without any writ or other proceeding to authorise the same, and such sequestration shall accordingly be issued as the same might have been issued upon any writ of levari facias founded upon any judgment against such bankrupt: provided always that the sequestrator shall allow out of the benefice to the bankrupt, whilst he performs the duties of the parish or place, such an annual sum payable quarterly as the bishop of the diocese in which the benefice is situated shall direct; and it shall be lawful for the bishop to appoint to such bankrupt such or the like stipend as by law he might have appointed a curate duly licensed to serve such benefice in case the bankrupt had been non-resident."

meet that defect in the old Act, and upon the section of the Act of Geo. 4 the case of

Bishop v. Hatch, 1 Ad. & E. 171, expressly decided that the assignees of an insolvent did not acquire any title to the profits until they had obtained a sequestration, and that their sequestration was not valid against any previous sequestration. The language of section 135 of the Bankruptcy Act is substantially the same as that of the Insolvent Act.

Section 184 of 12 & 13 Vict. c. 106, only applies to property which would have passed to the assignees. Parry v. Jones, 1 C. B. (N. s.) 339,

Mellish, Q.C., in reply, cited,

Chitty's Statutes, note to 12 & 13 Vict. 106, s. 184.

By 12 & 13 Vict. c. 106, section 184, it is provided, "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."

Mellish, Q.C. (W. Wills with him), for the plaintiff. It is admitted that a writ of sequestration is only binding from and after publication,

Doe d. Morgan v. Bluck, 3 Camp. 447; Waite v. Bishop, 1 C. M. & R. 507; Bennet v. Apperly, 6 B. & C. 634. Here, before the publication of the now defendant's writ of sequestration, the clergyman had committed an act of bankruptcy. It is contrary to the policy of the bankrupt laws that any creditor should, after the commission of an act of bankruptcy, be able to do anything which would give him an advantage over the other creditors, and therefore the sequestration of the defendant is void, and the profits of the benefice vested in the assignee, either from the act of bankruptcy or from the assignee's sequestration. The decisions upon

the Insolvent Acts are, no doubt, adverse to this

view; but, by section 135 of the new Bankruptcy Act, the words, and, it is submitted, the intent of the law,

are altered.

defendant has a security for his debt, within the Next, if the defendant's sequestration is valid, the

meaning of 12 & 13 Vict. c. 106, s. 184, and is therefore entitled to a rateable part only.

Pack v. Tarpley, 9 Ad. & E. 468.

Lush, Q.C. (Field with him), for the defendant.

Under the old Insolvency Act it was held that ecclesiastical property of this description would not pass to the insolvent's assignees,

Arbuckle v. Cawton, 3 B. & P. 321.

The 7 Geo. 4, c. 57, s. 28, and of 1 & 2 Vict. c. 110, s. 55, which are identical, were intended to

until they have been actually brought into the bank-
rupt's estate by sequestration. If it had been in-
would have been different; but the language of the new
tended that the law should be otherwise, the language
Bankruptcy Act, as in the Insolvent Acts, is, that
the assignees may cause a sequestration to be issued,
and that then the profits of the benefits shall form
part of the bankrupt's estate. In both the Insolvency
and the Bankruptcy Acts, it was clearly intended that
a bankrupt beneficed clergyman should be in a some-
what anomalous position, and I, for my part, can
easily understand that it was the policy of the Legis
lature to make this species of property available to
pay the bankrupt's debts, and, at the same time, to
prevent it from being placed exactly on the same
footing with other property. Under the Insolvency
at once vest in the assignees, but it was necessary that
Acts, this part of the estate of the insolvent did not
in order to reduce it into their possession. Now,
they should first cause a writ of sequestration to issue
according to the decided cases upon those Acts, a prior
Debtors' Act and the Bankruptcy Act is, that while
sequestration was always good against a latter one.
The only difference in the language of the Insolvent
the former says that the assignees may sequestrate the
profits "for the payment of the debts of any such
prisoner," the latter says, that the assignees may
obtain a sequestration of the profits,
"which profits

shall form part of the bankrupt's estate, and be applied
accordingly." Practically that is no difference at all.
I therefore think, that the Legislature intended that
section of the Insolvent Debtors Act, by which it
the 135th section should correspond with that 55th
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 performance 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 only one dwelling-house and one householder in that place. In the census of 1861 the population of Upper Eldon was returned as thirteen persons. For many years past there have been no paupers in Upper Eldon, though some of the labourers working on the farm there have become chargeable to neighbouring parishes. On the 16th of October, 1858, the Poor Law Board made an order annexing Upper Eldon as an extraparochial place to the Stockbridge Union. This order was, however, afterwards rescinded, and Upper Eldon was annexed to the union as a parish. The evidence upon the question, whether Upper Eldon was a parish or an extra-parochial place, was not very precise. One 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 edition of the Topographical Dictionary of England, by Samuel Lewis, purporting to be published in 1842,

