A security for the fair expenses of the prosecution, agreed to be given at the recommendation of the court of quarter sessions, by a defendant who stood convicted before them of a misdemeanor in ill-treating his parish apprentice, for which the parish officers had been bound over by recognisance to prosecute him under the statute 32 Geo. III. c. 57; and the giving of which security was considered by the court in abatement of the period of imprisonment to which he would otherwise have been sentenced, is legal (d).

Although neither parish officers nor parishioners were before the passing of the 5 & 6 Will. IV. c. 69, a corporation, yet an agreement by them, which was beneficial to the parish, was binding on the parish and its succeeding officers (e); as where the plaintiff's house being so near the church, and she being so indisposed that the five o'clock bell, rung in the morning, disturbed her, and she being about to quit her house in consequence, she the plaintiff came to an agreement in writing with the churchwardens and inhabitants at a vestry, that the plaintiff should erect a cupola and clock at the church; and in consideration thereof that the five o'clock bell should not be rung. It was held in equity that the agreement bound the succeeding churchwardens and inhabitants, and an injunction against ringing this bell was granted (ƒ).

However a plaintiff cannot recover against several overseers of a parish for money lent to one of them, in his capacity of overseer, unless the rest have expressly promised repayment (g). An overseer has not by virtue of his office any power to borrow money for parochial purposes; if he borrow money even for such purposes, he becomes individually liable (h). But if several defendants jointly act as churchwardens and overseers and as such jointly give orders to the plaintiff for goods to be supplied to the poor of the parish, this will render them all liable, though

one of them be only an assistant overseer (i). It is however a question of fact depending upon the particular circumstances of each case, whether the act of one overseer in ordering goods for the use of the parish, creates a joint contract binding on his cooverseer (k).

One churchwarden has no power to pledge the credit of his co-churchwarden for the repairs of the church; and if he order such repairs to be done without their knowledge, he is individually liable (1). So a churchwarden who employs a person to make a plan of the church, in order that the plan may be laid before certain commissioners for building new churches, is personally liable to such person (m).

Succeeding churchwardens, though only so de facto, may sue their predecessors, though they be not the officers immediately preceding them, for money received by the defendants for the use of the parish (n). And where in the parish of A. two churchwardens were elected for the township of B., and two others for the rest of the parish, and separate rates were made for these divisions, it was held that the churchwardens elected for the township of B. might maintain an action against their predecessors for money remaining in their hands, and were not bound to make all the present or late churchwardens of the parish plaintiffs or defendants (o). But a surveyor of highways cannot maintain an action against the late surveyor until his accounts have been settled and allowed or disallowed in the manner pointed out by the 13 Geo. III. c. 78, s. 48 (p). And it has been held that churchwardens cannot commence a suit in the Spiritual Court in their own names after their year is expired, but that if commenced within, they may proceed in it after the year (q).

Churchwardens who expend money in the necessary repairs of the church may make a rate to reimburse themselves; but

(i) Kirby v. Bannister, 3 Nev. & M. 119; 5 B. & Ad. 1069, S. C. (k) Eden v. Titchmarsh, 3 Nev. & M. 712; 1 Ad. & E. 691, S. C.

(1) Northwaite v. Bennett, 2 C. & M. 316; 4 Tyr. 236, S. C.

(m) Brook v. Guest, N. P., Stafford Summer Assizes, cited 3 Bing. 481. (n) Turner v. Baynes, 2 H. Bla.

558.

(0) Astle v. Thomas, 2 B. & C. 271; 3 D. & R. 492, S. C.; 1 C. & P. 103, S. C.

(p) Heudebourck v. Langton, 10 B. & C. 546; 3 C. & P. 566, S. C.

(g) Dent v. Prudence, Stra. 852. See F. N. B. (91 K); Attorney v. Ruper, 2 P. W. 126; Anon. Dyer, 48; Vin. Ab. Churchwardens. The spiritual court has only jurisdiction to

cannot maintain an action for contribution against any one of the parishioners who joined at a vestry in signing an order for the repairs (r). And it has been decided that vestrymen, who at a vestry meeting sign a resolution, ordering the parish surveyor to take steps to defend an indictment against the parish for not repairing a road, are not liable to the attorney employed by the surveyor, because the conduct of the business was more peculiarly the province of the surveyor, who could afterwards have charged the parish in his account, and been reimbursed by a regular parish rate (s). The surveyor of a turnpike road employed by and acting for the commissioners, is not personally liable to parties performing work in repairing the roads, for such surveyor is the mere servant of the commissioners (t).

The Poor-law Amendment Act, 4 & 5 Will. IV. c. 76, s. 77, enacts, "That it shall not be lawful for any person hereafter to be appointed in any parish or union to any office concerned in the administration of the laws for the relief of the poor, or for any person who after the 25th day of March, 1835, shall fill any such office, to furnish or supply for his own profit, or on his own account, any goods, materials, or provisions, ordered to be given in parochial relief, or to furnish or supply any goods, materials, or provisions for or in respect of the money ordered to be given in parochial relief to any person in such parish or union, and every person holding such office shall, on conviction before any two justices of the peace, be subject to a penalty of 51. for such offence, one-half of which penalty shall be paid to the informer, and the other half in aid of the poor rates of such parish or union (u)."

