a council of a parish or of a district other than a borough or of a board of guardians if he — (a) is an infant or an alien ; or (b) has within 12 months before his election, or since his election, received union or parochial relief ; or (c) has, within 5 years before his election or since his election, been convicted either on indictment or summarily of any crime, and sentenced to imprisonment with hard L L 2 516 Appendix. labour without tlie option of a fine, or to any greater punishment, and has not received a free pardon, or has, within or during the time aforesaid, been adjudged bankrupt, or made a composition or arrangement with his creditors ; or (d) holds any paid office under the parish council or district council or board of guardians, as the case may be ; or (e) is concerned in any bargain or contract entered into with the council or board, or participates in the profit of any such bargain or contract or of any work done under the authority of the council or board. (2.) Provided that a person shall not be disqualified for being elected or being a member or chairman of any such council or board by reason of being interested— (a) in the sale or lease of any lands or in any loan of money to the council or board, or in any contract with the council for the supply from land, of which he is owner or occupier, of stone, gravel, or other materials for making or repairing highwa} T s or bridges, or in the transport of materials for the repair of roads or bridges in his own immediate neighbourhood ; or (b) in any newspaper in which any advertisement relating to the affairs of the council or board is inserted ; or (c) in any contract with the council or board as a shareholder in any joint stock company ; but he shall not vote at any meeting of the council or board on any question in which such company are interested, except that in the case of a water company or other company established for the carrying on of works of a like public nature, this prohibition may be dispensed with by the county council. (3.) "Where a person who is a parish councillor, or is a candi- date for election as a parish councillor, is concerned in any such bargain or contract, or participates in any such profit, as would disqualify him for being a parish councillor, the disqualification may be removed by the county council if they are of opinion that such removal will be beneficial to the parish. (4.) Where a person is disqualified by being adjudged bank- rupt or making a composition or arrangement with his creditors, the disqualification shall cease, in case of bankruptcy, when the adjudication is annulled, or when he obtains his discharge with a certificate that his bankruptcy was caused by misfortune with- out any misconduct on his part, and, in case of composition or arrangement, on payment of his debts in full. (5.) A person disqualified for being a guardian shall also be disqualified for being a rural district councillor. (6.) If a member of a council of a parish, or of a district other than a borough, or of a board of guardians, is absent from meetings of the council or board for more than 6 months con- Local Gtoverxment Act, 1894. 517 secutively, except in case of illness or for some reason approved by the council or board, bis office sball on tbe expiration of those months become vacant. (7.) Where a member of a council or board of guardians becomes disqualified for holding office, or vacates his seat for absence, the council or board shall forthwith declare the office to be vacant, and signify the same by notice signed by 3 members and countersigned by the clerk of the council or board, and notified in such manner as the council or board direct, and the office shall thereupon become vacant. (8.) If any person acts when disqualified, or votes when pro- hibited under this section, he shall for each offence be liable on summary conviction to a fine not exceeding 20 pounds. (9.) This section shall apply in the case of any authority whose members are elected in accordance with this Act in like manner as if that authority were a district council, and in the case of London auditors as if they were members of a district council. Supplemental Provisions as to Parish Councils.~\ 47. — (1.) If at the annual election of parish councillors any vacancies are not filled by election, suck number of the retiring councillors as are not re-elected, and are required to fill the vacancies, shall, if willing, continue to hold office. The councillors so to continue shall be those who were highest on the poll at the previous elec- tion, or if the numbers were equal or there was no poll, as may be determined by the parish meeting, or if not so determined, by the chairman of the parisk council. (2.) A retiring parish councillor or chairman of a parisk council or parisk meeting skall be re-eligible. (3.) A parisk councillor may, by notice in writing to tke ckair- man of tke council, resign kis office, and a ckairman of a parisk council or parisk meeting may resign kis ckairmanskip by notice in writing to tke council or meeting. (4.) A casual vacancy among parisk councillors or in tke office of ckairman of tke council skall be filled by tke parisk council, and wkere tkere is no parisk council, a casual vacancy in tke office of ckairman of tke parisk meeting skall be filled by tke parisk meeting, and tke person elected skall retire from office at tke time wken tke vacating councillor or ckairman would kave retired. (5.) If any parisk council become unable to act by reason of a want of councillors, wketker from failure to elect or otkerwise, tke county council may order a new election, and may by order make suck provision as seems expedient for autkorizing any person to act temporarily in tke place of tke parisk council and of tke chairman thereof. 518 Appendix. Supplemental Provisions as to Elections, Polls, and Tenure of Office."] 48. — (1.) The election of a parish councillor shall be at a parish meeting, or at a poll consequent thereon. (2.) Rules framed under this Act by the Local Government Board in relation to elections shall, notwithstanding anything in any other Act, have effect as if enacted in this Act, and shall provide, amongst other things — (i.) for every candidate being nominated in writing by two parochial electors as proposer and seconder and no more ; (ii.) for preventing an elector at an election for a union or for a district not a borough from subscribing a nomination paper or voting in more than one parish or other area in the union or district ; (iii.) for preventing an elector at an election for a parish divided into parish wards from subscribing a nomina- tion paper or voting for more than one ward ; (iv.) for fixing or enabling the county council to fix the day of the poll and the hours during which the poll is to be kept open, so, however, that the poll shall always be open between the hours of 6 and 8 in the evening ; (v.) for the polls at elections held at the same date and in the same area being taken together, except where this is impracticable ; (vi.) for the appointment of returning officers for the elec- tions. (3.) At every election regulated by rules framed under this Act, the poll shall be taken by ballot, and the Ballot Act, 1872, and the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, and sects. 74 and 75 and Part IV. of the Municipal Cor- porations Act, 1882, as amended by the last-mentioned Act (including the penal provisions of those Acts) shall, subject to adaptations, alterations, and exceptions made by such rules, apply in like manner as in the case of a municipal election. Provided that — (a) sect. 6 of the Ballot Act, 1872, shall apply in the case of such elections, and the returning officer may, in addition to using the schools and public rooms therein referred to free of charge, for taking the poll, use the same, free of charge, for hearing objections to nomination papers and for counting votes ; and (b) sect. 37 of the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, shall apply as if the election were an election mentioned in the First Schedule to that Act. (4.) The provisions of the Municipal Corporations Act, 1882, and the enactments amending the same, with respect to the expenses of elections of councillors of a borough, and to the acceptance of office, resignation, re-eligibility of holders of office, Local Government Act, 1894. 510 and the filling of casual vacancies, and sect. 56 of that Act, shall, subject to the adaptations, alterations, and exceptions made by the said rules, apply in the case of guardians and of district councillors of a county district not a borough, and of members of the local board of Woolwich, and of a vestry under the Metropolis Management Acts, 1855 to 1890, and any Act amending the same. Provided that — (a) the provisions as to resignation shall not apply to guardians, and district councillors of a rural district shall be in the same position with respect to resignation as members of a board of guardians ; and (b) nothing in the enactments applied by this section shall authorize or require a returning officer to hold an elec- tion to fill a casual vacancy which occurs within 6 mouths before the ordinary day of retirement from the office in which the vacancy occurs, and the vacancy shall be filled at the next ordinary election ; and (c) the rules may provide for the incidence of the charge for the expenses of the elections of guardians being the same as heretofore. (5.) If any difficulty arises as respects the election of any individual councillor or guardian, or member of any such local board or vestry as aforesaid, or auditor, and there is no pro- vision for holding another election, the county council may order a new election to be held and give such directions as may be necessary for the purpose of holding the election. (6.) Any ballot boxes, fittings, and compartments provided by or belonging to any public authority, for any election (whether parliamentary, county council, municipal, school board, or other), shall, on request, and if not required for immediate use by the said authority, be lent to the returning officer for an election under this Act, upon such conditions and either free of charge or, except in the prescribed cases, for such reasonable charge as may be prescribed. (7.) The expenses of any election under this Act shall not exceed the scale fixed by the county council, and if at the be- ginning of one month before the first election under this Act a county council have not framed anv such scale for their county, the Local Government Board may frame a scale for the county, and the scale so framed shall apply to the first election, and shall have effect as if it had been made by the county council, but shall not be alterable until after the first election. (8.) This section shall, subject to any adaptations made by the said rules, apply in the case of every poll consequent on a parish meeting, as if it were a poll for the election of parish councillors. Provision as to Parish Meeting for part of Parish. ,] 49. Where a parish meeting is required or authorised in pursuance of 500 Appendix. this Act to be held for a ward or other part of a parish, then — (a) the persons entitled to attend and vote at the meeting, or at any poll consequent thereon, shall be the parochial electors registered in respect of qualifications in that ward or part ; and (b) the provisions of this Act with respect to parish meetings for the whole of a parish, including the provisions with respect to the convening of a parish meeting by parochial electors, shall apply as if the ward or part were the whole parish. Supplemental Provisions as to Overseers.^ 50. If, in the case of a rural parish or of any urban parish in respect to which the power of appointing overseers has been transferred under this Act, notice in the prescribed form of the appointment of over- seers is not received by the guardians of the poor law union comprising the parish within 3 weeks after the 15th day of April, or alter the occurrence of a vacancy in the office of overseer, as the case may be, the guardians shall make the appointment or fill the vacancy, and any overseer appointed by the guardians shall supersede any overseer previously appointed whose appoint- ment has not been notified. Any such notice shall be admissible as evidence that the appointment has been duly made. Parish and District Councils. Public Xotices.~\ 51. A public notice given by a parish council for the purposes of this Act, or otherwise for the execution of their duties, and a public notice of a parish meeting, shall be given in the manner required for giving notice of vestry meet- ings, and by posting the notice in some conspicuous place or places within the parish, and in such other manner (if any) as appears to the council or to the persons convening the meeting desirable for giving publicity to the notice. Supplemental Provisions as to Transfer of Powers.^ 52. — (1.) Any power which may be exercised and any consent which may be given by the owners and ratepayers of a parish or by the majority of them under any of the Acts relating to the relief of the poor or under the School Sites Acts or the Literary and Scientific Institutions Act, 1854, so far as respects the dealing with parish property or the spending of money or raising of a rate may, in the case of a rural parish, be exercised or given by the parish meeting of the parish. (2.) In a rural parish the power of making an application or passing a resolution given by sect. 12 of the Elementary Educa- tion Act, 1870, and by sect. 41 of the Elementary Education Act. 1876. to the electing body mentioned in the former section Local Government Act, 1894. 521 shall be transferred to the parish meeting of the parish, and shall in cases under the latter section he exerciseable by the like majority of the parish meeting, and, if a poll is taken, of the parochial electors, as is required by that section in the case of the said electing body, and rule two of the Second Part of the Second Schedule to the former Act with respect to the passing of such resolutions shall not apply. (3.) The consent of justices shall not be required for the sale of land belonging to a parish which has been used for materials for the repair of highways or for the purchase of land with the proceeds of any such scale. (4.) Where the legal estate in any property is vested in the churchwardens and overseers of any parish by virtue of the Poor Relief Act, 1819, nothing in the Charitable Trusts Acts, 18o3 to 1891, shall be deemed to require the consent of such churchwardens and overseers in their capacity as a corporation under that Act, or of the parish council as their successors, to a vesting order under those Acts dealing with the said legal estate. Provided that nothing in this section shall affect any rights, powers, or duties of the churchwardens and overseers or the parish council, in cases where they have active powers of management. (5.) All enactments in any Act, whether general or local and personal, relating to any powers, duties, or liabilities transferred by this Act to a parish council or parish meeting from justices or the vestry or overseers or churchwardens and overseers shall, subject to the provisions of this Act and so far as circumstances admit, be construed as if any reference therein to justices or to the vestry, or to the overseers, or to the churchwardens and overseers, referred to the parish council or parish meeting as the case requires, and the said enactments shall be construed with such modifications as may be necessary for carrying this Act into effect. Supplemental Provisions as to Adoptive Acts.~\ 53. — (1.) Where on the appointed day any of the adoptive Acts is in force in a part only of a rural parish, the existing authority under the Act, or the parish meeting for that part, may transfer the powers, duties, and liabilities of the authority to the parish council, subject to any conditions with respect to the execution thereof by means of a committee as to the authority or parish meeting may seem fit, and any such conditions may be altered by any such parish meeting. (2.) If the area on the appointed day under any authority under any of the adoptive Acts will not after that day be com- prised within one rural parish, the powers and duties of the authority shall be transferred to the parish councils of the rural parishes wholly or partly comprised in that area, or, if the area is partly comprised in an urban district, to those parish councils 622 Appendix. and the district council of the urban district, and shall, until other provision is made in pursuance of this Act, be exercised by a joint committee appointed by those councils. Where any such rural parish has not a parish council the parish meeting shall, for the purposes of this provision, be substituted for the parish council. (3.) The property, debts, and liabilities of any authority under any of the adoptive Acts whose powers are transferred in pur- suance of this Act shall continue to be the property, debts, and liabilities of the area of that authority, and the proceeds of the property shall be credited, and the debts and liabilities and the expenses incurred in respect of the said powers, duties, and liabilities, shall be charged to the account of the rates or con- tributions levied in that area, and where that area is situate in more than one parish the sums credited to and paid by each parish shall be apportioned in such manner as to give effect to this enactment. (4.) The county council on the application of a parish council may, by order, alter the boundaries of any such area if they consider that the alteration can properly be made without any undue alteration of the incidence of liability to rates and con- tributions or of the right to property belonging to the area, regard being had to any corresponding advantage to persons subject to the liability or entitled to the right. Effect on Parish Council of Constitution of Urban District.^ 54. — (1.) Where a new borough is created, or any other new urban district is constituted, or the area of an urban district is extended, then — (a) as respects any rural parish or part of a rural parish which will be comprised in the borough or urban dis- trict, provision shall be made, either by the constitution of a new parish, or by the annexation of the parish or parts thereof to another parish or parishes, or other- wise, for the appointment of overseers and for placing the parish or part in the same position as other parishes in the borough or district, and (b) as respects any parish or part which remains rural, pro- vision shall be made for the constitution of a new parish council for the same, or for the annexation of the parish or part to some other parish or parishes, or otherwise for the government of the parish or part, and (c) provision shall also where necessary be made for the ad- justment of any property, debts, and liabilities affected by the said creation, constitution, or extension. (2.) The provision aforesaid shall be made — (a) Where a new borough is created, by a scheme under sect. 213 of the Municipal Corporations Act, 1882 ; Local Government Act, 1894. 523 (b) Where any other new urban district is constituted, b} r an order of the county council under sect. 57 of the Local Government Act, 1888 ; (c) Where the area of an urban district is extended, by an order of the Local Government Board under sect. 54, or of the county council under sect. 57, as the case may be, of the Local Government Act, 1888. (3.) Where the area of an urban district is diminished this section shall apply with the necessary modifications. Power to change J\ T ame of District or Parish.^ 55. — (1.) Where a parish is divided or united or grouped with another parish by an order in pursuance of this Act each new parish or group so formed shall bear such name as the order directs. (2.) Where a parish is divided by this Act, each parish so formed shall bear such name as the county council direct. (3.) Any district council may, with the sanction of the county council, change their name and the name of their district. (4.) Every change of name made in pursuance of this section shall be published in such manner as the authority authorising the change may direct, and shall be notified to the Local Govern- ment Board. (5.) Any such change of name shall not affect any rights or obligations of any parish, district, council, authority, or person, or render defective any legal proceedings, and any legal proceed- ings may be continued or commeuced as if there were no change of name. Committees of Parish or District Councils. ~\ 56. — (1.) A parish or district council may appoint committees, consisting either wholly or partly of members of the council, for the exercise of any powers which, in the opinion of the council, can be properly exercised by committees, but a committee shall not hold office beyond the next annual meeting of the council, and the acts of every such committee shall be submitted to the council for their approval. Provided that where a committee is appointed by any district council for any of the purposes of the Public Health Acts or Highway Acts, the council may authorise the committee to institute any proceeding or do any act which the council might have instituted or done for that purpose other than the raising of any loan or the making of any rate or contract. (2.) Where a parish council have any powers and duties which are to be exercised in a part only of the parish, or in relation to a recreation ground, building, or property held for the benefit of a part of a parish, and the part has a defined boundary, the parish council shall, if required by a parish meeting held for that part, appoint annually to exercise such powers and duties a 524 Appendix committee consisting partly of members of the council and partly of other persons representing the said part of the parish. (3.) With respect to committees of parish and district councils the provisions in the First Schedule to this Act shall have effect. (4.) This section shall not apply to the council of a borough. Joint Committees.'] 57. — (1.) A parish or district council may concur with any other parish or district council or councils in appointing out of their respective bodies a joint committee for any purpose in respect of which they are jointly interested, and in conferring, with or without conditions or restrictions, on any such committee any powers which the appointing council might exercise if the purpose related exclusively to their own parish or district. (2.) Provided that a council shall not delegate to any such committee any power to borrow money or make any rate. (3.) A joint committee appointed under this section shall not hold office beyond the expiration of 14 days after the next annual meeting of any of the councils who appointed it. (4.) The costs of a joint committee under this section shall be defrayed by the councils by whom it is appointed in such pro- portions as they may agree upon, or as may be determined in case of difference by the county council. (5.) Where a parish council can under this Act be required to appoint a committee consisting partly of members of the council and partly of other persons, that requirement may also be made in the case of a joint committee, and shall be duly complied with by the parish councils concerned at the time of the appointment of such committee. Axidit of Accounts of District and Parish Councils and Inspection.] 58. — (1.) The accounts of the receipts and payments of parish and district councils, and of parish meetings for parishes not having parish councils, and their committees and officers, shall be made up yearly to the 31st of March, or in the case of accounts which are required to be audited half-yearly, then half-yearly to the 30th of September and the 31st of March in each year, and in such form as the Local Government Board prescribe. (2.) The said accounts shall, except in the case of accounts audited by the auditors of a borough, (but inclusive of the accounts of a joint committee appointed by a borough council with another council not being a borough council,) be audited by a district auditor, and the enactments relating to audit by district auditors of accounts of urban sanitary authorities and their officers, and to all matters incidental thereto and conse- quential thereon, shall apply accordingly, except that in the Local Government Act, 1894. 525 case of the accounts of rural district councils, their committees and officers, the audit shall be half yearly instead of yearly. (3.) The Local Government Board may, with respect to any audit to which this section applies, make rules modifying the enactments as to publication of notice of the audit and of the abstract of accounts and the report of the auditor. (4.) Every parochial elector of a rural parish may, at all reasonable times, without payment, inspect and take copies of and extracts from all books, accounts, and documents belonging to or under the control of the parish council of the parish or parish meeting. (5.) Every parochial elector of a parish in a rural district may, at all reasonable times, without payment, inspect and take copies of and extracts from all books, accounts, and documents be- longing to or under the control of the district council of the district. Supplemental Provisions as to District Councils. ~\ 59. — (1.) Sect. 199 and Schedule I. of the Public Health Act, 1875, so far as that schedule is unrepealed (which relate to the meetings of urban authorities, and to the meetings and proceedings of local boards), shall apply in the case of every urban district council other than a borough council and of every rural district council and board of guardians, as if such district council or board were a local board, except that the chairman of the council or board may be elected from outside the councillors or guardians. (2.) Any urban district council other than a borough council, and any rural district council and board of guardians may, if they think fit, appoint a vice-chairman to hold office during the term of office of the chairman, and the vice-chairman shall, in the absence or during the inability of the chairman, have the powers and authority of the chairman. (3.) Any rural district council shall be entitled to use for the purpose of their meetings and proceedings the board room and offices of any board of guardians for the union comprising their district at all reasonable hours, and if any question arises as to what hours are reasonable it may be determined by the Local Government Board. (4.) Nothing in this section shall affect any powers of the Local Government Board with respect to the proceedings of guardians. (5.) If any district council, other than a borough council, become unable to act, whether from failure to elect or otherwise, the county council of the county in which the district is situate may order elections to be held and may appoint persons to form the district council until the newly elected members come into office. (6.) Nothing in this Act shall affect any powers of the 526 Appendix. Secretary of State under the Public Health. Supplemental Act for Aldershot, 1857, or the position of persons nominated under those powers. Miscellaneous. Supplemental Provisions as to Guardians.^ 60. — (1.) The council of each county may, from time to time, by order, fix or alter the number of guardians or rural district councillors to be elected for each parish within their county, and for those pur- poses may exercise powers of adding parishes to each other and dividing parishes into wards, similar to those which by the Acts relating to the relief of the poor are, for the purpose of the election of guardians, vested in the Local Government Board. (2.) The council of each county may for the purpose of regu- lating the retirement of guardians or rural district councillors, in cases where they retire by thirds, and in order that as nearly as may be one third of the persons elected as guardians for the union, and one third of the persons elected as rural district councillors for the district, shall retire in each year, direct in which year or years of each triennial period the guardians or district councillors for each parish, ward, or other area in the union or rural district shall retire. (3.) Where a poor law union is situate in more than 1 county, the power under this section of fixing or altering the number of guardians or rural district councillors, and of regu- lating the retirement of guardians and of district councillors, shall be exercised by a joint committee of the councils of the counties concerned, but if any of those councils do not, within 2 months after request from any other of them, appoint members of such joint committee, the members of the committee actually appointed shall act as the joint committee. Provided that if any order under this sub- section is, within G weeks after the making thereof, objected to by any of the county councils concerned, or by any committee of any of those councils authorised in that behalf, it shall be of no effect until confirmed by the Local Government Board. (4.) Where under any local and personal Act guardians of a poor law union are elected for districts, whether called by that name or not, the provisions of this Act with respect to the election of guardians shall apply as if each of the districts were a parish. (5.) The board of guardians of a Union elected in pursuance of this Act shall, save as otherwise provided by an order of the Local Government Board, made on the application of those guardians, have the same powers and duties under any local and personal Act as the existing board of guardians. (6.) Nothing in this Act shall alter the constitution of the corporation of the guardians of the poor within the city of Oxford, or the election or qualification of the members thereof, Local Government Act, 1894. 527 except those members who are elected by the ratepayers of parishes. Place of Meeting of Parish or District Council or Board of Guardians.'] 61. No parish meeting or meeting of a parish council, or of a district council, or of a board of guardians shall be held in premises licensed for the sale of intoxicating liquor, except in cases where no other suitable room is available for such meeting either free of charge or at a reasonable cost. Permissive Transfer to Urban District Council of Powers of other Authorities.] 62. — (1.) Where there is in any urban dis- trict, or part of an urban district, any authority constituted under any of the adoptive Acts, the council of that district may resolve that the powers, duties, property, debts, and liabilities of that authority shall be transferred to the council as from the date specified in the resolution, and upon that date the same shall be transferred accordingly, and the authority shall cease to exist, and the council shall be the successors of that authority. (2.) After the appointed day any of the adoptive Acts shall not be adopted for any part of an urban district without the approval of the council of that district. Provisions as to County Council acquiring Poioers of District Council.] 63. — (1.) Where the powers of a district council are by virtue of a resolution under this Act transferred to a county council, the following provisions shall have effect : — (a) Notice of the resolution of the county council by virtue of which the transfer is made shall be forthwith sent to the district council and to the Local Government Board : (b) The expenses incurred by the county council shall be a debt from the district council to the county council, and shall be defrayed as part of the expenses of the district council in the execution of the Public Health Acts, and the district council shall have the like power of raising the money as for the defraying of those expenses : (c) The county council for the purpose of the powers trans- ferred may on behalf of the district council borrow subject to the like conditions, in the like manner, and on the security of the like fund or rate, as the district council might have borrowed for the purpose of those powers : (d) The county council may charge the said fund or rate with the payment of the principal and interest of the loan, and the loan with the interest thereon shall be paid by the district council in like manner, and the charge shall have the like effect, as if the loan were lawfully raised and charged on that fund or rate by the district council : 528 Appendix. (e) The county council shall keep separate accounts of all receipts and expenditure in respect of the said powers : (f) The county council may by order vest in the district council all or any of the powers, duties, property, debts, and liabilities of the county council in relation to any of the said powers, and the property, debts, and liabilities so vested shall be deemed to have been accpiired or incurred by the district council for the purpose of those powers. (2.) "Where a rural district is situate in 2 or more counties a parish council complaining under this Act may complain to the county council of the county in which the parish is situate, and if the subject-matter of the complaint affects any other county the complaint shall be referred to a joint committee of the councils of the counties concerned, and any question arising as to the constitution of such joint committee shall be determined by the Local Government Board, and if any members of the joint committee are not appointed the members who are actually appointed shall act as the joint committee. Power to act through District Council.'] 64. A county council may employ a district council as their agents in the transaction of any administrative business on matters arising in, or affecting the interests of, its own district. Saving for Harbour Powers.] 65. Where any improvement commission affected by this Act have any powers, duties, pro- perty, debts, or liabilities in respect of any harbour, the im- provement commission shall continue to exist and be elected for the purpose thereof, and shall continue as a separate body, as if this Act had not passed, and the property, debts, and liabilities shall be apportioned between the district council for the district and the commission so continuing, and the adjustment arising out of the apportionment shall be determined in manner pro- vided by this Act. Saving for Elementary Schools.'] 66. Nothing in this Act shall affect the trusteeship, management, or control of any elementary school. Transfer of Property and Debts and Liabilities.] 67. Where any powers and duties are transferred by this Act from one authority to another authority — (1.) All property held by the first authority for the purpose or by virtue of such powers and duties shall pass to and vest in the other authority, subject to all debts and liabilities affecting the same ; and (2.) The latter authority shall hold the same for the estate, interest, and purposes, and subject to the covenants, Local Government Act, 1894. 529 conditions, and restrictions for and subject to which the property would have been held if this Act had not passed, so far as the same are not modified by or in pursuance of this Act ; and (3.) All debts and liabilities of the first authority incurred by virtue of such powers and duties shall become debts and liabilities of the latter authority, and be defrayed out of the like property and funds out of which they would have been defrayed if this Act had not passed. Adjustment of Property and Liabilities.'] 68. — (1.) Where any adjustment is required for the purpose of this Act, or of any order, or thing made or done under this Act, then, if the adjust- ment is not otherwise made, the authorities interested may make agreements for the purpose, and may thereby adjust any property, income, debts, liabilities, and expenses, so far as affected by this Act, or such scheme, order, or thing, of the parties to the agreement. (2.) The agreement may provide for the transfer or retention of any property, debts, or Kabilities, with or without any con- ditions, and for the joint use of any property, and for payment by either party to the agreement in respect of property, debts, and liabilities so transferred or retained, or of such joint user, and in respect of the salary or remuneration of any officer or person, and that either by way of an annual payment or, except in the case of a salary or remuneration, by way of a capital sum, or of a terminable annuity for a period not exceeding that allowed by the Local Government Board : Provided that where any of the authorities interested is a board of guardians, any such agreement, so far as it relates to the joint use of any property, shall be subject to the approval of the Local Govern- ment Board. (3.) In default of an agreement, and as far as any such agree- ment does not extend, such adjustment shall be referred to arbitration in accordance with the Arbitration Act, 1889, and the arbitrator shall have power to disallow as costs in the arbi- tration the costs of any witness whom he considers to have been called unnecessarily, and any other costs which he considers to have been incurred unnecessarily, and his award may provide for any matter for which an agreement might have provided. (4.) Any sum required to be paid by any authority for the purpose of adjustment may be paid as part of the general expenses of exercising their duties under this Act, or out of such special fund as the authority, with the approval of the Local Government Board, direct, and if it is a capital sum the payment thereof shall be a purpose for which the authority may borrow under the Acts relating to such authority, on the security of all or any of the funds, rates, and revenues of the authority, and any such sum may be borrowed without the consent of any s. M m 530 Appendix. authority, so that it bo repaid within such period as the Local Government Board may sanction. (5.) Any capital sum paid to any authority for the purpose of any adjustment under this Act shall be treated as capital, and applied, with the sanction of the Local Government Board, either in the repayment of debt or for any other purpose for which capital money inay be applied. Power to deal with Matters arising out of Alteration of Boun- daries.'] 69. Where an alteration of any area is made by this Act, an order for any of the matters mentioned in sect. 59 of the Local Government Act, 1888, may, if it appears to the county council desirable, be made by the county council, or, in the case of an area situate in more than one county, by a joint committee of county councils, but nothing in this section shall empower a county council or joint committee to alter the boundaries of a county. Summary Proceeding for Determination of Questions as to Transfer of Powers.] 70. — (1.) If any question arises, or is about to arise, as to whether any power, duty, or liability is or is not transferred by or under this Act to any parish council, parish meeting', or district council, or any property is or is not vested in the parish council, or in the chairman and overseers of a rural parish, or in a district council, that question, without prejudice to any other mode of trying it, may, on the application of the council, meeting, or other local authority concerned, be submitted for decision to the High Court in such summary manner as, sub- ject to any rules of court, maybe directed by the Court ; and the Court, after hearing such parties and taking such evidence (if any) as it thinks just, shall decide the question. (2.) If any question arises or is about to arise under this Act as to the appointment of the trustees or beneficiaries of any charity, or as to the persons in whom the property of any charity is vested, such question shall, at the request of any trustee, beneficiary, or other person interested, be determined in the first instance by the Charity Commissioners, subject to an appeal to the High Court brought within 3 months after such determina- tion. Provided that an appeal to the High Court of Justice from any determination of the Charity Commissioners under this section may be presented only under the same conditions as are prescribed in the case of appeals to the High Court from orders made by the Charity Commissioners under the Charitable Trusts Acts, 1853 to 1891. (3.) An appeal shall, with the leave of the High Court or Court of Appeal, but not otherwise, lie to the Court of Appeal against any decision under this section. Supplemental Provisions as to County Council Orders.] 71. A copy of every order made by a county council or joint committee Local Government Act, 1894. 531 in pursuance of this Act shall be sent to the Local Government Board, and, if it alters any local area or name, also to the Board of Agriculture. Provisions as to Local Inquiries^] 72. — (1.) The expenses in- curred by the Local Government Board in respect of inquiries or other proceedings under this Act shall be paid by such authori- ties and persons and out of such funds and rates as the Board may by order direct, and the Board may certify the amount of the expenses so incurred, and any sum so certified and directed by the Board to be paid by any authority or person shall be a debt from that authority or person to the Crown. (2.) Such expenses may include the salary of any inspector or officer of the Board engaged in the inquiry or proceeding, not exceeding 3 guineas a day. (3.) The Local Government Board and their inspectors shall have for the purposes of an inquiry in pursuance of this Act the same powers as they respectively have for the purpose of an inquiry under the PubHc Health Act, 1875. (4.) Where a county council hold a local inquiry under this Act or under the Local Government Act, 1888, on the application of the council of a parish or district, or of any inhabitants of a parish or district, the expenses incurred by the county council in relation to the inquiry (including the expenses of any committee or person authorized by the county council) shall be paid by the council of that parish or district, or, in the case of a parish which has not a parish council, by the parish meeting ; but, save as aforesaid, the expenses of the county council incurred in the case of inquiries under this Act shall be paid out of the county fund. Provision as to Sundays and Ba?ik Holiday s.~\ 73. When the day on which any thing is required by or in pursuance of this Act to be done is Sunday, Christmas Day, or Good Friday, or a bank holiday, that thing shall be done on the next following day, not being one of the days above mentioned. Construction of Act.'] 75. — (1.) The definition of "parish" in sect. 100 of the Local Government Act, 1888, shall not ajqdy to this Act, but, save as aforesaid, expressions used in this Act shall, unless the context otherwise requires, have the same meaning as in the said Act. (2.) In this Act, unless the context otherwise requires — Any reference to population means the population according to the census of 1891. The expression "parochial elector," when used with refer- ence to a parish in an urban district, or in the county of London or any county borough, means any person who would be a parochial elector of the parish if it were a rural parish. M M 2 532 Appendix. The expression "election" includes both the nomination and the poll. The expression "trustees" includes persons administering or managing any charity or recreation ground, or other property or thing in relation to which the word is used. The expression "ecclesiastical charity" includes a charity, the endowment whereof is held for some one or more of the following purposes : — (a) for any spiritual purpose which is a legal purpose ; or (b) for the benefit of any spiritual person or ecclesias- tical officer as such ; or (c) for use, if a building, as a church, chapel, mission room, or Sunday school, or otherwise by any particular church or denomination ; or (d) for the maintenance, repair, or improvement of any such building as aforesaid, or for the maintenance of divine service therein ; or (e) otherwise for the benefit of any particular church or denomination, or of any members thereof as such. Provided that where any endowment of a charity, other than a building held for any of the purposes aforesaid, is held in part only for some of the purposes aforesaid, the charity, so far as that endowment is concerned, shall be an ecclesiastical charity within the meaning of this Act ; and the Charity Commissioners shall, on application by any person interested, make such pro- vision for the apportionment and management of that endowment as seems to them necessary or expedient for giving effect to this Act, The expression shall also include any building which in the opinion of the Charity Commissioners has been erected or provided within 40 years before the passing of this Act mainly by or at the cost of members of any particular church or denomination. The expression " affairs of the church " shall include the distri- bution of offertories or other collections made in any church. The expression " parochial charity " means a charity the benefits of which are or the separate distribution of the benefits of which is confined to inhabitants of a single parish, or of a single ancient ecclesiastical parish divided into two or more parishes, or of not more than 5 neighbouring parishes. The expression "vestry" in relation to a parish means the inhabitants of the parish whether in vestry assembled or not, and includes any select vestry either by statute or at common law. The expression "rateable value" means the rateable value stated in the valuation list in force, or, if there is no such list, in the last poor rate. Local Government Act, 1894. 533 The expression " county " includes a county borough, and the expression " county council " includes the council of a county borough. The expression "elementary school" means an elementary school within the meaning of the Elementary Education Act, 1870. The expression "local and personal Act " includes a Provisional Order confirmed by an Act and the Act confirming the Order. The expression " prescribed " means prescribed by order of the Local Government Board. Extent of Act.'] 76. This Act shall not extend to Scotland or Ireland. Short Title.] 