As to the question, whether the 184th section of 12 & 13 Vict. c. 106, applies, so as to put the defendant, who is the creditor, who obtained the first sequestration, in the position of a creditor who has obtained security for his debt, I think Mr. Lush's explanation is the true one, and that the 184th section only applies to such property as would have passed to the assignees upon the bankruptcy if the creditor had not held a security upon it. And as I think that this kind of property cannot pass to the assignees except by sequestration, it follows that the 184th section does not apply.

BLACKBURN and MELLOR, JJ., agreed.

Q. B.

23 JAN. 1864.

}

REGINA v. COUSINS.

Overseers-Appointment of one only-Parish-Upper Eldon is described in these words, 'Eldon, an

Extraparochial Place-43 Eliz. c. 2, s. 1— 20 Vict. c. 19, ss. 1 and 2.

The provision of the 43 Eliz. c. 2, s. 1, that the number of householders appointed overseers of the poor in each parish shall be "four, three, or two," is not directory only. An appointment, therefore, of one overseer, even for a parish in which, there being but one house holder, it is impossible to appoint more, is bad. E was a place entered separately in the report of the

Registrar-General on the last census and therein described as extraparochial. It was also described in a

topographical dictionary of England as follows:-" An extraparochial place containing nineteen inhabitants;

the living is a rectory valued in the King's books at 21., patron, John Hussey. The church, dedicated to St. John the Baptist, is dilapidated and unfit for service." In the deeds relating to it wherever it is particularly described, it is styled the "rectory," 'manor,” or “parish," of E. The tithes were duly commuted, and have always been paid to the incumbent for the time being:

66

Held, that E was not within the 20 Vict. c. 19, "a place entered separately in the report of the RegistrarGeneral on the last census which now is or is reputed to be extra-parochial," and that, therefore, it was not a place for which one overseer only could be appointed under section 2 of that Act.

This case came on for argument upon a rule obtained by Giffard in Michaelmas Term last, calling on the prosecutors herein to show cause why a certain appointment or order under the hands and seals of W. H. Stanley, Esq., and the Rev. Thomas H. Tragett, dated the 26th of March, 1863, nominating and appointing James Cousins to be overseer of the parish of Upper Eldon should not be quashed.

extra-parochial place in the hundred of King's Sombourn, north division of the county of Southampton, four-and-a-half miles south-east from Stockbridge, containing nineteen inhabitants; the living is a rectory valued in the king's books at 21. Patron, John Hussey, Esq. The church, dedicated to St. John the Baptist, is dilapidated and unfit for service.' In the Registrar-General's report on the census of 1851, Upper Eldon was entered separately and described as extraparochial. On the other hand another affidavit stated

that in all the deeds relating to Upper Eldon, whenever it is particularly described, it is styled the and in no case is it otherwise described, and that the "rectory," "manor," and "parish" of Upper Eldon, tithes were duly commuted for the sum of 45l., and have always been paid to the incumbent for the time being. The following are the sections of the Acts upon which this question arises :

The 20 Vict. c. 19, s. 1, provides, "That after the 31st of December, 1857, every place entered separately in the report of the Registrar-General on the

last census, which now is or is reputed to be extraparochial, and wherein no rate is levied for the relief of the poor, shall for all the purposes of the assessment to the poor-rate, and the relief of the poor. . . . be deemed a parish for such purposes, and shall be designated by the name which is assigned to it in such report; and the Justices of the Peace having jurisdiction over such place, or over the greater part thereof, shall appoint overseers of the poor therein."

Section 2. "If in any extra-parochial place it shall appear to the Justices that two overseers cannot conveniently be appointed from the inhabitant householders thereof, or are not required for such place, such Justices may appoint one only."

