UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PARISH LAW. LONDON: IBOTSON AND PALMKR, PRINTERS, SAVOY STREET, STRAND. I PAR I S H LAW: -^y ^-^^^^ A DIGEST OF THE . W RELATING TO PARISHES. CHURCHES AND CHAPELS. PARISH REGISTERS. MINISTERS OF CHURCHES AND CHAPELS. VESTRIES AND PARISH MEETINGS. CHURCHWARDENS. PARISH CLERKS. SEXTONS AND BEADLES. \ DISSENTERS. HIGHWAYS. PARISH AND COU^Y RATES. WATCHING AND LIGHTING PARISHES. WEIGHTS AND MEASURES. DISORDERLY HOUSES. MILITIA AND JURY LISTS. JUSTICES OF THE PEACE. CONSTABLES, WATCHMEN, ScC. VAGRANTS. LUNATICS. OVERSEERS, OtTARDIANS, &C. &C. AND THE RELIEF, SETTLEMENT, AND REMOVAL THE POOR. BY JOHN STEER, ESQ. BARRISTER AT LAW. LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, (successors to J. BUTTERWORTH AND SON,) 43, FLEET STREET. 1830. 15 io PREFACE. There are several hundred volumes already in the hands of the public, upon the various subjects comprehended in that ex- tensive department of our Jurisprudence, which is designated by the title to this work. The fact of so many members of the learned profession having, from time to time, devoted their attention to the subject, and the enormous amount of labour which has been devoted to it, sufficiently demonstrate its importance. In the midst of this abundance and variety, it is a little singular, that a compendium of the whole has not been offered to the patronage of the profession. Burn's Justice, however excellent in itself, is at once too comprehensive and too exclusive for the purpose. It contains much which does not belong, and omits a great deal which is essential, to a complete treatise upon the subject ; being, as its name im- ports, more adapted for the county magistrate, than for the parish officer. The complex and multifarious duties and interests, civil and ecclesiastical, of this (not inaptly called) little repub- lic — the rights and responsibilities of its officers — the mode of their election— the extent, and duration, with the means of redress for the abuse, of their authority — the sources of Parish revenue, and the restraints upon its misapplication — the general maxims of its internal government, and the nature of its tributory obligations to the county in whicli it is included,— these are the great outlines of Parish Law: I'llEFACK and tt) collect and arrange the details in one entire system, is the task which I have attempted to perform. Independently of the general recommendation of such a work, arising from these considerations, the disposition which is spreading among Parishes, to investigate and enforce the authority of the great body of the inhabitants, over all matters of revenue and expenditure, suggested an additional motive to the undertaking. Especial care, therefore, has been taken, to explain the authority, rights, and powers of Select Vestries, whether established by prescription, or under the statutes passed for the purpose; and, in short, of parish meetings of every description. It may be expedient here to state with somewhat more particularity, the general contents of the volume. In the first place, the institution of Parishes, with the mode of preserving the evidence of their boundaries, is considered. The Law respecting the Church, and the rights and duties of its mem- bers, from the highest to the lowest, among those who officiate in its sanctuary, is also explained ; and its civil constitution, Avith the authority of its officers of every denomination ; the mode of their appointment, and their responsibilities, with the nature of the obligation imposed upon the people, Avhether in the shape of Tithes or Rates, for its becoming support, com- plete this part of the work. The summary of the Poor Laws methodically arranged, and embracing the leading principles and decisions under the several heads of Settlements, Rates, Relief, Removal, Appeals, &c. &c., though concise, it is hoped will be found complete, and practically useful, considering how much may be compressed into a comparatively small space, if the Law only, in a brief and intelligible form, is included. In addition to the several parish officers, as Church Avardens, Overseers, Guardians of the Poor, Clerks, Sextons, &c. I'RKFACE. Vll &c. ; the authority and duties of Constables, Tithing Men, Beadles, and all others holding Parish appointments, whether arising out of its Ecclesiastical or Civil Institutions, are fully investigated ; so that the work may afford a ready means of information to those whose avocations, employments, or pursuits, render it expedient that they should be well in- structed in any, or in the several branches, of Parish Law. Although the line of demarcation between the civil rights of Churchmen and Dissenters has been gradually fading away before the more enlightened policy of modern times, most of the regulations relating to dissenting places of wor- ship, and many enactments passed in deference to individual religious scruples, still remain. They are modifications of the general rules of municipal government, and will there- fore be found under their proper heads. I owe some apology to my friends for the delay in the publication beyond the period at which it was promised. My excuse is, an anxiety to render the volume as complete as possible, by including the several acts which were in the contemplation of the legislature during the present session, relating to the Poor, and other Parish matters. Those which have actually passed, I have inserted, the others are relin- quished, without any probability that they will be again brought forward at any definite period. In waiting for this result, I have been also enabled to include all the cases re- lating to settlements, highways, &c. decided in the Court of King's Bench to the end of Trinity term. JOHN STEER. 15, Chancery Lane, July 12, 1830. TABLE OF CONTENTS. Chap. I. — Parishes. Sect. 1. Origin of Parishes — 2. Boundaries of Parishes — 3. Division of Parishes — 4. Parishioners ..... 1 Chap. II. — Churches. Sect. 1. Founding of Churches — 2. Chancel — 3. Aisle — 4. Pews— 5. Goods and Ornaments of the Church — 6. Repairs of the Church — 7. Profanation of Churches — 8. Churchyards — 9. Burial — 10. Chapels ......... 15 Chap. III. — Minister and Officers of the Church. Sect. 1. Minister or Incumbent — 2. Residence of Incumbent — 3. Curates — 4. Lecturers — 5. Churchwardens — 6. Paiish Clerk — 7. Sexton — 8. Beadle 61 Chap. IV. — Sacraments. Sect. 1. The Lord's Supper — 2. Baptism — 3. Maniage . 105 Chap. V. — Parish Books. Sect. 1. Parish Registers — 2. Parish Library — 3. Rate Books 122 Chap. YI.'— Dissenters. Sect. 1. General Rights of Dissenters — 2. Tests and Oaths of Office 3. Quakers and Moravians — 4. Immunities of Dissenting Minis- ters — 5. Dissenting Places of Worship . , . 138 X CONTEXTS. Chap. VII. — Highways. Sect. 1. The several kinds of Highways — 2. Repair of Highways — 3. Indictments and Pleadings 162 Chap. VIII. — Highway Acts. Sect. 1. Surveyors of Highways — 2. Repair of Highways — 3 Wi- dening and Diverting Highways — 4. Statute Duty — 5. Statute Duty Composition — 6. Nuisances to Highways — 7. General Re- gulations — 8. Penalties, and how recovered — 9. Execution of the Acts 186 Chap. IX. — Parish Vestries. Sect. 1. Vestry Meetings — 2. Proceedings in Vestries — 3. Power of Vestries — 4. Vestry Clerk 251 Chap. X. — Select Vestries. Sect. 1. Select Vestries by Custom — 2. Select Vestries by Statute — 3. Vestries for the Affairs of the Poor .... 260 Chap. XI. — Justices of the Peace. Sect. 1. Appointment and Qualification — 2. Their* Jurisdiction — 3. Their Ministerial Duties — 4. Their Judicial Duties — 5. Protec- tion and Liability — 6. Fees of their Clerks . . . 272 Chap. XII. — Constables. Sect. 1. Appointment — 2. Office of Constable — 3. Powers and Du- ties — 4. Treatment of Persons apprehended — 5. Privileges — 6. Expenses and Remuneration — 7. Protection against Actions — 8. Punishment — 9. Special Constables — 10. Watchmen . 328 Chap. XIII. Jury Lists ......... 366 Chap. XIV. — Weights and Measures. Sect. L Standard Weights and Measures — 2. False Weights and Measures ......... 368 COXTF.NTS. xi Chap. XV. — Dhonlerhj Homes. Sect. 1. Theatres, Music Rooms, &c. — 2. Gaining Houses, &c. 373 Chap. XVI. — Vagrants. Sect. 1. Classification of Vagrants — 2. Apprehension and Convic- tion 377 Chap. XVII. Church Rate 382 Chap. XVITI. County Rate 389 Chap. XIX. Highway Rates 394 Chap. XX.' — Poor Rates. Sect. 1. How made and authorized — 2. Purpo.ses of the Rate — 3. Persons Rateable — 4. Property Rateable — 5. Appeal against a Rate — 6. Distraining for Rate ..... 398 Chap. XXI. — Overseers of the Poor. Sect. 1 . Appointment of Overseers — 2. Powers and General Duties — 3. Recovering Parish Houses and Lands — 4. Overseers' Ac- counts — 5. Liabilities and Protection — 6. Assistant Overseer 424 Chap. XXII. — Incorporated Districts. Sect. 1. Guardians and other Officers — 2. Workhouses — 3. Main- tenance of Paupers — 4. J ustice.s' Authority herein . 443 Chap. XXlll.— Relief of the Poor. Sect. L Poor generally — 2. Illegitimate Children — 3. Casual Poor — 4. Pauper and Criminal Lunatics .... 455 Xll CONTENTS. Chap. XXV, — Parochial Settlements. Sect. 1. Srtllements in general — 2. By Hiring and Service — 3. By Apprenticeship — 4. By Renting a Tenement — 5. By Payment of Rates — 6. By Estate — 7. By Serving an Office — 8. Derivative Settlements— 9. By Birth 482 Chap. XXVI. — Removal of Paupers. Sect. 1. Orders of Removal — 2. Appeal, and snhsequent Proceed- ings — 3. Evidence npon Settlements .... -55ri CHAP. XXVII. Lighting and Watching Parishes -599 Addenda ........ 619 A TABLE THE NAMES OF CASES. CITED IN THE WORK, Absor V. French Adams v. Moore V. Rush Addey v. Woolley PAGE . 168 . 338 . 92 . 466 464, 465 . 313 . 427 . 360 331, 354 . 171 Addis, Exparte Aked V. Stocks Albrighton v. Skipton Alcock V. Andrews . Alderman Abdy's Case Allen V. Ormond Amherst Lord v. Lord Somers . 412 Andrews v. Cawthorne . . 54 V. Symson . . .56 Andrew's, St. Holborn, v. St. Cle- ment Danes . . .571 Anonymous, 2 Shaw . . 56 2 Stra. 686 . .87 2 Vent 35 • . 92 Latch 206 .. . 174 ■ — - Salk. 175 . . 329 12 Mod. 2. 56 . .335 4 Mod. 148 . . 385 Comb. 282 . . 535 Skin. 98 . . . 518 Skin, 114 . . 519 2 Salk. 473 . . 560 Ann Knee, Exparte . , 467 Anthony v. Cardigan . . 486 V. Seger . . 83, 86, 88 Sir Earby's Case . . 403 Arbuckle v. Cowtan . . 64 Archer v. Willingrice . 374 Arnold v, Bp. of Bath and Wells 13 Arthington v. Bp, of Chester . 70 Ashbom v. Gough . , 314 Ashbrittle v. Wiley . . . 537 Aspindall v. Brown . .170 Astle V. Thomas . . 89 Aston V. Blagrave . 311 PAGE Aston V. Castle Binnidge Chapel 59 Atkins V. Banwell . 95, 468, 472 V. Davies . . 407 Atkyns v. Hatton . . 8 Att.-G-en. v. Breton . . 58 V. Cock . 142, 154 V. Fletcher and others 159 V. Forster . . 71 V, Fowler . . 160 V. Foyster and others id. • V. Jeffrey . . 344 V. Newcome . . 71 V. Parker . . 13 V. Pearson and others 153, 159, 160 V. Ruper V. Stepney V. Wansey V. Wilkinson Austen v. Dugger Aythorp Rooding Rooding 94 154, 159 154, 161 256 39 V. White 48.^ B. Baldwin v. Blackmore . 380 Ball V. Cross . . 4, 36, 59 Banbury Case . . 43d Peerage . . 461 Bane v. Methuen . . 291 Banister v. Hopton . . 7 Barclear v. Eastwoodhav . 543 Bardin v. Calcott ." 33, 45, 49 Barrow v. Kew . . 21 Keen . . id. Bartholomew, St., Case of Churchwardens of . .79 Bassevi v. Serra . 110 Basten V. Carew . 296,300,321 Bates V. Winstanley . 389 b TABLE OF CASES. 319, 346, St. Mary . 546, 86, 261, 296, Batt V. Wilkinson Bayfield v. Porter Beaston v. Scisson . Beatson v. Rushforth Beckwitli V. Harding V. Philby Bell V. Oakley Bellis V. Bur<;hall V. Beal Bennett v. Edwards Berkeley v. Hardy Berkhampstead v. JVorthchurch Berry v. Banner Be van v. Williams Billings V. Prinn Binfield v. Banstead Bird V. Gunstone Birt V. Barlow Bishop's Case Blan chard v. Bramble Blankley v. Winstanley Bodmin v. Warligen Bordeaux v. Lancaster another Boy field V. Porter Brabin v. Tradum Branwell v, Penneck Briggs V. Evelyn Brittain v. Kinnaird Broughton, Lady, Case of Bryan v. Whistler Bulwer V. Bulwer V. Hase . . Burlescombe v. Sandford Peverell Burton v. Wileday Bute, Lord, v. Grindall Butler V. Goodall Butt V. Conant Butterton v. Furber Butter worth v. Walker Byerley v. Windus and 207, 33, 45 65 23 AGE 240 560 161 33 338 348 374 id. 136 584 550 263 65 461 563 312 138 93 95 287 569 108 246 27 302 313 317 103 , 46 62 33 544 386 425 , 66 291 441 34 , 26 Campbell v. Whitehead . 92 Canning v. Sawkins . .39 Carleton v. Hutton . . 25 Cart V. Marsh . .33 Catten v. Berwick . . 85 Chapman v. Brown . . 159 Chatfield v. Ruston . 404 Chesham v. Missenden . 488 Chester's Case . 384 Chewton v. Compton Martin . 560 Chittinston v. Penhurst . 296 Churchill v. Matthews . 337 Churchwardens of Harrow-on- the-Hill . . .49 Clark V. Rice . . 37s V. Searle . . 374 Clarke v. Davey — V. King Cliffe V. Littlemore Clifford V. Brandon V. Wicks Clinton v. Hatchard Clovell V. Cardinal! Clutton V. Cherry- Cole V. Gower Constable of Stepney's Case 329, 332, 335 of Homeby's Case . 329 of Limington's Case 336 PAGE 315, 346, 347 268 104, 365 . 33T 19. 20 39, 79 107 13, 252, 257 466 Cook V, Leonard Coombe v. W^estwoodhay Cooper V. Allnut V. JMartin CorbjTi V. French Cortis V. Kent Waterworks 359 . 490 88 456 158, 159 394, 398, 406 348, 355 337, 338, 352 360 Countess of Rutland's Case Coupey V. Henley Coventry v. Apsley Cox V. Coleridge . 299 V. Gooday . .39 Coxwell V. Sbillingford . 550 Crawley's Case . . 333 Cripplegate v. St. Saviour's 556 Crook V. Curry . . 314 V. Sampson . 21 Crozier v. Cundey . 346, 360 Crumpton and Paget's Case 385 Cuddington v. Withey . 92 D. Dalrymple v. Dalrymple Davenport v. Israel Davis, Exparte V. Capper V. Russell ■ — V. AVilliams . 549 . 332 519 293, 319, 320 297, 319, 359 593 21 36 217, 250 39, 253 49 V. Witts Davies, Sergt. Case of Davison v. Gill Dawe V. Williams Dawney v. Dee Dawson v. Fowle . 85 v. Wilkinson . 383 De Beauvoir v. Welch . 216 De Ponthieu v. Pennyfather 218 Deacon v. Cook . 10 Delamotte's Case . 332 Dent V. Prudence and another 94 Devaynes v. Boys . 3l5 Dickinson v. Brown . 462, 466 Dier v. East . 41 Ditton's Case . 519 Dixon V. Kershaw . 60, 70, 71 V. Smith . 92 TABLE OF CASES. PAGE Doe d. Batten v. Murless . 587 Cook V. Danvers . 593 Grundy v. Clarke . 428 • Jackson V. Hiley . 620 Morris v. Williams . 587 Thompson v. Pitcher 158 Toone v. Copestake . 159 Warren v. Bray . 130 Wellard and Otliers v. Hawthorn . .158 Doe V. Hall . 594 Doltin^ V. Stocklane . 328, 424 Donne v. Martyr . 13 Dormer v. f^kjois . 130 Duncan v. Thwaites . 300 Dunchurch v. South Kilworth 542 Dunsford v. Ridgwick . 489 Durrant V. Boys . 399 Dyer and Hickman's Case 102 E. Eastland v. Westhorsley . 499 Egburn v. Hartley Wintly . 562 E. I. Company v. Skinner . 422 Elsing V. Hereford . 555 Evelin's Case . . 87 Evelyn v, Rentcomb . 522 Exleigh, Exparte . 435 F. Fairchild v. Gayre . 72 Farnworth v. Bp. of Chester 60, 71 , 72 Farringdon v. Witty . 486 Faulkner v. Elgar 71, 86, 253, 256 Fawcett v. Fowlis . 222, 321 Finley v. Jowle . 518 Fletcher v. Ingram • 332, 333 V. Wilkins . 442 Flour V. Noel . 110 Foundling Hospital, Case of 164 Fox's Case . . 354 Frances v. Ley . 21, 41, 48 Franklyn v. Master and Bre- thren of St. Cross . 106 Fruin v. Dean and Chap, of York 56 Fryer v. Johnson . 49 Full V. Hutchins . 6 Fuller V.Lane . 21,22,26 G. Gallini v. Laborie Gardner v. Parker Gates V. Chambers Gatton V. Milwich Gent V. Tompkins 374 . 34, 83 73 544 430, 471, 472 PAGE Geoi^e, St. V. St. Catherine 546,551 Gilbert v. Buzzard and Boyce 54 Giles, St., Reading, v. Eversley Blackwater . . 546 Gill, Exparte . 517 Gimbert v. Coyney . 317, 344, 346 Goding V. Ferris . 360 Golding V. Fenn . 262, 263 Goldsmid v. Bromer . 110 Goodall and Gray v. Whitmore and Fenn Gooday v. Micbell Goodright v. Moss Gosling V. Ellison Goss V. Jackson Graves v. Arnold 261, 264, 387 6 598 88 250, 300 12 Gray v. Cookson 316, 502, 518, 519 Great Bedwin v. Welcot . 559 Green v. Smith . 539 Green and Others v. Pope . 156 Greenhouse, Exparte . 159 Gregory Stoke v. Pitminster 487 Grey, Jane's, Case . 555 Griesley's Case . 333 Griffiths V. Matthews . 29 V. Read and Harris 90 Grindley v. Holloway . 359 Groome v. Forrester . . 436 Groves and another v. Rector, &c. of Hornsey . 37 H. Hadman and another v. Ringe wood Hall V. Ellis V. Planner V. Roche Halsey's Case Handcock v. Baker Harber v. Rand Hardy v, Ryle Harper v. Can- Harrison V. Evans V. Hewson 94 19 . 40, 90 346, 348, 355 171 338 216 . 302, 316, 360 3l8, 346, 359, 422 142 357 579 49 463 25 150 57 544 122 Harrow v. Ryslop Harvey's Case Hatton's Case Hawkins v. Compeigne Haydon v. Gould Haynes's Case Helsington v. Over Herbert v. Herbert V. Dean and Chap, of Westminster . 60, 72 Heudebourck v. Langton and another . . 197, 398 Hickman and Dyer's Case . 102 Hill and Others v. Eastaff 485 Hilliard v. Jefferson . 43 Hilton v. Pawle . 425 b 2 TABLE OF CASES. Ilockin V. Cooke Ilollah V. St. INIartin Ovgars Holl<^dge's Case Holy 'I'rinitj v. Sboreditcli Honiton v. South Beverton . Horiicastle v. Boston Homsev Case Horsfali v. Handley Hoskins v. Featherstone IJow V. Keech Hubbard v. Beckford V. Penrice Hull's Case , . Ilussey V. Leigbton Ilutchins V. Chambers V. Denziloe 39, Hutcbiuson v. Brookebank Ilderton r. Ilderton He's Case 1' A o E 369 38 13, 402 . 517 571 b79 24 56 44 . 429 92 84 399 21 422 91,251 150 549 98. 102 .Tacob V. Dalton 30 James v. Green , 328 V.Swift 314 Jarratt v. Steele , 29 Jarvis v. Dean 163 Jeffery's Case ' . 384 414 Jenkins v. Barret . 40 Jennvn's Case 97 John St. V. St, James Bishop Kenny 515 Margate, Case of 34 Johnson's Case 560, 581 Jones V. Ashburnham 50 V. Bird *313, 346 V. Carrington t4 V. Ellis . 61 , 78 ■ V. Mansell 157 V. Owen 250 V. Robinson 110 V. Yaughan 347 V. Williams . 273 K. Keen v. Wightwick Kelly V. Walker Kemp V. Wickes Kendal's Case Kenriek v. Taylor Kent y. Pocock Kenward v. Knowles King's Case Kircheval v. Smith 201 63 52 355 28 311 152 87 95 PAGE 466 45 420 122, 549 163 439, 470,471 296, 302 . 257, 383 37 257, 383 27 63 Kirk V. Strickland Knight V, Moseley Knightley's Case L. Lacon v. Higgins Lade v. Slieppard Lamb t. Bunce Lancaster v. Greaves Lanchester v. Frewer V. Thompson V. Tricker Langley v. Sir Thos. Chute Languet v. Jones Lantour & P. v. Teesdale and another 122 Law V. Ibbotlson . 66 Lawrence v. Hedger 104, 344, 365 Lead Company v. Richardson 412 Leader v. Barry . 549 Leigh V. Taj-lor . 429 Leman v. Goulty . 93 Levy V. Edwards . 337 Lid with V. Catchpole . 338 Lindo V. Belisario . 109 Little and North v. Dickson 40 ].ittle Tew v. Duns Tew 524 Littlewood v. Williams . 56 Lloyd V. Spillet . 154 Logan v. Burton . 216 Lousley v. Hayward 5, 23, 26 Lovelace v. Curry . 313 Lowen v. Kaye . . 236 Lowther v. Earl Radnor 302, 321 Luke's St. v. St. Leonard's 8 Lyndlinch v. Hilton . 555 Lynn's Case . 57 Lyons v. Golding , 360 M. Mackalley's Case . . 348, 355 Maidman v. INIalpas . 33 IMainwaring v. Giles . , 30 Maiden v. Fletwick . 562 Malkin v. YickerstaflF . 429 Mallet V. Trigg . 60 Man V. Ballet . . 159 Mann v. Davers . 566 Marden v. Barham . . 524 Margate P. C. v. Hannam . 282 Marsden v, Stansfield • 60 Martin, Exparte . 460 Dr. and another v. Nut- ken and another . 94 Blartin's, St. v. Warren . 467 Martyn v. Hind . . 76 Mary's, St. Colechurch, v. Radcliffe . . 516 TABLE OF CASES. Mary's, St. Nottingbam v. Kerling- ton . . 672 St. V. St. Lawrence, Reading . . 354, 544 Massey v. Johnson . 316 V. Knowles . 429 Masters v. Child . . 555 Maurice St. v. St. Mary Kallendar 544 Mawley v. Barbet May V, Gilbert V. Gwynne V. May Maybew v. Locke V. Parker 258 27" 259 130 312 462 359 14 119 M. Cloughan v. Clayton 338 Meredith v. Gilpin and others Middleton et Ux v. Croft Midhurst v. Waite . 334, 336 Mills V. Collett . 293, 297 Millymott's Case . . 384 Milton V. Green . 346, 347 Milward v. Caffin . 422 Mitchell V. Fordham . 404 Money v. Leach 318, 347, 358, 423 Morgan v. Archbp. of Cardigan 83 Morley v. Slacker . 348 Moseley v. Stonehouse . 333 Moulsworth's Case . 437 Moysey v. Hillcoat . 71, 107 Rlunger Hunger v. Warden 561 Mursley v. Grandborough . 540 N. Naylor v. Scott Nestor v. Newcome New Windsor v. White Waltham Newberry v. St. Mary's Newby v. Wiltshire Newham v. llaithby Newland v. Osman . 463, Newson v. Bawldry Nightingale v. Marshall Noble V. Durrell Norman v. Danger Northampton, Churchwardens of, Case of North and Little v. Dickson North Nibley v. Wotton- under-Edge Nottingham's Case Novello V. Toogood Nunn Re Nutting V, Jackson O. Olaves St. v, AUiiallows Olive V. Ingram Overseers of Weobly's Case 119 315 555 502 468 131 467 31 256 369 359 84 40 524 171 404 298 346 517 102 427 P. Paget V. Crunipton Palmer v. Bishop of Exeter 33 Pancras v. Rumbald Parker v. Clarke V. Edwards Parton v . Williams . 347, Pauls, St. Warden v. Kepton . Paxton V. Knight Peake v. Bourne Pearson, Exparte Peart v. Westgarth Penhallo's Case Peter's, St. Oxford, v. Chip- ping Wycombe Petler v. Yaleman Pettman v. Bridger ^ 24, 27, 28, 29, Pew V. St. Mary, Rotherhithe Phelps V. Winchcombe 334, Phillips V. Pearce Phillybrown v, Ryland Pickeri^ill v. Palmer Pike V. Carter Pit V. Webley Pitts V. Evans Pochin V. Pawley Pollard V. Scott Pope V. Backhouse Pordage's Case . 330, Portland, Duke of, v. Bingham Portsmoutli's, Lord, Case . Postlewaite v. Gibson Powell V. Millbank Presgrove v. Shrewsbury Prestidge v. Woodman Prewit V. Tilley Price V. Doughty • V. Littlewood V. Messenger V. Pratt Price's Case Prinsor's Case Pritchet v. Waldron Proctor V. Mainwaring Prouse's Case Q. 386 ,34 309 98 138 359 542 7 98 160 424 41 499 7 258 46 358 90 257 360 321 38 98 195 183 440 331 60 113 360 77 25 313 14 71 27 346 77 354 38 161 440 330 Queen v. Bucknell . 174 Quick V. Copleton . 50 R. Radclift'e v. Burton . . 347 Ramsey V.St. Michael's, South- ampton . . 5()s> Heed V. Jackson . im Reg. V. Buccleugh, Duchess 175 TABLE OF CASES. Reg. V. Clifton Cluworth Stretford Watts Rex V. Aberystwith Ackley Adlard Adson Agar Agnes, St PAGE . 550 184 . 172 174 404 496 13, 329, 333 494 157, 405 413 Aire and Calder Navi- gation . 399, 418 Alberbury . 408, 409, 413 Allcannings . 354 Allendale . 486 Allington . 291 Alnwick . 567 Althome . 491 Alveley . 557 Ambleside . 403, 417 Amesby . 503 Amlwch . 545, 570 Amos . 287 Ampthill . 530, 590 Anderson . 197 Andrew's, St. . 178 Andrew's, St. Holborn 173, 555, 563, 580 Andrew's, St. Persliore 583 Andrews, St. the Great, Cambridge . id. Apethorpe . 494, 499 Arlesford, Old . 522 Arlington . 491 Arundel . 502,508 Asaph, St. Bishop of . 63 Ashley Hay . 531 Ashton-Under-Hill 573 Under-Lyne . 526 Astley ; ' . 489 Aston . 599 Atherstone . . 384 Atkins . 416 Attwood . 407, 412 Audley . 400 Austell, St. . 413 Austrey . 520, 578 Axmouth . 535 Bagshaw . 216 Bagworth . 494 Baker . 301, 461 Baldwin . 190 Balme , 170, 212 Banknewton . 486 Baptist, St. John, INIar- gate . . 185 Bardwell . 523, 526 Barham . . 498, 530 Barker . 153 Barking . 403 PAGE Rex V. Barkswell . 540 Barlestone . 512 Barmbv-in-the-Marsh 515 Barnard . . 329 Barnes . 620 Bamsley . 517 Barnstable . 399, 419 Barr . . 164 Bartholomew, St. 157, 405 , Cornhill 497 Bartlett . 437, 438 Barton, Bradstock Irwell Battams Bath , Mayor, &c. of , St. Michael's Bathurst Bawbergh Beard Beaulieu Beccles Bedall Bedwin, Great Bed worth Beer and Seaton Bees, St. Beeston BeU Benedict, St. Cambridge 164, 620 Benn and Church Bennewortj Bentley , Great 516 497 574 407 414 540 78, 79 509 461 487 497 461 570 412 493 534, 535 569 408, 411 423 523, 528 579 533 416,436 525 394 493 322 314 Berkshire Berk swell Berwick-upon-Tweed. , St. Johns Bettsworth Bigg Bilborough 487, 493, 500 Bilsdale, Kirkham 524 Bilston . 412 Bilton . . 576 Binegar • 562 Bird . 356, 432, 434 Birdbroke . 492 Birmingham 112,119, 469,470 496, 546, 549, 599 Gas Light Company . 408 1-, St Phillip 497 Bishop . 322 Bitton . 537 Bleasbv . 551 Blood " . 535 Bodenham . 170, 181 Boldero . 397 Bolton, Great . 529 TABLE OF CASES. PAGE Rex V. Bolton, Little , 501 Bond 571 Bookham, Great , 499 Bootie , 344 365 Bonon 299 318 Bottesford 489, 499 Boughey Bow 320 544 573 545 Bowen 466 Bowling , 560 Bradbury Bradenham • 427 563 Bradford 37, 408, 503, 566 Bradford, Chapelwardens of, 383 Bradley Field and Under- barrow . 494 Bramley . 130, 535 Brampton 122, 522, 526, 549 Bray . 497, 575 Bridgewater . 535 Bridgewater and Taunton Canal Company . 201 , Trustees to Duke of . 409 Brighton . 407, 527 Gas Company 405 Brington . 537, 540 Brithelmstone 517, 521, 525, 526 Brograve Bromyard Brooke Brotton Broughton, Great 410, 417 416 309 516 167, 173 Brown Browne Bubwitli Buckingham 380, 408, 413 464, 466 522 577 , Marquis of, 171 Buckland Denham 490 Bueklebury Bucks Budekirk Burbach Burder Bury St. Edmunds St. Jjwaes Butcher Butler Butley Butteston Byker Calow 562 397, 568, 569 179 488, 500 427 534 470 464 426, 427, 525 522 537 492, 493 537 Cambridge, St. Giles , All Saints , St. Andrew the Great the Less 180 522 583 St. Andrew 589 PAGE Rex V. Canford ]\Iagna 538, 543 Canterbury, St. Mary, Breden . 516 Cardigan, St. Mary 482, 550 Cardington 411 Carlyon 404 Carmarthen 567 Carnarvon 569 Carshalton 529, 531 Carter 437 Casson . 212 , 250, 251 Castlechurch 497 Castleton 585 Catesby 578 Catherington 540 , 541, 543 Catt 405 Caulfield, Great 172 Chadderton 185 Chagford 565 Chailey 542 Chalbury 502, 507 Chappie 330 Charles 515 Chart . 572 Chatham 577, 621 Chediston 525 Chelmsford 516 Cherry Willingham 523 Chertsey 487, 493 Cheshunt 177, 523 Chew Magna 594 Chillesford 487 Chilton, Great 494 Chilverscoton 570, 380 Chipping Norton 503, 522 Warden 505, 520 Christ Church 535 Christ's Parish, York 489,494 Christowe 514 Church and Benn 423 Cirencester 517, 580 Clapham 436 Clarke 331, 332 Clayton. 462, 464 Clear 93 Clegg 464 Clifton 166, 172, 185, 201,426, 578 Cliviger 549 Cogge shall 493 Coke 412 Colchester 436 Coldashton 354, 545 Coleorton 621 Coleridge 49,50 Collett 428 CoUingbourne 518 Ducis 552 CoUinghani North 529 Coin, St. Alwins 296 XX TABLE OF CASES, PAGE Coltishall 493, 501 Combe 500 Commerell 185 Commings 435, 438 Commissary of the Bishop of Winchester 87 Compton and Others . 120 Coode 416 Corhampton 535 Corrock 174 Corsham 563, 579 Cosens 422 Cottingham 543, 548 Cotton 181, 182, 462 Cottrell 14 Coventry, St. Michael's 573 Cowhoneybourne 486, 553 Coyston 464 Cramore 524 Crayford 529, 546 Grewe 216. 217 Cripplegate, St. Giles 534 Croft 521 Cromford 500, 501 Gfoscombe 493, 499 Croydon 259 Crowland 507 Cuckfield 571 Culmstock 524 Cumberland 199 Cunningham 412, 414 Curry, Nortli 402, 403 Darley Abbey 522, 572 Darlington 540, 543 Dartmouth, St. Petrox 502 Davis 334, 335 438, 558 Davison 457 Dawbeny 87 Dawlish 464, 494 De Broquens 463, 464 Dayrell 318 Deddington 483, 543 Deubigli 522 Denbighshire 190 J J. of, 151 Denham 425 499, 517 Denio 585 Deptford, St. Paul's 525 Derb}', All Saints 507, 522 Derbyshire 333, 334 ,JJ. of 156 Dersingham 522 Devon . 165, 198, 568 Devonshire 520 , JJ. of 250, 372 Diddleburgh 581 Ditcheat 631, 532 Ditchingham 501 Dixon 375 Dodderhill 523 PAGE Rex V. Donyland, East . 567 Dorchester . 399 Dorsetshire . 436 Dorstone 537, 541, 543 Driffield . 483 Duffield, North . 522 Dunchurch . 542 Dunstan's, St. Kent 536 Dunton . 488 Dyer . 291 Eardisland . 179, 182 Easman . 518 Eastbourne 482, 483, 521 Ecclesfield 173, 178, 180, 181, 514 Edgbaston , 534 Edgmond . 491,492 Edgeworth 503, 552, 575 Edington . 538, 541 Edmonton . 549 Edwards . 398 Edwards and others 121 Edwin stowe . 577 Egginton . 435 Egremont . 499 Eldersley . 488 Ellis . 409 Eltham . 547 Endon . 534 England . 464 Englefield . 565 Erith . 598 Essex, Inhabitants of, 169, 394, 400, 420 , J J. of . 219, 567 Everdon . 561, 564 Evered . 519 Everett . 137 Everton . .551 Exeter, Bishop of, 79 , St. Pauls in . 514 Eyres . 95, 411 Eyeford . 424 Eanshaw . 174 Farriudon, Great 438, 447 Faversham . 153 Fearnley . 457 Felton . 467 Ferrybridge . 413 Field . 79 Fielding . 320 Fifehead Magdalen . 494 Fillor^ley 494, 498, 524, 566 Findern . 578 Findon . . 499 Fisher . 300 Fittleworth . 354, 545 Flecknow . .168 Fleet . 508 TABLE OF CASES. PAGE Flintshire, JJ. of Folly Forrest . 296, Forster and Holland Foulness Fowler and others Fox . 4(;2, Fritwell Frome Selwood Fulliam and Martyr Fylingdales Gamlingay Gardner Gayer Geddington . 539, Genge . 329, George, St. , Hanover Square 176, George, St. the Martyr, Southwark Gibson Giles, St. Glamorganshire Glastonbury, St. John's Gloucester Gloucestershire, J J. of 568, Glyde Goodcheap . 400, Goolaston Goudge Grand Junction Canal Company Granville, Lord Gray and Upton Green and others Grendon Underwood 494, Grimston Grince . Gudridge . 290, Gulley Hackney Haddenham 483, 542, Haddock Hales Owen Hall Hallow Hann and Price Hammersmith 171,177, Hammond 162, 171, 174 Hampreston Hampton Hamstall Ridware 296, Hanbury Handy Jlarberton . 520, 547 Hardhorn with Newton 393 399 427 319 515 121 464 524 499 462 201 172 404 427 542 332 427 166, 177 522 466 494 573 524 408 152, 623 432 432 497 336 407 412 462 405 495 563 569 437 456 562 550 171 519 380 495, 498 322 , 523 , 544 496 502 399, 559 496 374 , 518 495, 497 Rex V. Hardwicke Harely Harman Harpur Harris Harrow Harwood Hartfield Hartford PAGE 552, 577 558 426 334 87 162, 172 332, 489 566 171 Hartington, Upper Quarter, 462, 463, 464 Hasfield Haslingfield Hatfield Haughton Hayworthingham Heaton and Norris Heddington Hedges Hedingham Hedsor Hellingley Hemlingham Heralington . Hendercleave Hensingham Herbert and others Herries Hereford, All Saints Herstmonceaux Hertfordshire, JJ. of 483, 540 167 170, 172, 180 490 538, 542 548, 554 520 . 437 569 499, 548 524, 525 586 467 567 486 . 120 322 500 528, 531 219 Hewson Higginson Highnam Hill Hinckley Hindringham Hipswell Hogg Holbeche Holbeck in Leeds Holland and Forster HoUington Holsworthy 328, 329 375 500 403 502, 508 520 . 512 408 420 563 319 522 488 Holy Cross . 354, 544 Holy Trinity . 517 in Wareham 487 Hooe . 525 Hooper . 380 Hope Mansell 354, 544, 545 Hornchurch . 542 Horndon on the Hill 538, 542 Hornsey . 170, 180 Horsley, . 538, 540, 543 Horwick , 492 Houghton le Spring 488, 537 Houlditch . 427 Hube . 40,154,157 Hudson . 169 Hullcott . 302 TABLE OF CASES. rAOE Rex V. Hull . . 588 Hull Dock Company 407,414 Hurdis . 412 Ickleford . 555 Ideford . 5ir Iddesleigh • 516 Idle . 554 Ham . 490 Ilkestone . 516 Ilmington . 541 Ilminster . 545 Incledon . 184 Ingleton . 541 Inskip with Sowerby 559 Irvvell and Mersey jSaviga- tion . 409 Islip . 495, 497 Ivestone . 499 Ivinghoe . 495 James . 312 James St. Bury St. Edmunds 470 Jenkins . 465 Jennings . 332 John, St. Southwark 534 John, St. and St. Margaret 383 Johnson . 518, 519 Joliffe . 261, 408 Jones . 403 Jotham . 153, 154 Joyce . 456, 457 Kallender, St. Mary . 520 Kegworth . 528 Kelstern . 523 Kempson . 456 Kenardington . 524, 526 Kenilworth . 489, 579 Kent, Inhabitants of 174, 568 198 , JJ. of . 415 Kenyon . 217 Kerrison . 169, 174 Kettleworth . 185 Kibworth Harcourt . 53l Kidwallv, St. Mary's 487, 493 King " . 435 Kingscleere . 102 King's Lynn, St. Margaret's 501 Kingsmoor 167, 173, 175 Kings's Norton . 496 Kingston and others 375 King's Pyon . 497 Kingsweare . 500 Kingswinford, Inhabitants of 414, 490 Kirk . 216 Kirby Stephen . 425, 558 Knight . 172 Rex PAGE Knighton 526 KniU 465 Kynaston 285 Lacey 398, 404 Ladock . 495 Laindon . 500, 501 Lakenheath 524 Lambeth, Inhabitants of 398, 404, 496, 568 , St. Mary's 497, 526, 575 Lampeter . 565 Lancaster . 568 Lancashire, Inhabitants of 243, 250, 356 Landillo Commissioners of " 162 Lane 336 Langammarch Langham Langley Laughton '276 535 420 , 569 454 Lawford 551 Lawrence, St.Ludlow 470, 471 , Winchester 53'i Leamington Priors 491 Leeds . . 547 Leicester . 363 J J. of 303, 357 ., St. Margaret's 507, 578 , St. Mary's 560 , St. Martin's 583 , St. Nicholas 554 Leicestershire, Inhabitants of 571 Leigh . 425, 563 Leighton . 503 Leverington . 571 Lew, Inhabitants of 442, 443, 545, 595 Lidford East . 172 Lincoln, St. Margaret's 502 Lincolnshire, J J. of 464, 465 Lincombe . 177 Lindsey,Inhabitantsof 174,198 Liverington . 571 Liverpool 104, 166, 354, 411, .544, 545 , Mayor of 176 Llanbedergoch 526, 572 Llandverras . 524 Llanryhdd . 581 Llantillio Grossenny 539 Llanwinis . . 559 Lloyd . 163 London, Bishop of 79, 80 . , Mayor, &c. of 407, 411 TABLE OF CASES. PAGE PAGE Rex V. London, Justices of . 415 Rex V. Messenger . 464 Gas Light Company Michael, St. . 536 408 Micklefield . 438 Londonthorpe • 525, 586 Middlehara . 562 Lone . 333 Middlesex . 399, 425, 433 Long Bennington . 539 , Justices of, 422 Whatton . 487 Mierre . 331 • Wittenham . 551 Mildenhall . 497, 499 Lougbton . . 177 Miles . . 463 Louth , . 503 Miller . 407, 523 Lowther . 489 Milton . 407, 414 Lubbenham . 578 Milnrow,Chapelwardensof388 Luffe . 461 Milwich . 490 Luke's, St. . 157 Minvrorth . 522, 525 , Hospital of 405 Mirfield . 413 Lutterworth, Inhabitants of Monmouthshire . 569, 571 450, 508 Moor . 426 Lydd . 491 Moor Critchell 560, 570, 573 Lynn, South . 526 Morgan . 283 , All Saints . 561 Morris 424, 425, 426, 427 Lyon . 176 Mosely . 467 Lytchet Matraverse . 553 Moss Soper . id. Macclesfield 489, 490, 493 JMountsorrel . 500, 520 Macdonald . 403, 411 Munday . 405, 456 Maddermarket, St. John's 403 Mursley . 490 Maddington . 495 JMusson ■. 287 Madley . 575 Nantwich . 507 Maidstone . 497, 577 Natland . 538, 540 Malborough, St. Mary's in 420 Navestock . 489 , St. Peter, and Neotts St. . 543 St. Paul, in . 420 Netherthong 166, 178, 180, 181 Manning . 207 Newark upon Trent 510 Manningtree . 483 Newbury . 419 Margaret, St. and St. John 383 Newcombe . 399 Margram . 500 Newell . 425 Market Bosworth 491, 493 New Forest . 486, 553 Marlow, Great . 425, 427 Newnham . 524 Marsh . 298 Newington . 578, 581 Marshall . 322 ■ St. Mary's 534 Martham . 493, 501 New River Co. . 407 Martin . 253, 466 Newstead . 489, 495 St. at Oak . 578 Newton . 574 Martley . 542 Newton Toney . 496 Marton . 490 Nibley, North . 490 Martlesham . 555 Nicholas, St. Hereford 595 Martyr and Fulham 45 1 , 462 Nicholson . 402, 411 Marwood . 541 Norris and Heaton 548, 554 Mary -le-bone , St. 527, 566, 567 Northampton, JJ. of 571 Mast . 417 North C^ray . 498 Mathon . 556 North weald Basset 540 Matteshall . 511 Nortliwold . 493 Mathews . 463 Norton . 483, 487 Mawbey and others . 184 Norwich, City of . 177 Mayall . 436 Nottingham, JJ. of 572 Melborne . 540, 544 Notts, St. Mary 436, 465 Mellor . 620 Nicholas 502, 508 Mersey and Irwell Na- Nympsfield . 499 vigation . 409 Oakley . 541 Mersham . 544 Oakmere . 557 Merthyrtidvil , 622 Oflchurch . 540 FABLE OF CASES. PAGE 534 .542 571 494 541 560 71 464 144 267- 534, 540 425 173, 178, 182, 536 Parkhouse and others 121 Ilex V. Olaves, St. Olney Oulton Ovemorton . Oversby le ]\Ioor Owl ton Oxford, Bishop of Oxfordshire, JJ. of Oxon, Mayor of Paddington Painswick Palmer Pancras, St Parrot Pascoe Paulsperry Peck Pecke Penderryu Pendleton Percivall Pershore, Worcester Peterborough 404, 412 434 551 519 95 166, 173, 201 487 420 496, 582 493, 496 64 Rex V, Rawden Reading- — St. Mary's Bishop of J J. of the 76 Liberty of . 623 Peters, St. on-the-Hill 503 Petherton, North . 599 Petrox St. . 502 Petti ward and others 190 Pincehorton . 553 Piddletrenthide . 522 Pierson . 375 Pilling, Inhabitants of 183 Pinney . 426 Pitts . 464 Pitts and Young . 318 Pocock . 311 Poddington . 541 Polesworth . 498 Polsted . 569 Pomfret, Earl of . 413 Portmore, Earl of 414 Potter Heigham . 497 Poulton with Fearnhead 525 Povnder 84, 426, 427 Pratt . 89 Preston upon the Hill 572 Price . . 466 Price and Hann . 322 Pugh . 362 Purley . 525 Quainton . 501, 506 Rafford . 482 Rainham . 500 Ramsgate . 531 Ravenstoue , 462 PALiE 590 462 508 Reeve . 456 Regent's Canal Co. 407,411 Revel . 290, 311 Reynell . 43, 183 Rhodes . 380 Ribchester . 503, 517 Rickinghall Inferior 488 Ringstead . 536, 537 Ringwood . 525, 526 Ripon . 501 Roach . 551 Roberts . 172 Robinson . 457 Rochdale Waterworks Co. 407, 414 Rochester, Bishop of 412, 413 Rogers . 218 Rogier . 375 Rosliston • 583 Rotherfield Gi'eys 552 Rourke . 35 Routlege . 329, 33l Rufford . 438 Rushulme . 491 Ry ton . 547 Saighton on the Hill 557 Sainsburv . 287, 319 Salford " . 541 Salkeld, Great . 555 Salop, JJ. of . 464 Saltren . 502, 508 Salters Load Sluice 411 Sandhurst . 489, 492 Sandwich i 526 Saville . So6 Scammoden . 542 Sculcoates . 408 Seagrave . 497 Seacroft . 587 Searle . . 427 Seaton and Beer . 493 Seton . 32 1 Seville . 432 Shalfleet . 403 Sheard . 436 Shebbear . 520 Sheepshead . 5 15 Sheepy, Great . 509 Sheffield 166, 173, 177 Shefford, East . 497 Shenstone . 526 Shepherd . 87, 403 8he]i])ard . 218 Sherborne . 40o Sheringbroke . 427 Shinfield . 493, 501 TABLE OF CAiflES, XXV PAGE ^i ex V. Sbipdham 523 Shipton 510, 513, 514 Simpson 83, 300 SkeflSngton 506, 520 Skingle 417 Skinn 461, 463, 465 Skinner 182, 321 Skiplam 490 Slaughter 438 Smardea 517 Smith 322, 438, 464 Soham, Parish Officers of 439 Somersetshire, J J. of 197,434, 437 Southampton, All Saints 576 South Molton 494 South Newton 594 Sow 487 Sowerby 552 Sparrow 425 Spaunton 525 Staffordshire 568 jj,„i.;„„^ „<• ann Standard Hill 424, 427, 623 •Standon 538 Standon IMassey . 490 Stanley 464, 466 Stanley cum Wrenthorpe 577 Stannington 486 Stansfield 569 Startifant 403 Staplegrove 541 Stapleton 535 Staughton 167 Stead 183 Stevens 329 Stockland 542 Stoke 522 Damerel 511 Stoke Golding 428 Stokesley 493 Stone 300, 537 Stotfold 427, 559, 580 Stove - 540 Stow 529 Stow Barden 574 Stowmarket 488 Stratford-upon- Avon 515 Stretford 169 Stubbs . 330, 426 Suffolk, J J. of 155,248 Sudbrooke . 495 Sudbury, Mayor, &c. of 404 Sul grave . 499 Surrey . 199 Justices of 248, 464, 567. 569 Sussex, JJ. of 416, 567, 573 Sutton . 499 St. Edmunds 522 PAOF Rex V. Svvalcliffe . 558, 580 Symonds . 322 Tamworth . 558 Tarrant . 1 20 Launceston 541 Taunton , 362 Churchwardens of 102 St. Mary's of 181, 185 Taylor . 49, 138, 463 Tebbenham . 557 Tedford . 542, 572 Telescombe . 420 Tenant . 465, 466 Terrot , '" "404, 412 Tewkesbury , . . . 408 Thame, Churchwardens of 102 Thetford . 383 Thomas . 409 Tliompson . 171 Thornham . 523 Tibbinham . 462 Tissington . 524 Tipton . 586 Tolpuddle . 522 Tomlinson . 410 Tonbridge . 528, 529 Tooley , 555 Topham . 419 Topsham , 563 Torrington, West . 567 Townsend 179, 182, 216, 219, 434, 437 Trent and Mersey Navi- gation . 411 Tringhoe . 495 Trinity in Chester . 560 Tripping . 457 Trowbridge . 577, 598 Tucker . 435 Turner , 404 Turvey . . 49^ Twyning . 549 Tyrley . 495 Uckfield . 552, 553 Ufton . . 57-3 Ullisthorpe . 549 Ulverstone . 495, 553 Underbarrow and Bradley Field . 494 Upton . . 541 Upton and Gray . 462 Uttoxeter . 425 Vandewale , 409 Vaws . . 334 Wadley . 40, 156 Wainfleet 528, 529, 530 Wakefield . 575 Waldo . . 157 Walsall 424, 425, 427, 434 TABLE OF CASES. PAGE Rex V. Wandsworth 14,43, 163, 181, 182, 183 Wantage . 303, 544 Warden . 516, 520 Warkworth . 540 Warlej . . 576 Warminster . 576 Warner . . 425 ■ Wamford . 298 Warnhill . . 562 Warren . 99 Warwick . 427 Wasbbrook . 9 Watts Horton- . 425 Watson . 408, 425 Wavell . . 402 Weaver Navigation, Trus- tees of . 411 Weir . . 344 Welbank . 413, 414 Wendover . 567 Weoblj . 399, 535 r- Overseers of 427 West . 463 Westgate . 545 Westmean . 498, 507 Weston . 464 Under Penyard 172 Westrington . 569 Westwood . 558, 562 Wetherell . 448 Weyhill . 487 Wheeler and others 35 Wheelock . 567, 580 Whitchurch 514, 517, 579 White . 88, 403 Whitear . 433, 436 Wbitechapel . 526 Whitehaven . 550 Whitley, Lower . 577 Whitnash . 489 Whixley . 522 Wilks . . 347 Williams . 88, 375 AVilmington . 551 Wilson . 93 Wiltshire . 170 JJ* of 416, 568 Winchcomb . 487 Wing . 218, 250 Wingfield . 184, 243 Wingham . 354 Winslow . 487 Winter . 201, 217 Winterboume 354, 544 Wintersett . 495 Winwick . 355, 508 Witherley . 582 Witton cum Twambrookes 552 AVoburn . 538, 541, 552 PAGE Rex V . Wood , 332 Woodhurst 496 Woodland . 408, 413 Woodman , 265, 268 Woodward , 157, 405 Woolpit . 542 Woolstanton 502 507, 508 Woolston . 138 Worcester, St. Peter the Great . . 411 All Saints 492, 596 Worcestershire 190, 433, 436 Justices of 218, 248, 448 Worfield . 493 Wroughton and others 156 Wyatt . 336, 348, 361 Wykes 551 561 Wymondham 426 Yalding 545 Yarmouth 559 Great 490 Yamton 180 Yarpole 290 571 Ynyscynhanarn . 543 York and another 296, 380 JJ. of 392 Yorkshire, W. R. of 180, 198, 199 ,219 394 N. R. JJ. of 197, 429 W. R. JJ of 197, 219 567 Young and Pitts , 318 Rhodes v. Ainsworth , 14 Rix Re . 298 Roberts v. Karr 163 V. Read 247 Robson V. Hyde 405 Rogers v. Brooks 28 37 317 V. Jones Rook, Exparte 318 Rose V. Wilson 338 353 Rosher v. Vicar of Northfleet 45 Rouse V. Barden 171 Rowlsv.Gell 413 Rudd V. Forster 425 Rugby Charity v. Menyweather 163 Ryslip V. Harrow . 537 Sabin v. De Burgh Saer v. Bland Samuel v, Paj'ne Seagar v. Bowie 313 59 339 TABLE OF CASES. Seton V. Slade Sharrock v. Hannemer SLermanbury v. Bolaej Shutt V. Proctor V. Lewis Simmons v. Wilmot . Simpson v. Routh Sir Walter Franc's Case Sir W. Vane's Case Skiffreth v. Walford Skinner v. Buckee Slocombe v. St. John . Slowman's Case Slv V. Stevenson Smith V. Maxwell V. Wiltshire Snowden v. Herring Sonham v. Trunelle South Cadbury v. Braddon Spain V. Arnott Spalding v. St. John Baptist Speer v. Crawter Spencely v. Robinson Spitalfields v. Bromley Spooner v. Brewster Spratt V. Powell . Stable V. Dickson Staiford, Marquis of, v. Coyney Stallingborough v. Hartray Stallwood V. Tredger . Standen v. Standen Stanley v. Fielden Starkey v. Berton . V. Watlington Stears v. Smith Steel V. Prickett Stephenson v. Langston Stevens v. Evans . V. Moss PAGE 539 337 456 466 374 439, 468 442 Stocks V. Booth Stokes V. Lewis Stoughton V. Reynolds Strachey v. Frances Strangeways v. Robinson Stransham v. Cullington Stutter V. Freston SudclifFe v. Greenwood Sutton V. Clarke Suckley v. Whithorn 331 333 556 441 85 36 346 162 S60 93 41 571 497 559 7 136 558 45, 46 257 458 164 562 15 549 231 89 35 314 168 84 421 131 27, 28, 30 103 85, 87, 257 44 . 467 7 87 1-70 247 555 Tarlton v. Fisher . 63 Tarrant v. Haxby . 99 Tattersall v. Knight . 24, 25 Tawney's Case 400, 402, 435, 439 Taylor v. Fenwick . 313 V. Whitehead . 168 Tewkesbury v. Twining . 565 Theobald v. Crichmore 348; Thomas v. Morris Thompson v. Davenport V. Tapps Thorp V. Mansell Thrower's Case . Thursfield v. Jones Titchfield V. Milford Tomlinson v. Bentall Topsail V. Ferrers Townsend v. Thorp Townson v. Wilson Tracey v. Talbot Transam's Case Trebec v. Keith Trowbridge v. Weston Tubb V. Harrison Turner v. Baynes 439 157 PAGE 359, 360, 388 37, 253 119 252 40 170 386 500 470, 471 55 97, 98 466 399, 422 6, 7 150 562 456 94 U. Ufculm V. Clysthydon Underbill v. Ellicombe V. Witts 562 231, 244, 424 333 V. Vennor, Exparte W. Wainwright v. Bagshaw Waite v. Smith Wake V. Conyers . Walsh V. Fussell Waldron v. Roscarit Wallace v. King Waller v. Childs Walrond's Case Walter v. Childs v. Gunner and Drury 168 Walter v. Rumball Wangford v. Brandon Ware v. Stanstead Warner's Case Warriner v. Giles Watkins v, Hewlett Watling V. Walters Weatherhead v. Drury Welcome v. Lake . Weldon V. Green Weller v. Toke Wells V. Iggulden Welsh V. Nash. Wennal v.Adney 92 212 7 486 358 360 154 432 142 23, 26, 27,29 343 550, 551 561 85, 87, 89 130 466 429, 472 328 34, 95 70 313 441 296 468 TABLE OF CASES. PAGE Wenmouth v. Collins . 39 West V. Andrews . 440 Westerham v. Chiding-stone 550 Western Rivers v^ St. Peters 559 \A'estminster, City of, v. Gerard 457 Wharton v. Robinson . 10 TVhaplode Parish, Case of 184 Wheeler v. Cooper . 223 White V. Taylor . 338, 353 Whitechapel v. Stepney . 554 AVifkes v. Clutterbuck . 317 AVildbor V. Rainforth . 432 AVilkinson v. Allott . 66 V. Clerk . 66 Willes V. Bridges - 309 Williams v. Bott . 40 Exparte . 39 V. Glenister . 40 V. Goodyer . 39 V.Jones . 411 V. Yaughan . 87 Willis V, Parkinson . 8 Wilson V. Greaves V. M'Math V. Weller PAGE 41 87, 251, 255 302 Windsor, Old, v. Matthews 412 Wingham v. Sellinge . 544 V/ise V. Creake . . 37 Witcher v. Chesham . 30 Wood V. Veal . 162, 181 Woodcock V. Gibson and others 90, 428 Woodward v. Makepeace 32, 385 Woodyer v. Hadden 162, 163, 164 Woollocombe v. Ouldridge 26, 27, 28 Wookey v. Hinton Blewet . 543 Wright V. Court . 352 V. Flamant . 66 ■ V. Horton . 281, 313 V. Legge . 66 V. Rector of Hornsey 24 Wynn r. Kay . . 69 Wynne v. Smytiiies . 66 PARISH LAW, CHAP. I.— PARISHES. Section I. Origin of Parishes. TI. Boundaries of Parishes, III. Division of Parishes. IV. Parishioners. SECTION I. — ORIGIN OF PARISHES. Their History Uncertain.] 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 interested 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 ecclesiastical writers, that dioceses {dioichia) existed anterior to 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 erection of churches in different parts of the country as the 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 controul and superintendence. Limits how Determined. 1 Thus in process of time the presbjters and priests, who were little more than the curates or messengers to the higher dignitaries, became settled in the towns and villages, dis- tant fi'om the cathedral churches, (in which the bishops themselves 2 PARISHES. [Chap, I. 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 deteimined, which were afterwards called and known by the distinctive appellation of parishes ; though in the more early tunes, it is probable that dioichia and paroichia were terms applied to either division indiscriminately. (Com. Dig. Parish, 3 Bum. Ec. L. 61.) Protestant Hierarchy.] It will not be considered very much out of place to state, in general tenns, the orders and degrees of the hier- archy of the Protestant church, as it exists at the present day. 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 suffi'agans in respect of their relation to the archbishop of theii* province ; but formerly each arch- bishop and bishop had also his suffi'agan to assist him in confening orders, and in other spiritual paits of his office within liis diocese- These, in our ecclesiastical law, are called suffragan bishops, and resemble the chorepiscopi or bishops of the country, in the early times of the Christian church. How this inferior order of bishops may be elected and consecrated, is regulated by the 26 Hen. VIII. c. 14. ; but it is not usual to appoint them. They should not be confoimded with the coadjutors of a bishop, who are appointed in case of the bishop's infinnity to superintend his jurisdiction and temporalities, neither of which was within the interference of the former, (1 Gibff. Cod, 1st ed, 155.) Tlie province of Canterbury includes twenty-one dioceses, viz. of ancient foundations, — Rochester his principal chaplain, London his dean, Winchester his chancellor, Norwich, Lincoln, Ely, Chichester, Sahsbury, Exeter, Bath and Wells, Worcester, Coventry and Litchfield, Hereford, Llaudaff', St. David, Bangor and St. Asaph, with four founded by Hen. VIII. erected from the ruins of dissolved monasteries, viz. Gloucester, Bristol, Peterboi-ough, and Oxford. The province of York has four only, though anciently more : they are Chester, Durham, CarUsle, and the Isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into ai'chdea- conries, whereof there are sixty in all ; each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rm-al dean's jurisdiction ; and every deanery is divided into two parishes. Parish Defined.] A paiish is that circuit of gi-oiuid which is com- mitted to the charge of one parson or vicar, or other minister haraig cure of souls thercm. These districts ai-e computed to be near ten thousand in number. (Camden's Brittannia.) Sect. I.] ORKilN OF PARISHES. 3 Date of Parishes.] Mv. Camden (in his Brittannia) says, England was divided into parishes by Archbishop Honorins about the year 630. Sir Henry Hobart, (Hob. 296,) lays it down, that parishes were first erected by the council of Lateran, which was held A. D. 1179. Each widely differing from the other, and both of them perhaps from the truth ; which will probably be found in the medium between the two extremes. For Mr. Selden has clearly shewn, (Of Tithes, c. 9,) that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart. Extent of Parishes.] 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 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 maintenance 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 approj)riated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands ; especially if no chiu*ch was then built in any lord- ship adjoining to those out-lying parcels. (1 Bla. Com. 113.) How Number Increased.] Thus parishes were originally formed; and parish churches endowed with tithes that arose within the circuit assigned. Their number has been added to, by some of the most ex- tensive ones, being divided into two or more, when a greatly increased population rendered such a measure highly expedient for the spiritual welfare of the people. As will readily be presumed, this has been the case in London and Westminster, and several other towns, which from their magnitude, and advancement in civilization, were the chief objects of ecclesiastical watchfulness and regard. The churches in these new divisions were sometimes of considerable untirpiity, and by this means acquired the distinctive appellation of B 2 4 PARISHES. [Chap. I. the parish church, whilst others wei'c erected, as the number of com- municants increased, subordinate, and in some respects tributary to' the fonner. Bishop defined Limits.] This gi'adual reduction of the whole kingdom into definite portions, is corroborated by the testimony of Bishop Kennet, in his Parochial Antiquities (see p. 585 et seq.) upon whose authority it may be stated, that in the earlier periods of our ecclesiastical history, the limits of these new parishes were always appointed by the bishop, who was guided probably in setthng the boundaiies, by the extent of the foimders lands, when the church was built by a layman, or by some cogent reasons arising from individual interests or public convenience. Tithes Assigned-I If the bishop gave the new church a right of burial, the lord of the manor might (with his approbation and not otheiTvise) give some part of the tithes to that church, which before were due to the mother church ; but if tliis right were not conceded, then the edifice remained a chapel ; and if the lord of the manor would have a citrate, he was to maintain him at his own charge. However, in some instances, one thnd of the tithes, were by authority of the bishop, allowed to the newly erected church, and the remainder was reserved to the old one, which was standing before this smaller parish was carved out of the larger district ; and hence it was, that when a question arose whether a foundation of this kind wei'e a parish church, or merely a chapel, it was to be decided by the bishop's cer- tificate. But the dominion of the church was preserved in all cases, unless it was clearly made out that it had been duly suiTendered, and upon an adequate consideration. Thus upon a question whether the inhabitants of a chapelry ought to contribute to the repairs of the mother church, it was held that a chapelry may be exem])t by pre- scription, where it buries and christens within itself, and has never contributed to the mother chiu'ch ; for in that case, it shall be intend- ed coeval, and not a later erection, but if it appears that the chapel could only be an erection in ease and fa\ our of those of the chapelry, and that when they prevailed upon the bishop to consecrate them a burial-place, they in consideration thereof agreed to pay towai'ds the reparation of the mother church, they remain hable. (Ball v. Cross, Holt, R. 138. 1 Salk. 164.) Parish in separate Parts.] In some few instances, parishes seem to interfere with each other, that is, when a place or district in the middle of another parish, belongs to a parish that is distant ; but that hath generally happened by an unity of possession, when the lord of a Sect. II.] BOUNDARIES OF PARISHES. '^ manor was at the charge to erect a new church, and make a distinct ])arish of his own demesnes, some of which lay in the compass of an- other parish. (1 Still. 244.) SECTION II. BOUNDARIES OF PARISHES. Boundaries Traditionary. 1 The boundaries of parishes in most instances depend upon ancient and immemoiial custom, having been originally established according to the particular circumstances of the times or districts. (Still. 243.) They wore settled long after the foun- dation of churches, and were afterwai'ds much varied, and in many cases abridged and naiTowed, as new churches were built. (Lousley v. Hay ward, 1 Younge & J. 586.) Motives to define Bounds. 1 For a long period, a sufficient induce- ment to define the boundaries of parishes accurately, did not present itself; but when it became part of the law, to require the attendance of the people ujion 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 many places, still continued. Peramhulations.'] These perambulations, though of evident utihty, were in the times of popery accompanied with great abuses. They were usually perfonned in rogation week, whence the rogation days were anciently called gaiige days, from the Saxon gan or gangen, to go. The processions upon these occasions were accompanied with many ceremonials of popish superstition ; with banners flying, which, ac- cording to a constitution of Archbishop Winchelsey, the parishioners were to find at their own charge, (Lind. 252,) and hand-bells, hghts, and other pageantry. When they anived at a spot upon which a cross was erected, the procession halted, and certain rites were performed, but their resting-places were chiefly selected for the purposes of feast- ing and revelry ; and in process of time, they came to demand as a right, what was dispensed originally from the hospitality of some of the wealthier yeomen, or lords of the manors residing upon or near to the boundary. However, though repeated attempts were made to es- tablish this right by legal proceedings, the custom was not sanctioned by any public tribunal, but on the contrary, was declared to be against 6 PARISHES. [Chap. I. law and reason. (Gibs, 213. 2 Roll's Rep. 259. Moor, 916. 2 Lev. 163.) Ceremonies Abridged.] At length the irregularities and excessescom- initted on these occasions, attracted the reprehension of the sovereign, for we find that processions in the manner they had been perfoniied, were forbidden by injunctions from Queen Elizabeth, though it was at the same time required, that for the retaining of the perambulations 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. And the curate attending such perambulations, was at certain convenient places to admonish the people to give thanks to God, (in the beholding of his benefits,) and for the increase and abundance of his fruits upon the face of the earth ; with the saying of the 103d Psalm. At which time he was also to inculcate these or such like sentences : — Cursed be he tvhich translateth the bounds and doUes of his neighbour, or such other order of prayers as should be lawfully appointed. (Gibs, 213.) Perambtdate over Private Lands.] It is said in the case of Goodday v. Michell, reported in Cro. Eliz. 441. Owen. 72, that it is not to be doubted that jiarishioners may well justify the going ov'er any man's lands in their perambulations, according to their usage or custom ; and to abate all nuisances in their way. (See F. N. B. 185. B. Ent. 158. See also Vin. Ab. Perambulation.) Bounds settled by Law.] When from the neglect to perambulate, or from other causes, the bounds of parishes have become confused and difficult to detennine, the proper mode to have them ascertained is by an action at law. And the books of common law agi-ee in the maxim, that the bounds of jmrishes, though coming in question in a spiritual matter, shall be tried in the temporal court, (Transam's case, Cro. Eliz. 178, 228.) though the provincial constitutions mention the bounds of parishes amongst the matters which belong to the ecclesias- tical court, and say they cannot belong to any other. (Gibs. 212.) The superior authority of the common law cannot however be dis- puted, though the rule seems to be, that the spiritual courts having jurisdiction in other matters, wherein the question of boundary may arise collaterally, are still at liberty to proceed. Thus, if the cpies- tion of boundary arises incidentally, and the ecclesiastical court has jurisdiction in the principal point, the Court of K. B. will not grant a prohibition to stay trial. (Full v. Ilutchins, Cowp. 424.) But there are few instances in which the ecclesiastical courts are ]ier- Sect. II.] BOUNDARIES OF PARISHES. 7. mitted to proceed, where a question ol tliis nature is involved, if a pro- hibition is sued out in due time, tliat is before trial. (Banister v. Hop- ton, 10 Mod. 12. Paxton v. Knight, 1 BuiT. 314.) Between Spiritual Persons.] If tlie suit is between a rector and vicai", though the fonner is an impropriator, it shall be tried in the spiritual court, and no prohibition shall go. If it be a proceeding to determine a case of tithes, the right to which depends on the lands lying in a vill within the parish, or in the other part of the parish, in such case, the Court of King's Bench declared that the question was triable in the ecclesiastical court. (2 Rolls. Abr. 312.) Thus in a suit between the parson impropriate and the vicar of the same parish, wlierein the vicar claimed all the tithes of the village of D. within the parish, and the question between them was whether cer- tam lands, whereof the vicar claimed the tithes, were within the village of D. or not; yet, inasmuch as the suit was between spiritual persons, viz. the parson and vicar, although the parson was a layman, and the parsonage appropriate a lay fee, it was held to be triable in the same court. (Ibid.) Between Parson and Layman.] But in a case between a clergy- man and a layman, where a vicar sued for tithes, arising inter loca de- cimabilia of such a parish and the defendant suggested that the lands were in another parish, and that he had paid tithes to the parson there* this shall be tried at law. (Stransham v. Cullington, Cro. Eliz. 228.) So, if it be disputed, between the parties whether certain lands for which tithes are demanded be in one parish or another, the question is triable at common law. (Transam's case, Cro. Eliz. 178. 1 Keb. 369.) Because, though the bounds of vills may be triable by the ecclesiasti- cal courts, those of parishes are not. (Petler v. Yaleman, 1 Lev. 78. 1 Sid. 89.) Commission to settle Bounds.] It is laid down in the books, that the boundaries of counties, of towns, and of manors may, by the assent of the parties, be ascertained and settled by a commission de perambula- lionefacienda, issued to the sheriff or to other persons. (Vin. Ab. tit. Perambulation.) And where the lands of private individuals have become confused from having been for a long period in the same oc- cupation, the Court of Chancery, without such assent, will grant a commission for this pui^pose, if it is shown that the confusion has arisen from the misconduct of the defendant or of those under whom he claims. (Speer v. Ci'awtcr, 2 Meriv. 410.) Still upon these occasions (he granting the commission is not of course as respects legal estates: there must be some equitable circumstances. (Wake v. Conyers, 1 8 PAKISHES. [Chap. I. Kdin. Rep. 331. 2 Cox. 360. Willis v. Parkinson, 2 INIeriv. 507.) There seems no reason why the boundaries of parishes should not be settled in the same way as those of counties and towns, where they are in dispute, but it is said that a bill will not lie for an issue or commission for this purpose ; except, perhaps, all parties concerned, or who have a probable interest, are before the court. (St. Luke's v. St. Leonai-d's, 1 Bro. C. C. 40; Atk\^ls v. Hatton, 2 Anstr. 386.) Bounds now known.^ The necessity for a commission or any other legal proceeding for the pui-pose of ascertaining the boundaries of parishes must be daily diminishing ; as in those places where per- ambulations are neglected, the limits of parishes are known either from the municipal records or by other means equally satisfactory. And in those cases where the lines of demarcation traverse extensive wastes or commons, the legislature has provided the means, when it becomes imjoortant, by such lands being brought into cultivation, of deter- mining with exactness their parochial locality. Wastes near Parish.l -^J ^^^ ^^ Geo. 2. c. 37, it is enacted, that where there shall be any dispute, in what parish or place, improved wastes, and drained and improved marsh-lands lie, and ought to be rated, the occupiers of such lands, or houses built thereon, tithes arising therefrom, mines therein, and saleable underwoods, shall be rated to the relief of the poor, and to all other parish rates within such parish or place which Ues nearest to such lands ; and if, on apphca- tion to the officers of such parish or place to have the same assessed, any dispute shall arise, the justices of the peace at the next sessions after such apjilication made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all others interested therein, may hear and detennine the same on the appeal of any person interested, and may cause the same to be equally assessed, whose determination therein shall be final. But this shall not detennine the boundary of any parish or place, other than for the purjjose of rating such lands to the relief of the poor, and other paro- chial rates, (s. 1,2.) And by the 2. and 3. Ed. 6. c. 13. s. 3, every person who shall have any beasts or otlier cattle titheable, depastur- ing on any waste or common whereof the parish is not certainly known, shall pay the tithes thereof where the owner of the cattle dwells. By Inclosure Acts.l And by the 41 Geo. 3. c, 109. s. 3, commissioners appointed in or by virtue of inclosure acts, arc autho- lised and required by examination of witnesses upon oath or affirmation, which any one of such commissioners is empowered to adminislcf. iScct. TI.] I50UNDAIIIES or PARISHKS. 9 aiul by such other legal ways and means as he or they shall think proper, to inquire into the boundaiies of such several parishes, manors, hamlets, or districts; and in case it shall appear to such commis- sioners, that the boundaries of the same respectively are not then sufficiently ascertained and distinguished, such commissioners shall ascertain, set out, detennine, and fix the same respectively ; and after the said boundaries shall be so ascertained, &c. the same shall be the boundaries of such paiishes, manors, hamlets, or districts. Notice of fixing Bounds.] Provided ahvays, that such commis- sioners, before they proceed to ascertain and set out the boundaries of such jjarishes, manors, hamlets, or districts, shall give public notice, by writing, under their hands, to be affixed on the most public doors of the churches of such parishes, and also by adver- tisement, and also by writing to be delivered to, or left at the last or usual places of abode of the respective lords, or stewards of the lords of the manors, in which the lands to be inclosed shall be situate, and of such adjoining manors, ten days at least before the time of set- ting out such boundaries, of their intention to set out and detennine the same respectively. Publishing Bounds.] And such commissioners shall, within one month after their ascertaining, &c. the same boundaries, cause a de- scription thereof, in writing, to be delivered to, or left at, the places of abode of one of the churchwardens or overseers of the poor of the re- spective parishes, and also of such respective lords or stewards. Appeal against Bounds.] " Provided, that if anj^ persons inte- rested in the said detennination of the said commissioners shall be dis- satisfied therewith, such persons may appeal to the justices for the count}^, at any general quarter-sessions held within four calendar months after the aforesaid publication of the said boundaries ; the appellants giving eight days' notice of such appeal, and of the matter thereof in writing to the connnissioners ; and the decision of the said justices therein, shall be final, and not removable by certiorari, or any other jirocess whatsoever into any of his Majesty's Courts of Record, at Westminster or elsewhere." Error of Commissioners.] But unless the commissioners ap- pointed by any such act pursue the authority given them, strictly, their proceedings may be invalidated. Thus, where they duly fixed and settled the boundaries, and published them accordingly, but the boundaries mentioned in their award varied from those advertised, it was held, that their award was not binding as to the boundaries of the parish. (R. v. Washbrook, 4 Bam. and Cres. 732 ; 7 DoWl. and Ryl. 221.) 10 I'ARisHEs. [Chap. I. Incompetent IVitnesses.] The parson cannot give evidence on a question relating to the bounds of his parish, for he is interested to enlarge them, and, consequently, his tithes. (Wharton v. Robinson, 7 Mod. 63.) Nor a parishioner actually rated, though, if he be merely liable to be rated, his evidence is admissible. (Deacon v. Cook, 2 East. 562.) SECTION III. DIVISION OF PARISHES. Expediency thereof.] The increase of popidation, and a becoming zeal for the character and influence of the Protestant establishment, which were in some measure impau'ed by the unwearied and ex- tended labours of sectaiianism, induced the legislature, towards the close of the late reign, to appropriate large sums of money for the erection of new churches. It was an important part of the general scheme, to give to the churches so to be estabhshed a peculiar dis- trict, in the nature of a separate parish, wherever it might be found expedient. Power to divide Parishes.'] Accordingly the statutes passed on the subject pro\dde, that if the commissioners, appointed to cany this object into effect, shall think it expedient to divide any parish into two or more separate parishes, for all ecclesiastical purposes, they may, with the consent of the bishop of the diocese, under his hand and seal, apply to the i)atron of the parish church for his consent, and upon his signifying it under his hand and seal, the commissioners shall represent the whole matter to the King in council, stating the proposed bounds of such division, with the relative proportions of glebe lands, tithes, moduses, and other endowments, and the esti- mated amount of fees, oblations, or other ecclesiastical dues or profits within each division ; upon which his Majesty in Council may direct such division to be made. Provided that it shall not completely take effect till after the death, resignation, or avoidance of the existing m- cumbent. (58 Geo. 3. c. 45. s. 16.) Tithes assigned.'] Incumbents of the churches of each division of the parish are empowered to recover the tithes, &c. assigned to them, in like manner as the inciunbent of the original parish, (s. 17.) ExisVmq Incumbencies.] New churches of such divided parishes shall, during the existing incumbency, remain chapels of ease, and be served by a curate nominated by the incumbent, and licensed by the bishop, and paid as after directed, (s. 18.) New Parish a Rectory, ^c] Every separate parish, when the tUvision shall become complete, shall be a rectory, vicarage, donative. Sect. III.] DIVISION OF PARISHES. I 1 or perpetual curacy, according to the nature of the original church of the palish so divided, and subject to the same jurisdiction and laws. (s. 19.) Donatives and perpetual curacies shall lapse in six months like benefices, but no spiritual person appointed thereto shall be removable at the pleasure of the party appointing, (s. 20.) Consolidated Chapelries.] The 59 Geo. 3. c. 134. s. 6. reciting that a considerable population is fi-equently collected at the exti'emities of parishes or in extra-parochial places contiguous to each other, at a distance from the churches or chapels thereof, enacts, that it shall be lawful for the commissioners, with such consent as is requii'ed by the 58 Geo. 3. c. 45. s. 16. (see ante 10.) to consolidate any such conti- guous parts into a separate district for all ecclesiastical -purposes ; and to cause such district to be named, and ascertained by prescribed bounds, and such name and bounds, when approved by his Majesty in council, to be enrolled in Chancery, and in the registry of the diocese ; and to make grants or loans for building any chapel, with or without cemeteries, for the use of such district, under such i-egulations as may appear most expedient; and to constitute any such district a consolidated chapelry, with similar privileges as to maniages, burials, &c. and with like provisions as to its government, as if such chapelry were a distinct parish ; and to be subject to all other laws relative to holding benefices and churches. It is further provided, that it shall be lawful for the commission- ers, with the consent of the bishop, in dividing any parish and appor- tioning the glebe or other endowments, to apportion also the perma- nent charges in respect thereof, or affecting the same, or the incum- bent ; and the charges so apportioned shall thereafter be borne by each division, or the spiritual person serving it. (59 G. 3. c. 134. S.9.) Districts, or Parishes. '\ If the commissioners shall think it not ex- ]icdient to make such divisions into separate parishes as aforesaid, but into ecclesiastical districts, they may report accordingly to his Ma- jesty in council, who may direct such division into ecclesiastical dis- tricts as aforesaid, to be made. (58 G. 3. c. 45. s. 21.) Bounds enrolled.] Boundaries of new parishes created by any complete division, and of ecclesiastical distincts, shall be ascertained, and the description of such bounds enrolled in Chancery and register- ed in the registry of the diocese, and notice thereof given as the com- missioners shall direct, (s. 22,) and such boundaries shall continue the boundaries of such parishes or districts, (s. 24.) District Parishes.] Such districts shall be separate and distinct 12 PARISHES. [Chap. I. district parishes, and the churches and chapels assigned to them when consecrated, shall be district parish churches, for all purjioses of eccle- siastical worship and perfonnance of ecclesiastical duties, and as to aU nian-iages, christenings, churchings, and burials, and the registry thereof. And in relation to all fees, oblations, and offerings, and as to all other purjjoses. (s. 24.) But such div isions are not to affect any lands, glebe, tithes, moduses or endowments of the original church, (s. 30,) nor any poor or other parochial rate, or the persons interested therein, except church rates, as regulated by the act, s, 31. See " Churchwardens," post. Subject to same Laws.l All acts, laws, and customs, relating to pubUshing banns of maniage, maiTiages, christenings, churchings, and burials, and the registering thereof, and to all ecclesiastical fees, obla- tions or offerings, shall apply to all districts, and consolidated or dis- trict cha])elries, and divisions of any parishes, or extra-parochial places, whereof the boundaries shall be enrolled in Chancery under the pro- visions of these acts, and in the churches and chapels whereof banns shall be allowed to be published, and mai"riages, christenings, church- ings, or burials, shall be 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.) Chapelry converted to Parish.] It shall be lawful for the commis- sioners with the consent of the ordmary, patron, and incumbent, on the next avoidance, to conveit any district chapelry, made under these acts, into a separate and distinct parish for ecclesiastical purposes, or into a district parish, where a suitable residence and competent mamte- nance can be procured and established for the minister and his succes- sors ; compensation being provided for all fees and ecclesiastical dues, which may be thus lost to the original parish. (3 Geo. 4. c. 72. s. 16.) SECTION IV. — PARISHIONERS. , Definition.] Parishioner is a very large word, and takes ui not only inhabitants of the parish, but persons who are occupiers of lands that pay the several rates and duties, thougb they are not resiant, nor do contribute to the ornaments of the church. Of Inhabitants.] Inhabitants is still a larger word: it takes in jiousckeepers, thougli not rated to the poor ; and also persons who are Sect. TV.] PARISHIONF.iflS. 13 not. housekeepers; as for instance, such who have gained a settlement, and by that means become inhabitants. Such is the language of Lord Chancellor Hardwicke, in the Attoniey-General v. Parker, (3 Atk. 577.) And upon the same principle it was held, that an allegation, of a custom in parishioners to elect a curate, is not supported by proof of such a custom in parishioners paying church rates only. (Ar- nold V. Bishop of Bath and Wells, 5 Bing. 316.) Variable Import.'] The word inhabitant varies in its import, ac- cording to the subject to which it is applied. It may be said gene- rally, that such an occupier is an inhabitant for all purposes of pecu- niary charge ; for the church rate, to which by law all inhabitants are said to be contributory ; to the repairs of the highways by the com- mon law ; to the repair of bridges, by the statute 22 H. 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 occu])iers as inhabitants within the meaning of the statute, says "that servants are not within the statute." (Per Abbott, C. J. R. v. Adlard, 4 Barn. & Cres. 778.) When Resiant.'] " The word inhabitant may mean either occu- pier or resiant ; the latter is the proper sense, when it is used to de- note persons on whom a personal (and not a pecuniary) charge is to be imposed. Per Bayley, J. (Donne v. Mart^T, 8 Barn. & Cres. 69 ; 2 Man. and Ryl. 98) ; and the same doctrine was stated by Abbot, C.J. in R. v. Adlard, (supra.) Casual Sojotirners.] Casual sojourners seem not to come within either of these descriptions ; as if a man take up a lodging for a week in a town, he shall not be charged to the repair of the church, or such like. (See Holledges case, 2 Roll. Rep. 238. 1 Bot. 123.) Power of Parishioners.] The general government of parishes, in matters of internal regulation, and the appointment of their public functionaries, is still vested, to some considerable extent, in the pa- rishioners themselves, though their authority in this respect has in many instances been abridged by local customs and statutary provi- sions. The power of the general body is exercised in pubhc assembly, usually in what are called vestry meetings ; and if a vestry is called, every parishioner is bound to attend, or if he does not, he is bound by the acts of those who do. (Clutton v. Cherry, 2 Phil. Ec. Ca. 380.) It would, however, be a needless repetition, to detail in this place their peculiar rights and privileges as against strangers, their recipro- cal duties, and the obligation^ which arc cast upon them as forming a portion of the larger municii)al division, — the county in which they are situated. The law upon these subjects respective!}', will be found in the other more appropriate parts of the work. 14 PARISHES. [Chap. I. When Incompetent Witnesses.] In legal proceedings to which parishes become parties, though the interest of indi\a(lual parishioners may be, in most cases, too minute to have any influence upon their evi- dence, yet they are generally held at common law, incompetent witnesses upon such occasions. Thus, in an action of trespass, the question bemg whether the locus in quo is a free wharf for the inha- bitants of A., an inhabitant of A. is incompetent. (Prewit v. Tilley, 1 Car. and P. 140.) Nor can an owner of lands in the parish be received as a witness upon the trial of an issue upon a question of a modus in lieu of tithes, f Jones v. Carrington, ib. 328.) Competent by Statutes.} To remedy the inconvenience which frequently arose from a too rigid obseiTance of the above rule, it was found necessary to relax it by legislative enactment, and accordingly by the 54 Geo. 3. c. 170. s. 9. it is provided, that no inhabitant, or person rated, or liable to be rated, to any rates or cesses of any district, parish, township, or hamlet, or wholly or in part maintained by such rates, or executing or holding any office therein, shall be deemed on such account an ijicompetent witness for or agamst such district, parish, &c. in any matter relating to such rates or cesses, or relating to the boundary between such district, parish, &c. and any adjoining district, &c. or to any order of removal to or from such district, or to the settlement of any pauper in such district, or touching any bastards chargeable, or likely to become chargeable to such (hshict, or touching the recovery of any smn for the charge or maintenance of such bastards, or the election or appointment of any officer or the allowance of the accounts of any officer of any such district. The provision that no inhabitant s/m// 6e deemed incompetent in any matter relating to the rates or cesses, has received a liberal construction. In an action of trespass against the overseers of a township, where the principal point was, whether the lauds in question were vested in the overseers under a local Act of Parliament, the court of Exchequer detei-mined that a rated inhabitant of the township was not incom- })etent to be a witness for the defendants, although the lands in ques- tion if vested in them, would be vested in trust for the township, and in aid of the poor rates. (Meredith v. Gilpin and others, 6 Price, 146. See Rhodes v. Ainsworth, 1 Barn. & Aid. 87 ; Rex. v. Cottrell, 2 Chit. 487.) Under Highivay Acts.} So in proceedings for offences against the highway acts, the inhabitants of the parish or place in whose behalf such proceedings are taken, are competent witnesses. (13 G. 3. c. 78, s. 76; 3 G. 4. c. 126. s. 137.) But it has been said that the inhabitants of a parish indicted for not repairing a highway, are in- competent to give evidence /or the defendants. (R. v. Wandsworth.) Sect. I.] FOUNDING OF CHURCHES. 1-5 It may however well be doubted, whether any inhabitant would be in- competent unless he were Hable to some duty in respect of the high- way in question. (See 54 G. 3. c. 170, atite, 14. 2 Stark, Ev. 673.) CHAP. II.— CHURCHES. Section I. Founding of Churches. II. Chancel. III. Aisle. IV. Pews. V. Goods and Ornaments of the Church VI. Repairs of the Church. VII. Profanation of Churches. VIII. Churchyards. IX. Burial. X. Chapels. SECTION I. FOUNDING OF CHURCHES. By whom founded."] It is a moot question among ecclesiastical writers, whether any person was at liberty upon the first planting of the Christian religion, to erect a church without the leave of the bishop. The general rule, however, seems to have been, that though the edi- fice might be raised, it could not be used for the purposes of devotion till it had been consecrated. It appears from Selden, vol. iii. pt. ii. 1121. ed. 1725, that in early times, by the pope's license, churches were founded or built by lords of manors, or other lay founders. There are, it is true, upon record, instances of licenses being granted upon special occasions, for the perfonnance of divine service before consecration, (Gibs. 190.) ; and another exception obtained in cases of extreme necessity ; for if the church was destroyed by fire, the ser- vice might be performed in chapels, tents, or in the open air, before the consecrated altar-table; (De Cons. i. 30. Inst. .1. C. ii. 18;) and in more recent times, a marriage had on the site or ruins of an old church, which was unroofed, and in part pulled down for the purposes of repair, was held valid, the publication of banns having been made in the church of an adjoining parish. (Stallwood v. Tredger. 2 Phil. Ec. Ca. 292.) 10 CHURCHES. [Chap. ir. Manner of Foundlng.'\ The ancient manner of founding churches, after Christianity had hecome established in the kingdom, was for tlie founders to make appHcation to the Lishop of the diocese, and when his license had been obtained, the bishop or his commissioners fixed up a cross, ajid set forth the gi'ound where the chm-ch was to be built; and then the founders proceeded with the building, and when the chm'ch was finished, and it was endowe;!, and not till then, the bishop conse- crated it. (Degge, part 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. But by the 21 Hen. 8- c. 13, for limiling the nmnber of chaplains, one reason there assigned why a bishop may retain six chaplains, is because he must occupy that number in the consecration of churches. Founding commemoraied by Wakes, ^c] From the dedication of churches, fairs and wakes originated, to commemorate the munificence of those who Lad 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 gi-eat as to require a refonna- tion. But that wakes and fairs were originally exempt from this cen- sure, if they were not, on the other hand, characterized by the mani- festation of a due reverence for the occasion of their institution, and the interchange of the best feelings among the people, seems to be un- C[uestionable. Attempt to suppress Wakes, §"c.] A celebrated writer on this sub- ject sa}-s, this laudable custom of wakes prevailed for many ages, till the Puritans began to exclaim against it as a remnant of Popery : and by degrees, the humour gi'ew so popular, that at the summer assizes held at Exeter in the year 1627, the Lord Chief Baron Walter and Baron Denham made an order for suppression of all wakes. And a like order was made by Judge Richardson, for the county of Somerset, for the year 1631. But on Bishop Laud's complaint of this inno- vating humour, the king commanded the last order to be reversed, which Judge Richardson refusing to do, an account was required from the Bishop of Bath and Wells, how the said feast days, church ales, wakes, and revels, were for the most part celebrated and observed in his diocese. Wakes, Certificate in their favour.'] The account goes on to state, that on receipt of the above instructions, the bishop sent for and ad- vised Avith seventy-two of the most orthodox and able of his clei-gy, who certified under their hands, that on these feast days, (which gene- rally fell on Smidays,) the service of God was more solemnly per- formed, and the church nuich better frequented, both in the forenoon and afternoon, than on any other Sunday in the year ; that the people Sect. I.] FOUNDING OF CHURCHES. 17 very much desired the continuance of them ; that the ministers did in most places do the like, for these reasons, viz. — for preserving the me- morial of the dedication of their several churches, — for civilizing the people, — for composing differences by the mediation and meeting of friends, — for increase of love and unity by these feasts of charity, and for relief and comfort of the poor. On the return of this certificate. Judge Richardson was again cited to the council table, and peremptorily commanded to reverse his fonner order. After which it was thought fit to reinforce the declara- tion of King James, when perhaps this was the only good reason as- signed for that unnecessary and unhappy license of sports : " We do ratify and publish this our blessed father's decree, the rather because of late in some counties of our kingdom, we find that under pretence of taking away abuses, there hath been a general forbidding, not only of ordinaiy meetings, but of the feasts of the dedication of churches, commonly called wakes." Decline of Wakes, iSfc] However, by such a popular prejudice against wakes, and by the intermission of them in the confusions that followed, they are now discontinued in many counties, especially in the east, and some western parts of England ; but are commonly ob- served in the north, and in the midland counties. (Ken. Par. Ant. 609 — 614.) And in many instances, where churches or chapels have been erected within the last centiu-y, a similar commemoration has been annually celebrated, though discountenanced by the munici- pal authorities, on account of the disorders and profligacy which often attend them. Increase of Churches.'] The number of churches was augmented from time to time, chiefly by the piety of indiAdduals, till the practice of bequeathing their property to pious uses was encou- raged by the priests to such an alanning extent, that tlie statutes of mortmain were passed to prevent the continuance of the evil. In the late reign, however, several acts of Parliament were 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 united church of England and Ireland are observed, or any house of residence, &c. &c. (See 43 G. 3. c. 108 j 51 G. 3. c. 115; 52 G. 3. c. 161.) And a considerable addition has since been made under the powers of the 58 G. 3. c. 45 ; 59 G. 3. c. 134 ; and 3 G. 4. c. 72, the prin- cipal provisions of which will be found incoq^orated under the several titles! to which they respectively belong. 18 CHURCHES. [Chap. IT. Newly-created Benejices.] The churches built or acquired under these acts, and appropriated to distinct parishes', (see ante, p. 10,) are to be perpetual curacies, and considered as benefices presentative so far only that the license thereto shall operate in the same manner as insti- tution to any such benefice ; and the incumbents thereof shall have per- petual succession, and shall 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, shall be subject to all jurisdictions and laws, and to lapse on neglecting to no- minate an incumbent for six months, as in cases of actual benefices. (58 G. 3. c. 45. s. 25.) The laws relating to marriages, christenings, churchings, and bu- rials, and the registering thereof, and to fees, oblations, or offerings, shall apply to distinct parishes and to district parishes, (see ante, p. 11,) to be made under the act, when complete, after avoidance of the existing incumbents, and to the churches and chapels thereof, and to the eccle- siastical persons serving them, in like manner as if they had been an- cient separate parishes and parish chm*ches. (s. 27.) Existing Incumbency.'] All churches built or acquired under 58 G. 3. c. 45, or 59 G. 3. c. 134. s. 12, whether belonging to paiishes com- pletely divided, or to district paiishes, shall, after consecration, become distinct benefices and churches for all ecclesiastical pui-poses. Provided that during the existing incumbency such chm-ches shall be served by stipendiary curates, appointed by the existing incumbent, and subject to all the laws relating to stipendiary curates, except as to assigning salaries to them by the bishop ; and such existing incumbent shall, until avoidance, continue to hold all the churches of the divisions of his parish, as if they were one church, unless he shall voluntarily re- sign one or more of them ; any statute against plurahty of benefices, or other law to the contrary notwithstanding. No chapel built or acquired under the 58 G. 3. c. 45, in any dis- trict parish, made so for ecclesiastical pui-jjoses, under the act, and which shall not be made the church of such district, shall be a pei'pe- tual curacy or benefice, presentative under said act. (59 G. 3. c. 134. s. 19.) SECTION II. CHANCEL. Whence so called.] Chancel, cancellis, seemeth properly to be so called a cancellis from the lattice-work partition betwixt the choir and the body of the church, so fi-amed as to separate the one from the other, but not to intercept the sight. (1 Bum. Ec. L. 342.) By the Sect. II.]. ' CHANCEL. 19 rubric, before the Common Prayer, it is ordained, that the chancels shall remain as they have done in tunes past ; that is to say, distin- guished from the body of the church in manner aforesaid ; and though, at the Refonnation, the King and Parhament yielded so far as to allow the daily semce to be read in the body of the church, if the ordinary thought fit, yet they would not suffer the chancel itself to be taken away or altered. (Gibbs 199.) Chancel inalienable.] Previously to the act for the dissolution of monasteries, the rector could not have alienated any part of the chan- cel or church without the consent of the ordinary. In that act (31 Hen. 8. c. 13. s. 4.) there is a saving clause, leaving the right as it existed before, and the chancel therefore is still inalienable by the rector, and, consequently, a grant by a lay impropriator of part of the chancel to A his heirs and assigns, is not valid in law. For if the rector might convey in this way to one, he might to fifty persons ; it might even enable him to desecrate this part of the church, where particular parts of the service are required to be performed. And it is inconsistent either with the duty of the ordinary or the rector, to alienate any part of the chancel in this manner. (Clifford v. Wicks, 1 Barn, and Aid. 498.) Seats in Chancel.] Dr. Gibson asserts, that the seats in the chancel are under the disposition of the ordinary in like manner as those in the body of the church. And that in one of our records in Archbishop Grindal's time we find a special licence issued for the erectmg seats in the chancel, together with the rules and directions to be observed therem. (Gibs. 200.) And Dr. Watson argues to the same puqjose, although the law (he says) seems now to be settled to the contraiy. (Wats. c. 39.) In Hall V. Ellis, Noy R. 133, it was resolved by the court of King's Bench, that the parson or rector impropriate is entitled to the chief seat in the chancel, but that by prescription another parishioner may have it. (See also Johns. 264.) Vicar's Seat.] In some places where the parson repairs the chan- cel, the vicar, by prescription, claims a right of a seat for his family, and of giving leave to bury there, and a fee upon the burial of any corpse. ('Johns. 242.) Before the Refonnation, the hours of the Bre- viary were to be sung or said in the chancel, by the (express words of a constitution of Archbishop Winchilsea, on Sundays, festivals, and other days, by the vicar, with the consent and assistance of all the clergymen belonging to the church, which were the ecclesiastical family of the vicar. Hence it is evident that all vicars had a right of sitting there before the Reformation, and, by consequence, must c 2 20 CHURCHES. — AISLE. [Chap. II. retain this right still, unless it appear that they have quitted it. But if they have not for forty years past used the right, this breeds a pre- scription against them in the ecclesiastical courts. (Johns. 243.) So that it is clear the use of the chancel was entirely in the Adcar, whoever repaired it; and thus he acquired a right of receivino- what fees were due on such occasions, and the Reformation left the rights of parson and vicar as it found them. (Johns. 244.) Great and lesser Chancels.'] It is, therefore, a very groundless notion «ith impropriators, that they have the same right in the gi-eat chancel that a nobleman has m a lesser. These lesser chancels are supposed to have been erected for the sole use of these noble persons. (See Chfford v. Wicks, ubi supra.) Whei'eas it is clear the great cliancels were originally for the use of clergy and people, but espe- cially for the celebration of the euchaiist, and other public offices of religion, there to be performed by the curate and his assistants. SECTION III. — AISLE. Whence so called.] Aisle (ile) is said to proceed from the French word aile, (ala,) a wing ; for that the Roman churches were built m the fonn of a cross, mth a nave and two ivings. The word nave or naf is from the Saxon, and signifieth properly the middle of a wheel, being that part in which the spokes are fixed, and is from thence transfeiTed to signify the body or middle part of the church. Aisle may be private Property.] As the chancel seems to be pe- culiarly the part of the church in which the incmnbent, or parson, has an especial interest, so the aisle is frequently distinguished as belong- ing either wholly or in part to private families or individuals, or rather to particular estates within the parish ; the owners of which, it is pre- sumed, originally erected the aisle for the accommodation of their household, which then successors in the estate claim as appurtenant to the ancient mansion or dwelling-house. But in order to complete this exclusive right, it is necessaiy, not only that it should have ex- isted immemorially, but that the owners of the mansion, &c. in re- spect of which it is claimed, should have from time to tune 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 auind 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 intemieddle therewith. And residence hi the parish is not necessary to this right. (Gibs. 198.) Sect. IV.] PKvvs. 21 Seats in Aisle.l It has been held, that a seat m an aisle may he prescribed for by an inhabitant of another parish. (Gibs. 198, Fuller V. Lane, 2 Add. R. 427; Barrow v. Kew, Siderf, 361.) And it has also been detennined, that a seat in an aisle may be prescribed for as appurtenant to a house out of the parish, (Davis v. Witts, FoiTest's, R. 14,) though not for a seat in the nave of a church, (ib.) 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, with- out reparation, doth not gain any peculiar 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, ap- point whom he pleaseth to sit there. (Gibs. 197, Frances and Ley, Cro. Jac. 366-604.) Remedy upon Intrusion,'] It follows, that when any person hath good title to such aisle, if the ordinary doth place another person therein with the proprietor, the projirietor may have his action ujjon the case against the ordinary ; and if he be impleaded in the spiritual court for the same, a prohibition will he ; or if any private person doth sit therein, or keep out him that hath the right or doth bury his dead there without his consent, an action upon the case doth well lie for the proprietor. (Wats. c. 39.) But no such title can be good, either upon prescription, or upon any new grant, by a faculty from the ordinary, to a man and his heirs, but the aisle must always be su]?- posed to be held in respect of the house, and will always go with the house to him that inhabits it. (Hussey v. Leigh ton, 12 Co. 106 ; Crook V. Sampson, 2 Keb. 92, 2 Bulst. 150 ; Ban'ow v. Keen, 1 Sid. 88.) SECTION IV. — PEWS. Ancient Mode of Worship.] In the construction of churches hi fonner tunes, the primary object seems to have been to facilitate and display the impressive grandeur of the Roman Catholic ceremonies. The sei-viccs of religion were regarded as the peculiar province of its ministers, in which the people were not invited to participate ; and pubhc worship was conducted as a sublime exhibition, calculated to impress the feehngs and stimulate the imagination of the spectators, without at the same time diffusing amongst them a consciousness that they were ccpially interested, and engaged with those ostensibly eni- l»loycd, in one common act of devotion. 22 CHURCHES. [Chap. II. No Petes formerly. "l This may account for the absence in our cathedrals, and other ancient ecclesiastical edifices, of any fixed and regularly constructed accommodation for the laity, as an essential part of the building. Until about the period of the Reformation, no seats were allowed, nor any distinct apartment in the church assigned to distinct inhabitants, except for the lord of the franchise, or some other eminent persons. The general seats that were provided were moveable, and the property of the incumbent, and thence in all respects at his disposal ; and they were frequently bequeathed by incumbents to their successors, or others as they thought fit. This is coiToborated by the fact, that the common law books of an earlier period mention but two or three cases upon this subject, and those relating to the chancels and seats of persons of great quahty. (See Johns. 175, Ken. Par. Ant. 596.) By ivhom Erected and Repaired.'] The general charge of erecting seats in churches, and of keeping them in repair, lies upon the pa- rishioners, unless they be reUeved by any particular person being chargeable by prescription, to rebuild or repair the same. (Degge, P. 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 ai"e all en- titled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the ofliicers, and subject to the controul of the ordinary. Neither the minister, nor the vestry, have any right whatever to interfere fldth the churchwardens, in seatmg and arranging the parishioners, as often erroneously supposed : at the same time, the advice of the minister, and even sometimes the opmions and wishes of the vestry, may be fitly invoked by the chm-chwardens ; and, to a certain extent, may be reasonably deferred to in this matter. The parishioners, indeed, have a claim to be seated according to their rank and station ; but the churchwardens are not, in providing for this, to overlook the claims of all the parishioners to be seated, if sittings can be afforded them. Accordingly they are bound in par- ticular, 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. R. 425.) Upon a person quitting the parish, the right to use a seat in the body of the church, whatever Sect. IV.] PEWS. ' 23 was the nature and origin of that right, is at an end, because he has ceased to be a parishioner. (i7>. 427, Byerley v. Windus, 5. Barn, and Cres. 18.) Renting or Purchasing Seats.^ Every parishioner has a right to a seat in the church without any payment, either as a purchase, or as rent for the same ; and if necessary, occupiers of pews, who are not pa- rishioners, having no prescriptive right therein, may be put out by the churcliwardens, to enable them to seat parishioners. And though such occupier has purchased the seat, and it was erected under a facuUy containing a clause, permitting the party erecting the same to sell it, this will not avail against the common law right of parishioners, for such permission in the faculty is illegal. The practice of making such sales may have prevailed frequently, but it has constantlg been discountenanced by the court. (Walter v. Gunner and Drury, 1 Hagg, R. 314.) And it is clear that extra parochial persons cannot establish a right to seats in the body of the church, ivithout a prescrip- tive title ; and it is doubtful whether they can establish such a claim hy prescription. (Byerly v. Windus, 5 Barn. & Cres. 1 ; 7Dowl. & Ryl. 564. ) But in a case decided in the Exchequer before the above, though not published till afterwards, it was held that a pew in the body of the church may be prescribed for as appurtenant to a house out of the parish. And Macdonald, C. B. observed, it was very probable that the owner of the house, in respect of which the pew was claimed, had built or endowed the church, and that the house, though now not within the present boundaries of the parish, was formerly within the ecclesiastical limits of the church, before they were abridged and naiTowed. (Lousley v. Hay ward, 1 Younge & J. 583, post, p. 26.) Galleries.'\ When the number of parishioners increase, so that the seats are insufficient to accommodate all who apply for them, the parish is bound, and may be compelled by ecclesiastical censures, to provide against these inconveniences ; and therefore, upon an application for a faculty to erect a gallery in the parish church, the court will consider the grounds of the application, although it is alleged that a great majority of the inhabitants disapprove of it. For the court may refuse the whole parish joined together, or may grant, if it appears necessary, a prayer, upon the application of one against all the rest. But though the court is not bound by the wish of the majority, it will pay great attention to it ; and the measure should be regularly submitted to the consideration of the vestry, in the first instance ; and if it is then approved, though very few parishioners attend, they have the power of the parish delegated to them; and unless it is after- wards clearly made out that a gallery is unnecessary, or that it is 24 CHURCHES. [Chap. II. highly inexpedient, the court will decree the faculty. (Groves and Wright V. the Rector of Homsey, &c. 1 Hagg R. 188.) But if more pews or galleries be necessary, it is said to be agreed that the churchwardens cannot erect them of their own head ; some say it cannot be done without the license of the ordinary ; and it is clear if there be a dispute whether more pews are necessary, or where they shall be placed, the ordinary is sole judge in that case. But if the incumbent, churchwardens, and parishioners do unanimously agree that more pews are necessary, and that they shall be fixed in such a place, it doth not seem that there is any necessity for the ordinary's interposition : for there can be no need of a judge where there is no controversy. (Johns 163. Ayl. Par. 484.) Distribution of Seats-I The distribution of seats rests >vith the ordinary, or bishop, who may place and displace whomsoever he pleaseth. (2 Roll. Abr. 288.) And the churchwardens, as his offi- cers, are to place the parishioners according to their rank and station ; (Pettman v. Bridger, 1 Phil. Ec. Ca. 323 ;) and hence it is, that if any seat, though affixed to the freehold, be taken away by a stranger, the churchwardens, and not the incumbent, may have their action against the wrong-doer. (Wats, c. 39.) The primary authority of appointing what persons shall sit in each seat, being in the ordinary, (3 Inst, 202,) he is to take care to order all things appertaining to divine senice, so that there be no conten- tion in the church, and that all things be done decently, and in order to give precedence to such as ought to have it. (Wats. c. 39.) And his officers for this purpose, the churchwardens, are subject to his control, if any complaint should be made against them. (Pettman v. Bridger, 1 Pliil. Ec. Ca. 323.) Intermixture of Families.^ In the Homsey case (ubi supra) it was objected against building a gallery to accommodate parishioners who had appUed for seats, that the churchwardens might put different families into the same pew, as the pews were not appropriated by any faculty, and would afford more sittings than were then occupied ; but Lord Stowell said they might be appropiated by prescription, or by possessory right on allotment by the churchwardens ; and a prescrip- tive title cannot be altered by any authority, nor a possessory title by the churchwardens alone, though it may be by the ordinary. And he intimated, that unless there was am})le room, it would be improper to put mdividuals of different families in the same pews, which might produce contention and mconvenience. (See also Tattersall v. Knight, 1 Phil. Ec. Ca. 232.) Customs as to Ordering Seats.] By custom, the churchwardens Sect. IV.] PEWS. 25 may have tlie ordering of the seats, as in London, which by the like custom may be in other places. (Wats. c. 39.) So a custom tune out of mind of disposing of seats by the chui'ch- wardens, and major part of the parish, or by twelve or any particular number of the parishioners, is a good custom, and if the ordinary in- terpose, a prohibition will be granted. (Gibs. 198.) But the church- wardens must show some particular reason why they are to order the seats exclusive of the ordinary; for a general allegation, that the parishioners have used to build and repair the seats, and that by rea- son thereof, the churchwardens have used to order and dispose of them, is not sufficient to take away the ordinary's power herein. (Wats, c. 39. Presgrove v. Shrewsbury, 1 Salk. 167, vide Gibson, 198. See 2 Rol. Rep. 24.) Exclusive right to Pew-I But both the ordinary and the church- wardens may be excluded from exercising any right in the disposal of a pew, where an individual has acquired an absolute and exclusive right therein. Still, to exclude the jurisdiction of the ordinary, it is necessary that the person claiming a pew, should shew a faculty or a 'prescription, which supposes a faculty, time out of mind, the faculty itself being lost. (Tattersall v. Knight, 1 Phil. Ec. Ca. 237.) Still 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 by which a faculty is presumed ; but as to personal property in a pew, the law knows of no such thing. (Hawkins v. Compeigne, 3 Phil. Ec. Ca. 16.) It has been held that the priority in the seat, as well as the seat itself, may be claimed by prescription, and that an action on the case lies for it at common law. (Carleton v. Hutton, Noy, 78. Latch, 116.) By Faculty.] Faculties appropi'iating certain pews to certain in- dividuals, in different forms, and with different limitations, have been granted in fonner times with too great facility. The appropriation has sometimes been to a man and his family, " so long as they con- tinue inhabitants of a certain house in the parish." The more mo- dern fonn is, " so long as they continue inhabitants of the parish." The first of these is, perhaps, the least exceptionable form. A third sort of faculty, not unusual after churches have been new jiewed, either wholly or in part, appears to have been a faculty for the appropriation of certain pews to certain messuages or farm-houses : the probable origin of most prescriptive rights to particular pews. Some in- stances there are, too, of faculties at large ; that is, appropriating j)ews to persons, and their families, without any condition annexed of resi- dence in the parish. But such faculties are, so far at least, merely 26 CHURCHES. [Chaj). II. void, that no faculty is deemed either in the spiiitual courts or at common law, good, to the extent of entitling any person who is a non-parishioner to a seat even in the hodxj of the church. (Fuller v. Lane, 2 Add. Rep. 426.) But see Lousley v. Hayward, 1 Younge & J. 583. Ordinaries at the present day are bound not to issue faculties ap- propriating pews to individuals, but under special circumstances. (Woollocombe v. Ouldridge. 3 Add. Rep. 1.) By Prescription.] To support a prescriptive right to a pew, the mere presumption of a faculty having been anciently granted and since lost, is not sufficient, \rithout some evidence on which a faculty can reasonably be presumed. The strongest evidence of that kind, is the building and repairing time out of mind ; for mere repairing for thirty or forty years, will not exclude the ordinary. The posses- sion must be ancient, and going beyond memory, though not the high let/al memory. (Per Ld. Stowell in Walter v. Gunner and Drur}% 1 Hagg. R. 322.) By the united authority of the common and ecclesiastical law, it has been held that a prescription for a seat in the body of the church, as appurtenant to a house out of the parish, cannot be sujjported. See Fuller v. Lane, (ubi supra.) Byerley v. Windus, (ante, p. 23.) But in a case decided before those last mentioned, though not reported till some time aftenvards, it was held, in the Court of Exchequer, that a pew in the body of a church may be prescribed for as appurtenant to a house ont of the parish. And the chief baron Macdonald is reported to have said, "The boundaries of parishes were settled long after the foundation of chm"ches ; and those ecclesi- astical districts belonging to churches at their first institution, have been since much varied, and in many cases abridged and narrowed when new churches were built. How, then, can we now say, that the owners of the house or the estate, in respect of which the pew is claimed, did not build or endow the chmxh, or some part of it ; or that this house, though now not \yithin the parish, according to its present boundaries, was not fonnerly within the ecclesiastical limits of the chmxh. Very probably it was so. The distinction between a prescription in a house out of the parish, for a pew in an aisle, but not in the body of the church, is merely made a doubt or question in some of the books ; but there is no case in support of it ; and there is no distinction in the reason of the thing itself. (Lousley v. Hay- ward, 1 Younge & J. 583, ante, p. 23.) Occupying and Repairing.'] If any repairs have been required within memon^', they must be proved to have been made at the ex- l)ense of the party setting up the prescriptive right. The onits and Sect. IV.] PEWS. 27 benejicium go together. Mere occupancy does not prove the right ; for though in country parishes the same famiUes occupy the same pews for a long time, they still belong to the parish at large, unless the inhabitants of a particular house, (not the owners of particular lands) have repaired the pew. What might be the effect of a very long occupancy, where no repairs have been necessary, seems unde- cided. (Pettman v. Bridger, 1 Phil. Ec. Ca. 325.) An old entry in a vestay book signed by the churchwardens, stating that a pew had been repaired by A, in consideration of his using it, is evidence for a person claiming the pew under A. (Price v. Littlewood, 3 Camp. 288.) Consideration for Prescription.'\ If a person prescribe that he and his ancestors, and all they whose estate he hath in a certain mes- suage, have used to sit in a certain seat in the nave of the church for time out mind, in consideration that they have used, time out of mind, to repair the said seat, and the ordinary remove him from this seat, a prohibition lieth ; for this is a good prescription, and by intendment there may be a good consideration for the commencement of this prescription, although the place, where the seat is, be the freehold of the parson. But if he prescribe generally, without the said consi- deration of repairing the seat, the ordinary may displace him. (2 Roll. Abr. 288, Walter v. Gunner and Drury, Pettman v. Bridger, ubi supra.) Seats go with the House.} But the ordinary cannot grant a seat to one and his heirs ; for the seat does not belong to the person, but to the house, for otherwise, when the jierson goes out of the town to dwell in another place, yet he shall retain the seat, which is unrea- sonable, (Brabin. v. Tradum, Poph. R. 140, 2 Roll. Abr. 287, Stocks V. Booth, 1 T. R. 432. And in Langley v. Sir Thos. Chute, Raym. Rep. 246, a prohibition was refused to a libel for the sole use of a pew, to which the churchwardens would have appointed ano- ther person than the person appointed by the ordinary, because (per 3 of 4 J.'s,) the ordinary hath jurisdiction, and the churchwardens cannot justle out his authority, when the privilege is claimed only for defendant and his family ; and if the plaintiff is giieved by the sentence, he may appeal ; for the common law court may deteiTnine a point on the canon law, if the party may appeal. (May v. Gilbert, 2 Buls. Rep. 151.) 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 of the pew, and not the owner of the esta te ; and it may be transferred with the messuage. (Woollocombe 28 crfuRCHES. [Cliap. II. V. Ouldridge, 3 Add. R. 6.) And Lord Kenyon said he had seen a faculty for exchanging seats in a church, which were annexed to houses. (Stocks v. Booth, 1 T. Rep. 431.) Reparation pleaded.] The reparation of the pew by the person pleading such prescription, and praying a prohibition, must be alleged in pleading, because the ordinar}^, in the body of the church, prima facie hath the right, and nothing but such private reparation can divest him of that right, notmthstanding possession and use time out of mind. (Woollocombe v. Oukhidge, 3 Add. Rep. 6.) But in Pett- man v. Bridger, 1 Phil, Ec. Ca. 327, Su: J. NichoU thought the defend- ants plea, that the pew had been, time immemorial, annexed to his house, was sufficient, according to the practice of those courts; as it must be considered as including the averment, that the pew had been used, occupied, and repaired from time immemorial. When not pleaded.] It hath been held, that in two cases repara- tion need not be particularly pleaded; first, in case of prescription for an aisle, because, by the common law, the particular persons are sup- posed to repair, and so need not show it ; and the foundation of the right may be for other causes than repairing, as for being founder, or having contributed to its building. The second case, (which hath often been declared for law, is where an action upon the case is brought against one who disturbs another in his seat, which disturber being a stranger, and having not any right prima facie, the possession of the other is a sufficient ground of action, and it needs not be alleged that hereijairs. (Gibs. 197, 198; 2 Roll. Rep. 24.) Thus in Kenrick v. Taylor, 1 Wils. R. 326, which was a spe- cial action upon the case, against the defendant for disturbing the plaintiff in his pew, which he claimed by prescription, as appurtenant to his messuage in the parish, the Court said, that this being a pos- sessory action against a stranger, and a mere wrong-doer, the plaintiff was not obliged to prove any repairs done by himself or others, whose estate he hath ; for it is a rule in law, that one who is in possession need not show any title or consideration for such possession, against a wrong-doer. But it is otherwise, where one claims a pew or an aisle against the ordinary, who undoubtedly hath prima facie the disposal of all the seats in the church ; and against bun, a title or consideration must be shown in the declaration, and proved. (See Pettman v. Bridger, 1 Phil. Ec. Ca. 325.) Presumptive Evidence.] Possession for thirty-six years of a pew, claimed as appurtenant to a messuage in the parish, was holden to be presumptive evidence of a prescriptive right, in a case where the church had been rebuilt about forty years before. (Rogers v. Brooks, Sect. IV.] PEWS. 29 1 T. R. 431.) Yet, in a later case, it appeared that the scat itself was built thirty-five years before, for the accommodation of the plaintiff, and to put an end to a dispute between two families ; this proof was holden to rebut the presumption which would otherwise arise from so long a possession. (Griffith v. Matthews, 5 T. Rep. 296.) And though a possessory right is sufficient to maintain a suit against a mere disturber, it is not as against the churchwardens and ordinary ; though if the churchwardens causelessly displace persons in possession, the or- dinary will replace them. (Pettman v. Bridger, 1 Phil. Ec. Ca. 316.) Cannot let to Non-residents.'] Individuals having pews appurte- nant to their houses, cannot let them to non-resident persons, and thus by contract defeat the general right of the parish. (Walter v. Gunner and another, 1 Hagg. Rep. 317.) Pulling down Seats.'] If any persons shall presume to build any seat in the church without license of the ordinary, or consent of the minister and chm'chwardens, or in any inconvenient place, or too high, it may be pulled downi by order from the bishop, or his arch- deacon, or by the churchwardens, or by the consent of the parson ; but if any presume, without such authority, to cut or pull down any seat annexed to the church, the parson may have an action of tres- pass against the misdoer, though he fonnerly set it up. (Wats. c. 39.) " All persons ought to understand that the sacred edifice of the church is under the protection of the ecclesiastical laws, as they are administered in thtse courts ; that the possession of the church is in the minister and churchwardens ; and that no person has a right to enter it when it is not open for divine service, except with their per- mission, and under their authority. That pews already erected cannot be pulled down without the consent of the minister and churchwardens, unless after cause shown by a faculty or license from the ordinary." (Sir J. Nicholl in Jarratt v. Steele, 3 Phil. Ec. Ca. 169.) If any seats annexed to the church be pulled down, the property of the materials is in the parson, and he may make use of them if they were placed in the church by any one, of his own head, without legal authority ; but for the seats erected by the parishioners, by good au- thority, it seemeth that the property of the materials, upon removal, is in the parishioners. (Degge, P. 1. c. 12.) Suits where triable.] The ecclesiastical jurisdiction does not ex- tend to the trial of customs, or prescriptions ; and, consequently, in all cases of prescriptions for seats, the matter is solely detenninable at common law. (Degge P. I.e. 12, Wats. c. 39.) And, therefore, where W. was sued for disturbing a person in his seat in the church, it was suggested for a prohibition, that he ]nirchased an ancient house 30 CHURCHES. [Chap. II. with this seat belonging to it, to hun and his heirs, which was pleaded below. Per curiam. " This is enough to show the temporal right is in question," and a prohibition was awarded. (Witcher v. Chesham, 1 Wils. 17.) The spiritual court may proceed for a disturbance in a seat upon libels gi'ounded on prescription, where the prescription is 7iot denied, as in cases for a modus or a pension by prescription. (Jacob v. Dalton, 2 Salk. 551, Lord Raym. 755.) So that such suits are not absolutely coram nonjudice. And the reason why a prohibition is granted, where a custom or prescription is denied, seems to be, because the ecclesiastical law allows of different times in creating customs or prescriptions, and generally of less time than is allowed of by the common law, which admits no custom or prescription to be valid, the commencement whereof is shown to be since the reign of Richard the First, or withm legal memory. Therefore, the common law will not suffer the spiritual courts to try prescriptions, whereby they might affect and charge persons inheritances, by adjudging them to be good which are no prescriptions. (Wats. c. 39.) Action against Disturber.] Trespass will not Ue for entering a pew, because the plaintiff has not the exclusive possession ; the pos- session of the church being in the parson. (Stocks v. Booth, 1 T. R. 430 ; Cross v. Salter, 3 T. R. 639 ;) and, in Mainwaring v. Giles, Abbott C. J. said, " In no case has a person a right to the pos- session of a pew analagous to the right which he has in his house or land ; for trespass would lie for an injury to the latter, but for an intrusion into the former, the remedy, undoubtedly, is by an action on the case. That furnishes strong reason for thinking, that the action is maintainable only on the ground of the pew being annexed to the house as an easement ; because, an action on the case is the proper form of remedy for the disturbance of the enjoyment of an easement annexed to land, as in the case of a right of way, or a stream of watej-. I am of opinion, that this being a pew in the body of the church, and not in a chancel, which might be the freehold of an in- dividual, no action at common law can be maintained for a disturb- ance, because the pevv is not annexed to any house." (5 Bam. and Aid. 361.) SECTION V. GOODS AND ORNAMENTS OF THE CHURCH, Ornaments in general.} By the 1 Eliz. c. 2. s. 25, such ornaments of the church, and of the ministers thereof, shall be retained, and be Sect, v.] GOODS AND ORNAMENTS OF THE CHURCH. 31 used as was in the Cliurch 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 thu'd year of the same reign, a commission was granted to refonn the disorders of chancels, and to add to the ornaments of them, by ordering the commandments to be placed at the east end. (Gibs. 201 ; see also Lind. 52.) And the statute of circumspecte agatis, 13 Ed. 1. St, 4, gives its sanction to the church being conveniently decked, and adds, " in whicii cases the spiritual judge shall have power to take knowledge notwith- standing the king's prohibition." (See 2 Inst. 489.) Churchivardens care therein.'\ By canon 85, the churchwardens or questmen shall take care that all things in the church be kept in such an orderly and decent sort, without dust or any thing that may be either noisome or unseemly, as best becometh the house of God, and is prescribed in an homily to that effect. (See " Churchwar- dens.") Communion Table J] The 82d canon appoints, that communion tables shall, from time to time, be kept and repaired in sufficient man- ner, at the charge of the parish. In the case of Newson v. Bawldry, the court held, that where the parishioners at a meeting had resolved to repair the chancel and rails about the communion table, which had been anciently placed in the ■chancel, and to replace the table there, and raise the floor some steps higher for the sake of greater decency ; that they might do these things, for they are compellable to put things in decent order. And as to the degrees of order and decency there is no rule, but as the parishioners, by a majority, do agree ; and a rate for this purpose, it seems, may be enforced. (Far. 70, Burn. Ec. L. 368.) Pulpit. '\ In ancient times the bishops preached standing upon the steps of the altar. When afterwards it was found more convenient to have pulpits erected for that pui"jD0se. The churchwardens or questmen, at the common charge of the parishioners, were required to provide a comely and decent pulpit, to be set in a convenient place, within every chiu'ch, by the discretion of the ordinary of the place. (Ayl. Par. 21. Canon 83.) Reading Desk.'] A convenient seat must also be made at the charge of the parish, for the minister to read service in. (Canon 82.) Font.] By a former constitution, too much neglected in many places, a font of stone shall be placed in every church and chapel, where baptism is to be ministered in the ancient usual places. (Canon 81. Gibs. 360.) 32 CHURCHES. [Chap, II. Chest for AlmsJ] The churchwardens are required, by Canon 84, to provide, at the charge of the parish, a strong chest with a hole in the upper part thereof, having three keys ; 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 time being ; which chest they shall set and fasten in the most convenient place, to the intent the paiishioners may j)ut 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 then* most poor and needy neighbours. Chalice, Wine, ^c] It is also the duty of the churchwardens, at the charge of the parish, to provide a chalice, or more if necessary, (Lind. 252,) a sufficient quantity of fine white bread, and of good and wholesome wine for the communion, which wine is requu-ed to be brought to the communion table in a clean and sweet standing pot, or stoop of pewter, if not of purer metal. (Canon 20.) Books, Bells, Bier, ^c] There must also be provided the largest Bible, and a true printed copy of the [present] book of Common Prayer, (13 & 14 Car. 2. c. 4,) at the costs and charges of the parishioners, of every parish church and chapehy, cathedral church, college, and hall. Gibs. 202.) And the book of homilies may also be provided in like manner, (Canon 80,) and bells and ropes, and a bier for the dead, are likewise to be furnished at the cost of the parish. (Lind. 252.) For bells are not mere ornaments ; they are as neces- sary as the steeple, which is of no use without them. (Woodwai'd V. Makepeace, I Salk. 164.) Table of Degrees.'] Canon 99. The table of degrees of marriage prohibited, shall be, in every church, pubUcly set up at the charge of the parish. Ten Commandments.'] Canon 82. The ten commandments shall be set, at the charge of the parish, upon the east end of every church and chapel, where the people may best see and read the same. And the like is directed with respect to other chosen sentences. Monuments in Churches.] Although Lord Coke says, in general terms, that it is lawful to build or erect tombs, sepulchres, or monu- ments, for the deceased, in church, chancel, chapel, or churchyai'd, jn a manner not to the hindrance of the celebration of divine service, (3 Inst. 102 — 202,) yet this must be intended by license of the bishop, or consent of the parson and churchwai'dens. (Degge. P. 1. c. 12, Wats, c. 39, Gibs, 453.) The churchwardens can have no ab- solute uncontrolled authority in this respect ; and, therefore, as- Sect, v.] GOODS, &c. or church. 33 Sliming that a custom for tliem to set up monuments of a proper de- scription in the church without the leave of the parson may lie good, yet it is too large a proposition to contend for, that, without either the consent of the rector or of their common ecclesiastical superior, they may put up any thing, however unseemly. (Beckwith v. Harding, 1 Barn, and Aid. 608.) Faculty to erect Monument.^ Though a well-estabhshed custom, or the authority of tlie rector and churchwardens may occasionally suffice, yet no j)ractice can absolutely legalize the erection of a monu- ment without a faculty ; (Seagar v. Bowie, 1 Add. R. 641 ;) for it is a general rule, that they cannot he set up without the consent of the ordinary ; (Palmer v. Bishop of Exeter, 1 Stra. 576 ; Cart, v. Marsh, 2. ib. 1080.) A faculty is in strictness requisite, though it be omitted under the confidence reposed in the minister. The consent of the incum- bent is thus taken on some occasions, and especially for monuments in the chancel. (Maidman v. Malpas, 1 Hagg. R. 208.) But he cannot grant away vaults ; this can only be done by a faculty ; and there- fore where a rector having agreed, for a pecuniary consideration, tliat the party should make and have the exclusive use of a vault in the church, and afterwards caused it to be 02)ened, and the body of another person interred therein, it was held that an action for disturb- ing the vault could not be maintained against him, as no faculty had been obtained. (Bryan v. Whistler, 8 Barn. & Cres. 288) Appeal to Metropolitan.^ 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 coirect, (Cart. v. Marsh, Stra. 1080), and the party cannot waive the appeal and apply to the court of K. B. for a prohibition instead. (Bulwer v. Hase, 3 East, 217.) Repairing Monuments.'] After monuments have been once erected, they may be repaired, 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 are bound to grant it as far as their authoritj^ extends ; and by refusing, may incur the censure of the Ecclesiastical Court ; for decency and propriety require that monuments should not remain in a state of ruin and decay. (Barden v. Calcott, 1 Hagg. Reji. 16.) Defacing Monuments.] The defacing of monuments is punishable at common law ; for the property in grave-stones, winding-sheets, coats of arms, pennons or other ensigns, placed or hung up in memory I) 34 CHURCHES. [Chap. II. of the dead, remains in the executors, who may have actions against those who break, deface, or carry them away, or an appeal of felony. (Co. Lit. 186, Cro. Jac. 367, 3 Inst. 110 ;) but if they are put up without the ordinary's consent, he may remove them. (Pahuer v. Bishop of Exeter, 1 Stra. 576.) And according to Godbolt, (279,) the churchwardens may bring an action for defacing a monument. (1 Burn. Ec. L. 373.) Images and other Things.'] If any superstitious pictures are in a window of a church or aisle, it is not lawful for any to break them without license of the ordinary ; and the offender may be bound to his good behaviour. (Cro. Jac. 367.) There are also many other articles for which no express provision is made by any special law, and therefore must be referred to the general power of the chui'chwardens, with the consent of the parishioners, and under the direction of the ordinary ; such as the erecting galleries, adding new bells, (and of consequence, as it seemeth, salaries for the ringers,) organs, clock chimes, king's amis, pulpit-cloths, hearse-cloth, mats, vestry fm-nitirre, and the like. (1 Burn. Ec. L. 374.) The consent of the parishioners is not indispensable, unless to charge the parish with any expense for neio ornaments, &c., or for their support after they have been put up. Where no charge is incurred, their approbation is not necessary, nor their disapprobation binding on the ordinary. (St. John's, Mai'gate, IHagg. R. 198; Buttenvorth v. Walker, 3 Burr. 1689.) Organs-I 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, and it may be proper to discourage them in some particular cases. In a recent instance. Lord Stowell de- creed a faculty for accepting and erecting an organ offered to a parish church, without a clause against future expenses being charged to the parish, which was rich and populous. (St. John's, Margate, 1 Hagg. R. 198. See Buttenvorth v. Walker, 3 Buit. 1689.) Property therein.] A person may give or dedicate goods to the service of religion in such a church, and deliver them into the custody of the churchwardens, by which the property is immediately changed. (Degge, p. 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 churchwardens have their action at common law, pr suit in the Ecclesiastical Court : the latter is said to be the most proper remedy, (Welcome v. Lake, 1 Sid. 281,2 Keb. 22,) unless the thing taken or injured be not strictly church property, — as the title deeds to the aflvowson, — deposited in a chest in the chiu'ch, in which case the proceeding at common law may be preferred. (Gai'dner v. Parker, Sect. VI.] UEPAIRS OF THE CHURCH. 3-J 4 T. R. 351.) And it would probably be now held, that where pro- perty of any kind, taken from a church, is sought to be recovered, or a compensation in i-espect of it obtained, the same rule must prevail. (See Starky v. Watlington, 2 Salk. 547.) And the stealing of articles from a church, though they be not such as are used for divine ser- vice, is sacrilege. (R. v. Rourke, Russ. & R. C. C. 386.) So if they be taken from the church tower, having a separate roof, but accessible only from the body of the church, it is a stealing in the church, under 7 and 8 Geo. 4. c. 29. s. 10. (R. v. Wheeler & Ors, 3 Car. & P. 585.) Alienation of Goods, ^c] By the civil law, the goods belonging to a church are forbidden to be alienated, or pawned, unless for the redemption of captives, relief of the poor in time of great famine, or for paying the debts of the church, if a supply cannot be otherwise raised ; or upon other cases of necessity or great advantage to the church. (Wood, liv. L. 142.) But by the law of England, the goods belonging to a church may be alienated ; yet the churchwardens alone cannot dispose of them without the consent of the parish : and a gift of such goods by them, without the consent of the sidesmen or vestry, is void. (Wats. c. 39, 1 Burn. Ec. L. 376.) SECTION VI. — REPAIRS OF THE CHURCH. By Parishioners.] When the bishops had the whole tithes of the diocese, a fourth part in every parish was to be aj^plied to the repair of the church ; but afterwards, the duty, as incident to the receipt of this fourth part, was transfened with it to the rectors. (Degge, p. I. c. 12.) But custom, or the common law, has cast the burden upon the parishioners, at least with respect to the nave of the church ; and in some instances of the chancel also ; which the parishioners may be compelled to observe, by proceedings in the spuitual court. (Lind. 53 ; 2 Inst. 489, 653; 3 Bla. Com. 92.) Repair of Chancel.] But generally the parson is bound to repair the chancel, if there be no custom for the parish, or the owner of some particular estate, to do it. (Gibs. 199.) And where there are both rector and vicar in the same church, they shall contribute in proportion to their benefice, unless there be a custom or order fixing to which of them it shall ajipertain. As spiritual persons, so also impropriators are bound of common right to repair the chancels ; but whether in case of neglect the spi- ritual court may pi-oceed by sequestration, (it is said they can in 3 Keb. 829,) or against the person of the layman, at common law, seems to remaui in some doubt, though the latter course ai)pcars to have had D 2 36 CHURCHES. [Chap. IT. the .sanction of the Court of Common Pleas. (2 Vent. 35 ; 2 Mod. 257 ; Wats, c. 39; Gibs. 199.) Several Impropriators.'] Wliere there are several impropriators, which is not unfrequently the case, and the prosecution is to be car- ried on by the churchwardens to compel them to repair, it is advise- al'le to obtain the sanction of the vestry to prosecute at the parish expense. The court in such case mil not settle the proportions among the impropriators, but admonish all the parties to the suit to repair the chancel, under pain of excommunication. It is not neces- sary to make every impropiiator a party, but only to prove that those against whom the proceedings are taken, have received tithes or other rectorial profits sufficient to repair it; though it may be adviseable to make as many of them parties as can be included with certainty. ( 1 Bum. Ec. K 352.) Mutual Exemptions.'] The division of the burden between the parson and the parishioners, is by consequence a mutual release of each other from that part which the other took ; and thus, repairing of the chancel is a discharge fi-om contributing to the repairs of the church ; thougli the impropriator is rateable to the chiurch for lands which are not parcel of the parsonage. (Serjeant Davie's case, 2 Roll. Rep. 211.) And therefore, when the fanner of an impropriation pleaded exemption from a parish rate, on the ground of his obligation as parson to repair the chancel, and the plea was disallowed in the spiritual court, (Slowman's Case, 2 Keb. 730, 742,) it must probably have been in reference to other possessions in the parish. (Gibs. 199.) Repairing Chapel no Exemption.] If there be a chapel of ease within a parish, and part of the parishishioners have used, time out of mind, alone to repair it, and there to marry and do all other things, except that they bury at the mother church, they are still liable to contribute to the repairs of the latter, even though they prescribe that they have time out of mind used to repair the chapel ; and by reason thereof have been discharged of the reparation of the mother church. (2 Roll. Abr. 289.) And though the chapel be three miles distant from the church, and they have always repaii'ed the chapel, and man-ied, and buried there, and have never within 60 years been so charged, this will not suffice, for they ought to show their exemption, if they have any, upon the endoivment. (2 Roll. Abr. 290. /. 10.) But, if it caiij be intended, from the facts, that the cbapehy is coeval with the church, and nei:ier contributed to the repairs of the latter, it may be exempt. (Ball v. Cross, 1 Salk. 165. ; Hobart, 66.) A Consideration Exempts.] But if the inhabitants of a chapelryJ who repair their own chapel, and perform therein all the solenniities Sect. VI.] REPAIRS OF THE CHURCH. 37 of the church, except burial, claim to be exempt by prescrijjtion, and i?how a good cause or consideralion for the exemption, as the l)ay- ment of 30s. Ad. per annum for the reparation of the mother church, (2 Rolls. Abr. 290; Wise v. Creakc,; 2 Lev. 186,) or that they have immemorially repaired part of the wall of the churchyard of the parish church at their own cost, the prescription in such case is good, and a prohibition lieth. (ib. /. 30, 45.) No Prohibition.^ By the statute of circumspecte agatis, 13 Ed. 1 , the authority of the spiritual court to punish for neglect to re2)air or adom the church is confirmed ; and therefore if a suit be there instituted for this cause, a prohibition does not lie; (Com. Dig. Prohibition, G. 2 ;) and by the church, is intended not only the body thereof, walls, windows, and covering, (Lindw. 53,) but also any public chapel annexed to it ; but this extends not to any private chapel, though it be affixed to the church, for that must be repaired by him that hath the proper (exclusive) use of it, for he that hath the profit ought to bear the burden. (2 Inst. 489.) Churchwardens' Duty therein.^ By the 85th canon, the clmrch- wardens or questmen are enjoined to take care and provide that the churches be well and sufficiently repaired, and so from time to time kept and maintained ; and although they are not charged with the repairs of the chancel, yet they are bound to see that it be not per- mitted to dilapidate and fall into decay ; and if any default be made therein, they are to make presentment thereof at the next visitation. (1 Bum. Ec. L. 357.) Parishioners' Controul.] The churchwardens may make the ordi- nary reparations of the fabric, or orijaments of the church, without (he previous sanction of the parishioners, for to this they are bound by their office, and are punishable if they neglect it; but if they propose to erect any thing new and additional, as a new gallery, where there was none before, they must have the consent of the major part of the parishioners, and also a license of the ordinary. (Groves v. Rector, &c. of Hornsey, 1 Hagg.Rep. 188; Rogers v. Davenant, 1 Mod. 237.) Enlarying or Rebuilding. "l If it be necessary to enlarge the church for the accommodation of an increased population, or if it be necessary, from its being greatly dilapidated and out of repair, to \)u\\. it down and lebuild, this can only be done by consent of the majority of the pa- rishioners, declai'ed at a meeting duly assembled upon proper notice. (Thomas v.MoitIs, 1 Add. Rep. 478.) The churchwardens mustalso take care to obtain the previous concurrence of the parish to a rate for the purpose, as they cannot, after the alterations arc made, call upon the parish to reimburse them. (R. v. Bradford, 12 East, 556. Lanchestcr V. Thompson^ 5 JVladd. R. I. — See " Church Rate.") 38 CHURCHES. [Chap. II. Demolition of Church.] Where a church was in a state of dilapi- dation, having been shut up, upon the parish being united to the adjoin- ing parish by act of Parhament, and there were no persons compellable by law to restore and uphold it, though it had been long used by a congregation of French Protestants, who paid rent for it, a faculty for taking it down unconditionally was applied for, and it was said, " The Court is disposed, on the whole, to accede to the present apphcation, unwilling as it is, upon general considerations, to sanction the utter de- molition of any building, which has something, at least, of the character of a national church." And the parties were directed to consider whether the building could not be' made subservient in some way (for instance, as a national school) to the church establishment, before the faculty actually issued. (Hollah v. St. Martin Orgars, 2 Add. Rep. 255.) SECTION VII. — PROFANATION OF CHURCHES. Arrests therein forbidden.] The 50 Edw. 3. c. 5, & 1 R. 2. c. 15, were enacted, as appears from then' respective recitals, to suppress the prac- tice of arresting " persons of holy church," against whom process had issued, " whilst they attended to divine service in churches, church- yards, and other places dedicated to God." Under these statutes, though apparently confined to clergymen, (see Tidd, 219,) it would seem, that all jjersons are protected in the places mentioned ; and in the week-days also, if attending religious service. (Pit v. Webley, Cro. Jac. 321. See 3 T.R. 739.) But the privilege applies to civil jiroceedLngs only, between party and party, and not to a warrant from a justice of the peace. (Id. ibid. Prinsor's case, Cro. Car. 602.) And if, in the case of a civil suit, the party stay in church, with a fraudulent design of eluding the process of the law, the protection ceases. But so much of both these statutes as relate to the aiTest " of per- sons in holy church," was repealed by 9 G. 4. c. 31 ; and the pro- tection of clergymen from aiTest upon civil process, in going to perform, or duiing the performance, or returning from the performance thereof, re-enacted by s. 23 : and the person making such arrest, is punishable by fine or imj^risonmet, or both. Plays in Churches.] The acting of plays in churches was frequent in this and other nations, till some time after the Refonnation. These dramatic exhibitions consisted of representations of remarkable events in Scripture history ; or, what was more agreeable to the depraved taste of their auditors, of dehneations of the corrupt manners and practices of the clergy. (Gibs, 181.) They were at length suppressed, Sect. VII.] PROFANATION OF CHURCHES. 39 and the part which the ecclesiastical authorities took m this good work is apparent from the 88th canon, which ordains that church- wardens or questmen, and their assistants, shall suffer no plays, ban- quets, musters, or any other proiane usage, to be kept in the church, chapel, or churchyard. Braivling.'] By the 5 & 6 Ed. 6. c. 4. s. 1, quarrelling, chiding, or brawling, by words only, in any church or churchyard, is punish- able by the ordinary, upon the evidence of two witnesses, by suspen- sion of the offender, if he be a layman, from the entrance of the church ; and if a clerk, from ministration of his office for so long as the ordi- nary shall think fit. The offence of brawling subsisted at common law before this statute was enacted, and a party may now proceed either on the statute or at common law. (Wenmouth v. ColUns, Ld. Raym. 850; ex parte Williams, 4 Barn, and Cres. 313; 6 Dowl. and Ryl. 373.) What is Brawling.'] It appears, that the popular notion of brawl- ing is not very strictly adopted by the courts. Thus, words spoken durmg di\dne service by a clergyman, by way of admonition, of a passionate nature, though expressed without any tone of passion, amount to this offence, and he was suspended for a fortnight. (Cox v. Gooday, 2 Hagg. R. 138. ) So, where the defendant, in answer to a cpies- tion put to hun, exclaimed, " It is a damned lie ; I do not say you are a liar, but it is a damned lie ;" he was held criminal. (Austen v. Dug- ger, 3 Phil. Ec. Ca. 122.) It seems also, that reading a " notice of ves- try," in church, during divine service, without due authority, constitutes the offence. (Dawe v. Williams, 2 Add. R. 130.) If the misconduct is not in a consecrated place, though violent and directed against the mi- nister while presiding at a meeting of his parishioners, it is not an olFence within the statute of Ed. 6 ; but it may still be an ecclesiastical offence, and punishable, especially if it be in a vestry-room, partly within the churchyard. (Williams v. Goodyer, 2 Add. Rep. 463.) Proceedings under the first section of the statute must be supjDorted by two witnesses on the specific charge ; but by the ecclesiastical law, one to the fact and one to the circumstance would be sufficient. (Ilutchins V. Denziloe, 1 Hagg. Rep. 181.) The Court will consider time and place in these cases ; for the same conduct may not amount to this offence in the vestry, which would do so in the church. ( 1 Hagg. Rep. 184.) Suspension of a parishioner " from the entrance of the church," was limited to a month only, under certain circumstances. (Chnton v. Hatchard, 1 Add. Rep. 96) ; and in Canning v. Sawkins, (2Phil. Ec. Ca. 293,) for brawling in a chancel, to three weeks, with notification in the church of such suspension, and costs hi both. And 40 CHURCHES. [Chap, II. in North aixlliitlle v. Dickson, ( I Hagg. Rep. N. S. 730,) provocation was held no defence to a snit for brawhng in a church at a vestry ineeting. Misnomer fatal.] This bemg a criminal proceeding, the office of the judge wrongly promoted by misnomer of the judge, in a copy of the articles, for this offence, is fatal. (Williams v. Bott, 1 Hagg. 1 ; Thorj) V. Mansell, ib. 4.) Punishable by Justices.] The 1 M. st. 2. c. 3, and 1 W. & M. c. 18. s. 18, provide, that persons who wilfully and maliciously disturb any minister, or the congregation, during divine service, may be ap- prehended by the constable, churchwarden, or any other person pre- sent, and taken before a magistrate, who may punish the offender. This protection extends to all religious assemblies, authorised by the several acts in favour of non-conformists, &c., (R. v. Hube, 5 T.R. 542,) and the oflender, upon conviction at the next quarter sessions, shall suffer the penalty of 40/. (52 G. 3, c. 155. s. 12. See Rex. v. Wad- ley, 4 Maul, and Sel. 508.) But where the parish clerk refused to read in church a notice respecting parish affairs, which was presented to him for that purpose, and the person presenting it read it himself, when no part of the service was actually going on, it was held that though a constable might be justified in removing him from the church, and detaining him till the ser\ice was over, yet he could not legally detain him afterwards, in order to take him before & magistrate, as the object of the person did not appear to be maliciously to disturb the congregation, or misuse the preacher. (Williams v. Glenister, 2 Barn, and Cres. 699 ; 4 Dowl. and Ryl. 217.) Striking in Church.] By the second section of the same statute, (5 and 6 Ed. 6. c. 4,) if any person smite or lay violent hands in any church or churchyard, (which includes cathedrals, Cro. Eliz. 224. 1 Leon, 248,) then, ipso facto, the offender shall be deemed excom- nmnicated, and be excluded from the fellowship and company of Christ's congregation. A threatening posture, though an assault at common law, even without a blow, is not held to be smiliug within the statute. (Jenkins v. Barret, 1 Hagg. Rep. N. S. 15. See Cro. Jac. 367, 1 Haw. 139, Ld. Raym. 850.) But it hath been holden, that churchwardens, or perhaps private persons, who whip boys for playing in the church, or pull off the hats of tho'^c who refuse to take them off themselves, or gently lay hands on those who disturb any part of divine service, and turn them out of the church, are not within the meaning of this statute. (1 Haw. 139; Hall V. Plenner, 1 Lev. 196; Sid. 301 ; 1 Saund. 14; Comb. 17; Com. Dig. Esglise, F. 2.) Sect. VII.] PROFANATION OF CHURCHES. 41 Tlioiigli the act says, the ofTencler shall be ipso facto excommuni- cated, there must be proper proof of the offence in the spiritual court, before excommunication. (1 Haw. 139; Dier v. East, 1 Vent. 146; Wilson v. Greaves, 1 Bun*. 240; Cas. temp. Hardwicke, 190.) Drawing Weapon.'] And if any person maliciously strike another with any weapon, or draw any weapon in any church or churchyard, to the intent to strike anotherwith it, he shall, on conviction by a jury, or his own confession, or two witnesses, at the assizes or sessions, be adjudged to have one of his ears cut off; and if he have no ears, he shall be burned in the cheek with the letter F., whereby he may be known for a fray -maker and fighter, and be excommunicated. (5 and 6 Ed. 6. c. 4. s. 3. SeeSonham v. Truncllc, Cro.Eliz. 919; Pcnhallo's case, Cro. Eliz. 231.) But if he take up a stone and offer to throw it, or having a hatchet in his hand, offer to strike another with it, the ollence is not within the words of the act ; for these are not such weapons as may properly be said to be drawn, as a sword or dagger. (Wats. c. 34.) In Francis v. Ley, (Cro. Jac. 367,) the Star Chamber resolved that when any one is assaulted or beaten in a church or churchyard, it is not lawful for him to return blows in his own defence, as he may else- where. Limitation of Suits.] By statute 27 G. 3. c. 4, no suit shall be brought in any ecclesiastical court for striking or brawling in any church or churchyard, after the expiration of eight calendar months from the time that such offence shall have been committed. The an- cient privilege of sanctuary was entirely abolished by the 21st James 1. c. 28. s. 7. Robbing a Church.] Robbing a church is burglary, for the church is the mansion-house of Almighty God, (3 Inst. 64.) And by the 7 and 8 G. 4. c. 29. s. 10, it is provided, that if any person break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel, shall break out of the same, every such offender, being convicted thereof, shall sulier death as a felon. Burning or destroy ing Churches, ^c] And by another statute passed at the same time, (c. 30. s. 2,) it is provided, that if any person un- lawfully and maliciously set fire to any church or chapel, or to any (•h;ipel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, every such offender shall be guilty of felony, and being convicted thereof, shall suficr death as a felon. And the 8th section enacts the same punish- ment against persons riotously assembled, demolishing, or begimiing to deinolisli, any such i>lucc' (»f puldic worship. And by the 7 and 8 42 CHURCHES. [Chap. II. G. 4. c. 31. s. 2, the damage done to the building, fixtures, furni- ture, &c. is to be fully compensated by the hundred or district within which the offence is committed. SECTION VIII. — CHURCHYARDS. Originally distant from Chirch.] It seems to be well established, that at the first erection of churches, no part of the adjacent giound was allotted for interment of the dead ; but some place for this purpose was appointed at a farther distance, especially in the case of cities and populous towns. Land, how obtained.] That this was the fact, is con'oborated by the 15 R. 2. c. 5, which after reciting, that by 7 Ed. 1. st. 2, if any reli- gious or other, whatsoever he be, shall buy, or under colour of gift or any other manner of title whatsoever, receive of any man any lands or tenements, which might come to mortmain, it shall be lawful to the king, and to other lords upon the said lands, to enter ; and then de- clares, that " now of late by subtile imagination, and by art and engine, some religious persons, parsons, vicars, and other spmtual persons, have entered in divers lands and tenements which lie adjoining to their churches, and of the same, by sufferance and assent of the tenants, have made churchyards, and by bulls of the bishop of Rome, ha\e dedicated and hallowed the same, and in them do make continually parochial burying, without license of the king and of the chief lords ; therefore it is declared in this Parliament, that it is manifestly within the compass of the said statute. (See further, as to the manner in which lands were acquired for this purpose, " Burial,'- post.) Repair of Churchyards.] By a constitution of Archbishop Win- chilsea, the parishioners shall repair the fence of the churchyai'd at their own charge. (Lind. 253.) And Lord Coke says, they ought to do it, because the bodies of the more common sort ai'e bmied there ; and for the preservation of the burials of those that were, or should have been, while they lived, the temples of the Holy Ghost. And this they ought to do by custom known and approved; and the conusance of which belonged to the Ecclesiastical Court. (2 Inst. 489.) Prescription to Repair.] But nevertheless, if the owners of lands adjoining to the churchy aixl 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 churchwardens have an action against them at the common law for the same. (2 Roll's Abr. 287, Gibs. 194.) Sect. V^III.] CHURCHYARDS. 43 For the duty rests upon the churchwardens or questman 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.) Although the statute of circumspecte agatis, 13 Ed. 1. st. 4, entitled " Certain caseswherein the king's prohibition doth not lie," directs, that if prelates do punish for leaving the churchyard unclosed, the spiritual judge shall have cognizance thereof, notwithstanding the king's prohibition. Still, if the churchwardens sue a person in the Court Christian, alleging a custom for him, and all those whose estate he hatli, to repair the fences of the churchyard next adjoining his estate, a prohibition will lie ; for this ought to be tried at the common law, inasmuch as this is to charge a temporal inheritance. (2 Roll. Abr. 287. See Cora. Dig. Prohibition, (G. 3.) 13 Co. 41.) Neglect to Repair, indictable. "[ The duty of repairing the fences of churchyards may also, it appears, be enforced by indictment; as the neglect of it amounts to a misdemeanor. However, where a vicar was indicted for such non-repair, and against whom it was alleged that the vicar had been immemorially bound to repair, and the defendant had neglected to do so, by means whereof cattle broke into the church- yard and injured the tombstones, church porch, &c. to the nuisance of the parishioners, and he was acquitted, the Court refused to grant a new trial, moved for on the ground of the verdict bemg against evidence ; Lord Ellenborough observing, " It is very clear that you may indict the defendant again, if the fences have continued out of repair since the last indictment. (Rex v. Reynell, 6 East, 315.) Trees and Herbage.] The right of property in the trees and grass of churchyards was foraierly a subject of great contention; but, upon the principle that laymen have no power to dispose of things ecclesias- tical, 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. And it is declared by the council of Stratford, that persons guilty of such contempt shall incur the sentence of the greater excommunication, until they shall make sufficient satisfaction and amends. (Lind. 267.) But if the defendant allege that the trees in dispute grew iqion his own freehold, a prohibition lies. (Hilliard v. Jefferson, Ld. Raym. 212.) Right ill Rector or Vicar.] If in tlic same church there be both rector and vicar, it may be doubted (says Lind wood) to whether of of them the trees or grass shall belong ; but I suppose they shall be- 44 CHURCHES. [Chap. II. long to the rector, unless in the endowment of the vicarage they shall be otherwise assigned. (Lind. 267.) And Rolle 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 repa- ration. (2 Roll's Abr. 337, Gibs. 207.) Statute herein.^ The 35 Ed. 1. st. 2, intituled Statutum ne rector prosternat arbores in Caemiterio, which Coke (11 Co. 49) says, is but a declaration of the common law, 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 ; but as the holy Scripture doth testify, the charge of them is com- mitted only to priests to be disjiosed of; and yet, seeing those trees be often planted to defend the force of the wind from hurting the «;hurch, 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 necesssary reparations ; neither shall they be con- verted to any other use, except the body of the church doth need like repairs, in which case, the rectors of poor parishes, of then* 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 done. (See Gibs. 208.) Suit against Waste. '\ And if the person who is entitled to cut them for these purjjoses 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 Co. 49.) And in Strachy v. Frances, (2 Atk. 217,) upon a motion for an in- junction by the patron of the living, to stay waste. Lord Chancellor 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 Ed. 1, if it is the custom of the country, he may cut down underwood for any pui-pose ; but if he grubs it \xp, it is waste. He may cut down timber likewise, for repamng 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. See also 1 Bos. and Pul. 115, n. An hij unction for the like purpose was also granted against the widow ol a rector, during vacancy, at the suit of the patroness. (Hoskius v. Sect. VITL] CHUCHYARDS. 4-'5 Featherstonc, 2 Br. C. C. 552.) And the attorney general may, on behalf of the crown, as patron of bishopricks, have the like remi'dy a2:ainst a bishop, for opening mines; or to restrain him from felling large quantities of timber. But patrons cannot pray an account for their own benefit. (Knight v. Moseley, Amb. 176.) Vaults, Tombs, d them ; and if any one deface or injure them, such owners may have their action of tresjjass against the wrong doer. 46 CHURCHES. [Chap. II. (Spooner v. Brewster, 2 Car. and P. 14.) Though if the parson remove, or cause them to be damaged m the exercise of his general authority over the whole freehold of the church, no remedy Hes as^ainst huu, unless the erection has been made under the sanction of a faculty. (Bryan v. Whistler, 8 Barn, and Cres. 288.) Churchioay, (Sfc] It is said, that a man may prescribe to have a way through the church or churchyard ; (2 RolPs Abr. 265) ; but he cannot make a private door into the churchyard without the consent of the mmistei-, and a faculty also from the bishop for the same. (Par L. c. 26. s. 29.) Encroachments.'] In the case of St. George, Hanover Square, it is said that the Ecclesiastical Court cannot compel the rector and parishioners to concur in a license to be gi'anted for the erection of a charity school on part of the churchyai'd ; and a proliibition was granted. (2 BuiT. 1 126.) And where the defendant proceeded against in the Spi- ritual Court for a nuisance and encroachment, pleaded that the buddings complamed of stood upon the old site of former tenements belonging to him, and did not project further, a prohibition was likewise granted ; for though inteiTupting the use of a churchyard is properly cognisable in the Ecclesiastical Court, yet the bounds of it, wliich is matter of freehold, ought not to be detennined there. (Pew v. St. INIary, Rother- hithe, 2 Stra. 1013.) Additional Churchyards.] The recent statutes for the erection of additional churches have provided that all such paiishes or extra-paro- chial places as s/ta// be required\)y the commissioners, shall fm-nish lands for enlarging existing, or making additional churchyards or burial- gi'ounds, as the commissioners shall deem necessary ; and the com- missioners shall give notice to the churchwardens, to be left at their abodes, of the intention to enlarge the existing, or set out new burial- gi'ounds ; and of the extent of gi-omid requued for such purpose, and for a proper approach thereto, and of the place in which the same is required to be pro\ided ; and the churchwaidens shall within fourteen days call a meeting of the vestiy, or persons possessing the powers of vestry, for taking all necessary measures for pronding the same ; and in case the parish or place cannot pronde the same without purchase, the vestry, or persons possessing the powers of vestry, are required forthwith to proceed to treat for gi'ound according to such notice, but shall not conclude any bargain w'ithout the commissioners' approba- tion. (59 G. 3. c. 134. s. 36.) Grant or Purchase of Lands,] All the powers and provisions of the 58 G. 3, or this act, which relate to the gi-ant, sale, conveyance, purchase, and re-sale of lands or heriditaments, from his Majesty, or Sect. VITL] CHURCHYARDS. 47 any corporations, persons under legal disabilities, or any other persons whomsoever, to or by the commissioners, for the pmi^ose of building any additional churches or chapels, — or the issuing, advancing, levy- ing, raising, borrowing, or taking up at interest, money for any such pui-j)ose, shall extend to gi'ants, &c. of lands or heriditaments neces- sary for enlarging, or making any churchyard or burial gi-ound, and approaches thereto, under this act ; and for issuing, &c. money re- quired for those purposes, repaying it by instalments or otherwise, as if all such provisions had been re-enacted in this act. (59 G. 3. c, 134. s. 37.) Lands added to any existing churchyard, or bm-ial-gi'ound, 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-gi'ound ; and the freehold of the land so conse- crated, shall thereupon vest in the person or persons in whom the freehold of the ancient burial ground of such parish or chapelry shall from time to time be vested, (s. 38.) Churchyard Walls.'] The commissioners may, if they think fit, alter, repair, pull down, and rebuild, or order or direct to be altered, &c. the walls or fences of any existing churchyard or burial-ground of any parish or chapelry, and to fence oflf any additional or new burial- ground, to be provided for by this act ; and also to stop up and dis- continue, or alter or order to be stopped up, &c. any entrance to any churchyard or burial-gi-ound, and the footways and passages over the same, as to them may appear useless and unnecessary, or as they shall think fit to alter ; provided the same be done vnxh the consent of two justices of the peace, and on notice being given as prescribed by 55 G. 3. c. 68 :— (59 G. 3. 134. s. 39.) Authority to enlarge, ^c] It shall be lawful for the commission- ers to authorise any parish, chapelry, township, or extra-parochial ])lace, desirous of procuiing or adding to any burial-ground, to pur- chase any land the commissioners may think sufficient and properly situate for that purpose, whether within the parish, place, &c. ; and to make and raise rates for the purchase thereof, or repaying with in- terest any money borrowed for making such purchase ; and the church- wardens, or persons authorised to make rates, shall exercise all the powers of said acts for making such purchases, and making and raising such rates; and when any land so purchased shall be situate out of the parish or place for which it was intended, the same shall, after consecration, be deemed part of such parish or place. (3 G. 4. c. 72. s. 26.) 48 CHURCHES. [Chap. II. SECTION IX. — BURIAL. Ancient Burial Places.] It seems to have been the practice of all civilized nations, before the Cluistian era, to bury their dead at a dis- tance from the temples of their religion, and the places of their habita- tion. Thus, by the old Roman law, the remains of their deceased fellow-citizens were committed to the silent earth beyond the walls of the city, either by the way side, or, in less remote periods, in some peculiar inclosure dedicated to the purpose. The early Christians con- tinued the same custom, and hence the Augustine Monastery was built without the walls of Canterbury, (as Ethelbert and Augustine in their charters intimate,) that it might be a doiTnitory to them and their successors, the kuigs and archbishops, for ^^er. Buri/inff in Churches, ^c] In the age of Gregory the Great, how- ever, the monks and priests, who then began to make a profit of their prayers for departed souls, procured leave that the rites of sepulture might be in churches or in places adjoining, by which their hicome from this source was greatly augmented ; and the general practice was introduced from Rome into England about the year 750, by Cuthbert, Archbishop of Canterbury ; from which peiiod churchyards may be dated in this island. In the outset it was the 7iave or body of the church that became a repositoiy of the dead, and chiefly under arches by the side of the walls. Lanfranc, Archbishop of Canterbury, seems to have been the first to sanction \aults in chancels, and under the very altars, when he had rebuUt the church of Canterbury, about the year 1075. (Ken. Par. Ant. 592.) Ministers' authority herein.} The common law hath given the pri- vilege of granting permission to bury in the church to the parson only. Accordingly, by a resolution in the case of Frawces v. Ley, (Cro. Ja. 367), neither the ordinary himself nor the churchwardens can grant license of burying to an}^ within the church but the parson only, which right belongs to him in his general ca])acity of incumbent, and as the person whom the ecclesiastical laws ajipointed 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 directeth, that none but persons of extraordinary merit shall be buried there, of which merit the incumbent was in reason the most proi)er judge, and was accordingly so constituted by the laws of the chmxh. (Gibs. 453, Wats, c. 39.) Prescript ire Riyht.] Upon the like foundation of freehold, the common law hath one exception tu this necessity of the leave of the Sect. IX.] BURIAL. 1!» parson : namely, where a l)ur\-ing-place witliiii the church is pre- scribed for, as belonging to a manor-house ; the freehold of which, they say, is in the owner of that house, and that, by consequence, he hath a good action at law, if he is hindered to bury there. (Gibs. 463. Harvey's case cited in Dawney v. Dee. Cro. Jac. 606.) In Churchyards.'] The superstition of prapng for the dead seems to have been the true origmal of churchyards, as incompassing or adjoining to the church. Which being laid out, and inclosed 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 Wils. 28.) Though, where the mode of burial is not in question, the Court of King's Bench will grant a mandamus to compel the clergyman to inter the bod}^ of a parishioner, if he should refuse. (Rex v. Coleridge, 2 Barn, and Aid. 806. 1 Chit. Rep. 588.) And an infonnation was gTanted against a clergyman in one uistance for a similar neglect. (Rex. v. Taylor, Willes R. 538.) In another Parish.} It seems that a jDerson is not absolutely entitled, as of common right, to be buried in the churchyard of another parish. In the case of the churchwardens of Han'ow-on-the-Hill, (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 pel-mission for the pui-jjose, though it should be sparingly gi-anted ; (See Bardin v. Calcott, 1 Hagg. Rep. 17;) and the sanction of the incumbent, whose soil is broken, may be necessary. (See 1 Burn. Ec. L. 258.) But where a parishioner dies at a considerable distance from his own parish, being absent on a journey or othei-wise, the ob- vious expediency of intennent where the death happens, may super- sede this right of exclusion. Arrest of Corpse.'] The vulgar notion, that a dead body may be aiTested for debt, and prevented from being buried, which seems to ha\'e been imported fi'om the civil law, has now become obsolete, though Lindwood says it atone time prevailed, (Wood. Civ. L. 143, Lind. 278;) and the funeral of Sir Barnard Turner, in 1784, proceed- ing from London to Hertford, was said to have been stopped by an arrest of his body, till his friends entered into engagements for his debts ; and the body of Dryden, the poet, was seized in like manner. But the legality of such a proceeding cannot be supported. Such an an-est cannot be made on mesne process, to compel an appearance, from the nature of the thing itself; and that a dead body cannot be .'^O CHURCHES. [Chap. IT. taken in execiuion on a capiaa ad sathfacienchtm, should appear from the writ dii'ecting the sheriff to have the body of the debtor at West- minster on the day of the return, without specifying whether he be dead or hving, yet it states the reason to be in order to satisfy the plaintiff for his debt. But by the death of the debtor all his property is vested in others, his heir and personal representatives ; he cannot, therefore, satisfy the creditor out of his property, and that his body after death can be no satisfaction, seems to be the opinion of the legislature in the Stat. 21. Ja. 1. c. 24, which provides, that if a debtor die in execution, the per- sons at whose suit he stands charged may sue out new execution against his lands and goods. lUeyality of such Arrest.] The authority of the case cited by Hyde, C. J., in Quick v. Copleton, (1 Levinz. 161, 1 Sid. 242, 1 Keb. 866,) in which a woman was holden liable on a promise to pay, in considera- tion of forbearance to arrest the dead body of her son, was thus elo- quently contradicted by Lord Ellenhorough, in Jones v. Ashbumham, (4 East. 460 — 465) : " It is impossible to contend that this last forbear- ance could be a good consideration for an assumpsit; to seize a dead body upon any such pretence would be contra bonos mores, and an extortion on the relatives. It is conti'ary to every principle of law and moral feeUng. Such an act is revolting to humanity, and illegal ; and therefore any promise extorted by the fear of it could never be valid in law. It might as well be said, that a promise in consideration that one would withdraw a pistol from anothei^'s breast, could be en- forced against the party acting under such milawful ten-or." Burying in Woollen,] In the earlier periods of the woollen manu- facture in this country, laws were passed to compel the burial of the dead in woollen shrouds, as a means of encouraging what was the chief, and considered to be the staple, trade of the kingdom ; but the 54 Geo. 3. c. 108, repealed the existing statutes on the subject, and left it to the custom, which had thus been induced, to continue the use of this article for such piu'poses. Iron Coffins.] In all cases where the statute law is silent upon tlie subject, the mode of bmying the dead is a matter of ecclesias- tical cognizance ; and therefore where the question was, whether a parishioner had a right to be buried in the parish churchyard in an iron coffin, which was a neiv and unusual mode, the Court of King's Bench refused to grant a mandamus. (Rex v. Coleridge, 2 Barn, and Aid. 806 ; 1 Chit. Rep. 588. See 3 Inst. 303.) Bodies cast on Shore.] The 48 G. 3. c. 75, enacts, that the churoli- wardens and overseers in any parish in which any dead human body Sect. IX.] BUlilAT.. .ll is cast on shore from the sea, shall, upon notice thereof given to thcni, cause such body to be conveyed to some convenient place, and with all speed cause it to be interred, with the customary duties, in the parish churchyard or burial-ground, 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 ; but if such body is cast on shore in any extra -parochial place, where there are no chmxhwardens, &c. such notice shall be given to the constable or headborough thereof, who shall proceed as before directed in case ol' churchwardens, &c. Reward for Notice.] By s. 3, every person finding any such body on the shore, and giving notice within six hours after to such officers, &c., or shall leave such notice at their usual abode, shall be entitled to five shillings for his trouble, but no gi"eater sum shall be given for one notice, though there may be more bodies than one. But the ex- penses are to be borne by the county; and the act directs, that one justice for the coimty or place in which such bodies are buried shall, by writing under his hand, direct the treasurer of the county to pay to such churchwardens, constable, &c., such sum for his expenses about the execution of this act, as he may deem reasonable, after the same have been verified on oath. Penalty for Neglect.] Persons finding bodies, and neglecting to give notice within six hours after, shall forfeit £5, and every church- warden, &c., neglecting to remove such bodies from the shoi"e for twelve hours after such notice, or to perfonxi the other duties hereby required of them, shall forfeit, for each offence, £5, (ss. 4, 7.) Penalties horv recovered.] All penalties, if not paid on conviction, shall be levied with costs, and paid to the infonner, by distress and »sale of the ofiender's goods, by warrant under the hand and seal of any justice for the county or place ; which he may grant on confession, or on evidence of one witness on oath. And in default of a distress, the offender may be committed to the county gaol, or house of correction. for not exceeding two calendar months, nor less than fourteen days, unless the penalty and charges be sooner paid. Appeal.] The party may appeal to the quarter-sessions next after one month after the cause of such appeal arose, on giving ten days' notice of the matter thereof, and entering into recognizance before some justice of the county or place, with sufficient sureties to abide the order and award of the court thereon, who may order costs to either party, mitigate the penalty, or direct further reasonable satis- faction to be made to the party injured, and such, their determination, shall be binding and conclusive. i; 2 52 CHURCHES. [Chap. TT Manors si ill liable.] Lords of manors throughout England shall pay to the churchwardens, constahles, &.c. of such parishes or places, such sums as they were accustomed to pay for placing any such bodies into the ground in the state in which they were found ; such sums to go in part discharge of the expenses uicun-ed under this act, and credit to he given for the same by such churchwardens, &c. in their accounts with the county, (s. 13.) Refusing Burial.] The duty cast upon the clergjrman by his office, in respect of burials, is enforced by canon 68, which provndes, 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, 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 excomrnunicatione, for some grievous and notorious crime, and no man able to testify of his repentance, he shall be suspended, by the bishop of the diocese, from his ministry by the space of three months. But where sufficient evidence has appeared to the bishop of the re- pentance of the deceased, commissions have been granted, both before and since the Refonnation, not only to bury persons who died excom- municate, but to absolve them, in order to Christian burial. (Gibs. 450.) Dissenters.] The Rubric, confimied by 13 and 14 Car. 2. c. 4, forbids the use of the customary office in the burial of any that die imbaptized, which was thought to have made church baptism essential. But in Kemp v. Wickes, Clerk Arches, Dec. 11, 1809, cor Sir John Nicholl, the baptism of a child by a dissenting minister was held a sufficient baptism to entitle the child to Clmstian burial by a minister of the church of England. The court recognized this important question, as one of disability and exclusion of all dissenting subjects* from the general right of burial by the estabhshed church, and rested its judgment, 1st, on the canon law, rubrics, and practice affecting lay baptism before the Act of Toleration ; 2dly, on the Act of Tole- ration itself; and generally, on every ground of pubhc and ecclesiastical policy. The court declared, that by the above statute the acts of ' non-conformists, for the purposes of their own worship, are legalized under certain regulations, and are to be recognized in courts of law, Indeed, the baptisms of dissenters have been expressly recognized by Stat. 25 G. 3. c. 75, which extended the stamp duty on registers of church of England bajitisms to registers of baptisms of Protestajit dis- senters. (See the Report of this Case, published by Bnttenvorth. 1810.) Other Exclusions.] Persons not receiving the holy sacrament, at least at Easter, cr such as were killed in duels, tilts, or tournaments. Sect. IX.] BURIAL. 63 were alike exckuled ; but at this day, it seems, that these prohibitions are restrained to the three classes of jiersons : viz. excommunicate, — unbaptized, — and those that have laid violent hands upon themselves. The rubric, before the office of burial, is in this fonn : " Here it is to be noted, that the office ensuing is not to be used for any that die unbaptized, or excommunicate, or have laid violent hands upon them- selves." 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 then* 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 Bum. Ec. L. 261.) Idiots, Lunatics.] 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 othenvise 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; or, if the body cannot be viewed, the justices in sessions may inquire, (3 Inst. 55,) though then- finding is traversable. But the minister of the parish is neither entitled nor able to judge in the affair, but may well acquiesce in the public determination, without making any private enquiry. Coroner's Imjuest.] 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 King's Bench, who are the sove- reign coroners. (3 Inst. 55.) And though there may be reason to suppose that the coroner's jury, from motives of compassion, readily yield to slight eiddence 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 Bura. Ec. L. 266.) Felo-de-se.] By 4 G. 4. c. 52, it is enacted, that it shall not be lawful for any coroner or other officer, having authority to hold inquests, to issue any warrant, or other process, directing the intemient of the remains of persons against whom a finding of felo-de-se shall be had, in any public highway; but such coroner or other officer shall give directions for the private interment of the remains of such person felo-de-se, without any stake being driven through the body of sneli person, in the churchyard or other burial-ground of tlie i)iirish or 54 CHURCHES. [Cliap. II. place in wliicli the remains of such person might, by the laws or cus- tonv of England, be inteiTed, if the verdict of felo-de-se had not been found against such person; such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night. But the act is not to authorise the perfonning any of the rights of Christian buriaJ in such cases, nor otherwise alter the laws and usages relating to the burial of such persons. Taking Corpse into Church, ^c] It seems to be discretionary in the minister whether the corjjse shall be earned into the church or not. And there may be good reason for this, especially in cases of infection. Ringing at Funerals.] The 67th canon directs, that after the party's death there shall be rung no more but one short peal, and one before the bmial, and one after the burial. Burial Fees.] All the ecclesiastical authorities concur in declaring that pa\ment of fees is not a condition precedent to the right of inter- ment ; for burial ought not to be sold, though, if there be a custom to pay, they may be recovered. (Lind. 278, Andrews v. Cawthonie, Willes 536. ) Table of Fees.] Sir Wm. Scott, (Lord Stowell,) in Gilbert v. Buz- zard and Boyce, (2 Hagg, R. 355,) after recognizing the above doc- trine, says, " But this has not been the way of considering that matter since the Refonnation, for the practice goes up at least nearly as far; it appears founded upon reasonable consideration, and is subjected to the proper controul of an authority of inspection. In populous parishes, where funerals are very frequent, the expense of keeping churchyai'ds in an orderly and seemly condition is not small, and that of purchasing new ones, when the old ones become surcharged, is extremely oppres- sive. To answer such charges, both certain and contingent, it surely is not unreasonable that the actual use should contribute when it is called for. At the same time, the parishes are not left to carve for themselves in imposing these rates ; they are all submitted to the examination of the ordmaiy, who exercises his judgment, and expresses the result, by a confirmation of their propriety, in terms of Aery guarded caution. It is, perhaps, not easy to say where the authority could be more properly lodged or more conveniently exercised. I shall now (brect the parish to compose a table of fees for the consi- deration of the oi'dinary." Sir Simon Degge says, that the accustomed fee to the parson for breaking the soil in the churchyard is, for the most part, 3.S-. 4f/., and for opening the floor of the clumcel, 6s.- 8r(- (P. 146.) Sect. IX.] DURIAT,. ou Fees oil Pauper Funerals,] 1 am not aware of any instance in which it has been made a question, either in the spiritual or connnou law courts, whether the clergyman is entitled to the usual fees upon the burial of a pauper who leaves no property whatever, and whose interment is conducted, and the ordinary expenses thereof defrayed, by the parish. I apprehend, however, that his right is not affected by these circumstances, and that it is the duty of the parish officers to pay such dues as are customary upon the burial of persons, in like manner, at the expense of their surviving friends ; and that they are entitled to include such disbursements in their accounts, as a legiti- mate item of parish expenditure. The statute which imposes the duty upon parish officers of burying dead bodies cast on shore from the sea within their parishes, enacts, that the minister, parish clerk, and sexton, shall perfonn their respective duties in such like manner as is customary in other funerals, and receive, by way of compensation, such and the hke sums as in cases of burials made at the expense of such parishes. (48 G. 3. c. 75. s. 2.) This obviously refers to the funerals of paupers, and, by a very strong im^Dlication, recognizes and confirms the obligation upon parishes to pay the usual fees upon their interment. Corpse passing through Parish. ] In the case of Topsail v. FeiTers, (Hob. 175,) an alleged custom in the parish of St. Botolph's, London, kvas set up, to the effect that if any person die within that parish and be carried out of the parish to be buried elsewhere, in such case there ought to be paid to the parson of this parish, if he or she be buried elsewhere in the chancel, so much, and to the churchw^ardens so much, being the sums that they alleged were by custom payable unto them for such as were buried in their own chancel; but it was held to be contrary to reason, that one who is no parishioner, but may pass through the parish, or lie in an inn for that night, should, if he then die, be forced to be buried there, or to pay as if he were, and thus have to pay twice for his burial. (See also Salk. 332.) Fee where Deceased resided.] But Dr. Gibson saith, a fee for burial belongs to the minister of the parish in which the party deceased heard divine service and received sacraments, wheresoever the corpse be buried. And this, he obsen'es, is agreeable to the rule of the canon law, which says, that every one, after the manner of the patri^ archs, shall be buried in the sepulchre of his fathers ; nevertheless, that if any one desires to be buried elsewhere, the same shall not be hindered, provided that the accustomed fee be paid to the minister of the parish where he died, or at least a third part of what shall be given to the place where he shall be buried. (CJibs. 452.) ;V) tKLIlCHKS. [Cliap. II. Customs as to Fees.'\ The proportion of fees clue for the burial of persons, whether to the incumbent or chui-chwardens, whether for burying in or out of the paiish, depends upon the particular usage and custom of each parish respectively. But although the rule of ^ the canon law is, that in case of denial of the customary fee, justice is to be done by the ordinary ; yet the temporal courts resene to themselves the right of detennining, first, whether there is such a custom, in case that is denied, and, secondly, whether it is a reason- able custom, m case the custom itself is acknowledged. (Gibs. 453 ; Fruin V. Dean and Chapter of York, 2 Keb. 778 ; Andrews and Symson, 3 Keb. 523, 527.) Fees by whom taken.'] By usage about Loudon the chui-chwardens take the money for burying in the chui-ch or churchyard, and the parson has nothing but for burial in the chancel. (Anon. 2, Shower. 184.) Action for Fces-I Where an agreement having existed between the successive vicars and churchwardens of a parish, that certain fees should be taken on the burial of strangers in the churchyard, and divided equally between them, and an in-coming vicar refused to accede to the agreement, and prevailed on the collector of ijie fees to pay over to him the whole he had in his hands, it was held, that the col- lector hanng received one half of these fees to the use of the church- wardens, they were entitled to recover that moiety from the vicar, in au action brought for money had and received. (Littlewood v. Williams. 1 INIarsh. Rep. 589, 6 Taunt. 277. s. c.) But an action for money had and received is not maintainable to recover a sum of money paid to a churcliwarden for burial dues, which he had paid over to a trea- surer of the trustees of a chapel previous to the commencement of the action. (Horsfall v. Handley, 2 B. Moore 5.) Burial in neiv Churches.] By the 58 Geo. 3. c. 45, no burials are to be pennitted in any church or chapel erected under the act, or in the adjacent cemetery, at a less distance than twenty feet from the external walls, except in vaults wholly arched with brick or stone under any church or chapel, and to which the only access shall be by steps on the outside cf the external walls, under the penalty of dEoO upon conviction before two justices of the peace, one half to the informer, the other to the jioor of the parish, (s. 80.) Exhumation.'] A corpse once buried cannot legally be taken up to be deposited in another place, without a license from the ordinary. (Gibs. 454.) But in the case of a violent death, the coroner may order the body to be disinterred, if it has been buried before he luu had an opportunity of taking a view for the purposes of his incpiest. Sect. X.] CHAPELS. Z)? It is said, that if the body, after it has been committed to the grave, be disturbed or removed, it is a subject of ecclesiastical cognizance; yet the taking up or disposing of dead human bodies for the pm-poses of dissection is an indictable offence, as highly indecent, and contra bonos mores. (Lynn's case, 2 T. R, 733.) Stealing Grave-Clothes.] In the Lent Assizes, holden at Leicester, (11 and 12 Ja. 1,) the case was, one Wilham Haines had digged up the graves of three men and one woman in the night, and had taken their winding sheets from their bodies, and buried them again ; and it was resolved by the justices of Serjeants Inn, in Fleet Street, that the property of the sheets remained the owner's ; that is, in him who had the property therein when the dead body was wrapped therewith, for the dead body is not capable of it ; and that the taking thereof was felony. (Haynes's case, 12 Co. 113.) And indictments for this olience have been preferred in more recent times. SECTION X. — CHAPELS. Orvjin of Name..'] The etymology of chapel, in Latin capella, is not very satisfactorily ascertained. Perhaps it may be a dimhiutive of the word capa, which hath been ado]>ted to signify one of the priest's vestments, so called, (saith Lindwood,) a capiendo, from its contain- ing or covering the whole back and shoulders ; for chapels at first were only tents or tabernacles, sometimes called field-churches, being nothmg more than a covering from the inclemency of the seasons. (1 Burn. Ec. L. 295.) Private Chapels.] Private chapels are such as noblemen and others have, at their own charge, built in or near their houses, for them and their families to perform religious duties in. The chaplains are provided by themselves with honourable pensions; and these an- ciently were all consecrated by the bishop of the diocese, and ought to be so still. (Degge, P. 1. c. 12.) And though a private chapel may be annexed to the church, the repair thereof belongs to the owner, (2 Inst. 489.) By canon 71, no minister shall preach or administer the holy communion in any private house, except in times of necessity, u])on pain of suspension for the first offence, and excommunication for the second. Provided that houses are here reputed for piivate houses, wherein are no chapels dedicated and allowed liy the ecclesiastical law. And provided also, under tlie pain before ex])ressed, that no chaplains do jjrcach or administer the connnunion in any other jilace.s 68 CHURCHES. [Chap. II. but ill the chapels of llie saitl houses, and that very seldom, upon Sundays and holidays ; so that both the lords and masters of the said houses, and theii" families, shall at other times resort to their own parish churches, and there receive the holy communion at the least once every year. (Gibs. 210.) Free Chapels.