77. This Act may be cited as the Local Govern- ment Act, 1894. SCHEDULES. FIEST SCHEDULE. Rules as to Parish Meetings, Parish Councils, and Committees. Part One. Rules applicable to Parish Meetings. (1.) The annual assembly of the parish meeting shall be held on some day between the 1st day of March and the 1st day of April, both inclusive, in each year. 60 Vict. c. 1. (2.) Not less than 7 clear days before any parish meeting, public notice thereof shall be given specifying the time and place of the intended meeting and the business to be transacted at the meeting, and signed by the chairman of the parish council or other conveners of the meeting. (3.) If the business relates to the establishment or dissolution of a parish council, or the grouping of a parish, or the adoption of any of the adoptive Acts, not less than 14 days notice shall be given. (4.) A parish meeting may discuss parish affairs and pass resolutions thereon. (5.) Every question to be decided by a parish meeting shall, 534 Appendix. in tlie first instance, be decided by the majority of those present and voting on the question, and the chairman shall announce his decision as to the result, and that decision shall be final, unless a poll is demanded. (G.) A poll may be demanded at any time before the conclusion of a parish meeting. (7.) A poll may be demanded by any one parochial elector in the case of a resolution respecting any of the following matters, namely : — (a) Any application, representation, or complaint to a county council or district council ; (b) The appointment of a chairman for the year or of a com- mittee, or the delegation of any powers or duties to a committee, or the approval of the acts of a committee ; (c) The appointment of an overseer, the appointment or revo- cation of the appointment or dismissal of an assistant overseer or a parish officer ; (d) The appointment of trustees or beneficiaries of a charity ; (e) The adoption of any of the adoptive Acts; (f ) The formation or dissolution of a school board ; (g) The consent or refusal of consent to any act, matter, or thing which cannot by law be done without that consent ; (h) The incurring of any expense or liability ; (i) The place and time for the assembly of the parish meeting ; (k) Any other prescribed matter ; but, save as aforesaid, a poll shall not be taken unless either the chairman of the meeting assents, or the poll is demanded by parochial electors present at the meeting, not being less than 5 in number or one third of those present, whichever number is least. (8.) In case of an equal division of votes at a parish meeting the chairman shall have a second or casting vote. (9.) Where a parish meeting is held for the election of parish councillors, opportunity shall be given at the meeting for putting questions to such of the candidates as are present, and receiving explanations from them, and any candidate shall be entitled to attend the meeting and speak thereat, but, unless he is a parochial elector, not to vote. (10.) If the chairman of the parish meeting is absent from or unwilling or unable to take the chair at any assembly of the parish meeting, the meeting may appoint a person to take the chair, and that person shall have, for the purpose of that meeting, the powers and authority of the chairman. (11.) Any notice required to be given to or served on a parish meeting may be given to or served on the chairman of the parish meeting:. Local Government Act, 1894. 535 Part Two. Rules applicable to Parish Councils. (1.) Every parish councillor shall, at the first meeting after his election, or if the council at the first meeting so permit, then at a later meeting fixed by the council, sign, in the presence of some member of the council, a declaration that he accepts the office, and if he does not sign such a declaration his office shall be void. (2.) If any casual vacancy arises in the council, the council shall forthwith be convened for filling the vacancy. (3.) The first business at the annual meeting shall be to elect a chairman and to appoint the overseers. (4.) The chairman may at any time convene a meeting of the parish council. If the chairman refuses to convene a meeting of the council after a requisition for that purpose signed by two members of the council has been presented to him, any two members of the council may forthwith, on that refusal, convene a meeting. If the chairman (without so refusing) does not within 7 days after such presentation, convene a meeting, any two members of the council may, on the expiration of those 7 days, convene a meeting. (5.) Three clear days at least before any meeting of a parish council notice thereof, specifying the time and place of the in- tended meeting and the business to be transacted at the meeting, and signed by or on behalf of the chairman of the parish council or persons convening the meeting, shall be given to every member of the parish council, and in case of the annual meeting notice specifying the like particulars shall be given to every member of the parish council immediately after his election. (6.) Any notice required by law to be given to the chairman or any other member of the parish council may be left at or sent by post to the usual place of abode of such chairman or member. (7.) No business shall be transacted at any meeting of a parish council unless at least one third of the full number of members are present thereat, subject to this qualification, that in no case shall the quorum be less than 3. (8.) The names of the members present at any meeting of the parish council, as well as of those voting on each question on which a division is taken, shall be recorded, so as to show whether each vote given was for or against the question. (9.) Every question at a meeting of a parish council shall be decided by a majority of votes of the members present and voting on that question. (10.) In case of an equal division of votes the chairman of the meeting shall have a second or casting vote. (11.) The parish council may, if they think fit, appoint one 536 Appendix. of their number to be vice-chairman, and the vice-chairman shall, in the absence or during the inability of the chairman, have the powers and authority of the chairman. (12.) The proceedings of a parish council shall not be invali- dated by any vacancy among their members, or by any defect in the election or qualification of any members thereof. (13.) A parish council shall hold not less than 4 meetings in each year, of which one shall be the annual meeting and every such meeting shall be open to the public unless the council other- wise direct. (14.) Every cheque or other order for payment of money by a parish council shall be signed by 2 members of the council. (15.) Any notice required to be given to or served on a parish council may be given to or served on the clerk to the parish council. (16.) The parish council may appear before any court or in any legal proceeding by their clerk or by any officer or member authorised generally or in respect of any special proceeding by resolution of the council, and their clerk or any member or officer shall, if so authorised, be at liberty to institute and carry on any proceeding which the parish council are authorised to institute and carry on. Part Three. General. (1.) Minutes of the proceedings of every parish council and parish meeting shall be kept in a book provided for that purpose. (2.) A minute of proceedings at a meeting of a parish council, or of a committee of a parish or district council, or at a parish meeting, signed at the same or the next ensuing meeting by a person describing himself as or appearing to be chairman of the meeting at which the minute is signed, shall be received in evidence without further proof. (3.) Until the contrary is proved, every meeting in respect of the proceedings whereof a minute has been so made shall be deemed to have been duly convened and held, and all the mem- bers of the meeting shall be deemed to have been duly qualified ; and where the proceedings are proceedings of a committee, the committee shall be deemed to have been duly constituted, and to have had power to deal with the matters referred to in the minutes. (4.) Any instrument purporting to be executed under the hands or under the hands and seals of the chairman and of two other members of a parish council or of a parish meeting shall, until the contrary is proved, be deemed to have been duly so executed. (5.) Subject to the provisions of this Act, a parish council may make, vary, and revoke standing orders for the regulation Local Government Act, 1894. 537 of their proceedings and business, and of the proceedings and business at parish meetings for a rural parish having a parish council. (6.) Where there is no council for a rural parish, the parish meeting may, subject to the provisions of this Act, regulate their own proceedings and business. Part Four. Proceedings of Committees of Parish or District Councils. (1.) The quorum, proceedings, and place of meeting of a committee, whether within or without the parish or district, and the area (if any) within which the committee are to exercise their authority, shall be such as may be determined by regula- tions of the council or councils appointing the committee. (2.) Subject to such regulations, the quorum, proceedings, and place of meeting, whether within or without the parish or district, shall be such as the committee direct, and the chairman at any meeting of the committee shall have a second or casting vote. SECOND SCHEDULE. Enactments Eepealed. Session and Chapter. 54 Geo. 3, c. 91. 58 Geo. 3, c. 69. 59 Geo. 3, c. 85. 1 & 2 Will. 4, c. 60. Short Title. An Act to amend so much of an Act passed in the 43rd year of Her late Ma j esty Queen Eliza- beth, as concerns the time for appointing overseers of the poor. The Vestries Act, 1818. The Vestries Act, 1819. The Vestries Act, 1831, Extent of Repeal. The whole Act, so far as it relates to rural parishes. Sects. 1, 2, 3, and 4, so far as they relate to parish meetings and parish councils under this Act. The whole Act, so far as it relates to parish meetings under this Act. The whole Act, so far as it relates to parish meetings under this Act, except sect. 39. 538 Appendix. Session and Chapter. 4 & 5 Will. 4, c. 76. 5 & 6 Will. 4, c. 50. 7 WiU. 4 & 1 Vict. c. 45. & 6 Vict, c. 57. 7 & 8 Vict, c. 101. 13 & 14 Vict. c. 57. 14 & 15 Vict, c. 105. 16 & 17 Vict, c. 65. Short Title. The Poor Law Amend ment Act, 1834. The Highway 1835. Act, The Parish Act, 1837. Notices The Poor Law Amend- ment Act, 1842. The Poor Law Amend- ment Act, 1844. The Vestries Act, 1850. The Poor Law Amend- ment Act, 1851. The Vestries Act, 1853. Extent of Bepeal. In sect. 38, the words "and the said guardians shall be elected by the ratepayers and by such owners of property in the parishes forming such union as shall in manner hereinafter mentioned require to have their names entered as entitled to vote as owners in the books of such parishes respectively"; and from " and also fix a qualification " to "for the ensuing year shall be chosen"; and from "and every justice of the peace" to "as such elected guardians" ; and from " Provided also" to the end of the section. Sect. 39, from " and every justice " to the end of the section. In sect. 40, the words " In all cases of the election of guardians under this Act or." Sect. 41. Sect. 48 from "Provided always" to the end of the section, so far as the words repealed relate to the office of parish or district councillor or guardian. In sect. 48, the words "with the con- sent in writing of the justices of the peace at a special sessions for the highways ' ' and the words ' ' at and for such price as the said justices may deem fair and reasonable." Sect. 3, so far as it relates to notices by parish councils and notices of parish meetings under this Act. Sect. 8, sect. 11, from "and in every case," to the end of the section, and sect. 15. Sects. 17, 20, and 24, and sect. 61 from " and wherever any such collector " to "provisions of this Act." Sects. 6, 7, 8, and 9, so far as they relate to parish meetings under this Act, Sect. 2 and sect. 3. The whole Act, so far as it relates to parish meetings under this Act. Local Government Act, 1894. )39 Session and Chapter. 18 & 19 Vict, c. 120. 19 & 20 Vict. c. 112. 23 & 2-1 Vict. c. 30. 25 & 26 Vict. c. 102. 25 & 26 Vict, c. 103. 30 & 31 Vict, c. 6. 30 & 31 Vict c. 106. 31 & 32 Vict. c. 122. 38 & 39 Vict, c. 55. Short Title. The Metropolis Man- agement Act, 1855. The Metropolis Man- agement Amendment Act, 1856. The Public Improve- ments Act, 1860. The Metropolis Man- agement Amendment Act, 1862. The Union Assessment Act, 1862. The Metropolitan Poor Act, 1867. The Poor Law Amend- ment Act, 1867. The Poor Law Amend- ment Act, 1868. The Public Health Act, 1875. Extent of Repeal. Sect. 6. Sects. 13 to 27. In sect. 30 the words " or custom." Sect. 54. In sect. 235 the words "under this Act," where they secondly occur. Sects. 6, 7) and 8. In sect. 4 the words " in value." Sect. 36; and sect. 40 from "by rating " to "of such parish." In sect. 2, the words ' ' consisting partly of ex -officio and partly of elected guardians," and from "Pro- vided always ' ' to the end of the section. In sect. 5, the words " ex -officio or elected," in both places where they occur, and the words, "as the case may be." Sect. 79. Sects. 4,5, 6, and 9, sect. 10 so far as it relates to elections of guardians, and sect. 12. Sect. 4, from "and the powers" to the end of the section. Sect. 8 from "and the number" to the end of the section. In sect. 9, from "Provided that (1) An ex- ofEcio guardian " to " situated in an urban district" (being the provi- soes) ; and the words "from owners or occupiers of property situated in the rural district of a value sufficient to qualify them as elective guardians for a union," and from " Subject to the provisions of this Act" to the end of the section . Sect. 200, except so far as it applies to boroughs; sects. 201 and 204, sect. 248, except so far as it relates to overseers, and sect. 312. So much of Schedule I. as relates to committees, and Schedule II. 540 Session and Chapter. Appendix. 39 & 40 Vict. c. 61. 39 & 40 Vict. c. 79. 47 & 48 Vict. c. 70. 3 & 49 Vict. c. 53. 55 & 56 Vict. c. 53. Short Title. Extent of PLepeal. The Divided Parishes Sect. 6, from "The meeting of in- and Poor Law habitants" to the end of the section, Amendment Act,i so far as it relates to rural parishes. 1876. Sect. 8 to "no alteration," except as to cases -where a parish is dealt with by order of the Local Govern- ment Board. The Elementary Edu- In sect. 7 the words " so however that cation Act, 1876. in the case of a committee appointed by guardians one-third at least shall consist of ex-officio guardians, if there are any and sufficient ex- officio guardians." The Municipal Elec- Sect. 36, from " (h) The Local Govern- tions (Corrupt and ment Board" to "validity of any Illegal Practices) Act, vote." 1884. The Public Health Sects. 3 and 4. (Members and Officers) Act, 1885. The Public Libraries Sub-sect. 3 of sect. 1. Act, 1892. iThe First Schedule so far as it applies j to rural parishes. THE PARISH COUNCILLORS ELECTION ORDER, 1898. Dated January 1, 1898. After reciting those sections of the Local Government Act, 1894, which bear upon the subject, the Order states that the Board, in pursuance of the powers thereby given to them, have framed the following rules for conducting the annual election of parish councillors in any year in each parish in England and Wales for the time being entitled to elect a parish council : — Day and Hour of Parish Meeting for Election. 1. — (1.) The parish meeting for the annual election of parish councillors in any year shall be held on the day prescribed for the purpose by the First Schedule to this Order. (2.) The meeting shall be held at such hour, not being earlier than 6 o'clock in the evening, as may be fixed by the chairman of the parish council. Notice of Parish Meeting. 2. The chairman of the parish council shall sign and publish public notice of the parish meeting, in accordance with Rule 41 of this Order, not less than 7 clear days before the day for the meeting, and such notice shall be in the Form No. 1 in the Second Schedule to this Order, or in a form to the like effect. If Chairman is unable to act. 3. If the chairman of the parish council, from illness or other sufficient cause, is unable to discharge the duties devolving on him under Rules 1 and 2 of this Order, or if there is no such chairman, such duties shall be discharged by the clerk to the parish council, or, if there is no such clerk, by the overseers of the parish. Nomination Papers to be provided. 4. The returning officer as defined by Rule 20 shall provide nomination papers for the office of parish councillor, and shall furnish the clerk to the parish council, or, if there is no such clerk, the overseers, with a supply thereof. Any parochial elector may obtain nomination papers from either the returning officer or from the clerk to the parish council or the overseers, as the case may be, free of charge. 542 Appendix. Nomination of Candidates. 5. — (1.) Each, candidate for election as a parish, councillor shall be nominated in writing. (2.) The nomination paper shall state the surname and the other name or names in full of the candidate and his place of abode and description, and whether he is qualified as a parochial elector or by residence. It shall be signed by two parochial electors of the parish, or, if the parish is divided into wards, of the ward, as proposer and seconder, and no more, and shall state their respective places of abode. It shall be in the Form set out in the notice in Form No. 1 in the Second Schedule to this Order, or in a form to the like effect. (3.) The name of more than one candidate shall not be in- serted in any one nomination paper. (4.) Any parochial elector of the parish may sign as many nomination papers as the number of parish councillors to be elected, but no more : Provided that if the parish is divided into wards for the election of parish councillors, a parochial elector shall not sign nomination papers for more than one ward, and shall not sign a larger number of nomination papers than the number of parish councillors to be elected for the ward. (5.) If any parochial elector shall sign a larger number of nomination papers than the number of parish councillors to be elected for the parish or ward, such of the nomination papers signed by him as are first received by the chairman of the meeting, up to the number of parish councillors to be so elected, shall alone be valid. Nomination Papers to be handed to Chairman at Meeting. 6. The chairman shall ask at the meeting that nomination papers be handed in to him, and they shall be handed in accord- ingly. He shall number them in the order in which they are received by him ; and the first valid nomination paper received by him for a candidate shall be deemed to be the nomination of that candidate. If Chairman is a Candidate. 7. If the chairman is nominated for election, and he does not forthwith withdraw his candidature, he shall call upon the meeting to elect some other person as chairman. The meeting shall forth- with proceed to elect some other person as chairman of the meet- ing, and as soon as such other person is elected he shall become the chairman of the meeting, and the original chairman shall vacate the chair. Dealing with Nomination Papers bg Chairman. 8. — (1.) When it shall appear to the chairman that all the nomination papers have been handed in, and not less than 15 Parish Councillors Election. 543 minutes shall have elapsed since he took the chair, he shall state to the meeting the names of the candidates in the alphabetical order of their surnames, and also their places of abode and descriptions, and the names and places of abode of their proposers and seconders. Before making such statement, the chairman shall, as regards each candidate, decide whether he has been nominated by a valid nomination paper. After such statement has been made, no other nomination papers shall be received, except as provided by Rule 10. The decision of the chairman that a nomination paper is valid, that is to say, that it has been properly filled up and signed by two parochial electors, shall be final and shall not be questioned in any proceeding whatever. (2.) If the chairman shall decide that a nomination paper is invalid, he shall forthwith put a note on the nomination paper to this effect, stating the grounds of his decision, and shall sign such note and state the effect of it to the meeting. Questions to Candidates. 9. After making the statement referred to in Rule 8, the chairman shall give opportunity for putting questions to such of the candidates as have been duly nominated and are present at the meeting, and for receiving explanations from them. Withdrawal of Candidates. 10. — (1.) Before the names of the candidates are put to the meeting, or if, under Rule 1 1 , the names are not required to be put to the meeting, before the chairman declares the names of the candidates elected, any candidate may withdraw his candida- ture. Any such withdrawal shall be in writing signed by the candidate, and shall be handed to the chairman ; or if the candidate is present at the meeting, he may by word of mouth declare that he withdraws his candidature, and the chairman shall thereupon write "candidature withdrawn" on the back of the nomination paper, and the candidate shall sign his name or initials thereto. Except as aforesaid no candidature shall be withdrawn at the meeting. (2.) Provided that if by such withdrawals the number of candidates is reduced below the number of persons to be elected, the chairman shall, if desired by any parochial elector present at the meeting, allow a reasonable time at the meeting during which further nomination papers may be handed in to him. (3.) If any such further nomination papers are handed in to the chairman, he shall make a statement to the meeting with regard to them, and shall decide as to their validity, as provided by Rule 8 with reference to the nomination papers first received ; and if any of the candidates so nominated are decided by him to have been duly nominated, he shall give opportunity for putting questions to such of them as are present at the meeting and for 544 Appendix. receiving explanations from them. The provisions of paragraph ( 1 ) of this Rule shall also apply to such candidates. If Number of Candidates does not exceed Number of Persons to be elected. 11. If the candidates (including those whose nominations are handed in under paragraphs (2) and (3) of Rule 10) whose nominations respectively the chairman decides to be valid and whose respective candidatures are not withdrawn, are not more in number than the persons to be elected, such candidates shall be deemed to be duly elected, and shall be declared by the chair- man to be elected. If Number of Candidates exceeds Number of Persons to be elected. 12. If the candidates (including those whose nominations are handed in under paragraphs (2) and (3) of Rule 10) whose nominations respectively the chairman decides to be valid and whose respective candidatures are not withdrawn, are more in number than the persons to be elected, the chairman shall put separately to the meeting the names of the several candidates in the alphabetical order of their surnames, and shall take the votes by show of hands in favour only of each candidate. 13. The chairman shall count the votes given in favour only of each candidate, and when the names of all the candidates have been put to the meeting and the votes in their favour have been taken and counted, he shall state to the meeting the number of votes given for each candidate, and that, subject to a poll being demanded and having to be taken, he declares to be elected the candidates (up to the total number to be elected) whom he names and who have obtained the largest number of votes. Poll may be demanded. 14. The chairman shall then ask whether a poll is demanded, and shall state that under Rule (7) of part one of the First Schedule to the Local Government Act, 1894, a poll cannot be taken unless either he assents, or the poll is demanded by parochial electors present at the meeting not being less than 5 in number or one-third of those present, whichever number is least. 15. — (1.) After the chairman has made such statement as is mentioned in Rule 14, a demand may be made that a poll shall be taken as to which of the persons whose names have been put to the meeting by the chairman shall be elected, and if either the chairman assents, or the poll is demanded by parochial electors present at the meeting, not being less than 5 in number or one- third of those present, whichever number is least, he shall direct a poll to be taken accordingly, subject to Rule 25, unless before Parish Councillors Election. 545 the close of the meeting the demand for a poll is withdrawn either by all the parochial electors who made it, or by snch number of them that the number remaining is less than 5 or than one-third of those present when the demand was made, whichever number is least : Provided that if some only of the parochial electors who made the demand withdraw it, and the number remaining is less than 5 or than one-third of those present when the demand was made, whichever number is least, the assent of the chairman to the withdrawal shall be required. (2.) The business relating to the election shall be the first business transacted at the meeting, and shall be completed with- out adjournment, and the chairman shall allow at least 10 minutes to elapse after he has made the statement nientioned in Rule 14, before the meeting shall be closed. Statement to be sent to Returning Officer. 16. — (1.) The chairman shall certify under his hand the names and place of abode of each of any candidates declared by him to be elected under Rule 11, or in case a poll was not demanded, or if it was demanded and directed to be taken the demand was withdrawn, the names and place of abode of each of any candi- dates declared by him to be elected under Rule 13. Such certifi- cate shall be in the Form No. 2 in the Second Schedule to this Order, or in a form to the like effect. (2.) Not later than 4 o'clock in the afternoon of the day next but one after the meeting, the chairman shall, if the candidates were elected under Rule 11 or Rule 13, cause a copy of his certificate to be delivered at the office of the returning officer ; or if a poll was demanded and directed to be taken, and the demand was not withdrawn, he shall cause to be delivered at the office of the returning officer a statement in writing under his hand of the names of the candidates in respect of whom the poll has to be taken, with the first valid nomination paper of each such candi- date annexed thereto. He shall at the same time forward to the returning officer the other nomination papers, and inform him of the names of any of the candidates whose nominations he decided to be invalid, or whose candidature was withdrawn at the meeting. Candidates to be informed of their Nomination. 17. If a poll was demanded and directed to be taken, and the demand was not withdrawn, the chairman shall, on the day after the meeting, send notice by post or otherwise to each candidate whose name has been put to the meeting that he has been nominated, and that a poll has been demanded. If no Poll, Chairman's Declaration final. 18. If as the result of the proceedings of the meeting, a poll has not to be taken, the declaration of the chairman as to the S. N N 54G Appendix. election of the candidates who have received the largest number of votes shall he final, and shall not be questioned in any pro- ceeding- whatever on the ground that the persons declared to be elected, or any of them, were not duly elected by a majority of lawful votes. If no Poll, Names of Persons elected to be published. 19. If a poll has not to be taken, the chairman, as early as practicable after the meeting, shall, by public notice in accordance with Rule 41 of this Order, publish his certificate under Rule 16 of the names and place of abode of each of the persons elected, and inform each of the persons elected of the fact of his election. Returning Officer. 20. — (1.) The clerk to the rural district council of the rural district in which the parish is situate, or if there is more than one such clerk, then the person who acts as such clerk for the purposes of the Public Health Act, 1875, shall be the returning officer. (2.) If the clerk is unwilling to act as returning officer, or if the office of clerk is vacant at the time when any duty relative to the election has to be performed by the returning officer, or if the clerk from illness or other sufficient cause is unable to perform such duty, the rural district council shall appoint some other person to act as returning officer or to perform such of the duties of the returning officer as then remain to be performed, as the case may be, but the same person shall in all cases be the return- ing officer at the election of the parish councillors and of any rural district councillors to be elected at the same date in the parish. (3.) The clerk to the rural district council or the acting clerk shall, as early as practicable, give notice to the clerk to the parish council, or, if there is no such clerk, to the overseers of the parish, as to whether he himself will act as returning officer, or whether some other person has been appointed to act as such officer, and if so, as to the name of such person. (4.) The returning officer shall appoint some place within the union or rural district in which the parish is situate as an office for the purposes of the election, and shall give notice thereof to the clerk to the parish council, or, if there is no such clerk, to the overseers of the parish. (5.) The returning officer may, in writing, appoint a fit person to bo his deputy for all or any of the purposes relating to the electing of parish councillors, and shall appoint such a deputy in the case and for the purposes mentioned in Rule 31 of this Order. A deputy returning officer shall have all the powers, duties, and liabilities of the returning officer in relation to the matters in respect of which he is appointed as deputy. Parish Councillors Election. 547 (6.) The same person shall act a deputy returning officer in respect of the election both of parish councillors and of any- rural district councillors to be elected at the same date in the parish. Day and Hours of Poll. 21. — (1.) The poll, if any, shall be held on the day prescribed for the purpose by the First Schedule to this Order. (2.) The hours during which the poll shall be open shall be such as shall be fixed by the county council by any general or special Order, or, if no such Order is in force in the parish, then such hours as were applicable at the last ordinary election of parish councillors or rural district councillors in the parish, so, however, that the poll shall always be open between the hours of 6 and 8 in the evening. (3.) Provided that the day of any poll for the election of parish councillors and of any rural district councillors to be elected at the same date for the parish, and the hours during which any poll for such elections shall be open, shall be the same. Polling Districts. 22. — (1.) (a) If the parish is divided into polling districts for the election of county councillors or of rural district councillors, the whole of each such district being comprised in the parish, and the lists of parochial electors are made out in separate parts for such districts, each district shall be a polling district for the election of parish councillors. (b) If the parish is not so divided, but is divided into wards for the election of rural district councillors, each of the wards shall be a polling district for the election of parish councillors. (c) If neither paragraph (a) nor paragraph (b) of this Rule applies to the parish, the returning officer may, if he thinks fit, divide the parish into polling districts for the election of parish councillors, but each of such districts shall consist of an area for which a separate list of parochial electors will be available : Provided that the parish shall not be divided into polling districts if the population thereof, according to the census last published, is not 300 or upwards. (d) The polling districts for the election of parish councillors and of any rural district councillors to be elected at the same date for the parish shall be the same. (2.) If the parish is divided into polling districts, each elector shall give his vote in the polling district in which the property in respect of which he is entitled to vote is situate, and if it is situate in more than one polling district, he may vote in any one (but in one only) of the polling districts in which it is situate. N N 2 548 Appendix. Polling Places and Stations. 23. The returning officer shall determine the number and situation of the polling places and polling stations. Provided as follows : — (a) No premises licensed for the sale of intoxicating liquor shall be used for a polling station ; (b) The same polling stations shall be used for the election of parish councillors and of any rural district coun- cillors to be elected at the same date in the parish ; (c) Where the number of parochial electors in the parish, or (if the parish is divided into polling districts) in any polling district, is not more than 500, only one polling station shall, unless the county council other- wise direct, be provided for the parish or polling district ; and so on for each additional 500 parochial electors, or for any less number of electors over and above the last 500. Withdrawal of Candidates after Meeting. 24. Any candidate whose name has been put to the parish meeting may, within the time prescribed for the purpose by the First Schedule to this Order, withdraw his candidature by delivering or causing to be delivered at the office of the returning officer a notice in writing of such withdrawal, signed by him. If Number of Candidates is reduced to Number of Persons to be elected. 25. — (1.) If by the withdrawal of any candidates as provided by Rule 24, the number of candidates is reduced to a number not exceeding the number of persons to be elected, or if the number of candidates is otherwise so reduced, the returning officer shall give public notice in the parish, in accordance with Rule 41 of this Order, to this effect, stating that no poll will be held, and declaring the remaining candidates to be elected. (2.) The returning officer shall forthwith send, by post or otherwise, a copy of such notice to the clerk to the parish council, or if there is no such clerk, to the chairman of the parish meeting, and in either case to each of the persons whom he shall have declared to be elected. (3.) The notice shall be in the Form No. 3 in the Second Schedule to this Order, or in a form to the like effect. Notice of Poll. 26. — (1.) If a poll has to be taken, the returning officer shall, within the time prescribed by the First Schedule to this Order, Parish Councillors Election. 549 give public notice thereof in accordance with Eule 41 of this Order. The notice shall specify — (a) the day and hours fixed for the poll ; (b) the number of parish councillors to be elected ; (c) the names, place of abode, and description of each candi- date whose name was put to the parish meeting, and who has not since withdrawn his candidature ; (d) the names of the proposer and seconder who signed the nomination paper of each candidate ; (e) a description of the polling districts, if any; and (f) the situation and allotment of the polling places and polling stations, and the description of the persons entitled to vote thereat. (2.) The notice shall be in the Form No. 4 in the Second Schedule to this Order or in a form to the like effect. (3.) If polls are to be taken in the parish as to election of both parish councillors and rural district councillors, the returning officer may, if he thinks fit, give one notice only for both polls, and such notice shall be in the Form No. 5 in the Second Schedule to this Order, or in a form to the like effect. Presiding Officers. 27. The returning officer, or some person appointed by him for the purpose, shall preside at each polling station. The person presiding at any polling station shall be called the pre- siding officer. Provided as follows : — (a) At any polling station the same person shall act as pre- siding officer for the election of parish councillors and of any rural district councillors to be elected at the same date in the parish. (b) In making appointments under this Eule, the returning officer shall, as far as practicable, secure the services of suitable persons resident in the parish, so as to diminish expense. Compartments of Polling Stations. — Ballot Papers. 28. The returning officer shall furnish every polling station with a sufficient number of compartments in which the voters can mark their votes screened from observation, and shall furnish each presiding officer with such number of ballot papers as may be necessary for effectually taking the poll at the election. Polling Agents. 29. If there are only two candidates, each of them may, in writing, appoint one polling agent for each polling station, who may be paid or unpaid. If there are more than two candidates, any number of candidates, being not less than one-third of the 550 Appendix. whole number of candidates, may, in writing, appoint one polling agent for each polling station, who may be paid or unpaid. Any such appointment shall be delivered at the office of the returning officer not less than 2 clear days before the day of the poll. Except as aforesaid, no polling agent, whether paid or unpaid, shall be appointed for the purposes of the election. Questions to Elector. 30. — (1.) The presiding officer may, and if required by any parochial elector of the parish, or any polling agent appointed under Rule 29, shall, put to any elector at the time of his applying for a ballot paper, but not afterwards, the following questions, or one of them, and no other : — (a) Are you the person entered in the parochial register for this parish [or ward] as follows [read the whole entry from the register^ ? (b) Have you already voted at the present election for parish councillors for this parish [add, in case of an election for a ward, in this or any other ward] ? (2.) A person required to answer either of these questions shall not receive a ballot paper or be permitted to vote until he has answered it. Counting the Votes. 31. — (1.) The returning officer, when he does not act as a presiding officer, shall appoint the presiding officer or some one of the presiding officers to act as deputy returning officer as regards the custody and opening of the ballot boxes, the counting and recording of the votes, and the declaration of the number of votes given for each candidate and of the election of the candidates to whom most votes have been given. The person so appointed shall, in addition to his other powers and duties, have all the powers and duties of the returning officer in relation to the decision of any question as to any ballot paper and otherwise as to the ballot papers. (2.) The same person shall act as deputy returning officer in respect of the election both of parish councillors and of any rural district councillors to be elected at the same date for the parish. (3.) The votes shall be counted in the parish or in some place near thereto as soon as practicable after the close of the poll. Equality of Votes. 32. If an equality of votes is found to exist between any of the candidates and the addition of a vote would enable any of such candidates to be declared elected, the returning officer, or deputy returning officer, as the case may be, may, if a parochial elector of the parish, give such additional vote in writing, but shall not otherwise be entitled to vote at the election. If in such Parish Councillors Election. 551 a case the returning 1 officer or deputy returning officer, as the case may be, is not a parochial elector of the parish, or is unwilling to vote, he shall determine by lot which of the candidates whose votes are equal shall be elected. Declaration of Result of Poll. 33. — (1.) The declaration of the result of the poll. shall be in the Form No. 6 in the Second Schedule to this Order, or in a form to the like effect. (2.) The returning officer, or deputy returning officer, as the case may be, making the declaration shall forthwith cause a copy of it to be affixed on the front of the building in which the votes have been counted, and another copy to be sent, by post or otherwise, to the clerk to the parish council, or, if there is no such clerk, to the chairman of the parish meeting. If the declaration is made by a deputy returning officer, he shall also forthwith send it to the returning officer. Publication of Result of Poll, 34. The returning officer shall cause public notice to be given, in accordance with Rule 41 of this Order, of the result of the poll as declared. The notice shall, subject to the notice prefixed to the Form No. 7 in the Second Schedule to this Order, be in that form or in a form to the like effect. Application and Adaptation of Ballot Act, 1872. 35. — (1.) The provisions of the Ballot Act, 1872, which, with adaptations and alterations, are set out in the Third Schedule to this Order, and only such provisions of that Act, shall, subject to such adaptations and alterations, apply to the election in like manner as in the case of a municipal election : (2.) Provided as follows : — (a) Such application shall be subject to the provisions of this Order. (b) If an election of parish councillors and of any rural district councillors is held in the parish at the same date, one ballot box may, if the returning officer thinks fit, be used for the two elections ; but, if separate ballot boxes are used for the two elections respectively, no vote for parish councillors shall be rendered invalid by the ballot paper being placed in the box intended for the reception of ballot papers for any rural district councillors. (c) The ballot papers used at the election of parish coun- cillors for the parish shall be of a different colour from that of any ballot papers used in the election of any rural district councillors held in the parish at the same date. 552 Appendix. Adaptation q/' Municipal Corporations Act, 1882. 36. — (1.) The provisions of sects. 74 and 75 of the Municipal Corporations Act, 1882, which, with adaptations and alterations, are set out in the Fourth Schedule to this Order, shall, subject to such adaptations and alterations, apply to the election. (2.) In the application to the election of Part IV. of the Municipal Corporations Act, 1882 (relating to corrupt practices and election petitions), as amended by the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, the following adapta- tions and alterations shall have effect : — (a) Such application shall be subject to the provisions of this Order. (b) References to the election of parish councillors shall be deemed to be substituted for references to a municipal election, or to an election to a corporate office. "Parish," and in sect. 93 (2) "Poor Law Union," shall be deemed to he substituted for " borough," "poor rate of the parish" shall be substituted for " borough fund or borough rate," the returning officer shall be substituted for the town clerk, the term "returning officer" in sect. 88 (2) shall include the chairman of a parish meeting held for the election of parish councillors, and " voter " shall mean a parochial elector or a person who votes or claims to vote at an election of parish councillors. (c) In the application of sub-sect. (2) of sect. 89 such sub- section shall be adapted and altered so as to read as follows : — "(2.) The security shall be to the amount of 50/., unless in any case the High Court or a judge thereof, on summons, order that the same be to a lesser amount, or to a larger amount not exceeding 3001., and shall be given in the prescribed manner either by a deposit of money or by recognisance entered into by not more than 4 sureties, or partly in one way and partly in the other." Adaptation of the Municipal Elections ( Corrupt and Illegal Practices) Act, 1884. 37. In the application of the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, to the election, the following provisions shall have effect : — (1.) Such application shall be subject to the provisions of this Order. (2.) The expressions "parish or ward of a parish," "return- ing officer of parish council," and " poor rate " shall be deemed to be substituted in the Act for " borough or ward," "town clerk," and "borough fund or rate" respectively. Parish Councillors Election. 553 (3.) The expression "corporate office" in the Act shall mean "the office of parish councillor," and "a municipal election" shall mean "an election of parish councillors," and the expressions "municipal election court," "muni- cipal election list," and "municipal election petition" shall be construed accordingly. (4.) So much of sect. 13 of the Act as permits 1 polling agent to be employed in each polling station shall not apply, except so far as the employment of polling agents is permitted by Rule 29 of this Order. (5.) An election petition complaining of the election on the ground of an illegal practice may be presented at any time within 6 weeks after the day of election. (6.) A petition relating to the election of a parish councillor may be tried at any place within the poor law union in which the parish is situate. (7.) Nothing in the Act shall render it unlawful to hold a meeting for the purpose of promoting or procuring the election of a candidate to the office of parish councillor, on any licensed or other premises not situate in an urban district, or in the administrative county of London. (8.) In sect. 34 of the Act "burgess roll " shall mean " register of parochial electors." (9.) Sect. 37 of the Act shall be read as if a reference to an election of parish councillors was substituted for a reference to any of the elections mentioned in the First Schedule to the Act. Expenses. 