Imágenes de páginas

s. 184.

without any writ or other proceeding to authorise meet that defect in the old Act, and upon the section the same, and such sequestration shall accordingly be of the Act of Geo. 4 the case of issued as the same might have been issued upon any Bishop v. Hatch, 1 Ad. & E. 171, writ of levari facias founded upon any judgment expressly decided that the assignees of an inselvent against such bankrupt : provided always that the did not acquire any title to the profits until they hal sequestrator shall allow out of the benefice to the obtained a sequestration, and that their sequestration bankrupt, whilst he performs the duties of the parish was not valid against any previous sequestration. The or place, such an annual sum payable quarterly as the language of section 135 of the Bankruptcy Act is subbishop of the diocese in which the benefice is situated stantially the same as that of the Insolvent Act.

to appoint to such bankrupt such or the like stipend as property which would have passed to the assignees. by law he might have appointed a curate duly licensed Parry v. Jones, 1 C. B. (N. 8.) 339, to serve such benefice in case the bankrupt had been non-resident."

Mellish, Q.C., in reply, cited, By 12 & 13 Vict. c. 106, section 184, it is provided,

Chitty's Statutes, note to 12 & 13 Vict. 106, “that no creditor having security for his debt, or having any attachment in London, or in any other

COCKBURN, C.J.-Our judgment must be for the place, by virtue of any custom there used, of the goods defendants. The question turns upon the construction and chattels of the bankrupt, shall receive upon any of section 135 of the Bankruptcy Act, 1861; and I such security or attachment more than a rateable part must say, that, independently of the decisions upon of such debt, except in respect of any execution or the Insolvent Acts upon this point, I should have put extent served and levied by seizure and sale upon, the same construction upon this section as was there or any mortgage of or lien upon any part of the pro- put upon the sections of the Insolvent Acts. That is perty of such bankrupt before the date of the fiat, or

to say, I think that the profits of the living of a bankthe filing of a petition for adjudication of bankrupt beneficed clergyman do not vest in his assignees ruptcy."

until they have been actually brought into the bankMellish, Q.C. (W. Wills with him), for the plaintiff. rupt's estate by sequestration. If it had been inIt is admitted that a writ of sequestration is only would have been different; but the language of the nex

tended that the law should be otherwise, the language binding from and after publication, Doe d. Morgan v. Bluck, 3 Camp. 447 ;

Bankruptcy Act, as in the Insolvent Acts, is, that Waite v. Bishop, 1 C. M. & R. 507 ;

the assignees may cause a sequestration to be issued, Bennet v. Apperly, 6 B. & C. 634.

and that then the profits of the benefits shall form Here, before the publication of the now defendant's part of the bankrupt's estate. In both the Insolvency writ of sequestration, the clergyman had committed and the Bankruptcy Acts, it was clearly intended that an act of bankruptcy. It is contrary to the policy of a bankrupt beneficed clergyman should be in a somethe bankrupt laws that any creditor should, after the what anomalous position, and I, for my part, can commission of an act of bankruptcy, be able to do easily understand that it was the policy of the Legisanything which would give him an advantage over the lature to make this species of property available to other creditors, and therefore the sequestration of the pay the bankrupt's debts, and, at the same time, to defendant is void, and the profits of the benefice vested prevent it from being placed exactly on the same in the assignee, either from the act of bankruptcy or

footing with other property. Under the Insolvency from the assignee's sequestration. The decisions upon at once vest in the assignees, but it was necessary that

Acts, this part of the estate of the insolvent did not the Insolvent Acts are, no doubt, adverse to this view; but, by section 135 of the new Bankruptcy Act, they should first cause a writ of sequestration to issue

in order to reduce it into their possession. Now, the words, and, it is submitted, the intent of the law, are altered.

according to the decided cases upon those Acts, a prior Next, if the defendant's sequestration is valid, the sequestration was always good against a latter one. defendant has a security for his debt, within the The only difference in the language of the Insolvent meaning of 12 & 13 Vict. c. 106, s. 184, and is there the former says that the assignees may sequestrate the