} These were places of religious worship exempt from all ordinary jurisdiction, except that the incumbents were gene- rally instituted by the bishop, and inducted by the archdeacon of the place. INIost of these chapels were built upon the manors or ancient demesnes of the crown, whilst in the king's hands, for the use of himself and retinue, when he came to reside there. When the crown parted with these estates, the chapels went with them, and retained their first freedom. Where this does not apjiear to have been their origin, such are thought to have been built and privileged by grants from the crown. (Tanner's Notit. Monast. Pref. 28.) And the king himself, by the lord chancellor, visits his free chapels and hos- l>itals, and not the ordinary. (Godb. 145.) By 26 H. 8. c. 3. s. 2, and 1 Eliz. c. 4, free chapels are charged with first fruits ; but this the late Mr. Serjeant Hill conjectm^es inust mean only such as were in the hands of subjects. Chapels of Ease.] A chapel merely of ease is that which was not allowed Sufunt at its institution, and is used only for the ease of the parishioners in prayers and preaching, (sacraments and burials being received and perfoiTned at the mother church,) and commonly where the curate is removeable at the pleasure of the parochial minister. Parochial Chapels.} A parochial chapel hath the parochial rights of christening and burying ; and differeth in nothing from a church but in the want of a rectory and endowment. (Degge, P. I.e. 12.) If it has pai'ochial rights, as clerk, wardens, &c. ; rights of di\ine service, as baptism, sepulture, &c. ; and the inhabitants have a right to them there and not elsewhere ; and the curate has small tithes and sui-]3lice fees, and an augmentation ; it is a perpetual curacy, and the curate is not removeable at pleasure. But chapels of ease are merely ad libitum, and have no parochial rights ; therefore, on the union of the two parishes, one is frequently deemed the parish chm'ch, and the other a parochial chaj^el, but not a chapel of ease. (Att. Gen. v. Breton, 2 Vesey, sen. 425, 427.) But it has been held, that whether a chapel be a parochial chapel or chapel of ease, is matter of sphitual conusance. Thus, where Keate was libelled against at the promotion of the rector of St. George, Hano'.er Square, for baptising, manying, and administering the sacrament, in a chapel in the parish, without a license from the bishop, Sect. X.] CHAl'ELS. 59 and for collecting money in the chapel in the offertory, and not pay- ing the said money to the minister or churchwardens of the said parish ; the court discharged a rule for showing cause why a prohihitiou should not go on the ahove gTound. (See Hill*s MSS. notes, 1 Burn. Ec. L. 300. See also Ken. Par. Ant. 590.) Endowment and Dependance.^ When parochial hounds became settled, many parishes were still so large that private oratories or cha- pels were built in remote hamlets, in which a capellane was sometimes allowed by the lord of the manor, or other benefactor, but generally maintained by a stipend from the ^jarish priest, to whom all the rights and dues were entirely preserved. (Ken. Par. Ant. 587.) But to au- thorise the erecting of a chapel of ease, the joint consent of the dio- cesan, the patron, and the inciunbent, if the church were full, was, and asitseemeth still is, required. (Ken. Par. Ant. 585, 586.) And at the consecration of a chapel, there was often some fixed en- dowment, as of lands, or tithes, or voluntary contribution, given to it for its more easy dependance on the mother, church. (Degge, P. 1. c. 12.) Hence a chapel may prescribe for tithes. (Saer v. Bland, 4 Leon. 24, Gibs. 209.) Tributary to Church.] In addition to the obligation upon the in- habitants to resort upon certahi festivals to the mother church, the capillane or curate of a chapel was, by a canon still existing, to be bound by an oath of due reverence and obedience to the rector or vicar of the mother church. (Ken Par. Ant. 599, Johns 205.) And the iidiabitants of the chapehy, though they repair then own chapel, are nevertheless contributory to the repairs of the mother church, from which they can only be discharged by prescription ; for which, it has been said, a consideration ought to appear, as a payment of so much to the repair of the church, or the wall of the churchyard, or the keeping of a bell, or the hke compositions, which are clearly a dis- chai-ge; (Gibs, 197;) and ujjon which a prohibition maybe obtain- ed. (2 Roll. Rep. 265; Aston v. Castle Birmidge Chapel, Hob. 66.) But exemption by custom well established, without proof of considera- tion, will suffice. (Ball v. Cross, 1 Salk. 164.) New Chapels of Ease.] Every new church built by the connnis- sioTiers appointed for building churches, by 58 G. 3. c. 45, and in- tended as the palish church of any division of a parish, intended to be: a separate parish, is a chapel of ease during the existing incumbency of the original parish church, and shall be served by a curate nomi- nated by such incumbent, licensed by the bishoj), and paid by the commissioners. (58 G. 3. c. 45. s. 18; 59 G. 3. c. 134. s. 12.) And a cha])el built as above, and .situate in a rf/iVz-jc/ parish, made a parish 60 CHURCHES. [Cliaj). III. for ecclesiastical purposes, and which is not made the church of such district, is not to be deemed a perpetual cm-acy or benefice, presenta- tive even after avoidance by the existuig incumbent of the parish. (o9 G. 3. c. 134. s. 19. See 58 G. 3. c. 45. s. 25; and "Existing Incumbency," ante, p. 18.) Chapel Repairs.] The repairs of a chajiel are to be made by rates on the landholders within the chapelry, in the same manner as the repairs of a churcli ; and such rates are to be enforced bv ecclesiasti- cal authority. (Gibs. 209.) Upon an issue whether a certain messuage is situated within a chapelry, a person who occupies a rateable property within the chapelry is a competent witness to prove that it is. (Mars- den V. Stansfield, 7 Barn, and Cres. 815.) But all this must be in- tended of ancient cha2)els, and where this com*se hath been used ; for if there be land given for the repair ol" them, or any land or estate charged by prescription to the repairs of them, then the custom must be observed. (Degge, P. 1. c. 12.) Minister, by whom chose?i.] The nomination to a chapel of ease is in the incumbent of the mother church ; though the chaj^el was erected and endowed by the lord and freeholders of a manor, and the right was given to the inhabitants by the archbishoj), in his deed of consecration, and the vicar of the mother church at the time declared he had no right therein. Thus, where inhabitants had repaired the chapel, and nominated for ninety years, it was held that the incumbent can only lose his right by special agreement between patron, pai'son, and ordinary, which is a general rule of law. (Farnworth v. Bishop of Chester, 4 Bam. and Cres. 555.) And even then, there must be a good consideration, or compensation. A prescription presmnes that every thing was projjer, and presupposes an agreement by deed, not by parol. (Dixon v. Kershaw, Ambler 528.) In Duke of Portland v. Bingham, (1 Hagg. Rep. 168,) Lord Stowell says, that the implied right of patronage to a chapel, arising from the right of patronage to the mother church, is considered, since Dixon v. Kershaw, as settled in fa- vour of the incumbent, and against the claun of the mother church. ( See Herbert V. Dean and Chapter of Westminster, 1 Peere Williams, 774.) So in Mallet V. Trigg, (1 Vern. 42,) Lord Chancellor Nottingham ob- served. There was a gi'eat difference as to the parson's right of choosing his vicar, where the parson was of a lay fee, and where he had a cure of souls ; for in the latter case, there was reason he should appro\ e of the man who was to act under him in so high a trust. ( 1 Veni. 42.) GoT'erriment thereof. '\ The perpetual cm-ate of an augmented pa- rochial chapelry, has a sufficient possession wheieon to maintain tres- pass, for breaking and entering the chapel and destro)"iug the pews. Sect. I.] MINISTER OR INCUMBENT. 61 (Jones V. Ellis, 2 Younge and J. 265.) And according to Degge, (P. 1. c. 12,) chapels of ease have the like officers, for the most part, as churches have, distinguished only in name ; and are in like manner visitable by the ordinary. It is said, that if the question be in the Court Christian, whether a church be a parish church, or only a chapel of ease, a prohibition lieth. (2 Roll's Abr. 291 ; Wats, c. 23.) But Dr. Gibson says, that a chapel or no chapel ought to be tried by the spiritual judge ; for, when two spirit\ial things are to be tried, no prohibition shall be gi-anted. (Gibs. 210.) But if a question is depending as to the limits, whether of a chapel of ease or a parish church, or whether a chapel of ease or a parochial chapel, the same shall be tried, as to the limits, in the temporal court. (Gibs. 213.) CHAP. III.— MINISTER AND OFFICERS OF THE CHURCH. Section I. Minister or Incximbent. II. Residence of Incumbent. III. Curates. IV. Lecturers. V. Churchwardens. VI. Parish Clerk. VII. Sexton. VIII. Beadle. SECTION I. — MINISTER OR INCUMBE Tncumhent.] The appellation parson, in the vulgar language of modem times, is apphed indiscriminately to every person engaged in conducting public worship ; and the word minister is liable to a simi- lar objection; there is, consequently, a convenience in the name in- cumbent, which has in a gi'eat measure usurped the place of parson, to express the individual, whether rector, vicar, or by whatever title ho is known, who is the ecclesiastical head of the parish, and temporal representative of his church. The rights and duties of the incum- bent, with res})ectto the various temporalities of his cliurch, will be de- tailed under the different heads into which the general subject is divided. It may be proper, however, in the first place, to give a brief statement of his privileges and obligations of a merely personal nature, arising 62 MINISTER AND OFIICERP OF THE CHURCH. [Cliap. IIT. from his office and character, so far as they affect others, and particu- larly his parishioners. Induction.'] Induction is an act of a temporal nature ; for by it the incumbent becomes seised of the temporalities of the church : by this ceremony he is put in the actual possession of part for the whole, and may aftenvards maintain an action for a trespass on the glebe, though he does not actually go upon the glebe itself. (Bulwer V. Bulwer, 2 Bam. and Aid. 470.) He is thus unexceptionably en- titled to make grants, or sue, or to plead (as occasion shall require) that he is parson imparsoiiee ; and by this the church also is full against all persons, not excepting the king. On which account, in- duction is compared, in the books of common law, to hvery and seisin, by which possession is given to temporal estates. (Gibs. 814; I Bum. Ec. L. tit. " Benefice.") Fee Simple of Church.] Although the freehold of the church, churchyard, and glebe, belong to the parson, yet, properly speak- ing, the fee-sunple is not in him, but in abeyance, and therefore he cannot have a wint of right; (Co. Lit. 341, b;) but in all other respects, he has the same means of enforcing and defending his in- terests therein, as the owner of a life interest in a freehold. He may make a lease of the church and churchyard ; (2 Rol. 337. 1. 10;) shall have the trees gi'owing in the churchyard, for the repair of the church ; and can alone give a license for burying in the church ; neither the ordinary nor the churchwardens having any authority for this purjjose. (Cro. Jac. 367; Com. Dig. tit. " Esglise," G. 1.) Still it must be observed, that although the freehold of the parish chm'ch, with all its appurtenances, rests in the incumbent upon his induction, he is liable to deprivation, unless he confiim his possession by the due observance of the several conditions required by law. Reading himself in.] By the Statutes on this subject, he is bound, within two months after induction, to read the morning and evening prayers at the proper times appointed ; and, after such readings to declare publicly before the congregation assembled, his unfeigned assent to the use of all things therein prescribed, in the fonn provided by the act. (See 13 and 14 Car. 2. c. 4. s. 6.) He must also, within the same period, read the Thirty-nine Articles, and make a similar declarationof his assent thereto, or upon default he shall be, ipso facto, immediately deprived; (13 Eliz. c. 12. s. 3;) though the 23 G. 2. c. 28, makes an exception, in cases where the omission arises from sickness or other lawful impediment. And he must also, in the same manner, publicly and openly read the ordinary's certificate of his having subscribed the declaration of confomiity to the liturgy of the Sect. I.] MINISTER OR INCUMBENT. 63 church of England, as it is now hy law established, together with the same declaration or acknowledgment, on some Ijord's-day within three months next after snch subscription. (13 and 14 Car. 2. c. 4. s. 11.) And these things shall be performed by the incmnbent in the same church whereof he shall ha\'e cure. Oaths.^ Finally, by the 1 G. 2. st. 2. c. 13, and 9 G. 2. c. 26, all ecclesiastical persons shall, within six months after their admission to any ecclesiastical preferment, benefice, office, or place, take the oaths of allegiance, supremacy, and abjuration, in one of the courts at West- minster, or at the general or quarter sessions, on pain of being inca- pacitated to hold the same, and of being disabled to sue in any action, or to be guardian, or executor, or administrator, or capable of any legacy or deed of gift, or to bear any office, or to vote at an election for members of Parliament, and of forfeiting 500/. When not Arrestable.l There were two statutes, the 50 Ed. 3. c. 5, and 1 R. 2. c. 15, for the protection of clerical persons from arrest, in " churches and churchyards, or while they be intending to divine ser- vices." A.nd it hath been adjudged upon this, that if such arrest be made on a Sunday, trespass is the jiroper fonn of action against the wrong doer. (Com. Dig. Temps. B. 3.) But if it be on any other day, the action should be in case. (Tarlton v. Fisher, Doug. 671.) But the aiTest, if made, is valid; so that if the officer immediately afterwards discharge him, he is liable to an action for an escape ; (See Tarlton v. Fisher ;) and it will not excuse his contempt in making the arrest. (Wats. ch. .34.) And although the above statutes have been repealed, yet, as the like protection is re-enacted by the same act, the law with respect to clerical persons is still in effect the same. (See 9 G. 4. c. 31. s. 23; ante, p. 38.) But it seems, that if the arrest be upon criminal process, or at the suit of the king, the privilege cannot be claimed. (Cro. Jac. 321.) And for laying violent liands upon a clerk, the offender may be pro- ceeded against in the Ecclesiastical Court ; but if a recompense be sought, and not punishment for sin merely, or for an assault, the suit ought to be at the common law. (Kelly v. Walker, Cro. Eliz. 655; and see 9 G. 4. c. 31. s. 23.) Le7-y on his Goods'] No levy can be made by the sheriff u]>on the incumbent's ecclesiastical goods ; but the writ must be directed to the bishop of the diocese, who grants a sequestration ; (2 Inst. 4; Languet v. Jones, 1 Stra. 87; 3 Bla. Com. 418); and an attachment will lie against the chancellor for not returning it. (Rex v. Bishop of St. Asaph, 1 Wils. 332.) Dischar(/ed TttfiolvcnI.'] The assignees under an Insolvent Act (i4 MINISTER AND OFFICERS OF TUF. CHURCH. [Chap. III. are not entitled to demand and receive the profits of an ecclesiastical benefice whicli accrue subsequent to the assignment, nor can they maintain an action for the same, though included in the insolvent's .schedule. (Arbuckle v. Cowtan, 3 Bos. and Pul. 321.) Obsolete Privileges.'] There are many other regulations for the protection and controul of the clergy, now gi'own obsolete, and of which it has been well observed, "After all, these distinctions of the clergy are shadows rather than substance ; being most of them about matters which are of no significance. The restraints, as to the scope and pui-port of them, are such as the clergy for the most pjlrt would choose to put upon themselves ; and the privileges, such as they are, seem to be scarcely worth claimmg, and j-ome of them one would almost imagine to have been calculated to bring disgi'ace upon the clergy, rather than to be of any real benefit to them ; for why should a clergyman be protected from paying his just debts, more than any other person ; or be saved from punishment for a crime for which an- other person ought to suffer death ?" (3 Burn's Ec. L. 211.) SECTION II. — RESIDENCE. Residence enforced.'] By the ancient canon law, if a clergyman deserted his church without just cause, and the leave of the diocesan, he was subject to deprivation; (Gibs. 827.); and it is an intendment of the common law, that he is resident upon his cure ; and therefore, if he be chosen to a secular office, he may have the kmg's \\Tit for his discharge. (2 Inst. 625.) Several statutes were also passed about the period of the Refonna- tion, for enforcing residence, most of which were expressly repealed, and the whole statutory provisions reduced into one entire system, by the 57 G. 3. c. 99. (See R. v. Peterborough, 3 Barn, and Cres. 56.) Penalty for Absence.] By this latter act, wilful absence, without license or exemption, for three months in the year, miless at some other benefice, parochial chapelry, &c. of which he is possessed, subj ects the clergpuan to a forfeiture of one-third of the annual value of the benefice, &c. deserted ; and if the absence -exceed six months but not eight, one half of such value ; if above eight months, two- thirds ; and for the whole year, three-fourths thereof, to be recovered in the courts of law ; and the whole penalty to go to the mfonner, or person who sues for the same, (s. 5.) As to suing for the penalty, see Com. Dig. Pleader. (2 S. 23.) For the purposes of a prosecu- tion, it is sufficient to prove, that the defendant assumed to bo, and Sect. II.] RESIDENCE. 66 and acted as parson, without proving admission, institution, and in- duction. {Bevan v. Williams, 3 T. R. 535, n.) Wilful Absence.] But the absence must be tvilful; and therefore, if it be caused by imprisonment without cause, or by tlie advice of physicians for the recovery of health ; or if there be no parsonage- house, or no house of residence provided under this act, (see s. 9,) it is not within the principle of the statute. (See Butler v. Goodall, 6 Rep. 21. b.; Cro. Eliz. 590; 2 Bnlst. 18; Gibs. 887.) Residence for nine months in the year within the limits of his benefice, or of the city, place, or pai'ish within which it is situated, provided such residence is not more than two miles froin his church, is sufficient, (s. 6.) Exempt from Penalties.] The exemptions by s. 10 of the act, from the penalties of non-residence are, — every spiiitual person being chancellor, vice chancellor, or commissary of Oxford or Cambridge, or warden, or other head of any college, professor, or public reader, withm the precincts thereof; and in short, every pubhc officer, or scholar, imder thirty years of age, abiding for study, at either univer- sity, bona fide, and \vithout fraud. * Chaplains exempt.] The exemption also includes every chaplain of the king, or queen, or their children, brethren or sisters, during so long as he shall actually attend in discharge of his duty, as such chaplain in the household to which he belongs. Every chaplain of any archbishop, bishop, peer, &c., the chaplain to the House of Commons, clerk or deputy clerk of the closet of the king, or heir apparent, or chaplain- general of the forces, the royal dock-yards, or the household of any British ambassador abroad. Others exempt.] To the Hst thus briefly given are added, no chancellor, vicar-general, archdeacon, minor canon, vicar choral, or priest vicar, or such like officer, in any cathedral or collegiate chtirch, while perfonning the duties, and during actual residence within the irrecincts thereof, or of the town, &c. ; no dean, sub-dean, priest, or reader, in his Majesty's chapels at St. James's, Whitehall, Windsor, or elsewhere ; no preacher of any inn of court ; no fellow of either uni- versity, during the time he is required to reside and actually residing therein ; no warden of, master, or usher in Eton or Winchester col- leges ; or rasister of the Charter-house or Westminster school ; or principal or professor of the East India college, &c. ; shall be liable to any of the penalties of this act for non-residence, during any such period as aforesaid ; — but every such spiritual person shall be entitled to account such period as if he had legally resided on some other bene- fice, (s. 10.) As 1o the ndc to discontinue an .nction, for a penalty F 66 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. for non-residence, on notification of exemption, see Wright v. Legge, (6 Taunt. 48.) License for Non-residence.] By s. 15, the bishop may, upon peti- tion, the facts being verified by affidavit if requhed, grant, in the cases enumerated, a license to any spiritual person to reside out of the parish, or proper house of residence, in order to exempt him from the penaky of non-residence. License to whom granted. ] The enumeration inchides, first, " any spiritual person prevented from residence in the proper house of resi- dence in the parish, by actual illness of himself, wife, or child making- part of his family, and residing with him as such." As an incumbent ought to reside in the parsonage-house, if he lets it, and dwells else- where in the parish, or merely occupies it by a servant, it would be within the penalty of 21 Hen. 8. c. 13, (now repealed,) and doubtless of this statute, if without license. (See Wilkinson v. Allott, 2 Cowp. 429; Butler v. Goodale, Cro. Eliz. 590, Mod. 540, 2 Brownl. 54.) Where no Jit House. ] Secondly, " persons holding any benefice wherein there is no house of residence, or where it is unfit for resi- dence, such unfitness not being occasioned by default of such person, and the same being kept in repair by him to the satisfaction of the bishop." A license was held unnecessary in this case before this act. (Wynne V. Smythies, 6 Taunt. 198; Law v. Ibbotson, 2BmT. 2722; Wilkinson v. Clerk, id. 2725.) But the want of a parsonage-house was held no excuse for living out of the parish. (Wilkinson v. Allott, Cowp. 429.) And where the mcumbent of two livings, A and B, obtained a hcense to reside out of the parish of A, for the above cause, on condition of his residing near, and actually performing the duties, this was held not such a residence at A as to excuse him from residing at B, with- out another license for that purpose. (Wright v. Flamant, 1 Marsh. 368, 6 Taunt. 52. S. C.) Eat the incumbent of two livings, one with a house of residence on it and the other not, may reside on that in which there is no such house, without a hcense, and such residence will excuse him from residing on the other living. (Wynne v. Smythies, 1 Marsh 547.) License to Others.] The catalogue includes almost every beneficed person, who, at the same time, holds any other situation not incom- patible with his clerical character, which makes it difficult or impossible to reside, and at the same time discharge the duties of such other situa- tion ; particularly as the bishop has a large discretion herein, and may grant a license to reside elsewhere, if he deems it expedient, in any case not enumeratebent, Sect. III.] CURATES. 71 such consent may suffice without any such compensation being pro- vided. (Moysey v. Hillcoat, 2 Hagg. Rep. N. S. 48; Farnworth v. the Bishop of Chester, 4 Barn, and Cres. 568 ; Dixon v. Kershaw, Ambler. 532.) Election of perpetual Curate.'] The light to nominate to a per- petual curacy is sometimes vested in the parishioners, by custom, the tenns and conditions of which must be obsei-ved in the exercise of the right ; but the courts seem inclined to support a hberal inter- pretation of such customs, so as to admit the largest number of voters, rather than to abridge the privilege by a rigid construction of the lan- guage in which the custom is expressed. Though, if they are required to enforce such rights, the custom must be proved, and the parties must not content themselves with a general allegation of its existence. (R. V. Bishop of Oxford, 7 East. 345; Price v. Doughty, 3 Atk. 576.) Thus, where it appeared according to the deed of trust, and a decree in the exchequer, that the impropriate rectory was purchased for the use of the parishioners and inhabitants, and that the nomination of the curate had been declared to be in such of them as paid to church and poor, the chancellor expressed an opinion that assessment gave the right, though actual payment had not been made. (Att. Gen. V. Newcome, 14 Ves. 1.) Though an election made upon the prin- ciple, that payment should be essential to the right to vote, which was adopted by common consent among other regulations, was esta- bhshed. (lb. Att. Gen. v. Forster, 10 Ves. 335.) But in Faulkner v. Elgar, (4 Bam. and Cres. 449, 6 Dowl. and Ryl. 517,) where the right of election to a perpetual curacy was by custom in the parishioners, without any other limitation, and at a meeting duly convened, it was decided, before the election began, that parishioners who had not paid church rates should not be allowed to vote, and some electors did not, therefore, tender their votes, and the votes of others were rejected, it was held that the election wa void. And it seems that a mode of election otherwise than by show of hands, or by poll, contrived for the puq^ose of concealing for which candidate the elector votes, is not legal. (lb.) Particular Customs to Elect.'] By agreement, (of the bishop, patron, and incumbent,) the inhabitants may have a right to elect and nomi- nate a curate ; and there are instances in which, according 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 was to be presented by the patron of the church to the vicar, and by him to the archdeacon, who was then obliged to adiwit him ; in other places, the lord of the manor presented a fit person to the appropria- 72 MIMSTEK ANU OFFICERS OF THE CHLRCH. [Chap. llf. tors, who, without delay, were to give admission to the person so presented. (Ken. Par. Ant. 589; see Herbert v. Dean and Chapter of Westminster, 1 P. Wms. 773.) Where the founder of a chapel by his will directed that his son should, during his life, have the nomination and election of the minis- ter, and might, by will, set down the course of the nomination, and election after his death ; and that, if he did not presciibe the com-se, the nomination, and election, should be in all the householders and heads of families in the township, and his, the founder's, heirs male of his body, and such other of his kindred or blood as should have any land in the township, or the gi-eater number of them ; and by the instnnnent of consecration all tithes, fees, and emoluments whatso- ever, on burials, marriages, &c. were resei-ved to the vicar of the parish ; and the son not having set dowii any order or course, it was held, that the householders and heads of families in the township had no right to present a curate to this chapel without the consent of the vicar. (Famworth v. the Bishop of Chester, 4 Bara. andCres. 555; Dowl. and Ryl. 56.) 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 Hill's MSS. notes,) except in the case of having received the augmentation from Queen Anne's bounty. But the bishop may compel the patron, by spiritual censures, to make the appointment. (1 Inst. 344, Gibs. 8, 19.) This was so held in Fairchild and Gayre, (Cro. Jac. 63,) with regard to donatives ; and it holds more strongly in riie case of ciu-acies, where both church and patron are subject to the ordinary's jurisdic- tion, and where, therefore, he may likewise sequester the profits, and appoint another to take care of the cure till the patron shall nominate a fit and proper clerk. (Gibs. 1819.) Additional Curate.'] The general act, (see " Residence," «nY^, p. 64,) for enforcing the residence of the clergy, and providing curates where it becomes necessary, enacts, that whenever it is made to appear, to the satisfaction of the bishop, that by reason of the number of churches or chapels belonging to any benefice within his diocese, or of their distance from each other, or of the distance of the residence of the clergyman serving the same from them, or any or either of them, or from the negligence of the incumbent, the eccle- siastical duties of such benefice are inadequately perfonned, the bishop may requu'e the incumbent to nominate to him a fit person or pei"sons, with sufficient stipend, to be licensed to assist in perl'orming such duties ; and u])on non-compliance for three months, the bishop may. Sect. III.] ctRATES. 73 muke such appointment, subject to an appeal, by the incumbent, to the archbishop of the province. (57 G. 3. c. 99. s. 50.) Examination and Adtnission.] By canon 48, no curate or minis- ter shall be permitted to serve in any place without examination and admission of the bishop of the diocese, or ordinary of the place having episcopal jurisdiction, under his hand and seal, having respect to the gi'eatness of the cure and meetness of the party. The object of this canon seems to be, that cm-ates, who are engaged to take charge of parishes, either altogether or in part, for a continueil time, shall be " examined and admitted" by the diocesan. 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 censures under this canon ; and if he has a license to preach under the 50th and 52d canons, which need not be had of the local ordinary, it is considered sufficient. (Gates v. Chambers, 2 Add. R. 191.) It must also a])pear that he is in deacon's orders at least, if he is to be licensed to be an assistant curate, and of priest's, if he is to be licensed to a perpetual curacy; for, by the 13 and 14 C. 2. c. 4. s. 14, no person shall be admitted to any benejice or ecclesiastical promo- tion before he shall be ordained priest. Which words extend to all chapels of ease which have received the augmentation of Queen Anne's bounty, as they are thenceforth to be perpetual cures and benefices. By canon 48, if curates remove from one diocese to another, tliey shall not be, by any means, admitted to seiTe, without testimony in writing of the bishop of the diocese, or ordinary of the place, having episcopal jurisdiction, from whence they came, of their honesty, ability, and confonnity to the ecclesiastical laws of the church of England. (See Lind. 48, Gibs. 896.) Serving Two Places.'] By 57 G. 3. c. 99. s. 59, no spiiitual person shall serve more than two churches or chapels, or one church and one chapel, in one day, unless, from their local situation, or the value of the benefices, or other special causes, the bishop license him to serve three churches or chapels ; such churches, &c. not being dis- tant from each other more than four measm*ed miles ; provided the reasons for gi'anting such license shall be stated therein, and provided that such person's residence is so placed that he need not travel more than sixteen measured miles in one day to do the several duties. Non-Residence.] By 57 G. 3. c. 99. s. 48, if any spiritual per- son, holding any benejice, (wliich means wiV/t cMr«, and includes dona- lives, peii)ctual curacies, and parochial chapelries, s. 72,) who does not actually reside thereon nine months in the year, (unless he shall do the duty thereof, or has a legal cxcm])tion from residence, or a 74 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. license to reside elsewhere than in the usual house of residence,) shall for exceeding thi'ee months absent himself, without leaving a curate duly licensed, or other spiritual person to perform, and who shall duly perfonn, the ecclesiastical duties of such benefice, or who shall, for three months after the death or removal of any curate who has served his church, neglect to notify the same to his bishop, or to nommate to him a proper cm-ate, then the bishop may ajjpoint and Ucense a cui'ate to sei-ve such church, with such salary as is by this act di- rected, (see infra.) Provided, that in every such case the license shall specify whether the curate is to reside within the parish or place, or not, and if he is peiTiiitted by the bishop to reside out of the parish, &c. ; the gi'ounds of such permission shall be set forth therein, and tlie distance of his residence shall not exceed five statute miles from the church he is to serve, except in cases of necessity approved by the bishop and specified in the license. Where Curate must reside.] And, by s. 49, it is enacted, that where a curate is appointed to serve the benefice of any incumbent who is lawfully non-resident for more than three months in the year, such curate shall reside within the parish, provided the gi-oss amiual value of the benefice amounts to £300, and the population to three hundred persons; or provided the population amomit to one thousand persons, whatever be the value of the benefice ; provided, that upon urgent reasons the bishop may allow him to reside in some convenient place near to the parish, the circumstances being specified in the license. And, by s. 64, in the case of an uicumbent non-resident four months each year, the bishoji may allot for the curate's residence the house of residence, with the appurtenances, during the time he shall sene the cui'e, or during the incumbent's non-residence, and may sequester the profits of such benefice in any case in which possession shall not be given up to the curate. And the curate must pay the taxes and parish assessments m respect of such house, &c., as if he had been appointed to the benefice, where he occupies the same by direction of the bishop, and is assigned a salary of not less than the gross annual value of the benefice which he serves, (s. 65.) Curate's Stipend.'] When any person shall become incumbent of any benefice after the 20th July, 1813, and shall not duly reside thereon, (miless he do the duty, having an exemption, or hcense for non-residence,) the bishop shall appoint the salary of the hcensed cmate, as follows : that is, not less than £80 per annum, or the an- nual value of the benefice, if its gross value does not amount to that sum; nor less than £100 per annum, ox the whole value as above. Sect. III.] CURATES. 75 if the value shall not amount to £100 per annum, where the popu- lation of the place amounts to three hundred persons ; and not less than £120 per annum, or the whole value as above, if it does not amount to £120 per annum, where the population amounts to five himdred persons ; and not less than £ 1 50 per annum, or the whole value as above, if it does not amount to £150 per annum, where the population amounts to one thousand persons; provided that such an- nual value shall be estimated from the return made to the governors of Queen Anne's bounty, or in the actual income whereof any con- siderable variation has taken place either by augmentation by Queen Anne's bounty or otherwise. (57 G. 3. c. 99. s. 55.) Where it appears that the benefice, clear of all deductions, exceeds £400 per annum, the bishop may assign to the curate resident within and serving no other cure, a salary of £100 per anmcm, though the population does not amount to three hundred persons ; or where the actualhicome exceeds £400 per annum, and the populauon amounts to five hundred persons, he may assign him any larger salary not exceeding by more than £50 per annum those in s. 56, required to be assigned to any such curate, (s. 5&.) Lesser Stipends.] By s. 57, smaller salaries may be assigned by the bishop to curates, where, by reason of sickness, age, or other un- avoidable cause, any incumbent has become non-resident or incapable to perform the duties thereof. And, by s. 60, the bishop, in certain cases, may license any person Iiolding a benefice to serve as curate of an adjoining or other parish, with a salary less by a sum not exceeding £30 per annum than that in the several cases herein specified, (viz. in s. 55, 56.) By s. 61, all contracts between incumbents and their curates, in fraud or derogation of this act, shall be void at law, and not pleaded or given m evidence ; and the curate, or his personal representatives, shall be entitled to the full amount of what remains unpaid of the salary specified in his license, and payment thereof, with treble costs, of recovering the same shall be enforced by monition and by sequestra- tion ; provided the application by the curate be made twelve months after quitting his curacy, or by representatives within twelve months after his death. Stipend how recovered.] If the bishop assign the salaiy, the curate's most effectual remedy for his pay is to apply to the ecclesias- tical court, for there, in default of payment, a sequestration may be served on the benefice ; but if the curate have no license he cannot sue in that court. (.lolins. 87.) If he sue for his salary at connnon law, he nuisl prove an agree- 76 MINISTER AND OII'ICERS OF THE ( HURCH. [Chap. III. uient betwLxt himself and the mcumbent; but hi such case he may be called upon to pro^e that he made the subscriptions and declara- tions before-mentioned, and otherwise qualified himself as the law directs. (Johns. 87.) And if he sue for the salaiy accrued after dismissal, without just cause duly notified to him, the defendant will not be permitted to show, m answer to the action, that he removed the plaintiff for /a«/^ by him committed ; for the rector ought to have represented his conduct to the bishop, and applied to him to remo\e him ; or if he himself could remove him on that account, he ought to have notified to him that the cause of his removal was his immoral behaviour. But the death of the rector puts an end to such a contract, and the curate cannot insist upon its continuance against his executors. (Martyn v. Hind, Cowji. 440, Doug. 137.) Stipend recovered by Monition.'] But the 53rd section of the statute already mentioned provides, that the bishop, subject to the pro- visions and restrictions contained in the act, shall appoint to every curate such salary as is allowed and specified in the act, to be specified in the license granted to him; and in case of any dispute touching such stipend, or the payment thereof, the bishop shall stmimarily hear the same; and in case of neglect or refusal to pay such stipend, or the aiTears thereof, he is empowered to proceed by sequestration or monition. The Court of King's Bench held, that this section relates only to licenses granted, and salaries or stipends assigned in some way in confonnity to the act. And that, therefore, a curate cannot have the benefit of a proceeding by monition for the recovery of a salary assigned by a bishop without the consent of the incumbent, the incum- bent being resident on his benefice, and dischaaging the duties gene- rally, but desirous of the assistance of a curate. (R. v. Bishop of Peterborough, 3 Barn, and Cres. 47; 4 Dowl. and Ryl. 720; 2 Add. R. 194.) Notice to quit Residence.] The bishop at any time, on three months' notice m wiiting, may direct any such curate to give up possession of the house of residence, with the appurtenances, which he has been pennitted to occupy by order of the bishop under the 64th section of the act. And such curate shall accordingly do so ; and in case of refusal shall forfeit to the incumbent of the benefice 40s. for each day of such wrongful possession, to be recovered h}^ such rector, &c. in an action of debt in any court of record at Westmm- ster, as any penalties for non-residence under this act may be reco- vered. (57 G. 3. c. 99. s. m.) But the incumbent shall not dispossess the curate without the permission of the bishop and upon the above notice ; and, in case the Sect. III.] CURATES. 77 benefice becomes vacant, the curate shall quit the residence within three months after appointment thereto, on being required so to do by the new incmnbent, and on having one month's notice to quit. (s. 67.) And, by s. 68, no curate shall be permitted to quit until after three months' notice given to the person holding such benefice, and to the bishop of the diocese, unless with consent of the latter, upon pain of forfeiting to such incumbent a sum not exceeding six months' stipend. Registry and Revocation of License.'] The bishop may summarily revoke all licenses granted to any curates employed in his diocese, or subject to his jurisdiction; and may remove such curates for reasonable cause, subject to appeal to the archbishop of the province, to be deter- mined in a summary way. (57 G. 3. c. 99. s. 52.) And copies of licenses and revocations are to be entered in the registry of the diocese, and to be accessible to public inspection on payment of 3s. only ; and a copy of every such license and revoca- tion shall be transmitted by the registrar to the church or chapel- wardens of the parish, &c. to which it relates, within one month after such grant or revocation, to be deposited in the parish chest; and neglect to make such entry, or transmit such copy, is punishable with a penalty of £5. And he shall have from such wardens a fee of 10s., and no more, for every such copy, and such fee shall be allowed hi their accounts. (57 G. 3. c. 99. s. 70.) It would seem by the comprehensive tenns of the statute, that power is given to the ordinary to revoke the licenses of perpetual curates, as well as those of every other description ; and it has been said at common law and in the ecclesiastical courts, his autliority extends thus far, as they are licensed by the bishop as well as others, (Powell V. Milbank, 1 T. R. 399, n.) though he seldom or never exer- cises it in such cases. (Piice v. Pratt, Bunb. 273, Johns. 89.) But the point has never been expressly decided ; and it has been said, that tliey are not to be removed but for such cause as would deprive a rector or vicar. (2 Burn. E. L. 74. 76.) Augmented Curacies.] The 1 G. 1. st. 2. c. 10, — reciting that the late Queen Anne's bounty to the poor clergy was intended to extend to stipendiary preachers or curates, — most of which are not corpora- tions, nor have a legal succession, and therefore are incapable of taking a grant or conveyance of such perpetual augmentation as is intended by the said bounty, and in many places it would be in the power of the donor, impropriator, parson, or vicar to withdraw the allowance, which was before paid to the curate or minister, — it is enacted, that all such churches, curacies, or chapels, which shall be augmented by the governors of the said bounty, shall be from thence- 78 MINISTER AND OFFICERS OF THK CHURCH. [Chap. IIT. fovtli perpetual cures and benefices ; and the nimisters duly nomi- nated and licensed thereunto, shall be in law bodies politic and corjio- rate, and have perpetual succession ; and the impropriators or patrons of any augmented churches or donatives, and the rectors and vicars of the mother churches, whereunto such augmented curacy or chapel doth appertain, shall be excluded from receiving any profit by such augmentation, and shall pay to the ministers officiating, such annual and other pensions and salaries, which by ancient custom or othenvise, of right, and not of bounty, they were before obliged to pay. And for continuing the succession in such augmented cures, hereby made pei-jDctual cures and benefices, and that the same may be duly and constantly sensed, if they shall be suffered to remain void for six months, they shall lapse m Uke manner as presentative linngs. (s. 6.) It has been decided, that the perpetual curate of an augmented parochial chapelry has a sufficient possession whereon to maintain trespass, for breaking and entering the chapel, and destroying the pews ; and that the chapelwarden cannot enter and remove the pews, witliout his consent. (.Jones v. Ellis, 2 Younge and J. 265.) SECTION IV. LECTURER. Origin of Lecturers.^ There is another class of ministers of the estabUshed religion, called lecturers, whose situation in the church presents somewhat of an anomaly, as they are in many cases, though subordinate, not subjected to the controul of the rector or minister of the church in which they discharge their functions ; and in other in- stances, though they have no superior in the church or chapel to which they are appointed, they have not the enjo\anent of all the privileges which usually belong to the person filling the office of chief minister of a church or chapel, of an independent foundation. Lectureships seem to have originated in the piety of the whole body of parishioners, in some cases ; and in others, of benevolent indi- viduals ; from a desire to lighten the burthen of the rector, and to secm'e the due perfonnance of the services of reUgion. In other instances, they have been founded for the purpose of insuring the promulgation or discussion, at particular periods, of some peculiar doctrines in morals or theology. (See R. v. Bathurst, 1 Bla. Rep. 210.) There are also lecturers in most of our cathedrals, whose labours are of course directed by the ordinary rules of church government By whom chosen.] It is a general rule, that no person can be a lecturer, endowed or unendowed, without the rector's consent. But Sect. IV.] LECTURER. 79 there may be a custom to elect without his consent ; anil Avhere it exists, it is binding on the rector, as it supposes a consideration to him. Endoivment may be material in such cases, as furnishing an argument in support of the custom, and to show that it had a legal commencement. (Clinton v. Hatchard, 1 Add. Rep. 103.) The appointment is sometimes vested in trustees, by the will of the founder, or in his heirs, &c. ; but it is very doubtful whether such a lectureship is not null and void, although acquiesced in for a series of years, where it was not fonnally sanctioned by the proper ecclesiasti- cal authorities at the time. (See R. v. Bathurst, 1 Bla. Rep. 210; R. V. Bishop of Exeter, 2 East, 462.) And Lord EUenborough de- clared, that it is not competent to any person to engTaft a lectureship, by compulsion, on the church. A lectureship, in which the consent of the rector or vicar is not requisite, must have a legal commence- ment by custom or act of Parliament ; and in the fonner case, any practice originating within legal memory will not suffice. (Id. 466.) But where there is no fixed lecturer or ancient salary, but the lec- tureship is to be supported only by voluntary contributions, the ordi- nary is the proper judge whether or no any lecturer in such place ought to be admitted. And the Court of King's Bench, upon considera- tion, refused a mandamus to the Bishop of London, to grant a license to a lecturer, under such circumstances, (R. v. Bishop of London, 1 Wils. II ; 2 Stra. 1 192.) And in support of the right of the rector in such cases, it has been said by the comt, no person can use the pulpit of an- other, unless he consents ; but an immemorial usage may partially su- persede his right in this respect, as a good consideration is presumed for it. (R. v. Field, 4 T. R. 125 ; R. v. Bishop of London, 1 T. R. 331.) Election by Custom.] The custom must be good at common law, that is, it must have existed immemorially. The right to elect, where such custom prevails, is generally vested in the parishioners ; and in some instances, where the lectureship has been founded by the bounty of an individual, the election is directed to be made by them in the will of the founder. (See the Churchwardens of St. Bartholo- mew's case, 3 Salk. 87.) But in R. V. the Bishop of Exeter, (2 East, 462,) where the donor devised a rent charge of 50/. per annum, payable out of an impropriate rectory, for the use of a lecturer within the same parish for ever ; and it appeared, that the lectureship was founded in 1658, and conse- quently there could be no immemorial usage ; and as the episcopal constitution was at that time susjiended, there could be no assent of the bishop, rector, and vicar to the endowment ; the Court of King's Bench refused a mandamus to the bishop to license a lecturer mthout 80 MINISTER AND OFFICERS OF THE ClURCH. [Chap. III. the consent of the vicar, although lecturers had heen regularly ap- pointed under the grant, from its foundation to the last vacancy. Bishop's Power herein.] The bishop's power, however, is gene- rally only to judge as to the qualification and fitness of the person, and not as to the right of the lectureship}. And therefore, where the bishop of liondon determined in favour of one of two rival candidates, and gianted an inhibition and monition accordingly. Holt, C. J. said, " A prohibition must go to try the right : it is true, a man cannot be a lecturer, without a license from the bishop or archbishop ; but their power is only as to the qualification and fitness of the person, and not as to the right of the lectureship : and the Ecclesiastical Court may punish the churchwardens, if they will not open the church to the person, or to any one acting under him ; hut not if they refuse to open it to any other." (3 Salk. 87.) Must be licensed.] By canon 36, no person shall be received into the ministry, nor admitted to any ecclesiastical Uving, nor suffered to preach, to catechise, or be lecturer, or reader of divinity in either imiversity, or in any catheckal or collegiate church, city, or market town, parish church, chapel, or any other place within this realm, except he be licensed either by the archbishop or by the bishop of the diocese where^he is to be placed, under his hand and seal, or by one of the two universities, under their seal likewise ; and except he shall first subscribe to the three articles conceminff the king's su- es o premacy, the book of Common Prayer, and the thirty-nine Articles; and if any bishop shall hcense any person \vithout such subscription, he shall be suspended from giving licenses to preach for the space of twelve months. The court will not entertain amotion for a mandamus to the bishop to license a lecturer, ajipointed by the parish, upon the prenous refusal of the bishop to do so, for unfitness in the party elected ; unless it be shown, that the like application had also been made to, and rejected by, the archbishop. (R. v. Bishopof London, 13 East, 419 ; and 15 East, 117.) The affidavit made by the bishop on the latter occasion, stated, that the party elected had been admitted before him with a view to his being " approved and licensed," (which are the words of the act, imposing that function on the archbishop or bishop, before any lecturer may lawfully preach,) that he had madedihgent enquiry concerning his conduct and ministry ; and being conNnnced, from such enquiiy, that he was not a fit person to be allowed to lecture, he had conscientiously determined, after having heard hun, that he could not approve or hcense him thereunto. It is equally open to the party to apply against the archbishop, in case of his declining to enquire as Sect. IV.] LECTURER. 81 to his fitness, with a view to approve or disapprove of him as a proper person to be Ucensed. Subscribe to the Articles.] By canon 37, No one Hcensed as afore- said, to preach, and lecture, or catechise, coming to reside in any dio- cese, shall be permitted there to preach, read, lecture, catechise, or minister the sacraments, or to execute any other ecclesiastical func- tion, (by what authority soever he be thereunto admitted,) unless he first consent and subscribe to the three articles before mentioned, in the pi-esence of the bishop of the diocese, wherein he is to exercise such function. Declaration of Conformity.] By 13 and 14 C. 2. c. 4. s. 19, no person shall be allowed or received as a lecturer, unless he be first approved, and thereunto licensed by the archbishop of the province, or bishop of the diocese, or (in case the see be void) by the guardian of the spirituahties, under his seal ; and shall in the presence of the archbishop, or bishop, or guardian, read the Thirty-nine Articles, with a declaration of his unfeigned assent to the same ; and every person who shall be appointed or received as a lecturer, to preach upon any day of the week, in any church, chapel, or place of public worship, the first time he preacheth, (before his sennon,) shall openly, publicly, and solemnly read the common prayers, and service ap- pointed to be read for that time of the day, and then and there pub- licly and openly declare his assent unto, and approbation of the said book ; and to the use of all the prayers, rites and ceremonies, forms and oi'ders therein contained ; and shall, upon the first lecture-day of eveiy month afterwards, so long as he continues lecturer or preacher there, at the place appointed for his said lecture or sennon, before his said lecture or seraion, openly, publicly, and solemnly read the common prayers and service for that tune of the day ; and after such reading thereof, shall openly and publicly, before the congregation there assembled, declare his unfeigned assent unto the said book, according to the form ' aforesaid ; and every such person who shall neglect or refuse to do the same, shall from thenceforth be disabled to preach the said or any other lecture or sermon, in the said or any other church, chapel, or place of public worship, until he shall openly, pubUcly, and solemnly read the common prayers and service appointed by the said book ; and conform in all points to the things therein prescribed, according to the purport and true intent of this act. In Cathedrals.] Provided, that if the said lecture be to be read in any cathedral, or collegiate church, or chapel, it shall be sufficient for the said lecturer openly, at the time aforesaid, to declare his assent 82 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. and consent to all things contained in the said book, according to the form aforesaid, (s. 20.) Common Prayers.'] Provided, that at all times, when any sermon or lecture is to be preached, the common prayers and senice, in and by the said book appointed to be read for that time of the day, shall be openly, pubUcly, and solenmly read by some priest or deacon in the church, chapel, or place of public worship, where the said ser- mon or lecture is to be preached before such sermon or lecture be preached, and that the lecturer then to preach shall be present at the reading thereof, (s. 22.) Punishment.] And if any person, who is by this act disabled, [or prohibited 15 C. 2. c. 6. s. 7,] to preach any lecture or sermon, shall, during the time that he shall continue so disabled (or prohibited,) preach any sermon or lecture, he shall suffer three months unprison- ment in the common gaol ; and any two justices of the peace of any county within this realm, and the mayor or other chief magisti'ate of any city or toAvn coi-porate within the same, upon certificate from the ordinary made to him or them of the offence committed, shall, and are hereby required, to commit the person so offending to the gaol of the same county, city, or town corporate, (s. 21.) University Churches.] And provided, that this act shall not ex- tend to the university churches, where any sermon or lecture is preached there as and for the university sennon or lectm*e ; but the same may be preached or read in such sort and manner as the same hath been heretofore preached or read. (s. 23.) SECTION V. — CHURCHWARDENS. Sidesmen.] It seems, that soon after the institution of episcopal synods, it was the practice of the bishops to summon some of the most reputable persons from every parish to give information of the state of morals, and to attest the disorders of the clergy and people. They were called testes synodales, and became in time a species of inquest j my, consisting of two or more persons in every parish, and thence sometimes called questmen, and were bound by oath to present all heretics and other m-egular persons. (Ken. Par. Ant. 649.) In process of time they became standing officers, — called synodsmen, hence sidesmen, and, by canon 90, they were to be chosen yearly in Easter week by the minister and parishioners, or, in case of their disagree- ment, by the ordinary of the diocese. The office still exists in some paiishes, though, in many cases, its whole duties having de\olved upon the churchwardens, sidesmen are no longer chosen. But where the Sect, v.] CHURCHWARDENS. 83 ofFice has been preserved, the right of election vests in the minister and parishioners, unless there be a special custom to the contrary, precisely in the same manner as the appointment to the office of churchwarden. Sidesman's Oath.'] The sidesman's oath is as follows : " You shall swear, that you will be assistant to the churchwardens in the execution of their office, so far as by law you are bound. So help you God." (Gibs. 216.) Churchwardens a Corporation.] Churchwardens are the guar- dians or keepers of the church, and representatives of the body of the church. They are, in favour of the church, 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 then' predecessors. (2 Saund. 47 c.) They may take money or things by legacy, gift, &c., for the benefit of the church. (Attorney General v. Ruper, 2 P. Wms. 125.) But one churchwarden cannot singly dispose of thegoodsof thepaiish, (Cro. Car. 234,) nor both with- out the consent of the parishioners. ( 1 Roll. Ab. 393 ; 1 Vent. 89 ; Yel. 173.) Nor have iXx&y 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.) Who may be elected.] Churchwardens are usually two in number ; and, although it has been said that the parishioners may choose and trust whom they think fit, without limitation, (Morgan v. The Arch- deacon of Cardigan, 1 Salk. 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. R. 10.) Therefore, if a parish ]-eturn an alien, a Papist, or a Jew, or a child of ten years of age, or a person convicted of felony, (none of whom are qualified for the office,) " I conceive the ordinary would be bound to reject." (Sir Wm. Scott, id.) But poverty is not a disqualification; and therefore where, to a mandamus to swear in a churchwarden, the return was, that he was pauper lactarius, et servus minus habilis, (a poor dairyman, and unqualified for the office,) the court held the return insufficient, and a peremptory mandamus issued ; for it is at the peril of the parishioners who elect him, if he miscon- duct himself. The ecclesiastical judge cannot controul the election. (1 Salk. 166; Rex. v. Simpson, 1 Stra. 609.) r. 2 84 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. Who are Exempt.] The exemptions from serving the office in- clude, peers of the reahu, members of parliament, and clergymen, (Gibs. 215,) Roman Catholic clergy takuig the oath, and subscribuig the declaration provided by 31 G. 3. c. 32, and dissentmg ministers, (see tit. Dissenters;) barristers and attomies, (Com. Dig. tit. Attor- ney;) clerks in court, (1 Rol. Rep. 368;) physicians, surgeons, apothecaries, aldermen, dissenting teachers, and persons livhuf out of the parish, although they occupy lands within it. (Gibs. 215.) But if they occupy a house of trade there, although they take their meals and sleep in another parish, they are liable. (Stephenson v. Langs- ton, 1 Hagg. R. 379.) In this latter case the defendant was chosen sheriff of another county pending the suit, which the court held would exonerate him, though he was condemned in the costs. The judgment of the Court of King's Bench in Rex v. Po\aider is also to the hke effect. In this case it was held, under similar circum- stances, that each of three pailnei-s in trade was liable to serve the office of overseer as a householder within the 43 Ehz. although no one of them resided on the premises. (1 Bam. and Cres. 178; 2 Dowl. and Ryl. ^58.) When one having privilege is chosen, a writ goes to the ecclesias- tical court, that he be not sworn. (Palm. 392.) Serving by Deputy.] The Toleration Act, (1 W. and M. c. 18. s. 7), provides, that if aiiy person dissenting from the church of England be appointed to the office of chiu-chwarden, or any other parochial office, and scruples to take the oaths, &c., he may execute the same by a sufficient deputy, to be approved m such manner as the officer himself should by law have been allowed and approved; and the same rehef is extended to Roman Catholics by the 31 G. 3. c. 32. s. 7. When and by ivhom chosen.] The churchwardens shall be chosen the first week after Easter. (Canon 90.) 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 cirrate may stand in the place of minister for this purjjose, (Hubbard v. Penrice, 2 Stra. 1246;) and without such joint or several choice, none shall take upon themselves to be churchwardens. (Gibs. 241.) In the churchwardens of Northampton's case, (Carthew 118,) Holt, Chief Justice, is reported to have said, " Of common right the choosing churchwardens belongs to the parishioners ; 'tis tnie, in some places, the incumbent chooses one, but that is only by usage ; and tke canon conceming the choosing of chm-chwai"dens is not regarded Sect, v.] CHURCHWARDENS. 85 by the common law ; this was tlie opinion of Lord Chief Baron Hale, as may be seen in Dawson v. Fowle^ Harch-es. 378." But in Slo- combe v. St. John, tiied at the Croydon Summer Assizes, 1829, which was an issue, to ascertain whether the right of election was in the jiarishioners, in exclusion of the minister, and in support of the afRnna- tive the above decision in Carthew was quoted, and, on the other side (IBurn. Ec. L. 401 ;) and the authorities there collected were relied upon, it was held by Park, J., that in general the minister and the pa- rishioners are to choose the two churchwardens, and if they do not concur, then the minister is to choose one and the parishioners the other ; and though the evidence estabUshed that, generally, for upwards of two hundred years, the minister and parishioners concurred, yet there was no evidence that the minister had ever separately appointed one, still this was not enough to support a supposed custom in exclusion of the minister, because their long concurrence was not sufficient to alTcct the general right. Where the right of appointing exists in the parishioners, it is to be exercised in vestry assembled ; and the parson cannot intermeddle in the election. (Stougliton v. Reynolds, 2 Stra. 1045.) Where it is the custom for the parson to choose one churchwarden, and he is under sentence of deprivation, the right to elect both results to the parishioners. (Cai'th. 118.) And, by custom, both may be chosen by the parishioners without the pai*son, (2 Roll. 234. 1. 15 ; Warner's case, Cro. Jac. 532 ;) or by a select vestry, or a particular number of the parishioners. (Hard. 379; 1 Mod. 181.) But where the cus- tom was for the old churchwanlens to choose one of the new ones, the parson choosing the other, and they could not agree, but one of them presented a jjei'son of the name of Berwick, and thereupon the parishioners at large chose one named Catten, the court held, that by this disagreement betv^een the old churchwardens, the custom was laid out of the case ; and then they must resort to the canon, mider which, Catten being duly elected, they decreed for him with costs. (Catten v. Berwick, Stra. 145.) Chosen by Lord of Manor.] In some places the lord of the manor prescribes for the appointment of churchwardens ; but this shall not be tried in the ecclesiastical court. (Godb. 153; 2 Inst. 653.) Custom in London.] In most of the parishes in London the parishioners choose both churc^hwardens by custom ; yet in all the new-erected parishes, under 9 Ann. c. 22, the canon shall take place, (uidess the particidar act, in virtue of which any church was erected, shall have specially provided that the parishioners shall choose both,) 86 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. inasmuch as no custom can be pleaded hi such new parishes. (Gibs. 215; Co. Litt. 113.) On an issue, whether a churchwarden ought to be elected by the select vestry, a record between a fonner churchwarden and another person, is admissible evidence. (Berry v. Bonner, Peake 156.) How chosen in new Churches.^ The legislature, in the recent provisions for the erection of additional churches, &c., have framed the enact:nent upon this subject upon the same principle as the canon which regulates the light to elect in all cases, where there is no cus- tom to the contrary. By the 58 G. 3. c. 45. s. 73, it is provided, that two fit persons shall be appointed churchwardens for every church or chapel built or appropriated under the act, at the usual period of appointing parish oiEcers in every year, one by the incumbent, and the other by the inhabitant householders in the district, and shall be admitted and sworn according to law. They shall 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 shall continue in office till others be chosen ; and, on non-payment of the rents of seats and pews, may enter upon and sell the same, or recover them by action, in the names of " The Churchwardens of the Chm'ch or Chapel of," [describing the same,] without specifying their own names ; and no such action shall abate by their death or going out of office. And, by section 74, church- wardens of every parish in which any additional chapel shall be built or provided under the act, without making any division thereof into separate parishes or district parishes, shall do all such things as chmxh- wardens to be appointed under the act are authorized and required to do. Mode of Election.] The churchwardens, whose office is about to expire, are properly the returning officers at such elections ; but it is not indispensably necessary that the court should be informed, by this method, where an election is disputed, provided satisfactory informa- tion of the election be given in any other way. (Anthony v. Seger, 1 Hagg. R. 9.) If, after a show of hands, a poll is demanded, it destroys the previous voting by a show of hands ; and every thing anterior is not of the substance of the election, nor to be so received ; and consequently, where one of three candidates had many hands held up in his favour, but aftenvards did not poll any votes, he could not be taken as elected, upon one of the persons returned being aftenvai-ds found ineligible. (Id.) As to the proper mode of voting, see Faulkner v. Elger, 4 Bam. & Cres. 449, (ante, p. 71.) If there be a custom to Sect, v.] CHURCHWARDENS. 87 conclude the poll for the election at a certain time, that being a rea- sonable time, the voters must tender their votes \vitliin it. (Rex v. the Commissary of the Bishop of Winchester, 7 East. 573.) The power of adjourning the poll seems to be in the voters. (Stoughton V. Reynolds, 2 Stra. 1045.^ And any attempt to disturb the election is punishable in the ecclesiastical court. (Wilson v. M'Math. 2 Barn. & Aid. 48.) Double Return.'\ If there be a contest as to the right of making the election, and two sets of churchwardens be chosen in consequence, the commissary or ordinary, it is said, is bound to swear them all ; and a mandamus lies to compel him to do so, in order that both parties may be made capable to try the right, (but see Mandamtis to Admit, infra.) The right can only be detennined in an action at law, as they are temporal officers ; and a prohibition lies, if the spiritual court entertains such a suit. ( WiUiams v. Vaughan, 1 Bla. Rep. 28 ; 2 Roll's Abr. 287. Rex v. Harris. 3 Bun-. 1420. Evelin's Case, Cro. Car. 551. King's Case, 1 Keb. 517. Warner's Case, Cro. Jac. 532.) Quo Warranto.'] The writ of quo warranto will not be granted, as the office does not concern the rights or prerogatives of the crown ; for which only the old writ of quo warranto lay ; and an infonnation in the nature of a quo warranto can only be granted in such cases. (Rex V. Shepherd, 4 T. R. 381. Rex v. Dawbeny, 2 Stra. 11 96.) Mandamus to Elect.'] If the parishioners and minister neglect to choose churchwardens, the ordinary, nevertheless, cannot interfere. Thus a prohibition was granted to the spiritual court, where it was libelled against the defendant for not ajjpeaiing to take the office of churchwarden, though thereunto appointed by the ordinary. And it was held, that although the parishioners and parson neglect, for ever so long, to choose churchwardens, yet the ordinary hath no j mis- diction; for churchwardens are a corporation at common law. And, by the court, " the proper way is to take a mandamus out of the King's Bench." (Stutter v. Freston, Stra. 52.) Upon the authority of this dictum Mr. Nolan says, " If those persons, who ought to choose churchwardens, neglect to do so at the proper season, they may be compelled to it by a writ of mandamus. (1 Nol. P. L. 44.) But, in a more recent instance, the Court of King's Bench refused to grant a mandamus to churchwardens to call a vestry in Easter week for the election of churchwardens, saying, 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. (Anon. 2 Stra. 686. See Com. Dig. Mandanuis, (B.) Mandamus to Admit.] Tlie authorities are somewhat at variance 88 MINISTER AND OFFICERS OF THE CHURCH. [Chap. Ill, upon the question, whether to a mandamus to stvear in a church- warden, a return that the party was not elected, is good ; and, as he might try the vahdity of his election in an action for a false return, there does not appear any very strong reason against the decisions, that such a return may properly be made. (See Rex v. White, Ld. Raym. 1379—1405; 2 Salk. 433.) But all doubt upon the subject may be considered as having been put at rest by the decision in R. v. Williams, (8 Bam. andCres. 681,) wherein Bayley, J., after an elaborate review of the cases touching the question, held with the full concurrence of the other puisne judges of the court, that a return stating that the party was not duly 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 duly elected, otherwise he would be bound to admit any person who pre- sents himself for admission, even if he knew the fact to be that such person was never elected. The paity, who obtains the mandamus, states the foundation of his right in the WTit. 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. Seger, 1 Hagg. Rep. 10.) Must be Sworn in.'] Churchwardens, nnmediately after their elec- tion, are to take an oath to execute the office truly and faithfully, (Gibs. 243) ; and they must not enter upon their office till they are sworn. After being duly elected, they may be directed by the spiritual court to take the oath before the proper officer, (Cooper v. Allnut, 3 Phil. Ec. Ca. 166); and they may be excommunicated for refusal, and no prohibition will lie. (Gibs. 216. 243—961.) By whom Sworn.] The oath is to be administered by the arch- deacon or proper ordinary of the diocese. No fee can be demanded for swearing the churchwardens, or taking their presentments. (Goslin V. Elhson, 1 Salk. 330.) By the canon, (1 Jac. 89,) they are to continue in office one year, except they are again chosen in like manner. (Com. Dig. Esglise, F. 1.) But this refers only to the time when others should be appointed in their stead ; for when once sworn in, they continue in office until theu* chosen successors take the oath in hke manner. (Canon 188. Burn. ; Ec. L. 410.) The Oath.] The fonn of the oath is as follows : " You shall swear truly and faithfully to execute the office of a churchwarden within your parish ; and, according to the best of your skill and knowledge, present such things and persons as to your knowledge are presentable by the laws ecclesiastical of this realm. So help you God, and the Sect, v.] CHURCHWARDENS. 89 contents of this book." (Gibs, 216. Sec Hardres Rep. 364. Rex v. Pratt, 3 Keb. 206.) By 13 & 14 W. & M. c. 6. s. 14, & 1 G. 1. st. 2. c. 13. s. 20, churchwardens are exempted from taking the oaths of alle- giance, supremacy, abjuration, &c., on entering their offices. Their Rights in Personal Property.'] It has already been obsei'ved, 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 Bum. Ec. L. 408.) 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 parishioners, for the goods belong to them; and the church wai'dens can do nothing to the disadvantage of the church. ( 1 Rol. Ab. 393 ; 13 H. 7. 10. a. ; Yelv. 173 ; and 2 Brownl. 215.) And the license of the ordinary is also said to be necessary: therefore if it is thought expedient to sell an old bell, towards other repairs, or to dispose of old communion plate to buy new, &c., the churchwardens cannot safely do it without first obtaining the con- cuiTence of the above parties. But although the goods belong to the })arishioners, the churchwardens are the corporation in whom they are vested ; and consequently, if they improperly dispose of them, the parishioners cannot sue thereupon, either to recover them, or other- wise ; 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 suit against them for any damage done the parish, by their violation of the trust reposed in them. (Prid. Direct. 78.) And they may bring their action against their predecessors, for money remaining in their hands ; and they are not bound to make all the present or late churchwardens plaintiffs or defendants. (Astle v. Thomas, 2 Barn, and Cres. 271. 3 Dowl. and Ryl. 492. J Where an obligation is made to churchwardens and their succes- sors, and they die, their executors shall have action, and not their successors. (Vin. Ab. Churchwardens, D.) Their Rights in real Property.] But their corporate character does not enable them to purchase lands, or to take by grant, (12 H. 7. 29 a. ; 1 Rol. 393. 1. 10,) except in London, where they are a coqjoration for those jjurposcs also, (Gibs. 215; Warner's case, Cro. Jac. 532) ; and therefore, gifts of land to the parish, for the use of the church, should be to feoffees, in trust to the use intended; which should be from time to time renewed, as the trustees die off; and the churchwardens cannot grant leases of such lands, nor maintain tres- pass or other action, for entry or taking possession of them. (1211. 00 MINISTER AND OFFICERS OF THE CHURCH. [Chap, III. 7. 29, n.) Nor can they prescribe to have lands to them and their successors. (Vin. Ab. Churchwardens, A.) They are however enabled, jomtly with the overseers, by the 9 G. 1. c. 7. s. 4, with the consent of the major part of the parishioners or inhabitants in vestry, to purchase houses to lodge and employ the poor in; and the 59 G. 3. c. 12. s. 17, enacts, that churchwar- dens and overseers shall take and hold, in the nature of a body cor- porate, for and on behalf of the parish, all buildings, lands, and tene- ments belonging to the parish. But it was held, that in order to consti- tute the body corporate intended by this act, there must be tAvo over- seers, and a churchwarden or churchwardens ; and that where there were two overseers appointed, one of whom was afterwards ap- pointed (by custom) sole churchwarden, the act did not vest parish property m them. (Woodcock v. Gibson and Ors. 4 Bara. and Cres. 462 ; 6 Dowl. and Ryl. 524.) So a lease of parish land, gi'anted by churchwardens alone, is invalid. (Phillips v. Pearce, 5 Bam. and Cres. 433; 8 Dowl. and Ryl. 43.) Their Ecclesiastical Duties.'\ Most of the duties of churchwai'- dens will appear incidentally under different heads in the course of the work ; for which see the proper titles respectively, and the index. The great changes in the manners and habits of the people, have relieved churchwardens from the in^adious task of enforcing the attendance of the people upon the services of religion ; and presenting those to ecclesiastical 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, in preserving due decorum in the time of divine service. Thus, they may justify taking off the hat of a person who refuses to do it himself, upon request. (Hall v. Planner, 1 Lev. 197.) And they are, to a certain degree, the guardians of the moral cha- racter, and public decency of their respective parishes. (Griffiths v. Reed and Hanis, 1 Hagg. Rep. N. S. 208.) Their Duty respecting the Minister. 1 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 for non-residence, or for iiTegular and incontinent living, or any other excess or in-egularity calculated to biing disgrace upon their sacred office. If the minister introduces any in'egularity into the service, the churchwardens have no authority to interfere ; but they may and ought to repress all indecent inteiTuption of the service by others ; and they desert their duty if" they do not. And if a case could be ima- Sect, v.] CHURCHWARDENS. 91 gined, in which even a preacher himself were guilty of any act, grossly offensive, either from natural infinnity, or from disorderly habits, it seems, that the churchwardens, and even private persons may inter- pose, to preserve the decorum of pubUc worship ; but that is a case of mstant and overbearing necessity, that supersedes all ordinary rules. In cases which fall short of such a smgular pressure, and can await the remedy of a proper legal complaint, and a private and decent appli- cation to the minister lumself, fails in preventing a repetition of the hregularity, tlie churchwardens may complain to the ordinary. (Hutch- ins v. Denziloe and Another, 1 Hagg. R. 174.) Duty as Sequestrators.^ It is part of the office of churchwardens to have the care of benefices during their vacancy, whether by death of the incumbent or otherwise. Upon any such avoidance, they ai'e 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 expences, 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 every thing 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 ap2>lied 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. (See 28 H. 8. ell.) Although the churchwardens are the proper officers for this busi- ness, and are bound to perform it if required, yet the ordinary may confide the trust to others, willing to accept it. (3 Bum. Ec. L. 340.) Sequestration for Debt.} Benefices are sometimes sequestered though not vacant ; as on a suspension, in order to provide for serving the cure ; and in the case of dilapidations of the chancel, or the minister's house, for repairing them; sometunes a sequestration is commanded by the King's writ, for the payment of the minister's debts, which is tantamount to a Jieri facias against a lay person; in all which cases, the same obligation rests upon the chm-chwardens, unless the ordinary finds other persons whom he judges proper to intrust with the duty. It is customary for the ordinary to take a bond, which may be sued upon at law, in case the sequestrators (who are a kind of bailifi" to the bishop) do not give a faithful account of their trust. (See Prideaux on Churchwardens.) Creditor Sequestrator.] The creditor is the person to whom the sequestration is usually granted, when it is issued for the purjiose of levying in satisfaction of a debt, for which a judgment has been ob- 92 MINISTER AND OFFICERS OF THE CHURCH. [CLap. III. tallied ; but that is only for the convenience of proceeding under it, and by the authority of the bishop ; but such creditor cannot assume a preference, which a third person would not be compellable to allow. (Hubbard v. Beckford, 1 Hagg. R. 312.) But it is the duty of the Comt to carry the writ into immediate execution. (Campbell v. White- head, id. in note.) Subsequeyit Seqiiestration.'] A creditor, who has obtamed a subse- quent sequestration, whilst a rectory is already under a prior one, is entitled to an account in equity against such first sequestrator; and payment of the suri)lus, after satisfaction of the first creditor ; nor are prior incumbrancers, who have not obtained sequesti-ation, necessary parties to the suit. (Cuddington v. Withy, 2 Swanst. 174.) . Under a sequestration, the landlord is entitled to be paid arrears of rent. (Dixon v. Smith, 1 Swanst. 457.) Seqtiestration limited.1 In all cases, the sequestrators are not to meddle with any timber, trees, wood, or undei-wood standing upon the glebes of the hving, unless it be for necessaiy repairs of the church or pai'sonage ; nor commit any other waste thereupon. (9 H. 3. c. 5.) And in the case of a sequestration for dilapidations, all the profits are not to be taken, but a portion is to be left to the muiister for his live- lihood. (Anon. 2 Vent. 35.) There can be no sequestration of an impropriate rectoiy ; for bemg a lay fee it is out of the jurisdiction of the ecclesiastical courts, and the parties must be proceeded against as laymen, for not repairing the church. (Id.) Churchwardens' Presentments.^ At the Easter visitation, when the churchwardens go out of office, and before their successors arc sworn, they must make their presentments of all things amiss within their parish. (4 Bum. Ec. L. 25.) Passing their Accounts.'\ At the end of their year, or within a month afterwards, the churchwardens must, before the minister and parishioners in vestry, present theii* accounts of receipts and disburse- ments ; 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 the churchwardens, must be delivei'ed over to their successors; with the goods, &c. of the church, according to the m- ventory, by bill indented. (Canon 89.) Must produce Accounts.} The Ecclesiastical Court may compel the production of accounts, but caimot dispute the validity of them when produced ; for the ordinary is not to take the account, but only to give judgment, that the chm-chwardens do account. ( Wainwright v. Bagshaw, 2 Strange, 974; Adams v. Rush, 2 Strange, 1133.) Nor Sect, v.] CHURCHWARDENS. 93 can that Court pi'oceed against them, to account upon oath, after they have passed their accounts hefore the vestry. (Snovvden v. Ilen-ingy Bunb. 289.) And a custom to account to a select vestry, or a cer- tain number of persons, having the government of the parish by custom, is good and sufficient. (Gibs. 216.) If the Spiritual Court take any step after the accounts are delivered in, it is an excess of jurisdiction, for which a prohibition will be gTanted, even after sentence. (Leman V. Goulty, 3 T. R. 3.) They are bound in common with the overseers, to permit an inspection of their accounts ; and upon the party stating some special reason, for which he wishes to see the accounts, a mandamus to compel them to allow such inspection will be granted ; and it is no answer to such an ajjplication to the Court that the statute 17 G. 2. c. 38, im- poses a penalty for improperly refusing such mspection. (R. v. Clear, 4 Barn, and Cres. 899 ; 7 Dowl. and Ryl. 393.) Proof of Disbursements.] The oath of the churchwardens is gene- rally held sufficient, with resjject to all items in their accounts under 40s., unless they are suspected to be unfair ; but the jiayment 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.) Disbursing oivn Money.] Churchwardens should, on no occasion, except for the immediate relief of the poor, in their capacity of over- seers, when there is no rate, or during an appeal, (41 G. 3. c. 23. s. 9.) advance their own money for parochial purposes ; but should take care that such pui-poses are provided for by a previous rate, duly made, as a rate cannot legally be imposed subsequently, to reimburse them. Nor can a mandamus to compel them to make a ratebe gi'ant- ed. (R. V. Wilson, 5 Dowl. and Ryl. 602.) See " Church Rate." Responsible for Church Goods.] The churchwardens may be cited by the ordinary, to give further account 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 his consent, in order to defray any part of the church rates or expences, 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 ; otherwise, the parishioners might combine to defraud the church of her costly ornaments, plate, and other goods, to relieve themselves from the rates, or for their private emolument. (Godb. 279 j Prid. Direct. 94. See Bishop's case, 2 Roll. R. 71.) 94 MINISTER AND OFFICERS OF THE CHURCH. [Cllfip. III. Their Agreements valid.] Churchwardens in their corporate capacity, may enter into reasonable agi'eements, beneficial to the parish, which shall be binding on their successors, and the parishion- ers. Thus in the case of Dr. Martin and Lady Arabella his wife, v. Nutkin and others, (2 P. Wms. 268,) it appeared that Lady Arabella being of a sickly constitution, was much disturbed by the ringing of the five o'clock bell every morning, as was the custom in the parish ; and was about removing elsewhere, but it was agreed between the plaintiffs and the parish, upon a vestry being duly convened for the purpose, that the linging should cease during the lives of the plaintiffs and the survivor of them, they covenanting, in consideration thereof, to build a cupola to the church, and erect a clock and new bell. The plaintiffs perfonned their covenants in the deed executed between them and the parish ; and the bell was silenced for about two years ; when the defendant Nutkin obtained a new order of vestry, for ringing the five o'clock bell, but an injunction was granted by Lord Chancellor Macclesfield, to continue during the lives of the plaintiffs, and the survivor of them ; especially as it appeared that ;the majority and better part of the parish continued willing to abide by the agree- ment, and protested against the new order. May bring Actions.] We have already seen, that churchwardens may bring actions for recovery of, or damage done to the goods of the church. See (1 Bac. Ab. 372;) but such actions must be in the joint names of both ; and if one execute a release, or give a discharge to such action rightly commenced, it is null and void ; as are all official acts, where one takes upon himself to act alone, except in pre- sentments, where one may know of offences of which the other is ig- norant ; or which the other may previously and wickedly refuse to present, though known to both. If the damages for which they sue were done in their otvn time, they may lay the action either in damnum parochianorum, or in damnum ipsorum ; but if in the time of their predecessors, or the action be against their predecessors for defaults in office, it must be in damnum parochianorum. (Hadman and Another v. Ringewood, Cro. Eliz. 179; Attorney-General v. Ruper, 2 P. Wms. 125. See 6 Bac. Ab, 565.) And though they cannot commence a suit in their own names, after their office has ex- pired, yet if commenced before, they may proceed in it afterwards, ex necessitate rei. (Dent v. Prudence and Another, 2 Stra. 852.) And churchwardens de facto, may maintain an action against a former churchwarden, for money received by him for the parish, though the validity of the election of the plaintiffs to the office be doubtful, and though they be not the immediate successors of the defendant. (Turner Sect. V.]' CHURCHWARDENS. 05 V. Baylies, 2H. Bla. 559.) But churchwarclens cannot sue at law for a legacy, or a thing never in their possession. (Com. Dig. Esglise, F. 3.) Proceedings against.^ Churchwardens may be removed for mis- behaviour, and others chosen before the year expires. (Lamb. Off. Ch. sect. 3 ;) or they may be sued for neglect of duty in the Eccle- siastical Court. (Welcome v. Lake, 1 Sid. 28 L) So an indictment lies against them, if they take money, &c. corrupte colore officii, and do not account for it, (Rex v. Eyo-es, 1 Sid. 307 ;) but they cannot be sued by their successors ; for a thing honestly done ratione ofjlcix. (Godb. 279.) If a churchwai'den be committed for not accounting as overseer, it must be expressed in the mittimus, that he is committed in the latter character ; for though the latter office is annexed to the former, the justices have no power over him as chuichwarden. (Rex V. Pecke, 1 Keb. 574.) By 9 G. 3. c. 37, churchwardens, for paying the poor otherwise than in lawful money, are to forfeit to the poor not less than 10s. nor more than 20s. And by 39 & 40 G. 3. c. 99. s. 28, churchwardens and overseers on notice from a justice of the peace, are to prosecute pawnbrokers offending against that act, at the expence of the parish. Protection ivhen sued-l If an action be brought against church- wardens, or any persons called sworn men, executing the office of churchwarden, for any thing done virtute officii, they may plead the general issue, and give the special matter in evidence ; and if they obtain a verdict, or the plamtiff be nonsuit, or discontinue, they shall have double costs. (7 J. c. 5. 21' J. c. 12 ;) but this right of double costs does not extend to actions against them, arising out of their presentments, for matters of favour in the Spiritual Com'ts; but is confined to temporal affairs, concerning then- office. (Kircheval v. Smith, Cro. Car. 285.) And the above statutes do not extend to actions against them for non-feasance, such as the non-payment of money, laid out for the support of one of their paupers by another parish ; and for which an action of assumpsit was brought against them. (Atkins v. Banwell, 3 East, 92.) Nor are they entitled to double costs, on judgment as in case of a nonsuit, in an action brought against them, for the price of goods sold and delivered to them for the use of the poor. (Blanchard v. Bramble, 3 Maul, and Sel. 131.) Decayed Buildings.'] By the Metropolis Building Act, if a pre- sentment be made by any jury, duly constituted within the limits of the act, that any house or building is in a ruinous condition, the Court of Mayor and Aldermen within the city and liberties of London, or the churchwardens or overseers of the pax'ish or jjlace, not beiii"' in the city, on notice of any such presentment being made, and a copy 96 MINISTF.R AND OmCERS OF THF. CHURCH. [Chap. III. thereof being laid before them or him, are authorised to cause, with all convenient speed, a proper hoard to be put up for the safety of passen- gers ; and to give notice thereof to the owner, or, in case no owner can be found, to affix it on the door or most notorious part of the building, to repair or pull do^\Ti such building, as the case may reqmre, within fomteen days; and, if this is not comphed with, upon proof on oath before the lord mayor- m the city, or a justice of the peace elsewhere, of the notice having been so given or affixed as aforesaid, the mayor and aldei-men in the city, or the churchwardens and overseers in the other parts of the metropolis, may cause the repau's, &c., to be done, or the premises taken down, &c,, out of the parish funds, &c., and may re-unburse themselves from the materials, &c., accounting for the suiqjlus to the owner of the premises ; but, if enough is not raised by the sale of such materials to refund all the expenses incmred, the owner must make good the deficiency to the churchwardens, &c., which may be levied by distiess and sale of such owner's goods ; and, if no owner can be found, then the next person occup}'ing the pre- mises, or the scite thereof, is to deduct it out of the rent. (14 G. 3. c. 78. 3. 70, 71.) SECTION VI. — PARISH CLERK. Origin of Office.'\ Parish clerks were heretofore chosen from among the poorer candidates for the clerical office, of whom every minister had at least one to assist under him in the celebration of divine offices. For his better maintenance, the profits of the office of aquiebajalus, (an assistant in carrying the holy water,) were an- nexed to the office of parish clerk ; so that in after-times aqucBbajalus was only another name for the clerk officiating imder the chief minis- ter. (Lind. 142.) His Qualifications.'] By canon 91, it is requii'ed, that the said clerk shall be twenty years of age at least, known to the minister to be of honest conversation, and sufficient for his reacUng, writing, and also for his competent skill in singing, (if it may be.) By tvhom cJiosen.] The nomination of clerks, it is said, was at one time vested in all incimibents, by the common law and custom of the realm. (Gibs. 214.) But differences ha\dng arisen between minis- ters and their parishioners about the conferring of such offices. Arch- bishop Boniface decreed, that the same rectors and vicars, whom it more particularly concerned to know who were fit, should make the choice. Sect. VI.] PARI.SH CLERK. 97 Chosen by Minister.] And, by canon 91, no parish clerk, upon any vacation, shall be chosen within the city of London, or elsewhere, but by the parson or vicar ; or, where there is no jjarson or vicar, by the minister of that place for the time being ; which choice shall be signified by the said minister, vdcar, or parson, to the parishioners, the next Sunday following, in the time of divine service. Election by Custom.] Since the making of the above canon, the right hath often been contested between incumbents and parishioners ; and wherever it has appeared to be in the latter by custom, a prohibition has issued to the ecclesiastical court, in order that the question might be detennined at the common law. Custom preferred to Canon.'] The parish of St. Alphage, in Canterbury, prescribed to have the election of their parish clerk ; and, by the canon, the election of the clerk was given to the vicar. It was adjudged, however, that the prescription should be prefejTed before the canon ; because the party chosen is a mere temporal man, and the custom is merely temporal, so as the official cannot deprive him ; but upon occasion the parishioners might displace him. (13 Co. 70; Hughes 275.) So in Jennyn's case, where the rector and clerk sued in the spiritual court, to have the said clerk established, having beea nominated according to the canon, but disturbed by the parishioners ; and the churchwardens and parishioners prayed a prohibition, upon the surmise of a custom for the vestry to elect : after divers motions a prohibition was granted ; for they held that it was a good custom, and that the canon cannot take it away. (Cro. Ja. 670; Townsend V. Thoi-jDC, 2 Raym. 1507.) So, though he is in without deed. (2 Salk. 536.) How admitted.] Parish clerks, after having been duly appointed, are usually licensed by the ordinary. (Johns. 204.) And sworn to obey the minister. (Johns. 205.) And if a parish clerk hath been used innnemorially to be chosen by the vestry, and admitted, and swoni before the ai'chdeacon, and he refuse to swear him, but admit- teth another, chosen by the parson, a mandamus lies to the archdeacon, commanding him to swear him. (2 Rol. Ab. 234; Vin, Ab. Man- damus H. ; Bac. Ab, Mandamus (C.) Remuneration.] It seems that parish clerks cannot claim any thing by way of a certain allowance or endowment, by reason of their ofiice of aquehajalus. But their sustentation ought to be collected and levied according to the maimer and custom of the country. And hereunto the parishioners may be compelled by the bishop. (Lindw. 143.) Customary Recompense.] A custom of this kind is good and II 98 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. laudable ; that every master of a family, (for instance,) on every Lord's day, give to the clerk somewhat according to the exigency of his condition ; and that, on Christmas day, he have of every house one loaf of bread, and a certain number of eggs at Easter, and in the autumn certain sheaves. Also that may be called a laudable custom, where such clerk, every quarter of the year, receiveth some- thing in way of money for his sustenance, which ought to be col- lected and levied in the whole parish. (Lind. 143; Gibs. 214.) But, if he sue for these things in the spiritual court, a prohibition lieth. (2 Rol. Ab. 286.) Clerk's Rate.^ In some instances a custom to levy so much money every year for his recompense is set up ; and though, by canon 9 1 , it is ordauied that he shall have his ancient wages, and sue for them in the ecclesiastical comt, yet Holt, C. J., said, a clerk of a parish is neither a spiritual person, nor is this duty in demand spii-itual, for it is founded on a custom, and, by consequence, triable at law; and therefore the clerk may have an action on the case against the churchwardens, for neglecting to make a rate, and to levy it, or if it had been levied, and not paid by them to the plaintiff. (Parker v. Clarke, 6 Mod. 252 ; 3 Salk. 87.) So in Pitts v. Evans, a prohibition was granted to a suit by the clerk of St. Magnus, for 1*. Ad. assessed on the defendant's house, at a veslry in 1672, to be paid to the parish clerk ; for, if such a rate is due by custom, he may maintain an as- sumpsit, if not a quantum meruit, or a bill in equity. (Strange 1 108; 13 Vin. Ab. 155.) A temporal Officer. '\ It is said, that a paiish clerk may be de- prived by him that placed him in his office ; but if he is unjustly deprived, a mandamus will lie to the churchwardens to restore him ; (He's Case. 1 Ventr. 148;) for the law will not suffer the ecclesiastical court to deprive him, but only to correct him for any misdemeanor by ecclesiastical censure. (3 Rol. Abr. 234; Gibs. 214; God. 192.) But where a parish clerk, pending proceedings to deprive him, in the ecclesiastical court, was indicted, and convicted, and pilloried for the offences alleged against him in the spiritual court, a consultation was granted as to the proceeding to deprive ; and a prohibition issued as to any other punishment. The court sajnng, he was an ecclesias- tical officer as to every thing but his election. (Townshend v. Tliorpe, 2 Str. 776.) However, in Peake v. Bourne, (2 Stra. 942,) the judges, on being pressed with their own authority in To^vnshend v. Thoi-pe, in sup- port of the doctrine that a parish clerk is a spiritual officer, said it was a hasty opinion, into which they were transported by the enonuity Sect. VT.] PARISH CLKRK. 99 of tlie case. And that lie is a temporal officer, was admitted and confirmed in Tarrant v. Haxby, (1 Burr. 367.) A freehold Office.^ The common law regards parish clerks as be- longing to the class of persons who have ireeholds in their offices ; and therefore, though they may be punished, yet they cannot be deprived by ecclesiastical censures. (2 Rol. Ab. 234.) In R. v. WaiTen, (Cowp. 370,) it was stated, that the clerk was appointed by the minister ; that he had since become bankrupt, and had not ob- tained his certificate ; that he had been guilty of many omissions in his office, was actually in prison at the time of his amoval, and had appointed a dejiuty who was totally unfit for the office. Yet, after stating an adjournment of the case, the report adds, " and now, on this day, upon reading the affidavits, Lord Mansfield said, it was set- tled in the case of K. and Dr. Ash ton, 28 (t. 2, ' That a parish clerk is a tem^joral officer, and that the minister must show good ground for turning him out.' Now, in this case, there is no sufficient rea- son assigned in the affidavits that have been read, upon which the court can exercise their judgment; nor is there any instance produced of any misbehaviour of consequence ; therefore the rule for a manda- mus to restore him must be made absolute." In new Churches.'] The recent acts for building new churches, and making new ecclesiastical districts, provide, that the clerks to such churches and chapels shall be annually appointed by the minis- ter thereof. (59 G. 3. c. 134. s. 29.) Divided Parishes.'] And the 10th section of the same statute enacts, that, when any parish shall be divided, &c., all fees and emo- luments, of the clerk and sexton afterwards arising in any division, shall belong to the clerk and sexton of the division to which they shall be assigned, (post, 101.) Incorporated in London.] By a charter of Hen. III., the parish clerks in and about London were incorporated, and authorized to make bye-laws and ordinances for their own regulation ; and, by the 10 Anne, for the building of fifty new churches within the bills of mortality, it is enacted, " that the parish clerks of such new erected churches shall be members of the company or coi-poration of the clerks of the parish churches within the city, and suburbs, and liber- lies of London, Westminster, and Southwark, and the fifteen out parishes named in the letters patent of the said corporation ; and shall make weekly and yearly accounts of the churchings and burials hap- pening in their parishes ; and shall, in all respects, be subject to the rules and orders of the said company." False Entry as to Marriages.] A parish clerk who deceives ihr H 2 100 MINISTER AND OFFICERS OF THE CHURCH. [Chap. III. clergyman, to make a false entry of the due publication of banns, when none have been published, commits thereby a very serious offence, and may be indicted for the same as a felon ; and, if found guilty, ti-ansported for life. (See 52 G. 3. c. 146. s. 14; 4 G. 4. c. 76. s. 29.) And, if he make a false entry himself, he is equally guilty, and liable to the same punishment. Embezzling Alms.] The parish clerk is in some places employed, upon the occasion of administering the Lord's supper, to collect the alms from the communicants ; and the purloining or embezzling any portion of the money so received is, doubtless, punishable as a crime; though it seems, from the following case, that he cannot be consi- dered as a servant to, nor the money so taken as the property of, the minister and churchwardens, or either of them. But these objec- tions would have less force against an indictment at common law, and tlie offence may be so charged as to ensure conviction and punishment, where the facts are fully established. The case is as follows : John Bmton was tried at the Summer Assizes for the county of Derby, 1829, before Lord Tenterden, and the indictment stated. That the prisoner on, &c., was employed in the capacity of a servant by Richard Wilmot, clerk ; and, being employed, did, on, &c., by virtue of such employment, receive mto his possession certain money : to wit, two half-crowns in the name, and on account of the said R W ; and having so received the said money, did, then and there, fraudu- lently embezzle the same ; and so the indictment concluded, that the prisoner did, on, &c., feloniously steal the said money against the statute, and against the peace, &c. The second count was similar, only stating the prisoner to be seiT- ant to A B and C D. The third similar, only stating the prisoner to be servant to R W and A B and C D. The fourth count was like the first, but stating also that the half-crowns were the property of R W. The fifth count was hke the second, stating the property in A B and C D. And the sixth, and last, count was Hke the third, laying the property in R AV" and A B and C D. At the trial it appeared, that the Reverend Richard Wilmot, was the curate, and the prisoner parish clerk, of the parish of Chattesden, in Derbyshire ; that, on the Sunday mentioned in the indictment, the sacrament was administered in the church, and R W was the minister who performed the church service. The prisoner, on that occasion, carried round the plate to receive the oblations of the commmiicants ; and two haLf-cromis were, among other monies, put into the plate; which two half-crowns the prisoner fraudulently took out of the plate, and they wei-e afterwards found in his pocket. No specific (hrections Sect. VI.] PARISH CLERK. 101 were, on the day in question, given to the prisoner to cany rountl the plate ; but that service had been usually perfonned by the parish clerk, for the time being, and the prisoner had been parish clerk seve- ral years, and as such had performed that service. A B and C D were churchwardens of the parish. — It was objected on behalf of the prisoner, First, that as there was no proof of the relation of master and serv- ant, having existed between the prisoner and the minister or church- wardens, or both, before the employment in question, that the em- l)loyment proved, was not of itself sufficient to constitute such relation ; and therefore, that the allegation, that he had received the money as a servant, was not made out. Secondly, that the property had not been described rightly ; that there was no gi'ound whatever for laying it in the minister alone, or the chm'ch wardens alone; and that though the minister, jointly with the churchwardens, had a right to the distribution of the oblations, yet they had a mere power of appointment; and no property therein, even as trustees ; for that in case of their not agreeing, the right devolved upon the ordinary, (See Alms for the Poor, post 106.) The facts of the case were clearly made out by the evidence, and the prisoner was found guilty. Lord Tenterden, without expressing any decided opinion upon the objections taken to the foiin of the in- dictment, passed sentence upon the prisoner ; stating, at the same time, that he should reserve the objections which had been urged in his favour for the consideration of another tribunal ; accordingly, in the following tenn, the judges met in the Exchequer Chamber, and his lordship then reported the case for their deteraiination. No coun- sel attended to argue the objections ; but it was held by the learned judges, that the prisoner could not be considered as a person employed or entrusted in the capacity of a servant to the minister, or to tlie churchwardens, or either of them, to receive money for, or on account of them, or either of them, as laid in the indictment ; and that, therefore, the conviction was wrong. (Michas. Tenn, 1829.) This case will, at least, clear away some of the difficulties which Avere supposed to stand in the way of a prosecution for an offence of this nature. The popular notion, that it is necessary, in all cases, where a person is accused of having obtained the possession of pro- perty by crime or dishonesty, that it should be alleged that the pro- perty belonged to some particular and known person or persons is not coiTect ; and, in the above instance, if the indictment had been for stealing from the plate, at ccninnon law, it might have sufficed. 102 mini>.ti:r and officers of the church. [Chap. Ill, had the allegation of ownership been omitted. (See 7 & 8 G. 4. c. 29. s. 44 ; Hickman & Dyer's case. Leach. 358.) Gains a Settlement.'] Serving the office of parish clerk for a year gains a settlement, although he be chosen by the parson and not the parishioners, and have no license from the ordinary ; and although he be a certificate man. (1 Salk. 536 ; 2 Str. 942 ; 2 Sess. Cas. 182.) SECTION VII. — SEXTON. How chosen.] The sexton [segsten, segerstane, the keeper of the things belonging to divine worship) is usually chosen by the paiish, though sometimes by the minister, where an usage to that effect pre- vails. His salary depends upon custom, and is paid by the church- wardens. 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, Par. L. 71.) Duty of Sexton.'] His business is 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 dii-ection of the churchwardens, candles and necessaries belonging to the church ; to get the linen washed, &c. ; to attend during divuie sendee ; to keep out excom- municated persons; and to prevent any disturbance in the church, (lb.) A Freehold Office.] Sextons are considered by the common law to have freeholds in their offices ; and therefore, if they be improperly removed, or for alleged misconduct, a mandamus hes to restore them ; (Rex V. Kingscleere, 2 Lev. 18; Salk. 428. He's case, 1 Ventr. 153 ;) for though they may be 'punished they cannot be deprived by eccle- siastical censures. (2 Roll. Ah. 234 ; Bac. Ab. Mandamus, (C.) But a return to a mandamus that L. C. was not duly elected sexton, according to the ancient custom, and that there is a custom for the inhabitants to remove at pleasure, and that L. C. was re- moved pursuant to such custom, is good. (Rex v. Churchwarden of Taunton, 1 Covvp. 413.) So upon a return to a mandamus, that the sexton held his office at pleasure, the court decided this to be sufficient, as there was no certificate that he was chosen for life. (Rex v. the Churchwardens of Thame, 1 Stra. 115.) Female Sexton.] In the case of Olive v. Ingram, (St;a. 1114,) two points were made : First, whether a woman was capable of being chosen sexton; and, secondly, whether women could vote in the election. As to the first, the court seemed to have no difficulty about Sect. VII.] SEXTON. 103 it ; there having been many cases where offices of greater consequence have been held by women, and there being many women sextons at that time in London. The authorities cited upon this point were — Spelman's Gloss. 497, a woman appointed governor of Chelmsford workhouse, (2 Ld. Ray:n. 1014;) Lady Broughton's case, who was keeper of the Gatehouse, (3 Keb. 32; 4 Inst. 221 ; Dy. 285; Hob. 148.) And in Brady's " History of Boroughs " it appears, that Lady Parkington was retmiiing officer for members at Aylesbury ; and the Countess of Pembroke, Dorset, and Montgomery, had the office of hereditary sheriff of Westmoreland, and exercised it in person, sitting with the judges on the bench at the assizes at Appleby. (Har. Co. Lit. 326.) Female Electors.] As to the second point, though women cannot vote for members of Parliament or coroners, yet the court, notwith- standing, held, that this being an office that did not concern the pub- He, or the care and inspection of the morals of the parishioners, there was no reason to exclude women who paid rates from the privilege of voting ; and no usage of excluding them was stated which might have altered the case. (Id. ib.) United Parishes.] Where two parishes were united after the fire of London, and one set of officers, elected at a joint vestry, had served for both, and the office of sexton had been filled in the same way upon nine successive vacancies, and the salary had been paid in equal proportions by both parishes, but afterwards one of the parishes claimed to elect a separate sexton, of which they had given notice to the other ; in such case, that other parish cannot maintain an action for money paid to the use of the first parish for their quota of the sexton's salary ; for this was paid against their express consent. Nor can the right of the sexton be tried in such case without his being a party thereto ; nor can he bring his action in such case against both parishes on a joint obligation, or against one of them only for the ivhole sum. (Stokes V. Lewis, 1 T. R. 20.) Divided Parishes.] In the recent statutes for the erection of ad- ditional churches, provision is made for the protection of the interests of sextons in those cases where it is found expedient to create new parishes. The 59 G. 4. c. 134. s. 10, enacts, that when any parish shall be divided under the provisions of those acts, all fees, dues, pro- fits, and emoluments, belonging to the parish clerk or sexton respec- tively of any such ])arish, which shall thereafter arise in any district or division of any parish so divided, shall belong and be recoverable by the clerks and sextons respectively of each division to which they shall be assigned in like manner, and after the same rate as they were 104 MINISTER AND OFFICERS OF THE CHURCH. [Chap. Ul. recoverable by the clerk and sexton respectively of the original parish ; and the commissioners may make compensation for any loss of fees or emoluments which any clerk or sexton may sustain by reason of any such division. Gains a Settlement.^ The office of sexton, like that of parish clerk, confers a right of settlement; and if the churchyard lie in two parishes, the sexton may gain a settlement in the one in which he resides, although no part of the church lies within that parish. (Rex V. Liverpool, 3 T. R. 118.) Church Keys.] In a case where, after a contested election for the office of sexton, an application was made for a mandamus to deliver up the keys of the church to the successful candidate. Lord Ellen- borough said, " Why did they not get new keys. The keys of the church are not like an emblem of office, or the like. If it will pro- bably prevent any breach of the peace, we will grant it ; but you had better get a new key." (2 Chitty, R. 255.) SECTION VIII. — BEADLE. Nature of Office. 1 Beadle (in the Saxon by del from heodan, io 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 give notice to the parishioners when and where it is to meet ; to execute its orders as messenger or servant ; to assist the constable in taking up beggars, passing vagi'ants, &c. ; for which latter puiiJose he is sometimes in- serted among the overseers of the poor, &c. (Shaw, Par. L. c. 19 ; 4 Bum. Ec. L. 10.) His appointment is during pleasure ; and he may be dismissed for misconduct, at any time, by the paiishioners in vestry assembled. How far a Peace-Officer.'] In some of the wai-ds in the city of London it is customary to swear in the beadle as constable also ; and it seems, that whether he has this additional office cast upon him or not, he may, in common with watchmen, by the common law, arrest and detain in prison, for examination, persons ivalking the streets at night, whom there is reasonable ground to suspect of felony, without any proof of a felony having been actually committed. (Lawrence v. Hedger, 4 Taunt. 14.) But, unless he is regulai'ly swom as a peace- officer, he is not entitled, generally, to act as such ; and he cannot, in that character, receive into his custody a person charged with a breach of the peace, or other oifence. (Clifie v. Littlemore, 5 Esp. 39.) Sect. I.] THE lord's SUI'PER. 105 CHAPTER IV.— SACRAMENTS. Section I. The Lord's Supper. II. Baptism. III. Marriage. SECTION I. — THE LORD'S SUPPER. Number of Sacraments.'] There are but two sacraments ordained in the gospel : that is to say, the supper of tlie Lord, and ha])tism ; but to these have been added five others, commonly so called, viz. confirmation, penance, extreme unction, orders, and matrimonv. (3 Burn. Ec. L. 324.) The first two and the last are all that will be treated of in this place. The Lord's Supper. 1 The ecclesiastical authorities of earUer times were duly solicitous to have the sacred rite of the Lord's supper ad- ministered frequently, and to as large a number of communicants as could be obtained, wthout admitting those who were unfitted to be received by crimes of a heinous nature, — notorious evil living, — oppres- sion of their neighbours, — or reciprocally cherished malice and hatred. And the churchwardens, as well as the minister, were required, by canon 28, to mark the absentee parishioners from this holy commu- nion. And also, within forty days after Easter, to report the names to the bishop or his chancellor, of all parishioners, men and women, be- ing of the age of sixteen years, receiving not the communion the Easter before. (Canon 112.) How often Administered.] By the ancient canon law, lay pa- rishioners, qualified by their goodly living, were required to commu- nicate at least thrice in the year : viz. at Easter, Whitsuntide, and Christmas ; and the secular clergy, not communicating at these times, were not to be reckoned among Catholics. (Gibs. 387.) And all deans, heads of cathedrals and collegiate churches, vicars, petty canons, and all others of the foundation, shall receive the com- munion four times in the year, at the least. (Canon 24.) Notice given.'] The minister is to give notice on the Sunday, or on some holiday immediately preceding ; and thos^ 'who intend to be l)artakers shall signify their intention soili'^" time the day before the lOG SACRAMENTS. [Chap. IV. communion. But if there be not a convenient number to commu- nicate, there shall be no celebration ; and there must be four, or three at the least, even where the parish contains no more than tvrenty persons quahfied to receive the communion. (2 Bum. Ec. L. 425.) Where administered.'] In all churches, convenient and decent com- munion 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. (Canon 82.) And it is forbidden to administer the holy communion in private houses, except in times of necessity, to the dangerously sick and impotent. But this prohibition does not ex- tend to the chapels of private houses, allowed by the ecclesiastical law. (Canon 71.) Bread and Wine provided.] Tlie churchwardens are to provide a sufficient quantity of fine white bread, and of good wholesome wine, with the advice of the minister ; and although, in the case of Franklyn v, the Master and Brethren of St. Cross, the vicar, by the endow- ment, was to find the sacrament wine, yet the court were of opinion that it should be found by the parish, according to the canon or rubric, which is established by act of parliament. (Bunb. 79 ; 2 Bum. Ec. L. 427.) And if any remain unconsecrated, the curate shall have it to his own use ; but the surjilus of that which was consecrated shall be eat and drank, after the blessing, in the church, by the priests and such communicants as he shall then call unto him. How administered.] By canon 27, no minister, when he cele- brateth the communion, shall wittingly administer the same to any but to such as kneel. But it is declared, that no adoi-ation of the elements is intended or ought to be done, for that were idolatry. And, by the statute 1 Ed. 6. c. 1, it is enacted, that the blessed sa- crament be administered unto the people, with the priest, under both the kinds : that is to say, of bread and wine, and not bread on!}'-, ex- cept necessity requu-e otherwise ; as more confoiTuable to the usage of the apostles and the primitive church, than that the priest should re- ceive it alone. Alms for the Poor.] The ecclesiastical law enjoins the collection of alms for the poor, by the deacons, churchwardens, or other fit persons, during the reading of the offertory ; and they are to bring it 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 Sect. II.] BAPTirsM. 107 minister and churchwardens shall think fit, or, in case of their dis- agieement, by the ordinary- (See the last Rubric after the article " Communion " in the Liturgy, and 2 Burn. Ec. L. 427.) Alms collected in chapels, as well as in pai-ish churches, during the reading of the offertory, are, by direction of the rubric, at the dis- posal of the incumbent of the parish, and the churchwardens thereof, and not of the minister or proprietors of the chapel. (Moysey v. Hillcoat, 2 Hagg. Rep. N. S. 56.) Refusing a Communicant.'] An action upon the case was brought ■ against a minister for refusing the sacrament to another person ; and the jury found for the plaintiff, with damages. And it was moved, in aiTest of judgment, that the plaintiff had not set forth in his declai'a- tion, that he had given notice according to the statute, nor that he was a parishioner of that paiish. But these points seem to have been passed over, as another objection was held fatal ; viz. that the plaintiff declared for not administering two Sundays, and had not set forth that, in the second instance, he desired the minister to do it to him ; and yet entire damages had been given for both. It was also objected, that this was more properly a matter of spiritual cognizance ; upon which also the court gave no opinion. (Clovell v. Cardinall, 1 Sid. 34.) Penalty for Reviling.'] The 1 Ed. 6. c. 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 his body ; and make fine, and ransom, at the king's will. The infonnation may be laid before three justices, upon the oath of two witnesses ; and after- wards the accused may be tried at the quarter-sessions ; the justices taking bail in the mean time for his appearance. And the justices, at their quarter-sessions, are to issue a writ, requiring the attendance of the bishop or his chancellor at the trial of such person, to give coun- sel and advisement in the matter. Provided, that no person shall be so indicted, but within thi'ee months next after the offence committed. SECTION II. — BAPTISM. Sponsors.] It is required by the rubric, that there shall be, for every male child to be baptized, two godfathers and one godmother ; and, for every female, one godfather and two godmothers. But parents cannot assume this oflScc for their own children. (Canon 29.) The sponsor ought to be of the same station as the person to whom he becomes surety. (Broome. Johns. Diet. " Sponsor.") 108 SACRAMENTS. [Chap. IV?| Naming the Child.] By a constitution of Archbishop Peccham ' the ministers shall take care not to pennit wanton names, which, being pronounced, do sound to lasciviousness, to be given to children baptized, especially of the female sex. And if othenvise it be done, the same shall be changed at confinnation. (Lind. 245.) Which, being so changed, shall be deemed the lawful name. (1 Inst. 3.) But now, as the bishop does not pronounce the name of the person to be confirmed, it is said he cannot alter it. (Johns. A. D. 1281. num. 3; 1 Bum. Ec. L. 110.) 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. Private Baptism.] If the acting minister, being duly informed^ without 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 gi'oss negligence so' defer the time, that it dieth unbaptized through his default, the said minister shall be suspended for three months ; and before his restitu- tion, shall acknowledge his fault, and promise, before his ordinary, that he will not wittingly incur the like again. (Canon 69.) Fees.] No fee is due of common right for christening ; and where proceedings were taken by the vicar and clerk of the parish against Frenchman, who had his child christened at the French church within the parish, for the recovery of such fees. Holt, C. J., said, quoting Lindwood, it is simony to take any thing for christening or burying/ unless it be a fee due by custom ; but then a custom for any person id take a fee for christening a child, when he doth not christen him, not good ; if you have a right to christen, you should libel for that right ; but you ought not to have money for christening when you do it not; (Bourdeaux v. Lancaster and another, 1 Salk. 332, 12 Mod. 171.) Papists and Dissenters.] By the 3 Jac. 1. c. 5. s. 14, Popish recu- sants are required, under a penalty of £100, to cause their children to be baptized by a lawful minister, according to the laws of this realm, within one month after birth ; and this must be in the neigh- bouring church or chapel, where baptism is usually administered, unless prevented by illness. But the liberality of modern times has suffered this harsh provision to become obsolete. And it has been de- cided, that baptism by Protestant dissenting ministers entitles the party to burial by the church of England. (See tit. " Burial also Register Book.) Sect. III.] MARRIAGE. 109 SECTION III. — MARRIAGE. WJio may not Intermarry.'] It is not intended to detail the various degrees of affinity, either by blood or marriage, within which marriage is prohibited. The subject will be found at large in its more proper })lace, under title " Maniage," in 2 Bum's Ec. L. (433.) The prohibited degrees are all those which are under the fourth degiee of the civil law, except in the ascending and descending line ; and, by the course of nature, it is scarcely a possible case that any one should ever marry his issue in the fourth degree ; but, between collaterals, it is universally true, that all who are in the fourth or any higher degree are pennitted to marry ; as 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 inter- marry ; and though a man may not many his grandmother, it is cer- tainly true that he may many her sister. (Gibs. Cod. 413.) The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related ; as a husband is re- lated 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 fle.sh, those who are related to the one by blood are related to the other by affinity. (Gibs. Cod. 42.) Therefore a man, after his wife's death, cannot many her sister, aunt, or niece, or daughter by a former husband. (2 Phil. Ecc. Ca. 359.) So a woman cannot marry her nephew by affinity, such as her fonner hus- band's sister's son. (2 Phil. Ecc. Ca. 18.) So a niece of a wife cannot, after the wife's death, many the husband. (Noy. Rep. 29.) But the consanguinei of the husband are not at all related 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 many two persons not related, and the brother and sister die, the widow and widower may intennarry ; for though a man is related to bis 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.) Marriage of Jews.] By the ancient law of England, Jews were forbidden to intermany with Christians, upon ]iain of death ; (3 Inst. 89 ;) but where both are Jews, their maniage is recognized by the law ; and the nullity thereof will be tried by the evidence of the laws of the Jews, as in the case of a foreign marriage. (Lindo v. Belisario, 1 Hagg. Rep. 216.) Keiiiba, w what a man binds himself to gi\e 110 SACUAAIF.NTS. [Chap. IV liis wife as a dowei", should always precede a Jewish marriage ; and Kedushim, a betrothmeut, does not constitute it without Hupa, (viz. bringing home the bride, setting her aside for her husband's special use, and being imited with her, if marriageable.) The practice among the Jews on marriage is, for the husband to take all the wife's fortune, and to covenant to restore it, with £50. per cent, profit. Choses, in action, falling to the husband in right of the wife, are sometimes taken by him at the same time. (Basevi v. Serra, 3 Meriv. 674; 14 Ves. 313.) Two witnesses to the ceremony are essential, in the Jewish law, to the validity of a marriage ; and if such witnesses be incompetent, the maniage is invalid. (Goldsmid v. Bromer, 1 Hagg. Rep. 324.) It also appears, that a Jewish marriage is not sufficiently proved in a civil action, by witnesses present at the ceremony m the synagogue, which is merely a ratification of a previous conti'act in wTiting, and that the original contract must be produced. (Flour v. Noel, 1 Comb. 61.) A Jewess married by Christian, rites was held within the INIamage Act, requiring consent of parents or guardians. (Jones v. Robinson, 2 Phil. Ec. Ca. 285.) It is expressly provided by the 31st section of the late Marriage Act, that it shall not extend to marriages where both parties are Quakers, or persons professing the Jewish rehgion. The Marriage Act.'] The Marriage Act, (4 G. 4. c. 76,) which Ls a revision of the law as it previously existed, occupied the anxious atten- tion of the legislature for a considerable time ; and is sufficiently ample in its details, to render it unnecessary to introduce the various decisions in the spiritual and common law courts, upon questions arising upon the statutes and the canons before that period. The Royal Marriage Act is untouched by the recent statute ; and several acts have been passed to confirm the legality of certam antecedent marriages, solem- nized mider circumstances which left then* validity questionable. It can be of no use to refer to them more at large here ; the object being to present the law as it now stands, for the guidance in future of those who are interested hi its present provisions. The present statute is lunited to England, and its enactments are as follow. Marriages, where solemnized.] It shall and may be lawful for marriages to be, in future, solemnized in all churches and chapels erected since the passing of the 26 G. 2. c. 33, and duly consecrated ; in which churches and chapels it has been customary and usual, from the passing of that act, to solemnize marriages : and all marriages here- after solemnized therein, shall be as good and valid in law as if such marriages had been solemnized in parish churches or public chapels, having chapelries annexed, and wheiein bani.s had usually been pub- Sect. III.] MARRIAGE. Ill lislied, before or at the time of passing the said act. (6 G. 4. c. 92. s. 2.) Marriages in Chapels.] The bishop of the diocese, with the con- sent of the patron and the incumbent of the church of the paiish, in which any public chapel, having a chapelry thereunto annexed, may be situated, or of any chapel situated in an extra-parochial place, signified to him under their hands and seals respectively, may autho- rise, by writing under his hand and seal, the publication of banns and the solemnization of marriages in such chapel, for persons residing within such chapelry or extra-parochial place, respectively ; and such consent, together with such written authority, shall be registered in the registry of the diocese. (4 G. 4. c. 76. s. 3.) Provided, that in every chapel in respect of which such authority shall be given, there shall be placed in some conspicuous part of the interior, notice in the words following : " Banns may be published, and marriages solemnized, at this chapel." (s. 4.) Parishes having no Church or Chapel. ] All parishes where there shall be no parish church or chapel belonging thereto, or none wherein divine service shall be usually solemnized every Sunday, and all extra-parochial places whatever, having no public chapel wherein banns may be lawfully published, shall be deemed and taken to belong to any parish or chapelry next adjoining, for the purposes of this act only ; and where banns shall be published in any church or chapel of any parish or chapelry, adjoining to any such parish or chapelry, where there shall be no church or chapel, or none wherein divine service shall be solemnized as aforesaid, or to any extra-parochial place as aforesaid, the parson, vicar, minister, or curate pubhshing such banns, shall, in writing under his hand, certify the publication thereof, in the same manner as if either of the persons to be married had dwelt in such adjoining parish or chapelry. (s. 12.) ^Vhen Church is Rebuilding.] If the church of any parish, or chapel of any chapelry, wherein marriages have been usually solem- nized, be demolished in order to be rebuilt, or be under repair, and on such account be disused for public service, it shall be lawful for the banns to bo proclaimed in a church or chapel of any adjoining ])arisli or chapelry, in which banns are usually proclaimed, or in any place within the limits of the parish or chapelry, which shall be licensed by the bishop of the diocese for the perfonnance of divine service, during the repair or rebuilding of the church as aforesaid ; and where no such place shall be so licensed, then, during such period as aforesaid, the mamage may be solemnized in the adjoining church or chapel, wherein the banns have been proclaimed : and all marriages heretofore solem- 112 SACRAMENTS. [Chap. I\\ nized, or hereafter, under the like circumstxinces, (5 G. 4. c.32. s. 1,) in other places within the said parishes or chapelries than the said churches or chapels, on account of their heing under repair, or taken down in order to be rebuilt, shall not be Uable to have their validity questioned on that account ; nor shall the ministers who have so so- lemnized the same, be liable to any ecclesiastical censure, or to any other proceeding or penalty whatsoever. (4 G. 4. c. 76. s. 13.) All banns of mamage proclaimed, and man'iages solemnized, ac- cording to the provisions of the act, in any place licensed as aforesaid, within the lunits of any parish or chapelry, during the repair or rebuilding of the church or chapel of such parish or chapelry, shall be considered as proclaimed and solemnized in the church or chapel of such parish or chapelry, and shall be so registered accordingly. (5 G. 4. c. 32. s. 3.) Consent of Parent or Guardian.^ 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 imder 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 unmamed, then the guardian or guardians of the person ap- pointed 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 mamage of such party so under age, unless there shall be no person authorised to give such consent. (4 G. 4. c. 76. s. 16.) Where a marriage was solemnized by license, the man being a minor, whose father was hving, and who did not consent to the mamage ; it was held that the mamage was nevertheless valid, the above section being directory only. (R. v. Birmingham, 8 Bam. & Cres. 29, 2 Man. & Ryl. 230, Chitty's Statutes, 727.) Where Parent, ^c. hisane.] In case the father or fathers of the parties to be manied, or one of them, so under age as aforesaid, shall be nan compos mentis, or the guardian or guardians, mother or mothers, or any of them, whose consent is made necessary as aforesaid to the mai-riage of such party or parties, shall be non compos mentis, or in parts beyond the seas, or shall unreasonably, or from undue motives refuse or withhold his, her, or their consent to a proper mamage ; then it shall and may be lawful for any person desii-ous of man-ying, in any of the before-mentioned cases, to apply by pe- tition to the Lord Chancellor, Lord Keeper, or the Lords Commis- sioners of the gieat seal of Great Britain for the time being. Master Sect. III.] MARRIAGE. 11.3 of the Rolls, or Vice Chancollov of England, who is and arc respec- tively hereby empowered to proceed upon such petition in a summary way; and in case the marriage proposed shall, upon examination, appear to be proper, the said Lord Chancellor, Lord Keeper, or Lords Commissioners of the great seal for the time being. Master of the Rolls, or Vice Chancellor, shall judicially declare the same to be so ; and such judicial declaration shall be deemed and taken to be as good and effectual to all intents and purposes, as if the father, guardian or guardians, or mother of the person so petitioning, had consented to such marriage. (4 G. 4. c. 76. s. 17.) To render a marriage contract valid, the consent of a free and ra- tional agent is an essential ingredient. (Lord Portsmouth's case, 1 Hagg. Rep. N. S. 372.) Marriage Contracts not enforced.'] In no case whatsoever shall any suit or proceedings be had in any ecclesiastical court, in order to compel a celebration of any marriage m facie ecclesice, by reason of any contract of matiimony whatsoever, whether ^^r verba de preesenti, or per verba defnturo, any law or usage to the contrary notwith- standing. (4 G. 4. c. 76. s. 27.) Notice to publish Banns.] No parson, minister, or curate, shall be obliged to publish the banns of matrimony between any persons whatsoever, unless the persons to be maiTied shall, seven days at the least before the time required for the first pubhcation of such banns respectively, deliver or cause to be delivered to such parson, vicar, minister, or curate, a notice in writing, dated on the day on which the same shall be so delivered, of their true Christian names and sur- names, 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 respec- tively. (Id. s. 7.) Hoiv and when Published.] All banns of matrimony shall be pub- lished in an audible manner in the parish church, or in some public chapel, — in which chapel banns of matrimony may now, or may here- after be lawfully published, of or belonging to such parish or chapelry, wherein the persons to be married shall dwell, — according to the forni of words prescribed by the rubric, prefixed to the ofllice of matrimony in the book of Common Prayer, upon three Sundays preceding the solemnization of marriage, during the time of morning service, or of evening service, (if there shall be no morning service in such church or chapel upon the Smiday upon which such banns shall be so pub- lished,) immediately after the second lesson. (Id. s. 2.) Parties not resident in same Parish.] Whensoever it shall happen 114 SACRAMENTS. [Chap. IV. tltat the persons lo be married shall dwell in divers parishes or chapel- ries, the banns shall in like manner be published in the church, or in any such chapel as aforesaid, belonging to such parish or chapeh'v wherein each of the said persons shall dwell ; and that all other the rules prescribed by the said rubric, concerning the pubUcation of banns and the solemnization of matrimony, and not hereby altered, shall be duly observed ; and that in all cases where banns shall have been published, the mamage shall be solemnized in one of the parish churches or chapels where such banns shall have been published, and in no other place whatsoever. (4 G. 4. c. 76. s. 2.) Banns of Minors.^ No minister, vicar, or curate solemnizing man-iages 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 solemnizing such marriages without consent of parents or guardians; unless such parson, minister, vicar, or curate 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 publica- tion, his, her, or their dissent to such maniage, such publication of banns shall be absolutely void. (Id. s. 8.) 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 solemnization of the same, until the banns shall have been republished on three several Sundays, in the fonn and manner prescribed in this act, unless by hcense duly obtained accord- ing to the provisions of this act. (s. 9.) Register of Banns.] It is also provided, that the churchwardens and chapelwardens of churches and chapels wherein marriages are solemnized, shall provide a proper book of substantial paper, marked and ruled respectively, in manner directed, for the register-book of marriages ; and the hanns shall be published fii'om the said register- book of banns by the officiating minister, and not from loose papers; and after publication, shall be signed by the officiating minister, or by some person under his direction. (Id. s. 6.) Marriage by License. ] No Ucense of marriage shall be gi'anted by any archbishop, bishop, or person having authoiity to grant such licenses, to solemnize any mamage in any other church or chapel than in the parish church, or in some public chapel of or belonging to the parish or chapelry, within which the usual place of abode of one of the persons to be married shall have been, for the space of fifteen days immediately before the granting of such license. (Id. s. 10.) Sect. Itl.] MARRIAGE. 115 Caveat against License.] If any caveat be entered against the grant of any license for a marriage, such caveat being duly signed by. or on the behalf of, the person who enters the same, together with his place of residence, and the ground of objection on which his caveat is founded, no license shall issue till the said caveat, or a true copy thereof, be transmitted to the judge, out of whose office the license is to issue; and until the judge has certified to the register that he has ex- amined into the matter of the caveat, and is satisfied that it ought not to obstruct the grant of the license for the said marriage ; or until the caveat be witjidrawn by the party who entered the same. (Id. s. II.) Oath before License granted.] For avoiding all fraud and collu- sion in obtaining licenses, one of the parties shall personally swear before the surrogate, or other person having authority to grant tlie license, that he or she believeth that there is no impediment of kin- dred 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 tenor of the said license ; and that one of the said parties hath, for the space of fifteen days immediately preceding such license, had his or her usual place of abode within the parish or chapehy witliin which such maniage is to be solemnized ; and where either of the parties, not being a widower or widow, shall be nnder the age of twenty-one years, that the consent of the person or persons, whose consent to such marriage is required under the pro- visions 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 made to that effect, by the party re- (juuing such Ucense, it shall be lawful to grant such license, notwith- standing the want of any such consent. (Id. s. 14.) When new License necessary.] Whenever a mamage shall not be had, within three months after the grant of a license, by any arch- bishop, bishop, or any ordinary or person having authority to gi-ant such license, no minister shall proceed to the solemnization of such marriage, until a new license shall have been obtained ; unless by banns duly published, according to the provisions of this act. Where License extends.] And that all licenses shall extend to an]/ place, within the limits of such parish or chapehy, which shall be licensed by the bishop, for the performance of divine service, during the repair or rebuilding of any church or chapel ; or if no such place shall be so licensed, then to the church or chapel of any adjoining parish or chapehy, wherein maiTiages have been usually solemnized. (5G. 4. c. 32. s. 2.) Special Licenses.] Nothing hereinbefore contained shall be con- 1 2 IH) SACRAMENTS. [Chap. IV. strued to extend to deprive tlie Archbishop of Canterbury, and his successors, and his and their ])roper officers, of the right which hath hitherto been used in virtue of a certain statute, made in the twenty- fifth year of the reign of the late king Henry the Eighth, intituled An Act concerning Peter Pence and Dispensations, of granting spe- cial licenses to marry at any convenient time or place. (4 G. 4. c. 76. s. 20.) Marriage falsely procured.'\ If any valid niamage, solemnized by license, shall after the said 1st day of November next, be procured by a party to such marriage, to be solemnized between persons, one or both of whom shall be under the age of twenty-one years, not being a widower or widow, conti"ary to the provisions of this act, by means of such party falsely swearing as to any matter or matters to which such party is hereinbefore required personally to swear, such party wilfully and knowingly so swearing ; or if any vahd mamage by banns shall, after the said 1st day of November next, be procured by a party thereto, to be solemnized by banns between persons, one or both of whom shall be under the age of twenty-one years, not being a widower or widow, such party knowing that such person as aforesaid, under the age of twenty-one years, had a parent or guardian then living, and that such maniage was had without the consent of such pai'ent or guardian, and knowing that banns had not been duly pub- lished, according to the provisions of this act, and hanng knowingly caused or procured the undue pubhcation of banns, then, and in every such case, it shall be lawful for his Majesty's attorney-general, (or for his Majesty's solicitor-general, in case of the vacancy of the office of attorney-general,) by infonnati-.n, in the nature of an English bill, in the Court of Chancery or Court of Exchequer, at the relation of a parent or guardian of the minor, whose consent has not been given to such mamage, and who shall be responsible for any costs incurred m such smt, such parent or guardian pre\iously making ' oath as hereinafter required, to sue for a forfeiture of all estate, right, title, and interest, in any property which hath accrued or shall accrue to the party so offending, by force of such maiTiage. (Id. s. 23.) Property guarded from the Offender.^ And thereupon, the court may order and direct that all such estate, right, title, and interest in any property as shall have then accrued, or shall thereafter accrue to such offending party, by force of such marriage, shall be secured under the direction of such court, for the benefit of the mnocent party, or of the issue of the marriage, or of any of them, in such manner as the said court shall think fit, for the purpose of jjreventing the offending party from deri\'ing any interest in real or personal Sect. III.] MARRIAGE. 117 estate, or pecuniary benefits from such maiTiage ; and if both the parties so contracting maniage shall, in the judgment of the court, be guilty of any such offence as aforesaid, it shall be lawful for the said court to settle and secure such property, or any part thereof, immediately for the benefit of the issue of the maniage, subject to such provisions, for the offending parties by way of maintenance, or othei-wise, as the said court, under the particular circumstances of the case, shall think reasonable ; regard being had to the benefit of the issue of the maiTiage during the lives of their parents, and of the issue of the parties respectively by any future maiTiage, or of the parties themselves, in case either of them shall survive the other. (Id. s. 23.) Oath before proceedings taken.'\ But no such information as aforesaid shall be filed, unless it shall be made out to the satisfaction of the attorney or sohcitor-general, before he files the same, by oath or oaths, sworn before one of the masters in ordinary in Chancery, or before one of the barons of the Exchequer, and which they are hereby respectively empowered to administer, that the valid mamage to be complained of in such mfonnation, hath been solemnized in such manner, and under such circumstances, as, in the judgment of the said attorney or solicitor-general, are sufl5cient to authoiize the filing the infonnation under the provisions of this act ; and that such mamage has been solemnized without the consent of the party or parties, at whose relation such infonnation is proposed to be filed, or of any other parent or guardian of the minor manied, to the knowledge or belief of the relator or relators so making oath ; and that such relator or relators had not known or discovered that such marriage had been solemnized more than three months previous to his or their application to the attorney or solicitor-general. (Id. s. 23.) When prior Settlements void.] All agreements, settlements, and deeds, entered into and executed by the parties to any marriage, in con- sequence of or in relation to which maniage such information as aforesaid shall be filed, or by either of the said parties before and in contemplation of such marriage, or after such marriage, for the benefit of the parties, or either of them, or their issue, so far as the same shall be contrary to, or mconsistent with the provisions of such security and settlement as shall be made by or under the direction of such court as aforesaid, under the authority of this act, shall be absolutely void, and have no force or effect, (s. 24.) Limit of adverse Proceedings.] Provided always, that any original information to be filed for the puqjose of obtaining a declaration of any such forfeiture as aforesaid, shall be filed within one year after the solemnization of the mamage by which such forfeiture shall have ] 18 SACRAMENTS. [Cliap, IV. been iucun-ed, and shall be prosecuted with due diligence ; and in case any person or necessary party to any such information shall abscond, or be or continue out of England, it shall be lawful for the court, in which such information shall be filed, to order such person to appear to such information, and answer the same within such tune as to such court shall seem fit, and to cause such order to be served on such person at any place out of England, or to cause such order to be inserted in the London Gazette, and such other British and foreign newspapers as to such court shall seem proper ; and in default of such person appearing and answering such infonnation within the time to be limited as aforesaid, to order such information to be taken as con- fessed by such person, and to proceed to make such decree or order upon such information, as such court might have made if such person had appeared to and answered such infonnation : provided always that in case the person at whose relation any such suit shall have been instituted shall die pending such suit, it shall be lawful for the Court of Chancery, if such court shall see fit, to appoint a proper person, or proper persons, at whose relation such suit may be continued. (s. 25.) Unduly solemnizing, — -felony. '\ If any person shall, from and after the said first day of November, solemnize 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 and twelve in the forenoon, unless by special license from the Archbishop of Canterbury, or shall solemnize matrimony without due publication of banns, unless license of marriage be first had and obtained from some person or persons having authority to grant the same, or if any person falsely pretending to be in holy orders shall solemnize matrimony, according to the rights of the church of England, every person knowingly and wilfully so offending, and being lawfully convicted thereof, shall be deemed and adjudged to be guilty of felony, and shall be transported for the space of fourteen years, according to the laws in force for transportation of felons : provided that all prosecutions for such felony shall be commenced within the space of three years after the offence committed, (s. 21.) Pecuniary Penalties.'] And by the 7 and 8 W. 3. c. 35, every parson, vicar, or cm-ate, who shall marrvany persons without license, or due publication of banns, or suffer any other minister to do so, in the church or chapel to such parson, &c. pertaining, shall forfeit 100^. ; (ss. 2, 3 ;) and the man so mamed shall forfeit 10/. ; and the sexton or clerk officiating on the occasion shall also forfeit £5, to be recovered with costs by him who shall sue for the same ; (s. 4 ;) and Sect. III.] MARRIAGE. 1 19 the man and woman are also liable to be proceeded against in the Ecclesiastical Court. (Middleton et Ux v. Croft, 2 Stra. 1056 ; 2 Atk. 650.) Void Marriages.'] If any person shall knowingly and wilfully intermany in any other place than a church, or such public chapel wherem banns may be lawfully published, unless by special license as aforesaid, or shall knowingly and wilfully intermarry without due pubhcation of banns, or license from a person or persons having authoiity to gi-ant the same, first had and obtained ; or shall knowingly and wilfully consent to, or acquiesce in the solemnization of such man-iage, by any person not being in holy orders ; the marriages of such persons shall be null and void to all intents and purposes what- soever. (4 G.4. c. 76. s. 22.) But where the maiTiage of a female pauper was brought about by the fraud of parish officers, the marriage was held valid, and it was also held that the fraud did not prevent her from acquiring a settlement by the maniage in the husband's parish. (R. v. Birmingham, 8 Barn. & Cres. 29; 2 Man. & Hy. 230.) • Marriage Fees.] No fee is due to the clergyman oi' common right for performing the man-iage ceremony, although it is said in the rubric in the office of matrimony, that at the time of delivering the ring, the man shall also lay down the accustomed duty to the priest and clerk. But it may become payable by custom, upon per- formance of the duty. And it has been said, that as by ancient custom the man'iage ought to take place where the woman was a parishioner, the ecclesiastical law allows a fee, due to the curate of that parish, whether she be manied there or not ; but this custom has been declared unreasonable, and cannot be supported. (Thompson v. Davenport, Lutw. 1059. See Naylor v. Scott, Ld. Raym. 1558 ; 3 Bla. Com. 90.) Pauper Marriages.] The practice, which prevails to a considerable extent among parish officers, of assisting paupers, or indigent persons, between whom an illicit intercourse has subsisted, to marry, though adopted in many cases from very proper motives, is of questionable policy. The parties, or at least one of them is constrained to enter into the contract, as the means of escaping from the immediate thral- dom of a prison ; or as the preferable alternative, to binding himself to payments which he feels he cannot make, and will merely put off the hour of his incarceration. The comfort and respectability of the individuals so united, has but a precarious foundation in such cases ; and it may be doubted whether any salutary oU'ect is produced upon public morals, among the lower classes of society, by such marriages. 120 SACRAMENTS. [Cliap. IV. It is presumed to be undeniable, that the money advanced on these occasions is a misapplication of the parish funds ; and that if objected to on passing the overseers' accounts, such items must be disallowed. The question has never yet, it is beheved, been before the superior courts ; but it can hardly be said that expenses so incmTed ai'e for the relief of the poor, or can be classed among any of the objects to which those funds are by law applicable. The ordmary inducement with overseers, in these cases, is to protect their funds from a threatened incumbrance ; but they may so conduct themselves, upon such occasions, as to become liable to an indictment for a conspiracy, to cast the burden upon another parish. Conspiracy to marry Paupers.'] Several cases have occurred in which the conspiring and contriving, by sinister means, to marry a pauper of one parish to a settled inhabitant of another, in order to bring a charge upon it, has been considered an indictable offence. (Rex v. Tan-ant, 4 Burr. 2106 ; Rex v. Herbert and others, 1 East. P. C. c. II. s. 11. p. 461 ; Rex v. Compton and others, Cald. 246, Mod. 320.) It is observed respecting a conspiracy of this kind, that considering the offence as a prostitution of the sacred rites of maiTiage, for con'upt and mercenary purposes; and that, by artful and sinister means, persons are seduced into a connexion for life without any inclination of their own, and contrary to that freedom of choice which is peculiarly required in forming so close an union, and on which the happiness of them both so entirely depends ; and this for the sake of some gain or saving to others, who bring about such marriage ; in this light it seems a fit ground for criminal cogni- zance, not only as being a great oppression upon the parties them- selves, more immediately interested, but as an offence against society in general ; being an abuse of that institution by which society is best continued and legal descents preserved, and a perversion of the pur- poses for which it was ordained. (1 East. P. C. c. 11. s. 11. p. 461.) But in a case where, upon an indictment against paiish officers for a conspiracy of this kind, it appeared, that a man of one parish having gotten a woman with child belonging to another, the defendants had agreed with the man, (who was of the age of twenty-nine,) with the approbation of his father, to give him two guineas if he would many the woman ; and that he afterwards manied her on such condition, and received the money from the defendants immediately after the marriage; and it was also swoni, both by the man and the woman, that they were willing to mairy at the time ; Buller, J., du"ected an ac- quittal, notwithstanding the proof of the money having been gi\cu to procure such consent, and this after the putative father had been Sect. III.] MARRIAGE. 121 taken up under a magistrate's warrant, and was in custody of the overseers. And that learned judge held it necessary, in support of such an indictment, to show tliat the defendants had made use of some violence, threat, or contrivance, or used some sinister means, to procure the marriage without the voluntary consent or inclination of the parties themselves ; and that the act of marriage, being in itself lawful, a conspiracy to procure it could only amount to a crime by the practice of some imdue means. (Rex v. Fowler and others, cor Buller, J., Taunton, Spr. Ass. 1788; 1 East. P. C. c. 11. s. 11. p. 461.) And the learned Judge said, that tliis point had been so ruled several times by several judges. Form of Indictment.'\ In a case where the indictment stated the marriage to have been procured by threats and menaces against the peace, &c., it was holden to be sufficient, without averring in terms, that the marriage was against the will or consent of the par- ties, though that must be proved. (R. v. Parkhouse and Tremlet, cor Buller, J., Exeter Sum. Ass. 1792; 1 East, P. C. c. 11. s. 11. p. 462.) Upon an indictment for conspiring together, and giving the hus- band money to marry a poor helpless woman who was an inhabitant of B, in order to settle her in the parish of A, where the husband was settled, judgment was arrested; because it was not aveiTed that .she was last legally settled in B. (Rex v. Edwards and others, 8 Mod. 320.) But it is observed, that it seems to be perfectly imma- terial where the woman's settlement was, if it were not in A, pro- vided that fact distinctly appeared. (1 East. P. C. c. 11. s. 11, p, 462.) It is further said, however, that it is usual to aver the settle- ments of the parties in their respective parishes, and also that the woman was chargeable to her own parish at the time ; though this latter had never been adjudged to be necessary, nor seems to be required according to the general rules which govern the oftence of consjiiracy, (Id, ibid.) It jjhould seem, that in such cases, both the purpose and the means used are clearly unlawful. (2 Russell on Crimes, 561.) Certificate of Marriage.'] By the 6 & 7 W, 3. c. 12, s, 2, and 55 G. 3. c, 184, Sched. Part, I, tit. Certificate of Marriage, for every certificate of marriage (except the marriage of any com- mon seaman, soldier, or marine) shall be paid a stamp duty of 5s. And if any person shall write such certificate upon the same before it be stamped, he shall forfeit £5. (6 & 7 W, 3. c, 12. s. 7. see Marriage Register, post. \2Q.) Foreign Marriages.] Maniages of British subjects in foreign countries are valid, if made according to the laws of those countries. 122 PARISH BOOKS. [Chap. V. (Herbert v. Herbert, 1 Roper, 337; The King v. The Inhabitants of Brampton, 10 East, 282 ; Lantour and P. v. Teesdale and another, 2 Marsh, 243 ; Lacon v. Higgms and another, 1 Dowl. & Ryl. N. P. Rep. 38.) So a marriage in Ireland, periqrmed by a clergyman of the church of England in a private house, was held valid, although no evidence was given that any license had been granted to the parties. (Smith v. Maxwell, Ryan. & Moody. N. P. Rep. 80; 1 Car. & P. 271.) CHAP, v.— PARISH BOOKS. Section I. Parish Registers. II. Parish Library. III. Rate Books, ^c. SECTION I. — PARISH REGISTERS. When Registries began.] The very important practice of keeping a church book for the puqjose of recording the birth, or, more properly speaking, the date of the christening of all children who underwent that ceremony, and of the d^ath and burial of those who were com- mitted to the grave in the parish, began in the thirtieth year of King Henry the 8th, by the instigation of Lord Cromwell, who at that time, as vicar-general to the king, was vested with all the power that the pope's legates formerly had. As all wills that were above two hundred pounds value, were to be proved in his court, it obAiously became a matter of great consequence, to set on foot a register of all persons born, and of all who were buried, in the parish ; in order that this rule, with respect to the proof of wills, might be enforced. The duty of keeping such book, and the mode of making the entries, was further enforced by the canon law, in the reigns of Edw. 6 and Queen Eliza- beth. (See Bac. Abr. Evidence (F.) 3 Godb. 144 ; 3 Burnet, 139.) To be kept by the Minister.] By 6 and 7 W. 3. c. 6. s. 24, every person in holy orders (including bishops, 9 and 10 W. 3. c. 35. s. 4) shall within their respective paiishes and places, take an exact account, and keep a registerof every person manied, christened, or born therein, or buried in the common burying places where parishioners are buried ; to view which register, all parties concerned shall have free access at seasonable times, without fee ; and every Sect. I.] PARISH REGISTERS. 123 minister who shall not keep a true register thereof, as above, shall forfeit £100, recoverable in any court at Westminster, by action of debt or information, wathout essoin, &c. to go in moieties to his Majesty and the party suing, with full costs to the latter. And now, by 52 G. 3. c. 146, "For better regulating and 'pre- serving parish and other registers of births, baptisms, marriages, and burials in England," it is enacted, that after 31st Dec. 1812, regis- ters of public and private baptisms, mamages, and burials, solemnized according to the rites of the united church of England and Ireland, within all parishes or chapelries in England, whether subject to the ordmary, peculiar, or other jurisdiction, shall be kept by the rector, vicar, curate, or officiating minister of every parish, or of any chapelry where baptisms, marriages, and burials, have usually been perfonned. (s. 1.) Form of Entries.'] The registration is to be in books of parchment, if required by the church or chapelwardens, (s. 2.) of durable paper, to be provided by his Majesty's printer, at the expense of the parish or chapelry; whereon shall be printed, on each side of every leaf, the heads of infonnation herein requu-ed to be entered in the registers of baptisms, marriages, and burials respectively ; and every such entry shall be numbered progressively, from beginning to the end of each book, and being divided from the next entry by a printed hne, according to the forms in schedules A. B. C. (see post. 125) every page being numbered progressively at the middle of the top. (s. 1.) Separate Books.] There shall be a separate book for baptisms, another for marriages, and another for burials, and they shall be respectively proportioned to the population of the several parishes and chapelries according to the last returns ; and other like books shall, when necessary, be furnished by the church or chapelwardens, at the expense of the parish, &c. whenever required by the rector, &c. or officiating minister, (s. 2.) Entries of Baptism or Burial.] Such pastor, &c., or officiating minister, shall, as soon as possible (and never later than seven days, unless prevented by sickness or unavoidable impediment) after the solemnization of every private or public baptism, or burial, enter, in a legible hand-writing in the proper register-book, the required parti- culars, and sign the same. (s. 3.) Baptisms, ^c. not in Parish Church.] Whenever the ceremony of baptism or burial is perfomied in any other place than the church or churchyard of a parish ; or chapel, or chapel-yard of any chapelry, pronding its own distinct registers ; by any other minister than the rector, curate, &c., thereof, the minister perfoiming the same shall. 124 PARISH BOOKS. [Chap. Y. on that or the next clay, transmit to such rector, &c., or his curate, a certificate of such baptism or burial as in schedule D. ; (see post. 126 ;) who shall thereupon enter the same in such book, addhig to such entry, " According to the certificate of the Rev. , trans- mitted to me on the — day of ," &c. (52 G. 3. c. 146. s. 4.) Custody of Register Books.] The above books of entries, and all register-books heretofore in use, shall belong to every such parish or chapelry, and shall be safely kept by the rector, &c., in a dry, well- painted iron chest, at the expense of the parish, &c. ; and which shall be constantly kept locked in some dry and safe place in his house, if resident within the parish, &c., or in the church or chapel ; and shall not be removed therefrom, except for making the above entries, and for inspection of persons desirous to search the same, or to obtain copies thereof, or to be produced as evidence in some court, or for inspection into their state, or for the purposes of this act ; and imme- diately after shall be forthwith returned into the chest, (s. 5.) Copy to be made on Parchment.] At the expiration of two months after every year's end, fair copies of all the entries of baptisms, mar- riages, and burials, solemnized in the year preceding, shall be made by the officiating minister (or church or chapelwarden's clerk, or other person under his direction,) on parchment, (as in the said schedules,) to be provided by the parishes ; and the contents thereof shall be verified by the declaration of such minister, fairly written, without stamp, on the said copy, immediately after the last entry therein, and his signature thereto shall be attested by one, at least, of the church or chapelwardens. (s. 6.) Copies for Reyistrar of Diocese.] Copies of such register-books, verified and attested as above, shall be transmitted by the chm'ch or chapelwardens, after having been signed by one of them, by the post, to the registrars of the diocese, on or before 1st June in each year. (S.7.) Report herein to the Bishop.] The registrar of every diocese in England shall, on or before 1st July in each year, make a report to the bishop, whether such copies have been sent to him, as in ss. 6, 7, is required, and the registrar shall specially state the default herein of any parish, in his report to the bishop, (s. 9.) In extra-parochial Places.] In all cases of baptism or bmial, in any extra-parochial place in England, according to the established church, where there is no church or chapel, the officiating minister shall, within one month after such baptism or burial, deliver to the rector, vicar, or curate of such parish, immediately adjoining to such extra-parochial place, as the ordinary shall dii'ect, a memorandum of Sect. 1.] PARISH REGISTERS. 125 such baptism, signed by such parent of the child baptized, or of such burial, signed by the parson employed therein, with two of the persons attending the same, as the case may require, containing the particulars hereinbefore required; which memorandum, so delivered, shall be entered in the parish register, (s. 10.) All letters containing the copies of such registers to be transmitted as in s. 7, superscribed by the church and chapelwardens, as in schedulie E., (see post. 126,) shall go postage free. (s. II.) Alphabetical Lists by Registrars.] The registrars shall cause the copies of registers transmitted to them, to be safely kept from damage, and to be so arranged as to be resorted to when required ; and they .shall also cause connect alphabetical lists to be made, in books suitable to the purpose, of the names of all persons and places mentioned therein, which, with the above copies, shall be open to public search, at reasonable times, on payment of the usual fees. (s. 12.) False Entries or Copies.] Every person who shall knowingly and wilfully insert, or cause or permit to be inserted, in any such register of such baptisms, burials, or marriages, or in any such copy, as in s. 6, or in any \vrit or declaration, ordered to be transmitted to such registrai's, any false entry of any thing relating to any baptism, burial, or marriage, or who shall falsely make, utter, forge or counterfeit, or cause, procure, or wilfully pennit to be falsely made, altered, forged or counterfeited, any part of any such register, list, or declaration, or copy of such register; or who shall wilfully destroy, deface or injure, or cause to be destroyed, any such register, or part thereof ; or shall wilfully sign or certify any copy of such register, required to be trans- mitted as in s. 6, which is false in any part thereof, knowing it to be ialse ; shall be deemed guilty of felony, and transported for fourteen years, (s. 14.) Accidental Errors.] No rector, &c. or officiating minister of any parish or chapel, who shall discover any eiTor to have been committed in the form or substance of the entry, in the register-book of any such baptism, burial, or maiTiage, respectively by him solemnized, shall be liable to any of the penalties in the act mentioned, if he shall within one calendar month after discovery of such eiTor, in the presence of the parent of the child bajjtized, or of the parties married, or of two persons who attended at any bmial ; or in the case of the death or absence of the respective parties, then in presence of the church or chapelwardens (who shall attest the same,) alter and correct the entry which was found erroneous, by entry in the margin of such book wherein such erroneous entry is made, without alteration of the original entry ; and he shall begin such entry in the margin, and add 126 PARISH BOOKS. [Chap. V. to such signature the day of the month and year when such correction is made ; provided that in the fail" copy of the registers transmitted to the registrars of the dioceses, the officiating minister shall certify tlie alterations so made by him. (54 G. 3. c. 146. s. 15.) Fees the same.'\ Nothing herein shall increase or diminish the fees payable to any minister, for perfomiance of any of the above duties, or to him or any registrar, for giving copies of such registrations ; but the same, and the power of recovering the same, shall remain as before this act. (s. 16.) Stamp Duty.'] No duplicate or copy of any such register, made under this act, shall be chargeable with stamp duty. (s. 17.) Application of Penalties.] One half of all fines or penalties, levied under this act, shall go to the informer or party suing for the same ; and the remainder of those imposed on any church or chapelwarden, shall go to the poor of the parish or place ; — and the remainder of those imposed on any rector, vicar*, minister, cui'ate, or registrar, shall be paid and apphed to such charitable purposes in the county as the bishop shall direct and appomt. (s. 18.) This act shall extend, so far as circumstances will permit, to cathe- dral and collegiate churches, chapels of colleges or hospitals, and tlie burying-grounds belonging thereto, and to the mmisters who shall officiate therein, and shall baptize, marry, or bury any persons, although such churches, hospitals, or burying-grounds, be not paro- chial, and such ministers officiating therein may not be parochial ministers, and there be no churchwardens thereof; and m all such cases., the books hereinbefore directed to be provided, shall be provided at the expense of the body having right to appoint the officiatuig minister in every such cathedral, or collegiate church, or chapel of a college or hospital ; and copies thereof shall be transmitted to the re- gistrar of the diocese, by such officiating minister, as is herein directed with respect to parochial ministers ; and shall be attested by two of the officers of such church, &c. ashy s. 6 directed in respect of church- wardens. Provided that nothing in this act shall extend to repeal any part of 26 G. 2. c. 33, for preventing clandestine marriages, (s. 20.) Sect. I,] PARISH REGISTERS. 127 Schedules provided by 54 G. 3. c. 146. SCHEDULE (A). BAPTISMS solemnized in the parish of .S(. A. in the county of B. in the year one thousand eight hundred and thirteen. When baptized. Child's Christian Name. Parents' Name. Abode. cs O By whom the Ceremony was performed. Christian. Surname. 1813. 1st February No. 1. John Son of William Elizabeth. Lambeth. 3d March No. 2. Ann Daughter of Henrif Martha. Fulham. SCHEDULE (B). MARRIAGES solemnized in the parish of St. A. in the county of B. in the year one thousand eight hundred and thirteen. and C. D. of I , f > parish. were married in this J ^'J^'^^f j by ^^ ^^^^]^ | with consent of ^ ^IZTL } this day of in the year C rector "^ By me, 7. J. •? vicar > f_ curate y i 4 B The marriage was solemnized between us } '„' j," T .1. fS E.F. In the presence of < xj rr 128 PARISH BOOKS. [Cliap. V SCHEDULE (C). BURIALS in the parish of A. in the county of B. in the year one thousand eight hundred and thirteen. Name. Abode. When buried. Age By whom the Ceremony was performed. John Williams. No. 1. Duke Street, Westminster, 1813. 1st May. 62. SCHEDULE (D). I do hereby certify, that I did on the day of according to the rites of the united church of England and Ireland, son (or daughter) of and his wife, by the name of To the rector [or as the case may 6e] of baptize I do hereby certify, that on the day of A. B. of aged was buried in ^stating the place of burial'], and that the ceremony of burial was performed according to the rites of the united church of England and Ireland, by me. To the rector [^or as the case may be'] of SCHEDULE (E). To the registrar of the diocese of at A. B. ) Churchwardens {or chapelwardens) of the parish (or cbapelry) of CD. ^ l^or such other description as the case shall require]. Marriage Registers.] By 4 G. 4. c. 76. s. 28, in order to pre- serve the evidence of marriages, and to make the proof thereof more certain and easy, is is enacted, that from and after the 1st November, 1823, all maiTiages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same ; and that uumediately after tlie celebration of every marriage, an entry thereof shall be made in the register-book, to be kept as by law is now duected ; in which entry or register it shall be expressed, that the said maniage was celebrated by banns or license ; and if Sect. 1.] PARISH REGISTERS. 129 both or either of the parties married by hcense be under age, not being a widower or widow, with consent of the parents or guar- dians, as the -case shall be ; and such entry shall be signed by the minister, with his proper addition ; and also by the parties mariied, and attested by such two witnesses ; which entry shall be made in the form, or to the effect following ; that is to say, ^- ^- «^ LmJ P""'"'^ — — «"^ ^- ^- ^^ Cti J , , • J • j7 • rciiurc}ir\ J parish — icere married in tins I , 1 \ J Canns i ^^.^j^ consent of \ ^ ,. I this daii of license-i •' \-guaraiansA ^ - —^ in the year Jiy me J. J Jiector ~1 Vicar | CurateJi This marriage tvas solemnized between us I ^," t\ \ in the presence of I p" tt J It will be seen that this fonn is substantially the same as the one provided by the register act, {ante 125, Sched. (B.) Forging, Sfc. Marriage Register.] And if any person shall, from and after the 1st day of November, 1823, with intent to elude the force of this act, knowingly and wilfully insert, or cause to be inserted, in tlie register-book of such ]mrish or chapelry, as aforesaid, any false entry of any thing relating to any maniage, or falsely make, alter, forge, or counterfeit any such entry in such register ; or cause or pro- cure the same to be done, or act or assist therein, or utter, or publish as true any such false, altered, forged or counterfeited register as aforesaid, or a copy thereof; or shall wilfully destroy, or cause or p3"ocure to be destroyed, any register-book of marriages, or any part of such register- book, with intent to avoid any marriage, or to subject any person to any of the penalties of this act ; he shall be deemed guilty of felony, and shall suffer transportation for life, according to the laws in force for transportation of felons. (4 G. 4. c. 76. s. 29.) Chapel Registers.] The fith section of the act enacts, that the pro- visions relative to providing and keeping man'iage registers in parish churches, shall extend to chapels in which marriages are authorized to be perfonned by the act as aforesaid ; and every thing required to be done relative thereto by churchwardens in the parish church, shall be done by the chapelwarden or other officer exercishig analogous duties in such chapel K i;U) I'ARisH BOOKS. [Chap. V. Baptismal Registers Evidence.} Parish registers are for some purposes considered as public books, and persons interested in them have a right to inspect and take copies of such parts as relate to their interest. (Dormer v. Ekyns, 2 Barnard. 269 ; Warriner v. Giles, 2 Stra. 954; and see 52 Geo. 3. c. 146. s. 5, ante, p. 122.) Anda parish register has been received in evidence as an original authentic book, although the constant practice of the parish was to make a memoran- dum of the christenings in a day-book, from which entries were some time afterwards made into such register. (May v. May, 2 Stra. 1073.) The question was again considered, in a case where the plaintiff's legitimacy was disputed. By the evidence it appeared, that the practice was to make the entries in the general parish register, once in three weeks, out of a day-book, in which entries were made imme- diately after the christenmg, on the same morning ; and in the case of illegitimate children, to insert in the entry the lettei-s B. B., sig- nifying " base born." The defendant's counsel then offered in evidence this day-book, in which the letters B. B. were inserted, as the original entiy. But a majority of the judges ])resent at a trial at bar were of opinion that such evidence ought not to be received, on the groimd that there could not be two registers in the parish, and that the one first jjroduced ought to be taken to be the true register. If, indeed, the entry in the day-book, representing the plaintifl' as illegitimate, had been signed by the reputed father or the mother, or made under their direction, such evidence would have been admissible, as the delaration of a deceased parent on a question of legitimacy ; for the declarations of deceased persons, supposed to have been married (who might themselves be examined if alive) are admissible to dis- prove the fact of maiTiage. (Rex v. Bramley, 6 T. R. 330.) But in the absence of such proof, the entry seems to have been considered merely a private memorandum, kept for the purpose of assisting the clerk to make up the register. And an entry in the register-book by the mmister of the parish, of the baptism of a child, whiqh had taken place before he became minister, or had any connexion with the parish, and of which he received infonnation from the parish clerk, is not admissible in evidence, nor is the private memorandum of the fact, made by the clerk who was present at the baptism. (Doe & WaiTen v. Bray, 8 Barn. & Cres. 813.) Biirial Registers Evidence.} The rules of law which apply to the registration of baptisms, are also appUcable to the registry of burials, when produced as evidence. In general, they can only be i-eceived in either case, in proof of the single fact which they have been e,sta- Sect. II.] I'ARISH LIBRARY. 131 blislied to record, and are inadinissil)le to support any collateral circumstances, which are frequently inserted at the same time. (Sec 1 Stark. Ev. 174.; Sib. 1116.) Marriage Registers Evidence.^ The law, which seems more anxious to create and preserve evidence of marriages, than of the other events to which parish registere are devoted, has provided that witnesses shall be present at the ceremony, and that they, with the officiating minister, sliall attest the performance thereof, by signing the entry thereof, in the fonn required by the act. (See ante, p. 129.) And the 6 G. 4. c. 92. s. 3, enacts, that the registers of marriages solemnized, or to be solemnized in the said churches or chapels, (see ante, jj. 129,) or copies thereof, shall be received, in all courts of law and equity, as evidence of such mamages, in the same manner as the registers of marriages solemnized m parish churches or public chapels are received in evidence ; provided nevertheless that in all such courts the same objections shall be available to the receiving such registers or copies as evidence, as would have been available to receiving the same as evidence, if such registers or copies had related to marriages solemnized in such last-mentioned parish churches or public chapels, as aforesaid. Proof of Residence unnecessary.^ After the solemnization of any maiTiage under a publication of banns, it shall not be necessary, in support of such maniage, to give any proof of the actual dwelling of the parties in the respective jjarishes or chapelries wherem the banns of matrimony were published ; or where the marriage is by license, it shall not be necessary to give any proof that the usual place of abode of one of the parties, for the space of fifteen days as aforesaid, was in the parish or chapelry where the maiTiage was solemnized ; nor shall any evidence in either of the said cases be received to prove the contrary, in any suit touching the validity of such marriage. (4 G. 4. c. 76. s. 26.) Dissenters' Registers.] Copies of the register of a dissenting chapel shall not be pleaded as evidence, they not being in official custody ; but they may be produced at the hearing of the cause, and be made evidence to a certain extent. (Newham v. Raithby, 1 Phil. Ec. Ca. 315 ; Goodright ex. dem. Stevens v. Moss, Cowp. 594.) SECTION II. PARISH LIBRARY. Parish Libraries Confirmed.] By the 7 Ann, c. 14, whereas in many places in England the provision for the clergy is so mean, that K 2 132 PARISH ROOK^: [Chap. V. the necessary expense of books for the better prosecution of their studies cannot be defrayed by them ; and whereas, several persons of late years have, by chaiitable contributions, erected libraries within several parishes and districts ; but some provision is wanting to pre- serve the same, and such others as shall be pro^dded in the same manner from embezzlement ; it is enacted, that in every parish or place where such a library is, or shall be erected, the same shall be pi'eserved for such uses as the same is and shall be given, and the orders and rules of the founders thereof sliall be observed and kej^t. (7 Ann, c. 14. s. 1.) Visitation by Ordinary.'] And it shall be lawful for the proper ordinary or his commissary, or official, or the archdeacon, or by his direction, his official, or suiTOgate, if the said archdeacon be not the incumbent of the place where such library is, in theii- visitation to enquire into the state and condition of the said Ubraries, and to amend and redress the gxievances and defects of and conceraing the same, as to him or them shall seem meet ; and it shall be lawfid for the proper ordinary from time to time, as often as shall be thought fit, to appoint such persons as he shall think fit, to view the state and condition of such libraries ; and the said ordinaries, archdeacons or officials, respectively, shall have free access to the same at such times as they shall resjjectively appoint, (s. 3.) Locked up during Vacancy.] And to prevent any embezzlement of books upon the death or removal of any incumbent, immetUatelv after such death or removal the library belonging to such parish or place shall be forthwith shut up, and locked, or othenvise secured bv^ the churchwardens, or by such persons as shall be authorized by the proper ordinary or archdeacon respectively ; so that the same shall not be opened again till a new incumbent, rector, vicar, minister, or curate, shall be inducted or admitted, (s. 6.) Provided, that if the place where such library shall be kept shall be used for any public occasion — for meeting of the vestry, or other- wise for the dispatch of any business of the said parish, or for anv other public occasion for which the said place hath been ordmarilv used, — the said place shall nevertheless be made use of as formerly for such purposes, and after such business is dispatched, shall be again forthmth shut and locked up, or othenrise secured, as is before directed, (s. 7.) Security by Incumbent.] And for the encouragement of such founders and benefactors, and to the intent they may be satisfied that their pious and charitable intent may not be frustrated, every incum- bent, rector, vicar, minister, or curate of a parish, before he shall be Sect. II.] PARISH LIBRARY. 133 permitted to use or enjoy such library, shall enter into such security by bond, or otherwise, for preservation of such library, and due observance of the rules and orders belonging to the same, as the proper ordinaries within their respective jurisdictions in their discretion shall think fit. (s. 2.) New Catalogues.'