and tenements demised to the defendant) for and towards the discharge of the said parish of Corney, for the providing for the plaintiff's wife:' and that with the said warrant, they, the said churchwardens and overseers, should appear at the next Quarter Sessions for the county, and certify then and there what they should have done in execution of the said warrant. The plea then stated, that at such next Quarter Sessions, holdeu on 13th of July, 1801, the said order was, in pursuance of the statute, confirmed by the Court; and the Court did then and there order the said churchwardens and overseers, &c. to receive 71. 16s. rent of the rents and profits of the lands and tenements of the plaintiff at' B. in the parishes of B. and W. &c. being the premisses so demised to the defendant, for and towards the discharge of the said parish of Corney for the providing for the said D. S. the plaintiff's wife; and then the plea alleged payment of the said 77. 16s. parcel of the rent, by the defendant, by virtue of such order. The replication, after accepting the tender of the 2/. 146. paid into Court, and traversing the payment of the 157. 16s. residue, as stated in the 2d plea, and the sums alleged to be due by way of set-off in the 3d plea, pleaded as to the said sum of 74. 16s. in the 4th plea mentioned; that before the said 25th of March, 1803; viz. on 1st of October, 1801, the said 77. 16s. în the said order of Sessions mentioned, was paid by the defendant' to the then churchwardens and overseers, &c. of Corney, pursuant to the said order of Sessions; and that afterwards, on the 25th of March, 1802, the said 71. 16s. was deducted by the defendant, and allowed to him by the plaintiff out of the rent,' &c. which on the day and year last aforesaid became due from the defendant to the plaintiff, and thereby and thereout was paid and satisfied to the defendant. Rejoinder to the last replication; that the said sum of 71. 16s. mentioned in the 4th plea to have been so paid by the defendant, was another and different sum of 71. 16s. than the 71. 16s. so deducted and allowed as aforesaid; namely, for the second year's payment under the said order' in the said plea mentioned; which said last-mentioned sum has not been deducted, or allowed, or paid by the plaintiff. To this there was a general demurrer, and joinder.

Holroyd in support of the demurrer contended, upon the

construction

1805.

STARLE

against DIXON.

[165]

[166]

1805.

STABLE against DIZON.

[ 167 ]

construction of the stat. 5 Gen. 1, c. 8, s. 1. 1st, That the original order was void. 2dly, That the Sessions had no original jurisdiction; and, consequently, nothing done by them upon a void order could make it good. Sdly, That if the order of Sessions, correcting and limiting as it did the order of the justices, were good, it had been complied with by the plaintiff. 1st, The statute enables the officers of the parish where any wife or child shall be left a charge upon them by the husband or father going away," Upon application to, and by warrant or order from any two justices of the peace, to take and seize so much of the goods and chattels, and re ceive so much of the annual rents and profits of the lands and tenements of such husband, father, &c. as such two justices shall order or direct, for or towards the discharge of the parish where such wife, child, &c. are left, for the bring. ing up and providing for such wife, &c.: which warrant or order being confirmed at the next Quarter Sessions, it shall be lawful for the justices of such Quarter Sessions to make an order for the overseers, &c. to dispose of such goods and chattels by sale or otherwise, or so much of them for the purposes aforesaid as the Court shall think fit; and to receive the rents and profits, or so much of them, as shall be or dered by the Sessions as aforesaid, of his lands, &c. for the purposes aforesaid." The original order then is void, either as being prospective to seize the rents and profits for future expences to be incurred, and not confined to the discharge of expences already incurred; or admitting it might be prospective, in not having ascertained the quantum of relief required by the parish; for the parish-officers are only to receive so much of the rents, &c. as two justices shall order, &c. Supposing that the statute meant that the order should be prospective, the justices should have found what was reasonable for the maintenance of the family; and have adjudged that particular sum to be continued to be received and applied during the exigency: but it was never intended to authorize an indefinite seizure of a man's rents and profits generally, and to make the parish-officers trustees for the surplus. There is no authority given by the statute to the justices to discharge such an order when once made; and, therefore, it ought at least to be limited, in the terms of it,

to

to the necessity which occasioned it. In R. v. Chaffey (a) an order of justices made upon the 13 and 14 Car. 2, c. 12, for seizing the defendant's goods to secure the parish from the maintenance of his bastard child, was quashed, because th justices had not ascertained the quantum. 2dly, If the original order were bad, the Sessions could not make it good. They cannot originate an order of this sort; they have only power given them to confirm it, and direct a sale of the goods; though it seems that they may vary the sum before directed to be levied. But 3dly, If the Sessions could remedy any defect in the original order by ascertaining the sam to be raised, they have fixed the sum at 71. 16s, and that sum is admitted on the pleadings to have been once before paid and deducted out of the rent. The order, therefore, is functus officio; for it does not state that the same sum shall be raised annually, even if that could have been supported.