38. — (1.) Any expenses properly incurred by the chairman of the parish meeting in the execution of this Order shall be deemed to be part of the expenses of the parish meeting, and shall be defrayed accordingly. (2.) If a poll for the election of parish councillors and of rural district councillors is taken at the same date in the parish, one half of any expenses which may be payable in respect of the two polls jointly, including the remuneration of any officers employed in the conduct thereof, shall be deemed to have been incurred in relation to the poll for the election of parish councillors, and shall be defrayed accordingly. If Parish in more than one County. 39. If a parish is situate in more than one administrative county, it shall for the purposes of this Order be deemed to be wholly situate in the county which, according to the census last published, contains the larger part of its population. 554 Appendix. Wards. 40. — (1.) If the parish is divided into wards for the election of parish councillors, the Pules in this Order shall apply to each of such wards as if it were a parish. (2.) Provided that if the parish is so divided, an elector shall not be permitted to vote in more than 1 ward. Publication of Notices. 41. Any public notice required by this Order shall be given by posting the same on or near the principal door of each church and chapel in the parish, and in some conspicuous place or places within the parish. Mark instead of Signature. 42. In place of any signature required by this Order, it shall be sufficient for the signatory to affix his mark if the same is witnessed by two parochial electors. Misnomer. — Inaccurate Descriptions. 43. No misnomer, or inaccurate description of any person or place named in any notice or nomination paper, under this Order, shall hinder the full operation of such notice or paper with respect to that person or place, provided the description of that person or place is such as to be commonly understood. First Election at time of Annual Election. 44. For the purposes of this Order, the first election of parish councillors for any parish which can be held at the time of the annual election of parish councillors in any year shall be deemed to be the annual election of parish councillors for the parish. This Order may be cited as the " Parish Councillors Election Order, 1898." [Schedules. Parish Councillors Election. 555 Schedules. First Schedule. Times for the Proceedings at the Annual Election of Parish Councillors in any Year. Proceeding. 1 . Parish Meeting for the Election 2. Withdrawal of Candidates after Meeting. 3. Notice of Poll 4. Day of Poll.., Time. The first Monday after the Tenth day of March, or, if the first Monday in April is Easter Monday, the first Monday after the Third day of March ; or, in either case, such other day not being earlier than the preceding Satur- day, or later than the following Wed- nesday, as may for special reasons be fixed by the County Council. Not later than twelve o'clock at noon on the Tuesday following the Thurs- day after the Parish Meeting for the Election. Five clear days at least before day of Poll. The first Monday in April, or, if that is Easter Monday, the last Monday in March ; or, in either case, such other day not being earlier than the preced- ing Saturday, or later than the follow- ing Wednesday, as may for special reasons be fixed by the County Council. Second Schedule. Porm No. 1. Notice of Parish Meeting. [This notice must be published not later than 7 clear days before the day for the meeting.] Parish of [or ward of the parish of ]. 1. Notice is hereby given that the parish meeting for the election of parish councillors for the above-named parish [or ward], and for other business,* will be held at on the day of March, 18 , atf o'clock in the evening. 2. The number of parish councillors to be elected at the meeting is \ 556 Appendix. 3. Each, candidate for election as a parish councillor must he nominated in -writing-, and the nomination paper must he handed in at the parish meeting. 4. A parochial elector may sign;]; nomination papers, hut no more. § A parochial elector must not sign a nomination paper for more than one -ward, or for a ward for which he is not registered in respect of a qualification in that ward. 5. Forms of nomination paper may he ohtained, free of charge, from the clerk to the parish council |j at 6. The nomination paper must he in the following form or in a form to the like effect : — Form: of Nomination Paper. Election of parish councillors for the parish of [or for the ward of the parish of ], in the year 18 We, the undersigned, being respectively parochial electors of the said parish [or -ward] do hereby nominate the undermen- tioned person as a candidate at the said election. Names of Candidate. Place of Abode. 3 Description. 4 Whether qualified Surname. 1 Other Names in full. 2 Elector or by Residence. 5 Signature of proposer Place of abode Signature of seconder Place of abode * If no other business is to be transacted omit the words "and for other business." t Insert hour of meeting, not being earlier than 6 o'clock. X Insert number of parish councillors to be elected for the parish or ward. § Insert this only where the notice relates to a ward. i| If there is no such clerk, substitute the overseers here. Parish Councillors Election. 557 Instructions for filling up Nomination Paper.** (1.) The surname of only one candidate for election must be inserted in column 1. (2.) The other names of the candidate must be inserted in full in column 2. (3.) Insert in column 3 the place of abode of the candidate. (4.) In column 4 state the occupation, if any, of the candidate. If the candidate has no occupation, insert some such description as " gentleman," or " married woman," or " spinster," or " widow," as the case may be. (5.) If the candidate is a parochial elector of the parish (that is, if his or her name is registered in the register of parochial electors of the parish) insert in column 5 " parochial elector." If the candidate is not a parochial elector of the parish, but he or she has, during the whole of the 12 months preceding the elec- tion resided in the parish or within 3 miles of it, or has entered into residence on or before the 25th day of March in the pre- ceding year, insert in column 5 "residence." If the candidate is a parochial elector of the parish, and is also qualified by resi- dence, it will be sufficient to insert in column 5 either " parochial elector" or "residence," but both may be inserted. (6.) The paper must be signed by two parochial electors of the parish \_or ward] and no more, by one as proposer, and by the other as seconder. The places of abode of the proposer and seconder must also be inserted. Instead of signing, the pro- poser or seconder may affix his mark if it is witnessed by two parochial electors. ft 7. The meeting will also be the annual assembly of the parish meeting. XX Dated this day of , 18 . Chairman of the Parish Council. ** These instructions form part of the nomination paper. tf If the meeting will not be the annual assembly of the parish meeting omit these words. X % If any other business is to be transacted at the meeting, here state what it is. 558 Appendix. Form No. 2. Certificate by Chairman of Parish Meeting where no Poll. Election of parish councillors for the parish of [or for the ward of the parish of in the year 18 I, the undersigned, Being the chairman of the parish meeting held on the day of March, 18 , for the said parish [or ward], do hereby certify that the following candidates were declared by me at the meeting to be elected as parish councillors for the said parish [or ward] : — Names of Candidates. Places of Abode. Surnames. Other Names. Dated this day of , 18 . Chairman of Parish Meeting. Form No. 3. Notice of Abandonment of Poll. Whereas at a parish meeting for the parish of [or for the ward of the parish of ] held on the day of March, 18 , a poll was demanded and directed to be taken as to which of the following candidates should be elected as parish councillors for the said parish [or ward], and such demand was not withdrawn. [Insert names, place of abode, and description of each candidate.^ And whereas the said [insert name~] has since withdrawn his candidature,* and the number of the remaining candidates does not exceed the number of persons to be elected as parish coun- cillors for the said parish [or ward], I do hereby give notice that the poll demanded will not take place, and I hereby declare that the said [i?iserl namesl are elected as parish councillors for the said parish [or ward]. Dated this day of ,18. Returning Officer. * If this notice is issued on account of some other event, adapt form accordingly. Parish Councillors Election. 559 Form No. 4. Notice of Poll. [This form relates to a poll for the election of parish coun- cillors only.] Election of parish councillors for the parish of [or for the ward of the parish of ] in the year 18 . Notice is hereby given — 1 . That a poll for the election of parish councillors for the above-named parish [or ward] will be held on , the day of , 18 , between the hours of and 2. That the number of parish councillors to be elected for the parish [or ward] is 3. That the names in alphabetical order, places of abode, and descriptions of the candidates for election and the names of their respective proposers and seconders are as follows : — Names of Candidate (Surname first) .* Place of Abode. Description. Names of Proposer (Surname first), Names of Seconder (Surname first). 4.f — (1.) That each elector must vote in the polling district in which the property in respect of which he votes is situate, but if it is situate in more than one polling district he may vote in any one (but in one only) of such polling districts. (2.) The polling districts are as follows : — 5. J The situation and allotment of the polling places, and polling stations, and the description of the persons entitled to vote thereat are as follows : — 6. The poll will be taken by ballot, and the colour of the ordinary ballot paper used in the election will be [insert colour^. Dated this day of ,18 . Office for purpose of election. Returning Officer. * Insert particulars as to each candidate, whose name was put to the parish meeting, and who has not withdrawn his candidature. t If the parish or ward is not divided into polling districts for the purposes of the election, paragraph 4 should be omitted. % If only one polling place or station, adapt form accordingly. 500 Appendix. Form No. 5. Notice of Poll. [This form relates to a poll for the election of parish coun- cillors and rural district councillors for the same area.] Election of parish and rural district councillors for the parish of [or for the ward of the parish of ] in the year 18 . Notice is hereby given — 1 . That polls for the election of parish and rural district coun- cillors for the above-named parish [or ward] will be held on , the day of , 18 , between the hours of and 2. That the number of parish councillors to be elected for. the parish [or ward] is 3. That the number of rural district councillors to be elected for the parish [or ward] is . . 4. That the names in alphabetical order, places of abode, and descriptions of the candidates for election, and the names of their respective proposers and seconders are as follows : — As Parish Councillors. Names of Candidate (Surname first).* Place of Abode. Description. Names of Proposer (Surname first). Names of Seconder (Surname first). As Rural District Councillor [s]. Names of Candidate (Surname first).* Place of Abode. •Description. Names of Proposer (Surname first). Names of Seconder (Surname first). * Insert particulars as to each candidate whose name was put to the parish meeting, and who has not withdrawn his candidature. Parish Councillors Election. 561 5.f — (1.) That each elector must vote in the polling district in which the property in respect of which he votes is situate, but if it is situate in more than one polling district he may vote in any one (but in one only) of such polling districts. (2.) The polling districts are as follows : — 6. 1 The situation and allotment of the polling places and polling stations and the description of the persons entitled to vote thereat are as follows : — 7. The polls will be taken by ballot, and the colour of the ordinary ballot paper used in the election of parish councillors will be [insert colour], and in the election of rural district coun- cillors will be [insert colour]. Dated this day of , 18 . Office for purpose of election. Returning Officer. t If the parish or ward is not divided into polling districts for the purposes of the election, paragraph 5 should be omitted. \ If only one polling place or station, adapt form accordingly. Form No. 6. Declaration of Result of Poll. Election of parish councillors for the parish of [or for the ward of the parish of ] in the year 18 I, the undersigned, being the returning officer [or deputy returning officer duly authorised in that behalf] at the poll for the election of parish councillors for the said parish [or ward] held on the day of , 18 , do hereby give notice that the number of votes recorded for each candidate at the election is as follows : — Names of Candidates. Places of Abode. * Number of Votes Surnames. Other Names. Recorded. o o 562 Appendix. And I do hereby declare that the said are duly elected parish councillors for the said parish [or ward]. Dated this day of 18 Returning Officer [or Deputy Returning Officer]. Forai No. 7. Xotice of Result of Poll* If the declaration of the result of the poll is made by the returning officer, the form of the notice of the result .of the poll shall be the same as that of the declaration. If the declaration is made by a deputy returning officer, the form of notice of the result of the poll shall be as follows : — Election of parish councillors for the parish of [or for the ward of the parish of ] in the year 1 8 . I, the undersigned, being the returning officer -at the poll for the election of parish councillors for the said parish [or ward], do hereby give notice that the number of votes returned as recorded for each candidate at the election is as follows : — Names of Candidates. Places of Abode. Number of Votes Surnames. Other Names. Recorded. And I do further give notice that the said have been declared duly elected parish councillors for the said parish [or ward] . Dated this day of ,18. Returning officer. Parish Councillors Election. 563 Third Schedule. Provisions op the Ballot Act, 1872, as adapted and altered in their Application to the Election of Parish Councillors. Procedure at Elections op Parish Councillors. Poll at Elections. 2. The ballot of each voter shall consist of a paper (in this Act called a ballot paper) showing the names and description of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting, the ballot paper shall be marked on both sides -with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterfoil, and the voter having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer presiding at the polling station (in this Act called "the presiding officer") after having shown to him the official mark at the back. If in the register of parochial electors for a parish, the same number is placed opposite to the name of more than one parochial elector, the returning officer shall put a distinguishing mark on each part of the register which contains numbers used in other parts of the register, and when the number of any voter on any part of the register is entered on the counterfoil of a ballot paper, the mark on that part shall also be entered thereon. Any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for or on which anything, except the said number on the back, is written or marked by which the voter can be identified, shall be void and not counted. After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes, and ascertain the result of the poll by counting the votes given to each candidate, and shall forthwith declare to be elected the candidates or candi- date to whom the majority of votes has been given. The decision of the returning officer as to any question arising in respect of any ballot paper shall be final, subject to reversal on petition ojuestioning the election or return. o o 9 564 Appendix. Offences. Offences in respect of Ballot Papers and Ballot Boxes. 3. Every person who — ( 1 .) Forges or counterfeits or fraudulently defaces or fraudu- lently destroys any ballot paper, or the official mark on any ballot paper ; or (2.) "Without due authority supplies any ballot paper to any person ; or (3.) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in ; or (4.) Fraudulently takes out of the polling station any ballot paper ; or (5.) Without due authority destroys, takes, opens, or other- wise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election ; shall be guilty of a misdemeanor, and be liable, if he is a returning officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding 2 years, with or without hard labour, and if he is any other person, to imprison- ment for any term not exceeding 6 months, with or without hard labour. Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is punishable. In any indictment or other prosecution for an offence in relation to the ballot boxes, ballot papers, and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils. Infringement of Secrecy. 4. Every officer, clerk, and agent in attendance at a polling station shall maintain and aid in maintaining the secrecy of the voting in such station, and shall not communicate, except for some purpose authorised by law, before the poll is closed, to any person any information as to the name or number on the register of parochial electors of any elector who has or has not applied for a ballot paper or voted at that station, or as to the official mark, and no such officer, clerk, or agent, and no person whosoever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any information obtained in a polling station as to the candidate for whom any voter in such station is about to vote or has voted, or as to the number on the back of the ballot paper Parish Councillors Election. 565 given to any voter at such, station. Every officer, clerk, agent, and person in attendance at the counting of the votes shall main- tain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the hack of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall directly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote. Every person who acts in conti-avention of the provisions of this section shall be liable, on summary conviction before two justices of the peace, to imprisonment for any term not exceeding 6 months with or without hard labour. Use of School and Public Eoom tor Poll. 6. The returning officer at an election of parish councillors may use, free of charge for the purpose of taking the poll or for counting the votes at such election, any room in a school receiv- ing a grant out of moneys provided by Parliament, and any room the expense of maintaining which is payable out of any local rate, but he shall make good any damage done to such room, and defray any expense incurred by the person or body of persons, corporate or unincorporate, having control over the same on account of its being used for the purpose of taking the poll or for counting the votes as aforesaid. The use of any room in an unoccupied house for the purpose of taking the poll shall not render any person liable to be rated or to pay any rate for such house. Duties of Eeturning and Election Officees. General Poivers and Duties of Returning Officer. 8. Subject to the provisions of this Act, every returning officer shall provide such nomination papers, polling stations, ballot boxes, ballot papers, stamping instruments, copies of register of parochial electors, and other things, appoint and pay such officers, and do such other acts and things as may be necessary for effectually conducting the election. Keeping of Order in Station. 9. If any person misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer, he may immediately, by order of the presiding officer, be removed from the polling station by any constable in or near that station, or any other person authorised in writing by the returning officer to remove him ; and the person so removed shall not, unless 566 Appendix. with, the permission of the presiding officer, again be allowed to enter the polling station during the day. Any person so removed as aforesaid, if charged with the com- mission in such station of any offence, may be kept in custody until he can be brought before a justice of the peace. Provided that the powers conferred by this section shall not be exercised so as to prevent any elector who is otherwise entitled to vote at any polling station from having an opportunity of voting at such station. Powers of Presiding Officer and Administration of Oaths, §~c. 10. For the purpose of the adjournment of the poll, a presid- ing officer shall have the power by law belonging to a deputy returning officer in a parliamentary election ; and any presiding officer and any clerk appointed by the returning officer to attend at a polling station shall have the power of asking the questions and administering the oath authorised by law to be asked of and administered to voters, and any justice of the peace and any returning officer may take and receive any declaration authorised by this Act to be taken before him. Liability of Officers for Misconduct. 11. Every returning officer, presiding officer, and clerk who is guilty of any wilful misfeasance or any wilful act or omission in contravention of this Act shall, in addition to any other penalty or liability to which he may be subject, forfeit to any person aggrieved by such misfeasance, act, or omission a penal sum not exceeding 100/. No returning officer or officer appointed by him in connection with the election of parish councillors for any parish, nor any partner or clerk of any such officer, shall act as agent for any candidate in the management or conduct of his election as a parish councillor. If any returning officer or officer appointed by him, or the partner or clerk of any such officer, shall so act he shall be guilty of a misdemeanor. Miscellaneous. Prohibition of Disclosure of Vote. 12. No person who has voted at an election shall, in any legal proceeding to question the election or return, be required to state for whom he has voted. Non-comj)liance with Rules. 13. No election shall be declared invalid by reason of a defect in the title or appointment of a returning officer or deputy returning officer, or of a non-compliance with the rules contained in the First Schedule to this Act or in the Parish Councillors Parish Councillors Election. 567 Election Order, 1898, or of any mistake in the use of the forms in the Second Schedule to this Act or in the said Order, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act and of the Local Government Act, 1894, and that such non-compliance or mistake did not affect the result of the election. Personation. Definition and Punishment of Personation. 24. The following enactments shall be made with respect to personation at an election of parish councillors : It shall be the duty of the returning officer to institute a prosecution against any person whom he ma} 7 believe to have been guilty of personation, or of aiding, abetting, counselling, or procuring the commission of the offence of personation by any person, at the election for which he is returning officer, and the costs and expenses of the prosecutor and the witnesses in such case, together with compensation for their trouble and loss of time, shall be allowed by the Court in the same manner in which Courts are empowered to allow the same in cases of felony. Sects. 86 to 89, both inclusive, of the Parliamentary Voters Registration Act, 1843, shall apply to personation at an election of parish councillors in the same manner as they apply to a person who knowingly personates and falsely assumes to vote in the name of another person as mentioned in the said Act, but with the substitution of the words "any parochial elector or any agent appointed under the Parish Councillors Election Order, 1898," for " any such agent so appointed as aforesaid " or for any reference to any such agent, and of "the presiding officer " for " the returning officer or his respective deputy." Effect of Schedules. 28. The schedules to this Act, and the notes thereto, and directions therein shall be construed and have effect as part of this Act. Schedules to Act. First Schedule. Pules for Elections of Parish Councillors. The Poll. 15. At every polling place the returning officer shall, subject to the provisions of the Parish Councillors Election Order, 1898, 5(58 Appendix. provide a sufficient number of polling stations for the accommo- dation of the electors entitled to vote at such polling place, and shall distribute the polling stations amongst those electors in such manner as he thinks most convenient. 17. A separate room or separate booth may contain a separate polling station, or several polling stations may be constructed in the same room or booth. 18. No person shall be admitted to vote at any polling station except the one allotted to him. 20. The returning officer shall provide each polling station with materials for voters to mark the ballot papers, with instru- ments for stamping thereon the official mark, and with copies of the register of voters or such part thereof as contains the names of the voters allotted to vote at such station. He shall keep the official mark secret. 21. The presiding officer appointed to preside at each station shall keep order at his station, shall regulate the number of electors to be admitted at a time, and shall exclude all other persons except the clerks, the agents of the candidates, and the constables on duty. 22. Every ballot paper shall contain a list of the candidates, described as in their respective nomination papers, and arranged alphabetically in the order of their surnames, and (if there are two or more candidates with the same surname) of their other names ; it shall be in the form set forth in the Second Schedule to this Act or as near thereto as circumstances admit, and shall be capable of being folded up. 23. Every ballot box shall be so constructed that the ballot papers can be introduced therein, but cannot be withdrawn therefrom, without the box being unlocked. The presiding officer at any polling station, just before the commencement of the poll, shall show the ballot box empty to such persons, if any, as may be present in such station, so that they may see that it is empty, and shall then lock it up and place his seal upon it in such manner as to prevent its being opened without breaking such seal, and shall place it in his view for the receipt of ballot papers, and keep it so locked and sealed. 24. Immediately before a ballot paper is delivered to an elector, it shall be marked on both sides with the official mark, either stamped or perforated, and the number, name, and de- scription of the elector as stated in the copy of the register shall be called out, and the number of such elector, together with the distinguishing mark, if any, of the part of the register in which the number occurs, shall, as required by sect. 2 of this Act, as adapted, be marked on the counterfoil, and a mark shall be placed in the register against the number of the elector, to Parish Councillors Election. 5G9 denote that he has received a ballot paper, but without showing the particular ballot paper which he has received. 25. The elector, on receiving the ballot paper, shall forthwith jiroceed into one of the compartments in the polling station, and there mark his paper, and fold it up so as to conceal his vote, and shall then put his ballot paper, so folded up, into the ballot box ; he shall vote without undue delay, and shall quit the polling station as soon as he has put his ballot paper into the ballot box. 26. The presiding officer, on the application of any voter who is incapacitated by blindness or other physical cause from voting in manner prescribed by this Act, or (if the poll be taken on Saturday) of any voter who declares that he is of the Jewish persuasion, and objects on religious grounds to vote in manner prescribed by this Act, or of any voter who makes such a declara- tion as hereinafter mentioned that he is unable to read, shall, in the presence of the agents of the candidates cause the vote of such voter to be marked on a ballot paper in manner directed by such voter, and the ballot paper to be placed in the ballot box, and the name and number on the register of voters of every voter whose vote is marked in pursuance of this rule, and the reason why it is so marked, shall be entered on a list, in this Act called "the list of votes marked by the presiding officer." The said declaration, in this Act referred to as " the declara- tion of inability to read," shall be made by the voter at the time of polling, before the presiding officer, who shall attest it in the form hereinafter mentioned, and no fee, stamp, or other payment shall be charged in respect of such declaration, and the said declaration shall be given to the presiding officer at the time of voting. 27. If a person, representing himself to be a particular elector named on the register, applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions permitted by the Parish Councillors Election Order, 1898, to be asked of voters at the time of polling, and upon taking an oath in the form hereinafter set out, which the presiding officer shall administer, be entitled to mark a ballot paper in the same manner as any other voter, but the ballot paper (in this Act called a tendered ballot paper) shall be of a colour differing from the other ballot papers, and, instead of being put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer. And the name of the voter and his number on the register shall be entered on a list, in this Act called the tendered votes list. 570 Appendix. The oath shall be administered in the following form : — "You do swear that you are the same person whose name appears as A.B. on the register of parochial electors for this parish [or ward], and that you have not already voted at the present election for this parish [add, in case of an election f 07- a ward, in this or any other ward]." " So help you God." Provided that any person entitled to affirm in lieu of taking an oath may affirm in the following form : — "I, A.B., do solemnly, sincerely, and truly declare and affirm that I am the same person whose name appears as A.B. on the register of parochial electors for this parish \_or ward], and that I have not already voted at the present election for this parish [add, in case of an election for a ward, in this or any other ward]." 28. A voter who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper may, on delivering to the presiding officer the ballot paper so inadvertently dealt with, and proving the fact of the inadver- tence to the satisfaction of the presiding officer, obtain another ballot paper in the place of the ballot paper so delivered up (in this Act called a spoilt ballot paper), and the spoilt ballot paper shall be immediately cancelled. 29. The presiding officer of each station, as soon as practicable after the close of the poll, shall make up into separate packets sealed with his seal, — (I.) Each ballot box in use at his station, unopened but with the key attached ; and (2.) The unused and spoilt ballot papers, placed together; and (3.) The tendered ballot papers : and (4.) The marked copies of the register of parochial electors, and the counterfoils of the ballot papers ; and (5.) The tendered votes fist and the list of votes marked by the presiding officer, and a statement of the number of the voters whose votes are so marked by the presiding officer under the heads " physical incapacity," " Jews," and " unable to read," and the declarations of inability to read ; and shall deliver such packets to the returning officer, or deputy returning officer, by whom the votes are to be counted, unless he is himself such officer. 30. The packets shall be accompanied by a statement made by such presiding officer, showing the number of ballot papers entrusted to him. and accounting for them under the heads of ballot papers in the ballot box, unused, spoilt, and tendered ballot papers, which statement is in this Act referred to as the ballot paper account. Parish Councillors Election. 571 Counting Votes. 31. Each candidate may appoint an agent to attend the count- ing of the votes. 32. The returning officer shall make arrangements for counting the votes in the presence of the agents of the candidates as soon as practicable after the close of the poll, and shall give to the agents of the candidates appointed to attend at the counting of the votes notice in writing of the time and place at which he will begin to count the same. 33. The returning officer, his assistants and clerks, the agents of the candidates, any person to whom Rule 51 of this Schedule applies, and no other person, except with the sanction of the returning officer, may be present at the counting of the votes. 34. If a poll has been taken as to the election of parish coun- cillors only, before the returning officer proceeds to count the votes, he shall, in the presence of the agents of the candidates, open each ballot box, and taking out the papers therein, shall count and record the number thereof, and then mix together the whole of the ballot papers contained in the ballot boxes. If polls have been taken at the same date for the election both of parish councillors and of rural district councillors, before the returning officer proceeds to count the votes, he shall, in the presence of the agents of the candidates, open one of the ballot boxes and taking out the papers therein shall separate those relating to the election of parish councillors from any relating to the election of rural district councillors, and shall count and record the number of ballot papers relating to each election. He shall then secure the ballot papers relating to each election by placing them in separate packets under his own seal, and the seals of such of the agents of the candidates as desire to affix their seals, and shall proceed in like manner with any other ballot boxes and the papers therein. When all the ballot boxes and the papers therein have been so dealt with, he shall open all the packets of ballot papers relating to one of the elections, and shall mix all such papers together, and shall proceed to count the votes, keeping the papers relating to the other election sealed up until he has completed such counting. He shall afterwards deal in manner aforesaid with the packets and papers relating to the other election. The returning officer, while counting and recording the number of ballot papers and counting the votes, shall keep the ballot papers with their faces upwards, and take all proper precautions for preventing any person from seeing the numbers printed on the backs of such papers. 35. The returning officer shall, so far as practicable, proceed continuously with counting the votes, allowing only time for refreshment, and excluding, if and so far as he thinks it necessary, the hours between the close of the poll and 9 o'clock on the 572 Appendix. sticceeding morning. During the excluded time the returning officer shall place the ballot papers and other documents relating to the election under his own seal and the seals of such of the agents of the candidates as desire to affix their seals, and shall otherwise take proper precautions for the security of such papers and documents. 36. The returning officer shall endorse "rejected" on any ballot paper which he may reject as invalid, and shall add to the endorsement " rejection objected to," if an objection be in fact made by any agent to his decision. The returning officer shall draw up a statement showing the number of ballot papers rejected and not counted by him under the several heads of — 1 . Want of official mark ; 2. Voting for more candidates than entitled to ; 3. Writing or mark by which voter could be identified ; 4. Unmarked or void for uncertainty ; and shall on request allow any of the agents of the candidates to copy such statement. If the votes are counted by a deputy returning officer he shall, with the declaration of the result of the poll, report to the returning officer the number of ballot papers rejected and not counted by him, under the above heads, and no such statement as aforesaid shall be drawn up by the returning officer. The deputy returning officer shall, on request, allow any agents of the candidates, before such report is sent in, to coj)y it. 37. Upon the completion of the counting, the returning officer shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or marked copy of the register of voters and counterfoils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded by him as aforesaid and the unused and spoilt ballot papers in his possession and the tendered votes list, and shall reseal each sealed packet after examination. The returning officer shall draw up a statement as to the result of such verification, and shall, on request, allow any agents of the candidates to copy it. If the votes are counted by a deputy returning officer, he shall report to the returning officer the result of the verification, and no such statement as aforesaid shall be drawn up by the returning officer. The deputy returning officer shall, on request, allow any agents of the candidates, before such report is sent in, to copy it. He shall with his report send to the returning officer the sealed packets of counted and rejected ballot papers, and the unopened sealed packets which he has received from any presiding officer. 38. Lastly, the returning officer shall carefully preserve for the period hereinafter mentioned all the packets of ballot papers in Parish Councillors Election. 573 his possession, together with the said reports, the ballot paper accounts, tendered votes list, lists of votes marked by the presiding officer, statements relating thereto, declarations of inability to read, and packets of counterfoils, and marked copies of registers, endorsing on each packet a description of its contents and the date of the election to which they relate, and the name of the parish for which such election was held. 39. The returning officer shall retain for 6 months all docu- ments relating to an election of parish councillors, and then, unless otherwise directed by an order of the county court having jurisdiction in the parish or in any part thereof, or of any tribunal in which the election is questioned, shall cause them to be destroyed. 40. No person shall be allowed to inspect any rejected ballot papers in the custody of the returning officer, except under the order of the county court or tribunal aforesaid, to be granted by such court or tribunal on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of a petition questioning an election or return; and any such order for the inspection or production of ballot papers may be made subject to such conditions as to persons, time, place, and mode of inspection or production as the court or tribunal making the same may think expedient, and shah be obeyed by the returning officer. 41. No person shall, except by order of the county court having jurisdiction in the parish, or any part thereof, or of any tribunal having cognizance of any question relating to the election, open the sealed packet of counterfoils after the same has been once sealed up, or be allowed to inspect any counted ballot papers in the custody of the returning officer. Such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the court or tribunal making the order may think expedient : Provided that on making and carrying into effect any such order, care shall be taken that the mode in which any par- ticular elector has voted shall not be discovered until he has been proved to have voted, and his vote has been declared by a com- petent court to be invalid. 42. All documents in the custody of a returning officer in pursuance of this Act, other than ballot papers and counter- foils, shall be open to public inspection at such time and under such regulations as may have been or may hereafter be pre- scribed by the council of the county in which the parish is situate, and the returning officer shall supply copies of or extracts from the said documents to any person demanding the 574 Appendix. same, on payment of such fees and subject to such, regulations as may have been or may hereafter be prescribed by the county council. 43. Where an order is made for the production by the return- ing officer of any document in his possession relating to any specified election of parish councillors, the production by such officer or his agent of the document ordered, in such manner as may be directed by such order, or by an order of the court having power to make such first-mentioned order, shall be con- clusive evidence that such document relates to the specified elec- tion ; and any endorsement appearing on any packet of ballot papers produced by such returning officer or his agent shall be evidence of such papers being what they are stated to be by the endorsement. The production from proper custody of a ballot paper purporting to have been used at any election, and of a counterfoil marked with the same printed number and having a number marked thereon in writing, shall he prima facie evidence that the person who voted by such ballot paper was the person who at the time of such election had affixed to his name in the register of voters at such election the same number as the number written on such counterfoil. 43(a). There shall be an appeal from any order of the county court under these rules in like manner as in other cases in such court. General Provisions. 47. If the returning officer presides at any polling station, the provisions of this Act relating to a presiding officer shall apply to such returning officer with the necessary modifications as to things to be done by the returning officer to the presiding officer, or the presiding officer to the returning officer. 48. The returning officer may, in addition to any clerks, appoint competent persons to assist him in counting the votes. 49. No person shall be appointed by a returning officer for the purposes of an election who has been employed by any other person in or about the election. 50. The presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorised to do by this Act at a polling station except ordering the arrest, exclusion, or ejection from the polling station of any person. 51. A candidate may himself undertake the duties which any agent of his, if appointed under Rule 31 of this Schedule, might have undertaken, and may, if he does not appoint such an agent, Parish Councillors Election. 575 be present at the counting of the votes, or may himself take the place of such agent : Provided that any person acting under this rule may at any time, before so acting, make the statutory declaration as to secrecy required by Rule 54 of this Schedule, but he shall not so act until he has made such declaration. 52. The name and address of every agent of a candidate appointed to attend the counting of the votes shall be trans- mitted to the returning officer 1 clear day at the least before the opening of the poll ; and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, notwithstanding that his appointment may be otherwise valid, and any notice required to be given to an agent by the returning officer may be delivered at or sent by post to such address. 53. If any person appointed an agent for the purposes of attending at a polling station or at the counting of the votes dies, or becomes incapable of acting during the time of the election, another agent may be appointed in his place, and notice shall forthwith be given to the returning officer in writing of the name and address of any agent so appointed. 54. Every returning officer, and every officer, clerk, or agent authorised to attend at a polling station, and also every officer, clerk, or agent authorised to attend at the counting of the votes, shall, before the opening of the poll, make a statutory declara- tion of secrecy, in the presence, if he is the returning officer, of a justice of the peace and if he is any other officer or an agent, of a justice of the peace or of the returning officer ; but no such returning officer, officer, clerk, or agent as aforesaid shall, save as aforesaid, be required, as such, to make any declaration or take any oath on the occasion of any election. 55. Where in this Act any expressions are used requiring or authorising or inferring that any act or thing is to be done in the presence of the agents of the candidates, such expressions shall be deemed to refer to the presence of such agents of the candidates as may be authorised to attend and as have in fact attended, at the time and place where such act or thing is being done, and the non-attendance of any agents or agent at such time and place shall not, if such act or thing be otherwise duly done, in anywise invalidate the act or thing done. 576 Appendix. Second Schedule to Act. Note. — The forms contained in this schedule, or forms as nearly resembling the same as circumstances will admit, shall be used in all cases to which they refer and are applicable, and when so used shall be sufficient in law. Counterfoil No. Note : — The counterfoil is to have anumber to correspond with that on the back of the Ballot Paper. Form of Ballot Paper. Form of Front of Ballot Paper. ELECTION OF PARISH COUNCILLORS. 1 BROWN (John Brown, of Water Lane, Agricultural Labourer). 2 GREEN (Robert Green, of Mudford, Shoemaker) . 3 JONES (William David Jones, of Claygate Farm, Farmer). • 4 MERTON (Hon. George Travis, commonly called Viscount Merton, of Swanworth, Wilts, Gentleman) . 5 ROBINSON (Henry Robinson, of High Street, Grocer) . 6 SMITH (Mary Elizabeth Smith, of Lavender Cottage, Married Woman). Parish Councillors Election. 577 Form of back of ballot paper. No. Election of parish councillors for parish [or ward of parish]. 