17 G. 2. c. 38.

On an overseer's dying, &c. two justices to

choose another.

Overseer removing, shall deliver his accounts to the churchwardens,

&c.

Executors of

overseers to account in 40 days.

Supplementary appointment.

the court: "for this present year 1766." Rex v. Helling, ante. “For one whole year." Rex v. Great Marlow, Fol. 5. Rex v. Jones, 1 Bott. 27. "For one year next ensuing." Rex v. Burder, 4 T. R. 778. 1 Bott. 30. For one year next ensuing the date hereof." Res v. Stubbs, 2 T. R. 395. 1 Bott. 30.

66

According to the direction of the statute (or, if it be a township,) the statutes.] The right of appointing overseers for parishes, is founded, as we have seen on 43 Eliz. c. 2. § 1. 54 Geo. 3. c. 91., 59 Geo. 3. c. 12. § 6. & 17 Geo. 2. c. 38. § 3. And for townships, on the same enactments coupled with the provisions of 13 & 14 C. 2. c. 12. § 21. 22. and of 59 Geo. 2. c. 12. § 35.

Given under our hands and seals this 25th day of March [or, within fourteen days after.]

E. M.
G. C.

(L. S.) (L. S.)

In order to authorise the appointment, it has been generally considered requisite, not only that the justices sign and seal, but that their signing and sealing be in each other's presence; for the function is not ministerial merely, like the allowance of a rate, but judicial; and it is fit therefore that the magistrates confer, and that the result of their conference be the ground of their determination. Indeed it is a general rule that where a statute requires the concurrence of two magistrates, they should both act together. Rex v. Arnold, 1 Str. 101. 1 Bott. 16. Rex v. Great Marlow, 2 East. 244. 1 Bott. 18. Rex v. Forrest, 3 T. R. 38. 1 Bott. 17.

But from the analogy of a more recent case, respecting a warrant signed by commissioners of bankrupts, it may be collected that the spirit of this rule is satisfied if the magistrates have in fact conferred and agreed, leaving nothing to be done but the acts of signing and sealing, though those acts afterwards be done by them asunder. Battye v. Gresley and others, 8 East. 327.

Stat. 17 Geo. 2. c. 38. § 3. enacts, that if any overseer shall die, or remove from the place for which he was appointed, or become insolvent, before the expiration of his office, on oath thereof made, it shall be lawful for two justices of the peace to appoint another overseer in his stead, who shall continue in office until new overseers are appointed; and if any overseer shall remove as aforesaid, he shall, before such removal, deliver over to some churchwarden, or other overseer of the same place, his accounts verified as aforesaid, with all rates, assessments, books, papers, sums of money, and other things concerning his office, under the like penalties as are inflicted by this act on an overseer refusing to do the same after the expiration of his office; and if any overseer shall die as aforesaid, his executors or administrators shall, within forty days after his decease, deliver over all things concerning his office to some churchwarden, or other overseer of the same place; and shall pay out of the assets left by such overseer, all sums of money remaining due, which he received by virtue of his said office, before any of his other debts are paid and satisfied.

When the full number has not been appointed by the first instrument, it seems competent to the justices to add the rest by one or more supplementary appointments. Rex v. Besland,

1 Bott. 21. Rex v. Morris, 4 T. R. 550. 1 Bott. 23. Et vide per Lawrence J. Rex v. Clifton, 2 East. 177.

Rex v.

Lastly. Every overseer who continues living solvent and resident, will remain in office, until the expiration of the period. limited for the appointment of the next year's overseers. Sparrow, 1 Bott. 25. 1 Nol. P. L. 50. But not longer, even though no successors be appointed; nor, as it seems, does the authority even of the churchwardens, as overseers of the poor, continue beyond the expiration of the overseer's term, though "liable to be revived by the appointment of new overseers, if the churchwardens continue in office beyond the overseer's regular year." Vide 1 Nol. P. L. c. 2. Part 2. ad finem, vide etiam per Ld. Ellenborough C. J. Rex v. St. Margaret's, Leicester,

8 East. 333.

7. Of the remedies, as well to obtain as to enforce or avoid an appointment, and herein of appeals, &c.

The next matters to be considered are, the remedies as well (1) to obtain an appointment where none has been made within the proper time, as (2) to enforce (A) or to avoid (B) an appointment already made.