Debtors' Act and the Bankruptcy Act is, that while fore entitled to a rateable part only. Pack v. Tarpley, 9 Ad. & E. 468.

profits “for the payment of the debts of any such

prisoner," the latter says, that the assignees may Lush, Q.C. (Field with him), for the defendant. obtain a sequestration of the profits, “which profits

Under the old Insolvency Act it was held that occle- shall form part of the bankrupt's estate, and be applied siastical property of this description would not pass to accordingly.” Practically that is no difference at all the insolvent's assignees,

I therefore think, that the Legislature intended that Arbuckle v. Cawton, 3 B. & P. 321.

the 135th section should correspond with that 55th The 7 Geo. 4, c. 57, s. 28, and of 1 & 2 Vict. section of the Insolvent Debtors Act, by which it c. 110, s. 55, which are identical, were intended to was enacted that the profits of a benefice should be

acquired, in case of the clergyman's insolvency, by From the affidavits filed the following facts appeared : means of sequestration only, so as to insure the proper -James Cousins, who was appointed overseer by the performince of those sacred offices for which this order complained of, was the only householder in species of property by law exists.

Upper Eldon, and for a hundred years there has been As to the question, whether the 184th section of only one dwelling-house and one householder in that 12 & 13 Vict. c. 106, applies, so as to put the de place. In the census of 1861 the population of Upper fendant, who is the creditor, who obtained the first Eldon was returned as thirteen persons. For many sequestration, in the position of a creditor who has years past there have been no paupers in Upper Eldon, obtained security for his debt, I think Mr. Lush's though some of the labourers working on the farm explanation is the true one, and that the 184th section there have become chargeable to neighbouring parishes. only applies to such property as would have passed on the 16th of October, 1858, the Poor Law Board to the assignees upon the bankruptcy if the creditor made an order annexing Upper Eldon as an extrahad not held a security upon it. And as I think that parochial place to the Stockbridge Union. This order this kind of property cannot pass to the assignees was, however, afterwards rescinded, and Upper Eldon except by sequestration, it follows that the 184th was annexed to the union as a parish. The evidence section does not apply.

upon the question, whether Upper Eldon was a parish

or an extra-parochial place, was not very precise. One BLACKBURN and MELLOR, JJ., agreed.

of the affidavits, however, stated that “in and long Judgment for the defendant. before the year 1857 Upper Eldon was or was reputed

to be extra-parochial; and in a copy of the fifth Q. B.

} REGINA V. COUSINS. edition of the Topographical Dictionary of England, by 23 JAN. 1864.

Samuel Lewis, purporting to be published in 1842, OverseersAppointment of one only-Parish— Upper Eldon is described in these words, 'Eldon, an Extraparochial Place—43 Eliz. c. 2, s. 1– extra-parochial place in the hundred of King's Som

bourn, north division of the county of Southampton, 20 Vict. c. 19, ss. 1 and 2.

four-and-a-half miles south-east from Stockbridge, conThe provision of the 43 Eliz. c. 2, s. 1, that the taining nineteen inhabitants ; the living is a rectory number of householders appointed overseers of the

valued in the king's books at 21. Patron, John

poor in each parish shall be four, three, or two," is not Hussey, Esq. The church, dedicated to St. John the directory only. An appointment, therefore, of one over

Baptist, is dilapidated and unfit for service." In the seer, even for a parish in which, there being but one

Registrar-General's report on the census of 1851, Upper houscholder, it is impossible to appoint more, is bad.