\ And where any library is appropriated to the use of the minister of any paiish or place, every rector, vicar, minis- ter, or curate of the same, within six months after his institution, induction, or admission, shall make a new catalogue of all books remaining in or belonging to such library, and shall sign the said catalogue, thereby acknowledging the custody and possession of the said books ; which said catalogue, so signed, shall be delivered to the proper ordinary within the time aforesaid, to be kept or registered in his court without any fee or reward for the same. (7 Ann, c. 14. s. 4.) And where any library shall at any time hereafter be given and ap])ropriated to the use of any paiish or place, where there shall be an incumbent, rector, vicar, minister, or curate, in possession, he shall make a catalogue thereof, and deliver the same as aforesaid within six months after he shall receive such library, (s. 5.) Books not to be Alienated.'] And none of the said books shall, in any case, be alienable, or be alienated without the consent of the proper ordinary, and then only when there is a duplicate of such book. (s. 10.) Books Lost or Detained.] And in case any book or books be taken, or otherwise lost out of the said library, it shall be lawful for a justice of the peace to gi'ant his warrant to search for the same ; and in case the same be found, such book or books so found shall imme^ diately, by order of such justice, be restored to the said library. (Id.) Action for Books.] And in case any book or books belonging to the said library shall be taken away and detained, it shall be lawful for the incumbent, rector, vicar, minister, or curate for the time being, or any other person or persons, to bring an action of trover and con- Acrsion in the name of the projier ordinaries, within their respective jurisdictions; whereupon treble damages shall be given with full costs of suit, as if the same were his or their proper book or books, which damages shall be ai)plied to the use and benefit of the said library. (s. 2.) List of Benefactions.] And for the better preservation of such books, and that benefactions given towards the same may a])pcar, a book shall be kept within the said library for ihc entering and regis- tering of all such benefactions, and such Ixioks as shall be given |;i4 I'Aiusn r.ooKs. [Chap. V. towanls the same : and therein the minister shall enter such benefac- tions, and an account of all snch books as shall from time to time be given, and by whom e prepared for the purpose, and kept in the said libnu-y. (s. 9.) E.i'cepfecf from the Act.] But nothing in this act shall extend to a public librarj' erected in the parish of Ryegate, in the county of Suney, for the nse of the freeholders, vicar, and inhabitants of the said parish, and of the gentlemen and clerg%'men inhabiting in parts thereto adjacent ; the said librarv being constituted in another manner than the libraries provided for bv this act. (7 Ami, c. 14. s, 11.) SECTHiN lir. — RATt. B(K>KS, &C. Poor-Rate Book.] It is enacted by statute 17 G. 2. c. 38. s. 13, that true copies of all rates and assessments made for the relief of the j)oor be entered in a book, to be provided for that pirpose by the churchwardens and overseers of the poor of exery parish, &c., who shall take care that such copies he entered accordingly, within four- teen da\-s after aU appeals from such rates are determined, and shall attest the same by putting their names thereto ; and everA- such book shall be carefully preserved br the churchwardens, &c. for tlie time being, or one of them, in some pnblic place in ever\- such parish, &c. whereto all }>ersons assessed mav freelv resort, and shall be dehvered over from time to time to the new and succeeding churchwardens, &c. as soon as they enter into their offices, and shall be produced by them at the general or qnarter sessions when any appeal is to be heard or determined. Parish-Indenture Book.] Tlie 42 G. 3. c. 46, enacts, that the overseers of the poor of everv parish shall provide and keep a book at the expense of the parish, and enter therein the name of every child who shall be bound out bv them respectively as an apprentice, together with the several other i^articulars, in the manner and form >ect. III.] RATJE iSOOKS, &.C. 130 required by this act ; and every such entry shall be produced and laid before two justices of the peace, who shall signify their assent to the indenture of apprenticeship, at the time when such indenture shall be laid before them for that puipose ; and each entry shall, if approved of, be signed by them, according to the prescribed form. And in the third se<^;tion it is enacted, that any person may, at all seasonable hours, inspect such book in the hands of the said overseer, and take a copy of such entry; and ever\- such book shall be deemed to be sufEcient evidence in all courts of law in proof of the existence of such indentures, and also of the several particulars specified in the register respecting such indentures, in case it shall be proved to the satisfaction of the court that the indentures are lost or destroyed. Vestry Books.] The 58 G. 3. c. 69. s. 2, directs that the minutes of the proceedings and resolutions of every vestry shall be fairly and distinctly entered in a book, (to be provided for the purpose by the churchwardens and overseers of the poor,) and shall be signed by the chairman, and by such other of the inhabitants present as shall think proper to sign the same. Custody of, and Access thereto.] The .same statute, by section 6, enacts, that as well the books directed to be provided by that act, and kept for the entry of the proceedings of vestries, as all fonner vestrj- -books, and all rates and assessments, accounts, and vouchers of the churchwardens, overseers of the \k\ot, and surveyors of the high- ways, 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, shall be kept by such person and persons, and deposited in such place and manner as the inhabitants, in vestry assembled, shall direct ; and if any person, in whose hands or custody any such book, rate, assessment, account, voucher, certificate, document, order, writing, or paper shall be, shall wilfully or negUgently destroy, obh- terate or injm-e the same, or suffer the same to be destroyed, obh- terated, or injured, or shall after reasonable notice and demand refuse or neglect to deliver the same to such person or persons, or to deposit the same in such place as shall, by order of any such vestry, be directed ; every person so offending, and being lawfully convicted thereof on his own confession, or on the oath of one or more credi- ble witness or witnesses, by and before two of his majesty's jus- tices of the peace, upon complaint thereof to them made, shall for every such offence forfeit and pay such sum, not exceeding £50, nor less than 40.s., as shall by such justices be adjudged and deteiTuined ; and the same shall be recovered and levied bv 136 PARISH BOOKS. [Chap. V. warrant of such justices, in such manner and by such means as j)oor-rates in arrear are by law to be recovered and levied, and shall be paid to the overseers of the poor of the parish against which the ofTence shall be committed, or to some of them, and be applied for and towards the relief of the poor thereof ; pro\aded nevertheless that every person who shall unlawfully retain in his custody, or shall refuse to deliver to any person or jjersons, authorised to receive the sajne, or who shall obliterate, destroy, or injure, or suffer to be obhterated, destroyed, or injured, any book, rate, assessment, account, voucher, certificate, order, document, \ATiting, or paper belonging to any parish, or to the churchwardens, overseers of the poor, or surveyors of the highways thereof, may in every such case be proceeded against in any of his majesty's courts, civilly or criminally, in like manner as if this act had not been made. Demand of Inspection.'\ The 17 G. 2. c. 3. s. 2, enacts, that overseers of the poor shall pennit inhabitants of the paiish to inspect the rates at all seasonable times ; and the third section provides, that if any overseer shall not pennit an inhabitant to inspect the rate, such overseer for every such oflence shall forfeit and j)ay to the pai'ty aggi'ieved the sum of £20. In an action to recover this penalty, the judge directed a nonsuit, against his own opinion, upon the authority of the case of Sj^encely v. Robinson, (3 Bam. & Cres. 658,) in which it was held that, under this act, the party must show that he has sustained an injury by the act of the overseer. Liberty was given to move to set the nonsuit aside, and to enter a verdict for the penalty ; and after argument at the bar, the court held, that a de- mand to insjiect a rate made on the overseer by a rated inhabitant, in the presence of his attorney, is a lawful demand ; that the refusal to produce a rat« upon a lawful demand constitutes the inhabitant a party grieved within the meaning of the statute ; that a demand to see " the rate " is sufficiently sjiecitic, there being onlv one rate in esse at the time ; that the overseer, by refusing to show the mte, aiid refening the party to the select vestry, as a place where he would l>e allowed to inspect it, incuiTcd the penalty imposed by the 1 7 Geo. 2. c. 3. (Bennett v. Edwards, 7 Barn. & Cres. 586 ; 1 ]Man. & Rv. 482.) But a new ti'ial was ordered on the ground that the defendant, who was assistant overseer only, is not liable to the penalties, unless it be pro\ed that the select vestry have imjxised upon him tlie duty of producing the rate to the inhabitants. And upon the case coming before the court again, after a second trial, the court decided, that it the defendant had the rate in his possession as assistant overseer, it Sect. III.] RATE BOOKS, &c. 137 might be presumed that it was his duty to produce it when lawfully demanded ; and though the declaration did not contain such an aver- ment, as it ought, there was sufficient on the record, after verdict, to wan-ant a judgment for the plaintiff. (8 Barn. & Cres. 702.) Assistant Overseer liable.'] The above case was afterwards earned to the Exchequer Chamber upon a writ of error; and I have been favoured with a note of the judgment in that, and in another similar case, by Mr. Moore. They will be found at large in the third volume of Moore and Payne's Reports. Mr. Serjeant Ludlow for the plaintiff in en-or, and Mr. Campbell for the defendant in error, having recapitulated the arguments adopted in the court below ; Lord Chief Justice Tindal, in delivering the judgment of the court, said, that " they were of opinion, Jirsf, that an assistant overseer was within the provisions of the statute (17 G. 2. c. 3. s. 2,} as he was a person authorized to take care of the poor ; he having been nominated and elected by the inhabit- ants of the parish in vestry assembled, and appointed an assistant overseer by warrant, in writing, under the hands and seals of two justices of the peace, as i-equired by the statute; (59 G. 3. c. 12 ;) and that thereby a sufficient authority was given to him to execute all the duties of the office of such overseer, as should be expressed in the tenns of the warrant. With respect to the objection, that the fourth count of the declaration did not bring the plaintiff in eiTor within the tenns of the statute 1 7 G. 2, yet that count is sufficient after verdict ; as it must be now intended that every thing alleged therein was proved at the trial. It was alleged ^that the plaintiff in error was the assistant overseer of the parish, and that he was requested by the defendant in eiTor, as such overseer, to permit him, the defendant in error, to inspect the rate ; and that the plaintiff in enor, as such as- sistant overseer, had the rate then in his possession. The fact of his being assistant overseer must have been proved by the production of the warrant under which he was appointed ; and, although he miglit not have a general authority to take care of the poor at large, yet he might have had a limited authority, by which he was entitled to have the custody of the rate as such assistant overseer. If it had been alleged, that he had authority to take care of the poor, there would have been no doubt. The case of the King v. Everett is dis- tinguishable, as there only three descriptions of persons were autho- rized to seize goods under a warrant from the officers of the customs ; and the seizure was made by a person not falling within either of tliosc descriptions. There too the party was cliargcd with a ciiminal 138 DISSENTERS. [Chap. VI. offence, whilst here he was only liable to a penalty, to be enforced by civil remedy. — Judgment affirmed. Mr. Campbell then moved, that the judgment in Parker v. Edwards might be affirmed, where a demand to inspect the rate had been made by another parishioner upon the defendant upon his own premises, not far from his house, and he refused to allow the inspection ; but not on the ground that it was inconvenient to go to his house for that puii^ose. In an action against him for the refusal, the Court of King's Bench held that this was a reasonable demand, — Judgment affirmed accordingly. Proof of Entries in Registers.] An entry in a parish register, like any other public document, may be proved by means of an ex- amined cojjy; and it is of course imnecessary to give any proof by means of the subscribing witnesses, or to i>rove their hand-writing. (Birt v. Barlow, Doug. 173.) The register is no proof of the identity of the parti&s. (lb. 1 Stai'k, Ev. 176.) CHAPTER VI.— DISSENTERS. Section I. General Rights of Dissenters. II. Tests and Oaths of Office. III. Quakers and Moravians. rV. Immunities of Dissenting Ministers. V. Dissenting Places of Worship. SECTION I. GENERAL RIGHTS OF DISSENTERS. Christianity part of the Law.] It has been frequently declared in the senate and from the judgment-seat, that Christianity is part and parcel of the law of the land. (Rex v. Taylor, 3 Keb. 607 ; Rex V. Woolston, 2 Stra. 834.) Its zealous adoption by the princes and people of this country, at a time when th«ir civil institutions were few and in their infancy, facilitated the introduction of its sanctions into the policy of the state ; and the far greater influence which it exercised over the hopes and fears of men, even in matters of worldly interest, than had resulted from the visionary promises and denuncia- Sect. I.] GENERAL RIGHTS OF DISSENTERS. 139 tions of Paganism, ofiered a strong inducement to its union with temporal power. Accoi'dingly, every new device for the government of the people, whether decreed by the will of the sovereign or sent forth by the gi'eat council of the nation, bore the impress and the sanction of Christianity. And thus the authority of a pure and holy religion, and of an improving system of government, were concen- trated in the same institutions, and administered by the same func- tionaries; and hence the Christian religion became part and pai'cel of the law of the land. This maxim of the courts has been sometimes questioned, and its coiTectness denied; because, in more recent times, the profession of peculiar religious opinions has been discountenanced and condemned by the legislature. But it is presumed, that an answer to this objec- tion will be found in the tenus of the proposition, which do not assert any individual creed, or necessarily embrace any particular system of worship to the exclusion of all others. The Christianity which is here represented as interwoven with the constitution, is the compre- hensive scheme of moral discipline and improvement, enforced by the belief of an accountability hereafter, for the promulgation and sup- port of which the state exerted its vigilance and pledged its authority. Origin of Sectarianism. 1 For sevei'al centuries after the Cluistian religion had been established in Great Britain, no division among its followers into separate, sects existed ; and the law, therefore, knew nothing of different denominations ; but when a reckless spirit of in- quiry led to a conviction that the dogmas and practices of Popery were not waiTanted by the sacred volume from whence they were professedly d\*awn, and the eye of patriotism saw they were equally inimical to civil liberty, a new system was formed, to which the pa- tronage of the state was transferred ; and the faith which had so long predominated was abandoned and proscribed. It was then that the statute-book began to teem with penal enactments and civil disabilities, in restraint of the liberty of conscience ; some of them, doubtless, pro- voked by the machinations of those against whom they were directed, but others originating in an overweening self-confidence, which having asserted the right of private judgment for itself, denied it to others; because, as it was practically alleged, all others must come to the same conclusions, or at least ought to do so, and therefore it was either unnecessary or dangerous to allow them the exercise of this privilege. The futility of attempts to force the consciences of men, and the vindication of the law of the land from this imputation, in contradistinction to the statute law, cannot be more eloquently ex- pressed than by liord Mansfield, when delivering his judgment in the 140 DISSENTERS. [Chap. VI. House of Lords, upon the question, whether a person elected to a cori)orate office might plead, in excuse of the line for refusing to serve, that he was a dissenter, and could not conscientiously take the sacra- ment as required by the statute. ■ Freedom of Religious Opinions.'] His Lorship said, " The de- fendant in the present cause pleads, that he is a dissenter within the descrijition of the Toleration Act ; that he hath not taken the sacra- ment in the church of England within one year preceding the time of his supposed election, nor ever in his whole life, and that he can- not in conscience do it. Conscience is not controllable by human laws, nor amenable to human tribunals. Persecution, or attempts to force conscience, will never produce conviction, and are only calcu- lated to make hypocrites or martjTs. My lords, there never was a single instance from the Saxon times down to our oya\, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no per. secution for mere opinions. For atheism, blasphemy, and reviling the Christian religion, there have been instances of persons jDrose- cuted and punished upon the common law ; but bare non-conformity is no sin by the common law ; and all positive laws inflicting any pains or penalties for non-confonnity to the established rites and modes, are repealed by the Act of Toleration, and dissenters are thereby exempted from all ecclesiastical censm'es. What bloodshed and confusion have been occasioned, from the reign of Henry 4th, when the first penal statutes were enacted, down to the revolution in this kingdom, by laws made to force conscience ! There is notliing certainly more unreasonable ; more inconsistent with the rights of hmnan nature; more contrary to the spirit and precepts of the Chris- tian religion ; more iniquitous and unjust ; more impolitic, than jierse- cution. It is against natural religion, revealed religion, and sound policy. Sad experience, and an enlightened mind, taught that great man, the President De Thou, this doctrine ; let any man read the many admnable things, which, though a Papist, he hath dared to advance upon the subject in the dedication of his History to Henry the Fourth of France, (which I never read without rapture,) and he will be fully convinced, not only how cruel, but how impohtic it is to persecute for religious opinions. As a subject of Great Britain, I should not have been sony if France had continued to cherish the Jesuits and to persecute the Huguenots. There was no occasion to revoke the Edict of Nantz. The Jesuits needed qiily to have ad\ised a plan similar to what is contended for in the present case, — make a Sect. I.] GENERAL RIGHTS OF DISSENTERS. 141 law to render them incapable of office ; make another to punish them for not serving. If they accept, punish them; if they refuse, punish them; if they say yes, punish them; if they say no, punish them. My lords, this Ls a most exquisite dilemma, from which there is no escaping." His Lordship concluded with moving that the judgment be affirmed: — and the judg-ment was immediately affirmed nemine contradicente. (Appendix to Furneaux's Letters to INIr. Justice Blackstone, 2d edit. ; 2 Burn. Ec. L. 218; 6 Bro. P. C. 181.) Eligibility to Office.^ The earliest statutory interference was directed to the laudable object of enforcing a due observance of the sabbath, a proper attendance upon the ordinances of public worship, and a decorous and befitting demeanor in the sanctuaries of religion. But in the progi'ess of the strife between the repudiated and the adopted faith, it was thought expedient for the safety of the govern- ment, and tlie more certain triumph of the refonned church, to admit none but its members to public office or employment. Still, as in the enactments upon this subject, the principal object of the legislature was to secure the jK)wer to persons who outwardly professed the re- ligion of the state ; the punishment of non-confonnists, by excluding them from power, was the consequence, not the end and puiiJose, of the law : and agreeably to this principle, those laws have been abro- gated or relaxed, with the -growing liberality of the times, and the at- tainment of a Ijetter knowledge of the true maxims of civil govern- ment. Both the lay and ecclesiastical tribunals were, no doubt, occasionally employed in denouncing peculiar doctrines, and punish- ing heterodoxy ; but the conscientious profession of particular doc- trines ceased to be a crime, when the Unitarians were admitted within the pale of express statutory toleration, by the 67 G. 3. c. 70. Privileges and Duties-I Except in those instances where the legis- lature has expressly interfered to restrain or impose conditions upon Protestant dissenters, they participate, in common with their fellow- subjects of the Established Church, in all the rights and duties, and are alike entitled to the protection an hat- soever. A similar provision is contained in the Catholic Relief Bill, which enacts, that if any person holding a civil or judicial office, or any mayor, provost, jurat bailiff, or other corporate officer, shall so offend either in England, or Ireland, or in Scotland against the chnrch of Scotland, he shall forfeit his office, and pay for every such offence the sum of £100. (10 G. 4. c. 7. s. 25.) Catholic Relief Bill. ] The declaration against transubstantiation is repealed generally ; the oaths of allegiance, supremacy, and abju- ration, still remain on the statute book, but are no longer a bar to the admission of ])apists to corporate offices or other higher employments in the slate, whether civil or military. The only exceptions are, the office of I'egent of the united kingdom, under whatever name or title such office may be constituted, the office of lord chancellor, lord keeper, or lord commissioner of the gi'eat seal of Great Britain or Ireland, or the office of lord lieutenant, or lord de^Juty, or other chief governor of Ireland, or his majesty's high commissioner to the general assembly of Scotland. (10 G. 4. c. 7. s. 12.) The act also provides, that Catholic members of lay corporations, are not to vote at, or join in, the election or appointment of any person to any ecclesiastical benefice or office, connected with the united church of England and Ireland, or the church of Scotland, which may be in the gilt of such corporation, (s. 15.) And it is also provided, that the act shall not enable any persons, otherwise than as they were before enabled, to hold any office in the established church, ecclesiastical courts, universities, colleges, or schools, nor to present to benefices, nor to advise the croivn, or the I, 146 DISSENTERS. [Chap. VI, chief gOA'ernor of Ireland, touching or concerning the appointment or disposal of any office or preferment in the church, &c. ; upon pain of hcing disabled for ever from holding any office, ci\al or military, under the crown, (ss. 16 — 18.) Jesuits, (Sfc] Jesuits, and members of other religious orders of the church of Rome, bound by monastic or religious vows, in the kingdom at the passing of the act, and natural boni subjects, being Jesuits, &c., returning to the kingdom, are to send the necessary par- ticulars to the clerk of the peace where they reside, in order that they may be registered ; and if any members of any such society come info the realm, they shall be banished ; unless such persons come under a license granted by the secretary of state, who is authorised to grant the indulgence for six months, revocable at any time if he shall think fit. (s. 31.) The 37th section provddes, that nothing contained in the act shall extend to aflect any religious order, community, or establishment, consisting of females bound by religious or monastic vows. The Catholic Oath.] The act authoiizes the admission of CathoUcs into parliament, and to all offices and employments, with the excep- tions already stated, upon taking and subscribing the following oath, instead of the oaths of allegiance, supremacy, and abjm'ation. I, A. B., do sincerely promise and swear, that I will be faithful, and bear true allegiance to his Majesty King George the Foui'th, and will defend him to the utmost of my power against all conspii-acies and attempts whatever which shall be made against his person, crown, or dignity ; and I will do my utmost endeavour to disclose and make known to his Majesty, his heirs, and successors, all treasons and traitorous conspiracies which may be formed against him or them. And I do faithfully promise to maintain, support, and defend to the utmost of my power, the succession of the crown ; which succession, by an act intituled. An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject, is, and stands limited to the princess Sophia, electress of Hanover, and the heirs of her bod}^, being Protestants ; hereby utterly renouncing and abjuring any obedience or allegiance unto any other person claiming or pretending a right to the crown of this realm. And I do further declare, that it is not an article of my faith, and that I do renounce, reject, and abjure the ojjuiion, that princes excommunicated or de- prived by the pope, or any other authority of the see of Rome, may be deposed or murdered by then- subjects, or by any person whatsoever. And I do declare, that I do not believe that the pope of Rome, cr any other foreign prince, prelate, ]ierson, state, or potentate, hath, or Sect. III.] QUAKERS AND MORAVIANS. 147 ought to have, any temporal or civil jurisdiction, power, superiority, or pre-eminence, directly or indirectly, within this realm. I do swear that I will defend to the utmost of my power the settlement of pro- l)erty within this reahn, as estahlished hy the laws. And I do hereby disclaim, disavow, and solemnly abjure any intention to subvert the present church establishment as settled by law within this realm. And I do solemnly swear, that I never will exercise any privilege to which I am, or may become entitled, to disturb or weaken the Pro- testant religion or Protestant government in the united kingdom. And I do solemnly, in the presence of God, profess, testify, and de- clare, that I do make this declaration, and every part thereof, in the plain and ordinary sense of the words of this oath, without any eva- sion, equivocation, or mental reservation whatsoever, So help me God. SECTION III. QUAKERS AND MORAVIANS. Affirmation in lieu of Oath.] The peculiar opinions of Quakers and Moravians upon several matters of municipal government, and the civil institutions of the country, have given rise to certain legislative j}rovisions with respect to them, by which they in some measure become a distinct, civil, as well as a separate religious community among their fellow-subjects. The scruple entertained by both Quakers and Moravians, to take an oath, excludes them from sernng on juries. It likewise disables a quaker, except in the Colonies, (13 G. 2. c. 7,) to hold office or ])lace of profit under government. On the other hand, by a recent act of parliament the solemn affir- mation of Quakers or Moravians has become of the same validity to enable them to give e\ddence, as an oath administered in the usual form, in all cases, whether civil or criminal ; and a false affirmation is tantamount to perjury, and punishable in the same manner as the latter crime. (9 G. 4. c. 32. ss. 1, 2.) They are enjoined, in lieu of the oaths to government, to make a declaration of fidelity, (8 Geo. 1. st. 2. c. 6. s. ],) an affirmation of abjuration, (lb. s. 3; as to Moravians, 22 Geo. 2. c. 30,) and a profession of Christian belief, (1 W. & M. st. 1. c. 18. s. 13.) These, when lawfully rec^uired, must be taken, made, and entered, at the general quarter sessions of the peace for the county, city, or place of residence of the party qualifying ; who is thereupon exempted from the penalties of the statutes enumerated in the 13th section of the Tole- ration Act, and entitled to the full benefit of that act, equally with other Protestant Dissenters. (1 W. & M. st. 1. c. 18. s. 13.) L 2 I4ft DISSENTERS. [Cliap. VI. Payment of Tifhes.] The 7 and 8 W. 3. c. 34, 1 Geo. 1. c. 6, and '27 Geo. 2. c. 20, amended by 53 Geo. 3. c. 127, provide, on behalf of Quakers ohjectmg to pay or componnd for any tithes, rate.s, customary or other rights, dues, or pa\auents belonging to the established church, that when any such, by law and custom, payable for the stipend or maintenance of any minister or curate, officiating in any churcli or chai^el, amounting to a sum not exceeding £ -50, are due, any justice of the peace of the county or place, (other than the patron or person interested in the same,) on complahit of any parson, vicar, curate, fanner, or proprietor of, or entitled to receive or collect such tithes, rates, dues, or payments, respectively, may, and is requh'ed to summon, 1)y writing, under his hand and seal, with rea- sonable warning, any Quaker refusing to pay or compound for the same, to appear before any two or more justices of the peace of the county or place aforesaid, and, on his appearance, or in defaidt of his appearance, the warning or summons being proved on oath, they are empowered to examine on oath or afBrmation, the truth of the com- jilaint, to ascertain what is due, and, by order, under theii" hands and seals, to direct its payment : and on refusal to obey the order, it is lawful for one of the said last-mentioned justices, by wanant under his hand and seal, to levy the money by distress and sale of the goods of the offender, his executors or administrators, rendermg only the surplus, after deducting the necessary costs and charges of making the distress, not exceeding the sum of 10s. Persons aggrieved may ajipeal to the next general quaiter sessions ; but these proceedings cannot be removed or superseded by certiorari, or other wi-it what- soever, unless the title to such tithes, &c., comes in question ; and in case of appeal, no wairant of distress may be gi-anted, until after such appeal is determined. A general act of the same import, applying only to small tithes, offerings, oblations, obventions, and compositions, was passed in 7 and 8 Wm. 3. c. 6 ; made perpetual by 3 and 4 Anne, c. 18. s. 1, and extended to the value of £ 10 by 53 Geo. 3. c. 127. s. 4. The time for brmguig actions to recover penalties for not setting- out tithes and instituting suits in an equity or ecclesiastical court, to re- cover the value of tithes, is limited to sLx years. (53 Geo. 3. c. 127. s. 6.) Militia Service.'] The mode in which a Quaker is made to con- ti'ibute to the militia is as follows : if he neglects or refuses to serve, (42 Geo. 3. c. 90. s. 50,) when embodied, or io provide a fit substi- tute, any two or more deputy lieutenants may provide one for him ; and, by waiTant under their hands and seals, levy upon him, by dis- tress and sale, such reasonable sum as may be expended in procuriufr a substitute ; and if no goods, or none sufficient can be foiuid, and it Soot. III.] QUAKERS AND MORAVIANS. 149 satisfactorily appears to the said deputy lieutenants, that the said Quaker is of sufEcient ability to pay the sum of £10, being the sum forfeited by other persons for similar instances of neglect and refusal, they may commit him to gaol for the tenn of three months, or until he pays the expense of jjrocuring a substitute. In case of supposed oppression in levying the distress, a complamt may be made by the party thinking himself aggrieved, to the next general meeting of the deputy lieutenants, who are authorised finally to detennine the same. Who deemed Quakers.] No person is to be deemed a Quaker within the meaning of these enactments, unless he produces to the de- puty lieutenants, at a sub-division meeting, a certificate of that fact, under the hands of two respectable householders, being Quakers, dated within three months of the day of its production ; and a similar cer- tificate is required to be produced by householders, being Quakers, to the constable or other officer whose duty it may be to farnish a hst of the inhabitants liable to military service. (42 Geo. 3. c. 90. ss. 27. 50, 51 ; see also 46 Geo. 3. c. 91.) And if a Quaker is chosen constable, or otherwise appointed for the purposes of the Militia Act, and neglects or refuses to serve; on his jn-oducing a smiilar certificate, it is lawful for two justices to ap- point a deputy for him, who shall be invested with the same powers, and liable to the same penalties, as he himself would have been ; and on such appointment being made, he is discharged. (42 Geo. 3. c. 90. s. 33.) Similar provisions are made in the act for the defence of the realm, and includes Moravians; (46 Geo. 3. c. 90, ss. 21, 28;) and likewise in the Local Militia Act, (52 Geo. 3. c. 38. ss. 25, 27.) And by the 20th section of the former act, a Quaker or Moravian balloted under that act, is exempted from service on producing a similar certi- ficate to the proper authorities, who may fine the party in a sum not exceeding £7, nor less than 20s., for the year of the ballot, to be levied by distress ; and in case no goods can bg found, may imjjrison him for any time not exceeding fourteen days, unless such sum is sooner paid or satisfied; but this act does not extend to the city of London. A like provision to the last, is made in the Local Militia Act, but the fines specified in s. 44, being £30, £20, or £10, according to the ability of the party, may be mitigated, at the discretion of the deputy-lieutenants ; who possess likewise the power of remitting the im])risonment, which is for one month. Their Marriai/es.] Quakers arc expressly excepted from tlie ope- ration oC the Mairiage Acts, and enjoy the liberty of soleinniziiig 150 DISSENTERS. [Chap. VI. matrimony in their conventicles, where both the contracting parties are of this denomination. Their conjugal rights are the same as in other cases ; nor would the title of the husband, it is presumed, to administer the effects of his deceased wife, be now disputed; as it was before the passing of the Man-iage Act, (26 Geo. 2. c. 33,) as that specially exempts them from its operation. (Haydon v. Gould, 1 Salk. 120; see Hutchin- son V. Brookebanke, 3 Lev. 376.) Local Exemptions.] By various acts of parUament, Quakers are locally exempted from offices opposed to their religious scruples ; such as that of assessor or collector of a stipend to a rector or vicar; (23 Geo. 2. c. 36 ; 47 Geo. 3. c. 132 ;) of collector, treasurer, clerk, or receiver, for building, re-building, or repauing a church, chapel, or steeple; (26 Geo. 2. c. 38; 55 Geo. 3. c. 44;) and of churchwarden or chapelwarden of new churches or chapels. (43 Geo. 3. c. 117; 51 Geo. 3. c. 69; 57 Geo. 3. c. 34.) They may also compound, in certain specified instances, for paro- chial and other rates. (50 Geo. 3. c. 14 ; 56 Geo. 3. c. 56 ; 58 Geo. 3. c. 22.) And their charitable foundations and donations are not included in the act for registering and securing charitable donations in general. (52 Geo. 3. c. 102.) The statutes which more immediately extend the benefits of tole- ration to Quakers, are the 1 W. & M. s. 1. c, 18, and 10 Anne, c. 2. SECTION IV. — IMMUNITIES OF DISSENTING MINISTERS. Preaching in certijied Places.] All pei'sons teaching, preaching, or officiating in any congregation or assembly for the religious worship of Protestants, (that is. Dissenters, and not ministers of the church of England, (Trebec v. Keith, 2 Atk. 498,) whose place of worship is duly certijied according to law, are now as fully exempted, without pre- cedent qualification, (unless they have been legally required to qualify, 52 Geo. 3. c. 155. s. 4,) from the penalties of any acts relating to religious ivorship, as those who take the oaths mentioned in the To- leration Act, or any other act amending the said act. Provided, that if any such person, not having taken the oaths to government, and subscribed the declaration (now abolished, 10 G. 4. c. 7) against transubstantiation, shall, when required by any one justice of the peace, by writing under his hand, or signed by him, continue to teach or preach in any such congregation or assembly. Sect. IV.] IMMUNITIES OF DISSENTING MINISTERS. 151 without taking the said oaths, he shall forfeit for each offence a sum not exceeding £10, nor less than 10s., at the discretion of the con- victing justice. (52 Geo. 3. c. 155. s. 5.) But no person is required to go farther than five miles from his place of residence at the time of such requisition, for the purjjose of qualifying. (Ibid, s. 7.) Uncertijied Places and locked Doors.] Preaching or officiating in any place of worship, field, or place in the open air, or other ])lace, not duly certified, subjects the oflender to the penalties incuried by the laity by being present at unlawful conventicles. And on certificate from the ordinary to two justices of a county, or the chief magistrate of a city or town corporate, the olfender is liable, under the 13 & 14 Car. 2. c. 4, and 15 Car. 2. c. 6. s. 7, to be hnprisoned for three months, — for neglecting to use the book of Common Prayer; — for administer- ing the Lord's supper without episcopal ordination ; — or for preach- ing and lecturing without episcopal license, assent to the thirty-nine Articles, and ojjen reading, or assent to, the Book of Common Prayer. And preaching in an assembly consisting of more than the lawful number, in any place, without the consent of the occupier thereof, (52 Geo. 3. c. 155. s. 3,) or in any place with the door locked, bolted, barred, or otherwise fastened, so as to prevent any person enter- ing therein during the time of meeting, (s. 1 1 ,) the offender incurs, on conviction, by the oath of one or more witnesses, a forfeiture for each offence of the first class, of a sum not exceeding £30, nor less than 40s. ; and of the second class, of a sum not exceeding £20, nor less than 40s., at the discretion of two or more convicting justices. It must be also observed, that dissenting minister's are excluded from the provision which exonerates lay Dissenters in general, from the penalties of acts relating to religious worship, on ex post facto qualification. (10 Anne, c. 2.) Dissenting Ministers in Trade.] It is necessary for ministers en- gaged in trade, although teaching a separate congregation, to qualify under one or other of the following enactments, in order to avail themselves of the subsequent immunities and exemptions. Every teacher, (1 W. & M. st. 1. c. 18. s. 11, extended to Unita- rians by the 53 Geo. 3. c. 160,) or preacher, in holy orders, or pre- tended holy orders, being preacher, or teacher, of a separate congre- gation, (R. v. J. J., Denbighshire, 14 East. 284,) who takes the oaths to government, at the general or quarter sessions for the county or division where he lives, (which such court is empowered to adminis- ter, and enter of record, the clerk of the peace being entitled to a fee of sixpence for the same ;) and also subscribes the thirty-nine Ar- IC)'2 DISSENTERS. [Chap. VI. tides, except the thirty-fcairth, thiity-fifth, and thuty-sixth, ami these words of the twentieth article, viz. " the church hath power to decree rites or ceremonies, and author ity in controversies of faith and yet ;" or in case he scruples the baptizing of" infants, except also, part of the twenty-seventh article touching infant baptism; is ex- t'ni])ted from being chosen or appointed to the office of chiu-chwarden, overseer of the poor, or any other parochial or ward office, or other office in any hundred, city, town, parish, or division, whether the «ame were in bemg at the time of the passing of this enactment, or has been subsequently created. By the late Jury Act it is enacted, that none but teachers or preach- ers of dissenting congregations described in the ninth section of the 52 Geo. 3. c. 155, viz. such as employ themselves solely in the duties of preacher, and do not follow any trade or profession except that of a schoolmaster, shall be exempted fiam sendng on juries; and such persons must ]iroduce a certificate of some justice of the peace, of their having taken the oaths, &c., requii-ed by law. (6 Geo. 4. c. 50. s. 2. See Kenward v. Knowles, Willes, 463.) And every such person being a preacher or teacher of any conyre- gation, and scruphng (19 Geo. 3. c. 44) to subscribe bis assent to any of the articles aforesaid, who makes and subscribes the declara- tion of Protestant behef, is entitled to the same exemptions from civil service, and from serviny in the militia : and the justices at the gene- ral sessions for the county or place where he lives, are required to administer the said last-mentioned declaration, to such pei-son ofiei-ing to make and subscribe the same, and thereof to keep a register ; and for the entiy thereof, with the oaths and other declai'ations aforesaid, a fee of sixpei>ce only is due ; and an additional fee of sixpence for any certificate of the same. Meaniny of Holy Orders, dfc] The exact meaning of the phrases, ' holy orders,' ' pretended holy orders' and * pretendiny to holy orders,' has not been determined ; but it has been held not essential to the pretending to holy orders, within the eighth section of the Toleration Act, that a person should be the teacher or preacher of a separate congi'egation ; and a mandamus w\\ i-sue to the justices at quarter sessions, to administer the qualification ; yet such qualifying will not confer on the individual, who is not a preacher or teacher to a sepai-ate congi'egation, the immimities enjoyed under the eleventh section of the Toleration Act, but merely exempts him from certain penalties otherwise incun-ed by the exercise of the clerical function. (R. V, Justices of Gloucestershire, 15 East, 576.) The sessions cannot require, that a person applying to qualify as a Sect. IV.] IMMUNITIES OF DISSENTINti MINISTERS. 153 teacher of a separate congregation, shall produce a certificate from t«o of his congregation, authenticating such his appointment. (R. v. Justices of Suflblk, 15 East, 590.) Exemption from serving or providing a substitute in the militia is also granted to every teacher of any separate congregation, who has been licensed ttvelve months, at the least, before the yearly meeting of the lieutenantcy of the county in October, under the Militia Act. (43 Geo. 3. c. 10.) But there are no exemptions from ballot or ser- vice under the Local Militia or Training acts, in favour of dissenting ministers carrying on trade. Dissent i/K/ Ministers not in Trade.] The 52 Geo. 3. c. 155. s. 9, enacts, that every person who teaches or preaches in any congregation or assembly for religious worshiji, whose place of worship is duly certified according to law, and who employs himself solely in the duties of a teacher or preacher, and follows no trade or other employment for his livelihood, except that of a schoolmaster, and who produces a certificate of some justice of the peace of his having taken the oaths to government, &c., shall he exempt from the civil services and offices specified in the Toleration Act, and from serving in the militia or local militia of any place in any jiart of the United Kingdom. The production of a false certificate, for the puii^ose of claiming exemp- tion from civil or military duties, subjects the party to a penalty for each oiTence of £50, recoverable by any person who will sue for the same. But such actions are made local, and must be brought within three months after the offence. Minster's Right to his Office.'] The principle of public jiolicy does not extend to ])revent a court of equity from sanctioning the appointment of a minister to a dissenting congregation for a limited period ; provided such is the usage of the congregation, or the pro- vision of the original trust. (Attorney-General v. Pearson and others, 3 Meriv. 402 ; R. v. Jotham, 3 T. R. 577.) Where a minister has been duly elected, or claims title to an en- dowed pastorshi]), or a function with emoluments, which is resisted without a colour of light, and there is no specific legal remedy, the Com-t of King's Bench will grant a mandamus to the trustees to ad- mit, even though the other party is in possession : the election and appointment constitute a legal right, which a mandamus to admit enables him to try, and the use of the meeting-house and pulpit is in- cident to the clerical function. (R. v. Barker, 3 Buit. 1265, 1043. 1 Bla.Rep. 300,352.) Where a power of removal is not given to anv particular part of a body, it rests with the society at large. (Rex v. Favershaui, 8 T. R. 35().) 154 DISSENTERS. [Chap, VI. But in a case of endowment, where the minister has a certain inte- rest in his olfice not depending on the vohmtary contributions of the congregation, it is doubtful how far usage would justify a removal without reasonable cause. And a mandamus to restore an endowed minister has been granted in order to enable him to try their right of dispossessmg him. (R. v. Jotham, 3 T. R. 577.) Power of Trustees by Deed.] But v,here a trust-deed invests certain individuals with authority, quasi visitors, to dismiss or suspend a regularly appointed minister, the courts cannot interfere to prevent -it ; if, however, it is provided, that the same shall be done according to certain rules, constitutions, and regulations specified in the deed, before the courts will lend their assistance to enforce the sentence, they will be satisfied that those rules, &c., have been complied with. Devise to Dissenting Ministers.] A de\dse in trust, " for those persons that are commonly called dissenting ministers," naming some of them, is good as it regards the ministers, notwithstanding the statutes of mortmain. (Lloyd v. Spillet, 3 P. W. 346.) So a legacy to Baptists generally, (Attorney-General v. Cock, 2 Ves. 275 ;) to Presbyterians, (Attorney-General v. Wansay, 15 Ves. 234 ;) and to Quakers, (Highmore, 146,) are respectively good. So a bequest in augmentation of a fund for poor dissenting ministers living " in any county in England," is held good, notwithstanrhng its uncertainty ; and it being proved that there were three distinct societies of dissenters in England, the bequest was ordered to be dis- tributed among the poor of each society. (Waller v. Childs, Amb. 524.) A bequest in trust for " nonconforming ministers and dis. enters," is good. So an annuity to the minister of a Baptist meeting-house and his successors, has been held to be good. (Attorney-General v. Cock, 2 Ves. 273.) But a com't of equity regards with a jealous eye bequests for the encouragement of itinerant preachers. (Attorney-General v. Step- ney, 10 Ves. 22.) And a bequest of money to be laid out in land, for the benefit of two preachers at a chapel, although it is to be other- wise invested till an ehgible purchase can be made, is void under the statute of mortmain. Foreign Protestant mmisters, domiciled in this country, it seems, are entitled, on the same terms, to the privileges of dissenting minis- ters. (R. V. Hube, Peake, 132.) Dissenting Schoolmasters.] Every department of tuition being prohibited to Protestant Dissenters, by various statutes and canons. Sect, v.] DISSENTING PLACES OF WORSHIP. 155 it is only on condition of qualifying specially, in a similar manner to preachers, that schoolmasters can legally exercise these professions. (See 19 Geo. 3. c. 44. s. 2.) But the better feeling and enlightened liberality of the age affords them a still more extended protection and impunity ; from penal enactments, which may be said to have grown obsolete. But persons so qualifying are not enabled to obtain or hold the mastership of any college or school of royal foundation, or of any other endowed college or school for the education of youth, unless the same has been founded since the 1st year of the reign of William and Mary, for the immediate use and benefit of Protestant Dissenters. (19 Geo. 3. c. 44. s. 3.) Persons employed in the several departments of tuition, wlio have neglected or refused to qualify specially for this purpose, are exposed to the penalties and disabilities enumerated in the several statutes upon the subject; but as, for the reasons above suggested, they are not likely to be enforced, it is unnecessary to state them in detail. SECTION V. — DISSENTING PLACES OF WORSHIP. Registering Meeting-Houses. '\ No congregation or assembly for the religious worship of Protestants, at which are present more than twenty persons, in addition to the family and servants of the person on whose premises they assemble, or of Quakers, not more than four persons besides the family, &c., is pennitted, if not duly certified under some acts or acts prior to the 52 Geo. 3. c. 155, (under which prior act or acts the Quakers must still certify,) unless and until the place of meeting shall have been, or shall be, certified to the bishop of the diocese, to the archdeacon of the archdeaconry, or to the justices of the peace, at the general or quarter sessions of the peace for the county, division, &c., in which such meeting shall be held ; of which places of woi'ship so certified respectively, reciprocal retui'ns shall be made once in the year, between the bishop's or archdeacon's court, and the quarter sessions. And all such places shall be registered in the bishop's or archdeacon's court respectively, and recorded at the general quaiter sessions, by the registrar or clerk of the peace, who is required to register and record the same ; and the bishop, or regis- trar, or clerk of the peace, to whom any such place of meeting is certified under this act, must give a certificate thereof, to any person demanding the same, for which no greater fee than 2s. Qd. shall be taken. Any Protestant Dissenter may certify a meeting-house under these 156 DISSENTERS, [Chap. VI- acts. (Green ami otJiers v. Pope, 1 Ld. Raymond, 125.) The duty of registering is jjurely ministerial, and a mandamus issues against the pei'son on whom it devolves, to compel perforaiance. (R. v. Jus- tices of Derbyshii;?, 1 Bla. Rep. 606; 4 Bun-. 1991.) The penalties incun-ed by pennitting unlawful assemblies to be held, and of officiating at them, either with or without permission of the occtipier of the premises, have been already noticed. {Ante, 149.) And also that no assembly for religious worship, requiring a certi- ficate, may be held in any place, with the door locked, bolted, or baiTcd, or othenvise fastened, so as to prevent any persons entering dimng the time of such meeting. (52 Geo. 3. c. 155. s. 11.) Disturbing a Lawful Assembly.'] The 52 Geo. 3. c. 155. ss. 12. 15. 17., enacts, that any person wilfully and malicioush' or contemp- tuously disquietmg or disturbing any meetmg, assembly, or congre- gation of persons authorized b}- this act, or any fonner act or acts of parliament, or in any way disturbing or molesting any preacher or person officiating at such meeting, or any person or persons there assembled, on proof thereof before any justice of the peace, by two or more crechble witnesses, must find two sureties, to be bound by recog- nizances in the penal sum of £50 to answer for such ofience ; and in default of sureties, is to be committed to prison till the next gene- ral or quarter sessions; and on conviction there, he incurs a penalty of £40; and this jienalty may be levied by distress; one moiety to be paid to the informer, and the other to the poor of the parish where the offence was committed ; and in case of no sufficient fhstress, the justices may commit the offender to prison for any period not exceed- ing three months; but no penalty can be recovered under this act unless the offence is prosecuted within six months after its commis- sion ; and no person who suffers imprisonment for nonpaxnnent of the jienalty, is afterwards liable to its payment. This enactment, however, does not extend to Quakers, (s. 14,) nor to assemblies for religious worship held by them ; they ai'e neverthe- less within the protection of the 1 W. & M. c. 18. s. 18, by which any person who wilfully, maliciously , or contemptuously comes into any congi-egation permitted by the Toleration Act, and disquiets or disturbs the same, or misuses any preacher or teacher, incm's, on in- fonnation and conviction thereof, in a manner similar to that above- mentioned, a penalty of £20 to the use of the crown. (See cases upon these enactments, R. v. Hube, 5 T. R. 542 ; Rex v. Wadley, 4 M. & S. 508, 5 East, 294 ; R. v. Wroughton and others, 3 Burr. 1683.) The protection of these statutes extends to lAithcran and otlur Sect, v.] DISSENTING PLACES OF WORSIIII'. 157 Protestant congregations, coniposetl principally oi foreigners perform- ing service in a foreign langnage. (R. v. Hiibc and others, Peake's Rep. 180.) Rates, S^c, of Places of Worship.] The ground on which a place of worship, or building for a charitable pmiiose, is erected, is not necessarily thereby exonerated from a land tax, to which it was pre- viously liable : but where held on lease, and no projit is derived from it by any person, beyond the amount of rent reserved, the rent fur- nishes the measure of the assessment; and if no rent is reserved, or the inheritance is in the trustees, and no profit whatever is derived from it by any person, it is not liable to the tax at all. (46 Geo. 3. c. 133; 49 Geo. 3. c. 67.) But if a profit is made of a chapel, or other building for charitable purposes, as by letting pews, or in any other way ; whoever makes that profit may be considered a beneficial occupier, and is rateable to the poor in respect of the thing occupied. And if pews are let by trustees, in whom the property vests, they are deemed to make a pro- fit of the rent, and are rateable for it, even though the expenditure of the trust exceeds its income ; the subsequent disposition of the rent being considered altogether a matter of private arrangement. (R. v. Agar, 14 East, 256; Jones v. Mansell, Doug. 302, 1 Nol. P. L. 182.) But chapels used solely for religious purposes, and from which no pecuniary advantage is derived by any person, or by mere pew-holders, (R. v. St. Bartholomew's, 4 Burr. 2435; R. v. St. Luke's, 2 Burr. 1053,) founders of a charity who derive no jjrofit from it, (R. v. Agar, supra; R. v. Waldo, Cald. 358,) and poor inmates who have no controvd over the premises they inhabit, are not rateable. (R. v. Woodward, 5 T. R. 79; Tracey v. Talbot, Salk. 531.) Windoiv and House Tax.] Windows in any r ;om of a dwelling- house, licensed according to law as a chapel for divine worship, and for no other purpose ; and hospitals, charity schools, and houses for the reception and relief of poor persons, except the apartments therein which are occupied by the officers or servants of the charity, and which are to be severally assessed as entire dwelling houses, are ex- empted from the window tax ; but they must be stated in the certificate of assessment; and on proof of the several grounds of exemption, may be discharged by the commisssioners. (43 Geo. 3. c. 161. Sch. (A). Chaiity schools, hospitals, houses for the reception ox relief of poor persons, are exempted from the inhabited house duty. (Tbid. 158 DISSENTERS. [Chap. VI. Sch. (B.) Chapels used exchisively for divme worship, do not come within this desciiption. Parochial Taxes-I The watch, scavenger, lamp, sewer, and other parochial or ward taxes, dejiend for their applicahihty to chapels and charitable institutions, on the several statutes and local provisions, under the authority of which they are respectively levied: (see 7 Ann, c. 9 ; 10 ; 10 Geo. 2. c. 22, &c. :) but if the yare taxes on the occupier, beneficial occupation, as in the instances before mentioned, will be the criterion of then- rateability. Grants and Trusts to Dissenters.'\ A gi'ant of lands, &c., or money to be laid out in the purchase of lands, &c., for the jjurjiose of supporting a chapel for pubUc worship among Protestant Dissenters, is for a charitable use within the meaning of the statute of mortmain. (9 Geo. 2. c. 36. s. 1.) Hence, the owner of land having, at his own expense, built a chapel, which was used for pubhc worship, and the congregation hav- ing subscribed a sum of money for the purpose of enlarging and im- proving it ; he, in consideration that the money so subscribed should be expended for that pui-pose, demised the premises by lease for twenty-three years, resernng a pepper-corn rent duiing his Ufe, and £10 per annum after his death. A declaration of trust in favour of the congregation assembling there, was also made by some of the lessees. It was held, that this conveyance was for the benefit of a charitable use, and therefore void ; that neither the sum agreed to be expended on the premises, nor the rent reserved at the death of the lessor, was a full consideration for the lease, within the meaning of the second section of the statute ; and that a declaration of trust exe- cuted by some of the lessees, is evidence against all, of the purpose for which the lease was granted. (Doe dem Wellard and others v. Hawthorn, 2 Barn. & Aid. 96.) Devises and Bequests.^ So a legacy to be applied towards the dis- charge of a mortgage on a dissenting chapel ; and a betjuesi to enable tnistees to complete a contract for the purchase of land; (Corbyn v. French, 4 Yes. 418;) a conveyance of a meeting-house and bmial- gi'ouud, in trust to permit a society of Quakers, who then held them, to continue to use them so long as they paid certain rent, and kept the same in repair ; and also to permit the society to take part of a fann to build a new meeting-house, if necessary ; (Doe dem. Thom- son V. Pitcher, 2 Marsh. 61, 3 Maul. & Sel. 407, 6 Taunt. 359;) and a trust by will, for biulding or purchasing a chapel, where it may ajjpear to the executors to be most wanted ; if any overplus, to go to Sect, v.] DISSENTING PLACES OF WORSHIP. 159 the support of a faithful gospel minister, not exceeding £20 a year ; and if any further surplus, for charitable uses as the executors should think proper ; jiU the!-e several bequests were held void, and in the last case the whole trust was avoided; the real estate went to the heir at law, and the personal to the next of kin. (Chapman v. Brown, 6 Ves. 404; 2 Brown, 428; 3 Ves. 141.) But a devise to trustees, of a reversion in land to be applied by them and their successors, and the officiating ministers for the time being, of a Methodist congregation, as they shall from time to time think Jit to apply the same, is not a devise to charitable uses within the statute ; the trustees, therefore, are entitled to recover at law, however the court of Chancery may afterwards direct the application of the trust fund. (Doe dem. Toone v. Copestake, 6 East. 328.) Nor is a legacy for the increase and improvement of Christian knowledge, a legacy within the statute ; but the comt of Chancery will see to its apphcation. (Attorney General v. Stepney, 10 Ves. 22.) And although a legacy given to Protestants Dissenters, to pay off a mortgage on their chapel, is void, yet if it be previously paid off hi the testator's Ufttime, by other means, it seems the money may be employed in reiDauing the chapel, but it can be applied to no other purpose. (Corbyn v. French, 4 Ves. 418.) Trustees and Congregations.'\ Where, by a trust for religious wor- ship, it appears to have been the founder's intention (although not expressed) that a particular doctrine should be preached, it is not in the power of the trustees, or of the congregation, to alter the design of the institution. (Attorney General v. Pearson and others, 3 Meriv. 400.) So, where a fund is raised for the ]3urchase of property to be devoted to religious worship, the property so purchased must be applied to those pm-poses, according to the principles of the individuals who so acquired that property ; provided they are not contrary to law : and those who have contributed towards such fund, have a continued right to exercise a power consistent with the original contract, and the principles of toleration. (Attorney General v. Fletcher and others, M. S.) Nor can any agreement among the donees ol" a charity, alter or du'ect it to other uses than those expressly limited by the donor. (Man v. Ballett, I Vern. 42.) A trust for the benefit of a charity is broken by pulling down a chapel, and converting the burial-ground to other puiiioses ; and on petition, under the 52 Geo. 3. c. 101. s. 12, the court of Chancery will direct a conveyance to new trustees; (Ex-parte Greenhouse, I 160 DISSENTERS. [Chap. VI. Madd. 92;) yet the coiu't will, in its discretion, permit a dejiarture from the tenns of the trust, when its ohject is suhstantially iJresened ; as to huild a new chapel, where the trust was for repairing. (Attor- ney-General V. Foyster and others, 1 Anst. 116.) It has heen decided, that a provision in case of the desertion and removal of any of the trustees, that the remainmg trustees may, within a lunited time, elect others in the room of those so deserting, does not extend to disable a trustee having so deserted, from acting again, where no successor has, in the mean time, been appointed ; nor to the case of a trustee, who retired on account of the trust hanng been converted, against his ap- probation, to puiposes differing from the intent of the founder. (Attorney-General v. Pearson, 3 Meriv. 412.) Chancery Jurisdiction.'] The court, on regular ajiplication, will give to dissenting bodies the full benefit of the laws of the country, applicable to their discipline and conduct, so far as the same are not contrary to law. (Attorney-General v. Peai'son and others, ib. 397.) It will also interjiose to prevent an improper person from receiving pew rents, and appoint a receiver duiing the suit; but it vdll not, it seems, mterfere with a voluntarj' subscription. (Attorney-General V. Fowler, 15 Ves. 88 ; Ex-parte Pearson 6 Price, 213.) The ques- tion of religious belief is considered by the court as iiTelevant, except when called on to execute a ti'ust : but if the parties applying make out that a particular mode of belief was intended by the founder of the trust, still they must show that the meeting-house was for such pui-poses as the law can sanction, in order to entitle themselves to the assistance of the court. (3 Meriv. 415.) Mode of const ruinn Trusts.] If land or money be properly given for maintaining " the worship of God," without more, the court will execute the trust in favoiu" of the estabhshed religion. If it is clearly expressed that the pui-pose is that of maintaining dissenting doctrines, so long as they are not contrary to law, the court will execute tlie tiaist accordingl)^ ; and where the intention clearly appears aliunde, though not expressed in the instrument creating the trust, the court will also cany the manifest design of the founder into execution, so fai" as it is consistent with law\ In these and similar cases, the court w ill probably refer it to the Master, to inquire the facts of the case : as for instance, in v^ hom the legal estate is vested ; the particular object (with respect to v,or.ship and doctrine) for which the trust was created ; the usage of Protes- tant Dissenters as to the election of ministers, and the duration of their office; and whether any agi-ecment or understanduig relati\e thereto subsists between the parties. (3 Moiiv. 420.) Sect, v.] DISSENTING PLACES OF WORSHIP. 161 111 cases of surplus revenue, the court will apply it according to the doctrine of Cy pres : as on a hequest made before the stat. 9 Geo. 2. c. 36, to the congregation of Presbyterians to which the testator be- longed, for placmg out as appi-entices two poor boys of such as were members of the congregation, and living in the parish of St. Martin in New Sarum, the fund becoming more than sufficient, the court applied the surplus, first, to place out sons of members within that parish ; — secondly, sons of members in other parishes ; — thmlly, daughters of members in like manner ; — and lastly, sons of Presby- terians generally, previous to building a school and other purposes ; and sons of persons of the established religion within the parish were, on a proijosal, rejected. (Attorney-General v. Wansey, 15 Ves. 231.) Burning or destroy in// Meeting Hotises.] The former acts on this subject were repealed, with a multitude of other statutes relating to criminal offences, by the 7 & 8 G. 4. c. 27, for the pui-pose of con- solidating their scattered provisions in new enactments. By the 7 & 8 G. 4. c. 30. s. 2, it is provided, that if any person shall unlawfully and maliciously set fire to any chapel for the rehgious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, eveiy such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon. And the 8th section enacts the same punishment against persons riotouslj^ assembled, demolishing, or beginning to demolish, any such place of public worship. And by the 7 & 8 G. 4. c. 31. s. 2, it is enacted, that if any such place of worship shall be feloniously demolished, pulled down or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together ; in every such case, the inha- bitants of the hundred, or other district in the nature of a hundred, by whatever name it shall be denominated, in which any such offence shall be committed, shall be liable to yield full compensation to the person or persons damnified by the offence ; not only for the injury to the building, but also for any damage which may at the same time be done to any fixture, furniture, or goods whatever, in any such chajDel. (See Pritchet v. Waldron, 5 T. R. 14 ; 2 Saimd. 377 ; Beatson v. Rushforth, 7 Taunt. 45; 2 Marsh. 362.) The act requires, that the party injured having knowledge of the circumstances of the offence, or the servants who had the care of the property, shall, within seven days after the commission of the offence, state on oath before a neighbouring justice, the names of the offenders, if known; and submit to examination by such justice on the subject, and become boLind to prosecute the offenders, when ai)prehended. M 162 iiiGFnVAYS. [Chap. VII. Aud no action can be bronght, unless it be commenced within three calendar months after the offence committed, (s. 3.) Process must be served on the high constable, who may, with the approbation of two justices, either defend the same or suffer judgment by default ; and he must continue to act in the proceedings, althougli his office may expire before they are concluded, (s. 4.) CHAPTER VII.— HIGHWAYS. Section I. The several kinds of Highways. II. Repair of Tliffhtcays. III. Indictments and Pleadings. SECTION I. — THE SEVERAL KINDS OF HIGHWAYS. Three kinds of Ways.'] There are three kmds of ways : first, a 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 prune way ; and thii'dly, via or aditus, a road for carriages, horses, and men, including 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. 6Q. a.) In legal acceptation, a way comprehends no more than the mere surface uj^on which it passes ; and includes neither the fences on either side (Rex v. Commissioners of Landillo, 2 T. R. 232) nor the minerals or earth under it. (Rol. Abr. 392.) A common street is a public king's highway; (Woodyer v. Hadden, 5 Taunt. 137;) tliough communis strata, and alta regia via, were fonnerly attempted to be distmguished from each other. (Rex v. Hammond, 1 Stra. 44.) A highway may be created by act of Parliament. (Sutclifle v. Green- wood, 8 Price, 535.) Any of these roads, which are common to all his Majesty's subjects, though leading merely from a hamlet, may be properly termed high or common ways. (Rex v. Harrow, 4 Burr. 2090.) Thoroughfare or not.] It has not yet been detennined whe- ther there can be a pubhc highway which is not a thoroughfare ; but in two cases where this question was incidentaUy mentioned, several of the judges seemed inclined to the negative. (See Wood v. Sect. I.] THE SEVERAL KINDS OF HIGHWAYS. 163 Veal, 5 Barn. & Aid. 454 ; Woodyci' v. Hadclen, 5 Taunt. 195.) A passage from one part to another ot" a street, made originally for pri- vate convenience, may become a public highway, notwithstanding it is circuitous. (Rex v. Lloyd, 1 Camp. 260 ;) or is used by the public occasionally only ; and though it does not terminate in a town, or in any other public road. (Rex v. Wandsworth, 1 Barn. & Aid. 63.) On the contrary, it is not necessarily a highway, although it does lead from one market town to another ; or although it might be ad- vantageously used by the public, or is used by them under certain restrictions. (Rugby Charity v. Menyweather, 1 1 East, 376. — See " Partial Dedication," post 164.) Waij by Dedication. '\ Where a man builds a street on his own land, and it is used by the public as a liighway, and no bar or other impediment is erected thereon by him, a dedication to the public will be presumed. (Lade v. Sheppard, 2 Stra. 1004 ; Rex v. Lloyd, I Camp. 260.) But if a bar, rail, or gate, however slight, be kept across it, although the public be 2iermitted in general to pass, no dedication can be presumed, (Woodyer v. Hadden, 5 Taunt. 135;) and if such bar, &e. erected at first, be afterwards knocked down and not replaced, still the ])resumption is rebutted, for a dedication must be made ojienly, and with a deliberate purpose, (Roberts v. Karr, 1 Camp. 262. n.) The circumstance of the street being a ctd de sac, favours the presumj^tion that no dedication was intended, even should it be determined that there can be a highway which is not a thorough- fare. (See Wood v. Veal, & Woodyer v. Hadden, uhi supra.) Where a street, which had been forming for six years, leading from an old public street to a new road across fields, over which fields the way had been used for five or six years, was unfinished ; one half only being lighted, the other half being neither lighted nor paved ; but the inhabitants had jiaid the highway and paving rates ; — it was held that this was sufficient evidence to go to a jury of a dedication of the street tx) the pubhc. (Jarvis v. Dean, 11 Moore 354, 3 Bing. 447.) Dedication, by whom made.~\ The act of dedication must be by the owner of an estate of inheritance, in the land ; and a leaseholder, however long his term, cannot devote any portion of the land to a highway, so as to bind the reversioner.. (Wood v. Veal, 5 Barn. & Aid. 454.) In this last mentioned case, it a])peai*ed that the road in question was included in a lease of a yard and premises, from 1719 to 1818, and that the road had been used as far back as living me- mory could go, but there was no evidence of consent by the owner of the inheritance, before or since the lease ; and it was held, that there was no dedication, although during the lease, the loc^(s in quo, which M 2 164 HIGHWAYS. [Chap. VII. was a cul de xac, was paved and lighted hy the parish ; and was de- scribed in II G. 3, for paving, &;c. as " Little Abingdon-street, West- minster ;" and the owner of the inheritance had lived in the neigh- bourhood for the last twenty-four years. Lord EUenboroiigh however, held, that where the way had been used for a great number of years over a close, in the hands of a succession of tenants, one of whom frequently complained thereof to the landlord's stewai'd, but no action was brought against any trespasser, that a dedication must be pre- sumed ; although the landlord was never in the actual possession him- self, nor proved to have been near the spot. (Rex v. BaiT, 4 Camp. 16.) WTiere the owner of the inheritance is aware of the use made by the public, and does not oppose it, how long a time shall be sufficient to bind him uTevocably, seems unsettled. In the Rugby Charity case. Lord Kenyon speaks of six years ; but Mansfield, C. J., in Woodyer v. Hadden, asks, if six, why not one ? why not half a year ? In Woodyer V. Hadden (5 Taunt. 135,) Gibbs, J. observes, that " in all the cases where it has been held, that there has been a dedication of a way to the public, there has been a considerable space of time of user as a material ingredient ; in one of the most leading cases, that of the Foundling Hospital, (11 East, 375, n.) Lord Kenyon treats that as a very material ingredient." Partial Dedication.'] It has not been yet expressly decided, whe- ther there may be a partial dedication of a highway to the pubhc. Two of the learned judges of the King's Bench, (INIr. .Justice Bayley, and JNIr. Justice Holroyd,) said they saw no objection m principle to such a dedication ; and were disposed to think it might be made, though Mr. .Justice Littledale entertained some doubt on the subject. (See Marquis of Staflbrd v. Coyney, 7 Barn. & Cres. 260.) How- ever, the court decided in that case, where a landowner suffered the pubhc to use, for several years, a road through his estate for all pur- ])oses except that of canying coals, that this was either a limited dedication, or no dedication at all, but only a license revocable ; and that a pe.son carrying coals along the road, after notice not to do so, was a trespasser; and supposing it to amount to a partial dedication, whether legal or not, it was further observed, that at all events, the right given cannot be more extensive than the gift imports. Repair of dedicated Road.] It does not follow, that because there is a dedication of the road by the owner of the soil, and the public use it, that the parish is therefore bound to repair. There ought to be evidence that the parish acquiesced in that dedication, in addition to the ])ubUc user, to make it such a public road as the parish is bound to repair. (Rex v. St. Benedict, Cambridge, 4 Barn. & Aid. 447.) Sect. II.] REPAIRING HIGHWAYS. 1G5 The dedicating a way to the public, communicates no more than the right of passage ; the original owner retains liis interest in the soil, with all trees that grow upon it, and mines which may be opened be- neath it. (2 Inst. 705.) Turnpike Roads.] The greatest portion of the highways through- out the kingdom, are what are technically called Turnpike Roads, from their having been either originally formed, or subsequently regulated by acts of ParHament, which have provided the means of keeping them in repair, by the tolls which are taken at the turnpikes erected upon them, for the purpose. Parishes, however, are not exonerated from liability to repair such roads, where they have existed immemorially, though it is not often found necessary to resort to them for such repairs ; as the funds vested in the ti'ustees are generally sufficient to meet all the necessary expences of this descrii^tion. And it is provided by the general Turnpike acts, that materials may be procured for such roads, in like manner as the Highway acts have directed, with regard to the highways more imme- diately under the care and management of parishes, by their surveyors. The same acts also provide, that the statute duty, to which parishioners are liable, may be ordered to be performed in part upon turnpike roads, or a proportion of the composition paid in lieu thereof, may be directed to be handed over to the treasurer of such turnpike roads. So that turnpike trusts, and the monies which they raise and expend in keeping these roads in good condition, are in fact established in ease and relief of parishes, and not as an absolute discharge of their liability. (See 3 Geo. 4. c. 126. 7 & 8 Geo. 4. c. 24. 9 Geo. 4. c. 77.) SECTION II. — REPAIRING HIGHWAYS. Parish primarily liable] Although the duty of repairing high- ways is charged by the common law upon the parishes through which they pass, it does not impose the obligation of making new roads, or widening old ones, however necessary, either upon parishes, or upon any person or persons whatever. (Rex v. Devon, 4 Bam. & Cres. 670; 7 Dowl. & Ryl. 147.) These objects are provided for by the General Highway act, the 13 G. 3. c. 78, (which, see post,) or by turnpike, or local acts passed from time to time, as the exigencies and convenience of the public may require. At common law, each parish is liable to repair those portions of a common highway, which lie withiu its own limits. (H. P. C. b. 1. c. 76. s. 5.) And therefore, where a township or particular district of a 166 HiGinvAYS. [Chap. VII. parish, is exempted from the whole, or any part of this burden, by an express act of Parliament, it must necessarily fall on the rest of the parish. (Rex V. Sheffield, 2 T. R. Ill ; 1 Ventr. 90, 183, 189.) Insolvent or negligent Trusts.] This primary obligation upon the parish is so strong and absolute, that if other persons or public bodies be made chargeable by statute, (as commissioners, trustees, &c.) and they become insolvent (1 Lord Ra}Tii. 725,) or neglect to repair when necessary^ (Rex v. St. George, Hanover-square ; 3 Camp. 222 ;) the duty of the j^arishioners revives ; unless they are expressly ex- empted by the statute ; and the parish, after mating the proper repairs, may seek a remedy over against such commissioners or trustees, &c. The same liability falls upon the parish, in the case of neiv highways, (Rex v. Netherthong, 2 Bam. & Aid. 183 ;) though if it be a turnpike road, and the ti'ustees ai'e directed to repair it from time to time, with the money arising from the tolls, this is an auxiliary fund, from which the trustees may be required to bear part of the expence, according to the discretion of the court in which an indict- ment may happen to be preferred against the parish, when the road is out of repair. (13 G. 3. c. 84. s. 33.) And although in every turnpike act, a provision is contained for the repair of the roads out of the money arising by virtue of the act, no case has occurred of an in- dictment against trustees for the non-repair of their roads. And they are not hable by way of indictment ; and the only persons who are so liable, are the parishioners or inhabitants. (R. v. Netherthong, ubi supra.) Nor can the parish be discharged from its liability, by virtue of an agreement with others ; and consequently, a count alleging the defendant's liability upon such an agreement, with the owners of houses alongside the highway, cannot be sustained. (Rex v. Liverpool, 3 East, 86.) TTie tvhole Parish liable.] The duty rests prima facie upon the zvhole parish ; and therefore, if it is actually thrown upon some parti- cular part of it, the precise grounds upon which the liabihty is thus shifted must be shown. (Rex v. Penderryn, 2 T. R. 513.) So if a parish extend into two counties, and one of its roads lying in one county be out of repair, the ivhole parish, and not that part of the parish, or those inhabitants who live in that portion of the jjarish which is in the same county as the road, must be proceeded against. (Rex V. CHfton, 5 T. R. 498.) On the other hand, if the defective way runs through several parishes, and it is intended to comj^el the repair of the whole, a joint proceeding against all such parishes is not sustamable. (6 Wentw. 409, in notes.) Roads on Boundaries.] In many instances the boundary of Sect. II.] REPAIRING HIGHWAYS. 167 j)arishe.s is in tlie middle of a highway, ami therefore, to prevent any difficulty in determining by whom such highways must be kept in repair, the 34 Geo. 3. c. 60, enables two justices to settle and mark the boundaries, and each ])arish must then repair the portion thus allotted to it. But where a road is awarded by commissioners of an inclosure act, to a different parish to that in which it has heretofore been situated, and the same paiish to which it formerly belonged continues, for some time after the award, to repair the road, the pa- rishioners cannot subsequently avail themselves of the award, to relieve them from the liability, without showing that the previous notices re- quired by the act, under which the award was made, were properly given, that the boundaries were about to be ascertained and settled by the commissioners. (Rex v. Haslingfield, 2 Maul. & Sel. 658.) Extra-parochial Hamlets, ^c] Though the public have the security in the policy of the common law for the reparation of the highways, in all cases where the direct obligation is not cast upon others, still ])arishes may be and are relieved, in some instances, from this responsibility with respect, at least, to some of their roads. It seems doubtful whether the inhabitants of an extra-parochial hamlet, (not included in a larger district, the inhabitants of which are bound to repair the whole,) are, in this respect, in the same situation as the inhabitants of a parish ; and liable, as of common right, to repair their own roads. The court did not decide that question ; as the case was determined upon the form of the pleadings. (See Rex v. Kingsmoor, 2 Bam. & Cres. 190, 3 Dowl. & Ryl. 398.) But it is clear, that a hamlet, or other district than a ])arish, may be liable by custom or prescription. (Id. Rex v. Great Broughton, 5 Buit. 2700). Liability by Inclosure.] In ancient times, when roads were fre- quently made through uninclosed lands, and were not formed with that exactness which the exigencies of society now dictate, it was part of the law, that the public, when the road was out of repair, might pass along the land by the side of the road. This right on the part of the public was attended with this consequence, that although the parishioners were bound to the repair of the road, yet if an owner excluded the public from using the adjoining land, he cast upon himself the onus of repairing the road. If the same person was the owner of the land on both sides, and inclosed both sides, he was bound to repair the whole of the road. If he inclosed on one side only, the other being left open, he was bound to repair to the middle of the road, and where there was an ancient inclosure on one side, and the owner of lands inclosed rm the other, he was bound tcj repair the whole. (Rex v. Staughton, 1 Hawk. P. C. c. 76. s. 7.) 168 HIGHWAYS. [Chaji. VII. Hence it followed as a natural consequence, that when a person m- closetl his land from the road, he did not make his fence close to the road, but left an open space at the side of the road, to be used by the public when occasion requu'ed. This appears to be the most natural and satisfactory mode of explaining the frequency of wastes left at the sides of roads; the object being to have a sufficiency of land for passage by the side of a road, when it was out of repair. (Steel v. Prickett, 2 Stark. R. 469.) This conditional right to go upon the adjacent gi'ound is not restrained by the land being cultivated or sown with grain. (1 Roll. Ab. 390. (B.) pi. 1; Absor. v. French, 2 Show. 28; Taylor v, "Whitehead, Doug. 749, 2 Saund. 161. n. (12.) The owner who so incloses his lands, nest adjoining a highway, is bound to make a perfect good way, and shall not be excused by merely making it as good as it was at the time of the inclosnre, if it were then any way defective. (1 Hawk. P. C c. 76. s. 6.) And, if the road be insufficient, any of the king's subjects may justify break- ing domi the inclosure, and passing as before on the adjoining land. (3 Salk. 182.) But the party thus rendered liable, may discharge himself of the burthen by throwing down the inclosure, and restoring the passage to its fonner condition. (1 Hawk. P. C. c. 76. s. 7.) Inclosed under Writ or Statute.'\ But where a highway is altered, changed, or inclosed by a legal course, as by a writ of ad quod damnum, or under the authority of the statute 13 Geo. 3. c. 78. s. 19, the owner of the land is not obliged to repair the new road, unless in the case of a writ of ad quod damnum, the jury impose such a condition upon him. But if a new road be made in substitu- tion of an old one, upon a writ of ad quod damnum, and extend into a parish where no part of the old road existed, then the person who sued out the writ and his heirs ought not only to make it, but to keep that portion in repair which rttns into such other parish. (Ex- parte Vennor, 3 Atk. 772.) So, where a highway is inclosed under the authority of an act of Parliament for dividing and inclosing open common fields, the person whose allotment abuts upon the highway, and who incloses, is not bound to repair it. (Rex v. Flecknow, 1 EuiT. 465.) Repair by Prescription. '\ It is said, that a corjDoration aggregate may be compelled to repah- a road, by force of a general prescription, that it ought and hath used to do it; without showing that it used to do so in respect of the tenure of certain lauds, or for any other con- sideration; because such a corporation in judginent of law never dies; and therefore, if it were ever bound to such a duty, it must needs continue to be always so. Neither is it any plea, that such a cofpo- Sect. III.] INDICTMENTS AND PLEADINGS. 169 ration have always done it out of charity, for what it hath ahvays clone, it shall he presumed to have heen always hound to do. ( 1 Hawk. P. C. h. 1. ch. 76. s. 8.) The inhahitants of a division of a parish may also, hy this means, be liable to repair without any pecu- liar benefit. (2 Saund. 158. d. n. 9.) But a jjarticular person cannot be bound by prescription, by reason that he and all his ancestors have repau-ed the road, if it be not in respect of the tenure of his land, taking of toll, or other profit; for the act of the ancestor cannot charge the heir without profit. ( 13 Co. 33, 2 Saund. 1-58. d. n. 9 ; Rex v. Kemson, 1 Maul. & Sel, 435.) And when the origin of a way can be shown, the prescription to re- pair it is necessarily destroyed. (R. v. Hudson, 2 Stra. 909.) In order to subject any person, thus liable to repair, to a prosecution, the road must be incommodious, not merely from the season, as in winter, or its own narrowness, but from the want of sufficient repa- ration. (R. V. Stretford, 2 Ld. Raym. 1169.) SECTION III. — INDICTMENTS AND PLEADINGS. Modes of Prosecution.l There are three ways by which parishes, districts, or parties, liable to repair highways, may be prosecuted for suffering them to decay, or neglecting to repair them when necessary, viz. by indictment, information, and the presentment of a judge or justice of the peace. The proceeding by indictment is now usually adopted, though an information may be granted in tlie discretion of the Court of King's Bench. (Rex v. Inhabitants of Essex, Sir Thomas Raym. 384.) But the court will not give leave to file an infonnation, except in cases of gi-eat importance, or where the gi-and jmy have been guilty of gross misbehaviour in refusing to find the bill of indictment; because the fine on conviction, upon an information, cannot be applied to the repair of the road, as it always is upon an indictment, (See Chitty, Ci-im. L. 569.) Road Presentment.] The mode of proceeding by presentment is regulated by 13 Geo. 3. c. 78. s. 24. (see post p. 199.) A present- ment made according to the act has exactly the same effect as the finding of a grand jiuy ; and it has been held, that the power given by the sixteenth section of the act to two justices to order any highways to be widened, extends to roads repairable ratione tenurce ; and that, upon disobedience to such order, the party may cither be proceeded against summarily under the statute, or by indictment. 170 HIGHWAYS. [Chap. VII. Rex V. Baline, Cowp. 648.) Bnt neither this proceedhig, nor that of indictment can be instituted before any other tribunal than that in the jurisdiction of which the cause thereof arises ; and no certiorari can be allowed to remove the proceedings before traverse and judgment, unless the duty to repair be denied. As, however, this clause (s. 24) makes no mention of the crown, and as the travei^se can proceed fi'om the other party, it is holden, that the prosecutor, though he merely use the king's name, is not affected by this regulation, but may re- move the proceedings whenever he thinks fit ; and that it was the delay of defendants only against which the statute was directed. (Rex. V. Bodenham, Cowp. 78.) So that every defence which could be relied upon in an indictment, will be equally available when the nuisance is presented hy a judge or justice of the peace. (Rex v. Hornsey, Carth. 212; Rex v. Wilt- shire, 3 BuiT. 1530.) Indictment against a Parish.^ An indictment or presentment against a parish for not repairing must show three things : that the road in question is a highway, that it is situate within the parish, and that it is out of repair. With respect to the description of the road, though it is often stated in indictments or presentments, that from time ivhereof the viemory of man is not to the contrary, or from time immemorial, there was, and is, a common and ancient king's highway, yet it has been adjudged sufficient to state compendiously, both in indictments and ui pleas, justif^'ing under a right of way, that it is a highway, without showing hoioi t became so, or that it has been so from time immemorial, (Aspindall v. Brown, 3 T. R. 265, 2 Saund. 185. n. 4.) It has also been held, that if the nuisance be laid to all the king's subjects, it is necessarily implied, that the way wherein it is, is a common way for public benefit. (Thrower's case, 1 Vent. 208, Say, 168.) Averment of Kind of Way-I An avennent, that the locus was a common and public highway for, &c., " to pass along at pleasure, paying a certain toll," is not inconsistent or contradictory, 2)ailicu- larly if it is not said to be immemorial ; for it may be a highway created by act of Parliament, (Sudcliffe v. Greenwood, 8 Price. 535.) It has been said, that it is not requisite to stale whether it is for the use of carriages, horses, or foot passengers ; for, by Lord Hardwicke, " the length and breadth of the way, and from whence and whither, are necessary to be ascertained in these indictments; but I do not remember any authority that holds it necessary to say, that it is a highway for this or that particular carnage." (Rex v. Hatfield, Rep. temp. Hardw. 315.) However, as so general a description would be Sect. III.] INDICTMENTS AND PLEADINGS. 171 improper, if the road be not a highway, for all purposes ; as, for in- stance, if it he a foot way only, it is certainly advisable to insert the more peculiar description. (Allen v. Ormond, 8 East, 4.) Indefinite Averments.] If the public have only a limited right to use the way, subject to its being occasionally shut up at the will of the owner of the soil, it must be described accordingly, and the aver- ment, that it is used by all the king's subjects, " at theu" free will and pleasure," would be a fatal variance. (Rex v. Marquis of Buckingham, 4 Camp. 189.) If the description be too indefinite in another respect, (as, " a cer- tain highway leading from Hammersmith towards and unto Uxbridge,") being equally applicable to several highways, the objection cannot be taken advantage of, unless it is specially pleaded, if the description be true in fact. (Rex v. Hammersmith, 1 Stark. R. 357.) Averment of Termini.] It does not seem necessary to state that the highway leads from one place to another, for the highways have no other bounds than the sea ; therefore, if the terminus a quo, and the terminus ad quem are omitted, the indictment, or plea, &.c., is, nevertheless, good. (Halsey's case. Latch. 183, Palm. 389; Not- tingham's case, 2 Roll. Rep. 412, 10 Mod. 382 ; Rouse v. Barden, 1 H. Bla. 351.) In the King v. Haddock, (Andr. 145,) Lee, C. J.> said, that the objection, " that the River T., where the nuisance was committed, being a highway, the terminus a quo and the terminus ad quem ought to have been set out, has been given up, and not without reason ; for it was overruled in the case of the King v. Hammond, (1 Stra. 44, 10 Mod. 382,) which was an indictment for a nuisance in a street \ and it was objected, that there were rio ternvmi stated ; and 1 Roll. Rep. was cited in support of the objection ; but the court held that it was not necessary, because highways have no bounds ; and Parker, C. J., cited the King v. Thompson, (10 W. 3,) where it was so detennined. And though Mr. Serjeant Hawkins says, ( 1 Hawk. P. C. c. 76. s. 86,) that it is safest to show both the place from which, and also the place to which, the way supposed to be out of repair doth lead ; yet, he says, that exceptions, for want of such certainty, have sometimes been disallowed ; and probably he was not aware, at the moment, of the before-mentioned cases. Averment of Locality.] The highway must be alleged to lie in the parish indicted; and, if it be not so alleged, the indictment or presentment is erroneous, and judgment will be reversed. (Rex v. Hartford, Cowp. Ill, 2 Saund. 158, n. 5.) And therefore, as the words from and tinto are exclusive, if the allegation be, that the road leads from or to the parish, though the part out of repair is charged as situate within it, this a\'ermcnt will not aid the defect ; \7'2 HIGHWAYS. [Chap. VII. (Rex V. Gainliiigay, 3 T. R. 513.) But in a recent case Lord Ten- terden said, " My mind is not satisfied with the decision in Rex v. Ganihngav, that the words from and to are necessarily exclusive :" and as the indictment alleged that the defendants removed a culvert in the parish, although it went on to say, in a highway there, hadiiuj from the parish, to another place, it was held, that it sufficiently ap- peared that the culvert was in the parish. (Rex v. Knight, 7 Bani. & Cres. 413.) So a material variance from the description will be fatal; thus an avennent, that the highway leads from A to C, and thence to D, will not he satisfied by evidence of a road leading from A towards C ; hut turning off to B before it reached C, by a cpiarter of a mile. (Rex v. Great Caulfield, 6 Esp. 136.) But an indictment describing the way as leading from a hamlet in the parish indicted, is good ; because the road may well pass through other pai'ts of the same district. (Rex V. Han-ow, 4 Burr. 2090.) If a parish lie partly in one county and partly in another, and a highway lying in one part is out of repair, an indictment stating that the inhabitants of that part of the parish ought to repair", is bad ; for it must be against the whole parish. (Rex v. Clifton, 5 T. R. 498, oveiTuling Rex v. Weston, under Penyard, 4 Burr. 2507.) Averment of out of Repair.'\ The indictment, &c., must also ex- pressly aver that the ,way is out of repair ; an allegation that it is naiTow and muddy, is insufficient ; because there is no obligation at common law to ividen a way that is naiTow ; and a road may be made muddy, though in good repair. (Reg. v. Stretford, 2 Ld. Ra^on. 1 169.) Averment of Length and Breadth-I It is said to be necessaiy to allege to what part of the highway the nuisance complained of ex- tends, as by showing how many feet in length, and how many feet in breadth it contains. The reason assigned is, that if it be not, the defendant will not know the certainty of the charge against which he is to make his defence, nor will the court be able to judge what will be the projjer fine tc assess. (Rex v. Hatfield, Cas. temp. Hardw. 106; Rex v. Roberts, 1 Show. 390.) But as the court does not at present estimate the fine, from the length and breadth of the road, as stated in the indictment, pei-haps the omission of sucli statement would not now be considered a fatal objection. (Say. 98. 167.) It has been held, that an indictment alleging, that a certain part of the king's highway, between A and B, is in a ruinous condition, is not bad, for not setting out the length and breadth of the nuisance; (Rex v. East Lidford, Say. 301, 2 Saund. 158, n. (7). But an indictment against a parish fur not repairing one side of the Sect, in.] INDICTMETNTS AND PLEADINGS. 173 road, (the other side lying in another parish,) ought to state that each parish was Hahle to repair ad medium Jilum v'kb, and not merely that a certain part of the road, in breadth fifteen feet, was out of re- pair. (Rex V. St. Pancras, Peakes, R. 219.) Indictment against a Township, ^c] The inhabitants of a parish Leing liable, as of common right, it is sufficient, as against them, to allege that they ought to repaii*. But if it be sought to charge the inhabitants of part of a parish, as of a township, or other division, or a numlier of persons in any other capacity, or a private individual, with the burden of repair, that being against common right, it must be shown on the face of the indictment, or other pleading, hoiv the lia- bihty arises, whether by custom, prescription, or ratione tenuraj. (R. v. Kingsmoor, 2 Barn. & Cres. 1933, 3 Dowl. & Ryl. 398 ; R. v. Penderryn, 2T. R. 513 ; R. V. Great Broughton, 5 Biur. 2700.) And though it maybe doubtful, whether an extra-parochial hamlet is liable, ^t common law, to repair its own roads, it is necessary to aver, that the inhabit- ants of the hamlet were immemorially bound to repair, and that the hamlet does not fonn part of a larger district, the inhabitants of which aie Ijound to repair. (Rex v. Kingsmoor, ubi supra.) Averment of Custom, ^c] Agreeably to the distinction taken in Keilway, (52. pi. 4,) between an obligation to repair by reason of tenure, and of inhabitancy, it has been holden, that an indictment against a particular part only of a parish, such as a district, town- ship, division, or the like, for not repairing a highway in the parish, stating that the inhabitants of the district from time immemorial ought to repair and amend it, is erroneous ; it should state, that the inhabitants of such district from time whereof, &c., have tised and been accustomed, and of right ought to repair and amend it. For the inhabitants of a particular division of a parish are not bound to repair by common law, but their obligation must arise from cus- tom or prescription ; and therefoi'e, the indictment ought to show the custom, prescription, or reason of their obligation. (Rex v. Brough- ton, 5 Burr. 2700; St. Andrew, tlolborn, Freem. 522, 3 Keb. 301 ; Rexv. Sheffield, 2 T. R. 111.) Where a township, or some other district less than a parish, is sought to be charged, if a prescriptive obHgation to repair all public roads within the township or district be alleged, and it should appear that there is any road within such townshiji or other division, which it is not bound to repair, the variance would be fatal, unless the ex ception be specially alleged. But if the exception be alleged, it is not necessary to allege by ivhom such excepted road ought to be re- paired. (Rex V. Eccleslield, 1 Stark. Rep. 393.) 174 HIGHWAYS. [Chap. VII. Indictment against an Individual. '\ It is said, that it is not safe in an indictment against a person for not repairing a highway, which he ought to have done in respect of the tenure of certain lands, baj'ely to say, that he was bound to repair it ratione tenvrts terra, without adding suce. (1 Hawk. P. C. c. 76. s. 8 & 9.) But the word suJ.) U])on an indiclmcnt against an individual for not r(.'])airu)g a road, 182 HIGHWAYS. [Chap. VII. which he is bound to do ratione teniira',X\\Q defendant must be proved to be the occupier of the lands in respect of which the obhgation arises ; since the law looks to the visible occupier, and not to the owner; (1 Roll. 390. b. 60;) and the prosecutor must in such case also prove the prescription ; or that the former occupiers rejjaired, &c. (See Rex v. Skinner, 5 Esp. Rep. 219 ; 2 Saund. 157, 160. n. 12.) Effect of former Verdict.] An acquittal upon a former indict- ment, for not repairing a highway, is not conclusive evidence, if it be evidence at all, to discharge the defendant ; it concludes nothing as to the general liability, but only shows that the defendant was not liable at the particular time laid in the former indictment. (1 Stark. Ev. 223.) But a conviction in such case is conclusive as to the liability, unless fraud can be shown. (Rex v. St. Pancras, Peake's Rep. 219.) Or want of notice, as where a parish consisting of two districts, bound to repair separately, was convicted, and it appeared that the district in which the indicted road lay, defended without any notice of the in- dictment being given to the other, this was not binding upon the parish : but the court considered it as being substantially the connc- tion of the one district only. (Rex v. To^vnsend, Doug. 421 ; 2 Saund. 159. c. n.) So upon an indictment against a parish, consistmg of several districts, 07ie of which pleaded a custom for the inhabitants of each of the three districts to repair their own roafls, independently of each other, which custom was traversed, the prosecutor having upon the trial proved records of conviction of the parish at large, upon not guilty pleaded, for not repairing roads lying in the particular districts, the defendants were pennitted to adduce evidence that such pleas were pleaded without then* knowledge. (Rex v. Eardisland, 2 Campb. 494.) Upon an indictment for non-repairs of a road ratione tenurce, it was held, that an award, made mider a submission by a fonner tenant of the premises, could neither be received as an adjudication, the tenant having no authority to bind the rights of his landlord, nor as eridence of reputation, having been made post litem motam. (Rex V. Cotton, 3 Camjib. 444.) Witnesses.] The sun'eyor of the parish is a competent witness for the prosecution ; or for the defendants. (13 G. 3. c. 78. s. 69.) An inhabitant of the parish, even the prosecutor himself, (1 Stark. Ev, 357,) is a competent witness for the prosecution, by the 76th section of the act, and 3 G. 4. c. 126. s. 137 ; though Lord Ellenborough, in Rex V. Wandsworth, said, that an inhabitant is not a competent witness for the parish; but had the above section of the Highway act been alluded to, he would probably have been of a different opinion. A witness is competent to prove a road to be a highway, though he has Sect. III.] INDICTMENTS AND PLEADINGS. 183 agreed to grant, at an annual rent, a way across his own land, which cannot he used unless the disputed road be established. (Pollard v. Scott; Peake Rep. 18.) Upon an indictment against the township of P. charging the inhabitants with the liability to repair all roads within it, an inhabitant of the adjohihig townshi]) of N. is competent to prove, that the road which extended through N. was a public high- way. (Rexv. the Inhabitants of Pilling; Stark, on Evid. Appendix to p. 673.) View by the Jury.] It may frequently be requisite that the jury should have a view of the place indicted. This cannot, it seems, be granted by the judges at the assizes, (1 Sess. Cas. 180 ; 2 Barnard. 214 ; 1 Chit. Crim. L. 483;) but may be obtained by removing the proceedings into the King's Bench by certiorari, which writ the court will grant on jn'oper affidavits. J\retv Trial.] Although the trial of a prosecution for not repairing highways, is in general a mere contest respecting a civil liability ; yet, as the proceedings are in fonn criminal, the court, after verdict for the defendant, will not grant a nevy trial. But if the nuisance in question continue, the continuance will form a distinct offence, for which he may be again mchcted. (Rex v. Reynell, 6 East, 315.) And under very special circumstances, the court will suspend the entry of judg- ment upon the first verdict, so as to enable the parties to have the question reconsidered upon another indictment, without the prejudice of the foiiner conviction. (Rex v. Wandsworth, 1 Barn. & Aid. 63.) Judyment.'] As the object of this prosecution is not the punish- ment of the defendant, but the repair of the highway, it is not indis- pensably requisite that he should be m personal attendance at the time judgment is pronounced. And where a district is indicted, this is of course impossible. (1 Salk. 55, 6; Hawkins, b. 2. c. 48. s. 17.) Where an individual has been found guilty, he may obtain a rule to show cause why his personal appearance may not be excused, on his agent's engaging to pay such fine as the court may assess ; and if no sufficient reason to the contrary is shown, the court will make the rule absolute, and give judgment in the defendant's absence. (Id.) Amount of Fine.] The judgment usually is, that the defendants pay a fine, and repair the nuisance, (Bro. Abr. Nuisance, 49 ; Rex V. Stead, 8 T. R. 142.) Bat upon a certificate of a justice of the peace, that the road is in good condition, at the time judgment is about to be pronounced, the court will merely assess a small fine, as 6s, Sd. And if the certificate state that the way has since been diverted by the order of two justices, and that so much thereof as is retained, is in repair, the sentence will also be fur the nominal penalty. (Rex v. 184 HIGHWAYS. [Chap. VII. Incledon, 13 East. 166.) And therefore, to give a false certificate is indictable, as ohstructing the course of justice ; and may be prose- cuted as a conspiracy between tl^e magistrates and the persons who procure their assistance. (Rex v. Mawbey and others, 6T. R. 619.) Where an individual indicted for not repairiag, when bound to do so ratione tenurce, applies to the court to submit to a small fine, on a certificate that the road is put in good repair, which is denied; and afterwards on the trial it appeal's that the repau* has been actually efiected between such request and the trial, the court will refuse to set a nominal fine, unless the costs of the prosecutor subsequent to the former application are paid. (Rex v. Wingfield, 1 Bla. Rep. 602.) It was held by the judges, for whose consideration the question was reserved, that on a conviction of a parish for not repairing a road, if it appear that materials cannot be procured without gomg to a consider- able distance, it must be left to the pi"esiding judge, in each particular case, to determine what to do in passing judgment. (MSS. Parish of Whaplode, Lincolnshire, M. T. 1826.) Application of Fines. 1 By the 3 G. 4. c. 126. s. 110, where the parish, &c. is indicted for the non-repair of a turnpike road, the court are to apportion the fine between the parish and the trustees, or com- missioners, &c. The fine is not to be returned mto the Exchequer, but is to be paid into the hands of such person as the couit shall order, to be applied to the repair of the road in question. Rate to reimburse Fines.l If the fine be lened on individual in- habitants, they may complain at the special sessions, and the justices there assembled are to cause a rate to be made to reimbm'se them. (13 G. 3. c. 78. s. 47.) The apjilication for this rate ought to be made within a reasonable time after the levy, and before any material change of the inhabitants. The Court of King's Bench refused a mandamus to the justices, to make such a rate, after an interval of eight years, though applications had been from tiaie to time made to the magistrates below in the interval, who declined to make the rate on the ground that the parish at large had been improperly convicted, the onus of repair being thrown by immemorial custom on an inferior district ; and though so lately as the year before the aj)- phcation, the magistrates had ordered an account to be taten of the quantum expended upon the repairs, out of the money levied. (Rex v. Justices of Lancashire. 12 East, 366.) Fine not conclusive.'] The matter is not at an end by the defend- ants being fined, but writs of distringas will be issued in injinituin, until the road is put in a state of sufficient repair. (Reg. \'. Cluworth, 1 Salk. 359 ; 6 Mod. 163.1 Sect. III.] INDICTMENTS AND PLEADINGS. 185 Awarding Costs.] By the 13 Geo. 3. c. 78. s. 64, (see post 201,) the court may award costs to the prosecutor, to be paid by the de- fendants, if it appear to the court that the defence was frivolous ; or to the defendants, to be paid by the prosecutor, if the court shall tliink that the prosecution was vexatious. Under this clause, the application must be made to the j udge who tries the indictment ; and if this be omitted, the King's Bench will not afterwards interfere. (Rex v. Chad- derton, 5 T. R. 272.) But no precise form of certificate seems to be necessary; and if it be stated on the back of the record that the defence was frivolous, or that the prosecution was vexatious, this will suffice without formally awarding costs. (Rex v. Clifton, 6 T. R. 344.) And the persons who really instigated the prosecution, may be or- dered to pay the defendant's costs upon an acquittal, although they ai'e not the ostensible prosecutors, and their names do not appear upon the back of the indictment; and although the indictment ori- ginated in a presentment of A. and B., constables, whose names are on the indictment. (Rex v. Commerell, 4 Maul. & Sel. 203.) The order is good in form, if it be for the payment of the costs to the solicitor of the parish. (Rex v. Commerell, supra.) And it has been holden, that if a justice of the peace indict for non-repair, and the defendant remove the proceedings by certiorari, the magistrate upon conviction, will be entitled to his costs under 5 W. & M. c. 11. s. 3, as a party aggrieved. (Rex v. Kettleworth, 5 T. R. 33.) So several persons, prosecutors of an indictment removed by certio- rari, were held entitled to costs ; one as constable of the manor within which the highway lay, the other as parties aggrieved, they having used the way for many years, in passing and repassing from their homes to the next market-town ; and being obliged by reason of the want of repair, to take a more circuitous route. (Rex v. Taunton St. Mary, 3 Maul. & Sel. 465.) And upon an indictment for not repairing a highway, removed by the prosecutor, if the judge at nisi prius cer- tify that the defence was frivolous, the prosecutor shall have his costs, notwithstanding the defendant hath obtained a rule nisi, to arrest the judgment. (Rex v. St. John the Baptist, Margate, 6 Maul. & Sel. 130.) 186 HIGHWAY ACTS, [Chap. VIII. CHAP. VIII.— HIGHWAY ACTS. Section I. Surveyors of Highways. II. Repair of Highivays. III. Widening and Diverting Highways. IV. Statute Duty. V. Statute Duty Composition. VI. Nuisances to Highicays. VII. General Regulations. VIII. Penalties, and how Recovered. IX. Execution of the Acts. SECTION I. — SURVEYORS OF HIGHWAYS. 13 Geo. 3. c. 78. ss. 1, 2, 3. 5. 54. 70. 85. 12. 4. 50. QS. 48, T](,e Acts in Force.'\ The person, or ministerial officer, to whom the law has confided the more immediate duty of putting the enactments for the repair and preservation of the roads in execution, is the surveyor. In the matters of higher importance upon this subject, where a road is to be diverted or stopped up, or any other changes in the highways within the contemplation of these statutes, are to be effected, tlie power is lodged in the magistracy of the county, under certain regu- lations and restrictions, lor the protection of private interests, and the prevention of an indiscreet exercise of this authority. It has already been observed, that no means are provided by the common law for making new roads, widening old ones, changing their course, or for stopping up those which have become useless to the public. Acts of Parliament, however, have from time to time been passed to supjily this deficiency. The earliest act to be found in the statute book relating to highways, is 13 Ed. 1. Stat. Wynt. c. 5 ; many others were passed in the foUowmg reigns, till the whole were amended and reduced into one by the 13 Geo. 3. c. 78. Some parts of this latter act ha^ e been repealed, and other enactments substituted by subsequent statutes. For the sake of brevity and convenience, only those provisions which are still in force are given in the following pages. It may be expedient, however, in the first place, to state the repealed clauses of the statutes now in exist- Sect. I.] SURVEYORS OF HIGHWAYS. 187 ence : the 34th, 35th, 38th, and 39th clauses of 13 Geo. 3. c. 78, are repealed by 34 Geo. 3. c. 74. s. 1; the 3d clause of 34 Geo. 3. c. 74 is repealed by 44 Geo. 3. c. 52. s. 1 ; the 19th clause of 13 Geo. 3. c. 78, is repealed by the 55 Geo. 3. c. 68. s. 1. By the 86th section of 13 Geo. 3. c. 78, the parish of St. Mary Matfelon, otherwise Whitechapel, and St. John of Wapping, in Middlesex, are exempt from the operation of the act ; and the 87th section j^rovides, that the power of commissioners of sewers shall not be affected by the act. Appointment of Surveyors-I The 13 Geo. 3. c. 78. s. 1, enacts, " Upon the twenty-second day of September, in every year, unless that day shall be Sunday, and then on the day following, the constables, head boroughs, tithingmen, churchwardens, surveyors of the highivays, and householders, (see Construction 1, post 190,) being assessed to any parochial or public rate, of every parisli, townshijj, or place, shall assemble together at the church or chapel of sxich parish, township, or place ; or if there shall be no church or chapel, then at the usual place of public meetings for such paaish, township, or place, at the hour of eleven in the forenoon : And the major part of them, so assembled, shall make a hst of the names of at least ten persons living within such respective parishes, townships, or places, who each of them have an estate in lands, tenements, or hereditaments, lying within such respective parish, township, or place, in their own right, or in the right of their wives, of the value of ten pounds by the year ; or a personal estate of the value of one hundred pounds ; or are occu- piers or tenants of houses, lands, tenements, or hereditaments, of the value of thirty pounds : And if there shall not be ten persons having such qualifications as aforesaid, then they shall insert in such list the names of so many of such persons as are so qualified, as above re- quired, together yn\\\ the names of so many of the most sufficient and able inhabitants of such parish, township, or place, not so quali- fied, as shall make up the number of ten, if so many can be found ; if not, so many as shall he there resident, to serve the oflSce of sur- veyor of the highways : And the constable, headborough, or tything- man, of such parish, townsliip, or place, shall, within three days after such meeting, transmit a duplicate of such list to one of the justices of the peace within the limit of the county, riding, division, hundred, city, corporation, precinct, or lil)erty, where such parish, townshiji, or place, shall be, living in or near the same ; and shall also return and deliver the original list, made and agreed upon at such meeting, to the justices of the peace, at their special sessions to be held for the highways within that limit, in the week next after the Michaelmas 188 HIGHWAY ACTS. [Chap, VIII. general quarter sessions (see Construction 2. post 190,) of the peace in every year ; and shall also, within three clays after making the said list, give personal notices to, or cause notices in writing to be left at the places of abode of the several persons contained in such Hst, informing them of their being so named, to the intent that they may severally appear before the justices at the said special sessions, to accept such office, if they shall be appointed thereto, or to show cause, if they have any, against their being appointed : And the said justices are hereby au- thorized and required to hold such special sessions at such convenient place or places within their respective limits, as they, m their discre- tion, shall judge proper ; and to give notice of the time and place where they intend to hold the same to the constables, headboroughs, or tythingmen of every such parish, township, or place, at least ten days before the holding of the said session : And the said justices then and there, fi-om the said lists, according to their discretion, and the largeness of the parish, township, or place respectively, by wai*- rant under their hands and seals, shall appoint one, two, or more of such persons as aforesaid, if he or they shall, in the ojjinion of such justices, be qualified for the office of sm'veyor; if not, one, two, or more of the other substantial inhabitants or occupiers of lands, tene- ments, woods, tithes, or hereditaments, within such parish, township, or place, living within three miles thereof, and within the same county, fit and proper to serve the office of surveyor of the highways for such parish, towTiship, or place, if any such can be found ; which appoint- ment shall, by the constables, headboroughs, or tythingmen aforesaid, be notified to every person so apjjointed by the said justices within three days after such appointment, by serving him with the said war- rant, or by leaving the same, or a true copy thereof, at his house or usual place of abode : And every person so appointed, if he accepts the said office, shall be surveyor of the highways for the said j^arish, township, or jjlace, for the year ensuing, and shall take upon him, and duly execute the office aforesaid; and the said justices shall then and there give such of the said suiTeyors as shall personally appear before them, a charge for the better performance of their duty, ac- cording to the directions of this act : And if any of the said persons so appointed, whose names were contained in such list, and who are served with the said notice, shall refuse or neglect to appear at the said special sessions, and accept the said office, if appointed thereto, in manner aforesaid ; or shall not, within six days after being served with such wan-ant of appointment, signify his acceptance thereof, cither in person or by writing, to one of the said justices, he shall forfeit the sum of five pounds : And in case any person so appointed Sect. I.] SURVEYORS OF HIGHWAYS. 189 by tlic .said justices, whose name tvas not contained in stick lists, (see Construction 3, post 1 90 ;) shall refuse or neglect to accept the said office, or shall not, within six days after being served with such appointment, show to one of the justices signing such appointment sufficient cause wh}^ he should not seiTe such office, he shall forfeit the sum of fifty shillings : Provided that no person, who hath been ajipointed and served the office of sm'veyor for one year, shall be liable to be ap- pointed surveyor for the same parish, township, or place, within three years from the time of such first appointment and semce, unless he shall consent thereto. But if no such list shall be made and returned, or if the said justices shall make such appointment as aforesaid, |ind the person or persons so appointed shall refuse to serve the said office, the said justices, or any two of them, shall and may, and are hereby required, at the said special sessions, or at some subsecpient special sessions, to be held within one month after, to nominate and appoint some other person or persons to be surveyor of such parish, township, or place, whom they shall judge proper to execute that office, and shall and may fix siicli salary to be paid to such surveyor, to be ap- pointed as herein last before mentioned, out of the said forfeitures, and all other forfeitures, fines, penalties, assessments, and composi- tions, to be paid, levied, and raised under the authority of this act, within such parish, township, or place respectively, as such justices shall think fit, not exceeding one-eighth part of what shall liave been raised by an assessment of sixpence in the pound, for the use of the highways within such parish, townshiji, or place, where any such assessment shall have been raised, aud observing the same restriction as near as they can, from the best information they shall be able to get of the probable amount of such an assessment, where none hath been already made : And the said justices shall and may, if they think fit, require the constables, hcadboroughs, tythingmen, and surveyor, of every such parish, township, and place, or any of them, to return to them, at such time and place as they shall appoint, an account in writing, of the sum which such assessment of sixpence in the pound hath raised, or will, in his or their opinion, raise within such parish, township, or place : And if the constables, hcadboroughs, tythingmen, churchwardens, surveyor of the highways, and such householders as aforesaid of any parish, township, or place, shall neg- lect or refuse to make such list as aforesaid ; or if the constable, head- borough, or tythingman, of any parish, township, or place, shall not return the said list of names when made, and such duphcate thereof, as aforesaid, and give such notice or notices, and serve such warrant or warrants, as in this act is directed; or if the said constable, head- 190 IIIC.HWAY ACTS. [Chap. VIII. borough, tythinginan, and surveyor, or any of them, shall neglect to return such account of the amount of such assessment as aforesaid, when so required as aforesaid, every constable, heudborough, tything- nian, churchwaixlen , or surveyor, so neglecting or refusing, in any of the said cases, shall, for every such default, respectively forfeit the sum of forty shillings." Construction 1, ante 187.] Although it has been questioned, whether a parish meeting would be legal, unless composed of the several denominations set forth in the act ; yet the court seemed strongly inclined to the opinion, that the legislature only meant it to be a full pai-i^h meeting, in the ordinary sense ; and that the absence of any of the officers named would not invalidate the proceedings. (R. v. Petti- ward and others, 4 Buit. 2452.) Constniction 2, ante 188.] By the 54 Geo. 3. c. 84, the Michael- mas quarter sessions are directed to be held in the first week after the eleventh of October, which led to the enactment of the 55 Geo. 3. c. 68. s. 8, empowering justices assembled in petty sessions in the week after Michaelmas to do all acts, which theretofore they might legally have done in the special sessions, directed to be holden in the week after Michaelmas general quarter sessions. A special ses- sions here means, -a sitting convened by notice to the other magis- trates of the division. (R. v. Worcestershire, 2 Barn. & Aid. 233.) But it is not necessary that the appointment of surveyors should be made at the particular period above stated ; as this part of the act has been held to be only directory ; and the appointment may be made at the next subsequent special sessions. (R. v. Denbighshire, 4 East. 142.) Construction 3, ante 189.] The justices are not bound to appoint surveyors from the lists returned to them, if they think the persons named therein are unfit ; but they may choose other persons of the parish who are qualified. (R. v. Baldwin, 7 T. R. 169.) Assistant Surveyor-I The 13 Geo. 3. c. 78. s. 2, provides, "That in all cases where the said justices, upon neglect or refusal of the person so nominated surveyor as aforesaid to accept the said office, shall appoint any other person for such sm'veyor, with a salary as aforesaid, the said justices shall and are hereby required to appoint one substantial inhabitant of such parish, township, or place, for as- sistant to such surveyor, in the several matters and for the several jjurposes hereafter mentioned, until the next annual appointment of surveyors, according to the directions of this act : And if the jDcrson so appointed assistant shall, upon notice of such apiJointment, refuse to accept that office, he shall forfeit the sum of fifty shillings ; and Sect. I.] SURVEYORS OF HIGHWAYS. , 191 in that case it shall and may he lawful for Buch justices to appoint any other suhstantial inhabitant of such parish, township, or place, for assistant to such surveyor, in manner and for the time aforesaid ; and if such second appointed assistant shall dechne or refuse to ac- cept the said office, he shall, in like manner, forfeit the sum of fifty shillings ; and the said justices shall and may appoint any other per- son, inhabiting in such parish, township, or place, assistant to such surveyor, who shall be entitled to the said forfeitures herein last before mentioned, and also to some further allowance by way of sa- lary (to be paid as the surveyor's salary is hereby directed to be paid,) if the said justices shall think any such salary necessary, and shall order the same, which they are hereby authorized to do : Provided that no person so appointed assistant for one year shall be liable to be appointed assistant for the same parish, township, or place, within three years next following such first appointment without his consent." Bond given by Surveyor.] " The surveyor of every parish, town- ship, and place, who shall not reside therein, but shall be appointed with such salary as aforesaid, shall, if required by the churchwarden, overseer of the poor, or any principal inhabitant of the parish, town- ship, or place, for which he shall be so appointed surveyor, at the time of his appointment, or within fourteen days after, give a bond upon paper, without stamp thereupon, to some projier person within such parish, township, or place, to be nominated by the said justices, with sufficient surety to account for the money which shall come to his hands as surveyor, according to the directions of this act ; which bond shall be good and effectual in law." (Id. s. 3.) Surveyor elected, with Salary.] " If two parts out of three of those so to be assembled in any such parish, township, or place, for the nomina- tion of surveyors as aforesaid, shall agree in the choice of any particular person of skill and experience, to serve the said office of surveyor for such parish, township, or place, and in the settling of a certain salary for his trouble therein, and shall return the name of such person, together with the list hereinbefore directed, to the justices of the peace at their said sessions to be held in the week next after the Michaelmas quarter sessions, that then, in every such case, it shall and may be lawful for the said justices, if they shall think proper, to appoint such person to be surveyor for such parish, township, or jilace, and allow him the salary mentioned in such agreement ; which shall be raised and paid in the same manner as the salary hereinbefore mentioned is directed to be raised and paid : And in case any sur- veyor, to be appointed under the authority of this act, shall die or become incapable of executing that office before such next special 192 HIGHWAY ACTS. [Chap. VIII. sessions for appointing sun^eyors, the said justices, or any two of them, shall and may, at some special sessions, nominate and appoint such person or persons as they shall think proper to execute the said office, until such next special sessions for appointing surveyors as aforesaid ; and if such deceased surveyor had a salary, they may allow the same salary to his successor, in proportion to the time he shall serve the said office ; and if the said justices of the peace, at their said special sessions, or at any time afterwards, pursuant to the jjowers of this act, shall appoint more than one person for sm'veyor of any parish, township, or place, all and every person or persons so ajipointed shall he comprehended under the word surveyor, in every part of this act." (Id. s. 5.) " Provided, That nothing in this act contained shall authorize or emjiower, or be deemed, construed, or taken to authorize and em- power any justice, or justices of the peace, for any city, town cor- porate, or borough, to fix or allow any salary to or for any surveyor, to be appointed by any such justice or justices, other than and except such salary as shall be settled and agreed upon by two parts out of three of the persons assembled in the parish, township, or place, within such city, town corporate, or borough, for which such sur- veyor shall be appointed pursuant to the directions of this act." (Id. s. 54.) Abstract of Act for Surfet/ors.l And in order to have the con- tents of this act more generally communicated and known, be it further enacted. That the justices of the peace within their respective limits shall, at every special sessions to be held in the week next after the Michaelmas general quarter sessions of the peace, procure and deli- ver, or cause to be procured and delivered, a printed abstiact of the most material parts of this act, to every surveyor, to be then appointed by them respectively, as the charge hereby dnected to be given ; and shall also, at their said special sessions, to be held in the year one thousand seven hundred and seventy-three, deUver, or cause to be delivered, to every of the said surveyors one other of the said printed abstracts of this act, for the use of the parish, township, or place, for which the said surveyor shall be appointed ; which last-mentioned absti'act the said surveyors are hereby respectively ordered and re- quired to fix on the church or chapel door, or other public place within their respective liberties, on the next Sunday after they shall so receive the same ; and the said surveyors shall severally pay to the said justices' clerks the sum of sixpence for each of the said last- mentioned printed abstracts," (Id. s. 70.) " Provided, That nothing in this act contained, touching the Sect. T.] SURVEYORS OF HIGHWAYS 1 93 making and returning lists of persons qualified to be surveyors of the highways, and the appointment of such surveyors, nor the repeal of part of an act made in the third year of King William and Queen Mary, relating to such surveyors, shall extend, or be construed to extend to the city of Bristol." (Id. s. 85.) Surveyors' Diities.1 The duty of surveyors with respect to the removal of nuisances, encroachments, &c., is set forth in the follow- ing sections. " The surveyors of the highways to be appointed by virtue of this act, shall, at all such times and seasons as they shall judge proper, view all the common highways, trunks, tunnels, plats, hedges, ditches, banks, bridges, causeways, and pavements, within the parish, town- ship, or place, for which they shall be appointed surveyors ; and in case they shall observe any nuisances, encroachments, obstructions, or annoyances, made, committed, or permitted in, upon, or to the prejudice of them, or any of them, contrary to the directions of this act, they shall from time to time, as soon as conveniently may be, give, or cause to be given, to any person or j^ersons doing, committing, or permitting the same, personal notice or notices, in v.riting, to be left at his, her, or their usual jjlace or places of abode, specifying the particulars wherein such nuisances, defaults, obstructions, or annoy- ances consist: And if such nuisances, obstructions, or annoyances shall not be removed, and the ditches, drains, gutters, and water- courses aforesaid efiectually made, scoured, cleansed, and opened, and such trunks, tunnels, plats, and bridges, made and laid, and such hedges properly cut and pruned within twenty days after such notice of the same respectively given as aforesaid, then the said surveyors shall be, and they are hereby fully authorized and empowered forth- with to remove such nuisances, obstructions, or annoyances^ and open, cleanse, and scour such ditches, gutters, and watercourses, and make or amend such trunks, tunnels, plats, or bridges, and cut and prune such hedges for the benefit and improvement of the said highways to the best of their skill and judgment, and according to the true intent and meaning of this act : And the person or persons so neglecting to make or open and cleanse such dilches, gutters, or watercourses, or cut or prune such hedges, during the time aforesaid, after such notice given, shall forfeit for every foot in length which shall be so neglected the sum of one penny ; and the said surveyors shall be reimbursed what charges and expenses they shall be at in removing such nuisances, obstructions, or annoyances, and making or opening, cleansing, or scouring such ditches, gutters, and watercourses, and in making or amending such trunks, tunnels, plats, oi' bridges, and in cutting and o 194 HIGHWAY ACTS. [Chap. Vni. pruning such hedges respectively, by the person or persons who ought to have done the same, over and above the said forfeiture ; and in case such person or persons shall, upon demand, refuse or neglect to pay the said surveyor his charges and expenses occasioned thereby respec- tively, and also the said forfeiture of one penny per foot, then the said surveyor shall apply to any justice of the peace, and upon making oath before him of notice being given to the defaulter ua manner aforesaid, and of the said work being done by such surveyor, and of the expenses attending the same, the said surveyor shall be repaid by such person or persons all such his said charges as shall be allowed to be reasonable by the said justice ; or in default of payment thereof on demand, the same shall be levied in such manner as the penalties and forfeitures hereby inflicted are directed to be le\ded." (13 Geo. 3. 78. s. 12.) Duty of Assistant Surveyor.] " And be it further enacted. That the assistant, so to be nommated and appomted, shall, and is hereby required, to the best of his skill and judgment, to assist the said surveyor, whenever requested by him, in callmg in and attending the perfonnance of the statute duty; in collecting the compositions, fines, penalties, and forfeitures ; in making and collecting the assessments ; in making out and serving the notices authoiized by tliis act ; and in such other matters and things as shall be reasonably required of him by the surveyor, in the execution of his office as surveyor, pursuant to this act : And the said assistant shall justly and ti'uly account with, and pay to the said surveyor, or to his order, from time to time, according to the directions of this act, all the money which shall come to his hands, as assistant, by the means aforesaid ; and in de- fault thereof he shall forfeit double the value of the money by him so received, and not so ])aid and accomited for : And if the said assist- ant shall wilfully neglect or make default in the performance of any of the duty required from him by this act, he shall forfeit for every such offence any sum not exceeding five pounds, nor less than forty shillings, at the discretion of the justice or justices of the limit within which such assistant shall be appointed : And the said surveyor shall, and is hereby required to send orders in wTiting upon the said assist- ant, for the payment of all sums due to any person or persons for work or materials, by virtue of this act, which amount to forty shil- lings, or upwards ; and the said surve}'or shall not be responsible for any sum or sums of money which shall be received by the said assist- ant, and shall not be actually paid to such surveyor, or to his order, as aforesaid." (Id. s. 4.) Fine on Neglect of Duty.] " If any surveyor ui' the highways,* Sect. I. j SURVF.YOnS OF HIGHWAYS. 195 after his acceptance of the sakl office, shall neglect his duty in any thing required of him by this act, for which no particular penalty is imposed, he shall forfeit, for every such ollence, any sum not ex- ceeding five pounds, nor less than ten shillings, at the discretion of the justice or justices having jurisdiction therein." (Id. s. 50.) May be a Witness.] " The surveyor of any parish, township, or place, shall he deemed, in all cases, a competent witness, in all mat- ters relative to the execution of this act, notwithstanding his salary may arise in part from the forfeitures and penalties hereby inflicted." (Id. S.68.) A surveyor of turnpike roads is not personally liable to answer the labourers, but they must look to the commissioners or their treasurer. (Pochin V. Pawley, 1 Bla. Rep. 670, Amb. 771.) Surveyor's Accounts.] " The surveyor of the highways for every parish, township, or place, shall carefully and diligently collect, or cause to be collected, the several assessments, forfeitures, penalties, sums of money, and compositions, directed and allowed to be re- ceived and taken within the same, by virtue of this act, within the year for which he is appointed surveyor ; and shall keep one or more book or books, in which he shall fairly enter a just, true, and fair account of all such money as shall have come to his hands, or to the hands of the said assistant, in respect of such parish, township, or place, by virtue and for the purposes of this act ; and to whom, and on what occasion, he shall have paid or applied the same ; and shall also enter in such book or books, a list or lists of all such sums of money as shall then remain due and owing from any person or persons, in respect of the payments, compositions, assessments, penalties, or forfeitures, to be collected, received, or ta^en, for and in respect of the said high- ways, by virtue of this act ; and the said surveyor shall also enter in the said book or books an account of all tools, materials, implements, and other things provided, or to be provided, by order of the inhabit- ants, at a vestry or other public meeting, for the repair of the said highways, at the public expense of such parish, township, or place; and shall produce such books, and the assessments made within that year for the purposes of this act, unto the inhabitants of the parish* township, or place to which they belong, at a vestry or other pubHc meeting to be held for that puipose, within fifteen days before the said special sessions so to be held in the week next after Michaelmas quarter sessions as aforesaid, to the intent that the said accounts, as- sessments, and lists, may be inspected by the inhabitants of such parish, township, or place respectively; and every such surveyor shall, after the said books and assessments shall have been produced at such o 2 106 HIGHWAY ACTS. [Chap. VIII. meeting, take the same to such justice of the peace, (see " Passing Accounts," post 197,) for the Umit \Yherein such parish, township, or place, doth he, and on such day, and at such hour, as shall be agreed upon at such meeting, some day after the said meeting of the inhabitants, and before such last- mentioned special sessions, and then and there verify such account, or any part thereof, upon oath, if re- quired; and such justice may allow such account, if he finds it just, or postpone it until such special sessions, if he finds cause for so doing ; in which case it may be settled and allowed at such special sessions, after the parts objected to by such justice shall have been explained and verified by proper evidence, to the satisfaction of the justices at such special sessions ; and in case any articles contained in such ac- counts shall not be explained and proved to the satisfaction of such justices, they may disallow the same ; and whenever the said accounts shall be so settled, and allowed or disallowed as aforesaid, all such books and assessments shall be transmitted to the churchwarden or , overseer of the poor for such parish, township, or place respectively, or if the place be extra-parochial, then to some principal mhabitant thereof, to be kept for the use of such parish, township, or place ; and the said surveyor shall forthwith deliver a duplicate of such book and account, together with all sums of money as shall remain in his hands, and likewise all tools, materials, implements, and other things, as aforesaid, to the succeeding surveyor for such parish, township, or place, in case any new surveyor shall be appointed ; or retain the same in his hands, and accoiint for them in his next accoimt, if he shall be continued surveyor of such parish, township, or place, in the succeeding year : and it shall and may be lawful for the succeeding surveyor, and he is hereby authorized and required, to recover, collect, and receive, all such sums of money which shall be due and owing as aforesaid, by all such ways and means as fully and effectually, to all intents and purjDoses, as the preceding surveyor could, might, or ought to have recovered, collected, or received the same : and in case such surveyor shall neglect to provide such book or books, or to enter such respective accounts and lists therein, or to dehver the said book or books, and such duplicate thereof, and such assessments, tools, materials, implements, and other things, in manner aforesaid, he shall for everv such ofl!ence forfeit any sum not exceeding five pounds, nor less than forty shillings ; and in case lie shall make default in the paying or accounting for the money, so remaining in his hands, within the time, and according to the duections aforesaid, he shall forfeit double the value of the money which shall be adjudged by the said justices to be iuhishaads; (see "Action forBalance in Hand," /)os/, 197;) Sect. I.] SUKVEYORS OF HIGHWAYS. 197 aiul in case any such surveyor shall die hefore such resi^ective accounts and lists shall he made out, or such monies, hooks, assessments, tools, materials, and implements, shall he so delivered and jiaid, the exe- cutors or administrators of such surveyor shall make out, pay, and deliver the same, in Hke manner, and under the like penalty, as such surveyor is herehy required and made suhject and liable to : and every surveyor shall pay to the justice^s clerks, for the ajopointment and charge, the sum of one shilling, for the bond sixpence, and for the account so to be examined and taken, and for the oath so to be ad- ministered, the sum of one shilling, and no more ; and if any person or persons shall receive any greater sum or fee for the business afore- said than hereinbefore mentioned, he shall forfeit the sum of ten pounds for every offence." (13 Geo. 3. c. 78. s, 48.) Passing Accounts by Justices.'\ The surveyor's accounts must first be laid before one justice, and the justices at petty sessions have no original jurisdiction over them^ the reference to them being merely of those parts which are not allowed by the single justice. Thus where they allowed accounts which had not previously been submitted to one justice, the court granted a certiorari to remove the order, and quashed it. (R. v. JJ. Somersetshire, 5 Barn. & Cres. 816, 6 Dowl. & Ryl. 469, 8 Dowl. & Ryl. 733.) And even when the magistrate, before whom the accounts were exhibited, declined to investigate them, because the assessments were not also produced, but desired the sur- veyor to attend, with all the necessary documents, at the petty sessions, by whom the accounts were allowed, it was held that such allowance was invalid. (R. v. JJ. N. R. Yorkshire, 6 Barn. & Cres. 152.) There is no appeal from the petty to the quarter sessions ; the only mode of reviewing the decision of the fonner is by certioraii. (R. v. JJ. W. R. Yorkshire, 5 T. R. 629, id. 701.) Action for Balance in Hand.] It seems that the surveyor is the proper party to sue his predecessor, for not paying over the balance declared against him, upon passing his accounts hefore a justice; but notice of action must be given, stating the precise sum which it is alleged the defendant has in his hands, which he ought to have paid over to his successor, and the double amount of which is sought to be recovered, and to which the evidence to be adduced on the trial ap- plies. (Heudebourck v. Langton and another, 3 Car. & P. 566.) Where there are two surveyors appointed, and one only has re- ceived the money, to recover which an action is brought, both cannot be sued for money had and received. (Id.) If a surveyor be guilty of any embezzlement, or breach of duty, he may be indicted. (R. v, Anderson, 1 Chitty's Statutes 455.) 198 HIGHWAY ACTS. [Chap. Vlll. SECTION II. — REPAIR OF HIGHWAYS. 13 Geo. 3. C.78. .s.s.23. 51.25.24. 64,65. 27,28,29,30,31,32,33.49; 34 Geo. 3. c. 64. ss. 1, 2, 3, 4, 5. 7. Repair ratione tenura.l The common law liability upon indi- viduals or corporate bodies, to repair by reason of their tenure ot adjoining property, is aided by the Highway acts. The 13 Geo. 3. c. 78. s. 23 provides, " That every surveyor shall and may, from time to time, give infonnation upon oath to the said justices, or any two or more of them, of all such highways, and of all bridges,(see "Bridges," r«y;-a,) causeways, or pavements upon such high- ways as are out of repair, and ought to be repaired by any person or persons, bodies politic or corporate, by reason of any grant, tenure, limitation or appointment, of any charitable gift, or otherwise howso- ever; and the said justices shall limit a tune for repairing the same, of which notice shall be given by the said surveyor, to the occupier or occujners of the lands or tenements, liable to the burthen of such re- pau's, or to such other person or persons, bodies pohtic or corporate, as are chargeable with the same ; and if such repairs shall not be ef- fectually made within the time so limited, the said justices shall and are hereby required to present such highways, bridges, causeways or pavements, so out of repair, together with the person or pei-sons, bodies politic or corpoi-ate, liable to repair the same, at the next gene- ral quarter sessions of the peace for the limit wherein such highways shall He ; and the justices at such quarter sessions may, if they see just cause, direct the prosecution to be earned on at the general ex- pense of such limit, and to be paid out of the general rates within the same." Bridges.] The obligation to repair bridges rests, by law, upon counties, and thei'e are several statutes on the subject from the 22 H. 8. c. 5, down to the 55 G. 3 c. 143, inclusive ; for which see Chitty's Statutes. And where the county is liable to repair the bridge, it is also bound to repair the highways, to the extent of three hundred feet at each end of the bridge. (R. v. W. R. York, 7 East, 588; 5 Taunt. 284.) But a parish, township, corporation, or a private indiv-idual, may be liable to repair a bridge by prescription, or ratione tenurce. (Hale, P. C. 143; see R. v. Inh. Kent, 13 East, 220; R. v. Inh. of Lindsey, 14 East, 317.) But the obligation to repair does not carry with it the liability to widen the bridge, however the pubhc exigen- cies may require that it should be widened. (R. v. Devon. 4 Bam. & Sect. II.] REPAIR OF HIGHWAYS. 199 Cres. 670; 7 Dowl. & Ryl. 147; overruling R. v. Cumberland, 6 T. R. 194 ; 3 Bos. & Pul. 354.) It has been held, that where trustees of a turnpike road built a wider bridge of brick, in the place of an old wooden one, which the parish was bound to repair by pre- scription, and the public had used the new one for forty years, the liabihty to repair it was removed from the parish to the county. (R. V. Surrey, 2 Campb. 455.) But where townships have enlai'ged a bridge, which they wei'e before bound to rejiair as a foot bridge, they shall be liable pro rata. (R. v. W. R. York, 2 East, 353.) By the 3 Geo. 4. c. 126. ss. 107, 108, parishes liable to repair bridges are enabled to enter into compositions or agi'eements with tlic trustees of the roads, or persons acting on behalf of counties, by whicli they shall be relieved from the repair thereof in futm^e. Lands for Repair of Ways.] " Where any lands have been, or shall be given for the maintenance of causeways or pavements, highways and bridges, all such persons who are or shall be enfeoffed or trusted with any such lands, shall let them to fann at the most improved yearly value without fine : and that the justices of the peace, in their open sessions, shall and may inquire, by such ways and means as they shall think fitting, into the value of all such lands so given, or to be given, and order the improvement and employment of the rents and profits thereof, according to the will and direction of the donors of such lands, if they find that the persons so intrusted have been negli- gent or faulty in the perfoiTnance of their trust; (except such lands have been given for the uses aforesaid to any college or hall in either of the universities of this kingdom which have visitors of their own) any law, statute, usage, or custom, to the contrary notwithstanding." ( 13 Geo. 3. c. 78. s. 51.) What Ways shall be first repaired.'] " The said justices of the peace, at any special sessions to be held by virtue of this act, may, by writing under their bauds and seals, order and appoint those high- ways (not being turnpike road) which in their opinion do most want repair within their jurisdiction, to be first amended, and at what time and in what manner the same shall be amended ; according to which order, if such there be, all and singular the respective surveyors of the said highways, are hereby required to proceed within their respective liberties." (Id. s. 25.) Presentments by Justices.] " Every justice of assize, justices of the counties Palatine of Chester, Lancaster, and Durham, and of the great sessions in Wales, shall have authority by this statute, upon his or their own view; and every justice of the peace, either upon his own view, or upon information upon oath to him given by any surveyor of 200 HIGHWAY ACTS. [Chap. VIII; tlie highways, to make presentment, (see "Presentments," i/i/ra,) at their respective assizes or gi'eat sessions, or in the open general quarter sessions, of such respective hmit of any highway, causeway, or hridge, not well and sufficiently repaired and amended ; or of any other default or offence committed and done, contrary to the provision and intent of this statute ; and that all defects in the repair thereof shall he presented in such jurisdiction where the same do lie, and not elsewhere ; and that no such presentment, nor any indictment for any such default or oifence, shaU be removed, by certiorari or other- wise out of such jurisdiction, till such indictment or presentment be traversed, and judgment thereupon given ; except where the duty or obligation of rejiairing the said highways, causeways, or bridges may come in questioil; and that every such presentment made by any such justice of assize, counties palatine, great sessions, or of the peace, upon his own view, or upon such mformation having been given to such justice of the peace upon the oath of such surveyor of the high- ways, as aforesaid, shall be as good and of the same force, strength, and effect in the law, as if the same had been presented and found by the oaths of twelve men ; and that for every such default or offence so presented as aforesaid, the justices of assize, counties pala- tine, and great sessions, at their respective courts, and the justices of the peace at their general quarter sessions, shall have authority to assess such fines as to them shall be thought meet : saving to every person and persons that shall be affected by any such presentment, his, her, or their lawful traverse to the same presentment, as well with respect to the fact of non-repair, as to the duty or obligation of repair- ing the said highways, as they might have had upon any indictment of the same presented and found by a grand jury ; and the justices of the peace at their general quarter sessions, or the major part of them may, if they see just cause, direct the prosecutions upon such pre- sentments as shall be made at the quarter sessions as aforesaid, to be caiTied on at the general expense of such limit, and to be paid out of the general rates within the same." (13 Geo. 3. c. 78. s. 24.) Road Presentments.] Although the 24th section authorizes a justice of the peace upon his own view, or upon " infonnation upon oath to hun given by any surveyor of the highways," to make presentment, &c., yet this expression must be construed with reference to the known duties of a surveyor, and they are lunited to the district for which he is a])poiut- ed ; and therefore, when a magistrate pi'esented a road in the township of F. upon the infonnation of the surveyor of another township, it was held in arrest of judgment, that the presentment was bad; for the pre- sentment cannot be made upon the information of any other surveyor Sect. II.] REPAIR OF HIGHWAYS. 201 than the suiTeyor appointed for the particular parish, township, or ])hice where the road lies. (R. v. Fylingdales, 7 Barn. & Cres. 438; 1 Man. & Ryl. 176.) A magistrate is justified in presenting, upon his own view, only such highways as are really out of repair; and he is liable to an action, if he certify falsely and maliciously. (Keen v. Wightwick, Chitty's Statutes, 448. ) And when he proceeds upon the oath of a surveyor, it must also appear, upon the presentment itself, that the m- formation on oath, was given to the magistrate who makes the pre- sentment. (R. V. Fylingdales, supra.) If the presentment be of a smaller district than a parish, it must state expressly how the liability arises. (R. v. Penderryn, 2 T. R. 513.) A high constable cannot make presentment of a nuisance in a highway, in this manner; but he must go before the grand jury, and give his evidence upon oath. (R. V. Bridgewater and Taunton Canal Co. 7 Barn. & Cres. 514.) And where a justice presents a nuisance in a highway, it must be expressly alleged to be against the form of the statute. (R. v. Winter, 13 East, 258.) It seems, that a justice may allow another person to prosecute a presentment in his name ; but the justice is responsible for costs, if the presentment turn out to be improper, in the same manner as if he had conducted the proceedings himself. (R. v. Pendenyn, supra.) Court may award Costs. ] " It shall and may be lawful for the court before whom any indictment or presentment shall be tried for not repairing highways, to award costs to the prosecutor, to be paid by the person or persons so indicted or presented, if it shall appear to the said court that the defence made to such indictment or present- ment was frivolous ; or to award costs to the person indicted or pre- sented, to be paid by the prosecutor, if it shall appear to the said court that such prosecution was vexatious." (13 G. 3. c. 78. s. 64.) Certificate for Costs.] If the judge on the trial certify that the defence was frivolous, without awarding costs in express terms, the prosecutor is entitled to receive them under this section. (R. v. Clifton, 6 T. R. 344, art^e, 184.) Expenses of Prosecuting, i^c. how paid.] " If the inhabitants of any parish, township, or place, shall agree, at a vestry or public meeting, to pi'osecute any person by indictment for not repairing any highway within such parish, township, or place, which they apprehend such person was obliged by law to repair, or for committing any nuisance upon any highways ; or shall agree, at such vestry meeting, to defend any indictment or presentment preferred against any such parish, township, or place, it shall and may be lawful for the surveyor of such 202 HIGHWAY ACTS. [Chap. VIII. parish, township, or j)lace, to charge in his account the reasonable ex- penses incuiTcd in canying on or defending such respective prosecu- tions, after the same shall have been agieed to by such inhabitants at a vestry or public meeting, or allowed by a justice of the peace within the limit where such highways shall be ; which exi)enses, when so agreed to, or allowed, shall be paid by such parish, township, or place, out of the fines, forfeitures, compositions, payments, and assessments authorised to be collected and raised by virtue of this act." (13G. 3. c.78. s.65.) Repair of Botindaries.'] " Whereas the common highways in this kingdom are to be maintained and kept in repair (except in certain cases) by the inhabitants of the several parishes in which such com- mon highways are situated ; but it frequently happens that the boun- daries of such, parishes pass through the middle of such common high- ways, and one side of such highways is situated in one parish, and the other side of such highways is situated in anotlier parish, whereby great inconveniences have often arisen to such parishes m settling the time and manner of repauing and amending the same, and gi'cat detriment has arisen to the public from the want of the due re- pair of such highways ; for remedy thereof, Be it enacted, That it shall and may be lawful for any two justices of the peace for any county, riding, or division, upon complaint or application to them by any surveyor, or any one of the surveyors of the highways, of any parish, (stating to such justices in writing, and by a plan thereunto annexed, that there is situated in the said parish, and also in some other parish adjoining thereto, specifying the same, a certam common highway, particularly describing the same by metes, bounds, and ad- measurement thereof, one side of which common highway ought to be made or repaired by one of such parishes, and the other side thereof by the other of such parishes), to issue their summons, with a copy of such writing and plan thereimto annexed, to the surveyor or one of the surveyors of the highways of such other parish, to apj^eai" before them on a day to be mentioned in such summons, not more than four- teen days, nor less than seven days from the day of the date of such summons ; and that in case the parties shall then ajipear before such justices, they may then proceed finally to decide the matter in the manner hereinafter mentioned, in case all the parties shall consent thereto : but in case the surveyor summoned shall not appear on such first summons, or appearing, shall require further time, the said jus- tices shall adjourn the fm'ther consideration of the matter for any further tune, not more than twenty-one days, nor less than fourteen days from the day of such adjournment, of which the sm-veyor not appearing shall have notice ; on which day the said justices shall pro- Sect. II.] REPAIR or HIGHWAYS. 203 ceed to hear the parties and their witnesses, and whether the party sum- moned does or does not appear, shall proceed to examine and finally detennine the matter in form following: (that is to say,) That it shall and may be lawful for such justices, and they are hereby required to divide the whole of such common highway, by a transverse line cross- ing such highway, into two equal parts, or into two such unequal parts and proportions as, in consideration of the soil, waters, floods, the ine- quality of such highway, or any other circumstances attending the same, they, in their discretion, shall think just and right; and to declare, ad- judge, and order, that the whole of such highway, on both sides thereof in one of such parts, shall be maintained and rejiaired by one of such parishes, and that the whole of such highway on both sides thereof in the other of such parts shall be maintained and repaii-ed by the other of such parishes ; and shall cause such their oi'dcr, and a plan of such highway, and the allotment thereof as bel'ore mentioned, to be fairly delineated on paper or parchment, and filed \^ith the clerk of the peace of the county in which such highway shall happen to lie ; and shall also cause such posts, stones, or other boundaries, to be placed and set up in such highway as in their judgment shall be necessary for ascertaining the division and allotment aforesaid." (34 G. 3. c. 64. s. 1.) Parishes to repair parts allotted.] " And, that from and after such order and plan shall be so filed with the clerk of the peace as afore- said, such parishes, and the inhabitants thereof respectively, shall be bound, as of common right, to maintain and keep in repair such parts of such common highway so allotted to them as aforesaid ; and shall be liable to be prosecuted and indicted for neglect of such duty, and shall in all respects whatsoever be liable and subject to all the pi'ovi- sions, regulations, and penalties contained in any act or acts of Par- liament for the repair of the highways which are or shall be in force, in like manner as they are liable and subject to with I'espect to the repair of any other common highway within such parishes respec- tively, and also shall be discharged from the repair of such parts of such highway as shall not be included m their respective allotments.'* (Id. s. 2.) How Costs defrayed.] "All costs, charges, and expenses to be in- cuiTed by reason of any of the proceedings before mentioned, shall be borne and defrayed by such two parishes, the same being settled and ascertained by such two justices ; and in case the said parties shall refuse or neglect to pay and discharge their respective share of such costs and expenses, it shall and may be lawful for either of such jus- tices, or any other justice of the peace for the said county, riding, or 204 HIGHWAY ACTS. [Chap. VIII. division, to levy tlie same by distress and sale, with the costs of such distress, on the goods and cliattels of any surveyor of the highways of the parish, so refusing or neglecting to defray such costs and charges as aforesaid." (34 Geo. 3. c. 64. s. 3.) Boundaries not otherioise changed.^ " Nothing in this act con- tained shall extend, or be construed to extend, to affect, change, or alter, in any manner whatsoever, any boundaries of counties, lordships, hundreds, manors, or any other division of public or private property, nor the boundaries of any parishes, othenvise than for the purpose of amending and keeping in repair such particular portion of the high- ways, in the manner hereinbefore mentioned." (Id. s. 4.) Bodies Politic, <5fc. 7natj adopt the Act.] " Nothing herein con- tained shall relate, or be constnied to relate, to any highways, the repair of any part of which belongs to any bodies politic or corporate, township, or other such place, or to any private person or persons, by the reason of tenure of any lands, or otherwise howsoever, but that the same shall be construed to relate to such highways, the repair of which belongs to parishes only : Provided always, that in case any such body politic or corporate, to\raship, or other such place, or any private person or persons as aforesaid, or any other person or per- sons who shall be bound by law to repair one side of any part of any common highway, shall be desirous that the same should be placed under the regulations of this act, and that a division or allotment thereof should be made, according to the provisions thereof, and the parties who are bound to the repair of the other side of the said high.. ay shall consent thereto, it shall and may be lawful for such two justices to make an order for the division and allotment of such highway, and such order, when tiled with the clerk of the peace, shall have the like force and effect, to all intents and pui-poses what- soever, as is herein directed with respect to the like order when parishes only are concerned." (Id. s. 5.) Appeal to Quarter Sessions.] " It shall and maybe lawful for either of the two parishes, between whom any such allotment of any highway shall be made by virtue of this act, by an order in vestry, specially called for that purpo.^e, to appeal to the quarter sessions of the peace for the county where such parishes shall lie, to be holden next after the time when such order and plan shall be filed with the clerk of the peace as aforesaid, and not othenvise ; and that upon the hearing of such appeal, the justices at such quarter sessions shall make such order as shall appear to them to be just, either by affirming, quashing, or amending the order of the two justices, and shall allow costs to either party, as in their discretion they shall think right ; which order Sect. II.] KEPAIR OF HIGHWAYS. 20-'> of the quarter sessions shall not be removed by writ of certiorari or otherwise, but shall be final to all intents and purposes whatsoever." (Id. s. 7.) Materials hoiv procured.] " For the better repairing, and keeping in repair, the said highways, and providing of materials for that pur- pose, be it enacted. That it shall and may be lawful to and for every surveyor, to be appointed as aforesaid, to take and carry away, or cause to be taken and carried away, so much of the rubbish or refuse stones of any quarry or quarries lying and being within the parish, town- ship, or 2>lace where he shall be surveyor, (except such as shall have been got by the surveyor of any turnpike road,) without the license of the owner or owners of such quarries, as they shall judge necessary for the amendment of the said highways ; but not to dig or get stone in such quarry without leave of the o\vner thereof : And also, that it shall and may be lawful for every such surveyor, for the use afore- said, in any waste land or common ground, river or brook, within the parish, township, or place for which he shall be surveyor, or within any other parish, to^vnship, or place wherein gravel, sand, chalk, stone, or other materials are respectively likely to be found, (in case sufficient cannot be conveniently had within the parish, township, or place, where the same are to be employed, and sufficient shall be left for the use of the roads in such other parish, township, or place,) to search for, dig, get, and carry away the same ; so that the said surveyor doth not thereby divert or inteiTupt the course of such river or brook, or prejudice or damage any building, highway, or ford, nor dig or get the same out of any river or brook within the chstance of one hundred feet above or below any bridge, nor withhi the like distance of any dam or wear ; and likewise to gather stones lying upon any lands or grounds within the parish, township, or place where such highway shall lie, for such service and purpose, and to take and carry away so much of the said materials as by the dis- cretion of the said surveyor shall be thought necessary, to be employ- ed in the amendment of the said highways, without making any satisfaction for the said materials ; but satisfaction shall be made for all damages done to the lands or grounds of any person or persons by caiTying away the same, in the manner hereinafter directed, for getting and carrying materials in inclosed lands or grounds : but no such stones shall be gathered without the consent of the occupier of such lands or grounds, or a license from a justice of the peace for that pur- pose, after having summoned such occu])ier to come before hhn, and heard his reasons, if he sliall appear and give any, for refusing his consent." (13 G. 3. c. 78. s. 27.) 206 HIGHWAY ACTS. [Chap. VIII. Not to collect Beach.] " Provided, That nothing in this act contained relative to the gathering ov getting of stones, shall ex- tend to any quantity of land {being private property) covered with stones thrown up by the sea, commonly called beach." (13 Geo. 3. c. 78. s. 28.) Materials got from Inclosed Grounds.'] " That it shall and may be lawful for every such surveyor, for the use aforesaid, to search for, dig, and get sand, gravel, chalk, stone, or other materials, if sufficient cannot conveniently be had within such waste lands, common groimds, rivers, or brooks, in and through any of the several or inclosed lands or gi'ounds of any person or persons whomsoever, within the parish, township, or place where the same shall be wanted ; or by license from two justices of the peace, at a special sessions, within any other parish, township, or place, adjoining or lying near to the highway for which such materials shall be required ; if it shall appear to such jus- tices that sufficient materials cannot be conveniently had in the parish, township, or place, where such highways lie, or in the waste lands, or conmion grounds, rivers, or brooks, of such adjacent parish, township, or place, and that a sufficient quantity of materials will be left for the use of the parish, township, or place where the same shall be, (such lands or grounds not being a gai'den, yard, avenue to a house, lawn, park, paddock, or inclosed plantation ;) and to take and cany away so much of the said materials as by the discretion of the said suiTeyor shall be thought necessary to be employed in the amendment of the said highways : the said surveyor making such satisfaction for the damage to be done to such lands or grounds by the getting and carry- ing away the same, as shall be agreed ujion between him and the owner, occupier, or other person interested in such lands or grounds respectively, in the presence, and with the ajiprobation of two or more substantial inhabitants of such parish, township, or place ; and in case they cannot agree, then such satisfaction and recompense shall be settled and ascertained by order of one or more justice or justices of the peace of the limit where such land or gi-ound shall lie : (see " Re- compense for Damage," infra:) and in such places where, from the want of other materials, burnt clay may be substituted in the place thereof, it shall and may be lawful for the surveyor to dig clay in such places as he is hereby authoiized to dig chalk or gravel, and to dry the same upon the lands adjoining, and to bum the same upon any waste lands or conmtion groimds, and to cany such clay in such manner as other materials are allowed to be earned by this act, upon making such satisfaction for the damages within the several inclosed lands ur grounds, wlierc such clay shall be placed or carried, as Sect. II.] REPAin OF HIGHWAYS. 207 herein directed with regard to other materials : Provided, lliat when the owner of any such inclosed lands, shall have occasion for any such materials lying within the same for the repair of any highway, or other roads or ways upon his estate, or which he shall be under obligation to repair, and shall give notice to such surveyor that he apprehends there will not be sufficient for those pur})oses, and also for the use of the public highways, then, and in every such case, the surveyor shall not be permitted to dig or take such materials without the consent of such owner, or an order of two justices of the peace, after having summoned and heard the said owner or occupier, or his steward or agent; which justices are hereby authorized to inquire into the nature and circumstances of the case, and to pennit or restrain such power in such manner, and under such directions, as to them shall seem just." (Id. s. 29.) Recompense for Damage.'] The amount must be ascertained in the mode prescribed by the above section. Thus where surveyors broke a new way over plaintiff's land, in order to cany such materials, though an old but circuitous road existed before, and after an action of tres- pass brought against them, paid money into court by way of amends, under the 79th section, it was held, that the sufficiency of such amends could not be questioned at Nisi Prius, the statute having re- ferred the quantum of amends, if not agreed upon between the parties, to the decision of the justices. But it seems to be competent to the plaintiff in such action to show, that the making of such new road was maliciously and wantonhj done, and not for the necessary or con- venient carriage of the materials over the land ; and in such case he would not be concluded by the amends tendered, or paid into court, (Boyfield v. Porter, 13 East, 200.) See also the decision upon similar provisions, in a local Turnpike act. (R. v. Manning, 2 Ken- yon's Rep. 561 ; 1 Burr. 377.) Pits, ^c. to be filled up.} "That if any surveyor, or person employed by him, shall, by reason of the searching for, digging, or getting any gravel, sand, stones, chalk, clay, or other materials for repairing any highways, make, or cause to be made, any pit or hole in any such lands or grounds, rivers or brooks, as aforesaid, wherein such mate- rials shall be found, such sm'veyor, person or persons, shall forthwith cause the same to be sufficiently fenced off, and such fence supported and repaired, during sucli time as the said pit or hole shall continue open ; and shall, within three days after such pit or hole shall be opened or made, where no gravel, stones, or materials shall be found, cause the same to be forthwith filled up, levelled, and covered with the 208 HIGHWAY ACTS. [Chap. VIII. turf or clod which was dug out of the same ; and where any such ma- terials shall he found, within fourteen days after having dug up suf- ficient materials in such pit or hole, cause the same to he filled up, sloped down, or fenced off, and so continued ; and every surveyor shall, within twenty days after he shall he appointed to that office, cause all the said pits and holes which shall then be open, and not likely to he further useful, to be filled up, or sloped down, in manner aforesaid ; and if they are likely to be further useful, he shall secure the same by posts and rails, or other fences, to prevent accidents to persons or cattle : and in case such surveyor, person or persons, shall neglect to fill up, slope down, or fence off, such pit or hole, in manner and within the time aforesaid, he or they shall forfeit the sum of ten shillings for every such default ; and in case such sun^eyor, person or jjersons, shall neglect to fence off such pit or hole, or to slope down the same as hereinbefore directed, for the space of six days after he or they shall have received notice for either of those purposes from any justice of the peace, or from the owner or occupier of such several ground, river, or brook, or any person having right of common within such common or waste lands as aforesaid, and such neglect and notice shall be proved upon oath before one or more of the said justices of the peace, such surveyor, person or persons, shall forfeit and pay any sum not exceeding ten pounds, nor less than forty shillings, for every such neglect, to be detennined and adjudged by such justice or jus- tices, and to be laid out and applied in the fencing off, filling up, or sloping down, such pit or hole, and toward the repair of the roads in the parish, township, or place, where the offence shall be committed, in such manner as the said justice or justices shall direct and appoint; which forfeiture, in case the same be not forthwith paid, shall be leWed as other forfeitures are hereinafter directed to be levied." (13 G. 3. c. 78. s. 31.) Materials dug for other Parish.] " That no stone, gi'avel, or ma- terials, to be dug for the use of any other parish, township, or place, than that wherein the same are found, shall be removed or earned fi'om the place where they shall be so dug at any other time than be- tween the first day of April and the first day of November, or in the time of hard frost in the winter season." (Id. s. 32.) Damaging Mills, i^c. Penalty.] " That if any person shall dig, or cause to be dug, materials for the highways, contraiy to the direction of this act, whereby any bridge, mill, building, dam, highway, ford, mines, or tin works, may be damaged or endangered, every offender therem shall forfeit, for every such offence, any sum not exceeding Sect. III.] WIDENING AND DIVEUTING HIGITWVYS. ^ 20!) five pounds, nor less than twenty shillings, at the discretion of the court or justices before whom complaint thereof shall he made." (Id. s. 33.) Contracts for getting Materials.^ " That in eveiy parish, town- ship, or place, where a sufficient quantity of stone, gi'avel, chalk, or other materials, cannot he provided and carried by the labourers and teams required by this act to perform statute duty within such parish, town- ship, or place, the said surveyor sha'l and is hereby required to con- tract for the getting and carrying thereof (in th« presence of the said assistant, if any such shall be appointed), at a meeting to be held for that ])ui'pose, of which ten days' notice in writing shall 1>€ given, by fixing the same upon the door of the church or chapel of such parish, township, or place, or if there be no church or chapel, at the most public place there ; which notice shall specify the work to be done, and the time and place for letting thereof : And if any survey- or shall have any part, share, or interest, directly or nidirectly, in any such contract, or in any other contract or bargain for work or ma- terials, to be made, done, or provided, upon, for, or on account of any of the highways, roads, bridges, or other works whatsoever, under his care or management, or shall upon his own account, directly or indi- rectly, let to hire any team, or sell or dispose of any timber, stone, or other materials, to be used or employed in making or repairing such roads, bridges, or other works as aforesaid, (unless a license ui vmting for the sale of any such materials, or to let to hire any such team, be first obtained from some justice of the peace within that limit,) he shall forfeit for every such offence the sum of ten pounds, and be for ever after incapable of being employed as a surveyor with a salary under the authority of this act." (Id. s. 49.) SECTION III. — WIDENING AND DIVERTING HIGHWAYS. 13 G. 3. c. 78. ss. 15, 16, 17, 18. 20, 21, 22; 55 G. 3. c. 68. ss. 2, 3, 4, 5. Width of Cartways, ^c] " Survey oi's of the highway shall, and they are hereby required to make, support and maintain, or cause to be made, supported and maintained, every public cartway leading to any market town twenty feet wide at the least ; and every public horseway or driftway, eight feet wide at the least, if the ground, be- tween the fences inclosing the same, will admit thereof." (13 G. 3. c. 78. s. 15.) Roads widened or diver ted. '\ " That where it shall appear upon the view of any two or more of the said justices of the peace, that the r 210 HIGHWAY ACTS. [Chap. VIII. ground or soil of any highway between the fences thereof, is not of suf- ficient breadth, and may be conveniently widened and enlarged ; or that the same cannot be conveniently enlarged, and made commodious for travellers, without diverting and turning the same ; such justices shall, and they are hereby empowered, within their respective jurisdic- tions, to order such highways respectively to be widened and enlarged, (see "Widening Roads," ;?os/,212.) or diverted and turned, in such man- ner as they shall think fit ; so that the said highways, when enlarged and diverted, shall not exceed thirty feet in breadth ; and that neither of the said powers do extend to pull down any house or building, or to take away the ground of any garden, park, paddock, court, or yard : and for the satisfaction of the person or persons, bodies pohtic or cor- porate, who are seised or possessed of, or interested in their own right, or in trust for any other person or persons, in the said ground that shall be laid into the said highways, respectively so to be en- larged, or through which such highway, so to be diverted and turned, shall go ; the said surveyor, under the diiection and with the approba- tion of the said justices, shall and is hereby empowered to make an agreement with him, her, or them, for the recompense to be made for such ground, and for the making such new ditches and fences as shall be necessary, according and m proportion to their several and respec- tive interests therein, and also with any other person or persons, bodies politic or coi-porate, that may be injured by the enlarging, altering, or diverting such highways respectively, for the satisfaction to be made to him, her, or them respectively, as aforesaid. And if the said surveyor, under the direction and with the approbation of the said justices, cannot agree with the said person or persons, bodies politic or corporate, or if he, she, or they, cannot be found, or shall refuse to treat, or take such recompense or satisfaction as shall be offered to them respectively by such smTeyor ; then the justices of the peace, at any general cj[uarter sessions to be holden for the limit wherein such ground shall lie, upon certificate in writing, signed by the justices making such view as aforesaid, of their proceedings in the premises, and upon proof of fourteen days' notice in writing having been given by the surveyor of such paiish, township, or place, to the owner, occupier, or other person or persons, bodies poUtic or corpo- rate, interested in such ground, or to his, her, or their guardian, trustee, clerk, or agent, signifying an intention to apply to such quarter sessions for the pui-jjose of taking such ground, shall impannel a jury of twelve disinterested men out of the persons returned to serve as jur}^men at such quarter sessions : and the said jury shall, upon their oaths, to the best of their judgments assess the damages to be Sect. III.] WIDENING AND DIVERTING HIGHWAYS. 211 given, and recompense to be made, to the owners and others interest- ed as aforesaid in the said gi-ound, for their respective interests, as they shall think reasonable, not exceeding forty years' purchase, for the clear yearly value of the ground so laid out ; and likewise such recompense as they shall think reasonable, for the making of new ditches and fences on the side or sides of the said highways that shall be so enlarged or diverted, and also satisfaction to any person or per- sons, bodies politic or coi-porate, that may be otherwise injured by the enlarging or diverting the said highways respectively ; and upon pay- ment or tender of the money so to be awarded and assessed to the person or persons, bodies politic or corporate, iulitled to receiv^e the same, or leaving it in the hands of the clerk of the peace of such limit, in case such person or persons, bodies ]3olitic or corporate, cannot be found, or shall refuse to accept the same, for the use of the owner of, or others interested in the said ground, the interest of the said person or persons, bodies politic or corporate, in the said ground, shall be for ever divested out of them ; and the said ground, after such agreement or verdict as aforesaid, shall be esteemed and taken to be a public highway, to all intents and jiurposes whatsoever : saving nevertheless to the owner or owners of such ground all mines, minerals, and fossils lying under the same, which can or may be got without breaking the surface of the said highway ; and also all timber and wood growing upon such ground, to be fallen and taken by such owner or owners within one month after such order shall have been made, or in default thereof, to be fallen by the said surveyor or surveyors within the re- spective months aforesaid, and laid upon the land adjoining, for the benefit of the said owner or owners. And where there shall not ap- pear sufficient money in the hands of the surveyor or surveyors, for the purposes aforesaid, then the said two justices, in case of agree- ment, or the said court of quarter sessions, after such verdict as afore- said, shall order an equal assessment to be made, levied, and collected, upon all and every the occupiers of lands, tenements, woods, tithes, and hereditaments, in the respective paiishes, townships, or places where such highways shall lie, and direct the money to be paid to the person or persons, bodies politic or corporate, so interested, in such manner as the said justices or court of quarter sessions respec- tively shall direct and appoint ; and the money thereby raised shall be employed and accounted for according to the order and direc- tion of the said justices, or court of quarter sessions, respectively, for and towards the purchasing the land to enlarge or divert the said highways, and for the making the said ditches and fences, and also satisfaction for the damage sustained thereby ; and the said as- V 9. 212 - HIGHWAY ACTS. [Chap. VIII. sessment, if not paid within ten days after demand, shall, by order of the said justices, or court of cparter sessions respectively, be levied by the said surveyor in the manner hereinafter mentioned : Pro- vided, That no such assessment to be made in any one year, shall exceed the rate of sixpence in the pound of the yearly value of the lands, tenements, woods, tithes, and hereditaments so assessed.'* (Id. s. 16.) Widening Roads, <5fc.] The authoiity given by the above section to order any highway to be widened, extends to roads repairable ratione tenura, and disobedience in such case may be proceeded against sum- marily under the act, or by indictment at common law. (R. v. Balme, Cowp. 648.) This is the only enactment which gives justices any authority to divert and turn a road, without the consent of the owner of land through which the new road is to be earned ; and it is doubted whether the order need specify the names of such owners, although the form. No. 21 in the schedule, contains blanks for the purpose. (R. V. Casson, 3 Dowl. & Ryl. 40.) As, however, the 19th section is no longer operative, being in part repealed, and in part obsolete, (see Waite v. Smith, 8 T. R. 133 ;) the proceedings for diverting and turning roads, will in most cases be conducted under the 55 Geo. 3. c. 68, subject of course to the exceptions and conditions in the other sections of the fomier act. Old Highway to be sold.] " That when any such new highways shall be made as aforesaid, the old highway shall be stopped up, and the land and soil thereof shall be sold by the said surveyor, ^\^th the approbation of the said justices, to some person or persons whose lands adjoin thereto, if he, she, or they, shall be willing to purchase the same ; if not, to some other person or persons for the full value thereof: but if such old road shall lead to any lands, house, or place, which cannot, in the opinion of such justices respectively, be accom- modated with a convenient way and passage from such new highway which they are hereby authorized to order and lay out, if they find it necessary, then and in such case, the said old highway shall only be sold subject to the right of way and passage to such lands, house, or place respectively, accordmg to the ancient usage in that respect ; and the money arising from sucli sale, in either of the said cases, shall be ap- plied towards the purchase of the land where such new highway shall be made : and upon payment or tender of the money so to be agreed for as aforesaid, and upon a certificate being signed by the said two justices, or by the chainnan of the said court of quarter sessions, in case the same shall be determined there, describing the lands so sold, and expressing the sum so agreed for, and directing to whom the same Sect. III.] WIDENING AM) DIVERTING HIGHWAYS. 213 shall be palil, and upon the purchasers taking a receipt for such pur- chase-money from the person entitled to receive the same, by an in- dorsement on the back of such certificate, the soil of such old highway shall become vested in such purchaser and his heirs ; but all mines, minerals, and fossils, lying under the same, shall continue to be the property of the person or persons who would from time to time have been entitled to the same if such old highway had continued there." (13 Geo. 3. c. 78. s. 17.) Costs, by whom payable.} " That in case such jury shall give in and deliver a verdict for more monies as a recompense for the right, interest, or property of any person or persons, bodies politic or corpo- rate, in such lands or grounds, or for the making such fence, or for such damage or injury to be sustained by him, her, or them re- spectively, as aforesaid, than what shall have been proposed and offered by the said surveyor, before such application to the said court of quarter sessions as aforesaid ; that then and in such case the costs and expenses attending the said several proceedings shall be borne and paid by the suiTeyor of the said highway out of the monies in his or their hands, or to be assessed and levied by virtue and under the powers of this act : but if such jury shall give and deliver a verdict for no more, or for less monies than shall have been so offered and proposed by the said surveyor, before such application to the said court of quarter sessions ; that then the said costs and ex- penses shall be borne and paid by the person or persons, bodies po- litic or corporate, who shall have refused to accept the recompense and satisfaction so offered to him, her, or them, as aforesaid." (Td. s. 18.) Lands between Old Road Fences.] " That no common land, lying between the fences of any old highway to be stopped up or inclosed by virtue of this act, shall be inclosed ; and where the land lying be- tween the fences of such highway, not being common land, shall, upon a medium, exceed thirty feet in breadth, and not extend to fifty feet in breadth, the same shall not be stopped up or inclosed, until satisfaction shall be made to the owner of such land, for so much thereof as shall exceed the said breadth of thirty feet; and if the par- ties cannot agree in the satisfaction so to be made, the same shall be adjusted by the said justices, or the jury, if a jury shall be impanelled ; and if the land between the fences inclosing such highways, not being common land, shall exceed fifty feet in breadth upon a medium, or if the said old road, so to be diverted or turned, shall lie through the open field or ground belonging to any particular person or fiersons, such person or persons, and also the person or persons entitled to the 214 HIGHWAY ACTS. [Chap. VIII. land between tlie fences on the side of such higliway, shall respec- tively hold and enjoy the land and soil of such old highway, and pay to the surveyor for the use of the highways so much money as shall be agreed upon between the parties ; or if they cannot agree, so much as shall be deemed and adjudged by the said justices or jmy, if such jury shall be impanelled, as aforesaid, to be adequate to the purchase of it, estimating such higliway at thuty feet in breadth upon an average." (Id. s. 20.) Satisfaction for Old or New Footicays."] " And be it further enacted. That where any footway shall be diverted by virtue of this act through the land belonging to the same person who owned the land through which such old footway lay, the same shall be adjudged and deemed an exchange only, and no satisfaction or compensation shall be made, unless the land to be used for such new footway shall be of greater length, and of gi'eater value, than the land used for such old footway ; and where the said footway shall not be turned through the lands belonging to the same person, the damage occasioned by such old footway to the lands through which it lay, if the parties in- terested shall not agree in adjusting the same, shall be adjudged by two indifferent persons, the one to be named by the owner of the land, and the other by the said two justices; and if the persons so to be nominated cannot agree therein, they shall choose some thii'd per- son to adjudge the same, whose determination shall be final, and the money at which such damages shall be so assessed, shall be applied in making satisfaction to the owner or owners of the land through which such new footway shall be m.ade." (Id. s. 21.) Unnecessary Higluvays stopped.'] " That if in any parish, town- ship, or place, where any highway shall be diverted and turned by viitue of this act, it shall appear to the justices, who are hereby au- thorized to view or inquire into the same, that there are other high- ways within such parish, township, or place, besides that so to be di- verted and turned, which may, without inconvenience to the public, be diverted into such new highway hereby authorized to be made, or into any other highway or highways within such parish, township, or place, and the charge of repairing such highway or highways, may be thereby saved to such parish, township, or place, it shall and may be lawful for such justices to order such highway or highways, which shall appear to them unnecessary, to be stopped up, and the soil thereof sold in such manner, and subject to such restrictions, and such right of appeal to the party or parties aggi'ieved thereby, as are hereinbe- fore respectively directed and given concerning the highways to bo stopped up or inclosed." (Id. s. 22.) Sect. III.] WIDENING AND DIVERTING HIGHWAYS. 