18 . Note. — The number on the ballot paper is to correspond with that on the counterfoil. Directions as to printing Ballot Paper. Nothing is to be printed on the ballot paper except in accord- ance with this schedule. The surname of each candidate, and if there are two or more candidates of the same surname, also the other names of such candidates, shall be printed in large characters, and the names, places of abode, and descriptions, and the number on the back of the paper, shall be printed in small characters. Form of Directions for the Guidance of the Voter in voting, which shall he printed in conspicuous Characters, and placarded out- side every Polling Station and in every Compartment of every Polling Station. The voter may vote for candidates as parish councillors. The voter will go into one of the compartments, and, with the pencil provided in the compartment, place a cross on the right- hand side, opposite the name of each candidate for whom he votes, thus X. The voter will then fold up the ballot paper so as to show the official mark on the back, and leaving the compartment will, without showing the front of the paper to any person, show the official mark on the back to the presiding officer, and then, in the presence of the presiding officer, put the paper into the ballot box and forthwith quit the polling station. If the voter inadvertently spoils a ballot paper, he can return it to the officer, who will, if satisfied of such inadvertence, give him another paper. If the voter votes for more than candidates, or places any mark on the paper by which he may be afterwards identified, his ballot paper will be void, and will not be counted. If the voter takes a ballot paper out of the polling station or deposits in the ballot box any other paper than the one given him by the officer he will be guilty of a misdemeanor, and be S. V Y ; »TS Appendix. subject to imprisonment for any term not exceeding six months, with or without hard labour. Note. — These directions shall be illustrated by examples of the ballot paper. Form of Statutory Declaration of Secrecy. I solemnly promise and declare, That I will not at this election of parish councillors for the parish of do anything for- bidden by sect. 4 of the Ballot Act, 1872, which has been read to me. Note. — The section must be read to the declarant by the person taking the declaration. Form of Declaration of Inability to Read. I, A.B., of , being numbered on the register of parochial electors for the parish of , do hereby declare that I am unable to read. A.B., his mark, day of , 18 . the undersigned, being the presiding officer for the polling station for the parish of [or ward of the parish of ], do hereby certify that the above declaration, having been first read to the above-named A.B., was signed by him in my presence with his mark. Signed, CD., Presiding officer for polling station for tho parish of [or ward of the parish of day of , 18 . Fourth Schedule. Sections 74 and 75 of the Municipal Corporations Act, 1882, as adapted and altered in their application to the Election of Parish Councillors. 74. — (1.) If any person forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the chairman of the parish meeting any forged nomination paper, knowing it to be forged, he shall be guilty of a misdemeanor, and shall be liable to imprisonment for any term not exceeding 6 months, with or without hard labour. (2.) An attempt to commit any such offence shall be punish- able as the offence is punishable. Parish Councillors Election. 579 75. — (1.) If any chairman of a parish council, or clerk to a parish council, or overseers, as the case may be, shall neglect or refuse to convene the parish meeting for the election of parish councillors at the time required, he, or they, shall for every such offence be liable to a fine not exceeding 100^., recoverable by action. (2.) If a person who has undertaken to act as returning officer, or deputy returning officer, at an election of parish coun- cillors, neglects or refuses to conduct or declare the election in manner provided by the Local Government Act, 1894, and the Parish Councillors Election Order, 1898, he shall for every such offence be liable to a fine not exceeding 100^., recoverable by action. (3.) An action under this section shall not lie after 3 months from the neglect or refusal. Given under the seal of office of the Local Government Board, 1st January, 1898. (l.s.) Henry Chaplin, President. Hugh Given, Secretary. pv2 THE RURAL DISTRICT COUNCILLORS ELECTION ORDER, 1898. Dated Januaky 1st, 1898. After reciting those sections of the Local Government Act, 1894, which Lear upon the subject, the Order states that the Board, in pursuance of the powers thereby given to them, have framed the following rules for conducting elections of rural district coun- cillors, that is to say, — (a) The election held in any year to fill any ordinary vacancies in the rural district councillors for any rural parish in England and Wales ; (b) The first election of any additional rural district councillors for any rural parish or parishes in England and Wales, and the first election of a rural district councillor or councillors to be elected for any such rural parish which may hereafter be constituted ; and (c) Every election which may be held to fill a casual vacancy in the office of rural district councillor in any rural parish in England and Wales. Returning Officer. 1. — (1.) The clerk to the rural district council of the rural district in which the parish is situate or with which it is co- extensive shall be the returning officer, or if there is more than one such clerk, then the person who acts as such clerk for the purposes of the Public Health Act, 1875. (2.) If the clerk is unwilling to act as returning officer, or if the office of clerk is vacant at the time when any duty relative to the election has to be performed by the returning officer, or if the clerk from illness or other sufficient cause is unable to per- form such duty, the rural district council shall appoint some other person to act as returning officer or to perform such of the duties of the returning officer as then remain to be performed, as the case may be, but the same person shall in all cases be the returning officer at the election of the rural district councillors and of any parish councillors to be elected at the same date in the parish. (3.) The returning officer shall appoint some place within the Rural District Councillors Election. 581 union or rural district in which the parish is situate as an office for the purpose of the election. (4.) The returning officer may, in writing, appoint a fit person to he his deputy for all or any of the purposes relating to the election of rural district councillors, and shall appoint such a deputy in the case and for the purposes mentioned in Rule 19 of this Order. A deputy returning officer shall have all the powers, duties, and liabilities of the returning officer in relation to the matters in respect of which he is appointed as deputy. (5.) The same person shall act as deputy returning officer in respect of the election both of rural district councillors and of any parish councillors to be elected at the same date in the parish. Day of Election. 2. — (1.) The day of the election of rural district councillors in the parish shall be that prescribed or defined for the purpose by the First Schedule to this Order. (2.) Provided that the day of election of rural district coun- cillors in the parish and the day of the poll for the election of any parish councillors to be elected at the same date in the parish shall be the same. Notice of Election. 3. — (1.) Not later than the day prescribed for that purpose by the First Schedule to this Order, the returning officer shall pre- pare and sign a notice of the election of rural district councillors in the parish or parishes in which the election is to be held, and shall cause notice to be given of the same in accordance with Rule 31 of this Order in each such parish. The notice shall be in the Form No. 1 in the Second Schedule to this Order, or in a form to the like effect. Nomination of Candidates, 4. — (1.) Each candidate for election as a rural district coun- cillor shall be nominated in writing. (2.) The nomination paper shall state the name of the parish or other area for which the candidate is nominated, the surname and other name or names in full of the candidate, and his place of abode and description, and whether he is qualified as a parochial elector of some parish within the poor law union in which the rural district or the part of the rural district containing the parish or other area is comprised, or by having during the whole of the 12 months preceding the election resided in the union, or by being qualified to be a councillor for a borough wholly or partly situate within the union. It shall be signed by 2 parochial electors of the parish or other area, as proposer and seconder, and no more, and shall state their respective places of abode. It shall be in 582 Appendix. the form set out in the notice in the Form No. 1 in the Second Schedule to this Order, or in a form to the like effect. (3.) The name of more than one candidate shall not be inserted in any one nomination paper. (4.) A parochial elector shall not sign more nomination papers than there are rural district councillors to be elected for the parish or other area in the rural district for which the election is to be held. He shall not sign a nomination paper for any parish or other area unless he is registered as a parochial elector in respect of a qualification therein. Neither shall he sign nomina- tion papers for more than one parish or other area in the rural district. (5.) If any parochial elector shall sign nomination papers for more than one parish or other area in the rural district or shall sign a larger number of nomination papers than the number of rural district councillors to be elected for the parish or other area, such of the nomination papers signed by him as relate to the first parish or other area for which a nomination paper signed by him is received by the returning officer shall alone be valid, and of the nomination papers signed by him which relate to that parish or other area such as are first received by the returning officer up to the number of rural district councillors to be so elected shall alone be valid. Provided that for the purposes of this paragraph, nomination papers not properly filled up and signed shall be excluded. Nomination Papers to be provided. 5. The returning officer shall provide nomination papers, and shall furnish the overseers of the parish with a supply thereof. Any parochial elector may obtain nomination papers from either the returning officer or the overseers free of charge. Time for sending in Nomination Papers. 6. Every nomination paper shall be sent to the returning officer so that it shall be received at his office within the time prescribed for that purpose by the First Schedule to this Order. A nomi- nation paper received after that time shall not be valid. The returning officer shall note on each nomination paper whether it was received before or after that time. Dealing with Nominations by Returning Officer. 7. — (1.) The returning officer shall number the nomination papers in the order in which they are received by him ; and the first valid nomination paper received for a candidate shall be deemed to be the nomination of that candidate. (2.) The returning officer shall, as soon as practicable after the receipt of any nomination paper, examine and decide whether it has or has not been properly filled up and signed by Bural District Councillors Election. 583 two parochial electors of the parish or other area, and whether it is or is not invalid under Rule 4 (5) or Rule 6. His decision that a nomination paper has been so tilled up and signed, and is not invalid as aforesaid, shall be final, and shall not be questioned in any proceeding whatever. (3.) If the returning officer shall decide that a nomination paper is invalid, he shall put a note on it to this effect, stating the grounds of his decision, and he shall sign such note. (4.) After deciding that the nomination of any candidate is valid, or (except where a nomination of any candidate has been decided to be valid) that a nomination paper for the candidate is invalid, the returning officer shall, not later than the day pre- scribed for that purpose by the First Schedule to this Order, send, by post or otherwise, notice of his decision to the candidate. Statement as to Persons nominated. 8. Not later than the day prescribed for that purpose by the First Schedule to this Order, the returning officer shall make out a statement in the Form No. 2 in the Second Schedule to this Order, or in a form to the like effect, containing the names, places of abode, and descriptions of the persons nominated as rural district councillors for the parish or the several parishes for which the election is to be held, and also containing a notice of his decision as regards each candidate as to whether he has been nominated by a valid nomination paper or not. He shall forthwith cause a copy thereof to be suspended in the board room of the guardians of the poor law union in which any of these parishes are situate, and another to be affixed on the prin- cipal external gate or door of every workhouse of such union, and, if the board room of the guardians is not situate at any such workhouse, on the external gate or door of the building in which the board room is comprised. Withdrawal of Candidate. 9. Any candidate may withdraw his candidature by delivering or causing to be delivered at the office of the returning officer, within the time prescribed for that purpose by the First Schedule to this Order, a notice in writing of such withdrawal, signed by him. Relation of Nomination to Election. 10. Sect. 56 of the Municipal Corporations Act, 1882, shall be altered and adapted in its application to the election of rural district councillors in the parish so as to provide as follows : — (1.) If the number of candidates who receive valid nomina- tions and who do not withdraw their candidature under Rule 9 exceeds that of the persons to be elected as rural district councillors, the councillors shall be elected from amongst the persons nominated. 584 Appendix. (2.) If the number of valid nominations does not exceed the number of rural district councillors to be elected, or if, by the withdrawal of any candidate as provided by Rule 9, the number of candidates for the parish is reduced to a number not exceeding the number to be elected, or if the number of candidates is otherwise so reduced, the returning officer shall, as early as practic- able, give public notice in the parish in accordance with Eule 31 of this Order to the effect that no poll will be taken, and that the candidates, or the remaining candi- dates, as the case may be, will be declared to be elected ; and also, in the case of the ordinary election, if the number of such candidates is less than the number of rural district councillors to be elected, that such of any retiring councillors for the parish as were highest on the poll at their election, or, if the poll was equal or there was no poll, as shall have been selected for that purpose by the returning officer by lot to make up the required number, will be declared to be deemed to be re-elected. (3.) If there is no valid nomination the returning officer shall, as early as practicable, give public notice in the parish in accordance with Eule 31 of this Order that no poll will be taken, and, in the case of the ordinary election, that the retiring councillors will be declared to be deemed to be re-elected. (4.) The returning officer shall forthwith send, by post or otherwise, a copy of any notice under this Eule to each of the persons who will be declared to be elected or to be deemed to be re-elected. (5.) The notice shall be in the Form No. 3 or the Form No. 4, as the case may be, in the Second Schedule to this Order, or in a form to the like effect. Day and Hours of Poll. 11. — (1.) The poll, if any, shall be held on the day of election as prescribed or defined by the First Schedule to this Order, and the hours during which the poll shall be open shall be such as shall be fixed by the county council by any general or special Order, or if no such Order is in force in the parish, then such hours as were applicable at the last ordinary election of parish councillors or rural district councillors in the parish, so, however, that the poll shall always be open between the hours of 6 and 8 in the evening. (2.) Provided that the hours during which any poll shall be open for the election of rural district councillors and of any parish councillors for the parish shall be the same. Eukal District Councillors Election. 585 Polling Districts. 12. — (1.) (a) If the parish is divided into polling districts for the election of county councillors or of parish councillors, the whole of each such district being comprised in the parish, and the list of parochial electors are made out in separate parts for such districts, each district shall be a polling district for the election of rural district councillors. (b) If the parish is not so divided, but is divided into wards for the election of parish councillors, each ward shall be a polling district for the election of rural district councillors. (c) If neither paragraph (a) nor paragraph (b) of this Rule applies to the parish, the returning officer may, if he thinks fit, divide the parish into polling districts for the election of rural district councillors, but each district shall consist of an area for which a separate list of parochial electors will be available ; pro- vided that the parish shall not bo divided into polling districts, if the population thereof, according to the census last published, is not 300 or upwards. (d) The polling districts for the election of rural district coun- cillors and of any parish councillors to be elected at the same date in the parish shall be the same. (2.) If the parish is divided into polling districts, each parochial elector shall give his vote in the polling district in which the property in respect of which he is entitled to vote is situate, and if it is situate in more than one polling district, he may vote in any one (but in one only) of the polling districts in which it is situate. Polling Places and Stations. 13. The returning officer shall determine the number and situation of the polling places and polling stations. Provided as follows : — (a) No premises licensed for the sale of intoxicating liquor shall be used for a polling station ; (b) The same polling stations shall be used for the election of rural district councillors and of any parish coun- cillors to be elected at the same date in the parish ; (c) Where the number of parochial electors in the parish, or (if the parish is divided into polling districts) in any polling district, is not more than 500, only 1 polling station shall, unless the county council other- wise direct, be provided for the parish or polling district ; and so on for each additional 500 parochial electors, or for any less number of parochial electors over and above the last 500. 586 Appendix. Notice of Poll 14. — (1.) If a poll has to be taken, the returning officer shall, within the time prescribed for that purpose by the First Schedule to this Order, give public notice thereof in accordance with Eule 31 of this Order. The notice shall specify — (a) the day and hours fixed for the poll ; (b) the number of rural district councillors to be elected for the parish ; (c) the names, place of abode, and description of each candi- date for the parish whom he has decided to have been nominated by a valid nomination paper, and who has not withdrawn his candidature ; (d) the names of the proposer and seconder who signed the nomination paper of each candidate ; (e) a description of the polling districts, if any ; and (f) the situation and allotment of the polling places and polling stations, and the description of the persons entitled to vote thereat. (2.) The notice shall be in the Form No. 5 in the Second Schedule to this Order, or in a form to the like effect. (3.) If polls are to be taken in the parish as to the election of both rural district councillors and parish councillors, the return- ing officer may, if he thinks fit, give one notice only for both polls, and such notice shall be in the Form No. 6 in the Second Schedule to this Order, or in a form to the like effect. Presiding Officers. 15. The returning officer, or some person appointed by him for the purpose, shall preside at each polling station. The person presiding at any polling station shall be called the presiding officer. Provided as follows : — (a) At any polling station the same person shall act as presiding officer for the election of rural district councillors and of any parish councillors to be elected at the same date in the parish. (b) In making appointments under this Eule the returning officer shall, as far as practicable, secure the services of suitable persons resident in the parish, so as to diminish expense. Compartments of Polling Stations. — Ballot Papers. 16. The returning officer shall furnish every polling station with a sufficient number of compartments in which the voters can mark their votes screened from observation, and shall furnish each presiding officer with such number of ballot papers as may be necessary for effectually taking the poll at the election. Sural District Councillors Election. 587 Polling Agents. 1 7. If there are only 2 candidates, each of them may, in writ- ing, appoint a polling agent for each polling station, who may be paid or unpaid. If there are more than 2 candidates, any number of them, being not less than one-third of the whole number of the candidates, may, in writing, appoint one polling agent for each polling station, who may be paid or unpaid. Any such appointment shall be delivered at the office of the returning officer not less than 2 clear days before the day of the poll. Except as aforesaid, no polling agent, whether paid or unpaid, shall be appointed for the purposes of the election. Prohibition of Voting in more than one Parish. — Questions to Elector. 18. — (1.) An elector shall not vote in more than one parish in the district. (2.) The presiding officer may, and if required by any parochial elector of the parish, or any polling agent appointed under Rule 17, shall, put to any elector at the time of his applying for a ballot paper, but not afterwards, the following questions, or one of them, and no other : — (a) Are you the person entered in the parochial register for this parish [or ward] as follows [read the whole entry from the register^ ? (b) Have you already voted at the present election of rural district councillors in this or any other parish or ward in the rural district of ? (3.) A person required to answer either of these questions shall not receive a ballot paper or be permitted to vote until he has answered it. Counting the Votes. 19. — (1.) The returning officer, when he does not act as a presiding officer at any polling station for the parish, shall appoint the presiding officer or some one of the presiding officers to act as deputy returning officer for the parish, as regards the custody and opening of the ballot boxes, the counting and record- ing of the votes, and the declaration of the number of votes given for each candidate, and of the election of the candidate or candi- dates to whom the largest number of votes has been given. The person so appointed shall, in addition to his other powers and duties, have all the powers and duties of the returning officer in relation to the decision of any question as to any ballot paper and otherwise as to the ballot papers. Provided that, if the parish is divided into wards for the election either of rural district councillors or of parish councillors, but not for both elections, or, if the parish is so divided for both elections, and the wards are 588 Appendix. not the same for "both elections, one deputy returning officer shall act under this rule for the whole of the parish. (2.) The same person shall act as deputy returning officer in respect of the election both of rural district councillors and of any parish councillors to be elected at the same date for the parish. (3.) The votes shall be counted in the parish or in some place near thereto as soon as practicable after the close of the poll. Equality of Votes. 20. If an equality of votes is found to exist between any candidates, and the addition of a vote would entitle any of such candidates to be declared elected, the returning officer or deputy returning officer, as the case may be, may, if a parochial elector of the parish, give such additional vote in writing, but shall not otherwise be entitled to vote at the election. If in such a case the returning officer or deputy returning officer, as the case may be, is not a parochial elector of the parish, or is unwilling to vote, he shall determine by lot which of the candidates whose votes are equal shall be elected. Who to be deemed to Jill Casual Vacancies at ordinary Election. 21. In the event of one or more casual vacancies being filled at the ordinary election where there is a poll, the persons elected by the fewest votes shall be deemed elected to fill such vacancies. Should there be an equality of votes between such persons, the rural district council shall determine by ballot which of such persons shall be deemed elected to fill the casual vacancy. If the persons elected to fill the casual vacancies will hold office for different periods, the person elected by the fewest votes, or if the votes were equal the person selected by the rural district council by ballot from the persons so elected shall hold office for the shorter period. Where there is no poll the person or persons to be deemed to be elected to fill the casual vacancy or vacancies shall be determined by the rural district council by ballot. Declaration of Result of Poll. 22. — (1.) The declaration of the result of the poll shall be in the Form No. 7 in the Second Schedule to this Order, or in a form to the like effect. (2.) The returning officer or deputy returning officer, as the case may be, making the declaration shall forthwith cause a copy of it to be affixed on the front of the building in which the votes have been counted. If the declaration is made by a deputy returning officer, he shall forthwith send it to the returning officer. Rural District Councillors Election. 589 Publication of Result of Elections. 23. — (1.) The returning officer shall prepare and sign in duplicate a notice of the result of the elections in all the parishes in the district for which elections are held, and shall by such notice declare to be elected or to be deemed to be re-elected the persons who, under Rule 10, are to be declared to be elected or to be deemed to be re-elected without a poll being taken. The notice shall be in the Form No. 8 in the Second Schedule to this Order, or in a form to the like effect. (2.) One of these notices shall be sent by the returning officer, as early as practicable, to the clerk to the rural district council, and the other to the clerk to the guardians of the union com- prising the rural district or the part of a rural district ; and copies of the notice shall be sent by the returning officer to the persons elected or deemed to be re-elected. (3.) The returning officer shall also send a sufficient number of copies of the notice to the overseers of all the parishes in the rural district for which elections are held, and the overseers of every such parish shall cause public notice to be given thereof in accordance with Rule 31 of this Order. Application and Adaptation of Ballot Act, 1872. 24. The provisions of the Ballot Act, 1872, which, with adap- tations and alterations, are set out in the Third Schedule to this Order, and only such provisions of that Act, shall, subject to^ such adaptations and alterations, apply to the election of rural district councillors in like manner as in the case of a municipal election. Provided as follows : — (a) Such application shall be subject to the provisions of this Order. (b) If an election of rural district councillors and of any parish councillors is held in the parish at the same date, one ballot box may, if the returning officer thinks fit, be used for the two elections ; but, if separate ballot boxes are used for the two elections respectively, no vote for any rural district councillor shall be rendered invalid by the ballot paper being placed in the box intended for the reception of ballot papers for parish councillors. (c) The ballot papers used at the election of rural district councillors for the parish shall be of a different colour from that of any ballot papers used in the election of parish councillors held in the parish at the same date. 590 Appendix. Adaptation of Municipal Corporations Act, 1882. 25. — (1.) The provisions of sects. 74 and 75 of the Municipal Corporations Act, 1882, which, with adaptations and alterations, are set out in the Fourth Schedule to this Order, and such of the provisions of that Act as relate to the acceptance of office, re-eligibility of holders of office, and filling of casual vacancies, and are, with adaptations and alterations, set out in the Fifth Schedule to this Order, shall, subject to such adaptations and alterations, apply to the election of rural district councillors and to the persons elected or deemed to be re-elected thereat. (2.) In the application of Part IV. of the Municipal Corpora- tions Act, 1882 (relating to corrupt practices and election peti- tions), as amended by the Municipal Elections (Corrupt and Illegal Fractices) Act, 1884, the following adaptations and alterations shall have effect : — (a) Such application shall be subject to the provisions of this Order. (b) References to the election of rural district councillors shall be substituted for references to a municipal election or to an election to a corporate office. "Parish or united parishes," and in sect. 93 (2) "poor law union" shall be substituted for " borough," " poor rate of the parish or poor rates of the united parishes" shall be substi- tuted for "borough fund or borough rate," the "return- ing officer" shall be substituted for the "town clerk," and "voter" shall mean "a parochial elector, or a person who votes or claims to vote at an election of rural district councillors." (c) In the application of sub-sect. (2) of sect. 89, such sub- section shall be adapted and altered so as to read as follows: — "(2.) The security shall be to the amount of 50£., unless in any case the high court or a judge thereof, on summons, order that the same shall be to a lesser amount, or to a larger amount not exceeding 300/., and shall be given in the prescribed manner either by a deposit of money or by recognizance entered into by not more than 4 sureties, or partly in one way and partly in the other." Adaptation of Municipal Elections (Corrupt and Illegal Practices) Act, 1884. 26. In the application of the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, the following adaptations and altera- tions shall have effect : — (1.) Such application shall be subject to the provisions of this Order. Rural District Councillors Election. 591 (2.) The expressions " parish or united parishes," "returning officer of rural district councillors," and "poor rate of the parish or poor rates of the united parishes " shall be deemed to be substituted in the Act for "borough," " town clerk," and "borough fund or rate," respectively. (3.) The expression " corporate office" in the Act shall mean " the office of rural district councillor," and "a municipal election" shall mean "an election of one or more rural district councillors"; and the expressions "municipal election court," " municipal election list," and "muni- cipal election petition " shall be construed accordingly. (4.) So much of sect. 13 of the Act as permits 1 polling agent to be employed in each polling station shall not apply, except so far as the employment of polling agents is permitted by Iiule 17 of this Order. (5.) An election petition complaining of the election on the ground of an illegal practice may be presented at any time within 6 weeks after the day of election. (6.) A petition relating to the election of a rural district coun- cillor for a parish may be tried at any place within the poor law union in which the parish is situate. (7.) Nothing in the Act shall render it unlawful to hold a meeting for the purpose of promoting or procuring the election of a candidate to the office of rural district councillor on any licensed or other premises not situate in an urban district or in the administrative county of London. (8.) In sect. 34 of the Act " burgess roll " shall mean "register of parochial electors." (9.) Sect. 37 of the Act shall be read as if a reference to an election of rural district councillors was substituted for a reference to any of the elections mentioned in the First Schedule to the Act. Expenses. 27. — (1.) Any sum which may be payable to the returning officer in respect of his services in taking a poll in the parish, or in respect of expenses incurred in relation to such poll, shall be defrayed by the rural district council of the district, and shall be charged to the parish in their accounts and shall be raised in like manner as any sums payable by the parish in respect of the general expenses of the rural district council. (2.) Any other sum which may be payable to the returning officer in respect of his services in the conduct of the election, or in respect of expenses incurred in relation to the election, shall be defrayed by the rural district council of the district, and shall be charged in their accounts as follows : — (a) If the election is the ordinary election, as general expenses ; 592 Appendix. (b) In the case of any election under this Order not held at the time of the ordinary election, to the parish ; in which case any such sum shall be raised in like manner as any sums payable by the parish, in respect of the general expenses of the rural district council : Provided that where any such sum shall be payable in respect of two or more parishes, the same shall be apportioned between them according to the number of parochial electors registered in such parishes respectively. (3.) If a poll for the election of rural district councillors and of any parish councillors is taken at the same date in the parish, one half of any expenses which may be payable in respect of the two polls jointly, including the remuneration of any officers employed in the conduct thereof, shall be deemed to have been incurred in relation to the poll for the election of rural district councillors, and shall be defrayed accordingly. If Parish in more than one County. 28. If the parish is situate in more than one administrative county, it shall for the purposes of this Order be deemed to be wholly situate in the county which, according to the census last published, contains the larger part of its population. Wards. 29. If the parish is divided into wards for the election of rural district councillors, the Rules in this Order shall, except as otherwise provided, apply to each of such wards as if it were a parish. Provided as follows : — (a) If the parish is so divided, an elector shall not be permitted to vote in more than one ward. (b) Any sum which in pursuance of this Pule and of Pule 27 woidd be charged to any ward shall be charged to tbe parish in which the ward is situate and shall be raised accordingly. United Parishes. 30. — (1.) If the parish is united with any other parish for the election of rural district councillors the Pules in this Order shall, subject as hereinafter mentioned, apply as if such parishes formed the parish. (2.) The questions which under Pule 18 the presiding officer may, and if required by any parochial elector, or any polling agent appointed under Pule 17, shall, put to any elector shall be as follows : — (a) Are you the person entered in the parochial register for one of the united parishes, viz., the parish of as follows \_read the whole entry from the register]? Kural District Councillors Election. 593 (b) Have you already voted at the present election of rural district councillors in either of the united parishes of and , or in any other parish or ward in the rural district of ? (3.) Any sum which in pursuance of this Rule and of Rule 27 would be charged to the united parishes shall be divided between them in proportion to the number of parochial electors registered in such parishes respectively, and shall be raised accordingly. Publication of Notices. 31. Any public notice required by this Order shall be given by posting the same on or near the principal door of each church and chapel in the parish, and in some conspicuous place or places within the parish. 3Iark instead of Signature. 32. In place of any signature required by this Order, it shall be sufficient for the signatory to affix his mark, if the same is witnessed by two parochial electors. Misnomer — Inaccurate Descriptions. 33. No misnomer or inaccurate description of any person or place named in any notice or nomination paper under this Order shall hinder the full operation of such notice or paper with respect to that person or place, provided the description of that person or place is such as to be commonly understood. Definition of " Rural Parish " and " Ordinary Election. 1 '' 34. In this Order the expression "rural parish" means a parish situate in a rural district ; and the expression " ordinary election " means the election held in any year to fill any ordinary vacancies in the rural district councillors for the district, and includes any first election of rural district councillors for the parish or election to fill a casual vacancy in the office of rural district councillor for the parish which can be held at the time of the election to fill such ordinary vacancies. Adaptation of Forms to Elections other than the Ordinary Election. 35. If the election is not the ordinary election, such modifica- tions as may be necessary shall be made in the forms contained in the Second Schedule to this Order. This Order may be cited as the " Rural District Councillors Election Order, 1898." Q Q 594 Appendix. First Schedule. a. — Times eor the Proceedings at the Ordinary Election oe Eural District Councillors in any Year. Proceeding 1. Notice of election 2. Receipt of nomination papers .... 3. Sending notice of decision as to validity of nomination papers. 4. Making out statement as to persons nominated. 5. Withdrawal of candidates 6. Notice of poll 7. Day of election Time. Not later than the second Friday in March, or, if the first Monday in April is Easter Monday the first Friday in March. Not later than twelve o'clock at noon on the following Thursday. Not later than the following Friday. Not later than the following Satur- day. Not later than twelve o'clock at noon on the following Tuesday. Five clear days at least before day of election. The first Monday in April, or, if that is Easter Monday, the last Monday in March ; or, in either case, such other day not being earlier than the preceding Saturday, or later than the following Wednesday, as may for special reasons be fixed by the County Council. b. — Times eor the Proceedings at Eirst Elections oe Kural District Councillors, or at Electioxs to till Casual Vacancies, if not held at the time oe the Ordinary Elections. Proceeding. Time. Not later than fourteen days before the day of election. Not later than twelve o'clock at noon on the fourth day after the day on which the notice of election was given. Rural District Councillors Election. 595 Proceeding 3. Sending notice of decisioTi as to ' validity of nomination papers. 4. Making out statement as to per- sons nominated. 5. Withdrawal of candidates G. Notice of poll 7. Day of election Time. Not later than the day after the last day for the receipt of nomination papers. Not later than twelve o'clock at noon on the fourth day after the last day for the receipt of nomination papers. Five clear days at least before day of election. In the case of first elections : — Such day as may be fixed by the returning officer, but so that, sub- ject to any special provision in the Order assigning any addition al coun- cillors or constituting thenew parish, as the case may be, it shall not be later than six weeks from the date when such Order comes into opera- tion. In the case of elections to fill casual vacancies: — Such day as may be fixed by tbe clerk to the district council, in pur- suance of sect. 66 of the Municipal Corporations Act, 1S82, as altered and adapted by the Fifth Schedule to this Order. Second Schedule. Note. — If the election is not the ordinary election, such modi- fications as may be necessary should be made in the Forms in this Schedule (Eule 35). Rural district of Form No. 1. Notice of Election. Election of rural district councillors for the several parishes, united parishes and wards of parishes [as the case may be'], hereinafter mentioned. qq2 596 Appendix. Notice is hereby given that — 1.* The day of election of rural district councillors for the said parishes, united parishes and wards of parishes [as the case may be], will be , the day of , 18 . * If the day of election is not the same for all the parishes, united parishes and wards adapt form accordingly. 2. The number of rural district councillors to be elected for the said parishes, united parishes and wards [as the case may be'], is as followsf : — t Insert here the names of the parishes, united parishes, and wards of parishes, with the number of rural district councillors to be elected for each. A tabular form may be used if preferred. 3. Each candidate for election as a rural district councillor must be nominated in writing, and the nomination paper must be sent to me, so that it shall be received at (which is my office for the purpose of the election) not later than 12 o'clock at noon on , the day of , 18 . 4. A parochial elector must not sign more nomination papers than there are rural district councillors to be elected for the parish or united parishes or ward [_as the case may be], and he must not sign a nomination paper for any parish or united parishes or ward unless he is registered as a parochial elector in respect of a cpialification therein. Neither must he sign nomina- tion papers for more than one parish or group of united parishes or ward in the rural district. 5. Forms of nomination paper may be obtained, free of charge, either from me at the above-named office, or from the overseers of the parish or either of the united parishes for which a nomination is proposed to be made. 6. The nomination paper must be in the following form, or in a form to the like effect : — Form of Nomination Paper. Rural district of Election of rural district councillors for the parish of [or for the united parishes of , or for the ward of the parish of ] in the year 18 . We, the undersigned, being respectively parochial electors of the said parish [or united parishes or ward], do hereby Bural District Councillors Election. 597 nominate the under-mentioned person as a candidate at the said election. Names of Candidate. Place of Abode. 3. Description. 4. How qualified (specify qualifi- Surname. 1. Other Names in full. 2. cation according to direction in Instruction 5). 5. Signature of proposer Place of abode Signature of seconder Place of abode Instructions for filling nj> Nomination Paper.* 1. The surname of only one candidate for election must be inserted in column 1 . 2. The other names of the candidate must be inserted in full in column 2. 3. Insert in column 3 the place of abode of the candidate. 4. In column 4 state the occupation, if any, of the candi- date. If the candidate has no occupation, insert some such description as "gentleman," or "married woman," or "spin- ster," or "widow," as the case may be. 5. If the candidate is a parochial elector of some parish within the union in which the rural district or the part of the rural district comprising the parish is situate (that is, if his or her name is registered in the register of parochial electors of such parish) insert in column 5 " parochial elector of parish of ." If the candidate is not a parochial elector of some parish in that union, but he or she has, during the whole of the 12 months preceding the election, resided in the union, insert in column 5 "residence." If the candidate is not a parochial elector of some parish within the union, and has not during the whole of the 12 months preceding the election resided in the union, but he is qualified to be elected a councillor for some municipal borough wholly or partly situate in the union, insert in column 5 ' ' qualified to be elected councillor of borough of ." If tho candidate has more than one of these quali- 598 Appendix. fications, it will be sufficient to insert in column 5 one of his or her qualifications, but more may be inserted. G. — (1.) The paper must be signed by two parochial electors of the parish [_or united parishes or ward], and no more ; by one as proposer, and by the other as seconder. The places of abode of the proposer and seconder must also be inserted. Instead of signing, the proposer or seconder may affix his mark, if it is witnessed by two parochial electors. (2.) A parochial elector must not sign more nomination papers than there are rural district councillors to be elected for the parish [or united parishes or ward], and he must not sign a nomination paper for any parish [or united parishes or ward] unless he is registered as a parochial elector in respect of a qualification therein. Neither must he sign a nomination paper in more than one parish [or group of united parishes or ward] in the rural district. 7. Not later than , the day of , 18 , I shall cause a copy of a statement containing the names, places of abode, and descriptions of the persons nominated for the office of rural district councillor for the said parishes, united parishes and wards, and also containing a notice of my decision as regards each candidate as to whether he has been nominated by a valid nomination paper or not, to be suspended in the board room of the guardians of the union in which the said parishes, united parishes and wards are situate, and another to be affixed on the principal external gate or door of every workhouse of the union [and of the building in which the board room of the guardians is comprised].! 