1832. Wednesday, By ancient custom a select vestry was to consist of the wardens, and The KING against E. BRAIN. INDICTMENT stated that the defendant on the 16th of March, 11 G. 4., and long before, was an in rector, church- habitant of and residing within the parish of St. Bartholomew the Great, London, and able and liable to serve served the office the office of constable for the said parish, and that at a those who had of upper churchwarden, meeting of the trustees for putting in execution an act and other pa vestrymen. practice in modern times rishioners to be of the 9 G. 3. c. 23., entitled, &c., duly holden on, &c. elected by the The aforesaid, the defendant by the said trustees, so met, consisting of thirteen and more, to wit, J. D. and C. J., &c., then being the churchwardens of the said parish, H. S. and R. B. then being two overseers of the parish, had been to elect as vestrymen those parishioners only who had been fined for not serving the office of upper churchwarden: Held, that they were good vestrymen. By an act of parliament for paving, lighting, and watching the streets of a parish, the rector, churchwardens, overseers of the poor, and vestrymen, were appointed trustees for putting the act in execution. By a subsequent act, the trustees appointed to put the first act in execution, were appointed trustees for executing that act, and the said trustees or any thirteen or more of them were authorised to elect four constables for the parish annually: Held, that the presence of the rector at a vestry for the election of a constable was not necessary if thirteen other trustees were present. The trustees appointed four constables for the year, on the 21st of December 1829. One of the persons so appointed having in March 1830 removed from the parish, and given notice of his removal to the trustees, they elected another: Held, that the trustees having so appointed the four constables for the year, might also, on the removal from the parish of one of the persons so appointed, elect another person in his stead; for that they were not functi officio, and were the proper persons to supply the vacancy. By the custom of the city of London, all persons appointed constables on St. Thomas's Day attend at Guildhall on Plough Monday, and are sworn by the registrar, and those who, when vacancies occur, are appointed at any other period of the year, are sworn in before the registrar at the lord mayor's court office: Held, that that custom applied to all constables in the city of London, in whatever manner appointed, and that a party elected constable by the trustees under the local act, was bound after notice to attend at the lord inayor's court office to be sworn in. Indictment charged, that the defendant being elected to the office of constable, had neglected and refused to take upon himself the execution of the office. The proof was, that he refused to take the oath of office: Held, that that was primâ facie evidence of a refusal to take upon himself the execution of the office: Held also, on motion in arrest of judgment, that the indictment sufficiently charged an offence, by alleging that the defendant had wholly neglected and refused to take on himself the execution of the office, and that it was not necessary to state that he had refused to be sworn. and and nine others named in the indictment, then being vestrymen of the said parish, was duly elected and appointed to be one of the constables of the said parish for preserving the peace, and doing and performing all matters and things relating to the said office of constable for the then remainder of the constable's then present year of office for the said parish, in the room of one T. T., who having been previously elected and appointed one of the constables for the said parish for the then present year, had since gone out of the said parish; whereof the defendant afterwards had notice. Breach, that the defendant not regarding his duty in that behalf, unlawfully, wilfully, obstinately, and contemptuously did neglect and refuse to take upon himself the execution of the said office, although duly required so to do, &c. Plea, not guilty. At the trial before Lord Tenterden C. J., at the London sittings after Michaelmas term 1830, it appeared that by an act, 28 G. 2. c. 37., for the better lighting and cleansing the streets, &c. within the parish of St. Bartholomew the Great, London, and regulating the nightly watch and beadles within the said parish, it was enacted, that the rector, churchwardens, overseers of the poor, and vestrymen of the said parish of St. Bartholomew for the time being, should be trustees for putting in execution all the powers by that act given. By another act, 9 G. 3. c. 23., for amending the former, it was, by section 1., enacted, that the trustees appointed by the former act should also be trustees for putting the present act in execution. And by section 40., after reciting that the number of constables for the said parish was insufficient, it was enacted, that it should be lawful "for the trustees, or any thirteen or more of them, to elect and 1832. The KING against BRAIN. 