1805.

STABLE

against Dixox.

Wigley, contra. The order in question follows the pre- [168] cedent in Burn's Justice, which being in general use, the Court will incline to support it, if possible. The statute meant that property to any extent which a man had, who deserted his home and left his family a charge on the pa rish, should be taken and applied to their relief. If the whole were necessary to be taken, the justices in whose discretion the quantum was left, might direct the whole to be taken, or only a part of it. Here they have adjudged that the whole should be taken "towards the discharge of the parish for providing for the plaintiff's wife." The order was aftewards confirmed as the statute requires by the Sessions, who directed that 77. 16s. rent of the rents and profits of the plaintiff's lands at B. should be received by the pa rish officers that, though not formally expressed, must mean so much of the annual rents; for the order, which was to seize the whole, is also confirmed generally, and it must all be taken together. It is necessary that the order should be to seize generally, otherwise it would only apply to by gone rents, which the tenant might pay over before any or der could be obtained. The seizure is only that the rents may be forth-coming to answer the purpose; for till con

(a) 2 Ld. Ray. 858.

firmation

1805.

STABLE against DIXON.

[169]

[170]

firmation at the Sessions, nothing can be applied in aid of the parish. If the order of confirmation had meant to confine the parish-officers to receive only one sum of 71. 16s. out of the rents then seized, it would have said so. The order is not more general than the statute itself, which directs the parish-officers to take and seize so much of the annual rents and profits as the justice shall direct; which shews that it was meant to operate prospectively and that appears also from the application directed of the property taken to the bringing up and providing for the wife and children: and there is the less reason for narrowing this construction which has hitherto prevailed, because the party may at any time apply to the Sessions for a discharge of the order, on returning to his family and paying up his arrears. In Jenkins's case (a) an order of Sessions that the defendant should pay 25. a week towards the support of his father, till that Court should order the contrary, was holden good; because a time was limited; and if an estate happened to fall to the father before, the defendant might apply to the justices. The case of R. v. Pennoyr (b), where an order for relief appointing the defendant to pay 2s. 6d. a week, without any limitation of time, was quashed, may seem contrary; but no cause was shewn. Besides, the replication, so far from demurring to the order stated in the plea, as bad in law, admits that the first payment under it was good, and objects only to any further payment: and as long as that order stands unreversed by this Court, unless it be totally void on the face of it, it is sufficient, being made by a Court of competent jurisdiction, to justify the tenant who has acted under it. In Chaffey's case, the order was to seize what the overseers thought proper; which was contrary to the words of the act, leaving it in the discretion of the justices themselves.

Lord ELLEN BOROUGH, C. J. The stat. 5 Geo. I, was made to prevent a great public inconvenience arising from persons going out of their parishes, and leaving their families a burden to the parishioners, although they had substance of their own out of which they might be maintained: and it gave to two magistrates a power of appropriating to this purpose so much of the goods and chattels, and so much of

the annual rents and profits of the party as they should or der and direct: or as the Sessions afterwards, to whose confirmation such order is to be submitted, should think fit. But it never was meant to invest the parish-officers or the magistrates with a right to take indefinitely all the property of such a person, without apportioning how much of it was to be taken for that purpose. The language of the act is, That the goods and chattels, and rents and profits, are to be taken for or towards the discharge of the parish; which imports that it was to relieve the parish from a burthen already incurred; and which was, therefore, capable of being then ascertained. But even if their power extend to the making a prospective order for future maintenance likely to be incurred, at all events the justices are to ascertain how much is to be taken; for the act expressly says, That the parish-officers shall take so much, &c. as the justices shall order. That makes it imperative on the magistrates to ascertain the sum; but if an order like this could be sustained, it would open a door to great vexation. If any person happened to go away, leaving his family a charge on the parish, it would authorize the justices to make the parishofficers trustees for the whole of his property to whatever amount. The original warrant then being made in the exercise of an indefinite, instead of a limited authority; and being void in that respect, the next question is, Whether it were capable of receiving confirmation at the Sessions? And assuming that it could, as capable of limitation in respect of the sum to be taken by the parish-officers (for they seem there to have abandoned the ground of an indefinite seizure) then, Can the order of Sessions be sustained beyond the terms of it, as an order to receive the sum of 71. 16s.? Admitting that it might be good to that extent as an or der to receive a definite sum. (subject, however, to the objection to it as a confirmation of an original indefinite order of seizure) the answer is, That the sum is already paid and allowed. But taking it, as is now contended for, as an order to receive that sum annually out of the rents and profits without any limitation of time, the objec tion applies that for want of such limitation, "as till some other order made," it is void by the authority of the case.

mentioned.

1805.

STABLE

against DIXON

[171]