1. If the magistrates will not make an appointment within the proper time, a mandamus may be obtained from the court of K. B. to compel them. 1 Nol. P. L. 44. See also 43 Eliz. c. 2. § 10. ante p. 18.

2. (A) If the magistrates have already made an appointment, it may be enforced against the overseers themselves, by indictment (a), if they refuse to take the office upon them; or generally (b) by obtaining a confirmation from the Court of K. B.

2. (B) On the other hand, when the object is to avoid the appointment, that object may be attained not only in defending an indictment for refusal of the office, or in bringing an action of trespass or replevin, for taking of a distress under a rate made by illegal officers, or in opposing the motion for the confirmation; but the appointment may be directly impeached either by the

(a) The remedy against an overseer refusing to take the office upon him is by indictment. Rex v. Jones, 2 Str. 1146. 2 Sess. Ca. 187. 1 Bott. 337. 1 Nol. P.L. 38. He is overseer completely by the appointment under the hand and seal of the magistrates, until on appeal, the sessions have allowed his excuse, or until the court of K. B. have pronounced his appointment void; but its invalidity seems a good answer to such an indictment, and may be taken advantage of by demurrer, where its insufficiency appears on the face of the indictment itself. Rex v. Pardy, 1 Bott. 339. Rex v. Burder, 4 T. R. 778. 1 Bott. 30. It would probably be necessary on such an indictment to prove that he had received notice of his appointment: for such notice is requisite even to warrant a conviction before two justices in penalties under 45 Eliz. for neglect of his office, where notice seems the less important, inasmuch as such a conviction must allege the defendant to have accepted the office, which implies that he must have had notice. Rex v. Harman, 1 Bott. 335.

(b) The law has likewise permitted the confirmation of the appointment by the court of K. B. on motion to that effect, when it is brought up by certiorari. But it ought not to be brought up, nor, if brought up, will the Court confirm it, until one session has past since the appointment was made, so as to give to the parties interested an opportunity of appealing against it. Rex v. Houlditch,

1 Bott. 68.

43 El. c. 2. § 6. Appeal.

Appointment by persons calling themselves justices, but not being such, nullity.

Their jurisdiction may, however, be admit

ted.

Sessions may look into the jurisdiction of justices.

overseers themselves, or by any of the parishioners, in any of the following ways:

1. Directly by an appeal against the appointment itself, under 43 Eliz. c. 2. § 6. which provides, that if any person shall find himself aggrieved by any act done by the said justices, he may appeal to the general quarter sessions, whose order therein shall bind all parties. See also stat. 17 Geo. 2. c. 38. § 4. Rex v.

Great Marlow, 2 East. 244. 1 Bott. 71.

Though the stat. of Eliz. did not confine the appeal to the next sessions, yet the statute of 17 Geo. 2. c. 38. § 4. imposed that limitation, at the same time allowing costs to the successful party. It has been supposed, that the appeal still lies, under the stat. of Elizabeth, to any subsequent session; and that the only disadvantage of not appealing to the next sessions, as is directed by the statute of Geo. 2. is the waver of the costs which this latter statute allows. But it is now decided, that this provision of Eliz. was repealed by the stat. of Geo., and that the appeal must in all cases be to the next quarter sessions after the party was aggrieved. Rex v. Coode and others, 1 Bott. 281. Rex v. Micklefield, 1 Bott. 284. 2 Nol. P. L. 397. The next sessions will always mean the next possible sessions. See Rex v. Justices of Sussex, 15 East. 207. Et per Ld. Ellenborough C. J. in Rex v. Justices of Essex, 1 B. & A. 210. And it will be advisable for him to serve each of the justices who have made the appointment, and each of the other parish officers with whom he is nominated to act, with a copy of the notice of appeal, containing the grounds of his appealing, which must be done on or before the last day allowed for notices of appeal, by the practice of the sessions for the county, where the case is to be heard. If the objection be, that the appointment was made by persons who were not justices, no appeal is necessary, for that is a nullity; but if the party do appeal and call the persons in question, in his notice by the title of justices, he concludes himself, and cannot be heard to urge that they are not so; though an appointment by persons not justices is void ipso facto, without appeal, yet, where the defect of jurisdiction is merely, that the justices are neither of them of the quorum, the proper way to obtain the avoidance of the appointment is by appealing. Rex v. Fisher and Rex v. Towil, Cald. 135. 1 Bott. 69. Albrighton v. Skipton, 1 Str. 300. 1 Nol. P. L. 52.

