any act, deed, or assurance done or made by the vicar alone, after three months' neglect to comply with the requisition, would be void, but in case of no such notice, or so often as such heir male shall be minor, lunatic, beyond seas, under any legal disability, or refuse or become incapable to act in the trusts, the vicar may act alone. By the 5th section the churchwardens and overseers, on receipt of the rents, are to pay the same to the treasurer of the poor-rates for the time being, to be applied by the governor and directors of the poor, conjointly with them, according to the trusts of the original foundation deed. Independently of title under the statute, the defendant claims under a conveyance in 1843 from the co-heirs of J. Drake, with the consent of the churchwardens and overseers, to the use of himself, his heirs and assigns, upon the trusts of the original foundation deed. No notice has been given under the 55 Geo. 3. by the heir male of J. Evelyn. The case finds in substance, and as between these parties we are to take it that the defendant is well entitled (and if well entitled, it must be as trustee for the performance of the original trusts, and those engrafted on them by the 46 Geo. 3), unless his title is displaced by the operation of the 59 Geo. 3. c. 12. s. 17; and on this the lessors of the plaintiff rely, contending that, in all cases where the land is freehold, and the trusts are general for the benefit of the parishioners, so that in a popular sense the land may be said "to belong to the parish," the statute vests the legal estate in the churchwardens and overseers of the parish as a body corporate. The defendant contends, that in no case does the statute operate where the legal estate is actually vested in a known existing trustee or trustees; and that, at all events, it does not operate where the trusts are special, which he asserts to be the case in the present instance; for that a trust for the benefit of the poor is a trust limited to such poor as do not receive parochial relief, constituting, therefore, a special and limited class of objects.

The latest case on this subject is Rumball v. Munt (15 Law J. Rep. (N.s.) Q.B. 180). There the trusts appear by the last conveyance to have been "to receive and take, or to permit and suffer the churchwardens for the time being yearly for ever to receive the rents,

66

&c. for the repairs of the parish church, and for the benefit of the poor of the parish, so as the rents, &c. have been usually or lawfully applied, and according to the intention of the several charitable persons who gave the premises respectively;" it appeared, also, that among the premises were four messuages, wherein it was stated in the conveyance, poor families were permitted to dwell rent free." For the last seven years the defendant had paid rent to the vestry clerk. In that case both points were made on which the defendant now relies, that the trusts were special, and the trustees in existence. This Court, however, determining that the trusts were general, decided that the parish officers alone could sue for the rent, and did not regard the known existence of the trustees as preventing the operation of the statute. If, therefore, that case was in all points rightly decided, it governs the present; and we have in effect been called on by the defendant's counsel to review that decision. Certainty in the law is of such paramount importance, that a decision, although questionable in itself, which yet has been acquiesced in by the co-ordinate courts, and been acted on as law for any considerable period of time, may be better left for correction to some superior and more authoritative tribunal; but if these circumstances do not exist, and we shall be satisfied on reconsideration that our earlier decision was erroneous, there is nothing which should prevent us from so declaring, when the same circumstances again present a case for our decision.

We have, therefore, thought it more satisfactory not to preclude the present inquiry. Two points, it will be observed, are alleged to be cardinal; the special nature of the trusts, and the existence of the special trustees; of these we think the first does not arise in the present case. Whether under a trust "for the use and benefit of the poor of the parish," all the poor persons receiving relief from the poor-rate or not be proper objects, or only the latter, it seems to us that in the latter case, as well as in the former, the trusts are sufficiently general to bring the case within the operation of the statute. In the cases relied on for a different construction, it will be found that the trusts, either wholly or in part, are such as limit the discretion of the trustees, confine them to special objects or special modes of

relief, the latter being such as could not properly fall on the general parochial fund, if there were no such charitable fund. Thus, in The Attorney General v. Lewin, the trusts were, among others, "the binding one poor boy," (not 'boy or girl,') "apprentice in each year, and instructing the poor of the parish;" in The Paddington Charities case," the purchase of bread and cheese to be distributed amongst the poor at Christmas;" in Allason v. Stark, "the better relief of the most poor and needy people that be of good life and conversation, inhabitants within the parish, and the putting forth one poor boy or more of the said parish to be apprentice or apprentices-the moiety to the poor to be paid to them every half-year, at and in the church or porch thereof." Where the only distinction is the actual receipt of parochial relief, it is obvious that the result is the same as if it did not exist; the fund helps to keep off the rate those who, it is feared, would otherwise be at least temporarily on it-it is in aid of the parochial funds-and the land which produces it may therefore properly be said, in the popular sense in which the statute must certainly be construed, "to belong to the parish." In this holding we differ from no decisionand we agree with many, which it is unneces sary in this part of our judgment to refer to.