215 Highways turned by Justices at Sessions.'] " That when it shall appear, upon the view of any two or more of the said justices of the peace, that any jDublic highway, or public bridleway, or footway, may be diverted, so as to make the same nearer, or more commodious to the public, and the owner or owners of the lands and gi'ounds through which such new highway, bridleway, or footway, so proposed to be made, shall consent thereto by writing under his or their hand and seal, or hands and seals, (see " Consent oi Owner," post, 216.) it shall and may be law- ful, by order of such justices at some special sessions, to divert and turn and to stop up such footway, and to divert, turn, stop up, and inclose, sell and disjjose of such old highway or bridleway, and to ]mrchase the ground and soil for such new highway, bridleway, or footway, by such ways and means, and subject to such exceptions and conditions, in all respects, as in the said recited act mentioned with regard to highways to be widened or diverted : and also when it shall appear, upon the view of any two or more of the said justices of the peace, that any pubhc highway, bridleway, or footway, is unnecessary, it shall and may be lawful, by order of such justices, or any two of them, to stop up, and to sell and dispose of such unnecessary highway, bridle- way, or footway, by such ways and means, and subject to such excep- tions and conditions, in all respects, as in the said recited act is men- tioned in regard to highways to be widened and diverted, (see " Public Right in New Highways," post, 217.) except that the money to arise from such sale, where, by the said act, it would be applicable to the purchase of the ground and soil of the new highways or bridleways therein iflentioned, shall be paid to the surveyor or surveyors, and be applied towards the general repairs of the highways and bridleways of the parish, township, or place within which the said highway, bridle- way, or footway, so stopped up shall be situate : Provided, That in the several cases before mentioned, a notice, in the fonn or to the effect of schedule (A) to this act annexed, shall be affixed in legible characters at the place, and by the side of the said highway, bridle- way, or footway, from whence the same is directed to be tmned, di- verted, or stopped up, and also inserted in one or more newspaper or newspapers published, or generally circulated, in the county where the parish, township, or place, in which the highway, bridlewaj', or footway, so ordered to be diverted and turned, or stopped uji, {as the case may be,) shall lie, [or in case no such newspaper shall be so pub- lished or circulated in such county, then in any newspaper or news- papers published or circulated in the nearest adjoining county,) for three successive weeks after the making of such order ; and a like no- tice shall be affixed to the door of the church or chapel of every 216 HIGHWAY ACTS. [Chap. VIII. parish, township, or place, in which such highway, bridleway, or footway, so ordered to be diverted, turned, or stopped up, or any part thereof, shall lie, on three successive Sundays subsequent to the making of such order ; and the said several notices having been so published, the said order shall, at the quarter sessions which shall be holden within the limit where the highway, bridleway, or footway, so diverted and turned, or stopped up, shall lie, next after the expiration oi four weeks, (see " Confirming Order," pos/, 217,) from the first day on which such notices shall have been published as aforesaid, be returned to the clerk of the peace m open court, and lodged with him ; and the said order shall at such quarter sessions be confirmed, and by the clerk of the peace enrolled amongst the records of the said court of quarter sessions." (55 Geo. 3. c. 68. s. 2.) Diverting, stopping up, ^c.~\ The 19th section of the fonner act bemg repealed, the directions in the above section must be pursued. It has, however, been doubted whether commissioners authorized by an Inclosure act to stop up ways, &c. are bound to give the notices re- quired by this statute. (R. v. Townsend, 5 Bam. & Aid. 424.) There are other decisions upon Inclosure acts, some of which it may be expedient to notice. Thus, where a public footway passed over a common and across a fann-yard, and the commissioners were not to stop up any old road leading over land not to be inclosed without the concuiTence of two magistrates, (see 41 Geo. 3. c. 109. s. 8;) and they stopped up the footway without such concurrence, it was held, that the right of way over the fami-yard was not extinguished. (Logan V. Burton, 5 Barn. & Cres. 513 ; 8 Dowl. & Ryl. 299; Bar- ber v. Rand, 9 Price, 68.) But where a discretion is vested in com- missioner, by a local act, as to stopping up roads, &c., though roads of a particular kind are excepted from the general operation of the act, they may stop up any of them as they may deem proper. (De Beauvoir V. Welch, 7 Bam. & Cres. 266.) Consent of Owner ; ante, 215.] Where a highway is proposed to be made through private propeity, there nuist be a consent of the person who is owner of the estate at the time ivhen the order is actually made ; and therefore where an order recited that the justices had received evi- dence of the consent of J. T. " in his lifetime," and it appeai"ed that another person was owner at the time the order w as made, it was held insufficient. (R. v. Kirk, 1 Bam. & Cres. 21 ; 2 Dowl. & Ryl. 52.) So an order signed and sealed, in his own name, by the fl//orH^y of the party, is alike invalid, though authorized by power of attorney ; but which was not enrolled at the quarter sessions. (R. v. Crewe, 3 Dowl. & Ryl. 6 ; 1 Barn. & Cres. 622.) And the inquisition of damages Sect. III.] WIDENING AND DIVERTING HIGHWAYS. 217 by a jury under a similar provision in a Local act, authorizing trustees to turn roads tlirough private lands, was quashed hy the Court of King's Bench, because it did not appear on the face of the proceed- ings that any notice had been given to the owners. (R. v. Bagshaw, 7 T. R. 363.) Public Right in New Highways ; ante, 215.] By the 17th section of 13 Geo. 3, {a7ite, 212,) justices have power to stop uji an old highway only when the new highway shall be made, and it ought to ai)i3ear that the whole of the new road substituted for the old one, is a highway over which the pubUc have as good and pennanent a right, as they had over the old one. It follows therefore, if the new or substituted way be a new line of turnpike road, which may be made so for a term of years only, it must be shown, that the public have secured to them, by the order of the magistrates, a right of using the new road, co-extensive with that which they had over the old road ; and whether this right be given to the public in such case by a Local act, creating the new turnpike road, or if the road has been diverted under the General Turnpike act, (3 G. 4. c. 126 ;) and the new line substituted, that ought to be shown. (R. V. Winter, 8 Barn. & Cres. 785.) It is questionable, whether the magistrates can divert a road par- tially, so as to vary the hne of road for carriages, but continue it for foot passengers. It may be open to the objection, that the parish will be thus bound to keep two roads in repair instead of one. (Id.) Conjirming Order ; an^e, 216.] The computation of the four weeks must be made from the first day of giving that description of notice which is last published ; and therefore, where the notice of the order for di- verting a path was given on the 20th of December, and the order was confirmed on the 17th of January, it was held iiTegular and quashed. (R. V. Crewe, 3 Dowl. & Ryl. 6 ; 1 Barn. & Cres. 622.) Although the order ought to state, on the face of it, that it was made at a special sessions, yet, where the cjuarter sessions confirmed an order, with- out proof that it was previously made at a special sessions, the Couit of King's Bench refused to uiterfere, as the question was within the cognizance of the quarter sessions, and had been detennmed by them. (IChitty'sR. 164.) Requisites of Order.] It must distinctly appear, on the face of an order for stopping up an imnecessary way, in what parish, &c. the way is situate ; and the order must also describe the length and breadth of the way to be stopped up. And scmhle that the order must be for the sale, as well as the stopping up of such way. (Rex v. Kenyon, 6 Barn. & Cres. 640 ; Davison v. Gill, 1 East, 64.) It must also be stated on the order, accorcUng to the fact, that it was 218 HIGHWAY ACTS. [Chap. VIII. made at a special sessions. (R. v. Sheppard, 3 Bam. & Aid. 414.) And in an order for stopping up a highway as unnecessary, under this act, it must be stated, that it appeared to the justices on view, that the way was unnecessary ; and, therefore, where the justices in an order merely stated that, " having upon \iew found," or it " having appeared to us" that the way was unnecessary, the court held the order insuffi- cient; for by this statement, the justices say, they had done that which the legislature required, or something else ; and it cannot be said, that, by this form of words it appears that the justices had jurisdiction. (R. V. J. J. Worcestershire, 8 Bam. & Cres. 254 ; R. v. Rogers 2 Maul. & Ryl. 289.) An 'order of justices for turning a road, reciting that they had viewed the new road, and found it to be in good condition and repair, was held to be a sufficient certificate thereof, under the 19th section of 13 Geo. 3. c. 78 ; and of coui'se will be so under the 55 Geo. 3. c. 68. s. 2 : and if the certificate be deposited with the clerk of the peace, that is an en- rolment of it Avithin the same section. Where a road is stopped up by order of justices, and a new one is substituted partly over the ground of a stranger, and partly over an accustomed road, that is a sufficient compliance with the act, provided the new road convey the pubhc to the same place as the old one did. (De Ponthieu v. Penny- feather, 1 Marsh. 261 ; 5 Taunt. 634.) Appeal by the aggrieved.] " That where any such highway, biidle- way, or footway, shall be so ordered to be stopped up or inclosed, and such new highway, bridleway, or footway, set out and appropriated in lieu thereof, as aforesaid, or where any unnecessary highway, bridle- way, or footway, shall be so ordered to be stopped up as aforesaid, it shall and may be lawful for any person or persons injured or ag- grieved by any such order or proceeding, or by the inclosure of any road or highway, by virtue of any inquisition taken upon any wiit of ad quod damnum, to make his or theii- complaint thereof, by appeal to the justices of the peace at the said quarter sessions, upon giving ten days' notice in writuig of such appeal to the surveyor of the highways of the parish, township, or place wherein such highway, bridleway, or footway shall be situated, and also affixing such notice to the door of the church or chapel of such parish, township, or place ; and the said court of quarter sessions is hereby authorized and empowered to hear, and finally determuie such appeal." (55 Geo. 3. c. 68. s. 3.) Appeal against stopping up a Way.] The right of appeal against an order for diverting a footway, seems to depend upon this section, and not on the 80th section of the 13 Geo. 3 ; (R. v. Wing, 4 Barn. & Cres. 184 ; 6 Dowl. &Ryl. 323.) But if the proceedings be under an Inclosure Sect. III.] WIDENING AND DIVERTING HIGHWAYS, 219 act, it is doubtful whether the notices required by the general statute must be given ; at all events, if such order be appealed against, on the ground that the notices have not been given, the appeal must be brought within the period prescribed by the general act, although the local statute may give a longer time. (R. v. Townsend, 5 Barn. ■& Aid. 420.) Where the pi-oceeding to stop up a road is by writ of ad quod damnum, the notices required by the above act must be given. (R. v. J. J. Essex, 1 Barn. & Aid. 373.) The appellant in his notice must state himself to be " injured" or " aggrieved," pursuant to the language of this section, or he is not entitled to be heard ; as the privilege of appeal is given to those who have sustained some special and peculiar injury, and not to any cap- tious person whomsoever. (Rex v. J. J. Essex, 5 Barn. & Cres. 431 ; 7 Dowl. & Ryl. 658.) The con-ectness of the rule laid down in this last case being questioned in a subsequent case, the court upon consideration said, " We think that if the question had now arisen for the first time, we should have been bound to decide, that the party appealing against an order for stoppmg up a footway, must, on the face of his notice, show that he is injured." (R. v. W. R. Yorkshire, 7 Bam. & Cres. 678 ; 1 Man. & Ryl. 547.) The same rule applies to local acts, authorizing trustees to stop up old roads, and which give the right to appeal to parties injured or ag- grieved, (R. V. J. J. W. R. Yorkshire, 7 Bam. & Cres. 678 ;) and, in short, in all such-like cases, where the appeal is given in terms, to the party aggrieved. a an order be made to divert a road, and at a subsequent time an- other order be made for stopping up the old road — a party aggi-ieved may appeal against the latter, though he is too late to appeal agamst the foi-mer order. (R. v. J. J. Hertfordshire, 3 Maul. & Sel. 459.) If Order confirmed, Proceedings conclusive.^ " That if no such ap- peal be made, or, being made, such order and proceedings shall be confirmed by the said court, the said inclosures may be made, and the said ways stopped ; and the proceedings thereupon shall be binding and conclusive to all persons whomsoever ; and the new highways, bridleways, and footways, so to be appropriated and set out, shall be and for ever after continue a public highway, bridleway, or footway, to all intents and pui-poses whatsoever : but no inclosures of such old highways, bridlewa3^s, or footways (except in the case of stopping up such useless highways, bridleways, or footways, as hereinbefore men- tioned) shall be made, until such new highway, bridleway, or foot- way shall be completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof; which 220 HIGHWAY ACTS. [Chap. VIII. certificate shall he returned to the clerk of the peace, and by him en- rolled amongst the records of the court of quarter sessions, next after such order as aforesaid shall have been confinned, or enrolled pur- suant to the directions herein before contained : but from and after the enrolment of such order and certificate, such old highway, bridle- way, or footway, shall be stopped up, and the soil of such old highway or bridleway sold in the manner, and subject to the reservations and restrictions in the said recited act mentioned, with respect to highways to be diverted by virtue of the said recited act." (Id. s. 4.) SECTION IV. — STATUTE DUTY. 34 Geo. 3. c. 74. ss. 4. 2. 6; 13 Geo. 3. c. 78. ss. 36, 37. 43. Proportions of Statute Labour.} The 34 Geo. 3, provides, " That the suiTeyor to be appointed by the 13 Geo. 3, together with the in- habitants and occupiers of lands, tenements, woods, tithes, and here- ditaments, within each parish, township or place, shall at proper seasons in every year use their endeavours for the repair of the high- ways, and shall be chargeable thereunto as followeth: (that is to say,) Every person keeping a waggon, cart, wain, plough, or tumbrel, and three or more horses or beasts of draught used to draw the same, shall be deemed to keep a team, draught, or plough, and be liable to perfonn statute duty with the same in the parish, township, or place, where he resides, and shall six days in every year, (if so many days shall be found necessary), to be computed from Michaelmas to Mi- chaelmas, send on every day and at eveiy place to be appointed by the surveyor, for the amending the highways in such parish, township, or place, one wain, cart, or carriage, furnished after the custom of the country, with oxen, horses, or other cattle, and all other necessaries fit to carry things for that pui-pose, and also two able men with such wain, cart, or carriage ; which duty so performed shall excuse every such person from his duty in such parish, township, or place, in respect of all lands, woods, tithes, tenements, or hereditaments, not exceeding the annual value of fifty pounds, which he shall occupy therein : and every person keeping such team, draught, or plough, and occupying in the same parish, township, or place, lands, tenements, woods, tithes, or hereditaments, of the yearly value of fifty pounds over and beyond the said }'early value of fifty pounds in resjject whereof such team duty shall be performed ; and every such person occupying lands, tene- ments, woods, tithes, or hereditaments, of the yearly value of fifty pounds in any other parish, township, or place, besides that wherein Sect. IV.] STATUTE DUTY. 221 he resides ; and every other person not keeping a team, draught, or plough, but occupying lands, tenements, woods, tithes, or here- ditaments, of the yearly value of fifty pounds, in any parish, town- ship, or place, shall in like manner respectively, and for the same number of days, find and send one warn, cart, or carriage, furnished with not less than three horses or four oxen, and one horse or two oxen, and two horses and two able men to each wain, cart, or carriage, and in like manner lor every fifty pounds per annum respectively, which every such person shall further occupy in any such parish, township, or place respectively : such wains, carts, or carriages, to be emjiloyed by the surveyor in the repairing and amending the high- ways within the parish, township, or place, where such lands, tene- ments, woods, tithes, or hereditaments shall respectively lie." Whe7i Money to he paid in lieu thereof.^ " And every person who shall not keep a team, draught, or plough, but shall occupy lands, tenements, woods, tithes, or hereditaments under the yearly value of fifty pounds in the parish, township, or place, where he re- sides, or in any other parish, township, or place, and every person keeping a team, draught, or plough, and occupying lands, tenements, woods, tithes, or hereditaments, under the yearly value of fifty pounds in any other parish, township, or place, than that wherein he resides, shall respectively contribute to the repair of the highways, and pay to the surveyor of such parish, township, or place respectively, in lieu of such duty, the sums following : videlicet, For every twenty shil- lings of the annual value of such lands, tenements, woods, tithes, or hereditaments respectively, the sum of one penny for every day's statute duty which shall be required and called for by the surveyor of such parish, township, or place respectively, in every year, not ex- ceeding six days' duty in the whole, as aforesaid; and every such person respectively shall in like manner pay the sum of one penny for every twenty shillings of the annual value of the lands, tenements, woods, tithes, and hereditaments, which he shall occupy in any such parish, township, or place respectively, above the annual value of fifty pounds, and less than one hundred pounds, and so for every twenty sbillings that each progressive and intermediate annual value of twenty shillings of the lands, tenements, woods, tithes, and hereditaments which he shall so occupy, shall fall short of the further increase of fifty pounds in every parish, township, or place, where such lands, tenements, woods, tithes, and hereditaments shall respectively lie, for every day's statute duty so to be required as aforesaid : Provided that no person keeping such team, draught, or plough, and performing duty with the same as aforesaid in the parish, township, or place. 222 HIGHWAY ACTS. [Chap. VIII. where he resides, and not occupying lands, tenements, woods, tithes, or hereditaments, withm the same, of the yearly value of thirty pounds, shall be obliged to send more than one labourer with such team, di'aught, or plough : Which said several sums shall be considered as, compositions, and shall be paid to the surveyor of the parish, town- ship, or place in which they are charged, for the use of the highways therem, at the time such compositions are to be paid under the autho- rity of the said act, or within ten days after ; or in default of such pay- ments, the said sun-eyor shall make appHcation to a justice of the peace, acting for the limit or district wherein such default shall be made, and the justice, to whom such apphcation shall be made, .shall summon the party so making default to appear at some special or other petty sessions, to be holden for such limit or district, and at which two justices at the least shall be present, to show cause why he has refused or neglected to pay such composition money; and in de- fault of appearance, or if on appearance he shall not make it appeal* to the satisfaction of the said justices that he is poor and indigent, and as such is an object desening relief, such money shall be levied by distress and sale of the goods and chattels of the person or pei"sons refusing or neglecting to pay the same, in such manner as the for- feitures for the neglect in perfonning the statute duty are hereby au- thorized to be levied, and raised : Pro-vdded always, that when, on ap-. plication as above mentioned, the justices shall think proper to •discharge any poor and indigent person from payment of the rate or composition money, such person shall at the same time be dischai-ged from any expenses which may arise in consequence of such summons and appearance," (34 Geo. 3. c. 74. s. 4.) Liability to Statute Dttti/.] In an action of tresjiass, for levying penalties upon a con\-iction for default in perfonning statute duty, upon complaint of the siureyor appointed for the whole parish, it was held, that the conviction being good upon the face of it, and being unre- versed and unappealed against, was a suflScient answer to the action. And that the plaintiff could not in such action try the question whether an occupier in one of several townshijDs within the parish was ex- empt from the bm'den of repairing the roads in other parts of the parish. The proper course would be to appeal against the ap- pomtment of one surveyor for the ivhole parish. (Fawcett v. Fowhs, 7 Bam. & Cres. 394.) In the same case it appeared that the sur- veyor called upon the planitiff to do certain statute duty, or compomid for it. The conviction stated, that he was an occupier of land in the parish, and had neghcted to do the work, but did not notice the com- position. Held, that it was unnecessary to do so, or to state tliat the Sect. IV.] STATUTE DUTY. 223 plaintiff kept a team ; for that if he did not keep a team, or had com- pounded, that was matter of defence which ought to have been urged by him in answer to the complaint. The inhabitants of a parish into which a road is turned by turnpike trustees, are not bound under these acts to do statute work there. (Wheeler v. Cooper, 1 Bla. Rep. 603 ;) though the General Turnpike acts authorize magistrates to direct it to be done on turnpike roads, when found necessary. Persons keeping a Cart or Coach, ^c] " That from and after the said twenty -ninth day of September, every person who shall not keep a team, draught, or plough, but shall keep one or more cart or carts, and one or two horses, or beasts of draught, only used to draw in each of such carts upon the highways, shall be obliged to perform his statute duty for the like number of days with such cart or carts, and horse or horses, or beasts of draught, and one labourer to attend each cart, or to pay for the lands, tenements, woods, tithes, and here- ditaments, which he shall occupy, according to the rate hereinafter mentioned, at the option of the surveyor ; and every person who shall keep a coach, postchaise, or chair, or other wheel carriage, and not keep a team, draught, or plough, nor occupy lands, tenements, woods, tithes, or hereditaments, of the amiual value of fifty pounds in the parish, township, or place, where he shall reside, shall pay to the sur- veyor one shilling in respect of every such day's statute duty for every horse which he shall draw m any such carnage, or shall pay according to the value of the lands, tenements, or hereditaments which he shall occupy, according to the rate hereinafter mentioned, at the option»of the surveyor : And if the said teams, draughts, or ploughs, or any of them, shall not be thought needful by the surveyor on any of the said days, then every such person who should have sent any such team, draught, or plough, according to the directions aforesaid, shall, according to the notice to be given as hereinafter directed, send unto the said work for every one so spared three able men, there to labour as aforesaid, or pay to the said surveyor the sum of four shillings and sixpence in lieu thereof, at the option of the surveyor : and all such persons as aforesaid shall respectively have and bring with them such shovels, spades, picks, mattocks, and other tools and instruments as are useful and proper for the purposes aforesaid ; and all the said persons and carriages shall diligently perfonn the work and labour to which they shall be appointed by such survej^or, for eight hours in every of the said days, within such parish, township, or place, or in getting and carrying materials in and from any other parish, township or place, to be employed in the repair of the highways of the parish. 224 niGHVVAY ACTS. [Chap, VIII to\TOship, or place, for which they shall be requii'cd to perfonn such duty and labour as aforesaid : and if any person, sending a team as aforesaid, shall not send a sufficient labourer besides the driver (except as before mentioned), or if any such labourer or driver, or the driver of any cart recjuired to perform statute duty as aforesaid, shall refuse to work and labour during the time above mentioned, according to the directions of the suiTeyor, or if any driver shall refuse'to caiTy proper and sufficient loads, it shall and may be lawful for such suiTeyor to discharge every such team, cart, or labourer, and to recover from the owner of every such team or cart the forfeiture which every such person or persons would have incuiTed, by virtue of the said act, in case no such team, cart, or labourer respectively, had been sent." (34 Geo. 3. c. 74. s. 2.) Half Team, Cart, or Waggon.'] " The surveyor, where the em- plo_ynnent for teams is of such sort that two horses v\-ill be sufficient for one cart, or where a stand cart with one horse shall be necessary, may call upon any person liable to send a team, or draught, or plough, by vii'tue of this act, who keeps one or more cart or carts, and three or more horses, to send such cart or carts, horse or horses, to perform his statute duty as the surveyor shall find most convenient, and shall direct ; and the surveyor shall allow every such stand cart and one horse as half a team, and every cart and two horses as two-thirds of a team : and if a waggon shall be found necessary for any particular business, the svn'veyor may require the duty, or any part thereof, to be performed with such waggon, by any person who keeps one ; which directions of the surveyor shall be obseiTed, or the person Uable to perform such duty shall forfeit such sum as the duty so required of him shall bear in proportion to the forfeiture hereby inflicted for every neglect in performing duty with a team, draught, or plough." (13 Geo. 3. c. 78. s. 36.) Statute Duty.'] "Every surveyor shall, from tune to time, give to or cause to be left at the house or usual place of abode of every person or persons so liable to perform such duty or labour as in this act di- rected, four tlays' notice at the least of the day, hour, and place, upon which each of the said day's duty shall be required to be pcrfomied : And every person or persons making default in finding and sending each wain, cart, or carriage, furnished as aforesaid, and such able men with the same as herein required, or in performing the said duty at the time and place, and in the manner by this act directed, shall for every such default or neglect in sending such wain, cart, or carriage, with such men as aforesaid, forfeit the sum of ten shillings ; and for every default in sending every cart with one horse and one man. Sect. IV.] STATUTF. DUTY. 22-5 three shillings ; and for not sending every cart with tvro horses and one man, five shillings : and every person or persons making default in sending any such lahourer, and every person making default in performing such labour at the time and place, and in the manner di- rected by this act, or in paj'ing such composition money for the same as herein mentioned, shall for every such neglect forfeit the sum of one shilling and sixpence ; all which forfeitures shall be applied for the use of the highway within the parish, township, or place, where the same shall arise : And the said surveyor shall fairly and equally demand and require such duty and labour from every person or persons liable to perform the same according to the directions of this act, without favour or partiality to any person or persons whomsoever ; and if in any parish, township, or place, it shall not be necessary to call forth the whole duty in any year, it shall be abated in a just and equal pro- portion amongst all persons liable to the same : and the said surveyor may and shall, and he is hereby required, with all convenient speed, after default made in performance of such duty or labour as aforesaid, to proceed for the recovery of the penalties or forfeitures hereby in- flicted for the same respectively, in manner hereinafter directed, so that the same may be recovered before he makes up his accounts, in the manner directed by this act." (Id. s. 37.) Team and Personal Duty in kind.] If it shall appear to the jus- tices, at their special sessions, to be held in the week next after Mi- chaelmas quarter sessions, or at any other special or petty sessions held within the limits of any parish, township, or place, at which two or more justices shall be present, that from the directions herein- before given for the performing and compounding the statute duty, there will be difficulty in procuring the necessary carriage, or a suf- ficient number of labourers, for the repair of the highways in any par- ticular parish, township, or jjlace, within their respective limits, with- out paying high and extravagant prices for the same, it shall and may be lawful for such justices to order and direct the team duty, or so much thereof as they shall think fit, to be performed in kind within every such parish, township, or place, except in respect of such teams as belong to persons who do not occupy lands, tenements, woods, tithes, or hereditaments, of the annual value of thiity pounds within the same ; and also to order all such persons as shall gain their living by the wages of daily labour, or such part of them as they shall think fit, to perfonn six days' labour upon such highways in kind, either by themselves or other sufficient labourers, in cas(^ so many days' duty shall be required, upon being paid for such labour the usual and customary wages given to labourers in such parish, township, or place : 226 HIGHWAY ACTS, [Chap. VII. Provided that if part of such teams or labourers only are required, it shall he directed by the said order of the justices, in some given proportion, as one half, third, or fourth part thereof; and the sur- veyor shall, in that case, at a ])ublic vestiy for such parish, town- ship, or place, put the names of all the persons Uable by this act to send such teams into one hat or box, and the names of all the persons liable to perform such labom* into another hat or box, and some inhabitant then present shall di'aw out such number from each as shall be equal to the proportion so ordered by the said justices, and the persons so drawn shall perform such, duty in kind for that year : and that if any such order shall be made or continued in the subsequent year, the same method shall be oh- seiTed, but the names dravni in the preceding year shall not be put into such hat or box ; and in every succeeding year such method and regulation shall be observed by such suneyor, as to render the duty so required to be performed hi kind, as equal amongst the several persons liable thereto as may be ; which order of the said justices, so far as the same shall he extended, shall supersede the said power or hberty of compounding, and shall be binding and effectual to all intents and purposes whatsoever, and shall continue in force until it shall be discharged or varied by the justices at some subsequent special sessions for the highways within such limit, to be held in the week next after Michaelmas quarter sessions ; any thing herein con- tained to the contrary thereof in any wise notwithstanding." (34 Geo. 3. c. 74. s. 6.) Fixing Seed Time and Harvest.'] " And in order to prevent as much as possible any inconvenience to the persons liable to perfomi statute duty, be it enacted. That it shall and may be lawful for the in- habitants of every parish, township, or place, at some vestry, or other public meeting or meetings to be held pursuant to this act, to appoint three months in every year within which no statute duty shall be per- formed, viz. one month in the spring to be called the seed month ; one month in the summer for the hay harvest ; and one other month in the summer for the com harvest. Pro\ided that notice in writing be given of the times so appointed, to the surveyor of such parish, township, or place respectively, and also to the surveyor of every turn- pike road, lying within the same, withm three days after every siich meeting, and fourteen days at least before the beginning of each of such months." (13 Geo. 3. c. 78. s. 43.) Sect, v.] STATUTE DUTY COMPOSITION. 227 SECTION V. — STATUTE DUTY COMPOSITION. 44 Geo. 3. c. 52. s. 2. 13 Geo. 3. c. 78. ss. 41, 42. 44. 40. 54 Geo. 3. c. 109. ss. 4, 5, 6, 7. Compoundi7ig for Statute Work.'] " Any person or persons liable to perform statute duty, by sending one or more team or teams, draugbt or draughts, plough or ploughs, with men, horses, or oxen, in manner in the 34 Geo. 3. mentioned, may compound for the same, if he, she, or they shal l think fit , by paying to the surveyor of the highways, at the time and in the manner in the 13 Geo. 3. mentioned, such sum or sums of money as the justices of the peace for the limits wherein the parish, township, or place, for which the said duty is liable to be perfonned, is situate, or the major part of them, at their special session to be held in the first week after Michaelmas quarter sessions in every year, shall adjudge and de- clare to be reasonable, not exceeding twelve shillings, nor less than three shillings, for each team, draught, or plough, for each day; and in default of their adjudging and declaring the same, the^um of six shillings for and in lieu of every day's duty for each team, draught, or plough : and for each cart with two horses, or beasts of draught, not exceeding eight shillings nor less than three shillings ; and in default of their adjudging and declaring the same, the sum of four shillings : and for each cart with one horse, or beast of draught, not exceeding six shillings, nor less than two shillings ; and in default of their adjudging and declarmg the same, the sum of three shilhngs." (44 Geo. 3. c. 52. s. 2.) Notice of Compoundinf/.1 " The surveyor of every parish, &c., shall, on some Sunday in November in every year, cause ten days' notice at the least to be given in the church or chapel of such parish, township, or place; and if there be no church or chapel, or no ser- vice perfonned therein, then at the most public place there, and repeat the like notice, in such church, chapel, or place, on the next succeed- ing Sunday, of the time and place when and where the persons per- mitted under the authority of this act, and inclined to compound for the said duty in manner aforesaid, may signify to such surveyor their intention to comjiound; and all and every person or persons signify- ing the same, who shall then, or within the space of one calendar month afterwards, pay to such surveyor the composition authorized and allowed by this act, shall be discharged from the perfomiance of such duty, which composition money shall be employed by the sur- veyor for the use of the highways ; and that no composition shall be pennitted, unless the same shall be paid at the day, or within the 228 ' iiioHWAY ACTS, [Chap. VIIl, time aforesaid : but in cases where the occupation of any lands, tene- ments, woods, tithes, or hereditaments, shall be changed, or any new occupant or inhabitant shall come to reside in such parish, towTi- ship, or place, after the time appointed for such composition, then the person or persons occupying such lands, tenements, woods, tithes, or hereditaments, or so residing in such parish, township, or place, shall be allowed to compound in manner aforesaid : Provided he, she, or they, shall pay the said composition money to the said surveyor within fourteen days after he, she, or they, shall enter upon such lands, tenements, or hereditaments, or shall come to reside in such parish, township, or place ; and every tenant or occupier of any lands, tenements, woods, tithes, or hereditaments, who intends to quit the possession thereof within six calendar months from the time fixed for making such composition, shall and may compound for half the duty hereby requu'ed, and the succeeding tenant or occupier shall and may, in that case, compound or perfonn the duty in kind for the other half thereof; and if the surveyor shall receive from any person or persons a comjDosition for more duty than shall be required from the other inhabitants and occupiers within the same parish, townshij), or place, for the same year, he shall repay such exti'aordinary com- position money to such j>erson or persons, so as to bring the duty to an equality amongst all such inhabitants and occupiers." ( 13 Geo. 3. c. 78. s. 41.) Draught or Plough Horses.] " In every parish, township, or place, where any person shall keep a draught or plough and no car- riage, he shall pay to the surveyor the sum of one shilUng for every horse, or pair of oxen, or neat cattle, used in such draught or plough, for every day's statute duty on the day such duty is required to be performed ; or pay accordmg to the rate aforesaid, for the lands, tene- ments, woods, tithes, and hereditaments, wliich he shall occupy in such parish, township, or place, at the option of the surveyor." (Id. s. 42.) Composition to Turnpike Road, ^c] " And whereas by several acts of Parliament concerning turnpike roads, a certain part of the duty called statute duty is or may be directed to be performed on such roads, and it may happen in some places that the several per- sons liable thereto may have compounded for the same : be it therefore further enacted. That in all such cases, the surveyor of the highways of the parish, township, or place, where such composition shall have been made, shall pay to the treasurer or surveyor of such turnpike roads a certain part of the composition money so received, to be pro- portioned according to the number of days' duty which such person Sect, v.] STATUTE DUTY COMPOSITION. 229 or persons was or were liable to perfonn on such turnpike road : which money shall be laid out and expended, on such part of the said turnpike road as lies within the parish, township, or place, Ironi which it was received, and not elsewhere ; and if such surveyor of the highways shall refuse or neglect to pay to the treasurer or surveyor of such turnpike road, such part of the said composition money so re- ceived by him, within twenty days after he shall have received the same, upon demand made by such treasurer or surveyor, the same shall and may be levied upon the goods and chattels of such surveyor, in such manner as penalties and forfeitures are by this act authorized to be levied." (Id. s. 44.) " And whereas by, &c." (34 Geo. 3. c. 74,) " it is enacted. That it shall be at the option of the surveyor either to require the statute duty in kind, or a composition in money in lieu thereof, at certain rates which are therein fixed: And whereas by, &c., (44 Geo. 3. c. 52,) the rates for such statute duty have been increased so far as respects teams, draughts, ploughs, and carts, with one or two horses : And whereas the actual wages of labour, and the actual rate of hiring teams, carts, horses, or oxen, vary at diiferent times, and in different parts of England ; be it therefore further enacted. That in all cases in which it shall he made to appear to two or more justices of the peace acting within the district, by the surveyors of the highways, or of any turnpike road, that the maintenance and repair thereof can be more effectually carried on by a composition in money, than by a performance of the statute duty in kind, he or they shall be at liberty to require such composition in money, upon receiving an authority under the hands and seals of the said justices for that purpose, in lieu of either the whole or of any certain part of the statute duty, from the several persons who are bound by law to perform such statute duty; and the justices of the district, at their special sessions for the highways held in the week next after Michaelmas yearly, shall fix such rates as they shall adjudge reasonable, as a composition in lieu of the teams, carts, horses, oxen, or labour, which such persons are bound in the proportions now fixed by law to provide and perfoiTn ; which rates the said justices are hereby authorized and required an- nually to make known at such special sessions, due regard being had to the actual wages of labour, and to the actual rate of hiring teams, draughts, ploughs, carts, horses, or oxen, in the parish, ^^lace, or district, in which such composition is required; and such composition shall be paid in the same manner, and within the same period, and subject to the same regulations and provisions, as are now by law established for enforcing tlie payment of compositions in lieu of sta- 230 HIGHWAY ACTS. [Chap. VIII. tute duty : Provided always, that in case where the wholecomposi- tion in money shall not be requued in lieu of the whole of the duty in kind, such composition shall be demanded in fair and equal pro- portions from each and every person liable to pay the same, unless any of the said persons shall_prefer to pay a composition for the whole of their statute duty, according to the rates fixed in the manner herein directed." (54 Geo. 3. c. 109. s. 4.) Rdte of Composition.'] " All persons who are liable imder any of the provisions of any of the hereinbefore recited acts, to contribute to the repair of the highways, by a pa}Tnent of money in Heu of sta- tute duty, shall contribute thereto in lieu of every day's statute duty, for every twenty shillings of the actual annual value, at the time of making the said assessment of the lands, tenements, woods, tithes, and hereditaments, which such persons shall respectively occupy in the parish, township, or place, where they reside, or in any other parish, township, or place, a sum equal to one-fiftieth part of the siun fixed by the justices, at the time and in the manner by this act directed, as the coniposition for one day's labour of a cart, wain, or carriage, furnished with three horses and two able men^ omitting any fractional part of the said sum which does not amount to one farthing ; and all persons occupjdng more than fifty pounds per annum in the parish, township, or place wherein they reside, or in any other parish, township, or place, and less than one hundred pounds per annum, shall contribute to the repair's of the highways, in lieu of every day's statute duty, for every twenty shillings of the actual annual value, at the time of making the said assessment of the lands, tenements, woods, tithes, and hereditaments, which such person shall respectively oc- cupy over and beyond the said sum of fifty pounds per annum, and under one hundred pounds, a sum equal to onorfiftieth part of the Slim fixed by the said justices, at the time and in the manner by this act directed, as the composition for one day's labour of a cart, wain, or carriage, furnished with three horses and two able men, omitting any fractional part of the said sum which does not amount to one farthing ; and so on progi-essi\-ely for every twenty shillings of the actual annual value of the lands, tenements, woods, tithes, and here- ditaments, which they shall respectively occupy over and beyond •every additional fifty pounds per annum ; and the said sum or sums shall be paid in the same manner and within the same period, and subject to the same regulations and proWsions, as are now by law es- tablished for enforcing the payment of composition in lieu of statute duty." (Id. s. 5.) Composition how Estimated and Authorized.'] Before magistrates Sect, v.] STATUTE DUTY COMPOSITION. 231 grant theii" warrant for the collection of a composition, it ought to be ascertained, l)y persons having competent authority for that purpose, how many days' statute duty would be required to put the road in question into a complete state of repair, and it should be notified to the inhabitants, that the amount demanded is calculated upon this principle, and that, in the judgment of the surveyor, the composition in lieu of so many days' teamwork was advisable, in order that the in- habitants may have an opportunity of contesting the claim made upon them. If, therefore, magistrates proceed without having such evidence before them, they are liable to an action of trespass for goods seized under their waiTant to levy a distress for such composition. (Stanley v. Fielden, 5 Barn. & Aid. 425.) And semble, that in order to justify two magistrates in gi-anting an authority to collect a composition in lieu of statute duty, it should be made to appear upon oath, to both the magistrates present, that the road can be more effectually repaired by such composition ; and also semble, that where the composition is to be collected in several town- ships, it ought to appear on the face of the authority itself, that, in the judgment of the magistrates, a composition in lieu of statute duty is advisable in each particular township. (Id. ibid.) Tlie proceedings to recover compensation money, duly assessed in heu of statute duty, must be by distress, according to the provisions of these statutes ; and cannot be by action. For, wherever the legisla- ture has given a claim, or imposed a charge upon the irJiabitants, and prescribed a particular remedy for enforcing it, no other can be resorted to. (Underbill v. Elhcombe, 1 M'Clel. & Y. 450.) Liability by keeping Carriages.'] " Every person who shall keep a coach, postchaise, chair, or other wheel carriage, and not keep a team, draught, or plough, nor occupy fifty poimds per annum in the parish, township, or place, where he resides, shall pay to the sur- veyor or surveyors in resjiect of every day's statute duty, for every horse which he or she shall use in drawing such carriage, such a sum as the justices shall at the time and in the manner by this act directed fix, as the composition for one day's work of a horse ; or shall, at the option of the suiTeyor or surveyors, pay in lieu of every day's statute duty, for every twenty shillings of the actual annual value of the lands, tenements, woods, tithes, and hereditaments, which he or she shall respectively occu])y, a sum equal to one-fiftieth part of the smn fixed by the justices, at the time and in the manner by this act directed, as the composition for one day's labour of a cart, wain, or caiTiage, furnished with three horses and two able men, omitting any fractional part of the said sum which does not amount to one far- 232 HIGHWAY ACTS. [Chap. VIII. thine; ; and the said sum or sums shall be paid in the same manner, and in the same period, and subject to the same regulations and pro- visions, as are now by law established for enforcing the payment of compositions in heu of statute duty." (54 Geo. 3. c. 109. s. 6.) Enforcing Duty, Forfeitures, ^c] " AU persons who shall re- fuse or neglect to perfonn any part of their statute duty in kind, on being regularly summoned by the surveyor for that pui-pose, shall forfeit and pay a sum equal to twice the amount of the composition for such statute duty as they shall have so neglected or refased to perform according to the rates fixed by the justices under the provi- sions of this act ; and the said persons shall also be Uable to perform the said statute duty which they have so neglected or refused to per- fonn, either in the same or in the following year; the payment of such forfeitures and the an'ears of such statute duty to be enforced, and appUed to the benefit of the highway or turnpike road, as the case may be, to which the original neglected duty was due or owing, by the surveyor or surveyors for the time being, and under the same regulations and in the same manner as other forfeitures may be levied, and statute duty may in other cases be enforced by any of the provi- sions of any of the said hereinbefore recited acts." (Id. s. 7.) Mitigating Composition.] " If any person or persons who shall keep a team, draught, or plough, and shall not occupy lands, tene- ments, woods, tithes, or hereditaments, to the value of thirty pounds per annum, in the parish, township, or place where he shall reside, but shall in part maintain his horses and beasts of draught used in such team upon or from lands which he shall occupy in one or more adjacent jmrish or parishes, it shall and may be lawful for the said justices, at some special sessions, to mitigate and reduce the duty or composition so required to be performed or paid by such person or persons, in such manner and to such sum as they shall think just and reasonable." (13 Geo. 3. c. 78. s. 40.) SECTION VI. — NUISANCES TO HIGHWAYS. 13 Geo. 3. c. 78. ss. 6. 9, 10, 11. 52. 62. 8. 14. 63. 7. 13. Trees near Highways.] " No tree, bush, or shrub, shall be per- mitted to stand or gi'ow in any highway withm the distance of fifteen feet from the centre thereof, (except for ornament or shelter to the house, building, or court-yard of the owner thereof,) or hereafter to be planted within the distance aforesaid ; but the same shall respectively !:>€ cut down, grubbed up, and carried away, by the owner or occu- I Sect. VI.] NUISANCES TO HIGHWAYS. 233 pier of the land or soil where the same doth or shall stand or grow, within ten days after notice to him, her, or them, or his, her, or their steward or agent, given hy the said sui-veyors, or any of them, on pain of forfeiting, for every neglect, the smn of ten shillings." (13 Geo. 3. c. 78. s. 6.) Rubbish, ^c, in Highways.] " If any person or persons shall lay in any highway any stone, timber, straw, dung, or other matter, or in making, scorning, or cleansing the ditches or water-courses, shall pennit the soil or earth dug out of such ditches, drains, or water- courses, to remain in such highway, in such manner as to obstruct or prejudice the same, for the space of five days after notice thereof given by the surveyor of the highways, every person or persons ofiend- ing in any of the said cases, shall, for every such offence, forfeit and pay the sum of ten shillings." (Id. s. 9.) Timber, Manure, Stone, ^c] " If any stone or timber, or any hay, straw, stubble, or other matter for the making of manure, or on any pretence whatsoever, not tolerated by this act, shall be laid in any highway within the distance of fifteen feet from the centre thereof, and shall not, within five days after notice given by the surveyor, or some person aggrieved thereby, be removed; it shall and may be lawful for the owner or possessor of the lands adjacent, or any other person or persons whomsoever, by order from some justice of peace, to clear the said highways, by removing the said stone, timber, hay, straw, dung, or other matter, and to have, take, and dispose of the same to his and their own use." (Id. s. 10.) Obstructions in Highways.] " And for preventing obstructions in the said highways, be it enacted. That if any person shall wilfully set, place, or leave any waggon, cart, or other caniage, or any plough or instrument of husbandry, in any of the said highways, (except only with respect to such waggon, cart, or carriage, during such reasonable time as the same shall be loading and unloading, and standing as near the side of such highway as conveniently may be,) so as to interrupt or hinder the free passage of any other carriage, or of his Majesty's subjects ; every person so offending shall forfeit the sum of ten shillings for every such offence." (Id. s. 11.) Damaging Posts or Causeways.] " And whereas in some places it hath been and may be found necessary, and the surveyors are hereby authorized and required, to secure horse causeways and foot causeways, by posts, blocks, or great stones, fixed in the ground, or by banks of earth cast up, or otherwise, from being broken up and spoiled with waggons, wains, carts, or carriages; and forasmuch as several evil-disposed persons do or may wilfully or wantonly pull uj). 234 HIGHWAY ACTS. [Cliap. VIII. tut down, and remove or damage the said posts, blocks, and great stones, so fixed or to be fixed as aforesaid, and drive carriages upon such banks and causeways, or against the sides thereof, and also dig or cast down the said banks, which are the securities and defence of the said causeways, whereby the causeways or banks are often ruined and destroyed ; and such evil-disposed persons do or may break, da- mage, or throw down the stones, bricks, or wood, fixed upon the parapets or battlements of bridges, and do or may pull down, destroy, obliterate, or deface any mile-stone or post, graduated or direction- post or stone, erected or to be erected upon any highway ; For pre- vention thereof, be it enacted. That every person who shall be guilty of any such offence, shall, upon complaint thereof made to any jus- tice of the peace of the limit where the same shall be proved to be done, by the oath of any one credible witness, or upon view of the justice himself, forfeit for every of the said offences any sum not ex- ceeding five pounds, nor less than ten shillings ; and in default of payment thereof, shall be committed to the house of correction of such limit, there to be whipped, and kept to hard labom* for any time not exceeding one calendar month, nor less than seven days, at the discretion of such justice." (Id. s. 52.) No Ale-Houses on Toll Bridges.'] " And for preventing obstruc- tions, which frequently happen by stopping of carriages on or near public bridges, be it further enacted. That if any jierson or persons collecting any tolls payable for passing over any public bridge with carnages, or cattle of any kind, shall keep any victualling-house, ale-house, or other place of public entertainment, or shall sell, or permit to be sold therein, any wine, beer, ale, cider, spirituous liquors, or other strong liquors by retail, he, she, or they, being lawfully convicted of such offence, by the oath of one or more cre- dible witness or witnesses, or by his own confession, before any justice of the peace of the limit wherein such offence shall be committed, shaL for every such offence forfeit the sum of five pounds." (Id. s. 62.) Ditches, Drains, ^'c] " Ditches, drains, or water-courses, of a sufficient depth and breadth for the keeping all highways dry, and conveying the water from the same, shall be made, scoured, cleansed, and kept open, and sufficient trunks, tunnels, plats, or bridges, shall be made and laid where any cartways, horseways, or footways, lead out of the said highways into the lands or grounds adjoining thereto, by the occupier or occupiers of such lands or grounds ; and every person or persons who shall occupy any lands or grounds adjoining to, or lying near such highway through which the water hath used to Sect. VI.] NUISANCES TO HIGHWAYS. 235 pass from the said highway, shall, and is hereby required from time to time, as often as occasion shall be, to open, cleanse, and scour the ditches, water-courses, or drains, for such water to pass without ob- struction ; and that every person making default in any of the matters or things aforesaid, after ten days' notice to him, her, or them, given of the same by the said surveyor, shall, for every such offence forfeit the sum of ten shillings." (Id. s. 8.) Where new Ditches, ^c, may be made.} " Where the aiicnes, gutters, or water-courses which have been usually made, or which are hereinbefore directed to be made, cleansed, and kept open, shall not be sufficient to cany off the water which shall lie upon and annoy the highways, that then and in every such case it shall and may be law- ful for the said surveyors, by the order of any one or more of the said justices, to make new ditches and drains in and through the said lands and grounds adjoming or lying near to such highways, or in and through any other lands or gTounds, if it shall be necessary, for the more easy and effectually caiTying off such water from the said highways, and also to keep such ditches, gutters, or water-courses, scoured, cleansed, and opened ; and the said surveyors and their workmen are hereby authorized to go upon the said lands for the purposes aforesaid ; provided that the said sun'eyors make jorojDer trunks, tunnels, plats, bridges, or arches, over such ditches, gutters, or water-courses, where the same shall be necessary, for the convenient use and enjoyment of the lands or grounds through which the same shall be made, and from time to time keep the same in repair; and do also make satisfaction to the owner or occupier of such lands which are not waste or common, for the damages which he, she, or they shall sustain thereby ; to be settled and paid in such manner as the damages for getting materials m several or inclosed lands or grounds are hereafter directed to be settled and paid." (Id. s. 14.) Encroaching on Highways.'] " And whereas inconveniences have arisen from making hedges or other fences, and from ploughing or breaking up the soil of lands or grounds near the middle or centime of highways ; For remedy thereof, be it enacted. That if any person shall enc]'oach by making, or causing to be made, any hedge, ditch, or other fences, on any highway, not being turnpike road, within the distance of fifteen feet from the middle or centre thereof; or shall plough, harrow, or break up the soil of any land or ground, or in ploughing or haiTowing the adjacent lands, shall turn his jilough in or upon any land or gi'ound within the distance of fifteen feet from the middle or centre of any highway, where the breadth of such high- way is formed and marked or described with certainty, and does not 236 HIGHWAY ACTS, [Chap. VIII. exceed in breadth thirty feet, every person so offending shall forfeit, for every such offence, forty shillings to such person who shall make information of the same ; and it shall be lawful for the surveyor, who hath the care of any such road, to cause such hedge, ditch, or fence to be taken down, or filled up, at the expense of the person or per- sons to whom the same shall belong ; and it shall and may be lawful for any one or more justice or justices of the peace for the limit where such offence shall be committed, upon proof to him or them made upon oath, to levy as well the expenses of taking down such hedges as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such man- ner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this act." (Id. s. 63.) Removing Fence."] Neither this nor the sixth section of the act, (see " Trees near Highways," ante 232,) authorizes the surveyor to widen a road to thirty feet by remo\ing a fence, unless it stand upon land which had anciently been road, and is actually on the highway. (Lowen v. Kaye, 4 Bam. & Cres. 3. 6 Dowl. & Ryl. 20.) Pruning Hedges.'] " The possessors of the land next adjoining to every highway shall cut, prune, and plash then* hedges, and also cut down or prune and lop the ti'ees growing in or near such hedges or other fences, (except those trees planted for ornament or shelter as aforesaid, [see s. 6,] ) in such manner that the highways shall not be prejudiced by the shade thereof respectively, and that the sun and wind may not be excluded from such highway to the damage thereof; and that if such possessor shall not, within ten days after notice given by the surveyor for that purjoose, cut, prune, and plash such hedges, and cut down or prune, and lop such trees, in manner aforesaid; it shall and may be lawful for the surveyor, and he is hereby required, to make complaint thereof to some justice of the peace of the lunit where such highway shall be, who shall summon the possessor of the said lands to appear before the justices at some special sessions for that limit, to answer to the said complaint ; and if it shall appear to the justices at such special sessions, that such possessor had not com- plied with the requisites of this act, it shall and may be lawful for the said justices, upon hearing the surveyor and the possessor of such land, or his agent, (or in default of his appearance, upon having due proof of the service of such summons,) and considering the cir- cumstances of the case, to order such hedges to be cut, plashed, and pruned, and such trees to be cut down or pruned, in such manner as may best answer the purposes aforesaid ; and if the possessor of such lands shall not obey such order within ten days after it shall have Sect, VII.] GENERAL REGULATIONS. 237 been made, and he shall have had due notice thereof, he shall forfeit the sum of two shillings for every twenty-four feet in length of sucli hedge which shall be so neglected to be cut and plashed, and the sum of two shillings for every tree which shall be so neglected to he cut down or pruned and lopped ; and the surveyor, in case of such default made by the possessor, shall and is hereby requii'ed to cut, prune, and plash such hedges, and to cut down or prune and lo^J such trees, in the manner dii'ected by such order ; and such possessor shall be charged with, and pay over and above the said penalties, the charges and expenses of doing the same ; or in default thereof, such charges and expenses shall be levied, together with the said forfeitures, upon his or her goods and chattels by waiTant from a justice of peace, in such manner as is authorized for forfeitures incun-ed by virtue of this act.^^ (13 Geo. 3, c. 78. s. 7.) Times of cutting Hedges, (Sfc] " No person or persons shall be compelled, nor any surveyor pennitted, by virtue of this act, to cut or prune any hedge at any other time than between the last day of Sep- tember and the last day of March ; and that nothing herein contained shall extend or be construed to oblige any person or persons to fell any timber-trees growing in hedges at any time whatsoever, except where the highways shall be ordered to be enlarged, as hereinafter mentioned, or to cut down or grub up any oak-trees growing within such highway, or in such hedges, except in the months of April, May, or June ; or any ash, elm, or other trees, in any other months than in the months of December, January, February, or March/* (Id. s. 13.) SECTION VII. — GENERAL REGULATIONS. 13 Geo. 3. c. 78. ss. 26. 60. 55, 56, 57, 58, 59. Direction Posts.] " For the better convenience of travellers where several highways meet, the said justices, at some special sessions to be held for the purposes of this act, shall issue their precejit to the surveyor of the highways for any parish, township, or place, where several high- ways meet, and there is no proper or sufficient direction post or stone already fixed or erected, requiring him forthwith to cause to be erected or fixed, in the most convenient place where such ways meet, a stone or post, with inscriptions thereon, in large legible letters painted on each side thereof, containing the name or names of the next market town or towns, or other considerable place or places to which the said highways respectively lead ; and also at the several approaches or en- 238 HIGHWAY ACTS, [Chap. VIII. trances to such parts of any highways as are subject to deep or dan- gerous floods, gi'aduated stones or posts denoting the depth of water in tlie deepest part of the same, and Hkewise such direction posts or stones as the said justices shall judge to be necessary for tbe guiding of travellers in the best and safest track through the said floods or waters ; and the said sur\-eyor shall be reimbursed the expenses of providing and erecting the same respectively out of the monies which shall be received by him or them pursuant to the directions of this act ; and in case any surveyor shall, by the space of three months after sucli precept to him directed and delivered, neglect or refuse to cause such stones or posts to be fixed as aforesaid, everv^ such offender shall forfeit the sum of twenty shillings." (13 Geo. 3. c. 78. s. 26.) Drivers 'punishable.'] " And whereas many bad accidents happen, and great mischiefs are frequently done upon the streets and highways, by the negligence or mlful misbehaviour of persons driving caniages thereon ; be it therefore further enacted. That if the driver of any cart, car, dray, or waggon, shall ride upon any such carriage in any street or highway, not having some other person on foot, or on horseback, to guide the same, (such cairiages as are conducted by some person holding the reins of the horse or horses drawing the same excepted ;) or if the driver of any carriage whatsoever on any part of any street or highway, shall, by negligence or wilful misbehaviour, cause any hurt or damage to any person or carriage passing or being upon such street or highway ; or shall quit the highway, and go on the other side the hedge or fence inclosing the same, or wilfully be at such distance from such carriage, whilst it shall be passing upon such highway, that he cannot have tbe direction and government of the horses or cattle drawing the same ; or shall, by negUgence or wilful misbehaviour, prevent, hinder, or in- teiTupt the free passage of any other carnage, of his Majesty's subjects, on the said highways ; or if the driver of any empty or unloaded waggon, cart, or other carnage, shall refuse or neglect to turn aside and make way for any coach, chariot, chaise, loaded wag- gon, cart, or other loaded carnage ; or if any person shall drive, or act as the driver of any such coach, post-chaise, or other carnage, let for hire, or waggon, wain, or cai-t, not having the owner's name, as fl before required, painted thereon, or shall refuse to discover the time ■ Christian and surname of the owner of such respective caniages, every such driver so offending in any of the cases aforesaid, and be- ing convicted of any such offence, either by his own confession, the view of a justice of peace, or by the oath of one or more credible witness or witnesses, before any justice of the peace for the hmit where such offence shall be coimnitted, shall, for eveiy such offence. I Sect. VII.] GENERAL REGULATIONS. 239 forfeit any sum not exceeding ten shillings, in case such driver shall not be the owner of such carriage ; and in case the offender be owner of such carriage, then any sum not exceeding twenty shillings : and in either of the said cases shall, in default of payment, be committed to the house of correction for any time not exceeding one month, unless the same shall be sooner paid : and every such driver, offending in either of the said cases, shall and may, by authority of this act, with or without any wan'ant, be apprehended by any person or per- sons who shall see such offence committed, and shall be immediately conveyed or delivered to a constable or other peace-officer, in order to be conveyed before some justice of the peace, to be dealt with accord- ing to law; and if any such driver, in any of the cases aforesaid, shall refuse to discover his name, it shall and may be lawful for the justice of the peace before whom he shall be taken, or to whom any such complaint shall be made, to commit him to the house of coiTec- tion for any time not exceeding three months, or to proceed against him for the penalty aforesaid, by a description of his person and the offence, and expressing in such proceedings that he refused to discover his name." (Id. s. 60.) JVumber of Horses to Waggons, S^c-I " And whereas the highways, not being turnpike roads, are much pi'ejudiced by the naiTowness of the wheels of the several caniages travelling thereon, and by the ex- cessive burthens loaded in such carnages ; be it enacted. That no waggon, having the sole or bottom of the fellies of the wheels of the breadth of nine inches, shall go or be drawn with more than eight horses ; and that no cart, having the sole or bottom of the fellies of the wheels thereof of the breadth of nine inches, shall go or be drawn with more than five horses ; and that no waggon, having the sole or bottom of the fellies of the wheels of the breadth of six inches, and rolling on each side a surface of nine inches, shall go or be drawn with more than seven horses; and that no such waggon, rolling a surface of six inches only, shall go or be drawn with more than six horses ; and that no cart, having the sole or bottom of the fellies of the wheels of the breadth of six inches, shall go or be drawn with more than four horses ; and that no waggon, having the sole or bot- tom of the felhes of the wheels of less breadth than six inches, shall go or be drawn with more than five horses ; and that no cart, having the sole or bottom of the fellies of the wheels of less breadth than six inches, shall go or be drawn with more than three horses, upon such highways, under the pains, penalties, and forfeitures hereinafter men- tioned ; (that is to say,) that the owner of such waggon or cart re- spectively shall forfeit the sum of five pounds, and the driver, not 240 HIGHMAY ACTS. [Chap. VIIT. being the owner, the sum of ten shillings, for eveiy horse or beast which shall be so drawing above the number hereby so respectively limited as aforesaid, to the sole use and benefit of the infoimer ; but carnages moving upon wheels or rollers of the breadth of sixteen inches on each side thereof, with flat surfaces, are hereby allowed to be drawn with any number of horses or other cattle," (Id. s. 55.) Time limited for Prosecution.'\ " No prosecution shall be com- menced before a justice of peace, by w-ay of information, for any forfeiture incurred by the owner or driver of any carriage having a greater number of horses therein than are allowed by this act, un- less such infomiation be laid within three days after the offence com- mitted ; and that no action shall be commenced for any such offence, unless the same be commenced within one calendar month after the offence committed ; and that neither such information or action shall be laid or commenced, unless notice shall be given by the infonner to the driver of every such carriage, on the day upon which the offence shall be committed, of an intention to complain of such offence ; and if it shall appear to the justice, before whom such complaint shall be made, that the offender lives so remote as to make it inconvenient to summon him to appear before such justice, the justice may dismiss the complaint, and leave the infonner to his remedy by action at law." (Id. s. ^ifo.) Drawing up Hills.'] " The justices of the peace, at their respective general quarter sessions of the peace held in the week after Michael- mas, may license in such manner, and for such time, as they shall think fit, an increase of the number of horses to be drawn in caiTiages up any steep hill, or on any road not turnpike, within their respective jurisdictions, over and above the number hereinbefore limited, if upon inquiry into the state and condition of such roads they shall find any additional number of horses necessary ; and from tune to time, at any Michaelmas quarter sessions, to revoke, alter, or vary the same as they shall think fit." (Id. s. 57.) When viay stop Legal Proceedings.] " Provided, That if it shall appear, upon the oaths of credible witnesses, to the satisfaction of any justice or justices of the peace, or any court of justice authorized to enforce the execution of this act, that any waggon, cart, or cannage, could not, by reason of deep snow or ice, be drawn by the number of horses or beasts of draught hereby respectively allowed ; then, and in every such case, it shall and may be lawful for such justice or justices of the peace, or court respectively, and they are hereby respectively required, to stop all proceedings before them respectively, for the re- covery of any penalty or forfeiture which may have been incuiTed by Sect. VITI.] PENALTIES AND IIOW RECOVERED. ?4 1 drawing with a greater number of horses or beasts of draught, than are hereby allowed ; any thing herein contained to the contrary not- withstanding : Provided also. That the regulations hereinbefore men- tioned, concerning the number of horses and wheels of carriages, shall not be deemed or construed to extend to carts, waggons, or other carriages, employed only in carrying any one stone, block of marble, cable, rope, or piece of metal, or piece of timber ; or to such ammu- nition or artillery as shall be for his Majesty's service ; and that two oxen or homed cattle shall, for all the purposes of this act, be con- sidered as one horse." (Id. s. 58.) Owner's Name on Waggons, ^c] " And for the better discovciy of offenders against this present act, be it enacted. That the owner of every waggon, wain, or cart, and also of every coach, post-chaise, or other caiTiage, let to hire, shall paint, or cause to be painted, upon some conspicuous part of his waggon, wain, or cart, and upon the pannels of the doors of all such coaches, post-chaises, or other car- riages, before the same shall be used upon any public highway, his or her Christian and surname, and the place of his or her abode, in large legible letters, and continue the same thereupon so long as such waggon, cart, coach, j>ost-chaise, or other carriage, shall be used upon any such highway ; and the owner of every common stage- waggon, or cart, employed as travelling stages from town to town, shall over and above his or her Christian and surname paint, or cause to be painted, on the part and in the manner aforesaid, the following words, " Common Stage Waggon " or " Cart," as the case may be ; and every person using any such carriage as aforesaid upon any high- way, without the names and descriptions painted thereon respectively as aforesaid, or who shall paint, or cause to be pamted, any false or fictitious name or place of abode on such waggon, wain, cart, coach, post-chaise, or other can-iage, shall forfeit, for every such offence, a sum not exceeding five pounds, nor less than twenty shillings." (13 Geo. 3. c. 78. s. 59.) SECTION VUI. — PENALTIES AND HOW RECOVERED. 13 Geo. 3. c. 78. ss. 71. 47. 72, 73, 74, 75, 76, 77, 78, 79. 81. Resistance or Disobedience.] In case any person or persons shall resist or make forcible opposition against any person or persons employed in the due execution of this act, or make any rescue of the cattle or other goods distrained by virtue of this act ; or if any con- stable, headborough, or tithingman, shall refuse or neglect to execute R 242 HIGHM AY ACTS. [Cha]). VTTI. or ohey any warrant or precept granted by any justice of the peace pursuant to the directions of" this act ; every such person offending therein, and being convicted thereof by a justice of the peace, shall, for every such offence, forfeit any sum not exceeding ten pounds nor less than forty shillings, at the discretion of the justice before whom he or she shall be so convicted, to be paid to the suiTeyor of the high- ways for the parish, townshi]), or place where the offence was com- mitted, to be laid out in the repair of the highways ; and in case he or she do not forthwith pay, or secure to be paid, the said forfeiture after such conviction, then it shall and may be lawful for such justice of the peace to commit such person or persons to the common gaol or house of correction, of the limit where such offence shall be com- mitted, there to remain for any time not exceeding three months, un- less the said forfeiture shall be sooner paid." (13 Geo. 3. c. 78. s. 71.) Fines, S^c, to ivhom paid.] " That no fine, issue, penalty, or forfeiture, for not repairing the highways, or not appearing to any in- dictment 01- presentment for not repairing the same, shall hereafter be returned into the Court of Exchequer or other court, but shall be levied by, and paid into the hands of, such person or persons residing in or near the parish, township, or place, where the road shall be, as the court imposing such fines, issues, penalties, or forfeitures shall order, and direct, to be employed towards the repair and amendment of huch highways ; and the person or persons so ordered to receive such fine shall, and is hereby required, to receive, apply, and account for the same, according to tlie direction of such court, or in default thereof shall forfeit double the sum received ; and if any fine, issue, penalty, or forfeiture to be imposed on any such parish, township, or place for not repairing the highways, or not appearing as aforesaid, shall here- after be levied on any one or more of the inhabitants of such parish, township, or place, that then such inhabitant or inhabitants shall and may make his or their complaint to the justices of the peace, at their special sessions ; and the said j ustices are hereby empowered and au- thorized, by waiTant under their hands and seals, to cause a rate to be made, according to the fonn and manner herein last before prescribed, for the reimbursing such inhabitant or inhabitants the monies so levied on him or them as aforesaid; (see " Rate to Reimburse," infra;) which rate so made, and confirmed by any two justices, shall be col- lected and levied by the surveyor of the highways of such parish, township, or place, so presented or indicted as aforesaid ; and the said surve3'or shall, within one month next after the making and confinniug the rate aforesaid, collect, levy, and pay, unto such inhabitant or inha- bitants the numev so levied on hian or them as aforesaid." (Id. s. 47.) Sect. VITT.] PENALTIES AND HOW RECUVEKED. 243 Rate to reimburse.] An application, under tlie 47tli section, for a rate to reimburse two inhabitants of a parish, on whom a fine for tlie non-repair of a highway liad been levied, after a conviction upon an indictment against the parish for n on -repair, ought to be made within a reasonable time after such levy, before there is any material change of inhabitants ; and the Court of King's Bench refused a mandamus for such rate after an interval of eight years, though applications had been, from time to time, made to the magistrates below, in the interval, who had declined to make the rate, on the ground that the parish at large had been improperly convicted ; the onus of repair being by innne- morial custom on an inferior district ; and though so lately as the year before the application, the magistrates had ordered an account to be taken of the quantum expended upon the repairs out of the money levied. (Rex v. Lancashire, 12 East. 336.) Fines to whom payable.] Fines for not repairing roads ratione tenures are payable to the surveyor of the parish highways. (Rex v. Wingfield, IBla. Rep. 602.) Penalties how recovered.] " All penalties and forfeitures by this act imposed for any offence against the same, and all costs and charges to be allowed and ordered by the authority of this act, (the manner of levying and recovering of which is not hereby otherwise particularly directed,) shall be levied by distress and sale of the goods and chat- tels of the offender, or person liable or ordered to pay the same re- spectively, by warrant under the hand and seal of some justice of the peace for the limit where such offence, neglect, or default, shall hap- pen, or such order for payment of such costs or charges shall be made, rendering the overplus of such distress (if any be) to the party or parties, after deducting the charges of making the same ; which waiTant such justice is herel)y empowered and recpiired to grant, upon conviction of the offender by confession, or upon the oath of one or more credible witness or witnesses, or upon order made as aforesaid ; and the penalties and forfeitures, when so levied, shall be paid, the one half to the infonner, and the other half to the surveyor of the highway where such offence, neglect, or default, shall happen, to be applied towards the repair thereof, unless otherwise directed by this act ; but in case the surveyor shall be the informer, then the whole shall be employed towards the repair of such highway : and in case such distress cannot be found, and such penalties and forfeitures, or the said costs and chai'ges, shall not be forthwith paid, it shall and may be lawful for such justice, and he is hereby authorized and re- quired, by warrant under his hand and seal, to commit such offender or offenders, or person or persons liable to pay the same respectively, !t 2 214 HIGHWAY ACTS. [Chap. Vlir, to the common gaol, or house of con'ection, of the limit where the offence shall he committed, or such order as aforesaid shall he made, for any time not exceeding three months, unless the said penalty, forfeiture, costs, and charges, shall respectively be sooner paid ; and if such offender or offenders, or person or persons liable or ordered to pay the same respectively, shall live out of the jurisdiction of the justice hereby authorized to gi'ant such warrant, it shall and may be lawful for any justice of the peace of the limit wherein such person shall inhabit, and every such justice is hereby required, upon request to him lor that purpose made, and upon a true copy of the conviction whereby such forfeiture or penalty was incurred, and of the order for the payment of such costs and charges, produced and proved by a credible witness upon oath, by wan-ant under his hand and seal, to cause the penalty or forfeiture mentioned in such conviction, and the costs and chaiges mentioned in such order, or so much thereof as shall not have been paid, to be levied by distress and sale of the goods and chattels of such offender or offenders, or person or persons liable or ordered to pay the same respectively as aforesaid ; and if no suffi- cient distress can be had, to commit such offender or offenders, or person or persons liable as aforesaid, to the common gaol, or house of correction, of such limit for the time and in maimer aforesaid." (13 Geo. 3. c. 78. s. 72.) Mode of Recovery.] If a statute prohibits the doing of a thing under a penalty to be paid to the party giieved, or without saying to whom it shall be paid, and does not prescribe any mode of recovery, debt lies for the party grieved. (Underbill v. EUicombe, 1 M'Clel. & Y. 450.) But where the statute prescribes a particular remedy, that must be followed ; and therefore surveyors cannot maintain debt to recover composition money assessed in lieu of tithes, as the pro- ceeding is directed to be by distress and sale. (Underbill v. EUi- combe, 1 M'Clel. & Y. 450.) Distress stayed Six Days.] " That no warrant of disti'ess, unless otherwise directed by this act, shajl be issued for levying any penalty or forfeiture, costs or charges, until six days after the offender shal] liave been convicted, and an order made and served upon him or her for the payment thereof." (13 Geo. 3. c. 78. s. 73.) Proceedings by Information or Action.] " Every prosecutor or informer may, at his election, sue for and recover any forfeiture or penalty imposed by this act, which shall amount to the sum of forty shillings or upwards, (the manner of recovery thereof not being par- ticularly directed by this act,) either in the manner herein before directed, or by action at law to bebrought by such informer or pro- Sect. VIII.] PENALTIES AM) HOW RECOVERED. 245 secutor in any of his Majesty's courts of record, in manner following: (that is to say,) where any person shall be liable to any such ])ecu- niary penalty, it shall and may be lawful to sue for and recover the same by action of debt, in which it shall be sufficient to declare that the defendant is indebted to the plaintiff in the sum of , being forfeited by an act passed in the thirteenth year of the reign of liis present Majesty, intitled, ' An act to explain, amend, and reduce inio one act of Parliament, the Statutes novj in being for the Amend- ment and Preservation of the Public Highways, within that part of Great Britain called England, and for other purposes ;' and the ])laintiff, if he recovers in any such actions, shall have double costs." (Id. s. 74.) Action and Notice thereof.'] ** There shall not be more than one recovery for the same offence ; and that ten days' notice, in writing, be given to the party offending, previous to the commencement of such action ; and that the same be brought and commenced within one calendar month after the offence, for which such action is brought, shall have been committed." (Id. s. 75.1 Inhabitant's Witnesses.] " No conviction shall be had or made by virtue of this act, unless upon confession of the party accused, or upon the oath of one or more credible witness or witnesses, or upon the view of a justice of the peace, m the cases before mentioned ; and that any inhabitant of any parish, township, or place, in which any i»lience shall be committed contrary to this act, shall be deemed a comi)etent witness, notwithstanding his or her being an mhabitant of such parish, township, or place." (Id. s. 76.) " It shall and may be lawful for any justice of the peace to admi- nister an oath to any witness or witnesses, or other person or persons, for the better discovery and execution of the several matters or things herein before authorized or directed to be examined, inquired into, or performed by such justice." ('Id. s. 77.) Special Damages recoverable.] " Where any distress shall be made for any sum or sums of money to be levied by virtue of this act, the distress itself shall not be deemed unlawful, nor the party or par- ties making the same be deemed a trespasser or trespassers, on account of any default or want of fonn in any proceedings relating thereto ; nor shall the party or parties distraining be deemed a trespasser or trespas- sers ab initio, on account of any irregularity which shall be afterwai'ds done by the party or parties distraining ; but the person or persons aggrieved by such in^egidarity may recover full satisfaction for the special damage in an action on the case." (Id. s. 78.) Tender of Amends, <5fc.] " No plaintill'or plaintiils shall recover in 246 HIGHWAY ACTS. [Chap. VIII. any action for any irregularity, trespass, or wrongful proceedings, if lender of sufficient amends shall be made by or on the behalf of the part\- or parties who shall have committed, or cause to be committed, any such iiTegularity, trespass, or wrongful proceedings, before such action brought ; and in case no such tender shall have been made, it shall and may be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he or they shall see fit, whei'eupon such proceedings or orders and judgment shall be had, made, and given, in and by such court, as in other actions where the defendant is allowed to pay money into court." (Id. s. 79.) Tender inconclusive.'] It seems the plaintiff in such action may show, that the making of a neiv road over his land was maliciously or wantonly done by the surveyors, and not for the necessary or conve- nient caniage of materials over the land for the purposes of the act ; and in such case he would not be concluded by the amends tendered or paid into court. (Bayfield v. Porter, 13 East. 200.) Limitation of Actions.] " If any action or suit shall be commenced against any person or persons for any thuig done or acted in pursuance of this act, then and in every such case, such action or suit shall be commenced or prosecuted within three calendar months after the fact committed, and not afterwards ; and the same and every such action or suit shall be brought Avithin the county where the fact was com- mitted, and not elsewhere ; and the defendant or defendants in every such action or suit shall and may plead the general issue, and give this act and the special matter in evidence, at any trial to be had thereupon, and that the same was done in pursuance and by the au- thority of this present act ; and if the same shall appear to have been so done, or if any such action or suit shall be brought after the time limited for bringing the same, or be brought or laid in any other place than as afore mentioned, then the jury shall find for the defendant or defendants ; or if the plaintiff or plaintiffs shall become nonsuit, or discontinue his, her, or their action, after the defendant or defendants shall have appeared, or if upon demurrer judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall and may recover treble costs, and have the like remedy for recovery there- of as any defendant or defendants hath or have in any other cases by law." (13 Geo. 3. c. 78. s. 81.) Limitation how construed.] Surveyors having, in the execution of their office, undermined a wall adjoining to the highway, it fell in consequence thereof, but not till more than three months afterwards ; upon which, the proprietor brought an action on the case against them Sect. IX.] KXliCl'TION (Jl THK ACIS. 247 wi/hin ihreu inoiith.s ulter the wa// fell, and it was held, that if the action had been trespass, it must have been brought within three months after the act of trespass complained of; but being an action on the case for the consequential damage, it could not have been brought till the speciiic wrong had been suffered. (Roberts v. Read, 16 East. 215; Sutton v. Clarke, 1 Marsh. 437, 6 Taunt. 37.) SECTION IX. — EXECUTION Ul' THE ACTS. 13 Geo. 3. c. 78. ss. 66. 53. 61. 69. 80. 54 Geo. 3. c. 109. s. 8. 55 Geo. 3. c. 08. s. 6. Notice of Public Meetings.] " In all cases where a vestry or pub- lic meeting of the inhabitants of any parish, township, or place, is authorized or directed by this act, there shall be public notice given of the day, hour, and place, of holding the said meeting, at the church or chapel of such parish, township, or place, on the Siinilat/ next preceding such uaeeting, and also notice thereof in writing, spe- cifying the purpose of such meeting, fixed at the same time ujDon the door of such church or chapel, and the same shall not be held till three days at least after such notice given ; and if there be no cliurch or chapel, the like notice of such meeting shall be given in writhig, and put u]) at the most public place therein, three days at least before such meeting." (13 Geo. 3. c. 78. s. 06.) Justices of Cities, ^c, to execute the Act.] " The justices of the peace of all cities, cor]3orations, boroughs, and other places, are hereby recpiired to put in execution every part of this act within their respective jurisdictions." (13 Geo. 3. c. 78. s. 53.) "The justices of the peace and magistrates of all cities, corpora- tions, boroughs, precincts, liberties, and other separate jurisdictions, are hereby authorized and required to put in execution e;'erv part oi' this act within their respective jurisdictions, so far as the provisions thereof are applicable, in as full and ample a manner as tlie justices of any county or of any division thereof." (54 Geo. 3. c. 109. s. 8.) Special Sessions and Adjournments.] " Any two or more justices of the i^eace, within their respecti\'e limits, are hereby empowered, from time to time, whenever they shall judge proper, to hold anv special sessions, besides that which is hei'einbefbre directed, for exe- cuting the purposes of this act, and to adjourn the same from time to lime, as they shall think tit, causing notice to be given of the time and place of holding such special sessions, and of the adjournmenl 248 HIGHWAY ACTS. [Chup. VIII. thereof, to the several justices acting and residing within such hmits, hy the high constable or other proper officer within the same." (13 Geo. 3. c. 78. s. 61.) Potvcr in Special Sessions.] " And whereas, by the 54 Geo. 3. c. 109, it is among other things enacted. That two or more justices of the peace, at their special sessions to be holden in the week next after JNlichaehnas yearly, shall fix such rates as they shall adjudge reasonable as a composition in heu of teams, carts, horses, oxen, or labour ; and whereas certain other matters relative to the highways are directed to be done by justices of the peace, at their special sessions to be holden in the week next after the Michaelmas quarter sessions ; and whereas •the time for holding the Michaelmas quarter sessions has been altered by 54 Geo. 3. c. 84, be it therefore enacted. That it shall and may be lawful for the justices of the peace assembled in their special ses- sions in the week after Michaelmas, to do and perform every act which they might heretofore legally have done in the special sessions directed to be holden in the week after the said Michaelmas general quarter sessions of the peace." (55 Geo. 3. c. 68. s. 6.) Special Sessions, Notice of.'] Though the proceeding be under the 55 Geo. 3. c. 68, reasonable notice of holding the special sessions, at which an order for diverting a way, &c., is made, must be given as required by the 13 Geo. 3. c. 78. s. 61, and miless such notice has been given to the justices residing within the division, the quarter sessions ought not to confirm and enrol such order, even though there be no appeal against it. (Rex v. JJ. Worcestershire, 2 Barn. & Aid. 228.) The notices should be served by the high constable; but if signed by him, and served by a person under his authority, it is sufficient. (Rex v. JJ. Suflx)ik, 6 Bam. & Ores. 110, 9 Dowl. & Ryl. ) But where they were served by the magistrate's clerk, it was held that the proceeding was in-egular. (Rex v. J J. SuiTey, 5 Barn. & Cres. 241, 9 Dowl. & Ryl. 857.) Appeal, and Notice thereof.] " If any person shall think himself or herself aggiieved by any thing done by any justice or justices of the peace or other person in the execution of any of the powers given by this act, and for which no particular method of relief hath been already appointed, every such person may appeal to the justices of the peace at any general quarter sessions of the peace, to be held for the limit wherein the cause of such complaint shall arise ; such appel- lant giving, or causing to be given, notice in wniting of his or her in- tention to bring such apjieal, and of the matter thereof, to the justice or other person or persons against whom such complaint shall be made, mthin six days after the cause of such complaint arose ; and Sect. IX.] EXECUTION OF TUP, ACTS. 249 witliin four days after such notice entering into recognizance before some justice of the peace within such limit, with one sufficient surety, conditioned to try such aj^pcal at, and abide the order of and pay such costs as shall be awarded by the justices at such quarter session ; and every justice of the peace and other person, havuig received notice of such appeal as aforesaid, shall return all proceedings whatsoever had before them respectively, touching the matter of such appeal, to the said justices at their general quarter sessions aforesaid, on pain of forfeiting five pounds for every such neglect ; and the said justices at such session, upon due proof of such notice being given as aforesaid, and of the entering into such recognizance, shall hear and finally de- termine the causes and matters of such appeal in a summary way, and award such costs to the jiarties appeaUng or appealed against as they the said justices shall think pi'oper, to be levied and recovered as hereinbefore directed ; and the detennination of such quarter sessions shall be final and conclusive to all intents and purposes ; and that no proceedings to be had or taken in pursuance of this act shall be quashed or vacated for want of fonn, or removed by certiorari, or any other writ or process whatsoever (except as hereinbefore mentioned,) into any of his Majesty's Courts of Record at Westminster, any law or statute to the contrary notwithstanding ; provided that no such ap- peal shall be made against any conviction for any penalty or forfeiture incurred by virtue of this act, unless the person convicted sball, at the time of such conviction if he or she shall be then present, if not, within six days after, give notice of his or her intention to appeal, and at the same time enter into recognizance with sufficient sureties to pay such penalty or forfeiture, in case such conviction shall be affirmed upon such appeal ; and upon his or her giving such security, the further proceeding for such penalty or forfeiture shall be sus- pended until such appeal shall be heard and detennined." (13 Geo. 3. c. 78. s. 80.) Appeal, generally.'] The above section relates to appeals generally, whatever may be the supposed giievance resulting from enforcing any of these statutory provisions. But some of the more recent statutes contain similar provisions ; and it seems, that appeals against stopping up or diverting highways depend upon, and ought to be regulated by, the 55 Geo. 3. c. 68. s. 3, (see " Appeal against ^Stopping up a Way," ante 218,) and not upon the 13 Geo. 3. c. 78, s. 80. At all events, if a party is anxious to avail himself of this latter enactment in preference to the former, for the purpose of obtaining costs if he ultimately succeeds, he must take care to give his notice within six days after the cause of complaint arises, according to the condition of 250 HIGHWAY ACTS. [Chap. VIII. this latter statute. (R. v. Wing. 4 Barn. & Cres. 184, 6 Dowl. & Ryl. 323.) Notice of Appeal.'] In an appeal upon a distress for nonpayment of a highway rate, the notice of appeal may be given within six days after the levy, and need not be within six days after the granting the war- rant of distress. The notice need not disclose the gTounds on which the appellant objects to the regularity of the disti'ess. (The King v. Justices of Devon, 1 Maul. &. Sel. 411.) And where, under the general turnpike act, 4 Geo. 4. c. 95, which gives a right of appeal upon notice withm six days after the cause of complaint arises, two justices made an order upon the surveyors to perform a certain part of the statute duty on a turnpike road, it was held that the cause of complaint did not arise until a copy of the order in writing had been served ; and that notice of appeal within six days from that time was valid. (Rex v. Lancashire, 8 Bam. & Cres, 593.) Certiorari.'] Even if the order of justices, made under this sta- tute, for diverting a road is informal, still it cannot be removed by certiorari. (The King v. Casson, 3 Dowl. & Ryl. 36.) Forms of Proceedings.] " The fonns of proceedings relative to the several matters contained in this act, which are set forth and expressed in the schedule hereunto annexed, shall be used upon all occasions, with such additions or variations only as may be necessary to adapt them to the particular exigencies of the case ; and that no objection shall be made, or advantage taken, for want of fonn in any such proceed- ings, by any person or persons whomsoever." (13 Geo. 3. c. 78. s. 69.) It may here also be observed, that if a magistrate proceeds with an intention to convict for an offence committed m his own view, he must carefully pursue the act. Thus, where the driver of a waggon was riding thereon, contrary to the statute, (13 Geo. 3. c. 78. s. 60, ante 238,) and not only refused to tell his name, but placed himself so as to conceal his master's name on the waggon, whereupon the justice stopped the horses, and forcibly removed the driver, and thereby mformed himself of the owner's name ; it was held, that he was not justified in so doing. The court observed, that the magistrate might have convicted the offender on his own view, either for the ridmg on the waggon, or for refusing to give his name ; or he might, as a private individual, have apprehended him, to be dealt with according to law : he had taken neither of these courses, but, on the contrary, laid violent hands upon the diiver, to remove him from the waggon, which the act did not sanction, and Avas an assault in law. (Jones v. Owen, 2 Dowl. & Ryl. 600.) Variance.] It has been held, that the forms must be observed, Sect. I.] VESTRY. and that a material vai'iauce is fatal, and may be] taken advantage ol in a collateral proceeding. (Davison v. Gill, 1 East. 64 ; Goss v. Jackson, 3 Esp. Rep. 198.) But it seems that the order for diverting and turning a road, need not set out the names of the owners of the lands through which it is proposed to be canied, the fomi XXI. being merely directory in this respect. (Rex v. Casson, 3 Dowl. & Ryl. 36.) CHAPTER IX.— PARISH VESTRIES. Section I. Vestry Meetings. II. Proceedings in Vestry. III. Poiver of Vestries. IV. Vestry Clerk. SECTION I. — VESTRY MEETINGS. Vestry what, and tvhence the Kame.^ A vestry, properly speak- ing, is the assembly of the whole parish, met together in some conve- nient place for the dispatch of the affairs and business of the parish ; and this meeting being commonly held in the vestry adjoining to, or belonging to the church, it thence takes the name of vestry, as the place itself doth from the priest's vestments, which are usually depo- sited and kept there. (Shaw's Par. L. c. 17.) It is not essential to the validity of the meeting that it should be held in the vestry of the church, and it may be convened in the church itself; but, if it be held in either of those places, the Ecclesias - tical Court has jurisdiction ratione loci, (see 2 Ld. Raym. 850.) over any misconduct or disorder committed therein, (Wilson v. M'Math, 3 Bam. & Aid. 241 ;) though more license is pemiitted in the vestry room, than would be considered excusable in the church, as the vestiy is the place for parish business ; and the court would not interi)ose in such case, further than might be necessary for the preservation of due order and decorum. (Hutchins v. Denziloc, 1 Hagg. R. 185.) Vestry, how often held.] These meetings are usually assembled according as the exigencies of the parish require ; and though it was for- merly considered fit and proper, ifany thing peculiar was to be done, that notice should be given of the specific purpose for which a vestry was 3 252 PARISH VESTRIES. [Chap, IX. called, it was also held not to be absolutely necessary to give such notice, (Glutton v. Cherry, 2 Phil. Ec. Ca. 384 ;) but now it is pro- vided, that what was formerly adjudged fit and proper to be done in this respect, shall be observed and perfonned. (See infra.) JVotice of Vestry Meeting.'\ It is also said in the older authorities, that notice ought to be given publicly, on the Sunday before the meetmg is to take jilace, either in the church after divine senice • is ended, or else at the church door as the parishioners come out. (Wats. c. 39.) And it has been decided, that proclamation during divine service for the meeting of a vestry, or of the purport of such meeting, is convenient and proper, though it would be indecorous to announce the result of a meeting in the same way. (Thompson v. Tapps, MSS. ; Cas. 17; 4 Burn. Ec. L. 8.) And that in whatever way the notice is given of such meeting, the time and place of the as- sembhng of it should be stated, and it will be fairest then also to declare for what business the said meeting is to be held, that none may be suri)iised, but that all may have full time before, to consider of what is to be proposed at the said meeting. (Wats. c. 39.) Notice required by Statute.] All doubt, however, upon this sub- ject is now detennhied by the 58 Geo. 3. c. 69. s. 1, passed for the regulation of parish vestries, but extending only to England and Wales ; by which it is enacted, " That from and after the first day of July, 1818, no vestry or meeting of the inhabitants in vestry of or for any parish, shall be holden until public notice shatl have been given of such vestry, and of the place and hoiir of holding the same, and of the special purpose thereof, three days before the day to be appointed for holding such vestry, by the publication of such notice, in the parish church or chapel, on some Sunday during, or immediately after, diWne service ; and by affixing the same on the principal door of such church or chapel." It is stated to be usual, for half an hour before the meeting beguis, for one of the church bells to be tolled 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." The above act of Parliament neither altered the general authority under which, nor the persons by whom, vestries are to be called ; it only adds some farther fonnalities in the mode of calling, or rather makes the preliminary announcements essential, which were before considered expedient by the spiritual and ecclesiastical courts. It therefore fol- lows, that a private parishioner has no right given him by the act, and he had none before, during the thne of divine service, and of his Sect, I.] VESTRY MF.ETINGS. 253 own authority, to publish a notice for a vestry to choose new church- wardens, or any other notice in the church. (Dawe v. Wilhams, 2 Addams' Rep, 138.) An allegation in an indictment, " that A. was duly elected treasurer of the said parish," is supported by an entry in the parish hook, stating the election to have been at a vestry duly held in pursuance of notice. (Rex v. Martin, 2 Camp. 100 ; see Thomas v. Morris, 1 Addams' Rep. 470.) Who may attend a Vestry.] Anciently, at the common law, every parishioner wdio paid to the church rates, or scot and lot, and no other person, had a right to come to these meetings. But this must not be misunderstood of the minister who hath a special duty incumbent on him in this matter, and must be responsible to the bishop for his cai'e herein ; and therefore in every parish meeting he presides for the regulating and directing this affair ; and this equally holds, whether he be rector or vicar. (Shaw's Par. L. c. 17.) Qualification to Vote.] Residence within the parish is not a ne- cessary cpialification, as all out-dwellers occupying land in the parish, have a vote in the vestry, as well as the inhabitants, (Johns, 19.) Nor is the payment of church rates essential to entitle a person to vote at vestry meetings. And although at a meeting of the pa- rishioners, in whom, by the custom, the right of electing to a perpetual curacy was vested, such meeting being duly convened for the purpose of choosing a fit person to fill the perpetual curacy, it was resolved, before the election began, that parishioners who had not jiaid, (not having been assessed to) church rates, should not be allowed to vote, and in consequence, several persons, legally qualified to vote, did not tender their votes ; and the votes of others were rejected, because they had not paid the church rate, though they had paid poor rates ; it was held by the Court of King's Bench, that the election was not accord- ing to the custom ; and that it was not competent to the parishioners assembled to narrow the custom by passing a bye-law, which would liave the effect of making it depend upon the will of particular persons whether a person had a light to vote or not, by inserting, or omitting to insert, the names of any particular parishioners in the church rate, and demanding payment thereof. (Faulkner v. Elger, 6 Dowl. & Ryl. 517 ; 4 Barn. & Cres. 449.) Inhabitancy not necessary.] By the 59 Geo. 3. c. 85, passed to amend the act of the preceding session, it is enacted, " Tliat any per- son who shall be assessed and rated for the relief of the poor, in respect of any annual rent, profit, or value, arising from any lands tenements, or hereditaments, situate in any })arish in which any vestry 254 PARISH VESTRIES. [CHap. IX. shall be holden under the said recited act, although such person shall not reside in, or be an inhabitant of such parish, shall and may law- fully be presented at such vestry ; and such person shall have and be entitled to give such and so many vote or votes at such vestry, in respect of the amount of such rent, profit, or value, as by the said act any inhabitant of such parish present at such vestry might or ought to have, and be entitled to give in respect of such amount, and to all intents and purposes, as if such person were an inhabitant of such parish, any thing in the said recited act to the contrary, in any wise notwithstanding." (s. 1.) Rateability necessary.'\ The 58 Geo. 3. c. 69. s, 4, provides, that when any person shall have become an inhabitant of any parish, or become hable to be rated therein, since the making of the last rate for the relief of the poor thereof, he shall be entitled to vote for and in respect of the lands, tenements, and property for which he shall have become liable to be rated, and shall consent to be rated, in like manner as if he should have been actually rated for the same. Payment, if demanded, necessary.'] No person who shall have re- fused or neglected to pay any rate for the rehef of the poor, which shall be due from, and shall have been demanded of him, [" and"] shall be entitled to vote or to be present in any vestr\' of the parish, for which such rate shall have been made, until he shall have paid the same. (Id. s. 5.) The 59 Geo. 3. c. 85, which vvas passed to amend the above act, recites, that the word " and," was inserted in the above place by mis- take ; and to correct the ambiguity, re-enacts the provision as it would stand without that word. And with respect to the votes of companies, &c. (seep(?sf, 255,) by their clerks, &c. goes onto enact, "That no such clerk, secretary, steward, or agent, shall be entitled to be present, or to vote, nor shall be present or vote at any vestry in such parish, unless all rates for the rehef of the poor which shall have been assessed and charged upon, or in respect of the annual rent profit or value, in right of which any such clerk, secretaiy, steward, or agent, shall claim to be present and vote, which shall be due, and which shall have been de- manded at any time before the meeting of such vestry, shall have been paid and satisfied." (Id. s. 3.) SECTION II. — PROCEEDINGS IN VESTRY. Chairman of Vestry.] It has already been stated, that the minister has a right to preside at all vestry meetings ; for a minister is not a Sect. IT.] TROCEEDINGS IN VESTRY. 25-0 mere individual of vestry ; on tlie contrary, he is always described as the first, and as an integral part of the parish ; the fonn of citing a parish being, " the minister, churchwardens, and parishioners ;" and that he and any other individual should be put in competition for the office of chainnan, would be placing him in a degraded situation, in which he is not placed by the constitutional establishment of this country. In sound legal principle he is the head and praeses of the meeting. (Wilson v. M'Math. 3 Phill. Ec. Ca. 87. 3 Barn. & Aid. 246, notis.) The vestry act provides, that in case the rector or vicar, or per])etual curate, shall not be present, the persons so assembled shall I'orthwith nominate by plui'ality of votes, to be ascertained as is directed by the act (see infra, s. 3.,) one of the inhabitants to be chainnan, which is nearly tantamount to a declaration, or by necessary implication declares, that if the rector, vicar, or curate be present, he shall preside ; and the legislatiu'e must evidently have considered, that by law and usage he was entitled to preside. (See 58 Geo. 3. c. 69. s. 2.) Plurality of Votes.] The vestiy act has also made some impor- tant regulations with respect to the right of voting, transferring the right in effect from the person to the property ; or at least giving to property a direct influence m these matters which it did not possess under the former system. It is provided by the third section of the act, " that in all such vestries, every inhabitant present, who by the last rate made for the relief of the poor shall have been assessed in respect of any annual rent, profit, or value, not amounting to £ 50, shall give one vote and no more ; if assessed for any such annual rent, &.C. amounting to £ 50, or ujiwards (whether in one or more than one charge) shall be entitled to give one vote for every £25, in respect of which he shall have been assessed, so that no inhabitant shall give more than six votes ; and where two or more of the inhabitants pre- sent shall be jointly rated, each shall vote according to the proportion which shall be borne by him of the joint charge ; and where only one of the peri5ons jointly rated shall attend, he shall vote according to the whole of the joint charge." (58 Geo. 3. c. 69. s. 3.) Votes of Companies, ^c] And be it further enacted, " That in all cases where any corporation, or body politic, or corporate, or com- pany, shall be charged to the rate for the relief of tKe poor of such parish, either in the name of such corporation, or of any oflicer of the said corporation, it shall and may be lawful for the clerk, secretary, steward, or other agent, duly authorized for that purpose, of such cor- poration or body politic, or corporate, or company, to be present at any vestry to be holden in the said parish, under the said recited act ; 256 PARISH VESTRIES. [Chap. IX. and such cleric, secretary, steward, or agent, shall he entitled to give such and so many vote or votes at such vestiy, in respect of the amount of the rent, profit, or value of such lands, tenements, or here- ditaments, as by the said act, any inhabitant assessed to such rate, present at such vestry, might or ought to have, and be entitled to, in respect of such amount, any thmg in the said recited act to the con- trar}^, in any wise notwithstanding. (59 Geo. 3. c. 85. s. 2.) Plurality of Votes denied.} Where, however, in the parish of St. M. the poor rates had according to an ancient custom been always assessed without regard to the annual value of property in the parish, but according to the su])posed ability of the party assessed, it was held, that persons so rated were not entitled to the benefit confen'ed by the vestry act, as to the plurality of votes, although assessed in respect of property exceeding the annual value of £50. (Nightingale V. Marshall, 2 Bara. & Cress. 313. ; 3 Dowl. & Ryl. 549.) And where feoffees of a charity were directed to do certain acts, only in a vestry or meeting of the said feoffees, and of ten of the inhabitants of the parish, which should be vestrymen in the said parish, and not feoffees, it was held, that the votes were to be taken per capita, and not according to this act, giving a plurality of votes. (Atto. Gen. V. Wilkinson, 3 Brod. & Bing. R. 266. 7 Moore, 187.) Mode of Voting.] The mode of voting may also be of imjjortance to the validity of the proceedings. The common law mode of election is by show of hands, or by poll ; and tlie party electing is then said to have a voice in the election. It is clear that, at common law, where parties have the right of voting, the restriction of voting by ballot cannot be imposed ; it presents an insunnoimtable difficulty to a scrutiny, because no person can tell for whom a particular mdividual voted ; (See Faulbier v. Elger, 4 Barn. & Cres. 449. ; 6 Dowl. & Ryl. 517 ;) besides, under the vestry act, where one person may have any number of votes to the amount of six, other objections might present themselves to voting by ballot. It is therefore evident, that tlie common law mode of voting ought to be adhered to. These reasons are equally cogent against voting by proxy. ( See 1 7 State Trials, 822.) Casting Vote.] The same section also provides, that in all cases of equality of votes, the chairman shall (in addition to such vote or votes as he may by virtue of the vestry act be entitled to give in right of his assessment,) have the casting vote. It is also provided, that the chainnan shall sign the proceedings. Signing the Proceedings.] It is also provided, that such of the inhabitants present as shall think proper, may also sign the pro- ceedings. (Id.) But they incur no separate or individual responsi- Sect. III.] POWER OF vESTRir;s. 257 bility for any thing wliicli may be done in pursuance of a resolution of vestry so signed by them. It has been determined, that vestry- men, who signed a resolution, ordering the parish surveyor to take steps for defending an indictment for not repairing a road, were not to be responsible for the payment of the attorney employed by the sur- veyor (Spratt V. Powell, 3 Bing. 478.) ; for in signing the resolu- tion, they act merely as vestrymen, without any intention of becommg individually responsible. (Lanchester v. Tricker, I Bing. 201, 8 Moore, 20. ; Lanchester v. Frewer, 2 Bing. 361, 9 Moore, 688.) SECTION III. POWER OF VESTRIES. Controul in Parish Matters.] The popular spirit which pervades the constitution of our national government, exists also in these local assemblies, and has of late been excited, in many instances, with simi- lar energy for the coiTection of real or supposed abuses. The vestry has the right to investigate and restrain the expenditure of the parish funds, to detennine the expediency of enlarging or altering their churches and chapels, or of addmg 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, and it has either directly or indirectly, a superintending authority in all the weightier matters of the parish. Acts of Vestry binding.'] If a vestry is called, every parishioner is bound to attend, or, if he do not, he is bound by the acts of those who do. (Glutton v. CheiTy, 2 Phil. Ec. Ca. 380.) It seems, therefore, both reasonable and just, that whoever impedes or obstructs theui in the exercise of this right should be held responsible, as for a personal injury. And to this effect is the case of Phillybrown v. Ryland, (as reported in Stra. 624,) as follows, (though in Ld, Raym. 1388, and And. 235, it is said the court gave no opinion upon this point.) "The plaintiff brought a special action on the case, for excluding him from the vestry-room, and upon demurrer the court m.-i.de no difficulty but that such an action was maintainable ; however in this case they gave judgment for the defendant, it not being averred that the parish had any property in this room, or right to meet there, so tiiat for aught appears it might be the defendant's own house, and then he might let in whom he pleased, and refuse the rest. And this was a fault in substance, and need not to be shown for cause of demurrer. (See also Vhi. Abr. tit. Vestry.) Af/jounmii/ Vestry.] In Stoughton v. Reynolds, it was adjudged, s 258 PARISH VESTRIES. [Cliap. IX. that the right of adjourning the vestry is not in the minister or any other person as chainnan, nor in the churchwardens, but in the whole assembly, where all are upon an equal footing ; and the same must be decided (as other matters there) by a majority of votes. (Str. 1045.) Review by next Vestry.'] The acts of one vestry are not abso- lutely binding on a succeeding vestiy, and they may be confirmed or rescinded by such succeeding vestry; but the confirmation of the succeeding vestry is not necessary to make the acts of the preceding • one valid. (Mawley v. Barbet, 2 Esp. 687.) Distributing Pews. ] The vestry, as such, has no authority what- ever in the distribution of pews — the churchwardens are not bound to follow their directions ; at the same time the sense and opinion of the vestry ought to have weight with them. The vote of the vestiy is of itself of no authority as to the question of right ; but it marks the opinion of the parish. (Sir John Nichol in Pettman v. Bridger, 1 Phil. Ec. Ca. 316.) Extent of Vestry Act.] The provisions of the 58 Geo. 3. c. 69, are expressly extended by the 7th section, " to all townsliips, vills, and places, having separate overseers of the poor, and maintaining their poor separately ; and that all its dii-ections and regulations m regard to vestries shall 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 puiiwses in the act expressed, and that the notices of vestry meetmgs may, in places where there is no paiish church or chapel, or divine service is not performed in such church or chapel, be given and pubhshed in such manner as notices of the Uke nature are there usually published, or as shall be most effectual for communicating the same tc the inhabitants thereof." " Provided also, that nothing in this act contained shall 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 shall any thing in this act contained, extend to take away, lessen, preju- dice, or affect the powers of any vestry or meetmg holden in any parish, township or place, by vhtue of any special act or acts, 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." (Id. s. 8.) " Provided always, and be it further enacted, that nothing in this act contained shall extend to any parish \vithin the city of London, or any parish in the borough of Sonthwark." (Id. ss. 9, 10.) Sect. III.] POWER OF VESTRIES. 259 VESTRY CLERK. Election and Duty.] The vestry clerk is chosen by the vestry, and he acts as registi'ar or secretary thereto, but he has no vote upon, or right to 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.) Custody of the Books.] But although it is his duty to produce such books and papers, and pennit copies to be taken for the ordinary parish purposes, or when they are wanted for the purpose of advanc- ing any parochial right, he cannot be compelled to furnish such docu- ments if they are required for any personal object. The court there- fore refused to compel a vestry clerk to produce documents in the parish chest in his custody, it being in effect to furnish evidence against himself, in an action of libel brought against him by an inha- bitant of the parish. (May v. Gwynne, 4 Barn. & Aid. 301.) But if the parish books be in the custody of any other person, it seems the vestry clerk may have a mandamus to com])el the delivery of them to him. (Rex v. Croydon, 5 T. R. 713.) Though in a later case, where the application was against a churchwarden. Lord Ellen- borough said, " If the muniments belong to the vestry clerk as an- nexed to his office, he may bring an action of detainer or trover ; and his lordship refused the rule. (2 Chit. R. 255.) And by the 58 Geo. 3. c. 69. s. 6, it is provided, that the vestry books, rates and assessments, accoimts and vouchers, of churchwardens, overseers of the poor, and sm'veyors of the highways, and other parish officers, and all certificates, orders of justices, and of courts, and all other parish books, writings, and papers, shall be kept by such person, and in such place and manner, as the inhabitants in vestry shall direct. (See a«fe, "Vestry Books," 133.) Duration of Office.] The office of vestry clerk is not fixed and permanent, for which a mandamus will lie. It depends altogether on the will of the inhabitants, who may elect a different clerk at each vestry. Neither is any salary annexed to this situation. With regard to any sujiposcd agreement made by the parishioners, that this should be an annual office, it could not be obligatory longer than the parties chose to fulfil it; for it might be revoked at the next vestry. (Per Lord Kcnyon in Rex v. Croydon, 5 T. R. 714.) s 9 260 SELECT VESTRIES. [Chap. X. CHAPTER X.— SELECT VESTRIES. Section I. Select Vestries by Custom. II. Select Vestries by Statute. III. Vestries for the Affairs of the Poor. section I. — SELECT VESTRIES BY CUSTOM. Hoiv they originated.'] Select vestries seem to have gi"o\vn from the practice of choosing a certain nmuber of persons yearly to manage the concerns of the parish lor that year ; which by degi-ees 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 such a custom, of the government of parishes by a select num- ber, hath been adjudged a good custom, in that the churchwardens accounting to them was adjudged a good account. (Gibs. 219.) Fallen into disrepute.] In some parishes these select vestries having been thought oppressive and injurious, great struggles have been made to set aside and demohsh them. (Shaw's Pai\ L. c. 17.) And no wonder that it hath been so in such parishes where by custom they have obtained the power to choose one another ; for it is not to be supposed, but if they are guilty of evil practices, they will clioose such persons as they think will connive at or concur therein. (4 Bum. Ec. L. 10.) Such is the language employed by writers upon the subject, more than half a century ago ; and the history of select vestries, in more recent times, affords no sufficient grounds for belie^•ing that the cen- sure is no longer applicable. All experience demonstrates that governing bodies, whose powers are wielded in the secret conclave, uncontrolled by a higher authority, or the influence of pubhc opinion, become in time con-upt ; not always fi'oni bad motives actuat- ing the conduct of the members of such bodies, but from that very love of ease, (and the consequent neglect of dutv) which is considered as the counterpoise of that love of power which induces men, in the first instance, to take upon themselves gratuitously, the burthen of administering public affairs. The propriety, therefore, of inquiring Sect. I.] SELECT VESTRIES BY CUSTOM. 2G1 into the foundation of such institutions, in order to ascertain the just limits of their authority, and the responsibiUty under which it is exer- cised, is obvious. Founded in immemorial usage. 1 Until the recent act of parlia- ment, commonly called Mr. Sturges Bonnie's act, select vestries existed by custom or prescription alone ; and as that statute merely relates to the maintenance of the poor, wherever a select vestry as- sumes to itself the management of the affairs of a parish, its authority must rest upon the foundation of special usage, from time imme- morial ; and none other, except those estabHshed under the above, or some local, statute, can have any other legal origin. For it is quite settled that a select vestry cannot be constituted by a faculty from the bishop ; (Beny v. Banner, Peake, Rep. 156) ; and being in deroga- tion of the common rights of parishioners, can only be sustained by immemorial usage, or by act of parliament. (Goodall and Gray v. Whitmore and Fenn, 2 Hagg. Rep. N. S. 374.) Wherever a select vestry, therefore, of the latter kind, is proved to exist, the next inqiiiry is into the legality of it ; for if it is not a good custom, it ought to be no longer used. " Malus tisus abolendus est" is an eslablished maxim of law. (Litt. s. 212, 4 Inst. 274.) Requisites of such Custom.'] It has been already stated that a custom, to be valid, must have existed immemorially. But the grow- ing interest which has been excited respecting the validity and con- stitution of select vestries supported by custom, renders it expedient to explain what are the requisites of a legal and well-established custom. If any one can show the beginning of a custom, it is no good custom ; for which reason no custom can prevail against an express act of parliament, since the statute itself is a proof of a tune when such a custom did not exist. The memory of man is taken in law to run to the beginning of the reign of Richard I. ; consequently, if it can be shown that the custom commenced at any period since, or, did not exist before that period, it is invahd. But a regular usage for twenty years, unexplained and uncontradicted, is sufBcient to warrant a jury in finding an immemo- rial custom. (Rex v. Jolifie, 2 Bam. & Cres. 54.; 3 Dowl. & Ryl. 240 ; 2 Saund. 175 a. d. Peake's Evid. 336.) Must be Continuous.] It must have heen continued. Any inter- ruption would cause a temporary ceasing : the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this nuist be understood witli regard to an intcnuption of the right ; for an inlcrriq)tion of the possession only 262 SELECT VESTRIES. [Chap. X. for ten or twenty years, will not destroy tlie custom. As, if the inha- bitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years, it only becomes more difficult to prove. In hke manner, where a select vestry existed by custom, but a fa- culty was obtained naming forty-nine persons, together with the ^^car and churchwardens, to constitute that body in future, and appoint- ing that number to be kept up by election, to be made by ten at least, together with the vicar and churchwardens ; and in a few years after- wards, another faculty was obtained, reducing this number of ten to seven ; and these faculties had been constantly acted upon for upwards of sixty years, yet it was held that the custom was not thereby de- stroyed : because, in the first place, these faculties, though acted upon, had no validity in law ; and next it appeared, that ten out of the fourteen vestrymen, who were present at the vestry holden imme- diately before the promulgation of the first faculty, were part of the forty-nine named in that faculty ; and lastly, the vestry, as appointed by the faculty, and as it had since continued, was not inconsistent with the vestry preWously existing by the custom ; and therefore there was not, either in fact or in law, any discontinuance. (Golding v. Fenn, 7 Bam. & Cres. 781 ; 1 Man. & Ryl. 647.) But if the right be any how discontinued, even for a day, the cus- tom is at an end. (1 Bla. Com. 77.) Must be acquiesced ?'«.] It is also requisite to the legality of a custom, that it shall have been peaceable, and acquiesced in, not sub- ject to contention and dispute ; for as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting. ( 1 Bla. Com. 77.) Must be reasonable.] Customs must be reasonable, or rather, taken negatively, they must not be unreasonable, which is not alwaj's, as Sir Edward Coke says, (1 Inst. 62,) to be understood of every unlearned man's reason, but of artificial and legal reason, wan-anted by authority of law. Upon which account a custom may be good, though the particalar reason of it cannot be assigned ; for it sufficeth, if no good reason can be assigned against it. Thus a custom in a parish that no man shall put his beasts into the common, till the 3d of October, would be good, and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom that no cattle shall be put in till the Lord of the Manor has first put in his, is imreasonable, and therefore bad ; for, peradventure, the lord will never put in his, and then the teniuits will lose all their profits. (Co. Copyh. s. 33.) Sect. I.] ■ SELECT VESTRIES BY CUSTOM. 263 The above shows the principle upon whicli the reasonableness of an alleged custom is to he detennined. The application of the principle to select vestries is illustrated in the case of Golding v. Fenn, before cited. It was there held, that a custom by which a select vestry should con- sist of an indejinite nunaber of members, to be filled up at its own choice, without either maximum or minimum being fixed by the custom, is not unreasonable, overruling the dictum of Lord Kenyon in Beny v. Bannei', Peake's R. 156. The Court said, " There is ob- viously no weight in the objection, that without a maximum being fixed, the vestry may consist of too many persons ; and that although no numerical minimum be fixed by the custom, it by no means fol- lows as a consequence, that the number may be reduced to two or three, as the objection supposes : the law may consider it as part of the custom, that there shall be a reasonable number, with reference to long-established usage, and to the population of the parish. That number which might not be too small and not unreasonable, three or four centuries ago, in a parish in which there might not be more than a dozen substantial householders, or even fewer, might not be reason- able, on a change of circumstances, when, by covering fields with houses, the number might be increased more than a huncbed fold." (Golding V. Fenn, 7 Barn. & Cres. 780.) Must be Compulsory. '\ Customs, though established by consent, must be (when established,) compulsory, and not left to the option of every man, whether he will use them or no. Therefore, a custom that all the inhabitants shall be rated toward the maintenance of a bridge, will be good ; but a custom that every man is to contribute thereto at his oivn pleasure, is idle and absurd, and indeed no custom at all. Must be Consistent.] Lastly, customs must be consistent with each other; one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent : which to say of contradictory customs, is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden, the other cannot claim a right by custom to stop up or obstruct those windows, for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the fonner custom. (1 Bla. Com. 77. per tot.) Vestries, how governed, ^c] The ordinary rules and principles of law which relate to vestries generally, {ace ante,) are also applicable to select vestries. It may be observed, that if there be any inherent imperfection in their constitution, from which the evils, at any time 204 SELECT VfiSTRIES. [Chap. X. complained of, necessarily flow, the remedy is in the hands of the le- gislature. Courts of justice can only administer the law as it exists, and are not responsible for suggested improvements, however salutary, nor at liberty to depart from the settled maxims of jurispinidence, however beneficial it might be in the particular instance. Custom where triable.'] The legality of a select vestry iiiay, it seems, be tried incidentally to the principal matter of a suit in the ecclesiastical courts. Thus in questions of subtraction of church- rate, the court having jurisdiction on the subject matter, is bound, unless stopped by pi'ohibition, to proceed to the trial of a select vesti'}', by which the rate was made, and it must be a prohibition in the par- ticular suit; for if other parties before the court upon the same ques- tion have been stopped by prohibition, this will not authorise the refusal of the court to proceed with the cause. (Goodall & Gray v. Whitmore & Fenn, 2 Hagg. Rep. N. S. 369.) Prohibition.] But wherever a custom is in dispute, the proper tribunal is a court of common law, and a prohibition will in all such cases be granted, if sufficient appears in proof of the alleged custom, and that the matter in dispute in the inferior court depends upon the custom. Thus where the suggestion set forth that the parish of Masham in Yorkshire was an ancient parish, and that time out of mind there were twenty-four of the chief parishioners, who all along had been called the four-and-twenty ; and that duiing time immemorial, as often as any one of the said four-and-twenty parishioners happened to die, the rest sur-. iving of the four-and-twenty did choose, and during all the same time used to choose, one other fit parishioner to be one of the four-and-twenty, in the room of him so deceased ; and that within the said parish there is, and dming time immemorial there always hath been, a custom, that the said four-and-twenty for the time being have been used and accustomed, as often as there was occasion, to make rates, and to assess reasonable sums upon the parisliioners for the repairs of the church ; and that the churchwai'dens of the said parish, during all the time aforesaid, have used to receive all duties and dues for burials in the body or aisles of the said church; and if any of the inhabitants refused to pay the said rates or dues for bimals as afore- said, then the churchwardens, by warrant from the twenty-four for the tune being, were used to distrain the goods of the said parishion- ers ; and that the said twenty-four, mth the consent of the vicar or curate, have used to repair the body and aisles of the said church ; and that the churchwardens for the time being have always used to give U2) their accounts to the said four-and-twenty, who allowed or disallowed them as they saw expedient ; and that on the allowance of Sect. II.] SELKCT VESTRIES BY STATUTE. 265 such account, the churchwardens have always heen discharged from giving any other account in any other place : that the plaintiils were churchwardens for the year 1680; and after this year was ended, they gave in their accounts to the four-and-twenty ; and that though all pleas concerning prescriptions and customs ought to be detennined by the common law, yet the dei'endant hath drawn and cited them into the Sj)iritual Court, yet the said defendant hath refused to admit or to receive the said plea. Upon great debate of this case at several times, the court was of opinion that the custom was good and reasonable, and a prohibition was granted. (Batt v. Wilkinson, Lutw. 1027.) So that prescription and constant immemorial usage seem to be the basis and only su]iport of this select vestry. And pursuant here- unto, upon the same foundation and for the same reasons, was the select vestry of the parish of St. Mary-at-Hill hi London, confirmed and established in the King's Bench not many years ago. And since that time, the select vestries of St. Saviour's and St. Olave's in South- wark, for want of proof of such prescription and immemorial usage, have been set aside and demolished. (Shaw's Par. L. c. 17.) One cannot elect another. '\ A select vestry for the management of parochial affairs, existing by ancient custom, cannot elect another select vestry for the management of the poor, within the stat. 59 Geo. 3. c. 12 ; (Rex v. Woodman, 4 Barn. & Aid. 507.) SECTION II. — SELECT VESTRIES BY STATUTE. Particular Provisions.'] By the act of 10 Anne, c. 11, for build- u]g fifty new churches, it is provided, that five or more of the com- missioners, with the consent of the bishop or ordinary of the place, shall appoint a convenient number of suflScient inhabitants of each new parish created by the act, to be vestrymen ; and from time to time, ujjon the death, removal, or other voidence of any such vestrymen, the rest or majority of these may choose another, being an inhabit- ant and householder in the parish, (s. 20.) In several private acts for building particular churches, provision is made for the appointment of select vestries. In some instances, the minister, churchwardens, overseers of the poor, and others who have served, or paid fines for being excused from serving those ofiSces ; in others, the minister, churchwardens, overseers of the poor, and all who pay to the poor rate; — and there are some in which all who rent houses of so much a year, are appointed to be vestrymen within such parishes, and no other persons. 266 SKLECT VESTRIES. [Chap. X. Vestries in new Districts.] The legislature has also, in the mea- sures recently adopted for buildmg and promotmg the building of cliurches in populous parishes, provided that the system of select vestries shall be included, for the management of the ecclesiastical aftiiirs in the new districts or parishes created by those statutes. The provisions on this subject are as follow : — Vestry, how constituted.] In every district, parish, or division of a parish, or disUict chapelry, or consolidated chapelry, in which any church or chapel shall be built, acquired, or appropriated under the said act (58 G. 3. c. 45,) or this act, in which there shall not be a dis- tinct vestry, a select vestry of so many persons as the commissioners shall direct, shall be appointed by the commissioners, with the advice of the bishop, out of the substantial inhabitants, for the care and management of the church or chapel, and all matters relating thereto ; and such select vestry shall annually elect the church or chapelwar- dens on the part of the parish or chapelry; and shall elect new members of such vestry, as vacancies shall arise by death, resigna- tion, or ceasing to inhabit the parish and proper pews, shall be pro- vided for the use of the church or chapelwardens. (59 Geo. 3. c. 134. s. 30.) Former Vestrymen to continue.] Where any parish or place shall be divided into sejjarate parishes, for ecclesiastical pm^poses, or into separate districts or chapelries, in which select vestiies shall be ap- pointed by the commissioners, all members of the select vestry of the origmal church or chapel, shall continue to act as the vestry of such district or division, in all matters relating to such church or chapel, and the repairs thereof, or to any other ecclesiastical matters or things, or in the distribution of any proportion of any bequests, gifts, or charities, which may, under this act, be assigned to any such district or division; provided that no member of any select vestry shall, after such division, act in any manner relating to any church or chapel, or any other ecclesiastical matters or things, except such as relate to the division in which he shall reside ; and if by reason of such division, a sufEcient number of such members of select vestry shall not remain resident in the division within which the original church or chapel shall be situate, according to the proportion fixed by the commission- ers, (regard being had to the population of such division, and its rela- tive population to that of the whole parish or place,) all such de- ficiencies shall be filled up as vacancies have before been filled up therein ; provided that no person shall vote in supplying such de- ficiencies, unless resident within the division for which the members are to be chosen ; provided that the persons chosen shall not thereby Sect. III.] VESTRIES FOR AFFAIRS OF THE POOR. 267 be members of the vestry lor any other purj)oses than such as relate to the division for which they shall be chosen, or for the distribution of any charitable gifts therein ; provided that all the members of the select vestry of any such parish or place, resident in any other divi- sions thereof, shall be members of such vestries as shall be appointed under the acts for the divisions in which they shall reside." (3 Geo. 4. c. 72. s. 10.) The comt refused to compel a vestry to appoint a surveyor to certify, that a newly-formed road had been properly constructed, drained, &c., which the vestry had the power of doing under their local act, as that would cast the burden of repairing the road on the parish ; and it appeared that it would not be so much for the benefit of the public as of the proprietors, during the time their buildings were completing. (R. v. Paddmgton Vestry, 9 Barn. & Cres. 456.) SECTION III. VESTRIES FOR AFFAIRS OF THE POOR. How constituted.] " For the better and more effectual execution of the laws for the relief of the poor, and for the amendment thereof, it is enacted. That it shall be lawful for the inhabitants of any jiarish (in England) in vestry assembled, and they ai'e hereby empowered, to establish a select vestry for the concerns of the poor of such parish, and to that end, to nominate and elect in the same or in any subse- quent vestry, or any adjournment thereof respectively, such and so many substantial householders or occupiers within such parish, not exceeding the number of twenty nor less than five, as shall, in any such vestry, be thought fit to be members of the select vestry ; and the rector, vicar, or other minister of the parish, and, in his absence, the curate thereof, (such curate being resident in and charged to the poor's rates of such })arish,) and the churchwardens and overseers of the poor for the time being, together with the inhabitants, who shall be nominated and elected as aforesaid, (such inhabitants being first thereto apjiointed by writing, under the hand and seal of one of his Majesty's justices of the peace, which appointment -he is hei'eby au- thorized and required to make,) shall be, and constitute, a select vestry, for the care and management of the concerns of the poor of such parish, and any three of them, (two of whom shall neither be churchwardens nor overseers of the poor,) shall be a quorum." (59 Geo. 3. c. 12. s. 1.) Select, supersedes ancient, Vestry.] Wherever a select vestry is appointed, the right of the common law vestry has always, in practice. 268 SELECT VESTRIES. [Chap. X. been considered as de facto superseded; and the language of this act of Parhament apjjears to confer upon that body the authority relative to the care and management of the poor which the parishioners at large were before in the habit of exercising. It is optional with the parishioners, whether they will or will not proceed upon the old law, or upon the provisions of this statute, by the appointment of a select vestry ; but if they pm'sue the latter course, they delegate then- au- thority to that body. It follows, i'lat the consent of a select vestry, constituted under this act, is sufficient to render valid a contract under the 9 Geo. 1. c. 7. s. 4, for the lodging, keeping, and maintaining the poor of a parish. (Clarke v. King, 2 Younge & J. 525.) Ancient cannot elect Select Vestry.'] Where a select vestry, which had existed immemorially, assumed to elect a select vestry for the concerns of the poor under this act, and the magistrates made an order ajipointing the persons, so chosen, as a select vestry accordingly, upon the order being removed into the King's Bench, it was said by Abbott, C. J., "I am clearly of opinion, that the sixteen persons who constituted the ancient select vestry cannot be considered the m- Labitants of the parish in vestry assembled, within the meanuig of the 59 Geo. 3. c. 12. The power to appoint a select vestry is expressly given to the inhabitants m vestry assembled ; and here it was exer- cised, not by the inhabitants in vestiy assembled, but by certain per- sons possessing some of the powers of the inhabitants in vestry assembled. It is not necessary in this case to decide what the inha- bitants may do, but I have no difficulty in saying, that, in my opinion, the inhabitants at large may assemble and appoint a select vestry for the care and management of the poor, not interfering with any of the rights of the ancient select vestry." The order was accordingly quashed. (Rex v.-Woodman and others, 4 Bai'n. & Aid. 507.) Vacancies how supplied.'] " When any inhabitant, elected and ajjpointed to serve in any such select vestry shall, before the expiration of hi§ office, die or remove from the parish, or shall become incapable of serving, or shall refuse or neglect to serve therein, the vacancy which shall be thereby occasioned shall, as soon as conveniently may be, be filled up by the election and appointment in manner aforesaid of some other substantial householder or occupier of such parish, and so from time to time, as often as any such vacancy shall occm- ; and every such select vestry shall contuiue and be empowered to act from the time of the appomtment thereof, imtil fourteen days after the next annual appointment of overseers of the poor of the parish shall take place, and may be from year to year, and in any future year, received in the manner hereinbefore directed." (59 G. 3. c. 12. s. 1.) Sect. III.] VESTRIES FOR AFFAIRS OF THE POOR. 269 Vestry Meetings.'\ " Every such select vestry shall meet once in every fourteen days, and oftener if it shall be found necessary, in the parish church, or some other convenient place within the parish, and at every such meeting a chamnan shall be appointed by the majority of the members present, who shall preside therein ; and in all cases of equaUty of votes upon any question there arising, the chairman shall have the casting vote." (59 Geo. 3. c. 12. s. 1.) Duties of Vestnes.'\ " Ev^ery such select vestry is hereby em- powered and required to examine into the state and condition of the poor of the parish, and to inquhe into and detennine upon the proper objects of relief, and the nature and amount of the relief to be given ; and in each case shall take into consideration the character and con- duct of the poor person to be relieved, and shall be at liberty to dis- tinguish, in the relief to be granted, between the deserving and the idle, extravagant and profligate poor ; and such select vestry shall make orders in writuig for such relief as they shall think requisite, and shall inquire into and superintend the collection and administra- tion of all money to be raised by the poor's rates, and of all other funds and money raised or applied by the paiish to the relief of the poor." (Ibid.) Overseers to obey Vestry.^ " Where any such select vestry shall be established, the overseers of the poor are required, in the execution of their ofllice, to conform to the directions of the select vestry, and shall not, (except in cases of sudden emergency or urgent necessity, and to the extent only of such temporary relief as each case shall require, and except by order of justices in the cases hereinafter jiro- vided for,) give any further or other relief or allowance to the poor, than such as shall be ordered by the select vestry." (Ibid.) Relief refused, ^c. by Vestry.] " When any complaint shall be made to any justice of the peace of the want of adequate relief by, or on behalf of, any poor inhabitant of any parish, for which a select vestry shall be established by \irtue of this act, or in which the relief of the poor is or shall be under the management of guardians, gover- nors, or directors, appointed by virtue of special or local acts ; such justice shall not proceed therein, or take cognizance thereof, unless it shall be pro\ ed on oath Ijcfore him, that a2)plication for such relief hath been first made to, and refused by, the select vestry, or by such guardians, governors, or directors; and in such case the justice, to whom the complaint shall be made, may summon the overseers of the poor, or any of them, to appear before any two of his Majesty's jus- tices of the peace to answer the complaint ; and if, upon the hearing thereof, it shall be proved on oath, to the satisfaction of the justices 270 SELECT VESTRIES. [Chap. X. who shall heal" the same, that the party complaining, or on whose behalf the complaint shall be made, is in need of rehef, and that ade- quate relief hath been refused by the select vestry, or by such guar- dians, governors, or directors, or that such select vestry shall not have assembled as by this act directed, it shall be lawful for such justices to make an order under then- hands and seals for such relief as they, in their just and proper discretion, shall think necessary, (re- ference being also had by such justices to the character and conduct of the aj^plicant,) provided, that in every such order the special cause of gi-anting the relief thereby directed, shall be expressly stated, and that no such order shall be given for, or extend to any longer time, than one month from the date thereof, provided, that it shall be law- ful for any justice to make an order for relief in case of urgent neces- sity to be specified in such order, so as such order shall remain in force only until the assembling of the select vestry of the parish, or of such guardians, governors, or directors, as aforesaid, to which such case shall relate." (59 Geo. 3. c. 12. s. 2.) Minutes of Proceedings.'\ " Every select vestry to be established by the authority of this act shall cause minutes to be fairly entered in books, to be for that purpose provided, of all their meetings, pro- ceedings, resolutions, orders, and transactions, and of all sums received, apphed, and expended by their direction ; -and such minutes shall, from time to time, be signed by the chairman, and shall, together with a summary or report of the accounts and transactions of the select ves- try, be laid before the inhabitants in vestry assembled, in the month of March and the month of October, and at such other times as the select vestry shall think fit ; and the minutes, proceedings, accounts, and reports of every select vestry shall belong to the parish, and be 2:»reserved wdth the other books, documents, accounts, and public papers thereof." (Ibid, s. 3.) Notice of Vestry Meetinffs.] " Provided, that the churchwardens and overseers of the poor shall cause ten days' notice, at the least, to be publicly given, in the usual manner, of every vestry to be holden for the purpose of establishing any select vestry, or of nominating and electing the members, or any member thereof, and of every vestry to be holden for the puiiiose of receiving the report of the select vestry, and every notice of any such vestry shall state the special purpose thereof." (Ibid, s. 4.) Relief where no Select Vestry.'\ "Every order to be made for the relief of any poor person by the churchwardens and overseers of the poor of any parish, not having a select vestry under the authority of this act, shall be made by two or more justices, who shall, in making Sect, in.] VESTRIES FOR AFFAIRS OF THE POOR. 271 every such order, Uike into their consideration the character and con- duct of the person applying for relief, provided, that in every such order the special cause of granting the relief thereby directed shall be expressly stated, and that no such order shall be given for, or ex- tend to, any longer time than one month from the date thereof; pro- vided also, that in cases of emergency and urgent distress, it shall be lawful for one justice to order such relief as the case shall require, stating in his order the circumstances of the case ; but no such last- mentioned order shall entitle any person to claim relief by virtue thereof more than fourteen days from the date of the order, nor shall the same have any force or effect after the next petty session to be holden within the hundred or other division or district, in which the parish to which the same shall apply shall be situated." (59 Geo. 3. c. 12. s. 5.) Townships, Justices, ^c] " All powers and authorities by this act given to, and vested in, justices of the peace, shall be exercised and executed by such justices within the limits of their respective conmiissions and jurisdictions, and not elsewhere; and that all provi- sions, clauses, authorities, and directions in this act contained, in relation to parishes, shall extend, and be construed to extend, to all townships, vills, and places, having sejmrate overseers of the poor, and maintaining their poor separately ; and that all acts and duties required or authorized by this act to be done and executed by church- wardens and overseers of the poor, may, in every parish, be perfomtied, exercised, and executed by the major part of the churchwardens and overseers of the poor thereof ; and that in townships, vills, and places, which have no churchwardens, the same may be performed, exercised, and executed by the overseers thereof, or the major part of them ; and that all the powers, provisions, and clauses in this act contained, which relate to vestries, or to the inhabitants of any parish in vestry assembled, shall be construed to extend to all meetings of the inha- bitants of any township, vill, or place, having separate overseers of the poor, and maintaining its poor sejiarately, to be held after due and legal notice for carrying into execution the laws for the relief of the poor, as fully as if, in every such provision and clause, they were severally and respectively named and repeated." (s. 35.) Saving Powers by other Acts.] " Nothing in this act contained shall extend, or be construed to extend, to take away, abridge, alter, prejudice, or affect, further than is hereby expressly enacted, any of the powers, directions, provisions, or regulations contained in the 22 Geo. 3. c. 83, for the better relief and employment of the poor in, or with respect to, such parishes, townships, and places as have 272 JUSTICES OF THE I'EACE. [Chap. XI. adopted, or shall adopt, and hccome subject to, the provisions of that act, nor to take away, abridge, alter, prejudice, or affect any of the powers or provisions of any special or local act or acts for the mainte- nance, relief, or regulation of the poor, in any city, town, hvmdred, district, parish, or place ; so, nevertheless, that in every city, town, hundred, district, parish, or place, such of the clauses, directions, and powers in this act contained, as are not repugnant to, nor mcompatible with, the provisions of the said act of the 22 Geo. 3, or of such re- spective special or local acts, shall have the like force and effect, and may be adopted and applied in like manner as in other parishes and places ; provided also, that nothing in this act contained shall extend, or be construed to extend, to alter, affect, or disturb any select vestry which in any parish has been established and acted upon by virtue of any ancient usage or custom." (s. 36.) CHAPTER XI.— JUSTICES OF THE PEACE. Section I. Appointment and Qualification. II. Their Jurisdiction. III. Their Ministerial Duties. IV. Their Judicial Duties. V. Protection and Liability. VI. Fees of their Clerks. SECTION I. APPOINTMENT AND QUALIFICATION. Different kinds of Justices.] Justices of the peace are of three sorts ; first, by act of Parliament, as the bishop of Ely and his suc- cessors, the archbishop of York, and the bisliop of Durham : secondly, by charter or grant, made by the king under the great seal, as the mayors and chief officers in corporate towns ; and, thirdly, by com- mission. (27 Hen. 8. c. 24; 2 Hawk. P. C. 40.) Antiquity of the Office.'] The officer to whom the accumulated duties of justice of the peace are now confided, was in the times of our Saxon kings, and for a long period afterwai-ds, chosen by the free- holders of counties, in the same manner as coroners are still elected. They were then known under the appellation of conservatores pads, and it was not till about the year 1327, that justices, or commission- Sect. I.] APPOINTMENT AND QUALIFICATION. 2*3 ers of the peace, were created, the earhest statute on the subject to be found in the pailiamentary rolls being the 1 Edw. 3. c. 16. By ivhom appointed.^ "No person, of whatever estate, degree, or condition soever he be, shall have any power or authority to make any justices of peace ; but that they shall be made by letters patent under the king's gieat seal, in the name and by authority of the king, and his heirs, kings of this realm, in all shires, counties, coun- ties palatine, and other places of this realm, Wales and the marches of the same, or in any other his dominions, at their pleasure and wills, in such manner and form as justices of peace be commonly made in every shire of this realm ; any grants, usages, prescriptions, allowances, act or acts of Parliament, or any other thing or things to the contrary thereof notwithstanding." (27 Hen. 8. c. 24.) It seems very doubtful, whether since this statute the crown can delegate to a subject the power of appointing a justice of the peace. And therefore, where by the charter of a borough, the aldermen for the time being were to be justices of the peace, and they were em- powered to execute, in their absence, by their deputies, the offices of aldermen of the said borough, it was held, that the deputy had not the power of a justice of the peace vested m him : and that at all events, if the crown can delegate the power of appointing a justice in this manner, such a delegation can only be made in the most clear and express language, and not by implication merely. (.Jones v. Williams, 2 Bam. & Cres. 762 ; 5 Dowl. & Ryl. 654.) In County Palatine, ^c] ITie 5th section of the act provides, " That justices of the peace, to be made and assigned by the king's highness within the county palatine of Lancaster, shall be made and ordained by commission under the king's usual seal of Lancaster, in manner and form as hath been accustomed." Section 6 provides, " That all cities, boroughs, and towns coi^jorate within this realm, which have liberty, power, and authoiity to have justices of peace, or justices of gaol delivery, shall still have and enjoy their liberties and authorities in that behalf, after such like manner as they have been accustomed, without any alteration by occasion of this act." (27 Hen. 8. c. 24.) Form of the Commission.l The fonn of the commission was re- vised by the judges in 1590 ; and being presented to the Lord Chan- cellor, he commanded the same to be adopted, wliich continues, with very little alteration, to be still used. (Lamb. c. 9.) It is as follows : — " George the Fourth by the gi'ace of God of the united kingdom of Great Britain and Ireland, King, Defender of the Faith, to A, B, C, Y), &C. greeting. T 274 JUSTICES OF THE PEACE. [Chap. XI. " Know ye, that we have assigned you jointly and seveiully, and every one of you, our justices to keep our peace in our county of S. And to keep and cause to be kept all ordinances and statutes for the good of the peace, and for preservation of the same, and for the quiet rule and government of our people made in all and singular their ar- ticles in our said county (as well within Uberties as without), accord- ing to the force, fonn, and effect of the same ; and to chastise and punish all persons that offend against the form of those ordinances or statutes, or any one of them, in the aforesaid county, as it ought to be done according to the fomi of those ordinances and statutes, and to cause to come before you, or any of you, all those who to any one or more, of our people concerning their bodies, or the firing of their houses, have used threats, to find sufficient security for the peace, or their good beha- viour, towards us and our people ; and if they shall refuse to find such security, then them in our prisons, until they shall find such security, to cause to be safely kept." {In Sessions.^ The commission then proceeds to explain their power and duty in sessions thus :) — " We have also assigned you, and every two or more of you (of whom any one of you, the aforesaid A, B, C, D, &c. we will shall be one,) our justices, to inquire the truth more fully by the oath of good and lawful men of the aforesaid county, by whom the truth of the matter shall be the better known, of all and all manner of felonies, poison- ings, enchantments, sorceries, ai'ts magic, ti'espasses, forestallings, re- gratings, ingrossings, and extortions whatsoever; and of all and singu- lar other Climes and offences, of which the justices of our peace may or ought lawfully to inquire, by whomsoever and after what manner soever in the said county done or per[>etrated, or which shall happen to be there done or attempted ; and also of all those who in the afore- said counties, in companies against our peace, in disturbance of our people, with amied force, have gone or rode, or hereafter shall pre- sume to go or ride ; and also of all those who have there lain in wait, or hereafter shall presume to lie in wait, to maim, or cut, or kill our people ; and also of all victuallers, and all and singula!' other persons who, in the abuse of weights or measures, or in selling victuals against the form of the ordinances and statutes, or any one of them, therefore made for the common benefit of England, and our people thereof, have offended or attempted, or hereafter shall presume in the said county to offend or attempt ; and also of all sheriffs, bailifis, stewards, constables, keepers of gaols, and other officers, who, in the execution of their offices aboitt the piemises, or any of them, have unduly behaved themselves, or hereafter shall presume to Iwhave Sect. I.] APPOINTMENT AND QUALIFICATION. 27o themselves unduly, or have been or shuU happen hereafter to be care- less, remiss, or negligent in our aforesaid county : and of all and sin- gular articles and circumstances, and all other things whatsoever, that concern the premises of any of them, by whomsoever and after what manner soever in our aforesaid county done or perpetrated, or which hei-eafter shall there happen to be done or attempted in what manner soever ; and to inspect all indictments whatsoever so before you, or any of you, taken or to be taken, or before others, late our justices of the peace in the aforesaid county, made or taken, and not yet deter- mined ; and to make and continue processes thereupon against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted, until they can be taken, surrender them- selves, or be outlawed ; and to hear and detennine all and singular the felonies, jjoisonings, enchantments, sorceries, arts magic, trespasses, forestallings, regratings, engrossings, extortions, unlawful assemblies, indictments aforesaid, and all and singular other the premises, ac- cording to the laws and statutes of England, as in the like case it has been accustomed or ought to be done ; and the same offenders, and every of them, for their offences, by fines, ransoms, amerciaments, forfeitures, and other means, as according to the laws and custom of England, or form of the ordinances and statutes aforesaid, it has been accustomed or ought to be done to chastise and punish. " Provided always, that if a case of difficulty upon the deter- mination of an}' of the premises before you, or any two or more of you^ shall happen to arise, then let judgment in nowise be given thereon, before you or any two or more of you, unless in the presence of one of our justices of the one or other bench, or of one of our jus- tices appointed to hold the assizes in the aforesaid county. "And therefore we command you, and every of you, that to keeping the peace, ordinances, statutes, and all and singular other the premises, you diligently apply yourselves, and that at certain days and places which you or any such two or more of you, as is aforesaid, shall appoint for these purposes, into the premises ye make inquiries, and all and singular the premises hear and determine, and perform and fulfil them in the aforesaid fonn, doing therein what to jus- tice a])pertains according to the law and custom of England, saving to us the amerciaments and other things to us tlierefrom be- longing. " And we command, by the tenor of these presents, our sheriff of S. that at certain days and places, which you or any such two or more of you, as is aforesaid, shall make known to him, he cause to come before you, or svich two or more of you, as aforesaid, so many 27('. JUSTICES or the peace. [Chap. XT. and such good and lawful men of his bailiwick (as well within liber- lies as without), by whom the truth of the matter in the premises shall be the better known and inquii-ed into. " Lastly, We have assigned to you the said A. B. keeper of the rolls of our peace in our said county ; and therefore you shall cause to be brought before you and your said fellows, at the days and places aforesaid, the writs, precepts, processes, and indictments aforesaid, that they may be insjjected, and by a due course detennincd, as is aforesaid. " In witness whereof we have caused these our letters to be made patent. Witness ourselves at Westminster," &c. Who may be Justices.] By stats. 13 R. 2. st. 1. c. 7 ; and 2 H. 5. St. 2. c. 1, The justices shall be made within the comities, of the most sufficient knights, esquires, and gentlemen of the law. By Stat. 1 Mary, sess. 2. c. 8. s. 2, No sheriff shall exercise the office of a justice of the peace during the time that he acts as sherifi'; and the reason seems to be^ because he cannot act at the same time both as judge and officer, for so he would command himself to exe- cute his own precepts. Also, if he be made a coroner, this, by some opinions, is a discharge of his authority of justice. (Dalt. c. 3.) By Stat. 1 Edw. 6. c. 7. ss. 3, 4, If he be created a duke, arch- bishop, marquis, earl, viscount, baron, bishop, knight, judge, or Ser- jeant at law, this taketh not away his authority cf a justice of the peace. Also, by Stat. 5 Geo. 2. c. 18. s, 2. No attorney, solicitor, or proctor, shall be a justice of the peace for any county, dming the time he shall continue in the practice of that busmess ; but this does not extend to cities or towns counties of themselves, or to cities, towns, cinque ports, or liberties, having justices of the peace by charter, commission, or otherwise, (s. 4 ;) nor to peers of Parliament, or to eldest sons or heirs apparent of such, or of persons quaUfied to serve as knight of the shire, (s. 6 ;) nor to heads of colleges or halls in either of the universities, (s. 7.) Mayor when a Justice.'] Though a man be a mayor, it doth not follow that he is a justice of the peace, for that must be by a particu- lar grant in the charter. (R. v. Langley, 2 Ld. Raym. 1030.) But although he be not a justice of the peace by the charter, yet there are many cases wherein he hath the same power as a justice of the peace given unto him by particular statutes ; as, for instance, with regard to the customs, alehouses. Lord's day, swearing, gaming, weights, ser- vants, &:c. Oath of Office.] By the 1 Geo. 3. c. 13. s. 2, Power is given to Srct. J.J API'OIM'MENT ANU Uf ALIFICAilON. 277 the clerk of the peace of every county, riding, or division in England and Wales, to administer the oaths to justices. And by the 7 Geo. 3. c. 9, it is provided, that justices, who have already taken the oaths, shall not be required to go through that ceremony again, upon the is- suing of a new commission, during the same reign. The oath of olhce is as follows : — " Ye shall swear, that as justice of the peace in the county of S., in all articles in the king's commission to you directed, you shall do equal right to the poor and to the rich, after your cunning, wit, and power, and after the laws and customs of the realm, and statutes thereof made ; and ye shall not be of counsel of any quaiTel hanging before you ; and that ye hold your sessions after the fonn of the statutes thereof made ; and the issues, fines, and amerciaments that shall happen to be made, and all forfeitures which shall fall before you, ye shall cause to be entered without any concealment (or embezzling), and truly send them to the Idng's exchequer. Ye shall not let for gift or other cause, but well and truly ye shall do your office of justice of the peace in that behalf; and that you take nothing for your office of justice of the peace to be done, but of the king, and fees accustomed, and costs limited by statute ; and ye shall not direct, nor cause to be directed, any wanant (by you to be made) to the parties, but ye shall direct them to the baililF of the said county, or other the king's officers or ministers, or other indiflerent persons, to do execu- tion thereof. So help you God.'' Qualijication of Justices.] The 18 Geo. 2. s. 1, after reciting. That whereas by many acts of Parliament of late years made, the power and authority of justices of the peace is greatly increased, whereby it is become of the utmost consequence to the commonweal to pi'ovide against persons of mean estate acting as such : it is enacted, that from and after the twenty-fifth day of March, one thousand seven hundred and forty-six, no person shall be capable of being a justice of the peace, for any county, riding, or division in England, or the princi- l)ality of Wales, who shall not have either in law or equity, to and for his own use and benefit in possession, a freehold, copyhold, or cus- tomary estate for life, or for some greater estate, or an estate for some long term of years, detenuinable ujion one or more life or lives, or for a certain tenn originally created for twenty-one years or more, in lands, tenements, or hereditaments, lying or being in England, or the principality of Wales, of the clear yearly value of one hundred pounds, over and above what will satisfy and discharge all inctmi- brances that ailect the same, and over and above all rents and charges payable out of, or in respect of the same; or who shall not be seised ■27S JUSTICES OF THE PEACE. [Chap. XI. of or ciititled unto, in law or equity, to and for his own use and benefit, the iunnediate reversion or remainder of and in lands, tenements, or hereditaments, lying or being as aforesaid, which are leased for one, two, or three Uves, or for any term of years determinable upon the death of one, two, or three lives u]3on resei-ved rents, and which are of the clear yearly value of three hundred pounds, and who shall not before the said twenty-fifth day of March, or before he takes upon himself to act as a justice of the peace after the said twenty-fifth day of March, at some general or quarter sessions for the county, riding, or division, for which he does or shall intend to act, first take and sub- scribe the oath following : — Qvalijication Oath.'\ "I, A. B. do swear, that I truly and hand fide have such an estate in law or equity to and for my own use and benefit, consisting of \specifying the nature of such estate, whether messuage, land, rent, tithe, office, benefice, or what else'\, as doth qualify me to act as a justice of the peace for the county, riding, or division of , according to the true intent and meaning of an act of parliament made in the eighteenth year of the reign of his majesty king George the Second, intituled, ' An Act to amend and render more effectual an act passed in the fifth year of his present majesty's reign, intituled, "An act for the further qualification of justices of the peace;"' and that the same [except where it consists of an office, benefice, or ecclesiastical preferment, which it shall be sufficient to ascertain by their known and usual names] is lying or being, or issuing out of lands, tenements, or here- ditaments bemg within the parish, township, or precinct of , or in the several parishes, townships, or precincts of , in the county of , or in the several counties of , [as the case may be."'\ Which oath so taken and subscribed as aforesaid, shall be kept by the clerk of the peace among the records of the sessions, who shall upon demand, deliver a true and attested copy thereof to any person paying two shillings for the same, which shall be admitted in evidence in any action, suit, or infonnation to be brought upon this act. (s. 2.) Unqualified person acting.] Any person who shall act as a justice of the peace for any county, &c. without having taken and subscribed the said oaths, or without being qualified according to the true intent and meaning of this act, shall for e\ery such offence forfeit one hun- dred pounds, one moiety to the poor of the parish in which he most usually resides, and the other to the j^erson who shall sue for tlie same, to be recovered with full costs by action of debt, bill, plaint, or information in any of his majesty's courts of record at Westminster, Sect. I.] Al>POINTiMENT AND QUALIFICATION. 279 in which no essoign, protection, wager of law, or more than one im- parlance shall be allowed ; and in every such action, &c. the proof of his qualification shall lie on such person against whom the same is brought, (s. 3.) Defendant to specify Lands.'] If the defendant in any such action, &c. shallintend to insist upon any lands, &c., not contained in such oath as his qualification in part, or in the whole, at the time of the supposed offence wherewith he is charged, he shall, at or before the time of his pleading, deUver to the plaintiff, or informer or his attorney, a notice in wilting, specifying such lands, &c., (other than those contained in the said oath), and the parish, or place, wherein the same are respectively situate, (offices and benefices excepted, which it shall be sufficient to ascertain by their known and usual names ; and if the plaintiff or in- former in any such action, &c., shall think fit thereupon not to pro- ceed any further, he may, with the leave of the court, discontinue such action, suit, or information, on payment of such costs to the defendant as the court shall award, (s. 4.) Lands omitted not allowed,] Upon the trial of any such action, &c., no lands, &c., which are not contained in such oath and notice as aforesaid, or one of them, shall be allowed to be insisted upon by the defendant as any part of his qualification, (s. 6.) Lands incumbered.] Where the lands, &c., contained in the said oath or notice are, together with other lands, &c., belonging to such person, liable to any charges, rents, or incumbrances, that within the true intent and meaning of this act, the lands, &c., contained in the said oath or notice shall be deemed and taken to be liable and charge- able only so far as the other lands, tenements, and hereditaments so jointly chai'ged, are not sufficient to pay, satisfy, or discharge the same. (s. 6.) Qual/Jication by Rent.] Where the qualification required by this act or any part thereof consists of rent, it shall be sufficient to specify in such oath or notice as aforesaid, so much of the lands, tenements, or hereditaments, out of which such rent is issuing, as shall be of sufficient value to answer such rent. (s. 7.) Action discontinued.] In case the plaintiff or infonner in any such action, suit, or information, shall discontiime the same otherwise than as afcn'csaid, or be nonsuit, or judgment be otherwise given against him, that then and in any of the said cases, the person against whom such action shall have been brought, shall recover treble costs, (s. 8.) Onhj one penalty.] Only one penalty of one hundred pounds shall be recovered from the same person by virtut? of this act, or of 280 JUSTICES OF THE PEACE. [Cljajl. XI. 5 Geo. 2. c. 18., (ov the same or any otber offence committed by the same person before the bringing of the action, &c., upon which one penalty of one hundred pounds shall have been recovered, and due notice given to the defendant of tlie commencement of such action, &c., anv thing in this or the same act to the contraiy notwithstand- ing, (s. 9.) Subsequent Action for prior Offence.^ Where an action, &c., shall be brought, and due notice given thereof as aforesaid, no pro- ceeding shall be had upon any stibsequent action, &c., against the same person for any offence committed before the time of gi^'ing such notice as aforesaid ; but the court, where such subsecpient action, &c., shall be brought, may, upon the defendant's motion, stay proceedings upon every such subsequent action, &c., so as such first action, &c., be prosecuted without fraud and with effect, it being hereby declared, that no action, &c., which shall not be so prosecuted, shall be deemed or construed to be an action, suit, or information, within the intent and meaning of this act. (s. 10.) Limitation of Actions.] Every action, &c., given by this or the said fonner act, shall be commenced within the space of six calendar months after the fact, upon which the same is grounded, shall have been ^iommitted. (s. 11.) Places excepted.'] This act shall not extend to anv citv or town being a county of itself, or to any other city, town, cinque port, or liberty, having justices of the peace within their respective limits and precincts by charter, commission, or othei"wise, but that in every such city, to^Ti, liberty, and place, such persons may be capable to be justices of the peace, and in such manner only, as they might have been if this act had never been made. (s. 12.) Persons excepted.] Nothing in this act or in stat. 5 Geo. 2. c. 18. contained shall extend to any peer, or to the lords or others of his majesty's privy council, or to the judges, the attorney or solicitor- general, the justices of gi-eat sessions for Chester, or Wales, within theu" respective jurisdictions, or to the eldest son or heir-apparent of any peer or lord of parliament, or of any person qualified to serve as a knight of a shire by stat. 9 Ann. c. 5., or the officers of the board of gTeen cloth within the verge of his majesty's palaces, the commis- sioners and principal officers of the navy, or the two under secre- taries in each of the offices of the principal secretary of state, or the secretary of Chelsea college, or any of tlie heads of colleges or halls in either of the two universities of Oxford and Cambridge, the vice-chancellor of either of the said universities, the mayor of the city of Oxford, or of the towTi of Cambridge, but they may be and Sect. I.] APPOINTMENT AND QUALIFICATION. 281 act as justices of the peace, as fully and freely in all respects as heretofore they have lawfully used to execute the same. (ss. 13, 14, 15.) Other Oaths, S^c] A justice of the peace must also, within six months, take the oaths of allegiance, supremacy, and abjuration, in one of the courts at Westminster, or at the general or quarter sessions, of the place where he .shall be or reside, as other persons qualifying for offices. But the recent statute, the 10 Geo. 4. c. 7, for the relief of his majesty's Roman Catholic subjects, has substituted another oath in the ])lace of those above named, to be taken by persons pro- fessing the Roman Catholic religion. And the sacramental test is repealed in all cases, and a declaration to be made in lieu thereof is provided by 9 Geo. 4. c. 17. (See ante p. 141.) Act of Indemnity.] It is the practice to introduce an indemnity in some act of parliament every session, and to give further time to justices of the peace to take the oaths of allegiance, &c., provided they take the same within the time therein specified, and qualify accord- ing to Stat. 18 Geo. 2. c. 20. And jjrovided also, that the same shall not extend to any person against whom final judgment shall have been given ; nor to exempt any such justice from such penalties who shall act without being duly qualified. (See 10 Geo. 4. c. 12.) Becoming disqualijied.] In an action of debt, brought upon the Stat. 18 Geo. 2. c. 20, to recover the penalty for acting as a justice of the peace in the county of York, the defendant not being duly qualified; it appeared that the defendant had taken the benefit of an insolvent act in January, one thousand eight hundred and fourteen, subsequently to which time he had repeatedly acted as a magistrate without acquuing any new qualification. He had qualified originally in one thousand eight hundred and two. No notice of action had been given, according to the provisions of the 24 Geo. 2. c. 44, and Wood B. ruled that the defendant was not within the act, and there- fore not entitled to notice. It was contended, that if the defendant could show that when he was discharged from prison, there was a fair probability that his estate would pay his debts, and leave a suffi- cient suq:)lus to uphold the qualification of a magistrate, the action would not lie. Upon which Wood B. said, all the defendant's estate is now vested in the clerk of the peace ; his legal and equitable rights are equally transferable to his creditors. We cannot take an account here, and declare a sui-jjIus in his favour. The defendant may ulti- mately be entitled to qualify ; but at present he has not the title which the act of parliament requires^: and the plaiutifl" had a verdict. (Wright V. Hwlon, Holt R. 458.)