Eldon was entered separately and described as extraE was a place entered separately in the report of the parochial. On the other hand another affidavit stated Registrar-General on the last census and therein de that in all the deeds relating to Upper Eldon, when

ever it is particularly described, it is styled the scribed as extraparochial. It was also described in a topographical dictionary of England as follows :-"An and in no case is it otherwise described, and that the


;” “manor,” and “parish” of Upper Eldon, extraparochial place containing nineteen inhabitants ; the living is a rectory valued in the King's books at 21., always been paid to the incumbent for the time being.

tithes were duly commuted for the sum of 45l., and have patron, John Hussey. The church, dedicated to St. John

The following are the sections of the Acts upon the Baptist, is dilapidated and unfit for service.In the deeds relating to it wherever it is particularly described,

which this question arises :it is styled the "rectory," "manor," or " parish,” of the 31st of December, 1857, every place entered sepa

The 20 Vict. c. 19, s. 1, provides, “That after E. The tithes were duly commuted, and have always rately in the report of the Registrar-General on the been paid to the incumbent for the time being :

last census, which now is or is reputed to be extraHeld, that E was not within the 20 Vict. c. 19, "a parochial, and wherein no rate is levied for the relief place entered separately in the report of the Registrar of the poor, shall for all the purposes of the assessGeneral on the last census which now is or is reputed ment to the poor-rate, and the relief of the poor . : to be extra-parochial,and that, therefore, it was not be deemed a parish for such purposes, and shall be a place for which one overseer only could be appointed designated by the name which is assigned to it in such under section 2 of that Act.

report; and the Justices of the Peace having jurisdic. This case came on for argument upon a rule obtained tion over such place, or over the greater part thereof, by Giffard in Michaelmas Term last, calling on the shall appoint overseers of the poor therein." prosecutors herein to show cause why a certain appoint. Section 2. “If in any extra-parochial place it shall ment or order under the hands and seals of W. H. appear to the Justices that two overseers cannot conStanley, Esq., and the Rev. Thomas H. Tragett, dated veniently be appointed from the inhabitant housethe 26th of March, 1863, nominating and appointing holders thereof, or are not required for such place, such James Cousins to be overseer of the parish of Upper Justices may appoint one only.” Eldon should not be quashed.

By the 43 Eliz. c. 2, s. 1, it is enacted, “That the

churchwardens of every parish, and four, three, or two Now, if this had proved to be a district which was substantial householders there, as shall be thought perhaps in truth part of a parish, but which had meet, having respect to the proportion and greatness acquired the repute of being extra-parochial, and had of the same parish, to be nominated yearly in Easter been entered separately by the Registrar-General in week, or within one month after Easter, under the his report, the effect of the statute would be, that in hand and seal of two or more Justices of the Peace of future it should not be open to any one to say that it the county, shall be called overseers of the poor of the was part of the parish to which it belonged. But same parish.

when we look at the affidavits, it appears that this

was not such an extra-parochial place. It had a H. Bullar and Poulden showed cause.

rectory and church, and there has actually been a Upper Eldon being an extra-parochial place—or, at rector appointed; but the rectory has very few inall events, reputed to be so—and being entered sepa- habitants, and only one householder, and the church rately in the Registrar-General's report, the appoint- has become dilapidated. There appear to have been ment of one overseer is good under the 20 Vict. c. 19,

no poor in it for a long time, but that does not mako s. 2. But, even assuming it to be a parish, this ap- it extra-parochial. It is true the Registrar has so pointment is not bad on the face of it, for it has been reported it, and in the affidavits a book is cited in held that, under the 43 Eliz. c. 2, s. 1, the appoint- which it is stated be extra-parochial; but then the ment of one overseer only was good on the face of it, writer goes on to state that which shows that it is not as all the overseers need not be appointed uno flatu.

really a place reputed to be extra-parochial, and there. Rex v. Morris, 4 T. R. 550.

fore it does not come under section 1 of the 20 Vict. [BLACKBURN, J.-But we know in this case that it

c. 19. Then we are thrown back on the statute of was not intended to follow this up by the appointment Eliz., and have to say, whether in this case, where of another overseer, since that was under the circum- there is a parish in which there is one householder stances impossible.]