8. Any candidate nominated for election may, not later than 12 o'clock at noon on , the day of , 18 , withdraw his candidature by delivering or causing to be de- livered at my office for the purposes of the election a notice in writing of such withdrawal, signed by him. 9.J If the number of candidates who are validly nominated for any parish, united parishes or ward, and whose candidature is not withdrawn, exceeds that of the persons to be elected, a poll will be taken on , the day of , 18 , of which due notice will be given. Dated this day of ,18. Office for purpose of election. Returning Officer. * These instructions form part of the nomination paper, t If the Board room is at the -workhouse, omit these words. % If the day of the election is not the same for all the parishes, united parishes, and wards, adapt form accordingly. Rural District Councillors Election. 599 Form No. 2. Statement as to Persons nominated. Rural district of The following is a statement as to the persons nominated for election as rural district councillors for the several parishes, united parishes and wards of parishes \_as the case may be~\ in the above-named rural district for which an election is to be held in the year 18 Parishes [United Parishes and Wards]. 1. Persons Nominated. Decision of Re- turning Officer Names (Surnames first). 2. Places of Abode. 3. Descriptions. 4. that Candidate has not been nominated by a valid Nomination Paper. 5. The candidates opposite whose names no entry is made in Column 5 have been validly nominated. Dated this day of ,18. Office for purpose of election. Returning Officer. Form No. 3. Notice that no Poll will he taken. Rural district of Parish of [or united parishes of ]. Whereas the following candidates have been duly nominated for election as rural district councillors for the said parish [or ward or united parishes] : — [Insert names, places of abode, and descriptions of candidates.^ ward of the parish of GOO Appendix. And whereas the number of those [or And whereas [insert name or names] has [or have] since withdrawn his [or their] candidature [or if some other event has occurred causing a person to cease to be a candidate state what it is], and the number of the remaining] candidates is [equal to or less than] the number of persons, namely, to be elected as rural district councillors for the said parish [or ward or united parishes]. I do hereby give notice that a poll will not be taken, and that [insert names] will be declared elected as rural district councillors for the said parish [or ward or united parishes],* and also that [insert names] retiring rural district councillors for the said parish [or ward or united parishes], will be declared to be deemed to be re-elected. Dated this day of ,18. Eeturning Officer. * If the number of candidates or remaining candidates is equal to the number to be elected, or if the election is a first election, or is to fill a casual vacancy, omit from asterisk to the end of the sentence. Form No. 4. Notice where no Candidates are nominated. Eural district of Parish of [or ward of the parish of , or united parishes of ]. I do hereby give notice that no candidate has been duly nominated for election as a rural district councillor for the said parish [or ward or united parishes],* and that [insert names] the retiring rural district councillors for the said parish [or ward or united parishes] will be declared to be deemed to be re-elected. Dated this day of ,18. Eeturning Officer. * If the election is a first election, or is to fill a casual vacancy, omit from asterisk to the end of the sentence. Rural District Councillors Election. 601 Form No. 5. Notice of Poll. [This form relates to a poll for tlie election of rural district councillors only.] Rural district of Election of rural district councillors in the year 1 8 . Parish of [_or ward of the parish of , or united parishes of ]• Notice is hereby given — 1 . That a poll for the election of rural district councillors for the above-named parish [or ward or united parishes] will be held on the day of , 18 , between the hours of and 2. That the number of rural district councillors to be elected for the parish [or ward or united parishes] is 3. That the names in alphabetical order, places of abode, and descriptions of the candidates for election, and the names of their respective proposers and seconders are as follows : — Names of Candidate (Surname first). Place of Abode. Description. Names of Names of Proposer Seconder (Surname first) J (Surname first). 4.f — (1.) That each elector must vote in the polling district in which the property in respect of which he votes is situate, and if it is situate in more than one polling district he may vote in any one (but in one only) of such polling districts. (2.) The polling districts are as follows : — 5.J The situation and allotment of the polling places and polling stations and the description of the persons entitled to vote thereat are as follows : — 602 Appendix. 6. The poll will be taken by ballot, and tbe colour of the ordinary ballot paper used in the election will be [insert colour]. Dated this day of , 18 . Office for purpose of election. Returning officer. * Insert particulars as to each candidate for the parish or ward or united parishes whose nomination is valid, and who has not withdrawn his candidature. t If the parish or ward or united parishes are not divided into polling districts for the purposes of the election, paragraph 4 should be omitted. % If only one polling place or station, adapt form accordingly. Fok^i No. 6. Notice of Poll [This form relates to a poll for the election of parish councillors and rural district councillors for the same area.] Election of parish and rural district councillors for the parish of [or for the ward of the parish of in the year 1 8 . Notice is hereby given — 1 . That polls for the election of parish and rural district coun- cillors for the above-named parish [or ward] will be held on , the day of 18 , between the hours of and 2. That the number of parish councillors to be elected for the parish [or ward] is 3. That the number of rural district councillors to be elected for the parish [or ward] is 4. That the names in alphabetical order, places of abode, and descriptions of the candidates for election, and the names of their respective proposers and seconders are as follows : — As Parish Councillors. Names of Candidate (Surname first) . Place of Abode. Description. Names of Proposer (Surname first). Names of Seconder (Surname first) . Rural District Councillors Election. 603 As Kural District Councillor^]. Names of Candidate (Surname first). Place of Abode.' Description. Names of Names of Proposer Seconder (Surname first) . i (Surname first). 5.f — (I.) That each elector must vote in the polling district in which the property in respect of which he votes is situate, and if it is situate in more than one polling district he may vote in any one (but in one only) of such polling districts. (2.) The polling districts are as follows : — 6.J The situation and allotment of the polling places and polling stations and the description of the persons entitled to vote thereat are as follows : — ■ 7. The poll will be taken by ballot, and the colour of the ordi- nary ballot paper used in the election of parish councillors will be [insert colour], and in the election of rural district councillors will be [insert colour]. Dated this day of Eeturning officer. Office for purpose of election. * Insert particulars as to each candidate, whose name was put to the parish meeting, and who has not withdrawn his candidature. t If the parish or ward is not divided into polling districts for the purposes of the election, paragraph 5 should be omitted. % If only one polling placo or station, adapt form accordingly. 604 Appendix. Form No. 7. Declaration of Result of Poll. Rural district of Election of rural district councillors in the year 1 8 . Parish of [or "ward of the parish of or united parishes of ]. I, the undersigned, being the returning officer [or deputy returning officer duly authorised in that behalf] at the poll for the election of rural district councillors for the said parish [or ward or united parishes] held on the day of , 18 , do hereby give notice that the number of votes recorded for each candidate at the election is as follows : — Names of Candidates. Places of Abode. Number of Votes Surnames. Other Names. Recorded. And I do hereby declare that the said are duly elected rural district councillors for the said parish [or ward or united parishes]. Dated this day of , 18 . Returning officer [or Deputy returning officer]. Rural district of Form No. 8. Notice of Result of Elections. Election of rural district councillors in the year 18 . I, the undersigned, beiug the returning officer at the election of rural district councillors for the said district, do hereby give notice that the candidates whose names are entered in column 6 of the statement hereunder, opposite to the names of parishes, wards, and united parishes in which polls have been taken, have Rural District Councillors Election - . 605 been declared duly elected rural district councillors ; and I hereby declare that the persons whose names are entered in the said column [or in column 7] * opposite to the names of parishes, wards, and united parishes where no polls have been taken were duly elected [or are to be deemed to be re-elected] * rural district councillors for the same. Parishes, Wards, and United Names of Candidates. Places of Abode. Number of Votes recorded. 5. Names of Candidates elected. 6. Names of retiring Councillors deemed Parishes. 1. Surname. 2. Other Names. 3. 4. to be re-elected. 7. Dated this day of ,18. Returning officer. * If the election is a first election or is to fill a casual vacancy, omit these words and column 7. Third Schedule. Provisions of the Ballot Act, 1872, as adapted and altered in their Application to the Election op Rural District Councillors. Procedure at Elections of Rural District Councillors. Poll at Elections. 2. The ballot of each voter shall consist of a paper (in this Act called a ballot paper) showing the names and description of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting, the ballot paper shall be marked on both sides with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on tho counterfoil, and the voter having secretly marked his vote on tho paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer presiding at the polling GOG Appendix. station (in this Act called "the presiding officer") after having shown to him the official mark at the hack. If in the register of parochial electors for a parish the same numher is placed opposite to the name of more than one parochial elector, the returning officer shall put a distinguishing mark on each part of the register which contains numbers used in other parts of the register, and when the numher of any voter on any part of the register is entered on the counterfoil of a ballot paper the mark on that part shall also be entered thereon. Any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything, except the said number on the back, is written or marked by which the voter can be identified, shall be void and not counted. After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes, and ascertain the result of the poll by counting the votes given to each candidate, and shall forthwith declare to be elected the candidates or candi- date to whom the majority of votes have been given. The decision of the returning officer as to any question arising in respect of any ballot paper shall be final, subject to reversal on petition questioning the election or return. Offences. Offences in respect of Ballot Papers and Ballot Boxes. 3. Every person who — (1.) Forges or counterfeits or fraudulently defaces or fraudu- lently destroys any ballot paper, or the official mark on any ballot paper ; or (2.) Without due authority supplies any ballot paper to any person ; or (3.) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in ; or (4.) Fraudidently takes out of the polling station any ballot paper ; or (5.) Without due authority destroys, takes, opens, or otherwise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election ; shall be guilty of a misdemeanor, and be liable, if he is a return- ing officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding 2 years, with or without hard labour, and if he is any other person, to imprison- ment for any term not exceeding 6 months, with or without hard labour. Sural District Councillors Election. C07 Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is punishable. In any indictment or other prosecution for an offence in relation to the ballot boxes, ballot papers, and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning- officer at such election, as well as the property in the counterfoils. Infringement of Secrecy. 4. Every officer, clerk, and agent in attendance at a polling station shall maintain and aid in maintaining the secrecy of the voting in such station, and shall not communicate, except for some purpose authorised by law, before the poll is closed, to any person any information as to the name or number on the register of parochial electors of any elector who has or has not applied for a ballot paper or voted at that station, or as to the official mark, and no such officer, clerk, or agent, and no person who- soever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any information obtained in a polling station as to the candidate for whom any voter in such station is about to vote or has voted, or as to the number on the back of the ballot paper given to any voter at such station. Every officer, clerk, and agent in attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall directly or in- directly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote. Every person who acts in contravention of the provisions of this section shall be liable, on summary conviction before two justices of the peace, to imprisonment for any term not exceeding 6 months, with or without hard labour. Use of School akd Public Eooir for Poll. 6. The returning officer at an election of rural district coun- cillors may use, free of charge, for the purpose of taking the poll or for counting the votes at such election, any room in a school receiving a grant out of moneys provided by Parliament, and any room the expense of maintaining which is payable out 608 Appendix. of any local rate, but he shall make good any damage done to such room, and defray any expense incurred by the person or body of persons, corporate or unincorporate, having control over the same on account of its being used for the purpose of taking the poll or for counting the votes as aforesaid. The use of any room in an unoccupied house for the purpose of taking the poll shall not render any person liable to be rated or to pay any rate for such house. Duties of Keturning and Election Officers. General Powers and Duties of Returning Officer. 8. Subject to the provisions of this Act, every returning officer shall provide such nomination papers, polling stations, ballot boxes, ballot papers, stamping instruments, copies of register of parochial electors and other things, appoint and pay such officers, and do such other acts and things as may be necessary for effectually conducting the election. Keeping of Order in Station. 9. If any person misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer, he may immediately, by order of the presiding officer, be removed from the polling station by any constable in or near that station, or any other person authorised in writing by the returning officer to remove him ; and the person so removed shall not, unless with the permission of the presiding officer, again be allowed to enter the polling station during the day. Any person so removed as aforesaid, if charged with the com- mission in such station of any offence, may be kept in custody until he can be brought before a justice of the peace. Provided that the powers conferred by this section shall not be exercised so as to prevent any elector who is otherwise entitled to vote at any polling station from having an opportunity of voting at such station. Poivers of Presiding Officer and Administration of Oaths, 8fc. 10. For the purpose of the adjournment of the poll a presiding officer shall have the power by law belonging to a deputy return- ing officer in a Parliamentary election ; and any presiding officer and any clerk appointed by the returning officer to attend at a polling station shall have the power of asking the questions and administering the oath authorised by law to be asked of and administered to voters, and any justice of the peace and any returning officer may take and receive any declaration authorised by this Act to be taken before him. Rural District Councillors Election. 609 Liability of Officers for Misconduct. ] 1 . Every returning officer, presiding officer, and clerk who is guilty of any wilful misfeasance or any wilful act or omission in contravention of this Act shall, in addition to any other penalty or liability to which he may be subject, forfeit to any person aggrieved by such misfeasance, act, or omission, a penal sum not exceeding 100/. No returning officer or officer appointed by him in connection with the election of rural district councillors for any rural district, nor any partner or clerk of any such officer, shall act as agent for any candidate in the management or conduct of his election as a rural district councillor. If any returning officer or officer appointed by him, or the partner or clerk of any such officer, shall so act he shall be guilty of a misdemeanor. Miscellaneous. Prohibition of Disclosure of Vote. 12. No person who has voted at an election shall, in any legal proceeding to question the election or return, be required to state for whom he has voted. Non-compliance xoith Rules. 13. No election shall be declared invalid by reason of a defect in the title or appointment of the returning officer or deputy returning officer or of a non-compliance with the Rules contained in the First Schedule to this Act or in the Rural District Coun- cillors Election Order, 1898, or any mistake in the use of the forms in the Second Schedule to this Act or in the said Order, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act and of the Local Government Act, 1894, and that such non-compliance or mistake did not affect the result of the election. Personation. Definition and Punishment of Personation. 24. The following enactments shall be made with respect to personation at an election of rural district councillors : — It shall be the duty of the returning officer to institute a prosecution against any person whom he may believe to have been guilty of personation, or of aiding, abetting, counselling, or procuring the commission of the offence of personation by any person, at the election for which he is returning officer, and the S. R R 610 Appendix. costs and expenses of the prosecutor and the witnesses in such case, together with compensation for their trouble and loss of time, shall be allowed by the court in the same manner in which courts are empowered to allow the same in cases of felony. Sects. 86 to 89, both inclusive, of the Parliamentary Voters Registration Act, 1843, shall apply to personation at an election of rural district councillors in the same manner as they apply to a person who knowingly personates and falsely assumes to vote in the name of another person as mentioned in the said Act, but with the substitution of the words " any parochial elector or any agent appointed under the Rural District Councillors Election Order, 1898," for " any such agent so appointed as aforesaid" or for any reference to any such agent, and of "the presiding officer" for -'the returning officer or his respective deputy." Effect of Schedules. 28. The Schedules to this Act, and the notes thereto, and directions therein, shall be construed and have effect as part of this Act. SCHEDULES TO ACT. First Schedule to Act. Rules for Elections of Rural District Councillors. The Poll. 15. At every polling place the returning officer shall, subject to the provisions of the Rural District Councillors Election Order, 1898, provide a sufficient number of polling stations for the accommodation of the electors entitled to vote at such polling place, and shall distribute the polling stations amongst those electors in such manner as he thinks most convenient. 17. A separate room or separate booth may contain a separate polling station, or several polling stations may be constructed in the same room or booth. 18. No person shall be admitted to vote at any polling station except the one allotted to him. 20. The returning officer shall provide each polling station with materials for voters to mark the ballot papers, with instru- ments for stamping thereon the official mark, and with copies of the register of voters, or such part thereof as contains the names of the voters allotted to vote at such station. He shall keep the official mark secret. Rural District Councillors Election. 611 21. The presiding officer appointed to preside at each station shall keep order at his station, shall regulate the number of electors to be admitted at a time, and shall exclude all other persons except the clerks, the agents of the candidates, and the constables on duty. 22. Every ballot paper shall contain a list of the candidates described as in their respective nomination papers, and arranged alphabetically in the order of their surnames, and (if there are two or more candidates with the same surname) of their other names ; it shall be in the form set forth in the Second Schedule to this Act or as near thereto as circumstances admit, and shall be capable of being folded up. 23. Every ballot box shall be so constructed that the ballot papers can be introduced therein, but cannot be withdrawn therefrom, without the box being unlocked. The presiding officer at any polling station, just before the commencement of the poll, shall show the ballot box empty to such persons, if any, as may be present in such station, so that they may see that it is empty, and shall then lock it up, and place his seal upon it in such manner as to prevent its being opened without breaking such seal, and shall place it in his view for the receipt of ballot papers, and keep it so locked and sealed. 24. Immediately before a ballot paper is delivered to an elector, it shall be marked on both sides with the official mark, either stamped or perforated, and the number, name, and description of the elector as stated in the copy of the register shall bo called out, and the number of such elector, together with the distinguishing mark, if any, of the part of the register in which the number occurs shall, as required by sect. 2 of this Act as adapted be marked on the counterfoil, and a mark shall be placed in the register against the number of the elector, to denote that he has received a ballot paper, but without showing the particular ballot paper which he has received. 25. The elector, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station, and there mark his paper, and fold it up so as to conceal his vote, and shall then put up his ballot paper, so folded up, into the ballot box ; he shall vote without undue delay, and shall quit the polling station as soon as he has put his ballot paper into the ballot box. 26. The presiding officer, on the application of any voter who is incapacitated by blindness or other physical cause from voting in manner prescribed by this Act, or on the application before sunset (if the poll be taken on Saturday) of any voter who declares that he is of the Jewish persuasion, and objects on religious grounds to vote in manner prescribed by this Act, or of any voter who makes such a declaration as hereinafter mentioned that he is unable to read, shall, in the presenco of the agents of the candidates, cause the vote of such voter to bo marked on a r r 2 612 Appendix. ballot paper in maimer directed by such voter, and the ballot paper to be placed in the ballot box, and the name and number on the register of voters of every voter whose vote is marked in pursuance of this Rule, and the reason why it is so marked, shall be entered on a list, in this Act called "the list of votes marked by the presiding officer." The said declaration, in this Act referred to as "the declaration of inability to read," shall be made by the voter at the time of polling, before the presiding officer, who shall attest it in the form hereinafter mentioned, and no fee, stamp, or other payment shall be charged in respect of such declaration, and the said declaration shall be given to the presiding officer at the time of voting. 27. If a person, representing himself to be a particular elector named on the register, applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions permitted by the Rural District Coun- cillors Election Order, 1898, to be asked of voters at the time of polling, and upon taking an oath in the form hereinafter set out, which the presiding officer shall administer, be entitled to mark a ballot paper in the same manner as any other voter, but the ballot paper (in this Act called a tendered ballot paper) shall be of a colour differing from the other ballot papers, and, instead of being put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer. And the name of the voter and his number on the register shall be entered on a list, in this Act called " the tendered votes list." The oath shall be administered in the following form : — " You do swear that you are the same person whose name appears as A.B. on the register of parochial electors for the parish of [or ward of the parish of ], and that you have not already voted at the present election of rural district councillors in this or any other parish or ward in the rural district. " So help you God." Provided that any person entitled to affirm in lieu of taking an oath may affirm in the following form : — "I, A.B., do solemnly, sincerely, and truly declare and affirm that I am the same person whose name appears as A.B. on the register of parochial electors for the parish of [or ward of the parish of ], and that I have not already voted at the present election of rural district councillors in this or any other parish or ward in the rural district." Eural District Councillors Election. 613 28. A voter who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper, may, on delivering to the presiding officer the ballot paper so inadvertently dealt with, and proving the fact of the inadvertence to the satisfaction of the presiding officer, obtain another baUot paper in the place of the ballot paper so delivered up (in this Act called a spoilt ballot paper), and the ballot paper shall be immediately cancelled. 29. The presiding officer of each station, as soon as practicable after the close of the poll, shall make up into separate packets sealed with his seal, — (1.) Each ballot box in use at his station, unopened but with the key attached ; and (2.) The unused and spoilt ballot papers, placed together ; and (3.) The tendered ballot papers ; and (4.) The marked copies of .the register of parochial electors, and the counterfoils of the ballot papers ; and (5.) The tendered votes list, and the list of votes marked by the presiding officer, and a statement of the number of the voters whose votes are so marked by the presiding officer under the heads "physical incapacity," " Jews," and "unable to read," and the declarations of inability to read ; and shall deliver such packets to the returning officer, or deputy returning officer, by whom the votes are to be counted, unless he is himself such officer. 30. The packets shall be accompanied by a statement made by such presiding officer, showing the number of ballot papers entrusted to him, and accounting for them under the heads of ballot papers in the ballot box, unused, spoilt, and tendered ballot papers, which statement is in this Act referred to as the ballot paper account. Counting Votes. 31 . Each candidate may appoint an agent to attend the counting of the votes. 32. The returning officer shall make arrangements for counting the votes in the presence of the agents of the candidates as soon as practicable after the close of the poll, and shall give to the agents of the candidates appointed to attend at the counting of the votes notice in writing of the time and place at which he will begin to count the same. 33. The returning officer, his assistants and clerks, the agents of the candidates, any person to whom Rule 51 of this Schedule applies and no other person, except with the sanction of the returning officer, may be present at the counting of the votes. 34. If a poll has been taken as to the election of rural district councillors only, before the returning officer proceeds to count the 614 Appendix. votes, he shall, in the presence of the agents of the candidates, open each ballot box, and taking out the papers therein, shall count and record the number thereof, and then mix together the ■whole of the ballot papers contained in the ballot boxes. If polls have been taken at the same date for the election both of rural district councillors and of parish councillors, before the returning officer proceeds to count the votes, he shall, in the presence of the agents of the candidates, open one of the ballot boxes, and taking out the papers therein shall separate those relating to the election of rural district councillors from any relating to the election of parish councillors, and shall count and record the number of ballot papers relating to each election. He shall then secure the ballot papers relating to each election by placing them in separate packets under his own seal, and the seals of such of the agents of the candidates as desire to affix their seals, and shall proceed in like manner with any other ballot boxes and the papers therein. When all the ballot boxes and the papers therein have been so dealt with, he shall open all the packets of ballot papers relating to one election, and shall mix all such papers together, and shall proceed to count the votes, keeping the papers relating to any other election sealed up until he has completed such counting. He shah! afterwards deal in manner aforesaid with the packets and papers relating to the other election or elections. The returning officer, while counting and recording the number of ballot papers and counting the votes, shall keep the ballot papers with their faces upwards, and take all proper precautions for preventing any person from seeing the numbers printed on the backs of such papers. 35. The returning officer shall, so far as practicable, proceed continuously with counting the votes, allowing only time for refreshment, and excluding, if and so far as he thinks it necessary, the hours between the close of the poll and 9 o'clock on the succeeding morning. During the excluded time the returning officer shall place the ballot papers and other documents relating to the election under his own seal and the seals of such of the agents of the candidates as desire to affix their seals, and shall otherwise take proper precautions for the security of such papers and documents. 36. The returning officer shall endorse "rejected" on any ballot paper which he may reject as invalid, and shall add to the endorsement "rejection objected to," if an objection be in fact made by any agent to his decision. The returning officer shall draw up a statement showing the number of ballot papers rejected and not counted by him under the several heads of — 1 . Want of official mark ; 2. Voting for more candidates than entitled to ; 3. Writing or mark by which voter could be identified ; 4. Unmarked or void for uncertainty; Rural District Councillors Election. 615 and shall on request allow any agents of the candidates to copy such statement. If the votes are counted by a deputy returning officer he shall, with the declaration of the result of the poll, report to the returning officer the number of ballot papers rejected and not counted by him, under the above heads, and no such statement as aforesaid shall be drawn up by the returning officer. The deputy returning officer shall, on request, allow any agents of the candidates before such report is sent in, to copy it. 37. Upon the completion of the counting, the returning officer shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or marked copy of the register of voters and counterfoils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded by him as aforesaid, and the unused and spoilt ballot papers in his possession and the tendered votes list, and shall reseal each sealed packet after examination. The returning officer shall draw up a statement as to the result of such verification, and shall, on request, allow any agents of the candidates to copy it. If the votes are counted by a deputy returning officer, he shall report to the returning officer the result of the verification, and no such statement as aforesaid shall be drawn up by the returning officer. The deputy returning officer shall, on request, allow any agents of the candidates, before such report is sent in, to copy it. He shall, with his report, send to the returning officer the sealed packets of counted and rejected ballot papers, and the unopened sealed packets which he has received from any presiding officer. 38. Lastly, the returning officer shall carefully preserve for the period hereinafter mentioned all the packets of ballot papers in his possession, together with the said reports, the ballot paper accounts, tendered votes lists, lists of votes marked by the pre- siding officer, statements relating thereto, declarations of inability to read, and packets of counterfoils, and marked copies of registers, endorsing on each packet a description of its contents and the date of the election to which they relate, and the name of the parish for which such election was held. 39. The returning officer shall retain for 6 months all documents relating to an election of rural district councillors, and then, unless otherwise directed by an order of tbe county court having jurisdiction in the rural district or in any part thereof, or of any tribunal in which the election is questioned, shall cause them to be destroyed. 40. No person shall be allowed to inspect any rejected ballot papers in the custody of the returning officer, except under tho order of the county court or tribunal aforesaid, to be granted by such court or tribunal on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of instituting or maintaining a prosecution for an GIG Appendix. offence in relation to ballot papers, or for the purpose of a petition questioning an election or return ; and any such order for the inspection or production of ballot papers may be made subject to such conditions as to persons, time, place, and mode of inspection or production as the court or tribunal making the same may think expedient, and shall be obeyed by the returning officer. 41. No person shall, except by order of the county court having jurisdiction in the rural district or any part thereof, or of any tribunal having cognizance of any question relating to the election, open the sealed packet of counterfoils after the same has been once sealed up, or be allowed to inspect any counted ballot papers in the custody of the returning officer. Such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the court or tribunal making the order may think expedient : Provided that on making and carrying into effect any such order, care shall be taken that the mode in which any particular elector has voted shall not be discovered until he has been proved to have voted, and his vote has been declared by a competent court to be invalid. 42. All documents in the custody of a returning officer in pursuance of this Act, other than ballot papers and counterfoils, shall be open to public inspection at such time and under such regulations as may have been or may hereafter be prescribed by the council of the county in which the parish is situate, and the returning officer shall supply copies of or extracts from the said documents to any person demanding the same, on payment of such fees and subject to such regulations as may have been or may hereafter be prescribed by the County Council. 43. Where an order is made for the production by the re- turning officer of any document in his possession relating to any specified election of rural district councillors, the production by such officer or his agent of the document ordered, in such manner as may be directed by such order, or by an order of the court having power to make such first-mentioned order, shall be con- clusive evidence that such document relates to the specified election ; and any endorsement appearing on any packet of ballot papers produced by such returning officer or his agent shall be evidence of such papers being what they are stated to be by the endorsement. The production from proper custody of a ballot paper purporting to have been used at any election, and of a counterfoil marked with the same printed number and having a number marked thereon in writing, shall be prima facie evidence that the person who voted by such ballot paper was the person who at the time of such election had affixed to his name in the register of voters at such election the same number as the number written on such counterfoil. 43. (a.) There shall be an appeal from any order of the county court under these rides in like manner as in other cases in such court. Rural District Councillors Election. 617 General Provisions. 47. If the returning officer presides at any polling station, the provisions of this Act relating to a presiding officer shall apply to such returning officer with the necessary modifications as to things to be done by the returning officer to the presiding officer, or the presiding officer to the returning officer. 48. The returning officer may, in addition to any clerks, appoint competent persons to assist him in counting the votes. 49. No person shall be appointed by a returning officer for the purposes of an election who has been employed by any other person in or about the election. 50. The presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorised to do by this Act at a polling station except ordering the arrest, exclusion, or ejection from the polling station of any person. 51. A candidate may himself undertake the duties which any agent of his, if appointed under Rule 31 of this Schedule, might have undertaken, and may, if he does not appoint such an agent, be present at the counting of the votes, or may himself take the place of such agent. Provided that any person acting under this Rule may at any time before so acting make the statutory declaration required by Rule 54 of this Schedule, but he shall not so act until he has made such declaration. 52. The name and address of every agent of a candidate appointed to attend the counting of the votes shall be trans- mitted to the returning officer one clear day at the least before the opening of the poll ; and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, notwithstanding that his appointment may be otherwise valid, and any notice required to be given to an agent by the returning officer may be delivered at or sent by post to such address. 53. If any person appointed an agent for the purposes of attending a polling station, or at the counting of the votes, dies, or becomes incapable of acting during the time of the election, another agent may be appointed in his place, and notice shall forthwith be given to the returning officer in writing of the name and address of any agent so appointed. 54. Every returning officer, and every officer, clerk, or agent authorised to attend at a polling station, and also every officer, clerk, or agent authorised to attend at the counting of the votes, shall, before the opening of the poll, make a statutory declaration of secrecy, in the presence, if he is the returning officer, of a justice of the peace, and if he is any other officer or an agent, of a justice of the peace or of the returning officer ; but no such returning officer, officer, clerk, or agent as aforesaid G18 Appendix. shall, save as aforesaid, T>o required, as such, to make any declara- tion or take any oath on the occasion of any election. 55. Where in this Act any expressions are used requiring or authorising or inferring that any act or thing is to be done in the presence of the agents of the candidates, such expressions shall be deemed to refer to the presence of such agents of the candi- dates as may be authorised to attend, and as have in fact attended, at the time and place where such act or thing is being done, and the non-attendance of any agents or agent at such time and place (shall not, if such act or thing be otherwise duly done, in anywise invalidate the act or thing done. Second Schedule to Act. Note. — The forms contained in this Schedule, or forms as nearly resembling the same as circumstances will admit, shall be used in all cases to which they refer and are applicable, and when so used shall be sufficient in law. Counterfoil No. Note : — The counterfoil is to have a number to correspond with that on the back of the Ballot Paper. « Form of Ballot Paper. Form of Front of Ballot Paper. ! ELECTION OF RURAL DISTRICT COUNCILLORS. ADAMS 1 (Walter Adams, of Green Farm, Farmer.) HIGG1NS 2 (William Henry Higgins, of Mudford, Agricultural Labourer.) MERTON \ 3 (Hon. George Travis, commonly called Viscount Merton, of Swanworth, Wilts, Gentleman.) : PRITCHARD : 4 (Jane Pritchard. of Rose Villa, Married Woman.) Eural District Councillors Election. 619 Form of Back of Ballot Paper. No. Election of rural district councillors for parish [or united parishes, or ' ward of parish] , 18 . Note. — The numher on the ballot paper is to correspond with that in the counterfoil. Directions as to printing Ballot Paper. Nothing is to be printed on the ballot paper except in accord- ance with this schedule. The surname of each candidate, and if there are two or more candidates of the same surname, also the other names of such candidates, shall be printed in large characters, and the names, places of abode, and descriptions, and the number on the back of the paper, shall be printed in small characters. Form of Directions for the Guidance of the Voter in voting, which shall be printed in conspicuous Characters, and placarded outside every Polling Station and in every Compartment of every Polling Station. The voter may vote for candidates as rural district councillors. The voter will go into one of the compartments, and, with the pencil provided in the compartment, place a cross on the right- hand side, opposite the name of each candidate for whom ho votes, thus X- The voter will then fold up the ballot paper so as to show the official mark on the back, and leaving the compartment will, without showing the front of the paper to any person, show the official mark on the back to the presiding officer, and then, in the presence of the presiding officer, put the paper into the ballot box and forthwith quit the polling station. If the voter inadvertently spoils a ballot paper, he can return it to the officer, who will, if satisfied of such inadvertence, give him another paper. If the voter votes for more than candidates, or places any mark on the paper by which he may be afterwards identified, his ballot paper will be void, and will not ho counted. If the voter takes a ballot paper out of the polling station, or deposits in the ballot box any other paper than the one given 620 Appendix him by the officer, lie will be guilty of a misdemeanor, and be subject to imprisonment for any term not exceeding 6 months, with or without hard labour. Note. — These directions shall be illustrated by examples of the ballot paper. Form of Statutory Declaration of Secrecy. I solemnly promise and declare, That I will not at this election of rural district councillors for the parish of [or united parishes of , or ward of the parish of ] do anything forbidden by sect. 4 of The Ballot Act, 1872, which has been read to me. Note. — The section must be read to the declarant by the person taking the declaration. One declaration may be made by the returning officer in respect of all the parishes for which he is returning officer. Form of Declaration of inability to read. I, A.B., of , being numbered on the register of parochial electors for the parish of , do hereby declare that I am unable to read. A.B., his mark. day of , 18 . I, the undersigned, being the presiding officer for the polling station for the parish of [or united parishes of or ward of the parish of ], do hereby certify that the above declaration, having been first read to the above- named A.B., was signed by him in my presence with his mark. Signed CD., presiding officer for polling station for the parish of [or united parishes of or ward of the parish of ]. day of , 18 . Rukal District Councillors Election. 621 Fourth Schedule. Sections 74 and 75 of the Municipal Corporations Act, 1882, as adapted and altered in their application to the election of rural district councillors. Offences in relation to Nomination Papers. 74. — (1.) If any person forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any forged nomination paper, knowing it to be forged, he shall be guilty of a misdemeanor, and shall be liable to imprisonment for any term not exceeding 6 months, with or without hard labour. (2.) An attempt to commit any such offence shall be punish- able as the offence is punishable. Neglect of Duty by Returning Officer or Deputy Returning Officer. 75. — (1.) If a person who has undertaken to act as returning officer, or deputy returning officer, at an election of rural district councillors, neglects or refuses to conduct or declare the election in manner provided by the Local Government Act, 1894, and the Rural District Councillors Election Order, 1898, he shall fur every such offence be liable to a fine not exceeding 100/., recoverable by action. (2.) An action under this section shall not lie after 3 months from the neglect or refusal. Fifth Schedule. Provisions of the Municipal Corporations Act, 1882, relating to the acceptance of office, re-eligibility of holders of office, and filling of casual vacancies, as adapted and altered in their application to the election of rural district councillors. Obligation to accept Office or pay Fine. 34. — (1.) Every qualified person elected or deemed to be re- elected to the office of rural district councillor, unless exempt under this section or otherwise by law, either shall accept the office by making and subscribing the declaration required by this Act within 1 month after notice of being elected or deemed to be re-elected, or shall, in lieu thereof, be liable to pay to the district council a fine of such amount, not exceeding 50/., as the district council by regulations determine, and such fine shall be placed to the credit of the parish for which the person fined was elected. 