2. The appointment may likewise be questioned collaterally, in an appeal against an order of removal made to an extra-parochial place having no officers, or to a township or other minor district, when it ought to have been made to the parish at large; or, probably, to a parish at large when it ought to have been to one of the townships in that parish. (a) Rex v. Denham, Burr. S. C. 35. Dolting v. Stokelane, Fort. 219. 1 Bott. 35. Rex v. Tamworth, Cald. 28. 1 Bott. 45. Rex v. Swalcliffe, Cald. 248. 2 Bott. 690. Another mode, the converse of the last, is an ap

(a) Nor can Rer v. Kirby Stephen, Burr. S. C. 664. 1 Bott. 44. be considered as an authority against this position: for the removal and delivery of the pauper were to the proper district, i. e. the township, though it was misdescribed in the order of removal, as a parish, from the accident of its having the same name as the parish in which it was comprehended.

peal against an order of removal made from a wrong district. Forest of Dean v. Parish of Linton, 2 Salk. 487.

On any of these appeals to the sessions, that court may, if it have any doubt, reserve a case for the opinion of the Court of K. B. Besides which, a party having a right of appeal, may either, without exercising that right, or after having exercised it unsuccessfully, remove the appointment into the Court of K. B. by certiorari, and move that it be quashed, at any time before the expiration of the year for which it was made; but, it seems, not afterwards. Upon which the Court will go into the consideration, not only of defects on the face of the appointment, but of extrinsic matters appearing by affidavit. Rex v. Great Marlow, 2 East. 244. 1 Bott. 71. See Rex v. Butler, 1 Blac. Rep. 649. Rex v. Standard Hill, 4 M. & S. 378.

moved into

Rex v. Standard Hill, M. 56 Geo. 3. 4 M. & S. 378. An Appointment of appointment by two justices of overseers of the poor, may be re- overseer removed into the court of K. B. by certiorari, without appealing B. R. by ceragainst it to the quarter sessions, and the Court will go into the tiorari. question upon affidavit, whether the place for which the appoint- Question whement is made, be a township or vill, and if it appear by the affida- ther a township vits that it is not, and be not stated to be such, or that it is reputed to be such, the Court will quash the appointment.

Lastly, the propriety of an appointment may be questioned by motion for a mandamus to be directed to two justices of the neighbourhood, commanding them to appoint overseers for the proper district. This is a writ of right; but according to Mr. Nolan, [1 Nol. P. L, 36. note (4)] it is not applicable to improper appointments for extra-parochial places. Rex v. Rufford, 8 Mod. 39. 1 Bott. 36. 334. Rex v. Welbeck, 1 Bott. 38. Rex v. Sir Watts Horton, 1 T. R. 374. 1 Bott. 54. Rex v. Justices of Bedfordshire, Cald. 167. 1 Bott. 48. Rex v. Justices of Peterborough, Cald. 238. 1 Bott. 50. Rex v. Justices of Middlesex, 1 Bott. 39.

Having thus considered the appointment of overseers and the remedies for enforcing or avoiding such appointment, it will be proper now to treat

8. Of the constitution and incidents of the office;

in respect,

1. Of the jurisdiction belonging to it.

2. Of the general duties and powers annexed to it. 3. Of the privileges for its support.

4. Of the remedies against its abuse.

or vill gone into in B. R. on

affidavit.