only, the Justices may appoint one overseer, because Although it has been held that five overseers cannot there are not two to appoint. I can find nothing in be appointed under the statute of Elizabeth, it has the statute of Eliz, to enable them to do so. It says, never been decided that one may not be appointed that “four, three, or two” substantial householders where it is impossible to appoint more.

shall be nominated, and we cannot construe that to They referred to

mean four, three, or two, or one if you cannot get Mytton v. Churchwardens of Thornbury, 29 L. J. four, three, or two. Mr. Bullar argued that there is M. C. 109;

no case in which it has been held that the appointThe Overseers of Staple Inn v. Holborn Union, ment of one is bad, and that there are many where it 2 N. R. 331 ; 32 L. J. M. C. 181 ;

has been decided that if you were going to appoint Rex v. Sparrow, 2 Strange, 1123.

two, the appointment of one alone would not be bad; Giffard, in support of the rule.

but that is only where there is really an intention of It is clear that it must be made out that this place appointing two. I think the true effect of the cases is “now is or is reputed to be extra-parochial,” in order that stated in Steer's Parish Law, 531-2–“There that the 20 Vict. c. 19, may apply. It is not enough cannot be more than four nor less than two overseers that it should be entered separately in the Registrar's appointed, though the appointment of one only is not report of the last census. Now, the affidavit which bad on the face of it, unless it appear that no other is states that it is reputed to be extra-parochial, goes on

appointed by some other order." to state facts which make it manifest that it is a

I confess that I have some regret in coming to this parish. Then, under the 43 Eliz., the appointment conclusion, because I cannot help thinking that if it cannot stand, as the authorities are clear that the pro- had occurred to the Legislature that there were places vision, with regard to the number of overseers, is not where the operation of the Poor Law would be avoided merely directory. He cited,

in this way, they would have included them in the Rex v. Inhabitants of Clifton, 2 East, 168.

provisions of the enactment of the 20 Vict. BLACKBURN, J.-In this case we must say that the MELLOR, J.-I am of the same opinion. In a power appointment of the defendant as overseer is bad, and of this description the words of the statute are not must be quashed. The first question arises on the 20 directory only, but obligatory, the power being eng Vict. c. 19, whether this is such a place as to be under conferred by statute. This is a parish, however, in the 2nd section of that Act, by which the Justices which the provisions of the statute cannot be commay appoint one overseer only for an extra-parochial plied with, inasmuch as there is only one householder

, place. On that, the 1st section of the Act says that and it appears to me, therefore, to be a case not “every place entered separately in the report of the provided for by the Act. I agree with my brother Registrar-General on the last census, which now is or Blackburn on the 20 Vict. c. 19, that we cannot come is reputed to be extra-parochial,” shall be deemed a to the conclusion that this is other than a parish. parish for the purpose of assessment to the poor-rate.

Rule absolute.

and if after

nurture, or custody of the said child, shall within four Q. B.

PILCHER, Appellant, r. calendar months after the birth of such child take, or

} 27 JAN. 1864. STAFFORD, Respondent. cause to be taken, the said child to the medical officer VaccinationContinued Neglect of Parent, which the said child is resident, according to the pro

or practitioner appointed in the union or parish in Second Information for the same Offence— visions of the first recited Act, for the purpose of 16 & 17 Vict. c. 100, ss. 2 and 9—24 & 25 being vaccinated, unless he shall have been previously Vict. c. 59, s. 2.

vaccinated by some duly qualified medical practitioner,

and the vaccination duly certified, and the said medical Where a parent has once been convicted under 16 & 17 officer or practitioner so appointed shall, and he is Vict. c. 100, ss. 2 & 9, for neglecting to have his child hereby required thereupon, or as soon after as it may raccinated within three months of its birth, he cannot, conveniently and properly be done, to vaccinate the although he still neglects to get the child vaccinated, be said child.” a second time convicted.