1832. The KING against BRAIN. and appoint four constables for the parish annually." In pursuance of this act the trustees had, yearly, on the 21st of December, being St. Thomas's Day, or its morrow (whenever that feast fell on a Sunday), chosen four constables, from the passing of the act to the present time. On St. Thomas's Day 1829, the usual annual meeting of the trustees for the choice of constables was held, when T. T. and three other persons were chosen constables for the year ensuing, and sworn in (in usual course) on Plough Monday, and T. T. continued to serve as constable until the 16th of March 1830, when he gave notice to the trustees (who were then assembled in the vestry room) that he had removed out of the parish. The trustees present (being thirteen in number) then proceeded to choose the defendant constable in his room. Several instances (both before and after the act of 9 G. 3.) were proved, where vacancies having occurred in the office of constable by death or removal from the parish, during the year, others had been appointed in the place of the persons so dying or removing. Notice of the appointment was given to the defendant on the day he was elected, and on the 19th of March he was served with a notice requiring him to take upon himself the execution of the office, and personally to appear at the lord mayor's court office, over the Royal Exchange, in the city of London, before the registrar of the said court, or his deputy, on the 20th of March at eleven o'clock in the forenoon precisely, to be sworn in. He did not attend pursuant to the notice. It appeared to be the custom in the city of London, that all persons elected to the office of constable on St. Thomas's Day, should attend at Guildhall on Plough Monday, to be sworn in by the registrar before the the lord mayor; and that those appointed at any other period of the year, should attend at the lord mayor's court office, there to be sworn in before the registrar. The trustees present when the defendant was elected constable, were the two churchwardens, two overseers, and more than nine others who claimed to be trustees as vestrymen of the parish. On an issue tried in the Court of Common Pleas, 9 G. 1., the custom in the parish of St. Bartholomew was found to be, that the rector of the said church for the time being, and the two wardens of the same church for the time being, such parishioners as had served the office of upper churchwarden of the church aforesaid, and such other parishioners who, by the suffrage of the greater number of the said rector and parishioners being members of the vestry of the said parish in vestry parochially assembled, should have been elected to be members of the vestry of the said parish, have been used and accustomed to be members of the vestry of the said parish, and exclusively of the other parishioners to meet in the vestry of the said church, and there to consult on parochial matters. For more than twenty years last past had been the practice for the rector and parishioners being members of the vestry, to elect as vestrymen those parishioners only who had been fined for not serving the office of upper churchwarden; and the vestrymen who acted as trustees at the meeting when the defendant was chosen constable were selected from that particular class. Several objections were taken at the trial, but overruled by Lord Tenterden, and the defendant having been found guilty, it Prendergast, in Hilary term 1831, moved for a new trial, and again stated the principal objections before urged. 1832. The KING against BRAIN. 1832. The KING against BRAIN. urged. First, those trustees who attended as vestrymen when the defendant was elected to the office of constable, were not duly constituted members of the select vestry. According to the custom established on the issue, the rector, churchwardens, those who had filled the office of upper churchwarden, and those who had been elected by the vestry from the parishioners, were to be vestrymen. Here, the vestrymen were selected from those parishioners only who had paid the fine for not serving the office of upper churchwarden. The modern practice of selecting from a particular class was inconsistent with the ancient custom which was general: it was a departure from that custom, and the parties so elected were not duly constituted vestrymen. Secondly, the rector was an integral part of the vestry, Wilson v. M'Math (a), and ought to have been present. Thirdly, the authority given by the act of parliament to the trustees to choose four constables annually, must be strictly pursued; and having exercised that authority on St. Thomas's-day, they were functi officio. It was held under the 43 Eliz. c. 2. s. 1., that when an appointment of overseers had been once legally made, the magistrates were functi officio; Rex v. Great Marlow (b); and to remedy the inconvenience resulting from the death or removal of an overseer from the parish during the year for which he was appointed, it was considered necessary to pass the statute 17 G. 2. c. 38., which enables justices to appoint another in his stead. Fourthly, by the common law, a constable cannot (a) 3 B. & 4.246. note (b). (b) 2 East, 244. vacate |