622 ArPENDix. (2.) If there are no regulations determining fines, the fine shall be 201. (3.) The persons exempt under this section are — Any person disabled by lunacy or imbecility of mind, or by deafness, blindness, or other permanent infirmity of body, and any person who having within 5 years before the day of election served the office of rural district councillor for the parish or other area, claims exemption within 10 days after notice of election or of being declared to be deemed to be re-elected. (I.) A fine payable under this section shall be recoverable summarily. (5.) If a person is either elected or deemed to be re-elected rural district councillor in more than one parish or other area in the rural district for which the election is held, he shall not accept office in respect of more than one of such areas, and if he accepts office or pays the fine for non-acceptance of office in respect of one of such areas, he shall not be liable to a fine for non-accept- ance of office in respect of any other of such areas. (6.) Any person who has been nominated and elected without his consent to his nomination being previously obtained shall not be liable to a fine under this section. Declaration on acceptance of Office. 35. A person elected or deemed to be re-elected to the office of rural district councillor shall not, until he has made and sub- scribed before two members of the district council, or the clerk to the district council, or, if he is absent from the United Kingdom, before a British consul, a declaration in the following form or in a form to the like effect, act in the office except in administering that declaration : — Form of Declaration on Acceptance of Office. I, A. B., having been elected \_or being deemed to be re-elected] rural district councillor for the rural district of , in respect of the parish of [or of the united parishes of and , or of the ward of the parish of ], hereby declare that I take the said office upon myself, and will duly and faithfully fulfil the duties thereof according to the best of my judgment and ability. Dated this day of ,18. This declaration was made and subscribed beforo us* Members of the district I council of the above-named < district. ( * If the declaration is made and subscribed beforo the clerk or a consul, adapt form accordingly. Rural District Councillors Election. 623 Power to receive Declaration. 239. — (1.) Members of the district council or the clerk or a British consul shall have authority to receive the declaration required to be made by a rural district councillor without any commission or authority other than this Act. (2.) The declaration, if made before a British consul, shall be forthwith sent to the clerk to the district council. Penalty on acting in office without making Declaration. 41. — (1.) If any person acts in the office of rural district coun- cillor without having made the declaration by this Act required, he shall for each offence be liable to a fine not exceeding 20/., recoverable by action. Re-eligibility of Office-holders. 37. A person ceasing to hold the office of rural district coun- cillor shall, unless disqualified to hold the office, be re-eligible. Filling of Casual Vacancies. 40. — (1.) On a casual vacancy in the office of rural district councillor, an election shall be held in accordance with the Rural District Councillors Election Order, 1898 ; and the person elected shall hold the office until the time when the person in whose place he is elected would regularly have gone out of office, and he shall then go out of office. (2.) In case of more than one casual vacancy in the office of rural district councillor being filled at the same election, not being the ordinary election, the councillor elected by the smallest number of votes shall be deemed to be elected in the place of him who would regularly have first gone out of office, and the councillor elected by the next smallest number of votes shall be deemed to be elected in the place of him who would regularly have next gone out of office, and so with respect to the others ; and if there has not been a contested election, or if any doubt arises, the order of rotation shall be determined by the district council. (3.) Non-acceptance of office by a person elected or deemed to be re-elected creates a casual vacancy. Time for filling Casual Vacancies. G6. — (1.) On a casual vacancy in the office of rural district councillor, the election shall be held within 1 montli after notice in writing of the vacancy has been given to the chairman of tho district council or to the clerk by two councillors. (3.) Tho day of election shall be fixed by the clerk to the district council. G"24 Appexdix. (4.) Nothing in this Act shall authorise or require a returning officer to hold an election to fill a casual vacancy which occurs within 6 months before the ordinary day of retirement from the office in which the vacancy occurs, and the vacancy shall be filled at the next ordinary election. Given under the seal of office of the Local Government Board, 1st January, 1898. (l.s.) Henry Chaplin, President. Hugh Owen, Secretary. BENEFICES ACT, 1898. (61 & 62 Vict. c. 48.) — ♦ — Transfer of Patronage Rights.'] 1. — (1.) A transfer of aright of patronage of a benefice shall not be vaHd unless — (a) it is registered in the prescribed manner in the registry of the diocese within 1 month from the date of the transfer, or within such extended time as under special circumstances the bishop may think fit to allow ; and (b) it transfers the whole interest of the transferor in the right, except as hereinafter provided ; and (c) more than 12 months have elapsed since the last institu- tion or admission to the benefice. (2.) It shall not be lawful to offer for sale by public auction any right of patronage, save in the case of an advowson to be sold in conjunction with any manor, or with an estate in land of not less than 100 acres situate in the parish in which the benefice is situate or in an adjoining parish and belonging to the same owner as the advowson, and any person who offers any right of patronage for sale by auction in contravention of this section, or who bids at any such sale, shall be liable, on summary convic- tion, to a fine not exceeding 100^. (3.) Any agreement for any exercise of a right of patronage of a benefice in favour or on the nomination of any particular person, and any agreement on the transfer of a right of patronage of a benefice — (a) for the re-transfer of the right ; or (b) for postponing payment of any part of the consideration for the transfer until a vacancy or for more than 3 months ; or (c) for payment of interest until a vacancy or for more than 3 months ; or (d) for any payment in respect of the date at which a vacancy occurs ; or (e) for the resignation of a benefice in favour of any person, shall be invalid. s. s s 626 Appendix. (4.) For the declaration set forth in sect. 2 of the Clerical Subscription Act, 1865 (28 & 29 Viet. c. 122), shall be substituted the declaration set forth in the schedule to this Act (see ante, p. 64), which shall be taken in the prescribed manner, and if any person knowingly makes any false statement in this declara- tion he shall be guilty of a misdemeanour, and shall be liable to the punishment attaching by law to perjury. (5.) If any clergyman is knowingly party or privy to any transfer, presentation, or agreement which is invalid under this section, or commits any breach of the promissory part of his declaration, he shall be guilty of an offence in respect of which proceedings may be taken under sect. 2 of the Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32). (6.) The expression "transfer" in this section shall include any conveyance or assurance passing or creating any legal or equitable interest inter vivos, and any agreement for any such conveyance or assurance, but shall not include — (a) a transmission on marriage, death, or bankruptcy, or otherwise by operation of law ; nor (b) a transfer on the appointment of a new trustee where no beneficial interest passes. (7.) Nothing in this section shall prevent the reservation or limitation in a family settlement of a life interest to the settlor, or in a mortgage the reservation of a right of redemption. Grounds for Refusal to Institute.'] 2. — (1.) A bishop may re- fuse to institute or admit a presentee to a benefice — (a) if, at the date of the vacancy, not more than 1 year has elapsed since a transfer, as defined by the first section of this Act, of the right of patronage of the benefice, unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year ; or (b) on the ground that at the date of presentation not more than 3 years have elapsed since the presentee was ordained deacon, or that the presentee is unfit for the discharge of the duties of the benefice by reason of physical or mental infirmity or incapacity, pecuniary embarrassment of a serious character, grave miscon- duct or neglect of duty in an ecclesiastical office, evil life, having by his conduct caused grave scandal con- cerning his moral character since his ordination, or having, with reference to the presentation, been know- ingly party or privy to any transaction or agreement which is invalid under this Act. (2.) A bishop shall not collate, institute, or admit any person to a benefice until the expiration of 1 month after notice, in the prescribed manner, that he proposes to collate, institute, or Benefices Act, 1898. 627 admit such person has been served on the churchwardens of the parish, who shall publish the notice in the prescribed manner. Appeal against Refusal to instituted] 3. — (1.) Where a bishop, on any ground included in sect. 2 of this Act or of unfitness or disqualification of the presentee otherwise sufficient in law, except a ground of doctrine or ritual, refuses to institute or admit a presentee to a benefice, he shall signify the refusal in writing together with the grounds thereof to the person present- ing to the benefice and to the presentee in the prescribed manner, and within 1 month after the signification either of those persons may, in the prescribed manner, require that the matter be heard by a court consisting of the archbishop of the province and of a judge of the Supreme Court, who shall be nominated by the Lord Chancellor from time to time for the purposes of this Act, and the bishop shall be made a party to the proceedings. The court constituted under this Act shall be a court of record and shall be held in public, and at any hearing the legal rules of evidence shall prevail. (2.) The judge shall decide all questions of law and find as to any fact alleged as reason of unfitness or disqualification and his decision on such questions of law and his finding as to any such fact shall be binding on the archbishop, who shall thereupon — (i) if the judge finds that no such fact sufficient in law exists, direct institution or admission ; or (ii) if the judge finds that any such fact sufficient in law exists, decide if necessary whether by reason thereof the presentee is unfit for the discharge of the duties of the benefice and determine whether institution or admission ought, under the circumstances, to be refused, and in either case the archbishop shall give judgment accord- ingly, and that judgment shall be final. (3.) The court shall have the same powers of administering oaths and of requiring the attendance of witnesses and the pro- duction by them of documents, and as to the payment and recovery of costs and expenses, as are exerciseable by the High Court of Justice. (4.) If, within 1 month after a judgment of the court in favour of a presentee, the bishop fails to institute or admit him, the official principal of the archbishop shall institute or admit him if there is no other impediment. (5.) If in any case to which this section applies the bishop signifies his refusal in manner provided by this section, no proceeding in the nature of quare impedit or duplex querela shall be taken in any other court in respect of the refusal. (6.) "Where the presentation is made to an archbishop, tho archbishop of the other province, whether Canterbury or York, and such judge as aforesaid, shall constitute tho court. ss2 628 Appendix. Provision as to Grounds of Refusal.'] 4. The bishop may, on the hearing of any case under sect. 3 of this Act, rely on — (i) any ground included in his signification of refusal ; and (ii) by the leave of the judge (on such terms as to notice, costs, adjournment, or otherwise, as the judge thinks fit), any other ground sufficient in law (not being of doctrine or ritual). Provision as to Lapse.] 5. In reckoning the date for lapse, no account shall be taken, in the case of the first and second presen- tations by a patron in respect of the same vacancy, of the period between a presentation by the patron and the refusal by the bishop to institute or admit the presentee, or of the period between the refusal of the bishop to institute or admit and the decision of the court upon such refusal ; nor in case of a bishop having a right to collate to a benefice of the period between the service of the notice on the churchwardens under the provisions of this Act and the expiration of a month from the said service. Right of Presentation.] 6. — (1.) A patron may not present again a person who has been refused by the bishop in respect of the same vacancy, and any such second presentation shall be void. (2.) In the event of the presentee of a clerical patron being refused institution or admission by the bishop, and of such decision being upheld, the patron shall have the same right of further presentation as though he were a lay patron. Presentation by Universities of Oxford and Cambridge.] 7. So much of the statutes 3 and 4 James I., cap. 5, sect. 13, and 1 AVilliani and Mary, cap. 26, sect. 2, is hereby repealed as pre- vents the Chancellor and Scholars of the Universities of Oxford and Cambridge from presenting or nominating to the benefices and livings there mentioned persons already holding any benefice with cure of souls, provided that nothing be done in contravention of the other Acts regulating the holding of benefices in plurality. And further the said Universities shall be permitted to elect to such benefices, and to any other benefices or livings that are or may hereafter be in their patronage, and to exercise any other rights that they may possess in respect to them in any way that they may hereafter, by statute or ordi- nance of the University made in the ordinary manner, from time to time determine to be expedient. Constitution of Commission under Pluralities Acts.] 8. To the Commission ajipointed in pursuance of sect. 77 of the Pluralities Act, 1838 (1 & 2 Vict. c. 106), as amended by the Pluralities Acts Amendment Act, 1885 (48 & 49 Viet. c. 54), there shall be added 2 other commissioners, being either laymen in the com- mission of the peace for the county in which the benefice is Benefices Act, 1898. 629 situate, or barristers or solicitors of not less than 10 years' stand- ing, nominated lyy the person who has presided as chairman of the last preceding quarter sessions for the county or division of the county in which the benefice is situated, or, failing him, by the lord lieutenant of the county. Provided that the secretary of the bishop or the registrar of the diocese shall not be qualified as a commissioner. Potver to inhibit on Report of Negligence in Discharge of Duties.'] 9. — (1.) Where a commission appointed in pursuance of sect. 77 of the Pluralities Act, 1838, as amended by the Pluralities. Acts Amendment Act, 1885, and by this Act, reports that the ecclesi- astical duties of a benefice are inadequately performed, and that this is due to the negligence of the incumbent of the benefice in the performance of those duties (which report the Commission is hereby empowered to make), the bishop, if he thinks the appointment of a curate desirable, shall himself appoint a curate or curates, as in the said section mentioned, without requiring the incumbent to do so, and may also, if in his opinion the adoption of such a course is expedient in the interests of the benefice, inhibit the incumbent from performing all or any of those duties. (2.) The power conferred by the said section amended as afore- said, and by this section, of appointing and requiring the appointment of a curate, may be exercised from time to time in case of any vacancy in the curacy. (3.) Where a curate has, before the commencement of this Act, been appointed under the said section, or the said section as amended by the Pluralities Acts Amendment Act, 1885, the bishop may, if he sees reason to believe that the incumbent is negligent in the performance of the ecclesiastical duties of the benefice, issue a commission under the said section as so amended and by this Act to inquire into the facts of the case, and if that commission reports that the incumbent is so negligent, the bishop may inhibit him from performing all or any of the said duties. (4.) When an incumbent is inhibited under this Act, he shall not interfere with or control any curate in the performance of the ecclesiastical duties of the benefice, and any right of patron- age vested in him by virtue of his incumbency shall, while he is inhibited, vest in the patron of his incumbency, or, if the incumbent be the patron, then in the archbishop of the province. (5.) An incumbent so inhibited shall not be liable to any penalty or forfeiture for non-residence, but sect. 93 of the Pluralities Act, 1838, shall apply as if the incumbent were not resident as therein mentioned, and thereupon sect. 94 of the same Act shall apply as in the case where the curate's stipend is not less than the whole value of the benefice. The incumbent shall 630 Appendix. remain liable for repairs, but shall be entitled to retain ont of the curate's stipend such amount in respect of repairs during the curate's occupation, and shall be entitled to such facilities for executing repairs, as the bishop may, in case of difference, decide to be reasonable. (6.) The incumbent may appeal against the appointment of a curate by the bishop under this section and against any such inhibition to the court constituted under this Act within 1 month after such appointment or the issue of such inhibition. On any such appeal the judge shall determine whether the incumbent has been negligent as aforesaid, and the archbishop shall thereupon — (i) if the judge finds that the incumbent has not been negligent as aforesaid, rescind the appointment and inhibition, if any ; or (ii) if the judge finds that the incumbent has been negligent as aforesaid, decide whether by reason therebf the said appointment should have been made, and also whether the incumbent should be inhibited from performing any and what ecclesiastical duties of his benefice ; and shall give judgment accordingly, and that judgment shall be final. Subject as aforesaid the provisions of sect. 3 of this Act with respect to procedure shall apply to proceedings under this sub-section. In certain Cases of Sequestration Benefice to become void.~\ 10. In the case of incumbents presented or collated after the com- mencement of this Act, if, on bankruptcy, or in aid of any writ of execution against property, the benefice of any such incumbent is sequestrated within 12 months after his institution, or if such sequestration, if issued after that period, continues for the space of 1 whole year, or if any such incumbent incurs 2 such sequestrations in the space of 2 years, the benefice shall, unless the bishop in the manner and within the time to be prescribed otherwise direct, become void, and sect. 58 of the Pluralities Act, 1838 (1 & 2 Vict. c. 106), shall apply in like manner as if the benefice had become void under that section. Poicer to make Rulcs.~] 11. The rule committee, as defined by sect. 9 of the Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32), may make rules for prescribing anything which, under this Act, is to be prescribed, and for defining the duties of the officials by whom registration is to be effected, and with respect to the inspection of the register and the fees payable on registration and inspection under this Act, and the application thereof for the remuneration of the officials in the registry in respect of such registration and inspection, and for regulating the pro- cedure on and incident to the hearing and determination under Benefices Act, 1898. 631 this Act of any question as to a refusal to institute or admit, or of an appeal against an inhibition or appointment of a curate, and the fees payable in respect thereof, and the appointment and duties of officers of the court, and otherwise for carrying the purposes of this Act into effect, and the provisions of that section shall apply in the case of any rules so made. For the purpose of framing rules under this section the judge nominated by the Lord Chancellor for the purposes of this Act shall be added to the said Rule Committee if not already a member thereof. In framing rules under this Act regard shall be had to making the procedure and practice as simple and inexpensive as possible. The fees paid in respect of proceedings in the court under this Act shall be paid over to the common fund of the Ecclesiastical Commissioners, who shall, out of such common fund, defray all the expenses of and incidental to the sittings of the court and the remuneration of its officers, and all expenses which are necessarily incurred in the execution of this Act in such proceedings : Provided that no portion of any fund destined for the relief of necessitous incumbents shall be applied to the payment of the aforesaid expenses. Abolition of Donatives.'] 12. Every benefice with cure of souls which at the commencement of this Act is donative shall as from that date be presentative. Meaning of Benefice.] 13. — (1.) In this Act the expression "benefice" comprehends all rectories with cure of souls, vicarages, perpetual curacies, endowed public chapels, and parochial chapelries, and chapeJries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and districts formed for ecclesiastical purposes by virtue of statutory authority, and includes benefices in the patronage of the Crown or of the Duchy of Cornwall, but does not extend to any of Her Majesty's Royal Chapels, or to any royal peculiar, nor to any cathedral or capitular preferment or dignity, nor to any chapel belonging to any college, school, hospital, inns of court, asylum, or public or charitable institu- tion, nor to any private chapel. (2.) In sect. 2 of this Act the expression " duty" shall mean ecclesiastical duties as defined by sect. 2 of the Pluralities Acts Amendment Act, 1885, omitting the following words therein "and the performance of which shall have been required of him in writing by the bishop." (3.) In sect. 9 of this Act and in the Pluralities Act, 1838, and the Pluralities Acts Amendment Act, 1885 (18 & 49 Vict. c. 84), the expression "ecclesiastical duties" shall, in all respe include those duties mentioned in sect. 2 of the Pluralities Acts Amendment Act, 1885, and also the observance of all the promises as to conduct which every clergyman of the Church of G32 Appendix. England solemnly makes at the time of his ordination ; and the expression "negligence" in the performance of ecclesiastical duties shall include wilful default in the performance of such duties. Commencement.] 14. This Act shall come into operation on the 1st day of January, 1899. Short Title.'] 15. This Act may be cited as the Benefices Act, 1898. BENEFICES RULES, 1898. Short Title and Commencement .] 1. The following .Rules may be cited as the Benefices Eules, 1898, and shall apply to all proceedings under the Benefices Act, 1898 (in these Eules referred to as the Act), and shall come into operation on the commencement of the Act. Registration of Transfers. Register.'] 2. The registrar of every diocese shall keep at the diocesan registry a register of transfers of rights of patronage required to be registered under the Act, with an alphabetical index. Particulars to be Registered — Form 1.] 3. The register shall contain the following particulars — (1) the name of the benefice ; (2) the date of registration ; (3) the date of the transfer ; (4) the name, address, and description of the transferor ; (5) the name, address, and description of the transferee ; (6) the interest transferred ; (7) where the bishop has allowed an extension of the time for registration, the amount of the extension; (8) the date of the last institution or admission to the benefice; (9) any reservation in favour of the transferor, authorised under sub-sect. (7) of sect. 1 of the Act. Applications for Registry — Forms 2 fy 3.] 4. — (1.) Every appli- cation for registration must be signed by the applicant, and must furnish the particulars required to be registered and must be supported by the statutory declaration of the applicant as to the truth of the particulars set forth in it, and also, where the bishop has authorised an extension of time for registration, be accom- panied by that authority. (2.) The applicant shall send with his application the instru- ment of transfer, and the registrar on the completion of the 634 Appendix. registration shall stamp the instrument with the word "regis- tered," and with the name of the diocesan registry in which the transfer is registered. Extension of Time for Registration — Forms 4, 5, 6.] 5. If there are any special circumstances which cause the application for registration to he delayed, application may he made to the hishop to extend the time for registration. The application shall set forth the special circumstances, and shall he supported hy the statutory declaration of the applicant as to the truth of the state- ments made in the application. If the hishop considers that the special circumstances are such as to make it expedient to extend the time for registration, he may grant hy authority under his hand such extension as he thinks fit. Duty of Registrar to register. ~] 6. A registrar of a diocese shall, on the receipt of an application in accordance with the Act and these Rules forthwith register the transfer. Inspect ion. ] 7. The register of transfers shall he open to inspection at all reasonable times, and any person may make searches therein and make extracts therefrom on payment of the proper fees. Rectif cation of Register. ~\ 8. When it is proved to the satisfac- tion of the chancellor of a diocese that any entry in the register book ought to be modified or cancelled he shall direct the registrar to modify or cancel the entry accordingly. Fees.~] 9. The following fees shall be payable to the registrar of a diocese : — s. d. For registration of a transfer including necessary correspondence . . . . . . . 10 6 For allowing a search or extract to be made . .10 Modification or cancellation of an entry . . .10 Taking of Declaration in the Schedule to the Act. Manner of taking Declaration. ,] 10. The declaration in the Schedule to the Act shall be made and subscribed before colla- tion, institution, or admission, and in the presence of the bishop by whom the person is to be collated, instituted, or admitted, or the commissary of that bishop. Publication of Name of Proposed Incumbent. Service of Proposal to collate, fyc. — Form 7.] 11. The notice by a bishop that he proposes to collate, institute, or admit a person to a benefice to be served on the churchwardens of the parish Benefices Eules, 1898. 635 shall be by registered letter addressed to " the church- wardens." The notice shall state the names of the person in full and the ecclesiastical preferments previously held by him so far as they are known to the bishop. Publication of Notice.~\ 12. The churchwardens shall immedi- ately on receipt thereof cause the notice to be fixed on the principal door or notice board of the church or chapel of the benefice, and shall take such other steps as they think expedient for giving publicity to the notice. The notice shall remain so fixed as aforesaid for a period of not less than 1 month. At the expiration of the said month the churchwardens shall sign a certificate (attached) to the notice that they have complied with the provisions of this Rule and return the notice to the bishop. Where there is more than one church or chapel belonging or annexed to a benefice, the notice shall be fixed on the principal door or notice board of such one of the churches or chapels as the bishop determines. Refusal to Institute or Admit. Notice of Refusal to Institute or Admit — Forms 8, 9.] 13. Where the ground of refusal is either — (a) a ground included in sect. 2 of the Act ; or (b) any other ground of unfitness or disqualification of the presentee otherwise sufficient in law, except a ground of doctrine or ritual, the bishop shall signify his refusal to institute or admit a presentee to a benefice by notice sent to the person presenting to the benefice, and to the presentee by registered letter. The notice shall state the grounds of refusal. Direction against Avoidance of Benefice. Direction against Avoidance of Benefice — Form 10.] 14. Where a bishop directs that a benefice shall not become void under sect. 10 of the Act, he shall send a notice thereof by registered letter to the patron and incumbent of the benefice, and to the churchwardens of the parish. The notice shall be sent within 2 months aftor the time at which, but for the direction, the benefice would have become void ; and shall be published in the London Gazette. Supplemental. Construction.! 15. In the construction of theso Rules the Interpretation Act, 1889, shall apply. G3G Appendix. Forms.'] 16. The forms in the Schedule where applicable, and ■where they are not applicable forms of the like character with such variation as circumstances may require, shall be used. (Signed) E. Canttjar. Halsbtjry, C. Penzance. M. London. Joseph W. Chitty, L.J. The 29th day of December, 1898. SCHEDULE. Eoem: 1. Register Book. No. Name of Benefice. Date of Registration. Date of Transfer. Names, Addresses, and Descriptions of Transferors. Names, Addresses, and Descriptions of Transferees. Interest Transferred. Extension of Period for Registration (if any). Date of last Institution or Admis- Reservation in favour of Transferor (if any). Benefices Eules, 1898. 637 Form 2. Application fur Registration. Benefices Act, 1898. To the registrar of the diocese of The following are the particulars respecting a transfer of a right of patronage of the benefice of , in the diocese of , required for registration. Name of benefice ..... Date of transfer ..... Name(s), addresses), and description(s) of transferor(s) ..... Name(s), address(es), and description(s) ) of transferee(s) . . . . . j Nature of interest transferred "Whether any extension of period for } registration authorised by the bishop*' \ Date of last institution or admission to ) the benefice . . . . . ) Whether any reservation has been made in favour of the transferors! :} Dated the day of , 18 . Signature of Applicant. * N.B. — If such extension authorised hy the bishop the authority must be enclosed. t See sect. 1 (7) of the Act. Form 3. Declaration in support of an Application to Register. I, , of , solemnly and sincerely declare that the transfer of the right of patronage whereof the particulars are set forth in the application for registration thereof marked A., and now produced and shown to me was actually made at the time, and in the manner in the said application mentioned, and that the particulars set forth therein are to the best of my knowhdgt- and belief true. And I make, &c. 638 Appendix. Form 4. Application for Extension of Time for Registration. Benefices Act, 1898. To the Bishop [Archbishop] of Your Lordship [Grace] is desired to authorise an extension of time for the registration of the transfer of the right of patronage in the benefice of , particulars -whereof are given below, for a period of from the date of the transfer. The special circumstances which cause the application for registration to be delayed are as follows : — \Here state circumstances shortly.'] Particulars of Transfers. Date of transfer Names, addresses, and descriptions of transferors and transferees . Nature of interest transferred Dated the day of , 18 . Signature of Applicant. Form 5. Declaration in support of an Application for Extension of Time for Registration. I, of , solemnly and sincerely declare that the statements made in the application for extension of time for registration marked A., and now produced and shown me are to the best of my knowledge and belief true. And I make, &c. Form 6. Authority for Extension of Time for Registration. Benefices Act, 1898. The time for registration of the transfer of the right of patronage of the benefice of , particulars whereof are given below, is hereby extended to a period of from the date of the said transfer. Benefices Eules, 1898. 639 Particulars of Transfer. Date of transfer .... Names of transferor and transferee Dated the day of 18 Signature of Bishop [or Archbishop]. Form 7. Notice that the Bishop proposes to collate, institute, or admit a Person to a Benefice. Benefices Act, 1898. To the churchwardens of the parish of The Bishop [Archbishop] of hereby signifies that he proposes to collate [institute] [admit] to the benefice of The said has held the following ecclesiastical prefer- ments [here insert preferments previously held, with dates so far as knoivn~\. Dated the day of 18. Signed by or on behalf of Bishop [Archbishop]. N.B. — This notice must immediately on the receipt thereof be fixed on the principal door or notice board of the church [or chapel~\, [or church or chapel («)], and remain so fixed for a period of not less than 1 calendar month. At the end of the said month you are to sign the certificate hereto annexed and return this notice to the bishop. We hereby certify that we have complied with the above directions as to the fixing of this notice. Signature of Churchwardens. (a) If there is more than one church or chapel, the name of the church or chapel where the notice is to be fixed must he inserted. 640 Appendix. Form 8. Notice to Person presenting to a Benefice of Bishop's Refusal to institute or admit Presentee. Benefices Act, 1898. To [person presenting to the benefice]. I hereby signify that I refuse to institute [admit] to the benefice of to which you have presented him, on the grounds that \_here insert grounds of refusal]. Dated the day of Signature of Bishop [Archbishop]. Form 9. Notice to Presentee of Refusal of Bishop to institute or admit him to the Benefice. Benefices Act, 1898. To [the presentee]. I hereby signify that I refuse to institute [admit] you to the benefice of on the grounds that [here insert grounds of refusal]. Dated the day of Signature of Bishop [Archbishop]. Form 10. Direction against avoidance of Benefice. Benefices Act, 1898. To [the patron of the benefice], [the incumbent of the benefice], [the churchwardens of parish]. I hereby give notice that I direct that the benefice of which, but for my direction to the contrary, would, under sect. 2 of the above-mentioned Act, have been avoided on the day of , be not and be deemed never to have been so avoided. Dated day of Signature of Bishop [Archbishop]. BENEFICES BULES, 1899. — ♦ — Short Title. ,] 1. The following rules may be cited as the Benefices Rules, 1899, and shall apply to all proceedings under the Benefices Act, 1898 (iu these rules referred to as the Act). Seal ; Sittings ; Office and Officers ; of the Court. Seal.~] 2. — (1.) The seal of the court shall be such as the Lord Chancellor directs. (2.) All copies, certificates, or other documents appearing to be sealed with the seal of the court shall be presumed to be office copies or certificates or other documents issued from the court, and may be received in evidence, and no signature or other formality, except the sealing with the seal of the court, shall be required for the authentication of any such copy, certi- ficate, or other document. Place of Sitting of the Court.'] 3. For the hearing of any matter under sect. 3 or an appeal under sect. 9 of the Act, the court shall, unless the court otherwise direct, sit at the Royal Courts of Justice. Office. ,] 4. — (1.) There shall be an office of the court in the Royal Courts of Justice, and that office shall bo open on eveiy day of the year, except Sundays, Good Friday, Easter Eve, Monday and Tuesday in Easter Week, Whit Monday, Christmas Day, and the next following working day, and all days appointed by proclamation to be observed as days of general fast, humilia- tion, or thanksgiving, and the days on which the office is not open are in these rules referred to as the excluded days. (2.) The office hours shall be from 10 in the forenoon to 4 in the afternoon, except on Saturday and during the vacations of the Supreme Court, when the office shall close at 2 in the after- noon. Officers.'] 5. — (1.) There shall be a registrar of the court in these rules referred to as the registrar, and such person as the Lord Chancellor appoints shall be the registrar, and the Lord Chancellor may appoint a person to act as deputy registrar s. T T 642 Appendix. during the illness or absence of the registrar, as occasion may require, and anything which, under these rules, is authorised or required to be done by or to the registrar may be done by or to the deputy registrar. (2.) Such provision as the Lord Chancellor thinks fit shall be made for supplying the court with the services of clerks and other officers, and for the remuneration of the registrar and of the clerks and other officers. Procedure luhere matter required to be heard under sect. 3. Requisition for hearing by the Court — Forms 1, 2, 3.] 6. — (1.) A requisition that the refusal of a bishop to institute or admit a presentee to a benefice be heard by the court (in these rules referred to as the requisition) must be lodged with the registrar in duplicate, together with 2 copies of the bishop's signification of refusal, within 1 month after the signification of the refusal has been served on the person lodging the requisition. (2.) The person lodging the requisition, in these rules referred to as the plaintiff, shall in the requisition give an address for service, being an address in England or Wales. (3.) The plaintiff shall, not later than 2 days after the time when he lodges the requisition, serve a copy thereof on the bishop. Statement of particulars — Forms 3, 4, 5, 6, 7.] 7. — (1.) The plaintiff may, within 7 days after lodging the requisition, serve on the bishop a notice requiring him to give particulars of the facts on which he intends to rely at the hearing of the matter in support of such one or more of the grounds contained in the signi- fication of refusal as may be referred to in the notice. (2.) The plaintiff, if he serves on the bishop any such notice, shall, within 2 days after such service, lodge with the registrar 2 copies of the notice. (3.) The bishop shall within 14 da} r s from the service of any such notice upon him lodge in duplicate with the registrar a statement of particulars in compliance with the notice, and shall, within 2 days after lodging the statement, serve a copy thereof on the plaintiff. (4.) On an application by the plaintiff, lodged within 7 days after the service on him of the statement of particulars, the bishop may be ordered to lodge in duplicate with the registrar further and better particulars of the facts referred to in the notice, and to serve a copy thereof on the plaintiff, within such time and upon such terms as to costs and otherwise as may be thought fit. (5.) The bishop shall not at the hearing, except by leave of the court, rely on any ground in respect of which he has not given particulars in compliance with the notice. Benefices Rules, 1899. 643 Reply— Form 3.] 8.— (1.) The plaintiff, if it appears to him to be necessary to his case for him to plead any facts by way of reply to the bishop's particulars (but not otherwise), may, within 7 days from the service on him of the statement of particulars, or, if further and better particulars have been ordered, of the further and better particulars, apply for leave to deliver a reply, pleading such facts as aforesaid, but no other matters, and shall in his application set forth the reply proposed to be delivered. (2.) Where leave has been granted, and subject to the terms thereof, the plaintiff may deliver a reply by lodging the reply in duplicate with the registrar, and by serving a copy thereof on the bishop. Pleadings.'] 9. The requisition, the particulars, and the reply, if any, shall together constitute, and are in these rules referred to as, the pleadings. Closing of Pleadings.'] 10. — (1.) The pleadings shall be closed — (a) if the plaintiff does not serve a notice requiring the bishop to give particulars within the period appointed for that purpose, at the expiration of that period ; (b) if the plaintiff does not lodge an application for leave to deliver a reply within the period appointed for that purpose, at the expiration of that period ; (c) if leave to deliver a reply is refused, at the date of the refusal ; (d) if leave is given to deliver a reply, on the reply being lodged, or, if no reply is lodged within the period allowed for lodging the reply, at the expiration of that period. (2.) Subject to any admissions which maybe made, all allega- tions contained in the signification of refusal, and the statement of particulars and further and better particulars, if any, and all allegations contained in the reply, if any, shall be deemed to be denied and put in issue. Amendments of Pleadings — Forms 9, 10, 11.] 11. — (1.) At any stage of the proceedings the bishop may be allowed to amend his particulars, and any matters which may tend to prejudice, embarrass, or delay the fair hearing of the matter may be ordered to be struck out of a pleading, in such manner and on such terms as may be just, and all such amendments may be made as may be necessary for the purpose of determining tlio real questions in controversy between the parties. An applica- tion for leave to amend particulars or to strike out any matters, shall specify the amendments proposed to bo made, or the matters to be struck out, as the case may be. T T 2 644 Appendix. (2.) The bishop may without any leave — (a) before the expiration of the time limited for lodging an application for leave to reply and before any such application has been lodged, amend his particulars ; and (b) at any time before the hearing withdraw any ground of refusal or allegation of fact contained in the signifi- cation of refusal or particulars ; by lodging in duplicate with the registrar a notice of the amend- ment or withdrawal and by serving a copy of the notice on the plaintiff. (3.) Where the bishop makes any such amendment the period for lodging an application for leave to make a reply shall be extended to 7 days from the time when the copy of the notice of the amendment was served. Withdrawal of Refusal or Requisition — Form 12.] 12. At any time before the hearing the bishop may withdraw his refusal to institute or admit, and the plaintiff may withdraw his requisi- tion, by lodging notice thereof with the registrar, and by serving notice thereof on the other party, and thereupon such judgment or order may, upon the application of either party, be made as may be thought fit. New Ground of Refusal — Form 13.] 13. — (1.) The bishop may at any time before, or at, the hearing of the matter apply for leave to rely at the hearing on any new ground (not being a ground of doctrine or ritual) which was not included in his signification of refusal. (2.) Leave to rely on any such new ground may be granted, subject to such conditions as to lodging and serving a statement of the particular facts intended to be relied upon in support thereof, and subject to such other conditions as to costs and otherwise as may be thought fit. Consolidation of Proceedings where more than one Requisition — Forms 14 and 15.] 14. — (1.) If more than one requisition is lodged in respect of the same refusal, the registrar shall serve on each person who has lodged a requisition, a copy of every other requisition. (2.) On the application of any party to the proceedings or without any such application, the proceedings may be consoli- dated, and such order may be made as to the conduct of pro- ceedings, the service of documents, and otherwise as may be thought fit. (3.) Where an application for the consolidation of the pro- ceedings has been lodged, the registrar shall serve a copy of the application on all the parties to the proceedings except the Benefices Bulks, 1899. 645 applicant, and shall serve on all the parties notice of the time and place for the hearing of the application. (4.) Where proceedings are consolidated under this rule, notice to that effect shall be served by the registrar on all the parties to the proceedings. Procedure at the Hearing.~\ 15. At the hearing of any matter the bishop shall, in the first instance, show cause why the presentee should not be instituted or admitted. Provided that any question of law may, if the court think fit, be first dealt with. Notice to Bishop to institute — Form 16.] 16. If the judo-rnent of the court is in favour of the presentee, the registrar shall forthwith serve on the bishop a notice that if within 1 month after the judgment he fails to institute or admit the presentee, the official principal of the archbishop will institute or admit the presentee if there is no other impediment. Procedure on Ajyyeals under sect. 9. Report of Commission — Form 17.] 17. Where a commission reports that an incumbent has been negligent in the performance of the ecclesiastical duties of a benefice the commission shall state in the report in what respects he has been so negligent. Notice of Appointment of Curates and Inhibition — Forms 18, 19, 20, 21.] 