Section 9. The Registrar of births and deaths in This was a special case, stated under 20 & 21 Vict. every sub-district, shall on or within seven days after 6. 43, for the opinion of this Court.

the registration of the birth of any child not already At a Petty Sessions held at Margate on the 25th of vaccinated within the said sub-district, give notice in November, 1863, an information was preferred by writing in manner hereinafter directed, and according Charles Rayner Pilcher, the person appointed by the to the form of schedule hereinafter inserted marked Guardians of the Isle of Thanet Union, pursuant (C), to the father or mother of such child, or in the to 24 & 25 Vict. c. 59, to institute and conduct event of the death, illness, absence, or inability from proceedings for the purpose of enforcing obedience to sickness or otherwise of the father and mother, then the Vaccination Acts against William George Stafford, to the person upon whom the care, nurture, or custody under sections 2 and 9 of the 16 & 17 Vict. c. 100, for of such child shall have devolved, that it is the duty not having had his child vaccinated within three of such father, or mother, or person, having the care, months of its birth, according to the provisions of the nurture, or custody of such child as aforesaid, to take said Act, although the Registrar of Births had given care that the said child shall be vaccinated in the due notice in the form directed by the Act.

manner directed by this Act, At the hearing, the defendant admitted that he had such notice the father or mother of the said child, failed to have the child vaccinated within three or the person so having, as aforesaid, the care, months of its birth, and that it was even then un nurture, or custody of the said child, shall not cause vaccinated ; but he stated, and it was not denied, that such child to be vaccinated, or shall not on the on the 18th of February, 1863, he had been convicted eighth day after the vaccination has been performed, on a similar information for not having the said child take, or cause to be taken, such child for inspection, vaccinated, and that he had paid on that occasion according to the provisions in this Act respectively 23. 6d. for penalty, and 9s. 6d. for costs. He there-contained, then such father, or mother, or person fore contended that he could not be again punished having the care, nurture, or custody of such child as for the same offence.

aforesaid, so offending, shall forfeit a sum not exceeding The appellant, on the other hand, referred to the twenty shillings. concluding words of the 24 & 25 Vict. c. '59, s. 2, J. Thompson argued on behalf of the appellant, and which provides that “proceedings for enforcing penal contended that the object of the Act, which was to ties under any of the said Acts on account of neglect render vaccination compulsory, would be entirely to have a child vaccinated, may be taken at any time frustrated if the view taken by the magistrates was during which the parent or guardian is in default.” to prevail. And he contended that so long as the parent was in default he might be convicted from time to time until

The respondent was not represented by counsel. he had complied with the requirements of the Act. COCKBURN, C.J.-I am of opinion that our judg

The magistrates, however, refused to adopt this ment must be for the respondent. I quite agree that view, and dismissed the information, but they stated it is clear that the continuous omission of the parent this case for the opinion of the Court.

or guardian to get the child vaccinated, according to The following are the sections of the 16 & 17 Vict. the duty imposed by section 2 of the Act, is as much e. 100, on which the question arises :

within the mischief which the Legislature intended “The father or mother of every to remedy as the not performing the duty within the child born in England or Wales after the first prescribed time. But it is equally clear that this day of August, one thousand eight hundred and mischief is not met by the provisions of the Act, and fifty-three, shall within three calendar months after I think that the only remedy is to make it the subject the birth of the said child, or in the event of the of fresh legislation. death, illness, absence, or inability of the father and Section 2 of the Act requires the parent or guardian mother, then the person who shall have the care, to get the child vaccinated within three or four months

Section 2.

