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1806.

practice of putting upon the record matter which ought to be applied to the equitable jurisdiction of the court."

JUDGMENT for the PLAINTIFF.

SCHOLEY versus PAGE.

The King against the Inhabitants of MERSHAM.

Feb. Ist.

ident. Stat. 3

A master of a workhouse appointed in vestry, has not a public office Poor settleor charge under 3 and 4 W, III,c. 11, s. 6, to gain a settlement..

• and 4 W. IIT. A public office and charge are the same thing, Such charge or c. 11. s. 5. office must be such as must necessarily be filled in succession, not a

Public office a

? " charge. Master mere duty, upon a contract, which may be suspended or continued of a workhouse. at pleasure. Semble, the lest of an office or charge, is that i im. poses a duty for the neglect or breach whereof the party may be indicted. APPEAL to the quarter-sessions for East Kent, The King from an order of two justices, for the removal of the Inhabitante

versus Richard Wraith, his wife and children from Borley to of MERSHAX. Mersham, both in the same county ; whcreupon the said court confirmed the order, subject to the opinion of this court upon the following case : Previous to the year 1800, the pauper's settlement was at Mersham; sometime in that year, being informed that a master of the work-house in the parish of Boxley was wanted, be applied for that appointment, and was desired to send in his proposals, and a certificate of his character to the weekly vestry of the parish ; he attended at such vestry, and, after some questions and inquiries, he was desired to retire, that his proposals might be considered. Shortly afterwards he was informed that his proposals were accepted and his character approved of, and he was desired to attend a subsequent vestry to receive his appointment. He attended accordingly, but, there being bpt a very small attendance of the inhabilants at

1396. that vestry, his appointment was postponed to a ves. The King"

try holden on the following Sunday, when he attended versus and, there being twelve of the inhabitants present, he the Inhabitants of MERSHAM. Was mivwcu by uue parts

was informed by the parish officers that he was appoint...
ed master of the workhouse of the parish of Boxley
at a salary of 161. per annum. Nothing was said,
either at the time of his appointment, or afterwards,
as to the time for which he was to hold his situation ;
but the pauper conceived he might at any time be dis."
missed at a quarter's notice. There was ng appoint-
mentin writing, nor any entry in the parish books.
He continued master of the workhouse and resided ***
in the parish of Boxley four years, and during the
fifth year was dismissed at a quarter's notice. The
duties performed by the pauper were the superin-
tending and managing the poor in the work bouse, :
teaching the poor children to spin, weaving himself,
and carrying on the manufacture. He carried the
accounts quarterly to the overseers. The sessions
were of opinion that the pauper did not gain a set-
tlement in the parish of Burley in consequence of
the appointment and service above mentioned.

Taddy, for the uppellants, “ Such office as mentioned in the statute must mean either an office at common law or one created by statute. The king cannot create a new office. Offices must either be by law or custoın, and offices cannot be changed. If the kiug grant an office, by the name of an office, with the fees, and it appears that it is new, the grant is void. Most of the ancient offices belonging to a parish have an appointment by the leet, and they hold for the performance of the office; but this arises out of a mere contract. In the King v. the Inhabitants of Ilminster, * where a pauper was appointed governor of the

* 1 East, 83..

versus heli habit

workhouse in the parish at an annual salary, and it was 1806. stated in the case that it was a public annual office ; .

The King the court held, that that circumstance precluded all discussion ; and Bicham's case* was cited to shew the

of MERYHAX. that it was only material to prove that it was an office

of a public nature.” : Lord ELLENBOROUGII, C. J. “ What is the test

of a public office. Is it not, that the officer may be indicted for negligence or breach of duty.”.

PITCAIRNE, contrà. “ The appointment in this case, was by the parish in vestry; for it appears that he was desired to give in his terms to the vestry; and was not appointed, until there was a sufficient number of persons present to authorise the appointment. It was also an appointment at a yearly salary, and as nothing was said at the time as to the duration of the office, it must be taken to be an annual office. What is stated as to the apprehension of the pauper, will make no difference in the legal effect of the contract or appointment. The words of the statute 3 and 4 W. III. c. 11, s. 6, are 'if any person, who shall come to inhabil in any parish shall for himself execute any public annual office or charge in the said pa. rish during one year, then he shall be adjudged to have a legal settlement. It is, therefore, not neces. sary to shew that it is an office ; it is sufficient if it be a public charge."

Lord ELLENBOROUGH, C. J. “What is the differ: ence between a public office and a charge? It seems to me, that they are synonymous terms. Having the charge of the workhouse would just as well shei that he was a public oíficer, by shewing that he has a charge which extends over all the poor.' You can's not find any case of a public charge, as distinguished from a public office.”

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1806. PITCAIRNE. “ The 6th iection of the statute was The King an exception from the general law, which required no

versus.... tice of the paupers' coming to live in the parish; and the lubabitants of Mensam. it was so made an exception, on account of the nolo

riety; and it has been held, that it is a statute which ought to be construed liberally, being an enabling statule. And it has also been held that it does not extend merely to parish offices: and this is of all others an office rendered most notorious, by the election to it being made by the whole parish iu vestry.”

Lord ELLENBOROUGH, C. J. “ The argument upon the special notice in truduced by the statute 3 and 4 W. III. c. 11, brings it to the principle from which we set out; whether the holding this place constitutes an office within the statute, that is to say, whether it is a public office of notoriety? The case wfiich was lately decided of a curate was certainly an office of as much public notoriety as can well be found. It appears to me, however, in this case, that there is nothing like a public office. An office must be at common law, or by authority, either from the crown, or constituted by act of parliament. This is neither; it is merely an employment arising out of a contract with the parish, If this were a public office, any person that performs any special services for the parish may be a public officer. If there was any distinction between a public office and a public charge, there might be some diffi. culty ; but I can see no difference ; a public charge is something of a public nature, imposed in virtue of an office. Besides, is this an annual office? It does not appear to be so. As far as from the nature of the contract, there being no time specifically mentioned, it may continue for a year, and may be construed an annual agreement; but even that is explained by the party himself, who determines the contract."

GROSE, J. Was absent from indisposition.
LAWRENCE, J. " If the pauper has gained a

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settlement, it is in consequence of that which is ren. 1806. dered equivalent to notice, by the stat. 3 and 4 W.,

The King III. c, 11, s. 6. He must, therefore, wake out that versus

the Inhabitants which the statute has required, and we cannot consirue any thing to be that which in reality it is not, because it appears to be an equivalent for that which the statute intended; and it will not entitle the pauper to a settlement, unless it is an office. The question, therefore, is simply, whether this is an office or not? In the King v. Melborne,* it was held that a school-master of a charity school was not an officer, although his situation was very notorious. As to the word public charge, upless that is confined to an office, it would be going a great way indeed; for suppose a man were to contract annually to keep the parish church in het repair, that might be considered a public charge.”

Le Blanc, J. " This man is not within the statute 3 and 4 W. III. c. 11, s. 6, unless we can consider that a person who has any duty to be performed, whether it has any thing to do with an office or not, has a public office or charge. The pauper is a person who executes a duty between the overseers of the pa. rish and the public, upon a contract made with them. Now, I consider that only to be an office, which must necessarily be exercised by some one to be appointed to it in succession. But this is only a duty to be performed on a contract. The overseers have properly the care of the poor, and they employ this person to do that duty personally for them. They might have appointed him themselves. They oply apply to the vestry, in consequence of its being necessary to have the funds appointed by them for the payment of his salary. But those who employed him might have dispensed with bis services, and might have ceased to employ bim, had it not been for the terms of their

1 Wils. 87. Bwr. S. C. 244.

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