18. — (1.) Where a bishop appoints one or more curates to a benefice without requiring the incumbent to do so, he shall forthwith serve on the incumbent notice of the appoint- ment. (2.) Where a bishop inhibits an incumbent from performing all or any of the ecclesiastical duties of his benefice he shall forthwith serve the inhibition on the incumbent, and an inhibi- tion shall not be deemed to be issued until it is so served. (3.) The notice and inhibition shall state the terms of the report of the commission, and may be served by sending the same by registered letter, addressed to the incumbent at his last known address in England or Wales, and by sending a copy thereof by registered letter addressed to " the churchwardens " of the church or chapel belonging to the benefice, accompanied by a direction to fix the copy on the principal door or notice board of the church or chapel, and the churchwardens shall cause it to be so fixed : Provided that if the incumbent, within 1 month after the appointment of a curate or the issue of an inhibition, serves on the bishop a request for a copy of the notice of appointment or inhibition, accompanied by an envelope duly stamped and addressed, the bishop shall forthwith enclose in the envelope a copy of the notice or inhibition and post the same. 616 Appendix. Notice of Appeal — Forms 22, 23.] 19. — (1.) An appeal against the appointment of a curate or against an inhibition shall be instituted by lodging in duplicate with the registrar -within 1 month after the appointment or the issue of the inhibition a notice of appeal stating the grounds of appeal, and accompanied by 2 copies of the notice of the appointment, or of the inhibi- tion or of both, as the case may be ; and the appellant shall serve a copy of the notice of appeal on the bishop within 2 days thereafter. (2.) A notice of appeal shall contain an address for service, being an address in England or Wales. Grounds of Appeal not stated in the Notice.'] 20. — (1.) A ground of appeal not stated in the notice of appeal shall not be enter- tained by the court except with the consent of the bishop or by leave. (2.) An application for leave to amend a notice of appeal may be made at, or at any time before, the hearing of the appeal, and leave may be granted upon such terms as to adjournment or postponement of the hearing, and as to costs and otherwise, as may be thought fit. Procedure at Hearing of Appeal.] 21. Subject to the provisions of Rule 20 the appellant and the bishop may on the hearing of the appeal raise any point, call any witness, and tender any evidence, notwithstanding that the point was not raised, the witness was not called, and the evidence was not tendered at the inquiry before the commission. Withdrawal of Notice of Appeal—Form 24.] 22. At any time before the hearing the appellant may withdraw his notice of appeal by lodging notice thereof with the registrar and by serving notice thereof on the bishop, and thereupon such judg- ment or order may, upon the application of either party, be made as may be thought fit. Time and Place for Hearing. Notice of Time and Place for Hearing — Form 25.] 23. After the pleadings in a matter have been closed, or after an appeal has been instituted, as the case may be, the registrar shall serve on the parties 14 days' notice of the time, and if a place other than the Royal Courts of Justice is fixed, of the place, fixed for hearing the matter or appeal. Postponement of Hearing — Form 26.] 24. Where the hearing is postponed a new day for the hearing shall be fixed, and the registrar shall immediately serve notice of the postponement, and of the day so fixed, on the parties. Benefices Eules, 1899. 647 Adjournment.'] 25. The hearing of a matter or appeal, when once commenced, shall proceed so far as, in the opinion of the court, may be practicable or convenient from day to day, but the court may adjourn the hearing if the court think fit. Power of Court to proceed in absence of Parties.] 26. If a party fails to appear at the time fixed for the hearing of a matter or appeal, the court, if satisfied that the party so absent was duly served with notice of the hearing, may proceed with the hearing in that party's absence. Extension of Time and Settlement of Preliminaries. Extension of Time — Forms 27, 28.] 27. — (1.) Subject to the provisions of the Act, the time appointed by these rules or fixed by an order may be extended upon such terms as to costs and otherwise as may be thought fit, and although the application for such an extension is not made until after the expiration of the time so appointed or fixed. (2.) Subject as aforesaid, the time appointed by these rules for lodging a pleading or other document may, unless it be otherwise ordered or directed, be extended by consent in writing. The written consent shall be lodged with the registrar at the time when the pleading or document to which it relates is lodged. Settlement of Preliminaries by Post.] 28. For the purpose of determining the mode of conducting the hearing, the admitting of certain facts or the proof of them by affidavit, the settling of any interlocutory application by agreement, or for any other purpose, the parties may be communicated with in writing, and may be required to answer such inquiries as may be made, and may be given such directions as are thought fit. Evidence. Evidence.] 29. — (1.) The evidence at the hearing of a matter or appeal shall be given viva voce, but at any time, and whether before or at the hearing, for sufficient reason, it may, on the application of either party, be ordered or directed that any par- ticular facts may be proved by affidavit, and that the affidavit of any witness may be read at the hearing, on such conditions as may be thought fit, and that any witness whose attendance ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a person to be appointed for the purpose, provided that when it appears that the other party bond fide desires the production of a witness for cross- examination, and that such a witness can be produced, an order shall not be made authorising the evidence of that witness to bo given by affidavit. 048 Appendix. (2.) Depositions so taken before a person authorised to take them may be used at the hearing without calling the deponent unless it is otherwise ordered or directed. Protection of Witnesses. ,] 30. Witnesses attending the court shall be entitled to the same protection as witnesses attending the High Court. Praecipe for Subpoena — Form 29.] 31. Where it is intended to sue out a subpoena, a. praecipe for that purpose shall be filed with the registrar, and the registrar shall deliver a subpoena to the person filing the praecipe. Contents of Subpoena — Forms 30, 31.] 32. Every subpoena other than a subpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names. No more than three persons shall be included in one subpoena duces tecum, and the party suing out the same may sue out a subpoena for each person if deemed necessary or desirable. Correction of Errors in a Subpoena.~\ 33. In the interval be- tween the suing out and service of any subpoena, the party suing out the same may correct any error in the names of the parties or witnesses, and may have the writ re-sealed upon having a corrected praecipe of the subpoena marked with the words altered and re-sealed, and signed with the name and address of the person suing out the subpoena. Service of Subpoena.'] 34. — (1.) The service of a subpoena shall be effected by delivering a copy of the writ and of the endorse- ment thereon, and at the same time producing the original writ. (2.) The service of a subpoena shall be of no validity if not made within 12 weeks after the date of the writ. Production and Admission of Documents. Production of Documents.] 35. At any time during the pen- dency of any matter or appeal the production upon oath, by a party thereto, may be ordered of such of the documents in his possession or power relating to such matter or appeal as may be thought right, and any such documents, when produced pursuant to such order, may be dealt with in such manner as appears just. Documents referred to in Pleadings — Forms 32, 33.] 36. Either party shall be entitled at any time before or at the hearing of the matter or appeal to serve notice on the other party in whose pleading notice of appeal or affidavit reference is made to any document, to produce that document for the inspection of the party giving the notice, and to permit him to take copies thereof, and any party not complying with the notice shall not afterwards put that document in evidence without leave. Benefices Kules, 1899. 649 Notice to Produce — Form 84.] 37. Either party may serve on the other party notice to produce such documents as relate to the matter or appeal, and are in the possession or control of such other party, and if the notice is not complied with, secondary evidence of the contents of such documents may be given by the party who gave the notice. Notice to Admit — Form 35.] 38. Either party may serve on the other party notice to admit any documents saving all just exceptions, and in case of neglect or refusal to admit after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the matter or appeal may be, unless at the hearing the court certify that the refusal to admit was reasonable ; and no costs of proving any documents shall be allowed unless notice to admit has been given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. Interlocutory Applications. Applications for Interlocutory Orders — Forms 36, 37, 38.] 39. — (1.) An application for an interlocutory order shall be made by lodging the application in duplicate with the registrar, and by serving a copy thereof on the other party. (2.) At the hearing of any such application evidence may be given by affidavit, but the attendance for cross-examination of the person making any such affidavit may, on the application of either party, be ordered. (3.) Any affidavit in support of or in opposition to any such application shall be promptly filed with the registrar, and a copy thereof promptly served on the other party. (4.) The costs of any such affidavit if unnecessary, or of unnecessary length, or if the affidavit or the copy thereof has not been promptly filed or served, may be ordered to be borne, in any event, by the party filing the affidavit. (5.) The registrar shall serve on both parties notice of the time and, if a place other than the Royal Courts of Justice is fixed, of the place, fixed for the hearing of the application. Applications to be made at same time and heard together.'] 40. — (1.) All applications for interlocutory orders made by any party shall, so far as possible, be included in a single applica- tion, and when a party has lodged an application, the other party, if he intends to make any application, shall lodge his application as soon thereafter as possible, and the applications of both parties shall, so far as possible, be heard together. (2.) Any costs occasioned by failure to comply with this rule may be ordered to be paid by the i>arty so failing to comply therewith. 650 Appendix. Hearing of Interlocutory Applications — Forms 39, 40.] 41. — (1.) Every interlocutory application shall, subject to, and in accordance with, any direction given by the judge, be heard, in the first instance, by the registrar sitting in chambers at the Royal Courts of Justice : Provided that any agreement in writing relating to the matters contained in any such application and made between the parties and signed by the parties or their solicitors may, if the registrar after consulting the judge thinks it reasonable and such as would have been allowed had the application been heard, be lodged with the registrar and shall thereupon become an order of the court and have the same effect as if the order had been made after hearing the parties in manner provided by this rule. (2.) The decision of the registrar upon any such application shall be final, unless the application is adjourned to the judge. (3.) The registrar may, if he thinks fit, and shall, if required by either party, adjourn on application to the judge. (4.) Either party may require an application to be adjourned to the judge by giving verbal notice to that effect to the registrar and to the other party at, or immediately after the conclusion of, the hearing of the application, or by lodging in duplicate with the registrar and by serving on the other party written notice, within 2 days after the hearing of the applica- tion. (5.) The registrar shall serve on both parties notice of the time and if a place other than the Royal Courts of Justice is fixed, of the place fixed for the hearing of the application so adjourned. (6.) The decision of the judge upon any application which he hears in the first instance or which is adjourned to him shall be final. (7.) The registrar shall, unless otherwise directed by the judge, attend at the hearing of an application adjourned to the judge. (8.) If a party fails to appear at the hearing of an application whether before the registrar or the judge, the application may be heard in his absence, or the hearing may be postponed as ma}- be thought fit ; and if it is postponed, notice of the post- ponement shall be served by the registrar on the absent party. (9.) All orders made on any such application shall be drawn up by the registrar, and copies thereof shall be served by him on both parties. Judgments. Judgments — Forms 41 — 47.] 42. The judgment of the court in every matter and on every appeal shall be drawn up by the registrar, and copies thereof shall be promptly served by him on the parties. Benefices Rules, 1899 651 Supplemental. Formal Objections.'] 43. A proceeding under the Act or these rules shall not be defeated by any formal objection. Service of Documents — Form 48.] 44. — (1.) Any document except a subpoena may be served — (i.) on a plaintiff or appellant by sending the document by registered letter through the post to his address for service for the time being ; or (ii.) on a bishop, by sending the document by registered letter through the post addressed to the bishop at his palace or other his place or usual place of residence in England or Wales. (2.) A plaintiff or appellant may change his address for service by lodging with the registrar and serving on the bishop a new address for service, being an address in England or Wales. Lodging, filing, giving copies of documents — Form 49.] 45. — (1.) Any document which, under these rules, is to be lodged or filed with the registrar may be lodged or filed by delivering the same at the office of the court during office hours, or by sending the document, by registered letter, through the post, addressed to " The Eegistrar of the Court constituted under the Benefices Act, 1898, Eoyal Courts of Justice, Strand, London, W.C." (2.) Any document, on the lodging or filing of which a fee, as prescribed under the Act, is to be paid, shall not be treated as lodged or filed until that fee is paid. (3.) A requisition or notice of appeal which does not contain an address for service shall not be treated as lodged until an address for service has been lodged. (4.) All affidavits shall be filed with the registrar and a copy of every affidavit so filed shall be promptly served by the party filing the same on the other party. (5.) An office copy of any document lodged or filed with the registrar in any proceeding may be obtained by a party to the proceeding on application to the registrar and payment of the prescribed fee. Computation of Time.~] 46. — (1.) In these rules where any particular number of days is prescribed for the doing of any act or for any other purpose, the time is to be reckoned exclusively of the first day and inclusively of the last day. (2.) If the last day of a specified period is an excluded day the period shall be deemed to include the next following day not being an excluded day. (3.) Where the specified period does not exceed 7 days the excluded days shall not be reckoned in the computation of time. 652 Appendix. Taxation of Costs.'] 47. — (1.) The costs in any proceeding under these rules shall be taxed by the registrar or such other officer of the court as the Lord Chancellor directs. (2.) In all proceedings under the Act and these rules solicitors shall be entitled to charge and be allowed the like fees as would, in accordance with the "lower scale," be authorised in similar proceedings by the rules of the Supreme Court and no higher fees : Provided that fees in accordance with the " higher scale " authorised by those rules may be allowed either generally throughout any proceeding or as to the costs of any particular application or matter in any proceeding, if on special grounds it is so ordered or directed, or if the taxing officer under the directions given to him for the purpose thinks that such an allowance ought to be so made upon any special ground. (3.) An application for the taxation of costs shall be made and heard in like manner as an interlocutory application except that — (a) the fees pa}-able on the lodging and hearing of an interlocutory application shall not be payable ; and (b) the notice requiring an adjournment to the judge shall state the items allowed or disallowed which are objected to, and except as to those items the decision of the taxing officer shall be final. (4.) A copy of the bill of costs to be taxed shall be lodged with the registrar and served on the other party together with the application. Scale of Costs — Form 50.] 48. A party to whom costs are payable under a judgment or order in any proceeding under these rules may recover the costs when taxed by execution and otherwise in like manner as a person to whom any costs are payable under a judgment or order of the High Court ; and for that purpose writs of execution shall issue under the like circumstances and in the same form, as near as may be, as writs of execution issuing from the Supreme Court. Scale of Fees.] 49. — (1.) Court fees shall be paid to the registrar in respect of proceedings under the Act or these rules according to the scale set forth in the First Schedule to these rules, and the registrar shall account for and pay all fees received by him to the Ecclesiastical Commissioners. (2.) All fees required to be paid on the lodging of a docu- ment with the registrar shall be paid at the time when the document is lodged, and, if the document is sent by post, may be paid by Post Office Order made payable to " The Registrar of the court constituted under the Benefices Act, 1898." (3.) If, on the application of either part}*, a matter or appeal or any interlocutory application or other proceeding under the Act or these rules is heard or held at a place other than the Benefices Rules, 1899. 653 Royal Courts of Justice, the party making the application shall, in addition to the other fees payable under these rules, pay the out-of-pocket expenses thereby occasioned to any member or officer of the court, and the actual costs of and incidental to the hire of any place for the purpose of the hearing or proceeding. Application of the procedure of Supreme Court. ~\ 50. Subject to the provisions of the Act and these rules, the general principles of practice in the Supreme Court may be adopted and applied in such manner as may be directed or ordered. Construction.^ 51. In the construction of these rules the Interpretation Act, 1889, shall apply as if the rules formed part of the Benefices Act, 1898. Forms.~\ 52. — (1.) The forms in the Second Schedule where applicable, and where they are not applicable forms of the like character with such variation as circumstances may require, shall be used. (2.) Where a form in that schedule requires the signature of a party, the signature of the solicitor to that party shall suffice. F. Cantuar. Halsbury, C. "WlLLELil. EfiOR. M. LONDIN. Russell of Kn., C.J. Gafnsford Bruce, J. The 15th of March, 1899. FIRST SCHEDULE. Scale of Fees. £ On the lodging of a requisition, to be paid by the plaintiff 1 On the lodging of a notice of appeal, to be paid by the appellant 1 On the lodging of a reply, to be paid by the plaintiff 5 On the lodging of an interlocutory application, to be paid by the applicant 5 On the lodging of a withdrawal of refusal to institute or admit, or of a requisition, to be paid by the person lodging the same 5 634 Appendix. £ s. d. Before the hearing of a matter or appeal, to be paid by the plaintiff or appellant 2 After the hearing of a matter or appeal, to be paid by the plaintiff or appellant, for every day or part of a day above 1 day during which the hearing has lasted 10 Before the hearing of an interlocutory application, to be paid by the applicant 10 After the hearing of an interlocutory application, to be paid by the applicant, for every day or part of a day above 1 day during which the hearing has lasted 5 On the adjournment of an interlocutory application to the judge, to be paid by the person requiring the adjournment 10 Where a court in the Royal Courts of Justice is used for any proceeding, to be paid by the person liable to pay the fee before the commencement of the pro- ceeding, with and in addition to that fee the usual fee. On the withdrawal of a ground of refusal or fact alleged in the particulars to be paid by the bishop 5 On the lodging of any document on the lodging of which no fee is specified, to be paid by the person lodging the document 5 On the filing of an affidavit, to be paid by the person filing it 5 On the filing of a praecipe for a subpoena (including not more than 3 names), to be paid by the person filing it , 5 On the issue of a writ of execution, to be paid by the person suing out the writ 5 On the swearing of a witness called by a party, to be paid by that party 1 On making an exhibit produced by a party, to be paid by that party 1 On the taking of evidence by deposition, to be paid by the party on whose application the evidence is so taken 2 On taxing a bill of costs to be paid by the applicant — Where the amount allowed does not exceed 4.1. . . 2 Where the amount exceeds 47. for any 21. allowed or a fraction thereof 1 For the copy of a document or an extract from a docu- ment in the office of the court relating to any pro- ceedings under the Act, to be paid by the person requiring the copy to be made : — If 5 folios, or under 2 6 If over 5 folios, per folio 6 Benefices Eules, 1899. 655 SECOND SCHEDULE. FORMS. Form 1. Requisition by Patron. 18 , No. In the court constituted under the Benefices Act, 1898. In the matter of the Benefice of and in the matter of the Benefices Act, 1898. Between Plaintiff, and The Bishop [Archbishop] of Defendant. The defendant having by a notice, a copy of which is sent herewith, signified to me his refusal to institute [admit] to the above-named benefice to which he was presented by me, I require the matter to be heard before this court. Dated the day of Signature of Plaintiff. Address for service (a). (a) Here insert address in England or "Wales. Eorm 2. Requisition by Presentee. {Heading as in Form 1.) The defendant having by a notice, a copy of which is sent herewith, signified to me his refusal to institute [admit] me to the above-named benefice to which I was presented by , I require the matter to be heard before this court. Dated the day of Signature of Plaintiff. Address for service (a). (n) Here insert address in England or Wales. G56 Appendix. Fomi 3. Notice that a Requisition, $v., has been lodged. {Heading as in Form 1.) Take notice that I on the day of lodged with the registrar the requisition [or statement of particulars] [or reply], a copy of which accompanies this notice. Dated the day of Signature of Plaintiff [or Defendant]. Form 4. Notice requiring Bishop to furnish particulars. {Heading as in Form 1.) To the Defendant. Take notice that I hereby require you to give particulars of the facts on which you intend to rely in support of the following grounds contained in your signification of refusal to institute [or admit] [or me («)] to the above-named benefice : {b) Dated the day of ,18. Signature of Plaintiff. Instructions. Within fourteen days from the service of this notice on you, you must lodge in duplicate with the registrar a statement of the par- ticular facts upon which you ivill rely in support of each of the above-mentioned grounds . (a) If the presentee is the plaintiff, the word " me " must be used. (b) Here insert the grounds of refusal in respect of which particulars are required. Foitll 5. Notice that a requirement for particulars has been served. {Heading as in Form 1.) To the Eegistrar. Take notice that on the clay of I served on the defendant the notice requiring him to give particulars, two copies of which accompany this notice. Dated the day of ,18 . Signature of Plaintiff. Benefices Rules, 1899. 657 Form: 6. Statement of Particulars. {Heading as in Form 1.) In support of the first ground of refusal, namely, that (a) I shall rely on the following facts : — (b) In support of the second ground of refusal, namely, that (a) I shall rely on the following facts : — (b) [And so on with regard to the other grounds particulars whereof are required by the plaintiff. ~\ Dated the day of ,18. Signature of Defendant. (a) Here describe the nature of the ground. (b) Here insert facts relied on. Each fact should be stated separately and numbered (1), (2), (3), &c. Form 7. Order for further and better Particulars. {Heading as in Form 1.) Upon hearing the Plaintiff [and Defendant] and upon con- sidering the application of the Plaintiff. It is ordered that the Defendant lodge in duplicate with the registrar on or before the day of , 18 , further and better particulars with respect to the following matters : — (a) and that the costs of this application be Dated the day of (a) Here insert the matters in respect of which further particulars are to be furnished. r U 658 Appendix. Form 8. Reply. {Heading as in Form 1.) The Plaintiff says, by way of reply to the first ground of refusal, and to the facts numbered (a) alleged by the Defendant in support thereof as follows : — and by way of reply to the second ground of refusal to the facts, &c. Dated the day of , 18 . Signature of the Plaintiff. (a) Here insert numbers corresponding to the numbers in the statement of particulars. Form 9. Order for Amendment of Pleadings. {Heading as hi Form 1.) Upon hearing the Plaintiff and Defendant, and upon con- sidering the application of the Plaintiff [or Defendant]. It is ordered that the Defendant be at liberty to amend his particulars, as follows : — (a) [or that the words {b) be struck out of ] (c) and that the cost of the application be [{d) And that the day for the hearing of the matter be post- poned till day the day of at the hour of in the noon]. Dated the day of ,18. (a) The pleading as amended is to be here set out. (b) Here set out the words ordered to be struck out. (c) Here insert the pleading to be amended. (d) If the day for hearing is postponed insert these words, giving time fixed. Benefices Rules, 1899. 659 Form 10. Amendment of Pleading. {Heading as in Form 1.) To the Registrar. Take notice that the following statement of particulars is to be substituted for the statement of particulars lodged the day of , 18 . (a) [or that I withdraw the following ground(s) of refusal or alleged facts: {b) ]. Dated the day of , 18 . Signature of the Defendant. (a) Here set out amended pleadings in the same form as the original pleading. (b) Here set out the grounds or facts withdrawn. Form 11. Notice of Amendment of Pleading. {Heading as in Form 1.) To the Plaintiff. Take notice that I have this day lodged with the registrar an amended statement of particulars [or a withdrawal of grounds of refusal or alleged facts], a copy of which accompanies this notice. Dated the day of , 18 . Signature of Defendant. Form 12. Withdraival of Refusal or Requisition. {Heading as in Form 1.) To the Registrar [or Plaintiff] [or Defendant]. Take notice that I hereby withdraw my refusal to institute [or admit] to the above-mentioned benefice [or my requi- sition that the above matter should be heard by this court] and will submit to such judgment or order as may bo made. Dated the day of , 18 . Signature of the Defendant [or Plaintiff], u u 2 GGO Appendix. Form 13. Order allowing neio ground of Refusal. {Heading as in Form 1.) Upon hearing the Defendant [and Plaintiff] and upon con- sidering the application of the Defendant [and upon reading the affidavit of filed the day of .] It is ordered that the Defendant be at liberty to rely at the hearing on the following new grounds of refusal (a) [if within days from the date of this order he lodges with the registrar a statement of the particulars on which he will rely in support of those grounds and within the same time serves a copy thereof on the Plaintiff] and that the costs of this application be [And that the date of the hearing be postponed, &e. ]. Dated the day of (a) Here set out new grounds allowed. Form 14. Notice that other Requisitions have been lodged. Take notice that the requisition, a copy of which accompanies this notice, has been lodged with me in respect of the refusal of the Bishop [Archbishop] of to present to the benefice of , in addition to the recpuisition lodged by you in respect of the same refusal. Dated the day of Signature of Eegistrar. Form 15. Order for Consolidation of Proceedings. {Headings of all the Proceedings to be inserted.) Upon hearing {a) and upon considering the application of {b) [and upon reading the affidavit of filed the day of .] It is ordered that the proceedings in the above matters be consolidated, and that the title of the consolidated proceedings be (c) , and that the conduct of the said proceedings on behalf of the plaintiffs be entrusted to , and. that all docu- Benefices Bules, 1899. 661 ments required to be served by the defendant be served by him on all the plaintiffs, and that all documents required to be served by the plaintiff be served by the said (d) on all the co- plaintiffs, and that the costs of this application be borne Dated the day of 18. («) Insert names of parties heard. (b) Insert name of applicant. (c) Insert title of consolidated proceedings. (d) Insert the name of the person to whom the conduct of the proceedings is entrusted. Form 16. Notice to Bishop to institute [or admit], [Heading as in Form 1.) To the Defendant. Take notice that the judgment of the court delivered on the day of having been in favour of the presentee to the above-named benefice, if within one month from the said date you fail to institute [admit] the said to the said benefice the official principal of the Archbishop will institute [admit] him if there is no other impediment. Dated the day of Signature of Registrar. Form 17. Report of Commission. Benefices Act, 1898. In the matter of the Benefice of To the Bishop [Archbishop] of "We, the Commissioners appointed by the commission issued the day of in pursuance of sect. 77 of the Pluralities Act, 1838, as amended by the Pluralities Acts Amendment Act, 1885, and the Benefices Act, 1898, to inquire into the facts of the case respecting the above-named benefice, report that the incumbent of the said benefice has been negligent in the performance of the ecclesiastical duties of the said benefice in the following respects : {a) Dated the day of 18. Signatures of Commissioners. (a) Here state particulars of negligence. 662 Appendix. Form 18. Notice to Incumbent of Appointment of Curates. Benefices Act, 1898. To the Incumbent of Take notice that the commission appointed under sect. 77 of the Pluralities Act, 1838, as amended by the Pluralities Acts Amendment Act, 1885, and the Benefices Act, 1898, to inquire into the facts of the case of the above-mentioned benefice, having reported as follows («) : — I on the day of appointed [and ] to be curate(s) of the said benefice. Dated the day of Signature of Bishop [Archbishop]. (a) Here insert copy of report. Form 19. Inhibition. Benefices Act, 1898. To the Incumbent of Take notice that the commission appointed under sect. 77 of the Pluralities Act, 1838, as amended by the Pluralities Acts Amendment Act, 1885, and the Benefices Act, 1898 [or under sub-sect. (3) of sect. 9 of the Benefices Act, 1898] to inquire into the facts of the case of the above-mentioned benefice, having reported as follows («) : — I hereby inhibit you from performing until further notice all \or the following] ecclesiastical duties of the said benefice (b) : — Dated the day of Signature of Bishop [Archbishop]. («) Here insert copy of report. {b) If the incumbent is not prohibited from performing all the duties, the particular duties must be inserted. Benefices Rules, 1899. 663 Form 20. Direction to Churchwardens to fix Notice of Appointment of Curates or Inhibition. To the churchwardens of You are hereby directed to cause the enclosed notice of ap- pointment of curates to the benefice of [and inhibition] on the principal door or notice board of the [or the (a) church [or chapel] belonging to the said benefice. Dated the day of Signature of Bishop [or Archbishop]. (<-/) If there is more than one church or chapel, the principal church or chapel should he specified. Form 21. Request for Copy of Notice of Appointment of Curates or Inhibition. To the Bishop [Archbishop] of Your Lordship [Grace] is hereby requested to enclose in the accompanying addressed and stamped envelope a copy of the notice of appointment of curates to the benefice of [and inhibition] which has been served on me, and to post the same Dated the day of Signature of Incumbent. Form 22. Notice of Appeal. In the court constituted under the Benefices Act, 1898. 18 , No. . In the matter of the Benefice of , and in the matter of the Benefices Act, 1898. Between [Incumbent of ], Appellant, and The Bishop [Archbishop] of , Eespondent. The bishop [archbishop] of , having on the day of 18 appointed to be a curate [or curates] of tho 6G4 Appendix. above-mentioned benefice without requiring me to make any such appointment, and («) having on the day of 18 inhibited me from performance of all [or certain] ecclesiastical duties of the said benefice, I hereby give notice of appeal against the said appointment and inhibition on the ground that the report of the commission — (1.) Does not justify the making of the said appointment or the issue of the said inhibition (b). (2.) Was wrong in law in respect of the following matters (c) : — (3.) In respect of the following facts was not in accordance with the true facts (d) : — And also on the ground that the appointment [or inhibition] was not j ustified by reason of the following facts (e) : — Dated the day of Address for service (/). Signature of Appellant. (a) If no inhibition has been issued, the references to the inhibition must be struck out. If no curate has been appointed, references to the appoint- ment of curates must be struck out. (b) If this or any other ground is not relied on, it must be struck out. (c) Here insert matters in respect of which the report is alleged to be ■wrong in point of law. (d) Here state facts alleged to have been wrongly found. (e) Here state facts not dealt with by commission alleged as grounds of appeal. (/) Here insert address in England or Wales. Form 23. Notice that Notice of Appeal has been lodged. {Heading as in Form 22.) To the Respondent. Take notice that on the day of I lodged with the registrar the notice of appeal, a copy whereof is sent herewith. Dated the day of ,18. Signature of Appellant. Benefices Rules, 1899. 665 Form 24. Notice that Appeal has been set doicn for hearing. {Heading as in Form 22.) To the Registrar [or Respondent]. Take notice that I hereby withdraw my notice of appeal lodged the day of , 18 , and will submit to such judgment or order as may be made. Dated the day of ,18. Signature of Appellant. Form 25. Notice of Time and Place of hearing Matter or Appeal. {Heading as in Form 1 or Form 22, as the case may require.') To the Plaintiff [or Defendant] [or Respondent] [or Appel- lant]. The hearing of the above matter [or appeal] will take place at the Royal Courts of Justice, Strand, London [or at ], on day, the day of , 1 8 , at the hour of in the noon. Dated the day of ,18. Signature of Registrar. Form 26. Notice of Postponement of Hearing. (Heading as in Form 1 or Form 22, as the case may require.") To the Plaintiff [or Defendant] [or Appellant] [or Respondent]. Take notice that the day for the hearing of this matter [or appeal] has been postponed until day the day of , 18 , and that this matter [or appeal] will be heard at the Royal Courts of Justice, Strand, London [or ] at the hour of in the noun. Dated this day of Signature of Registrar. 666 Appendix. Form 27. Order for Extension of Time for lodging Document. {Heading as in Form 1 or Form 22, as the case may require.) Upon hearing the Plaintiff and Defendant [or Appellant and Respondent], and upon considering the application of the Plaintiff [or Defendant] [or Appellant] [or Respondent]. It is ordered that the time for (a) be extended to a period of days from , and that the costs of this application be Dated the day of ,18. (a) Here state the matter in respect of which the extension is allowed. Form 28. Consent to Extension of Time for lodging Document. {Heading as in Form 1 or Form 22, as the case mag require.) To the Plaintiff [or Defendant] [or Appellant] [or Respondent]. I hereby consent to the extension of the time appointed for the lodging of to a period of days from Dated the day of ,18. Signature of Defendant [or Plaintiff] [or Respondent] [or Appellant]. Form 29. Praecipe for Subpoena. {Heading as in Form 1 or Form 22, as the case mag require.) Seal writ of subpoena on behalf of the Plaintiff [or Appellant] [or Defendant] [or Respondent] to . Return- able Dated the day of Signature of Defendant [or Respondent] [or Plaintiff] [or Appellant]. Benefices Rules, 1899. 667 Form 30. Subpoena ad Testificandum. {Heading as in Form 1 or Form 22, as the case may require.) Victoria, by the Grace of God, &c, to [the names of three witnesses may be inserted] greeting : We command you to attend before this court at the Royal Courts of Justice, Strand, London [or ] on day the day of 18 , at the hour of in the noon, and so from day to day until this matter [or appeal] is determined, to give evidence on behalf of the Plaintiff [or Appellant] [or Defendant] [or Respondent]. Witness, &c. Form 31. Subpoena duces tecum. {Heading as in Form 1 or Form 22, as the case may require.) Victoria, by the Grace of God, &c. to [the names of three ivitnesses may be inserted]. We command you to attend before this court at the Royal Courts of Justice, Strand, London [or ] on day the day of 18 , at the hour of in the noon, and so from day to day until this matter [or appeal] is determined, to give evidence on behalf of the Plaintiff [or Appellant] [or Defendant] [or Eespondent], and also to bring with you and produce at the time and place aforesaid [specify the documents to be produced]. Witness, &c. Form 32. Notice to produce Documents referred to in Pleadings. {Heading as in Form 1 or Form 22, as the case may require.) Take notice that I hereby require you to produce for my inspection the following documents referred to in your state- ment of particulars [or reply] [or notice of appeal] [or affidavit filed the day of ] (a). Dated the day of 18 Signature of Plaintiff [or Appellant] [or Respondent] [or Defendant]. (a) Here describe the documents required to be produced. 668 Appendix. Form 33. Notice of Time and Place where Documents can be inspected. (Heading as in Form 1 or Form 22, as the case may require.} Take notice that you can inspect the documents mentioned in your notice dated the day of [except (a) at (b) on day the day of between the hours of and o'clock. [or that I object to your inspection of the documents men- tioned in your notice of the day of , on the ground that (c) ]. Dated the day of 18 Signature of Defendant [or Plaintiff] [or Respondent] [or Appellant]. (a) Here insert exceptions, if any. (b) Here insert place of inspection. (c) Here insert ground of objection. Form 34. Notice to produce Documents. {Heading as in Form 1 or Form 22, as the case may require.) Take notice that you are hereby required to produce on the hearing of the above matter [or appeal] all documents in your custody, possession, or power containing any entry, memorandum, or minute relating to the above matter [or appeal] and par- ticularly Dated the day of 18 Signature of Plaintiff [or Defendant] [or Appellant] [or Eespondent]. Form 35. Notice to admit Documents. (Heading as in Form 1 or Form 22, as the case may require.) Take notice that in this matter [or appeal] I propose to adduce in evidence the several documents hereunder specified, Benefices Eules, 1899. G69 and that the same may be inspected by you at (a) on day the day of between the hours of and o'clock; and you are hereby required, within 48 hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed as they purport respectively to have been ; and that such as are specified as copies are true copies ; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered respectively ; saving all just exceptions to the admissibility of all such documents as evidence in the matter [or appeal]. Dated the day of 18 Signature of Plaintiff [or Defendant] [or Appellant] [or Respondent] . Originals. Description of Document. Dates. Copies. Description of Documents, Original or Duplicate. How, when, and by whom served. («) Here state place of inspection. 670 Appendix. Fokm 36. Application for an Order of the Court. {Heading as in Form 1 or Form 22, as the case may require.) I hereby apply that it may be ordered that (a) Dated the day of 18 Signature of Applicant. Instructions. (1.) Where the application is for an extension of time or for postponement of the hearing, the length of the extension or post- ponement desired must be specif ed. (2.) Where the application is for leave to amend particulars, or to st7'ike out any matter from a pleading, the particulars as pro- jyosed to be amended, or the matters proposed to be struck out, must be set out. (3.) Where the application is for further and better particulars, the matters in respect of which the further particulars are required must be specif ed. (4.) Where the application is for leave to deliver a reply, the reply proposed to be delivered must be set out. [a) Here state the order desired. Forai 37. Notice that Interlocutory Application has been lodged. {Heading as in Form 1 or Form 22, as the case may require.) Take notice that on the day of I lodged with the registrar, the interlocutory application, a copy of which accom- panies this notice. Dated the day of 18 Signature of Applicant. Fokm 38. Notice of Time and Place for hearing Applications. {Heading as in Form 1 or Form 22, as the case may require.) To the Plaintiff [or Defendant] [or Appellant] [or Respondent]. Take notice that your application [or the application of ] lodged with me the day of will be heard at the Royal Courts of Justice, Strand, London [or at ] on day the day of 18 , at the hour of in the noon. Dated the day of 18 Signature of Registrar. Benefices Rules, 1899. 671 Form 39. Notice requiring Interlocutory Application to he adjourned to the Judge. {Heading as in Form 1 or Form 22, as the case may require.) Take notice that I require the application (a) heard by the Registrar in chambers on the day of to be adjourned to the judge [for the determination of the following matters Dated the day of Signature of the party requiring the adjournment. (a) State shortly the nature of the application. {b) If the opinion of the judge on the whole question is not required, the particular matters on which his opinion is desired must be stated. Form 40. Notice of Time and Place for hearing of Adjourned Application. {Heading as in Form 1 or Form 22, as the case may require.) To the Plaintiff [or Defendant] [or Appellant] [or Respondent]. Take notice that adjourned hearing of the application (a) will take place at the Royal Courts of Justice, Strand, London [or at ], on day, the day of ,18 , at the hour of in the noon. Dated the day of ,18. Signature of the Registrar. («) State shortly the nature of the application. Form 41. Judgment in favour of the Presentee. {Heading as in Form 1.) Dated the day of , 1 8 . (a) This matter having on the day of ,18 (b) been heard by the Court, consisting of (c) , and (d) , and the said (d) having found that no face alleged as reason of unfitness or disqualification of the Plaintiff (e) for institution [or admission] to tho above-named benefice, being sufficient in law, exists, and the said (c) having thereupon directed the institution [or admission] of the Plaintiff [or tho said (/)] to the 672 Appendix. above-named benefice, and having given judgment accordingly [and the Court having directed that the Defendant do pay the costs of this matter (<7)]. It is this day adjudged that the judgment of the Court is in favour of the Plaintiff [or the said (_/)] [and that the Plaintiff do recover from the Defendant costs to be taxed [g)~]. [The above costs have been taxed and allowed at £ , as appears by a taxing officer's certificate.] Dated the day of ,18 . (g). [a) Insert date on which Archbishop gives judgment. (£) Insert date or dates of hearing. (c) Insert name of Archbishop. (d) Insert name of Judge. (e) Or if presentee be not plaintiff, insert name, address, and addition of presentee. (/) Insert name of presentee. (ff) Omit the words if there be no direction as to payment of costs. Poem 42. Judgment in favour of the Bishop. {Heading as in Form 1.) [Follow Form 41 down to and including the icords u having found," and then proceed thus : — ] that the following fact [or facts] alleged as reason of unfitness [or disqualification] of the Plaintiff (a) for institution [or admission] to the above-named benefice, the same being sufficient in law, exists [or exist], viz., that [here set forth the fact or facts so found by the Judge], and the said (b) [having thereupon decided that by reason thereof the Plaintiff [or the said (c)] is unfit for the discharge of the duties of the above-named benefice, and (d)~\ having [there- upon] determined that institution [or admission] of the Plaintiff [or the said (c)] to the above-named benefice ought, under the circumstances, to be refused, and having given judgment accordingly [and the Court having directed that the Plaintiff do pay the costs of this matter (e)]. It is this day adjudged that the judgment of the Court is in favour of the Defendant [and that the Defendant do recover from the Plaintiff costs to be taxed (e)]. [The above costs ($"c, as in Porm 41).] (a) Or if the presentee be not plaintiff, insert name, address, and addition of the presentee. (b) Insert name of Archbishop. (c) Insert name of presentee. {d) Omit these words if there be no such decision. {e) Omit these words if there be no direction as to payment of costs. Benefices Eules, 1899. 