of its birth, and it requires that the Registrar shall and notice of trial given for the first sittings in Hilary give notice that this duty must be performed, and if Term, 1861. This notice was countermanded by Mr. that notice is given and is not complied with, the Preston, the plaintiff's attorney, but the case was offence is complete. But the duty prescribed, on the afterwards set down for trial : ultimately, however, the non-performance of which the offence created by the record was withdrawn, and judgment of non. pros. Act arises, is that of not getting the child vaccinated entered. The defendants (Mary Youens having, in within the prescribed time. And when that offence the meantime, married Mr. Vandebrande) then took is once complete, and the person has been punished, out a suminons, calling on Daniel Turton Johnson the Act has provided no remedy in cases where the to show cause why he should not pay the defendant's parent still neglects. The Registrar can give no fresh costs in this action. This summons was opposed on notice, and the notice which he gives directs the behalf of Mr. Johnson, but Mellor, J., notwithstanding, parent or guardian to bring the child to be vaccinated made the order complained of, directing that the costs within three months of its birth. If any other con should be taxed, and that Mr. Johnson should then struction of the Act were to be held admissible, it pay the amount to the defendants. would follow that every day that the parent omitted The order was made by the learned Judge upon to get the child vaccinated a new offence would be certain affidavits which went to show that Johnson was created, and thus the penalties imposed by the Act the real plaintiff in the action. It appeared that a would attach every day, and the penalties thus accu. memorial of a deed dated 23rd September, 1859, mulated might amount to a very serious sum, which whereby Mobbs conveyed to Johnson all his right and the Legislature never intended should be the case. interest in the premises which were the subject matter If this mischief, which I quite agree is a very serious of this action, had been registered in the Middleser one, is to be remedied, it must be by further legisla. Registry. And Mobbs made an affidavit in which he tion, and it cannot be done by construing the Act to swore that the action was brought on the instructions create a new offence where the Act does not really of Mr. Johnson, and entirely on his account, and that create one.

he was never consulted in the matter.

On the 6th November last the costs not having been BLACKBURN, J.-I also think the Justices have paid, the order of Mellor, J., was made a rule of Court, taken a right view of the construction of the Act. and a ca. sa. was issued against Johnson, and the There is, very probably, considerable mischief result. rule above mentioned was thereupon obtained to set ing from that construction, but that must be remedied aside this ca. sa. and the order on which it was founded. by the Legislature.

Several affidavits were filed upon this rule, in one of MELLOR, J., concurred.

which Mobbs stated that the affidavit made by him on Judgment for the respondent. the hearing of the summons was obtained from him while

in a state of intoxication, and that in reality he was the Q. B. }

Johnson also swore that

plaintiff in this action. MOBBS v. VANDEBRANDE. 29 Jan. 1864.

Mobbs was the real plaintiff, and that the action was

brought for his benefit, Johnson having only assisted EjectmentCosts-Real Plaintiff-Common Law

him with money to enable him to prosecute his claim, Procedure Act, 1852.

and being no further interested in the result. In actions of cjectment where it appears ceedings are not really instituted by the nominal plain- against the rule. It is manifest from the affidavits

The Solicitor-General and Hance now showed causa tif, but are instituted and carried on by some other that Johnson was the real plaintiff in the action, and person himself claiming title to the land, the Court has therefore unless the Judge had no jurisdiction to make jurisdiction to order such person to pay the defendant's this order he was perfectly justified in doing so. In costs.

Doe d. Masters v. Grey, 10 B. & Cr. 615, This case came on for argument upon a rule obtained it was held that the Court might make a person who by Prideaux, in Michaelmas Term last, calling on the was no party to the record pay the costs in an action defendants to show cause why an order of Mellor, J., of ejectment if he was really the defendant in the made in this cause on the 17th June, 1862, and all action. And that the law in this respect is unaltered subsequent proceedings, should not be set aside, and by the Common Law Procedure Act, is shown by the why the writ of ca. sa. issued against Daniel Turton case of Johnson should not be set aside.

Hutchinson v. Greenwood, 4 El. & Bl. 324. The action was in ejectment, and was brought in The decision in the name of the plaintiff, Joshua Mobbs, to recover Doe d. Wright v. Smith, 8 Dowl. 517, certain property which he claimed, either as devisee only shows that the Court will not compel the payment under the will of his grandfather, or as his heir-at-law. of costs by a person who merely assists a party to the The female defendant, then Mary Youens, spinster, record unless such person himself claims an interest in was let in to defend as landlord, and issue was joined, the land. But here Johnson was really seeking to

that the pro

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