veyors may lay out their own money in purchasing materials for repairs, in erecting guide-posts, and making drains, and shall be reimbursed by a rate, to be allowed at a special sessions. 4. In case the personal labour of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate on the parish, in aid of the personal duty, not exceeding, in any one year, together with the other highway rates, the sum of 9d. in the pound; for the due application of which they are to account upon oath. As for turnpikes, which are now pretty generally introduced in aid of such rates, and the law relating to them, these depend principally on the particular powers granted in the several road acts, and upon some general provisions which are extended to all turnpike roads in the kingdom, by statute 13 Geo. III. c. 84, amended by many subsequent acts (k) (46). VI. I proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty. The poor of England, till the time of Henry VIII. subsisted entirely upon private benevolence, and the charity of well disposed Christians (47). For, though it appears, by the mirror (7), that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners, so that none of them die for default of sustenance;" and though, by the statutes 12 Ric. II. c. 7, and 19 Hen. VII. c. 12, the poor are directed to abide in the cities or towns wherein they were born, or such wherein they had dwelt for three years, (which seem to be the first rudiments of parish settlements,) yet, till the statute 27 Hen. VIII. c. 55, I find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. The monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. But, upon [*360] the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of King Henry the eighth and his children, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years greatly increased. These poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. To provide in some (k) Stat. 14 Geo. III. c. 14. 36. 57. 32. 16 Geo. III c. 39. 18 Geo. III. c. 28. highway. Fines awarded by the court for not repairing a highway shall not be returned into the exchequer, but shall be applied to the repair of the highways, as the court shall di*ect.* (46) Commisioners of highways have power to repair bridges and roads, also to alter The statutes bearing upon Highways are, 13 G. III. c. 78. 34 G. III. cc. 64, 74. 44 G. HI. c. 52. 54 G. III. c. 109. and 55 G. III. c. 08. Consult the recent statute at large, 3 Geo. IV. c. 126, the general Turnpike Road Act, (2) C. 1.3. and regulate roads already laid out; they may also, under certain restrictions, lay out new and discontinue old roads. 1 R. S. 501, 515. (47) The poor in Ireland, to this day, have no relief but from private charity. 2 Ld. Mountm. 118. consolidating the provisions contained in former acts; and the title Highway, in Sir Geo. Chetwynde's Burn's Justice, where it is fully stated measure for both of these, in and about the metropolis, Edward the sixth founded three royal hospitals; Christ's and St. Thomas's, for the relief of the impotent through infancy or sickness; and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large : and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2, overseers of the poor were appointed in every parish (48). By virtue of the statute last mentioned, these overseers are to be nomi nated yearly in Easter-week, or within one month after, (though a subsequent nomination will be valid) (m), by two justices dwelling near the parish (49). They must be substantial householders, and so expressed to be in the appointment of the justices (n) (50). Their office and duty, according to the same statute, are principally these first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work and (m) Stra. 1123. (48) By this statute, a parish was the only district bound or entitled to the separate maintenance of its poor, but townships and villages, whether parochial or extra-parochial, are now brought within the same system, by the construction put upon the statute 13 & 14 Car. II. c. 12. s. 21. 1 Term. Rep. 374. (49) By 43 Eliz. c. 2. s. 8. officers of corporate towns, and aldermen of London, have the authority of justices of the peace for the purpose of appointing overseers. (50) In a late case, where A. B. & C., carrying on trade in partnership, had a dwellinghouse, yard, and premises, in a parish in London, all the partners were in the habit of frequenting the premises daily, for the purpose of business, but none of them resided there, the dwelling-house was inhabited by a clerk, who managed the business for them, but the rent, rates, and taxes, were paid by the firm, it was held that each of the partners was a householder, within the 43 Eliz. c. 2. and liable to serve the office of overseer. 1 B. & Cres. 178. 4 Burn J. 24th ed. 10, 11. In another case, two day-labourers, with some land annexed to their cottages, of whom only one was a proprietor, and the other a farmer's servant, were held to be competent over seers, although the appointment of such men might be improper in a place where there were a great many opulent farmers. 2 T. R. 406. 1 Bott, 5. And a woman may be appointed, where the necessity of the case requires it. 2 T. R. 395. The justices are to determine what is a case of necessity. 2 T. R. 395. 1 Bott, 11. 1 Burr. 245. 1 Nol. 50. The court of K. B. will quash an appointment of persons not substantial householders. 2 Stra. 1261. 1 Nol. P. L. 53. 1 B. & C. 131. notis. The appointment is no longer limited of necessity to householders living in the parish or township, for by 59 Geo. III. c. 12, a power is given for the appointment of non-resident overseers; and by the 7th section of that act, assistant overseers may be appointed, and security taken. As to the manner of enforcing an appointment of overseers to be made, this may be done (n) 2 Lord Raym. 1394. by mandamus from the court of K. B. 1 Nol. P. L. 44. If an appointment has been already made, then the overseers may be compelled to take the office by indictment, 2 Stra. 1146. 2 Sess. Ca. 187. 1 Nol. 38, or generally by ob taining a confirmation of the appointment from the court of King's Bench. 1 Bott, 68. 4 Burn J. 24 ed. 26. On the other hand, when the object is to avoid the appointment, that object may be ob tained, by defending an indictment for refusal of the office, or by bringing an action of trespass or replevin for taking a distress under a rate made by illegal officers; and the appointment may be directly impeached, either by the overseers themselves, or by any other parishioners, (Cro. Car. 92. 1 Bott, 32. 7 East, 1, &c. 4 Burn J. 24 ed. 26.) by appeal to the general quarter sessions (see 15 East, 207. 1 B. & A. 210.) against the appointment itself, (43 Eliz. c. 2. s. 6. 17 Geo. II. c. 38. s. 4.) or incidentally on an appeal against an order of removal made to an extra-parochial place having no officers, or to a township or other minor district, when the overseers ought to have been appointed for the parish at large, or when, having been appointed by the parish at large, they ought to have been appointed for a township, (Burr. 35. Fost. 219. 1 Bott, 35. 45. Cald. 28. 248. 2 Bott, 690.) or by an appeal against an order of removal made from a wrong district. 2 Salk. 487. And an appointment by two justices may be removed into the court of K. B. by certiorari, without appealing against it to the quarter sessions; and the court will go into the question, upon affidavit whether the place for which the appointment is made be a township or vill; and if it appear by the affidavit that it is not, and be not stated as such, or that it is reputed to be such, the court will quash the appointment. 4 M. & S. 378. 3 T. R. 38. 2 East, 244. Also the propriety of an appointment may be questioned on a mandamus to the justices, commanding them to appoint proper overseers. 8 Mod. 39. 1 Nol. P. L. 37, n. 4. and 4 Burn J. 24 ed. 28. |