It was decided on the former statute on this subject, 55 Geo. III. c. 137, s. 6, to be illegal for a farmer to supply the produce of his

enforce the delivery of the accounts, not to decide on the items; Leman v. Goulty, 3 T. R. 3.

(r) Lanchester v. Frewer, 2 Bing. 361; 9 Moore, 688, S. C.

(s) Sprott v. Powell, 3 Bing. 478; 11 Moore, 398, S. C.; Heudebourck v. Langton, 3 C. & P. 566; 10 B. & C. 546, S. C.

(t) Pochin v. Powley, 1 Bla. R. 670. (u) The statute 55 G. 3, c. 137, s. 6, prohibited churchwardens, overseers of the poor, collectors of poors' rates, and other persons concerned in

U

the providing for, management, or direction of the poor, from "providing, furnishing, or supplying for profit any goods, materials, or provisions for the use of the workhouse, or otherwise for the support and maintenance of the poor in the parish," while they hold their appointments, and from be ing directly or indirectly "concerned in any contract relating thereto," under a penalty of 100/., unless such persons should obtain the certificate of two magistrates authorising them so to do, &c. But it should seem that

lands to the poor of the parish of which he was churchwarden, even at a fair market price (x). But that statute extended only to a supply of goods to the workhouse and poor people generally (y), and therefore an overseer who on his own account supplied a coat to an individual pauper did not incur any penalty (z). Nor was a supply of materials for the repair of the workhouse, or a contract for work and labour, within that provision (a).

The 59 Geo. III. c. 12, s. 17 (b), provided that the churchwardens and overseers of a parish should take and hold, in the nature of a body corporate, for and on the behalf of the parish, all buildings, lands, and tenements belonging to the parish. The 6 and 7 Will. IV. c. 69, (c) provides, that the powers and authorities given by that act to churchwardens and overseers shall, in future, be exercised by the overseers of the poor in any parish not under the management of a board of guardians, and by the guardians of the poor of any union or parish; and by the 7th section of the 5 and 6 Will. IV. c. 69, it is provided that the guardians of the poor of every union, and of every parish under the control of a board of guardians, shall, from the day of their first meeting as a board, become, and their successors in office shall for ever continue to be, for the purposes of that act, a corporation, by the name of the guardians of the poor of the union (or of the parish of - ,) in the county of

; and as such corporation the guardians are empowered to accept, take, and hold, for the benefit of such union or parish, any buildings, lands or hereditaments, goods, effects or other

the 77th section of the 4 & 5 W. 4, c. 76, impliedly repeals this enactment; see per Lord Abinger, Henderson v. Sherborne, 2 Mee. & W. 236; 1 Jurist, 152, S. C.; though the 51st section of the 4 & 5 Will. 4, c. 76, makes the penalty imposed by the 55 Geo. 3, c. 137, applicable to all the officers to be appointed under the provisions of the late act.

(a) Pope v. Backhouse, 2 Moore, 186; 8 Taunt. 239, S. C.

(y) Barber v. Waite, 3 Nev. & M. 611; 1 Ad. & E. 514, S. C.

(z) Henderson v. Sherborne, 2 Mee. & W. 236; 1 Jurist, 152, S. C.; Proctor v. Mainwaring, 3 B. & Ald. 145. (a) Barber v. Waite, ubi supra.

(b) Woodcock v. Gibson, 4 B. & C. 462. See further post, 293; Doe d. Higgs v. Terry, 5 Nev. & M. 556; 1 Harr. & Woll. 547, S. C. Buildings, &c. were, under the 59 Geo. 3, c. 12, vested in the churchwardens and overseers, not merely where the profits were applicable to the relief of the poor, but where they were applicable to the purposes for which church-rates were levied, and this though such buildings, &c. had originally been vested in trustees for the benefit of the parish; Doe dem. Jackson v. Hiley, 10 B. & C. 885. See also Alderman v. Neate, 4 Mee. & W. 704.

(c) Amended and enlarged by 1 Vic. c. 50.

property, and may use a common seal. Where parish land was occupied by A., and he paid rent to the churchwardens, and they executed a lease of the same land for a term of years to B., and gave A. notice of the lease; it was decided in an action for use and occupation by B. against A., that the latter was not estopped by having paid rent to the churchwardens from disputing B.'s title, and that the latter could derive no title from the churchwardens alone (d). This decision does not, however, controvert the position, that the tenant is estopped as against the assignee of his lessor, for the objection allowed was not to the validity of the original title, but merely to the power to transfer in the particular instance.

(d) Phillips v. Pearce, 8 D. & R. 43; 5 B. & C. 433, S. C.