Hales-owen, and the ten vills abovementioned, which overseers, with one of the churchwardens, have taken order and made rates for the poor; and these have been exclusively applied to the relief of the poor of those places: there is a joint account of all disbursements on the part of the last-mentioned places, and a general settlement of such account at the end of the year, and the expenses are borne by the inhabitants of the lastmentioned places equally. There has always been a distinct constable for the borough of Hales-owen, and one for the residue of the parish, exclusively of the townships of Oldbury, Lutley, Cradley, and Warley, (each of which has its own constable,) but including the ten vills, which have also their headboroughs respectively. All the townships and vills repair their highways separately. Oldbury contains 4651 inhabitants and 924 houses, and is four miles from the borough of Hales-owen, where all meetings respecting rates and the relief of the poor are held. It has a chapel of its own, with a licensed chaplain of the church of England. The contribution to the poor from Oldbury nearly equals that from the borough of Halesowen and the ten vills together; the property of the respective places, according to a valuation made in 1830, is in the same proportion. It was alleged that the parish of Hales-owen could not and cannot, nor could or can the township of Oldbury, reap the benefit of the statute 43 Eliz. c. 2. as to the maintenance of the poor, by reason of the largeness of the parish, the population, and the fact that three of the townships have immemorially maintained their own poor. An application had been made to the justices to appoint two overseers for Oldbury township exclusively, but they had refused. In opposition to the rule, it was stated that the concerns of 1832. The KING against The Justices of SALOP. the poor in the Shropshire part of the parish had immemorially, as was believed, been administered by the churchwardens and by four overseers, appointed respectively for four quarters, (Oldbury being one,) into which that part of the parish was divided; that those overseers paid the money which they collected to a treasurer, and it was expended under the direction of a select vestry for that part of the parish; that the borough of Hales-owen was in a central situation; that the management by four overseers as above had been found beneficial, and no complaint had arisen respecting it till 1830, when a new assessment was made for the Shropshire part of the parish, by which a larger, and, as was represented, a more just share of the contribution to the poor, was imposed upon Oldbury. On a former day of the term Talfourd and Follett shewed cause against the rule (a). This is not a case to which the provisions of the statute 13 & 14 Car. 2. c. 12. s. 21, can be applied. The Shropshire and Worcestershire parts of Hales-owen are to all intents, except as to repairing the mother church, two parishes their overseers are not even appointed by the same justices. The fact therefore that the Worcestershire townships maintain their own poor is of no importance. Rex v. Sir Watts Horton (b) may be cited, but is distinguishable on the ground already mentioned, and also because, there, while the townships were not separated, the parish had a greater number of overseers than the statute of Elizabeth requires (c). Besides, that (a) Before Lord Tenterden C. J., Parke, and Taunton Js. Littledale J. was in the bail court, Patteson J. having gone to Guildhall. (b) 1 T. R. 374. (c) See as to this, Lord Kenyon's observation in Rex v. Newell, 4 T. R. 272., and Rex v. Loxdale, 1 Burn. 445. case case only lays down principles by which the discretion of the Court may be guided, and not an inflexible rule. Lord Ellenborough, in Rex v. Palmer (a), considers it as a matter of discretion, whether or not the Court will, in a particular case, enforce the provisions of 13 & 14 Car. 2. c. 12. The only question here is, whether that part of the parish of Halesowen which is in Shropshire can have the benefit of the statute of Elizabeth, and there is nothing to shew that it cannot. The Attorney General, Campbell and R. V. Richards, contrà. According to the general principle, (recognised in Rex v. Leigh (b) and several other cases,) where it appears that from a distant period a parish has not availed itself of the statute of Elizabeth by maintaining its poor as one parish, that is the strongest evidence that it cannot enjoy the benefit of the statute. And if that clearly appears, as it does on these affidavits, the townships in the parish are entitled respectively to have a distinct appointment of overseers for themselves. Convenience is on the side of adhering to the general rule. The fact that the three townships at present maintaining their own poor severally, lie without the jurisdiction of the Shropshire justices, is no objection, but rather facilitates the course proposed. (Parke, J. In a case at the Old Bailey, Sir T. Ray. 476., where a parish lay in two counties, and it appeared that each part of the parish had distinct officers, made distinct rates, and had used time out of mind to make distinct accounts to the justices of each county, it was resolved by Pemberton C. J., Dolben, and other justices, that in the absence of any 1832. The KING against The Justices of SALOP. (a) 8 East, 416. (b) 3 T. R. 746. 