^ ' 282 JUSTICES OF THE PEACE. [Chap. XI. Acts of unqualijied Justice.] But tbe acts of a justice of the j)cace who has not duly qualified, are not absohitely void, and there- fore per-T^ons seizing goods under a vvaiTant of distress, signed by a justice who had not taken the oaths at the general sessions, nor de- livered in his certificate as required, ai'e not trespassers. And Abbott C. J. in delivering the judgment of the court, said, " It is obvious, that if tbe act of the justice issuing a warrant be invalid, on the gi-ound of such an objection as the present, all persons who act in the execution of tbe warrant will act without an authority : a constable who aiTests, and a gaoler who receives a felon, will each be a trespasser ; resistance to them will be lawful, every thing done by either of them will be unlawful, and a constable, or persons aiding him, may, in some pos- sible instance, become amenable even to a charge of murder, for acting under an authority which they reasonably considered them- selves bound to obey, and of the invalidity whereof they are wholly ignorant. An exposition of these statutes, pregnant with so much inconvenience, ought not to be made if they will admit of any other reasonable construction. ' Acts of parliament,' says Lord Coke, ' are to be so construed, as no man that is innocent, or free from injury or wrong, be, by a hteral constmction, punished or endam- aged.' We think these acts do most reasonably admit of another construction. We think the restraining clauses are only prohibitory upon the justice. By the particular act ujjon which this question has arisen, Mr. Dyson having been named in the commission, is declared to be a justice, and invested with power and authority as such. The ]iroper effect, therefore, as it seems to us, of the third section, is only to make it unlawful in him to act as such ; but not to make his acts invalid. Many persons acting as j ustices of the peace, in virtue of offices in corjiorations, have been ousted from their offices from some defect in their election or appointment ; and although all acts jiroperly corjjorate and official done by such persons are void, yet acts done by them as justices, or in a judicial character, have in no instance been thought invalid. This distinction is well known. The interest of the public at large requbes that tbe acts done should be sustained : sufficient effect is given to the statutes by considering them as penal upon the person acting." (Margate P. C. v. Hannam, 3 Bam. & Aid. 266.) Office how determinable.'] By stat. 1 Ann. st. 1. c. 8. s. 2., "No patent or grant of any office or employment shall detennine by the king's death or demise, but shall continue in force for six months after, unless in the mean time superseded, determined, or made void by the successor." The king may also determine the commission at his pleasure, Sect. 11.] THEIR JURISDICTION. 283 and that either expressed, as by writ under the great seal, or by ini- phcation, by making a new commission, and leaving out the former justices' names. But until notice or publishing of the new commis- sion, the acts of the former justices are good in law. (Dalt. c. 3.) Officers in corporations.'] But to mayors and chief officers in cor- porations, who have the authority of justices of the peace, or of con- servators of the peace, by grant under the king's letters patent to them and their successors, the authority remaineth notwithstanding the king's death or demise. (Dalt. c. 3.) SECTION II. — THEIR JURISDICTION. Limits of their jurisdiction.] It is said, that recognizances and infonnations, voluntarily taken before justices m any place, are good. (2 Hawk. P. C. c. 8. s. 28.) And although it be generally true, that a justice of the peace has no jurisdiction over offences committed out of his county, yet there are cases, where the presence of an offender within his county, gives him authority to proceed against such offender. Thus, it has been long settled, that if a man commit felony in the county of C, and goes into the county of W., a justice of the peace of the latter county may take the examinations there, commit him and bind over the witnesses to give evidence at the trial, and proceed as if the offence had been committed within his jurisdiction. (2 Hale, P. C. 51.) And he hath a like authority with respect to a man coming into bis county, after having committed a felony on the high seas ; and if the offence be bailable before either one or more justices, the requisite number of justices may take a valid recognizance for the appearance of the person accused at the next session of oyer and terminer, &c., there to answer to such matters as shall be objected against him. (See 1 Chit. Crim. L. 94, 7 Geo. 4. c. 64.) Justices, either of the county from which tenants fraudulently re- move goods, or of tbat in which they are concealed, may convict the offenders in their respective counties. (Rex. v. Morgan, Cald. 156.) Mat/ grant Warrants, (Sfc, at their Dwellings.] By stat. 9 Geo. 1. c. 7. s. 3. " If any justice of the peace for any county shall haji- pen to dwell in any city, or other precinct that is a county of itself, situate within the county at large, for which he shall be appointed justice of peace, although not within the same county, it shall and 284 ' JUSTICES OF THE PEACE. [Cliap. XI. may be la\\ful for any such justice of peace to grant warrants, take examinations, and make orders for any matters v/hicli any one or more justice or justices of the peace may act in, at his own dwelling-house, although such dwelling-house be out of the county Vhere he is autho- rized to act as a justice of peace, and in some city or other precinct adjoining, that is a county of itself, and that all such waiTants, or- ders, and other act or acts of any justice of peace, and the act or acts of any constable, &c., in obedience to any such waiTant or order, shall be as valid, good, and effectual hi the law, although it happen to be out of the limits of the proper precinct or authority : provided that nothing in this act contained shall extend to give power to jus- tices of the peace for the counties at large, to hold their general quarter sessions of the peace in the cities or towns which are counties of themselves, nor to empower justices of the peace, constables, &c., or any other peace-officers of the counties at large, to act or inter- meddle in any matters or things arising within cities or towns which are counties of themselves, but that all such actings and doings shall be of the same force and effect in law, and none other, as if this act had never been made. (See also 28 Geo. 3. c. 49. s. 4.) The 15 Geo. 2. c. 24, empowers justices of a liberty or coiiioration to commit offenders to the house of coiTection of the county, riding, or division in which such liberty or coi-jioration is situate. Mai/ enforce Rates, ^c, though chargeable Themselves.^ " It shall and may be lawful to and for all and every justice or justices of the peace for any county, riding, city, liberty, franchise borough, or town corporate within then- respective jurisdictions, to make, do, and execute all acts, matters, or things appertaining to their office as justice or justices of the peace, so far as the same relates to the poor laws, vagrants, highways, or to any other laws concerning parochial taxes, levies, or rates, notwithstanding any such justice or justices of the peace is or are rated to or chargeable with the taxes, levies, or rates within any such parish, township, or place affected by any such act or acts of such justice or justices aforesaid." (16 Geo. 2. c. 18.) But the statute is not to empower them to act in the deteiTuination of any appeal to the quarter sessions for any such county or riding from any order, matter, or thing relating to any such painsh, townshij), or place where they are so chai'ged, taxed," &c. (Ibid. s. 3.) Warrant against Persons eccaped.] By 24 Geo. 2. c. 55. s. 1. " In case any person against whom a wan'ant shall be issued, escape, reside, or be in any other county, riding, &c., out of the jurisdiction of the justice granting such waiTant, any justice where such person resides or is, must, upon proof being made upon oath of the hand- Sect. II.] THEIR JURISDICTION. 285 writing of the justice granting such warrant, indorse his name on such warrant, which shall be a sufficient authority to the person or persons bringing such warrant, and to all other persons to whom such waiTant was originally directed, to execute such warrant in such other county, riding, &c., out of the jurisdiction of the justice or justices granting such warrant as aforesaid ; and such justice of such other county may, on the offender being brought before him, take bail, as in other cases, for his appearance," &c. (See Rex v. Kynaston, I East. 117.) Escapes to Ireland or Scotland.] The 13 Geo. 3. c. 31, authorizes the arrest of any person, against whom a warrant has issued in Scot- land, by a justice indorsing the same, under which the offender may be apprehended within the county, &c., in England where such in- dorsement is made, and carried to the county in Scotland where the offence was committed, if on the borders, and if not, then to such border county of Scotland as is nearest to the place where the offender is taken, there to be dealt with according to the Scottish law, and a like power is given in cases of offenders escaping from Ireland either into England or Scotland, by 44 Geo. 3. c. 92. Both these statutes have heen amended by 45 Geo. 3. c. 92, which provides, that in case any person or persons shall be apprehended, in one of the said parts of the United Kingdom, for an offence which was committed, or charged to have been committed, in either of the other parts of the same, under any waiTant indorsed in such manner as in that respect is provided by virtue of either of the said recited acts, such person or persons shall and may be taken before the judge or justice who indorsed the said waiTant, or before some other justice or justices of the county or place where the same was indorsed, and in case the offence he hailable in law, may take bail according to the exigence of the said wairant. The recognizance or bail-bond must be taken in duplicate ; one to be given to the constable or other officer, who shall deliver, or cause to he delivered, such recognizance or bail-bond to the clerk of the crown, or clerk of the peace, or other proper officer for receiving the same, belonging to the court in which, by such recognizance or bail- hond, such offender or offenders shall be bound to aj:)pear, and the said judge or justice so taking bail as aforesaid, shall transmit the other of such dujilicates to the court of exchequer, of such part of the United Kingdom in which such bail shall be taken, there to be kept of record : Provided always, that if such offence be not bailable, or such offender shall not give bail, the said judge or justice, before whom such offender shall be brought, shall remand hhn to the custody of the constable or other officer, who shall proceed to convey such 286 Jl'STICES OF THE PEACE. [Chap. XT. oilender into that part of the United Kingdom, wherein the offence was coinnutted. The 2d section of the act directs, that such judge or justice gi-ant- inrf such waiTant, shall, upon the face of such warrant, write the words " not hailahle ;" and in all cases in which such words shall not have been so written, it shall and may be lawful for the judge or jus- tice or justices before whom any offender or offenders may be brought, under such wan'ant so indorsed, to adinit such offender or offenders to bail. Warrants acted upon in either Country.'} " All waiTants issued in England, Scotland, or Ireland, respectively, may and shall be in- dorsed and executed, and enforced and acted u2:)on, in any part of the United Kingdom, in such and the like manner as is directed by the act of the thirteenth year of the reign of his present Majesty, in re- lation to wan-ants issued or granted in Englariid and Scotland respec- tively, as fully and effectually, to all intents and purposes, as if all the provisions of the said act were in this act severally and separately repeated and re-enacted, and made part of this act, as to every part of the United Kingdom, and as to all justices of the peace, sheriffs' officers, constables, or other officer or officers of the peace in Ireland, as well as in England and Scotland respectively." (54 Geo. 3. c. 186. s. 2.) Offences at Sea.~\ " It shall and may be lawful to and for any one or more of the commissioners for the tune being, named or to be named in the commission of oyer and terminer for the trjing of offences committed within the jurisdiction of the admii'alty of Eng- land, and also to and for any one or more of the commissioners for the time being, named or to be named in any commission made or granted under or by virtue of the act of the forty-sixth year of king George the third, and also to and for any one or more of his Majesty's justices of the peace for the time being, for any county, riding, divi- sion, or place, in the United Kingdom, and they are hereby respec- tively authorized, empowered, and required, from time to time to take any infomiation or infonnations of any witness or witnesses upon oath, which oath they and each of them are hereb\- respectively authorized to administer, touching any treason, piracy, felony, robber}-, murder, conspiracy, or other offence, of what, nature or kind soever, committed upon the sea, or in any haven, river, creek, or place, where the ad- miral or admirals hath or have power, authority, or jurisdiction ; and thereupon, (if such commissioner or commissioners, justice or justices of the peace, shall see cause,) by any waiTant or warrants under his or their hand and seal, or hands and seals, to cause the person or Sect. II.] THEIR JURISDICTION. 287 persons charged in such information or informations to be apprehended and committed to safe custody, to remain in such custody until dis- charged in due course of law, or until bailed, in cases in which bail may by law be taken." (7 Geo. 4. c. 38.) Exclusive, or concurrent Jurisdiction.^ " It has been adjudged, that a charter, granting jurisdiction to borough magistrates over a district not within the borough, does not exclude the county justices from having a concurrent jurisdiction, without express words in the charter; and though such charter contain words of reference to former charters, in which exclusive jurisdiction is given to the borough jus- tices within the borough, and add, that they shall have jurisdiction within the new district in tarn amplo modo et forma, ^c, yet if there be in the latter charter a saving clause of the rights of the crown, and of all other persons, the borough magistrates have only a concur- rent jurisdiction with the county justices." (Blankley v. Winstanley, 3 T. R. 279, 2 Hale 47.) So, by charter, the mayor and some of the aldennen of I/ondon have jurisdiction in Southwark : but, as the charter contains no 7ion intromittant clause as to the justices of the county of Surrey, the latter have a concun-ent jurisdiction with the fonner. (Rex v. T. Sainsbury, 4 T. R. 451.) Where two sets of magistrates have a concun-ent jurisdiction, and one apjjoints a meeting to grant ale licences, their jurisdiction attaches so as to exclude the others from appointing a subsequent meeting; but they may all meet together on the first day. But if, after such appointment, the other set of magistrates meet on a subsequent day and grant other licences, their proceeding is illegal, and the subject of an indictment. (Rex v. Sainsbury, 4 T. R. 451.) The justices of a borough had exclusive jurisdiction within the borough itself, but jurisdiction concurrent with that of the county justices, over certain places called the liberties of the borough : lield, that for an offence committed withiii the liberties they might commit to the county gaol, and cause the prisoner to be brought before them for trial at the borough sessions. (Rex v. Musson, 6 Barn. & Cres. 74; 9 Dowl. & Ryl. 172; Rex v. Amos, 2 Barn. & Aid. 533; 15 Geo. 2. c. 24.) By the 60 Geo. 3. and 1 Geo. 4. c. 14, justices have power within their respective limits, to commit any person duly charged before them, with any capital o/lence committed within such limits, to the gaol of the county, to be tried at the next sessions of oyer and tenniner, or general gaol-deliveiy for such county ; and they may bind over parties and witnesses by recognizance to ])rosecute and give evidence, and 288 .lUSTICKS OF THE PEACF.. [Cliap. XT. nmst transmit such recognizance and depositions to the clerk of the crown, clerk of assize, or other proper officer, (s. 2.) The expenses to which the county may be put shall he borne and paid by the said town or place within wliich such offence shall have been committed. And by several statutes, the last of which amends the fonner ones, it is enacted, " that it shall be lawful for any justice acting for any county at large, or for any riding or division of a county in which there are several and distinct commissions of the peace, to act as justice for such county at lai'ge, riding, or division, in sessions or otherwise, at any place within any city, town, or other precinct, having exclusive jurisdicticai, but not being a county of itself, and situate within, sur- rounded by, or adjoining to, any such county at large, riding, or division ; such act and acts, matters and things, which shall be done, or which may heretofore have been done, by any such justice or jus- tices of the peace for the said county at large, riding, or division, within such city, town, or other precinct, shall be as vahd and effec- tual in the law as if the same had been done within the same county, riding, or division, to all intents and purposes whatsoever : Provided that nothing in this act contained shall give power to county justices, not being justices for such city, town, or other precinct, or any con- stable or other officer, to intenneddle in any matters arising within such city, town, or precinct, in any manner whatsoever." (1 8c 2 Geo. 4. c. 63.) SECTION III. THEIR MINISTERIAL DUTIES. The multifarious duties of justices of the peace may be divided into two parts ; the first, consisting of such acts as they are required to perform in confinnation of, or to compel obedience to, the obligations imposed by some other authority, as in the case of waiTants to levy distresses, &c. ; to which may be added their incpiisitorial functions in cases of alleged crime, which are afterwards to be submitted to a higher tribunal ; and these iriay be classed under the denominations of their ministerial duties. The other division comprehends the power, reposed in them, of adjudicating in questions arising upon penal statutes, which they are directed to enforce ; and upon charges of minor offences and the breaches of prohibitory enactments, which it is the policy of the law to restrain by summary punishments. Their authority, in some cases, partakes of both qualities, but whe- Sect. III.] THEIR MINISTERIAL DUTIES. 289 ther the Instances are stated under the first division or the second, is not very material, where the duty assumes this twofold character. It is also to be ohsei-ved, that the same rules and principles of conduct mil be generally applicable in both ; though where they have to exer- cise the province of detennining upon the guilt of the accused, which usually belongs to a jury, and afterwards that of judge in the same case, more circumspection, and a nearer adaptation of their proceed- ings to the model afforded in the practice of the superior courts, is required. Land-Tax Commissioners.'] By the 45 Geo. 3. c. 48. s. 3, it is provided, that all persons who shall act as justices of the peace of or for any county, riding, shire, or stewardry in Great Britain, being duly qualified, may act as commissioners for the land tax, although not specially named in the act. Turnpike Trustees.'] And the 3 Geo. 4. c. 126. s. 61, enacts, that all his Majesty's justices of the peace for the time being, acting for the county or counties through which any turnpike road now does, or hereafter shall pass, shall be added to and joined with the trustees or commissioners for making, repairing, or maintaining every such turnpike road, and shall, on qualifying themselves as hereafter men- tioned, (but this is dispensed with by 4 Geo. 4. c. 95,) have all the same powers and authorities, to all intents and pui'poses, as if the said justices had severally been named, or elected trustees or commis- sioners, in or under any act or acts of Parliament, under which such roads shall be made, repaired or maintained. Quorum Justices.] The practice of nominating but few justices in the commission to be of the quorum, has declined in modern times, as it was found to produce inconvenience and delay, in those cases, where it was required, that a justice of the quorum should be present, and take part in the proceedings. The inconvenience is further obviated by the 4 Geo. 4. c. 27, which recites, that whereas by the 7 Geo. 3. c. 21, it was enacted, that in all such cities, boroughs, towns corporate, franchises, and liberties as have only one justice of the peace of the c[uorum, that all acts, orders, adjudications, wan-ants, indentures of ajjprenticeship, or other instruments which shall be made, done, or executed by tvvo or more justices of the peace within such cities, boroughs, towns corporate, franchises, and liberties, though neither of the said justices are of the quorum, shall be valid and effectual in law : and whereas it is expedient, that the provisions of the said act should be extended to such cities, and other jurisdictions, as have two, or any other limited number, of justices of the quorum qualified to act within the same : 290 JUSTICES OF THE PEACE. [Chap. XL be it therefore enacted. That from and after the passing of this act, in all cases where the number of justices of the peace for any city, borough, town corporate, franchise, hberty, or other local jurisdiction, is limited, and any one, two, or more of such justices only are of the quorum, all acts, orders, adjudications, warrants, indentures of apprenticeship, or other instruments which shall be made, done, or executed either in or out of the general quarter-sessions or petty sessions, or any adjournment thereof, by virtue of any charter or grant, or by virtue of any act of Parliament made or to be made, by any two or more justices of the peace acting within the same, though neither of the said justices he of the quorum, shall be valid in law, to all intents and pui-poses, as if the said justices had been of the quorum ; any grant, charter, law, or custom to the contrary thereof in anywise notwithstanding. (4 Geo. 4. c. 27.) When should not Act.] It is obvious, for the sake of justice and the dignity of their office, that magistrates ought not to execute their functions in their own case. Thus, where a justice of the peace was also surveyor of the highway, and a matter which concerned his office coming in question at the sessions, he joined in makmg the order, and his name was put in the caption, the order was quashed. So it was determined that on an appeal to the sessions against an order of removal, those justices who are rated to the rehef of the poor in either of the contending parishes, have not a right to vote. (Rex v. Yar- pole, 4 T. R. 71.) And in a still later case it was held, that if he be a rated inhabitant of the parish, he cannot vote either on the de- termination of an appeal against the allowance of overseers' accounts, or on a question as to granting a case for the opinion of the Court of King's Bench. And Abbott, C. J., said, " We think it the safer course to hold that magistrates should not interfere in cases where they are interested." (Rex v. Gudridge, 5 Bam. & Cres. 459, 8 Dowl. & Ryl. 217.) But if a justice be assaulted or grossly insulted in his office, and no other magistrate be present, it seems he may commit the oflender till he find sureties. (Dalt. c. 173. Rex v. Revel, 1 Stra. 420.) Summons, when proper.] In all legal proceedings, the person complained of ought to have notice of the charge laid against him, and to have an opportunity of being heard in his own defence. Con- sequently, where a person is accused before justices, they ought to summon mc party to ajDpear, or issue their wan'ant to bring him before them. The manner of conveying the parties, is sometimes directed by ine acts of Parliament, creating the respective ofiences, which thereiore ought to be pursued, accordingly. In other cases. Sect. III.] TMEIR MINISTERIAL DUTIES. 291 where it is left discretionary in tlie justice, it seemeth most agreeable to the mildness of our laws, to put the party to no more inconve- nience than needs must ; and therefore, where the case will bear it, a summons seems more apposite than a compidsory process. If a justice proceed against a person without summoning him, so that he may be heard, in a case of summary conviction, it would be a misdemeanour ; for which an infonnation would be gi'anted, upon such conviction being removed before the court. (Rex v. Allington, 2 Sti'a. 678 ; Rex v. Dyer, 1 Salk. 181.) In the summons it is usual, and upon many accounts convenient, to fix a day and hour for the appearance of the party ; but if he at- tends at the time, and the justice is not there, he is not to go away, but must wait during the remainder of the day; for many things may happen to hinder the justice's immediate attendance. It has been made a question in some cases, whether the service of the summons must be personal P It seems, in general, necessary that it should be so, unless where personal service is disjiensed with by the statute. (5 Bum's J. 295.) Warrant tvhen proper.] In cases of sureties of the jjeace, larceny, and other felonies, and generally where the proceeding is in the name of the king, and also in cases between party and party, where the body of the offender is liable, a warrant is the regular process. Where a statute gives a justice jurisdiction over an offence, it im- pliedly gives him power to apprehend any person charged with such offence. A magistrate may therefore issue his warrant, to appre- hend a person charged with an offence under the malicious trespass act, (1 Geo. 4. c. 56,) especially after the offender had neglected a summons. (Bane v. Methuen, 2 Bing. 63, 9 Moore 161.) It was formerly doubted, whether one justice could legally malce out a wan-ant, for an offence against a penal statute, or other mis- demeanour cognizable only by a sessions of two or more justices ; on the ground, that as the offence could only be heard and determined by two, those only who have jurisdiction over a cause, can award pro- ceedings concerning it; yet the long, constant, and uncontrolled practice seems to have altered the law in this respect, and to have given justices an authority in relation to such arrests, not now to be disputed. (2 Hawk. P. C. c. 13. s. 16.) And by the 3 Geo. 4. c. 23. s. 2, one justice, &c., may receive original information, &c., w here two or more justices, &c., are empowered to hear and determine. Warrant against Libeller. '\ A justice of peace has authority to issue his warrant, for the arrest of a party charged with having pub- lished a libel ; and upon the neglect of the party so arrested to find u 2 292 JUSTICES OF THE PEACE. [Chap. XI. sureties, may commit him to prison, there to remain till he be deli- vered by due course of law. (Butt v. Conant, 1 Brod. & Bing. 548, 4 Moore, 195.) Power to administer Oaths.] Stat. 15 Geo. 3. c. 39. An act to empower justices of the peace to administer oaths, where any penalty is to be levied, or distress to be made, in pursuance of any act of Par- liament wherein the same is not expressly directed. — " Whereas it is frequently necessary for justices of the peace to administer oaths or affirmations where penalties are to be levied or distresses to be made in pursuance of acts of Parliament, which they have no power to ad- minister unless authorized so to do by such acts respectively; be it therefore enacted, that in all cases where any penalty is directed to be levied or dish-ess to be made by any act of Parliament now in force or hereafter to be made, it shall and may be lawful for any justice or justices acting under the authority of such acts respectively, and he and they is and are hereby authorized and empowered to administer an oath or oaths, affirmation or affiraiations, to any person or persons for the pur230se of levying such penalties or making such distresses respectively." There hath been much doubt how far a justice of the peace has power to administer an oath, unless it is expressly given by the statute he has to put in force. (See 3 Burn's Justice, 583.) And the aforesaid act of 15 G. 3. c. 39, being a parliamentary declaration in one instance, so far as it goes, decides against a general power of the justices in this respect. It certainly appears very desirable that some legis- lative declaration should be made upon the subject. Voluntary Affidavits.l The practice, which still prevails to some extent, of administering oaths in cases where justices of the peace have no jurisdiction, ought not to be followed. It is much to be questioned how far an\^ magistrate is justifiable in taking a voluntary affidavit in any extra-judicial matter ; since it is more than possible, that by such idle oaths, a man may frequently in foro conscientia incur the guilt, and at the same time evade, the temporal penalties of perjury. (4 Bla. Com. 137.) Lord Coke says, " Oaths that have no wan^ant by law, are rather nova tormenta, quam sacramenta, and it is a high contempt to minister an oath without wan-ant of law, to be punished by fine and imprison- ment. (3 Inst. 165.) And the Court of King's Bench has often reprehended the taking of voluntary affidavits, by justices of the peace in extra-judicial matters. Taking Depositions.'] The depositions are of course written down by the magistrate's clerk, at the time of the examination or inquiry into Sect. III.] THEIR MINISTERIAL DUTIES. 293 the matter of complaint ; and it is, perhaps, impossible to nairate the facts in a properand intelligible form, precisely in the language of the party making the deposition. But it is the duty of the magistrate to see that this is done as nearly as can be conveniently. In a case under the malicious trespass act, the words of the act of Parliament, (7 & 8 Geo. 4. c. 30,) describing the offence, were imported into the depo- sition of the witness; uj^on which Tindal, C. J., said, (the case coming before the court upon motion for a new trial, of an action of trespass and false imprisonment,) " Undoubtedly it was not correct to take the depositions in the precise words of the act, because such could not have been the language of the witnesses ; but that alone will not make the defendants' conduct malicious." Park, J., added, " I reprobate the framing depositions in the words of acts of Parliament ;" and Burrough, J., observed, " The depositions ought not to have been taken in the tenns of the act of Parliament. That is not the language of witnesses." (Mills v. Collett, 6 Bing. 92.) Commit for Re-examination.'\ Nothing is more common than for magistrates, upon proof that a crime has been committed, and the suspected offender is apprehended and brought before them for ex- amination, to send him to prison till further evidence can be collected, or it is made to appear that he cannot justly be required to answer the charge, before a higher tribunal. It is obvious that this power may, in its exercise, work great and unmei'ited hardship, and is liable to be abused either by the negligence, or the improper motives of those to whom it is confided. It is not, however, left entirely with- out limit or control. In the recent case of Davis v. Capper, deter- mined in Michaelmas tenn, 1829, it was declared by the Court of King's Bench, after much discussion and consideration, that magis- trates can only commit a party for further examination, for a reason- able lime ; and in an action against a magistrate, founded on such an imprisonment, it is a cpiestion for the jury to determine, what is a reasonable time, under all the cii'cumstances ; and that if the commit- ment, though in form for re-examination, be in fact to obtain an admission from the prisoner of a particular fact in dispute, an action of trespass and false imprisonment may be supported against him (Davis v. Capper, MSS. E. T. 1829, 9 Barn. & Crcs., 3 Man. & Ryl. Sec " Illegal Commitment^i," post 319.) Taking Bail in Felomj.] The law on this subject has been much improved by the 7 Geo. 4. c. 64. which, — reciting that the technical strictness of criminal proceedings might in many instances be relaxed so as to ensure the punishment of the guilty without depriving the accused of any just means of defence, and the administration of jus- 294 jtisTicES OF THE PEACE. [Chap. XI. tice in England might in other respects be rendered more effectual, — enacts, that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as if not explained or contradicted shall, in the opinion of the justice or justices, raise a strong pre- sumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner herein- after mentioned ; but if there shall be only one justice present, and the whole evidence given before him, shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody, until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices of the peace, shall be charged with felony, or on suspicion of felony, and the evidence given in support of the charge shall, in their opinion, not be such as to raise a strong pre- sumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced, on behalf of the person charged, as shall in their opinion weaken the presumption of his or her guilt, but there shall, notwithstanding, appear to them in either of such cases, to be sufficient gi'ound for judicial inquiry into his or her guilt, the person charged shall be admitted to bail by such two justices, in the manner hereinafter mentioned : pro\nded always, that nothing herein contained shall be construed to require any such jus- tice or justices to hear evidence, on behalf of any person so charged as aforesaid, unless it shall appear to him or them to be meet and con- ducive to the ends of justice to hear the same. Must certify the Bailment.] That the two justices of the peace before they shall admit to bail, and the justice or justices before he or they shall commit to prison, any person aiTested for felony, or on suspicion of felony, shall take the examination of such person, and the information upon oath of those who shall know the facts and cir- cumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, and the two justices shall certify such bailment in writing ; and eveiy such justice shall have authority, to bind by recognizance all such persons as know, or declare any thing material touching any such felony, or suspicion of felony, to appear at the next court of oyer and terminer, or gaol-delivery, or superior criminal court of a county palatine or gi-eat sessions, or sessions of the peace, at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused; and such Sect. IV.] THEIR JUDICIAL DUTIES. 295 justices and justice respectively shall subscribe all such examinations, informations, bailments, and recog7iizances, and deliver or cause the same to be delivered to the proper officer of the court, in which the trial is to be, before or at the opening of the court, (s. 2.) Bail in Misdemeanors.^ That every justice of the peace before whom any person shall be taken on a charge of misdemeanor, or suspicion thereof, shall take the examination of the person charged, and the infonuAtion upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into waiting before he shall commit to prison or require bail from the person so charged, and in every case of bailment shall certify the bailment in writing, and shall have authority to bind all persons by recognizance to appear to prosecute or give evidence against the party accused, in like manner as in cases of felony, and shall subscribe all examinations, informations, bailments, and recog- nizances, and deliver or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court, in like manner as in cases of felony, (s. 3.) Justices offending herein.^ If any justice shall offend in any thing contrary to the true intent and meaning of these provisions, the court to whose officer any such examination, infoniiation, evidence, bailment, recognizance, or inquisition, ought to have been delivered, shall, upon examination and proof of the offence, in a summary man- ner, set such fine upon every such justice as the court shall think meet. (s. 5.) All these provisions relating to justices shall apply to the justices, (and coroners, s. 4.) not only of counties at large, but also of all other jurisdictions, (s. 6.) SECTION IV. — THEIR JUDICIAL DUTIES. Nature of their Judicial Authority.'] The judicial authority of magistrates is derived partly from their commission, but chiefly from acts of Parliament. The proceedings before them, in some instances, assume the character of an inquiry before a civil tribunal ; as where they have to adjudicate in the disputes between master and servant, &c., or to enforce the payment of rates, fines, penalties, &c. Jn other cases they act as criminal judges, either with sununary ])ower to de- termine the guilt or innocence of the accused, by their own impres- sions of the evidence, and to punish the oflender ; or in the graver offences within their jurisdiction, by the assistance of a jury in thr court of quarter sessions. 296 JUSTICES OF THE PEACE. [Cliap. XI. It is laid ilow n, that where an act of Parhament gives power to two justices finally to hear and detemiine any offence, or when they are to do any other judicial act, as makhig an order of bastardy, (Billings v. Prinn, 2 Bla. Rep. 1017,) adjudging the settlement of a pauper, (R. V. Coin. St. Aldwin's, Burr. S. C. 136), appointing overseers of the poor, (R. v. Forrest, 3 T. R. 38), allowing the indenture of a parish apprentice, (R. v. Hamstall Ridware, 3 T. R. 380), they should be together to hear the evidence, and consult together. And where a special authority is given to justices out of sessions, it ought to ajipear in their orders that such authority was exactly pursued. (Chittinstonv. Penhurst, 2 Salk. 475; Rex. v.- York, 5 Bun-. 2686.) Mow far Judges of Record.] Justices of the peace are judges of record when made so by act of Parliament, and in matters compre- hended within their commission (Dalt. c. 2) ; and therefore a record or memorial made by a justice of the peace, of things done before him judicially, in the execution of his oflBce, shall be of such credit, that it shall not be gainsaid. (Lamb. 63, Basten v. Carew, 3 Bam. & Cres. 653 ; 5 Dowl. & Ryl. 558.) In all cases where justices may hear and determine out of sessions (viz. on theii" own view, or confession, or oath of witnesses), the justices ought to make a record, in writing, under their hands, of all the matters and proofs. (Dalt. c. 115.) To estreat Fines.] If upon a conviction the offender is to be fined to the king, then the justices are to estreat such fine, and to send the estreat into the Exchequer, whereby the barons of the Exchequer may cause the said fine or forfeiture to be levied, for the king's use. (Dah. c. 115, And see stat. 3 Geo. 4. c. 46, post 307.) And in all cases of convictions, the justices should return the con- victions to the next sessions. (See stat. 7 Geo. 4. c. 64; 7 and 8 Geo. 4. c. 29, 30.) Assuming Jurisdiction.] Although in many instances, if the pro- ceedings before magistrates, when relumed into the Court of King's Bench, are prima facie coiTect and legal, the court will not inquire into the facts, yet magistrates cannot make facts by their delemiiua- tion, in order to give to themselves jurisdiction, contraiy to the ti'uth of the case. Therefore, if an order of sessions state as a fact, that a new road has been set out in heu of an old one, which has been stopped up, when in truth that which is so called new, is merely an old one widened in different parts, the temiini remaining the same, this may be shown in contradiction to such order. (Welsh v. Nash, 8 East. 403.) So the caUing a party to a contract to perform cer- tain work, a labourer cannot give a magistrate jurisdiction over such pai-ty, by virtue of the acts relating to masters and senants. (Lancaster Sect. IV.] THEIR JUDICIAL DUTIES. 297 V. Greaves, MSS. E. T. 1828; see "Disputes of Masters and Serv-. ants," post 301.) In malicious Injuries.'] In a recent case it was contended in argu- ment, that a magistrate has no power, under the 7 and 8 Geo. 4. c. 30, for the summary punishment of malicious injuries, to convict a person who cuts down a tree, upon premises in his own occupation ; upon which Tindal, C. J. said, " I cannot accede to the proposition, that the circumstance of the party's being the occupier of the premises on which the tree is cut, necessarily takes a case out of the statute. Suppose the tree excepted in a lease, the tenant would be a tres- passer ; and if liable in trespass, I am not prepared to say he might not be liable ciiminally." And the court held unanimously, that a justice convicting a person charged, under such circumstances, with such an offence, is not liable to an action, though he should be mistaken in the law, he having jurisdiction over the matter of com- plaint, and no improper motive being found against him. (Mills v. CoUett, 6 Bing. 85; Davis v. Russell, 5 Bing. 354.) Jurisdiction over Smugglers.'] By 6 Geo. 4. c. 108. s. 3. If any vessel therein described shall be found on the high seas, within 100 leagues of any part of the coasts of the United Kingdom, or shall be discovered to have been within the said distance, having on board the goods therein specified, the goods and the vessel shall be forfeited. By s. 49, every person who shall be found or discovered to have been on boai'd any vessel liable to forfeiture under that act, for being found or discovered to have been within any of the distances or places men- tioned in the act from the United Kingdom, shall forfeit £ 100., and maybe detained and taken before two justices, to be dealt with as thereinafter mentioned. By s. 74, any offence within the act shall, for the pui-pose of prosecution, be taken to have been committed, and the penalties incurred at the place on land in the United Kingdom into which the person committing such offence, or incuning such penalty, shall be taken, brought, on carried ; and in case such place or land is situate within any city, &c., the justices of the peace for the city, &c., as well as those for the county within which such city is situate, shall have jurisdiction to try all offences committed upon the high seas against the act. A vessel, liable to forfeiture under this act, was first seen on the high seas, making towards the harbour, but was not seized till she had anived in a part of the river Orwell, where the justices of Ipswich had jurisdiction. A ])erson found on board the vessel was taken to Harwich, and prosecuted before two justices of that place, who convicted him in a penalty of £100 for having been found on, the high seas on board a vessel liable to forfci- 298 JUSTICES OF THE PEACE. [Chap. XI. ture : it was held, that the justices of Harwich, heing justices at the first place on land to which the party was carried, had jurisdiction to try the offence. (In re Nunn, 8 Bam. & Cress. 644.) Proceedings in Convictions.^ The power of justices to con\ict is given by the particular statutes which describe the offences, and affix the jjenalties or other punishment. The statutes are very numerous, and comprehend vaiious infractions of the laws relating to the preser- vation of the game, to matters of excise and customs, highways, rates, vagi-ancy, assaults, reciprocal obligations of masters and servants, malicious tresjjasses, &c. &c. In all cases the parties accused may be either summoned or brought before the magistrates by wan'ant, according to the nature of the case, [meante, p. 290), whose proceed- ings will be the more safe and unexceptionable, the nearer they are assimilated to the practice of the superior courts. Proceedings on Appearance.'] It is obviously the duty of the jus- tice to take the examination of the witnesses formally in writing ; for since the passing of the 3 Geo. 4. c. 23, which gives a general form of conviction (see post 304,) the magistrate is bound to set out the evidence on the record of conviction, as nearly as possible in the words used by the witnesses ; and if he neglects so to do, a mandamus lies to enforce his compliance with the requisites of that statute. (In re Rix, 4 Dowl. & Ryl. 352 ; R. v. Marsh, Id. 260.) In a recent case, upon it being suggested by counsel that it was not usual for justices to take down the evidence of the witnesses in a formal manner, the court said it was the duty of the justices to take minutes of the evidence of the witnesses, in order that if called upon they should be enabled to set forth the evidence with accuracy. (R. v. Wainford, 5 Id. 489.) When Defendant Absent.] If due fomiality be requisite in the proceedings before justices when the defendant is actually present, a fortiori, it ought to be observed in his absence. The justice then sitting in his judicial capacity, is bound to take care that the case is duly and properly made out. Ignorance, incapacity, or other cir- cumstances may be the cause of a defendant's non-appearance, and in such case reason and justice require that all matters of form, as well as substance, should be strictly observed. (Paley on Convictions, by Dowiing, 26.) Defending by Counsel or Attorney.] An opinion has obtained rather generally, that justices may at their discretion exclude whatever persons they please from theu- presence, in the course of their sum- mary proceedings. Upon due attention, however, to the marked chs- tinction between the ministerial and judicial duties of magistrates, the groundlessness of such an opinion seems to be apparent. It has, in- Sect. IV.] THEIR JUDICIAL DUTIES. 299 deed, been intimated by Mr. Justice Bayley, (R. v. The J. J. Staf- fordshire, 1 Chitty's Rep. 217,) " that an attorney has no right to be present, assisting a defendant charged with an infomiation on the game laws," But it is due to that learned judge to observe, that the dictum imputed to him was perfectly obitur, and made alio intuitu. Indeed, so little is this point to be considered as settled by R. v. The J. J. of Staffordshire, that when that case was cited on the argument in Cox V. Coleridge, 2 Dowl. & Ryl. 113, 1 Barn. & Cres. 37, as an authority to show that in proceedings under penal statutes an attorney has no right to be present in the justice's room, Mr. Justice Bayley himself immediately interposed and said, " That case is not to be considered as the solemn decision of the court. The opinion there expressed upon this point was merely the obitur dictum of a single judge, to which 1 pay no respect ;" and the lord chief justice added, with reference to the same point, " An observation thrown out by a judge merely in the course of argument is not to be considered as conclusive of the case, and ought not to be urged as a solemn deci- sion." And Mr. Justice Bayley, in delivering his judgment in the principal case, again adverts to what he is reported to have said in R. v. the J. J. of Staffordshire, and observes, " This (Cox v. Cole- ridge,) is not a question upon a summary conviction, and not any question where the decision of the magistrates will be conclusive against the party ; and whenever a question of that kind shall arise, I hope I shall not be bound conclusively by any obitur dictum which may have fallen from me in R. v. the J. J. Staffordshire. When- ever that point shall be distinctly raised, my mind shall be open upon it, and I shall be ready to hear it discussed on the one side and the other, and deliver my opinion upon deliberate consideration." If in his ministerial capacity, a justice is taking examinations upon a charge of felony, it may be essential to the ends of public justice, that the examination should be private, and not interrupted by the in- terference of any person on the part of the prisoner. This point was certainly determined in Cox v. Coleridge, where it was held, that an attorney retained to attend a prisoner charged with felony, and give advice and assistance, might be forcibly turned out of the justice-room, and excluded during the investigation of the case. In R. v. Bon-on, 3 Barn. & Aid. 432, it was also held, that in the investigation of a charge of felony before a magistrate, an attorney is only as a matter of courtesy pennitted, but has no right to be present. These cases de- termine that the justices have a discretion to exercise upon the sub- ject ; but in practice, counsel and attornies are frequently pennitted to be present, to advise and protect the interests of prisoners ; and it 300 JUSTICES OF THE PEACE. [Chap. XL is consistent with the spirit of our laws that it should be so, except where paramount considerations of public policy dictate the opposite course. On the same principle, it has been held unlawful to publish in a newspaper the ex-parte proceedings before justices. (R. v. Fisher, 2 Camp. 563 ; Duncan v. Thwaites, 3 Bam. & Cres. 556 ; 5 Dowl. & Rvl. 447.) But these authorities are wholly inapphcable when a magistrate is acting judicialhj ; the accused must then make his defence, as the niagisU'ate has to decide upon his guilt, and award the i^unishment ; and there is no principle of reason or justice which forbids him the advantage' of the same facilities and assistance, which w^ould be his indisputable light before a higher tribunal. In the language of Lord Kenyon in R. v. Stone, 1 East, 469, " Justice re- quires that he should be duly summoned and /z///y Aearr/." But this full hearing is not to be limited to the personal hearing of the party accused : it must be understood to comprehend a heaiiug by counsel or attorney, who, by his skill in the law, is competent to afford hiui such complete defence as the law permits. In courts of justice in general, a defendant, ujjon a charge of any offence not amounting to felony, has a right to appear and defend by attorney. (Bac. Ah. Attorney. B. ;) and it has been adjudged, that a defendant may be convicted in his absence, and upon an appearance by an attorney appointed by him to defend him. (R. v. Simpson, I Str. 44.) Upon the validity of this conviction being questioned, in consequence of the non-appearance of the defendant in person, the court said, " We think that it is certainly good, for the offender may entrust his defence to another, and the justice cannot enforce him to appear in person." If in the superior courts, and even at quarter sessions, a defendant has a right to the benefit of legal advice and as- sistance a multo fortiori, he is entitled to such advice before the jus- tices, when they are judges both of law and fact, and have not the assistance of a jury in arriving at a sound and satisfactory conclusion. (See Basten v. Carew, 3 Barn. & Cres. 649 ; 5 Dowl. & Ryl. 558 ; 2 Bla. Rep. 1 146 ; Paley on Convictions, by Dowling, 27.) Form of Conviction.'] Where an act of Parliament gives the fonn of conviction for the offence to which the act relates, that fonn must be followed ; and it has been said, that a warrant drawTi up in any other form is illegal; and that the justice, and those acting under him, are trespassers. (Goss v. Jackson, 3 Esp. R. 198.) Drawing up Conviction.'] Where a criminal information was moved for against a magisti'ate, for returning to a writ of certiorari a conviction of a party, in another and more fonual shape than that in which it was originally drawn up, and of which a copy had been de- Sect. IV.] THEIR JUDICIAL DUTIES. 301 livered to the party convicted, by the magistrate's clerk — Lord Kenyon observed, that it was the constant jjractice for magistrates to take minutes of their proceedings, without attending to the precise form of them at the time when they pronounced their judgment, to serve as memoranda for them to draw up a more fonnal statement of them afterwards, to be returned to the sessions ; and that it was by no means unusual to draw up the conviction, in point of fonn, after the penalty had been levied ; nor was there any legal objection to this method, provided the facts waiTanted them in stating what they did : this is not only legal but laudable. (R. v. Baker, 1 East, 186.) Disputes between Master and Servant.] There are a great many statutes, refeiring the quarrels, and disputed rights, between masters and servants, to the summary detennmation of magistrates. It be- hoves them to ascertain, in all such cases, by the particular statute itself, whether the legislature has confided this power to them or not; because, if they assume and exercise an authority not wan-anted by the statute, they render themselves liable to an action. General Statutes as to Labourers, S^c] The acts oi a. general na- ture, under this title, are 20 Geo. 2. c. 19, for adjusting, and for the more easy recovery of wages of servants, handicraftsmen, and labour- ers ; and the regulation of such servants and apprentices as therein expressed and provided: — the 27 Geo. 2. c. 6, extending the pro- visions of the former act to Devon and Cornwall, which places were before excepted: — the 31 Geo. 2. c. 11. s. 3, extending the pro- visions to all servants in husbandry, though hired for less than a year : — the 6th Geo. 3. c. 25, authorizing justices to grant warrants against, and to commit, subject to appeal, artificers, handicraftsmen, colhers, potters, labourers, &c. to the house of coiTection for three months, who absent themselves from the sendee before they have completed the tenn of their contracts, or for any other misdemeanor : — the 58 Geo. 3. c. 51, which authorizes masters to pay their work- men, labourers, &c. in local, or bank of England notes ; if they con- sent to be so paid; so far altering the previous enactments, (12 Geo. 1. C.34; 22 Geo. 2. c. 27; 57 Geo. 3. c. 22,) which forbade the pay- ment in any other way than in the lawful coin or money of the realm, in order to suppress the practice of masters paying their workmen, &c. in goods, or by truck, under penalties to be recovered before justices of the peace : — the 4 Geo. 4. c. 34, for enlarging the powers of jus- tices in such matters; and authorizing them to hear complaints- against servants, &c. made by stewards or agents on behalf of their principals, or against bailifis, managers, agents, &c., where masters reside at a distance, or are absent, and to abate wages, or discharge the 302 JUSTICES OF THE PEACE. [Chap. XI. servant ; and to order payment of wages to apprentices ; and to dis- train in case of refusal, &c. : — the 5 Geo. 4. c. 96, for consoUdating the hxws relative to the arbitration of disputes between masters and workmen relative to wages, hours of work, delays in finishing the work, badness of materials, construction of contracts, &c. &c. The act provides, that the complaints by workmen as to bad materials, shall be made within three weeks of his receiving the same ; and all other complaints, within six days after the cause thereof arises ; upon which the justices may decide, if the parties so agree ; or referees may be appointed as therein provided. Servants, S^c. within the Ads.] Although the 20 Geo. 2. c. 19, has been construed to extend to every description of labourers, (Lowther v. Earl Radnor, 8 East, 113 ;) yet these acts do not extend to menial or domestic servants, (R. v. Hullcott, 6 T. R. 583,) nor to a person employed by an attorney to keep possession of goods seized under a Jieri facias, (Branwell v. Penneck, 7 Barn. & Cres. 536 ; 1 Man. & Ryl. 409 ;) and consequently, magistrates have no jurisdiction over them. And the 20 Geo. 2, seems only to extend to those labourers with reference to whom the justices had power to make a rate of wages, before the passing of that statute. (Id. See Wilson V. Weller, 1 Brod. & Bing. 57.) The relation of master and servant must subsist between the parties, in order to give the magistrate jurisdiction under these acts. (Hardy V. Ryle, Lancaster v. Greaves, post.) In Lancaster v. Greaves, 24 April, 1828, the court held, that the 4 Geo. 4. c. 34, as to labour- ers and servants, does not apply to a person who has entered into a "WTitten contract to do certain work on a road, within a certain time, for a certain sum, he not being a servant working for wages ; and fur- ther that a magistrate could not commit for punishment ; and also dis- charge from sei-vice, as he is only authorized to discharge from service in lieu of the punishment. (Chitty's Statutes, 874.) To bring a person within the jurisdiction of a magistrate, under the 4th section of this latter act, he must have contracted to serve under a written contract, or must have actually entered the complainant's service before the time of the complaint ; and in such a manner as will create the relation of master and servaiit : therefore, a silk-weaver, who had agreed to work up at his own house certain materials for a master manufactm'er, was held to have been improperly convicted under the above statute. (Hardy v. Ryle, T. T., 1829. MSS. ; 9 Bara. &Cres. ; 3 Man. & Ryh) Expenses in Cases of Riot.] The 41 Geo. 3. c. 78. s. 2, autho- rizes two justices to make an order of allowance to high constables, for Sect. IV.J THEIR JUDICAIL DUTIKS. 303 extraordinary expenses incurred by them in case of riot, such order to be afterwards submitted, on oath of such constables, to the next gene- ral quarter sessions to be allowed wholly or in part, who may direct the treasurer of the county, city, division, &c. to pay the same. Where the high constable of a borough, by direction of the justices, employed and paid a number of special constables to suppress riots at an election ; and the ordinary constables were also constantly em- ployed by him during the same period, in endeavouring to keep the peace, for which service he made them a compensation, it was held, that the justices were warranted in considering the monies so expended as " extraordinary expenses incuired by the high constable in case of riot," within the meaning of the above statute ; and that the sessions were right in making an order upon the treasurer to re-imburse him those expenses. (R. v. Justices of Leicester, 7 Bani. & Cres. 6.) Fining Officers, ^c] It shall be lawful for any two or more jus- tices assembled at any special or petty sessions, upon complaint made upon oath before them of any neglect of duty, or disobedience of any lawful wai-rant or order of any justice or justices of the peace, by any constable, overseer of the poor, or other peace or parish officer, (such constable, overseer, or other officer having been duly summoned to appear and answer such charge or complaint,) to impose upon convic- tion any reasonable fine or fines not exceeding the sum of forty shil- lings, upon such constable, overseer, or other officer, and by warrant under the hands and seals of any two or more of such justices assem- bled at any such special or petty sessions as aforesaid, to direct such fine or fines, if not paid, to be levied by distress and sale of the goods of the person so offending, rendering the overplus (if any), after deducting the fine and the charges of such distress and sale to such offender ; and such fine shall be applied and disposed of for the relief of the poor of the parish, or place where the offender resides, at the discretion of the justices imposing the same ; and if any person shall be aggrieved by any such jiroceeding, he may appeal to the next general or quarter sessions of the peace, upon giving ten days' notice ; and for want of such distress, such person shall be committed to the house of correction for not exceeding ten days. (33 Geo. 3. c. 66. s. 1.) Justices out of Session may award Costs.'\ Where any complaint shall be made before any justice of the peace for any county, city, or liberty, and any warrant or summons shall issue in consequence of such complaint, that then it shall be lawful for any justice or justices of the peace, who shall have heard and determined the said complaint, to award such costs to be paid by either of the parties, and in manner 304 JUSTICES OF THE PEACE. [Chajj. XI and fornii as to him or them shall seem fit, to the party injured ; and ill case any person so ordered to pay such money as aforesaid, shall not forthwith pay or give security for the same, it shall be lawful for the said justice or justices, by wan-ant under hand and seal, to levy the said sum by distress and sale of the goods and chattels of such person so refusing or neglecting ; and where goods and chattels of such person cannot be found, to commit such person to the house of coiTection for the county or liberty wherein such person shall reside, there to be kept to hard labour for not exceeding one month, nor less than ten days, or until such money, together with the expenses at- tending the commitment of such person to such house of con'ection, be first paid. (18 Geo. 3. c. 19.) Costs out of Penalty.^ Provided, that upon the convection ujion any penal statute, where the penalty or penalties shall amount to or exceed the sum of five pounds, the said costs shall be deducted accord- ing to such justice's discretion, out of the penalty or penalties, so that the deduction do not exceed one-fifth of the said penalty or penalties ; and the remainder of the said penalty or penalties shall be paid to, or divided among, the person or persons who would have been entitled to the whole of the penalty or penalties in case this act had not been made. (Ibid. s. 2.) General Form of 'Conviction.'] The 3 Geo. 4. c. 23, provides, that in all cases wherein a conviction shall have taken place, and no par- ticular form for the record thereof hath been directed, justices, deputy- lieutenants, or other persons, duly authorized to proceed summarily therein, and before whom the offender or offenders shall have been convicted, shall and may cause the record of such conviction to be drawn up in the manner and form following, or in any words to the same effect, mutatis mutandis ; (that is to say,) County Cor as the cane may te) of Be it remembered, that on the day of in the year of our Lord at in the county of A. B. of in the county of labom-er, [or as the case may be'} personally came before me [or before us, &c.] C. D. one [or more, as the case may be] of his majesty's justices of the peace for the said and infonued me [or us, kc] that E. F. of in the county of on the day of at in the said did [here set forth the fact for tvhich the infor- mation is laid] contrary to the form of that statute in such case made and provided ; whereupon the said E. F. after being duly summoned to answer the said charge, appeared before me [or us, &c.] on the day of at in the said and having heard the Sect. IV.] THEIR JUDICIAL DUTIF.S. 305 charge contained in the said information, declared he was not guilty of the said offence [or as the case may happen to be"] did not appear before me [or us, &c.] pursuant to the said summons [or did neglect and refuse to make any defence against the said charge] : whereupon I [or we, &c. or nevertheless I, or we, &c.] the said justice [or jus- tices] did proceed to examine into the truth of the charge contained in the said information, and on the day of aforesaid, at the parish of aforesaid, one credible witness, to wit, A. W. of in the county of upon his oath deposeth and saith [if E. F. be present, say, in the presence of the said E. F.] that within months [or as the case may be"] next before the said infomiation was made before me [or us, &c.] the said justice, by the said A. B., to wit, on the day of in the year the said E. F. at in the said county of [here state the evidence, and, as nearly as possible, in the words used by the ivitness, and, if more than one ivitness he examined, state the evidence given by each^ [or if the defendant confess, instead of stating the evidence, sayl and the said E. F. acknowledged and voluntarily confessed the same to be true ; therefore it manifestly appearing to me [or us, &c.] that he the said E. F. is guilty of the offence charged upon him in the said information, I [or we, &c.] do hereby convict him of the oflfence aforesaid, and do declare and adjudge that he the said E. F. hath forfeited the sum of of lawful money of Great Britain for the offence aforesaid, to be distributed [or paid, as the case may he'\ ac- cording to the fonn of the statute in that case made and provided. Given under my hand [or our hands, &c.] and seal the day of in the year of our Lord Merits, Defects of Form.] In all cases where it appears by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed against the said conviction, where an appeal is allowed, or if appealed against the conviction has been affinned, such conviction shall not afterwards be set aside or vacated in consequence of any defect of fonn whatever, but the construction shall be such a fair and liberal construction as will be agi'eeable to the justice of the case. (s. 3.) Recovery of Penalties.] The 5 Geo. 4. c. 18, reciting the diffi- culty of recovering penalties and forfeitures, and that, on conviction of an offender, no power is given to magistrates to detain him, till return of the waiTant of distress against his goods, by which means he frequently escapes punishment, goes on to provide, that wherever a penalty is directed to be recovered before justices, and on default of pay- X 300 JUSTICES OF THE PEACE. [Chap. XI. nient, thev may distrain on the offender's goods ; and in case, upon a valuation being taken of such goods, sufficient distress for the penalties and other costs and charges, cannot be found, or in case it shall appear, either by the confession of the offender, or othenvise, that he has not sufficient goods whereupon the same may be levied, within the jurisdiction of such justice or justices, no sale shall take place of the goods of such offender, but it shall be lawful for such justice or justices, to commit such offender to the common gaol or house of con'ection, for such time and in such manner as in such acts respectively mentioned and directed ; then and in every such case it shall be lawful for such justice, &c., at his or theu discretion, to order the offender to be detained in custody until return shall be made to such warrant or waiTants of distress, unless such offender or offenders shall give sufficient seciuity, to the satisfaction of such jus- tice, &c., for his appearance before him or them on such day as shall be appointed for the return of such warrant, not being more than eight days from the time of taking such security ; or in case it shall appeal" to the satisfaction of such justice, &c., by the confession of the offender or otherwise, that he hath not goods within the jurisdiction of such justice, &c., sufficient whereon to levy all such penalties, &c., such justice, &c., may at his or their discretion, without issuing any warrant of distress, commit the offender or offenders for such period of time, and in such and hke manner, as if a w aiTant of distress had been issued, and a nulla bona returned thereon, (s. 1.) The 2nd section provides, that in cases w'here penalties are directed to be recovered by distress, but no remedy is provided by the par- ticular statutes where sufficient distress cannot be found, justices may proceed in such and the like manner as if a warrant of disti-ess had been issued, and a nulla bona returned thereon ; and may issue their warrant for committing such offender or defendant to the common gaol for any term not exceeding three calendar months, unless the sum adjudged to he paid, and all costs and charges of the proceeding, shall be sooner paid : Provided always, that the amount of such costs and expenses shall be specified in such warrant of commitment. Offender discharged on Payment.] In case any offender com- mitted to the common gaol or house of con'ection for default of pay- ment of such penalty or forfeiture, together with the reasonable costs and chai'ges attending the conviction of such offender or offenders, shall, at any time during the period of his imprisonment, pay or cause to be paid to the governor or keeper of the prison the full amount of such penalty, together with the costs and charges, it shall Sect. TV.] THEIR JUDICIAL DUTIKS. .S07 be lawful for such governor or keeper of such prison, and he or they are hereby required forthwitli, to discharge such offender or ofienders fi'om his or their custodv. (s. 3.) May commit instead of Distraining.^ " And whereas, cases may occur where the recovery of such penalty or forfeiture by distress and sale of the goods and chattels of the offender or offenders may appear to the justice or justices of the peace, or magistrate or magistrates for any county, riding, soke, city, division, or place, to be attended with consequences ruinous, or in an especial manner injurious to the offender or offenders, and their family or families, be it enacted, that the justice or justices, and magistrate or magistrates aforesaid shall be empowered, and they are hereby authorized in all cases and upon all such occasions as to them shall seem fit, and where such consequences are likely to arise, to cause to be withheld the issue of any wanant or warrants of distress, and to commit the offender or offenders aforesaid immediately after conviction, and in default of payment of the penalty or forfeiture with costs and charges, to the common gaol or house of coiTection for such time and in such manner as are in such acts re- spectively mentioned and directed : Provided alwaj's, (hat it be bv the desire, or with the consent in writing, of the party or parties upon whose property the penalty or forfeiture is to be levied." (s. 4.) Certifijing Fines, (Sfc] The collection, recording and certifying fines, issues, and amerciaments, are matters upon which a variety of acts of Parliament have been passed at different periods. Several of them were repealed by the 3 Geo. 4. c. 46, which enacts, at the place of some of the repealed provisions, that "all fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them, or any of them (save and except the same shall by virtue of any act or acts of parliament made or to be made, be otherwise directed to be levied, recovered, appropriated, or disposed of), which already are o" hereafter shall be set, imposed, lost, or forfeited by or before any justice or justices of the jieace in that part of the United Kingdom called England, shall be and are hereby re- quired to be certified by the justice or justices of the peace by or before whom any such fines, issues, amerciaments, forfeited recogni- zances, sum or sums of money paid or to be paid in lieu or satisfac- tion of them, or any of them, shall be set, imposed, lost, or forfeited to the clerk of the peace of the county, or town clerk of the city, borough, or place, in writing, containing the names and residences, trade, profession, or calling of the parties, the amount of the sum forfeited by each respectively, and the cause of each forfeiture, signed by such justice or justicts of the peace, on or V)ofore the ensuing X 2 308 JUSTICES OF THE PEACE. [Chap. XI. general or quarter-sessions of such county, city, borough, or place resi)ectively ; and such clerk of tlie peace, or town clerk, shall cojjy on a roll such fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them, or any of them, together with all fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them, or any of tliem, imposed or forfeited at such court of general or quarter-sessions, and shall within such time as shall be fixed and detennined by such court, not exceeding twenty- one days after the adjournment of such court, send a copy of such roll, with a wTit of distringas and capias, ox fieri facias and capias, according to the form and effect in the schedule, marked (A), annexed to this act, to the sheriff" of such county, or the sheriff", bailiff", or officer of such city, borough, or place, having execution of process therein respectively, as the case may be, which shall be the authoiity to such sheriff" of such county, or the sheriff", bailiflf, or oflScer, as the case may be, for proceeding to the immediate levying and recovering of such fines, issues, amerciaments, forfeited recognizances, sunr or sums of money to be paid in Ueu or satisfaction of them, or any of them, on the goods and chattels of such several persons, or for taking into custody the bodies of such persons, in case sufficient goods and chattels shall not be found whereon distress can be made for recovery thereof, and every pers.n so taken shall be lodged in the common gaol until the next general or quarter sessions of the peace, there to abide thejudgn:ent of the said court." (s. 2.) Notice to Sureties.^ "And that each and every justice of the peace, before whom any recognizance shall be entered into or taken, shall, and is hereby required to give or cause to be given at the time of entering into such recognizance to the person or persons, sm'ety or sureties so entering into the same, and to each of them, a written or printed paper or notice in the fonn or to the eff"ect stated in the .schedule marked (B) to this act annexed, adapting the same to the parti culai- circumstances of the case, and each and eveiy such justice shall in such recognizance state and particularly specify, not only the profession, art, mystery, or trade of every person so entering into such recognizance, together with their Christian name and names and surnames, but also the paiish, township, or place of his or her resi- dence, and in case such residence shall be in any city, town, or borough, shall also state, and particularly specify the name of the street, and number of the house (if any) in which such person shall reside, and also whether owner or tenant thereof, or lodger therein." Sect. IV.] THEIR JUDICIAI, DUTIES. 300 " Schedule (B.) rj, ., ■> Take notice, that you of are hound lO wit. J . 11 5 in the sum of pounds, and your sureties in the sums of pounds each, to appear at the quarter or general sessions of the peace for the county of to be holden at on the day of next, and unless you jiersonally make your appearance accordingly, the recognizances entered into by yourself and securities will be forthwith levied on you and your bail. Dated this day of one thousand eight hundred and twenty Justices of the peace." Binding fo keep the Peace.'\ Persons who have used threats, or conducted themselves in a way to excite a reasonable alarm of serious bodily injury, may be bound to keep the peace towards the com- jilainant, or to be of good behaviour. This is done by requiring them to enter into recognizance to that effect, a power exercised by a reasonable intendment of law, more than by any especial law in that case provided. (Cromp. 125.) Lord Hale says, this is not intended to be perjietual, but in nature of bail, viz. to appear at such a day at their sessions, and in the mean time to be of good behaviour. (2 Hale, 126.) But in a recent case it was held, that a justice of the peace is authorized to require surety of the peace for a limited period (e. g. two years) according to his discretion, and that he is not limited to bind the party to the next sessions only. ( Willes v. Bridges, 2 Barn. & Aid. 278.) Superseding their own Order. '\ Where two justices having made an order of removal, and within three days, reciting that they had been sm'prised, superseded it, and commanded the churchwardens to return the fonner order to be cancelled ; the court held that the super- sedeas was well sent by the justices, and projier to prevent the expense of an appeal. (Pancras v. Rumbald, 1 Stra. 6.) In bailable Offences.'\ Mr. J. Ashurst said, the legality of super- sedeas in bailable oflences is very doubtful, and that at any rate it cannot hold where the party is convicted in the first instance as a logue and vagabond, and committed in execution, for there he is clearly not bailable. (R. v. Brooke, 2 T. R. 195.) Dividing Court at Sessions.] The great increase of the business at quarter sessions, induced the legislature to provide for the dispatch of it by two courts being employed at the same time. The act pro- A'ides, that whenever and as often as any court of quarter session, or 310 JUSTICES OF THE PEACE. [Chap. XI general session of the peace shall be assembled for the dispatch of business, the justices then present may, on the first day of their being so assembled, take into their consideration the state of the business likely to be brought before them ; and if it shall appear to them that such business, if heard by the whole court, is likely to occupy more than three days, including the day of their being so assembled, it shall be lawful for the said justices to appoint two or more justices, one of whom shall be of the quorum, to sit apart from themselves in some place in or near the court, there to hear and determine such business as sliall be referred to them, whilst others of the justices are at the same time proceeding in the dispatch of the other business of the same court ; and that the proceedings so had by such two or more justices so sitting apart, shall be as good and effectual in the law, as if the same were had before the court in its ordinary place of sitting, and shall be recorded accordingly. (59 Geo. 3. c. 28.) The 2nd section provides, that regulations made for the apportion- ment of business need not be renewed at each succeeding session. And the 3rd section directs the clerk of the peace to appoint a person to record the proceedings of such separate court; and the quarter sessions may order the county treasurer to remunerate the clerk of the peace, and to appoint an additional crier, and to grant him a reasonable remuneration. Crimes within their Cognizance.} The commission enumerates almost all the various classes of offences, and gives justices the cog- nizance of them ; and allhough it does not mention murder or man- slaughter, yet, under the general word felony, they may exercise the power to hear and determine upon those crimes. However, in prac- tice, they very properly abstain from trying homicide, or any other offence to which a capital punishment is assigned. And it hath been oi late settled that they have no jurisdiction over forgeiy or perjuiy at the common law. (2 Hawk. c. 8. s. 38.) SECTION V. PROTECTION AND LIABILITY. J\''ot to be slandered or abused.] A justice of the peace is strongly protected by the law in the just execution of his office. He is not to be slandered or abused. (1 Stra. 617—2. Ld. Raym. 1396.) Thus where upon a colloquium of him, and the execution of his office, the defendant said. You are a rascal, a villain, and a liar, it was moved in arrest of judgment that these words are not actionable. After consideration, Pratt C. J. delivered the opinion of the court, that Sect, v.] PROTECTION AND LIABILITY. 311 though rascal and villain were uncertain, yet benig joined with liar, and spoken of a justice of the peace, they did import a cliarge of acting corruptly and partially, and therefore there ought to be judg- ment for the plaintiff. (Aston v. Blagrave, 1 Stra. 617, Ld. Raym. 1396.) So an indictment lies for saying of a justice, in the execution of his office, "you are a rogue and a liar." (R, v. Revel, 1 Stra. 420.) Words spoken of a Justice.] An information was moved for against the defendant on account of the words, If he is a sivorn jus- tice, he is a rogue and a forsworn rogue, spoken of Mr. Kent, a justice of the peace, in a conversation about a warrant granted by him. To this it was objected, that the words were not spoken to him in the execution of his office. And the court, on refusing the in- formation, said, it is not the same insult and contempt as if spoken to him in the execution of his office, which would make it a matter in- dictable. (R. V. Pocock, 2 Stra. 1157.) But the words are actionable ; and, in point of fact, Mr. Kent afterwards recovered against the defendant in an action. (Kent v. Pocock, 2 Stra. 1168.) Committing for Contempt.'] It is doubtful whether a magistrate, not sitting as chairman of the court, but in his iH'ivate office, can commit for a contempt. (Peake's R. 62.) But such a commitment (if legalj must be by warrant, in writing. In an action for false imprisonment, the defendant pleaded the general issue. Upon the trial it appeared that the defendant was a magistrate, and that the plaintiff, who was a constable, having been engaged till evening in executing a warrant, signed by the defendant, inquired of him whether any thing was allowed for his service, and being answered in the negative, said to the defendant. If you have anymore warrants to serve, do not send them to me, for I will not serve them. The defendant mildly replied. What is that you say. Mayhem P The plaintifi" repeated. If you have any more warrants to serve, do not send them to me, for I will not serve them ; you may serve them your- self. The defendant immediately gave a verbal order that the plaintiff should be taken away to the cage in the town of Famham, which was done, and he was confined until the next morning. Gibbs C. J. (C. P.), in delivering the opinion of the court, said, "As to the merits, without considering whether the words spoken were or were not a sufficient cause of commitment by the magistrate, we are of 0})inion that this commitment, which was clearly by way of j^unish- ment, and was made by word of mouth only, without warrant, in writing, cannot be supported ; for it is clearly laid down in 2 Hawk. 312 JUSTICES OF THE PEACE. [Chup. XJ. c. 16. s. 3, and by Lord Hale, (2 Hale, 122,) that such a commit- ment by a magistrate must be made by a wan-ant in wi'iting. (May- hew V. Locke, 7 Taunt. 63, 2 March, 377.) Must be for a time certain.'] Where the defendant was committed under the following warrant — " Receive into your custody the body of T. James, sent by us, and charged by us, upon view for insulting behaviour towards us, by telling us that we were biassed and preju- diced in our conduct towards him as magistrates, in the due execution of our office as magisti'ates of the county of C, and keep him m custody until he shall be discharged by due course of law ;" it was contended upon motion for a habeas coi-jius, that as this was a com- mitment for punishment, it ought to have been for a time certain, and as there was no com'se of law by which the defendant could be discharged, such a commitment, if valid, amounted to perpetual im- prisonment. Abbott, C. J., " Without giving any opinion upon the power of a justice of peace to commit for a contempt, this warrant appeal's to us to be bad, for not committing for a time certain ; take the writ." And the defendant, upon being brought up, was discharged. (R. V. James, 6 Barn. & Aid. 894.) Notice of Action against.] To render justices more safe m the execution of their office, it is enacted by the 24 Geo. 2. c. 44. s. 1, " That no writ shall be sued out against, nor any copy of any pro- cess at the suit of a subject shall be served on, any justice of the peace for any thing by him done in the execution of his office, until notice in wilting of such intended wiit or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for the party who intends to sue, or cause the same to be sued out or seiTed, at least one calendar month before the suing out or servmg the same, in which notice shall be clearly and explicitly con- tained the cause of action which such party hath, or claimeth to have, against such justice of the peace, on the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode, who shall be entitled to have the fee of twenty shillings for the preparing and ser\ing such notice, and no more." Wlien Notice necessary.] It has been deemed sufficient to entitle a justice to the benefit of this statute, that he thmks he is acting in the execution of his office, though what he did was not properly within his official duty. (Bird v. Gunston, 2 Chit. Rep. 4-59 ; Graves v. Arnold, 3 Cami^b. 242.) One magistrate who commits the mother of a bastai-d to custody, for not fihating the child, is entitled to notice of action under the above statute. And in that case Lord EUenborough, C. J. said, "It is not Sect, v.] PROTECTION AND LIABILITY. 313 denied, that the defendant had authority to act as a magistrate upon tlie subject matter of the complaint brought before him, though he could not act alone. The very object of the legislature, in requiring the notice to be given, was to enable the magistrate to tender amends as for the wrong done, contemplating him as a \^Tong doer." (Weller V. Toke, 9 East, 365.) And accordingly the lord of the manor, who is also a justice of the peace, is entitled to notice of an action brought against him for taking away a gun in the house of an unqualified person, for it will be pre- sumed that he acted as a justice. (Briggs v. Evelyn, 2 H. Blac. 114.) And when a magistrate acts upon a subject matter of com- plaint, over which he has authority, but which arises out of his juris- diction, he is also entitled to this notice. (Prestidge v. Woodman, 1 Bam. & Cres. 12.) But no notice is necessary to support an action against a person for the penalty given by stat. 18 Geo. 2. c. 20, for acting as a justice without a proper qualification. (Wright v. Horton, Holt, R. 458.) Form of the Notice.] The notice to a justice of the peace must express the nature of the vjrit or frocess intended to be sued out, as well as of the cause of action. Where the notice did not state what particular writ or process the plaintiff intended to sue out, it was held a fatal objection ; for this is requu-ed by the act of parUament alluded to. (Lovelace v. Curry, 7 T. R. 631.) The plaintiff having sued a magistrate, gave notice of his cause of action, that the magistrate had unlawfully convicted him of not pay- ing wages, and had issued a warrant for seizing his goods, directed to J. Bark, under which they were seized accordingly. The warrant having been directed to the constable of Halifax, and not to J. Bark : held, that the notice v/as insufficient. (Aked v. Stocks, 4 Bing. 509, 1 Moore & P. 346.) But the notice need not specify the form, though it must state the cause, of action for which the party sues. (Sabin v. De Burgh, 2 Campb. 196.) And in stating the cause of action it is sufficient to infonii the defendant substantially of the ground of complaint. (Jones v. Bird 5 Barn. & Aid. 837, 1 Dowl. & Ryl. 497.) Indorsement of Notice. ] Some attention is necessary in this respect ; thus where the notice was not indorsed with the place of abode of the attorney, but concluded thus : — " Given under my hand, at Durham, tliis day of ," it was deemed insufficient. (Taylor v. Fenwick, 7 T. R. 635, 3 Bos. & Pul. 553.) Il is sufficient, in indorsing the attorney's name upon the notice, (o 314 JUSTICES OF THE PEACE. [Chap. XI. put the initial only of his Christian name, with his surname and place of abode in words at length. (James v. Swift, 4 Bam. & Cres. 681.) In Crook v. Curry, (1 Tidd's Prac. 9 ed. p. 30,) Durham Summer Assizes, 1789, Thompson, B., held, that the attorney's name and place of abode being in the body instead of on the back of the notice was sufficient, on the grounds of the intent of the statute being that the justice miglit be able to tender amends to the party, or his attor- ney, and of the case of Rex v. Bigg, (1 Str. 18, 3 P. Wms. 419,) in which a writing on the inside of a bank-note was holden to be pro- perly described as an indorsement even in an indictment for forgery. (Sed quaere.) The attorney, giving the notice, may describe himself generally of the town in which he resides, as of " Birmingham," (Asbom v. Gough, 3 Bos. & Pul. 551,) or " Bolton-en-le-Moor." (Crook v. Cuny, supra.) But Thompson, B., then said, " London, Manchester," or other such large town generally would not be sufficient. And where he described himself in the notice as of a place in London, which in fact was in Westminster, it was holden to be fatal. (Stears v. Smith, 6 Esp. Hep. 138.) Tender of Amends.] By s. 2, of the same statute, it is further enacted, " that it shall and may be lawful to and for such justice of the peace, at any time within one calendar month after such notice given as aforesaid, to tender amends to the party complaining, or to his or her agent or attorney ; and in case the same is not accepted, to plead such tender in bar to any action to be brought against him, grounded on such writ or process, together with the plea of not guilty, and any other plea with the leave of the court ; and if upon issue joined thereon, the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant; and in such case, or in case the plaintiff shall become nonsuit, or shall discontinue his or her action, or in case judgment shall be given for such defendant or defendants upon demun'er, such justice shall be entitled to the like costs as he would have been entitled unto, in case he had pleaded the general issue only ; and if, upon issue so joined, the jury shall find that no amends were tendered, or that the same were not sufficient, and also against the defendant or defendants on such other plea or pleas, then they shall give a verdict for the plain- tiff, and such damages as they shall think proper, which he or she shall recover, together with his or her costs of suit." May pay Money into Court.] By s. 4, it is furtlier enacted, " that in case such justice shall neglect to tender any such amends, Sect, v.] PROTECTION AND LIABILITY. 315 or shall have tendered insufficient amends hef'ore the action brought, it shall and may be lawful for him, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall see fit, whereupon such proceedings, orders, and judgments shall be had, made, and given in and by such court as in other actions, where the defendant is allowed to pay money into court." In an action against a magistrate for an assault and false imprison- ment, after the general issue pleaded, the court will permit the de- fendant to withdraw his plea, and pay money into court, and plead de novo. (Devaynes v. Boys, 7 Taunt. 33, 2 Marsh. 356.) So in trespass against a magistrate for an act done in the execution of his office, the court, after issue joined, and notice of trial given, allowed the defendant to withdraw his plea, pay money into court, and plead the general issue de novo. (Nestor v. Xewcome, 3 Barn. & Cres. 159.) Proof of Notice.'] By s. 3, of the same act, " No plaintiff shall recover any verdict against such justice in any case where the action shall be gi'ounded on any act of the defendant, as justice of the peace, unless it is proved upon the trial of such action, that such notice was given as aforesaid; but in default thereof, such justice shall recover a verdict and costs as aforesaid." By s. 5, it is further enacted, " That no evidence shall be permitted to be given by the plaintiff, on the trial of any such action as afore- said, of any cause of action except such as is contained in the notice hereby directed to be given." Certificate, and double Costs.] Section 7 provides, " That where the plaintiff, in any such action against any justice of the peace, shall obtain a verdict, in case the judge before whom the cause shall be tried shall, in open court, certify on the back of the record that the injury for which such action was brought was wilfully and maliciously committed, the ])laintiff shall be entitled to have and receive double costs of suit." Limitation of Actions.] " No action shall be brought against any justice of the peace for any thing done in the execution of his office, or against any constable, headborough, or other officer or person act- ing as aforesaid, unless commenced within six calendar months after the act committed." (s. 8.) These months, it seems, are to be reckoned inclusive of the day of committing the act; (Clarke v. Davey, 4 Moore, 465;) but in the case of a continued imprisonment, the magistrate is liable to answer, in an action, for such part of the imprisonment, suffered under his 316 JUSTICES OF THK PEACE. [Chap. XI. waiTant, us was within six calendar months before the action com- menced against him. (Massy v. Johnson, 12 East, 67.) The 7 & 8 Geo. 4. c. 29. s. 75, (the larceny act,) and c. 30, s. 41, the malicious injuries act, contain sunilai' jirovisions in favour of magistrates and their officers, against whom actions may be brought. Time, how computed. '\ In computing the six months Umited by 24 Geo. 2. c. 44. s. 8, for bringing an action against a magistrate for false unprisonment, the day of discharge from imprisonment is to be reckoned exclusively. Therefore, where a party discharged on the 14th of December sued out a writ on the 14th of June following, it was held that the action was commenced in time. (Hardy v. Ryle, T. T. 1829, MSS., 9 Bam. & Cres., 3 Man. & Ryl.) Damages limited to Twopence.'] And to render justices of the peace more safe in the execution of their duty, it is enacted by stat. 43 Geo. 3. c. 141, that " in all actions which shall be brought against any justice or justices of the peace in the United Kingdom of Great Britain and Ireland, for or on accoimt of any conWction by him or them had or made under or by \artue of any act or acts of Parlia- ment in force in the said United Kingdom, or for or by reason of any act, matter, or thing whatsoever done or commanded to be done by such justice or justices for the levying of any penalty, aj^prehending any party, or for or about the caiT>ang of any such conviction into effect, in case such conviction shall have been quashed, the plaintiff or plaintiffs in such action or actions, besides the value and amount of the penalty or penalties which may have been levied upon the said plaintiff or plaintiffs, in case any levy thereof shall have been made, shall not be entitled to recover any more or gi'eater damages than the sum of twopence, nor any costs of suit whatsoever, unless it shall be expressly alleged in the declaration in the action wherein the recovery shall be had, and which shall be in an action upon the case only, that such acts were done mahciously and without any reasonable and pro- bable cause." To what Cases the Act extends.'} But this statute does in no in- stance extend to protect justices of the peace in the execution of their office, unless done on account of some conviction made by them of the plaintiffs in such actions by virtue of any statute, &c. (Massey v. Johnson, 12 East, 67.) But if a conviction be good upon the face of it, the production and pi'oof of it at the trial will justify the convicting magistrates, under the general issue, as well in respect of such facts stated therein as are necessary to gi\e them jurisdiction, as upon the merits of the conviction. (Gray v. Cookson, 16 East, 13.) Sect, v.] PROTECTION AND LIABILITY. 317 If, however, the conviction do not pursue on the face of it the provisions of the statute, under which it purports to be made, nor show that any offence has been committed, it is bad; and although it has not been quashed, its invalidity may be taken advantage of on the trial of an action of trespass, for a distress taken under a warrant grounded thereon. (Gimbert v. Coyney, 1 M'Clel. & Y. 469.) In an action against a magistrate for a malicious conviction, it is not sufficient for the jilaintifF to show that he was innocent of the offence of which he was convicted ; but he must also prove, from what passed before the magistrate, that there was a want of probable cause. In an action against a magistrate for false imprisonment, proof of a conviction of the plaintiff for an offence differing from that re- cited in the commitment, is no justification of the imprisonment. Nor is the defendant, in order to deprive the plaintiff of his costs under 43 Geo. 3. c. 141, at liberty to show that the offence men- tioned in the conviction had actually been committed by the plaintifl"; as that statute applies only to cases where convictions have been quashed. Qiitere whether it is admissible in mitigation of damages ? (Rogers v. Jones, 3 Bam. & Cres. 409.) In trespass against magistrates for taking and detaining a vessel, a conviction by the defendants under the bum-boat act (no defect ap- pearmg on the face of the conviction) is conclusive evidence that the vessel in question is a boat within the meaning of the act, and pro- perly condemned. (Brittain v. Kinnaird, 1 Brod. & Bing. 432, 4 Moore, 50.) If a warrant of commitment does not show an offence over which the magistrate who issued it has jurisdiction, an action lies against him for the commitment, although there might have been a previous regular conviction. (Wickes v. Clutterbuck, 2 Bing. 483, 10 Moore, 63.) Venue and double Costs.'] By 7 Jac. 1. c. 5, (made perpetual by 21 Jac. 1. c. 12. s. 2,) if any action, bill, plaint, or suit upon the case, trespass, battery, or false imprisonment, is brought in any of his Majesty's courts at Westminster, or elsewhere, agahist any justice of the peace, mayor, or bailiff of any city or town corporate, headborough, port-reeve, constable, tythingman, collector of subsidy or fifteens, for or concerning any matter, cause, or thing, by them or any of them done by virtue of his or their offices the action, &c., shall be laid within the county where the trespass or fact is done and committed, and not elsewhere, (21 Jac. I. c. 12. ss. 3. 5,) and every 318 JUSTICES OF THE PEACE. [Chap. XI. defendant may plead the general issue not guilty, and give in evidence the special matter, which heing pleaded had been good in law to have discharged defendant of the trespass or other matter laid to his charge ; and if on the trial plaintiff shall not prove that the cause of action accrued within the county in which it is laid, the jury shall find the defendant not guilty, without regard to any other evidence for plain- tiff (21 Jac. 1. c. 12. ss. 3. 5.) ; and if a verdict pass for defendant, or if plaintiff discontinues, or is nonsuit, defendant shall have his double costs which he shall have sustained by wrongful vexation in defence of the said action, &c. (See Money v. Leach, 3 Burr. 1742.) To entitle a defendant (an officer) to double costs under this statute, there must be a certificate of the judge who tried the cause (which may be granted either at the trial or afterwards,) that the defendant was such an officer, and that the action was brought against him for something done by him in the execution of that office. (Harjjer v. Carr, 7 T. R. 448.) Justices misbehaving in Office.'] If a justice will not, on complaint to him made, execute his office, or shall misbehave in his office, the party grieved may move the Court of King's Bench for an infonna- tion, and afterwards may apply to the Court of Chancery to put him out of the commission. (Cromp. 7 ; Ex parte Rook, 2 Atk. 2.) The Court of King's Bench will not gi-ant a mandamus command- ing justices of the peace to do that which may render them liable to an action. (Rex v. Dayi-ell, 1 Barn. & Cres. 485.) Not punishable for a mere Error in Judgment.] A justice is not punishable at the suit of the party, but only at the suit of the king, for what he doth as judge in matters which he hath power by law to hear and detennine, without the concurrence of any other ; but in cases where he proceeds ministerially rather than judicially, if he act corruptly he is liable to an action at the suit of the party, as well as to an information at the suit of the king. (2 Hawk. P. C. c. 13. s. 20.) Error or Mistake excusable.] Where a criminal infonnation is applied for against a magistrate, the question is not whether the act done be strictly right, but whether it proceeded from an unjust, op- pressive, or corrupt motive (amongst which fear and favour are gene- rally included,) or from mistake and en'or only. In the latter case the court will not grant the rule. (Rex v. Borron, 2 Bani.& Aid . 432.) In Rex V. Young and Pitts, 1 Burr. 556, Lord Mansjield, C. J., declared, that the Court of King's Bench hath no power or claim to review the reasons of justices of the peace upon which they form Sect, v.] PROTECTION AND LIABILITY. 319 their judgments in gi-anting licenses, by way of appeal from their judgments, or overruling the discretion in that behalf intrusted to them. But if it clearly appear that the justices have been partially, maliciously, or corruptly influenced in the exercise of this discretion, and have (consequently) abused the trust reposed in them, they are liable to prosecution by indictment or infomiation ; or even possibly by action, if the malice be very gross and injurious. And in Rex v. Holland and Forstev, (1 T. R. 692,) it appeared, that the defendant Forster had been present at a general meeting at the time when the license was refused ; but he had afterwards told the other defendant, Holland, who was not present at the general meeting, that the only reason why a license had not been granted then was, that they might have an opportunity of inquiring into the character of Harrison, and he accordingly prevailed upon Holland, at a private meeting held by those two only, to join in granting a license. The court were clearly of opinion that an infonnation should be granted against a justice as well for granting a license improperly as for refusing one in the same manner. And as it appeared in this case, that Holland, though not altogether blameless, had been de- ceived by Forster, they discharged the rule as to the fonner, upon his paying the costs of the application, as against himself; and as to Forster they granted the information. (See also Rex v. Sainsbury, 4T. R. 451.) Illegal Commitments.'] A commitment of a person who is ulti- mately found to be entirely innocent of the charge, is not, therefore, necessarily illegal. In an action of trespass and false imprisonment against a constable, under such circumstances, Mr. J. Gaselee told the jury to consider whether the circumstances, under which the arrest was made, afforded the defendant reasonable ground to suppose that the plaintiff" had committed the felony, and whether, in his situation, they would have acted as he had done. This direction was afterwards held substantially correct by the court. (Davis v. Russell, 5 Bing. 354 ; see Beckwith v. Philby, 6 Barn. & Cres. 637.) This rule is equally applicable to magistrates. But if a magistrate commit a prisoner for re-examination, stating that he does so in the hope that the prisoner would admit a fact then in dispute; and the jury should be of oinnicn, that the commitment, though in point of foiTii for re-examination, was intended to force an admission from the prisoner of the jtarticular fact, the magistrate is liable to an action of trespass and false imprisonment, in respect of that commitment. (Davis V. Capper, MSS. E. T. 1829, 9 Barn. & Cres., 3 Man. & Ryl.) 320 JUSTICES or the peace. [Chap. XI Commit liiuj for unreasonable Time.'\ An action oi' trespass and false imprisonment was brought against a magistrate for having com- mitted a party for re-examination for a period of fomteen days, which it was alleged was an unreasonable length of time, occasioned by an improper motive mfluencing the mind of the magistrate. The jury found that the commitment was made bonajide without any improper motive on the part of the magistrate, but that the time ivas unreason- able, and gave a verdict with damages for the plaintifl'. Upon a motion for a new trial, it was contended, among other objections, that the fonn of action was impro2)er, as the magistrate had jmisdic- tion over the matter of inquiry, and that it ought to have been a spe- cial action on the case. The Court of King's Bench, however, held, that the fonn of action chosen was proper ; for to have had a special action on the case, there must have been an improper motive for its foundation. And as to the validity of the commitment on the wan'ant, which it was urged must be wholly good or wholly bad, as it was found that the time was unreasonable, an action for false imprison- ment might be sustained. Whether it was considered void from the beginning on account of its unreasonableness, or as good in the begin- ning, and bad for so much of it as the imprisonment was beyond the reasonable time, made no difference, for the continuance of imprison- ment beyond that reasonable time was a trespass. It appeared, how- ever, to the court as a principle, that the commitment should be considered void from the beginning ; for if a magistrate be only au- thorized by law to commit for a reasonable time, and he commit for an unreasonable time, that is an act for which by law he has no au- thority. The court, therefore, refused to disturb the verdict. (Davis v. Capper, MSS., see 9 Bani. & Cres., 3 Man. & Ryl.) Not to be punished criminally and civilly.'] But a justice shall not be liable to be pmiished both ways, that is, both criminally and civilly ; but before the court will grant an information, they w ill re- quire the party to relinquish his civil action, if any such is commenced. And even in the case of an indictment, and though the mdictment be actually found, yet the attorney general (on application made to him) will grant a nolle prosequi upon such an indictment, if it appear to him that the prosecutor is determined to cany on a ci\il action at the same time. (Rex v. Fielding, 2 Burr. 719.) Statements on Oath.] In an action of trespass brought agamst the defendants, for having, as justices, issued a warrant of distress against the goods of the plaintiff", for a cause which, upon the face of the order, appeared to be within their jurisdiction. Upon the trial, in order to prove the justices to have been trespassers, other facts than Sect, v.] PROTECTION AND I.IAIULITIES. 321 those stated before them when they made their order were proved. A verdict was found for the plaintiiF, subject to the opinion of the court. And it was held by Lord EUenhorough, C. J., that the ma- gistrates could not be afiected as trespassers, if the facts stated to them upon oath by the complainant were such whereof they had juiisdiction to inquire, and nothing appeared in answer to contradict the first statement. — ^And Lawrence, J., said, if the magistrates made an order against the evidence laid befoie them, the party injured would have another sort of remedy against them. But the plaintiiF cannot make them trespassers by showing that the real facts of the case vnll not support the complaint, unless such facts were proved before them. (Lowther v. Earl Radnor, 8 East, 113.) So, trespass does not lie against a magistrate for any thing done in the discharge of his duty, unless he is made acquainted with all the circumstances under which he is called upon to act. (Pike v. Carter, 3 Bing. 78, 10 Moore, 376.) Acting under Statute.] In trespass against two magistrates, for giving plaintiff's landlord possession of a farm, as a deserted farm, they produced in evidence a record of their proceedings under the act, which set forth all such circumstances as were necessary to give them jurisdiction, and by which it appeared, that they had pursued the directions of the statute. Held, that this was a complete an- swer to the action. The record unappealed against is conclusive as to the magisti-ates ; for it is their duty to act on the request of the landlord. (Basten v. Carew, 3 Barn. & Cres. 649, 5 Dowl. & Ryl. 558 ; see Fawcett v. Fowhs, 7 Barn. & Cres. 394, 1 Man. & Ryl. 102.) Misconduct in Sessions.] Lord Kenyan said, he believed there were instances in which a criminal information had been granted against magistrates acting in sessions. (Rex v. Seton, 7 T. R. 374.) But in Rex v. Skinner, (Lofft. 55,) on motion to quash an indict- ment against Skinner, Esquire, one of his Majesty's justices of the peace of the town of Poole, for scandalous words spoken by him in a general sessions of the county, in which he said to the grand jury, " You have not done your duty; you have disobeyed my com- mands; you are a seditious, scandalous, coiTupt, and perjured jury." Lord Mansjield, C. J., said, neither party, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office. If the words spoken are opprobrious or iiTclevant to the case, the court will take notice of them as a contempt, and examine on information. If any thing of mala mens is found on such inquiry, it will be punished suitably. Y 322 JUSTICES OF THE PEACE. [Chap. XL Striking in his Office.'] An information being moved for against the defendant for assaulting and beating the mayor of Yannouth, being a justice of the peace, in the execution of his office, the question was. Whether the defendant could justify, the mayor having stmck him first? — By Lord Hardwicke, C. J. " He may justify it; for though a magistrate is protected by the law whilst he is in the execu- tion of his office, yet in this instance he hath forfeited that protection, by beginning a breach of the peace himself." (Rex v. Symonds, Cas. Temp. Hardw. 240.) Criminal Information against.] It is requhed by the practice of the comt, that complaints against justices should be made promptly, and so as they may come forward without delay to answer them. Thus a rule nisi for a criminal information may be obtained at the end of a temi against a magistrate for malpractices during the term, but not for any misconduct before the tenn began ; (Rex v. Smith, 7 Dumf. & East, 80;) or where no assizes have intervened, it may be moved for in the second teiTu : (Rex v. Herries, 13 East, 270 :) though it cannot be moved for so late in that term, as to preclude the magis- trate from the opportunity of showing cause against it the same term. (Rex V. Marshall, 13 East, 322.) But by i^efusing a criminal information on the ground of its being moved too late, the court does not shut the door to an inquiry, for a bill of indictment may still be preferred against the defendant. (See Rex v. Bishop, 5 Bam. & Aid. 612.) A Justice convicted must appear in Person.] The defendant, being a justice of the peace, was convicted on an infonnation for a convic- tion by him made of an alehouse-keeper, who was never summoned or heard. It was moved, as of course, to dispense with his appear- ance. This was opposed, unless there was some reason given or affidavit made. And, upon debate, the court resolved, it was not of course, and the defendant afterwards appeai'ed in person. The general doctrine laid down by the court, and agreed by the comisel on both sides was, that though such a motion was subject to the discretion of the coxixt, either to grant or refuse it, where it was clear and certain that the punishment would not be co^rporal ; yet it ought to be denied, in every case where it was probable or possible that the punishment would be corporal. And Mr, Justice Wilmot and Mr. Justice Aston thought, that even when the punishment would most probably be only pecuniary, yet, in oflences of a very gross and public nature, the persons convicted should appear in person. (Rex V. Harwood, 2 Str. 1088 ; Rex v. Hann. & Price, 3 Burr. 1786.) Sect. VI.] Fi:r.s of thf.ir ct.f.uk:«:. 3?3 SECTION VI. — FEES OF THEIR CLERKS. Justice's Wages.1 In the oath of office before mentioned are these words: and that you take nothing for yoiir office of the peace to be done, but of the king, and fees accustomed, and costs limited by statute. And by statute their fees in many cases are limited and ascer- tained. Every of the said justices shall take for their wages four shillings the day for the time of their said sessions, and their clerk (the clerk of the peace) two shillings, of the fines and amerciaments rising and coming of the same sessions, by the hands of the sheriffs. ( 12 R. 2. c. 10.) And the estreats of the said justices shall be doubled, and the one part delivered by the said justices to the sheriff to levy the money thereof rising, and thereof to pay to the justices their wages by the hand of the said sheriff by indenture betwixt them thereof to be made ; and that no duke, earl, baron, or banneret, albeit they be assigned justices of the peace, and hold their sessions with the other justices, shall take any wages for the said office ; and that the justices put their names in the same estreats, together with the number of the days of their sessions, to the intent that the sheriffs may know to whom to pay the wages, and to whom not. (14 R. 2. c. 11.) Table of Fees.] The justices of the peace throughout that part of Great Britain called England, at their respective general quarter sessions of the peace to be held next after the 24th day of June, 1 753, shall, and they are hereby required to make and settle a table of the fees, which shall be taken by clerks to justices of the peace within the county, city, or other division for which such respective general quarter sessions shall be held, and such respective tables of fees, being approved by tlie justices of the peace at the next succeed- ing general quarter sessions of the peace for such county, city, or other division, with such alterations as such justices of the peace so assembled shall think proper, shall be laid before the judges at the next assizes, or at the great sessions for the principality of Wales and counties palatine of Chester, Lancaster, and Durham, for the respective county, city, or other division, and the said judges are hereby auihorised and required to ratify and confinn such respective tables of fees, in such manner and form as the same shall bo made, settled, ami approved of by the said justices, or with such alterations. 324 ji'STicES OF THE PF.ACF,. [Chap. XI. udditions, or abatements, as to such judges shall appear to be just and reasonable ; and it shall and may be lawful for the said justices of peace, in theiv respective quarter sessions assembled, from time to time, to make any other table of fees to be taken, instead of the fees con- tained in the table which shall have been ratified and confinned by the jixdges of assize, and after the same shall have been approved by the justices of the peace, at the next succeeding general quarter ses- sions, in manner as aforesaid, to lay such new table of fees before the judges at the next assizes, or at the great sessions for the principahty of Wales, and counties palatine of Chester, Lancaster, and Durham, who are hereby empowered and authorised to approve and ratify the same in manner as afoi-esaid, if they think fit; but no table of fees to be made and settled by the said respective justices of peace, shall be of any validity or effect whatsoever, until the same shall be ratified and confirmed by the said judges. (26 G. 2. c. 14.) Table for Middlesex.^ By 27 G. 2. c. 16. s. 4, (after reciting the above act) it is enacted, that the table of fees to be taken by the clerks to justices of the peace for the county of Middlesex, which is or shall from time to time be made, settled, and approved by the said justices for the said county, at their general or quarter sessions, shall be laid before the lord chief justice of the King's Bench, the lord chief justice of the Common Pleas, and the lord chief baron of the Exchequer, or any two of them, who are hereby authorised and re- quu'ed to ratify and confirm such table of fees, in such manner and fonn as the same shall be so made, settled, and approved of, or with such alterations, additions, or abatements, as to the said lord chief justice of the King's Bench, the lord chief justice of the Common Pleas, and the lord chief baron of the Exchequer, or any two of them, shall appear to be just and reasonable ; and the said justices of the peace for the said county are hereby empowered and required to make a table of such fees at their next general or quarter sessions to be held for the said county, after the 24th day of June, 1754, and to approve or alter the same at the next succeeding general or quai-ter sessions, and from time to time, and in like manner, to make and approve any other table of such fees. Penalty on taking other Fees.'] By 26 Geo. 2. c. 14. s. 2, it is enacted, that if, at any time, after the space of three calendar months from the time that such table of fees shall be made and ratified as aforesaid, any clerk or clerks to any justice or justices of the peace, or any person or persons acting as such, shall under pretence of any matter or tiling done, transacted, or perfonned by such justice or jus- tices in the execution of his or their office or offices, or done, trans- Sect. VI.] FEES OF THEIR CLERKS, 325 acted, or performed by such person or persons, as clerk or clerks to such justice or justices, demand or receive any other or greater fee than shall have been ascertained, I'atified, and confirmed in manner as aforesaid, such person shall for every such oflence forfeit and pay twenty pounds to any person who shall sue for the same, by action of debt, bill, plaint, or information in any of his majesty's courts of record at Westminster, wherein no essoign, privilege, protection, wager of law, or more than one imparlance, shall be granted or allowed. Tables of Fees to be put up in Court.'\ Sec. 3 enacts, that all the tables of fees which shall be made, and settled, and ratified, and con- firmed from time to time as aforesaid, shall be deposited with the clerk of the peace for the respective county, city, or other division ; and each of the said clerks of the peace shall cause true and exact written or printed copies of the said tables to be placed, and to be kept con- stantly, in a conspicuous part of the room or place where the general or quarter sessions shall be held, under pain of forfeithig the sum of ten pounds for each ofl!ence, to be recovered by action of debt, bill, l^laint, or information in any of his majesty's courts of record at Westminster, wherein no essoigii, privilege, protection, wager of law, or more than one imparlance, shall be granted or allowed. Limitation of Actions.'\ Provided always, that all suits and actions which shall be brought or commenced by virtue of this act, shall be brought before the end of three months after the offence com- mitted, and not otherwise, (s. 4.) Fees to be taken at Public Offices only.'] It is enacted, that no justice of the peace for the county of Middlesex, county of Surrey, city and liberty of Westminster, or the liberty of the Tower of Lon- don, or his clerk, or any person on their behalf, elsewhere than at the said jiolice offices, shall, directly or indirectly, upon any pretence or under any colour whatever, take or receive any fee, reward, gratuity, or recompense for any act by him or them done, or to be done, in the execution of his or their office or emj^loy as justice of the peace or clerk as aforesaid, within the limits of the weekly bills of mortality, or within the parishes of Saint Mary-le-bone, Paddiugton, Saint Pancras, Kensington, and Saint liuke, Chelsea, in the said county of Middlesex, upon pain of forfeiting the sum of one hundred pounds for every such offence, one moiety thereof to the said receiver, to be ap})lied to the purposes of this act, and the other moiety thereof, with full costs of suit, to the person who shall sue for the same in any of his majesty's courts of record at Westminster, by action of debt, bill, plaint or information, wherein no essoign, piivilege, wager of law, or more than one im])arlance, shall be allowed. Provided always. 326 JUSTICES OF THE PEACE. [Chap. XI. tliut nothing in this act contained shall be construed to extend to any foes taken at any general or quarter sessions of the peace, or at any meeting of justices, for the purpose of licensing ale-houses, or to any fees taken at the said public office in Bow Street, or to any fees taken by the vestry clerk of any parish, for the pui*pose of enforcmg the payment of any taxes or assessments aiising within the same parish, or for the pm-pose of hearing and detennining any offence, cognizable before justices of the peace by virtue of any statute made and provided for the special regulation or government of such parish. (3 Geo. 4, c. 55. s. 7.) Surrey Table of Fees.] The following is the table of fees allowed to be taken by the clerks to the justices of the peace, within the county of Surrey : — All iuforaiations, or examinations on oath, or confessions, whereon any warrant or summons shall issue, or whereon any commitment, or order for punishment, or for pay- $. d. ment of money shall be made, not being cases of felony, nor hereinafter provided for . . • .10 Every warrant or summons, not including more than five names . . . . . ,10 For every name above five . • . ..06 Every commitment, or order for punishment, or for payment of money, not being cases of felony Every liberate or discharge of a person in custody For indorsing every w an'ant and oath Every recognizance (except to prosecute or give e\'idence in cases of felony, or for a victualler's good behaviour) what- ever number of names may be included therein Every supersedeas ... • • Every examination (taken in writing) in settlement, or in bastardy cases, and oath .... Every order of removal and duplicate Every indorsement of suspension of such order, duplicate and oath . . . • .20 Every order taking off such suspension, including the order to refund the expenses of maintenance during the suspension and oath . . . ..20 Every order allowing certificate of settlement and oath . 2 Every order allowing the expense of maintaining and removing certificated persons . . . .10 Eveiy precept to give notice of nominating overseers, and serving same on high-constable . • .26 Every appointment of surveyors of highways, and charge as per Stat. . . . . • Printed abstract of the act, as per stat. Bond if taken from the surveyor as per stat. Every wan-ant to appoint overseers of the poor, whatever number of names may be included therein Duplicate of appointment, if required 1 1 1 2 6 2 6 3 3 6 1 6 6 3 1 6 s. d. 1 2 2 2 2 6 2 6 3 2 6 2 2 6 2 6 5 2 6 2 Sect. VI.] FEES OF THEIR CLERKS. 327 Every appointment of inspectors of weights and measures Allowing and signing a parish or other rate (each book) and oath , .... Every wan-ant of distress and oath Every commitment for want of distress Every notice of giving landlord possession of premises de- serted by his tenant, and serving same Giving possession of same Every abjudication in bastardy Duplicate thereof ... Allowing and registering a pair of parish indentures Allowing the account of every surveyor of highways, examin- ation and oath as per stat. . . . .10 Every order for an additional assessment for rej)air of the highways, and oath .... Every other order relative to the business of a surveyor Every certificate of a justice of the repair of a road, or abate- ment of a nuisance, which has been indicted or presented . Every privy search-waiTant Return thereof to the petty-session Swearing every affidavit in any case where the magistrates have legal power to administer an oath . .10 Precept to the high-constables to give notice of time and place of licensing victuallers, and serving same . .16 Every licence of a victualler, including Is. for the recogni- zance, and Is. for the clerk of the peace Drawing every infonnation on penal stats, and oath Drawmg and ingxossmg every conviction, where the form is given by the stat. Ditto where the fonn is not given ' . . . Attesting every soldier .... Every warrant to press baggage-waggons Every commitment of a deserter, letter thereon to the secretary at war, and waiTant for paying the rewai'd for apprehension Every order for paying the reward for apprehending a vagi'ant Every order concerning masters and servants in husbandry Every discharge of an apprentice made out of session Swearing constables to hsts of freeholders, or of persons hable to serve in the militia . ... Every oath of office .... Every order to seize the estate and effects of a person run- ning away and leaving a family chargeable to parish Every examination of a vagi'ant, pass thereon, and duplicate . Certificate thereon .... Allowing the account of treasurer, or overseers, respecting money advanced for relief of militia-men's famihes Record of forcible entry and detainer Record of writ on view . ... Precept to the sheriff to return a jury Inquisition on a forcible entry or riot 7 3 6 2 5 1 1 2 6 1 2 3 1 1 2 3 1 1 5 2 6 2 6 2 G 328 CONSTABLES. [Chaji. XII. s. d. rTiiposition, or record of fine set . . . .26 WaiTiuit to the sherilF to make restitution . .26 Certificate of rioters continuing together after proclamation made . • . . .26 Order allowing special constahles' expenses to be submitted to the session . . . . ,20 CHAPTER XII.— CONSTABLES. Section I. Appointment. II. Office of Constable. III. Powers a7id Duties. IV. Treatment of Persons apprehended. V. Privileges. VI. Expenses and Remuneration. VII. Protection against Actions. VIII. Punishment. IX. Special Constables. X. Watchmen. SECTION I. — APPOINTMENT. High-Constable. 1 A high-constable is ajipointed for a larger district than a petty constable, as a hundred, wapenstake, or other similar division ; and he is usually considered an officer of greater dignity. In some places there is a custom to appoint more than one such officer. And though a town or other place formerly under the general jurisdiction of the county has been erected into a separate jurisdiction as a county of itself, mthin time of memory, and it had no high-constable before, yet such an office is incident to such a newly-created district, and the magisti-ates may appoint a high-con- stable ; (James v. Green, 6 T. R. 232 ; Weatherhead v. Drewry, 11 East. 168;) and, by analogy, a petty constable may be so appointed where the necessity for such an office arises, by a place becoming, by the increase of population, a to\vnship, or idll, though it has been said this officer can only be newly created by statute. (Rex v. Hewson, 12 Mod. 180, Bolting v. Stocklane, Fortesc. 219, 1 Salk. 176.) By whom appointed.} The high-constable was, at connuon law. Sect. I.] APPOINTMENT. 329 elected by the homage at the leet or view of frankjjledge, and appomted by the sheriff or other officer of the town, leet, or franchise. But there may be a custom for the sheriff or lord to nominate as well as apjjoint him. (R. v. Genge, Cowp. 16; R. v. Adlard^ 4 Bam. & Cres. 779, 2 Haw. x. 37, Anon Salk. 175.) But when not so appointed, he may be appointed by the county justices in their quar- ter sessions, or by the justices of the division in which the hundred lies. (1 Bla. Com. 355, Constable of Stepney, 1 Bui. 174, Com. Dig. Leet. M. 5.) Petty Constable.'] A petty constable is appointed for a vill, township, or tithing, and not for a parish, and the number in each depends upon the custom of the place, (Rex v. Hewson, 12 Mod. 180, Constable of Homeby's case, 1 Mod. 13.) He is elected by the homage or jury, and appointed by the lord or steward of the court leet of the manor in which his precinct lies ; but there may be a custom for the officer of the leet to appoint, without any election by the juiy, (Rex v. Routlege, Doug. 537, Rex v. Stevens, Sir T. Jones, 212, Com. Dig. Leet, M. C.) And, when not so chosen, he may be ajjpointed by two justices within whose jurisdiction his precinct lies, in jDursuance of the statute 14 & 15 Car. 2. c. 12. s. 15. (1 Bla. Com. 355.) A corporation has no common-law right to appoint a constable. By custom they may, but then they must prescribe for it ; for by the common law this power is vested in the leet or sheriff's torn. (Rex V. Barnard, Comb. 416, 1 L. Ray. 94.) Who are liable to serve.] No one is Hable to serve the office of high-constable who is not an inhabitant, that is, a resident within the hundred ; nor is any one liable to serve the office of constable who is not such an inhabitant, residing within the precinct for which he is appointed. A mere occupier of a tenement for which he pays the rent, rates, and taxes, within such district, if he be not resiant is not liable, because these ai'e offices whicli require personal attendance within the district, and that the person should be well known to the inhabitants. (Rex v. Adlard, 4 Barn. & Cres. 778.) And if there be a ])arish, and a leet within that paiish, not ecpially extensive with it, a resident in the parish cannot be ajDpointed constable of the leet unless he resides in tliat part of the parish which is within the leet. (Rex V. Adlard, 4 Barn. & Cres. 777.) It has been held, although there is a fonncr decision to the con- trary, that it is a good custom for the udiabitanls of a town to serve the office of constable in rotation, according to the situation of their houses ; and that if it come to the turn of a woman, instead oi serving 330 CONSTABLES. [Chap. XII. personally, she shall he bound to provide a substitute. (Rex v. Stubbs, 2 T. R. 406, 2 Haw. x. 37, Prouse's case, Cro. Car. 389.) Persons incompetent.'] Some persons are not cajjable of serving, although willing to discharge the office. As justices of the same place, and by the 3 Geo. 4. c. 77, which has expired, licensed vic- tuallers and alehouse-keepers, were rendered incompetent to the office, and a penalty of £10 imposed upon every such person under- takmg to act as deputy. And though the recent act for consolidating the laws relating to hcensing taverns, alehouses, &c. omits the above provision, yet it enacts that no sheriff's officer, or officer executing the legal process of any court of justice, shall be capable of receiving or using any such licence, (see 9 Geo. 4. c. 61. s. 16,) which, with the obvious policy of rejecting publicans from the office of constable, will in effect be tantamount to a declared incompetency. Persons exempt.'] Other persons, although not disquahfied, may claim an exemption from serving the office. As every teacher or preacher in holy orders, or pretended holy orders ; that is, a minister, preacher, or teacher of a congregation, that shall take the oaths, make and subscribe the declaration, and subscribe certain articles of the Church of England as required by this act, is exempt from serving any office in any hundred, or any shire, city, town, parish, ward, division or wapenstake. (I W. & M- c. 18. s. 11.) And the same privilege is extended to priests, preachers, &c. of the Roman Cathohc religion, complying with tke act 31 Geo. 3. c. 32. s. 8. No president or fellow of the coiporation of the Faculty of Physic, or warden or fellow of the Mystery of Surgeons, of London, shall be chosen constable of the city of London or its suburbs ; (32 Hen. 8. c. 40. s. 1 ; Pordage's case, 1 Mod. 22, 2 Keb. 578, 2 Haw. x. 42;) and practising physicians and surgeons are considered to be exempt throughout the kingdom, except where there is a custom for the inhabitants to serve in rotation, according to the situation of their houses. (Id. ibid. 2 Haw. x. 41, 43.) But members of the Bai-ber's Company, who have not been approved and admitted to practice sur- gery, by the Bishop of London or the Dean of St. Paul's, are not exempt by the statutes. (3, 5, & 32 Hen. 8, Rex v. Chappie, 3 Camp. 91.) Apothecaries exempt.] Every person using the art of an apothe- cary in London, and within seven miles thereof, being free of the Society of the Apothecaries of London, and approved for his skill in that mystery ; so long as he shall use the art, and no longer, shall be exempt from the office of constable, and all other parish and leet- Seel. I.] APPOINTMENT. 331 oflficcs; (6 & 7 W. 3. c. 4, made perjjetual by 9 Geo. 1. c. 8. s. 1 ;) and all persons using that art in other parts of the kingdom, who have served an apprenticeship for seven years, shall Ukewisc be exempt from these offices so long as they shall exercise that art, and no longer. Militia, Sfc, exempt] No militia-man, from the time of his en- rohnent until he shall be regularly discharged, shall be compelled to serve as a peace officer; (42 Geo. 3. c. 90. s. 174;) nor any officer or effective member of any yeomanry coi'ps, or volunteer cavalry during the period of his continuing enrolled. (57 Geo. 3. c. 44. s. 3.) But it is said, that a captain of the King's guard is not exempt from serving this office, where there is a custom for the inhabitants to serve in rotation, according to the situation of their houses, for he may ap- point a deputy. (2 Hawk. x. 41 ; Sir Walter Franc's case, 1 Lev. 233, 1 Sid. 355.) Naturalized Foreigner.] If the act, by which a foreigner is natu- ralized, declare that he shall not be capacitated to take any office or place of trust, either civil or military, he cannot be appointed con- stable. (Rex V. Mierre, 5 Burr. 2788.) Superannuated.] And no person within the city or liberty of Westminster, who is of the age of sixty-three years, shall be Uable to serve or to find a deputy. (31 Geo. 2. c. 17. s. 13.) Charter Exemptions.] Exemptions by charter or sjoecial custom are construed with gxeat strictness, and cannot be peniiitted, where sufficient persons would not be left in the place liable and capable to serve the office. It has been decided, that, a younger brother of the Trinity-house is not exempted by the charter of that corporation, or at least not unless he is alleged and proved to be a shipman or mariner. (Rex V. Clarke, 1 T. R. 635, 2 Inst. 129, 2 Haw. x. 40.) Servants of Colleges.] Servants of the colleges of the University of Oxford, named in the statutes, with an ancient fee and duties which require personal attendance, although not residing within the college, are exempt from the office for the city ; such as a barber matriculated in the university, and entered on the buttery books of a college, although residing and keeping a barber's shop in one of the wards of the city. (Rex v. Routlege, Dotig. 538.) Other Exemptions.] Aldermen of the city of London are exempt from serving the office wherever they reside. (2 Haw. x. 40, Alder- man Abdy, Cro. Car. 585.) So are practising barristers. Sworn practising attomies, and the officers of all the courts of Westminster Hull, and their servants, but not their tenants. (2 Haw. x. 39; Pordage's case, 2 Keb. 578, Com. Dig. Leet, M. 7.) 332 CONSTABLES. [Chap. XII. Aiitl Dissenters and Roman Catholics are allowed to serve by an approved deputy ; (1 W. & M. c. 18. s. 7 ;) the same privilege is extended to all persons professing the Roman Catholic rehgion. (31 Geo. 3. c. 72. s. 7.) Persons not exempt.^ There are some persons who have claimed to be, but are not, exempt. Thus, resiants of a private leet lying within the hundred, whereby they are liable to serve office therein, are not exempt from serving the office of constable of the hundred ; but they cannot be appointed to both offices durmg the same 2:)eriod. (Rex V. Genge, Cowp. 13; Constable of Stepney, Bulstr. 174; Reg. V. Jennings, 11 Mod. 215.) An inspector of the lottery office is not exempt, although regularly appointed by the commissioners, and his serving as constable would interfere with the discharge of the duties of his office of inspector, for he may execute the office of constable by deputy. (Rex v. Wood, 1 Esp. 359.) And it is doubtful whether justices of the peace are exempt, except within their own jurisdiction. (Delamotte's case, Stra. 698.) Nor are officers or watchmen of the custom-house. (Rex v. Clarke, 1 Keb. 933.) Nor tenants in ancient demesne. (Rex v. Bettsworth, 2 Show. 75.) SECTION II. — OFFICE OF CONSTABLE. Mandamus to swear in.'\ If after a person properly qualified has been duly elected or chosen, the justices or persons who ought to swear him into office refuse to administer the oath, the Comt of King's Bench will grant a mandamus to compel them to do so. (Davenjiort v. Israel, Comb. 285, 2 Haw. x. 47, 1 Rol. Abr. 535.) Oath by whom administered.l A petty constable may take the oath of office before the court leet, or justice before whom he is elected, or if elected at a court leet, he may take the oath before a justice of the jurisdiction; and it has been held, that if. the officer of the leet refuse to swear in a petty constable, duly elected by the homage or jury, a justice may administer the oath to him, and so constitute him a legal officer, although the officer of the leet has sworn in another person who was not duly elected. But the high-constable must be sworn either before the justices in quarter sessions, or the justices who ap- pointed hmi under a waixant from the quarter sessions. (2 Haw. x. 49; Fletcher v. Ingram, 1 Salk. 175, Com. Dig. Leet. M. (6.) The Form of the Oath.] " You shall well imd truly serve our Sect. II.] f>FFICE OF CONSTABI.r. 333 sovereign lord, the King, [and the lord of the leet, if stvorn at a leet, in the office of constable for the township,] [or other place for rvhich he is chosen,] of for the year ensuing, or until another he sworn in your stead, according to the best of your skill and know- ledge. So help you God." The Substitute.] In certain cases, by the provisions of acts of Parliament, as well as by the common law, the person appointed is allowed to excuse himself from service by providing a sufficient substi- tute, to be approved and sworn in his stead; the same thing is allowed by the agreement of all parties among tliemselves, though it seems the appointee cannot substitute a deputy of his own authority alone. (Rex v. Adlard, 4 Bam. & Cres. 780.) In either case the person substituted is to all intents and purposes the constable, and the prin- cipal is altogether exonerated from the office for that turn, and cannot be called upon to serve or appoint another, although the substitute die, run away, or be removed for mii^conduct or inabiiily. (Underbill V. Witts, 3 Esp. 56 ; Sir W. Vane's case, 2 Keb. 309.) And if the principal hav^e contracted vrithi his substitute to pay bun a certain sum for undertaking the office, it seems that it may be reco- vered in an action, even before the expiration of the service. (Id. ib.) Refusal of Office.] If a person elected be present at the court leet, and refuse the office without good cause, the steward may im- pose a reasonable fine upon him, which may be levied by distress. (Fletcher V. IngTam, 1 Salk. 175, 1 Ld. Raym. 70, Com. Dig. Leet, M. 68, Griesley's case, 8. Co. 38.) Though in Fletcher v. Ingram, which was an action of replevin, it is said a custom so to levy it, should be alleged; but, according to Gresley's case, a custom is not necessary ; the right to levy being incident at common law to the right to impose the fine. If be is absent when elected, the steward may give him notice of a time and place at which to appear before a justice, and take the oath of office; and if he disregard the notice, he may be presented, and a fine imposed at the next court, which may be recovered as aforesaid, or by action; (Moseley v. Stonehouse, 7 East, 181 ;) or the steward may certify his election to the justices, who may thereujwn summon him before a justice to take the oath, which, if he refuse to do with- out good cause, he may be indicted for a misdemeanour at the sessions or assizes. (Rex v. Lone, Str. 920 ; Rex v. Derbyshire, 2 Binr. 1182.) But the justices cannot fine him for refusing to be sworn. (Crawley's case, Cro. Car. 567.) Form of Appointment.] If the appointment merely state, that 334 CONSTABLES. fChap. XTT. the person elected is an inliabitant of the parish, in which the leet or other distnct for which he is appointed happens to lie, omitting to state that he is an inhabitant of such leet or other district, it is bad, for not suflicicntly showing his habiUty to serve ; unless, perhaps, it appear on the face of the appointment, that the leet or district em- braces the whole parish. (Rex v. Derbyshire, 2 Burr. 1184; Rex V. Davis, Cas. Temp. Hard. 283.) Indictment for refusing.'] In an indictment, or declaration for the fine or amerciament, for refusing to serve the office, should be set forth the authority to appoint, the manner of the election or appointment, notice thereof and refusal, and before whom the court was holden. It is not sufficient to aver generally that the defendant was duly elected, or legally elected, without showing the special circumstances of the appointment and notice. (Rex v. Vaws, 1 Mod. 24; Rex v. Hai*pur, 5 Mod. 96, 2 Haw. x. 46.) Temporary Deputy.'] Though a constable cannot alone appoint a perynanent substitute, (ante 333,) he may, when sick, or necessarily absent, appoint a deputy to do a ministerial act ; and it may be by verbal direction, though it had better be done in writing. Therefore a high-constable may appoint a deputy to billet soldiers on an alehouseheeper, (Midhurst v. Waite, 3 Burr. 1262,) and if the waiTant of a justice is directed to a constable, as a constable he may appoint a deputy to execute it, but the deputy cannot em2:)ower a third person to do so in his stead. (2 Hawk. xiii. 29.) And though a constable may himself execute it elsewhere, he cannot empower a deputy to do so. Constables should bew-are of appointing deputies where any discretion is to be exercised ; as to make an'ests, or break open doors, &c., a power reposed in the recognized officer alone. (2 Haw. X. 36, 1 Rol. 274, I Sid. 355.) Substitute or Deputy.] The distinction between a substitute and a deputy should be obseiTed ; the foimer must be sworn and approved, and then becomes the officer and acts in his own name, the person in whose stead he serves having no authority ; but a deputy is one em- ployed by the person holding the office, and a return made by him must be in the name of his principal, who is responsible for the act of the deputy. (Phelps v. Winchcombe, 3 Buls. 78.) Quaker's Deputy.] It is provided by the local militia act, that if any chief or other constable, headborough or tithingman, or overseer, be a quaker, certified to be so by two quakers, and neglect or refuse to perform the duties of this act, any tw^o justices acting for that divi- sion shall, when expedient, by an order under their hands and seals, appomt a fit person to be deputy to him for the purpose only of caiTy- Sect. II.] OFFICE OF CONSTABLE. 335 ing this act into execution ; and every such deputy shall have and exercise all the powers, authorities, and jurisdictions given hy this act to such officer for whom he shall act, and shall do and perform the like duties and offices, under the hke pains, penalties, and forfeitm-es hereby imposed for neglect of duty of any such officer, in like manner in every respect as the person for whom he shall so act ; and the prin- cipal shall be discharged from all duty required by this act, and penal- ties incuiTed for neglect thereof, after the time of such appointment. (52 Geo. 3. c. 38. s. 27.) Determination of Office.'\ The office of constable, though deter- minable at the end of the year, or at any time by removal for mis- conduct, is not actually determined until there is a fomial removal, or a successor is appointed and sworn ; for the district ought not to be without an officer; (Anon. 12, Mod. 2. 66 ;) and the 13 & 14 Car. 2. c. 12. s. 15, reciting that lords of manors do not in some instances keep court leets every year for making constables, enacts, " that in case any constable, headborough, or tithingman shall die or go out of the parish, any two justices may make and swear a new constable, headljorough, or tithingman, until the lord of the manor shall hold a court leet, or until the next quarter sessions, who shall approve of the said officers so made and sworn as aforesaid, or appoint others, as they shall think fit ; and if any officer shall continue above a year in his office, the justices in their quarter sessions may discharge him, and put another fit person in his place until the lord of the manor shall hold a court as aforesaid. But if the quaiter sessions discharge old constables and appoint others, on a suggestion that the fonner have served a year, the a2:)point- ment must contain an adjudication of such service. (Rex v. Davis, Cas. Temp. Hardw. 282, Stra. 1050.) Removal from Office.'\ The sheriff, steward, justices, or others, who have appointed a high-constable, or constable, have power to remove him for misconduct in office, or other good cause, (2 Hawk. X. 38 :) but if removed, the Court of King's Bench, upon complaint made, and good cause not being shown, will award a mandamus to restore him to the office, (id. 49,) or a rule of court for the purpose may be obtained, but not a writ of restitution, according to the Con- stable of Stepney's case. (1 Buls. 174.) The justices cannot, either out of quarter sessions or .at quarter sessions, remove a constable elected, appointed, and sworn at the leet, until after the expiration of the year ; and therefore, if a constable chosen by the leet be discharged at the sessions, and another sworn, the King's Bench will issue a mandamus, or grant a rule to the jus- 3;)n CONSTABLES. [Chap. XII. ticcs to discharge the party chosen by them, and swear him who was chosen at the leet. (Id. Constables of Limington, 2 Stra. 798, Com. Dig. Leel. M. 6.) If a constable has been unduly appointed, an infonnation, in the nature of quo wan-anto, may be granted to try the validity of his title. (Rex V. Goudge, Stra. 1213.) But the affidavits on which such an application is made, should state that there is, as the deponents be- lieve, an immemorial custom to elect in the manner in which the party was chosen, and it is not sufficient to state facts from whence that conclusion may be drawn. (R. v. Lane, 5 Bam. & Aid. 488.) Removal after Yea?:] Where there is a custom that the con- stable shall, at the end of his year, present another to be sworn ; and he having presented such an one, the officer refuse to sweai* him, the Court of King's Bench will gi'ant a mandamus to swear the successor, and so to discharge the former ; and if the person nominated be unfit, or there be other good cause for the refusal, the officer must rely on it, as his reason and excuse in his return to the writ. ( 1 Rol. 536. Com. Dig. Leet. M. 5, 7.) " For the constable elected ought to be homo idoneus, viz. honest, and of competent knowledge, sus- tance and ability of body." (Id.) SECTION III. — POWERS AND DUTIES. Whence derived. 1 The powers and duties of the constable are de- rived from the common law, from several acts of parliament, and from long and well-established usage. It has been held that a A/^A-constable is within the words of the mutiny act, " constable, tything-man, headborough, or other officer ;" and it may be concluded, that when the words " constable or other officer" are used in a statute, the hi sh -constable is included, and that in his ministerial capacity he has the same duties to discharge in all parts of his hmidred, as well within, as out of the precincts of petty constables, as each petty constable has wdtLin his precinct. But he has no jurisdiction over the petty constables whose precincts lie within his hundred ; and whether he has concurrent authority with them as a conservator of the peace within their districts, has been questioned, or only in those parts of his hundred which he within no petty con- stablewick. (Midhurst v. Waite, 3 Buit. 1261 ; Rex v. Wyatt, 2 Ld. Raym. 1192, Com. Dig. Leet, M. 5.) His Duty in Quarrels.'] A constable is not justified in taking parties into custody who arc merely insulting each other in his pre- Sect. III.] POWERS AND DUTIES. 357 sence; but he may admonisli them to refrain. If, however, either party strike the other, or offer to strike, or threaten personal violence, the constable may take the offender into custody, and detain him till the affray is over ; or he may cany him befoi'e a magistrate, (Churchill v. Matthews, 2 Sel. N. P. 911,) or, according to the old books, he may detain him till he finds surety of the peace, (2 Haw. xiii. 8 ; 2 H. P. C. 88 ;) or till he can take him before a magistrate, which is the most correct mode of proceeding. But in modern usage the constable, if the affray be in the night, sometimes takes bail for the appearance of the parties, before the magistrate on the morrow. If private persons deliver one in charge to a constable for having committed an affray in their presence, he must receive him. ( 1 Haw. Ixiii. 17 Hale, 135.) Arrest when Affray owr.] But no arrest, without warrant, can be made either by a private person or a constable, for an affray after it is over, although he were present during its continuance ; unless a dangerous woimd has been inflicted, or there be sufficient ground for sujiposing that a felony is likely to ensue. Nor would a warrant of a justice, sw^se^Mew/Zy obtained, justify such an aiTest. (ShaiTock v. Hannemer, Cro. Eliz. 375 ; Coupey v. Henley, 2 Esp. R. 540, Hale, 92. 136.) But if a constable is endeavouring to prevent a breach of the peace, and any person stand in his way, purj^osely to obstruct him in so doing, he may take such person into custody ; but he must not give him a blow. (Levy v. Edwards, 1 Car. & P. 40.) And if one of the affraj'ers fly from him, he may mstantly pursue and take him ; so if one opposes and assaults him in the execution of his duty. (1 Haw. Ixiii. 15, 16, Hale 135, 4 Inst. 177.) Breaking open Doors."] If persons are committing an affray in a house, or if there be a noise or disorderly drinking therein, at an im- seasonable time of the night, a constable, after declai'ing the cause of his coming, and having previously demanded admission in vain, may break open the doors, if the affray or the disorder continue. (2 H. P. c. 95.) The same rules apply to rioters, whom it is the constable's duty to apprehend during the time of the fennent, though not afterwards, without a waiTant of a justice. (See CUfford v. Brandon, 2 Camp. 358.) Felony being committed.'] Any person may apprehend an offender in the act of committing a felony, or may pursue and take him, if such person saw him committing the offence, although it may not be a breach of the peace ; such as exposing an infant in a public place, or a cheat in the act of using false dice, &.c. (2 Haw. xii. 1. 4, 2'h. P. C. 90.) z 338 CONSTABLES. [Chap. XII. So any person may break open doors to apprehend a person who is endeavouring to commit murder; (Handcock v. Baker, 2 Bos. & Pul. 264 ;) and it is the duty of all persons so to act in such like cases. The practice of levying the hue and cry in pursuit of felons, has been superseded by an improved system of pohce ; but if it be resorted to, all persons are bound to aid and assist, upon pain of fine and impiisonment, in pursuing and securing the ofl'ender. (2 Haw. xii. 56, Hale 90, 91, 3 Inst. 116, 3 Edw. 1. c. 9.) And private persons, acting honajide, may arrest a suspected felon, at the risk of an action, in which they must prove the party has been actually guilty of a felony, or pay damages. (Lidwith v. Catchpole, Cald. 291 ; Adams v. Moore, 2 Sel. N. P. 910.) Felon resisting, killed.'] Constables may break open the doors of a house in which a person charged with felony has taken refuge, after infonning the inmates of their object. And if the felon resist, and they cannot otherwise take him, they are justified in using force, although he is killed in the attempt. But if in such case he make no resistance, the officer is guilty of murder. (1 Haw. xviii. 17. 18. 20; xxix. 16. 2. Haw. xiv. 7.) But without a wan'ant, no private person can justify breaking open the doors of a house to take one suspected of felony, though it is said that if it prove in the event that he was guilty, the person isjustified. (2 H. P. C. 82, 83.) Complaint made to Constable.] If a dangerous wound have been inflicted, the constable, though not present, is bound on complaint, to take the offender into custody, or to receive him from others who have taken him, and forthwith carry him before a magistrate. (Cou- pey v. Henley, 2 Esp. R. 540; 1 Haw. Ixiii. 17.) And on a du'ect and positive charge of felony being made before him, however false it may ultimately prove, it is his duty to take or receive the accused into custody, unless it is reasonably apparent that the charge is un- foimded, in which case he may release him. (White v. Taylor, 4 Esp. R. 80 ; Rose v. Wilson, 8 Moore, 364 ; M'Cloughan v. Clay- ton, Holt. Rep. 478.) Arrest on Suspicion.] There is a distinction, material to be ob- served, between a private person and a constable aiTesting on suspicion. A constable, having reasonable cause to suspect that an individual has committed a felony, may detain him until he can be brought before a justice of the peace to have his conduct investigated ; but in order to justify a private person in so doing, he must not only make out a reasonable gi'ound of suspicion, but he must prove that a felony has actually been committed. (Beckwith v. Philby, 6 Bam. & Cres. 635.) It, therefore, is evident, that a private person incurs gieat hazard Sect. III.] POWERS AND DUTIES. 339 in arresting another upon suspicion. Nor does the law extend im- punity to constables in like cases, unless they act bond fide upon reasonable giounds. Their experience, and indeed the common sense of mankind, will readily point out what circumstances, as they arise, will justify the taking another person into custody. (See Samuel V. PajTie, Doug. 360.) But in the discharge of this veiy important duty, Mr. Peel's acts afford great facilities, in enumerating a variety of offences for which an arrest may be made. Arrest without Warrant.'] The 7 and 8 Geo. 4. c. 29. s. 63, pro^ddes, that any person found committing any of the offences punishable under that act, except the offence of angling in the day time, may be immediately apprehended without a wairant. by any peace officer, or the owner of the property injured, or with respect to which the offence is committed, or by his servant or any person authorized by him, and forthwith taken before some neighbouring justice of the peace, to be dealt wdth according to law ; and a similar provision is enacted with respect to offences punishable under the 7 and 8 Geo. 4. c. 30. (see s. 28.) By the 63rd section of the foiTner of these acts, any person, to whom any property is offered to be sold, pawned, or delivered, having reasonable cause to suspect that any such offence has been committed on, or with respect to such property, is authorized, and, if in his power, is required to apprehend, and forthwith carry before a justice, the party offering the same, together with such property, to be dealt with as aforesaid. For Felony or Larceny.] The offences are as follows, as contained in the sections to which the figures refer, in the 7 and 8 Geo. 4. c. 29. — Stealing securities for money or wan-ants for goods (6); rob- bing, or stealing from the person, assaultmg with intent to rob, de- manding property with menaces or force (6); obtaining property by threatening to accuse of an inlamous crime (7) ; sending letters con- taining menacing demands, or threatening to accuse of an infamous crime to extort money (8) ; sacrilege (10); burglaiy (11); house- breaking and stealing in a house (12) ; robbery in a building in the same curtilege with, but not part of the house (14); robbery in a shop, warehouse, &c. (15); stealing silk, woollen, linen, or cotton goods in process of manufacture (16) ; stealing goods in a vessel, barge, &c., in a port, river or canal, &c. (17) ; plundering a vessel, wrecked, stranded, &.c. (18) ; being in possession of shipwrecked goods without a satisfactory account of them (19) ; offering such shipwrecked goods for sale, without showing a lawful possession thereof(2()) ; stealing records and other proceedings of a court of law or equity (21); steahng or concealing, &c. wills (22) ; stealing writings relating to real pro- z 2 310 coNSTAr.i.rs. [Chap. Xlf. pcrty (23); stealing horses, cows, or sheep (25); steahng deer (26); being found, upon search warrant, in possession of part of a stolen deer or snares, &c. (27) ; setting engines for taking deer, or pulling down park fences (28) ; resisting keepers of deer in the execution of their duty (29); killing hares or conies in a wairen or place where they are usually kept (30) ; stealing dogs or domestic heasts or birds, not the subjects of larceny at common law (31); being in possession of such, or tlieir skins, plumage, &c. (32); unlawfully kilhng pigeons (33); unlawfully taking fish in private property, in the night time, or day, except by angling (34) ; stealing or dredging for oysters or their brood in a private bed (36) ; stealing ore, or produce of any mine (37); stealing or destroying trees, shrubs, &c. (38, 39) ; stealing or destroying live or dead fence, wooden fence, style or gate, orbeing in possession of such when stolen (40, 41) ; stealing fruit, or cultivated vegetables (42, 43) ; steahng glass, wood-work, or fixtures of any kind from a building, or metal fixtures from gi'ounds (44) ; stealing by tenants or lodgers, of any property let to them with their houses or apartments (45) ; stealing by clerks and servants, of their masters' property (46); embezzlement by such of money received on their master-' accoimt (47) ; embezzlement by agents of money, goods, or valuable securities, intrusted to them for safe custody or any specific purjiose (49, 50) ; pledging by factors for their own purjiose, of goods, or document, or documents, relating to goods intrusted to them for sale, for more than the amount of their lien upon them (51); obtaining money on false pretences (53) ; receiving stolen propert}-, knowing it to be stolen (54, 55, 56) ; taking a reward for helping to the recovery of stolen property, without bringing the offender to jus- tice (58) ; advertising a reward for the return of stolen property, with impunity to the offender (59); being accessory to a felony, or abetting a misdemeanor (61) ; abetting any offence named in this act (62). For Malicious Injuries.] The other statute passed for the pur- pose of suppressing malicious injuries to property, enumerates the following offences : but it mu^-t be borne in mind, that a malicious intention is an essential ingredient in the ofience. Setting fire to a church, chapel, house, or other building (2, 8) ; destroying silk, woollen, cotton, or linen goods, in the loom, or the machuiery for manufacturing them, or machines for manufacturing other goods, or threshing machines (3, 4, 8) ; firing coal mines (5) ; drowning or fining in mines, shafts, &c., with intent to destroy them (6) ; de- stroying engines, erections, &c., belonging to mines (7, 8); firing, destroying, or damaging any ship (9, 10, 11) ; exhibiting false lights Sect. III.] POWERS AND Ol'TIES. 341 to destroy a ship (11); destroying or dumaging any sea-bank, or works on a river or canal, or obstructing the navigation of a river or canal (12) ; destroying or injuring a public bridge (13) ; destroying or injuring a turnpike-gate or toll-house (14) ; breaking down the dam of a mill or fishery, &c. (15) ; killing or maiming qattle (16); firing a stack of corn, grain, straw, hay, &e., or a crop, plantation, or heath (17); destroying hoj^-binds (18); destroying or damaging trees, shrubs, &c. (19, 20) ; destroying, &c., fruit or cultivated vege- tables (21, 22) ; destroying, &c., fences, walls, styles, gates, &c. (23) ; committing any other malicious injury to property (24) ; aiding or abetting in any of these oflfences (26). (7 and 8 Geo. 4. c. 38.) County Rate Accounts.'] The chief constables are directed by the statute, at the general or quarter sessions, if thereto required to account for the general county rate by them received, on pain of being com- mitted to gaol until they shall account and pay over the money in their hands, according to the order of the .said court, on the like pain. And all the accounts and vouchers shall, after having been passed at the said sessions, be deposited with the clerk of the peace, to be kept among the records, and inspected by the justices without fee. (12 Geo. 2. c. 29. s. 8; 55 Geo. 3. c. 51. s. 12.) Actions against the Hundred.] The relation in which the high- constable stands to parties bringing actions against the hundred, for injuries by riots, &c. will appear by the following sections of the 7 and 8 Geo. 4. c. 31. Every process for appearance in such case shall be served on the high-constable, who shall, within seven days after, give notice thereof to two justices of the county or division in which such hundred or district shall be situate, residing in, or acting for the hundred or dis- trict, and such high-constable may enter an appearance, and defend the action on behalf of the inhabitants of the hundred or district, as he shall be advised, or instead thereof it shall be lawful for him, with the consent of such justices, to suffer judgment by default, and shall, notwithstanding the expiration of his office, continue to act for all ])urposes of this act, until the termination of all proceedings conse- quent upon such action ; but in case of his death the succeeding high- constable shall act in his stead, (s, 4.) And two justices may order him to be reimbursed by the treasurer of the jurisdiction, (s. 7.) When Damage of small ./Imounl.'] Where the damage alleged to have been sustained shall not exceed thirty ])ounds, the party danniified shall not bring an action, but, within seven days after the connnission 312 CONSTABLES. [Cliail. XII. ol" the ofleiice, give notice in writing of his claim for compensation to the high-constable, who shall, within seven days after the receipt of the notice, exhibit the same to some two justices of the peace of the county or division in which such hundred or district shall be situate, residing in or acting for such hundred or district ; and they shall thereupon appoint a special petty sessions of all the justices of the peace of tke county, riding, or division, acting for such hundred or district, to be holden within not less than twenty, nor more than thirty days next after the exhibition of such notice, for the pm*iiose of hearmg and determining any claim which may be then and there brought before them on account of any such damage ; and such high- constable shall, within three days after such appointment, give notice in writing to the claimant, of the day, and hour, and place appointed for holding such petty session, and shall within ten days give the like notice to all the justices acting for such hundred or district, (s. 8.) Process to be served on Constable, cSfc] In every action to be brought, or summary claim to be preferred under this act, against the inhabitants of a county, of a city, or town, or of any exempt liberty, franchise, city, town, or place, the process for ajipearance in the action, and the notice requu'ed in the case of the claim, shall be served upon some one peace officer of such county, liberty, franchise, city, town, or place ; and all matters which by this act the high-con- stable of a hundred is authorized, or required to do in either of such cases, shall be done by the peace officer so served, who shall have the same powers, rights, and remedies, as such high-constable has by virtue of this act, and shall be subject to the same liabilities, (s. 12.) Duty in case of Fire.] On the breaking out of a fire in London or Westminster, all constables and beadles, upon notice thereof, shall immediately re])air to the place where it shall happen, with their stav^es, and other badges of authority, and assist in extinguishing the lire, and shall apprehend all ill-disposed persons that they find steal- ing from the inhabitants, and afford their utmost assistance (o help the inhabitants to remove their goods. (6 Anne, c. 31, s. 5.) To assist Excise Officers.] A constable is bound to assist the officers of excise in executing, in the night time, the warrant of a jus- tice, if to search for any concealed still, or other vessel for illicit dis- tillation, or for low wines, sjiirits, &c., preparing for distillation ; and he shall be present at the request of such officer, who is authorized in his presence to break into any distillery after admission has been de- manded, and not given : and any person may seize and detain per- sons hawking, selling, or exposing to sale, spirits, &c., for a reasonable Sect. III.] POWERS AND DUTIES. 343 time, till notice can be given to a constable, headborough, or other peace officer, who is to carry such offenders before a justice of the peace where the offence is committed. (6 Geo. 4. c. 80.) To assist Officers of Customs.'] Constables, &c., are likewise to aid the officers of the customs authorized by writ of assistance, under seal from the exchecpier, in entering any house, wai*ehouse, cellar, &c., in the day time, by force m case of resistance, and carrying away any jjrohibited goods, chests, packages, &c., to the custom-house of the nearest port; and a constable may so act in pursuance of this statute, as well beyond the limits of the parish or place of which he is officer, as within it. (6 Geo. 4. c. 108. s. 40.) To assist Distress for Rent. ] Constables shall assist landlords in the day time, in breaking open any house, bam, &c., where the goods of a tenant are clandestinely removed, or fraudulently concealed, for the purpose of levying a distress ; but in case the place in which they are suspected to be concealed is a dwelling-house, oath must have been first made before a justice, of a reasonable ground of sus- picion. (11 Geo. 2. c. 19. s. 7.) And they are required to aid in the appraisement of goods distrained for rent, and to administer an oath to two appraisers to appraise the same, truly to the best of their understandings. (2 W. & M. Sess. 1. c. 5. s. 2.) And if the pre- mises extend into two hundreds or districts, the constable of the dis- trict or place in which they are impounded, should administer the oath for the appraisement. (Walter v. Rumball, 1 Ld. Raym. 53.) May seize Swearer.] If a person unknown to him profanely swear or curse in the presence of any constable, he may seize and take him before the next justice of the jurisdiction ; and if a person known to a constable curse or swear in his presence, he shall speedily give information of the offence to a justice, under the penalty of 40s. (19 Geo, 2. c. 21. s. 3 & 7.) Unlicensed Hawkers and Pedlars.] Any constable or other offi- cer of the peace who shall neglect, on notice, or his own view, to be aiding and assisting in carrying hawkers and pedlars, tracUng without a licence, or otherwise than according to their licences, or refusing to show their licences before a justice, or in executing the warrants of justices against such offender, shall forfeit for each offence £ 10. (50 Geo. 3. c. 41. s. 21.) May seize JViyht Walkers.] At night a constable may arrest sus- picious persons, and secure them until the morning, imless they can give a good account of themselves; so he is bound to keep in safe custody, a common street walker for the purpose of prostitution, if delivered into his custody, for wandering about at an unseasonable 341 CONSTABLES. [Chap. XII. lunir of the night; and he is indictahle for permitting such a person to escape. (Lawrence v. Hedger, 3 Taunt. 15; Rex v. Bootie, 2 BuiT. 864.) Executing Justices* Warrants.] Any person, whether he be an officer or not, i^ justified in executing the warrant of a justice directed to him by name, any where within the jurisdiction of that justice, but he is not comjiellable to do so. (Attorney-Gen. v. Jeffi'ey, M'Clel. R. 288.) A constable, however, is bound to execute the waiTant of a justice within his own precinct, whether the waiTant be directed to him by his 'proper name, or generally to the constable or peace officer of that precinct ; and such a direction may extend to the officers of a county, in which case the instrument must be construed reddendo singula singulis, and the authority delegated to such officer is limited to the district for which he is apjwinted. (Rex v. Weir, 1 Barn. & Cres. 292, 2 Dowl. & Ryl. 444.) Where may execute Warrant.] Formerly, if a wan-ant was directed to constables or peace officers generally, no constable was justified in executing it out of his own precinct, though, if directed to him by his proper name, he might execute it any where within the jurisdic- tion of the magistrates gi-anting it. But it is provided, by a recent statute, that any constable or other peace officer may execute any warrant of a justice, in any place within the jurisdiction for which the justice was acting at the time he gi'anted or indorsed the waiTaut, in the same manner as if it had been addressed to him by his proper name, notwithstanding such place is not within his own precinct. (5 Geo. 4. c. 18. s. 6.) However, he is not compellable to execute it out of his own pre- cinct, whether addressed to him in his ovra name or in his official character, (Gimbert v. Coyney, 1 M'Clel. & Yo. 469.) When Offender in other Jurisdiction.] The inconveniences arising from the doctrine, that a warrant could not be executed out of the jurisdiction in which it was gi'anted were remedied by the 24 Geo. 2. c. 55. s. 1, which provides, that if any .person, against whom a war- rant has been issued in one jiuisdiction, be out of such jurisdiction, any justice of the jurisdiction in which the person is, upon proof on oath of the hand writing of the justice gi"anting the warrant, shall indorse his name on it, which shall be sufficient authority for him who brings the waiTant, and all others to whom it was originally dii-ected, to execute it in such other jurisdiction, and to caiTy the offender before the justice who indorsed it, or some other justice of the jurisdiction where it is indorsed; and if the ollence be bailable, the justice before whom he is brought shall lake such bail to appear at the assizes or Sect. III.] I'OWERS AND DUTIES, 345 sessions where the oflence was committed, and shall deliver the recog- nizance, and all the other proceedings, to the constable apprehending such person, to deliver them over to the clerk of the assizes, or clerk of the peace of the jurisdiction where the offender is so required to appear, under the penalty of £10. And if the offence shall not he bail- able, or bail be not to the satisfaction of the justice before whom the offender is so brought, the constable shall carry him before one of the justices of the jurisdiction where the offence was committed. And by the 13 Geo. 3. c. 31, a similar provision is made for the execution of English warrants against persons in Scotland, and of Scotch warrants in cases where the offender is in England, with this difference, that the offender is to be carried to the adjoining county of England, if it be an English waiTant executed in Scotland, there to be dealt with according to the 24 Geo. 2. c. 55, and vice versa, if a Scotch warrant. (See ante 285.) Levying Fines, ^c., elsewhere.'] It has also been provided, for the purpose of extending the above rule to warrants of distress, that where any penalty or other money may, by the warrant of a justice, be levied by distress and sale, if sufficient distress cannot be found within the jurisdiction of the justice granting the warrant, a justice of another jurisdiction upon oath by one witness, certified by indorsement on the waiTant, such penalty, &c., or the residue thereof, shall be levied by distress and sale of the goods and chattels of such person in such other jurisdiction, by the officer to whom the warrant was originally adtb-essed. (33 Geo. 3. c. 55. s. 3 ; vide 5 Geo. 4. c. 18. s. 1.) Executing illegal Warrants.] For the protection of constables, Sec, against the consequences of executing wan-ants, the legality of which cannot be sustained, the legislature has provided, by 24 Geo. 2. c. 44, that no action shall be brought against a constable or any jierson acting in his aid for any thing done in obedience to any war- rant under the hand and seal of a justice, until a demand hath been made or left at his place of abode by the party intending to bring the action, or his attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of the wan'ant, and the same hath been lefused or neglected for the space of six days after such demand. Taking Copy of Warrant.] And if, after such demand and compliance therewith, by showing the warrant to, and pennitting a copy to be taken by, the party demanding it, any such action be brought without making the jnslice defendant, on producing and proving such warrant the jury shall give a verdict for the defendant, jmtwithstanding any defect of jurisdiction in such justice ; and if such 340 CONSTABLES. [Chap. XII. action be brought jointly against such justice and officer, or other person, on proof of the warrant the jury shall find for such officer or other person, notwithstanding such defect of jurisdiction. (24 Geo. 2. c. 44. s. 6 ; see Price v. Messenger, 2 Bos. & Pul. 158 ; Milton V. Green, 5 East, 236.) An overseer executing a wairant of distress for a poor's rate is within the act; (Nutting v. Jackson, B. N. P. 24; Harpiu: v. Carr, 7 T. R. 270;) and the constables assisting him, (Clark v. Davey, 4 Moore, 465.) Notice of Ac Hon. '\ The notice of action is sufficient, if it inform the defendant substantially of the ground of complaint, without setting forth the mode or manner in which the injury has been sustained. (.Jones V. Bird, 5 Barn. & Aid. 844, 1 Dowl. & Ryl. 497.) But it is not vitiated by being in the fonn of a declaration, and unnecessarily ample, if it express the cause of action with sufficient clearness. (Gimbert v. Coyney, 1 M'Clel. & Y. 469.) When Warrant no JusliJication.~\ But a constable, &c., is not protected unless he act in obedience to the warrant ; therefore, where a constable, having a warrant to search for certain specified goods, took them and certain others, also supposed to have been stolen, hut which were not mentioned in the wan'ant, nor likely to furnish evidence of the identity of those which were so mentioned, he was held Uable to an action witlwut any demand of the warrant. (Crozier v. Cundey, 6 Bam. & Cres. 232.) The like doctrine was held where a constable, in order to levy a poor rate under a waiTant of distress, broke and entered the house, and broke the windows, &c. (Bell v. Oakley, 2 Maul. & Sel. 259.) And a constable, who dehvers a copy of his warrant to the party grieved, cannot thereby discharge himself, unless the party has thereby a right of action, (supposing the waiTant iUe- gal,) against the magistrate under whom he acts. (Sly v. Stevenson, 2 Car. & Pa. 464.) It may be observed, that the constable in this case had acted very improperly in obtaining the warrant. Verbal Warrant. '\ A constable may aiTest a person in the pre- sence of a justice by his verbal warrant, although no charge is made known to the constable ; but a verbal authority is insufficient, if the justice be not present. And in executing a wan^ant in writing, under the hand and seal of a justice, he should take care to have it ivith him at the time he executes it. (Hall v. Roche, 8 T. R. 187, 2 Hawk. XIII. 14—21.) Executing beyond Jurisdiction.] If the warrant, issued by a justice of the county, direct the execution to be in a certain parish, one part of which he? within the jurisdiction of the county justices. Sect. III.] POWERS AND DUTIES. 347 and the other part within an exclusive franchise, wliere they have no jurisdiction, and he executes it beyond the jurisdiction of the justice granting it, in an action against liun it is neither necessary to join the justice, nor to demand a«opy of the warrant. (Milton v. Green, 5 East, 236.) General Warrants.'\ General warrants have been declared illegal; and when magistrates either leave a blank to be filled up afterwards with the name of the person apprehended, or they direct a search for felons or stolen goods generally, or to apprehend the authors, printers, or publishers of a certain seditious and treasonable paper, without naming or particularizing them, the constable is liable to an action, if, in execution of such a warrant, he arrest an innocent person, or search a place where no such goods are found ; and he is not pro- tected by delivering a copy of the warrant. (Money v. Leach, 3 Burr. 1766; Rex v. Wilks, 2 Wils. 151, 2 Haw. xiii. 10—18.) Warrant a Jusfi/ication.] But if the waiTant direct a particular act to be done, and within six days after the demand the officer allow a perusal and copy of the wan-ant, he is altogether indemnified, if he have strictly executed it according to its literal directions. For in this case the justice is responsible for the wrong. (Parton v. Williams, 3 Barn. & Aid. 330; Jones v. Vaughan, 5 East. 447.) And the officer is equally safe if he give an inspection and copy after the six days have elapsed, if the action is not actually commenced ; but if he be sued after the six days have past, and before the copy has been delivered, the constable is not entitled to the benefit of this clause of the statute, and must rely upon the sufficiency of the warrant in the same manner as any other person. (Id.) And where the wan-ant is directed to overseers, and they employ a constable to assist them in the execution of it, inasmuch as it is nei- ther directed to him nor in his custody ; if after demand he so infonn the party, and refer him to the overseers, the constable is entitled to a verdict in an action in which he is joined with the over- seers. (Clarke v. Davey, 4 Moore, 468.) When he may break Doors.] An officer is justified in breaking- open outer doors or other parts of a house after, but not before, he has declared his business, demanded admission, and allowed a reason- able time for opening them, (Radcliff v. Burton, 3 Bos. & Pul. 228,) when he has to execute a capias from the Court of King's Bench or Chancery, or a wanant of a justice, to compel a man to find sureties of the peace, or for good bohavioiu-, (2 Haw. xiv. 3 ;) or a warrant to apj)rchend him on a charge of ielony, ( 1 II. P. C 579 ;) or a capiavS 348 CONSTABLES. [Chap. XII. t'oiuuU'd on ail imlictineiit lor any crime. (2 Haw. xiv. 312, Co. 131, 4 Inst. 177.) So he may hroak open outer doors, if" not admitted on demand, in the day time, upon a warrant to seai'oh for stolen goods, if accom- ])aiiied with a direction to bring the person in whose custody they are found before the justice on suspicion of the felony ; but if the wairant be merely to search, the officer cannot enter unless the doors are open. (2H.P. C. 113, 114.) He may also, in like manner, resort to the like means to execute a capias utlagatum pro fine in any action; (2 Haw. xiv. 6 ;) or a war- rant of justices for levyuig a fine in execution of a judgment or con- viction, gi'ounded on a statute which gives all or part of the penalty to the king ; (Conventicles, Sir T. Jones, 233;) and if an officer has entered a house to execute any vvaiTant, or even civil process, in a legal manner, and others fasten the outer doors upon him, he, and also others in his aid, are justified in breaking them to set him at liberty. (Id.) When may not break jDoors.] But he is not justified ui breaking o]>en outer doors, &c. to execute a warrant of distress for a poor-rate, (Bell V, Oakley, 2 M. S. 259;) or for a church-rate, (Theobald v. Crichmore, 1 B. A. 229 ;) or for bringing a person before a justice to take certain oaths prescribed by a statute, empowering a justice to require persons to come before him for tliat pui-pose ; for such waiTaut is not grounded on a precedent offence. (2 Haw. xiv. 11.) Must show Warrant.] It appears to be settled that not only a private individual, but a known officer, at least beyond the limits of his own precinct, is bound, and he ought in all places to show the wan-ant which he is about to execute, on the demand of the party on wliom it is to be executed. (Hall v. Roche, 8 T. R. 188, 2 Haw. xiii. 28, 1 H. P. C. 583 ; Countess of Rutland's case, 6 Co. 54 ; Mackalley's case, 9 Co. 69.) And the officer should afterwards retain the wanant for his own justification, and he need not deliver it, but should certify what he has done upon it to the justice, or in default thereof he may be amerced by the court, of which he is an officer, or the quarter sessions. (Rex v. Wyatt, 1 Salk. 381 ; Morley v. Slacker, 6 Mod. 83, 1 East, P. C. 319.) Duty under Militia Acts.'] The regulations established with respect to raising the men for the militia sei-vice, requue that special constables, aiding in the execution of the act, shall be above the age of thirty years. (52 Geo. 3. c. 38. s. 25.) Two deputy lieutenants within a division, or one deputy lieutenant Sect. III.] POWERS AND DUTIF.S. ;349 and one justice, may issue tlieir warrant, requiring tlie attendance of the constable or other officer of any place, for the purpose of the act, at a time and place therein mentioned ; and if such constable, &c. refuse or neglect to comply with the orders and directions which he shall receive, or be guilty of any fraud or gross neglect in his duty, they may commit the ofiender to the common gaol for one month, or fine him in any sum not above £20, nor under £2. (lb. s. 26.) The deputy lieutenants may add together any two or more parishes or tithings, or add any extra parochial place to any parish, &c. adjoining thereto, for the purjjoses of this act; and the constables of these jilaces shall act together herein, as if they were respectively officers of one and the same precinct. (lb. s. 28.) And the chief constable of each hundred is to direct the consta- bles of the precincts to give notice to every man balloted to serve, to appear at the appointed meeting seven days before such meeting ; and such constables shall attend such meeting, and make return upon oath of the days when such notice was served. (lb. s. 32.) Billeting the Militia.] All mayors, and other chief magistrates, and constables of cities, towns, &c., and in their absence a justice inhabiting near, shall billet the officers and private men serving in the local militia, when called out to annual exercise, in inns, livery stables, alehouses, victualling-houses, and all houses of persons selling brandy, strong waters, cider, wine, or metheglin by retail, upon application to them by his majesty's lieutenant, or by the commanding officer of the local militia of the coimty, riding, or place where they shall be called out ; and when the local militia is not embodied, all mayors, &c. shall order and provide convenient lodging, with fire and candle, in such houses, for the Serjeants, corporals, and di'ummers thereof in pennanent pay. (lb. s. 100.) No soldier shall be billeted in the house of any duly accredited foreign consul; (7 Geo. 4. c. 10. s. 88;) nor any marine officer or marine. (7 Geo. 4. c. 11. s. 40.) Bagc/agc Waggons.'] When the local militia shall be called out to be trained, or for the suppression of riots, a justice of the peace of the place, on the requisition of the lieutenant, or a deputy lieutenant of the county, or of the officer, commanding the regiment or detach- ment, may issue his waiTant to the chief constables of hundreds, or constables of precincts, from, through, near, or to which such body of militia sliall march, requiring them to provide sufficient carnages to convey the arms, stores, &c.; and if sulficient cannot be thus pro- vided, any justice for an adjoining county or jilace may make a like order within his jurisdiction to make up the deficiency, and the 30() CONSTABLES. [C-hap. XIT. officer requiring such carriages and men shall at the same time pay the constables, for the use of the owners, for every mile which they shall travel, one shilling for a waggon with five horses, or a wain with six oxen, or with four oxen and two hoi-ses ; nine-pence for a cart with four horses ; and so in proportion for carriages drawn by a less number, for which sums the constables shall give a I'eceipt ; and they shall appoint the persons having carriages within their precincts as they think proper, to furnish such caiTiages and men, who are required to furnish the same, for one day's journey, and no more. And if the constables, &c. are at any charges herein, over and above the money which shall be so received by them, they shall be repaid to them by the treasurer of the county, riding, or place, m which they are incuiTed. (52 Geo. 3. c. 38. s. 101.) Kotice of embodying Militia.