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

churchwardens of every parish, and four, three, or two substantial householders there, as shall be thought meet, having respect to the proportion and greatness of the same parish, to be nominated yearly in Easter week, or within one month after Easter, under the hand and seal of two or more Justices of the Peace of the county, shall be called overseers of the poor of the same parish."

H. Bullar and Poulden showed cause.

Upper Eldon being an extra-parochial place-or, at all events, reputed to be so--and being entered separately in the Registrar-General's report, the appointment of one overseer is good under the 20 Vict. c. 19, s. 2. But, even assuming it to be a parish, this ap-it extra-parochial. pointment is not bad on the face of it, for it has been held that, under the 43 Eliz. c. 2, s. 1, the appointment of one overseer only was good on the face of it, as all the overseers need not be appointed uno flatu. Rex v. Morris, 4 T. R. 550. [BLACKBURN, J.-But we know in this case that it was not intended to follow this up by the appointment of another overseer, since that was under the circumstances impossible.]

Although it has been held that five overseers cannot be appointed under the statute of Elizabeth, it has never been decided that one may not be appointed where it is impossible to appoint more.

They referred to

Mytton v. Churchwardens of Thornbury, 29 L. J.
M. C. 109;

The Overseers of Staple Inn v. Holborn Union,

2 N. R. 331; 32 L. J. M. C. 181; Rex v. Sparrow, 2 Strange, 1123.

Giffard, in support of the rule.

It is clear that it must be made out that this place "now is or is reputed to be extra-parochial," in order that the 20 Vict. c. 19, may apply. It is not enough that it should be entered separately in the Registrar's report of the last census. Now, the affidavit which states that it is reputed to be extra-parochial, goes on to state facts which make it manifest that it is a

parish. Then, under the 43 Eliz., the appointment cannot stand, as the authorities are clear that the provision, with regard to the number of overseers, is not merely directory. He cited,

Rex v. Inhabitants of Clifton, 2 East, 168.

BLACKBURN, J.-In this case we must say that the appointment of the defendant as overseer is bad, and must be quashed. The first question arises on the 20 Vict. c. 19, whether this is such a place as to be under the 2nd section of that Act, by which the Justices may appoint one overseer only for an extra-parochial place. On that, the 1st section of the Act says that "every place entered separately in the report of the

Now, if this had proved to be a district which was
perhaps in truth part of a parish, but which had
acquired the repute of being extra-parochial, and had
been entered separately by the Registrar-General in
his report, the effect of the statute would be, that in
future it should not be open to any one to say that it
was part of the parish to which it belonged. But
when we look at the affidavits, it appears that this
was not such an extra-parochial place. It had a
rectory and church, and there has actually been a
rector appointed; but the rectory has very few in-
habitants, and only one householder, and the church
has become dilapidated. There appear to have been
no poor in it for a long time, but that does not make
It is true the Registrar has 50
reported it, and in the affidavits a book is cited in
which it is stated to be extra-parochial; but then the
writer goes on to state that which shows that it is not
really a place reputed to be extra-parochial, and there-
fore it does not come under section 1 of the 20 Vict.
c. 19. Then we are thrown back on the statute of
Eliz., and have to say, whether in this case, where
there is a parish in which there is one householder
only, the Justices may appoint one overseer, because
there are not two to appoint. I can find nothing in
the statute of Eliz. to enable them to do so. It says,
that "four, three, or two" substantial householders
shall be nominated, and we cannot construe that to
mean four, three, or two, or one if you cannot get
four, three, or two.
Mr. Bullar argued that there is
no case in which it has been held that the appoint-
ment of one is bad, and that there are many where it
has been decided that if you were going to appoint
two, the appointment of one alone would not be bad;
but that is only where there is really an intention of
appointing two. I think the true effect of the cases is
that stated in Steer's Parish Law, 531-2—“There
cannot be more than four nor less than two overseers
appointed, though the appointment of one only is not
bad on the face of it, unless it appear that no other is
appointed by some other order."

I confess that I have some regret in coming to this conclusion, because I cannot help thinking that if it had occurred to the Legislature that there were places where the operation of the Poor Law would be avoided in this way, they would have included them in the provisions of the enactment of the 20 Vict.

