« ForrigeFortsett »
practice of patting upon the record matter which 1806.
ought to be applied to the equitable jurisdiction of the ScH0LIt
COUrt." . , versus
Judgment for the Plaintiff.
The King against the Inhabitants of Mersham.
A muter of a vorkhouse appointed in vestry, has not a public office Poor tettle-
poses a duty for the neglect or breach whereof the party may
be indicted. »
j^PPEAL to the quarter-sessions for East Kent, The Kino
from an order of (wo justices, for the removal of the lafeaiMuatt Richard Wrailh, his wife and children from Boxley toof Mi«mam. Mersham, both in the same county ; whereupon the said court confirmed the order, subject to the opinion of this court upon the following case : Previous to the year 1600, 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, Leapplied 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 trere 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 but a very small attendance of the inhabitants at
nr>6. that vestry, his appointment was postponed to a ves^e K(s0 try holden on the following Sunday, when he attended, venus and, there being twelve of the inhabitants present, he •f Mibsham? wa3 'D^orme^ Dv l'le Parish officers that he was appointed master of the workhouse of the parish of Bux/ey, 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 dismissed at a quarter's notice. There was no appointment in writing, nor any entry in the parish books. He continued master of the workhouse and resided in the parish of Boxfty four years, and during the fifth year was dismissed at a quarter's notice. The duties performed by the pauper were the superintending and managing the poor in the workhouse, 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 settlement in the parish of Boxky in consequence of the appointment and service above mentioned.
Taddy, for the appellants. "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 custom, and offices cannot be changed. If the king 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 Il~ minster,* where a pauper was appointed governor of the
* 1 East, 83.-'
workhouse in the pnrish at an annual salary, and it was isne stated in the case that it was a public annual office;
the court held, that that circumstance precluded all rf!l»i ° discussion; and Hicham s case* was cited to shew '''f''thsb|t that it was only material to prove that it was an oftice of a public nature."
Lord Ellenborougti, C. J. "What is the test of a public office. Is it not, that the officer may be indicted for negligence or breach of duly."
Pitcairne, contra. "The appointment in this case, was by the parish in vestry; for it appears that he was desired to give in his terras 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 fV. III. c. 11, a. 6, are ' if any person, who shall come to inhabit in any parish shall for himself execute any public annual office or charge in the said parish during one year, then he shall be adjudged to have a legal settlement.' It is, therefore, not necessary to shew that it is an office ; it is sufficient if it.be a public charge." «
Lord Ellenborouch, C. J. "What is the difference between a public office and a charge? It seerus* to me, that they are synonymous terms. Having the* charge of the workhouse would just as w<?ll shei* that he was a public officer, by shewing that he has" a charge which extends over all the poor. You cannot find any case of a public charge, as distinguished from a public office."
t, . . * 1 Strange, 411,. , . t
MO. XXIX. N. S.' X l-"'J"'"' *
1806. Pitcairne. "Tlie (hh leclion of the statute was
The Kino an exception from the general law, which required no
the iu^Wttnti l'Ce °^ l'ie PauPers' coming to l'v'e 'n the parish; and ui A1»b»«ai». it was so made an exception, on account of the notoriety; and it has been held, that it is a statute which ought to be construed liberally, being an enabling statute. And it has ateo been held that it does not extend merely to parish offices: and this is of all others an office rendered m ist notorious, by the election to it being made by the whole parish in vestry."
Lord Ellenborouoh, 0. J. "The argument upon t'te special notice introduced by the statute 3 and , 4 W. III. c. 11, brings it to the principle from which, we set out; whether the holding this pLce constitutes an office within the statute, that is to say, whether U is a public office of notoriety? The case which was lately decided of a curate was ceitainly an office of as much public notoriety as can well be found. It appears to Hie, however, in this case, that there is nothing like a public office. An offi- e must be at common law, or by authority, either from the crown, or constituted bj act of parliament. This is tieitlier; it is merely an. employment arising out of a contract with the parish. If tins were a public office, any person that performs any special services for the parish may be a public .officer. If therf; was any distinction between a public office and a public charge, there might be some difficulty; but I can see no difference ; a public charge is something of a public nature, imposed in virtue of an •ffiee. 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 jm annual agreement; but even that is explained by the party himself, w ho determines the contract."
Gkose, J. Was absent from indisposition.
Lawrence, J. " If the pauper has gained a
settlement, it is in consequence of that which is ren- Ibo6. dered equivalent to notice, by the stat. 3 and 4 W. J^jcin* 111. t, 11, «. 6. He must, therefore, make out that versus
.... , . , the. Inhabilantf
which the statute has required, and we cannot construe of MiRJOAltany 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, h simply, w hether this is an office or not? In the King v. Melhorne,* 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, unless that is confined to an office, it would be going a great way indeed; for suppose a man were to contract annuully to keep the parish church in repair, that might be considered a public charge."
Le Blanc, J. "This man is not within the statute Sand 4 W. III. c. 11, s. 6, unless we can consU der 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 parish and the public, upon a contract made with them. Mow, 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 only 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 his services, and might have ceased to employ him, had it not been for the terms of their