R v Loxdale and Four Others

JurisdictionEngland & Wales
Judgment Date01 January 1758
Date01 January 1758
CourtCourt of the King's Bench

English Reports Citation: 97 E.R. 394

IN THE COURT OF KING'S BENCH

Rex
and
Loxdale and Four Others

See 4 Durn. 276. 2 East, 171. 4 New Abr. 646.

Principle applied, Howard v. Bodington, 1877, 2 P. D. 213; Stoomvaart Maatschappy Nederland v. P. & O. S. N. Company, 1882, 7 App. Cas. 816; Goldsmiths' Company v. Wyatt, [1907] 1 K. B. 105.

- .. l(f b_bx versus loxdale and four others. 1758. Appointment of more than four ' ^' overseers bad. [See 4 Durii. 272. 2 East, 171. 4 New Abr. 646.] [Principle applied, Howard v. Hodington, 1877, 2 P. D. 213; Stoomvaart Maatschappy Nederland v. P. & 0. S. N. Company, 1882, 7 App. Gas. 816 ; Goldsmiths' Company v. Wyatt, [1907] 1 K. B. 105.] Mr. Morton had some time ago, (viz. on Monday 17th November 1755,) moved to quash an order of two justices appointing five overseers for the parish of St. Chad, in Shrewsbury. His objection was that the justices have no power to exceed the number of four. Which objection was founded upon the words of 43 Eliz. c. 2, 1, " 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 and parishes, 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 in the same county, (whereof one to be of the quorum) dwelling in or near the same parish or division where the same parish doth lie, shall be called overseers of the poor of the same parish : and they, or the greater part of them, &c." And he mentioned a farmer case of Bex v. Harman, upon the very same point, which depended in this Court from P. 12 G. 2, to M. 15 G. 2, and at last was never determined; and also Sex v. Besland, Hil. 19 G. 2, B. E. which was the reverse of an excess of their jurisdiction, where the order, (being to appoint one overseer) was confirmed. A rule was thereupon made, " to shew cause." And after the point had been several times argued in Ld. Ch. J. Ryder's time, it came on to be argued once more, on the 27th of January 1757, before Lord Mansfield, he having never heard the former arguments. When the same things which had been so often said were again repeated. On the side of the extension of the number of overseers, usage was alledged and greatly relied upon. Note-The Court misled by assertions " that there had been a usage to appoint more overseers than four ;" for fear of inconvenience, had avoided determining the question in the case of The King v. Harman, after it had depended six years, in hopes that the Legislature would make some provision for what was past, as well as for the I BURR. 446. REX V. LOXDALE 395 future.(o)1 And upon the same [446] apprehension, the Court had hitherto postponed the determination of this. Lord Mansfield said he had seen full notes of the former arguments of the present case ; and also of the case of Sex v. Harman. He observed particularly what was said as to the usage in large parishes. And he therefore had directed inquiry to be made in many large parishes, as to the fact, " whether there had been such usage, or not." And he ordered the return which had been made to him upon such inquiry, by the agents on both sides, to be read. From which, it appeared thus--In St. James's Clerkenwell, 4. In St. Bridgett's, 3. In St. Dunstan's, 2. In St. Clement's Danes, 4. In St. Paul's Covent-Gardeii, 2. In St. George's, Hanover-Square, 4. In St. James's, Westminster, 4. In St. Margaret's, Westminster, 2. In St. Andrew, Holborn, 8 : (but that parish contains three separate divisions). In St. Giles's in the Fields, 8 : (though now only four are appointed by the justices, and act as assistants, unless eight voluntarily serve : but there were never less than eight before the case of Rex v. Harman). In St. Martin's in the Fields, five (since the Act of Parliament lately made, which itnpowers them to appoint nine, if in the discretion of the justices it should be...

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