673 Form 43. Judgment in favour of Presentee ivhere Ground of Disqualification or Unfitness exists. {Heading as in Form 1.) \_Follow Form 42 down to and including the words "the said having thereupon," and proceed thus : — ] determined that institution \_or admission] of the Plaintiff [or the said (a)] to the above-named benefice ought not, under the circumstances, to be refused, and having given judgment accordingly [§*c., as in Form 41]. (a) Insert the name of the presentee. Form 44. Judgment in favour of Incumbent. {Heading as in Form 22.) Dated the day of ,18 (a) . This appeal having on the day of , 18 , (b) been heard by the Court, consisting of (c) , and (d) , and the said (rf) having found and determined that the appellant has not been negligent in the performance of the ecclesiastical duties of the above-named benefice, and the said (c) having thereupon given judgment accordingly [and the Court having directed that the respondent do pay the costs of this appeal (e)]. It is this day adjudged that this appeal is allowed [and that the appellant do recover from the respondent costs to be taxed (e)l. [The above costs {Sfc, as in Form 41).] (a) Insert date on which Archbishop gives judgment. (b) Insert date or dates of hearing. (c) Insert name of Archbishop. (d) Insert name of Judge. (e) Omit these words if there be no direction as to payment of costs. Form 45. Judgment in favour of the Bishop. (Heading as in Form 22.) [Follow Form 44 doivn to and including the words "and deter- mined," and then proceed thus :—] that the appellant has been negligent in the performance of the ecclesiastical duties of tho s. x x 674 Appendix. above-named benefice, and tbe said (a) having thereupon decided that by reason thereof the appointment of a curate [or of curates] herein appealed against should have been made [and that the appellant should be inhibited from performing all the ecclesiastical duties of his benefice (o)] [_or from performing the following ecclesiastical duties of his benefice, viz. (here set forth the duties) (o)], and having given judgment accordingly [and the court having directed that the appellant do pay the costs of this appeal (c)]. It is this day adjudged that this appeal is dismissed [and that the respondent do recover from the appellant costs to be taxed (c)J. [The above costs (8fc, as in Form 41).] (a) Insert name of Archbishop. (b) Omit these words if there be no such decision. (c) Omit these words if there be no such direction. Forii 46. Form of Judgment in favour of Incumbent tohere Negligence is found. (Heading as in Form 22.) \_Folloio Form 45 down to and including the ivords " thereupon decided," and proceed thus : — ] that under the circumstances the appointment of a curate [_or curates] herein appealed against should not have been made [and that the appellant should not have been inhibited from performing any of the ecclesiastical duties of his benefice], and having thereupon given judgment accordingly [Sfc, as in Form 44]. Form 47. Form of Judgment partly in favour of the Bishop. (Heading as in Form 22.) Dated the day of ,18 [Follow Form 45 down to and including the words " should have been made," and then proceed thus : — ] but that the appellant should not be prohibited from performing any of the ecclesias- tical duties of his benefice and having given judgment accord- ingly. It is this day adjudged that so much of this appeal as is against the appointment of a curate is dismissed, and so much thereof as is against the issue of an inhibition is allowed. Benefices Bules, 1899. 675 Form 48. Change of Address for Service. {Heading as in Form 1 or Form 22, as the case mag require.) Take notice that the following address for service shall be substituted for the address for service previously given (a). Dated the day of Signature of Plaintiff [or Appellant]. («) Here insert an address in England or Wales. Form 49. Notice that an Affidavit has been fled. {Heading as in Form 1 or Form 22, as the case mag require.) Take notice that on the day of I filed with the registrar an affidavit, a copy of which accompanies this notice. Dated the day of Signature of the Plaintiff [or Defendant] [or Appellant] [or Eespondent]. Form 50. Writ of Fieri Facias for Costs. {Heading as in Form 1 or Form 22, as the case may require.) Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the sheriff of greeting : "We command you that of the goods and chattels of the above- named in your bailiwick, you cause to bo made tho sum of I. for certain costs, which by a judgment [or order] of our court constituted under the Benefices Act, 1898, made in the above-mentioned matter [or appeal] and dated tho day of 18 , were adjudged [or ordered] to be paid by the above-named to the above-named and which havo been taxed and allowed at the said sum, and interest on the said sum at the rate of 41. per centum per annum i'? xx 2 076 Appendix. day of 18 , («) and that you have the said sum and interest before us in our said court, immediately after the execution hereof, to be rendered to the said in pursuance of the said judgment [or order]. And in what manner you shall have executed this our writ make appear to us in our said court immediately after the execution thereof. And have you then there this writ. "Witness , Lord High Chancellor of Great Britain, the day of , in the year of our Lord 18 Indorse the Writ thus : Levy I., and I. for costs of execution, &c, and also interest on I. at 41. per centum per annum from the day of , 18 , until payment, besides sheriff's poundage, officer's fees, costs of levying, and all other legal incidental expenses. This writ was issued by of [agent for of ], solicitor for the within-named Plaintiff [or Defendant, Appellant, or Respondent, as the case may be. Or, if the ivrit teas issued in person, say, issued by the within-named , the Plaintiff [or as the case may be~], in person, who resides at , mentioning the city, toivn, or parish, and also the name of the hamlet, street, and number of the house of such person's residence, if any such there be~\. The within-named Defendant [or as the case may be~\ is a and resides at in your bailiwick. [N.B. — The Form of other writs issued by the Supreme Court ?7iay be adapted in a similar manner, .] (a) Insert date of judgment or order of date from which, by special order, the interest is to run. INDEX. Accounts, of churchwardens, 115. of overseers, 366. of school board, 471. of coroners, 279. of parish council, 253, 524. of rural district council, 268, 524. Admission, of incumbent, 59. only if in priest's orders, 63. refusal of, 60. appeal against refusal of, 61. Adoptive Acts, 227. Affiliation Order, parish officers making application for, 407. Affinity, when renders marriage void, 154. See Consanguinity. Affirmation, 64. Aisle, whence so called, 19. may be private property, 19. seats in, 20. Allotments, providing of, for poor, 395. managers of, 399. letting and use of, 399. compulsory taking of land for, 402. compulsory hiring of land for, 403. providing "common pasture," 401. Alms, chest for, to be kept in the church, 31. when to be collected, 113, 127, 129. by whom distributed, 113, 127, 129. Altar. See Communion Table. 678 INDEX. Altering Church, 35. Ambassador, when rates cannot be levied by distress on, or servants, 318. Appeal, against grant of faculty to erect a monument, 33. against refusal to institute or admit a presentee, 61, 627. against appointment of curate by bishop, 630. against inhibition, 630. against county rate, 306. against valuation list, 317. against poor rate, 327. against order of removal, 459. under Lighting and Watching Act, 466. Apprentice, settlement gained by, 435. binding of, 435. parish, how bound, 436. assignment of, 438. register of, 437. covenant for maintenance of, how enforced, 438. to the sea service, 437. to chimney sweepers, 437. with third party, 439. after death of master, 440. discharge of, how made, 440. Archbishop, jurisdiction of, 2. Archdeacon, jurisdiction of, 3. Archdeaconries, 3, 5. Articles of Eeligion, incumbent to declare his assent to, 65. Assent, declaration of, 65. Assessment. See Poor Bate. Assistant Overseer, how elected and appointed, 370. duties of, 370. tenure of office and remuneration of, 370. accounts of, 373. Asylum. See Lunatic Asylum. Auditor. See District Auditors. INDEX. G79 Bankruptcy, of beneficed clergymen, 69. of guardian, 232. of parish, councillor, 232. of district councillor, 232. of member of school board, 470. Banns. See Marriage. Baptism, whether want of, disentitles to Christian burial, 160. to be administered in church, 123. in what cases at home, 123. sponsors, number of, 123. fees for, 124. entries of baptism, 198. certificate of, to be given to registrar, 200. Bastard, definition of, 405. when child presumed to be, 405. liability of mother of, to maintain, 406. affiliation of, 407. to have mother's settlement, 443. Beadle, nature of office, 121. how chosen, and duty of, 121. Bells, who have custody of, 32. ringing of, at funerals, 163. Benefice, meaning of, 78. union of, 79. resignation of, 79. charges on, 81. Benefice Rules, 633, 641. Benefices Act, 1898, rules under, 633, 641. grounds for refusal to institute or admit a presentee, 60, 626. appeal against refusal to institute or admit, 61, 627. appeal by incumbent against appointment of curate by bishop, 630. appeal by incumbent against inhibition on report of negli- gence in discharge of duties, 630. Bible, to be provided in church, 32. Bier, 32. 680 INDEX. Birth, settlement by, 444. registration of, 203. Bishop, number of, 2. suffragan, 2. consecration of churches by, 13. authority of, in distribution of seats, 21. may order additional services, 47. proceedings by, for correction of clerks in orders, 83. sequestration granted by, 70. licence by, to hold benefices in plurality, 78. to make return of non-residents, 98. See Ordinary ; and Benefices Act. Boarding out pauper children, 394. Boards of Guardians. See Guardians of the Poor. Body of Church, parson has freehold of, 18. prescription for pew in, 24. Books. See Parish Eegisters ; Poor Eate ; Vestry. Borough, constables in, 276. coroner in, 280. Borough Coroxer, in boroughs having separate quarter sessions, 280. remuneration of, 280. duties of, 281. Boundaries, perambulations of, 4. altering and defining of, 6. Burial, right of, 159. in churchyards, 162, 173. without rites of church, 167. right of, in the church itself, 172. prohibition of, 172. of bodies cast on shore, 161. duty of, on whom imposed, 159. of paupers, 164. refusing, 159. what persons excluded from Christian, 160, 161. fees for, 163, 166, 191. exhumation, 171. register of, 199. INDEX. 681 Burial Board, to be appointed by vestry, 184. for united parishes, 1 84. in places not maintaining their own poor, 185. to provide burial ground, 187. expenses of, defrayed out of poor rates, 190. facilitation of funerals by, 190. Burial Ground, to be provided by local authorities, 180, 187. to be consecrated, 187. to be burial ground of the parish, 188. disused, to be maintained, 178. opening disused, as open space, 179. Canterbury, province of, 2. number of dioceses in, 2. Casual Poor, who are, 404. what parish is liable to relieve, 404. cost of relief of, how repaid, 405. are not removeable while such, 446. but may be if they remain longer, 440. Casual Sojourners, not parishioners, or inhabitants, 12. Casual Ward, 422. Caveat against marriage licence, 136. Cemeteries, two kinds of, 194. local authorities providing, 180. consecrated ground in, 194. unconsecrated ground in, 195. chaplain of, 194. exclusive rights of burial in, 195. monumental inscriptions in, 195. Ceremonies, unlawful, 28, 125, 129. Chairman, of vestry meeting, 212. of parish meeting, 225. of parish council, 234. of rural district council, 258. Chalice, 32. 682 INDEX. Chancel, whence so called, 17. to whom it belongs, 17. seats in, 18. repairs of, by parson, 17. gates of, 31. Chapels, private, 16. of ease, 16. proprietary, 17. Chargeability, necessary to authorise removal of papers, 44-5. pregnancy not evidence of, 446. felons and vagrants deemed chargeable, 446, sickness or accident must be permanent for, 446. adjudication of, in order of removal, 454. notice of, paupers not to be removed till twenty-one days after, 451. service of, when and how made, 456. Chest for Alms, 31. Chief Constable, appointment of, 273. duties of, 273. Children, legitimate, settlement of, 442, 444. illegitimate, settlement of, 443. cannot be separated from mother under age of nurture, 448. when not removeable, 448. pauper, education of, 421, 479. boarding out orphan and deserted pauper, 394. emigration of, 392. bastard, 405. cruelty to, 34 1 . control over deserted, 340. Chimney-Sweeper, apprentices to, not to be under sixteen, 437. Christening. See Baptism. Church Building Acts, enumeration of, 6. formation of parishes under, 6. Church Building Commissioners. See Ecclesiastical Commis- sioners. INDEX. 683 Church Discipline Act, 1840. .85. Church Endowment Acts, 7. Churches, origin of, 1 . increase of, 6. founding of, 13. consecration of, 13. commemoration of, by wakes, 13. conveyance of property for, 14. chancel of, 17. body of, 18 nave of, 18. aisle of, 19. pews in, 20. goods and ornaments of, 28. repairs of, 35. dilapidations of, 36. enlarging or rebuilding, 35. burial in, 172. freehold of, in whom, 17. duties of churchwardens in, 23, 111. Church Eate, compulsory, abolished, 301. Church Trustees, generally, 15. voluntary, 302. CnURCHWARDENS, election of, when and by whom, 106. who exempt, 104. election of, 107. under Church Building Acts, 107. under New Earishes Acts, 108. mandamus to elect, 108. to admit, 109. must make declaration, 109. continuance in office of, 110. duties of, 111. to act as sequestrators, 114. to present all things amiss, 115. to seat congregation, 112. to collect and dispose of offertory, 113. are responsible for goods of the church, 116. repairs of church, &c, their duties as to, 35. accounts of, before whom produced, 115. proof of disbursements, 116. agreements entered into by, 1*16. actions by, 116. proceedings against, 116. protection of, in actions, 117. 684 INDEX. Church Way, prescription for, 41. Churchyards, repair of, by parishioners, 39. right to trees and herbage in, 39. waste prohibited in, 41. vaults, tombs, &c, in, 173, 174. ownership of tombstones in, 175. additional, 42, 175. closing of, 177. repair of closed, 178. burial in, 173. fees for burial in, 163. Clergy Discipline Act, 1892. .88. Clergyman-, refusing burial, punishment for, 159. fees of, for burials, 163. to take oaths required by law, 64. privileges of, 68. freedom of, from tolls, 68. disabilities of, 68. cannot be councillor, &c, in a borough, 68. or serve on juries, 68. trading or farming by, 68, 69. cannot hold above eighty acres without leave, 68. nor trade with more than six partners, 68. or in person, 68. except for purpose of education, &c, 69. penalties, 69. contracts by, not void, 69. bankruptcy of, 69. correction of, 83. non-residence by, 96. punishable for unduly solemnizing marriage, 152. not entitled to fee for marriage except by custom, 137. inquiries as to inadequate performance of ecclesiastical duties, 92. resignation of benefice, 79. relinquishment of holy orders, 82. See Incumbent. Clerk, Parish. See Parish Clerk. Clerk to Guardians, 354. Clerk to Parish. Council, 253. Clerk to Vestry. ■ See Vestry Clerk. Collation of incumbent, what is, 59. INDEX. 685 COLLECTOK OF POOR KATES, how appointed, 371. tenure and remuneration of, 373. accounts of, 373. Commandments to be placed in chancel, 32. Common Pasture, providing, 401. Common Prayer Book to be provided in churches, 32. Communion. See Holy Communion. Communion Table to be kept in churches, 29, 125. Consanguinity, difference between, and affinity, 154. renders marriage void, 154. Consecration, 13. Constable, high, 269. parish, 269. special, 270. police, in counties, 272. police, in boroughs, 276. Coroner. See County Coroner; Borough Coroner; and In- quests. Corpse, cast on sea-shore, burial of, 161. taking into church, 163. disinterment of, 171. cremation of, 171. See Burial. Correction of clerks in orders, 83. County Coroner, appointment of, by county council, 278. qualification of, 278. residence of, 279. salary of, 279. accounts of, 279. removal of, 284. deputy, 279. is ex officio justice of the peace, 280. 686 INDEX. County Council, powers and duties of, as to grouping of parishes, 512. as to parish wards, 237, 501. as to removing difficulties at elections, 239, 517, 519. as to allotments, 490 — 495. as to compulsory taking of lands by parish council, 490. as to establishing or dissolving parish councils, 512, 513. as to fixing number of guardians and parish and rural district councillors, 484, 526. as to fixing scale of election expenses, 519. as to complaints of district council by parish council, 507, 527. as to removing disqualification of parish councillor, 516. as to borrowing by parish council, 495, 496. as to parish documents, 251, 500, 510, 512. as to county rate, 306. County Rate, origin of, 304. committee for preparing basis to be appointed, 304. overseers to make returns of annual value for, 305. rates may be inspected, 305. basis for, when to be printed, 305. basis for, to be confirmed by county council, 306. appeal against, by parishes on the ground of inequality, 306. rate to be made by quarter sessions according to basis, 306. guardians to pay, 307. when overseers to collect and pay, 307. Credence Table, 31. Crejjation, 171. Curacies. See Curate. Curate. See Stipendiary Curate ; Perpetual Curate. Deacon, requirement as to age, 63. authority of, 63. Deaneries, Rural, how divided, 3. Dedication, of way, when presumed, 290. whether it may be partial, 291. Deputy, dissenter chosen churchwarden may serve by, 105. coroner may appoint, 279. overseers may not appoint, 361. INDEX. 68i Derivative Settlement, how acquired, 441. Dilapidations, where benefice vacant, 36. where benefice not vacant, 37. cases where no liability for, 38. rights as between successive tenants for life, 38. sequestration for, 37. Dioceses, established before parishes, 1 . divisions into, 2. enumeration of, 3. Disabilities of Clergymen, 69. Dispensaries, 380. Distress for poor rate, 332, 333. District Auditors, appointment of, 349. powers and duties of, 349. financial statement of, 350. audit by, 350. extraordinary audit by, 351. Districts, for ecclesiastical purposes, 7,11. highway, 293. school, 467. rural sanitary, 255. Divine Service, performance of, 128. Act of Uniformity as to, 128. unlawful ceremonies at, 129. vestments at, 129. Donatives abolished, 60. Ecclesiastical Commissioners, power to form new parishes or districts, 6, 7. powers of church building commissioners transferred to, 6. Ecclesiastical Districts, 7, 1 1 . Ecclesiastical Duties, definition of, 95. inadequate performance of, ( J2. Education. See Elementary Education. G88 INDEX. Election, of perpetual curate, 55. of churchwardens, 107. of parish clerk, 118. of sexton, 120. of beadle, 121. of vestry clerk, 218. of overseers, 358. of guardians of the poor, 338. of inspectors under Lighting and Watching Act, 463. of parish councillors, 237. of rural district councillors, 258. of members of school boards, 469. Elementary Education, 467. (1) Providing and Management of Schools. school districts, 467. united and contributory districts, 468. supply of schools, 468. formation of school board, 469. election of, 470. corrupt practices at election, 469. tenure of office, 470. bankruptcy of member, 470. dissolution of school board, 470. duties of school boards, 471. appointment of managers, 471. school board accounts, 471. school attendance committee, 472. parliamentary grant, 478. (2) Attendance of Children at Schools, 472. duty of parent to cause child to receive elementary education, 472. what is a reasonable excuse for non-attendance at school, 473. detention of scholar, 474. children in canal boats, 475. bye-laws for attendance of children at school, 474. employment of children, 475. school fees, 477. allowing of school fees by way of loan, 477. enforcing payment of fees, 478. pauper children, 479. workhouse schools, 479. Emigration, relief by way of, 392. of children, 392. INDEX. 689 Endowment, of churches, original, 13. commemorated by wakes, 13. Enlarging or Rebuilding Church, consent of parishioners, 22. Estate, settlement by, 432. Excommunication, prevents right to Christian burial, 159. Exhumation, 171. Extra-Parochial Places, 4. Faculty, for altering, enlarging, and rebuilding churches, 35. for distribution and appropriation of seats, 22. for erection of monuments and tombstones, 33, 173. for burials in churches, 172. for diverting churchyard to secular purposes, 180. for union of benefices, 28. for removal of human remains, 171. Family, persons able, but neglecting to maintain, punishable, 385. Felo-de-Se, rights of burial, 161. how to be buried, 161. Fire Engine, providing, by parish council, 242. under Lighting and "Watching Act, 465. Fire Insurance, by incumbent of benefice, 75. Font, 31. Footpaths, 299. Freehold of Church, 17, 64. Free Seats, allotting in churches, 23, 25, Funeral. See Burial. Gallery, in church, how erected, 21. s. Y Y 690 INDEX. Glebe, vested in rector or incumbent, 64. sale of, by incumbent, 75. under Glebe Lands Act, 1888. .75. incumbent farming, 69. Goods and Ornaments of the Church, in general, 28. removal of unlawful, 31. property in, 34. alienation of, 34. Grounds of Removal. See Order of Removal; Removal of Paupers. Guardians of the Poor, provisions of Local Government Act, 1894, as to, 258. rural district councillors act as, 256. quabfications of, 258. election of, generally, 258, 338. number of, 339. a corporation, 341. division of parish into "wards for, 339. union of parishes for, 337. powers and duties of, 339 — 348. mode of consent by, 342. borrowing by, 343. contracts and payments by, 343. duties of, as to vaccination, 244. costs of proceedings by, 345. deputation of, expenses of, 345. conference of, expenses of, 346. payments by, to Poor Law Unions Association, 347. retirement of, 339. resignation of, 259. High Constable, 269. Highway, various kinds of, 289, 293. dedication of, 290. turnpike road, 292. main roads, 293. repair of main roads by county council, 296. Acts relating to, 292. authority for, for rural districts, 293. expenses of, 294. repair of, 295. INDEX. 691 Highway — continued. parish, primarily liable to repair, 295. liability to repair ratione tenurts, 296. stopping and diverting, 299. Highway Acts, 292. Highway Authority for Kural Districts, 293. Highway Boards, abolition of, 294. Highways, Surveyors of, included in term highway authority, 293, 294. transfer of powers of, to rural district council, 260, 294, 505. Holy Communion, bread and wine for, by whom provided, 125. administration of, 124. refusal to administer, 127. what vestments may be worn at, 127. offertory at, 127. penalty for reviling, 127. Husband, chargeable with relief given to wife or child, 387. liable to maintain wife's children under sixteen, 387, 406. to contribute to support of lunatic wife, 410. settlement of, taken by wife, 442. wife not removeable without, 447. unless he consents or has deserted her, 447. Illegitimate Child. See Bastard. Incumbent, meaning of term, 59. appointment of, 59. presentation of, 59. admission of, 59. institution of, 59. collation of, 59. induction of, 63. freehold of church, churchyard and glebe belong to, 17, 18, 64. reading in, 65. to take oaths, 64. y y2 692 INDEX. Incumbent — continued. of new parishes to be perpetual curate, 55. privileges of, 68. disabilities of, 68. trading by, 68. bankruptcy of, 69. non-performance of duties by, 46, 92. in large parishes to appoint curates, 46. if lunatic, curate's stipend to be paid by committee, 48. to appoint clerk, 117. rights of, as to sexton, 120. right of, to preside in vestry, 212. pluralities, 76. residence by, 73. resignation of, 79. relinquishment by, 82. rateable to the poor for tithes, &c, 318. See Clergymen ; Vicar ; Plurality ; Residence. Indenture. See Apprentice. Induction of incumbent, 63. Inhabitants, who are, 12. right of, to attend vestry, 211. See Parishioners. Inhibition, where sequestration issues, 72. for negligence in discharge of duties, 94. Inquest, when to be held, 281. refusal to hold, 281. attendance of jurors and witnesses, 282. medical witnesses, 282. exclusion of public, 284. 'post-mortem examination, 283. adjourning to assizes, 282. jury to determine whether deceased was non compos, 160. coroner to order burial of felo-de-se, 161. Institution, of incumbent, what it is, 59. refusal to institute, 60. appeal against refusal, 61. INDEX. 698 Insurance. See Fire Insurance. Interment. See Burial. Jews, not qualified for office of churchwarden, 104 ; marriage of, 150. Jurors, regulations as to serving as, 287. entitled to six days' notice, 287. exemptions from service, 287. special jurors, qualification of, 286. coroner's jury, 282. Jury Lists, clerk of peace to issue warrants to overseers for, 285. overseers to make lists, 285. publication of, 286. special petty sessions to correct, 286. justices to sign and allow, 287. penalty for neglect of duty in making, 285. Lay Baptism, recognised by the Church, 123. Legitimacy, presumption of, 405. Libraries. See Public Libraries. Licence, to hold benefices in plurality, 77, 78. for non-residence, 97, 98. to curate, 49, 56. for marriage, 135, 141. Lighting and Watching Act, meeting to adopt, 227, 462. inspectors, number to be elected under, 463. appeal against orders of inspectors or convictions, 466. rates, 466. Local Government Act, 1894, text of, 483. Local Government Board, powers and duties of, 335. annual report of, 336. to make orders, 336. to form poor law unions, 337. to combine unions, 337. to dissolve unions, 337. auditing accounts by, 338, 349. 694 INDEX. London, poor law relief in, 380. Lunatic Asylum to be provided by county council, 408. Lunatics, providing asylum for, 408. how sent to asylum, 409. hospitals and licensed houses for, 409. maintenance of, 409. chargeability of, to parish sending, 411. Mandamus, to compel burial of parishioner, when, 173. to elect churchwarden, 108. to admit churchwarden, 109. to churchwardens to permit inspection of accounts, 115. to assemble vestry meeting, 211. to restore sexton, when refused, 121. Marriage, nature of the contract, 131. Acts relating to, 131. by publication of banns, 132. where parties resident in different parishes, &c, 132, 133. in chapels, district churches, &c, 133. in places without church or chapel, 134. by licence, 135. by special licence, 135. of minors, 157. falsely procuring, 158. before a registrar, 138. without presence of registrar, 146. void and voidable, 153. refusal to marry, 137. unduly solemnising, 152. fees, 137, 143. of Jews or Quakers, 150. ecclesiastical registration of, 201. settlement by, 442. Medical Officer, to be appointed by guardians, 356. Medical Eelief, 393. Memorial Inscription, 33, 174, index. 695 Merchant Service, guardians may send pauper boy to, 393. Minister. See Clergyman ; Incumbent. Monition, to incumbent to reside, 99. Monumental Inscriptions, 33, 195. Monuments, erection of, in churches, 33. faculty to erect, 33. appeal as to, 33. consent of ordinary required, 33. repairing, 34. in churchyards, 173. Mortuary, 196. Museums, 461. Name, given to child at baptism, 124. in banns of marriage, 133. of paupers to be inserted in order of removal, 454. Naval Service, guardians may send pauper children to, 393. Nave of the Church, whence so called, 18. seats in, 20, 25. to be repaired by parishioners, 35. New Parishes, formation of, 6, 7. under Church Building Acts, 6. under Church Endowment Acts, 7. rights of, 8. offices of church to be performed in, 9. pews and seats in churches in, 25. patronage of church in, 10. New Parishes Acts, 7. Non-Residence. See Residence. 696 INDEX. Oath, of allegiance, 64. of supremacy, 64. by churchwardens abolished, 109. declaration in lieu of, 109. Offertory, 127, 129. Order of Removal,, form and requisites of, 453. by whom made, 453. the justices must not be interested parties, 453. complaint, how and by whom made, 453. description of the paupers, 454. adjudication of chargeability and settlement, 454. direction of the, 454. form of, 455. examination of the pauper and witnesses on, 455. abandoning, 457. superseding, 457. appeal against, 459. See Removal of Paupers ; Settlement. Ordinary, monuments in church, consent of, to erect, 33. may order removal of superstitious images, &c, 31. to examine and admit curate, 45, 48, 56. whether Licence of, necessary for disposal of goods of the church, 34, 111. may appoint sequestrators, 70, 71. may cite churchwardens to account for church goods, &c, 116. parish clerks Licensed by, 118. See Bishop. Ordination, qualification as to age, 63. Organist, 34. Organs, 34. Ornaments of the Church, 28. removal of unlawful, 3 1 . Overseers of the Poor, in urban parishes, 357. in rural parishes, 359. when appointed, 357, 359. in urban parishes appointed by justices, 358. in rural parishes appointed by parish council, 359. INDEX. Overseers of the Poor — continued. number of, 361. who may be appointed, 360. service compulsory, 360. exemptions, 104, 361. appointing a deputy, 361. persons disqualified, 361. appointment of, must be in writing, 358. form of, 358. appeal against, 358. providing fire-engine and escape, 365. making and levying poor rate, 363. duties of, to bury bodies cast on shore, 161. as to jury lists, 285. as to registration of voters, 365. what disbursements allowed by, 365. misconduct of, how punishable, 367. bankruptcy of, 367. penalty for neglect of duty, 367. embezzling money, &c, of the parish, 368. vesting of parish property in, 368. actions against, 369. protection of, 370. assistant, 370. Parentage, settlement by, 442. Parents, sponsors for their own children, 123. consent of, to marriage required, when, 157. punishable for deserting family, 388. settlement derived by children from, 442. Parishes, origin and history of, 1 . definition of, 3, 11 extent of, 3. boundaries of, 4. perambulations of, 4. union of, 4, 337. new, formation of, 6. under Church Building Acts, 6. under Church Endowment Acts, 7. division of, 7. PARisn Clerk, qualification of , 117, how chosen, 117. 697 698 INDEX. Parish Clerk — continued. in new parishes, 119. remuneration, 118. how dismissed, 118. civil duties, 120. Parish Constable. See Constable. Parish Council, where required, 231, 483. constitution of, 231, 484. who may be members of, 231, 232, 484, 515. where held, 233, 485. when held, 233, 535, 536. notice of meeting of, 234, 535. annual meeting of, 234, 484. chairman of, 234, 484. officers of, 253, 254, 499, 500. election of members of, 237, 238, 518, 541. candidates for, rights of, 237, 534. procedure at meetings of, 240, 535, 536. minutes of proceedings of, 241, 536. committees of, 235, 236, 241, 523. resignation of member or chairman of, 239, 517. powers and duties of, 242 — 253. as to overseers, 242, 486. transferred from churchwardens, 243, 487. transferred from vestry, 243, 487. as to buildings and land, 243—246, 489—493. as to water, 246, 489, 490. as to footpaths and roads, 246, 489, 496. as to allotments, 247, 490—495. as to public property and charities, 248 — 250, 497. as to complaints to county councils, 251, 499, 528. as to parish documents, 251, 500, 525. as to borrowing, 252, 496. as to Adoptive Acts, 243, 489. expenses of, 251, 495. accounts of, 253, 524. dissolution of, 513. Parish Documents, custody of, 251, 500, 510, 512. See Register. Parish Library, statute for preservation and inspection of, 461. Parish Meeting, established for every rural parish, 223, 483. who may attend, 224, 225, 484, 514. INDEX. 699 Parish Meeting — continued. notice of, 224, 533, 555. when held, 224, 484, 533. where held, 223, 485. chairman of, 225, 484, 515. procedure at, 225, 226, 533, 536. demand of poll at, 226, 534. duties of, as to establishment of parish council, 226, 227, 541, 555. powers of, as to adopting Adoptive Acts, 227, 488. further powers of, 227, 228, 490, 497, 520. expenses of, 228, 229, 495. powers of, where no parish council, 229, 230, 501. act of, how signified, 230, 502. Parish Vestries. See Vestry. Parish Wards, division of parish into, for election of councillors, 237, 501. Parishioners, definition of, 12. rights of, to seats in parish church, 20. have a right to he buried in churchyard, 159, 173. Parochial Charities, definition of term, 532. accounts of, to be sent to churchwardens no longer, 498. powers of parish council as to, 248, 497, 498. Parochial Clergy, 43. Parochial Committees, 257. Parochial Electors, definition of term, 484. register of, 513 — 515. powers of, 237, 238, 525. use of schoolroom by, 485. women may be, 513. Parochial Lay Officers, 102. Parochial Libraries, 461. Parochial Settlements. See Settlement. Parson. See Clergyman ; Incumbent. 700 INDEX. Patronage of churches in new parishes, 10. Pauper Lunatics. See Lunatics. Paupers. See Poor. Perambulations , of boundaries of parishes, 4. right of going over private lands, 5. Perpetual Curate, origin of, 54. nature of, 54. in newly erected benefices, 55. title of, 55. election of, 55. declaration by, 65. must be in priests' orders, 63. Pew Kents, 26. Pews, erected and repaired by parishioners, 20. all parishioners have right to, 20. additional, 21. in galleries, 21. for minister, 18, 25. letting, 26. rents of, 26. distribution of, 21. where church rebuilt or enlarged, 22. allotting free seats, 23, 25. custom as to ordering, 23. exclusive right to, 24. by faculty, 24. by prescription, 24. in new churches, 25. Pluralities, forbidden, 76. exceptions, 77. Police. See Constable. Poor, administration of laws relating to, 335. paid officers, appointment of, 354. what officers may be appointed, 355. overseers, 357. assistant overseers and collectors, 370. INDEX. 701 Poor — continued. administration of laws relating to — continued. relief of, generally, 375. by whom, 375. out-door relief, 376. relief committees, 378. relief in London, 380. overseers can only give relief in case of urgent necessity, 375, 381. overseers to provide funds for, 378. when charged to common fund of the union, 379. recovering costs of, 380. to able-bodied poor, 381. orders of Local Government Board as to, 381. by relations, how compelled, 385. by loan, in what cases, 390. by emigration, how directed, 392. by educating poor children, 394. by naval and merchant services, 393. by medical relief, 393. by boarding out orphan and deserted pauper children, 394. providing allotments, 395. casual poor, 404. maintenance of bastards, 406. pauper lunatics, 408. See Local Government Board ; Guardians of the Poor; Workhouse. Poor Law Conference Expenses, 346. Poor Law Unions Association, 347. Poor Eate, statutes authorising, 308. making of, by whom, 308. requisites of, 308. allowance of, 309. alteration of, 310. value on which made, 310. new valuation may be ordered, 310. must be equal, 311. period for which made, 311. publication of, 311. may be inspected by inhabitants, 312. agricultural land exempt from payment of half of, 313. rate in aid, who may make, 313. purposes of rate in aid, 312. persons rateable, 318. ambassador or his servants not rateable, 318. 702 INDEX. Poor Rate — continued. parson or vicar, when rateable in respect of tithes, 318. occupiers, who are, 318. servant occupying as such is not, 319. occupation must be exclusive, 319. and beneficial, 320. trustees of charitable institutions rateable, 320. occupiers of court-houses, gaols, &c, 320. workhouses, 321. chapels, 322. schools, 322. actual profit need not be made, 321. successive occupants, 323. new buildings, 323. landlords of small tenements, 324. tenements let for short terms, 325. in respect of what property laid, 326. lands, houses, &c, 326. Crown property not rateable, 326. appeal against, 327. levying, by distress, 330. excusal of payment on ground of poverty, 310. See Union Assessment Committee ; Valuation List. Presentation, of incumbent, what, 59. right of, 62. may be revoked, 63. Private Baptism, of infant in danger of death, 123. neglect of minister, upon notice, punishable, 123. Private Chapels, 16. Privileges of Clergymen, 68. Proprietary Cemeteries, 194. Proprietary Chapels, 17. Public Footpaths, 299. Public Libraries, free, 461. how provided, 461. offences in, 462. Public Worship Eegulation Act, 1874. .86. INDEX. 703 Quakers, marriage of, 150. Queen Anne's Bounty, 16. Rates. See Church Eate ; County Eate ; Poor Eate. Eatione Tenure, liability to repair highway by, 296. who bound by, 296. Eeading in, 65. Eebuilding Church, 35. Eeconsecration of church, 36. Eector. See Incumbent. Eegister, of banns, 135, 147. of baptisms and burials (ecclesiastical), 198. books to be provided for, 198. entries in, 198. custody of, in whom, 200. as to births, 203. as to deaths, 205. as to burials, 199. as to marriages, 201. returns of, to Eegistrar-General, 207. searches, fees for, 207. Eegistration of births, deaths, and marriages, 198. See Eegister. Eegistration of voters, duties of overseers as to, 365. Eelief, not to be administered by overseers in unions, 375. of poor generally, 375. by relations, 385. by loan, 390. by emigration, 392. of casual poor, 404. of able-bodied poor, 381. outdoor relief, 376. medical, 393. See Poor. 704 INDEX. Believing Officer, 356. Belixquisiimext of Holy Orders, 82. Bemoval of Paupers, in general, 445. statutes authorising, 445. who not removeable, 447. casual poor, 446. wife, unless deserted by husband, 447. or by consent of both, 447. children under seven years cannot be separated from their mother, 448. widows not to be removed for twelve months, 448. persons who have resided a year in a parish, 449. residence must be continuous, 449. period of, how computed, 449. how removed, 450. to what place, 450. by whom, 450. not until twenty-one days after service of notice of chargeability, 451. unless consented to in writing, 451. refusal to receive indictable, 451. returning after, 451. of Scotch, Irish, &c. paupers, 452. orders for, 453. See Order of Beiioval. Bepair of Highway, 295. Bepairs of Church, of nave of, at expense of parishioners, 18, 35. applying endowments to, 35. of chancel to be by parson, 17, 35. by parishioners by custom of London, 17, 35. Bepairs of Churchyard. See Churchyard. Beredos, 30. Besidexce of the clergy — (1) Besedexce, House of, what is, 99. houses, how provided, 73. repairing, 97. widow occupying, 76. INDEX. 705 Residence of the clergy — continued. (2) Enforcing Residence, 96. penalty for absence, 96. exemptions, 97. obtaining licence for non-residence, 97. revocation of, 99. order to reside, 100. renewed absence, 100. benefice rendered void, 101. penalties, 101. Resignation of Benefice, with pension, 80, Revocation, of curate's licence, by bishop, 49. subject to appeal to archbishop, 49. Right of Way, powers of parish meeting of small parish as to, 229, 502. duty of district council to protect, 260, 507. stoppage or diversion of, 260—262, 496, 502, 507, 527. parish council may acquire, by agreement, 245, 489. refusal of rural district council to take proceedings as to, 261, 507, 527. Ringers, 32. Rites of the Church. See Baptism ; Holy Communion ; Divine Service ; Marriage. Road. See Highway. Roadside Wastes, duty of district council as to encroachment on, 263, 507. powers of county council as to, not to be affected, 264, 507. refusal of district council to take proceeding, 263, 507, 527. Rural Deaneries, 3, 5. Rural District, what is a, 255, 504. Rural District Council, name of, 256, 504, 523. where required, 255, 504. for district co-extensive with a rural parish to have powers of a parish council, 5 in. s. /- y 706 INDEX. Rural District Council — continued. constitution of, 256, 504. who may be members of, 231, 232, 256, 503, 505, 515. chairman of, 258, 504. vacancies on, 517, 519. election of members of, 258, 503, 505, 580. meetings of, 525, 527. resignation of member of, 259, 518. retirement of member of, 259, 503, 504, 505, 516, 526. where held, 258, 525, 527. committees of, 256, 523. parochial committees of, 257. powers and duties of, 260 — 267, 505 — 508. as to sanitary and highway matters, 260, 505. as to rights of way, 260—262, 496, 507. as to roadside wastes, 263, 264, 507. as to commons, 264, 507. as to sewerage, 499. transferred, from justices, 508. acquirement of powers of, by county council in certain cases, 499, 527. delegation of powers of, to parish council, 499. transfer to, of highway powers, 260, 505. refusal of, to enforce rights of way, 261, 507, 527. default of, 261, 263, 499. expenses of, 267, 508. accounts of, 268, 524. Rural District Councillors, fixing and altering number of, returnable by a parish, 526. union and division of parishes for election of, -326. qualifications of, 231, 232, 256, 503, 505, 515. election of, 258, 503, 505, 580. retirement of, 259, 503, 504, 505, 516, 526. resignation of, 259, 518. to act as guardians, 505. absence of, vacating seat, 233, 516. Sacraments. See Baptism ; Holy Communion'. School. See Elementary Education. School Attendance Committee. See Elementary Education. School Board. See Elementary Education. index. 707 Schoolroom, use of, by parish council or parish meeting, 223, 233, 485. use of, for candidature purposes, 233, 485. use of, for allotment purposes, 485. use of, by returning officer, for purposes of election, 238, 518. Seats in Church. See Pews. Select Vestries, by Custom, 221. Select Vestries, by Statute, 222. Sequestration, in what cases granted, 70. by whom issued, 70. where benefice becomes void, 72. rights of sequestrators, 73. Settlement, definition of, 429. modes in which may be acquired, 429. decisions on disputed questions of, 429. by apprenticeship, 435. by residence in parish three years, 430. by occupying and being rated for a 10/. tenement, 431. by possession of estate and residence, 432. derivative, kinds of, 441. by marriage, 442. wife takes husband's, 442. by parentage, 442. father's settlement is taken by his legitimate children, 441, 444. illegitimate children, 443. by birth, 444. Sexton, how chosen, 120. salary of, 120. duty of, 121. has freehold in office, 121. in new parishes, 121. Simony, law as to, 57. declaration against, to be taken by incumbent, 64. Sittings. See Pews. zz2 708 INDEX. Small Tenements, landlords of, may be ordered to be rated, 324. Soldier, maintenance of family of, 389. Special Constable, 270. Special Juror, 286. Sponsors. See Baptism. Stipendiary Curate, appointment of, 45. when bishop may appoint, 45. must be in priest's orders, 63. in large parishes, 46. for additional services, 47. where benefice under sequestration, 47. where lunatic incumbent, 48. application for licence by, 48. declaration of assent by, 48, 49. licence and revocation, 49. fees, 50. stipend of, 50. remedy for recovery of stipend, 51. fraud as to stipend, 51. deductions from stipend, 51. residence may be assigned to, 51. removal of, 52. quitting of curacy by, 53. Suffragan Bishops, why so called, 2. Suicides, right of, to Christian burial, 160. Table of Degrees, 32. Ten Commandments to be set up in churches, 32. Tithes, payment of, 66. who liable to pay, 67. recovery of, 67. Tombstones. See Churchyards ; Monuments. Trading, by spiritual persons, 68. INDEX. 709 Trees, in churchyard, to whom belong, 39. rector may cut down for repair of chancel, &c, 40. but not for purpose of creating a general repairing fund, 41. prohibition against waste, 4 1 . Turnpike Eoads, 292. Union, formation of poor law, 337. of benefices, 79. of parishes, 4. combination of unions, 337. dissolution of unions, 337. Union Assessment Committee, how appointed, 315. their authority, 315. their proceedings, 315. their clerk, 315. See Valuation List. Unlawful Ceremonies, 129. Valuation List, overseers to make, 315. inspection of, 315. by whom and how objected to, 316. custody of, 316. supplemental, 317. appeal against, 317. sending to cleA of the peace, 317. Value, rateable, of tenement, to give a settlement, 132. See Poor Rate. Vaults, faculty to erect, 1 74 . fees on erecting and opening, 175. Vestments, 34. 710 • INDEX. Vestbt, where held, 209. notice of, 210. by whom called, 21 1 . who may attend, 211. proceedings in, 212. minister to preside, 212. if not present, chairman to be chosen, 212. power to adjourn, 214. voting at, 213. minutes of proceedings, 215. confirming minutes, 215. control of, in parish matters, 216. acts of, binding on parishioners, 216. books of, 217. clerk to, 218. Vestry Book, minutes of proceedings in vestry to be entered in, 215. to be signed by chairman and other inhabitants, 215. custody of, 217. Vestry Clerk, appointed by the vestry, 218. duties of, 218. appointment of, in populous parishes, 219. so appointed, duties of, 219. churchwardens, &c, not discharged by appointment, 220. salary of, 221. duration of office, 221. Vicar, who is, 43. origin of vicarage, 44. See Incumbent. Vicarage, 44. Village Greens, management of, transferred to parish council, 245, 487, 489. vested in chairman of parish meeting and overseers where no parish council, 502. Voluntary Schools, 467, 468, 478. Wakes, founding of churches commemorated by, 13. INDEX. 711 Water Supply, powers of parish council as to, 246, 489. powers of rural district council as to, 267, 490, Workhouse, receiving poor of other parishes in, 413. Local Government Board may make rules for, 412. rules for, 413. as to admission of paupers, 413. classification, 414. discipline and diet, 416. casual wards, 422. misbehaviour of paupers, 417. inspection of, 419. visiting committee to be appointed, 419. visitation of, 420. cleansing and repairing, 420. births and deaths in, 420. creed register, 421. London : printed by c. f. eo"woeth, geeat new stbeet, fettee lane — e.c. STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON. 16 Vols. Royal 8vo. 1898. Price £20 cloth. r-p-pq- -p-i DIGEST OF ENGLISH CASE LAW, CONTAINING THE Reported Decisions of the Superior Courts and a Selection from those of the Irish Courts to the end of 1897. 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