The King against E. Brain
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1832 |
| Date | 09 May 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 224
IN THE COURT OF KING'S BENCH
S. C. 1 L. J. M. C. 53.
224 THE KING V. BRAIN 3 B. & AD. 6H, [614] the king against E. bkain. Wednesday, May 9th, 1832. By ancient custom a select vestry was to consist of the rector, churchwardens, and those who had served the office of upper churchwarden, and other parishioners to be elected by the vestrymen. The practice in modern times 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 Citv 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 Mayor'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 prima 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. [S. C. 1 L. J. M. C. 53.] Indictment stated that the defendant on the 16th of March, 11 G. 4, and long before, was an inhabitant of and residing within the parish of St. Bartholomew the Great, London, and able and liable to serve the office of constable for the said parish, and that at a meeting of the trustees for putting in execution an Act of the 9 G. 3, c. 23, entitled, &c., duly holden on, &c. aforesaid, the defendant by the said trustees, so met, consisting of thirteen and more, to wit, J. D. arid C. J., &c., then being the churchwardens of the said parish, H. S. and R. B. then being two overseers of the parish, [615] 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 tion or money's worth. [Parke J. The advance of money should have been originally part of the contract under which the annuity is granted.] The statute may be easily evaded if a grantee may say, "Instead of advancing money I will release such a debt." Lord Tenterden C.J. That is not the present case: and here the annuity might never have become payable. To make an enrolment necessary there must be at least something analogous to the sale of an annuity. It is useless to go into the cases. Littledale J. This was only giving what was considered a better security for an already existing debt. Parke J. and Taunton J. concurred. Judgment for the plaintiff. SB. & AD. 616. THE KING V. BRAIN 225 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 [616] and appoint four constables for the parish annually." In pursuance of this Act the trustees had, yearly, on the 21st of December, being...
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