1. Where a parish or township extends into more counties than Jurisdiction. one, or part lies within the liberties of a corporate place and part without, by 43 Eliz. c. 2. § 9. "The said churchwardens and overseers or most part of them, of the said parishes that do extend into such several limits and jurisdictions, shall, without dividing themselves, duly execute their office in all places within the said parish, in all things to them belonging."

All acts which the churchwardens and overseers have power to 43 El. c. 2. do, are done with sufficient jurisdiction if done by a majority. § 1. 5. 9. Rex v. Beeston, 1 Bott. 420. This body thus far resembling, though not technically amounting to a corporation. Doe dem. Grundy and others v. Clarke, 14 East. 488.

17 G. 3. c. 38. § 15.

Power of overseers where there are no churchwardens.

59 G. 3. c. 12. $35.

2 & 3 Ann. c. 6.

§ 3.

See post

By stat. 17 Geo. 3. c. 38. § 15. Overseers of the poor, within every township or place where there are no churchwardens, shall from time to time do, perform, and execute all and every the acts, powers, and authorities, concerning the relief of, and other matters and things relating to the poor, as churchwardens and overseers of the poor may do, perform, and execute by this act, or any former statute concerning the poor; and shall lose, forfeit, and suffer all such pains and penalties for neglect, abuse, or non-performance thereof, as churchwardens and overseers of the poor are liable to, by virtue of this or any former statute concerning the poor. And they have the same jurisdiction as to the acts and duties required by 59 Geo. 3. c. 12. § 35.

The stat. 2 & 3 Ann. c. 6. § 3. respecting apprentices to the sea-service, had also given to the overseers of townships, all the powers which it entrusted to churchwardens or overseers of a Settlement by parish: and the statutes of 51 Geo. 3. c. 80. and 54 Geo. 3. c. 107. Apprenticeship legalise the execution of parish indentures and certificates in certain instances where the execution would otherwise have been defective in respect of the number or authority of the officers executing it.

and Acknow

ledgement by

Certificate.

General duties and powers. 43 El. c. 2. § 1. & 2.

Who shall be taxed towards the relief of the poor.

A convenient stock shall be provided to set the poor on work.

The names of

such as receive collection to be registered in a book. See

3 & 4 W. & M.

c. 11. § 11.

43 El. c. 2.

The overseers

The overseers have by law the custody of the instruments by which they are appointed. Rex v. Stoke Golding, M. 1817. 1 B. & Å. 173. Phill. Ev. 488. 4th edit.

2. The general duties and powers of overseers are declared by stat. 43 Eliz. c. 2. § 1 & 2. which enact, that the churchwardens and overseers, or the greater part of them, shall take order from time to time, by and with the consent of two or more such justices of peace as is aforesaid, for setting to work the children of all such whose parents shall not, by the said churchwardens and overseers, or the greater part of them, be thought able to keep and maintain their children; and also for setting to work all such persons, married or unmarried, having no means to maintain them, and use no ordinary and daily trade of life to get their living by: and also to raise weekly or otherwise (by taxation of every inhabitant, parson, vicar and other, and of every occupier of lands, houses, tithes impropriate, propriations of tithes, coal-mines, or saleable underwoods in the said parish, in such competent sum and sums of money as they shall think fit,) a convenient stock of flax, hemp, wool, thread, iron and other necessary 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, old, blind, and such other among them, being poor and not able to work, and also for the putting out of such children to be apprentices, to be gathered out of the same parish, according to the ability of the same parish, and to do and execute all other things, as well for the disposing of the said stock as otherwise concerning the premises, as to them shall seem convenient.

§ 2. Which said churchwardens and overseers so to be nominated, or such of them as shall not be lett by sickness or other just exshall meet once cuse, to be allowed by two such justices of peace or more as is every month. aforesaid, shall meet together at the least once every month in the church of the said parish, upon the Sunday, in the afternoon after divine service, there to consider of some good course to be taken, and of some meet order to be set down in the premises.

Privileges, &c.

3. For protection of the churchwardens and overseers against