~\ The lieutenant of every county, &c. to whom his majesty's order is directed, shall issue a waiTant to the constables of hundreds, who are to forward the same to the constables of the precincts, and such constables shall forthwith cause notice in writing to be given to the several local militia-men to attend at the time and place mentioned in such order, (lb. s. 126.) And the constables of precincts shall, before the 14th of November in every year, return to the clerk of the subdivision a true account of all persons serving for such precinct in the local militia, specifving such as shall have died or left their residence, and the place to which those have gone, if that can be ascertained, subject to a penalty of £5 for making a false, or neglecting to make any return. (lb. s. 174.) Remuneration to Constables.] Every high-constable, petty con- stable, &c. who shall act in raising the money assessed for defi- ciency in the number of men who ought to seiTe for each place, shall be paid, as a recompense for their trouble therein, one penny in the pound on the money raised by the clerk of the subdivision. (lb. s. 186.) Militia Deserters.] It is the duty of all constables, and other persons, to apprehend defaulters or deserters fi'oin the local militia, and to deliver them into custody at any military head-quarters or gaol, near where they shall be apprehended ; and for so doing shall receive twenty shillings for each offender, over and above any reward given under any act for punishing mutiny or desertion. (43 Geo. 3. c. 50. s. 5.) A similar power to apprehend deserters, &c. from the army or marines is given by the annual mutiny acts. Lists for Ballot.] The constables, within fourteen days after direction, shall leave notice in \viiting for every occupier of every Sect. III.] POWERS AND DUTIF.S. 351 dwelling-house, or part of a dwelling-house, to produce, within four- teen days after the day of giving that notice, a list in writing of the Christian and surname of every man resident therein between the ages of eighteen and forty-five ; and the notice shall contain the day and place appointed for appeals by those clainiuig exemption. (42 Geo. 3. c. 90. s. 26.) Army travelling. ~\ The annual mutiny act gives the like general authority to magistrates and constables, in cases of the troops of the regular anny removing from town to town, as they exercise with respect to the militia, when embodied. The order for the supply of carnages, horses, &c. must specify whence and where they are to travel, and the distance, not exceeding twenty-five miles. (10 Geo. 4. c. 6. s. 54.) Extra Carriages for Army.'] In cases of emergency, the justices, on such order, shall issue then* wan'ants to such constables, requiring them to provide, not only waggons, &c., but saddle-horses, coaches, chaises, and four-wheel carnages, usually let or kept for hire ; and boats, barges, and other vessels, used for the caniage of all manner of goods and merchandize upon any canal or navigable river, on pay- ment of such reasonable sums of money, not exceeding the usual hire, as the justices in the warrant direct. (lb. s. 6Q.) Billeting Soldiers.] Constables, &c. shall quarter and billet the officers, and soldiers, and persons receiving pay in the army, in inns, &c., except of freemen of the company of vintners of London, by right of apprenticeship or patrimony, and in no private house, or the house of any foreign consul. (Id. s. 53.) The constable, or others appointed to billet soldiers, may billet them equally in the adjoining county with that for which he acts, within one mile from the place mentioned in their route. (Id. s. 49.) Billeting in Westminster, S^c] The high-constable shall issue his precept to the several constables in their divisions to billet the soldiers of the foot-guards in such houses in Westminster, and the places adjacent in Middlesex, Sun'ey, and the Borough of Southwark, as are subject thereto in other places, but not in London. And the said constables of Westminster, Middlesex, Surrey, and the Borough of Southwark, at every general quarter sessions, shall deliver to the justices upon oath, true lists, signed by them, of such houses, and the people inhabiting them within their precincts, and the names and rank of the officers and soldiers there quartered, for the inspection of all persons, without fee or reward. (Id. s. 50.) Marines.] There is also an annual provision, directing that warrants for conveying marines, when on shore, shall be granted in the same 352 CONSTABLES. [Chap. XTI. manner as for conveying detachments of the regular anny, and to be executed by constables in the same manner. To attend Sessions.] The constables, as well of the hundreds as of 2)arishes, are bound to attend the quarter sessions. (Dalt. 185.) The constables of hundreds, or chief constables, must appear to make return of the warrants directed to them previous to the sessions, to receive the instructions of the justices, and to report the state of the king's peace within the division. Such at least are the general duties assigned to them by the nature and from the original foujida- tion of their office. Besides these, however, many others have from time to time been imposed upon them by statute, of an amount too considerable to be distinctly enun^erated to any profitable purpose here, as many of them, although more or less connected with their attend- ance upon the sessions, are to be executed out of them. The petty constables are called over, and fined by the court if they do not answer. Their duties relative to their parishes are in a gi'eat degree similar to those of the chiefs respecting the hundreds, with some additional ones, such as reporting the state of their parish stocks, giving evidence respecting the execution of warrants wherewith they may have been charged, and all other matters pertaining to their office, both as conservators of the peace, and as ministers of the justices. SECTION IV. — TREATMENT OF PERSONS APPREHENDED. Carrying Offenders before a Justice.] The only case in which a constable can set a person free, seems to be where he has taken him into custody for a mere tiivial affray, which he may do when the heat is over ; but in all other cases it is his duty to take the person he has in custody, with all convenient speed, before a justice of the jurisdic- tion, where the offender is apprehended, to be dealt with according to law. And if he detain his prisoner in custody for an unreasonable period, as to give time to collect witnesses, or treat him with unnecessary harsh- ness, as handcuffing him, unless there is danger of an escape or rescue, which must be averred in pleading, he is hable to an action. But he cannot release him upon bail, or the undertaking of others for his appearance. (Coupey v. Henley, 2 Esp. R. 540; 2 Haw. xv. 26; Wright v. Court, 4 BaiTi. & Cres. 696 ; Com. Dig. Tmpris. H. 4, 5.) Taking through adjoining Counties.] By the 28 Geo. 2. c. 29. s. 2, " Any constable, or other peace officer, or other persons appreliend- Sect. IV.] TREATMENT OF PERSONS APPREHENDED. 353 ing any ofiender whom they ought to ai3prehend, may convey him to any justice acting for the said county, and resident in an adJQining county; and the said constahles, &c., in all such cases, shall act in all such things as if the said justice was resident within the said county to which they respectively belong ; and every person obstruct- ing or hindeiing them in the said adjoining county, shall be liable to the same pains and penalties as if the same had been committed in the county for which the said constables, &c., were appointed to act. And the third section of the same act empowers officers or other per- sons to cany their prisoners through adjoining counties on their way to gaol, and an escape or rescue shall subject the parties to the like pains and penalties as if the- escape had happened, or such rescue made, in the county whercin such offence was committed. May confine Offender.'] The officer may, until he can, with con- venient despatch, take the ofiender before a justice, confine him in a house, or, if necessary, in the stocks, or common gaol, of the place. And therefore a night constable may commit one charged with felony tx) the compter for the night, but not by way of punishment, nor for trial, for this is the office of the justices of the peace. (2 Haw. xvi. 3; xiii. 8; 2 H. P. C. 81. 120; White v. Taylor, 4 Esp. R. 80; see Rose v. Wilson, 8 Moore, 364.) And a constable may require a gaoler to take an offender into tem- porary custody, until he can carry \m\ before a justice, (4 Ed. 3. c. 10. 1 H. P. C. 595,) or if he secure him in the stocks, or the house of a constable, or even of a private person, he is, in contemplation of the law, in a prison ; for imprisonment is nothing else but a re- straint of liberty. (2 Haw. xviii. 4.) Suffering Prisoner to go.] If a constable, having aiTested a jier- son in execution of a warrant, suffer him to go at large on his promise to return at a certain time and bring sureties, he cannot retake him under the same warrant. But it seems, that if he do return and surrender himself, the constable may lawfully detain' him, and carry him before a justice in pursuance of the same warrant. (2 Haw. xiii. 9.) Arresting sick Person.] If the person arrested be sick, and cannot be removed without danger of death, he may be detained in his own bouse, till the officer can reasonably bring him to a justice. (2 H. P. C. 81.) When a constable conveys a person in his custody before a justice, he is still, in law, in his custody, until the justice have either dis- charged or bailed him, or committed him to gaol. (lb. 120.) 354 C0NSTABLF.3. [Chap. XII. SECTION V. — PRIVILEGE. Exempt from other Office.'] Generally, if a person is serving one cinl office, it exempts liiin from being chosen to any other for the same period. (See Price's Case, Sir T. Jones, 46 ; Abdy's Case, Cro. Car. 585.) But a seafaring man, although appointed and serv- ing as headborough, is not exempt from being impressed in the navy. (Fox's Case, 5 T. R. 276.) Gains a Settlement.'] A person being legally placed in, and who serves the office of constable for a township or other place, and tithing- men, borsholders, and wardens, being officers of the same character as constable, and serving a pubUc annual office in a parish during an entire year, gain a settlement in the parish in which they reside, though they reside under a certificate from another place; (1 Nolan, P. L. 617; Rex v. Wingham, 2 Stra. 1199;) although a constable, after being appointed and sworn, employ another to serve for him as a deputy. (Rex v. Hope, ]\Iansell, Cald. 252.) But the deputy does not gain a settlement. (Rex v. Winterbourne, Bun-. S. C. 520; Rex v. Allcannings, 634.) And if the constable, &c., become actually chargeable, and be removed before the expiration of the year, though more thai% forty days after entering on his office, he gains no settlement. (Rex v. Fittleworth, Burr. S. C. 238.) Nor if he serve one half year, and then go out of office for an interval, and afterwards serve another half year, for that were not an annual, but a semi-annual office. (Rex v. Coldashton, Burr. S. C. 446.) Nor although he be irregularly discharged from the office shortly after he has been duly elected and acted, for he has not executed the office for a year. (Rex v. Holy Cross, 4 Barn. & Aid. 619.) The settlement is gained in the paiish where he resides the last forty days of the year's service, but no settlement is acquired imless the parish or township in which he lives, or some part of it, lies within the precinct of which he is the officer. (Rex v. Liverpool, 3 T. R. 118; St. Mary v. St. Lawrence, 2 Bott. 156.) Protection in Office.] Every person is bound, in the day-time, to recognize a constable, or other known or sworn officer, when acting within his own precinct in the discharge of his duty. Therefore, if he interfere to arrest an affrayer or a felon, or any one violating the peace within his district, to oppose him, or any one whom he calls to his assistance, is a misdemeanor ; and if he, or such assistant, be killed, it is murder. Sect. VT] EXPENSES AND REMUNERATION. ^55 But at night persons are not bound to recognize him sm the proper officer, unless he give them some notification of the fact, as by de- claring himself to be the constable, or commanding the peace to be kept in the king's name, &c. (2 Haw. xvii. ; Kendal's Case, 6 Mod 78; Rex v. Tooley, 2 Ld. Raym. 1296.) Showing the Warrant.'] It is an equal offence to kill, hurt, or obstruct a constable, or a private person, in the execution of a legal warrant, though it may have some latent or technical defect, (1 H. P. C. 460 ; Rex v. Winwick, 8 T. R. 455,) whether within or beyond his precinct, after he has made known the purpose of his coming, and, if required, shovni his waiTant, But a refusal to show the war- rant on demand, reduces the killing to manslaughter, and the assault- ing him may be justified, by showing that it was necessary in defence of one's self or others. For no one is bound to submit to the aggres- sion of a person under the pretext of a warrant, Which he asserts to be in his possession, but which he refuses to show. (Countess of Rutland's Case, 6 Co. 54; Mackalley's Case, 9 Co. 69; Hall v. Roche, 8 T. R. 188.) Assaulting to prevent Arrest.'] By the recent act for the consoli- dation of the laws relating to offences against the person, it is provided, that persons convicted of any assault upon any peace officer, or any other person, with intent to resist the lawful apprehension or detainer of offenders under this act, may be sentenced to imprisonment, with or without hard labour, for any time not exceeding two years, and may also be fined and required to find sureties to keep the peace, if the court shall so think fit. (9 Geo. 4. c. 31. s. 25.) SECTION VI. — EXPENSES AND REMUNERATION. Delivering Accounts.] By the 18 Geo. 3. c. 19. s. 4, it is pro- vided, "that every constable, headborough, or tithingman, shall, every three months, and within fourteen days after he shall go out of office, deliver to the overseers of the place a just account, fairly written in a book kept for that purpose, and signed by him, of all sums expended in his office on account of the parish, township, oi* place, in all cases not otherwise provided for by law, and of all sums received by him on account of the parish, &c. ; and the overseers, or their successors, shall, within the following fourteen days, lay the same before the in- habitants, and, if approved by the majority, shall pay out of the poof rate such money as shall appear to be due ; but if the account, or any part thereof, be disallowed, they shall give it back to the constable, A A 2 3o6 CONSTABLES. [Chap. XII. &c., who may produce it before one justice or more of that jurisdiction, giving reasonable notice thereof to the overseers ; and the jiistice shall examine the account, and determine on any objection made to it,^ and settle what sum appears to him due, enter the same on the account, and sign his name thereto, and the overseer shall pay such sum out of the poor rate. Appeal against Accounts.^ If the overseers find that the parish, &c., is aggrieved by any thing done or omitted by the constable, &c., or by any justice of the peace, or have any material objection to the account, or to the justice's determination, they, on giving reasonable notice to the justice or constable, &c., may appeal to the next general or quarter sessions. But if it appear to them, that reasonable notice was not given, they shall adjourn the appeal to the next quarter ses- sions, then to be detemiined ; and they may award reasonable costs, as in appeals concerning the settlement of the poor. (Id. s. 5.) But it has been decided, that the appeal only lies in case the majority of the overseers concur in it. (Rex v. Lancashire, 5 Bam. & Aid. 757.) Expenses not allowed.] The constable can only charge for ex- penses in doing the business of the parish ; it therefore behoves him to take care how he incurs expense, as it may turn out that he is not entitled to be reimbursed ; thus, where a constable took an offender before a magistrate, who had, in his presence, grossly violated the decorum of a chapel, in which divine service was beginning, and he was bound over to prosecute, it was held, that the sum expended in the prosecution was not chargeable to the parish, as monies expended by hun in doing the business of his township, though it might have been different had he, previously to the prosecution, received from the inhabitants some authority to proceed. (Rex v. Saville, 5 Bara. & Aid. 180.) So, in a prosecution for an assault made upon a parish officer, al- though the proceeding was directed by a justice, and approved by the court which tried it ; and even though the expenses had been allowed by the vestry, afterwards by two justices, and that allowance was confirmed by the sessions, on appeal, the Court of King's Bench quashed the order. (Rex v. Bird, 2 Bam. & Aid. 526.) Expenses of conveying Offenders.] Every person committed to the common gaol for any olience, if he have the means, shall bear his own reasonable expenses of conveying him there, and the charges of such as are appointed to guard him ; and if he refuse, or do not defray the same, the justice shall give a warrant to the constable, &c., where such person dwells, or whence he is committed, or where he has goods, to sell so much thereof as in the discretion of the justices will Sect. VI.] EXPENSES AND REMUNERATION. 357 satisfy such charges. (3 Jac. 1. c. 10. s. 1, made perpetual by 16 Car. 1. 0. 4.) And if he have not sufficient within the county where he is taken to bear these charges, then, on the appUcation of the constable or other officer who conveyed him, any justice of the same county shall, upon oath, ascertain the reasonable expenses of the constable or officer, and, without fee or reward, by warrant under his hand and seal, order the treasurer of the county or place to pay the same. (27 Geo. 2. c. 3. s. 1.) Expenses in Riots.] Any two justices within their jurisdiction may, by writing under their hands, order any reasonable and neces- sary allowances to be made to high-constables for extraordinary expenses incurred in the execution of their duty in cases of tumult, riot, or felony, subject to the approval of the next general quarter sessions, who may order the treasurer of the county, &c., to pay the high-constables such sums as they deem reasonable. (41 Geo. 3. (U. K.) c. 78. s. 2.) It has been decided, that the expenses which the high-constable is entitled to have paid him, are not such as are merely personal ; but if he necessarily employs special constables in cases of riot and tumult, and pays them for their services, he is in like manner to be reim- bursed. (Rex V. Justices of licicester, 7 Barn. & Cres. 6.) Reivard for stolen Goods."] It is no very uncommon practice for parties who have been robbed, to offer a reward to police officers, or others, for the recovery of the property. It seems, by a case recently determined, that such a promise, at least if made to a constable or police officer, is against the policy of the law, and not binding. The defendant in the case alluded to, having lost some silk dresses and other property, promised the plaintiff (who was a constable.) ten guineas, if he could find out the thief, and obtain the restoration of her property. The plaintiff (who had no magistrate's warrant for the pui-pose,) accordingly exerted himself, and apprehended the thief with the property in his possession. The thief was tried and con- victed, and the property restored. This action was brought to recover the above reward. Lord Tenterdeu held, that the action would not lie. A constable has no right to receive or recover a reward for doing his duty, for which he is paid by the public ; or if the reward was meant to be fj^iven for procuring the restoration of the property, without reference to a prosecution of the thief, it was illegal, and not the subject of an action. The plaintiff was therefore nonsuited. (Harrison v. Hewson, Middlesex Sittings, 18th July, 1829.) 358 CONSTABLES. [Chap. Xll. The case was mentioned in the following tenu, but the court inti- mating a strong opinion against the application for a new trial, upon the above ground, as well as to the insufficiency of [ art of the proof, the motion was not persisted in. (MSS.) SECTION VII. — PROTECTION AGAINST ACTIONS. Plea and Costs.] In any action against any headhorough, con- stable, or tithingman, concerning any thing done by virtue of his office, he and any other person acting in his aid, or by his command, may plead the general issue, not guilty, and give any special matter in evidence on the trial, which would, if pleaded, have been sufficient in law to discharge the defendant of the matter laid to his charge ; and if the defendant shall have a verdict, or the plaintiff be nonsuit, or sufier a discontinuance, the justice or judge, who shall try the cause, shall allow the defendant double costs, recoverable as in other cases. (7 Jac. 1. c. 5.) Venue. 1 And such action shall be laid within the county where the trespass or fact was committed, and if, on the trial, it shall not be proved to have occuiTed in that comity, the jury shall find for the defendant, not guilty, without regard to any other evidence. And the defendant, on a verdict for himself, or a nonsuit, or a discontinu- ance, shall have double costs, and all the other advantages and reme- dies of the aforesaid statute. (21 Jac. 1. c. 12.) The mihtia act, 52 Geo. 3. c. 38. s. 206, gives the like protection, as does the 53 Geo. 3. c. 127. s. 12, relating to church rates for any thing done under either of these acts respectively. Officers not ivithin these Acts.] Borsholders, and other officers similar to constables, are within the meaning of these acts, but not king's messengers, and such persons unknown in the law, who are mere volunteers in executing the wan'ants of justices. (Money v. Leach, 3 Bur. 1761 ; Waldron v. Roscarit, 1 Vent. 170.) But a deputy constable is within the act. (See Phelps v. Winchcomb, 3 Buls. 77.) Pleading a Justijication.] In an action for arrest and false im- prisonment, against a constable, if a justification be pleaded, though unnecessarily, the plea must show the specific groimds on which the defendant's suspicions were founded, the same as though the action were against a private person. But if there were several gi'ounds, they may be all stated, for the replication de injuria, puts tluin all in issue. In such a plea, if the plamtifT is known to have committed Sect. VII.] PROTECTION AGAINST ACTIONS. 359 the crime, that he did so, may be averred without setting forth parti- culars ; but if he be arrested on suspicion, then, in addition to the circumstances raising a suspicion against him, it must be averred that the crime was committed. (M'Cloughan v. Clayton, Holt. Rep. 478, 2 Haw. xii. 18. 2 H. P. C. 78.) Certijicate for Costs.'] A certificate is not necessary when a special verdict is found, showing that the defendant acted in the dis- charge of his ofEce ; for, as it appears on the record, the master must tax double costs. (Grindley v. Holloway, Doug. 308, n. 82.) But when the verdict is general, there must be a certificate from the judge who tiied the cause, which he is bound to give any time before the costs are taxed, and not necessarily at the time of the trial. (Id. Harper v. Carr, 7 T. R. 448.) The certificate that the defendant acted by virtue of his office, to entitle him to double costs under this act, need not be granted imme- diately after the trial of the cause. And where the plaintiff is nonsuited, the judge before whom the cause was tried, may, after an interval of four years, upon an afl5davit that the defendant was \\'ithin the provi- sions of the statute, grant such certificate. (Nonnan v. Danger, 3 Younge & Jer. 203.) Limitation of Actions.'] It is provided by 24 Geo. 2. c. 44. s. 8, that no action shall be brought against any constable for any thing done in the execution of his office, or any headborough or other officer, or person acting as aforesaid, unless commenced within six months after the act committed. And it appears that he is within the protection of this section of the statute in all cases, when acting with the intention of discharging his office, in the execution of a warrant, or of his ordinary common law authority, though he, through ignorance or inadvertency, does an act which he is not authorized or justified in doing. (Parton v. Williams, 3 Barn & Aid. 332 ; Theo- bald V. Crichmore, 1 Barn. & Aid. 229.) But if he has not reasonable ground for supposing that the act done is within his authority, he is not so protected. (Cook v. Leonard, 6 Bam. & Cres. 851.) When Action not mainlainable.] In Davis v. Russel and others, the judge directed the jury to consider whether the circumstances proved, afforded the defendant reasonable ground to suppose the plaintiff had committed a felony, and whether in his situation they would have acted as he had done. The jury returned their verdict for the de- fendants, and the court, upon a motion for a new trial, held, that this direction was substantially connect. (5 Bing. 354.) A party cannot maintain trover against a constable, for a wrongful :>60 CONSTABLES. [Chap. XII, tiiking of goods under a justice's warrant, without joining the justice as a defendant, if perusal and copy of the warrant liave heen given under the 24 Geo. 2. c. 44. s. 6 ; Lyons v. Golding, 3 Car. & Pa. 6S6. When not Protected.] But where a constable, having in vain searched a house, under a warrant to search for black cloth which had been stolen, took cloth of other colours, and carried it before a magistrate, and on being asked by the owner of the house, refused to inform him whether he had a waiTant or no, it was held that the action ought to have been brought within six months. (Smith v. Wiltshire, 2 Bro. & Bing. 621 ; 5 Moore, 322.) But if he take other goods which are not Ukely to furnish evidence of the identity of the goods stolen and mentioned in the warrant, although such other goods are claimed as having been stolen also, he is not within the protection of the statute. (Crosier v. Cundey, 6 Bam. & Cres. 233.) But he is not protected, even after the expiration of the six months, against an action for ah injury, arising from an act done merely under colour or pretence of his office, and which is beyond his authority. (Alcock V. Andrews, 2 Esp. R. 542. n. ; Postlewaite v. Gibson, 3 Esp. R. 226.) Nor it would seem from the language of the judges, in Theobald v. Crichmore (supra), where he appears to have acted from malice or evil motives ; and not bona fide, though ignorantly, with the intention of executing his duty. When Time begins to run.] The six months is to be calculated from the period at which the fact was done, and not from the deter- mination of any proceedings instituted to try the legality of the act. (Godin v. Ferris, 2 Hen. Bla. 14.) But if the fact be an imprison- ment, he is in time if he bring his action at any period within six months after he is liberated, for the whole imprisonment is one entire trespass. (Pickersgill v. Palmer, Bui. N. P. 24 ; Coventry v. Apsley, 2 Salk. 420.) And the day of discharge is to be reckoned exclusively. (Hai'dy V. Ryle, ante, p. 316.) Cases not within the Act, ^c] The statute applies only to actions of tort, and does not extend to an action, if brought against the con- stable, to recover back money which he has levied on the plaintiff, on the conviction of a justice of the peace, where the conviction has been cjuashed. (Bui. N. P. 24 ; see Wallace v. King, 1 H. Bl. 13.) Arrests for Malicious Injuries, ^'c] It is also provided, that all ac- tions and prosecutions against any person for any thing done in pm- suance of the 7 & 8 Geo. 4. c. 29, and c. 30, shall be laid and tried in the county where the fact was committed, and shall be commenced within six mouths after the fact committed, and not otherwise, and Sect. VIII.] PUNISHMENT. 361 notice of such action shall be given to the defendant, one calendar month at least before its commencement ; and the defendant may plead the general issue, and give either of these acts and the special matter in evidence ; and no plaintiff shall recover, if tender of sufficient amends have been made before action brought, or a sufficient sum of money have been since brought into court by the defendant ; and if he gain a verdict, or the plaintiff be nonsuit, or discontinue after issue joined, or judgment shall be given against the plaintiff, the defendant shall receive his full costs as between attorney and client ; and though a verdict be given for the plaintiff, he shall not have costs against the defendant, unless the justice before whom the trial shall be, certify his approbation of the action and verdict, (ss. 75. 41.) Arrest of disorderly Persons, ^c] And in all cases where an ac- tion shall be brought against any justice, constable, or other person, on account of any thing done or commanded by him in the execution of his office, under the 5 Geo. 4. c. 83, as to disorderly persons, it is provided by the act, that if he have judgment in his favour, he shall have treble costs awarded him by the court, unless the judge shall certify that there was a reasonable cause for such action. SECTION VIII. — PUNISHMENT. J^eglect to apprehend Felons.] If a constable neglect his duty to endeavour to suppress an affray or riot, or to apprehend a felon, &c., be is guilty of a misdemeanor, for which he may be indicted and punished with fine and imprisonment, and he is equally punishable for neglect of any duty imposed on him by statute, when no other punishment is particularly appointed. (2 H. P. C. 85. Rex v. Wyat, 1 Salk. 381.) And if other jiersons being called upon by a constable to aid him in the execution of his duty, refuse to do so, they are alike answer- able. (Id. see 1 Bla. Com. 356.) Escape of Offender-I But a constable is not responsible for the escape of an offender, unless he has had him in actual custody, that is, so far in his power, he having suiTcndered, as to have been able to lay hands upon hun. (2 Haw. xix. s. 1 — 27.) Cannot divide Responsibility.'] Where there are two constables appointed for a precinct, they are both officers throughout the whole, although there may have been a long-continued usage for each of them to superintend one district, and the other the other, and if there 362 CONSTABLES. [Chap. XII. be any neglect of duty in any part of the precinct, it would be no excuse for one to say, it arose in my colleague's district. (Rex. v. Taunton, 3 Maule & Sel. 471.) May be Fined.'] Any two or more justices, at a special or petty sessions, upon complaint upon oath of any neglect of duty, &c., by a constable or other peace-officer, he having been duly summoned, may impose on him, upon conviction of such offence, a reasonable fine, not exceeding 40s., to be levied, if not paid, by distress and sale of his goods and chattels ; and if any person be aggi'ieved by such judg- ment, or any thing done in the execution of the warrant, he may appeal to the next general or quarter sessions, giving ten days' no- tice thereof at the least. And for want of such distress, the offender shall be committed to the house of correction for any time not ex- ceeding ten days. (33 Geo. 3. c. 55. s. 1.) It is also provided, that no person acting under such warrant of distress, shall be deemed a trespasser, ab initio, by reason of any in-egularity in the warrant or proceedings thereon ; but the person aggrieved may recover special damages, for the inj ury sustained, in an action of trespass, or on the case, in any of his Majesty's courts of record, (lb. s. 21.) Neglect under Jury Act.] If the high constable, for fourteen days after the wairant of the clerk of the peace shall be served on him, or left at his usual place of abode, neglect to issue ^ precept to the churchwardens, &c., or to supply a competent number of fonns, &c., or if he shall neglect his duty as set forth in this act, or make any alterations in the jury lists, after receipt thereof, he shall for every such offence forfeit not^more than £10, nor less than £2. (6 Geo. 4. c. 50. s. 44 ; See Rex v. Pugh, Doug. 188.) Neglects as to County Rate.] And if any constable neglect to make the returns of rateable property within the parish, when required for the purposes of assessing the county rate, he is liable to a penalty not exceeding £ 20 to be fixed by the general or quarter sessions, and to be levied by distress. {66 Geo. 3. c. 51. s. 4.) Or if he neglect to produce assessment books in his hands, or to give evidence on oath respecting the same, on the requisition of the general quarter or petty sessions of the division, he shall for every offence forfeit not more than £10. (Id. s. 9.) As to disorderly Houses.] So if he be negligent in the proceed- ings instituted against disorderly houses, he shall forfeit £ 20 to each of the inhabitants giving the formal notice of such disorderly houses. (25 Geol 2. c. 36. s. 7. See "Disorderly Houses," post, 376.) Sect. IX.] SPECIAL CONSTABLES. 363 Other Neglects.] And in nearly all the acts which impose par- ticular duties upon constables, penalties are also provided for their neglect, in the discharge ot" such duties. And in some cases, as in the raising assessments under the militia act, (52 Geo. 3. c. 18. s. 189,) the forfeiture is £50 ; for neglecting to return the lists, £ 20 ; for neglecting to assist the excise officers under 6 Geo. 4. c. 80, £ 20 ; for neglecting to apprehend, &c., vaga- bonds, £5, (5 Geo. 4. c. 83 ;) for neglecting to make or return lists, or to give notices, serve waiTants, &c., under the highway act, (13 Geo. 3. c. 78,) 40s. ; and for neglecting to exhibit or give notices in cases of actions against the hundred, under the 7 & 8 Geo. 4. c. 31, the party damnified tliereby, may sue such constable for the amount of damages sustained, and recover the same with full costs. SECTION IX. — SPECIAL CONSTABLES. In what Cases appointed.] By the 1 Geo. 4. c. 37, it is provided, " That where it shall appear to any two justices, by the information on oath of five respectable householders within their jurisdiction, that any tumult, riot, or felony, has taken place, or is likely to take place, such justices may nominate and appoint by precept, under their hands, any householders or other persons not legally exempt from serving the office of constable, residing within their respective divi- sions, or the neighbourhood thereof, to act as special constables for such time, and in such manner, as to the same justices shall seem fit, for the preservation of the public peace, and the prevention or sup- pression of any tumult, &c., such persons to take the usual oath administered by law to all special constables. " And if any person not so exempt, so appointed as aforesaid, shall refuse or neglect to act as such special constable, he shall be liable to the same penalties and jjunishments as a person who refuses the office of constable is legally subject to. And the justices assembled at the general or quarter sessions holden for such jurisdiction, may direct reasonable allowances for trouble and expenses to be made to such special constable, to be paid by the treasurer of the jurisdiction." ( 1 Geo. 4. c. 37 ; see R. v. Leicester, 7 Bam. & Cres. 6.) Street Constables.] By the Metropolis act, 6 Geo. 4. c. 21, it is provided, " That it shall be lawful for two of the justices appointed under the said recited act, (3 Geo. 4. c. 55,) to any of the police offices thereby established, upon the application of five of the inhabitants of any street or square, or th« proprictois of any place of public resort 364 CONSTABLES. [Chap. XII. witliin the limits of the bills of mortality, and the gaiishes therein enumerated, to appoint a competent number of persons recommended by such inhabitants, or such proprietor respectively, and approved of by such justices, to be constables, to keep the peace within such street or square, or such place of public resort, and the avenues leading thereto, for such period of time as such justices shall deem fit and necessary, and to administer an oath to every such constable, duly to execute that office within the limits, and for the period of time for which he shall be appointed ; and every constable so sworn, shall, within the limits, and during the period for which he shall serve, have all such powers and authorities, privileges and advantages, as any con- stable, duly appointed, hath or shall have within his constablewick, and shall be paid by the inhabitants or proprietor respectively, on whose application he shall be appointed, such wages as shall be deemed reasonable and adequate by the justices, by whom he shall be ap- pointed. Metropolis New Police.] The recent police act (the 10 Geo. 4. c. 44,) which establishes an entirely new system in the place of the nightly watch ; embracing also the means of protection to persons and property in the day time, is founded, in its details of the duty, obhgations, and protection of those officers, upon the law relatinsr to constables, as explained in this chapter. A partial experiment only has yet been made of the system, in a few of the many parishes for which it is intended. The statute occupies too much space to be included in this work. SECTION X. — WATCHMEN. Their Appointment.] Since the repeal of the statute of Winton, and some other early statutes on the subject by the 7 & 8 Geo. 4. c. 27, we have no general law concerning the appointment of watchmen, whether they are to be sworn, what is the precise extent of then* autho- rity, or how long their charge is to continue. There are several acts of parliament which recognize the office of watchman, but these must be refen-ed to the watch appointed under the statute of Winton, or by special acts of parliament. But notwithstanding the repeal of these acts, the usage of jjarticular places to appoint watchmen may doubt- less be continued with propriety ; they are a species of special con- stable for the preservation of the peace, and the protection of projierf y by night. And they might, without any gi-eat violence to the letter Sect. X.] WATCHMEN. 305 or the spii-it of the 1 Geo. 4. c. 37, he appomtecl eo nomine special constahles, under that statute to act by night. Power and Duty.] A watchman duly appointed has precisely the same power and protection as a constable in preventing breaches of the peace, and apprehending suspicious persons, offenders, and felons ; and probably in all cases, although he may not derive his office from an appointment under a local act of parliament, or an immemorial custom, if his appointment has been confirmed by the justices in sessions, the superior courts would recognize his authority when act- ing mthin the due limits of such office. When a constable is ap- pointed to keep watch, the watchmen ought to cany those whom they apprehend before the constable, to detennine the propriety of detain- ing or setting them at large. If, however, the constable is not at his post, and cannot be conveniently found, a watchman is justified in delivering a street-walker, or other justly suspected person, into the custody of the gaoler, to be kept to answer his charge in the morning, which must be made known to the gaoler at the time of delivering the prisoner into custody. (Lawrence v. Hedger, 3 Taunt. 15, Rex V. Bootie, 2 Bur. 865, 2 H. P. C. 96, 97, 1 H. P. C. 460, 461.) Not to execute Warrants.] A watchman is not the officer of the justices to execute warrants ; and if a warrant be directed to him, he may refuse to execute it, and if he do execute it, he acts only as a private person, and has not the same protection as a constable under 24 Geo. 4. c. 44. No person can act as a peace-officer, with all the immunities and rights belonging to that office, unless he has been regularly sworn into the office ; and, therefore, a person employed by a parish as a patrol to preserve good order, and who has not been sworn into any legally recognized office, has no more authority than a private indi- vidual, not even that of a watchman, and cannot take or receive into his custody a person who has committed an assault, though as a private individual he may interfere to prevent a breach of the peace. (Clilie v. Littlemore, 5 Esp. Rep. 39.) 30G JURY LISTS. [Chap. XTTT. CHAPTER XIII.— JURY LISTS. It is not within the scope and object of this work to state move of the law respecting juries, than relates to the duties to he performed by certain parish and other local officers, in preparing and returning the lists from which juries are ultimately to be summoned. Warrants of Clerk of Peace.] The clerks of the peace in Enff- land and Wales shall, within the first week in July in every year, issue then* warrants to the high-constables, commanding them to issue their precepts to the churchwardens and overseers, requiring them to prepare, before the first day of September, lists of all men residing within their parishes and townships, liable to serve on juries. (6 Geo. 4. c. 60. s. 4.) Precept of Constable.] Every high constable shall, within four- teen days after the receipt of the wan'ant, issue his precept, with a competent number of printed fonns, to the churchwardens and m-er- seers of the poor, or the churchwardens alone where there are no other overseers, requiring them to prepare a list of all men residing within their parishes and townships, liable to serve as jurors, &c. And, where there shall be more than one high constable, the clerk of the peace shall issue his waiTant to every one of them, each of whom shall be hable for the perfomiance of the matters commanded in the warrant, throughout the whole district. And, where any parish or township shall extend into more than one hundred, or other like dis- trict, either in the same or different counties, it shall be taken for all the pui-poses of this act to be within that hundred, &c. in which the principal church shall be situate. (Id. s. 6.) Extra-parochial Places.] The justices of the peace of any divi- sion in England or Wales, at a special petty sessions to be holden for that pui-pose before the first day of July, in any year, may make an order for annexing any extra-parochial place to any parish or town- ship adjoining thereto, for the purposes of this act, and shall cause a copy thereof to be served on the churchwardens and overseers of such parish or township. (Id. s. 7.) Lists, by rvhom made.] The churchwardens and overseers, upon receiving the precept, ai"e required to make out a list of all men Chap. XIII.] JURY LISTS. 3f)7 liable to serve on juries, residing in the parish or township, and the extra-parochial place thereto annexed ; according to the fonn sent to them by the high-constable, which he receives from the clerk of the peace. (Id. s. 8.) The lists of men resident in each ward of the city of London, shall be made out by the parties who have been heretofore used to make out the same ; and the shop, warehouse, counting-house, cham- bers, or office, occupied by such person, shall, for the purpose of this act, be taken to be his place of abode. (Id. s. 50.) Lists on Church-doors.'] The churchwardens and overseers shall, on the three first Sundays in the month of September, fix a copy of the list upon the principal door of every public place of religious wor- ship within their parishes or townships, with a notice stating when and where objections to the list will be heard by the justices of the peace. And shall 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 or reward, that improper omissions or insertions may be corrected ; and they may cause a sufficient number of copies of the lists for these purposes, to be printed at the expense of their parishes or townships. (Id. s. 9.) Sessions for correcting Lists, ^c] The justices of the peace in every division shall hold a special petty sessions within the last seven days of September in every year, of which notice shall be given before the twentieth day of August next proceeding, to the high-con- stable, churchwardens, and overseers, at which the churchwardens, &c. shall produce the list of men liable to serve on juries within their parishes or townships, and shall answer upon oath such cpiestions respecting the same as shall be put to them by the justices then pre- sent ; and the justices may strike out 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, shall then sign the lists with their allowance, and the high constable shall receive every list so allowed, and deliver the same to the court of quarter sessions next holden for the county, or division, on the first day of its sitting, upon oath. (Id. s. 10.) Inspection of Tax-books.] The churchwardens, &c. shall, upon request made at a reasonable time between the first of July and the first of October in every year, to any officer having the custody of any duplicate or tax-qssessment for such parish or township, have free liberty to inspect the same, and make extracts, as may appear to them to be necessary or useful ; and every court of petty sessions and IH]S WEIGHTS AND MEASURES. [Chap. XIV. j ustice of the peace shall, upon the like request, have the like free liberty to inspect, &c. (Id. s. 11.) Any constable, churchwarden, or overseer, offending against the act by neglect of duty, or otherwise, may be fined, not more than ten pounds, nor less than forty shillings, at the discretion of the justice before whom he is convicted. (Id. ss. 44. 45.) CHAP. XIV.— WEIGHTS AND MEASURES. Section I. Standard Weights and Measures. II. False Weights and Measures. SECTION I. — STANDARD WEIGHTS AND MEASURES. Two Kinds of Weights. '\ There are two kinds of weights used in England, and both wan-antable ; the one by law, the other by cus- tom ; they are troy weight and avoirdupois. (Dalt c. 112.) Troy Weight.] Troy weight is by law, and thereby are weighed silk, gold, silver, pearl, and precious stones ; and hath twelve ounces to the pound. (lb.) Avoir dv poise. 1 We evidently derive this weight from the French, and the name imports, — to have full weight. By this are weighed all kinds of grocery wares, flesh, butter, cheese, wax, pitch, tallow, wool, hemp, iron, steel, lead, and all other commodities which bear the name of garbel, that is which are garbled, sifted, parted, and whereof issueth a refuse or waste. This hath sixteen ounces to the pound, and twelve pounds over are allowed to every hundred. (lb.) Divers Measures.'] Though measures, in point of fact, differ in different places, the law only recognizes the legal measure, and con- sequently a custom in a particular place to sell eighteen ounces to the pound is bad. But Lord Kenyon said, that he did not mean in deciding that question, that a custom to sell butter in lumps of any number of ounces was not good ; and BuUer J. added, that he had not seen any thing in the acts of parliament requiring persons not to sell more or less than a pound. But the question here is, whether, when a person is selling under the specific denomination of a pound, Sect. I.] STANDARD WF.IGHTS AND MEASURES. 369 he shall be compellable to sell more than a pound. (Noble v. Durrell, 3 T. R. 271 ; see Hockin v. Cooke, 4 T. R. 314, 6 T. R. 338.) Stafule Weights and Measures.} It has for centmies been an object with the legislature, to establish one uniform standard of weights and measures throughout the kingdom. The last statute on this subject, which repeals all the fonner ones, so far as they relate to the ascertaining or establishing any such standards, is the 5 Geo. 4. c. 74, which defines the standards of weights and measures by the originals in the custody of the clerk of the House of Commons, and prescribes the mode in which others shall be made in case those ori- ginals are lost, destroyed, or injured. Models for Counties, ^c] The act provides, that copies and models of the standard of length, weight, and measure, shall be made and verified, under the direction of the lords of the treasury, to be dej)osited m the office of the chamberlains of the Exchequer at West- minster, and verified copies thereof are to be sent to the Lord Mayor of London, the chief magistrate of Edinburgh and Dublin, and to such other persons and places as the lords of the treasury may direct. And the magistrates of every county, division, city, &c. in England, Ireland, and Scotland, shall, within six months after the passing of the act, purchase for their respective counties, &c. a verified model and copy of each of the aforesaid standards, to be placed by them, for custody and inspection, with such persons as they shall appoint, to be produced by such keepers thereof, upon reasonable notice, at such time and place, as any person by writing under his hand shall require, such person paying the reasonable charges of the same. (5 Geo. 4. c. 74. ss. 11, 12.) Expenses thereof, how paid.] The expenses of procuring such models and copies are to be paid out of the county rates in England, the assessments under grand jury presentments in Ireland, and of the land-tax in Scotland. (Id. s. 13.) Standard Gallon ascertained.] The act provides, that where refer- ence cannot readily be had to the standard, in disputes respecting the correctness of any measure of capacity, any magistrate, having juris- diction in the place, may ascertain the content of such measure by direct reference to the weight of pure or rain water, ^vhich such mea- sure is capable of containing ; ten pounds avoirdupois weight of such water, at the tem])erature of sixty-two degTces by I'ahrenheit's ther- mometer, being the standard-gallon ascertained by this act, the same being in bulk equal to two hundred and seventy-seven cubic inches, and two hundred and seventy-four one-thousandth parts of a cubic n 15 370 WEIGHTS AND MEASURES. [Chap. XIV. inch, and so in projiortion for all parts or multiples of a gallon. (Id. s. 14.) Existing Weighta may be used.] The 16th section enacts, that existmg weights and measures, established either by local custom, or founded on special agreement, may be used, provided that the ratio or proportion which they hear to the said standard weights and measures, is painted or marked upon them respectively ; but no new weights or measures are to be made, except in confoi-mity with the standard esta- blished by this act. (By 6 Geo. 4. c. 12, the act is to take effect from 1st January, 1826.) ^ SECTION II. FALSE WEIGHTS AND MEASURES. Examiners, by ivhom appointed.] The recent statute, 5 Geo. 4. c. 74. s. 2 1 , enacts, that the powers and regulations, m force under the pxior acts, for seizing and destroymg weights, balances, and measures, not confonnable to the standards, shall be apphed to this act. One of these acts, 37 Geo. 3. c. 143, directs that the justices, at their respective petty sessions, (instead of in their quarter sessions, as provided by 35 Geo. 3. c. 102,) may appoint one or more person or persons, as examiners of the weights and balances within their respective districts. Nominated by Inhabitants.] If the majority of the inhabitants of any parish, &c. shall be desirous that any person or persons should be specially appointed to examine the weights and balances within the parish, &c. the inhabitants, at a vestry holden for that purpose, may nominate one or more substantial householder or householders, to be approved of, and appointed by the justices at petty sessions, for the division or district in which the parish, &c. shall lie ; which person or persons so nominated, approved, and appointed, shall have the same powers and authorities within the parish, &.c. as ai'e vested m the person or persons ajjpointed for any district or place. (37 Geo. 3. c. 143. s. 4.) Standards to be Jirst procured.] But no such appointment shall be made until the inhabitants have procured the proper weights, according to the standard in the Exchequer, (as du'ected by 5 Geo. 4. c. 74,) for the use of the parish, &c. to be deposited in the custody of the person or persons so to be appointed; and the justices in the respec- tive petty sessions are authorized to order and direct the costs and charges of pr ocuring such weights, and the recompence and satisfaction to be allowed to such examiner or examiners, for his or their time and trouble in the execution of such ofBce withm the parish, &c. to be paid out of the poor's rates. (37 Geo. 3. c. 143. s. 5.) Sect. IT.] FALSE WEIGHTS AND MEASURES. 371 Seizing false Weights, (5fc.] Tlie person ov persons so appointcil are required, (having been first sworn, duly and faitlifuUy to exe- cute the office,) as often as the justices shall direct, in the day- time, to enter the shop, mill-house, outhouses, and other premises near such shop, &c. and into the stall or standing place of any person who sells by retail and weight any wares, provisions, goods, or chattels whatsoever ; and then and there to search for, view, and examine, all weights and balances in such shops, &c. and to seize any weight or weights not being according to the standard in the Exche- quer, or any false or unequal balance or balances which on any such search be found therein, and to detain the same to be produced before the justices in petty sessions aforesaid, upon the heaiing of the in- formation or informations after mentioned. (Id. s. 2.) Penalty for false Weights, ^c] The person in whose shop, &c. any such defective weight or weights, or any false or unequal balance or balances shall be found, (against whom for such offence or offences an information or informations is and are hereby directed to be pre- ferred,) shall, upon conviction thereof, in petty sessions as aforesaid, upon view or confession, or on the oath of one or more credible wit- ness or witnesses, forfeit and pay for eveiy such offence any sum not exceeding 20s. nor less than 5.9. as the justices shall order and adjudge, together with the costs and charges attending the conviction ; such for- feiture, together with the costs and charges to be levied by warrant, under the hands and seals of the said justices, by distress and sale of so much of the goods and chattels of the offender, as shall be sufficient to pay the penalty and the expenses of the distress. (Id. s. 2.) False Weights to be broken.] On the conviction of the offender, the justice shall cause such defective weights, or false or unequal balances, to be forthwith broken and rendered useless, and the mate- rials thereof to be sold, and the money arising from the sale, together with the amount of the forfeiture or forfeitures, to be paid to the trea- surer of the county, riding, or division, towards carrying the acts into execution, and the residue, if any, on account of the public stock of the county. (Id. s. 3.) Obstructing Examiners.} " If any person shall wilfully obstruct, hinder, resist, or in any wise oppose, such examiners, to view and ex- amine such weights and balances in the due execution of their office ; or if any person, selling or retailing by weight, shall refuse to produce his weights and balances to be examined, he shall forfeit for every offence, on being duly convicted on oath before any one or more jus- tices of the peace, any sum not exceeding forty shillings, nor less D B 2 372 WEIGHTS AND MEASURES. [Chap. XIV than five sliillings, as the convicting justice or justices shall adjudge, to be levied and applied as before directed." (35 Geo. 3. c. 102. s. 3.) False Measures.] The 56 Geo. 3. c. 43, makes similar provisions with regard to the examination and seizure of false measures, and gives the inhabitants in vestiy power to nonninate five or more ex- aminers, to be approved by the justices, and inflicts a penalty not exceeding £o, nor less than 40s., upon those who obstruct them, or refuse to produce their raeasui'es to be examined. This act also au- thorizes justices to commit persons, convicted of having false ur deficient measures, to prison for any time not exceeding a month, unless the penalties, &c., be sooner paid. Limitation of Proceedings.] It is pro\ided that no offence against the acts shall be prosecuted, unless information on oath be given within one month after the offence committed, and that pei'sons con- victed shall not be otherwise punished by virtue of any other law. Nor shall the proceedings be removed by certiorari or otherwise. (35 Geo. 3. c. 102; 37 Geo. 3. c. 143.) And the 5 Geo, 4. c. 74. s. 24, enacts, that nothing in that act contained, shall extend to repeal 31 Geo. 2. c. 17, which empowers the dean and high steward of Westminster, &c., to appoint a proper officer to size and seal weights and measures, to be used within the said city and liberties. And the authority of persons appointed at any court leet of any hxmdred or manor, for examming, seizing, and breaking false weights or balances, is preseiTed. (35 Geo. 3. c. 102. s. 6.) Districts intended by the Acts.] The 37 Geo. 3. c. 143, in direct- ing examiners to be appointed for the districts, divisions, and other places of the several counties of England, must be consti-ued to mean the divisions and districts known and recognized at the time the act passed. And therefore such appointment made by two justices at a petty sessions for a district which they had, without the consent of the other magistrates, created within the last five or six years, was held to be illegal. And a rule nisi for a mandamus to the justices of the county, to allow a compensation out of the county rate, to an examiner of weights and measures so illegally appomted, was discharged with costs. (Rex V. Justices of Devon, 1 Bam. & Aid. 588.) Sect. I.] TllliATKEfc;, MUSIC-ROOMS, &.C. 373 CHAPTER XV.— DISORDERLY HOUSES. Section I. Theatres, Music-Rooms, ^c. II. Gaming-Houses, S$c. section I. THEATRES, MUSIC-ROOMS, &C. The several Kinds.^ Disorderly houses are of tliree kinds : viz. liouses kept for music, dancing, or dramatic exhibitions, without being dulyUcensed — gaming-houses — and bawdy-houses. They are all nui- sances in the eye of the law; and although, perhaps, those of the first class are not essentially detrimental to the public welfare, yet it cannot be doubted, that the others have a most pernicious effect upon the public morals, by promoting dissij^ation, corrupt practices, and open profligacy among the people. License to Theatres, ^fc] To prevent the evils likely to result from the establishment of places of this description, for the resort of all sorts of persons at all hours, under such regulations only as the cupidity and avarice of the proprietors might suggest, the theatres, or other places of public entertainment, in and about the metropolis, not sanctioned by letters patent, the license of the crown, or the lord chamberlain, are placed under the immediate controul of the local magistracy; and they cannot be opened without their license. The words of the act are as follows : — • " Which said license shall be granted at the last preceduig Michaehnas sessions, and shall be signed and sealed by four justices in open court, and afterwards be publicly read by the clerk of the peace, with the names of the justices subscribing the same ; and no such license sliall be granted at any adjourned sessions, nor shall any fee be taken for the same. And there shall be affixed and kept up, in some notorious place, ill large capital letters over the door or entrance of every such licensed liouse or place, ' Licensed pursuant to Act of Parliament of the Twenty-fifth of King George the Second,' and it shall not be opened for such purposes before five in the afternoon. And the affixing and keeping up such inscription, and the said limitation in point of time shall be inserted in, and made conditions of, such license; and, in case of a breach of either of the said conditions, the license 374 DISORDERLY HOUSES. [Chap. XV. shall be forfeited and revoked by the justices at the next sessions, and shall not be renewed, nor shall any new license be gi'anted." (25 Geo. 2. c. 36. s. 3, made perpetual by 28 Geo. 2. c. 19. s. 1.) Unlicensed Dancing-Rooms, ^c] " Any house, room, garden, or other place kept for public dancing, music, or other public entertain- ment of the like kind, in London and Westminster, or within twenty miles thereof, without hcense from the last preceding Michaelmas quarter sessions, under the hands and seals of four or more justices there assembled, (except the theatres of Drury Lane, Covent Garden, and Hay-Market, and other entertainments exercised by letters patent, or license of the crown, or of the lord chamberlain, s. 4,) shall be deemed a disorderly house or place, and the keeper thereof shall for- feit £100, with full costs to him who shall sue, (in six months,) in any of the courts at Westminster, and be othenvise punishable as in cases of disorderly houses. And it shall be lawful for any constable, or other person, being authorized by wan'ant under the hand and seal of one justice, to enter such house or place, and to seize every person found therein, that they may be dealt with according to law. (Id. s. 2.) What within the Statute.] In the first class of disorderly houses is comprised, houses or rooms where persons of both sexes meet for the purpose of dancing, upon paying for their admission. The act of Parliament was made to regulate all places of public resort ; and such places, if not properly regulated, may become the resort of the vicious of both sexes. (Clarke v. Searle, 1 Esp. R. 25.) It is not necessary, in order to subject a party to the penalty, that he should take money for admission ; and therefore, where a publican allowed his house to be used in this way every JNIonday evening, and the sums paid for admission were for the iise of a person who, it ap- peared, jirofessed to tt^ch dancing, the publican was held hable to the penalty-v (Archer v. Willing-rice, 4 Esp. R. 186.) But a room kept by a dancing master for the instruction of his scholars and subscribers, and to which persons are not indiscriminately admitted, is not ^vithui the act. (Bellis v. Burghall, 2 Esp. R. 722.) Nor will the mere temporary use of a room in a public-house, for the purj^ose of dancing on a particular festival or occasion, subject the ow7ier to the penalty. (Shutt V. Lewis, 5 Esp. R. 128.) But a room in which musical perfonnances are regularly exhibited, though it is not kept or used solely for that pm-pose, is within the statute, and requires a license. (Bellis V. Beal, 2 Esp. R. 592; see also Gallini v. Laborie, 5 T. R. 242; Rex v. Handy, 6 T. R. 286.) Sect. 11.] (JAMING-HOUSES, &C. 375 SECTION II. GAMING-HOUSES, &C. Gamiiig-Houses.'] The keeping of a common gaming-house is an offence at common law, as a public nuisance. (Rex v. Dixon, 10 Mod. 336.) The statute provides more certain means for abating the evil. (See Rex v. Rogier, 1 Barn. & Cres. 272 ; 2 Dowl. & Ryl. 431.) And it has been adjudged, that a, feme covert may be in- dicted for this offence. (1 Russ. 299.) An indictment against a defendant, lor that he did keep a common, ill-governed, and disorderly house, and in the said house, for his lucre, &:c., certain persons of ill name, &c., to frequent and come together, did cause and procure, and the said persons in the said house, to remain, fighting of cocks, boxing, playing at cards, and misbehaving themselves, did permit, has been held good. (Rex v. Higginson, 2 Burr. 1233.) It is not necessary to prove who frequents the house ; but if any persons are proved to be there behaving disorderly, it is sufficient. (1 Russ. 302.) Bawdy-Houses.] It is fully agi'eed, that keeping a bawdy-house is a common nuisance. (1 Russ. 299.) And if a lodger, who has only a single room, will therewith accommodate lewd people for such purposes, she may be ifidicted for keeping. a hawdy-house, as well as if she had the whole house. (Rex v. Pierson, 1 Salk. 382.) A wife may be indicted with her husband for this offence, it being in its nature joint and several. (Rex v. Williams, id. 384.) Any number of persons may be included in the same indictment for keeping different disorderly houses, stating, that they severally kept, &c. (Rex v. Kingston and others, 8 East, 47, 2 Hale, 174.) Constable to prosecute-l To facilitate the suppression of these nuisances, the fifth section of the same act provides, that if any two inhabitants of any parish or place, paying scot and lot, give notice in writing to the constable, or other peace officer of the place, of any j)erson keeping a bawdy-house, gaming-house, or other tUsorderly house therein, he shall go with them to a justice of that jurisdiction; and on their making oath before him that they believe the contents of the notice to be true, and entering into a recognizance in the penal sum of £20 each, to give or produce material evidence of the offence, the constable shall enter into a recognizance in £30, to prosecute such offender at the next general or quarter sessions of the peace, or next assizes for the county in which the parish lies, as to the justice shall seem meet. And such constable shall be allowed the reasonable 370 DISORDERLY HOUSES. [CLap. XV. expenses of such prosecution, as shall he ascertained by two justices of the jurisdiction where the offence was committed, to be paid by the overseers ; and, in case such person is comicted, the overseers shall pay £10 each to such inhabitants, or forfeit double the sum to the pai'ty grieved. Notice to the Overseers.] " A copy of the above notice shall also be served on the overseers, or one of them, who shall be summoned, or have reasonable notice, to attend before the justice, before whom the constable has notice to attend ; and if the overseers then and there enter into such recognizance to prosecute, the constable shall not be required to do so ; but if they do not attend, or attendmg refuse, the constable must enter into the recognizance as above, (58 Geo. 3. c. 70. s. 7,) or failing therein, or being wilfully negligent in the prose- cution, shall forfeit £20 to each of such inhabitants." (25 Geo. 2. c. 36. s. 7.) " When the recognizance to prosecute has been entered into, the justice shall make out his warrant to bring the accused before him, whom he shall bind over to appear at the sessions or assizes, there to answer such indictment as may be found against him, and may take security for such person's good behaviour in the mean time." (25 Geo. 2. c. 36. s. 6.) Apparent Proprietor responsible.] " Any person, who appears to act as master or mistress, or manager, of any such disorderly house, shall be liable, though not the real owner. (Id. s. 8.) And indict- ments shall not be removed by certiorari, unless the court, on cause shown, shall adjourn the same. (Id. s. 10.) But no action shall be brought by virtue of this act, unless commenced within six calendar months after offence committed." (Id. s. 14.) Recovery of Reward.] In an action founded upon the above sta- tute, by one of two inhabitants, who had given information to the parish constable, of A. B. keeping a bawdy-house, in consequence whereof A. B. was prosecuted to conviction, it being necessary, in order to entitle the plaintiff to recover the reward of £10 from the overseers, that the prosecution should have been conducted by the parish constable ; and therefore, where the two inhabitants had conducted it, the court held that they were not entitled to the reward ; and that a demand upon the overseer, stating the prosecution to have been so earned on, was insufficient to entitle them to an action for the double penalty, given by the act, in case of a neglect or refusal by the overseer to pay such sum of £10 on demand. (Clarke v. Rice, 1 Baxn. & Aid. 694.) Sect I.] ( LAbSlFlCATlON OF VAGRANTS. 377 CHAPTER XVI.— VAGRANTS. Section I, Classification of Vac/rants. II. Apprehension and Conviction. SECTION I. CLASSIFICATION OF VAGRANTS. Their Classes.'] The legislature, in providing for the security of the public against profligate and dissolute jiersons, who have no visible or honest means of subsistence, have divided them into three classes : 1st. Idle and disorderly persons; 2dly, Rogues and vagabonds; and, lastly. Incorrigible rogues. The degrees of punishment follow the degrees of turpitude in the same order ; and tlie statute which repealed all the former acts on this subject, the 5 Geo. 4. c. 83, has defined the individuals who belong to each of the classes respectively Idle and disorderly Persons.'] Within this denomination are comprehended : Every person who, being able wholly or in part to maintam himself or herself or family, refuses and neglects so to do, by which he or she, or any of the family which he or she is bound in law to maintain, shall become chargeable as poor. Any person re- turning to and becoming chargeable in any parish, township, or place from which he has been legally removed, without a certificate from some other parish, &;c., acknowledging him to be settled there : Every petty chapman or pedlar wandering abroad and trading without a license or other legal authority : Every common prostitute wander- ing in the pubhc streets or highways or any place of public resort, and behaving in a riotous or indecent manner : Every person wan- dering abroad or placing him or herself in any public place to beg or gather alms, or causing or encouraging any child so to do. Punishment.] The offender, being convicted before any justice, upon his own view, or on the oath of one or more credible witnesses, or the offender's confession, to be imprisoned and kept at hard labour for not more than one calendar month, (s. 3.) Ror/ues and Vagabonds.] Within this class are included every ])erson guilty of the foregoing offences, after a conviction of the same : every person prctendhig to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive or impose 378 VAGRANTS. [Chap. XVI. upon others ; or wandering abroad and lodging in any bani, outhouse, deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any \dsible means of subsist- ence, and not giving a good account of him or herself: Every per- son wilfully exposing to view, in any public place, any obscene piint, picture, or other indecent exhibition ; or wilfully, openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female ; or wandeiing abroad, and endeavour- ing by the exposure of wounds or deformities to obtain or gather alms ; or endeavouring to procure charitable contributions of any kind under any false or fraudulent pretence : Every person running away, and leaving his wife, or his or her child or children chargeable, or which shall become chargeable, to any parish, township, or place : Every person playing or betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance : Every person having in his or her custody or possession any picklock key, crow, jack, bit, or other implement, witli intent feloniously to break into any dwelling-house, warehouse, coachhouse, stable, or out-building, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument with intent to commit any felonious act ; or being found in or upon any dwelling-house, w^are- liouse, coachhouse, stable, or outhouse, or in any inclosed yai'd, garden, or area, for any unlawful purpose : Every suspected person or reputed thief, frequenting any river, canal, navigable stream, dock, basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony: Every person ap- prehended as an idle and disorderly person, violently resisting any constable or other peace-officer so apprehending him or her, and being subsequently convicted of the oifence for which he or she shall have been so apprehended. Punishnent.~\ Oflenders of this description are pimishable by im- prisonment and hard labour, for any time not exceeding three months, and forfeiture of the offensive weapons, or other instrument so found upon the offenders, (s. 4.) Incorrigible Rogues.] These are: persons breaking or escaping out of any place of legal confinement, before the expiration of the tenn for which they have been connnitted, or ordered to be confined under this act : Every person committing any olieuce against this Sect. II.] APPREHENSION AND CONVICTION. 379 act, which shall subject him or her to be dealt with as a rogue and vagabond, such person having been at some former time adjudged so to be, and duly convicted thereof: Every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace-officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so ap- j)rehended. Punishment.] Such offenders, ujion conviction as aforesaid, may be connnitted and kept to hard labour till the next general or quarter sessions of the peace, (s. 5,) who may order a further imprisonment, with hard labour, for not exceeding one year, with whipping, except females, according to their discretion, (s. 10.) SECTION II. — APPREHENSION AND CONVICTION. Who may apprehend them.] Any person may apprehend an ollender against this act, and take him before a justice, or deUver him to a constable or peace officer of the place. And if a peace officer refuse or wilfully neglect to take him into custody and carry him be- fore a justice, or use not his best endeavours to apprehend and carry before a justice, any person that he shall find offending against this act, he shall be liable to a penalty not exceeding £ 5, to be levied, if necessary, upon his goods and chattels, (ss. 6& 11.) And com- j)lainants shall be reimbursed their expenses out of such penalties, (s. 12.) Their Property seized.] Persons apprehended and adjudged offenders imder this act, may be searched, their money taken from ihem, and theu- bundles, packages, &c., shall be inspected before a magistrate, and any horse, mule, ass, cart, caravan, or other vehicle, or goods or effects found in their possession, may be sold, if necessary, to defray tlie expenses of apprehending and maintaining them during commitment, and the suiplus, if any, shall be returned to them. (5 Geo. 4. c. 83. s. 8.) Recognizance to Prosecute.] Justices may bind persons by recog- nizance to prosecute vagrants at sessions, who shall, with the neces- sary witnesses, be reimbursed their expenses, upon application to the justices in sessions; and if such persons refuse to become so bound, the magistrate may commit them to the county gaol. (Id. s. 9.) Searching Lodging -Houses.] Upon oath being made befoi'e any justice, that any rogue, vagabond, &,c. (described in this acl) is sus- pected to be harboured in any lodging-house, such justice may grant 380 VAGRAKTS. [Chap. XVI. a warrant to search the same at any time, and bring before him any sucli ollender found therehi. (Id. s. 13.) Appeal.] Section 14 gives an appeal to the sessions to all persons aggrieved by any thing done under the act, upon notice being given, and recognizances and sufficient sureties being entered into, to try the appeal ; and the parties in the mean time are to be discharged out of custody. (Id. s. 14.) Offenders deemed Paupers.] Offenders convicted under this act as vagabonds, &c., shall be deemed chargeable to the parish in which they reside, and shall be liable to be removed to the place of their last legal settlement, by order of two justices. (Id. s. 20.) Commitment upon Conviction.] The warrant of commitment ought to show that the person convicting had authoiity to convict : " the not showing before whom they were convicted is a gross de- fect," (per Ld. Mansfield), and the defendants were therefore dis- charged. (Rex. V. York, and another, 5 Buit. 2684.) The commit- ment (see the corresponding words of 17 Geo. 2. c. 5.) must be for a definite time, which must be specified in the waiTant. (Baldwin v. Blackmore, 1 Buit. 596.) And if it be for deserting a family, the warrant must state that they were chargeable, (R. v. Hall, 3 Burr. 1636 ;) it must also state that the defendant had been convicted, and not merely that he had been charged with the offence. (R. v. Rhodes, 4 T. R. 220 ; R. v. Hooper, 6 T. R. 225.) Upon the same principle, where an offender was committed for having upon him picklock keys, and other implements, with an intent feloniously to break into a dwelling house at Wantey, and objection was taken that the commitment did not state that he had those im- plements upon him ivheu he was apprehended ; Ld. Kenyon, C. J. said, "I yield with gi'eat reluctance to the objection, but I am afraid it is well founded," and the prisoner was discharged. (R. v. Brown, 8 T. R. 26.) The present lordchancellor, when attorney general, gave his ojjinion that a person convicted of any offence under this new vagrant act, which subjects him to be dealt with as a rogue and vagabond, and who has also been convicted as a rogue and vagabond under any former act, is by the statute 5 Geo. 4. c. 83, to be deemed an incorrigible rogue, and subject to be punished as such. (See 5 Bum's Justice, 560.) To what Place committed.] The commitment in all these cases, for the oflence of vagi-ancy, must be to houses of correction, and not to connnon gaols. (See 4 Geo. 4. c. 64. s. 7.) Vagrant Children.] By the 17 Geo. 2. c. 5. s. 24, it was enacted. Sect. II.] APPREHENSION AND CONVICTION. 381 that if the child of any vagrant, above the age of seven years, shall be committed to the house of coirection, the justices in sessions, if they saw convenient, at any time before such child should be discharged, might order such child to be placed out as a ser\'ant or apprentice to any person who was willing to take such child, till such child should be of the age of twenty -one years, or for a less time ; and if any offender who was found wandering with such child, should be again found with the same child, which was so placed out, he should be deemed an incon-igible rogue. But no similar clause, since the repeal of the laws relating to vagrants, by 3 Geo. 4. c 40, was introduced by that statute (now expired,) or in the existing vagrant act, 5 Geo. 4. c. 83. Vagrants as Soldiers.'] Persons committing act» of vagi'ancy under pretence of being soldiers, but not being really such, arc subject to be punished as vagrants. But soldiers in a state of vagi'ancy from accident or necessity, and their wives, are relieved against the provisions of the vagi'ant acts by the annual mutiny acts. By 43 Geo. 3. c. 61, soldiers, sailors, mariners, and tlie wives of soldiers, who, not being permitted to embark with their husbands, have to return to their homes or respective settlements, from the place of embarkation, and who ask alms, &c., upon the road, are declared free and exempt from the pains and penalties of vagranc}^ upon ob- taining a certificate from a neighbouring magistrate, stating the route and destination, and time allowed for the journey, upon which the person shall be entitled to ask relief upon her progress. Certificate to ask Alms.'} Justices and visitors of prisons, and houses of correction, are not to be restrained by this act from giving certificates to prisoners about to be discharged, to enable them to have or receive alms or relief on their way to their place of settlement. But if such persons act contrary to the provisions of such certificate, or loiter or deviate from their route, they shall be deemed rogues and vagabonds, within the provisions of the act. (5 Geo. 4. c. 83. s. 15.) Actions, Costs, S^c] The act also provides, that actions against magistrates, constables, or other persons, for any thing done in pur- suance of this act, shall be commenced within three months, and not afterwards, and that such defendants may j^lcad the general issue, and give the special matter in evidence, and that if they obtain the verdict they shall have treble costs, unless the judge certify there was reason- able cause for such action, (ss. 18, 19.) Fhrm of Convict ion.] The 17th section provides, that proceedings under the act shall not be cpiaslicd for want of form ; that justices shall transmit their convictions to the next general or (piarter sessions; 382 CHURCH RATE. [Chap. XVII. ami thai copies certified hy the clerk of the peace shall be evidence. It also provides, that convictions under the act shall be in the form, or to the elFect following, or as near thereto as circumstances will pennit. "i Be it remembered, that on the day of in ^ ' 5 the year of our Lord at in the county of A. B. is convicted before me, C. D., one of his majesty's justices of the peace, in and for the said county of being an idle and disorderly pej'son, [or a rogue and vagabond, or an inconigible rogue] within the intent and meaning of the statute made in the fifth veai- of the reign of his majesty king George the fourth, entituled, An act [here insert the title of this act] that is to say, for that the said A. B. on the day of at in the said county [here state the ofieuce proved before the magistrate] and for which said offence the said A. B. is ordered to be committed to the house of cor- rection at there to be kept to hai-d labour for the space of [or until the next general or quarter sessions] Given under my hand and seal, the day, year, and at the place first above written. CHAPTER XVII.— CHURCH RATE. Rate by whom 7nade.] Rates for the reparation of the church are to be made by the churchwai'dens, together with the parishioners assembled, upon public notice given in the church. The specific purpose of the meeting should be stated m the notice. (58 Geo. 3. c. 69. See tit. Vestry.) The major part of them that appear at the meeting shall bind the parish, or, if none appear, the churchwardens alone may make the rate, because they, and not the painshioners, are to be cited and punished for defect of repairs. And if a rate be illegally imposed by a commission from the bishop, which he has no authority to direct, (Gibs. 196, 1 Bac. Abr. 373,) or otherwise, without the parishioners' consent, yet if it be afterwards assented to, and confinned by the major part of the parishioners, that will make it good. (Wats. c. 39.) Chap. XVII.] CHURCH RATE. 383 Mandamus to make a Rate.] The Court of King's Bench will not grant a mandamus to churchwardens to compel them to make a church rate, it heing a subject purely of ecclesiastical jurisdiction. (Rex V. Thetford, 5 T. R. 361.) Yet it lies to the churchwardens of two united parishes, under stat. 10. Ann, c. 11, to assemble a meeting jiursuant to s. 24, for the purpose of ascertaining and agi'ee- ing whether it he fit that a rate should be made. (Rex. v. St. John & St. Margaret, 4 Mau. & Sel. 250.) Rate when to be made.] The rate should be made before the ex- pense is incurred, because the propriety and extent of the repairs should be determined before they are undertaken. And no church rate can be legally made for the reimbursement of a churchwarden, because that would be to shift the burthen from the parishioners at the time, to future parishioners. (R. v. Chapelwardens of Bradford, 12 East, 556; Dawson v. Wilkinson, Rep. temp. Hardw. 381, An- drews, R. 11.^ And the circumstance of the repairs being authorized by a vestry meeting, does not absolve churchwardens from the con- sequences of neglecting to make a prospective rate to discharge the expense ; and although where the parishioners who attended such vestry signed the resolutions for the repairs, it was held, that would not make them individually liable, as they merely acted in their character of vestryinen, without any intention to render them- selves personally liable, or separately from the rest of the paiishioners. (Lanchester v. Tricker, 1 Bing. 201, 8 Moore, 20.) And although one who attended, and signed afterwards, directed the mode in which certain parts of the repairs should be eifected, this was held not sufficient to imply a contract by him. (Lanchester v. Frewer, 9 Moore, 688, 2 Bing. 361.) And a bill filed by the churchwarden, praying that an ac- count might be taken of all sums paid by him, and to which he had be- come liable for the repairs, and that a vestry niight be called to make a rate for the payment thereof, was dismissed with costs ; because it was not a prospective rate, and a court of equity will not decree a rate to be made to reunburse a former churchwarden monies laid out, whilst in office, in pursuance of a vestry order. (Lanchester v. Tricker & Ors. 5 Madd. R. 4.) And although the spiritual court may compel a church rate for the purpose of repair, it must follow the law, and cannot compel a rate for reimbursement. (Id. 12.) Rates a personal Charge.] These levies arc not chargeable upon the realty, but upon the person in respect of the realty; in some places therefore the rate will be assessed upon the amount of the land, and in others, as in cities and large towns, upon the houses, where of course there is no land which can be specifically so charged. 384 CHURCH RATE. [Chap. XVII. (DeggcvP. l,c. 12, Lutvv. 1019, Hetl. 130.) And the assessment must be estimated according to the value of the rent. (Lindw. 256.) llliether separate Rate for Ornaments.] In some of the earHer authorities it is contended, that a separate rate must be made for the ornaments of the church, and that it is purely a personal charge, not referable to the land occupied, (2 Rolls. Abr. 291,) and that there- fore persons having land in the parish, but residing out of it, are not liable to contribute to\vards the ornaments of the church. (Lindw, 255, Gibs, 196.) But Sir Simon Degge says, that the foreigner who holds lands in the parish, is as much obliged to pay towards the bells, seats, and ornaments, as to the repair of the church. And he hath seen (he sa^-s) a repoit under the hand of Mr. Latch, that it was resolved in MillymoVs case, H. 6. Ja., and in Chester's case in the 10 Ja. tliat a foreigner that held lands in another parish wherein he did not reside, was as much chargeable to the ancient ornaments of the church, as bells, seats, and the like, as those that lived in the parish, but that such landholders could not be charged to new bells, organs, or such like. (Degge p. 1, c. 12; and see 1 Bulstr. 20, to the like effect.) Lands and Houses equally rated.] No custom by which the rate is sought to be fixed upon lands only, and not upon houses, or upon particular kinds of lands, to the exemption of other kinds, can be good, for by the law all lands and houses are to be equally rated. (Hetl. 130; Latch, 203.) To this rule there is one exception, viz. possessions, faiins, or rents, which are of the glebe or endowment of the churches to be repaired; (Lindw. 255 ;) but if there be lauds, &c., within the parish, belonging to another church, it seems they are not exempt. (lb.) Not chargeable for Land in other Parish.] But a person cannot be charged in the parish where he inhabiteth, for land which he hath in another parish, to the reparation of that church where he inha- biteth, for then he might be twice charged, for he may be charged for this in the parish where the land lieth. (2 Roll's Abr. 289.) And therefore the rate shall be laid upon all lands within the parish, although the occupiers inhabit in another parish, which point was first fully settled in Jeffrey's case, (5 Co. 66,) when it was also resolved (pursuant to the opinion of divers civilians, under theh hands,) that such occupation of land maketh the person occupying a parish- ioner, and entitles hun to come to the assemblies of the same parish, when they meet together for such pui^poses : and it was said that if such lands were not liable to be rated, a person who inhabiteth in one palish might occup}' the greatest part of the lands in another parish. Chap. XVII.] CHURCH RATE. 385 ami so clmrclies might come to ruin. And, ahhough seven years after this, in the case of Paget and Crumpton, (Cro. Ehz. 659,) a prohibition was obtained upon a sumiise that the person rated Uved not in the parish ; yet, upon sight of this precedent, Popham, Chief Justice, changed his opinion, and it was resolved by him, and the whole court, that a consultation should be granted ; and now, Lord Coke says, this is generally allowed and received for law. (Gibs. 196.) Residence or Occupancy.'] In Woodward v. Makepeace, (1 Salk. 164,) it was resolved that the plainti.T was an inhabitant where he occupied the land, as well as where he personally resided. Secondly, that although he doth not personally live in the parish, yet, by having lands in his hands, he is taxable : and whereas it was pre- tended that the bells, for the I'ecasting of which the rate was imposed which he had refused to pay, were but ornaments. Holt, Chief Justice, said, " if he be an inhabitant as to the church, which is confessed, how can he not be an inhabitant as to the ornaments of the church ?" Tenant, not Owner, chargeable.'] Where such lands are in farm, the tenant shall pay. For (as it was determined in Jeffrey's case, before cited,) there is an inhabitant and parishioner, who may be charged, and the receipt of the rent doth not make the lessor a parishioner. And so it was resolved in Anonymous. (4 Mod. 148.) Patron, ^c. exempt.] It is said that the patron of a church, as in right of the founder, may prescribe that in respect of the foundation he and his tenants have been freed from the charge of repairing the church. (Degge. P. I.e. 12.) Rector, ^c. exempt.] The rectory, or vicarage, which is derived out of it, are not chai-geable to the repair of the body of the church, steeple, public chapels, or ornaments ; being at the whole charge of repairing the chancel. (Degge, P. 1. c. 12.) But an impropriator of a rectory or parsonage, though bound to repair the chancel, must contribute to the reparations of the church, in case he hath lands in the paiish which are not parcel of the rectory. (Gibs. 197.) How far Chapelry exempt] The inhabitants of a precinct having a parochial chapel which they repair, are nevertheless of common right contributory to the repairs of the mother church. If they have seats in the mother church, to go thither when they please, or receive sacraments, or sacramentals, or marry, christen, or bury at it, there can be no pretence for a discharge. Nor can any thing support that plea, but that they have time out of mind been discharged, (which also is doubted, whether it he of itself a full dis- charge,) or that, in consideration thereof, they have paid so much to c c 386 CHURCH RATE. [Chap XVII. the repairs of the church, or the wall of the churchyard, or the keep- ing of a hell, or the like compositions, which are clearly a discharge. (Gibs. 197, 1 Burn. Ec. L. 383.) Hall of a Company. 1 The hall of a company being rated to the repairs of a church, the sj)iritual court may proceed against the master and wardens of such company for non-paynient. For the spiritual court hath no other process than by citation, which cannot be executed upon an aggregate corijoration, and therefore the officers of the coi-poration are to he cited, to whom it belongs to pay the tax ; and the rate paid by them is to be allowed in their accounts. (Thurs- field V. .lones ; Sir T. Jones, R. 187.) Slall in a Market.] If a petty chapman take a standing for rent to be paid by him, in the waste of the manor ^\-ithin the market, for two or three hours every market day, to sell his commodities, the market being holden there one day every week, but he inhabiteth in another jDarish, he may not be rated to the reparation of the church for this standing. (2 Roll's Ahr. 289.) Rule of Assessment.] A taxation by the pound rate is the most equitable way, and not accorthng to the quantity of the land. (Wood's Inst. b. 1. c. 7.) The assessors are not to tax themselves, but to leave the taxation of them to the residue of the parish. (Godb. Appendix, 10, 11.) Customs to be observed.] If a parish consist of several viUs, and there is a custom to levy the rate in certain proportions, they must pursue it ; for such a custom may be, or may have been, m its commencement, reasonable. (Burton v. Wileday, Andi'ews, 32.) Appeal to Ecclesiastical Judge.] If any person find hunself aggi'ieved at the inequahty of any such assessment, liis appeal is to the ecclesiastical judge, who is to see right done. (Degge, P. 1. c. 12.) Enforcing Payment.] Parishioners refusing to pay theh rates, being demanded by the churchwardens, they are to be sued for in the ecclesiastical courts, and not elsewhere. (Degge, P. I.e. 12.) For the cognizance of rates made for the reparation of churches and churchyai'ds, in consequence of the 1 3 Ed. 1 , belongs to the spiritual court. (Paget v. Criunpton, Cro. Eliz. 659.) Where Custom pleaded.] If a suit is instituted in the ecclesiastical court for a church rate, and a custom pleaded of a certain sum, or of something done in the room of it, and that plea is admitted, they may proceed to try that custom in the same manner as a modus ; but if the custom is denied, it will he a proper ground for a prohibition; for the trying of the custom is the province of the comuion law. (1 Atkyns. 289.) So if the party assessed aver that the land for Cliaj). XVII.] ciiuRcn rate. 387 which he is assessed lies in another parish, and not in the parish where it is assessed, he may have a prohibition, and try it at common law. (Degge, P. 1. c. 12.) Subtraction of Church Rate.] In a suit instituted by church- wardens for subtraction of church rate, (that is, a refusal to pay the sum to which the pai'ty has been assessed,) the ecclesiastical court will not, at the prayer of the defendant, issue a monition to the party imposing the rate, for the production of parish books, which are not shown to apply immediately to the question in issue : and if, on the merits, the rate be pronounced fur, the court will condemn the de- fendant in costs, for they are almost universally so decreed in suits for church rates, where the rate is confirmed. (Goodall & Gray v. Whitmore & Fenn, 2 Hagg. Rep. N. S. 369.) Justices' .Authority herein.] By statutes 53 Geo. 3. c. 127. s. 7, for England, and 54 Geo. 3. c. 68. s. 7, for Ireland, when any person rated to church or chapel-rate, (the validity of which has not been questioned in any ecclesiastical court,) refuses payment, any justice of the county, city, &c., on complaint of the churchwardens, may convene, by warrant, such person before two or more justices, and examine, on oath, into the meiits of the compUunt, and may order, under their hands and seals, payment of any sum so due, not exceed- ing £10, besides costs, to be recovered, if payment is not made, by distress and sale of the goods of the offender, his executors or admi- nistrators, under the warrant of any one of such justices. Appeal to Sessions.] An appeal is allowed to the next quarter sessions for the county, &c. wherein the church, &c. for which the rate was made is situate ; and if the justices present, or a majority, affirm the judgment, it shall be decreed by order of session, with costs to be le\Tied by distress and sale of appellant's goods. Provided that when such appeal is made as above, no distress warrant shall be granted till after its d; teiinination. Ecclesiastical Jurisdiction saved.] Provided that nothing herein shall alter the jurisdiction of ecclesiastical courts to hear and deter- mine causes, touching the validity of any such chiu'ch or chapel-rate, or from enforcing payment thereof, if exceeding £10, from the party proceeded against. If the validity of such rate, or hability of the person from whom it is demanded, be disputed, and the party give notice thereof to the justices, they shall forbear giving judgment thereon, and the persons demanding the same ma^- proceed to reco- very of their demand by due course of law as before accustomed. But nothing herein shall affect pariiamcntary regulations respect- ing church or chapel rates of any particular parishes or districts. c c 2 38S CHURCH RATE. [Chap. XVII. Dis/ress wade out of District.] And by 54 Geo. 3. c. 170. s. 12, the goods and chattels of any person neglecting to pay any sum leo^ally assessed on him for any poor rate, church cess, or highway cess of any district, parish, &c. for seven days, after demand made, may he distrained, not only within the parish, district, &c. in which it is made, but also within any other district, parish, &c. within tlie same county or jurisdiction ; and if sufficient distress cannot be found within such county, &c., then, on oath thereof made before any justice of the peace of any other county, &c. m which any of the goods of such person shall be found ; which oath such justice shall certify by indorsing his name on the waiTant granted to make such distress, such goods, &:c. shall be liable to such distress and sale in such other county, &c., and may, under such wan-ant and certificate, be distrained and sold as if found within the distiict, parish, &c. in or for which the rate was due. Preliminaries to issuing JFarrant.] Under the 53 Geo. 3. c. 127. s. 7, the justice cannot issue his waiTant unless it be made affirma- tively to appear before him, that the amount does not exceed £10, and that no question is made on the rate in the ecclesiastical court. If neither of these preliminary exceptions exist, the party may give notice to the two justices that he disputes the validity of the rate, or his liabihty to pay it, though no proceeding is actually commenced in the ecclesiastical court: and any expression by him, manifesting that he disputes the rate bond Jide, will be a sufficient notice to put a stop to the proceedings before the justices. Thus where a parish- ioner, upon being brought before two justices for not paying the rate, declared in their presence, " that he would bring an action against any person who ventured to levy the rate, as he thought he had no right to pay, because he had no claim to, or seat in the chapel," this was held a sufficient notice for this purpose. (Rex v. the Chapel-wardens of Milnrow, 5 Maul. & Sel. 248.) Exceeding Authority of Warrant.] Where a constable, having a warrant of distress under 53 Geo. 3. c. 127. s. 7, broke the outer door of, and entered plaintiff's dwelling-house, it was held that although he acted iUegaUy, yet as it was not shown that he acted with any other intention than that of executing the authority dele- gated to him by the warrant, no action could be maintained after the expiration of three calendar months, (the limitation in the statute, s. .12) from the fact comr^ijtted. (Theobald v. Crichmore, 1 Barn. & iVld. 227. ) Improved Wastes, Parish disputed.] By the 17 Geo. 2. c. 37, where there shall be any dispute, in what parish or place improved wastes, and dmiiied and improved marsh lands lie, and ought to be Chap. XVIIL] COUNTY rate. 389 rated, the occupiers of such lands or houses built thereon, tithes arising therefrom, mines therein and saleable underwoods, shall be rated to this, and all other parish rates within such parish and place as lies nearest to such lands : and, if on application to the officers of such parish or place, to have them rated as aforesaid, any dispute shall arise, the justices of the peace at the next sessions after such appUca- tion made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all others interested therein, may hear and deteimine the same on the appeal of any person interested, and may cause the same to be equally assessed, whose determination therein shall be final. Rate on Quakers^] The church rate charged upon quakers may be sued for in the ecclesiastical com-t, as in the case of other parish- ioners; but it is also recoverable before the justices of the peace, in the same manner as their tithes, which is the preferable mode of pro- ceeding. (See Dissenters, ante 146.) CHAP. XVIII.— COUNTY RATE. Consolidation of Rates. 1 There are various expenses to which parishes, as integi'al portions of counties, are liable, for which it was the custom formerly to make sejparate rates, — as for the maintenance of gaols, support of prisoners, reparation of bridges, &c. ; but the great inconvenience of assessing the parishes, and collecting distinct rates for these several purjioses, induced the legislature to provide that one general fund for the whole should be raised, called the county rate, under the direction of the county magistrates. Accordingly, the 12 Geo. 2. c. 29, was passed, which has been amended in some of its provisions by subsequent statutes, the object of which is not to impose any new species of rates, but to facilitate the assessing, collecting, and levying those with which the public were previously chargeable, and for which purjDose, instead of separate rates for the sevei'al purposes for which rates under former acts were imposed, there is to be one general rate to answer all the ends and purposes of the fonner acts. (See Bates v. Winstanley, 4 Maul. & Sel. 437.) Charges on County Rates.] The puqioses to which the county rates are now principally applicable by different acts of Parliament, are as follows : The paying one moiety of the charges of prosecuthig masters for ill trcathig their parish apprentices. (32 Geo. 3. c. 57. s. 11.) Charges of canying i)arish apprentices bound to the sea service 3<)0 COUNTY RATE. [Chap. XVIII. to the port to wliicii the master belongeth. (2 & 3 Ann, c. 6.) Re- pairing county bridges and highways adjoining, salaries for the sur- veyors thereof, and purchase of lands adjoining. (22 H. 8. c. 5; 1 Ann, St. 1. c. 18 ; and 52 Geo. 3. c. 110; 14 Geo. 2. c. 33.) The coroner's fee oi9d. a mile for ti-avelling to take an inquisition, and 20s. for taking it. (25 Geo. 2. c. 29.) Relief of prisoners in the county gaol. (14 Eliz. c. 5.) Salary of the chaplain thereof, and house of correction, and setting prisoners to work. (4 Geo. 4. c. 64.) Care of their health, (14 Geo. 3. c. 59,) and camdng persons to the gaol or hou«e of correction. (27 Geo. 2. c. 3.) Allowance to dis- charged prisoners. (5 Geo. 4. c. 85. ss. 22. 25.) Gaolers, clerks of assize, clerks of the peace, or clerks of court's fees, upon the acquittal or discharge of prisoners. {55 Geo. 3. c. 50. s. 6 ; 56 Geo. 3. c. 116.) For building, enlarging, repairing, and fitting up county gaols, and houses of correction. (4 Geo. 4. c. 64.) Salary of the master of the house of correction, and relieving the weak and sick in his custody. (7 J. 1. c. 4.) Charges of bringing msolvent debtors before the travelling commissioner, in order to their discharge, if the prisoners are not able to pay. (5 Geo. 4. c. 61. s. 2.) For the relief of the jn-isoners in the King's Bench, Fleet, and Marshalsea prisons, and of Bethlem Hospital, &c. (53 Geo. 3. c. 113.) Expenses of pro- viding, &c., county lunatic asylums, under the direction of visiting justices, &c., by a special rate. (See 9 Geo. 4. c. 40, post 472.) Prosecuting felons. (58 Geo. 3. c. 70. s. 4.) Transporting felons, or conve^ang them to the places of labour and confinement. (6 Geo. 1. c. 23. s. 3.) The treasurer's salary, by 55 Geo. 3. c. 51. s, 17. Charges of pro- secuting vagrants or incorrigible rogues, or of constables, &c., for neglect of duty. (5 Geo. 4. c. 83.) Expenses of procuring and transmitting models and copies of the standard weights and measures, (5 Geo. 4. c. 74,) and allowance to examiners thereof. (55 Geo. 3, c. 43. s. 5.) Charges of prosecuting and convicting persons plunder- ing shipwrecked goods, (26 Geo. 2. c. 19,) and burying dead bodies cast on shore in England. (48 Geo, 3. c. 75. s. 6.) Charges of the soldiers' baggage-waggons, &c., over and above the officers' pay lor the same. (Annual mutiny acts; and militia act, 42 Geo. 3. c. 90. s. 95.) Sessions make the Rate.] The 12 Geo. 2. c. 29, provides, that the magistrates, in quarter sessions assembled, shall have power to make a rate, to be assessed upon every town, parish, or place within the respective limits of their commissions, to be collected by the high, constables of the hundreds, &c. (Id. s. 1.) To be paid by the Overseers, ^c] Upon which the church wai-dens Chap. XVIII.] COUNTY H-ATE. 391 jind overseers .shall jiay the sum rated on their parishes, &c., within tliirty (lays after demand, in writing, to he given to them or any of them, or left at their house, or aiiixcd to the church door hy the high con.>|ioared that the sessions harl refused to state a s^iecial case, but the counsel for the appellants being of opinion that the rate would appear to be bad from the title of it, they removed it by certiorari, and obtained the present rule. The title of the rate was as follows : " Surrey to wit : An assessment on all and every the occupiers of lands and houses in the parish of Effingham, for the necessary relief of the poor, and towards paxjmcnt of money borrowed for repairing and rebuilding tlie workhouse. 40O POOR RATES, [Chap. XX. Willes, J., said, " Can we reject as surplusage what is a material part of the title of the rate ? If we cannot, is a rate good to repay money bon'owed ? Tawney's case, {ante 400,) is in point. The rate cannot be supported." Ashurst, .T., of the same opinion. Buller, J., " This rate imports to be made for two pni-j3oses, and we are desired to consider it as only made for one. I conceive that a rate caimot be made for money borrowed, even though within the year. Tawney's case u-oes that length, for it is not confined to the mandamus." The rule for quashing was made absolute. (Rex v. Wavell, Doug. 116, 1 Bott. 112.) Assistant Overseer's Salary.] By 59 Geo. 3. c. 12. s. 7, assist- ant overseers of the poor, for such purjioses as are named in the act, may he aj^pointed, and with such salary as shall have been fixed by the inhabitants in vestry ; and such salary shall be paid out of the money raised for the relief of the poor, at such times and in such man- ner as shall have been agi'eed upon between the inhabitants in vestry, and the respective persons so to be appointed. Constable's Expenses.] The expenses which are to be allowed a constable out of the parish rates, are those uecessaiily incuiTed by him on behalf of the parish, as in relieving or conveying vagrants, &c., within 18 Geo. 3, c. 19. s. 4 ; but the expenses of indicting a party ft)r assaulting him in the execution of his duty are not expenses so incurred, although the prosecution was directed by a magistrate. (See ante 356, .357.) SECTION III. — PERSONS RATEABLE. The poor rate is to be made by taxation of every inhabitant, parson, vicar, and other, and upon every occupier of lands, houses, tithes impropriate, propriations of tithes, coal mines, or saleable underwoods, in the parish. (43 Eliz. c. 2. s. 1.) Every Inhabitant, or Other.] The meaning of which is, in this statute, a resident inhabitant. (Rex v. North Cuitv, 4 Barn. & Cres. 953, 7 Dowl. & Ryl. 424.) In considering the liability to the poor rate, arising from inhabitancy as connected with certain properly, the word inhabitant must be understood to mean a person resident permanently and sleeping in the parish. (Rex v. Nicholson, 12 East, 330.) And therefore a person, who is lessee of a stall in a market, and comes there on market days to sell his wares, is not rateable. (Holledge's case, 1 Bott. 123.) Sect. III.] PERSONS UATKAni-E. 403 Partners.] Partners resident in one jmrish, but holding premises and carrying on 1)usiness in anotlier parish, by means of a servant who resides on the premises, are not inhabitants of the latter parisli within the meaning of the statute, and are not rateable to the poor of the parish, in respect of their personal property situate within it. (Rex V. North Cuny, ubi supra.) For what rateable.] The assessment must be made according to the visible estate of the inhabitant, both real and personal, within the parish, but he shall not be rated in that parish i'or any property he may have elsewhere, (Sir Anthony Earby's case, 1 Bott. 124,) nor is he rateable by reason of money he has out at interest, or in the funds, (Rex. v. St. John's, Maddennarket, 1 Bott. 239,) or by rea- son of his salary as clerk, or pay as an officer in the navy, &c., (Rex V. Shalfleet, 4 Burr. 2011 ;) nor in respect of the profits of his pro- fession, as attorney; (Rex v. Startifant, 7 T. R. 60, ] Bott. 217;) nor for household furniture merely. (Rex v. White, 4 T. R. 771.) But he is rateable for his stock in trade, w ithin the parish, of which he makes a profit, (Rex v. Macdonald, 12 East, 324, Bott. 75,) whether there be a custom in the parish to that effect, (Rex v. Hill, Cowp. 613,) or not. (Rex v. Ambleside, 16 East, 380.) But silk-throwsters, working up in their mills the silk of their employers, sent to them for that purpose, and others ia the like cir- cumstances, are not liable to be rated in that respect as for their stock in trade. (Rex v. Sherborne, 8 East, 537, Bott. cont. 67.) Nor is a farmer liable to be rated for his fanning stock, because the annual profits of the land being rated, the profits of the stock arc included therein. (Rex v. Barking, 2 Ld. Raym, 1280.) A ship- owner is liable to be rated for a ship of which he makes profit, if its principal port, and the residence of such owner, be within the parish, (Rex v. Jones, 8 East, 451,) though the ship is not, at the time of making the rate, actually within the parish. (Rex v. Shepherd, 1 Barn. & Aid. 109.) But if it has never been locally within the parish it cannot be rated. (Tb.) .Embassador, or his Servant.] A rate on a foreign ambassador cannot be levied by distress, nor can any of his suite be rated, if they be clearly within the meaning of the Stat. 7 Anne, c. 12. But where this privilege was claimed by a servant of an ambassador, whose goods had been distrained for a poor rate, he being the tenant of the house, part of which he let out in lodgings, and was a teacher of languages, and also pi-ompter at the opera-house, it was said by the court that such a privilege in this case would be absurd in itself, and not at all I) D 2 404 I'OOR RATES. [Chap. XX. williiii the reason upon which tlic rights of amhassadors are founded. (Novello V. Toogood, 1 Barn, i^c Cres. 354, 2 Dowl. & Ryl. 83.3.) Parson and Vicar-I The parson and vicar, whether resident in tlie parish or not, are liable to be rated for their tithes in the parish, (Rex V. Turner, 1 Stra. 77,) although they let them to their parishioners respectively, (16 Vin. Abr. 427,) and also with respect to oblations and other ofi'erings. (Rex v. Carlyon, 3 T. R. 386, 1 Bott. 186.) They are also liable to be rated for other property in their possession or occupation in precisely the same manner as other persons. But if they let the tithes to a tithe farmer, the farmer only shall be rated for them. (Rex v. Lambeth, 1 Bott. 127.) But where, upon an in- closure of lands in the parish under a local act of Parliament, it is provided, that the tithes shall be extinguished, and the value thereof shall be estimated, and an annual rent, or sum of money per acre, shall be paid in heu thereof, the rector will be rateable in respect ol" such rents, unless they are specially exempted by the act. (Rex v. Lacy, 5 Barn, & Cres. 702, 8 Dowl. & Ryl. 467; Chatfield v. Rus- ton, 3 Barn. & Cres. 863.) Thus where an inclosure act provided, that a certain com rent, " free from all taxes and deductions whatsoever, except land-tax," should be issuing out of the lands to be inclosed, and other lands in the parish, and to be paid to the rector in lieu of all great and small tithes, &c. ; it was held, that this corn rent was not rateable to the poor. (Mitchell v. Fordham, 6 Barn. & Cres. 274.) Tithes impropriate, Overseers of the poor. Form of the Allowance of the Rate. We, two of his majesty's justices of the peace, in and for the said county and dwelling, in [or near] the said parish, one whereof is of the quorum, do consent unto and allow of this assessment. Witness our hands, the day of 18 , Witness, I. J. K.L. Rate made by improper Perso7is.] The 43 Eliz. c. 2. s. 1, cUrects, that the rate shall be made by the churchwardens and overseers of the poor of the parish, or the gi-eater part of them, and therefore, if other persons exercise this power, the rate is bad. And it is no Sect. V.J APPEAL AGAINST A RATE. 419 excuse that the proper persons have neglected to make a rate, as the court of King's Bench, upon apphcation, founded on an affidavit that a rate is wanting, will grant a mandamus to compel them to make one. (R. v. Barnstable, 1 Barnard, 137, 1 Bott. 78, 112.) But the court will not command them to make an equal rate, for if they make one that is ^/.«equal, it is the province of the sessions upon appeal to set that right. (R. v. Barnstable, supra.) Rate made for improper Purpose.^ The 43 Eliz. also defines the purposes for which the rate is to be levied ; which are for raising " a convenient stock of hemp, wool, thread, iron, and other ware and stuff, to set the poor on work, and also competent sums of money for and towards the necessary relief of the lame, impotent," &c. And subsequent statutes have authorized the payment of various other charges upon parishes, out of the poor rates. (See ante, " Pur- poses of the Poor Rates," 400.) Rate made for improper Period,] It has already been stated, that a rate may be made " weekly or otherwise ;" (43 Eliz. c. 2. s. 1 ;) but if made for six months prospectively, it is not on this account bad. (See ante, " Rate for what time," 399.) Proceedings at the Hearing.'] If the appeal be on the ground that the party making the apjieal ought not to be rated at all, having no rateable property in the parish, the respondents begin, if on the ground that he is over-rated, or that another is not rated, &c., the appellant begins. (R. v. Newbury, 4 T. R. 475, 1 Bott. 289.) If on both gi'ounds, the respondents begin, and prove not merely that the appellant has rateable property within the parish, but must show some probable ground for the amount at which they charge the party in the rate ; the mischief of any other rule would be enormous, for a small occupier might then be rated at once, in the round sum of £ 1000, and be left to struggle his way out of that charge as he could. (R. v. Topham, 12 East. 549.) The appellant on his part states and proves the case set forth in his notice of appeal, and it is irregular for him to state, or to olier proof of, any other grounds of objection to the rate, than those contained in his notice. Inhabitants are competent witnesses, whether rated or holding office or not, or whether supported by the parish, wholly, or in part, or not. (54 Geo. 3. c. 170. s. 9.) Judgment.] The court of sessions shall amend the rate, so as to give relief, without altering it as to other persons mentioned in the same ; but if, upon an appeal against the whole rate, it be necessary to E E 2 420 POOR RATES. [Chap. XX. (juasli or set it aside, the court may order the churchwardens and overseers to make a new equal rate, who must make the same accord- ingly. (17 Geo. 2. c. 38. s. 6.) And they may amend it by inserting or striking out any name, or by altering the sums, &c., or in any other manner necessary to give relief, wdthout quashing the rate. Or if they deem it necessary, to give relief to the appellant, they may quash the same. (41 Geo. 3. c. 23. s. 1.) If the rate be quashed, the court may order any sum m the rate not to he paid, &c. ; and if procee(Hngs have been commenced to recover the same, such proceedings shall be no fmther jDrosecuted. (lb. s. 3.) If the sum be increased, it may be recovered, &c., (lb. s. 7.) and if a name be struck out, the money which has been paid by the person under such rate, may be ordered to be repaid, (lb. s. 8.) Costs.} The court may award costs for those in whose favom* the appeal is determined, (17 Geo. 2. c. 38. s. 4.) provided the appeal have been entered and terminated. (R. v. Essex, 8 T. R. 583, 2 Bott. 757.) One Parish contributory to another.} It is provided by 43 Eliz. c. 2. s. 3, that if two justices of the district perceive that the inhabi- tants of any parish, are not able to raise sufficient for the relief of their poor, they may assess " any other of the other parishes within the hundred ;" or if the hundred is too poor, any other of the county in such sums as the justices shall think fit. This rate may be made on particular persons only, or the whole parish. (Knightley's Case, Comb. 309, 1 Vent. 350, Foley, 29.) But this rate cannot be made by justices of a county, upon aborough having exclusive jurisdiction. (R. v. Holbeche, 4 T. R. 778.) And though they may order such sums to be paid in this manner, as they shall think fit, yet an order " as long as we the said justices shall think proper," is bad; (St. Mary's, in Marlborough, 2 Stra. 700;) but a sum in gi-oss for a year is good; (Comb. 309;) or to raise the sum of £ 60 ; (St. Peter and St. Paul, in Marlborough, 2 Stra. 1114;) but if the rate be to levy a certain sum in the pound, it is bad. (R. V. Telescombe, 1 Stra. 314.) The sessions may charge jxirishes out of the hundred, towards the maintenance of the poor within the bundled, before two justices have adjudged that the hundred is not able, as it will be presumed that the sessions is satisfied upon that point before the order is made. (R. V. Percivall, 1 Stra. 6Q.) Sect. VI.] DISTRAINING FOR POOR RATE. 421 SECTION VI. — DISTRAINING FOR POOR RATE. The 43 Eliz. c. 2. s. 4, declares, that it shall be lawful as well for the present as subsequent churchwardens and overseers, or any of them, by warrant from any two j ustices, one whereof is of the quorum, to levy all arrearages according to the assessments, by distress and sale. It seems doubtful whether, in strictness, a rate due from a person who dies before it is paid, may be levied upon his representative. But at all events before this can be done, the latter must be summon- ed, for he may be able to show good cause against such a demand, as want of assets, &c. (Stevens v. Evans, 2 Burr. 1152.) Where Distress may be made.] And by 17 Geo. 2. c. 38. s. 7, the goods maybe levied by warrant of distress, not only in the same parish or place, but in any other place within the same county ; and if suffi- cient cannot be found there, then on oath being made before some justice of any other county, and certified on the said waiTant, the de- faulter'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. The 54 Geo. 3. c. 170. s. 12, is to the same effect, including the right so to distrain for poor rates, church or highway cesses. Rates levied, though quashed.] By 41 Geo. 3. c. 23. s. 1, if the sessions should quash the rate, all the sums of money by such rate charged on any pereon, shall nevertheless be levied in the same man- ner as if no aj^peal had been made against such rate, and such sums when levied or recovered, shall be taken as pajanent on account of the next effective rate, made for the relief of the poor of the same parish, towiiship, vill, or place. The second section of the act provides, that the sums rated may be levied by distress, notwithstanding the person so rated, or any other person, shall have given notice of appeal against such rate, provided always, that if any person rated sliall give due notice of appeal, then from and after the giving of such notice, and until the appeal shall have been determined, no proceedings shall be commenced to recover any greater sum from such person, than the sum at which he, or any occupier of the same premises, shall have been assessed in the last ellective rate which shall have been collected, in such parish or jilace. By s. 3, if the court order any rate to be quashed, they may order the sum charged on any person, or any part of it, not to be paid. 422 ■ POUR RATE. [Chap. XX. which shall be a bar to any proceedings for the recovery of such sum, so ordered not to be paid. And by s. 7, if the sessions order any person to be inserted in the rate and assessed, or the amount of the rate on any persons to be increased, the same shall be recoverable in the same manner as if they had so stood originally in the rate. What may he distrained.] Money may be distrained for the poor rate, as well as goods. (E. I. Company v. Skinner, 1 Bott. 257.) Averiae carucfe are distrainable for the poor rate. (Hutchins v. Chambers, 1 BuiT. 579, and working tools in a shop, 2 Show, 126.) Wherein Distress improper.'] A distress for a poor rate for lands not in the occupation of the plaintiff, may be replevied, notwithstand- ing the sessions on appeal have confirmed the rate, the determining that a man may be assessed for what he does not occupy, being an excess of jurisdiction. (Milward v. CafEn, 2 Bla. Rep. 1330.) And if the landlord tender the rent for his tenant, the overseers must receive it, and a warrant ought not to be granted to distrain upon the tenant. (Rex v. Cosens, 2 Doug. 426.) Oath and Summons, before Distress.] The distress cannot be made under a general wan'ant made before the rate, but there ought to be a special warrant for the purpose. That is to say, the nonfea- sance of the party shall not be left to the judgment of the officer, who may, out of private resentment, sell his neighbour's goods without sufficient cause ; but oath of the refusal must be made before the jus- tices. And it is reasonable that the party should be heard in his defence, for he may show cause variously, why a distress should not be granted. (Tracey v. Talbot, 2 Salk. 532; 1 Nol. P. L. 258.) And a previous smiimons must be issued before any such warrant is granted. (Harper v. Carr, 7 T. R. 270.) Mandamus to grant Warrant.] Against a rule ioT a. ma7idamus to the defendants, justices for Cumberland, to grant wan'ants of distress to levy a poor rate, it was contended, that there should have been a previous summons. In support of the rule, the case of Rex v. Justices of INIiddlesex, 1 Bott. 262, in which it was held, that a previous sum- mons was not necessary. But Lord Kenyon said, " I confess I can- not subscribe my assent to the decision in the case cited. The pay- ment of a poor rate, unless it be set aside, must be enforced ; and if the magistrates will not issue a summons to the person who refuses to pay the rate, the court will grant a mandamus to compel them to do it ; but a summons must precede a warrant of distress, which is in the nature of an execution. On the summons the party may show a suffi- cient reason to the magistrates why a wan'ant of distress should not issue. Sect. VI.] DISTRAINING FOR POOR RATE. 423 It is an invariable maxim in our law, that no man shall be punished before he has had an opportunity of being heard ; whereas, if a war- rant of distress were to be issued without any prevaous summons, the party would have no ojiportunity of showing cause why the execution should not issue against him. But the next day the court granted a rule for a mandamus to the magistrates, "to receive such infonna- tions and complaints as shall be laid before them, against persons re- fusing to pay the sums assessed upon them for the relief of the poor of the townshi]^ of Whitehaven, and to proceed thereupon to levy the same." (R. v. Benn and Church, 6 T. R. 198 ; 1 Bott. 269.) Distress illegally executed.] The parties executing a distress for a poor rate, are liable as trespassers, if they commit any excess, not excused by the law. Thus, where the defendants went to the house of the plaintiff, car- rying with them a warrant directed to some of them as churchwaixlens and overseers, to distrain the plaintiff's goods for a poor's rate, and being informed at the next house that the plaintiff was from home, one of the defendants tried to get in at the cellar, but failed, and in the attempt some windows were broken. They then took the fasten- ing out of a window, and got into the washhouse, but having found nothing there, they returned and took away some planks and other articles which were lying in the garden. A verdict was found for the plaintiff, damages seven guineas, with leave for the defendants to move to enter a nonsuit, on the ground of there not being any proof of a demand of the copy of the warrant, as required by stat. 24 Geo. 2. c. 44. s. 6. Upon the question commg on to be ai'gued. Lord Ellen- borough said, the case of Money v. Leach, (3 BuiT. 1742; 1 Bla. Rep. 555,) decides, that a defendant, in order to avail himself of the objection upon the statute, must show that he acted in obedience to the warrant. Here the defendants, so far from showing that they acted in obedience to the warrant, commence by an unauthorized course of jiroceeding ; it was a trespass in them, ab initio, and I do not see how, after the case of Money v. Leach, they can stir this objection. That was a case of much public interest, and was decided upon great deliberation, and the matter was upon the record. If this had been a distinct subsequent trespass of the offenders, it might have presented a diilercnt question. And the other judges concuriing the rule to enter a nonsuit was discharged. 424 OVERSEERS OF THE POOR. [Chap. XXI CHAPTER XXI.— OVERSEERS OF THE POOR. Section I. Appointment of Overseers. II. Powers and General Duties. III. Recovering Parish Houses and Lands. IV. Overseers' Accounts. V. Liabilities and Protection. VI. Assistant Overseer. section I. — APPOINTMENT OF OVERSEERS. For what Places appointed.] It has already been observed, that a churchwarden is ex virtute officii an overseer ; and it must always be understood that they are included under that general name m treating of the duties, &c., of the office. The 43 EHz., in directing the a]5pointment of overseers, applied only to parishes ; but by the subsecpient statute of 13 & 14 Car. 2. c. 12, ovei'seers may be ap- pointed for a township, village, or hamlet, (Rex v. Morris, 4 T. R. 550;) and parishes of inconvenient magnitude may be subdivided, and extra-parochial towns and vills may have separate overseers. (Dolting V. Stokelane, Fort. 219, N. P. L. 10.) But an appoint- ment of overseers for an extra-pai-ochial place, or for a precinct, is bad. (lb.) The town or vill must be actually, or by reputation, of that deno- mination, and not merely constractively so, from the number of houses contained within the limit. (Rex v. Standard Hill, 4 Maul. & Sel. 378; Rex v. Eyeford, Cald. 542.) And to authorize the division of a parish into districts with separate overseers, it must con- sist of two or more distinct townships or vills ; and it must also appear that the parish cannot othei-wise have the full and ordinary benefit of the 43 EHz. (Rex v. Walsall, 2 Barn. & Aid. 161 ; Peart v. West- garth, 3 Burr. 1610.) And although there may have been a continued appointment of overseers for such separate townships for forty years, and the same has been recognized, (though not particularly considered.) by the court of King's Bench ; yet this division of the parish is not thereby confinned, and may be abrogated, unless it appear that it cannot Sect. I.] APPOINTMENT OF OVERSEERS. 425 Otherwise reap the benefit of the 43 EHz. (Rex v. Newell, 4 T. R. 266 ; Rex v. Uttoxeter, Doug. 246.) Still such a long separation of districts, vills, &c., is strong evidence of the propriety of the division. (N. P. L. 26.) Division of Parish, how made.'] The quarter-sessions has no power to divide a parish by an original order, but the mode of pro- ceeding is by the magistrates appointing overseers for the divisions, the vahdity of which may be tried by appeal against the appointment ; (Rex V. Monis, 4 T. R. 550,) or by certiorari, (Rex v. Great Mar- low, 2 East, 244 ;) by mandamus, (Rex v. Middlesex, 1 Bott. 34 ; Rex V. Watts-Horton, 1 T. R. 374 ;) indictment against the appointee on refusing to take the office, (Rex v. Wanaer, 8 T. R. 375 ;) or collaterally, by appeal against an order of removal, (Rex v. Denham, BuiT. S. C. 35,) or against a poor's rate, (Rex v. Watson, 7 East, 214; Rex v. Leigh, 3 T. R. 746;) or by action of trespass or re- plevin when the rate is attempted to be enforced by distress. (Hilton V. Pawle, Cro. Car. 92; Rudd v. Foster, 4 Mod. 157; Lord Bute v. Grindall, 1 T. R, 338.) When a parish has been subdivided, the separate divisions are to be considered, with respect to the poor laws, as separate parishes. (Rex V. Kirkby Stejihen, Burr. S. C. 664.) Reunion of Districts.] A parish, with the consent of all its dis- tricts, may reunite ; and that reunion will be valid in law. (Rex v. Pahner, 8 East, 416.) But it seems that such consent is necessary, especially where the division has existed for a long peiiod, (Rex v. Walsall, 2 Barn. & Aid. ] 57 ;) and the legislature has, by a recent act, provided, that where towns corporate or franchises have been as- sessed to the poor, and have been sejiarated from the parish in which they are situate for sixty years from the passing of the act, such sepa- ration shall be lawful, although originally made without sufficient authority. (59 Geo. 3. c. 96.) Overseers, when appointed.] The appointment is directed by the 54 Geo. 3. c. 91, to be made on the 25th of March, or within fourteen days afterwards ; and a forfeiture of £5 is imposed upon the magis- trate in whom the appointment lies, if he make default, by the 43 Eliz. But an appointment subsecpiently made seems valid; (Rex v. Sparrow, 1 Bott. 21, 2 Stra. 1123;) and in the case of death, re- moval to another place, or insolvency of an overseer, two justices may, on oath thereof, appoint another in his stead till new ones are ap- pointed. (17 Geo. 2. c. 38. s. 3.) The court of King's Bench would probably grant a mandamus to compel an appointment where it is neglected beyond the proper time, ( 1 N. P. L. 46.) 426 OVERSEERS oE THE POOR. [Chap. XXI, By whom appointed.'] The appointment must be made by two or more justices of the county, except in corporate towns and cities, wherein the duty vests in the mayors, baihffs, &c., being justices of tlie peace. But it cannot be made by the head officer alone, if there are tivo coi'porate justices ; the signature of two being necessary in that case as well as in others. (Rex v. Butler, 1 Bla. Rep. 649.) 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. And where this is neglected the justices generally issue a precept to the high-constable, who issues bis^arrant to the petty constables, requiring them to give the overseers notice to deliver the list forthwith. (1 N. P. L. 46.) Number of Overseers.] More than four, (Rex v. Harman, 1 Bott. 16,) or less than two overseers, cannot be appointed; (Rex v. Morris, 4 T. R. 550 ; Rex v. Clifton, 2 East, 168 ;) though the appointment of one is not bad on the face of it, unless it appear that no other is appointed by some other order. (Id.) But an appointment of five is void for the whole, for none of them is entitled to preference. (Rex v. Wymondham, 6 T. R. 552.) If a local act direct, that two shall be appointed, without saying that more shall not be appointed, this does not prevent a gi'eater number being appointed under 43 Eliz. (Rex V. Pinney, 2 Barn. & Cres. 322.) Who may be appointed.] They are to be hoiiseholders ; but nei- ther personal residence or payment of rent and taxes is essential. Thus every partner in a fimi, caiTied on in a dwelling-house, though only a servant reside there, is a householder for this purpose, (Rex V. Poynder, 1 Bai'n. & Cres. 178;) and a woman may be appomted overseer. (Rex v. Stubbs, 2 T. R. 395.) The act also requires that they shall be substantial householders ; but this is a relative tenn, and therefore labourers, being householders, have been held sufficient, where there were no more competent persons in the township. (Id.) And by the 59 Geo. 3. c. 12. s. 6, residents within two miles of the parish church, or one mile of the boundary of the jjarish, may be appointed, by their orti consent, and the request of the parish in vestry assembled, although they be non-resident in the parish, if they are assessed to the poor thereof. But the appointment of resi- dents for part of the ydtir only, though they are eligible, is discou- raged, (Rex V. Moor, Carth. 161, 1 Bott. 9.) Exemptions.] The persons exempt from serving other parish offices, are also exempt from the office of overseer. (See tits, " Churchwardens," " Dissenters," ** Constables," &c., and 1 N. P. L, 51,52,) Sect. I.] APPOINTMENT OF OVERSEERS. 427 Form of Appointment. ] The order of appointment must be in writing, and under hand and seal of the two justices, executed in the presence of each other, (Rex v. Great Marlow, 2 East, 244,) and should ap- point the persons named " overseers " eo nomine, or it is bad (Rex V. St. George Fort, 320 :) it must state them to be " substantial householders " in the parish ; describing them as principal inhabit- ants is bad; (Rex v. Sheringbroke, 2 Lord. Raym. 1394; Overseers of Weobly, 2 Stra, 1261 ;) and it must state that the appointment is for a parish, township, &c., as the case may be, (Rex v. Morris, 4 T. R. 550 ;) and show that it is within the magistrates' jurisdiction. (Rex V. Houlditch, 1 Bott. 4.) It should express the time for which the appointment is made; (Rex v. Biu'der, 4 T. R. 778;) and if made on a Sunday, will be bad, unless under peculiar circumstances, and done bond fide, without any sinister object. (Rex v. Butlei-, 1 Bla. Rep. 649.) If two sufficient ajapointments are made on the same day, the last is void, for when the appointment is once legally made, the magistrates' jurisdiction ceases. (Rex v. Searle, 1 Bott. 21.) Nor can other justices make a new appointment, even though one already appointed applies, upon sufficient cause, to have another sub- stituted in his place, but he must appeal to the sessions. (Rex v. Great Marlow, 2 East, 244.) Appeal against Appointment.^ Persons aggrieved by the appoint- ment, whether the appointee, or the parishioners at large, may appeal to the next quarter sessions, and the want of jurisdiction in the magis- trates making the appointment, or the impropriety of then* choice, are good grounds for quashing their order. (Albrighton v. Skipton, 1 Stra. 301 ; Rex v. Stotfield, 4 T. R. 601 ; Rex v. Forrest, 3 T. R. 38.) And the order of the sessions thereon may be removed by certiorari, for the judgment of the court of King's Bench, (Rex v. Gayer, 1 Burr. 245,) or the original order of justices may be so removed, without previous appeal to the sessions, and the court will quash it for any prima facie defects, or for any of the above causes shown by affidavit. (Rex v. Walsall, 2 Barn. & Aid. 157 ; Rex v. Standard Hill, 4 Maul. & Sel. 378.) But a certiorari cannot be granted pend- ing an appeal to the next sessions, previously lodged, (Warwick, 2 Stra. 991. 1146;) though, if ^otice be given that the appeal is abandoned, it seems the certiorari may be obtained. (Rex v. Brad- bury, 1 N. P. L. 58.) Refusing Office punishable.^ Persons appointed overseers, and having had notice thereof, may bo indicted where they refuse to under- take, or execute the duty, having taken no steps to get free irom the office, or if, having done so, the order has been confirmed. (Rex v. Poynder, 1 Barn. & Crcs. 178, 2 Dowl. & Ryl. 258.) 428 oviiiLSEERs OF THE POOR. [Chap. XXI. SECTION II. — POWERS AND GENERAL DUTIES. Their Juris diction.'] The overseers of a parish or township are duly to execute then- office, without dividing themseh'es, in all places within the parish, in all things to them belonging, although the parish may extend into two or more counties or franchises, &c. (43 Eliz. c. 2. s. 9.) All acts which the whole body are competent to perfoinn, may be properly done by a majority. (Doe d. Grundy v. Clarke, 14 East, 488.) And where there are no churchwardens, the overseers are to exer- cise all the powers, and under the same responsibilities, as overseers and churchwardens may do, by any of the statutes relating to the poor. (17 Geo. 2. c. 38. s. 15; 59 Geo. 3. c. 12. s. 25.) The overseers have by law the custody of the instruments by which they are appointed. (Rex v. Stoke Golding, 1 Bam. & Aid. 173.) Two overseers, one of whom is also sole churchwarden, do not constitute a body corporate within the meaning of the 59 Geo. 3. c. 12. s. 17, and the paiish property does not vest in them. (Wood- cock v. Gibson, 4 Bam. & Cres. 462.) Their Duties.] The care of the poor, in conjunction with the guar- dians, &c., is entrusted to them, the major part having power to act for the whole ; and they are to continue in office till others are elected. They are to make poor's rates, to remove paupers not belongmg to their parish, &c., and to inspect and administer to the wants of their proper poor; and, on going out of office, to make up and pass their accounts, and deliver any balance in their hands to their successors, with all the property and documents of the parish, &c. And for these purposes they are required by the 43 EKz. to meet at least once a month in the church, on Sunday, after divine service in the afternoon. Must set able Poor to Work.] It is the bounden duty of overseei's to endeavour to find work, either in or out of then* own paiishes, for able-bodied poor persons, who are unable to obtain emplovanent at their usual work themselves ; and it seems, that it is only in the event of the former being unable to procure such employment, that they are authorized in giving pecuniary rehef. (Rex v. CoUett, 2 Barn. & Cres. 324.) It is a general principle, that the public are not bound to find food for those who are able, but unwilling to work, and persons who are unable, as paupers, or not at liberty, as prisoners, to Jind work for Sect. II.] POWERS AND GENERAL DUTIES. 429 tlieniselves, must accept that which is provided for them, whilst sub- sisting upon the puhhc. (See Rex v. J J. of N. R. Yorkshire, 2 Barn. & Cres. 286, 3 DowL & Ryl. 510.) J^Tot to borrow Money. 1 The borrowing of money is no part of the duty, nor is it within the authority of an overseer. (Massey v. &iowles, 3 Stark, Rep. Q6.) Therefore, m an action against a surety on a bond conditioned for the overseer's faithfully accounting for all sums which should arise, or come into his hands by virtue of his office of overseer, the surety is not liable for a sum le^it to the overseer, and applied by him to parochial purposes. If, indeed, the money had been boiTowed by the direction of the parishioners, there might be ground for saying that it came into his hands in his charac- ter of overseer ; but where that does not appear to have been the case, it must be considered as a loan to him individually, and not in his character of overseer ; and if it was not money received by him by virtue of his office, it is not within the condition of the bond, and the surety is consequently not liable under such circumstances. (Leigh V. Taylor, 7 Bam. & Cres. 491.) Borrowing ivhen Rate suspended.] If, on a dispute respecting a rate for the relief of the poor, the matter be referred, and in the meantime the overseer borrows money, on his own notes, for the relief of the poor, and make no rate to reimburse the money, the lender may recover it against him, in an action for money had and received to his own use. (How v. Keech, 1 Bott. 381.) Where a payment has been made by a party, at the sole request of one overseer of a parish, and without the knowledge of the others, and no demand is made upon them till after they are out of office, it is a question for the jury to say, whether, under these special circumstances, the party ought not to be considered as having relied on the sole responsibility of that overseei', at whose request the payment was made. (Maikin v. VickerstafF, 3 Barn. & Aid. 89.) Surgeon affendiny casual Poor.] A deputy overseer, or even a mere stranger, directing a surgeon to attend a pauper, is liable to pay the surgeon's bill. But it is doubtful whether an overseer is hable to pay such surgeon who attends a pauper without a retainer, and it seems to be clear, that a deputy overseer is not. (Watling v. Walters, 1 C. & P. 132.) A pauper having casually met with an accident in the parish of W., the surgeon of that parish attended him ; and, in the progress of the cure, one of the overseers of the parish, to which the pauper belonged, called on the surgeon, and desired him " to take care of the pauper, and do what he could for him ;" and added, " that he would see him 430 OVERSEERS OF THE POOR. [Chap. XXI. paid ;" and on a subsequent application by the parish officers of W. after the pauper was removed to his own parish, the overseer said " if it was right that they should pay the surgeon's bill they would." Held in an action against the overseer by the surgeon for the amount of his bill, that there was no legal obligation on the part of the fonuer to pay such amount. (Gent. v. Tompkins, 1 Dowl. & Ryl. 541.) SECTION III. — RECOVERING PARISH HOUSES AND LANDS. Possession, how given to Overseers-I By 59 Geo. 3. c. 12. s. 24, after reciting, " that whereas difficulties have frequently arisen, and considerable expenses have sometimes been incurred, by reason of the refusal of persons who have been permitted to occupy, or who have intruded themselves into parish or town houses, or other tenements, or dwellings, built or provided for the habitation of the poor, or other- wise belonging to such painshes, to deliver up the possession of such houses, tenements, or dwellings when thereto required, and it is ex- pedient to provide a remedy for the same, it is enacted, that if any person, who shall have been permitted to occupy any parish or ' tovra house, or any other tenement, or dwelhng belonging to, or provided by, or at the charge of, any parish for the habitation of the poor thereof, or who shall have unlawfully intruded himself or herself into any such house, tenement, or dwelling, or into any house, tenement, or hereditament belonging to such parish, shall refuse or neglect to quit the same, and deliver up the possession thereof to the church- wardens and overseers of the poor of any such parish, within one month after notice and demand in writing, for that pm-pose signed by such churchwardens and overseers, or the major part of them, shall have been delivered to the person in possession, or, in his or her ab- sence, affixed on some notorious pait of the premises, it shall be law- ful for any two of his majesty's justices of the peace, upon complaint to them made by one or more of the churchwardens and overseers of the poor of the parish, in which any such house, tenement, or dwell- ing shall be situated, to issue their summons to the person against whom such complaint shall be made, to appear before such justices at a time and place to be appointed by them, and" to cause such sum- mons to be delivered to the party against whom the complaint shall be made, or, in his or her absence, to be affixed on the premises seven days, at the least, before the time appointed for hearing such com- plaint ; and such justices are hereby empowered and required, upon the appearance of the defendant, or ujjon proof on oath, that such Sect. III.] RECOVEUING TARISH HOUSES AND LANDS. 431 summons hath heen delivered or affixed as is hereby directed, to pro- ceed to hear and determine the matter of such complaint ; and if they shall find and adjudge the same to he true, then, by warrant under their hands and seals, to cause possession of the premises in question to be delivered to the churchwardens and overseers of the poor of the parish, or to some of them. Possession of Lands, hotv ffiven.] By s. 25, " If any person to whom any land apjjropriated, purchased, or taken under the autho- rity of this act, for the employment of the poor of any parish, or to whom any other lands belonging to such parish, or to the church- wardens and overseers thereof, or to either of them, shall have been let for his or her own occupation, shall refuse to quit and to deliver up the possession thereof, to the churchwardens and overseers of the poor of such parish, at the expiration of the tenn for which the same shall have been demised or let to him or her, or if any person or persons shall unlawfully enter upon, or take or hold possession of any such land, or any other land or hereditaments belonging to such parish, or to the churchwardens or overseers, or to either of them, it shall be lawful for such churchwardens and overseers of the poor, or any of them, after such notice and demand of possession as is by this act directed in the case of parish houses, to exhibit a complauit against the person or persons in possession of such land, before two of his majesty's justices of the peace, who are hereby authorized and re- quired to proceed thereon, and to hear and determine the matter thereof; and, if they shall find and adjudge the same to be true, to cause possession of such land to be delivered to the churchwardens and overseers of the poor, or some of them, in such and the like course and manner, as are by this act directed with regard to parish houses." Kecovering Possession at Common Law.'\ The statute was not in- tended to take away a right, which the owner of property had at common law, to enter and take possession, if it could be done peaceably, but to provide an expeditious mode, whereby parish officers might obtain pos- session where it was obstinately withheld ; and that they might not do that which had before been sometimes done, viz. might not turn occu- piers out vi et amiis, which led to further expense and litigation. Where, therefore, a pauper had been permitted to occupy a parish house, but having gone from home, leaving three children there, for whose support she received an allowance from the parish, the over- seers on the second day afterwards entered, took the children to the workhouse, and put locks upon the doors. She having returned in about ten days, and, by breaking the locks, resumed possession of the 432 OVERSEERS OF THE POOR. [Chap. XXI. Louse, the overseers went there, and, upon her refusal to open the door, broke it open, and carried away the fumitiu'e, which belonged to the parish. In an action of trespass by her, it was held, that the overseers might lawfully enter, and resume possession, without giving any notice to quit, and were not bound to pm-sue the mode pointed out by the 59 Geo. 3. c. 12. s. 24. (Wildbor v. Kainforth, 8 Bam. f,,& Cres. 4; see ante, 446.) SECTION IV. — OVERSEERS' ACCOUNTS. How kept, a7id when balanced. ] If they continue in ofSce more years than one, they must settle their accounts at the close of each year, as directed by the act ; otherwise, as the inhabitants of a parish are a fluctuating body, the present inhabitants would be bui'thened with the expenses of their predecessors. (Rex v. Goodcheap, 6 T. R. 161.) The accounts must be fairly written in a book or books, and specify all sums received, or rated and not received, all payments, all goods, stock, materials, &c. in the hands of the officers or paupers, and all things concernuig their office as overseers. (Walrond's Case, 1 Bott. 300.) What Disbursements allowed.'] They are entitled to take credit for all smns properly exjiended in the discharge of their duty, but not for disbursements to which the rate is by law inapplicable. (Rex V. Seville, 5 Barn. & Aid. 180 ; Rex v. Bii'd, 2 Bai-n. & Aid. 522.) Nor must they include sums given to poor persons, not registered in the parish books, unless it be done on sudden and emergent occasions, upon pain of forfeiting £5. (9 Geo. 1. c. 7. s. 2.) And they ai'e to be allowed only for their bare expenses. (Rex v. Glyde, 2 Maul. & Sel. 323. When Accounts to be delivered.] Besides the inteimediate pe- riods, at which the overseers are directed to produce their accounts to the guai'dians at their monthly meetings, and to lay the consta- . ble's accounts, dehvered to them, before the parishioners for reim- bursement quarterly, by 18 Geo. 3. c. 9. s. 4 ; they ai-e directed by the 43 Eliz. c. 2. s. 2, to make and yield up their, accounts to two justices yfiihmfour days after the end of their year, and the nomina- tion of their successors, to whom they shall deliver over the balance in hand, and all the stock, goods, &c. of the parish, under a penalty of £20 upon every one, except such as ai'e excused on accomit of sickness, or other just cause. The 17 Geo. 2. c. 38. s. 1, without expressly repeahng the above act, alters some of its provisions, and directs that the accounts kept in a Sect. IV.] OVERSEERS' ACCOUNTS. 433 book or books for that purpose, and verified by oath before one justice, who shall sign and attest the same, to bo delivered to their successors, within fourteen days after such successors are appointed ; and the balance, stock, &c. shall be so delivered over, ami the said books shall be carefully kept by the overseers, and open to the ins|)ection of persons assessed, or liable to be assessed, at all seasonable times, upon payment of sixpence, to whom also copies of any part thereof shall be given on demand, on payment after the rate of sixpence for ev>ery three hundred words. And by section 2, upon refusal or neglect, two justices may com- rait them to the common gaol till they fully comply with the statute. And by section 3, if an overseer removes from the place for which he w^as appomted, he must deliver up his accounts, and pay his balances to some other overseer before his removal, under like penalties. And where an overseer dies, his executor or administrator must make up the accounts within 40 days, and pay the balance in preference to any other creditor. Justices auditing Accmmts.] Xotvvithstanding the subsecpient acts, the right of examining the disbursements by two justices, and allowing the accounts pursuant to the 43 Eliz., still apparently exists, where the parish chooses to proceed upon it ; though, as the recent statutes are much more efficient for these purjioses, they will doubt- less be generally resorted to. (See Rex v. Whitear, 3 Burr. 1365.) It has, therefore, been held, that though two justices may commit overseers for refusing to make up and verify their accounts pursuant to 17 Geo. 2, which requires them to deliver to their successors a just and perfect account, fairly entered in a book, of their receipts and expenditure, yet the justices cannot refuse to swear such an officer upon his delivering an account in gross sums, such as would satisfy the 43 EHz. (Rex v. Middlesex, 1 Wils. 125.) But the very tenns of the 17 Geo. 2, ought to be complied with, and the delivery of a mere summary or balance sheet is not such an account as the statute re(piires. (Rex v. Worcestershire, 3 Dowl. & Ryl. 299.) Jvstices may reduce J terns.] The 50 Geo. 3. c. 49, recites the former provisions, and adds, that the account shall be submitted to two or more justices in special sessions, within the said fourteen days, who may examine into, and administer an oath to the overseers of the truth of the accounts, and strike out charges which they deem un- founded, or reduce those which are exorbitant, specifying such reduc- tions, and the cause thereof; and their allowance of the account as directed by the 1 7 Geo. 2. Punishable for Neglect herein.] Neglect or refusal herein, or if F F .|34 OVERSEERS OF THE POOR. [Cliap. XXI. thev do not deliver over to their successors, within ten days after the signing and attesting such account, any goods or other things which shall thus appear to be remaining in their hands, two justices may conmiit them as aforesaid till they comply ; or if they neglect to pay over the balance remaining in hand, the same may be levied on the ofienders' goods under a warrant by two justices, and if the amount cannot be raise! by such dii-tress, they may be committed to the county gaol until payment be made. (50 Geo. 3. c.49. s. 1.) Appeal a(jainst Reductions.] Overseers having complied with these directions, may appeal against an order, making reductions in their accounts, to the next general or quarter sessions, to be holden next after the tenth day from making such order, upon entering into recognizance with two securities In not less than double the amount in dispute, to abide the decision of such appeal, (ss. 2, 3.) Certiorari, ^'c] The 5th section declares that no proceedings, either of justices or of sessions, under this act, shall be removed by cer- tiorari ; but the decision upon appeals shall be final. It has been decided, that this provision does not extend to orders made upon appeals brought by parishioners against overseers* accounts, imder 17 Geo. 2. (Rex v. Bird, 2 Barn. & Aid. 522.) By section 6, the act is not to extend to parish officers, who by any local act are exempted from rendering accounts required by 43 Eliz. and 17 Geo. 2, nor to the city of London. And by the 7ih section, no provisions, &c. of 43 EHz. or 17 Geo. 2, are altered or repealed, except so far as they are expressly altered, &c. Mandamus to pass Accounts.] A mandamus is the only remedy where justices refuse/ or make any vmreasonable delay in passing overseers' accounts, after they have been laid before them. (Rex v. Townsend, 1 Bott. 305.) Balances, enforcing payment of.] Two justices may issue their wan-ant to levy the balance ordered to be paid over, under 50 Geo. 3, in case of default, (supra) upon the application of any one of the succeeding overseers, although the other's refuse to concur in the ap- plication : and the court granted a mandamus to compel the justices to do so. (Rex V. Pascoe, 2 Maul. & Sel. 345.) And a return to a mandamus, granted for this pui-pose, stating that the vestry had ordered the former overseers to retain the balance for the fees, &c., incurred in a suit to recover charity money, which they had engaged to pay the attorney, was held insufficient; for the act peremptorily orders the payment over to the new overseei-s, and the vestry cannot dispense v>ith the statute. (Rex v. J J. of Somer- setshire, 2 Stra. 992.) StCt. IV.] OVI'.RSEERS' ACCOUNTS. 435 Indictable upon Accounts.^ The neglect to pay over such halance, (Rex V. King, 2 Stra. 1268,) or refusal to account withm the limited time, (lb. Rex v. Commings, 5 Mod. 179,) or making a fraudulent charge in the account, (Comb. 287,) are respectively indictable, not- withstanding the other remedies given by statute. Bankrupt Overseer.] And it was held^in one case, that where an overseer became bankrupt, and at the end of his year a balance was found against him, he might be committed for not paying it o^er; on the ground that he had a riffht to retain the money till fourteen days after his office expired, as his bankruptcy did not discharge him from his office, and if the money had been kept by itself, the assignees could not have touched it, as he was a mere trustee for the parish. (Rex V. Egginton, 1 T. R. 369.) But Lord Eldon subsequently held, that the debt owing to the parish might be proved under the commission, before the time for accounting arrived. (Ex parte Exleigh, 6 Ves. 811.) And afterwards, where an overseer, who had so become bankrupt, was committed for not accounting to his successor, although he had accounted for the balance under his com.mission, it was also held, that the balance was debitum in prasenti, although he might be only ac- countable for it infuturo, and discharged him. (Rex v. Tucker, 5 Maul. & Sel. 508.) Advances, Repayment of.] It is a common principle in parish matters, that the burthens of the year shall be borne by the parish- ioners of the year — a maxim so rigidly enforced, till relaxed by statute, that if an overseer made advances, and failed to reimbui'se himself before he went out of office, he could have no relief from his successors. (Tawney's Case, Lord Raym. 1011, Salk. 531.) But now, if a rate made by overseers is unpaid at the expiration of their year, their successors shall levy such arrears, and reimburse their predecessors all sums expended for the use of the poor, and allowed to be due to them in their accounts, (17 Geo. 2. c. 38. s. 11 ;) and the 41 Geo. 3. c. 23. s. 9, authorizes them to pay their predecessors, out of any rate they may collect, all such sums advanced during the time there was no rate, or whilst it was suspended by appeal ; and authorises the general or cpiarter sessions, upon application made for that pui-pose, to examine the matter, and order j)aymeut to be levied by distress, if necessary. But where an overseer is money out of pocket, and one of his colleagues has a sufficient surj^lus, the latter may be ordered to reimburse him. (2 N. P. L. 457 ; see also Ban- l)nry Case, Skin. 258.) Books, ifc. compelliny Delivery of.] The books of the poor-rates, &c., ought to be accessible to the parishioners, in the custody of the i^ 1- 2 430 OVERSEERS OF THE POOR. [Chap. XXI. overseers fur the time being. They may be summarily compelled to de- liver them up to their successors, (ante, 432, 433,) or by mandamus, when necessary ; (Rex v. Clapham, 1 Wels. 305 : see also 50 Geo. 3. c. 49. s. 1, ante, 433, 434 ;) as to delivering up goods, chattels, &c. to their successors. A commitment of an overseer for default in this respect should state the paiticular book, chattel, &c. for the non-delivery of which he is convicted. (Groome v. Forrester, 5 Maul. & Sel. 314.) Appeal against Accounts.'] The succeeding overseers on behalf of the parish may appeal against theu' predecessor's accounts ; or any other person objecting thereto, or aggrieved by any thing done or omitted, &:c. in the same manner as in appeals against rates, &c. ; but they must specify in the notice not only the objectionable items, but the cause and gTOunds of the appeal, as required by 41 Geo. 3. c. 23. s. 4. (Rex V. Mayall, 3 Dowl. & Ryl. 383 ; Rex v. Sheard, 2 Barn. & Cres. 856, 4 Dowl. &Ryl. 480.) * The appeal given by 43 Eliz. and 1 7 Geo. 2, to parties aggrieved, against overseers' accounts, is expressly reserved to them by 50 Geo. 3. c. 49. s. 3, (Rex v. Dorsetshire, 15 East, 200.) And it has been decided, that whei-e accounts have been duly allowed by two justices, pursuant to 17 Geo. 2, at a petty sessions, a parishioner may appeal against them, although they have not been examined and allowed at a special sessions, pursuant to 50 Geo. 3 ; and the sessions have jurisdiction in such case, and ought to hear the appeal. (Rex v. Colchester, 5 Barn. & Aid. 535.) Appeal within what Timc.'\ Before the 17 Geo. 2. c. 38, it was held, that an appeal might be made against accounts, years after they had been allowed and confirmed ; and once even smce that act it has been so held, with regard to such acts as are recpihed to be done by the 43 EHz. (Rex v. Whitear, 3 Burr. 1365, 2 N. P. L. 462.) But it is now settled that an appeal against overseers' accounts must in every case be made to the next possible sessions after allow- ance, (see Rex v. Dorsetshire, 15 East, 200,) the 17 Geo. 2. c. 38, which directs the appeal to be brought at the next sessions, having virtually repealed the 43 Eliz. c. 2. s. 6. (Rex v. Worcestershu-e, 5 INIaul. & Sel. 457 ; Rex v. Berkshire, 1 Const. 308.) But the court may adjourn the appeal to the following sessions, if reasonable notice has not been given. Notice of Appeal.] A notice of appeal against overseers' accounts, merely stating that the party intended to try his appeal against the accounts, on the grounds, and for the reasons thereinafter set forth, and then specifying the items against which he intended to appeal, and the objection he intended to make to each item, was held to Sect. IV. J OVERSEERS' ACCOUNTS. 437 be sufficient, although it was not stated, the party intending to appeal was a rated inhabitant of the parish, or a farty aggrieved. The right of appeal given b}^ 17 Geo. 2. c. 38. s. 4, against overseers' accounts, is not vA'ithin the principle of the decisions upon the high- way act, (55 Ceo. 3. c. 68. s. 'd,ante,A\Q,) for although the same lan- guage, to a certain extent, is found in both, yet the former statute, in addition to giving an appeal to the " party aggrieved," extends the right to a person having any material objection to the accounts. (Rex V. JJ. of Somersetshire, 7 Barn. & Cres. 681.) Prior Alloicance by Justices.'] The overseers' accounts must be examhied and allowed by two justices, before an appeal can be made against them. This is necessary to give the sessions jurisdiction ; it should therefox-e appear on their order that such previous allowance has been made. (Rex v. Bartlett, 1 Bott. 306, 2 Stra. 983.) But it has been held, that the sessions may not only disallow the accounts which have been allowed by two justices, but may order the overseers to pay a certain sum over, whicli they adjudge to be in their hands. (Rex V. Hedges, 2 Salk. 533.) Though such an order of sessions to repay money fraudulently charged, it was said bjf Eyres, J., can- not be maintained ; the sessions have no jurisdiction, but there may be a remedy by indictment. (Moulsworth's Case, Comb. 287.) A magistrate, a rated inhabitant of the parish, cannot vote either on the dctennination of the appeal, or upon the question of granting a case. (Rex V. Gudridge, 5 Barn. & Cres. 459, 8 Dowl. & Ryl. 217.) Not to be referred to other Justices.] The accounts cannot be withdrawn from the two justices to whom they were Jirst submitted, for the pui-pose of referring them to others, and if this be done, the allowance or disallowance of such others is void ; and though the sessions cannot delegate //<(!?> authority, they may remit such accounts to such two justices before whom they were first laid, as that is merely desiring them to execute their own original authority. (Rex v. Towns- end, 1 Bott. 805.) Balance found by Sessions Enforced.] If the sessions find a balance due from an overseer, but make no order for payment, two justices out of sessions may enforce payment to the succeeding over- seers, or a mandamus to compel such justices to do so, may be ob- tained ; for the appeal was to ascertain the amount, upon which the statutes attach, and authorize the justices to compel paj'ment of the balance. (Rex v. Carter, 4 T. R. 246.) Inspecting Rate.] A rated parishioner is entitled to inspect the books at a reasonable time. Assuming that he has no right to appeal or that the time for appeal is gone by, he may have other good reason 438 OVliRSEERS OF THE POOR. [Chap. XXI. for inspecting tlie books. He has a right to see what has been done. This applies fequally to guaidians' accounts, although their accounts ma.\ not be subject to api)eal, as overseer.s' accounts are, and the court will grant a mandamus, commanding them to allow such inspection. (Rex V. Great Faningdon, 9 Barn. & Cres. 541 ; see also Parish Books, ante, 134.) SECTION V. — LIABILITIES AND PROTECTION. Remedies against Overseers.] The negligence and misconduct lor which overseers, &c., are amenable to punishment, need scarcely be more particularly stated than appeal's incidentally in describing their duties. They may be punished in most cases by information or in- dictment, although penalties are provided by statute for the particular offence, as their disobedience of the statute is a contempt of the law. (Rex V. Commings, 5 Mod. 179.) But the couits do not encourage proceedings not according to the statutes. (Rex v. Slaughter, Cald. 246.) The sessions have no power to attach them for disobedience of their order ; in such case, the proper mode is by indictment for the misdemeanour. (Rex v. Bartlett, 1 Eott. 342.) If, however, the order be made in a matter over which the justice has no jmisdiction — as to pay a sum of money to a surgeon who had taken care of a pauper, which assistance does not come within the notion of relief to the poor, no indictment lies. (Rex v. Smith, 1 Bott. 343.) When criminally liable.] Overseers are indictable for not receiv- ing a pauper sent to them by an order of justices. (Rex v Davis, 1 Bott. 378.) An overseer proceeding through all the stages of an expensive suit, without the concmTence of a vestry, is personally liable. (Rex v. Micklefield, Cald. 507.) In general, if an overseer absent himself without lawful cause from the monthly meeting enjoined by 43 Ehz. c. 2. s. 2, or is negligent in oiBce, he shall forfeit for every default, 20s. to the poor, to be levied by one of his colleagues by waiTant of two justices, or in delault thereof, any two such justices may commit the offender to the com- mon gaol, there to remain till the said forfeiture shall be paid. But this penalty shall not be inflicted on overseers of extra-parochial places, because they have no church to meet in. (Rex v. Rufford, 8 Mod. 40.) If an overseer do not provide fur the poor, he is indictable, and if Sect, v.] LIAUILITIES AND PROTECTION. 439 he relieve the poor when there is no necessity for it, it is a misdemea- nour. (Tavvney's case, 16 Vin. Abr. tit. Poor, 415 ; 1 Bott. 371.) Mandamus to make a Rate.'\ Upon a motion for a mandamus to two of the parish officers of Soham, to compel them to sign a rate, they having refused to concur with their colleagues in so doing, and the rate being of no avail, if not signed by the majority of the church- wardens and overseers, it was stated, that the funds of the parish were exhausted, that the assessment had been recently made, and was fair and equal, and that if the court did not interfere, the paupers^ who were very numerous, would be without the means of subsisteifbe ; a large sum having been already borrowed and expended, aiid no fur- tlier advance could be obtained, if no effectual rate were made. The court said, that they could not order the two officers mentioned to sign the rate, but the mandamus might issue to the churchwardens and overseers generally to make a rate, which would fully answer the purpose. A peremptor\' mandamus was accordingly granted. (Rex V. Parish Officers of Soham. MSS. H. T. 1830, K. B. ; see ante, p. 398.) Actions against Overseers.^ An action may be sujjported against overseers for money lent them to support the poor, or for necessa- ries supplied under the pressure of immediate ivant ; (Simmons v. Wilmot, 3 Esp. Rep. 91 ;) or for surgical attendance of casual poor, and this upon an express or implied promise. (Lamb v. Bunce, 4 Maule & Sel. 275.) In these cases, however, the overseer was aware of, and did not repudiate the supply and attendance ; but in the sub- sequent case of Tomlinson v. Bentall, (5 Barn. & Cres. 738 ; 8 Dowl. & Ryl. 493,) the court seems to consider it immaterial whether the overseers directed, or knew of, the medical sewices at the time they were being rendered, as the parish, where an accident happens to a poor person, is bound to administer all necessary relief; and if the transaction be hondjide without any improper attempt to charge the parish, the liability attaches. Siipplying Provisions, ^c.,for Projit.] By the 65 Geo. 3. c. 137. s. 6, churchwardens, overseers, and other persons concerned in col- lecting the poor-rates and managing the poor, are prohibited, under a penalty of £ 100, either in their own or any other name, from furnish- ing for profit, any goods, provisions, &c., for the use of the workhouse, or the poor of their paiish, or being concerned directly or indirectly in any such contract. But upon proof on oath, that no other person competent to furnish such supplies can he found within a convenient distance, two neighbouring justices may, under their hands and seals, authorize such churchwardens, &c., to supply such articles. 440 OVERSEERS OF THE POOR. [Chap. XXJ. Action fur (he Penal fy.] Fairness of price is no answer to such an action ; but if an overseer buy provisions, and aftenvards, in the event of a scarcity, let the poor have them at the same price, without profit, he will not be within the act. (Pope v. Backhouse, 8 Taunt. 239; 2 Moore, 186.) However a guardian who sold sheep to the master of a workhouse, who provided for the poor by contract, was held liable under this act, (West v. Andrews, 5 Bam. and Aid. 328; 1 Barn. & Cres, 77,) though the act under which he was appointed, (22 Geo. 3. c. 83. s. 42,) imposes a penalty, not exceeding £20, only, for the like offence. But the act extends no further than to prevent the supply to the v^orkhouse or poor generally ; and therefore, where an overseer, upon an order for relief of a pauper, gave pai't money and part goods, he Avas held not liable, (Proctor v. Main waring, 3 Bam. & Aid. 145,) though the justices may punish him, if he forces goods upon the pauper. JVb Penalty, if not for Proft.'] In another case, where the de- iendant was sued for the penalty for having supplied coals indirectly ibr the use of the poor, and a verdict was found for the defendant, under the direction of the learned judge, and a rule nisi had been ob- tained to set the same aside. Abbot, C. J. said, " We are all of opinion that this rule must be discharged." The question in this case arises upon the construction of stat. 55 Geo. 3. c. 137. s. 6, the words are, that " no cliurchwarden or overseer of the poor, either in his own name, or in the name of any other person or persons, shall provide, furnish, or supply, for his or their own profit, any goods, materials, or provisions, for the use of any workhouse or othennse, for the support or maintenance of the poor in any parish or place for which he shall be appointed such overseer, during the time which he shall retain such appointment, nor shall be concerned directly or in- dii'cctly m furnislnng or supplying the same, or in any contract or contracts relating thereto, under a penalty of £ 100." Now, if the overseer himself, in this case, had supplied all the provisions required for the support of the poor, at prime cost, aiid not with a view to his own profit, it is quite clear that he would not have committed any offi^nce within the words of this part of the act of parliament : that was laid down by Gibbs, C. J. in Pope v. Backhouse, 8 Taunt. 248. Inasmuch, therefore, as an overseer providing, in his own name, the poor of his parish with all the provisions and goods required for their support, would not be liable to any penalty, provided he made no profit, it cannot be supposed that the legislature intended that the same overseer, who is concerned, directly or indirectly, in any con- tract for supplying any part ol" the ])rovisions, however small, should Sect, v.] LIABILITIES AND PROTECTION. 441 be liable to a penalty, altbough he cleiivetl uo profit from it. That would involve a manifest contradiction. I think, therefore, that the words, for his otvn profit, must be taken to over-ride the whole clause, and that the legislature intended that no overseer, for his ov?n pi'ofit, either in his own name, or in that of any other person, should supply the poor with provisions, nor be concerned directly or indirectly in any contract relating to it. (Skinner v. Buckee, 3 Barn. & Cres. 8.) Pleadings in an Action for the Penalty. '\ In penal actions it is essential to state, that the act complained of is against the form of the statute ; it was therefore held, that a declaration upon the above statute, to recover the £ 100 penalty, was bad, for want of an allega- tion that the act done was " against the form of the statute »'* and the judgment was airested. (Wells v. Iggulden, 3 Barn. & Cres. 186.) As to their duty in producing the books for inspection, ( See Parish Books, ante, p. 134.) Protection of Overseers.'] The 43 Eliz. c. 2. s. 19, enables an overseer to plead the general issue, to an action brought for any thing done by him under the authoiity of that act; and in case of nonsiiit or verdict in his favour, he shall recover treble damages, together with costs, i. e. single costs. (Buttertou v. Furber, 1 Brod. & Buig. 517.) The 7 Jac. 1. c. 5, and 21 Jac. 1. c. 12, enable overseers to plead the general issue, and to give the special matter in evidence, in actions for any thing done touching or .concerning their office, or by virtue thereof; and the first of these statutes gives them double costs, and the last makes the action local, find that it shall be ground of nonsuit if the plaintiff does not prove the cause of action to have originated in the county where the action is brought. Defects in Rates, Warrants, ^c] The 17 Geo. 2. c. 38. s. 8, jn-ovides, that a distress for poor-rates shall not be deemed unlawful (if the sum is really due) on account of any defect in the ap2)oint- ment, rate or waiTant ; but that the party aggrieved shall 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, (s. 10.) Limitation of Actions.] They are also within the })rotection of the 24 Geo. 2. c. 44, when levying poor-rates by distress, which re- quires a demand of the wan-ant before an action can be brought, which must also be commenced within six months after the fact com- mitted. (See " Constables," ante, 359.) But the above statute docs not extend to the action of replevin ; for the party distrained u])on, under 43 Eliz. c. 2, may replevy to try 442 OVERSEERS OF THE POOR. [Chap. XXI. tlio right to levy for the poor's rate, the 19th section of which act, gives a form of avowry. (Fletcher v. Wilkins, 6 East, 283.) Surplus of Distress.'] A formal demand is necessary before an action can be maintained against overseers for the surplus arising from a distress for poor-rates, under the 27 Geo. 2. c. 20. s. 2, and an improper tender does not make such a demand unnecessary. (Simpson v. Routh, 2 Barn. & Cres. 682.) SECTION VI. — ASSISTANT OVERSEER. By whom appointed.] The 59 Geo. 3. c. 12, authorizes the inha- bitants, assembled for the pui-jjose in vestry, to elect discreet persons to be assistant overseers ; no other qualification is required, nor is the number hmited. Upon being so elected or nominated, two justices are to appoint them by wan-ant under their hands and seals, with such salary as shall have been fixed by the inhabitants in vestry. They are to execute all the duties of overseers expressed in the wari'ants, and to continue in office till the appointment is revoked by the in- habitants in vestiy, or they resign ; and security may be taken by bond, with or without surety, and such penalty as shall be thought fit. The salary shall be j^aid out of the money raised for the relief of the poor, at such times and in such manner as shall have been agi-eed upon, between the inhabitants in ve»try and the respective persons so to be appointed, (s. 7.) Stamp on Appointment.] The election, and confirmation thereof by warrant of the justices, of assistant overseer, with salaiy under the above act, being an appointment in writing to an office or employ- ment, it comes within the stamp act. (55 Geo. 3. c. 184, tit. " Grant.") And where a pauper was so appointed, at a salary of £ 10 a-year, it was said, " this is an appointment in writing to an office or employ- ment where the yearly salary does not amount to £ 50 a-year ; it is therefore within the very words of the act, and requires a £2 stamp." (Rex V. Inh. of Lew. 8 Barn. & Cres. 655.) Bound to shotv the Rate.] An assistant overseer is under the same obligation to allow an inspection of the rates, &c. to parishioners, as overseers. (See ante, p. 134, 135.) Serving as, gives a Settlement.] The appointment is a public office or charge within the meaning of the 3 and 4 W. & M. c. 11; and an assistant overseer executes the office for himsel , and on his own account, and not merely as the deputy of the overseers. And if the warrant fixes a yearly salary to be paid to him, but is silent as to the Sect, l.j GUARDIANS AND OTHER OFriCERS. 443 length of time to which the appointment extends, that is sufficient to constitute it an annual office within the above statute, aUhough he may be removed within the year. (Rex v. Inh. of Lew. 8 Barn. & Cres. 655.) CHAPTER XXII.— INCORPORATED DISTRICTS. Section I. Guardians and other Officers. II. Workhouses. III. Maintenance of Paupers. • IV. Justices, authority herein. SECTION I. — GUARDIANS AND OTHER OFFICERS. Origin of Guardians.] The preamble of 22 Geo. 3. c. 83, by which guardians were first established, sets forth, that notwithstanding the many laws and the great sums of money raised for the relief of the poor, their sufferings are nevertheless very giievous ; and by the in- capacity or misconduct of overseers, the money so raised is frequently misapplied, and sometimes expended in indiscreet litigation. For remedy of these evils, and to introduce a prudent economy into the expenditure of the parish money, this act was passed, the provisions of which are not compulsory, but left to the voluntary adoption of such parishes as choose to avail themselves of its advantages ; and its enactments are not to affect any parish, &c., which does not agiee to adopt its provisions in the manner prescribed, (s. 44.) Guardians, t^c, how chosen.] Whenever two thirds m number and value of the owners or occupiers, according to their poor-rate, who actually attend (by 33 Geo. 3. c. 35. s. 1,) a pubhc meeting, holden pursuant to the direction of the act, shall there signify their desire to ado])t its provisions, and shall at such meeting nominate to the justices, three persons for guardians, and three others for gover- nors of the poor-house, and fix salaries to be ])aid to them respectively, and shall procure the consent of two justices to such agreement and salaries, by writing luider their hands ; they shall thenceforth be en- titled to the benefits of the act. (22 Geo. 3. c. 83. s. 3.) 444 INCORPORATED DISTRICTS. [Cliap. XXII. And whenever 8ucli two tliird ])arts of sucli persons shall exjrress then- desire, that two of the three persons so nommated may be ap- pointed guai'dians of the poor for such parish, &c., on the ground that one is msufficient, the justices are empowered to appoint two accord- ingly. (33 Geo. 3. c. 35. s. 2.) And in hke manner, where expedient for the like reason, the names oifour or more fit persons may be returned, and the justices may, by writing under their hands, appoint such and so manj^ of such persons to be guardians, as they shall think fit. (41 Geo. 3. c. 9. s. 1.) Power of Guardians.] Where guardians are appointed, neither chm'chwardens nor overseers shall intermeddle in the management of the poor, but the guardian shall be invested with all the powers (ex- cept in regard to making and collecting rates) of an overseer. But the churchwardens and ovei'seers shall continue to make and collect the poor-rate as at present, and shall pay the same to the guardian from time to time, as may be necessary for the expenses of the house and poor ; or if two parishes or places are united, they shall pay over the quotas respectively to the treasurer of such imited district, or shall pennit the treasurer to draw a draft upon them, and specify in the receipt and draft, the general purposes for which such money is to be applied ; to be allowed to the churchwardens and overseers in their accounts ; and the accounts both of them and the guardians shall be examined at every monthly meeting, and examined and passed quar- terly by the visitor, after they shall have been verified on oath before a justice. (22 Geo. 3. c. 83. ss. 7, 8.) Visitor.] The guardians of united parishes shall produce, to two justices, the agreement of union, and the names of three persons, fit in character and fortune for the ofiice of visitor ; upon which, the justices shall within three days appoint one to be \-isitor; if he refuse, then the other ; if he refuse, then the third ; and if he decline, the guardians shall serve monthly, by rotation, subject to the control of the justices. The visitor if he be not a guardian, may appoint a deputy to act in his absence, and make report to him. The visitor is to superintend every such house, to settle accounts between guardian and treasurer, and all doubts concemmg the persons who are to be sent thither, and to enforce the rules and regulations : and the guardian, treasurer, and governor are to obey his directions in all these matters. The visitor, or deputy, shall be exempt from all parochial offices, and from serving upon juries whilst he continues in office. (lb. s. 10.) If two thirds, as aforesaid, in number and value in a single parish, &c., desire to have a -visitor, they shall nominate, and the justices appoint, as aforesaid. (lb. s. 11.) Sect. I.] GUARDIANS AND OTHER OFFICERS. 445 Treasurer.] The guarclians of united parishes shall recomixieml one of their own body for a treasurer, and the justices shall appoint him, or any other guardian whom they think more fit ; which trea- surer shall give security for duly accounting, and shall keep accounts, pay bills, and lay his accounts before the guardians at evenj meeting and shall once a year, fourteen days before IMichaelmas quarter ses- sions, make out an account of the expenses, the immber of poor per- sons, their age and sex, how employed, and the amount of their earnings in the year preceding ; to be laid before the visitor, and cer- tified under his hand, if he approves of the same, to be then trans- mitted to the clerk of the peace or town clerk, and by him laid before the sessions : and such treasurer shall be allowed such annual sum, not exceeding £ 10, as the visitor, if not a guardian, shall think fit ; and if there is no such visitor, then as two justices shall appoint. (Ibid, s. 12.) Two justices, upon the application of two thirds of owners in value, &c., may appoint a treasurer for the-poor house of a single parish, with a like salary. (41 Geo. 3. c. 9. s. 3.) Governor.] Two justices of the limit may also appoint a governor of each poox"-house, upon application by two persons who signed the agreement, removeable for misbehaviour or incapacity by the visitor, with the consent of the major part of the guardians, or if a guardian be visitor, by two justices within the limit. (22 Geo. 3. c. 83. s. 9.) And by the 50 Geo. 3. c. 50. s. 4, the justices in special sessions, upon application of the majority of the overseers, may appoint the keeper to be governor, with the same powers and duties as those ap- pointed under the former act, till removed by the sessions. The governor or master of a workhouse shall not inflict coqjoral punish- ment upon adult persons under his care, for any oflTence whatever, nor confine them for longer than twenty-four hours, or till they can be had before a magistrate ; (54 Geo. 3. c. 170. s. 7 ;) nor confine any sane person with chains. {56 Geo. 3. c. 129. s. 2.) Determination of Office.] The offices of guardian, governor, visitor, and treasurer, shall determine in Easter week next after the appointment, at the public meeting held for the purposes of this act ; but they may be continued in office by agreement, or others may be recommended to the justices in their stead. (22 Geo. 3. c. 83. s. 14.) If a vacancy happen in any of the said offices, a meeting shall be called forthwith, and the vacancy filled up in the manner before men- tioned. (Ibid, s. 13.) Money Orders on Overseers, H^c] The guardians present at a monthly meeting, with the approbation of the visitor, who shall sign the same, 446 INCORPORATED DISTRICTS. [Chap. XXII. may make an order on the churcliwardens or overseers, or collector of the jjoor-rates for so much money as shall be necessary for the pur- poses of this act, and upon neglect to pay the same, the amount may be levied upon the goods and chattels of the said churchwardens, &c. (41 Geo. 3. c. 9. s. 2.) May hold Lands.'] The visitor and guardian shall be a body cor- porate, and enabled, by that name, to sue and be sued, and to take by purchase or lease any lands not exceeding in any city or Xovm one acre, and in the ojDen country twenty acres, for the site of a house and for lands to be occupied for the purposes of this act, and also all voluntary gi-ants and donations of lands for the use of the poor, (22 Geo. 3. c. 83.S. 21.) And by ss. 22, 23, bodies coqiorate, trustees, ex- ecutors, &c. are empowered to sell to them, and purchase other lands with the money. The guardians may also enclose, not exceeding ten acres, from any- waste or common near any house, with consent of the lord of the manor, and the major part in value of persons having right of com- mon thereon, for buildmg upon or improving the same for the benefit of such poor-house. (22 Geo. 3. c. 83. s. 27.) May borroiv Money.'] The visitor and guardian, where the ex- penses of erecting the building, &c., or the proportion thereof for their parish, shall amount to 100/., may borrow the same at interest, to be secured upon the poor-rate in sums not exceeding 50/. each ; and they shall keep down the interest, and if the principal be called for, they may boiTow it from some other person, by assigTiment of the se- curity, (lb. s, 20.) The other part of this section, which directs that the assessments .shall continue at the same rate till such loans are paid off, is re- pealed by the 43 Geo. 3. c. 1 10, whicli enacts that the assessments may be diminished, provided sufficient be raised to pay off annually one- twentieth part of the loans, and to keep down all interest, pursuant to 42 Geo. c. 74. Monthly Meetings.] The guardians shall meet on the first Mon- day in every month, at the poor-house, at which meeting the treasurer shall produce his accounts, and the money due to him shall be settled and adjusted, in proportion to the sums paid by the respective parishes or places, on a medium of three years next before the date of such agreement in writing. (22 Geo. 3. c. 83. s. 24.) And the churchwarden or overseer who shall have the custody of the poors-rate or account, shall attend on four days' notice, and give an account of what has been the expense at a medium of three years, or in default shall forfeit 5/. (lb. s. 25.) Sect. II.] wonKiiousES. 447 And if the gnarclian shall not attend the monthly meeting, or send some substantial inhabitant to make payments for him, in case of accident, &c. he shall forfeit not exceeding 5/. nor less than 40s. (lb. s. 26.) Inspecting their Accounts.] A rated parishioner has a right to inspect the accounts of the expenditure of the parish, kept by guardians of the poor, appointed under the 22 Geo. 3. c. 83. And the court of King's Bench granted a mandamus to the guardians, &c., com- manding them to allow such inspection. (Rex v. Great Famngdon, 9 Bam. & Cres. 541. See ante, 437.) SECTION II. — WORKHOUSES. Parishes may unite.] When two such third parts of such owners and occupiers within two or more parishes, townships, or places, shall think fit with such approbation signified under the hands of two justices, and subscribed at the foot of the agreement, to unite foi* the pui-poses of this act, and shall signify their desire at a public meeting in each of such parishes, &c., held as aforesaid, an agi'eement shall be entered into by the guardians of the poor of each parish for the pur- pose, the tenns whereof shall be entered with the clerk of the peace of the county, city,&c., and a copy left with him within three calendar months from the date of the agreement, and from that time the pa- rishes shall have the benefit of the act, (22 Geo. 3. c. 83. s. 4.) But no parish, &c., distant more than ten miles from the poor-house^ shall unite with the parish, &c., in which such poor-house is esta- blished, (lb. s. 5.) Public Meetings.] Notice of every public meeting to be held under this act shall be given in the church three successive Sundays, and a copy fixed fifteen days previous to the meeting on the church door, &c. ; and none shall vote at such meeting unless he is owner or occupier of lands assessed to the poor after the rate of tl. per annum at the least, but when there are not ten persons so qualified, then all who pay poors-rate may vote. (Id. s. 6.) Poor-houses provided.] The guardians shall provide houses, either by erecting new ones, or renting old ones, and fit them up with the approbation of the visitor, at the expense of the several places re- spectively, and provide utensils and materials for the employment of the poor*. (Id. s. 17.) Provided, that the same be situate within the parish, &c., or if se- veral be united, then within one of the parishes, &c., 8o united, and 448 INCORPORATED DISTRICTS. [Chap. XXII. not elsewhere without the consent of three parts in four of such owners, &c, assembled as aforesaid for the purpose. (22 Geo. 3. c. 83. s. 18.) May sell Poor-houses.