3 N 3 particular 1832. The KING particular usage to the contrary, the parish, in both counties, ought to contribute, but that in this case each division was to be looked upon as a separate parish, and the Court made an order upon one separately, for the maintenance of children.) That was before the decision in Rex v. Sir Watts Horton.(a) Cur. adv. vult. Lord TENTERDEN C. J. now delivered the judgment of the Court. After stating the facts, his Lordship said:-Looking at the parish of Hales-owen as a whole, it is clear there never, within memory, has been one set of overseers for the parish; there has been one set for the townships in Worcestershire, and one for the part of the parish lying in Shropshire. Then the parties applying for the rule relied upon Rex v. Sir Watts Horton (a), which has been followed up in principle by several other cases. On the other hand, a case in Sir T. Raymond, p. 476., was referred to in the course of the argument, where a parish was situate partly in London and partly in Middlesex, each part having distinct officers, making distinct rates, and passing distinct accounts before the justices of the respective counties; and the question being as to the liability to maintain children who were left chargeable to one of the divisions, it was held that each division must be looked upon as a several parish. We have looked into that case, and we think it is no authority to shew, that in every case in which a parish lies in two counties, each part may be considered as a separate parish. The case happened after the statute of Charles, and probably was no more than an application of the provisions of that statute to each part (a) 1 T. R. 374. as a distinct township; at all events, there is nothing in it calculated to raise any reasonable doubt on the application of Rex v. Sir Watts Horton to the case now before the Court. The rule must therefore be absolute. 1832. The KING Rule absolute. BRITTEN against WAIT. BY indenture of the 5th of June 1822, reciting that A beneficed.X.P.E-903 the defendant had contracted to sell one Mandeville an annuity of 120l. for 1000l., and had executed a warrant of attorney to confess a judgment against him, the defendant, at the suit of Mandeville for 2000l., and that judgment was thereupon entered up; defendant covenanted to pay Mandeville the said annuity for the term of ninety-nine years, if he, defendant, should so long live, by quarterly payments, and granted, bargained, sold, and demised to Mandeville the benefice of Blagdon with the appurtenances, to hold to Mandeville for the same term, at the rent of a pepper-corn; and it was agreed that the judgment so entered up was intended to be a further security to Mandeville for the annuity. There was a covenant reserving power to the defendant to repurchase. The defendant having afterwards contracted with the plaintiff to sell him an annuity of 1621. 6s., and agreed with Mandeville for the re clergyman granted an 1988 185 17.98 annuity by 186 626 it chargeable on 3.28 -8/5 his living, 1788-8/8 rant of attorney and gave a war form, to confess judgment at the suit of the grantee for 32001. By the annuity deed, ment to be entered up on attorney was to security for the that no execu tion or seques tration should be issued thereon, other than such se questration as until the annuity should be in arrear; and the grantor then covenanted, that if the grantee should at any time deem it expedient to sequester the living, it should be lawful for him to issue a sequestration by virtue of the judgment, for the 32001. or any part thereof. Judgment having been entered up on the warrant of attorney, and the annuity being in arrear, the grantee issued a sequestration for 32002., (which sum greatly exceeded the arrears due,) and entered into possession of the living. On motion, the Court refused to set aside the annuity deed, warrant of attorney, and judgment, but directed that the writ of sequestration should continue in force only for the arrears that had become due on the annuity. 1 Bac.237. |