MELLOR, J.-I am of the same opinion. In a power of this description the words of the statute are not directory only, but obligatory, the power being one conferred by statute. This is a parish, however, in which the provisions of the statute cannot be com plied with, inasmuch as there is only one householder, and it appears to me, therefore, to be a case not 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.

nurture, or custody of the said child, shall within four calendar months after the birth of such child take, or cause to be taken, the said child to the medical officer or practitioner appointed in the union or parish in which the said child is resident, according to the provisions of the first recited Act, for the purpose of being vaccinated, unless he shall have been previously vaccinated by some duly qualified medical practitioner, and the vaccination duly certified, and the said medical officer or practitioner so appointed shall, and he is hereby required thereupon, or as soon after as it may conveniently and properly be done, to vaccinate the said child."

"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 c. 43, for the opinion of this Court.

At a Petty Sessions held at Margate on the 25th of November, 1863, an information was preferred by Charles Rayner Pilcher, the person appointed by the Guardians of the Isle of Thanet Union, pursuant to 24 & 25 Vict. c. 59, to institute and conduct proceedings for the purpose of enforcing obedience to the Vaccination Acts against William George Stafford, under sections 2 and 9 of the 16 & 17 Vict. c. 100, for not having had his child vaccinated within three months of its birth, according to the provisions of the said Act, although the Registrar of Births had given due notice in the form directed by the Act.

At the hearing, the defendant admitted that he had failed to have the child vaccinated within three months of its birth, and that it was even then unvaccinated; but he stated, and it was not denied, that on the 18th of February, 1863, he had been convicted on a similar information for not having the said child vaccinated, and that he had paid on that occasion 2s. 6d. for penalty, and 9s. 6d. for costs. He therefore contended that he could not be again punished

for the same offence.

The appellant, on the other hand, referred to the concluding words of the 24 & 25 Vict. c. 59, s. 2, which provides that "proceedings for enforcing penalties under any of the said Acts on account of neglect to have a child vaccinated, may be taken at any time during which the parent or guardian is in default." And he contended that so long as the parent was in default he might be convicted from time to time until he had complied with the requirements of the Act.

The magistrates, however, refused to adopt this view, and dismissed the information, but they stated this case for the opinion of the Court.

the registration of the birth of any child not already vaccinated within the said sub-district, give notice in writing in manner hereinafter directed, and according to the form of schedule hereinafter inserted marked (C), to the father or mother of such child, or in the event of the death, illness, absence, or inability from sickness or otherwise of the father and mother, then to the person upon whom the care, nurture, or custody of such child shall have devolved, that it is the duty of such father, or mother, or person, having the care, nurture, or custody of such child as aforesaid, to take care that the said child shall be vaccinated in the manner directed by this Act,

and if after

such notice the father or mother of the said child, or the person so having, as aforesaid, the care, nurture, or custody of the said child, shall not cause such child to be vaccinated, or shall not on the eighth day after the vaccination has been performed, take, or cause to be taken, such child for inspection, according to the provisions in this Act respectively contained, then such father, or mother, or person having the care, nurture, or custody of such child as aforesaid, so offending, shall forfeit a sum not exceeding twenty shillings."

J. Thompson argued on behalf of the appellant, and contended that the object of the Act, which was to render vaccination compulsory, would be entirely frustrated if the view taken by the magistrates was to prevail.

The respondent was not represented by counsel.

COCKBURN, C.J.-I am of opinion that our judgment must be for the respondent. I quite agree that it is clear that the continuous omission of the parent 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

c. 100, on which the question arises :

Section 2. "The father or mother of every child born in England or Wales after the first day of August, one thousand eight hundred and fifty-three, shall within three calendar months after the birth of the said child, or in the event of the death, illness, absence, or inability of the father and mother, then the person who shall have the care,

within the mischief which the Legislature intended to remedy as the not performing the duty within the prescribed time. But it is equally clear that this mischief is not met by the provisions of the Act, and I think that the only remedy is to make it the subject of fresh legislation.

Section 2 of the Act requires the parent or guardian to get the child vaccinated within three or four months

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 w as thereupon obtained to set ing from that construction, but that must be remedied by the Legislature.

aside this ca. sa. and the order on which it was founded. Several affidavits were filed upon this rule, in one of which Mobbs stated that the affidavit made by him on Judgment for the respondent. the hearing of the summons was obtained from him while