^ The guardians, with the approbation afore- said obtained at a public meeting, may sell any house provided for the poor, and, by order of a justice, may remove persons inhabiting the same, or any other house rented, &c. by the parish, &c., if they shall refuse to quit after 14 days' notice. (lb. s. 43.) Extended to any workhouse, lands, &c. with consent of justices, notwithstanding any informality in the appointment of guardians, by 1 &2 Geo. 4. c. 6Q. s. 1. And the money arising therefrom, after discharging incumbrances, &c., is to be applied as part of the poor-rates. (lb. s. 2.) Houses hired or rented.] The houses to be hired or rented shall be taken for not more than twenty-one years, nor less than three, and be subject only to such parochial and pai'liamentary taxes as they were at the time of taking thereof. (22 Geo. 3. c. 83. s. 19.) Parishes not availing themselves of this act are not compellable to erect workhouses, but may maintain and employ their poor at their own houses. (Rex v. Wetherell, Cald. 432.) Rules, ^c. in Poor-houses. \ There are rules, orders and regula- tions specified in the act to be observed at every such poor-house, with any addiilonsina.de consistently therewith by the justices at a special sessions, if not repealed at the quarter sessions; and the govef-nors shall cause the rules to be printed in plain, legible characters, and fixed uj) in some conspicuous part of such house ; (22 Geo. 3. c. 83. s. 34 ;) and by the 49 G. 3. c. 124. s. 5, these rules, &c. may be extended, by order of two or more justices in petty sessions, to any other parishes, Si.c., as fully as in those incorporated under this act : and by the 50 Geo. 3. c. 50. s. 1, they may in like niauiier be extended to any workhouse or poor-house generally, although there be no master or mistress to su- perintend the same. The 24 Geo. 2. c. 40, enacts, that no spirituous liquors shall be sold or used in any workhouse or house of entertainment for the parish poor. SECTION III. — MAINTENANCE OF PAUPERS. Paupers in Poor-houses.] Every person sent to the house shall bring an order for his admission signed by one of the guardians, (22 Geo. 3, c. 83. s. 28.) But none shall be sent, except such as are become indigent by old Sect. III.] MAINTENANCE OF PAUPERS. 449 age, sickness, or infirmities, and are unable to acquire a maintenance by their labour ; and except snch orphans as shall be sent thither by order of the guardians, with the approbation of the visitor ; and such children as shall necessarily go with their mothers thither for suste- nance, (lb. s. 29.) Maintenance in Poor Houses.] Poor pei-sons, sent to such houses, shall be maintained at the general expense of the respective parishes or places uniting, including casual poor, (33 Geo. 3. c. 35. s. 3,) according to the terms and proportions before prescribed. And the treasurer, with the assistance of the governor, shall pro- vide all necessaries for their maintenance, and keep an account thereof. (22 Geo. 3. c. 83. s. 24.) Clothing/ of Poor.] " The guardian of the parish, &c., shall pro- vide suitable clothing for the persons sent by him to such imited poorhouse, which, if he neglect to do, the governor, or one of the guardians of such house, sliall complain to a neighbouring justice, who shall summon the guardian so neglecting, and direct him to provide such clothing as shall appear to the justice necessary; and in case of default for ten day's after such direction, the justice shall order the governor, or the guardian, making complaint, to provide the same, and demand from the guardian making neglect, the charges thereof, to be levied, with costs, by distress and sale of the goods of such guaiclian, in default of pa3aTient," (lb. 33.) Contracts for supplying Poor.] To secure the benefit of an open competition for the contracts for supplying the poor, it is provided, ** that notice of the intention to contract shall be given in the local newspapers, or by other public advertisements, at least seven days before the meeting at which such contracts are to be entered into ; and of the security which will be required for the perfonnance of such contracts. (55 Geo. 3. c. 137. s. 7.) Parties who contract for lodging, maintaining, and employing the poor, must be residents within the parish contracting, or within which the poor shall be lodged, &c., in the case of united parishes ; and one or more responsible resident householders must also give bond, jointly and severally with the contractor, in the penalty of half the assessment for the year next but one preceding ; and the contract must be approved and signed by two justices, or it shall not be valid. (45 Geo. 3. c. 54. s. 1.) If the contractor cease to reside in the parish, the contract shall cease, but the security shall remain as an indemnity against expenses incurred by the non-performance of the contract. (lb. s. 2.) And by G G 450 INCORPORATED DISTRICTS. [Chap. XXII. 50 Geo. 3. c. 50. s. 2, contractors are put upon the same footfcg as overseers with respect to the conlrolUng power of justices. Guardians, Sfc, not to supply Goods, ^c] The 22 Geo. 3. c. 83. s. 42, prohibits every visitor, guardian, or governor, from furnishing, or being concerned in interest with others in furnishing materials, clothes, goods, or provisions, for the iise of any workhouse, poor- house, or pau])ers, and from doing any work in the way of his trade for the same, within the parish, &c., for which such officer is appointed, under a penalty not exceeding £20, nor less than £o, on due con- viction thereof by a justice of the peace. (See ante 440.) Pauper Children. ] " All children of tender years become charge- able where they belong, may be sent to such poorhouse, or be placed by the guaitlian, with the approbation of the visitor, with some re- putable person in or near the parish, at such weekly allowance as shall be agreed upon, until they shall be of age to go to service, or be bound apprentice. And the Aasitor shall see that they are pro- perly treated. And when every such child shall attain such age, he shall be placed out at the expense of the paiish, &c. Provided, that if the parents, relations, or any other responsible person, shall desire to receive and provide for such poor child, the guardian shall deliver him to such parent, &c. Provided also, that nothing herein shall give any power to separate any child under the age of seven years from his parent, without tlieir consent. (22 Geo. 3. c. 83. s. 30.) Binding Children ..Apprentices.] Where a parish has united with others for the support of the poor, according to the provisions of 22 Geo. 3. c. 83, and a guardian has been appointed, the churchwardens and overseers may, nevertheless, bind poor children apprentices ; and it is not necessaiy that the guardian should sign the indentures. The 7th section is oalculated to raise a doubt upon the point; for it ex- cludes the interference of the churchwardens and overseers in the care and management of the poor, where guardians are appointed. But in subsequent parts of the statute, various powers are expressly given to guardians of the poor; and by the 30th section, they are authorized to provide for poor children until they amve at a proper age to be placed out, when they are to be bound out according to the laws then existing. One of those laws was the 43 EHz. c. 2, direct- ing, that parish apprentices shall be bound out by the churchwardens and overseers of the poor. And it is better that a binding should take place by several churchwardens and overseers, than by a smgle guardian of the poor. (Rex v. Inhabitants of Lutterworth, 3 Barn. & Cres. 487, 5 Dowl. & Rvl. 343 . ) Sect. III.] MAINTENANCE OF PAUPERS. 451 Bastards born in Wurkhouscs.'\ Illegitimate children born in such united workhouse shall be settled in the mother's parish. (lb. s. 39.) And a guardian de facto is competent to apply to a justice to take the examination of a single woman, pregnant, in order to filiate the bastard, in order to proceed against the putative father. (Rex v. Martyr, 13 East, 65.) Working Paupers.^ " The guardian may agree for the labour of any poor person, (wilUng to work, but who can get none,) at any employment suited to his capacity, and maintain him until it is pro- cured ; and during the time of such work, may receive the money earned, and apply it towards such maintenance. If the money earned exceed the sum so expended, he shall account for the surplus, which shall, within a month, be given to such poor person, if no further ex2:)enses be then incuiTed ; but if such person refuse to work, or run away from such employment, the guardian shall complain to a justice, who shall, on conviction, commit the offender to the house of correc- tion, there to be kept to hard labour not exceeding three calendar months, nor less than one." (22 Geo. 3. c. 83. s. 32.) Farming out Paupers.] " From the time that any parish, &c., shall have adopted the provisions of this act, so much of the 9 Geo. 1. c. 7, as respects the maintaining or letting out the labour of the poor by contract, shall be repealed." (22 Geo. 3. c. 83. s. 1.) " And the visitors and guardians may agree with any person for the diet or clothing of poor persons, sent to the workhouses provided by this act, and for their work and labour, so that no such agreement be for longer than twelve months, and under the control of the visitor, guardian, and governor, and also of the justices whei'e the houses shall be; two of whom, upon proof of abuse, may dissolve such contract." (lb. s. 2.) " And if any poor person, maintained in any workhouse, refuse to work at any employment suited to his age, strength, and capacity, or be guilty of drunkenness, or other misbehaviour, he shall, on convic- tion before any justice, be imprisoned in the common gaol or house of coiTection, and kept to hard laboui" for not exceeding twenty-one days." {^66 Geo. 3. c. 137. s. 5.) Paupers embezzling Goods, i^c] " Paupers embezzling, wilfully wasting, or carrying away without permission, any goods or materials belonging to the house, or any person residing there, shall, on con- viction, be committed to the house of correction, to be kept to hard labour, not exceeding six calendar inonths, nor less than two." (22 Geo. 3. c. 83. s. 40.) The 56 Geo. 3. c. 137. s. 1, j^rovides, " that the overseers shall ]irosecute paupers who pawn or sell apparel, too)s, &c., given G G 2 452 INCORPORATED DISTRICTS. [Chap. XXII. them by the parish, or who steal any such tools, apparel, utensils, goods, &c., and the persons who receive or buy them ; and the pro- perty^ in such goods and chattels shall he laid in the overseers for the time being, without specifying their names." The second section of the act directs, " that the tools, goods, &c., shall be marked, and imposes a penalty of £5, or two months' imprisonment, for defacing such marks, or for buying goods, &c., so marked, or receiving them in pledge, and three months upon paupers absconding with any such goods," &c. Neglect of Families.'] Persons able, but unwilling, to work or maintain themselves and families, shall be prosecuted by the guardians, and punished as idle and disorderly persons under 17 Geo. 2. (See Vagrants, ante 380.) " And if any guardian neglect to make com- plaint thereof against such person, to some neighbouring justice, within ten days after it come to his knowledge, he shall forfeit a sum not ex- ceeding £5, nor less than 20s. ; half to the informer, and half as other forfeitures are directed to be disposed of by this act." (22 Geo. 3. c. 83. s. 31.) Casual Poor.'] " If any poor person be retarded on his passage through any parish, &c., by reason of any accident, sickness, or bodily infirmity, the guardian living near the place where such distressed object shall be, shall provide him lodging, suitable nourishment, and assistance, and clothing, if necessary; and when he shall he fit to be removed, shall carry him to some neighbouring justices, who shall examine him on oath touching his settlement, and make an order for his removal thither, if they think fit. And the parish officer's ex- penses herein, on being certified by the said justices, or some other neighbouring justices, shall be paid by the guardian of the parish, &c., where such poor person shall be settled, if that can be discovered, and be within the same county; or, in default of payment, the same shall be levied upon the goods of such guardian, so making default after summons, by waiTant of a justice; or if such person shall die before he can be so examined, or any poor person shall be found dead in any parish, &c., to which he did not belong, the guardian there shall cause him to be buried ; the expenses whereof shall be allowed and certified by a justice, after examining into his settlement, and shall be paid by the guardian of the place where such person shall appear to have been settled, if it be within the same county ; but if the settlement cannot be discovered, or shall not be within that county, the same shall be paid by the county treasurer, on the pro- duction of such certificate.-" (22 Geo. 3. c. 83. s. 38.) The casual poor, within any parishes united under the above act, shall be relieved Sect. IV.] justices' authority ueuein. 453 by such parishes conjointly, and in the same proportions as they contribute for the other purposes of the act. (33 Geo. 3. c. 35. s. 3.) Removing, ^c. without Order.] Poor children, pregnant women, or persons afflicted with bodily infirmity, are sometimes enticed, or conveyed by parish officers, or others, from one parish, &c. to another, without any legal order of removal, with a view to ease the one parish^ &c. and to burthen the other ; it is theiefore provided, that any guar- dian or other person, so conveying or enticing, or causing or procuring it to be done, against any parish, &c. which shall adopt the provisions of this act, without an order of removal from two justices, shall for- feit not exceeding £20, nor less than £5. (22 Geo. 3. c. 83. s. 41.) Notice to Guardians.] Notices, &c. with respect to the manage- ment or removal of the poor, shall be given to the guardian, where any shall be appointed; but it shall suffice if given by mistake to the churchwarden or overseer, who shall deliver the same to the guardian, or forfeit 40s. for his neglect. (22 Geo. 3. c. 83. s. 7.) SECTION IV. JUSTICES' AUTHORITY HEREIN. Relief ordered by Justices.] On complaint tipon oath to a justice by or on behalf of any poor person belonging to any parish, &c. that the guardian hath refused such poor person proper relief, the justice, on inquiry into the circumstances 7rpon oath, by writing under his hand, may order some weekly or other relief, or direct such guardian to send such person to the poorhouse, if a fit object to be provided for there ; which order the guardian must obey within two days after he receives it, or forfeit £5, whereof so much shall be paid to such poor j^erson as the justice shall direct, the remainder to be applied as the other penalties are directed to be disposed of. (22 Geo. 3. c. 83. ss. 35. 37.) Idle or disorderly Applicants.] But if he appear to be an idle or disorderly person, and has not used proper means to get employment, or that -the husband or father of such person be an idle or disorderly person, who by neglect of, or for want of seeking work, or by sjiend- ing his money in alehouses or places of bad repute, doth not main- tain his wife and children, the justice may commit such husband or father, of such complainant, to the house of correction for any time not exceeding three calendar months, nor less than one. (lb. s. 35.) The applicant for relief having first applied to the guardians, should next make application to the visitor, if there be one, and if he 454 INCORPORATED DISTRICTS. [Chap. XXII. refuse, then thf application to a justice may follow, who is to sum- uion the giuivdiaii, antl make order as to abode. (lb. s. 36.) But if it appear that the visitor was absent from home, or is resident more than six miles from the abode of the complainant, the justice may proceed in like manner as in cases where such application has been regularly made to the visitor. (59 Geo. 3. c. 12. s. 27.) But a justice has no power to order pecuniary relief out of the poorhonse where the guardian and visitor, bemg so applied to, has directed the pauper to be received into it. (Rex v. Laugh ton, 2 Maul. &. Sel. 324.) Where a Select Vestry.^ And by 59 Geo. 3. c. 12. s. 2, it is provided, that when any complaint shall be made to any justice of the peace, of the want of adequate relief, by or on behalf of any poor inhabitant of a parish for which a select vestry shall be estabhshed by virtue of this act, or in which the relief of the poor shall be imder the management of guardians, governors, or directors, appointed by virtue of special or local acts, such justice shall not proceed therein, or take cognizance thereof, unless it shall be proved on oath before him, that application for such relief hath been first made to, and re- fused by, such select vestry, or guardians, governors, or directors ; and in such case he may summon the overseers of the poor, or any of them, to appear before any two of his majesty's justices of the peace, to answer the complaint ; and, if upon the hearing thereof it should be proved on oath, to the satisfaction of the justices, that the partv complaining, or on whose behalf the complaint shall be made, is in need of relief, and that adequate relief hath been refused by such select vestry, guardians, governors, or directors, it shall be lawful for such justices to make an order, under their hands and seals, for such relief as they in their discretion shall think necessaiy, reference being had to the character and conduct of the applicant : provided that in every such order the special cause of relief thereby directed shall be expressly stated, and that no such order shall be given for, or extend to any longer time than one month from the date thereof. Provided also, that it shall be lawful for any one justice to make an order for relief in case of urgent necessity, to be specified in such order, so as such order shall remain in force only until the assembling of such select vestry, guai'dians, governors, or directors, as aforesaid, to which such case shall relate. Special Sessions.] The justices may hold special sessions for the purposes of this act, on giving proper notices to the several justices, peace officers, and guardians. (22 Geo. 3. c. 83. s. 16.) Other Justices may act.] And it shall be lawful for justices of any other limit to act, in all cases where there is onlv one, resident or Sect. I.] POOR GENERALLY. 455 capacitated, within the limit in which tlie poorhouse is situated. (lb. s. 15.) Recovery and Application of Penalties.] All the penalties in- flicted by this act, shall be recoverable before one or more justices of the jurisdiction wherein the offender dwells, by distress, in default of payment after summons, and for want of sufficient distress the offender to be committed to the house of correction, not exceeding six, nor less than one calendar month ; which penalties, not otherwise directed, shall be paid to the treasm'er towards defraying the monthly ex- penses of the house. (22 Geo. 3. c. 83. s. 45.) Appeal.] Persons aggrieved by any act done by any justice out of sessions, concerning the execution of this act, may appeal to the next general quarter sessions, giving eight days' notice to the party complained of, and security by recognizance before a justice, with a sufficient surety to pay the costs if the appeal be determined against him ; and the j ustices are to detemiine such appeals, and award costs for or against appellants, as they shall see cause, which determination shallhejinal, and not removable by certiorari; (lb. s. 46;) and the oilier acts relatmg to the poor have a similar clause of appeal. CHAPTER XXIII— RELIEF OF THE POOR. Section I. Poor generally. II. Illegitimate Children. III. Casual Poor. IV. Lunatic Poor. SECTION I. POOR GENERALLY. Primary Obligation upon Relatives.] The poor laws were never intended to supersede the obligation which the ties of kindred impose upon all mankind to su2)port the helpless or destitute members of their family. Although it is not provided, that before relief shall be de- manded of the public, it must appear that all who stand in that rela- 466 KEMEF OF THE POOR. [Chap. XXIIT, tiou are either incapable or unwilling to discbarge this duty, yet the statute which foi-ms the gi'oundwork of the whole system, expressly recognizes the primary right of the indigent to claim support and assistance from their relatives, and affords its sanction to this moral duty. Enforced by Statutes.'\ It is enacted by the 43 EHz. c. 2, that parents, or giandfatliers, or gi-andmothers, may be assessed by justices in their quarter sessions, to the rehef of their children or grand- children ; and that children may be assessed to the relief of theii- parents ; the party assessed being of sufficient abihty, 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. The sum assessed to be paid under a penalty of 20^. a month, to be levied by distress ; or in default the party to be imprisoned till paid, the amount being in the discretion of the sessions, which, by the above statute, was confined to the quarter sessions, but the power of making such order is now extended to the petty sessions by 59 Geo. 3. c. 12. s. 26. This mode of relief can only be obtained for persons who, from iaqjotence or infirmity, are miable to work ; and by no means requires that those who can, but are unwilling to labour for their subsistence, shall be supported by their relations. (Rex v. Gulley, Fol. 47.) The order must also be made by the justices in sessions of the county ill which the ]>erson inhabits, for he camiot be so charged in a county into which he comes lor a temporary purpose, and is not a resident inhabitant. But he may be ordered to pay the contribution in any other county where the pauper relative is placed. (Rex v. Reeve, 2 Bulst. 344.) The justices cannot send poor persons from their own palish, to their relation who should maintain them, but should make an order of so much a week upon the relation. (Shermanbuiy V. Bolney, Comb. 379.) What Relations chargeable.] The act extends to natural rela- tions only, and not to such as are acquired by marriage. A father- in-law, therefore, is under no obligation to maintain his wife's child after the mother's death, nor in her lifetime ; (Tubb. v. Harrison, 4 T. R. 118;) although the husband acquire an estate with her; (Cooper V. Martin, 4 East, 76 ;) nor a father his son's wife or widow. (Rex V. Kempson, 1 Bott. 378 ; 2 Stra. 955 ;) neither is a son-m- law bound to maintain his wife's mother. (Rex v. Munday, Fort. 303.) But such an order may be made on a grandfather of sufficient ability, though the father be living, if he is unable to support his child. (Rex v. Joyce, 16 Vin. Ab. 423.) Sect. I.J POOR GENERALLY, 457 The obligation extends to no other relations than such as are enumerated in the 43 Eliz., and consequently an order cannot be made under this statute, ujoon a man, to maintain his wife while resi- dent with her, but if he runs away from her he may be punished as a rogue and a sturdy beggar. (Rex v. Davison, 11 Mod. 268.) And if the child to be relieved be a bastard child, this is clearly out of the statute 43 Eliz. (City of Westminster v. Gen'ard, 2 Bulst, 346.) Requisites of Order.'] The order must state, that the person upon whom it is made lives within the jurisdiction of the justices who make it ; and must adjudge the party charged to be of sufficient ability, and that the pauper is actually chargeable to the parish, and impotent or unable to work. It must direct and require the party to relieve the pauper, a mere recommendation being insufficient, and for how long ; an indefinite order to pay 2.t. 6d. a week is void ; but if it direct him to pay till the court shall order to the contrary, it has been considered sufficiently definite. (Rex v. Tripping, 19 Vin. 424 ; 1 Bott. 370; 2 Nolan, P. L. 264.) On whose Application.'] The order may be made as well on the application of the indigent person as oi the parish officers ; and if a sum is directed to be paid weekly, it is due- at the beginning of the week. (Rex v. Fearnley, 1 T. R. 316.) It seems the order may be retrospective, as well as for the future relief of the person who is the subject of the application. (Rex v. Joyce, 16 Vin. Ab. 423.) And it may order the party to contribute to the rehef of several children in one family. (Rex v. Robinson, 2 Burr. 799.) Punishment.] Although the statute provides a specific penalty of 20s. a month for disobedience to the order, it has been held that the party may be indicted at common law. (Id.) The remedy, in case an order is illegally made upon a person, is by removing the order into the Court of King's Bench, upon a case, if it can be obtained ; or if the defect appears on the face of the order, the court will quash it without being informed of the facts by a case. Where there is neither an apparent defect, nor a case gTanted upon which to take the judgment of the court above, the only mode of resistance is by disobedience, and proof of the illegality as a defence to an indictment, or by bringing an action for an illegal distress, if the penalty should be levied by distress and sale. Deserting Family punishable.] And persons able to maintain themselves and families, neglecting to do so, whereby they become chargeable, are punishable as rogues and vagabonds. (5 Geo. 4. c. 83. s. 3.) So husband, father, or motlier, absconding from their place of 458 RELIEF OF THE POOR. [Chap. XXIII. abode, and leaving any wife or children chargeable, the goods or pro- fits of lands, &c., of such party may be seized by order of two justices, and being confirmed by the sessions, they may be disposed of to re- imburse the parish for providing for such wife, &c. (5 Geo. I.e. 8. s. 1.) But the order should show how much of the fugitive's property should be seized, and the quantum of relief, and the period of its duration fixed by the sessions, if made prospectively. (Stable v. Dixon, 6 East. 163.) Or if they be navy or army pensioners, the two jus- tices may order jiayment of then* pension to the overseers. (59 Geo. 3. c. 12. s. 31.) What Parish must relieve. 1 Paupers whose settlement is unknown must be relieved by the parish in which they become chargeable ; and where their settlement is known, they must be forthwith removed to it, unless from sickness, accident, or infinnity, they cannot be removed without danger. (See " Casual Poor," post.) Relief to Poor Debtors.'\ By the 52 Geo. 3. c. 160, a justice is authorized to order Qd. a day to a poor debtor in gaol, not being a county gaol ; and if he belong to another parish may make an order of removal, to be suspended till his imprisonment expires, and order the overseers of the debtor's parish to pay the charges of his relief in the mean time. But if the pauper have no settlement, the charges are to be paid out of the county rate. Merchant Sailors' Families.^ If the wives or famihes of seamen in the merchant's service, become chargeable whilst they are absent on a voyage, the parish shall be reimbursed, by an order, made by two justices, on the owner, ships' steward, or agent of the vessel, to pay such sums as the parish has advanced, out of the wages due ; and upon refusal, payment may be enforced as in the case of poor-rates. (59 Geo. 3. c. 12. s. 32.) SECTION II. — ILLEGITIMATE CHILDREN. The law has vested very ample powers in magistrates, to compel the parents of illegitimate children to maintain them, so that the parish may be reheved from the burthen, where the parents, or either ol' them, is of sufficient abiUty, either wholly or in part, to provide for their subsistence. Justices' Orders herein.'] The 18 Eliz. c. 3, continued and ex- tended by 3 Car. l,c. 4.s. .15, enacts, that justices within then- several limits and precincts, and at their several sessions where any such bastard shall be bora, may examine the matter, and make an order Sect. II.] ILLEGITIMATE CHILDREN. 459 for the punishment of the mother and reputed father, as also for the relief of the paiish from the charge thereof, wholly or in part, hy charging such mother or father with the payment of money weekly, or other sustentation as they shall think meet. And the father or mother may he committed for non-performance of such order, except he, she, or they, give security to perfoiTn it, or else personally to appear at the next general sessions, to abide such order as shall then be made by the majority of the justices therein. Reputed Father to pay Expenses.] The 49 Geo. 3. c. 68, enacts, that all reasonable charges incident to the birth of a bastard child, with the expenses of apprehending the reputed father, and the costs of the order of filiation, not exceeding together £ 10, shall be borne by such rejiuted father. By 13 & 14 Car. 2. c. 12. s. 19, churchwardens and overseers are authorized to seize the goods and chattels, or profits, &c., of lands belonging to a jjutative father of a bastard child, under an order of justices, to provide for the bringing up of such child. Father may be apprehended.] By 6 Geo. 2. c. 31, if any single woman shall be delivered of any bastard child, which shall be charge- able, or likely to become so ; or shall declare herself to be with child, and that it is likely to be born a bastard, and to become chargeable to the parish, &c., and shall in either case, upon oath before one or more justices, charge any person with having gotten her with child, such justice may, upon the application of an overseer of the parish, or of a substantial householder of an extra-parochial place, issue his warrant to apprehend and bring the person so charged before the same or any other of the justices of the county, who is authorized and required to commit the accused to the common gaol or house of cor- rection of the county, &c., unless he give security to indemnify the parish, &c., or enter into a recognizance with sufficient security to appear at the next general quarter sessions, and to abide such order as shall then be made. (See " Respiting ," &c., post 460.) Committing for not answering.] One justice has not power to compel a woman to be examined under this act, although authority is .given to ane justice to hear the charge, {i. e. if the woman shall charge,) and to cause the accused to be apprehended. It is not neces- sary to infer from that enactment, that one justice has power to com- pel the woman to be examined, for that power was already given to two justices ; and although one justice may act if the woman comes voluntarily before him, and charges any person with being the father of her child, that is very diflerent from compelling her to answer in- terrogatories, and so to make such a charge. Nor does the proviso 460 Rr.LIEF OF THE POOR. [Chap. XXIII. in the fourth section remove the difficulty, the words of which are, " that it shall uot he lawful for any justice or justices to send for any woman, hefore she shall be delivered, or one month afterwards, to answer any question," &c. That is a negative ; and if an affirmative was intended to be implied, then, at all events, the justice who makes such a commitment should state on the face of the wan-ant, that a month had elapsed from the delivery of the woman, before she was sent for in order to be examined. Upon these gi'ounds a woman who had been so committed, upon being brought up by habeas corpus, was discharged. (Ex parte INIartin, 6 Barn. & Cres. 80, 9 Dowl. & Rjl. 65.) Respiting, or discharging Recognizances.^ But the 49 Geo. 3. c. 68. s. 6, repeals so much of the above as relates to cases where the woman has not been delivered ; and by s. 2, requires that the recogni- zance be entered into within three days, and re-enacts the provisions of the fonner act in such cases, with this addition : that unless one such justice shall have certified under his hand, to the sessions, that it had been proved before him on oath, that the woman had not been delivered, or had been delivered within one month, previous to the day of the sessions ; or unless two justices, &c., shall have so certified to the next, or when such woman shall have been delivered as afore- said, then to the immediately subsequent, general sessions, that an order of filiation had already been made on the person so charged, or ivas not requisite to be made on account of the death of the child, or other like sufficient reason ; in each of which cases^rstly before men- tioned, such sessions may respite the recognizance to the next general sessions, &€., without requii'ing the personal attendance of the puta- tive father so bound, or his sureties ; and in either of the two last- mentioned cases they may wholly discharge such recognizance, &c. Neglect to pay Maintenance.'] The 3rd section of the same statute enacts, that if any such father or mother, on whom any order of fihation or maintenance has been made, unappealed from, shall neglect to pay the sum ordered to be paid towards the maintenance of the child, any justice of the peace where such father or mother shall happen to be, may, and is required, upon complaint by any overseer of the parish liable to the maintenance of such bastard, or of the parish ivhere such bastard shall then be, upon proof on oath of such order, and of the money being unpaid, and of a demand and refusal of payment, or that such reputed father or mother hath left his or her usual place of abode, and avoided a demand thereof being made by such overseer, to issue his warrant to apprehend and bring before such or any other justice of the same county, &;c., such reputed father or mother, to Sect. II.] ILLEGITIMATE CHILDREN. 4G I answer such complaint ; and if payment bo not then made, or some reasonable and sufficient cause for not so doing be not shown, the said justice is required to commit such father or mother to the house of correction or county gaol, to hard labour, for three months ; unless the said money shall be paid before the expiration thereof : and so from time to time, as often as any sum shall become due by virtue of such order, after the discharge from any former imprisonment. Expenses of Filiation, 5fc.] It is provided by the 4th section, that all such charges, expenses, and costs, shall be in the discretion of the justices or sessions who make the order of filiation, except that the costs of apprehending and securing the reputed father, and mak- ing the order of filiation, shall not exceed £ 10 ; and that all the powers and provisions of the 18 Eliz. shall be used and respectively observed in the execution of this act. Bastards of Married Women.'\ Though formerly doubted, it is now settled that the bastards of married women are within these acts, being born out of lawful matrimomj. (Rex v. LufFe, 8 East. 204.) And proof whether the husband be alive or not is immaterial, if non access be distinctly proved. (Rex v. Bedall, 2 Stra. 1076.) But the rule is, that the issue of a woman manied at the time the child was begotten, shall in all cases be presiuned to be legitimate, until it be distinctly proved that the husband could not, from a natural impossi- bility, be the father, or had not, or could not have had, access at a time when by the laws of nature he could be the father of the child. (Banbury Peerage, 2 Selw. Ni. Pri. 745.) But marriage, though so recent that the child could not have been begotten in wedlock, is (juasi an admission of the husband that the child is his. ( 1 Roll. Abr. 358; 1 Bla. Com. 456.) But a child born during a divorce a vin- culo matrimonii, is of course a bastard ; if born during a divoi'ce a mensa et thoro, it is presumed to be a bastard ; but if the husband and wife are separated by voluntary deed merely, and not by sentence of the ecclesiastical court, the issue of the wife will be deemed legitimate until non access be proved. (lb. 1 Salk. 123.) Complaint, to whom made.] It is immaterial whether the two jus- tices before whom the complauit is made live " in or next unto the limits where the parish church is," &c., so that they have jurisdiction there, these words in the statute l)eing merely directory. (Rex v. Skinn, 1 Bott. 476.) But if the child be born in an extra-parochial place, it seems no order can be made. (Rex v. Baker, I Bott. 476.) And not only must the order be signed by two justices, but the previous examination must be in the presence of both. (Rex v. Beard, 2 Salk. 478; Billings v. Prinn, 2 Blac. Rep. 1017.) 462 RELIEF or THE POOR. [Cliai). XXIII. Complaint, by whom made.'] The complaint must be made by the overseei"s of the poor, or one of them; (Rex v. Fox, 1 Bott. 473 ;) but if the order state them to be " overseers of a township," it need not add, that the township maintains its own poor. (Rex v. Hartington Upper Quarter, 4 MauL & Sel. 559.) And if the com- plaint be by one who is overseer de facto, though not de jure, or by a guardian of the poor, it is sufficient. (Rex v. Mai'tyr and Fulham, 13 East, 55.) Reputed Father summoned.] The reputed father must be pre- viously summoned; (Rex v. Cotton, 1 Sess. Cas. 179, 1 Bott. 486;) but it is not necessary that he should be present at the examination ; and if he do not attend, the order may be made in his absence. (Rex V. Upton and Gray, Cald. 308, 1 Bott. 482.) It is said, however, that if the justice has reason to conclude that the putative father will avail himself of the opportunity to abscond, he need not summon him in cases of original complaint. (2 N. P. L. 288.) Evidence and Order.] The mother may be examined at any time "with her own consent, after she discovers herself with child, but she cannot be compelled to answer before her delivery, nor sent for and examined against her will until one month after it. But as the 35 Geo. 3. c. 101. s. 6, enacts, " that every unmanied woman with •child shall be deemed actually chargeable," which extends to married women pregnant under circumstances which would render the child a bastard, (Rex v. Tibbinham, 9 East, 388.) any woman so preg- nant may be examined for the purpose of removal. The mother may be examined as to all the circumstances of the intercourse, &c., except the non-access of her husband, if she be manied. (Rex v. Reading, Cas. Temp. Hard. 379.) And the ex- amination of a pregnant woman by a magistrate, in pursuance of the statute 6 Geo. 2. c. 31, has been holden evidence sufficient to war- rant the sessions in making an order of bastardy, where the woman died shortly after the delivery, &.C., before the making of tlie order. (Rex V. Ravenstone, 5 T. R. 373; Rex v. Clayton, 3 East, 58.) Warrant and Appearance.] The wanant for the apprehension of the reputed father continues in force till it is fully executed and obeyed, which may be at any time, however distant, whilst the ma- gistrate who granted it continues in the commission; and therefore where, upon such arrest, the putative father agi'eed to give a bond with sureties, but one of them not executing, he was taken again imder the same waiTant, it was held legal. (Dickson v. Brown, Peake's R. 234; Mayhew v. Parker, 8 T. R. 110.) When he is brought before the justice, he must either enter into the security, re- Sect. IT.] ILLEGITIMATE CHILDREN. 463 cognizance, &c., (see ante 459, 460,) or be committed, the magis- trate having no power to enter into the merits of the case. Order of Filiation.^ The first step after the child is horn is to obtain an adjudication as to the reputed father ; whereupon, if the child be born ahve, (Rex v. De Brouquen's, 14 East, 277,) and be chargeable, or likely to become so, (Rex v. Haitington Upper Quar- ter, 4 Maul. & Sel. 559,) an order of filiation and maintenance is made either by two justices under 18 Ehz,, or by the magistrates at sessions. There is no time limited after the birth for making such order; (Rex v. Miles, 1 Sess. Cas. 77, 1 Bott. 473;) though, if not made within six weeks after the woman has been delivered, a single magistrate having first summoned the overseers, may discharge the putative father out of custody, where he has been committed before the child was bom. The father should be summoned, (see ante 462,) though his pre- sence is not essential, and the examination should be before two jus- tices at the least. If the woman refuse to answer, they together (see ante 459,) may commit her to prison, (Rex v. West, 6 Mod. 180,) imless perhaps, if they are proceeding under 18 Ehz., by which her answers may subject her to pimishment. Other evidence is admis- sible where the mother is dead ; or the father's own confession, or the bastard, if competent in other respects, (Rex v. St. Mary, Notts., 13 East, 57, n.) may supply evidence upon which magistrates may act. Defence of the accused. 1 If the party charged appears, he may make his defence ; but it cannot be made by others in his absence, unless he is incapacitated by illness or otherwise from attending, in which case the justices ought to hear evidence in his defence. (2 N, P. L. 297 ;) and, upon considering the evidence on both sides, if they are satisfied that the person is justly charged with being the father, they should make the order of filiation accordingly. Form of the Order.] The order must be made by two or 7nore justices. (Hatton's Case, 2 Salk. 477.) It may charge the mother, (Rex V. Taylor, 3 Buit. 1681, 1 Bott. 479,) or putative father, or both, with such weekly sum for the support of the child or children, if more than one are begotten by the same father on the same mo- ther, as the justices shall thmk meet. (Rex v. Skinn, 1 Bott. 470.) * But the payment should be limited, during so long time as the child shall be chargeable; and an order to pay so much a week, in- definitely, is bad. (Rex v. Mathews, 2 Salk. 475 ; Newland v. Osman, 1 Bott. 460.) Requisites of the Order.] But an order for by-gone maintenance 464 RELIEF OF THE POOR. [Chap. XXIII. is good. (Rex V. Smith, 1 Bott. 667; Ex-parte Addis, 1 Bam. & Cres. 89.) The order must state the child to have been born in the parish; (Rex v. Butcher, 1 Stra. 437; Rex v. Stanley, Cald. 172;) the sex or name of the child must also be stated, (Rex v. England, 1 Stra. 503,) and who begot it ; (Rex v. Browne, 2 Stra. 811;) and the order must expressly adjudge him to be the putative father, (Rex v. Pitts, Doug. 661,) and that the adjudication is by two or more jus- tices. (Rex V. Weston, 2 Ld. Raym. 1198.) It must also specify the sum to be paid by the father for the expenses attending the birth, &c. (Rex V. Hartington Upper Quarter, 4 Maul. & Sel. 559.) And the examination of the woman on oath as to her delivery, and the father of the child. (2 N. P. L. 299.) But to render him liable to any of these expenses, the child must be born alive. (Rex v. De Broquens, 14 East, 277.) The county should be stated ; but if in the margin, it is sufficient to show that the justices have jurisdiction in the place where the fact arose. (Rex v. Messenger, 1 Bott. 491.) It is not essential, though usual and most proper, to state that it is made on complaint of the overseers, &c. (Rex v. Fox, 6 T. R. 148.) The same rule apphes to the statement of the putative father having been summoned. (Rex V, Clegg, 1 Stra. 475; Rex v. Clayton, 3 East, 58.) Appeal against Order by Justices.] Any person wlio shall think himself aggrieved by an order of filiation made by two justices, and not originating at the sessions, may appeal to " the next [general quarter sessions of the peace lor the county where such order shall be made. (18 Eliz. c. 3 ; 49 Geo. 3. c. 58. s. 5; Rex v. Coyston, 1 Sid. 149 ;) and a notice and recognizance to an adjourned sessions ■fv-ni not suffice. (Rex v. J J. of Lincolnshire, 3 Bam. & Cres. 548, 5 Dowl. & Ryl. 347.) Notice of Appeal.] The notice must be given to the justices who made the order, or to one of them, and also to the churchwardens and overseers of the parish on whose behalf such order shall have been made, or to one of them, ten clear days before the sessions, otherwise the appeal shall not be received or heard. (Rex v. Lincoln- shire, supra.) Contents of JK''0tice.] This notice must state the cause and matter of appeal ; that is to say, the objections to the order which the ap- pellant intends to rely upon at the sessions. (Rex v. J J. of Ox- fordshire, 1 Barn. & Cres. 279, 2 Dowl. & Ryl. 426.) It is not absolutely necessary to be in ivrifing ; a notice by parol has been holden sufficient. (Rex v. JJ. of Salop, 4 Bam. & Aid. 626 ; Rex V. JJ. of Suney, 5 Barn. & Aid. 539.) Sect. II ] ILLEGITIMATE CHILDREN. 4(35 Recognizance.] The party must also " enter into a recognizance conditioned to try such appeal, otherwise " no appeal shall he brought, received, or heard." Such is the language of the statute, (49 Geo. 3. c. 68. s. 7,) and no alleged practice can prevail against the positive words of the act. (Rex v. JJ. of Lincolnshire, 3 Barn. & Cres. 548, 5 Dovvl. & Ryl. 347.) Time/or Appealing passed.] Where an order of bastardy has been made, and the time for appealing has passed, it cannot be enforced by commitment till the party perform the order, &c., under 18 Eliz. c. 3 ; but the magistrate must proceed imder 49 Geo. 3. c. 68. s. 3, by commitment for three months, or till the money due be paid. (Ex-parte Addis, 1 Barn. & Cres. 87, 2 Dowl. & Ryl. 167.) Proceedings at the Hearing.] The appellant, (if called upon,) must first prove the service of the notice, and the entering into the recognizance. The respondents then proceed to support their order by sufficient evidence. (Rex v. Knill, 12 East, 50.) The counsel for the appellant then addresses the court upon the respondents' evidence. But if he call witnesses to controvert it, or to set up a different state of facts, the counsel for the respondents is en- titled to a reply. If the objections are formal only, the sessions may amend them under 5 Geo. 2. c. 19. (See 8 T. R. 181.) Judgment.] After hearing the counsel and the evidence on both sides, the sessions, by a majority of the justices present, merely affirm or quash the order; they cannot adjudge that the appellant is not the putative father. (Rex v. Jenkins, 2 Stra. 1050, 1 Bott. 474.) Though, if the order be substantially good, but directs something additional which is illegal, they may quash such defective part, and affinn the remainder. Their decision is final, and the appellant can- not again be called to answer for the same bastardy, (Rex v. Tenant, 2 Ld. Raym. 1423, 2 Stra. 716,) unless the order be quashed for a defect in fonn merely. Costs.] The sessions, upon appeal in cases of bastardy, shall give such " costs to the parties appealing, or appealed against, as they, in their discretion, shall judge projier." (49 Geo. 3. c. 68. s. 5.) And they cannot delegate their authority upon the quantum of costs ; therefore, if they award costs to be taxed by the clerk of the peace, it is bad. (Rex v. St. Mary's, Notts., 13 East, 57 n. ; Rex v. Skinn, 1 Bott. 470.) Certiorari.] The defendant, if dissatisfied with the decision of the sessions, may remove the proceedings by ccrtioniri into the Khig's Bench ; and if not in custody for disobedience, he may remove the order of two justices, although there has been no appeal to the ses- II u 466 RELIEF OF THE POOR. [Chap. XXIII. sions; (Rex v. Stanley, Cald. 172 ;) but if in custody, it seems the proper course is by habeas corpus; (Rex v. Bowen, 5 T. R. 156 ;) and in any of these instances he must be in court when the case is heard. (Rex v. Price, 6 T. R. 147 ; Rex v. Gibson, 1 Bla. Rep. 198.) Quashing Orders.'] The court generally decide upon what appears npou the face of the proceedings ; and if there be a substantial defect, as want of jurisdiction, or of an adjudication that the defendant is the putative father, they will quash the whole. (R. v. Tenant, 2 Stra. 716.) And although the justices need not set forth their reasons for the adjudication, yet if they do so, and they appear insuflScient, the court will quash the order. (R. v. Bi'owne, 2 Stra. 811.) But where the order is defective in one point, so that the rest may subsist as a good order by itself, they will quash the defective part only, and confirm the rest. (2 N. P. L. 314.) Security to indemnify the Parish.'] Where the routed father enters into a security, to indemnify the parish against the expenses of supporting the child, the remedy upon his default is by action at law, to be carried on by the overseers for the time being, though the security may have been entered into with any of their predecessors ; for the interest in such securities vests in the obligees as o\erseers, and passes to their successors. (54 Geo. 3. c. 170. s. 8; Addey v. WooUey, 3 B. Moore, 21.) The security is usually given by bond, but a promissory note to the parish officers is equally legal, (Cole v. Gower, 6 East, 110,) or a sum of money may be deposited. (R. v. Martin, 2 Camp. 268.) The amount is in all cases to be fixed by the overseers, (Dickinson v. Brown, Peake's R. 234,) and it operates as an indemnity only; and therefore, in an action on such bond, the obligors cannot be held to bail beyond the amount of damage actually sustained. (Kirk v. Strickland, Doug. 449.) And if a promissory note be given, the same rule prevails, and a tender of so much as the parish has been damnified is an answer to the action. (Cole v. Gower, supra; Townson v. Wilson, 1 Camp. 396.) And in the case of a deposit, the father may recover back the surplus after the child ceases to be chargeable, (Watkins V. Hewlett, 1 B. & B. 1,) for it is contrary to public poUcy to per- mit money, or other security to be taken, in such cases, as a composi- tion of the entire liability ; it can only be received as a security to indemnify the parish, (Id. ibid.,) and it is unlawful to take a sum out and out for this purpose. (Shutt v. Proctor, 2 Marsh, 224.) The parties receiving the money improperly, cannot discharge themselves by paying it over to theti' successors ; (Townson v. AV'ilson, supra ;) and if the obligor of an indemnity bond become bankrupt, the parish Sect. III.] CASUAL POOR. 467 cannot prove for the penalty, and receive a sum certain under his com- mission ; but the bankrupt remains Hable on the bond for expenses incurred after the bankruptcy, (St. Martin v. Warren, 1 Barn. & Akl. 491.) Custody of the Child. '\ It does not seem to be very clearly set- tled whether the father or the mother has the preferable title to the custody of their illegitimate child. Lord Mansfield said, that neither the father nor the mother has the legal right of guardianship. (R. V. Felton, 1 Bott. 495.) But after an order of bastardy 'has been made upon him, he may take it from the custody of the parish and maintain it himself; or, at least, if he offer to do so, no action can be maintained against him upon his bond of indemnity to the parish, (lb.; Newland v. Osman, 1 Bott. 460, 2 Saund. 83.) But Mansfield, C. J., held, that within the age of nurture, at least, the mother is entitled to the custody of the child; (Exparte Ann Knee, 1 N. R. 148 ;) and Lord Kenyon in a similar case said the father has no right to the child ; (R. v. Moss Soper, 5 T. R. 278 ;) and at all events, if he has got possession of it by fraud, the court will interfere to put mat- ters in the same situation as before. (R. v. Mosely, 5 East, 224, n.) Age of Nurture.] It appears from these decisions, that the courts will support the claim of the mother to the possession of her illegi- timate child till it is past the age of nurture. But it seems unsettled in whose custody a child, that has been afl^liated, is to remain after that period. (See Strangeways v. Robinson, 4 Taunt. 498.) Wherever it stands in need of support, the parish oflicers must provide for it, whether it remain in their own, or go with its mother into another pa- rish, (R. V. Hemlington, Cald. 6,) till it acquires a settlement in another parish. SECTION III. — CASUAL POOR. Who are casual Poor.] This class of paupers comprehends all such poor persons, who, in consequence of physical accident, sudden calamity, or any other circumstance, require immediate parochial re- lief, and thus become a burden upon the funds of that parish in which they may hapi)en to be, at the time when the necessity for such relief arises, although their legal settlement be elsewhere. By whom relieved.] The disbursements made to or for the relief of casual poor, cannot be recovered against the parish to which the pauper belongs, even in the case of continued illness ; as the law has cast the burden upon the parish where such jxauper becomes charge- able, and raises xio implied promise, on behalf of the other parish n II 2 408 RELIEF OF THE POOR. [Chap. XXITT- where he is settled, to repay the sums so expended. (Atkiiis v. Banwell, 2 East, 505 ) This obligation upon the parish where the pauper becomes charge- able, is so strong, that if a parishioner, not being a parish officer, takes care of one rendered poor and impotent from sudden accident, as by the fracture of a limb, &c., he may recover against the parish officers the sum expended for his care and support, upon an implied promise arising from this then- duty. (Per Ld. Eldon, C. J., Sim- mons V. Wilmot, 3 Esp. Rep. 92.) Servant becoming casual Poor.] The relation of master and ser- vant does not absolve the parish from the like duty, where the servant becomes suddenly disabled by misfortune ; for parishes are imder a moral, as well as a legal, obligation to take care of their casual poor. (Newby v. Wiltshire, Cald. 527; see Wennall v. Adney, 3 Bos. & Pul. 247.) The ordinary class of casual poor, that is, persons who become, by misfortune or otherwise, incapable of obtaining employment, so as to secure the means of subsistence by their own labour, may be relieved and removed to their own parish without delay. But where poor persons by accident, as the fracture of a limb, &c., or by sudden ill- ness, become chargeable, the burden is not to be thus got rid of so speedily. This is an important branch of the poor laws ; the prin- cipal points of which will be found, as they have been decided, in the following leading cases upon the subject. The pauper, M. H. was resident with her children in the parish of InkbeiTow in Worcestershire, renting a house there, and occasionally receiving relief from that parish. Upon applying as usual for relief, it was refused, and she was desired to go to Feckenham, an adjoinmg parish in which some of her husband's relations had resided ; this she did. F. refused relief, and sent her back to I. Upon her again ap- plying to I. for relief, they refused, and desu'ed her to apply again to F. ; and when she expressed an unwillingness Jo do so, one of the overseers of I. took her to F., without any order of removal, and told her not to return agaui to I. The officers of F. then relieved her, and at the same time threatened to send her to prison, if she returned to I. She therefore was afraid to return to her house at I., and re- mained in F. for eight or ten days, when she was removed by an order of two magistrates from F. to Birmingham, which the sessions confirmed. Against this order R. v. St. James, in Bury St. Edmunds, (infra,) was cited, to show she was iiremovable, as casual poor. Lord Ellenborough, C. J. : That was a very different case. This was the case of a starving vagrant, in whichever of the two parishes she Sect. III.] CASUAL POOR. 469 was, who was going backwards and forwards between them, and would have been starved, if she had not received temporary rehef from one or the other. She was hable to be removed fiom either : how then can this oscillation between the two parishes affect the order of removal to her proper parish ? Order confirmed. (R. v. Bii-mingham, 14 East, 251.) Pauper's Parish not bound to Reimburse.] A poor man settled in Ixworth, was employed by R. H. of the same parish, as a day labourer, on the 23rd Dec, 1807, to drive a load of hay to St. James's, in the town of Bury, and to return with a load of muck. In loading the muck, he fell and broke his leg. On the 24th Dec. two magistrates took his examination, made out an order of removal to his own parish, and the pauper being unable to be removed, they suspended the execution, by an indorsement on the back of the order. The pauper was attended by a surgeon by the order of the parish officers of St. James, and the expense of £16. 13s. was incurred for his cure and mainte- nance. On the 1st April, 1808, the pauper being able to move, the magistrates took off the suspension, and made the order for payment of the £16 13s. for the expenses, by indorsing the same on the order of removal, and on the same day the order was executed, and the pauper conveyed to Ixworth. Ld. EUenborough, C. J. — No person is removeable from the parish where he is, but by positive statute ; the 13 & 14 C. 2. c. 12, after reciting, that poor people endeavour to settle themselves in those parishes where there is the best stock, &c.,says that it shall be lawful, in complaint of the parish officers, within forty days after any such person coming so to settle as aforesaid, in any tenement under the yearly value of £10, for any two justices of the peace, of the division where any person likely to be chargeable to the parish shall come to inhabit, by their warrant, to remove him to the place of his last legal place of settlement. The expression of coming to settle denotes that the party comes animo morandi or manendi : it may be for a temporary purpose, but still it must be understood that he comes to settle there. But how can it be said that the pauper went into this parish animo morandi at all ? Then if he were not removable within the tei-ms of the 13 & 14 C. 2, can we find any enlargement of the power of removal ? The 35 Geo. 3. has the words inhabitiiuj or sojourninrj, but it would be an extravagant construction of cither of those terms to say that it meant to include such a case as this. Then there is no authority for this order, and the sessions have done right to quash it. — Grose, J. agreed, tv6 did Le Blanc, .1., and Baylcy, .J. : and Le Blanc, J. said, that the 35 Geo. 3. c. 101, was meant to pro- vide that persons, who by law were before removable, if likely to be- 470 RELIEF OF THE POOR. [Chap. XXIII. come chargeable, slioulcl not be removed till actually so ; and to make provision for suspending the order of removal when made in case of sickness or infirmity ; and that the expenses incurred in the care and maintenance of the persons, between the order to remove and the actual removal of them, should be defrayed by the parish to which they should be found to belong. (Rex v. St. James's, Bury St. Edmunds, 10 East, 25.) Pauper Irremoveable.] It will have been perceived that the ])auper is irremoveable from the parish where the accident happens, to the one where he is settled, so long as he remains impotent ; and that the former parish cannot recover the expenses of his mainte- nance, &c. during his illness, against the latter. It seems also that if the accident happen in one parish, and relief be awarded in another, without any fraud or device having been practised, to remove the liability from the parish where the accident has taken place, the same rule is applicable. Thus in a case presented to the court upon such facts, and where it appeared that the pauper was carried- into an ad- joining parish, because there was no house nearer, where the pauper could be received, and assistance obtained. Abbot, C. J. said, this case is not materially distinguishable from Rex v. St. James's, Bury, St. Edmund's ; and Rex v. Birmingham, is not at variance with that authority. But if it was necessary to decide between them as conflict- ing authorities, I should adhere to the opinion of the court in Rex V. St. James's, in Bury, St. Edmimd's, for the statute 13 & 14 C. 2. s. 12, only gave a power of removal of those paupers who were coming to settle. But it cannot be said this pauper was coming to settle m the parish of L. Nor does the 35 Geo. 3. c. 101, make any difference ; for jn-evious to that act, a pauper under these circumstances could not have been removed, and that act only regulated the powers of removal already existing, but did not give any new power to the magistrates for removing paupers who were iiTemoveable before. (Rex v. St. Lawrence, Ludlow^ 5 Barn. & Aid. 660.) .Occident in one Parish, Relief in another.'] " It may sometimes happen, that the parish in which the accident happens may not be the proper place to give relief. It may happen that the parish oflScers, without entering into the question, what are the limits of particular paiishes, will do that which ought to be done immediately, namely, cany the })auper to the house nearest the place where the accident happens, instead of caiTying her to a considerable distance. In Lamb v. Bunce, (4 INIaul. & Sel. 277,) the imjn-ession of the court was, that the parish in which the house was situate, was the proper paiish to have given the relief." There is no express decision upon this point, and TMr. Justice Bayley, from whose judgment in Tomlinson v. Bentall, Sect. III.] CASUAL POOR. 471 (5 Barn. & Cres. 746,) the above extract is taken, reserved it in giving his opinion. It can hardly be doubted, however, that whenever this question comes to be decided, that the courts will follow up the manifest impression of these cases, and declare that this expense must be borne by the parish in which the house is situate, where relief is afibrded, if such house is the nearest to the spot where the accident has happened, and has been chosen on that account alone, from a laudable anxiety to obtain for the pauper the most prompt and efficient assistance. (See also Rex v. St. Lawrence. Ludlow, anie 470.) Taking Pauper to his, the adjoining Parish.] It is highly pre- judicial to the rights of the poor, that when an accident has happened, the question should be agitated, or even pass in the minds of those persons in whose power the sufferer is of necessity placed, •whether a burden which must fall somewhere, must be borne by them or can by any contiivance be shifted to others. The various dicta upon this subject seem to establish that a pauper, become so, under such circumstances, obtains a settlemenl pro tempore, in the parish where the accident has left him to be relieved ; and that his settle- ment in his own parish is suspended, till the cause of its interruption is removed. The fact of his own parish being the next adjoining, and near to the spot where the accident happens, forms no exception to the rule. It was held in Tomlinson v. Bentall, already cited, that where a pauper being casually in the parish of A. met with an accident which required immediate medical assistance, and the constable of that parish improperly removed her to her own (which was the next ad- joining) parish, and sent for the surgeon of her own parish to attend her, that it was the duty of the parish officers of A. to have taken the pauper to the nearest convenient house in A., and to have pro- vided medical attendance there ; and that they could not, by improperly removmg her to another parish, relieve themselves from the liability which the law had in the first instance cast upon them : and that they were, therefore, liable to pay the surgeon's bill. Surgeon attending casual Poor.'] The parish officers bound to subsist and take care of the pauper, are also liable for the necessary medical attendance bestowed upon the sufferer. (Gent v. Tomkins, 5 Barn, and Cres. 746.) If they or any of them stand by and see such services perlbnned, and do not object, the law raises a promise to pay for the perfonnance. (I-amb v. Bunce, 4 Maule & Sel. 277.) And although the attendance is not given in their parish, but in the pauper's own parish, to which she has been wrongfully removed, yet if they know that the attendance is indispensably necessary, and that the removal was wrongAil, it is the .same. (Tomlinson v. Bentall, 412 RELIEF OF THE POOR. [Chap. XXIII. supra.) And the overseers of the pauper's own paiish are not liable in such case, although they promise " that if it is right they should pay, they will." (Gent v. Tomkins supra, 1 Dowl. & Ryl. 541.) Generally speaking, it is doubtful whether parish officers are liable to a surgeon's bill, contracted under any circumstances for the rehef of a pauper, where they are entirely ignorant that such services have been perfonned. But a deputy overseer, or even a mere stranger directing a surgeon to attend a pauper, is hable to pay the surgeon's bill. (Watling v. Walters, 1 Car. & P. 132. Atkins v.. Banwell, 2 East, 505.) SECTION IV. — PAUPER AND CRIMINAL LUNATICS. Statutory Regulations. 1 The several statutes on this subject were re- pealed, and their provisions consolidated and amended by the 9 Geo. 4. c. 40. This act relates to England only, and the Royal Hospital of Bethlehem is excepted from its operation by s. 58, but its regula- tions and directions apply to all asylums erected or established imder the repealed acts. Erecting Lunatic Asylums.'] The 2nd section provides, that justices, at the quarter sessions, may direct notice to be given in the local newspapers of their intention to take into consideration, at their next quarter sessions, the expediency of erecting such asylums or houses for the reception of insane persons, or of appointing a com- mittee to treat with the justices of adjacent counties, or -the sub- scribers to any lunatic asylum theretofore established by voluntary con- tributions, to unite with them for such purpose. Sec. 3, authorizes them at such next general quarter sessions, by a majority not less than seven, to appoint a committee to superintend the erection of such asylum, and to report thereon from time to time ; or (by s. 4.) to appoint a committee of not less than five justices to treat with the justices of adjoining counties, or the committee of any lunatic asylum, appointed for the pui-poses of the act : and by s. 5, the majority of the subscribers to any such lunatic asylum are authorized to appoint a com- mittee of not exceeding five, to treat Avith such committee of justices; -and the agieement entered into between them shall be binding, upon being signed by the majority respectively of the two committees, and approved by the majority of the justices assembleer- son renting the tolls of any tuiTipike road or navigation, residing in any toll-house thereon , or ap])rentice, or servant of any such collector or person, can gain a settlement thereby in the parish, &.c. (54 Geo. 3. c. 170; 3 Geo. 4. c. 126.) By the former of these statutes it is provided, that persons bom in prisons, or houses licensed for the reception of pregnant women, are not to acquire a settlement thereby, nor persons maintained in any charitable institution, nor prisoner for debt in actual custody, by resi- dence under such circumstances respectively. By 35 Geo. 3. c. 101. s. 4, no act done by any person continuing to i"eside in any parish, &c. under the suspension of an order for his or her removal,, or of a vagi'ant pass, shall be effectual, either in the whole or in part, for the purpose of giving him or her a settlement in the same. And the 59 Geo. 3. c. 12. s. 11 provides, that workhouses, or buildings hired for the use of the poor, wherever situate, shall be taken to be in the parish hiring them, as far as regards the settlement of persons bom or lodged therein. (See also 54 Geo. 3. c. 170. s. 3.) Derivative Settlement. ] Another mode of obtaining a settlement 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. There are two modes in which a deiivative settlement may be ac- quired — first by marriage, which entitles the wife to the husband's settlement; and, secondly, by parentage, which is the settlement legitimate children acquire in right of one or other of their pa- rents. Settlement by Birth.] The third and remaining kind of settle- ment vests in the individual in his own right, but without any act of bis 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 or place, having overseers, in England or Wales, whether legitimate or illegitimate. Indemnity against Settlement.] A covenant, with the lessor of premises in a parish, to indemnify the parish from all manner of costs, rates and charges whatsoever, for or by reason or means of the cove- nantor, his executors, administrators or assigns taking an apprentice or servant, who should thereby gain a settlement Avithin or become chargeable to the parish, is valid. This question was raised upon a demun*er to the pleas which the Sett. I.] SETTLEMENTS IN GENERAL. 485 defendant had pleaded, to an action for the breach of this covenant, and in deUvering the judgment of the court, Tindal C. J. said, (inter alia.) It was contended on the part of the defendant, first, that the plain- tiffs had no interest which would authorize them to maintain an action: secondly, that the covenant was void, on the ground that it was un- reasonable, that it was in restraint of trade, and that it was against the policy of the poor laws, inasmuch as it took away from the over- seers any reasons for economy, and was injurious to the poor them- selves. But we do not think any of the objections maintainable ; for as to the first, the covenant being an express covenant with the lessor, and not being a covenant running with the land, an action lies for the breach thereof, in the name of the personal representative of the covenantee, ^\ho becomes a trustee for the persons, whoever they may be, who are beneficially interested in the performance of the covenant. It is not contended that the covenant is illegal on the ground of the breach of any direct rule of law, or the direct violation of any statute ; and we think to hold it to be void, on the gi"ound of its impolicy or inconve- nience, we ought to be clearly satisfied that the performance of it would be necessarily attended with injury or inconvenience to the public. But such is not the case. There is nothing in the covenant which will prevent the poor generally from being employed by the defendant ; he may employ as a servant or an apprentice the poor of that parish, who may be suflicient for the service of the mill ; he may employ in those capacities the poor who have settlements m other parishes, but who have certificates from those parishes; or he may, in the case of servants, hire them for a smaller term than a year, and thereby prevent them altogether from gaining a settlement. There is, thei'efore, no general restraint of the poor from being employed in the service of the defendant in this parish. And as to any abstract right in a pauper to obtain a settlement in any parish he chooses to se- lect, as he musthave a settlement somewhere, the law will not consider a settlement in one parish rather than another as any benefit to the poor. In a case of Hill and others v. Eastaff, which was argued in B. R. in Easter Term 1819, where an action of debt was brought upon a bond, conditioned that the obligors, who vvere the church- wardens and overseers of one parish, should indeumify the obligees, who were the churchwardens and overseers of another parish, and aJl the inhabitants of that parish, from all costs, charges, and expenses which might be incun'cd by the latter parish, by reason of one Ste- venson having put himself ap])rentice to one Moor, in the latter parish, the court gave judgment for the plaintiff; and some of the objections 486 PAROCHIAL SETTLEMENTS. [Chap. XXV. above raised would liave applied as well to his case as to the one before us. Upon the whole, we think the judgment in this case should be given fur the plaintifls. (Walsh v. Fussell, 6 Bing. 169.) SECTION II. BY HIRING AND SERVICE. Statutory Provisiotis.] The division of this subject is suggested by the several enactments relating to settlements of this kind. They are briefly as follows : if any unmanied person, not ha\ing child or children, shall be lawfully hired into any parish or town for one year, and shall continue and abide in the same service during the space of one whole year, (8 & 9 W. 3. c. 30. s. 4,) the master not being a certi- ficate man, (12 Anne, st. 1. c. 18. s. 2,) nor the service being to a toll collector, (3 G. 4. c. 126. s. 51,) such service shall be a good settle- ment therein, (3 & 4. W. & M. c. 11. s. 7,) provided he have resided therein forty days. (13 & 14 Car. 2. c. 12. s. 1.) Unmarried Person.^ It has been held, that the period at which the statute requires the party to be unmarried, is the time the contract is fully and positively completed. Therefore, if he maiTy during the service, or even between the contract and entering on the service, pro- vided it be not done fraudulently, in order to evade the statute, it will not prevent the settlement. (Anthony v. Cardigan, Fol. 131 ; Rex. v. Stannington, 3 T. R. 385 ; Farringdon v. Witty, 2 Salk. 527.) Nor does it make any difference, that both parties think the servant is man-ied at the time of hiring ; as where the husband is dead abroad, but the v,'ife enteruig upon, or in the service, is ignorant of that fact ; (Rex v. Hensingham Cald. 206 ;) nor although the master know the servant is to be manned before the service commences. (Rex v. Allen- dale, 3 T. R. 382.) The servant being married at the time he makes the agreement, is likewise innnaterial, if he be single when it becomes absolute and the service commences. (Rex v. Banknewton, Burr. Sess. Ca. 455.) WitJioiit Children.'] That is child or children, who, by following their parents' settlement, might become chargeable to the parish in which one may be acquired under the new servitude. Therefore an emancipated child is not within the act, but othenvise, where the emancipation is inchoate. (Anthony v. Cardigan, Fol. 131. 2 Bott, 177; Rex v. New Forest, 5 T. R. 487. 2 Bott. 182.) It will not suffice, that the child has entered into a conti'act, which will emanci- pate him if completed ; the emancipation must be absolute at the tune of the father's contract. (Rex v. Cowhoneybonie, 10 East, 88.) Lawfully hired.'\ There must be a contract of hiring, imposing Sect. II.] BV HIRING AND SERVICE. 487 the reciprocal obligations of master and servant. (Gregory Stoke v. Pitminster, 2 Bott, 183.) And, therefore, where A. agreed to teach the pauper to make stockings for two guineas, the pauper paying the master for the .use of the frame out of his earnings, this is no hiruig. For here the parties merely agree that one shall teach the other, with- out any undertaking by the latter to serve. (Rex v. Bilborough, 1 Bai-n. & Aid. 1 15.) But the hiring may be either express, or implied from the nature of the service under it, or from other circumstances. (Rex V. Holy Trmity in Wareham, Cald. 141 ; R. v. Pendleton, 15 East, 449.) Even where there is an express hiring for part of the year, and a continuance of service for a year or more afterwards, a hiring for a year may then be presumed, in the absence of positive evidence to the contrary. (Rex v. liong ; Whatton, 5 T. R. 447.) But if it appear that there was in fact no hiring at all, this of course rebuts the presumption of a hiring. (Rex v. Weyhill. Burr. S. C. 491.) Or if the relation between the parties were that of teacher and scholar merely, this rebuts the presumjjtion of a hiring from a service. (Rex V, St. Mary Kidwelly, 2 Bam. & Cres. 750.; 4 Dowl. & Ryl. 309.) So, if the pauper be the relation of the person he served, who gave him, according to liis promise, food, washing, and lodging for his services, that will not amount to an agreement for service, binding upon the parties, and gives no settlement ; and the relation of child to the person served, destroys the presumption of a hiring. (Rex V. Sow. 1 Barn, and Aid. 178.) And hence the necessity of proof of an express contract in such a case to confer a settlement. The relationship of the parties, however, does not disqualify them from entering into such a contract. (Rex v. Chertsey, 2 T. R. 37.) And it makes no difference whetlier the child at the time of an actual huing to his father, were emancipated or not. (Rex v. Chillesford, & Rex V. Winslow, 4 Barn. & Cres. 94.) Parties must be able to contract.] The person hired must be sui juris, that is, capable of entering into such an engagement; therefore a deserter, (Rex v. Norton, 9 East, 206,) or a soldier, even with the assent of his commanding officer, cannot lawfully hire himself, so as thereby to gain a settlement, even though he be invalided and have leave of absence upon relinquishing his pay ; as he is liable to be recalled at a moment's warning, and cannot communicate to his master an absolute right to his service for the year. (Rex v, Beaiilieu, 3 Maul. & Sel. 229.) It has certainly been held, that, a hnWoied militia 7nan, being hired for a year, with an express exception that he shall be absent on duty for the month, and in lieu thereof serve a month over the year, gains a settlement, without serving that month. ( Rex v.Winch- 488 PAROCHIAL SETTLEMENTS. [Chap. XXV, comb, Doug. 391.) And Bay ley, J. in a recent case, with reference to this decision, said, " If the master chooses to engage the servant subject to the risk of his being called upon to perfoim duty as a niiUtia man during the year, it may be considered a conditional hiring; and if during the year the mihtia be not called out, a settle- ment may perhaps be gained by serving under it." But as such a person is incapable of making an unconditional contract for a whole yeai-, the court decided that, as it did not ajipear in this latter case that the pauper at the time of hiring infonned his master that he was a militia-man, no settlement was gained by serving a year vmder such a contract. (R. v. Holsworthy, 6 BaiTi. & Cres. 283.) Must be a free Agent.~\ The party serving, as well as the party- served, must have been willing to contract, and the contract must be their voluntaiy act ; and therefore a pauper-boy, hired out by the parish officers, into another parish to which he did not object, thinking he had no discretion on the subject, cannot gain a settlement by such service, there being no agreement, but a submission merely, by him. (R. v. Rickiughall Inferior, 7 East, 373 ; R. v. Stowmarket, 9 East, 211.) But where a poor boy, of the age of fourteen, offered his services to a ])erson in another parish, who agi"eed to take him into his service upon the overseer of the boy's parish undertaking to supply him with better clothes, for which the master was to pay the parish Is. per week : it was held, that this was a contract of hiring by the boy him- self, and his requiring assistance from the parish could not affect his capacity to make such an agi'eement, under which a settlement might be gained by a year's service. (R. v. Dimton, 15 East, 352.) Contract by tvlwm and ivlien made.] It is not absolutely neces- saiy that the contract of hiring should be made by the parties them- selves ; it may be made either by themselves, or by agents for them, (4 Burn's Just. 266,) if it appear that they aflei-wai-ds adopted the act of the agent ; and a son's having served under such a contract made for him by his father, is proof of his adoption of the contract ; (R. V. Burbach, 1 Maul. & Sel. 370 ;) and the acceptance of the services on the terms of a deed, prepared between the parties, and executed by the servant, who was thereby bound to serve, is alike sufficient, although the master did not execute ; and the deed ought to be received in evidence to show the terms of the hiiing. (R. v. Hough ton-le-Spring, 2 Barn. & Aid. 375.) Nor is it necessary that the master should liimself have a settlement in the parish ; (Chesham v. ]\Iissenden, 2 Bott. 178;) or even live in the pai'ish in which the servant perfomis his service. (R. v. Eldersley, 2 Bott. 274.) If the servant be hired to a college, or other pubUc establishment, and Sect. II.] BY HIRING AND SERVICE. 489 not to any particular individual or individuals, it is sufficient. (R. v. Sandhurst, 7 Barn. & Cres. 557; 1 Man. & Ryl. 95.) If the con- tract be made on a Sunday, it is not, therefore, invalid, and a service under it will confer a settlement ; for the statute 29 Car. 2. c. 7. s. 5, " for the better observation of the Lord's day" only prohibits labour, business, or work done in the course of a man's ordinary calling, and the making of such a contract by master and servant does not come within the meaning of those words. (R. v. Whitnash, 7 Bam. & Cres. 596 ; 1 Man. & Ryl. 452.) General Hiring.] Where a person engages to go into the service of a master, without stipulating for the continuance of the service for any particular period, this is a general hiring, which the law construes to be a hiring for a year, unless something appear to rebut the pre- sumption. (1 Inst. 42, b. ; R. v. Macclesfield, 3 T. R. 76.) But if the agreement be for " as long as the pauper has a mind to stop," (R. v. Christ's Parish, York, 3 Barn. & Cres. 459 ;) or " for as long time as the pauper please," (Id.) these being hirings at will, the idea of a contract for a year is completely negatived ; for it is essential to a conti'act of hiring, upon which a settlement is to be founded, that there should be nothing in it which excludes the notion of the parties having agreed for a year. (Id. 5 Dowl. & Ryl. 314.) Specific Hiring.^ Where the parties agree for a definite time, named and settled between them, this is called a specific hiring, and as the statute makes the hiring for a year essential, a specific hiring for a shorter period than a year will not confer a settlement. There must be one entire contract for a service for one whole year. Therefore successive hmngs following each other in uninten'upted suc- cession, if severally less than a year, as from May-day to Lady-day, then from Lady-day to May-day, will not gain a settlement, although they amount to a much longer period of service altogether ; (R. v. Lowther, BuiT. S. C. 674; Dunsford v. Ridgwick, 2 Salk. 535;) nor will a hiring for fifty-two weeks ; (R. v. Astley, 4 Burn's Just. 379 ; R. v. Bottcsford, 4 Barn. & Cress. 84; 6 Dowl. & Ryl. 99;) nor for a certain period, which is considered, by the custom of the country, to be a year. (R. v. Harwood, Doug. 439.) A hiring from Whitsuntide to Whitsuntide, that is from a move- able feast in one year, to the same moveable lease in the next year, however, will gain a settlement, although it comprise less than three hundred and sixty-five days. (R. v. Newstead, Bm-r. S. C. 669.) So a hiring from a day after Whitsuntide to Whitsuntide will gain a set- tlement, because the day of hiring and the feast day should be reckoned inclusive; (R. v. Navestock, Burr. S. C. 719;) or from 400 PAROCHIAL SETTLEMENTS. [Cliap. XXV. old Martinmas-day to the Old Martinmas-day following. (R. v. Skiplam, 1 T. R. 490.) But a hiring from two days after Whitsun- tide to Whitsuntide will not give a settlement. (Coomhe v. West- woodhay, 1 Str. 143; R. v. Standon Massey, 10 East, 576.) Nor will a hiring from the 13th of Octoher in one year to the 11th of October in the next year, which was leap year, for such a year comprises thr^e hundred and sixty-six days by the statute, (24 Geo. 2. c. 23;) and a hiring and service in leap year must consist of that number of days, in like manner as ordinary years must comprise three hundred and sixty-five, to give a settlement. The fiict of the hiring being pui"])osely made for less than a year in order to prevent the servant from gaining a settlement, will not make any difference. (R. v. Mursley, 1 T. R. 694 ; R. v. Haughton, 1 Str. 83.) But if an agreement be merely colourable for the pur- jiose of avoiding a settlement, but be in substance a hii-ing for a year, as for instance, a hiring for eleven months, and to give onemobth over, or a hiring three days after Michaelmas to serve till the Michaelmas following, and it was agreed with the servant, that he should give in three days after the expiration of that time, this would be considered a hiring and service for a 3-ear, and a settlement would be gained by it. (R. v. Milwich, Burr. S. C. 433.) Retrospective Hlrinff.] A reti'ospective hiring, that is, hiiing for a year, part of which has already expired, will not gain a settlement, notwithstanding the service actually coutuiues after such hiring, a whole year. The contract being vicious at the time it was made, no subsequent service can avail to amend it. (R. v. Marton, 4 T. R. 257 ; R. V. Ham. Bun-, S. C. 304.) Exceptive Hiring.'] Where the parties stipulate that upon certam days, or for any other portion of the year to which the contract relates, the servant shall be free from the obligation to serve ; this is called an exceptive hiring, and no settlement can be gained under it. (R. V. Macclesfield, Bum S. C. 458; R. v. Buckland Denham,Id. 696.) It is essential that the servant should be under the power and coercion of the master for the whole time; (R. v. Kingswinford, 4 T. R. 219 ;) if, therefore, he covenant or stipulate in the agree- ment, to work only a certain number of hours in the day, though the number be in fact a reasonable, or the usual, time in the trade, or to have Sundays or holydays at his own disposal, he cannot gam a settlement under such a hiring. (R. v. North Nibley, 5 T. R. 21.) Or, if the pauper have the option reserved of being absent from the service any part of the year, as " two or three days to see his friends," that time is to be considered as excepted out of the contract, and Sect. II.] BY HIRING AND SERVICE. 491 treated as a hiring for a year, minus the time the servant is entitled to be absent. (R. v. Leamington Priors, 8 Dowl. & Ryl. 329 ; R. v. Rushulme, 10 East, 325.) An express stipulation is not necessary, if it is apparent, from the nature of the contract, that the master has not the control over the servant for the whole year. Thus, where a pauper had been hired for three years, at £20 a year, as a looker, the duty of a looker being to superintend the flocks and fences of his employer ; when he was hired, his master told him that he should not have full employment for him, but that he would employ him as much as he could. He was not to do any work for his master other than that belonging to the oflice of looker, without receiving extra wages. During the first year and three quarters he worked for his master only, l)ut was always paid extra for any work not belonging to his office of looker. It was held, that in this case there was not any contract of hiring and service for one whole year, and that no settlement was gained under it, as the servant might have employed himself for other masters when the duties of looker did not require his attention. (R. v. Lydd, 2 Barn. & Cres. 754.) Exception part of the Contract.'\ But to have this effect, the exception must be part of the contract, and made at the same time ; for if, after the hiring is completed, it is agreed that any portion of the year shall be taken away, this will amount either to a dissolution of the contract, or a dispensation of the service, according to the cir- cumstances, but not to an exception. ( See R. v. Market Bosworth, 2 Bam. & Cres. 757.) In these cases it is the contract itself which must be looked to ; if it contain no exception, it cannot have one introduced into it afterwards ; if it do contain an exception, it is vicious, and cannot be cured of this defect by a subsequent agreement to serve for the peiiod excepted ; (R. v. Althorne, 2 Barn. & Cres. 1 12 ;) or by substituting an equivalent, as by the servant finding a fit man to do his work for the time ; (R. V.Arlington, 1 Maul. & Sel, 622 ;) or by serving the time out himself after the year has ex])ired ; (R. V. Turvey, 2 Barn. & Aid. 520;) or even if the exception is to depend upon a contingency, upon the happening of which the servant is, by the agreement, to be at liberty to serve other persons during its continuance, although in fact the contingency do not hapi)en ; in all tiiese cases the contract being essentially defective, no settlement can be gained. (R. v. Edgmond, 3 Barn. & Aid. 107.) Exceptions implied.'] But there is in every contract some implied exceptions ; as the necessary hours of rest, and for taking meals, &c. And there may be an implied exception from the custom of the 492 PAROCHIAL SETTLEMENTS. [Chap. XXV. counlrv ; as that a bleacher, according to the practice of the manufac- torv in which he was engaged, if he finished his appointed week's, work, calculated at so many pieces a-day, for six days, in less time, he had the rest of the week to do as he pleased, and also went where he chose on Sundays, without asking leave ; for here was an express hiring for a year, and no express exception in the contract, of any jiart of the year. (R. v. Honvick, 10 East, 489.) There may be a similar implied exception from the custom of business, as that a clerk is not to serve beyond a certain number of hours. (R. v. All Saints, Worcester, 1 Barn. & Aid. 322.) These implied exceptions do not break in upon the general contracts of hu-ing for a year. Conditional Hiring .'\ The distinction between a conditional and an excejitive hiring, is rather subtle, and at first sight not easily dis- covered. Mr. Justice Bayley, in delivering the judgment of the court, says, upon this subject: "The projier distinction seems to be this ; if the bargain be originally made for an entire year, and terms are introduced applicable to a continuance of the relation of master and servant during the whole year, but there is also a provision, that in a given event it shall be competent to the parties to put an end to or suspend the service for a part of the year, still a settlement is gained, if the senace is actually performed for a whole year, and neither party avails himself of the condition. A conditional hiring is, for this purpose, the same as an absolute huing, unless the condition is acted upon. An exceptive hiring is one by which the relation of master and servant will not subsist for the whole year, unless some farther arrangement be entered into ; and if, by the bai"gain, days or hours are excluded from the service, that is an exceptive hiring." (R. V. Byker, 2 Barn. & Cres. 120 ; 3 Dowl. & Ryl. 375.) It would seem, however, that a conditional hiring, as above defined, becomes an exceptive hiring, if the pro\'iso be added in the contract, that in case the service should be suspended, the servant shall be at liberty to contract with or serve another master during such suspen- sion. (See R. V. Edgmond, ante, 491.) Instances of conditional Hiring.] Where in the contract for a year, a stipulation is included for detennining the service by a month's or fortnight's notice, or, what is equivalent to a notice, payment of the wages for the same period; (R. v. Birdbroke, 4 T. R. 245 ;) or where the master stipulates that he may dismiss the servant for misconduct without any notice at all, (R. v. Sandhurst, 7 Bam. & Cres. 557; 1 Man. & Ryl. 95.) Or if the servant goes on liking a month, to have £5 a-year wages, the contract is such as will give a settlement; though, if at the end of the month the master tell him he must leave Sect. TL] BY HIRING AND SEIIVICE. 493 a fortnight before tlic end of the year, and he does so, this will defeat the settlement, although he receive the whole year's wages. (R. v. Coggeshall, 6 Maul. & Sel. 264.) A hiring at so much per week, a month's wages, or a month's warning, is a hiring for a year. (R. v. Pershore, Worcestershire, 8 Barn. & Cres. 679.) A hiring cou2)led with a condition, whereby, from subsequent cir- cumstances, the service and wages may be suspended for a short period, as to repair machinery, &c., if there be not, in fact, any suspension of the service, will gain a settlement. (R. v. Byker, supra.) So where the master doubts whether the servant is strong enough, but bids him try the service, and he continues therein. (R. v. North wold, 2 Dowl. & Ryl. 790.) A hiring for a year to work for the master's benefit, though at the same time to learn a trade, not being an appren- ticeship, will gain a settlement. (R. v. Coltishall, 5 T. R. 193 ; R. v. Shinfield, 14 East, 541.) But a contract merely on the part of the master to teach the servant a trade during the year, will not, for it is no hiring at all. (R. v. Bilborough, 1 Barn. & Aid. 115; R. v. St. Mary, Kidwally, 2 Barn. & Cres. 750 ; 4 Dowl. & Ryl. 309.) And a stipulation for a deduction from wages for illness, will not prevent a settlement. (R. v. Martham, 1 East, 239 ; 2 Bott. 228.) Where there was an express hiring " to do the offices of a servant," a stipu- lation that the servant might have what she could earn by her own labour besides, was holden not to defeat the settlement. (R. v. Chert- sey, 2 T. R. 37 ; 2 Bott. 204.) Implied Hiring.] It is not necessary that an express hirhig for a year should be proved ; if it can be inferred as a fact, from other in- dependent circumstances which properly lead to such a conclusion, or that the parties intended the pauper to serve for a year, it will be sufficient. Thus a general indefinite hiring, is a hiring for a year, un- less soniething appears that may raise a jivesumption to the contrary ; (R. V. Worfield, 5 T. R. 506 ; R. v. Seaton & Beer,Cald. 440 ; 2 Bott. 202 ; R. V. Market Bosworth, 2 Bara. & Cres. 757 ; 4 Dowl. & Ryl. 306 ;) so telling a man to go into the place of another who was a yearly servant, implies a hiring for a year; (R. v. Berwick, St. John's, Burr. S. C. 502 ; 2 Bott, 197 ;) so hiring for eleven months " and then on an end," will gain a settlement; (R. v. Macclesfield, 3 T. R. 76 ; 2 Bott. 206 ;) so a hiring for a year, and then a continu- ance in the same service without any new agreement, implies a new hiring for a year. (R. v. Croscombe, 2 Stra. 1240 ; 2 Bott. 278.) But this presumption, like all others, may be rebutted by circum- stances ap])earing in the contract itself, or otherwise. (See R. v. Stokesly, 6 T. R. 757, 2 Bott. 190.) Thus a hiring " for as long a 4t)4 PAROCHIAL SETTLEMENTS. [Chap. XXV. time as the pauper pleased," is a hiring at will, which excludes the ])resuniption of a yearly hiring. (R. v. Christ's Parish, York, 3 Bam. & Cres. 459 ; 5 Dowl. & Ryl. 314.) The same Service-I The words of the act are, " and shall contuiue and abide in the same service for one whole year." (See ante, p. 486.) " The same service " does not mean a service entii'ely under the same hiring ; for if there be a hiring for a year, and a continued ser- vice for a year, though not under the same hiring, it will be sufficient. (R. V. Ovemorton, 15 East, 347.) Thus a luring for half a year, or even for a week, and then a hiring for a year, and a service, part under the one, and part under the other, will gain a settlement, (R. v. South Moulton, 1 Ld. Raym. 426,) even although there be less than forty days' service under the yearly hiring, provided it be in the same parish. "(R. v. Adson, 5 T. R. 93.) So if there be several consecutive hirings, and then a hiiing for a year in the same service, they may be coupled in like manner; (R. V. Bagworth, Cald. 179 ;) and this whether the yearly hiring followed or preceded the others ; (R. v. Grendon Underwood, Cald. 369 ; R. V. Fillongley, 1 Bam. & Aid. 319 ;) or whether the services under these different hirings be on similar wages or not ; (R. v. Under- barrow and Bradley Field, Doug. 309, Cald. 65 ;) or although the service luider any, except the yearly huing, were under an invaUd con- ti'act, or without contract at all, for a service without a contract may be coupled with a service under one. (R. v. Dawlish, 1 Bam. & Aid. 280.) But if after a yearly hiring and service, a hiring take place for a shorter period, and the parties remove into another parish, and the service is there completed, no settlement is gained in this latter palish, as there is no service in that parish under a yearly hiring. (R. V. Apethorpe, 2 Barn. & Cres. 892 ; 4 Dowl. & Ryl. 487.) But services in successive years without a new agreement, will con- nect only when the servant at the commencement of the succeeding year is unmarried ; (R. v. St. Giles's, Cald. 54 ;) and the service for the last forty days, to give a settlement in the parish where it is per- formed, nmst be under a hiiing, made when the jDauper was unmar- ried. (R. V. Great Chilton, 5 T. R. 672.) The Service must be unbroken.] The several services must be continued and uninterrupted, even by the interval of a day ; but the interval of the fraction of a day, even although during that time the pauper actually quit the service and take away his clothes, is not material. (R. v. Fifehead, Magdalen, Burr. S. C. 116.) Thus if B. be hired from Michaelmas to Michaelmas, and A., the master, dispense with his service till the Wednesda>" after Michaelmas day, and on Sect. II.] BY HIRING AND SERVICE. 493 that clay B. goes to A. who, wishing B. to serve in a different ca- pacity to that in which he was hired, and B . refusing, it is agreed between them that B. is at Uberty to hire himself elsewhere, and goes away ; but on the same day meeting A . again, B. agi-ees to serve in the manner A. had desired ; here was a renunciation and agi-eement to dissolve the contract, with the resumption of it for a different kind of service ; but as all these circumstances took place within one dav, they are overlooked by the law, which does not regard the fraction of a day. (R. v. Grendon, Underwood, Cald. 359.) Serving Executor or Assignee of Master.~\ If the servant live part of the year with the master who hired him, and the remainder with his executor, (R. v. Ladock, Burr. S. C. 179,) or widow, (R. v. Hardhorn with Newton, 12 East, 51,) or with a person to whom the master assigned his fann, upon which the service was to be perfonned, no words dissolving the contract with the servant having jjassed be- tween them, (R. v. Ivinghoe, 1 Stra. 90,) it is sufficient. Service for a Year.'] The person hired mus tabide, either actually or constructively, in the same service for the space of a year. A person is constructively in the same service, who is absent any part of the year for a reasonable or justifiable cause. Thus, if the servant during any part of the year be })revented serving by illness, yet the time of his illness shall be reckoned in the year ; (R. v. Islip, 1 Stra. 423 ; 2 Bott. 300, 322 ;) no matter whether it happen at the beginning, middle, or end, if it be after the service has actually com- menced. (R. v. Wintersett, Cald. 298; 2 Bott. 263,310.) But where the paupei", being ill about a fortnight before the end of his year, left his master's service, and the master paid him the whole year's wages, this was held a dissolution of the contract, and no settle- ment was gained. (R. v. Sudbrooke, 4 East, 356.) Though whether the master deduct from the wages on account of the servant's illness or not, is immaterial. (R. v. Maddington, Burr. S. C. 675.) So if the servant be imprisoned by order of a magistrate, upon the complaint of the master, the tune of his imprisonment is reckoned in the year, even although it occur at the end of the year. (R. v. Hallow, 2 Barn. & Cres. 739 ; 4 Dowl. & Ryl. 299.) Sometimes the year of hiring, as from Whitsuntide to Whitsuntide, may comprise more, sometimes less, than three hun- dred and sixty-live days ; if less, a service from Whitsuntide to Whitsuntide is sufficient; (R. v. Newstead, Burr. S. C. 669 ;) if more, a service of three hundred and sixty-five days is sufficient. (R. V. Ulverstone, 7 T. R. 564, sed vide ante, p. 490.) In this res])ect more liberalitv of construction is observed with regard to the service. 496 PAROCHIAL SETTLEMENTS. [Chap. XXV. than with regard to the hiring. (R. v. Acldey, 3 T. R. 250.) And where the pauper entered the service the day before New Year's day, hanng hired himself" at £8 and his washing," and quitted two days after Christmas, receiving his full wages, that bemg the usual time that servants in that part of the country go into and quit their places, the court thought this not a yearly hiring ; but as the sessions had found it to be a hiring and service for a year, they held themselves bound by it. (R. v. Tyi-ley, 4 Barn. & Aid. 624.) Yearly Hiring implied by Wages. '\ If the reservation of weekly wages be the only circumstance from which the dm'ation of the con- tract can be collected, the presumption is, that it is to continue for a week only; but a stipulation for a month's wages, or a month's warn- ing, shows clearly that the contract was for a longer period ; and no precise tune being fixed, it was a contract for an indefinite period, or, in other words, a general hiring for a year. (R. v. Pershore, Wor- cestershire, 8 Bam. & Cres. 680.) An express hiring for a year, though at weekly wages, will gain a settlement ; (R. v, Newton Toney, 2 T. R. 453 ;) but an indejinite hiring at weekly wages is but a weekly hiring, unless there be some- thing in the agi'eement which shows the intention of the parties to have been otherwise. (R. v. Lambeth, 4 Maul. & Sel. 315.) As where the relation of master and servant cannot be put an end to by either party without a month's notice, then the hmng must be under- stood to be a hiring for a year; (R. v. Hampreston, 5 T. R. 205; R, V. Great Yarmouth, 5 Maul. & Sel. 114;) but any number of years' service at weekly wages, and a week's notice, will not gain a settlement. (R. v. Hanbury, 2 East, 423.) Nor does it seem to make any difference, where instead of being hired at yearly, monthly, or weekly wages, the servant is to work by the piece ; at least where the hu-ing is expressly for a-year ; (R. v. King's Norton, 2 Stra. 1139 ; R. v. Binningham, Doug. 333 ;) but a hiring to serve as a brickmaker from JNIichaelmas to Michaelmas, and to make a certain quantity of bricks at a stipulated price, it was held conferred no settlement, as it was a contract to serve till the completion of the job, and not for a year's senice. (R. v. Woodhurst, 1 Barn. & Aid. 325 ; see I Bla. Rep. 443.) Dispensation in the Service.] If the servant absent himself from the master's service during the year-, this absence is either dispensed with by the master, or is justifiable upon the part of the servant, or amounts to a dissolution of the contract altogether ; in the two first cases the time of absence is reckoned, m the latter not, but the time of service is reckoned up to the time of dissolution onlj'. Sect. II.] BY HIRING AM) SERVICE. 497 If the servant absent himself with the leave of the master, (R. v. Potter, Heigham, 2 Bott. 316 ; R. v. Beccles, 2 Stra. 1207; R. v. Goolaston, Id. 1232,) and his master receive him again into his ser- vice within the year, this is a dispensation merely ; (R. v. Islip, 1 Stra. 423 ;) even though the servant ran away, was brought back by a warrant, and consented to a deduction from his wages for the time he was absent. (R. v. East Shefford, 4 T. R. 804 ; R. v. Barton npon Irwell, 2 Maul. & Sel. 329.) Dissolution of the Contract.] If before the end of the year a master discharge his servant, this, if consented to by the servant, is a dissolu- tion of the contract of hiring, (R. v, Mildenhall, 12 East, 482; R. v. Bray, 3 Maul. & Sel. 20,) whether the full year's wages be paid or not. (R. V. Maidstone, 12 East, 550; R. v. Seagrave, Cald. 247; R. v. Castlechm-ch, 2 Stra. 1022.) But if the master discharge the servant by his own will, who is at the time willing to stay the whole year, and merely submits to leave the ser\ice at the master's request, or is turned away by the wrongful act of the master, this is but a dis- pensation, and not a dissolution of the contract. (R. v. St. Philip, Bii-mingham, 2 T. R. 624.) And whether the whole or only part of the wages be paid, is immaterial in such circumstances. (R. v. Hard- horn with Newton, 12 East, 51.) So if a master, leaving his house or the country, or becoming bankrupt, dismiss his servant on that account only, it amounts to no more than a dispensation. (R. v. St. Bartholomew, Cornhill, Cald. 48 ; R. v. St. Mary, Lambeth, 8 T. R. 236.) Nor will the wrongful act of the servant, of itself , put an end to the contract ; it only gives the party aggrieved a right to do so ; it puts him in a condition to elect whether he will dissolve the con- tract or not ; and if the master chooses to act upon the right which the misconduct of the servant gives him, then the contract is legally dissolved between them, just as much as if the free consent of both })arties had been given for the purpose. (R. v. Barton, Irwell, 2 Maul. & Sel. 329 ; Spain v. Amott, 2 Stark. Rej). 256.) Upon the whole, whether it be a dispensation or a dissolution is more a conclusion of fact from the circumstances of the case, than matter of law ; the only rule that can be depended on is this : — That when the parties stand in such a situation, that neither the master can coni])cl the servant to come back into his service, nor the servant can comjjcl the master to take him back, and neither of them have the legal means of compel- ling redress against the other, there is a dissolution of the contract. (R. V. King's Pyon, 4 East, 354.) Dissolved by Absence.] A servant may in some few cases justifi- ably absent himself from his master's service without his consent. K K 4!)8 PAROCHIAL SETTLEMENT. [Chap. XXV. As, for instance, near tlie end of bis year he may absent hiuiself, even against the master's will, to attend at a statute or fair to hire hini.self for tlie ensuing year, or for any other reasonable cause which the master ought to have allowed; and his so doing does not prevent his gaining a settlement, though his master refuse to take liim back. (R. V. Polesworth, 2 Bam. & Aid. 483.) But if the absence be wrongful, and the master do not, although he has the opj^ortimity, take the servant back, the law will conclude that the master left the servant to the consecpiences of his own act ; (R. v. Westmean, 2 Bott. 320 ;) or if he has no such opportunity, as where the servant is detained in custody to the end of his year, the contract is at an end in either case, from the misconduct of the ser- vant. (R. V. North Cray, 2 Bott. 322.) Dissolution by a Justice.'] The acts of Parliament which give the magistrates jurisdiction in these cases, (see 20 Geo. 2. c. 19 ; 4 Geo. 4. c. 34) confine their power herein to cases where a complaint has been made against the servant : and where, in the exercise of their discretion, they put an end to the contract, then- order must be under hand and seal. The dissolution of the contract, eif.^cted by an order of removal, is of the like naiure ; which, however wrongfully, separates him from the master, if unappealed against. (R. v. Kenilworth, 2 T. R. 598.) And though he may return in a few days to, and continue in, his master's service, the effect is the same, the contract having been de- tennined by the submission to the order of removal ; but if there be a new hiving after his return, he may, it seems, gain a settlement imder that ; (see R. v. Fillongley, 2 T. R. 709 ;) for although heretofore the return of the pauper after removal, was an ofience against the law, yet since the 35 Geo. 3. c. 101, this may admit of considerable doubt, as that act renders a person in'emoveable, unless aciually chargeable, and he may after his removal return with the means of subsistence ; it is difficult therefore to say that so returning he commits an offence. (See R. v. Barham, 8 Barn. & Cres. 104.) But in the case of an imprisonment under the 20 Geo. 2. c. 19. s. 2, upon the complaint of the master, the servant is still to be con- sidered as virtually in the master's service ; for the act gives the ma- gistrate authority to put an end to the contract ; and if upon hearing the complaint that be not done, the contract still subsists. Conse- cpaently, if the imprisonment be for the last month of the year for which the servant is hired, he in this case gains a settlement. (R. v. Hallow, 2 Barn. & Cres. 739 ; 4 Dowl. & Ryl. 299.) Whether the contract has been dissolved or not, or there has been a dispensation of part of the service, or the agreement for putting an Sect. III.] BY APPRENTICESHIP 499 end to the service, is fraudulent to defeat a settlement, is for the sessions to determine, and they ought ahvays to find the fact in such cases. (R. v. Bottesford, 4 Bam. & Cves. 84; 6 Dowl. & Ryl. 99.) And in all such cases of fraud, whether by the master, (Eastland V. Westhorsley, 1 Stra. 526,) or by the servant, (R. v. Frome Sel- wood, 2 Bott. 312,) or by the contrivance of both, (R. v. Sulgrave, 2 T. R. 376,) it is a dispensation merely, and not a dissolution. Forty Days' Residence.] In order to complete the settlement, there must be a residence at a place of rest, that is, the place where the servant takes his ordinary and sufficient sleep, without regard to the master's place of abode, (R. v. Mildenhall, 3 Barn. & Aid. 374), of forty days ; either consecutively or at different times within the year. (R. v. Denham, 1 Maul. & Sel. 221.) The parish in which he last completes a forty days' residence, is that in which he is settled ; (R V. Hedsor, Cald. 51 ; R. v. Great Bookham, Cald. 290 ; R. v. Cros- combe, 2 Stra. 1240 ;) whether it be in the parish in which he serves or not, provided the residence be with a view to the service, which condition is satisfied by the servant being there working for himself, with his master's pennission ; for he is stiU constructively in his master's service. (R. v. Nympsfield, Cald. 107.) But if he be sent to another parish on account of his becoming lunatic, his settlement remains in the former parish. (R. v. Sutton, 5 T. R. 657.) If, however, his ser- vices require him, or he have leave without fraud to reside some days in one parish, and some days in another during the last foity days, the parish in which he sleeps the night of tlie last day, is his place of settlement, provided he have slept the remaining thirtj^-nine days, to make up the requisite number at some period during the year, in the same parish ; (R. v. Ivestone, Cald. 288 ; R. v. Findon, 4 Barn. & Cres. 91 ; 6 Dowl. Ryl. 116;) and this whether the master ever resided in the parish or not. (Id. ib. St. Peter's in Oxford v. Chip- ping, Wycombe, 1 Stra. 528.) But the service, or some part of it, while he is living in that parish, must be under a yearly hiring. (R. v. Apethorpe, 2 Barn. & Cres. 895.) But the servant cannot gain a settlement in any parish in which his master or himself are, during any part of the forty days, residing under a certificate. (R. v. Egremont, 14 East, 253.) SECTION III. — RY APPRENTICESHIP. General Requisites.] The statute u])on wliich settlements by ap- prenticeship are founded, is the 3 W . & M. c. 11.; wliich by s. a enacts K K 2 OOO PAROCHIAL SETTLEMENT. [Chap. XXV. that " if any person shall he bound an apprentice by indenture, and inhabit in any town or parish, such binding and inhabitation shall be adjudged a good settlement." It is sufficient, therefore, if he is bound and inhabit as an aj^prentice, even though he be married at the time he enters into the contract, (Titchfield v. Milford, Bun-. S. C. 511,) jn'ovided the master whom he serves is not a toU-collectoi", {ante 484,) and that the parish is not protected by a certificate from some other parish. But forty days' residence is equally necessary in this as in the former kind of settlement. (See ante 499.) Distinction between Binding and Hiring.^ An imperfect contract of apprenticeship is not available for the purpose of gaining a set- tlement ; it is, therefore, important to notice the distinction between these contracts, especially as contracts of hiring are sometunes unne- cessarily executed with the formalities which are essential to an ap- prenticeship. If the contract has for its object the instruction of the party who is to learn, it is an actual or intended contract of appren- ticeship ; but if the principal object be a service to be performed to the master, it is no more than a hiring and ser\dce, although mention is made therein of the master teaching, and the servant learning, any particular art or trade. (Rex v. Bilborough, 1 Bam. & Aid. 115; Rex v. Burbach, 1 Maul. & Sal. 370 ; Rex v. MountsoiTell, 2 Id. 460.) No technical expressions are essential to a binding, provided the parties show by the words they do use in the instnmaent, an evident intention to create the relation of master and apprentice. (Rex v. Laindon, 8 T. R. 379; Rex. v. Rainliam, 1 East, 531.) Though an agreement be, in all its terms, and in the intention of the parties, for an apprenticeship, if no valid indentures are executed, no settlement is gained by the service as an apprentice ; nor as a hired servant, be- cause the party was engaged to serve as an apjjrentice, not as a hired servant. (Rex v. Margram, 5 T. R. 153; Rex v. Kingsweare, Bun-. S. C. 839 ; Rex. v. All Saints, Hereford, Bun. S. C. 656.) And though the instrument be signed and sealed by the father and master, by which the latter agrees to teach his art and mystery, &c., but is not signed by the boy, it is equally nugatory. (Rex v. Cromford, 8 East, 25.) So where a premium is given, and the master undertakes to teach a trade, but no indentures are executed in order to save the stamp duty, it is held to be a contract of apprenticeshijj, but void, and no service under it can give a settlement, either as an apprentice or hired servant. (Rex v. Highnam, Cald. 491.) Defective Apprenticeship.] It is clearly established by the autho- rities, that if an apprenticeshij), only, was contemplated by the piu-ties. Sect. III.] BY APPKENTICESHIP. 501 and there was an imperfect contract of apprenticeship, the service will give no settlement. Thus, where the father of a pauper was ahout to put him out to service, when it was suggested to him hy A., a carpen- ter, that it would he hetter for him to learn his, (A.'s) trade, instead of going to service ; and A. afterwards hired the pauper to learn his trade, and to do any other work as well as that of a carpenter ; and the pauper went to A. and served him for five years, living durin"- that time with his parents, who provided him with victuals and part of his clothing, the remainder heing provided by A., and the pauper did any work that his master ordered him to do ; and at the end of that time he agreed to work for his master as a journeyman at weekly wages ; it was held, that this was a defective contract of apprenticeship, and not a contract of lining, and that no settlement was gained thereby. (Rex v. Combe, 8 Barn. & Cres. 82 ; Rex v. St. Margaret's, King's Lynn, 6 Barn. & Cres. 97, 9 Dowl. & Ryl. 160.) Hiring to learn a Trade.] But where none of the above circum- stances, tending to establish that an apprenticeship was intended, occur, and the party is to serve, and his object in entering into the contract is to learn a trade, but he is also to do the service of a servant, or any work his master sets him about, and no premium is given, that is decisive to show that he must he considered as a hired servant, and the instruction in the trade as part of his wages. (Rex v. Coltishall, 5T. R. 193; Rex v. Martham, 1 East, 239.) And the cases seem to proceed upon the principle, " that all contracts of service for the purpose of instruction, which are not in form contracts of appren- ticeship, are to be taken as contracts of hiring, unless it appear that an apprenticeship was intended ; and that under such a contract a settlement may be gained," (See Rex v. Laindon, 8 T. R. 379; Rex v. Little Bolton, Cald. 367; Rex v. Shinfield, 14 East, 541.) The Binding essential.] This must be by indentures, that is by deed, duly stamped and executed with the usual formalities ; but in- denting is dispensed with, by 31 G. 2. c. 11, and is, therefore, not necessary. (Rex v. Ditchingham, 4T.R. 769.) In the case oi'voluntarg bindings, that is where the apprentice binds himself, both master and apprentice should be parties to, and execute the deed. (Rex v. Crom- ford, 8 East 25 ; Rex v. Ripon, 9 East, 295.) But trustees of a charity, authorized to advance a sum of money upon the binding out of poor boys, need not in such case be parties also. (Rex v. Quain- ton, 2 Maul. & Sel. 338.) The age of the person binding himself is immaterial, so as he be nut under the age of seven years. 502 PAROCHIAL SETTLEMENT. [Chap. XXV. Binding to ivliom.'\ The master's condition in life is immaterial if there is no fraud ; thus, a female vavcy be bound to a day labourer, to learn the art of a housewife. (Rex v. St. Margaret's, Lincoln, 1 Bott. 613.) And tliough the master has no right under the statute to take an apprentice, (2 Bott. 370.,) or be himself a minor, (Rex v. St. Petrox, Dartmouth, 4 T. R. 196.,) or the apprentice be not more than seven years old, (Rex v. Saltren Cald. 444., but see as to parish apprentices, fost 508,) or put out by the parish officers to a master in another pa- rish or county, (Rex v. St. Nicholas, Notts. 2 T. R. 726,) the binding is good : nor is it material whether the master be of any, or what trade. (Rex V. St. Margaret's, Lincoln, BmT. S. C. 728.) So, though the 2)arent's consent do not appear ; because an infant may make a contract for his own benefit. (NewbeiTy v. St. Mary's, Fol. 154.) And the rule is the same where an infant is bound from the workhouse, by the privity of the parish ofl5cers who made the agreement, and paid the premium, but did not execute it as a parish binding. (Rex v. Amndel, 5 Maul. & Sel. 257.) But a binding to a certificate man confers no settlement, (12 Anne, St. 1. c. 18. s. 2.,) in the place where the certificate is itv force, and the act extends to a binding and service with the widow of the certificated person. (Rex v. Hampton, 5 T. R. 266.) It also extends to a service with a certificated person, where the apprentice lias been previously bound to one not certificated ; (Ramsey v. St. Michael's, Southampton, Burr. S. C. 640 ;) and likewise to the case where the service is by agi'eemcnt or assignment, under another person, if the binding is to a certificate man. (Rex v. Hinckley, 4 T. R. 371.) Term for which bound.] The 5 Eliz. c. 4. directs, that the binding shall be for seven years, and the 43 EHz. c. 2. enacts, that 7nale apprentices shall be bound till they are 24 years of age, (al- tered by 18 Geo. 3. c. 47. to 21 years,) and feinale till they are 21, or the time of their mamage ; but it is held, that these statutes are merely directory, and that indentures not made in conformity thereto are not void, but voidable only, at the option of the parties. Thus a binding for 4 years, (Grey v. Cookson, 16 East, 27.) or till the aj)- prentice is 23, or 21, (Rex v. Chalbmy, 1 Bott. 610,) or till the female is 21, omitting the alternative of her marriage, will confer a settlement. (Rex v. St. Petrox, Burr. S. C. 248.) And it is said, that an indenture is good under the act, although it covenants for no certain time. (Rex v. Woolstanton, 1 Const. 606.) Execution of Indentures.] A father has no power to bind his son api)rentice without his assent, which assent must be signified by his tfxecution of the indenture ; nor is his adoption of the contract by Sect. III.] BY APPRENTICESHIP. 503 serving under it, elains the circumstances under which magistrates, in such bindings, must sign and seal, as distinguished from those in which their signing is sufficient. The pauper, Jane Bishop, in 1818 was bound an apprentice by the parish officers of Tedburn, St. Mary, to one Henry Belworthy : the indenture by which she was so bound was made in pursuance of a previous order of two justices, to which reference was made by its date, and was duly executed by the said parish officers and the master. An allowance thereof was written at the foot, which was signed by two justices, but was not under seal. On occasion of this binding, an expense of seventeen shillings was incurred by the parochial funds of the parish of Tedburn, St. Mary ; namely, seven shillings as the costs of preparing the indenture, and ten shillings which were given to the master of the pauper. The Court, after hearing the ai'^ument upon the case, held tliat where an apprentice is bound by indenture, to which the parish officers are parties, an allowance by the justices, under the 5G Geo. 3. c. 139, will be sufficient, if it be under the hands (without the seals) of the justices. But where, upon the binding, a part of the premium, or any expense in resjieet of the indenture, comes out of the parish funds, and the parish officers are not parties to the indenture, the allowance in conformity with the above act must be imder the seals as well as the hands of the justices. The judgment of the Court was delivered by Mr. Justice Bayley, who, after stating the facts, said, — " We have considered the case, and we have consulted with my Lord Tenterden, who concurs in opi- nion with us. We think the ten first sections of the act apply to cases where the parish officers are parties to the indenture, and that the 11th section is applicable only to cases in which they do not join in the in- denture. This has been intimated, but not expressly decided, in former cases. The preamble to the 1 1th section shows this, by the use of the- word " clandestinely." (The learned judge read the preamble.) And to remedy the mischief there described, it provided, that there should be an allowance by justices, and that their allowance B:hould be imder their hands and seals. The former ten sections, which were evidently confined to parish bindings, provided for an allowance uKnoly umler I. I. 514 PAROCHIAL SETTLEMENTS. [Chap. XXV, the hands of the justices. Therefore, the only case to which that section is appHcable, is where the parish officers, by not joining in the indenture, may be considered as binding the apprentice clandestinely." (R. V. St. Paul, Exeter, M. T. 1829. MSS.) Assignment and new Indenture.'] The piinciple of a service under another by assignment or permission, is, that it is constructively a service under the original master ; it must, therefore, be in the same trade, with the express consent of the master, he ha\dng at the time power to control the apprentice •, and it must be under the indentmres, so that he is in effect still serving as an apprentice under the original contract. (R. v. Whitchurch, 1 Barn. & Cres. 574; R. V. Shipton, 8 Bam. & Cres. 88.) Thus, where the pauper, or parish apprentice, bound till he should be twenty-one, served about eight years, when it was agi-eed that he should go to C, who was of the same trade, to serve him the remainder of the tenn, and C. agreed to pay his master Is. 6d. per week during that period, and the pauper accord- ingly went to C. and continued serving him with his master's express consent, and after he had been there three weeks, the original inden- ture was given up by his master to C, and a netv indenture of ap- prenticeship was made between the pauper, his father-in-law, his master, and. C, without reference to the original indenture, and for a longer period than the original term, and containing some pronsions differing from those m the original indenture : it was held, that the pau- per (hd not gain a settlement by serving C. as upon a constrtxctive service, under the first indenture, with his master's consent, although C. con- tinued to pay his master the Is. 6d. per week under the agi-eement. (R. v. Ecclesfield, 6 Maul. & Sel. 173; R. v. Christowe, 11 East, 95.) Assignment on Death of Master.] The 32 G. 3. c. 57, provides, that in case of the death of the master, two justices may, upon ap- plication being made within three months aftenvards by the widow, son, daughter, brother, sister, executor, or administrator, by indorse- ment on the indenture or counteiiDart, order the apprentice to serve the remainder of his tenn with any one of such persons making the application ; such person having lived with, and been part of, the family at the time of the death of the master, as they shall think fit : the person at the same time declaring his acceptance of such order by •signing his name thereto, upon which the relation of master and ap- prentice is to subsist, the same as if the original binding had been to such person. But if no such application be made within three calen- dar months from the death, or being made, the justices should not think fit to transfer the service as aforesaid, the indenture shall be at an end, the same as if the term thereof had full}' expired. But this Sect, in.] BY APPRENTICESHIP. 515 regulation is only to extentl to parish apprentices living in the family of their masters at the time of the death, (s. 5.) Upon this latter provision it has been held, that where a parish apprentice served the son of the mistress to whom he was originally hound, she having given up her fann to her son, and continued witii him till her death, he could not gain a settlement in another parish by serving another person, with the son's consent given after the mother's decease. For the act recites, that the service is at an end upon the mistress's death ; and service by which a settlement is to be acquired, according to section 5, means a service with a subsequent master or mistress, who becomes so by the provisions of the act • it is the service under the authorized substitution that the act applies to. (R. V. Sheepshead, 15 East, 59.) Inhabifancy by Apprentice.] There must be an inhabiting for forty days under the indenture. The inhabitancy is where the ap- prentice lodges, and the settlement is gained there, though the service be in another parish. (St. John v. St. James, Bishop's Kenny, 1 Stra. 694.) And the settlement is gained where the apprentice lodges the last forty days of the apprenticeship, even although he do no service during that time ; (R. v. Charles, Burr, S. C. 707 ;) un- less he lodge merely on account of illness, (R. v. Baiinby-in-the- Marsh, 7 East, 381,) for the lodging must be for the puiposes of the apprenticeship. But if he perform 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, he gains a set- tlement there. (R. v. Stratford-upon-Avon, 11 East, 176.) Where an apprentice to a barge-master, who had slept thirty-five nights in the master's parish during his service, went with his master on a voyage to London, where the master absconded, and never re- turned during the period of the indentures ; but the apprentice returned in the barge to the master's parish, and remained on board two days, when, in consequence of illness, he was, by direction of his master's wife, conveyed to the poor-house, she being unable to accom- modate him in her own house, but was maintained there entirely at her expense, in the expectation of her husband's return, during three weeks, while he continued there ; it was held, that his residence in the poor-house, at the expense of the master's v.ife, was virtually a residence in the master's house, under a continuance of the contract, and that the apprentice acqiured a settlement in the master's parish. (R. v. Foulness, 6 Maul. & Sel. 351.) Sleeping Saturday and Sunday Nights.] If the apprentice be allowed to sleep at his father's, in another i)arish, on Saturdays and I. L 2 516 PAROCHIAL SETTLEMENTS. [Chap. XXV. Sundays, he gains no settlement there in consequence. (R. v. Ilkestone, 4 Barn. &Cres. 64, 6 Dowl. & Ryl. 64.) But where the apprentice worked with his master during the week in one parish, and returned ^rith him from their work to his master's house in another parish on Saturday evenings, where he slept on Saturday and Simday evenings, he gained a settlement by inhabitancy under the indenture in the latter parish. The case of R. v. Ilkestone is very distinguishable from the present. There the ajjprentice was allowed by his master, as a matter of indulgence to go to \n?, father's every Saturday, and to sleep there every Saturday and Sunday, and it was expressly found there that the apprentice during those periods of absence did no work for his master. Here the apprentice passes the Saturday and Sunday nights at his master's house, and on the Monday again accompanies him to his work, having been in the interval under the eye and conti-ol of his master, and, for aught that appears, performing all his biddings. (R. v. Warden, 2 Man. & Ryl. 27.) Where the master and apprentice were both in the local militia at B. during the last forty days, the apprentice was holden to have gained his settlement in B. (R. v. Chelmsford, 3 Bam. & Aid. 411.) Residence on board Ship.^ Apprentices to seafaring men, lodging on board ship, gain their settlement in that parish in which the shiji lay during the last entire forty days they slept on board. (St. Marv Colechurch v. Radcliffe, 1 Stra. 60.) It may be doubtful whether this rule holds, if the ship go into the port for a mere casual jjurpose, as to repair a leak, or the like ; (R. v. Barton Bradstock, Burr. S. C. 537 ;) but if the ship go there for the purposes of trade, or the hke, a residence there will confer' a settlement in the parish to which such port belongs. Residence and Service must concur.'] But where the apprentice is absent from the master, the service must be actually or constructively going on, to enable an apprentice to gain a settlement during that time; (R. v. Brotton, 4 Barn. & Aid. 84;) but, it suffices if he is serving another person with his master's consent. (R. v. Iddesleigh, 4 Dowl. & Ryl. 332.) But where an apprentice, not being wanted, went back to school, it was holden that his residence at school did not gain a settlement, for the service did not continue whUe he was at school, and the apprenticeship was suspended for the time. (R. v. St. Mary Bredin, Canterbury, 2 Bam. & AW. 382.) So a mere casual residence will not gain a settlement, as where an apprentice, who had been hired out by his master to a person m another parish, where he slept, and the service to such other person being detennined, returned and slept one night in his master's parish, without any in- Sect. III.] BY APPRENTICESHIP. 517 tention of returning into his master's service, and without his master's knowledge, and in fact never did return to his master's service ; (R. V. Smarden, 13 East, 452 ;) or where an apprentice left his master's parish and service, and went and slept in a paiisli where he was allowed occasionally to sleep before, (R. v. Ribchester, 2 Maul. & Sel. 135,) it was holden in these cases, that the apprentice gained no settlement in the parish he slept in last. And if the apprentice serve another, under a general licence from his master to sei-ve whom he chooses, (R. v. Holy Tiinity, 3 T. R. 605,) there being no express assent of the master to the particular service, (R. v. Whitchurch, 1 Bara. & Cres. 574 ; 2 Dowl. & Ryl. 845,) or serves another with the knowledge of the master, but without his actual consent, (R. v. Ideford, BmT. S. C. 821 ; see a note on this case, Cald. 129,) no settlement is gained. An apprentice bound to one who lives in one parish, with intent to serve another who lives in another parish, and he serves the latter accordingly, gains a settle- ment in the parish of the latter; (Holy Trinity v. Shoreditch, 1 Stra. 10;) and the rule is the same if the indenture be assigned. (St. Olave's V. All-Hallows, 1 Sess. Cas. 215 ; R. v. Barnsley, 1 Maul. & Sel. 377.) Consecutive Days' Residence.'] It will be seen by the previous cases, that forty days' residence consecutively, is not necessary. (See also, R. V. Cirencester, 1 Stra. 579.) If the apprentice live with his master forty days at A. and forty days at B., and then one day at A., he is settled in A. (R. v. Brighthelmstone, 5 T. R. 188.) And although the forty days' residence must be within a year to give a settlement by hiring and service, (see R. v. Denham, 1 Maul. & Sel. 221,) the rule does not apply to cases of apprenticeship. Discharging from Indentures.'] The Court of King's Bench has no authority to discharge an apprentice from his indentures. (Ex- parte Gill, 7 East, 376.) But the indentures may be discharged, — 1st, by application of either party to two justices, or to the quarter ses- sions; — 2nd, by death of the master; — 3rd, the apprentice attaining his majority ; — 4th, by consent. D'lscharge by Justices.] The power given to two justices over in- dentures, is created by 20 Geo. 2. c. 19 ; and before the 1st Oct. 1816, extended only to parish apprentices, and to any other apprentice, upon whose binding no larger premium was paid than £5, (altered now by 4 Geo. 4. c. 29, to £25.) The 3rd section enacts, that in such cases, upon complaint by the apprentice, of any misusage, cruelty, or ill- treatment by his master, &c., they may summon such master ; and, upon proof upon oath of the comi)laint to their satisfaction, may dis- 518 PAROCHIAL SETTLEMENTS. [Chap. XXV. charge the indentures by wan-ant or certificate under their hands and seals, without fees. Sect. 4, gives the Hke power, in case of complaint by the master, &c., concerning any miscarriage or ill-behaviour by the apprentice, to punish the latter by commitment to the house of coiTection and hard labour, not exceeding one calendar month, or by discharging him in manner and form aforesaid. It has been determined upon this section, that although the com- plaint must be verified upon oath, it need not be the oath of the master, &c., who may know nothing of the facts themselves. (Finley v., Jowle, 12 East, 248.) It has likewise been held, that this act is not repealed by 6 Geo. 3. c. 28. s. 21, which empowers justices, when an apprentice absents himself at any time thereafter, when he shall be found, if within seven years after the expiration of his term, to order him to serve his said master for so long as he shall have ab- sconded, unless he makes satisfaction for the loss sustained thereby ; the remedy by this statute being cumulative. (Gray v. Cookson, 16 East, 13.) An appeal is given, except against any order of commitment, to the next general quarter sessions ; but no certiorari is allowed. By the 33 Geo. 3. c. 55, justices may fine masters for ill using their appren- tices, whether bound by the parish or otherwise, where the premium does not exceed £ 10, extended by 4 Geo. 4. c. 29, to £25. And by 32 Geo. 3. c. 57. s. 8, two justices may discharge any parish ap- prentice with whom not more than £5 premium has been given, upon the master becoming insolvent or unable to maintain his ap- prentice. Discharge by Sessions.] The 5 Eliz. c. 4. s. 35, gives a more ex- tensive power to the sessions in like cases, though it directs that the first application may be to one justice, or mayor, or other head officer of the place, who is to endeavour to compound the matter between the parties ; but if he fail therein, he is to take bond for the appearance of the master at the next sessions, which means, sessions having jurisdiction where the master lives, although the apprentice is bound elsewhere (R. v. Collingburne_, 1 Stra. 663.) The power of dis charge is confined in counties to four justices at the least, assembled at a general sessions ; and if the order be made at a private sessions, it may be set aside. (Anon. Skin. 98.) The sessions possess jurisdiction, although no application has been made to one justice, kc. (R. v. Johnson, 1 Salk. 68 ; R. v. Easman, 2 Stra. 1014.) And the sessions may proceed in the master's absence, if he has been duly summoned. The discharge may be Sect. III.] BY AP£'REM'1CESH!I>. 519 upon the complaint of either party, hut the sessions must set forth some cause in their order. (Id. Ditton's case, 2 Salk. 490.) Form of the Order.} If an order merel}^ states that the master " misused his apprentice," or " used him unkindly," or " refused in court to take him again," &c., it does not show a sufficient ground for his discharge ; neither is it enough that he has manied without his master's consent ; and there is no power to discharge for sickness, (R. V. Hales Owen, 1 Stra. 99,) though idiotcy is a sufficient gi-ound for such discharge. (Anon. Skin. 114. Bum's Justice, " Apprentice.") Money given with the apprentice may he ordered to he returned upon such discharge. (R. v. Johnson, 1 Salk. 68; 2 Salk. 491 ; see Bac. Ah. C. " Master and Servant.") The order of sessions must he under the hands and seals of four justices, and enrolled as the act directs, or the superior com! will set it aside. (R. v. Hales Owen, 1 Stra. 99.) Discharge by Death, ^c] The relation of master and apprentice is detenninable by the death of either, though the latter may con- tinue the relation with the master's representatives, at the option of the parties, and his executors are liable upon his covenants if they have assets. (R. v. Peck, Salk. QQ.) But the 32 Geo. 3. c. 57. s. 2, provides, that the covenant for the maintenance of parish apprentices with whom no more than £ 5 shall be given, shall continue in force no longer than three months after the death of the master, &c., during which time the apprentice shall continue to seiTe the executors as then* apprentice : but if within that period the indentures are not assigned, &c., (see ante, p. 513,) they are at an end. Discharging voidable Indenture. '\ An indenture which is voidable for some defect, is dissoluble in any of the ways in which a valid indenture may be detemiined, that is, by cancelling, delivering up, orby judicial sentence. It may also be avoided by some act of either of the parties, declaratory of his election, to avail himself of the defect. Thus, persons bound for a time extending beyond their minority, may upon attaining the age of twenty-one, put an end to the inden- tures, unless bound to serve beyond it under the authority of an act of parliament. (Exparte Davis, 5 T. R. 715.) But in all these cases of avoiding indentures on account of some defect therein, the ap- prentice must regularly declare his intention, during the service, to do so ; and an apprentice v.lio is brought before a magistrate for run- ning away from his master's service, cannot then allege liis right to avoid the indentui'es, in justification of his absconding, for he cauuol make use of his offence hi order to avoid the punishment that attends it. (R. V. Evered, Cald. 20; Gray v. Cookson, 16 East, 28.) 520 PAROCHIAL SETTLEMENTS. [Chap. XXV. A minor is competent to elect to dissolve a voidable indenture. Discharge by Consent.] If the apprentice bound by a valid in- denture is an infant, his master cannot discharge the indentures by his consent alone ; (R. v. Austrey, Burr. S. C. 441 ; R. v. Hindring- ham, 6 T. R. 558 ;) but it may be done with his father's consent, or any person in loco parentis. (R. v. St. INIary Kallendar, Burr. S. C. 274.) In the case of parish apprentices under age, the parish oflBcers, as well as the other parties, must concur ; (R. v. Langham, Cald. 126 ; R. V. Heddington, Burr. S. C. 766 ;) but the master and parish ap- prentice oifull age, may cancel the indentm'es by agreement. (R. v. Hai-berton, 1 T. R. 139.) Manner of discharging.] The discharge of indentures should be by actual cancellation, as by drawing a pen through them, or tearing the names and seals off; (R. v. Spaunton, Burr. S. C. 801 ;) or by exchange, or mutually delivering them up, either with or with- out an indorsement. (R. v. Mountsonell, 3 Maul. & Sel. 497.) But the discharge has been held complete, in several instances, where the indentures have remained undefaced with the master. Thus where he receives money of the apprentice of full age to vacate them, the relation is dissolved ; (R. v. Devonshii'e, Cald. 32 ;) so where a parish apprentice, bound till he should be twenty-four, ran away a month before he was twenty-one, and the father, at his instance, some months afterwards bought out the remainder of his time, and took a receipt for it, but left the indentures in the master's hands, it was held that they were put an end to. (R. v. Harberton, 1 T. R. 139.) But miless they are actually cancelled, or the master agrees imcondition- ally to give them up for a good and valid consideration, they still subsist; (R. v. Skeffington, 3 Bam. & Aid. 382 ;) and in a recent case, where the master verbally agi'eed upon being paid £ 3 to set his apprentice at liberty, and to give him up his indenture, it was held that the indenture was not thereby discharged so as to fix the settle- ment of the apprentice in the parish where he slept last, before the making of such agreement. (R. v. Warden, 2 Man. & Ryl. 24.) If the agreement is conditional, the indentures remain in force till the condition is performed, although the apprentice is treated in the interim as one sui juris, uncontrolled by the indentures. (R. v. Chip- ping Warden, 8 T. R. 108; R. v. Shebbear, 1 East, 73.) And a mere agTcement, without sufficient consideration, does not put an end to the indentures. (R. v. Bow, 4 Maul. & Sel. 383.) AND AGKlCllLTUi ^FOREIGN NEWS. FRANCE. 3in the McsMger des Chamhres — " A telegraphi Itch which arrived three days since brought th to the ^overnnieiit of the treaty between Cartli [eiiietti and ('ount St. Aulaire havinj^ been con <1. The treaty brou;;ht is in conformity will roposiii;)ns of our ambassador. The episode o na is tlius terminated ; the honour of Franci , not allow any other issue. The evacuation oi art, as we have several linies stated, will ta!« simultaneously wiiii that of tile .'^ustiians, wnt the arrival of the Swiss, who cannot reach theii lation for several months. We may in the inear expect that the Bolo;,'nese will be delivered ovei e inquisitorial justice of Rome, and did we not m iccna to witness tliis result ? We say, v/ith re to the evacuation of Ancona, what we hav. li declared ; we have too jjood an opinion of ou •limeiit to think that they would submit to an' gement un worthy themselves and ns. " e hear from private accounts tiiat which ih ::h papers confirm, viz that the Ancona afpai L'rniiaated in an arranjieiKent which has been ac Id by tlie Fiench and Papal Governments. Thi iiular terms nf the arrangement are not yet known liters from Vannes of the I9th inst. contain par. i.rs of no less than eight fires, which had taker I within three days in different viliaj^es in the de- !ient of IMoibihan. Fifty-six houses were con. d in these tires, which were evidently the work lendiaries. Tliree suspected individuals, one ol ,1 had a stick of sulphur in his possession, have arrested at Lertlomo ; and a woman, in whose :iiiion was found a quantity of dry powdered , supposed to be intended as a substitute for tin. las been taken into custody near L'Orient. e French Government is forming a canal to unite nay of Biscay with the iMediterranean. It will ];y vessels of from one hundred to one hundred lifty tons. j PORTUGAL. elligence has been received from IMadeira, to the list, which states that " The island was blockaded e squadron of Don Pedro, consistint; of a ftifjate guns, a brig of 20, and a .schooner of 4 «uns, in anie of Donna Maria. The Con.suls of Eofrland, :e, and America, had been on board the Terceira but no official communication was maiie by ; the statements respecting the blockade vary : COURT OF KING'S BENCH, Aprils Re.T V. Inhabiiants of North Cerney^ Glow shire — A \voman took a tenement in the par Winchcomb, in the county of Gloucester, atav rent of £'d, and married a man of the name ofj say, from the neighbouring parish of Cerney. i question in the case was, whether the man hi' this marriage gained a settlement in which thei; tenement was situate. It was clear that the himself could not have gained a settlement byn- a tenement of less than i'lOa.year; and it wasj tended that it would he a strange anomaly toi that the woman, who had not herself gained a si meit, had conferred on the man, by the matria' right which she herself had not. It appeared, ■ ever, that it had been decided in one ca^^e thats marriage did confer a right of settlement w man, and it was contended that the decision o not now to be disturbed — The settlement vns tained. Hea.' V. ItihabUants of Diirslei/, Middkm man from the parish of Dursley took a house! parish of St.- George, Hanover-square, at a re considerably more "than £10 a-year, and paid than £10 of the rent, but not the whole of tbr which he had contracted to pay. The question whether, under these circumstances, the mm gained a settlement in St. George's, Hanover.s<] By an Act of .'ij'th George II J. it was necessnvi the rent should be £10 at least, and that, ho'r much beyond that sum the rent might be, it wa' cessary that the whole of it should be paid befor person renting could acquire a settlement Ai of the tith George IV. was passed to amend U the 59th Geo. III., but it was held bv the .Judges of this Court, sitting in the Hail Court,, the necessity of payment of the whole rent stli mained as before ; but it was admitted that it| very doubtful whether it was the meaning ofl Act that payment of £I0 should be sufficient toi the settlement, although the whole of the stipui rent should not have been paid. Thereupon tfci of 1 William IV'. was passed, called an Actf' plain and amend the Act of the tith Geo. IV.. that Act the payment of the £10 was made m to support a settlement, although that mign; the whole of the rent stipulated. The pre.- occurred m the interval between the passing i two Acts, and the question, therefore, as to v the settlement was gained in the parish of St (■ depended on whether the Act of William IV. retrospective effect. The Court was of opinion li had, and sustained the settlement. I V 1 •i \^ V ^-^1 ^^' 'Si ^ \^ ^^ \ V ^ i Sect. IV.] BY KENTING A TENEMENT. 521 SECTION IV. BY RENTING A TENEMENT. Period of the Renting.'] In order to discover whether a person Las acquhed a settlement by rentnig a tenement, it is necessary in the first place, to ascertain the date of such renting, as there are three several periods in which the conditions necessary to obtain a settlement by this means, differ from each other. The subject therefore divides itself into three parts : first, a renting before the 59 Geo. 3. c. 50, that is, before the 2nd July 1819 ; secondly, a renting under that statute, or within that date and the 22nd of June 1825, which is the date of the 6 Geo. 4. c. 57 ; and, thirdly, rentings at any time since the passing of this latter statute, which regulates the mode of acquiring this species of settlement to the present time. Renting, T«:. [Chap. XXV. thereby gain a settlement. (R. v. Ashton-under-Lyne, 4 Maul. & Sel. 357.) Term for which taken.} A taking for less than a year, pro- vided the yearly value of the tenement were £10, and there were forty days' occupation, would have been sufficient to con- fer a settlement. (R. v. Shenstone, Buit. S. C. 474.) Thus, the taking of a room by the week, or if no time were mentioned, would suffice. (R. V. Whitechapel; R, v. Brampton, 4 T. R, 348.) And a soldier who took a house for himself and family while his regiment lay in bairacks, was held to have gained a settlement. (R. V. Brighthelmstone, 1 Barn. & Aid. 270.) Although it was at one time said, that two distinct tenements in two parishes, making together £10 per annum, would give no settle- ment, yet it was afterwards expressly decided, that two distinct te- nements, one being in one parish, and the other being in another, constituted a sufficient tenement within the act. (R. v. Sandwich, Burr. S. C. 46.) Residence.] There must be a residence of forty days in the parish, &c., in which the tenement or part of it is situate. (R. v. Knighton, 2 T. R. 48 ; Rex v. South Lynn, 5 T. R. 664.) But where a per- son had a residence in two several parishes at the same time, and he resided in one of them for forty days, at intervals, and slept there the last night when both tenancies expired, the settlement was gained there, though his family resided on the tenement in the other parish all the time. (R. v. St. Mary's, Lambeth, 8 T. R. 240.) But passing the last night there, though he was occupied in packing up his goods, and did not sleep, was held sufficient to detenuine the set- tlement. (R. V. Ringwood, 1 Maul. & Sel. 381.) If the tenant remove, or be removed even forcibly from his tenement, before the forty days, he gains no settlement. (R. v. Llanbedergoch, 7 T. R. 105.) A residence of forty days is indispensably necessaiy for that pur- pose, {ib.) But a residence as a widow, and a residence as the wife of her late husband, cannot be coupled so as to fonn a forty days' residence in all. (R. V. South Lynn, 5 T. R. 664.) It was at one time thought that the residence must be an actual re- sidence upon some part of the tenement. (See R. v. Bardwell, 2 Bam. & Cres. 162 — 164.) But it has since been decided, that a re- sidence in any part of the parish was sufficient. (R. v. Kenarding- ton, 6 Barn. & Cres. 70.) Settlements between July 1819, and June 1825.] The 59 G. 3. c. 50, was passed on the 2nd July 1819, and was repealed on the Sect, IV.] BY RENTING A TENEMENT. 527 22ntl Jane 1825. All settlements, therefore, acquired In this inter- val, by renting a tenement, must be governed by this statute. It is as follows : — " Whereas, many disputes and controversies have arisen respecting the settling of the poor people in parishes in England, by the renting of tenements, be it enacted. That from and after the passing of this act, no person shall acquire a settlement in any parish or township maintaining its own poor, in England, by, or by reason of, his or her dwelling for forty days in any tenement rented by such person, unless such tenement shall consist of a hoitse or building within such parish or township, or of both, bona fide hired by such person at, and for the sum of ten pounds a-year at the least for the term of one whole year ; nor miless such house or building shall be held, and such land occupied, and the rent for the same actually paid for the term of one tvliole year at the least, by the person hiring the same ; nor unless the whole of such land shall be situate within the same parish or town- ship as the house wherein the person hiring such land shall dwell and inhabit ; any thing in any act or acts, or any construction of, or implica- tion from, any act or acts, or any usage or custom to the contrary, in any wise, notwithstanding."' It will be perceived, by the parts marked in italics, which indicate the several conditions precedent to the gaining of a settlement by renting a tenement, that the law was very materially altered by tlie statute. Operation of 59 Geo. 3. c. 50.] If the pauper has not resided for forty days before the passing of this act, it operates upon the case just the same as if there had been no previous residence. (R. v. St. Mary-le-bone, 4 Barn. & Aid. 681.) Thus, though the pauper took a tenement on the 21st May, under a written agreement, and paid rent from that time, yet, as he did not actually take possession till the 4th June, between which and the passing of the act only twenty-eight days elapsed, he gained no settlement under the old law, and consequently, as the case fell within this statute, a year's oc- cupation became necessary. (R. v. Brighton, 1 Dowl. & Ryl. 313.) Renting £10 a-year, 59 Geo. 3. c. 50.] The rent must have been at least £10 a-year ; therefore, where a pauper held a house at the annual rent of £8, from Lady-day, to Michaelmas 1821, and a different house from Michaelmas 1821, to Lady -day 1822, at the an- nual rent of £9, and during the whole of that period was the tenant of a piece of garden giound, at the rent of £2 2s., but had agreed with a third person to share the expense and profits arising from cul- tivating the garden, and the person paid half the rent to the pauper. 528 PAROCHIAL SETTLEMENTS. [Chap. XXV. l)ut tlie latter paid the whole to the landlord, it was held, that no set- tlement was gained by the operation of this act, as the pauper occm- ^?W to the amount of £9 Is. only during part of the year. (R. V. Tonbridge, 6 Barn. & Cres. 88; 9 Dowl. & Ryl. 128.) But a holding of a house or building is sufficient, and therefore, where the pauper occupied together a house and garden, and paid rent during the year, though taken at different times, and of different per- sons, the house at six guineas, and the garden at £3. 15s. per annum, and he underlet one room a;t thirty shillings a-year, by which he ac- tually occupied less, though he held more than to the amount of £10, yet this was considered sufficient to give a settlement under this act. (R. V. North Collingham, 1 Barn. & Cres. 578; 2 Dowl. & Ryl. 743.) But if the pauper occupy a piece of potatoe land, and have the keep of two cows in addition to his house, by the kindness of his master, this will not now suffice, though the annual value be sufficient. (R. V. Benneworth, 2 Barn. & Cres. 775; 4 Dowl. & Ryl. 354.) Hired and occupied, 59 Geo. 3. c. 50.) In analogy to the case of a hiring and service for a year, the hiring of a tenement under this act was good, notwithstanding it was accompanied with stipulations which rendered it defeasible. (See R. v. Herstmonceaux, 7 Barn. & Cres. 551 ■; 1 Man. & Ryl. 426.) And prima facie, a general hiring must be presumed to lie a yearly hiring, and that presumjition is the stronger where the subject matter of the lining is land. (R. V. Wainfleet, 8 Bam. & Cres. 229.) But the taking must have been bonajidehy the party, and a fraudu- lent intent vitiated the contract, in which respect the value of the tene- ment would still be niaterial, because an agreement to pay £ 10 a-year for that which was not worth near so much, would be cogent evidence in some instances of a fraudulent intent. However, a person by whom a tenement is hired and occupied, and the rent paid for a year, gains a settlement, under the 59 Geo. 3. c. 50, although a third person be surety to the landlord for payment of the rent, for that does not make the surety the party hiiing the tenement ; especially as the oc- cupier, did not, for any thing which appeared, know that the person who had been employed in the commencement as his agent, had be- come his surety. (R. v. Kegworth, 2 Man. & Ryl. 28.) And the holding must be for a year ; therefore, where a house was hired by A. for a year, at the rent and of the annual value of £12, and he died three days before the year's occupation was completed, but his coi-pse continued in the house till after the expiration of the year, and his widow continued to reside there, and paid the last quar- ter's rent, he having paid the previous three quarters, it was held that Sect. IV.] BY RENTING A TENEME.NT. 529 his widow aiid children did not gain any settlement. (R. v. Crayford, 6 Barn. & Cres. 68 ; 9 Dowl. & Ryl. 80.) Houses held, Lands occupied, 59 Geo. 3. c. 50.] If the tenement consisted of a house or huilding, it was to be held for a year; hut if land, it must have been occupied for a whole year, by the particular words of the statute ; consequently the party might underlet part of the house or building, in such manner as such house or building could still be charged as his, in an indictment for burglary. (R. v. Great Bolton, 8 Barn. & Cres. 71 ; R. v. North Collin^ham, 1 Barn. & Cres. 578.) But if the tenement consisted of land, there must have been a sole occupation by the person taking it. (R. v. Tonbridge, 6 Barn. & Cres. 88.) But where a tenant of land from year to year underlets the ivhole to another party, at so much per week, whose tenancy was to commence at the ensuing Lady-day, but no time was specified for which the land was to be taken, this was considered a good contract of yearly hiring of the land by the under-tenant, the tenant having received no notice to quit, as the tenant by such an agreement was taken to have conveyed her intei'est to the imder-tenant. (R. v. Wain- fleet, 8 Barn. & Cres. 229.) Rent paid for a Year, 59 Geo. 3. c. 50.] The statute did not re- quire that the holding or occupation should be for the same year as the hiring, but only that such holding or occupation should be for the tenn of one whole year ; and therefore, where the pauper hired a house three weeks after May -day, for a year from such preceding May-day, at £15 a-year, and at the expiration of that time hired it again for another year, at the same rent, and occupied from the time of the first till six months after the second hiring, and paid the rent for the whole period, he gained a settlement. (R. v. Stow, 4 Barn. & Cres. 87.) It was held, that where a person hired and occupied a £10 tenement for more than a year, and the rent was paid after his death, out of the proceeds of the sale of his effects, no settlement M'as gained under this act, as it was not paid by him ; nor under the 6 Geo. 4. c. 57, although the year expired, and the payment was made after that sta- tute passed ; because there was no payment of one whole year's rent, at the time of his death, the subsequent payment out of his assets being insufficient to supply the requisites of that statute. (R. v. Carshalton, 6 Eara. & Cres. 93 ; 9 DowL & Ryl. 132.) Payment, Tenant become a Pauper. "l There axe two cases, in each of which, before the payment of the rent, the tenant became charge- able to the parish, and in one it was held, that a settlement was gained, in the other, that it was not. The only difference in the facts 530 PAROCHIAL SETTLEMENT. [Chap. XXV. seems to have been^ that in the one case tlie tenant became charge- able before he had completed a year's holding of the tenement which he had hired ; and though he was removed by an order of justices to another parish, 3^et he retui'ned to his tenement the same day, con- tinued his holding, and at the end of his year paid his year's rent, namely £12. In thi^ case the court held, that the statute had been complied with, and that a settlement was gained. (R. v. Bar- ham, 8 Barn. & Cres. 99.) In the other case, after the tenant had completed his year's tenancy, he applied for parochial rehef, and was removed to another parish, after which he paid the year's rent by the sale of the furniture left by him in the tenement, which he had so hired and occupied for a year. It was held in this case, that as the rent was due and unpaid at the time of his removal by the order of justices, no settlement was gained. (R. v. Ampthill, 2 Bam. & Cres. 847.) At the time of his removal, he had clearly not complied with all the requisites of the act, although by his contract he ought to have done so, as he had held the tenement for a year, and the subse- quent payment of the rent could not cm-e this defect; but in the former case, the pauper had committed no breach of his contract at the time of his removal, and he aftenvards went on to complete it in all its parts. Residence, 59 Geo. 3. c. 50.] A settlement might be gained un- der this statute, by a residence of forty days in a parish, provided the party comply with the other conditions mentioned in the act ; and therefore, where a pauper hired land for a year at the smn of £10, paid the rent, and occupied for the whole year, but resided only foity days in the parish, though not upon the land, it was held that he gained a settlement. (R. v. Wainfleet, 8 Bara. & Cres. 227.) Settlemenis under 6 Geo. 4. c, 57.] The date of this statute, which repeals the former one, is 22nd June 1825, and no settlement by renting a tenement can be acquired since that period, except upon the condition stated in this act, which is as follows : " No person shall acquire a settlement, in any parish or towTiship maintainmg its own poor, by or by reason of settling upon, renting, or paying parochial rates for any tenement, not being his or her own property, unless such tenement shall consist of a separate and distinct dwelHng-house or building, or of land, or of both, bond fide rented by such person, in such paiish or township, at and for the sum of ten pounds a-year at the least, for the tenn of one whole year ; nor unless such house, or building, or land, shall be occupied under such yearly hiring, and the rent for the same to the amount of ten pounds, ac- tually paid for the term of one whole year at the least; provided al- Sect. IV.] BY RENTING A TENEMENT. 531 ways, that it shall not be necessary to prove the actual value of such tenement ; any thing in any act or acts, or any construction of or im- plication fi'om any act or acts, or any usage or custom to the contrary notwithstanding." With respect to the tenement — term of hiring — and amount of rent, the same construction is to be put upon this statute, as upon tlie one which it repealed. Holding under the two Statutes.] A holding before the 22nd June, when the 6 Geo. 4. c. 57, was passed, and the holding subsequent to that period may be connected, provided the occupation before the 22nd June be such as will satisfy the requisites of the 6 Geo. 4. c. 57 ; and therefore, if a party, before this act began to operate, was in possession of a yearly tenement, and held it mider such circumstances as that statute says shall be requisite in order to gain a settlement, a settle- ment will be confeiTed. There are no words in the act which import that the taking shall be subsequent to the time when the statute came into operation. (R. v. Ditcheat, 9 Bam. & Cres. 183.) Renting One whole Year under 6 Geo. 4.] The taking of a tene- ment at twenty guineas a-year, the rent to be paid weekly, but either party to be at liberty to give three months notice from any quarter- day, is a yearly hiring within this act. (R. v. Herstmonceux, 7 Bam. & Cres. 551 ; 1 Man. & Ryl. 426.) Payment of Rent under 6 Geo. 4.] The fomier act required that the house should be held, and the land occupied, and the rent paid, by the person hiring the same. The language of this statute is dif- ferent ; it is w^holly silent as to the occupation or payment of rent by the person hiring, and it has been decided in Rex v. Kibworth Har- court, (7 Bam. &Cres. 790 ; 1 Man. & Ryl. 691,) that, according to the true construction of the statute, the payment need not be made by the party hii'ing. The words, " by the person hiring the same," are to be considered, therefore, as struck out of this statute, and the law so far altered, that it is now sufficient if it be paid either by the per- son hiring, or by any other person. (R. v. Ditcheat, 9 Bam. & Cres. 181.) Still, if the tenant were to die before the rent were actually paid, he could not be considered as having acquired a settlement, by the rent being afterwards paid out of his effects. (R. v. Carshalton, 6 Bam. & Cres. 93.) Under this statute, the whole year's rent must be actually paid, whatever be its amount, and the payment for a portion of a year, though the sum so paid exceed £10, will not suffice. (R. v. Rams- gate, 6 Bam. & Cres. 712 ; R. v. Ashley Hay, 8 Barn. & Cres. 27.) Occupancy under 6 Geo. 4.] Some difficulty has arisen upon the M M 2 532 PAROCHIAL SETTLEMENT. [Chap. XXV. construction of the word " occupied" in this act. Mr. J. Bayley in- clined to think, that occupation by any other person than the person hiring, by assigning or underletting, is not an occupation under the yeai'l V hiring within the meaning of the statute. But Littledale, J. and Parke, J. held, that the occupation of part by the person hiring the tenement, though the other part was for nearly the whole period un- derlet to another person, was sufficient; though it might be othenvise, if the person hiring underlet the whole house, and occupied no part of it, per Littledale, J. And the other of these learned judges ob- served, that the statute " does not require the payment of rerit or oc- cupation by the person hiring the same, but occujjation under the yearly hiruig ; and these words may be satisfied by the continuance of the term and occupation by a sub-tenant or assignee, during the continuance of the term. But it is not necessary to decide in this case, whether occupation by an assignee would be sufficient or not." (R. V. Ditcheat, supra.) This construction of the act has been further confirmed in a sub- sequent case, the facts of which were nearly the same. It will suffice to give the judgment of Lord Tenterden, who said : " The question was upon the act generally called the Tenement Act, 6 Geo. 4. c. 57. Upon consideration, we think, that all that was required by that act has been done by the pauper in this case, so as to entitle him to a settle- ment, by renting the tenement in question. The words of the act are, ' No persons shall acquire a settlement by renting, &c., unless such tenement shall consist of a separate and distinct dwelling house, or building, or land, or of both, bona fide rented by such person, in such parish or township, at and for the sum of £10 a-year at the least, for the teim of one whole year, nor unless such house or building, or land, shall be occupied under such yearly hiring, and the rent for the same to the amount of £10 be actually paid for the term of one whole year at the least.' Now the hiring in this case was for a year, the rent was paid for a year, and the rent exceeded the sum re- quired. But it was objected, that as the pauper had not occupied the whole of the premises hired, the clause in question was not satisfied, the words being * shall be occupied under such yearly hiring,' and it was said, that as another person had occupied pai-t, there could not be a year's occupation by the pauper, under the yearly hiring by the pauper ; but this renders it necessary for us to look at the statute, 59 Geo. 3. c. 50, which the statute 6 Geo. 4. repealed. That statute provided, in terms, which for the present may be considered as sub- stantially the same as those of the 6th Geo. 4, except that it also contained the words, ' by the person hiring the same,' after the Sect, v.] BY PAYMENT OF RATES. 533 words which provided for the occupation and payment of rent. Now those words are omitted in the present act. We must understand the legislature to have had under their consideration the terms of the very act which they were repealing, and so understanding, we must consider, that they left out the words for some particular purpose. Then, were the premises held by the pauper ? It is not denied they were ; that being the case, all which is requu-ed by the tenns of the statute has been complied with, the pauper has gained the settlement in dispute. We think it much the safer course to go by the words of the statute, than to enter into an inquu'y as to the supposed intention of those who framed it. If we entered into such an inquiry, we might often be mistaken, but by adhering to the very words, we take, in our opinion, the safer course. The consequence is, that the order of sessions must be quashed." (R. v. Great Bentley, H. T. 1830. MSS.) Residence under 6 Geo. 4.] Although the act does not in express terms require a residence of forty days, that has always been essen- tial to complete a settlement by renting, and is so still. SECTION V. BY PAYMENT OF RATES. Origin of this Settlement.'] The 3 W. & M. c. 11. s. 6. enacted, 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 settle- ment there, though no notice in writing has been given to the parish. By force of the above enactment, any one, except a certificated person, (9 & 10 W. 3. c. 11,) by residing forty days in the parish after such payment, might in this manner gain a settlement, whatever were the value of the tenement, ujj to June 22nd, 1795. From that day, when the 35 Geo. 3. c. 101. was passed, to the 22nd June, 1825, the condition was added, that the tenement must be of the yearly value of £10. (See s. 4.) And upon this last-mentioned day, by the 6 Geo. 4. c. 57, the acquiring a settlement by paymeijt of rates, is virtually abolished ; for, in order to acquire a settlement by paying rates, all the conditions must be observed and fulfilled, which suffice to give a settlement ])y renting a tenement; the ])arty, there- fore, need not go further, and prove that he has paid rates, when his settlement is already estabhshed by proof of all the preliminary con- ditions, and which are in themselves sufficient to entitle him to a set- tlement by renting a tenement. 534 TAROCHIAI. SETTLEMENT. [Chap. XXV. General Rules.] The party must be rated — he must be rated be- fore payment — he must make payment — the rating may be in any manner, which notifies to the parish that he is rated — if the rate itself be void, his right is not thereby prejudiced — the rate need not be strictly, though it nmst be in the natm'e of, a parochial assess- ment — and he must have resided forty days in the parish after the time when he paid it. The expression in the 3 W. & M. c. 11. s. 6, " the public taxes or levies of the parish," appears to embrace all rates whatsoever, with- out regard to the subject matter, in respect of which the rates are imposed, and, therefore, the gaining a settlement is not confined to cases in which the party is rated in respect of a tenement. Nor do the subsequent statutes make any such restriction, and, therefore, a settlement may be still claimed by virtue of a rate upon personal pro- perty, (see 2 Peck, 251,) subject of course to the other conditions, as actual payment, residence, &c. Rating necessary.] Though the rate be in form or in the manner of making it void, yet if the party be rated and pay the rate, he gains a settlement. (R. v. St. Bees, 9 East, 203 ; St. Giles, Cripplegate, and St. Mary, Newington, 19 Vin. Ab. 386.) But his name must be inserted in the rate before he pays it, for he gains no settlement by its being inserted aftenvards. (R. v. Edgbaston, 6 T. R. 540 ; R. V. St. Olaves, Burr. S. C. 787.) Though he need not be expressly named, if he be otherwise described, so as to show that the parish knows he is an inhabitant: (R. v. Painswick, Burr. S. C. 465:) thus, " Thomas Clifford, or tenant," was held a sufficient ratmg of a suc- ceedhig tenant. (R. v. Walsall, Cald. 37.) But where the landlord's and tenant's name are in the rate, if it be stated in the rate itself, that the landlord is the person rated, the tenant cannot be considered the person assessed, although he pay the rate. (R. v. St. John's, Southwark, Cald. 62.) But as the poor-rate is an occupier's tax, the tenant was held to be rated, although it appeared that the landlord's name was also in the rate, without declaring which of them was assessed ; and it was proved that the landlord had been formerly rated, and that the tenant, after paying four years, had his name taken off the rate at his own request, on account of his poverty, and no one paid afterwards. (R. v. Endon, Cald. 374.) The land-tax being also a tenant's tax, falls within the same rule; (R. v. St. Lawrence, Winchester, id. 379;) but where, in addition, the receipt given to the tenant stated, that the sum was assessed upon the landlord, it was held, that the tenant did not ac- quire a settlement. (R. v. Bury St. Edmund's, ib. 385.) But i Sect, v.] BY PAYMENT OF liATES. 535 rating the farm or house is insufficient where the landlord pays the rate, and the tenant pays him again, if it is expressly proved that the parish (the overseer,) does not know who is the occupier. (R. v. Langammarch, 2 T. R. 628.) Payment of Rates, ^c] It is necessary that the person rated should pay the tax ; but if it be wrongfully imposed for premises oc- cupied by another, it will suffice, for rating and paying are facts of recognization of his inhabiting in the parish. (R, v. Stapleton, Buit. S. C. 649.) So if the rate be afterwards repaid him by agreement with the landlord. (R. v. Bramley, ib. 75.) So a custom-house officer rated to and paying the land-tax, although the amount is given him beforehand, or allowed him afterwards by the collector of the cus- toms. (R. V. Axmouth, 8 East, 383.) And it is enough if the money be paid through the intervention of an agent or other person for him. (R. V. Bridgewater, 3 T. R. 550.) It is sufficient, likewise, if the money be paid bonajidehy the pau- per, although it may have been received by the overseer through a mistake, and is afterwards returned to him. (R. v. Corhampton, Cald. 108; Doug. 621.) But where an exciseman was rated to the land-tax for his salary, but never paid the rate, it being paid by the collector, and not deducted out of the pauper's salary, no settlement was gained. (R. v. Weobly, 2 East, 68.) What kind of Rates, ^c] The settlement may be gained, not only by payment of taxes and rates strictly parochial, but also of such other public tax which is charged and payable within a parochial limit, (R. V. Blood, Comb. 410,) such as the church-rate, (R. v. St. Bees, 9 East, 203,) the land-tax, and other king's taxes. (Anon, Comb. 282.) But he must pay in quality of a parishioner, there- fore payment towards a county bridge gives no settlement. (Cases of Sett. 1.) Payment for less time than a year is sufficient. (R. v. Bramley, Burr. S. C. 75.) It is expressly provided by statute, that payment of the following taxes shall confer no settlement. The scavengers' rate for the repairs of the highway, by 9 Geo. 1 . c. 7, s. 6 ; duties on houses worth £5 yearly rent and upwards, by 18 Geo. 3. c. 26 ; duties on houses and windows, by 21 Geo. 2. c. 10, s. 13 ; or any of the assessed taxes, by 43 Geo. 3. c. 161, s. 59. And a party does not gain any settlement by reason of his having been assessed to, and paid the watch-rate iu the city of Ijondon. (R. v. Christ Church, 8 Barn. & Cres. 660.) Forty Days' Residence.] It is equally necessary that the person should reside in the parish ; for if he inhabit in one, and is rated in another, he gains no settleu'ent in cilhcr, under the statule of 3 W, 536 PAROCHIAL SETTLEMENT. [Chap. XXV. &. M. It is also necessary that he be an inhabitant for forty days ; (R. V. St. Michael, 6 T. R. 536 ;) and the forty days' residence must in all cases be after the rating and payment. (R. v. Ringstead, 7 Barn. & Cres. 607 ; 1 Man. & Ryl. 448.) Requisites under 59 Geo. 3. c. 50.] It has already been observed, that before 1795, the value of the tenement was immaterial; and that after that period, until June 22nd, 1819, it was required that the tenement should be of the annual value of £10; and as the tene- ment itself, in most cases, would give a settlement independently of the rating, but few instances would occur of settlements gained by being rated within that period. But when the 59 Geo. 3. c. 50, limited the nature of the tenement, by renting of w'hich a settlement could be gained, the other kinds of tenement, which were stripped of this privilege of conferring a settlement, might serve as the medium of a settlement by payment of rates in respect thereof, if such tene- ments were of the yearly value of £10. (R. v, St. Pancras, 2 Bam. & Cres. 125 ; 3 Dowl. & Ryl. 343.) It was not necessary that the tene- ment should have been assessed at £10 annual value ; it was sufficient, if it could be proved, that it was actually of that value. (R. v. St. Dunstan's, Kent, 4 Barn. & Cres. 686; 7 Dowl. & Ryl. 178.) And in estimating the value, whatever forms part of the freehold must be included as fixtures, even though they are such as a tenant might- remove, if they are put in by the landlord, and form part of the de- mise. (R. V. St. Dunstan's, Kent, sujn-a.) SECTION VL — BY ESTATE Foundation of this Settlement.] The principle upon which these settlements are founded, viz. that the party shall not be removed from his own, but is entitled to the care of his property, goes beyond estates in land, and seems to extend this right to all interest in things im- moveable, situate within a town or parish, which, as a party cannot take with him to the place of his settlement, he must be allowed to remain where they are, for the purjjose of superintending them. (2N.P.L. 69.) The 9 Geo. 1. c. 7, introduced a modification of the general right of settlement by estate, which before existed, and since the passing of which act no settlement can be gained by an estate, of which the party has become the owner by purchase for a less sum than £30. Since the passing of this statute, a person may be irremoveable on account of residing on his own estate, and yet not gam a settlement Sect. VI.] BY ESTATE. 537 by such residence, however long it continues ; or, in other words, hving upon an estate iiTenioveable fur forty days, and gaining a set- tlement, have not been convertible terms in all cases. (See R. v. Brington, 7 Barn. & Cres. 650.) By what Estate gained.^ With the exception of estates purchased for less than £30, any estate in lands, whether freehold or copyhold, and whether it be held in fee simple, fee tail, for life, term of years, or from year to year, even though the party in possession is not the original lessee, will suffice to confer a settlement, with a residence of forty days in the parish. (R. v. Stone, 6 T. R. 295.) If a man have an estate by descent, &c. whatever be the value, (2 Bott. 457,) or in any other manner than by buymy it, and reside on it, or in the same parish, for forty days, either together or in the whole, though he part with it immediately afterwards, he thereby gams a settlement. (Ryslip v. Han-ow, 2 Salk. 524 ; R. v. Hough- ton le Spring, 1 East, 247; R. v. Dorstone, 1 East, 296.) Must be a present Estate.] It has been thought that a reversionary interest in an estate was sufficient for this purpose, and the case of R. V. Houghton le Spring has been cited in support of this doctruae ; there, however, the party was seised in fee, though he had let his freehold, and the question was not, whether an estate in reversion would suffice, but whether it was necessary that the party should occupy the estate, and it was held that he need not. And it has since been said, that it is a clear principle of settlement law, that a party cannot gain a settlement by estate unless he has a freehold in possession. He must have an estate, of which he may be disseised. (R. V. Ringstead, 9 Barn. & Cres. 221.) But the estate may be either a legal or an equitable estate, and the party may gain a settlement, whether he be alone interested in the estate, or one of several joint- tenants, parceners, ortenants in common. (R. V. Brington, 7 Barn. & Cres. 550 ; R. v. Dorstone, 1 East. 290.) Although the title be disputable, yet it may be sufficient. (R. v. Calow, 3 INIaul. & Sel. 22; Ashbrittle v. Wiley, 1 Stra. 608.) Thus an undisturbed possession, no matter how acquired, for twenty years, will gain a settlement, {ib.) even though a portion of the time, the possession is in his mortgagee ; (R.v. Bitton,BuiT. S. C.631 ;) for the strict rules to be observed in the tibial of an ejectment, ought not to be applied to settlement cases, and the court will not permit the title to an estate to be determined upon an order of removal. (R. v. Buttes- ton, 6T.R. 554.) By an equitable Estate.] With regard to an equitable interest giving a settlement, the test by which cases of this description are to 538 PAROCHIAL SETTLEMENT. [Cliap. XXV. be decided is, whether the estate on which the party resides is sub- stantially his property, and not merely such a claim as might possibly induce a court of equity to uiterfere in some way or other. (R. v. Horndon-on-the-Hill, 4 Maul. & Sel. 565.) If a party is sole next of kin to a person deceased, that is, if he has exclusive right to take out administration, he has an immediate equitable interest in any term of years of which the deceased was possessed, and may gain a settlement thereby before taking out ad- ministration. (R. V. Horsely, 8 East, 405.) But where A.^at his death left a widow, a son, and a daughter, and the widow and daiigh- ter, with her husband, were hving in the house at A.'s death, no one of these could say that the property was his or her's at that time. There was neither exclusive right nor exclusive possession, and in order to make it the property of one or the other, it was necessary to obtain letters of administration ; and as none had been obtained in this case, though there was an occupancy for a series of years, no settle- ment was gained. (R. v. Canford Magna, 6 Maul. & Sel. 355.) If A. assign to trustees, to raise a certain sum by the rents and profits, and by sale or mortgage, and after payment of that sum, in trust to reassign the premises, the estate substantially remains in A., and suffices to give him a settlement. (R. v. Edington, 1 East, 288.) So if an estate be devised to trustees to sell and pay the money over to A., and A. lives upon the estate till it is sold ; (R. v. Natland, BmT. S. C. 793 ;) or if the devise be of a house to a party, with a ])rovision in the will that A. should have free power and liberty to dwell m it for life, A. may thereby gain a settlement. (R. v. Wobuni, BuiT.S. C. 785.) What Interest insufficient.'] If a lord of a manor grant a licence to a party to build on the waste, and he does so, and occupies the house, this confers no settlement, for the licence gives no legal title ; and though a court of equity might probably interfere, a court of law cannot say with certainty that it would. (R. v. Haworthingham, 1 Barn. & Cres. 634.) So, if a son build a house on his own land, and agree by parol with his father, who lent part of the purchase-money of the land on this condition, that he should occupy it for his life, this amounts to no more than a licence to occupy; and no estate, either legal or equitable, was conveyed to the father, nor any such interest probably as a court of equity would decree to be conveyed. (R. v. Standon, 2 Maul. & Sel. 461.) So, if J. C. agree by parol to pur- chase an estate, and, upon paying part of the money, is let into, and continues in possession for six months, and then, failing to pay the rest, the contract is abandoned, lie can gaiu no settlement thereby. Sect. VI.] BY ESTATI'. 639 for a court of equity would not acknowledge his claim to the estate, without i^aying, or offering to pay, the residue of the purchase-money. (R. V. Long Bennington, 6 Maul. & Sel. 403;) and even where, in addition to the like state of facts, it appeared that the party, after a year's possession, sold the estate, and gave up possession to his vendee, and afterwards paid the remainder of the purchase-money owing to his own vendor; it was held, no settlement was gained. (R. v. Llan- tillio Grossenny, 5 Bam. & Cres. 461, 8 Dowl. & Ryl. 320.) The principle deducible from these cases is, that the relation of trustee and cestui que trust, at least, must be created, to give a settle- ment by purchase ; and even when the agreement for the sale and purchase of an estate has been made in writing, as required by the statute against frauds, and part of the purchase-money was paid, and the vendee let into possession, and a distant day (seven months afterwards) named for the payment of the residue, the court held, as that payment was not made, and no conveyance was executed, the contract being ultimately abandoned, the party gained no settlement. (R. V. Geddington, 2 Barn. & Cres. 129 ; 3 Dowl. & Ryl. 403.) This decision seems to cany the principle further than any of the preceding cases, and raises the distinction between an equitable estate and a mere equitable right, and shows, that in cases of con- structive trusts, a settlement is not gained by the cestui que trust. There are cases in equity, according to which, the interest enjoyed by the party in Rex v. Geddington, would be considered a substantial estate, which he might have sold, or incumbered, and would have descended to his heir; (see "Observations on the case of R. v. Geddington, by A. Amos, Esq. ;" also Green v. Smith, 1 Alk. 572 ; Seton v. Slade, 7 Ves. 274 ;) but the court thought an imiformity and consistency in the decisions would be best preserved by the judg- ment then pronounced, and that it was desirable the sessions should have cases settled for their guidance upon plam grounds, rather than that they should be called upon to entertain and decide difficult questions of equitable law. It was also observed, that this was a case of an estate or interest purchased, and the statute (9 Geo. 1. c. 7. s. 5,) requires that the consideration shall be paid. So a devise to trustees to receive the rents and jirofits for the benefit of A-, (an uncertificated bankrupt,) his wife and children, all or any of them, during his life, as they should think proper, does not give A. such an interest as will enable him to acquire a settlement ; for he takes neither a legal nor an equilable interest in the estate, and is only one of several persons to wliom the trustees might, iu their discretion, have given the rents. If he had taken an equitable 540 PAROCHIAL SETTLEMENT. [Chap. XXV. interest, the mtention of the testatrix would have been defeated, because, being an uncertificated bankrupt, it would have passed to his assignees. (R. v. Darlington, 5 Maul. & Sel. 493.) The rules applicable to persons having a sole interest in an equit- able estate, are equally applicable to persons having a joint interest only. (See R. v. Brington, 7 Barn. & Cres. 546.) Right of Franchise insufficient.'\ A mere right of franchise falling short of an interest in land, is not sufficient to give a settle- ment 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. Warkworth, 1 Maul. & Sel. 473 ;) or a specific legacy out of land, or schoolmaster's salary, payable, among other things, out of the profits of lands held by trustees; (R. v. Melbome, Burr. S. C. 244;) a widow's dower before assignment ; (R. v. Northweald Basset, 2 Bam. & Cres. 724 ;) the right which a mortgagor has from his equity of redemption ; (R. v. Catherington, 3 T. R. 771,) or the next of kin to an account from the administrator for the rents and profits of leasehold lands ; (R. v. Barkswell, 1 Bam. & Cres. 542 ;) or the right which a party, conveying land to trustees to be sold, has to the residue after payment of inciimbrances and debts ; (R. v. St. Michael's, Bath, Doug. 630 ;) in all these cases no sufficient interest in land exists in the party to confer a settlement. Who may gain this Settlement.l A settlement by this means may be gained by infants, (R. v. Hasfield, 2 Stra. 1131,) or by executors, {ib.) even before the will be proved, because probate is unnecessary to vest a term in an executor; (R. v. Stove, 6 T. R. 295;) but generally administrators have no vested interest till the letters of administration are obtained, and therefore they cannot gain a settlement till after that has been done. However, a sole next of kin, who is thereby entitled to exclusive administration, may gain a settlement before administration, as he cannot be considered as an intruder in the parish having nothing of his own, within the scope of the poor laws. (R. v. Horsley, 8 East, 405.) So the husband of an administratrix may gain a settlement in right of his wife. (Mursley v. Grandborough, 1 Stra. 97.) A widow having right of dower, may gain a settlement for herself during her quarantine after her first husband's death, but she cannot communicate a settlement to a second husband, and her children by him, until dower has been actually assigned. (R. V. North Weald Basset, 2 Barn. & Cres. 724; 4 Dowl. & Ryl. 276 ; R. V. Pahiswick, Buit. S. C. 783.) So trustees in whom estates are vested; (R. v. OfTchurch, 3 T. R. 114,) even for the pur- pose of sale, (R.v.Natland, Buit. S. C. 793;) thehusband of a par- Sect. VI.] BY ESTATE. 541 cener; (R. v. Dorstone, 1 East, 296 ;) so an heir claiming right to the possession, and residing on the estate without right, heing in fact a reversioner merely, upon a term of 1000 years, if there be no fraud; (R. v. Staplegrove, 2 Barn. & Aid. 527;) or a guardian in socage ; (R. v. Oakley, 10 East, 494 ;) in all these cases a settlement is gained, but there cannot he a guardian in socage of an equitable estate, even for this purpose. (R. v. Poddington, 1 Barn. & Aid. 560.) A devise of a house to W. with liberty for T. to reside in it during his life, and residence accordingly; (R. v. Woburn, Bun-, S. C. 785;) a schoolmaster, appointed by trustees under a will, residing in the school-house, &c., (R.v. OversbyleMoor, 15 East, 356 ;) and a mort- gagor in possession, respectively gains a settlement. (R. v. Cather- ington, 3 T. R. 771.) So where a cottage was conveyed by a pauper to a trustee for sale or mortgage to raise £10, to be jiaid to the parish, and afterwards to the assignees, and it did not appear that the money was ever raised, but the party always continued in possession, this was held a good settlement by estate ; (R. v. Edington, 1 East, 288 ;) and it is not clear that an alien during the time he is in possession of an estate has not such an interest as will entitle him to a settlement ; for, till office found, the interest in lands may vest in him; (Com. Dig. Alien, c. 2 ;) and as executor or administrator, he has such an interest in a term of years as renders him irremoveable, (Id. c. 7.) Restrictions by 9 Geo. I.e. 7.] The fifth section of this act pro- vides, that no person shall gain a settlement by a " purchase of any estate or interest," whereof the consideration does not amount to £30 bond Jide paid, for any longer time than he inhabits the same; after which he may he removed. Nor do his children thereby gain a settlement; (R.v. Salford, Burr. S. C. 516, Bla. Rep. 433;) and even though he mortgage it, and reside upon it as mortgagor, it will not confer a settlement. (R. v. Tarrant Launceston, 3 East, 226.) But land (under £30) bought by a woman before marriage, will confer a settlement on her after taken husband, and thus derivatively on her, (R. v. Ilmington, Bun*. S. C. 566, 1 Bla. Rep. 598,) for he is not a purchaser of the estate within the meaning of the act. The Consideration under 9 Geo. 1.] The statute means pecuniary consideration, and therefore, a conveyance in consideration of natural love and affection, (R. v. Marwood, Buit. S. C. 386; R. v. Inglcton, BuiT. S. C. 560,) or of that and money, (R. v. Upton, 3 T. R. 251,) is not within the statute, and a settlement may be gained by an estate so conveyed, although of less value than £30. But a grant of land by a lord of a manor at a quit rent of 2s. 6(/. is a purchase within 0-1-2 PAROCHIAL SETTLEMENT. [Cliap. XXV. this act, and being undei- £30, confers no settlement. (R. v. Horn- church, 2 Bam. & Aid. 189 ; R. v. Hartley, 5 East, 40.) So a mere licence to build on the waste, rendering an annual quit rent, and building and residing thereon, confers no settlement, being a licence onlv, and not a grant of any interest in land; (R. v. Homdon-on-the- Hill, 4 Maul. & Sel. 562 ;) nor will a subsequent purchaser thereof for £30, without a conveyance, although no adverse claim is made* (R. V. Hagworthingham, 1 Barn. & Cres. 635 ; 3 Dowl. & Ryl. 16,) thereby obtain a settlement. But if the price amount to £30, although part of it be paid by the parish officers, if without fraud, it is no objection. (St. Paul's War- den V. Kepton, Fol. 238.) So a purchase for £39, and £30 of it boiTowed on mortgage of the premises, gains a settlement; (R. v. Tedford, Burr. S. C. 57 ;) but a purchase for. £60, the property being already mortgaged for £50, and £10 only being paid, the mortgage to remain, (R. v. Chailey, 6 T. R. 755 ; R. v. Olney, 1 Maul. & Sel. 387,) is a purchase for £10 only, and not sufficient : but if the mortgage be satisfied, though another be immediately granted of the same amount, it is otherwise. {Id. ib.) So money laid out in a purchase under £30 will not give a settlement; (R. v. Dunchurch, Burr. S. C. 553;) but where £28 was stated in the deed as the consideration, but £30 was actually paid, it was holden to be sufficient. (R. v. Scammonden, 3 T. R. 474.) A settlement, how- ever, is in no case gained until the purchase is actually completed. {R. V. Geddington, 2 Bam. & Cres. 129 ; R. v. Woolpit, 4 Dowl. & Ryl. 456.) A mortgagee is a purchaser within the meaning of this act ; (R. v. Stockland, 2 Stra. 1162;) and a purchase by a felon unpardoned has been holden sufficient. (R. v. Haddenham, 15 East, 463.) Sum paid is the Test.] Though payment of a fine, or money boiTowed upon mortgage, is part of the purchase-money^yet the only touchstone m these cases is, was £30 bondjide paid ; and consequently, subsequent improvements of an estate, for which a smaller sum was originally given, will not give such purchaser a settlement, though the value thereof may be greatly increased. (Dunchurch v. South Kil- worth, I Bla. Rep. 596.) It will ajjpear by the above authorities, that the word purchase is not to be taken in its largest sense, but is confined to cases where a pecuniary consideration is paid. It has been held, that, in the con- sideration for a copyhold estate, the fine to the lord, and the fee to the steward, are to be taken into the account ; but the expenses of a sur- render, paid to the purchaser's own attorney, cannot be computed as Sect. VT.] BY ESTATE. 543 part of the piircliase-money. (R. v. Cottinghani, 7 Barn. & Cres. 603 ; 1 Man. & Ryl. 469.) These instances show that the amount of the purchase-moneij paid by the purchaser is the criterion by which the question of settlement is detennined, and not the value of the estate, which is quite im- material ; for if the estate devolve upon the party by act of law, as by executorship or marriage, &c., though it is of much less value than £30, it will suffice. (R. v. Ynyscynhanam, 7 Barn. Cres. 233.) A certificate man may gain a settlement in this way. (Barclear V. Eastwoodhay, 1 Stra. 163; R. v. Deddington, 2 Stra. 1193.) Residence.] In order to acquire a settlement by estate, the party must reside forty days in the parish in which his estate lies, and while his interest continues. An order, therefore, removing a person to an estate which had descended to him, but where he had not re- sided, was quashed. (Wookey v. Hinton Blewet, 1 Stra. 476.) But the days need not be consecutive, and it makes no difference whether he reside on his own estate, in an alehouse, or any where else in the parish, so that the estate continues vested in him. (R. v. St. Neott's, BuiT. S. C. 132; R. v. Dorstone, 1 East, 296; R. v. Horsley, 8 East, 410.) In short, the inhabitancy required depends upon the same principles which govern in other kinds of settlements, and may perhaps be safely considered as regulated by such determina- tions as have taken j^lace respecting them. (2 N. P. L. 117.) No one can be removed from the parish in which his estate lies ; but if he quits voluntarily, and becomes chargeable, he cannot be removed thither, unless he has before resided forty days. This rule respecting residence admits of this qualification, that there must be a complete title ; and where the title is incomplete with- out possession, as in the case of a sole next of kin, it seems that a residence on the estate itself is necessary, and that no settlement is gained by a residence in the same parish. As, where the party is kept out of possession by a wrong-doer, or suffers it to continue in a mortgagor, the party fails to gain a settlement, not because he does not reside upon the estate, but because he has not completed and per- fected his title to the estate. (See R. v. Catherington, 3 T. R. 771 ; R. V. Dariington, 5 Maul. & Sel. 493 ; R. v. Canford Magna, 6 Maul. & Sel. 358.) 544 PAROCHIAL SETTLEMENT. [Chap. XXV. SECTION VII. — BY SERVING OFFICE. Origin of this Seitlemenf.] " If any person wlio shall come to inhabit in any town or parish, shall for himself, and on his own account, execute any public annual office or charge in the said town or parish during one wkole year," he thereby gains a settlement. (3 & 4 W. &M. c. U.S. 6.) Mere Employment insufficient.'\ An office must be derived either immediately or mediately from the crown, or be constituted by statute. Whatever employment, therefore, is not derived from the one source or the other, is not an office for the pm-poses of gaining a settlement. (R. V. Mersham, 7 East, 171.) Thus the master of a workhouse has not such an office ; his is merely an employment arising out of a contract; (Id.) nor has the master of a charity school such an office, his appointment being of a private nature, not~ derived from any pubHc source ; (R. v. Melbome, Bun-. S. C. 247,) and as the statute is intended to apply to inferior offices, and not to those of any dignity, a curate of a parish has not sucb an annual office in his curacv as will give him a settlement. (Helsington v. Over, BmT. S. C. 746; R. V. Wantage, 2 East, 65.) What Offices give a Settlement.'] The statute was evidently in- tended to be confined to inferior annual officers. The office of parish clerk is within the act; (Gatton v. Miiwich, 2 Salk. 536;) so is that of churchwarden ; (St. Maurice v. St. Mary, Kallender, 2 Bott. 158;) and wardens of a borough, (St. Mary v. St. Laurence, Readuig, 10 Mod. 13.) The office of sextonfis also within the act, (R. v. Liver- pool, 3 T. R. 118,) and tithingman, (Burlescomb v. Sandford Pe- verell, i Stra. 544.) A borsholder and hogringer are also re- spectively officers within the statute. (Wiiigham v. Sellinge, 2 Stra. 1199; R. V. Holy Cross, Westgate, 4 Bam. & Aid. 619.) So, holding the situation of collector of the land tax, (R. v. Hammond, 2 Bott. 156,) and bailiff and ale-taster of a borough, (R. v. Bow, 8T. R. 445,) confers settlements when duly executed. So a constable, though he serve by deputy, gains a settlement; (R. v. Hope Mansell, Cald. 252;) but a deputy constable does not; (R. v. Winterboume, 1 Bla. Rep. 452.) And although, as already stated, a master of a work- house at an annual salary, appointed by the parish, does not therebv gain a settlement, yet where the sessions stated in the case, that tlie party was legally appointed governor of the workhouse at an annual Sect. V[T.] BY SERVING OFFICE. -545 salary, and that the said office is a public annual office, that was held decisive in favour of the settlement. (R. v. Ilminster, 1 East, 83.) An assistant overseer, elected and appointed under the 59 Geo. 3. c. 12, at an annual salary of £10, will gain a settlement hy serving such office for a year. But the appointment in writing, under the hands and seals of the justices, requires a £2 stamp, and the settle- ment is defeated if that be wanting. (R. v. Lew, 8 Barn. & Cres. 655.) Limits of the Office-I The office, as it will be perceived by the instances of such as give a settlement, must have some especial relation to the parish in which the settlement is gained, for the no- toriety in the paiish is the ground tipon which the statute gives the settlement, to the person exercising any ])nblic office. But it need not extend over the whole parish, nor be confined within its limits. Howevei", the office must in some measure, at least, be executed in that part of the parish where the officer lives. (R. v. Liverpool, 3 T. R. 118.) Thus a party, by serving the office of clerk to a chapel situated in an exlra-jjarochial vill, may gain a settlement in the adjoining parish, if he reside there, and if part of the duties of his office of clerk he exercisable within that pai't of the parish where he resides. (R. v. Amlwch, 4 Bam. & Cres. 757 ; 6 Dowl. & Ryl. 626.) Serving the Office.'] The mere appointment, though legally made, and an execution of its duties for a short time, will not suffice; although the service be put an end to by other persons. Thus, if A. be appointed to an office, and dm-ing the year is inegularly removed by two magistrates, and another ])erson is appointed, and he, sub- mitting to the discharge, •does not in fact afterwards execute the office, he gains no settlement. (R. v. Westgate, 4 Barn. & Aid. 619.) Though, if he serve by deputy, he gains a settlement, and the deputy does not. (R. v. Hope, Manseil, 2 Bott 166.) The office must extend, but need not be limited in duration to a year ; but in ail cases the person nmst have served one whole year consecutively. (R. v. Fittleworth, Bun*. S. C. 238 ; R. v. Yalding, 3 Dowl. & Ryl. 352 ; R. v. Bow, 8 T. R. 445.) He may be re- moved before he has served one whole year, if he become chargeable; or if removed for any other cause, in such case he gains no settle- ment. (Id.) And, if after serving an office for half a year he is removed, and sometime afterwards he executes the same office another half year, this is not sufficient to give him a settlement. (R. v. Cold, Ashton, Burr. S. C. 44.) Residence.] The 13 & 14 Car. 2. c. 12, which enacts, that no person can gain a settlement in any parish by coming to inhabit N N 54C I'AROCHIAT. SRTTLEMENT. [Chap. XXV. there, unless he reside in the parish forty flays, extends of course to this species of settlement. A certificate man may gain a settlement in this way. (9 & 10 W. 3. c. 11.) SECTION VIII. — DERIVATIVE SETTLEMENTS. Acquired by Marriage or Parentage.] Derivative settlements are of two kinds ; first, that which a wife derives from her husband ; and secondly, the settlement which children derive from their parents, that is, from the father whilst he is living, being the head of the family ; and after his death, as the mother becomes the head of the family, whilst she continues a widow, she communicates any settle- ment which she may acquire, in her own right, to the children. But when she marries again, she is no longer capable of acquiring a set- tlement in her own right, being herself a subordinate member of the family, of which her second husband is the head, and cannot, there- fore, during the second coverture, communicate any settlement to the children of the first marriage. Among the subordinate members of a famUy, which includes the wife and all the legitimate children not emancipated, is to be reckoned a jiosthumous child. Wife's Settlement.] If a woman marry a man who hath a known settlement, she, instanter and ipso facto, by the marriage, acquires the husband's settlement ; and the same as to any new settlement he may obtain until his death ; and this although the marriage has been brought about by the fraud of parish officers ; (R. v. Birmingham, 8 Barn. & Cres. 29,) and whether she have ever lived with him in his place of settlement or not. (St. Giles, Readii>g, v. Eversley, Black- water, 1 Stra. 580, 2 Ld. Raym. 1332.) And she cannot gain a new settlement by any act of her own during his lifetime, even by residence on her own estate, after he has deserted her and his children. (Berkhamstead v. St. Mary,Northchurch, 2 Bott. 33, 1 N. P. L. 291.) After his death, she retams his last settlement until she acquire a new one. (St. George's v. St. Catharine's, 4 Bun-. 289.) But if he is in the progi'ess of acquiring a settlement, as by renting a tenement for a year, and he dies a few days only before it is comjileted, the widow cannot, by continuing to reside, and paying the year's rent, perfect the settlement for herself and children. (R. v. Crayford, 6 Barn. & Cres. 68; 9 Dowl. & Ryl. 80.) Where Husband ha.'i no Settlement.] But if she marry a foreigner, \ V \i ^ \ \1 l ^1 \ 1 :H 1 ^ "I \^ W. V .^ 1 t^^^K^ 1 1 1 :1 t^ < > ^is 4 r 1^1 V ^ .^ Sect. Vlir.] DEP.rVATIVE SETTLEiVlENTS. 547 who has no settlement, or a person whose settlement is not known, she still retains her maiden settlement, and may be removed there after her husband's death, or if he leave her, and it is not known whether he is living or dead. (R. v. Ryton Cald. 39.) Alteration by 59 Geo. 3. c. 12.] Before this statute was passed, it was held, that even where the husband and wife were hving toge- ther, but he had no settlement, and was unable to support her, she might be removed to her maiden settlement with his consent. (R, v. Eltham, 5 East, 113.) But it has been since held, that by the 33rd section of the above act, this power is taken away in such cases, and that the justices cannot now remove the wife and family of a Scotch- man to her maiden settlement, thereby effecting a temporary ecome chargeable to such parish by himself or his family, to cause such person to be brought before them, and to examine him touching the place of his birth, or last legal settlement; and if it shall be found that such person was bom in Scotland or Ireland, &c., and has not gained any settlement in England, then the justices are empowered, by a pass under their hands and seals, to cause such person and his wife, &c. to be removed to the place of his birth in the manner therein mentioned. The object of the legislature was to relieve parishes from the neces- sity of maintaining as casual poor, persons bom in Scotland or Ireland, &c. But the statute does not autliorize the removal of the xrife alone to the place of her husband's birth. The law, theiefore, remains as it was before, in those cases where a Scotch or Irish husband has deserted his wife. In R. v. Leeds, cited above, it was only decided, that where the husband (who was born in Scotland,) and his wife were living together, the wife must be sent along with him to Scotland. No mischief will result frorn this decision ; for during the absence of N N 2 548 PAROCHIAT. SETTLEMENT. [Chap. XXV. the hushand, the family vvill he maintained hy the parish, which i.s bonnd to maintain them ; and upon his retmii, that parish may pass him and his family to Scotland or Ireland, &c., whichever is the place of his hirth. (Rex v. Cottingham, 7 Bam. & Cres. 615 ; 1 Man. & Ryl. 439.) It follows, therefore, notwithstanding this statute, that if the hus- band, being such foreigner, dies, or quits his family, and after his death, or while he is absent, they become chargeable, the removal must be to the wife's maiden settlement. (Id. ; Rex v. Heaton Norris, 7 Barn. & Cres. 619.) Expenses of Removals to Jersey, vithin named." " The execution of this writ appears in certain orders to the same writ annexed." Opposite to this is a seal affixed, supposed to be the justice's in whose name the return is made; and the orders directed to be removed, with the recognizance to prosecute, are then annexed to the writ. But whatever form is followed in this respect, the orders are annexed to the certiorari, and the clerk of the peace sends the return, usually by the agent of the applicant, who must deliver it to the proper officer at the crown-office. (2 Nol. P. L. 596-7.) Judgment in Banc] When the case is called on, it is first argued by the counsel for the appellant, then by the counsel for the respond- ent, and lastly, by the appellant's senior counsel, in reply. After which, the court deliver their judgment, and quash or affinn the order of sessions accordingly. And they will quash an order in pait, and Sect. III.] EVIDENCE IN SETTLEMENT CASES. 575 afBnn it as to the remainder, where it appears necessary from the facts, in order to meet the justice of the case. (R. v. St. Mary, Lambeth, 6 T. R. 615.) But if the case he insufficiently stated, the Court of King's Bench may send it hack to he re-stated, and the sessions may thereupon hear fresh evidence, or re-state the case upon the fonner evidence, as may he necessary. (R. v. Bray, Buit. S. C. 682.) Costs after Certiorari.'] Though the judgment of the court be in favour of the party removing the order, he is not entitled to costs ; and he must pay them to the other side, as taxed by the master of the Crown-office, if the decision is against him, within ten days after de- mand made, or he is liable to an attachment. But if he succeeds in quashing the orders, in part only, upon the merits, he is not liable to costs. (R. V. Madley, 2 Stra. 1198.) Nor is he so liable if the certiorari is superseded, quia improvide emanavit, for the improvi- dence is the act of the court. (R. v. Wakefield, Say's Law of Costs, 306, 2 Nol. P. L. 622.) If a case is sent back to be re-stated, and upon the return thereof, the removing party abandon the further pro- secution forthwith, befoi-e counsel are instructed, he is not to pay costs. (R. V. Edgewoith, 4 T. R. 418.) The party's recognizance is discharged, if he succeeds, as a matter of course, but if the decision is against him, he cannot apply for the discharge till he has paid the costs. (R. v. Bray, Buit. S. C. 687.) SECTION III. EVIDENCE IN SETTLEMENT CASES. It will he collected, from the statement already given of the facts upon which the different kinds of settlement depend, in what manner each particular case is to be supported : a brief analysis, therefore, of the rules of evidence and of the necessary proofs applicable to the subject, will complete this digest of the poor laws. Who may be Wit7iesses.'\ The pauper whose settlement is in dis- pute, is supposed to stand so far indifferent between the parties, that he may be called by either, and examined with much the same lati- tude on behalf of the one parish as the other. And by the 54 Geo. 3. c. 170. 8. 9, (see ante 14.) persons rated, or liable to be rated, or hold- ing or executing any office in the })arish, are made competent witnesses in these matters, so that all objections to the conii)etency of any witness on the score of interest are wholly removed. Soldier's Examination.'] The general rule which excludes an cx- parte statement, when there is no opportunity of cross-cxaminatioji. 576 REMOVAL OF PAUPERS [Chap. XXVI. is relaxed in the case of a soldier ; to perpetuate whose testimony re- specting his settlement, power is given hy the annual mutiny acts, un- der particular circumstances, to any justice of the peace for the district Avithin which the soldier is quartered, to take the examination of any non-commissioned officer or soldier, havang at the time a wife or child, and to make it evidence as to their settlement, whenever aftenvards it may come into dispute. But as all persons having a special authority underacts of parliament, must show it upon the face of the order, or other document which they are thus empowered to execute or effect, it should be proved aliunde, or be stated in the examination itself, that the examinant was a soldier, and was quartered within the jurisdiction of the magistiate. (R. v. All Saints, Southampton, 7 Barn. & Cres. 735 ; 1 Man. & Ryl. 663.) Either this examination, or an attested copy (and no other can be admitted, (R .v, Warley, 6 T. R. 534 ;) given by the magis- trate to the soldier, and by him deUvered to his commanding officer, may be produced in evidence as to the settlement of the soldier, although he be dead, or absent from the kingdom, at the time when the appeal is tried. (R. v. Wanninster, 3 Barn. & Aid. 321.) Some proof should also be given, that the person whose settlement is the subject of inquiry, was the person whose examination is pro- duced. And the original examination, if produced, must be proved to be in the hand-wiiting, or to have been signed by the justice. But if the attested copy be produced, that must be proved to have come out of the custody of the commanding, officer to whom the mutiny act du'ects it to be delivered ; and it should be further authen- ticated by proof of the hand-waiting of the magisti'ate; (R. v. Bil- ton, 1 East, 13 ;) and of the attesting witness also, if he cannot himself be produced ; though this woidd probably not be considered indispensable. Prisoner's Examination.] A similar rule in the case of a prisoner is established by the 59 Geo. 3. c. 12. s. 28, (see ante 561 ;) but mth tAvo limitations, that the examination is only to be so admitted for the pm-- pose of any ovder of removal, and that it is evidence so long only as the person continues a prisoner. Admissions by the Parish.] The common mle of evidence, that if a party, upon whom an obligation or duty is sought to be enforced, has antecedently acknowledged his liability, to the paiticular claim, applies to parishes in settlement cases, with this limitation, that the acknowledgment must be by the act, or conduct of the parish, and not merely verbally by any of its officers. These admissions ai'e either by relief, by certificate, or by non-resistance to an order of removal ; Sect. III.] EVIDENCE IN SETTLEMENT CASES. 577 and if such an order be appealed against, and is afSrmed, it is equally conclusive. Relief, Evidence of Settlement] Relief given to a pauper while she is residing out of the parish, is prima facie evidence of a settlement in the relieving parish. Thus, where the overseer of Edwin- stowe happening to he at a public-house, at Mansfield, on a market-day, seven miles distant, and there being applied to, relieved the pauper, and promised further relief if applied to at Edwinstowe, and the pau- per applied accordingly a fortnight afterwards, when he and his col- league refused to give her relief, telling her she must throw herself upon the parish of Mansfield, the court held, that this was sufl5- cient evidence to waiTant a finding by the sessions, that the pauper was settled in the relieving parish. (R. v. Edwinstowe, 8 Barn. & Cres. 671 ; R. v. Stanley, cum Wrenthorpe, 15 East, 350.) This, however, is only evidence, which may be rebutted by satisfac- tory proof, that the pauper at the time he was relieved, while residing out of the parish, was actually settled elsewhere, (R. v. Maidstone, 12 East, 553.) But the bare fact of giving relief to a pauper, while resident in the parish, is not evidence of a settlement in that parish, for it may be bestowed upon him as casual poor, in which case they would be bound to maintain him till they could find out his settlement. (R. v. Chat- ham, 8 East, 498.) And giving him money to enable him to return to a particular place, after having relieved him for three weeks, does not caiTy the acknowledgment of settlement in the relieving parish any further. (R. v. Trowbridge, 7 Bam. & Cres. 252 ; 1 Man. & Ryl. 7.) The fact of such relief may be proved by the pauper himself, or any other person who saw the payment, or by the admission of the overseer, or of any rated inhabitant of the relieving parish ; and it is the province of the court before whom the evidence is given, to judge of and detennine its value. (R. v. Hardwicke, 11 East, 578; R. v. Whitley Lower, 1 Maul. & Sel. 636.) In such cases it is prudent to give the parish notice to produce their books, or any book which con- tains an entry relating to the question. Certificate, Evidence of Settlement.] A certificate being an acknowledgment in writing, made by a parish, in a certain prescribed forai, that the persons included therein have a settlement in that ])arish, it is conclusive between the certificated auanent of rent, as rent, is evidence of tenancy, and may be proved without producing the written instrument, nor need it be produced to prove the yearly value. (R. v. Hull, 7 Bam. & Cres. 611 ; 1 Man. I & Ryl. 444.) But proof of the rent actually paid does not estop the other side from proving the real annual value by the opinion of com- j3etent persons, who have made their estimate upon a sun-ey of I the premises ; a species of evidence which may be resorted to by ' either party, and the only proof where pa^anent of rent cannot be proved. If a renting by the ^veek, or month, be shown, which, in the aggre- gate for the year, amounts to a sufficient value, this is not so decisive as an annual renting, and may be more readily imjiiigned by proof of the actual yearjy value being less than such aggi-egate amount. The forty days' residence in the parish in which the tenement, or some pait of it is situated, must be proved as in other cases. What Tenement, since 1819.] Since the passing of the 59 Geo. 3. c. 50, it is necessary that the tenement, in respect of which the settlement is claimed, should lie in one parish, and that it consist of a distinct and separate dwelling-house or building, or of land, or of a house or building and land. Evidence to this effect may be given by any one accpiainted with the parish and the tenement ; or, if the bounds of the parish be in dispute, those bounds may be proved by perambulations, in which the two adjoining parishes were parties, or, which were made under an act of parliament. Or, the bomidaries may be proved by evidence of reputation, that is, by the declarations of old persons deceased, or other owners and occupiers, who had, at the time such declarations were made, no particular interest in favour of the one parish or the other. So, also, proof of the exercise of paro- chial rights over the place in dispute, as the taking of tithes, pay- ment of parish rates, &c. is evidence for this purpose. By an act for making the river Cam navigable, authority was given to the commissioners to let the tolls, toll-houses, &c. They accord- ingly gi-anted a lease of the house, tolls, &c. at £56 a-year. The toll- house was licensed as a public house, and the lessee underlet the whole demised to him to one Unwin, who stipulated to purchase all the ale Sect. III.] EVIDENCE IN SETTLEMENT CASES. 589 and beer sold on the premises of the lessee, who Avas a brewer. Under this agreement, Un\vin occupied for more than a year, and paid the year's rent, and had been charged by the parish of St. An- drew, in which the house was situated, to the rates, " for public-house, four pounds ;" and it was found by the sessions, that the house was worth, as a pub lie -house, twenty-five pounds a-year; but if not rated or used as a public-house, then the value was estimated at four pounds a-year ; and the sessions quashed aii order removing Unwin to the said parish, holding that no settlement was gained by the above hiring and occupation. The case was considered as coming within the 54th Geo. 3, c. 170, s. 5, which provides, that no person renting the tolls, &c., of any turnpike road or navigation, and resid- ing in the toll-house, shall thereby gain a settlement. The Court of King's Bench held that the sessions were right, saying, it was better to adhere to the words of the act in such cases ; and observed, that the house, land, and tolls were let at one entire rent, and that they could not inquire into the value of one part, as distinct from the other, in order to bring the case within the 59th Geo, 3, c. 50, or the 6lh Geo. 4, c. 57. It seems from the above case, that where a tenement, which may happen by itself to be of more than the value of ten pounds a-year, is let together with some other matter, at an entire rent of more than ten pounds a-year, a residence on the tenement will not confer a settlement under either of the above statutes. Mr. Justice Bayley having expressed it as his opinion, that the subject matter of the let- ting could not be apportioned, in order to fix a value of ten pounds a-year upon the tenement. (R. v. St. Andrew the Less, Cambridge, E. T. 1830, MSS.) The locality, and the nature of the tenement being established, it must be next proved, that the party hired the tenement for a year at the rent of £ 1 at the least. For this purpose, the agreement, if in writing, should be produced, and proved in the ordinary way. Oi", if by word of mouth, the usual testimony in such cases is sufl!icient. (See ante 581.) It has already been stated, that the fact of tenancy, and of yt'arly value, may be proved by oral testimony, even where there is a written agreement, which the party fails to produce. {Ante 588.) But the terms of the tenancy jnust be proved by the written instrument, where one exists between the parties. Thus, where a prhnd facie case of tenancy was proved, and the respondents attempted, in answer, to show by parol testimony, that the pauper was not the sole tenant, and that the ])remises wen; let \o him 590 REMOVAL OF PAUPERS. [Chap. XXVI. jointly with two others; but the witness, on cross examination, having stated that the letting was by a written instrument, the court held, that such letting could only he proved by the production of that in- sti-ument. (R. v. Rawden, 8 Bam. & Cres. 708.) It seems to follow, that as under the 59 Geo. 3. c. 50, it is material that the party should rent at £10 a year at the least, and the demise must be by the year, in all cases upon tenancies since that statute, the written agreement cannot be dispensed with, if there be one capa- ble of being produced ; it being the best eAddence of the terms of such renting. Where no direct means of proving an agreement between lessor and lessee, or landlord and tenant, exist, circumstantial e^ddence of a bona Jide hiring, according to the conditions of the statute, may be adduced. Thus, proof that A. was the landlord of the premises, that B. occupied them for a year, and paid a year's rent amounting to £10, justify the inference that they were hired agreeably to the terms of the statute. If the tenement consist of different parcels, hired of different per- sons, and at different times, the same proof must be gone through mth respect to each hiring, to complete the e\adence of the settle- ment. Proof that the party held or occupied for a whole year, (see ante 529,) may be given by any one cognizant of the fact. Pa}Tnent of a whole year's rent, whatever the amoimt, {^ante 531,) may be pro\ed by the landlord or tenant, or if the agent of the per- son for whom it was received be dead, a receipt given by him is good evidence for this pm-jjose. As the law considers a tender of pa\Tnent, duly made, as equivalent to payment, for certain pui-poses, it is probable that a legal tender of the rent upon the premises before sunset, or the last hour of the day when it became due, and proof also that the paity was always ready aftenvards to pay it, would be held equivalent to actual payment for the pui-]iose of gaining a settlement. (See R. v. Ampthill, 2 Bam. & Cres. 854. ) But, of course, the tender must be made \rith all the exactness required in other cases, that is, it must be the proper svmi, the money must be produced, and the pa\Tnent must be offered un- conditionallv. The proof of forty days' residence in the parish, must, of course, be added. Proofs under 6 Geo. 4. c. 57.] With regard to the endence ne- cessary to establish a settlement acquired under this statute, that is to say, since the 22nd of June, 1825, it is requisite to prove the nature Sect. III.] EVIDENCE IN SETTLEMENT CASES. 591 of the tenement, and that it is within the parish, in the same manner as under the former act ; (ante 588 ;) the hiring in this case, it is presumed, must be one hiring, and that several hirings, as in the former case, will not suffice, the words of this statute being, " such yearly hiring." An occupation under such yearly hiring must, of course, be proved, and the payment of the year's rent, with a residence also of forty days in the parish. Settlement by payment of Rates: Proofs.] Settlements by pay- ment of rates were virtually abolished by 6 Geo. 4. c. 57 ; before that period, down to June 22nd, 1795, they were governed by 35 Geo. 3. c. 101. s. 4, having, anterior to the passing of which statute, rested upon the law as it stood upon the 3 W. & M. c. 11. s. 6. In all cases, whatever the period in which the settlement by pay- ment of rates is to be established, there must be proof that the person was either actually or constructively rated in respect of his tenement ; that he paid such rate, and that he resided in the pai'ish forty days after payment. The rate itself is the best evidence of the rating, but if it be in the custody of the opposite party, who refuse to produce it upon due notice, or if proof be given of its destruction or loss, then secondary evidence is admissible of its contents. In this latter case, some evi- dence must be given for the purpose of authenticating it ; if, however, it be proved to be in the possession of the opposite party, and they having had notice, refuse to produce it, no further proof is necessary to entitle the party to give secondary evidence of its contents. In all other cases it must be duly authenticated, the best proof of which authentication is afforded by evidence of the hand-writing of the justices who allow it. As by 17 Geo. 2i c. 3. s. 2, the churchwardens, &c. are to give to the inhabitants of the parish, copies of the rate on demand ; such copy, proved to have been so given, seems to be good secondary evi- dence of the rate without being proved to be an examined copy ; but any other copy must be proved to have been compared with the ori- ginal rate. If no copy is produced, and it is not shown that one exists within the knowledge of the party proving the rate, oral evidence may be given of its contents. If the rate refer to the person by name, his identity as the person so referred to, may be proved by any one who knows the fact. If he is not named in the rate, it must be shown by distinct evidence, that he was the person contemplated by the parish officers in rating the tcnc- 592 REMOVAL OF PAUPERS. [Chap. XXVI. mcnt of which he was possessed ; and that the fact of his occupation at that time was known to the parish officers. Thus, for instance, if the assessment be upon " J. S. or the tenant, of Black Acre." Here it is necessary to prove that J. S. was the landlord, and that A., whose settlement is in question, was the tenant. Oi", if the rate had been upon J. S. a former occupier, who was dead, it must be shown, that the parish knew of the death at the time they made the rate, and that A. was at that time in the occupation of the premises. As to what in law may be considered a payment, and the time when such pa^Tiient should be made, {ante 590.) To establish a settlement by rating between the 22nd of June, 1795, and the 22nd of June, 1825, in addition to all the above proofs, it must be shown that the tenement, in respect of which the paity is rated, was of the yearly value of £10 at the time the rate was made. Settlement by Estate : Proof s.~\ As the law has provided that a pur- chase of an estate for less than £30, shall not suffice to give a settle- ment, it seems necessary in all cases to prove that the title of the owner is not liable to this objection, before it can be held sufficient to give him a settlement. The nature of the evidence necessary for this puipose will depend upon the nature of the estate, and upon the mode by which the party acquired it. Thus, proof of possession by an ancestor, and succession by an heir, which maybe given by any one who knows the facts, discloses enough of the title to make out a prima facie case, that the latter did not purchase for a money consideration. And, his relationsliip as heir may be proved by persons belonging to the family, speaking from their own knowledge, or from what they have heard from deceased mem- bers of the family, respecting the relationship of its different members, aided by parish registers, &c. (See 3 Stark. Ev. tit. Pedigree.) In the case of a widow found in possession of an estate, which was her husband's, proof of possession on the part of the husband, before, and at the time of the maniage, proof of the maniage itself, of his death, and of her subsequent possession, will prima facie estabHsh her an estate as confers a settlement. If the party hold the estate as tenant, by the curtsey or othei-wise, in right of his wife ; the maniage, and either possession by the wife before mamage, or the title by which it came to her after marriage, must be proved. Where the paity holds, as executor, administrator, guardian in Sect. III.] KVIDENCE IN SETTLEMENT CASES. 593 socage, or as tenant by elegit, his title must be shown, according to the character in which he holds. To prove him executor, the probate must be produced, which re- quires no authentication, or a copy thereof, pro\'ed to be an examined copy, may be given in evidence, or the Probate Act Book of the Ec- clesiastical Court, or an examined copy of the entry in that book is admissible. If the probate has been lost, it is the practice of the Ecclesiastical Courts to gi'ant what is called an exemplification of the probate from their records, which exemplification, in such cases, or an examined copy of it, may be given in evidence. (2 Phill. Ev. 342-3.) If the party was administrator, the same course of evidence with regard to the letters of administration may be taken. (Davis v. Williams, 13 East, 232.) But instead of an exemplification, it is usual to give a certificate that administration was granted, which is equally effectual where the letters of administration are lost. In order to establish the title of guardian in socage, it will be necessary to prove the seisin of the ancestor, the death of that ancestor, the heirship of the ward, the fact of his being under the age of fourteen at the time of the guardian's entry upon the land, (which fact may be proved by any witness acquainted with the family of the ward,) and the relationship of the guardian to the ward, as nearest in degree among those relations to whom the inheritance can- not descend. If the estate was held under an elegit, it is requisite to prove the judgment recovered ; the elegit taken out upon it ; the inquisition made by a jmy, and the sheiifF's return, by which the land is assigned to the Creditor. (See 2 Phill. Ev. 252.) If the party possessed the estate, or was reversioner, or remainder- man, or had some equitable interest under a devise, maniage settle- ment, conveyance in consideration of natural love and affection, mortgage, deed of trust, or some written agreement, the ordinary mode of proving title in any such case must be observed. The devise, if of a copyhold interest, does not require a signature or attestation, as a devise of lands in fee sim])lc. It is suificient in this case to prove a will by the testator, of the same force only as that required for passing personal property. (Doe d. Cook v. Danvers, 7 East, 299 ; 2 Phill. Ev. 248.) If the devise be of a lease for a tenn of years, the interest is a chattel interest, and therefore the probate, and not the original will, is the proper medium for proving it. (2 Pliill. F-v. 247.) 'J'liis jmiof, 594 REMOVAL OF PAUPERS. [Chap. XXVI. coupled with proof of possession under the will, would probahly be deemed sufficient to show that the party had such an estate as would give him a settlement, without further evidence, as it would make out that the party occupied by a title not derived from a money-purchase. If the claim is under smTenders and admittances to a copyhold estate, either the original entries on the court rolls of the manor, or stamped copies of those court rolls must be produced. (Doe v. Hall, 16 East, 208.) It seems that land held as apj)urtenant to an office will not give a settlement by estate. The case was as follows : — ^By an award made by the authority of the lord of the manor and certain commoners, an allotment of a portion of the lands inclosed was awarded to " the shepherd for the time being." It was also provided by the award, that the shepherd was to keep the fences in repair. The shepherd had been for many years appointed by the commoners, and was liable to be discharged, like any other yearly servant. It was held, that a person who had in fact filled the situation of shepherd, and enjoyed the allotment for several years, did not thereby gain a settlement by estate. His situation being yearly, from which he was liable to be discharged, and he taking to the allotment, not by virtue of the award, (to which he was a stranger,) but by virtue of his situation as shepherd, the court considered his occupation of the allotment to be a part of the consideration or wages for his service, and that he had no title, either legal or equitable, to the land, but merely the right to occupy so long as he was in the place of shepherd. (R. v. South Newton, E. T. 1830, MSS.) Nor will residence upon an estate at will, under the value of ten pounds a-year, give a settlement, unless there has been an adverse possession for twenty years : and a j^erson who has only such an estate is removeable, though he may have resided more than forty days upon the estate. (R. v. Chew Magna, E. T. 1830, MSS.) To the various proofs by means of documentaiy evidence, must, in each case, be added some proof of the identity of the party. The instances in which a title, apparently good, may be most fre- quently impeached by matter of fact, are cases of estates purchased for a money consideration. In the insti'ument of conveyance, the sum stated may be large enough, while, in point oi fact, it may have been less than is required by the statute. In every such case the party opposing the settlement may show, that the full sum of £30 was not paid, or that it was not paid by the purchaser, but by some person who did not pay it on the purchaser's behalf. . Sect. III.] EVIDENCE IN SETTLEMENT CASES. 595 A residence for forty days in the paiish which contains some part of the estate must he proved, as in the other kinds of settlement. Settlement by Office : Proofs.] To estahhsh a settlement by serv- ing an office, an ajjpointment to such an office as will confer a settle- ment must be proved ; the execution of the office for a whole year must also be shown, and a residence for, forty days in the parish, or in a part of it where some of the duties of the office ai-e performed, must likewise be made out in evidence. The appointment may be proved by the books or rolls of a manor or parish, or by the oral testimony of witnesses who were present, if no formal record, wan-ant, or written entry, were made at the time. It must be remembered, that the appointment of an assistant overseer requires a stamp. (R. v. Lew. 8 Barn. & Cres. 655.) In the absence of direct proof of the appointment, it may be infen-ed from the proof given of the exercise of the office by the party, subject to its being impeached by the opposite side. That he exercised the office for a whole year, may be proved by himself or others, or by evidence that another person, who discharged the duties, acted as his dejjuty. If a legal appointment is established by direct e\'idence, it will not be required to give very strict and precise proof of the execution of the office, nor will it be necessary in any case to make out that the party seiTed the whole year, otherwise than by general evidence of his hav- ing discharged the duties of his appointment at different times within that period. The office of town crier and bellman is an annual office, within the 3 W. & M. c. 11, s. 6, by which a settlement may be gained. And if the town comprises several parishes, the settlement will be gained in that parish in which such officer has last resided forty days, while serving the office. It was before undecided (see 2 N. P. L. 629) whether a years residence and a year's service in the same parish were not essential in such case. But the court said, that as the notice in writing of a coming to settle required to be delivered, according to the 3d section of the above act, and from the delivery of which the forty days are to be calculated, is dispensed with in the case of an annual office, by the 6th section, a residence of forty days, without notice, by analogy to the cases of settlement by hiring and service, renting a tenement, &c., is sufficient. So that neither a year's residence, nor a year's service, in the parish where the settle- ment is claimed, is essential according to the words of the act. (R. V. St. Nicholas, Hereford, E. T. 1830, MSS.) Q Q 2 590 REMOVAL OF PAUPERS. [Chap. XXVI. Derivative Settlements : Proofs.] To establish a derivative settle- ment, whether it he claimed on behalf of a wife or cliild, it is necessaiy that satisfactoiy evidence of the maniage, which is the fomidation of this settlement, should be given. In some instances this question is put beyond dispute by the acknowledgment by certificate, &c., of the parish, sought to be charged. Settlement by Marriage: Proofs.'] Where no such acknowledg- ment exists, the most usual course to prove the maixiage is, by a ^jer- son who was present ; and either husband or wife is a competent wit- ness for this purpose, and the production of the parish register, with proof of the identity of the parties ; if, however none, of the persons who were present on the occasion can be found, the other eridence will be sufficient. (See infra.) Although by the jioHcy of the law, husband and wife shall not be pennitted to be witnesses for, or to criminate each other, yet where, upon a question of settlement, a mamage bet\veen A. and C. was set up, but the opposite party proceeded to prove that A. had been pre- viously mamed to B., and B. was called, who gave evidence of the fact, the court held, that she was projjerly received as a witness, as her evidence could not be used to criminate him ; and it also ap- peared that he had not been called as a witness, so that she was not produced to contradict him ; though the comt thought, under the cir- cumstances of the case, that was not material. (R. v. All Saints, Worcester, 6 Maul. & Sel. 194.) If the maniage took place in a chapel before the 23rd August, 1808, (see 48 Geo. 3. c. 127) it is necessary to prove that the chapel was consecrated ; or if the chapel were not consecrated, or the mar- riage took place subsequently to the above date, then it must be proved that the chapel was one in which maiTiages might legally be solemnized, which proof may be afforded by the production of old registers of maniages solemnized in the chapel, and by hving testi- mony that it is customary to celebrate mamages there. (2 Stark. Ev. 933.) And under the present marriage act, if the maniage take place in a chapel where banns could not lawfully be published, it can- not be mvalidated on that account, if the pai'ties were not cognizant of that circumstance. (See ante, 117.) The declarations of pei-sons deceased, as of either of the immediate parties, their relations, servants or intimate friends, as to the fact of maniage, ai-e also evidence, so that such declarations, whether oral or wiitten, were made before any dispute had arisen as to the fact, upon its being proved that the connexion of such persons with the Sect. III.] EVIDENCE IN SETTLEMENT CASES. 597 family to which the tradition relates, was of a nature to give them peculiar means of knowledge on the subject. (1 Phill. Ev. 227.) Another mode of establishing a maniage is by evidence of reputa- tion. Proof, therefore, by any of the above means that the parties cohabited together, and were received by relations and friends as man and wife, will suffice in the absence of more direct evidence. A marriage may also be proved by a sentence in the spiritual court affinning the maniage, which is conclusive for all puiposes, unless it can be impeached on the ground of fraud or collusion. ( 1 Stark. Ev. 141.) The sentence itself is to be i^roved by the book which con- tains the official entry of the proceedings, or an examined copy of such entry. It is competent, on the other hand, to show, that a marriage has been annulled by the spiritual court, or that it was not perfonned in a manner to render it valid ; or that no marriage in fact took place, in cases where the proof in its support rests upon hearsay evidence, or reputation ; and the same species of evidence is admissible to destroy a marriage by reputation, as is produced to establish it, the court hav- ing then to detennine upon the balance of testimony. It may be proper to remark, that a marriage is presumed to have been celebrated with the fonnalities necessary to its validity, till the contrary be shown ; and that it is not necessary to prove that the minister was in orders, or to jirove any of the proceedings preliminary to the actual solemnization of the mamage. (See 2 Stark. Ev. 932.) And, although in cases of mamages by banns, the law requires that the true names of the parties should be given in the 2)ublication of the banns, yet if they were known by the names used, for some time, (in one instance sixteen weeks,) though it be a false name, which has been assumed to prevent a discovery in some other matter not at all con- nected or relating to the marriage, (as where the party is a deserter, for instance,) the marriage cannot be invalidated on that gi'ound. It is also good, if the names by which they have been long known are used, though there might be some intention of a fraud in other re- spects. But if a totally false name be assumed for the jjurpose ol" the mairiage, then it cannot be considered that such name is a true desig- nation, and the fraud would vitiate the marriage. But partial varia- tions, where no fraud was intended, and the parties have lived together a long time, would not be considered as rendering the mamage void. (2 Stark. Ev. 935; 3 Maul. & Sel. 266.) See further on this sub- ject, tit. "Mamage." {Ante 111, e/ seq.) Settlement by Parentage : Proofs.^ To prove that B,, the person 598 KEMOVAL OF PAUPERS. [Chap. XXVI. (bv wliom a settlement by parentage is claimed, is really the legitimate cliild of A., in addition to the marriage of the pai'ent, which has been already discussed, the birth of the child within lawful wedlock must be shown, which may be either by direct proof of the birth, and time of birth, as by means of the mother, or any one else personally ac- quainted with the fact, or by the declarations, oral or wiitten, of de- ceased relations who may be acquainted with the circumstances, (3 Stark. Ev. 1101 — 1116,) or througli the medium of the register, ac- companied with proof of identity. Or it may be shown that the child was reputed to be the legitimate child of its parents, and was so treated by the family. In whatever way the legitimacy of the child may be attempted to be proved, it is still open to the opposite party to show that the child in question was not in law and fact a child of the maniage. (Good- right V. Moss, 2 Cowp. 691.) Even if the marriage be unimpeachable, and the child was bom after the marriage, and the husband was even living in the same house with the wife at the period when, according to the ordinary course of nature, he might be the father of the child, yet e\'idence may still be adduced to show that the husband was not the father of the child. (See " Illegitimate chilchen," ante 461.) Settlement by Birth : Proof s.'\ Although in questions of pedi- gree hearsay evidence of birth is admissible, yet in a case of settle- ment the point to ascertain is, whether the person was born in a parti- cular place, and upon this question hearsay evidence cannot be received. (R. v. Erith, 8 East, 539.) It is obnously the best mode of fixing the locahty of the birth, to call some person who was present, or who knew and saw the mother in the parish, just before and immediately after that event, and who also saw the offspring, and can give e\T.dence upon the question of identity. Or these several facts may be proved respectively by differ- ent witnesses, according to theh knowledge. It is clear that the party himself can have no recollection upon which to presume that he was born in a particular place. (See R. v. Trowbridge, 7 Barn. & Cres. 252.) The register of baptism is, per se, no evidence that the child men- tioned in it was born in the parish. If the age of the child, when it was baptized, could be ascertained, the register might in some cases be evidence of the place of birth. If the child was then very young, the register would be presumptive e\ddence that it was bom in that parish where it was baptized ; but if the child were not then young. Chap. XXVII.] LIGHTING AND WATCHING PARISHES. 599 the cu-cumstance of its having been baptized in a particular parish would aflbrd no presumption that it was born there. (R. v. North Petherton, 5 Bai-n. & Cres. 510 ; 8 Dowl. & Ryl. 325.) Though a parish register is not conclusive evidence of the place of birth of the person baptized, it is admissible in evidence, to be con- sidered with other facts, upon the question as to the place of birth. The declai-ation of a deceased mother, as to the time of birth, is admissible in evidence, upon a question as to the place of birth of the child, though the father be Hving. (R. v. Buiningham ; R. v. Aston, Oct. 29, 1829, K. B. MSS.) CHAPTER XXVII. LIGHTING AND WATCHING PARISHES. An act has passed in the present session of parliament, upon this subject, with a view to supersede the necessity of incurring the ex- pense of private bills, by parishes desirous of availing themselves of a regularly digested system for this purpose, under the sanction of the legislature. The act is intituled, " An Act to make Provision for the Lighting and VVatching of Parishes in England and Wales." (11 Geo. 4. c. 27.) The following abstract is in the language of the act itself, the repe- titions and multiplied expressions being omitted, in order to reduce the whole into a smaller compass. The provisions relating to nui- sances arising from the manufacture or use of gas, are the same as those usually found in local acts on the like subject. The first sec- tion is as follows : — Whereas it is desirable to make provision for the lighting and watching of the several parishes in England and Wales ; be it there- fore enacted, that this act shall apply to and may be adopted 1)y all or any, or either of the parishes in England and Wales, (s. 1.) Meeting to adopt the Act.] That upon the application of three or more rated inhabitants, the churchwardens shall, within ten days after, appoint and notify a thne and place for a public meeting in vestry of the inhabitants of the parish, for determining whether the (iOO I.IfiHTIN*; AND WATCHING PARISHES. [Cliap. XXVII. provisions of the act shall be adopted in the said parish ; provided that the meeting shall not he less than ten, nor more than twenty-one days, from the delivery of the said application ; and that the notifica- tion of the time and place of meeting shall be forthwith afSxed on the principal outer door of every parish church or chapel situate within such parish, and also by publication in the church or chapel, on the Sunday previous to the day appointed for such meeting, during or immediately after divine sen-ice. (s. 2.) Plurality of Votes.'] That at any such meeting, every inhabitant present, who shall by the last poor's rate have been assessed in respect of any annual rent, profit, or value, not amounting to fifty pounds, shall have one vote only ; if assessed upon fifty pounds or upwards, (whether in one, or more than one sum or charge,) shall have one vote for every twenty-five pounds of annual rent, profit, and value, upon which he shall have been assessed iu such last rate, so that no inhabitant shall give more than six votes ; and where two or more inhabitants present are jointly rated, each shall vote according to the proportion borne by him of the joint charge ; and when one only of the persons jointly rated attends, he shall vote according to the whole joint charge ; provided, that when any person become an inhabitant, or become liable to be rated, since the making the last poor's rate, he shall be entitled to vote in respect of the property for which he shall have become liable to be rated, and shall consent to be rated, as if he had been actually rated for the same : provided also, that no per- son who shall have refused or neglected to pay any poor's rate due, and which shall have been demanded of him, shall vote or be present at any such public meetuig in vestry, until he shall have paid the same. (s. 3.) Chairman elected : his duty.] The inhabitants present shall elect a chainnan at such meetings, who shall detennine any controversy as to the qualification, right, or eligibility of any person claiming to vote, or as to the qualification or eligibility of any candidate, (s. 4.) The chairman shall read, or cause to be read, the requisition for the meeting, and shall requu-e the persons assembled to determine, by majority of votes, whether this act shall be adopted. The majority of the rated inhabitants present may adjourn such meeting from time to time. (s. 5.) Act to operate from adoption.] That if at such meeting it shall be determined by a majority of three-fourths of votes, ascertained as aforesaid, to adopt the provisions of this act, the same shall from thence- forth come into operation in such parish ; and it shall forthwith be determined, that not more than eleven, nor less than three inspectors. Chap, XXVII.] LIGHTING AND WATCHING PARISHES. 601 shall be elected to carry f3uch pm-jjoses into effect. The inspectors shall be elected in manner hereinafter mentioned, (s. 6.) Maximum of Rate.] The inhabitants adopting the act shall, at the first meeting, or some adjournment thereof, fix the highest amount of rate which the inspectors shall have power to call for in any one year, for the purposes of this act. (s. 7.) Rejecting the Jet.] If the meeting detemiine against adopting tbe act, the inhabitants shall not meet again in less than one year from such meeting, (s. 8.) Electing Inspectors. ] The inspectors shall be elected in mamier following : — Each candidate, being a resident within the ]3arish, and assessed to the poor in respect of a tenement, &c. of the annual value of fifteen pounds or more, shall be eligible, and shall be proposed and seconded at the meeting by persons duly qualified to vote ; and if there are more candidates than the number of inspectors authorized to be elected, and a poll be demanded by any ten persons qualified to vote, the chairman shall proceed with such poll, and in a book or books prepared by the churchwardens, shall enter or cause to be entered, the name of all such candidates, and the name of every duly qualified voter, with his description and abode, and for whom he votes ; and if all the votes cannot be conveniently registered by four o'clock, the chairman shall at that hour adjourn such poll to the day next succeeding, unless such day shall be a Sunday, Christmas day, or Good Friday, and in that case, to the day following, and then proceed with the same. But the poll shall finally close at foin- o'clock on such second day, or sooner, provided all persons duly qualified and desirous to vote shall have voted, and after the lapse of one hour, without any person offering to vote ; and as soon after the close of the poll as may be possible, the result shall be declared at the place of election, and certified by the chairman to the overseers of the poor ; and the said churchwardens shall be reimbursed all reasonable expenses incurred in providing clerks, books, and otherwise, in the performance of the duties hereby required of theni, by the candidates at the said election for the said office, (s. 9.) Inspectors: duration of Office.] The inspectors so elected shall go out of office on the 29th day of September, in the third year from the said first election ; and in their place other ins])cctors, elected as hereinafter provided, shall come into and remain in office for three years, who at the expiration of such three years shall in like manner go out of office, and be succeeded by other inspectors, who shall remain in office for a like term of tlu"ee years, and so on for ever ; 602 LIGHTING AND WATCHING PARISHES. [Chap. XXVII. provided that any of such outgoing inspectors may be re-elected. (s. 10.) Elections when to be made.'\ The triennial meetings for electing inspectors are to be held on the second Monday in September. And such meetings are to be regulated and governed in all respects by the provisions herein contained, as applicable to the first meeting. (s. 11.) In case of any vacancy happening in any manner whatever, so that the number of inspectors shall be reduced to less than three, notice shall be immediately given by the acting inspectors to the church- wardens, who shall forthwith call a meeting of the mhabitants, as aforesaid, for the pm'pose of filling up such vacancy, (s. 12.) Meetings of Inspectors.] The inspectors shall meet on the first Monday in every month, at noon, at some convenient place pre- viously publicly notified ; and at such monthly meetmg any inhabi- tant rated to the poor may there prefer any complaint concerning any thing done in pursuance of or under pretence of this act. (s. 13.) The inspectors shall meet as often as at any previous meeting shall be detennined upon ; and any one inspector, when three only have been appointed, and in all other cases any two, by writing under his or their hands, may summon, at forty-eight hours' notice, the inspec- tors, for any special pmijose, and for such time as shall be therein named ; and that at such meetings not less than one third of the whole number, except when only three shall have been appointed, and then not less than two inspectors shall constitute a quormn for transacting business, (s. 14.) Oncers appointed by Inspectors.] The inspectors for the time being shall appoint, during pleasure, such treasurer and other ofl5cers as they shall think necessary, and hire a sufl5cient office or room for holding their meetings and transacting their business ; and they also shall appoint suitable salaries and allowances for such treasurer and other officers, and pay the same, and the rent of the office, &c., out of the monies received by them under the authority of this act. But no person shall at the same time hold two offices under the said inspec- tors, (s. 15.) Treasurer to give Security.] The inspectors, or any two or more of them, shall take security from the treasurer, for the due execution of his office, to the full amount of the sum likely to be in his hands at any one time ; and if he neglect or refuse, for three weeks next after his appointment, to give or offer satisfactory security, his appoint- Chap. XXVII.] LIGHTING AND WATCHING PARISHES. G03 uient shall be void, and the inspectors shall, within three weeks then next, assemble and appoint some other fit person to the ofEce of trea- surer in his stead, and shall so assemble and appoint, from time to time, until security shall be given to their satisfaction, as aforesaid, (s. 16.) Officers' Accounts.'] Every such treasurer and otl\^r officer shall, under his hand, and in such time and manner as the inspectors shall du-ect, deliver to them, or such person as they shall appoint, true accoimts in writing of all matters and things committed to his charge by virtue of this act, and of all monies by such officer received by virtue of this act, and of his disbursements, together with proper vouchers for such payments ; and every such officer shall pay all such monies as remain due from him, to the ti-easurer, or to such person as the inspectors shall ajipoint ; and in case of refusal or neglect herein, or to deliver to the inspectors, or to such person as they shall appoint, within three days after being required, in \mting, under the hands and seals of any two or more inspectors, left at the usual abode of such officer, all books, papers, and writings in his cus- tody or power, relating to the execution of this act, or to give satis- faction to the inspectors, or such other person, respecting the same ; then and in every such case, upon complaint to any justice of the peace, such justice shall issue a summons under his hand and seal for such officer to appear before two justices ; and upon his appearing, or, having been so summoned, not appearing, without some sufficient excuse, the said justices rcay hear and determine the matter in a summary way ; and if upon confession, or by credible testimony upon oath, it shall appear that any monies remain due from su(;li officer, such justices shall, upon non-payment thereof, cause such money to be levied by distress ; and if no goods of such officer shall be found sufficient to satisfy the said money, and the charges of distraining and selling the same, or if it shall appear to such justices that such officer had refused or wilfully neglected to render such account, or to pro- duce the vouchers relating thereto, or that any books, papers, or wri- tings, as aforesaid, remained in the custody or power of such officer, and he refused or wilfully neglected to deliver or give satisfaction respecting the same, then such justices shall commit such o/lcnder to the common gaol or house of correction for the county or place where such offender shall be or reside, there to remain until he shall have given a perfect account, or ])aid such monies, or compounded for such money, and shall have paid such composition, (which conipositimi the said inspectors are hereby empowered to make,) and until he shall have delivered up such books, ])upcrs, and writings, or given satisfac- 604 LIOHTING AND WATCHING PARISHES. [Chap. XXVIL tion in respect thereof, as aforesaid ; but no such offender shall he imprisoned for want of sufficient distress, for any longer than three calendar months, (s. 17,) Stireties not exonerated.] No such prosecution or commitment, shall acquit or discharge any surety or security given to the in- spectors for the due execution of his or their ofBce. (s. 18.) Oncers not to accept Fees, S^c] If any treasurer, officer or ser- vant in anywise emjjloyed by the inspectors, shall take, or accept any fee or reward, other than such salaries, allowances, and rewards as are appointed under the authority of this act, on any account what- soever relative to putting this act into execution, or shall in anywise be concerned or interested in any bargain or contract made or to be made by the inspectors, every such offender shall be incapable of ever being einjjloyed under this act, and shall also forfeit the sum of fifty pounds to any person who shall sue for the same. (s. 19.) Inspectors to sue, and be sued.] The inspectors may sue and be sued in the name of any one of the inspectors for the time being ; and no action or suit brought, by or against the inspectors, by virtue of this act, shall abate or be discontinued, by the death of such in- spector, but such inspector shall be deemed plaintiff or defendant in any such action or suit (as the case may be) : provided, that in all cases in which the inspector shall be the plaintiff or defendant, in which in effect the said inspectors shall be suing or sued in the name of such one inspector as aforesaid, he (although appearing as the plaintiff or defendant on the record) shall nevertheless (if not other- wise interested or objectionable) be a competent witness either for or against the inspectors ; and affidavits of debt or service in the prose- cution or defence of any such action or proceeding, may be made by such one inspector, notwithstanding he is nominal plaintiff or defendant : provided also, that any such inspector in whose name any action or suit shall be so prosecuted, or defended, shall be reimbursed all costs and expenses which he shall be put to or become chargeable with by reason of his being made plaintiff or defendant therein, unless such action or suit shall arise in consequence of his own wilful default, or have been commenced or be defended without the order of the said inspectors, (s. 20.) Proceedings to be entered in a Book.] All acts, orders, and pro- ceedings of the inspectors at their meetings shall be entered in a book, and be signed by two of the inspectors then present ; and such books may be read as evidence of such acts, orders, and proceedings, upon any proceeding, civil or criminal, and in any court or courts of law or equity whatsoever, (s. 21.) Chap. XXVII.] LIGHTING AND WATCHING PARISHES. 605 Books for Accounts.'] The inspectors shall direct a book or books to be kept, in which shall be entered true accounts of all money re- ceived, paid, and expended for the purjjoses of this act, and of the several articles and things for which such sums of money shall have been paid ; and such book or books shall at all reasonable times be open to the inspection of the inspectors and of every rated inhabitant, without fee or reward, who may take copies or extracts without pav- ing for the same ; and in case the inspectors do not permit the per- sons aforesaid to inspect the same, or take copies or extracts as afore- said, such inspector shall forfeit not exceeding £ -5 for each default, to be levied and applied in manner hereinafter provided, (s. 22.) Annual Jccounfs.] In the month of September in every year, a true account shall be made in writing of all monies received and paid during the preceding year, ending upon the thirty-first day of August in every year ; and a copy or duplicate of such account, verified on oath before any two justices of the peace by the said inspectors, or any two of thein, shall be deposited with the said inspectors, and shall be open to the inspection of all parties interested, (s. 23.) Order to levy Rates.] The inspectors, or any two or more of them, may from time to time issue an order under their hands to the overseers of the poor, requiring the said overseers to levy the amount mentioned in the said order : such order to specify the rate in the pound at which the sum mentioned therein shall be computed, (s. 24.) Rates proportioned and enforced.] The overseers shall, for the pur]5ose of collecting and levyhig such rate, proceed in the same manner, and have the same powers, remedies, and privileges, as for levying money for the relief of the poor, provided that the owners or occupiers of land shall be assessed in the proportion of one-fourth of the rate so authorized to be demanded by the inspectors, and the owners or occupiers of houses, buildings, and other property rateable to the relief of the poor, shall be assessed in the proportion of the remaining three-fourths of the said rate : provided also, that the sum so to be levied shall not exceed in the whole in any one year the rate of so much in the pound on the fair annual value of all property rate- able to the poor, as shall have been determined on at the meeting assembled in manner hereinbefore directed, such {Ivir annual value to be according to the last valuation acted upon in assessing the poor's rate for the said parish, (s. 20.) Overseers to pay Amount required.] The overseers to whom such order shall be issued, shall pay the amount mentioned theri-in to the treasurer appointed under this act, witliin foity days from the delivery 606 LIGHTING AND WATCHING PARISHES. [Chap. XXVII. thereof, to one of the overseers, and shall keep the accounts of the said rate levied for the purposes of this act, separate and distinct from the accounts of the poor rates ; and on payment to the treasurer, the overseers shall deliver to him a note, signed by them, specifying the amount so paid, which note shall be kept by the treasurer as a voucher for his receipt of that particular amount ; and the receipt of the said treasurer, specifpng the amount paid to him by the over- seers, shall be a sufficient discharge to the overseers for such amount, and shall be allowed as such in passing their accounts with their re- spective parishes, (s. 26.) Where any persons other than the overseers shall, by virtue of any office or appointment, make and collect the rate for the relief of the poor in any parish to which the provisions of this act shall be ex- tended, such persons, by whatever title called, shall be deemed to be overseers of the poor within the meaning of this act. (s. 27.) Overseers may be distrained.^ In case the amount directed bv such order shall not be paid to the treasurer within the time speci- fied, any justice, upon complaint to him by the treasm-er, shall issue a summons under his hand and seal for such overseers to a]5pear be- fore two justices, who may, in case the said money is not paid, issue their warrant for levying the amount by distress ; and in case the goods of all the overseers shall not be sufficient to pay the same, the arrears thereof shall be added to the amount of the next levy, which shall be directed to be made in such parish for the purposes of this act. (s. 28.) Watchmen, i^c. to he appointed.'] The inspectors shall appoint and employ such number of able-bodied watch-house keepers, Serjeants of the night, watchmen, patrols, street-keepers, and other persons, as they shall think proper, by day and by night, and provide them with such clothing, arms, ammunition, and weapons, and shall assign to them such beat and duties, and appoint such hours for them to be on duty, and also such wages, rewards, and gratuities, and also make such rules, orders, and regulations relative to them and their duties, as to the inspectors shall seem meet ; and also may give them, as well as any other persons not specially employed by them, such rewards for apprehending felons and others, offenders within the limits of this act, as to them shall seem proper ; and may defray the expenses of prosecuting any such felons and oifenders, for the protection of the inhabitants of any parish adopting the provisions of this act, or in defending any of the said persons or other officers of the said inspec- tors in the execution of their duty, as they shall think pi'oper ; and Chap. XXVII.] LIGHTING AND WATCHING PARISHES. 607 the said and all other expenses incurred by the inspectors for the pro- tection and guard of the inhabitants, shall be paid by the inspectors out of the monies received in pursuance of this act. (s. 29.) Duties of Watchmen, Patrols, ^c] The watchmen, Serjeants of the night, &c. appointed under this act, shall, when on duty, use their utmost endeavours to prevent mischief by fire, robberies, burglaries, misdemeanors, and other outrages, disorders, and breaches of the peace, and to apprehend all felons, rogues, vagabonds, and disturbers of the public peace, or persons wandering, secreting, or misbehaving themselves, or whom they shall have reasonable cause to suspect of any evil designs, and to secure and keep in safe custody every such person, in order that he or she may be conveyed, as soon as conve- niently may be, before a justice of the peace, to be dealt with accord- ing to law ; and it shall be lawful for the said watchmen, Serjeants of the night, &c. to require any persons to assist them in taking such felons, and disorderly or suspected persons as aforesaid ; and any person who shall assault or resist, or encourage the assaulting or resisting, any of the said watchmen, &c. in the execution of their duty, shall for every such offence forfeit and pay any sum not ex- ceeding forty shillings, (s. 30.) To be sworn as Constables.~\ The watchmen, Serjeants of the night, and patrols, shall be sworn in as constables before any justice, and act as such under this act, with the like powers, privileges and inunu- nities, and shall be subject to the like penalties and forfeitures, as constables are invested with, or shall or may have and enjoy, or are or shall be subject or liable to by law. (s. 31.) Fire Engines to be provided.'] The inspectors shall provide and keep up fire engines, with pipes and other utensils proper for the same, and a proper place or places for the keeping of the same, and shall place such engines under the care of proper persons, and make them a reasonable allowance for their trouble ; and the expenses herein shall be paid out of the money received as aforesaid, (s. 32.) The inspectors are hereby empowered to cause lamp-irons, or ])osts, to be put upon or against the walls or palisadoes of any houses, tene- ments, buildings, or inclosures, (doing as little damage as may be practicable thereto,) or in such other manner as they shall think proper, and also to cause such lamps to be provided as they shall think necessary for lighting the streets and places, with gas, oil, or otherwise, and also to cause such watch-houses or watchboxes to be provided, as they shall think necessary, (s. 33.) Gas Pipes on private Premises.] Nothing lieniii contained shall empower the inspectors, bodies politic, or persons contracting with 6^8 LICHTING AND WATCHING PARISHES. [Chap. XXVII. the inspectors for Hghting with gas such streets, &c. to lay any pipe, cocks, or branches from any mains or pipes, against, into, or through any dwelling-house, public or private buildings, or to continue the same, without the consent in writing: of the owner or occupier, nor to enable any persons so conti-acting for lighting such streets, &c. to enter into or upon any private lands or grounds, without the consent in ^\^■iting of the owner or occupier first had and obtained, (s. 34.) In case the soil or pavement be broken up, with the consent of the owner, and after the same shall have been so laid and placed, he shall be desirous of having the same removed, he may at his own charge, alter and vary the position of such pipe or pipes, main or mains, and re-lay the same, so that no damage be done thereby to the said persons, contracting with the inspectors, so that such con- tractors be not thereby obstructed in lighting any public or private lamp, unless such damage or obstruction be unavoidable, (s. 35.) Stopping escape of Gas."] Whenever any gas shall be found to escajie from any such pipes, the persons whosoever, supplying- the gas, shall, at their own expense, immediately after receiving notice by parol or in writing, at their office or usual place of business, from any person whomsoever, cause the most speedy measures to be taken to prevent such gas from escaping ; and in case they shall not, within twenty-four hours after such notice, satisfactorily remove the cause of complaint, they shall for every such offence forfeit any sum not ex- ceeding five pounds, for each and every day, after the expiration of twenty-four hours from the time of giving such notice, during which the gas shall be suffered so to escape, which penalty shall be recover- able in a summary way, on the oath or affirmation of one or more credible witness, before any two justices, with all reasonable charges, by distress and sale, in like manner as herein directed touching other penalties, (s. 36.) Washings, ^c. from Gas Works.'] The party supplying any gas for lighting the streets, &c. within any parish adopting this act, may lay iron pipes as they shall think expedient, under thfe streets, &c. for the purpose of carrying off the washings or other waste liquids which arise in their works, doing thereby as little damage as may be, and immediately repairing, at their own expense, all such damage ; provided that no such washings, &c. shall be conveyed into any river, brook, canal, or running stream, and that no such pipe shall be laid where the same may in any manner prejudice or affect any of the present or future public or private wells, sewers, or drains, or without the consent of the inspectors, (s. 37.) Conveying Washings, ^c. into River, ifiB tolt .a-fj-wis Tender of Amends.'] No plaintiff or plaintiffs shall recover in any- action for any trespass, or other proceedings made or comniiited in execution of this act, if tender of sufficient amends be. naade by or on behalf of the party who has committed such trespass or wTongful pro- ceedings, before such action brought; and in case no tender shall have been made, the defendant or defendants in any such action may, by leave of the court, at any time before issue joined, pay into court such sum of money as he or they shall think fit ; whereupon such proceediugs shall be had, as in other actions where the defendantis- allowed to j)ay money into court, (s. 55.) tio ^Limitation of Actions.] No action or suit shall be commenced for any thing done in pursuance of or under colour of this act, until twenty-one- days' notice has been given thereof in writing to the in- spectors, nor after sufficient satisfaction or tender thereof has been made, nor after ^ix calendar months next after the fact conmiitted ; and every such action shall be brought and tried where the cause of action shall have arisen ; and the defendant or defendants may plead the general issue, and give this act and every special matter in evi- dence ; and if the matter or thing appear to ha^-e been done under this act, or that such action was brought before twenty-one days' notice thereof was given, as aforesaid, or if not commenced within the time limited, or be laid in any other county or place than as aforesaid, then the jury shall find a verdict for the defendant ; and if a verdict shall be found for any such defendant, or if the plaintiff become non- suit, or sufler a discontinuance, or if upon any demun'er judgment be given for the defendant, then such defendant or defendants shall have double costs, recoverable, as in any other case, by law. (s. 56.) Defects of Form.] No proceedings had and taken in pursuance of this act shall be quaTshed or vacated for want of form, or be removed hy certiorari, or any other process whatsoever, mto any of his ma- jesty's courts of record at Westminster or elsewhere, (s. 57.) Jlct Jioiv limited.] Nothing herein shall interfere with the powers of 10 G. 4. c. 44, intituled, " An Act for improving the Police in and near the Metroj^olis," or extend to any parishes or places within the city of London or the bills of mortality, or to any parish or place already v.holly or in jiart regulated by the provisions of any act of parliament for any of the purposes herein-before provided for, or to interfere with the powers which any corporate bod\- may ha^e with respect to watching and lighting, (s. 58.) CUa^.' XXVII.] LIGHTING AM) WATCHING PARISHES. 617 Nothing herein shall prejudice the rights of the commissioners of sewers, nor affect the rights and privileges of the universities of Ox- ford or Cambridge, (ss. 60, 61.) Inspecting Gas Works.] It shall be lawful for any surveyor, or other person or persons acting under the authority of commissioners of sewers, at any time or times in the day time, to enter into any manufactory, gasometer, receiver, or other building belonging to any gas company, or the said inspectors, in orde*r to examine if there be any escape of gas, or any washings, or other things whatsoever pro- duced in the prosecution of the said gas works, into any public sewer or drain ; and if such surveyor, &c., shall be refused admittance for such purpose, or, on being admitted, shall be obstructed in making such examination as aforesaid, the said gas company, or the said inspectors so offending, shall forfeit, for every such offence, the sum of twenty pounds, (s. 59.) Construction of the ^ct.] The powers given to watch and light any parish shall be understood to be given to any wapentake, divi- siqfi, city, borough, liberty, township, market town, franchise, hamlet, tithing, precinct, and chapelry ; and that the powers given to a churchwarden shall be understood to be given to any chapelwarden, overseer, or other person usually calling any meeting on parochial business ; and that the words " justice of the peace" shall be under- stood to mean justices of the peace for the county, city, borough, town, division, riding, shire, liberty, or place in which the parish which may adopt the provisions of this act shall be situate ; and the words " rated inhabitant," to include all persons assessed to and pay- ing rates for the relief of the poor. (s. 62.) This act shall be deemed to be a public act, and shall be judicially taken notice of as such, without being specially pleaded, (s. 63.) ( 619 ) ADDENDA. The following cases have been decided since those parts of the work to which they belong have been printed. Parish Lands.] By the following decision it is estabhshed, that the statutes on tliis subject are not limited to lands held merely for the benefit of the poor. Lord Tenterden, in delivering the judgment of the court, ob- served : — " There were demises in the name of the parish officers, and the tenements were certainly held for parish purposes. The lessors of the plaintiff contended that the premises were vested in the parish officers by the 54 G. 3. c. 12. The other side contended that the statute was inapphcable, for two I'easons ; 1st. Because the persons in whom the legal estate was vested were trustees only ; 2dly. That they were held for the benefit of the church, and not of the poor. As to the first of these objections, we are of opinion that there is nothing in the act of parliament to limit the right of persons under that act to tliosc who fill the situation of parish officers, and it would be liighly incon- venient to give the act so limited a construction. It is often difficult for persons who claim under an ancient trust, (where the trustees arc numerous,) to show who was the survivor of those tiustecs; and even if they should succeed in ascertaining that fact, it will not be less difficult to show who is the heir-at-law of that survivor. Upon the second point, whether this act extends to tenements which are appli- cable for the benefit of the church, or is confined to those which are applicable merely for the benefit of the poor, it is undoubtedly cor- rect, as was insisted on in the argument, that the iJriniary object of 620 ADDENDA. the act was directed to tenements of the latter description ; and it may be assumed that this was the primary object. But s. 17 goes in its tenns much further. (Here his lordship read the section.) It uses the words, ' and also all others.' To these there is no limita- tion. We think, therefore, that the safest course will be to give full effect to that generality of expression, as nothing appears to show that that which is held for the benefit of the church does not, under these circumstances, require the assistance of this act, as well as that which is held for the benefit of the poor. In both cases the diflSculty is the same ; and we see no reason to doubt that the operation of the act was intended to be co-extensive with the mischief. The posiea, therefore, is to be delivered to the plaintiff." (Doe d. Jackson, v. Hiley, E. T. K. B. 1830, MSS.) jioqqws ni Hiyhicays.'] Where a road has been made under a turnpike acl;, which act is aftei'wards repealed, the parish is not bound to repair the road. The court considered the point too clear for argument, and observed, that a road made under such authority might be called an act of parliament road, which ceases as such road when the act ex- pires. If the road had been used long previous to the act of parlia- ment, it did not follow that it was dedicated to the public, so as to cast the burthen of repairing it upon the parish ; (see R. v. St. Benedict, ante, 164;) though it might be doubtful whether a road originally made under an act of parUament was not thereby dedicated to the public ; notwithstanding the act was afterwards repealed, and the public were not bound to keep the road m repair afterwards. :(Jl<,.v« Mellor, T. T. K. B. 1830, MSS.) .^.r-.h .aJ- Bridge Tolls rateable.^ The Hammersmith suspension bridge is at one end in the county of Middlesex, and the other in the county of SuiTey. It was erected by a company, and the surplus receipts are divided among the shareholders. The gate at which the tolls are received is on the jNIiddlesex side, and the company paid to the poor rates on that side ; but upon being assessed on the other side, where no tolls were taken, they appealed, and the sessions gi'anted a case. It was contended, that as the tolls of a sluice or lock upon a navigable river had been held to be rateable only hi the parish where such sluice, &c., was situated, and the tolls received, (see ante, 411, 414,) the same rule must he followed in this case. The court, however, was of opinion, that as the company were beneficial occupiers uj>on both sides of the river, it was immaterial at what part of the bridge the tolls were taken ; and they were clearly liable to be assessed to the parish in the county of Sun'ey, as well as in j:die county • of Middlesex. (R. v. Barnes, T. T. 1830, K. B. :M8S,)! m'iU'M)t3a b ADDENDA. Q'2\ Relief— Evidence of Settlement.] The rule of law, that the fact of giving relief to a pauper while resident in the parish, is no evidence of a settlement in that parish, (see ante, 677,) has been strongly con- firmed in a recent case. The pauper with his family had resided for .some considei-ahle time in the parish, during which he had received relief from the parish, and the overseers had also put one of his children out as an apprentice, within the same period. His prior settlement ui another parish was afterwards discovered, and an order of removal made, against which there was an appeal, which the ses- sions allowed ; the magistrates being of opinion that under all these circumstances, the pauper's settlement was in the respondent parish. Upon the case being argued in the King's Bench, it was contended, in support of the order of sessions, that the whole was a question of fact for the decision of the sessions, who were to judge whether the relief given under the circumstances, was such as to warrant the conclusion that the respondent parish, by relieving the pauper for such a length of time, and exercising the right to place one of his children out as an apprentice, admitted that he belonged to them, and that they, having found, upon a consideration of all the facts, that the pauper was settled in the relieving parish, it was not com- petent now to reverse their decision, although the prior settlement in the appellant parish was fully established by the evidence. The court, however, were of opinion that tlie order of sessions could not be sustained upon either of these grounds. The question was not one of fact, to be determined by the balance of legal evidence, but depended upon the law apphcable to the case, which the sessions had mistaken. They had in fact acted upon that which was not evidence on one side, against the evidence on the other, and had afterwards sent the case for the opinion of this court, which has juris- diction, and is bound to correct their eiTor in this respect. The King V. Chatham {ante, 577) has established rightly that relief given to the pauper whilst in the parish, is no evidence of settlement, and the circumstance of one of the pauper's children being put out apprentice by the parish, does not alter the case. It is not provided by any of the acts of parliament on this subject, that overseers by being parties to the binding out of pauper children, thereby give them a settlement in their parish ; it is, in fact, a mode of relief to ca.sual poor which they may adopt without bringing any such liability upon their jMirish. (Rex V. Coleorton, T. T. 1830, K. B. MSS.) Written Agreement — Evidence.'] The necessity of producing the written agreement, (see ante, 590,) if there be one, in sujjport of a settlement by renting a tenement, since the passing of the 59 622 ADDENDA. Geo. 3. c. 50, and 6 Geo. 4. c. 57, has been fully confirmed since that page was printed, Mr. J. Bayley observed, that before these statutes passed, it was sufficient if the value of the tenement was £10 a year, no matter what were the tenns ; but under the above acts, the terms of the tenancy were material, and the settled rule of evidence, that the be.st evidence must be produced, cannot be dispensed with. It followed, therefore, that as the party had the written agreement, but would not produce it, the oral testimony ought not to have been received by the sessions, and their order must therefore be quashed. There was another point in the case, — w hether payment of part of the rent in money, and leanng fixtures upon the premises more than equivalent to the residue, amounted to payment of the whole year's rent, as required by the statutes, and the court intimated that it did not. (Rex v. MerthvTtidvil, T. T. 1830, K. B. MSS.) Appeal, Overseer against Overseer.^ The overseers of the poor are not so imited and identified in their oflice and duties, as to pre- clude one from appealing under the 17 Geo. 2. c. 38. s. 4, against the accounts of the other. Upon a motion for a mandamus to the justices of Gloucestershire to hear an appeal against an overseer's ac- counts, it appeared that upon an appeal against the accomits, after the case had been shortly gone into, it was objected, on behalf of the over- seer, that the appellant was his co-overseer, appointed with him con- temporaueonsl}% and answerable alike to the parish for the faithful discharge of the duties of the office, and that, therefore, the appellant being joint overseer with the respondent, he was in effect appealing against his oivn accounts, which was manifestly absurd, and not sanctioned by any thing to be found in the above, or any other, statute on the subject; the sessions yielded to this objection, and dismissed the appeal with costs. Upon these facts the court of King's Bench granted a rule riisi for a mandamus : upon showing cause, it was con- tended, first, that the sessions had heard and determined the case, as they had examined a witness, quashed the appeal, and given <;osts to the respondent ; and although they might have come to a wrong con- clusion, yet as they had decided the question, the mandamus ought not to be gi-anted. But the court said, that it was clear the justices had dismissed the appeal, not upon the merits, but because they thought they had no jurisdiction, which was a question of law ; and if they were mistaken in that, the mandamus ought to go. It was then contended, upon the same grounds as had been taken tit the sessions, that one overseer could not appeal against the ac- counts of the other; that although they were several indinduals, their duties were not several, both having the same authority, and ADDENDA. 623 tlie same liabilities in the management of the poor. The court, how- ever, were of ojiinion that the rule for the mandamus ought to be' made absolute, and observed, that in this case it appeared each overseer kept a se])arate account; and it was clear that each overseer may act by himself, and make separate disbursements, against which the other would have a right to appeal. It might happen, that one overseer might have grounds for appealing against the accounts of his col- league, which would be unknown to other persons. Besides, his being an overseer does not take away his right as a parishioner to appeal against the accounts of the other. The words of the act fully bear out this inteipretation; and it is obviously for the benefit and protection of parishes that it should be so acted upon whenever a proper occasion presents itself. (Rex v. Justices of Gloucestershire, T. T. K. B. 1830, MSS.) Overseers for Exfy-a- parochial District.] The district of Borough Fen is extra-parochial. It contains a considerable population ; and it had been for some time the practice for the inhabitants to support the poor requiring relief, who were resident among them, by rates, &c. Overseers had been in several instances appointed, who dis- charged the ordinary duties of that office. But the liability of the inhabitants within the district to pay rates for this purpose being at length disputed, the magistrates appointed overseers, and a motion was now made in full court for a certiorari to bring up such appoint- ment, for the purpose of moving that it be confirmed, and thus ob- taining the decision of the court, whether, under all the circumstances, overseers could be legally appointed for the district. In support of the application it was stated, that both parties were anxious for, and ready to abide by, the judgment of the court ; and a note in 4 Burn's Justice, 26, was relied upon, which says, " The law has likewise permitted a confirmation of the appointment by the court of King's Bench, on motion to that eflfect, when it is brought up by certiorari;" and R. v. Standard Hill, 4 Maul, and Sel. 382, was also referred to. The court, however, said they were not aware of any instance in which such an application had been granted with a view to confirm the appointment, though there were many cases in which an appointment of overseers had been moved into this court for the puqiose of quashing it, as was done in R. v. Standard Hill, to which reference had been made ; the rule was therefore refused. (R. v. J. J. of the Liberty of Peterborough, T. T. K.B. 1830, MSS.) INDEX. ABANDONMENT, Of an order of removal, how signified, 581. not admissible as evidence after, id. ABEYANCE, Fee simple of church, how far in, 62. ABJURATION. See Oaths. Oath of, to be taken on ecclesiastical preferment, 63. where to be taken, 63, 281. upon admission to corporate offices, &c. 144. Catholics exempted from taking, id. mandamus to compel administration of, id. to be taken by justices of the peace, 281. ABSENCE. See Non-Residence. On military duty, effect of on settlement, 487. For reasonable or justifiable cause, 495. In what part of the service immaterial, id. By imprisonment on complaint of master, id. ACCIDENT. See Casual Poor. Poor person, how relieved in case of, 467. expense of relieving, by whom borne, 469. surgeons attending, by whom payable, 471. ACCOUNTS, Of churchwardens, 92. ecclesiastical court may compel production of, id. but cannot dispute validity of, id. bound to permit inspection of, 93. mandamus, upon refusal, id. Of surveyors, 195. what entered in, id. to be produced at vestry, &c. id. may be inspected by inhabitants, id. penalty for neglects as to, 196. passing of, by justices, 197. balance upon, action for, id. Of constables, 355. when, and to whom delivered, id. allowance of, by whom, id. appeal against by overseers, 35C. expenses of parish business only allowed in, id. 626 INDEX. ACCOUNTS, continued. Of overseers, 432. how kept, and when balanced, id. what disbursements allowed in, id. delivery of, to whom, and at what time, id. auditing by justices, 433. justices may reduce items in, id. appeal against reductions by, 434. allowance of other justices to whom they are referred is void, 437. mandamus to pass, 434. balance upon, payment of, enforced, 434, 437. committal for non payment, when overseer a bankrupt, 435. refusal or neglects as to, indictable, id. appeal against by succeeding overseers, 436. not before allowance, 437. parishioner entitled to inspect, id. Of treasurer to guardians of the poor, 446. to be produced and adjusted at monthly meetings, id. parishioners may inspect guardians' accounts, 447. mandamus to compel on refusal, id. ACTION For defacing monuments, 34. For burial fees, who may have, 56. For penalties for non- residence, 68. For goods of the church, by churchwardens, 83,89. may proceed with, after office expired, 94. Against churchwardens, and pleading thereto, 95. For refusing the sacrament, 107. For books belonging to parish library, 133. For penalty on refusing inspection of parish books, 136. For balance in hands of surveyors, 197. For penalties incurred under highway acts, 245. For excluding from vestry room, 257. Against justice acting when unqualified, 278. for official misconduct, 312. Against clerk of the peace for taking excessive fees, 325. Against hundred, who to be defendant, 341. Against constable acting under illegal warrant, 345. acting beyond authority of warrant, 346. when not maintainable against, 359. limitation of, id. For reward, for the recovery of stolen goods, 357. Against overseers serving workhouse for profit, 439. guardians, alike liable to, 440. ADJUDICATION In an order of removal, 561. that the pauper is chargeable, 562. of the parish in which he is settled, id. refers to the time of the complaint, id. In an order of bastardy, 464. ADMINISTRATOR May gain settlement by estate, when, 540. Title of, how established, 593. ADMISSION Of minister before he officiates, 73. by whom, and how given, id. To civil or corporate offices, 145. To an endowed pastorship, 153. ADULT Apprentice, how discharged from indentures, 519. INDEX. 627 ADVANCES By overseer, how reimbursed, 435. colleague to reimburse, if he has a surplus, iil. AFFIDAVITS In extrajudicial matters, improper, 292. AFFINITY, Marriage forbidden within degrees of, 109. AFFIRMATION. See Quakers, Moravians, &c. AFFRAY. See Riot. Constable may break open doors to prevent, 337. punishable for neglecting to prevent, 361. AFFRAYERS, Constable may arrest, during affray, 337. and afterwards if a dangerous wound inflicted, id. may receive into custody, id. may pursue and take, id. may break doors to take, during affray, id. may take bail, for appearance when, id. AFTERMATH, The renting of, before 1819, gave a settlement, 522. AGREEMENT. See Contract. Of Churchwardens valid, when, 94, Parish not exempt from repair of highway by, 176. Indictment on, for not repairing highway, bad, id. ISLE, Whence so called, 20. May be private property, id. Seats in, 21. prescribed for by inhabitant of otiier parish, /(/. ordinary may appoint persons to sit in, id. remedy upon intrusion, z(/. what good title to, id. ALDERMEN Of London, exempt from serving as constable, 331 . Exempt from serving office of churchwarden, 84. ALE TASTER, Office of, confers settlement, when, 544. ALIEN. See Foreigner. Enemy incompetent to gain settlement, 483. When may gain settlement by estate, 541. ALIENATION, Of part of chancel forbidden, 19. Of goods and ornaments of the church, 35. whose consent required for, id. Of books in parish library forbidden, 133. ALLEGIANCE. See Oaths. Oath of, to be taken on ecclesiastical preferment, 63. where to be taken, 63, 281. upon admission to corporate offices, &c. 144. Catholics exempted from taking, id. mandamus to compel administration of, id. to be taken by justices of the peace, 281. ALMS, Chest for, to be kept in the church, .S2. by whom provided, id. keys of, by whom kept, id. Embezzlement of, by parish clerk. 100. To be collected during reading of offert )ry, lOo. by whom distributed, 107. Collected in chapels, at whose disposal, id. Certificate to ask, justices may give, 381. s s ^ G28 INDEX. ALMS HOUSES, Occupiers of, when rateable to the poor, 405. AMBASSADOR, Rates cannot be levied by distress on a foreign, 403. Suite of, not rateable, id. when not within exmption, id. AMENDS, Justices may make tender of, in action, 314, may plead such tender, irl. may pay money into court if such tender refused. 314. APOTHECARIES Exempt from serving office of constable, 330. no longer than they continue to exercise the art, 331. APPEAL Against boundaries fixed by commissioners, 9. Upon grant of a faculty to erect a monument, 33. Against penalties as to bodies cast on shore, 51. Upon refusal of licence for non-residence, 67. Against allotment of road to repair on boundaries, 204. Against stopping up a highway, 218. ten days' notice of, must be given, id. must show that appellant is aggrieved, 219. same rules applicable to local acts, when, id. Against any grievance under highway act, 248. notice of, and recognizances to abide result, 248,249. by whom determined, 249. costs upon, how recovered, id. not to be quashed for want of form, id, nor removed by certiorari, jV/. Upon distress for highway rate, 250. notice of, six days after levy sufficient, id. By overseers against constable's accounts, 356, against accounts of co-overseer, 622. Against church rate, to whom, 386. Against poor rates, 415. to what tribunal, id. to what sessions, id. entering and respiting without notice, 416. Notice of, by and to whom given, id. must be in writing, signed by appellant, id. must state causes of appeal, id. may be heard without giving notice, when, id. sessions cannot quash a rate for defect not pointed out in, id. Proceedings at the hearing of, 419. Against appointment of overseer, 427. Against reduction in overseer's accounts, 434. Against proceedings under incorporated district act, 455. Against order of filiation, 464. notice of, to whom given, and its contents, t/. T r 2 644 INDEX. COUNTY RATE, continued, Rate to reimburse when bad, 393. County fines, &c. expenses of resisting, payable out of, 394. Provision for Berwick-upon-Tweed, id. CURACIES. See Curate Origin of, 69, How became perpetual, 70. Receiving Queen Anne's Bounty, 77. Augmented curacies, id. CURATE, Definition of, 69. Temporary or perpetual, id. Perpetual, how elected, 71. right of election of, in whom, id. what election of void, id. particular customs to elect, id. time of election, to save lapse, 72. Examination and admission of, by whom, 73. Testimony to character of, id. May serve two places, in one day, id. or three, by licence from bishop, id. Appointment of in churches, by whom, 70. in chapels of ease, by whom, id. by bishop, on neglect of incumbent, 72, 74. patron compelled to, how, 72. Stipend of, 74. bishop may assign, 67, 75. amount of, how regulated, 75. bow recovered, 75, 76. contract for, determined by death of incumbent, 76. Residence of, 74. in parsonage house, when, id. not to be dispossessed without notice to quit, 76. not to quit without giving notice, 77. Licences of, revocable by ordinary, id. registry of, id. Their power as to pews in chapels, &c., 78. Additional curate, how to be appointed, 72. CUSTOM, Requisites of, 261. must have existed immemorially, id. what sufficient to warrant a jury in finding, id. must be continuous, id. must be acquiesced in, 262. must be reasonable, id. must be compulsory, 263. must be consistent, id. Cannot prevail against act of parliament, 261. Where triable, 264. Church, custom as to ordering seats in, 24. by churchwardens and parishioners, 25. \ to set up monuments in, 33. as to fees on erection of, 45. as to repair of chancel in, 35. To elect perpetual curate, 71. churchwardens, 85. parish clerk, 97. sexton, 102. As to fees, for christening, 108. upon marriages, 117. As to select vestries, 2C1. that it should consist of indefinite numbers. 263. INDEX. 645 CUSTOM, continued. In levying church rate must be observed, 386. plea of, when admitted, id. CUSTOMS, Constable must aid otficers of, 343. may act, for such purpose, beyond his precinct, id, DAIRY, Renting of before 1819 conferred settlement, j22. DAMAGES, In actions against justices, when limited to twopence, 316. DANCING ROOMS, Penalty for keeping unlicensed, 374. whether payment for admission or not, id. by whom recoverable, id. What not within the act, id, DEATH, before the year's occupancy completed, defeats the settlement, 528. DEBTORS, In gaol, justices may order relief to, 458. cannot acquire settlement, when, 522. DECAYED BUILDINGS, Presentment of, by whom made, 95. Who may cause repairs of, 96. May be taken down, id. Expenses of repairing, &c., how recovered, id. DEDICATION, Of way, when presumed, 163, 164. when not, 163. must be made openly and deliberately, id. and by owner of estate, id. leaseholder cannot make, id. whether there may be a partial dedication, 164. repair of dedicated way, id. DEPOSITIONS To be taken in writing, 292. And in the language of deponents, id. Not in terms of statutes, 293. DEPRIVATION, For not reading the Thirty-nine Articles, 62. For deserting church, without leave of diocesan, 64. DEPUTY, Dissenter chosen churchwarden, may serve by, 84. may serve any other parochial office by, 144. Quaker to serve oitice relating to militia by, 149, 334. Justices cannot serve by, 273. Constable may serve office by, 334. or perform ministerial acts by, id. but not to execute warrants, out of his precinct by, id. Distinction between, and substitute, id. Gains no settlement by serving office, 354. DERIVATIVE SETTLEMENT. See Settlement. Definition of, 1S4. How acquired, 516. Evidence to establish, what necessary, 596. DEVISE. See Bequests. To dissenting minister good, when, 154, Of land for dissenting chapels, &c. void, when, 158. of reversion in, when not void, 159. To support peculiar doctrine, id. 646 IXDEX. DEVISE, continued. Of copyhold interest, gives a settlement, 593. DIOCESES Established befoie parishes, 1. Division of, 2. Enumeration of, id. DIRECTION POSTS, Justices may issue precept to surveyors to erect, 2.37. Where to be erected, 238. Survejor neglecting to erect, penalty for, id. DISBURSEMENTS Of churchwardens, when oath suiBcient proof of, 93. cannot make rate to reimburse, id. In overseer's accounts, what allowed, 432. By constables, account of, 355. allowed out of poor rates, 402. DISORDERLY HOUSES. See Theatres, Music Rooms, Gaming Houses. Keeping of a bawdy house, a common nuisance, 375. a lodger may be indicted for, id. so may a wife with her husband, id. indictment for, may include any number, id. constable to prosecute for, id. apparent proprietor liable, 376. limitation of action for, id. reward for prosecuting, id. DISPENSATION, In service, what is, 496. effect of upon the settlement, id. how differs from a dissolution of contract, 497. DISSENTERS. See Catholics, Quakers. General rights of, 138. Origin of sectarianism, 139. Freedom of religious opinions, 140. Eligibility to office, 141. Tests and oaths of office, 142. Sacramental test abolished, 143. declaration in lieu of, id. Oaths upon admission to corporate offices, 144. may demand to have them administered, id. Not to wear insignia of office in dissenting chapel, 145. May execute parochial offices by deputy, 144. Not exempt from payment of tithes, or other church dues, 142. Bequests for the benefit of, how executed, 141. Places of worship. See Meeting House. Disturbing a lawful assembly of, 156. May serve office of constable by deputy, 332. DISSENTING MINISTER, May preach in certified places, without qualification, 150. must qualify, though in trade, 151. Penalty for preaching in uncertified places, id. with locked doors, id. in assembly of more than lawful number, without consent of occupier, id. Ex post facto qualification, id. Subscribing declaration of protestant belief, 152. Must produce certificate of having taken the oaths, id. penalty for producing false certificate, 153. Mandamus to admit to office, when duly elected, id. to restore, upon removal, 154. Civil offices, exempt from serving, 153. if in trade, not exempt from, 153. INDEX. 647 DISSENTING MINISTER, continued. Devise in trust for, is valid, 154, 159. for encouragement of itinerant preachers, how re-arded 154. when void under statute of mortmain, /<■/. ° ' Foreign Protestant ministers, id. DISSOLUTION Of the contract of hiring, 497, by absence of servant without consent, id. by order of a justice, 498, may be effected by removal, id. DISTRESS, Breaking doors to levy for rent, 343, constables may, in day time, id. to aid in appraisement of, id. For penalties under highway acts, 243. For poor rate, 421, may be in another parish, county, &c,, when, 421. though notice of appeal against has been given, id. what distrainable for, 422. wherein improper, id. not to be made before oath and summons, id. mandamus, to grant warrant of, id. if illegally executed, parties trespassers, 423. DISTRICT PARISHES, Commissioners may set out bounds of, 9. to give notice of fixing, id. appeal against their order herein, id. Bounds of, enrolled and registered, 11, Churches of, what called, 12. Privileges of original church not aflfected by, id. Subject to the same laws as parishes, id. Re-union of, when valid, 425. DISTURBANCE, Of divine service, justices may punish, 40. Of lawful assembly of dissenters, penalty for, 156, DITCHES, For draining highways to be made, by occupiers of lands adjoining, 234. Penalty for neglect to scour, &c., 23.5. Where old ditches not sufficient, surveyors may make new, id. Making ditches on highway, penalty for, 235. may be filled up by surveyor, 236. DIVIDED PARISHES. See Parishes. Fees of clerk and sexton in, how assigned, 99, 103, compensation for loss of, in, 104. DOORS, Preaching in assembly with locked doors, punishable, l.)l. Constables may break, to suppress affray, 337. to execute warrant, when, 347, should first demand admission, and declare his business, id. to distrain for rent, 343, when may not break, 348, DOUBLE RETURN Of cliuvchwardens, 87, both sets to be sworn, id. right of, how triable, id. DRAWING Weapon in church, &c., how punishable, 41. Waggons up hill, 240. justices may license increased number of horses for, 240. DRIVERS Punishable for negligence, &c., on highways, 238. 648 INDEX. DRIVERS, continued. Punisl)able for riding on carts, &c., without guiding reins, 238. for interrupting the free passage of any other carriage, id. of empty cart, for neglecting to turn aside, id. for not having owner's name, &c., painted on cart, &c., id. for refusing to discover owner's name, id. Penalty on conviction, for each offence, id. how recovered, 239. Offending, any person may apprehend, id. Justice may proceed against, upon his own view, 2j0. not justified in using force to discover the name, id. ELECTION Of suffragan bishops, 2. Of perpetual curate, in whom, 71. Of sidesmen, in whom, 82. Of lecturer, in whom, 78, by parishioners, by custom, 79. Of churchwardens, 83. parson not to intermeddle in, when, 85. mode of by poll, preferable to ballot, 71, 86. of two sets, or a double return, 87. mandamus to compel, id. Of parish clerk, by custom, 97. Of sexton, by custom, 102. Of vestry clerk, by whom, 259, Of surveyor of highways, 187. Of constable, 329. Of overseers, 424. of what number, 426. Of guardian of the poor, 443. Of visitors of workhouses, 444. Of treasurer of workhouses, 445. Of governor of workhouses, id. Of inspectors under lighting and watching act, 601. EMANCIPATION Of Roman Catholic subjects, 145. Of children, effect of, upon settlement, 551. By marriage, id. By living away from parents, id. By enlisting as a soldier, id. Not perfected, when, 552. When completed, to what time relates back, 553. ENDOWMENT Of church, commemorated by wakes, &c. 16. Of chapel at consecration, what, 59. ENTRY, In parish registers enforced, 122. form of, 123. false entries in, punishable, 125, 129. ERROR In proceedings of commissioners, effect of, 9. In judgment, justices not punishable for, 318. ESCAPE Of person against whom warrant is issued, 284. may betaken elsewhere, upon indorsement of warrant, id. in Ireland or Scotland, 285. ESTATE, Settlement by, what a sufncient to give, 537. value of immaterial, if not bought, id. must be for £30 at least, if purchased, id, party must have possession, id. INDEX. 049 ESTATE, continued. Settlement by, continued. what interest in, is insufficient, 538. residence upon, while interest continues, necessary, 54:5. what evidence requisite to give, 592. Qualification of justices by. See Qualification. EVIDENCE, Registers of baptism are, when, 130. of burials, id. of marriages, 1.31. Upon road indictment, 181. effect of former verdict, as, 182. In cases of settlement, 57.5. the pauper may give for either party, id. examination of soldier admissible, 576. custody of, in whom, id. proof of, and identity of pauper, id, of handwriting of witnesses to, and magistrate, id. of prisoner, admissible, id. only for purpose of removal, id. continues evidence during imprisonment only, id. admissions of liability by parish, id. by whom, and how made, id. relief given to pauper residing out of parish, 577. if pauper reside in parish at time of relief, 577. 621. proof of, by whom, id. certificate is conclusive, when, id. though not between other parishes, 578. how proved, id. if lost, secondary evidence of, admitted, id. order of removal is conclusive, when, 579. though resisted by appeal, if confirmed, id. if quashed upon merits, is evidence against removing parish, id. for defect of form is not, 580. how proved, id. void oi voidable, when admissible, id. if was abandoned, not admissible, 581. of hiring and service, id. contract of, how proved, 582, if in writing, must be produced, 581. what sufficient proof of, id, if thirty years old, «, 4(j2. one justice cannot compel her afterwards, 451). Reputed father, to pay expenses of biith, (iliution, &c. id. warrant for apprehension of, 4G2. should be summoned before making the order, when, id. order may be made in absence of, id. must enter into security, or be ccnnmitted, /hc\mrge (mm, continued. Vit by death, within what time after, SIO. if voidable, when and how avoided, irf. manner of discharging, 520. agreement to put an end to, id. v Admissible as evidence, when, 5S4. secondary evidence of, is, when, id". what admissible as, id. j if not stamped, is not, id. INDENTURE BOOK, Parishes must keep, for entering names of apprentices, 134. Entries in, to be signed by justices, 135. Persons may inspect, and take copies of, id. Is evidence of existence of indentures, id. INDICTMENT. See Highieays. For conspiracy to marry paupers, 120. form of, 121. For neglect to repair highways, 169. against a parish, what it must show, 170. averment of kind of way, id. from whence, and whither, id. indefinite, how taken advantage of, 171. of termini, when unnecessary, id, that the road is within the parish, id. that the way is out of repair, 172. of length and breadth wanting repair, id. of one side, when othec repairable by next parish, id. against a division, township, &c. 173. ought to show reason of the obligation, id. against an individual, bound ratione tenuroe, 174. how his liability to repair should be stated, id. occupier, proper person to be indicted, 175. when lands liable, are conveyed severally, id. upon an agreement to repair, bad, 176. For refusing office of constable, 334. averment in, id. Against overseer, for refusal of office, 425. for neglect, or fraud in accounts, 435. for refusing to receive pauper, on order of removal, 553. INDUCTION, Possession of benefice given by, 62. Privileges conferred by, id. Title to benefice, how completed after, 63. INFANT, Settlement of, by birth, 553. by estate, 483. May elect, to dissolve a voidable indenture, 520. Not separable from mother, vi'ithin age of nurture, 551, INFORMATION, For non-repair of highway, 169. Voluntarily taken before justices, 283. Criminal, against justices, 322. motion for, should be made promptly, id. INHABITANTS. See Parishioners. Who are inhabitants, 12. Either occupier or resiant, 13. Servants are not, id. Nor casual sojourners, id. Liabilities of, id. When competent witnesses, 14, 615. INDEX. C65 INHABITANTS, When competent witnesses, continued. under highway acts, 15. Of another parish may prescribe for seat in aisle, 21. Faculties for appropriating pews to, 25. INSANE, See Lunatics, Coroner. Consent to marriage, how given when parent is, 112. INSPECTORS. See Lunatic Asylum, Weights and Measures. Under lighting and watching act, 601. election of, when, and by whom made, 602. their duration in office, 601. meetings of, when, and where held, 602. one may summon others to attend, for special purpose, id. ■what number will constitute a quorum at, id. may provide room for the purpose of, id. proceedings at, to be entered in a book, 604. such book admissible as evidence of, id. may appoint officers, 602. to take security from treasurer, id may sue, and be sued, 604. action by or against, not discontinued by death of, id. an inspector a competent witness in, id. to be allowed costs, when only a nominal party to, id. may defray expenses of prosecuting felons, 606. may issue order to levy rates, 606. to direct books for entering accounts, 603 — 605. To appoint watchmen, &c. 606. to provide the same with clothing, &c. id. to appoint duties, regulations, &c., of, id. to cause lamp-irons, &c. to be erected, 607. to provide watchhouses, watchboxes, &c. id. to provide and keep up fire-engines, id. may contract for lighting streets, &c. G12. for furnishing lamps, watchboxes, &c. &c. id. may recover penalty for breach of such contract, ((/. may compound- with contractor for penalty, id. may treat for ground for watchhouse, C13. property of lamps, watchboxes, &c., vested in, id. may dispose of, or maintain action for, id. to receive and apply penalties, 614. not personally liable to make compensation, when, 61.). appeal against order or appointment of, id. INTERRUPTION, Of a custom, avoids it, when, 261. Of divine service. See Brawling. IRISHMAN. See Scotchman. Justices may remove to place of birth, 547. wife and family of, id. JESUITS, May enter the kingdom under licence, 140". such licence revocable by secretary of statu, id. Registering of their residence, id. JEWS, Not qualified for office of churchwarden, 83. Marriage of, with Christians, forbidden, 109. nullity of, how triable, id. rites and ceremonies of, 110. two witnesses at, essential, id. invalid, if one witness incouipctciit, id. Jewess, married by Christian riles, is within uiaitiage at', «/• G66 INDEX. JOINT TENANT, Settlement gained by renting as, 524. JUDGMENT, Upon indictment for not repairing highway, 183. what it usually is, id. Upon sessions case in banc, 574. JURY. See Coroner. Quakers and Moravians cannot serve on, 147. Dissenting ministers in trade may serve, 152. View by, of road indicted, how obtained, 183. JURY LISTS, Warrants, to high constables to issue precepts, 366. by whom issued, id. High constable, to issue precept, irf. in what time, after receipt of warrant, id. to send printed forms with, id. Who to make, id. To be fixed on church doors, 367. Inhabitants may peruse the list, &c. id. Copies to be printed, id. Petty sessions meeting, to correct, id. Constable, to answer upon oath all questions respecting, id. Justices, to sign and allow, id. High constable, to deliver to quarter sessions, after allowance, id. Offending herein, penalty for, 362, 368. JUSTICES OF THE PEACE, Appointment and qualification of, 272. Different kinds of, id. Antiquity of office, id. Cannot act by deputy, 273. Form of the commission of, id. Who may, and who may not be, 276. Oath of office, by whom administered, id. oaths to be taken, and declaration to be made, 281. act of indemnity for neglect to take oaths, &c. id. Qualification of, 277. what property, a sufficient, id. form ofoathof, 278. penalty for acting without, id. exemptions from the statutes relating to, 280. Becoming disqualified by insolvency, 281. Acts of unqualified justices, not void, 282. Office, how determinable, id. Corporation justices not affected by king's death, &c. 283. Their jurisdiction, limits of, id. exclusive or concurrent, 287. may bind parties to prosecute and give evidence, 287, 296. may enforce rates, &c., though chargeable themselves, 284. not to vote on appeals in which they are interested, id. depositions taken by, form of, 293. taking voluntary affidavits, improper, when, 292, may take bail, in cases of escape, 285. may order relief to be given to poor person, when, 453. may imprison idle or disorderly applicants, id. Warrants, &c., may grant at their dwellings, 283. indorsements of by, in cases of escape, 284. ^ to Ireland or Scotland, 285. when proper to be issued by, 291. upon a charge of libel, id. one justice may issue, where two or more are to adjudicate, id. INDEX. G67 JUSTICES OF THE PEACE, continued. Their ministerial duties, 288. may act as land tax commissioners, 289. as turnpike trustees, id. not to act where interested in the case. '.>9(). but if assaulted in office, may commit offender, when, id. to estreat fines, on convictions, 296. to return convictions to sessions, id. summons when proper to be issued by, 290. service of, how made, 291. neglect of, by offender, id. Commitments by, 293. for re-examination, id. must be for reasonable time, 293, 320. illegal commitment actionable, '293, 319. whether they may for contempt, doubtful, 311. must be by warrant in writing, id. ofinnocent person, not necessarily illegal, 319. Taking bail in felony, 293. in misdemeanours, 295. must certify the bailment, 294. and deliver to the court before trial, id. To subscribe examinations, &c. id. to deliver to the court before trial, id. offending herein, penalty for, 295. rules herein, applicable to all justices and coroners, id. Judicial duties of, whence derived, id. how forjudges of record, 296. assuming jurisdiction improperly, effect of, id. in malicious injuries, 297. in cases of smuggling, id. upon penal statutes, 298. proceedings, how conducted, 298. examinations should be taken in writing, id. when defendant absent, id. counsel or attorney, presence of at, id. defendant's right to be assisted by, 300. in disputes between master and servant, 301. may commit artificers, &c., for leaving work unfinished, id. when complaint made by master's agent, /J. may decide questions as to wages, &c. 302. may order distress for, id. what servants not within the statutes, id. orders for relief of pauper, may make, when, 269, 455. may supersede what, and when, 309. convictions by, form of, 300, 304. when may be finally drawn up, 300. not to be set aside for want of form, 305. may bind to keep the peace for a limited period, 309. penalties, fines, &c., adjudged by, lii»w recovered, 305. upon inferior officers, for neglect of duty, 303. by distress and sale, 305. when may commit to prison instead of, 306. may award costs upon, 3i»3. may direct costs to be paid out of, when, 304. must certify penalties, fines, &c., to clerk of the peace, .3o7. sureties, to cause notice to be given to, 308. form of such notice, 309. In sessions may divide court at, 309. crimes within their cognizance, 310. no jurisdiction over forgt^ry or pci ;',.iy, /'/. ^>68 INDEX. JUSTICES OF THE PEACE, continued. Protection of, 310. Not to be slandered or abused, id. What words spoken to, are actionable, id. spoken of, when actionable, 311. Action against, for acting without qualification, 278. limitation of such action, 280. when may be discontinued, 279. costs upon such discontinuance id. not liable to, for error or mistake, 318. when notice of necessary, 312, form of notice, 313. indorsement of, id. may make and plead tender of amends upon 314 may pay money into court and plead de novo, when, 315 plaintifi not to recover without proof of notice id. nor for cause of action not named therein id when entitled to double costs, id. entitled to two-pence damages only, when 316 Iimitationof, against, 315. ^", oio. ,. .^^^^ time of, how computed, id. grounds of, for committment by verbal warrant, 311. for not pursuing provisions of the statute 317 for assuming authority, not warranted by statutes 301 dic°SS'3T7!"' ^"' ^" °^'°'' ""''' ''^''^ ^^' '"« j""^ for malicious conviction, id. for illegal commitments, 293, 319. for false imprisonment, 317. ^° UoTsIr'"^ '^^ ^" unreasonable time, for re-examina- venue in, to be local, 317. defence to such actions, 318. '"Tlf's'lS^^''^' ""^"^ *" ^^^'^^°'='' ""^^^ general issue, when to have double costs, 318. Misconduct of, in refusing to execute office, id. in sessions, how punishable, 321. when acting corruptly, 319. "°318!'S2o"*^'^' both civilly and criminally for the same offence, striking in his office, 322. criminal information against, for, id. rule nixi, when moved for, id. if too late for, may be indicted, id. „, „ jf convicted, must appear in person, if/. Wages of, 323. Fees of their clerks, id. table of, in Surrey, 526. KEDUSHIM, •^' Meaning of, in a Jewish marriage, 110. Meaning of, in a Jewish marriage, 110. KEYS, Of alms-chest in church, by whom kept, 32. Of church, mandamus to deliver to sexton, granted, 104. LAMPS, Inspectors under Lighting and Watching Act to provide, 607. may make contracts for furnishing, 612. remedy for breach of such contract, 612. INDEX. W9 LAMPS, continued. Inspectors, property of vested in, 613. their power to bring action for, or to dispose of, id. Destroying or extinguishing, penalty for, 6) 1. Accidental or careless damage to, how recoverable, 612. LANDS. See Wastes. Rateable to the poor, 407. at improved value, id. if converted into drains is not, 408. corporation rateable for, when, id. covered with water, when not rateable, 409. quarries are rateable as, 413. crown lands are not, when, 412. persons occupying beneficially, are, id. Rating regulated by amount of rent, when, 409. LAND TAX, Payment of, gives a settlement, 535. LAPSE, In appointment to curacy, 72. In augmented curacy, 78. LEAP YEAR, A hiring for 365 days in, will not give a settlement, 490. LECTURER. Origin of, 78. By whom chosen, id. by parishioners, by custom, 79, when assent of vicar required, id. Must be licenced by bishop, 80. mandamus to grant licence to, 79. Must subscribe the thirty-nine articles, &c. 80, 81 , disabilities on neglect or refusal, 81. Preaching while prohibited or disabled, punishable, 82. Exemptions as to University churches, id. LEGACY, To Baptists generally, is good, 154. To Quakers, id. To Presbyterians, «u'. ■■ iro To discharge mortgage on dissenting chapels void, loH. To increase Christian knowledge, good, 159. LEGITIMACY. How established, 594. LICENCE, ^. ,^ To perform service, before consecration, Id. For non-residence, 66. to, and by whom granted, id. held unnecessary, when, id. appeal, on refusal of, id. copy of, to be transmitted to churchwardens, (.7. must produce it at next visitation, id. report to the king, when made, id. may be pleaded, when, id. For marriage, 114. caveat against, 115. oath before licence granted, id. when a new one necessary, id. to where licence extends, id. special licences, id, . i 07-1 To theatres, music rooms, &c. by whom granted 373. forfeited on breach of the conditions of, .574. LIMITS. Sec Boundaries. Of parish, how determined, 1 . 070 INDEX. LIMITS, continued. Of parish anciently appointed by bishop, 4. Of church or chapel, where triable, 61. LIMITATION OF ACTIONS. See Notice of Action. For brawling, &c. in church, &c. 41. Against churchwardens acting virtute officii, 95. Against surveyors for balance in hand, 197, For penalties incurred under highway acts, 246. how construed, id. Against justices acting when unqualified, 280. for official misconduct, 315. Against clerk of the peace taking excessive fees, 325. Against constable acting in execution of office, 359. Against overseers, 441. LOANS, Rate cannot be made to repay, when. 401. For parochial purposes to overseers, 429. lender may recover from overseers, when, id. how and by whom reimbursed, 435. to guardians of workhouse, rate to repay, 446. LOCAL MILITIA, Quakers or Moravians ballotttd under, 149. how relieved from serving, id. LONDON, Churchwardens, by whom chosen in, 85. Parish clerks in, by whom chosen, 97. incorporated ir, 99. Alderman of, exempt from office of constable, 331. LORD'S SUPPER, Notice of, to be given by minister, 105. How often administered, id. Not administered if not a convenient number to receive, 106. Forbidden to be administered in private houses, when, id. Bread and v.-ine for, by whom provided, 32, 106. How administered, 106. Alms collected for the poor at, id. how disposed of, and by whom, 107. • In chapels, id. Action for refusing a communicant, id. Reviling, how punishable, id. LUNATICS, See Pauper and Criminal Lunatics. When so found by inquest, 53. by justices in sessions, id. Asylums for reception of, 472. Criminals becoming so, 479. LUNATIC ASYLUM, Justices may consider expediency of erecting, 472. may appoint committee to superintend erection of, id. Expenses of erecting, defrayed by special rate, 473. money may be borrowed on mortgage of rates, 474. Lands for, to, and by whom, conveyed, id. how far rateable, id. not affected by the statute of mortmain, id. Committee of managers, or visitors, by whom elected, 473. meeting of, in what place, id. may appoint clerk or surveyor, id. may contract for lands, buildings, &c. id. their authority and duties as visitors, 474. may appoint, fix salary, and dismiss servants, &.c. id. to fix rate of maintenance of lunatics, id. may direct repairs, id. INDEX. Cul LUNATIC ASYLUM, continued. Cummittee may make order on county treasurer for expenses, 474. may sue, and be sued, in the name of their clerk, id. to make annual report, 475. Chaplain to be appointed for, 474. Expenses of removing paupers from, by whom payable, 479. Inspectors of, by whom appointed and paid, 480. MALICIOUS INJURIES. Malicious intention, an ingredient in the offence, 340. Arrest for, without a warrant, 339. Actions against constables acting under the statutes, 360. limitation of, id. notice of, 361. right to costs, how determined, id. MANDAMUS, To compel clergyman to bury parishioner, 49. to bury in iron coffin refused, 50. To grant licence to lecturer, 80. To swear in churchwardens, 83. although two sets are returned, 87. to elect, not granted, id. to admit, and return thereto, 8S. To permit inspection of accounts, 93, To make a rate, not granted, id. but lies to assemble and consider of, 383. To compel archdeacon to swear in parish clerk, id. To churchwarden, to restore parish clerk, 98. To restore sexton if improperly removed, 102. To compel corporate officer to swear in, 144. To admit a minister to an endowed pastorship, 153. To register dissenting meeting-house, 156. To swear in constable, 332. To make a rate to pay sums borrowed, when, 401. To allow costs of maintenance upon appeal, 572. To compel appointment of overseer, when, 425. to pass accounts of, 434. MANOR, Lord of, liable to bury bodies cast on shore, 52. churchwardens appointed by, 85. MARRIAGE. See Register. Who may not intermarry, 109. Royal marriage act, 110. Present marriage act, id. Solemnization of, where, id. may be in chapels, by authority of Bishop, 111. when church under repair, &c. id. where parishes have no church, id. number of witnesses present at, 126. By licence, oath before granted, 115. to what time and place licence extends, id. special, by whom granted, k/. By banns, p»blication of, 113. when may be in adjoining parish, id. false entry of by minister or clerk, felony, 100. proof of residence, when unnecessary, 131. Consent of parents or guardians, when required. 112. falsely procuring marriage without, 116. suit against offender for, id. limitation of proceedings for, 117. when the offender absconds, ll!». 672 INDEX. MARRIAGE, continued. Punishment for ui\duly solemnizing, 118. all parties concerned liable to, id. When void by the statute, 119. Fees upon, not due of common right, id, may be by custom, id. Pauper marriages, id. though fraudulently procured, valid, id. conspiracy to effect, 120. indictment for, 121. Register of, by whom kept, 122, 124. copies to be sent to registrar of diocese, 124. form of entries in, 123, 125. false entries or copies, felony, 125, 129. destroying books of, felony, 129, Certificate of stamp duty upon, 121. Quakers, act does not extend to, 110. may be solemnized in their conventicles, 149. Jews' marriages recognized by law, 109. nullity of, how triable, id. ceremonies essential to validity of, 110. forbidden anciently to marry with Christians, 109. Of British subjects abroad, valid here, 121. In private houses in Ireland, 122. Evidence, what admissible to prove, 596. by reputation, when sufficient, 597. by sentence in spiritual court affirming, id. to invalidate, what admissible, id, that it was annulled in spiritual court, id. MASTER, If bankrupt does not dissolve contract of hiring, 497. Relation between and apprentice determinable by death, 519. MASTER AND SERVANT, Disputes between, 301. when determined by magistrates, id, statutes relating to, id. provisions of, extends to Devon and Cornwall, id. to servants in husbandry, hired for less than a year, id. but not to menial servants, 302. nor persons employed to seize under J?ya, id. Masters may pay servant in notes, 301. but not in truck, id. Justices may commit servants to prison, id- such committal subject to appeal, id. may hear agents in behalf of their masters, id. may order payment of wages to apprentices, 302. may order distress in case of refusal, id. Who not a servant, id, MAYOR, A justice only by charter, 276. Hath the power of a justice, in what cases, id, MEASURES. See Weights and Measures. MEETING HOUSE, Must be certified and registered, when, 155. Doors of, not to be fastened, 156. When liable for rates or taxes, 157. Grants and trusts for the support of, 158. surplus revenue, how applied, 161. mode of construing, 160. INDEX. MEETING ROUSE, continued. Chancery jurisdiction, over discipline and conduct of, 160, Disturbing a lawful assembly in, 156. Burnings or destroying, 161. compensatioa for, how recovered, id. MIDDLESEX, Fees to be taken by clerks of peace in, 324. by whom ratified and confirmed, id. MILITIA, How quakers made to contribute to, 148. Exemptions of dissenting preachers from, 153. Who may billet, 349. Upon whom billeted, id. Baggage waggons for, constables to provide, id. remuneration for use of, 350. Notice of embodying, by whom given, id. Constables, how paid for raising assessment for deficiency, id. to make lists for ballot, id. to give notice of ballot, 349. may apprehend deserters from, 350. reward for apprehending, id. MILITIA ACTS, Special constables aiding in, age of, 348. Penalty for constable neglecting his duty under, 349. Deputy lieutenant may join two parishes, Sec. for the purposes of, id. MILITIA MAN Gains settlement by hiring and service, when, 487, if master is not informed thereof, he does not, 488. Not compellable to serve as a peace officer, 331. MILLS, Damaging, in digging materials for highways, 208. The renting before 1819 gave settlement, 522. a standing place in, will not, 523. MINES Under roads, to whom belong. 165. Belong to original owner although road be sold, 213. Coal mines rateable to the poor, 412. for what sum, id. for how long, id. Other mines not rateable, id. occupiers of, rateable for portion of ore raised, 413. MONITION, Stipend of curate recoverable by, when, 76. Supersedes action for non-residence, when, 69. MONUMENTS, In churches, erection of, 32. not so as to hinder divine service, id, faculty to erect, id. consent of ordinary required, 33. In chancels consent of incumbent to betaken, id. Churchwardens to grant leave to repair, id. Defacing, punishable, id. action for, who may have, 34. Property of, in whom, 3.S. Removable if put up without proper authority, 34. MORAVIANS, Affirmation of, admissable in lieu of oath, 147. if fake, punishable as perjury, id. Cannot serve on juries, id. or hold place of p,rofit under government , 147. \ \ G74 INDEX. MORTGAGOR, In possession, may gain settlement thereby, 541. MORTMAIN, Statutes of, in what originated, 17. relaxed in modern times, id. lands held for lunatic asylums, not affected by, 474. MUSIC ROOMS, Penalty for keeping unlicensed, 374. by whom recoverable, id. What, within the act, id. NAME , Given to child at baptism, 108. In banns of marriage, 113. Of owner of waggon to be painted thereon, 241. penalty, if such name fictions, id, drivers refusing to discover, putiishable, 238. Of pauper to be inserted in order of removal, 557. NAVE Of the church, whence so called, 20. NEW CHURCHES, Burials in, not permitted, 56. entrance to vaults under, for the purpose of, how constructed, id. Clerks in, how and by whom appointed, 99. Churcliwardens of, see Churchwardens. NONCONFORMISTS, Religious assemblies of, protected, 40. Acts of, in their own worship, how far legalized, 52. NON RESIDENCE. See Residence. Licence for, 66. when party incumbent of two livings, id. appeal on refusal of by bishop, 67. expenses of, by whom payable, id. archbishop may grant, on appeal, id. copy of to be given to churchwardens, id. to be entered by registrar, id. Report relating to, made to the king, id. When penalties not incurred by, 68. Staying proceedings in action for, 69. Monition pleaded to action for, when, id. Penalties levied by sequestration for, 68. Who exempt from penalties for, 65. NOT GUILTY, Plea of, to road indictment, 177. parish cannot prove others liable under, id. unless burden has been removed by statute, id. by other parties, evidence under, id. variance may be taken advantage of, under, id. justices may give special matter in evidence under, 318. so constables, oveiseers. &c. 95, 358, 441. NOTICE Of fixing bounds of parish, by whom given, 9. of the registry of boundaries, 11. Of vestry meeting given in church, 39. when amounts to brawling, id. Of bodies cast on shore, to whom given, 51. reward for giving such notice, id. To curate to quit house of residence, 76. Of administering Lord's Supper, 105. INDEX. C7o NOTICE OF ACTION, For penalty for non-residence, G8. for drawing with more horses than allowed, 240. for other offences under the highway acts, 24.j. Against justices, 312. requisites of, id. when necessary, 312, 313. form of, 313. indorsement, upon what sufficient, id. NURTURE, Age of, what, 551. child not removable from parents within, 551. OATHS Of allegiance. See Allegiance. Of supremacy. See Supremacy. Of abjuration. See Abjuration. Affirmation in lieu of. See Affirmation. To be taken by churchwardens after election, 88. form of, id. by whom administered, id. Of Catholics on admission to parliament or office, 146. Of office, taken by justices, 277. of qualification, taken by, 278. Power of justices to administer, 292. in extra-judicial matters improper, id. Of petty constable, 332. by whom administered, id. substitute to take, 333. OCCUPATION, What renders party liable to be rated, 404. As a servant, confers no settlement, 523. Before 59 Geo. 3, what gave settlement, 529. Under 6 Geo. 4, what sufficient, 531. OCCUPIER Liable to repair of highway ratione tenura, 174. Indictment against, for not repairing, id. If occupying as servant not rateable, 404. owner in such case is, id. Of chapel, when not rateable, id. Of land by gas-pipes, &c. how rateable, 405. Of almshouse, when rateable, id. OFFICE, Settlement by serving, 544. mere employment insufficient, id. must have relation to the parish, 545. must be executed for a year, id. if executed by deputy sufficient, id. 3'ear's residence not requisite, 595. evidence to establish, what necessary, id. ORDER Of justices for diverting a highway, 215. to be confirmed at quarter sessions, 216. for turning a road, effect of, 218. parties aggrieved by, may appeal against, 218. if confirmed, proceedings conclusive, 219. Of bastardy, 458. Of filiation. 463. ORDER OF REMOVAL. See Remotal of Paupers. Of woman pregnant with bastard child removable, 55G. child's settlement in such case, where, 555, X X 2 676 INDEX. ORDER OF REMOVAL, continued. Cannot be made unless party actually chargeable, 556. To wliat place pauper removeable, 557. Refusal to receive person removed by, punishable, 558. Complaint that party is chargeable, by whom made, id. Requisites of the order, 559. Justices making- the order, their style, &c. id. must not be churchwarden at the time, id. Pauper, description of, should be inserted in, 560. his examination should be stated in, id. Two families not removeable by one order, id. Examination of prisoner as to settlement of his family, 561. Adjudication of chargeability and settlement in, id. . not necessary if the removal is to a parish giving a certificate 562. must be of a present settlement, id. omission of the word " settlement " in, held fatal id. deftcts in, cannot be amended, 570. To whom the order should be addressed, 562. Mistake in name of parish will not vitiate, 563. When is conclusive, as to settlement, id. Form of a subsequent order, id. Suspension of, in what cases made, id. by whom may be made, 564. when pauper cannot safely be removed, id. must be as to all contained in order, id. suspended order must be served within reasonable time, 565. expenses during, by whom payable, id. power of justices in ordering, id. Returning after removal by, punishable, when, id. Appeal against, by whom, 560. how commenced and conducted, id. to sessions, of what place and time, 567. notice of, to respondent parish, id. service of order of respite, tantamount to, 568. must be a reasonable time before hearing, id, form of, id. not essential that it should be in writing, 569. adjournment of, to what time, id. upon what cause, id. acts done after, when void, id. hearing proceedings at, id. judgment upon, 570. justices interested not to vote in, 571. how far may alter, id. cannot be given if magistrates equally divided, id, how pauper disposed of, after, id. removeable by certiorari, 573. costs after, who entitled to, 575. Admissable as evidence of settlement, when, 579. only when it contains requisites of valid order, 581. secondary evidence of is, when, 580. How proved, id. ORDINARY, Authority of, in the distribution of seats, 24. controlled by prescription or faculty, 25. may grant pews by faculty, when, 26. cannot grant seats to one and his heirs, 27. Monuments in church, consent of, to erect, 33. may remove, if put up without his consent, 34. May order removal of superstitious images, &c. id. May compel erection of organ in cathedral, id. INDEX. ti77 ORDINARY, continued. New erections in church, licensed by, 37. Brawling in church, cognizable by, 39. To examine and admit minister, 73. Whether may revoke licence of perpetual curate, 77. May refuse licence to lecturer if he is unfit, 80. but not to interfere in right to lectureship, id. May reject churchwarden if legally incompetent, 83. but not to interfere in election of, 87. mandamus to swear churchwarden, 88. Whether licence of, uecessary for disposal of goods of the church, 89. May appoint sequestrators, 91. May cite churchwardens to account for church goods, &c. 93. Parish clerks licensed by, 97. Visitation of parish library by, 132. ORGANS In cathedrals, deemed necessary, 34. ordinary may compel their erection in, id. In parish churches, not deemed necessary, id. OVERSEERS OF THE POOR, Churchwardens are, 424. Appointment of, id. for what places, irf. time when made, 425. by whom made, 426. number of, id. who may be appointed, id. of successor in case of death, &c. id. order of, must be in writing, 427. should appoint persons named " overseers," eo nomine, id. must state them to be substantial householders, id. must state the district and time for which they are ap- pointed, id. must show it to be within magistrates' jurisdiction, id. appeal against, by persons aggrieved, id. order of sessions thereon, removable by certiorari, id. Office of, who exempt from, 426. persons refusing, punishable, id. to continue in, till others elected, 428. Their jurisdiction, id. acts may be done by a majority, id. may exercise powers of churchwarden, when, id. when two do not constitute a body corporate, id. Duties of, to administer relief to poor, id. to obey orders of select vestry, respecting poor, 2C9. to make poor rates, 428. to remove paupers not belonging to parish, id. to make up and pass accounts, id. to deliver balance and parish property to successors, td. must set able poor to work, id. may not borrow money, when, 429. to make returns of lunatics, 47J. When liable to expenses of surgeon attending casual poor, 4> J. Parish houses, possession of, how given to, 4:)0. recovery of, by common law, 4:51. may re-enter without giving notice to (|Uit, id. Accounts of, how kept, and when balanced, 4.32. what disbur-semcnts allowed, id. when, and to whom to be delivered, id. inspectionof, may Ix; demanded, when 4.i.!. ,■< ..,1. justices may commit for refusing to makeup and vc..(>, U.., ».->. 678 INDEX. OVERSEERS OF THE POOR, continued. Accounts of, continued. justices may reduce items in, 433. , penalties for neglects, as to, 432, 434. appeal against reductions in, 434. mandamus to pass, id. allowance of, before appeal against, 437. balances of, payment enforced, 434, 437. in hands of bankrupt overseer, how recovered, 435. indictment upon, when sustainable, id. appeal against, by whom, 436, within what time, id. notice of, must specify items objected to, id. need not state that appellant is a party aggrieved, &c. id. not before allowance of justices, 437. magistrates cannot vote in determination of, id. may remit them back to the same justices, id. appeal against by co-overseer, 622. Of extra- parochial district, 623. confirmation of appointment of, refused, id. Prohibited from serving workhouse with goods for profit, 439. except authorized by justices, id. Advances by, repayment of, 435. successors may levy and reimburse, id. may pay out of any rate, id. one having surplus to reimburse colleague, id. Liabilities of, 438. form of remedies against, id. indictable for not receiving a pauper, when, id. to law expenses incurred without concurrence of vestry, id. to penalty for being absent from monthly meetings, id. for being negligent in ofBce, id. compellable by mandamus to make a rate, 439. actions against, id. for money lent them to support the poor, id. fornecessaries supplied,uuder pressure of immediatewant,i>/. for surgical attendance to casual poor, id. for serving workhouse with goods for profit, 440. pleadings as to, 441, limitation of, id. entited to treble costs upon, id. for surplus of distress, prior demand necessary, 442. May bind parish apprentices, 506. to sign indenture of, 507. to sea service, 511. to chimney sweepers, id. PAPIST. See Catholics. Not qualified for office of churchwarden, 83. Children of, to be baptized by lawful minister, 108. law herein, grown obsolete, id. Admissible to parliament, 141. to most civil and corporate offices, 145. PARENT Cannot be sponsor for own child, 107. In marriage, consent of required, when, 112. act, directory only herein, id. when parent insane, id. Punishable for deserting family, 378, 457, Putative, lo maintain bastard children, 459. INDEX. (i7!) PARENT, continued. Settlement derived by children, from, 560. ceases upon emancipation, 551. PARENTAGE. See Settlement. Evidence to prove or disprove, 598. PARLIAMENT, Dissenters and Catholics may sit in, 141. PARISHES. See Boundaties, and District Parislie.i. Origin of, 1. Limits of, how determined, 1. Definition and number of, 2. Earliest date of, 3. How number increased, id. Parts of, in separate counties, 4. Wastes near, to what parish rateable, 8. To provide communiontable, 31. reading desk, id. chest for alms in the chureh, 32. books, bells, bier, table of degrees, &c. «(/. Division of, 10. commissioners for the purpose of, id. tithes assigned upon, recoverable, id. existing incumbencies, id. boundaries thereof, to be enrolled, 1 1. considered as separate parish, when, 425. Chapelry converted into, 12. May unite for management of poor, when, 447. not if ten miles from poor-house, id. PARISH CLERK. Origin of office, 9G. Qualifications of, id. By whom chosen, id. Election by custom, preferred to canon, 97. To be licensed by the ordinary, id. Sworn to obey the minister, id. Office of, is a freehold, 99. cannot be deprived of, by spiritual court, 98. mandamus lies to restore to, 99. how far an ecclesiastical, 9S. serving for a year gains a settlement, 102, 544. Recompence of, by custom, 98. rate by churchwardens, for, id. when may sue for, id. In new churches, appointment of, 99. Embezzling alms, punishable for, 100. Whether servant of minister, or churchwarden, 101. False entries of marriages by, felony, 100. Incorporated in London, 99. PARISH HOUSES AND LANDS. Possession of houses, how given to overseers, 430. of lands, how given, 431. recovery at common law, id. vested in parish officers, thougii not for benefit of (he pooi', filH. PARISH LIBRARY. Statute for the preservation of, 131. Visitation of, by ordinary, 132. To be closed during vacancy of the church, id. Incumbent to give security for the books in, id. may maintain action for, 133. to keep accountof benefactions to, 133. New regulations may be made by the ordinary and bciicfacluis, l:i). 680 INDEX. PARISHIONER. See Inhabitant. Definition of, 12. How distinguished from inhabitant, 13. Power of, in vestry, &c. 13, 257 ,599. may have action for excluding from vestry room, 237. When incompetent witnesses, 14. Competent by statutes, 14, 15, 615. May go over private lands in perambulations, 6. to be seated in church according to rank, &c. 22. alms distributed in presence of, 32. repairs of the church by. See Repairs of Church. no right to publish notice in church, 252. PARISH REGISTERS. When and why commenced, 122. By v^fhom kept, id. Parties interested to have free access to, id. Number of, and what entered in, 123. When baptism, &c., not in parish church, id. Custody of, by whom and where, 124. Copy to be made on parchment, when, id, for registrar of diocese, id, not charged with stamp duty, 126. Report herein to the bishop, 124. Baptisms, &c., in extra- parochial places, id. Alphabetical lists to be kept by registrars, 125. False entries, or false copies of, felony, 125, 129. Accidental errors in, how corrected, 125. Fees upon, 126. Per allies herein, how applied, id. Form of entry of baptisms in, 127. of marriag-es, id, of burials"^ 128. Certificate from extra-parochial places, id. To state whether married by banns or licence, id. By whom signed and attested, 129. Chapel registers to be in same form, &c. id. Baptismal register, evidence, when, 130. for purposes of settlement, 598. Marriage registers, evidence, 131. Dissenters' registers, how far evidence, id. PAROCHIAL TAXES, When cl'apels rateable to, 157,158. Settlement by payment of, 634. PATROL Cannot receive persons into custody, 365. PAUPER. See Poor. PAUPER MARRIAGE, Money expended on, not chargeable to parish, 120. Conspiring to effect, indictable, id. requisites of indictment for, 121. Settlement gained by wife, in such case, 119. PAUPER AND CRIMINAL LUNATICS, Provisions relative to consolidated, 472. Bethlehem exempt from the statute, id. not to extend to places claiming exemption, being exempt from county rate, 478. Asylums for, 472. justices may, upon notice, meet to consider expediency of erect- ing, id. may appoint committee to superintend erection of, id. where counties unite, id. INDEX. 681 PAUPER AND CRIMINAL LUNATICS, continued. Asy]\}m for, continued. committee for managing, by whom elected, 473. meeting of, in what place, id. may appoint clerk and surveyor, id. may contract for lands and buildings, id. visitor, ficc, not to have interest in contract, id. expenses of erecting defrayed by special rate, id. money may be borrowed on mortgage of rates, when, id. lands, &c., for conveyance of, 474. visitors of, their authority and duties, id. may appoint, fix salary, and dismiss servants, &c. id. to fix rate for maintenance of lunatics, id. may direct repairs, id. may make order on county treasurer for expenses, id. may sue and be sued, in tlie name of their clerk, id. may deliver pauper to relatives, when, id. to make annual report, 475. chaplain to be appointed for, 474. overseers to Hiake return of insane persons chargeable, 47.>. penalty for neglect, id. expenses of medical examination chargeable on poor rate, 176. justice may order lunatics to be brought before him, id. to call assistance of medical person, id. may order lunatic to be placed in county asylum, id. if no county asylum, in a licensed house, id. refusing to make order, to give reasons in writing, 478, may make order for expenses of conveying, 476. for care and maintenance, id. may direct goods of lunatic to be sold, 478. parish medical practitioners may visit, 477. expenses, &c., how payable, where no settlement found, id. borne by pauper's parish, when settlement known, id. may be levied by distress, when, 478. of removal from asylum, borne by pauper's parish, 47'J. appeal to sessions by persons aggrieved, 478. notice of, and recognizance, to abide order thereon, 181. determination upon, is final, id. bastards of, born in asylum, not settled in that parish. 178. suffering to go at large, without order, penalty for, 479. Criminal lunatics, id. justices to inquire into settlement of, id. may order county to bear expense, where no settlement found, id. criminals under sentence becoming insane, 480. secretary of state may direct removal of, to county asy- lum, id. inspectors of asylums, by whom employed, id. complaints, &c., for offences against the act, before whom made, id. penalties upon, how recovered, 481, justices may commit to prison, if not sufficient dis- tress for, id. PENALTIES. See Fines. For neglect to give notice of bodies cast on shore, .»!. On churchwarden's neglect to remove tliem thereon, td. On clergyman, for absence without licence, 64. for marrying without banns or licence, 1 IK. for suffering another to do so in his churtii, id. 682 INDEX. PENALTIES, continued. On husband married without banns or licence, 118. on sexton or clerk officiating- at, id. On keeper of parish books, for defacing, &c, 135. for suffering others to do so, id. for non-delivery of order of vestry, id. for refusing inspection of books, 136. assistant-overseer liable for such refusal, 137. Dissenting minister preaching without qualifying, 150. preaching in uncertified places, 151. in assembly of more than lawful number, id. in any place with locked doors, id. On person disturbing a religious assembly, 156. Highways, on surveyors of, refusing office, 188. neglecting to i^turn assessments, id. assistant to, refusing office when chosen, 190. he or assistant neglecting duties, 194, 195. not accounting for money in hand, 196, leaving pits open, made by getting materials, 208. having share in contract for materials, 209. neglecting to fix direction-posts, &c. 237. on parishes, for non-repair of highways, 203. on persons damaging mills, cfec, in getting materials, 208. neglecting to perform statute duty, 224. neglecting to fell trees, after notice, 233. laying rubbish in, and neglecting to remove after notice, id. obstructing, by waggon or otherwise, id. damaging posts, causeways, &c. id. throwing down battlements of bridges, 234. keeping ale-house on or near toll bridges, id. neglecting to cleanse and scour ditches, id. encroaching on highways, 235. drivers misconducting themselves, 238. refusing to discover name, id. having above limited number of horses, 239. owner not having name on waggon, 241. resistance or disobedience to highway acts, id, how penalties recov.red and applied, 243. where statute prescribes no mode of recovery, S 44. limitation and notice of action for, 245, 280. On justice's neglect to return proceedings, upon appeal, 249. acting, being unqualified, 278. Costs may be paid out of, when, 304. Upon convictions, recoverable by distress, 305. Commitment to prison for non-payment, 306. in lieu of levying amount of, when, 307. On clerk of peace taking excessive fees, 324. neglect to put tables of fees up in court, 325. On constables, for neglects under jury act, 362. neglects as to county rate, id, neglecting to apprehend vagrants, 379. On persons using false weights or measures, 311. offending against incorporated district act, 455. suffering lunatics to quit asylum without order, 479. PERAMBULATIONS, Of boundaries of parishes, 5. accompanied with abuses, id. ceremonies thereof abridged, 6. processions as anciently conducted, forbidden, id. perambulating over private lands, id. INDEX. 683 PEWS, Not anciently erected in churches, 21. Erected and repaired by parishioners, 22. Common property of the parish, id. Occupiers who are not parishioners cannot claim, 23. Cannot be erected without consent of ordinary, 24. Exclusive right to, how supported, 25, 26. by occupancy and repairing, 26, 27. consideration for prescription, 27. appurtenant to house out of parish, 23, 26. to house, not to the person, 27. right to, may be transferred, id. reparation of, when to be pleaded, 28. prohibition for removal from, 27. Distribution of seats in, by whom made, 24. vestry has no power of, 258. Intermixture of families in, 24. Cannot be let to non-residents, 29. Pulled down, if erected without authority, id. action against party for, id. Materials of, whose property, id. Suits respecting, where triable, 29, 30. repairing rectory pews, 44. Action of trespass for destroying chapel pews, 60. PITS, Made in getting materials for highways, 207. surveyor to fill up, when, it/. to fence off, whilst getting materials, 208. neglecting to fill up, penalty for, id. how penalty applied, id, PLAYS, In churches, description of, 38. suppression of, id. churchwardens to prevent, 39. PLEAS, To road indictments, of guilty, 176. not guilty, by parish or others, 177 variance, may be taken advantage of under, id. non -liability, must be specially pleaded, when, 178. prescription, as to repair, to be pleaded, when, td. manner and certainty of pleading, 179. difference between general and special, id. pleading special matter unnecessarily, effect of, 130. requisites of special pleas, id. By constable, of general issue, 358. may plead a justification, when, id. To action, for penalty for serving workhouse for profit, 441. By churchwardens, of general issue, 95. may give special matter in evidence, under, id. By justices, of tender of amends, when. 314. of general issue, may withdraw, and plead dc novo, when, 315. POOR. See Removal, Settlement. Guardians may agree for labour of, 451 . To receive surplus of earnings over their expenses, id. Running away, or otherwise misbehaving, punishable, id. Farming out, agreement for, id. not to be longer than twelve montlis, id. justices may dissolve such ajireemcnt, when. id. Embezzling goods, &c. overseer to prosecute, «(/. Relief of generally, 455. 684 INDEX. POOR, continued, Relief of generally, continued. primary obligation upon relatives, 451. enforced by statutes, 456. penalty on non-payment of sum ordered, id. not to be removed to parish where relatiou resides, irf. what relations chargeable, id. order upon for relief, by whom made, id. requisites of, 457. upon whose application made, id. may order party to relieve several children in one family, id. disobedience to, punishable, id. if illegal, remedy for,irf. deserting family, when and bow punishable, id. goods, lands, &c. may be disposed of toreimburse parish, 458. requisites of order to dispose of, id. Pensions may be paid to overseers of, id.. What parish must relieve when settlement unknown, id. Poor debtors, justices may order relief to, when, id. To merchant sailors' wives or families, id. parish to be reimbursed, in what manner, 458. POOR RATES, Statutes authorising, 398. Power of making in whom, 398, 401 . Mandamus lies to compel, 398. Not to be altered after allowance by justices, 399. Payment of, may be excused how and when, id. Publication of, id. For what time made, id. Purposes of, 400. for setting to work poor children, id. for expenses of litigating questions of settlement, it/, overseer may reimburse himself out of it, id. may reimburse predecessors, 401. Persons rateable, 402. how and upon whom made, id. resident inhabitants, id lessee of a stall in a market not rateable, id. when carrying on business in one, and residing in another parish, id. ship-owner rateable in respect of his ship, when, 403. foreign ambassador or servants not rateable, when, id. parson, &c. liable to, in respect of tithes, when, id. owner occupying by servant is, 404. person occupying as servant is not, id. persons occupying crown lands beneficially, 412. corporations are, 404. farmer is, for cows depasturing on his lands, id. Property rateable, 407. stock in trade within the parish is, 403. property in another parish is not, id. a spring of water, 407. docks, sluices, or waterworks, 407, 409. main pipes for water or gas, 407. navigated river or canal, id. bargeway or towing path, id. gas or lime-works, 408. potter's clay pit, id. profits of steel-yard or weighing-machine, id. POOR RATES, continued. Pvoperty rateable, continued. carding niacliine, 408. building used as a canteen, id. corporation lands used by burgesses, id. exclusive use of a way, id. fishings, lessee of, rateable, when, 409. quit rents, lord of manor not rateable for, id. lands covered with water not rateable, id. tolls per se not rateable, 411. rateable when a beneficial occupation, 620. lighthouse, for what sum rateable, 412. crown lands, when not rateable, id. coal-mines, occupier of, for what sum rateable, id. lessee of, for what rateable, id. for how long rateable, id. ore and minerals, how rateable, 413. quarries, &c. in what respect rateable, id. underwoods, when rateable, id. where rateable, 414. canals, waterworks, docks, &c. locally rateable, i, continued. Tithes, payment of, by, 148. proceedings to recover, on refusal, id. How to contribute to the mjUtia, Sec. id. Justices to appoint deputy, when chosen constable, 149, 334. Exempt from offices opposed to their religious scruples, 130. May compound for parochial and other rates, id. Marital rights of. See Marriage. Registering charitable foundations, &c.of, 150. May serve office of constable by deputy, 334. Recovery of church rates from, mode of, 389. QUALIFICATION, Of parish clerk, what, required, 96. Of justices, 277. oath to be taken by, as to, 278. penalty for acting without, id. action to recover, id. defendant to specify lands, when, 279. one penalty clears all prior offences, id. becoming disqualified, liable to, 281. QUEEN ANNE'S BOUNTY, Chapels of ease become perpetual cures by receiving, 73. So stipendiary curacies, &c. 77. Governors of, returns made to, 75. QUESTMEN. See Churchwardens. Origin and duties of, 82. QUORUM, Justices of, nominated in the commission, 289. necessity of, dispensed with by statute, id. QUO WARRANTO," In what cases granted, 87. To try validity of the title of constable, 336. RATES. See Poor Rate, Church Rate, S^c. S^c. Settlement by payment of, 533. J not gained by tenant, if landlord rated, 534. 'T what kind of rates, 535. RATIONE TENURE, Liability to repair highway by, 174. averment of, in indictment, 175. if where lauds conveyed severally, id, RECOGNIZANCES, Taken voluntarily in any place, good, 283. Of bail, to be taken in duplicate, 285. one duplicate to be delivered to clerk of peace, id, the other to the exchequer, 285. RE-EXAMINATION. See Examination, Justices, if,'ncd, 569. not essontial, that it •Would be in writing, td. Y Y 690 INDEX. REMOVAL OF PAUPERS, continued. Order of, continued. appeal against, continued. notice of, continued. appellant may countermand, when, 368. sessions bound to receive without notice, id. mandamus to compel them to receive, &c. id. cannot quash order of former sessions, 571 , must either quash or affirm, id. cannot affirm without appeal, id. not bound to state a special case, id. adjournment of, till what time, 569. by whom, and upon what grounds, id. if not legal, renders acts done after void, id. proceedings at the hearing, id. mandamus to re-enter and hear, when, id. defects in form, when amended, 570. judgment upon, id. persons interested, not to vote in, 571. cannot be given, if magistrates are equally di- vided, id. mandamus to re-hear after, not granted, id, sessions not bound to state reasons of, id. may alter judgment during same ses- sions, id. justices cannot refer decision, unless parties con- sent, id. pauper, how disposed of after, id. costs of proceedings upon, to whom awarded, 572. for maintenance of pauper, since removal, id. certiorari, mode of suing out, 573. within what time, id. application for, foundation of, id. recognizances to prosecute, irf. when not required, 574. discharge from, when costs are paid, 575. return of, may be by one justice, 574. form of, id. if false, actionable, id. so a refusal to make a return, id. to be delivered to officer at the crown office, id. costs after, who entitled to, id. judgment upon case in banc, id. court may send it back to be re-stated, when, 575. costs upon, who liable to, id. REMUNERATION. See Expenses. Of parish clerk, 97. Of constables, 355. for raising assessment under militia act, 350. Of special constables, 363. REPAIRS OF THE CHURCH, To be at expense of parishioners, 35. Churchwarden's duty herein, 37. may repair without sanction of parish, id. punishable for neglect of, id. cannot make rate for expenses after alterations are made, id. Parson to repair chancel, 35, 37. may be proceeded against for neglect of, 36. but authority of vestry should be first obtained, id. Exemptions from contributing to, id. INDEX. (591 REPAIRS OF THE CHURCH, continued. Exemptions from contributing to. continued. repairing chapel, not an, 36. • replication!'''"' ""'* ^^ sanctioned by parish, 37. REsiDmi:t:^i:r;:L".:sf= ''^'^^^^'' '''■ Of clergyman, enforced, 64. king's writ of discharge from, id. penalty for unlicensed absence from, id. where, and for what time, sufficient, 65. House of residence, 68. letting thereof, when void, id. notice to remove from, id. justices may give possession of, id. When proof of, as to marriages, unnecessary, 131. Forty days requisite to the gaining a settlement, 499. not necessarily consecutive, id. REVILING, The Lord's Supper, 107. punishment for, id. ^ REVOCATION, Of licence, by bishop, 77. subject to appeal to archbishop, id. to be entered in registry of diocese, id. copy of, to be transmitted to churchwarden, id. REWARD, For giving notice of bodies cast ashore, 51. For apprehending deserters from militia, 350. Promise to recover stolen goods, when not binding. 357. RIOT, Expenses of high constable in cases of, 302. extraordinary, allowance of by justices, 303. submitted, on oath, to sessions, id. sessions may confirm, or reduce amount, id. RIOTERS, Constable may apprehend, during ferment, 337. not afterwards, without warrant, id. RIVER, Conveying washings, &c., from gas works into, penalty for, 609. ROGUES. See Vagrants. ROTATION, Custom to serve office of constable by, is good, 329. physicians, &c., not exempted in such case, 330. RUSHES, Renting of, before 1819, gave a settlement, .522. SCRAMENTS. See Lord's Supper, Baptism, Marrimre. SACRAMENTAL TEST. For what purpose instituted, 142. Now abolished, 143. Declaration in lieu of, id. SAILOR, In merchant service, on voyage, 4.')8. wife and children chargeable whilst, id. parish, how reimbursed, id. SANCTUARY, Ancient privilege of, aboliihed, 4.1. SCHOOLHOUSE, Residence in, gives settlement when. :>4 1. Y N 2 692 INDEX. SCHOOLMASTERS, Dissenters, tuition by, 154. cannot hold mastership of royal college, 155. Residing in schoolhouse, gains a settlement, 541. SCOTCHMAN, May acquire settlement in England, 482. Becoming chargeable, having no settlement, 547. May be passed, with family, to Scotland, id. Wife of. retains maiden settlement, when, id. removable with children to, when, 548. SEA, Offences committed at, 286. justices to inquire into, id. may issue warrants against offenders, id. SEA SERVICE, Binding apprentices to, 511. till what age, id, age must be inserted in indenture, id. parish to pay for outfit, id. protected from impressment, id, SECTARIANISM. See Dissenters, §c. Origin of, 139. SELECT VESTRIES, Established by custom, 260. Supposed origin of, id. Fallen into disrepute, id. Cannot be constituted by a faculty, 261. nor destroyed by faculty limiting the number in, 262. Cannot elect a select vestry under 59 Geo. 3. 265. Created by statutes, id. particular provisions of, id. for new districts, under new church acts, 266. how constituted in, id. For affairs of the poor, 2G7. how constituted, id. number in, not to exceed twenty, nor less than five, id, three to be a quorum, id. cannot be elected by ancient vestry, 268. meetings of, how often held, id. chairman of, to be chosen by majority present, id. power and duties of, 269. overseers to obey orders of, id. justices may order relief, when refused by, 269, 454. to enter minutes of proceedings, 271. may confirm contracts for maintaining poor, 268. not to interfere with ancient vestries, 272. SEQUESTRATION, In what cases granted, 63, 91. Tantamount to fi. fa. for minister's debts, 91. In cases of suspension or vacancy, id. By whom granted, id. To whom granted, id. Accounting to subsequent sequestrator, 92. Trees, &;c., not to be meddled with, id. Except to repair church or parsonage, id. Impropriate rectory, not liable to, id. SERVANT. See Settlement, Master and Senavf, Of toll collector, gains no settlement by service, 522. Occupation of tenement as, gives no settlement, 523. INDEX. 693 SERVICE. See Settlement, ^c. To gain settlement, must be for a whole year, 494. need not be under same hiring, id. must be continuous, id. with executor, or assignee of master, 495. for a year, what sufficient, id. dispensation of, in part, 496. in a public establishment, 486. SESSIONS, Power of justices in, 274. may divide cosrt at, 309. proceedings at such separate court, valid, 310. by whom recorded, id. Misconduct of magistrates at, 321. Constables bound to attend, 352. duties of in, id. penalty for not answering when called, id. SETTLEMENT. See Evidence. Definition of, 482. Not forfeited by an attainder, id. In what place may be acquired, id. In what manner, 483. Who may acquire, 482. Indemnity against is valid, 484. Who incapable of gaining, 483. local incapacity to gain, 484. persons residing under suspended order of removal, id. persons maintained in charitable institutions, id. prisoners in actual custody, id. By hiring and service, 486. statutory provisions herein, id. party must be unmarried at the time, id. without unemancipated children, id. widower after emancipation of children may gain, 553. Hiring may be express or implied, 487. if express rnay be by oral or written contract, 581, when presumed, 487. when presumption rebutted, id. party hired must be able to contract, id. contract of must be voluntary, 488. by whom and when made, id. if made on a Sunday is valid, 489. for an indefinite time, id. for a definite time, id, successive, if severally less than a year, insufficient, id. must be actually or impliedly, for a year, 489, 493. from Whitsuntide to Whitsuntide sufficient, 489. for 52 weeks insufficient, id. eo for 365 days in leap-year, 490, so if for less than year to prevent settlement, id. if only colourably for less, settlement is gained, id. retrospective in part, insufficient, id. exceptive, what and how distinguished, id. exception cannot be introduced after hiring, 491. implied exceptions in, id. conditional, 492. distinction between and exceptive, id. becomes an exceptive, when, id. if service under, not suspended, gives a settlement, 493. implied for a year, id. consecutive, coupled with a hiring for a year, 494. t)94 INDEX. SETTLEMENT, continued. Hiring, continued, consecutive, continued. sufficient, though wages different, 495. at monthly wages, 496. at weekly wages, id. to work by the piece, id. to learn a trade, 501. settlement gained under, when, id. service under, 485, time of, and with whom, id. marriage during, will not prevent settlement, id. continuance of, under express hiring, 487. for a year, 489, 495. 365 days is a sufficient, 495. not necessarily under same hiring, 494. in successive years, when connected, id. in a public establishment gives a settlement, 488. must be in the same service, 494. must be unbroken, id. part of year with master and remainder with executor, 495. constructive, what, irf. dispensation in, 496. continues, if imprisoned upon complaint of master, 498. settlement by, iu what parish, 499. during apprenticeship, when will gain settlement. 505. not if indentures subsist, id. By apprenticeship. See also Indenture. defective contract of, will not gain, 585. how ascertained, id. general requisites, 500. to toll collectors will not gain, id. evidence of, 583. binding, distinction between, and hiring, 500. if imperfect will not gain a settlement, id. must be by deed duly stamped, 501. age immaterial above seven years, id. master's condition immaterial, 502. to a certificate man confers no settlement, id. for no certain time is good, id. father cannot bind son without consent, id. how assent to signified, id. to serve two masters under one indenture, 503. for such indenture one stamp suffices, id. execution by apprentice essential, id. to one with intent to serve another, id. stamp if insufficient indenture void, id. duplicates, when chargeable to the duty, 504. duties upon, before 10 October, 1808, id. before 31 August, 1815, irf. upon assignment of before 1804, 505. before 10 October, 1808, id. before 31 August, 1815, id. where a new consideration or premium, id. Parish apprentices, 506. indenture of, stamp duty upon, id. when exempt from duty, id. who must be parties to, 507. to be signed by sworn churchwardens, id. not necessary if a guardian appointed, 508. execution of, by whom, id. INDEX. 695 SETTLEMENT, continued. Parish apprentices, indenture of, continued. , execution of, by apprentice not essential if consent implied, id. assent of two justices to, 508. binding regulations as to, by 54 Geo. 3. c. 139, id. of a child under nine years forbidden, id. justices to inquire into' character, &c, of master before. 509. approval of must be under hands and seals, 51 1 . into a distant parisb, what necessary, 509. into another county, id. notice to overseers of place where he is to serve, id. settlement defeated if notice not given, SIO. at expense of parish, when valid, id. to sea service, 511. by and to whom bound, id. at and till what age, id. to chimney sweepers, id. by whom bound, id. at and till what age, id. penalty for keeping, &c. under such age, 512. assignment of, id. must be by consent of two justices, id. penalty for, unlawful, erf. service must be still under the indenture, 514. form of on death of master, id. must be applied for within three months, id. residence, in what parisli, 515. at father's on Saturday and Sunday nights, id. while serving in local militia, 516. on board ship, id. must concur with service, id. casual residence insufficient, id. forty days consecutively not essential, 517. evidence to establish, what sufficient, 584. By renting a tenement, 521. who may gain such settlement, id. period of renting material, id. before 2nd July, 1819, id. nature of the tenement, 522. construction of the word " tenement," id. buildings, &c. not affixed to land will not suffice, 586. what holding insufficient, 5^3. what interest in is sufficient, id. evidence of tenancy, what sufficient, 586. of yearly value, ,'j87, several rentings, making together £10 a year, Ct-M. joint-tenancy, where moiety exceeds £10, 524, 587. where surety taken for the rent, .525, J2H. hiring of, for what time, 520. residence must be for forty days, id. proof of, 588. where tenements are in several parishes 526. need not be upon tlie tenement, id. between July 1819 and June 1825, id. nature and value of tenement, .'>27. evidence of, by whom given, 588. for what time hired, .■)27. holding house or occupying land, 528. what evidence to prove, 588. locality of, how proved, if on Iwundarics, «/. rent for a year to be paid, 52!J. 696 INDEX. SETTLEMENT, confinuerf. y.^ By renting a tenement, continued, between July, 1819, and Jime, 1825, continued. house and tolls at entire rent gives no settlement, 589. payment of rent out of assets of deceased, insufficient, 529. paying rent after becoming pauper, id. leaving rent unpaid at time of removal, 530. proof of terms of tenancy, 589. of hiring and payment of rent, id. residence for forty days in parish sufficient, 530. fiorn 22nd June, 1825, id. nature and value of the tenement, id. proof of, 590. rent to be £10 a year at least, 530. to be paid for one whole year, id. need not be paid by hirer, 531. evidence of payment of, 591. holding before June 1825 and after, 531. tenant dying and rent paid out of his effects, id. what a sufficient occupation, 5o2. residence, what sufficient, 533. evidence of, 591. payment in part, leaving fixtures for residue insufficient, 622. By payment of rates, 533. origin of, id. before June 22nd, 1795, id. who capable of gaining a settlement by, id. before 22nd June. 1825, id. tenement rated must be of the anuual value of £10, 533, 536. party must be lated and m.ake payment, 534. if rate void, right not prejudiced, id. if assessed on landlord, tenant does not gain set- tlement, id. what rates will confer settlement, 535. what rates will not, id. evidence of rating, 591. secondary evidence of, admissible, when, id. forty days' residence after payment, 536. proof of, 589. By estate, 536. foundation of, id. what estate, with residence of forty days, sufficient, 537. parceners or joint-tenants may gain, id. may suffice, though title disputable, id. when given by an equitable estate, id. what interest in, is sufficient, 538, 539. right of franchise not a sufficient, 540. purchase of, must amount to £30, 536. settlement not gained till purchase completed, 539,542. for less than £30 renders owner irremovable from, 541. though no settlement gained thereby, id. what computed as purchase money, 542. value of, immaterial, where acquired by act of law, 543. residence for forty days in same parish, id. evidence to establish, what necessary, 592. By serving office, 544. origin of, id. what an office for the purpose of gaining, id. mere employment is not, id. what offices give a settlement, 544, 595. must be a public annual office, 544. INDEX. 697 SETTLEMENT, con^mwed. :.••.. TViiiM3.A'n'±^ By serving office, continued. icm ^Q. the office must have special relation to parish, 545. • service in must be for a year consecutively, jrf. officer serving by deputy gains a settlement, id. forty days' residence in parish necessary, id. may be gained by a certificate man, 546. evidence to establish, what necessary, 595. Derivative settlements. 546. how acquired, id. evidence of, what necessary, 596. by marriage, 546. wife acquires husband's settlement, id. cannot gain a settlement by owu act during his life, id. cannot perfect husband's settlement after his death, id. retains maiden settlement, if husband's not liDown, 547. proof of settlement by, 548. who, and what admissible to prove, jrf. if marriage in foreign country, sufficient, o49. not gaiued, if marriage void, id. evidence of, what necessary to establish, 596. By parentage, 550. settlement of father, is that of his children, id. though father die before birth of child, id. or become attaint, id, of mother, when children take, id. child may be removed, when, id. determined by emancipation, 551. not if emancipation imperfect, 552. evidence of, what necessary to establish, 596. By birth, .553. foundation of, id. who may acquire, 554. bastard born in parish, without fraud, id. exceptions as to, 554, 555. if born in extra-parochial place, gains no settle- ment, 554. gains that of its mother, when, 55.5. when mother residing under a certificate, id. born before order of removal executed, id. legitimate children, 554. evidence, what necessary to establish, 598. SEXTON, How and by whom chosen, 102. A female may vote for, or be chosen, 103. salary of, depends upon custom, 102. by whom payable, id. Fees of, by whom settled, id. Duty of, id. Has a freehold in his office, id. Mandamus lies to restore, if improperly removed, «