The second point, that the statute does not vest the legal estate in the parish officers, where there are known trustees in existence, will require more consideration. The 17th section of the statute, on which the whole turns, enacts, "That all buildings, &c. which shall be purchased by the churchwardens, &c., under the authority and for any of the purposes of the act, shall be conveyed to them and their successors in trust for the parish; and such churchwardens, &c. and their successors shall and may and are thereby empowered to accept, take, and hold in the nature of a body corporate on behalf of the parish all such buildings, &c., and also all other buildings, lands, and hereditaments belonging to such parish." The former part of the sentence is entirely prospective: it regards future purchases and leases; it is addressed to the conveying party as well as to the grantees; and these last it not merely empowers to take, but throws upon them the obligation of taking, in a certain capacity and with certain trusts, and it is confined to build

ings, &c. taken under the authority and for any of the purposes of the act. The latter part of the sentence, which seems to have been an after-thought engrafted on the original scheme of the section, is merely retrospective-it is confined to property clearly in some sense belonging to the parish; much of the preceding part, to which it is grammatically appended, is therefore inapplicable to it; so much of it as is, if it be separated from the rest, will run thus: "the churchwardens, &c. shall and may, and they are hereby empowered to take and hold in the nature of a body corporate, on behalf of the parish, all buildings, lands, and hereditaments belonging to the parish." However we limit the meaning of the words "all buildings, &c. belonging to the parish,' within those limits it cannot be contended that the statute is merely enabling. Besides the obvious inconvenience of leaving to the parish officers an option to take or not that which the statute intended them to take, the words will not bear that meaning: the parish officers "shall take;" this casts the duty on them; and they "are empowered to take;" this gives them the legal capacity for performing it. It would be conceded possibly that in a case where the trusts were general for the parish benefit, and the trustees were all dead, and no representative could be found, the parish officers could not repudiate the legal estate and the attendant trusts the former would vest in them, and the latter be cast on them, without any act of their own, with no power of refusal in them, by the mere operation of the statute. If this be so, the defendant must be driven to contend that lands, &c. are not "belonging to the parish" in the sense of the statute, if the legal estate be vested in known existing trustees, or that those words must be read with this implied addition, "whereof there are no existing trustees, or none that can be found," in order to take such a case as the present out of the operation of the statute. The difficulty in assenting to this latter proposition seems to be that it puts a large limitation on words in themselves unambiguous, while there is nothing in the context of the section or the general provisions of the statute which manifests any clear intention in the legislature so to narrow the meaning of its own language. In Allason v. Stark, Patteson, J. is reported to have asked, in the course

of the argument, "If it was intended in all cases to transfer the legal estate to the parish officers, why not at once enact in express terms that it should be so transferred?" A very pertinent question, certainly; but if we limit them to the sense contended for by the defendant's counsel, the question may equally be asked, why not enact that sense in express terms? No words declare that the only mischief to be remedied was the case of property belonging to the parish, which it was difficult to manage or protect, or recover for want of strict title in any known person. No doubt that case, as it is within the words, so it was also within the intention of the legislature, and it is very convenient so to provide for it; but it may have been equally thought convenient to provide for all cases where the trusts are generally for the benefit of the parish, by placing the administration of them in the same hands in which, by the general law, is placed the administration of the general fund. It may have been thought that those who distribute relief to the poor on the parish books could know best the circumstances and characters of those who, either by temporary pressure or decay, are all but on it.

Much reliance, therefore, cannot be placed on the argument of intention or inconvenience in favour of the defendant's limitation.

We attach much more weight to the argument that the section contains no words expressly divesting an estate from living trustees-none which direct such persons to convey their legal interests to the parish officers. There will always be a difficulty when the legislature, dealing with a matter in its nature precise and technical, such as the title to land or the vesting of estates, makes use of merely popular language; and considerable latitude of construction, however inconvenient, becomes necessary in order to arrive at and effectuate the intention. But it is a safe rule to require, that in order to divest an estate there should be either express words or necessary implication; to avoid such interference with existing legal interests, a more narrow construction than the words in themselves might admit of, is properly to be adopted. Where a founder. has constituted a body of trustees, and charged them with the execution of certain trusts for the benefit of the poor of the parish, however general in their nature, and

these trustees are in existence, and in the actual discharge of the trusts imposed on them, it would be a strong act in the legislature by direct words to take from them. their property and vest it in the parish officers; and if it has only used words which may receive a sufficient meaning and remedy a great inconvenience without going that length, we think, on general principles, we ought not to allow them to go further. It is not unreasonable in itself to say that property so circumstanced does not belong to the parish.

With the exception of Rumball v. Munt, the authorities favour this view. They begin with Doe d. Jackson v. Hiley; there it was unknown or uncertain in whom the legal estate originally in the feoffees was vested; and Lord Tenterden says (10 B. & C. 894) that "the difficulty of finding out in whom the legal estate in the premises belonging to the parish is vested, was the mischief which, by the 17th section, the legislature intended to remedy." The same fact existed in Doe d. Higgs v. Terry and in Doe v. Cockell (16). Alderman v. Neate (17), does not raise the precise point; but there the parish officers for fifty years had been in occupation and paid the rent; they were held liable; and the case was decided distinctly on the authority of Doe d. Jackson v. Hiley. Allason v. Stark was decided on the special nature of the trusts; but on the particular point we are now considering, it contains observations by nearly all the Judges, favouring the view we are now taking, and explaining the former decisions in Doe d. Jackson v. Hiley and Doe d. Higgs v. Terry, by the difficulty which existed in them of ascertaining where the legal estate of the original trustees was. We have already alluded to the cases in equity, and the decision in Rumball v. Munt we have already stated to be in favour of the lessors of the plaintiff.

Upon this review of the authorities and consideration of the principle on which the statute ought to be expounded, we have come to the conclusion that our judgment ought to be for the defendant.

Judgment for the defendant.

(16) 4 Ad. & El. 478. (17) 4 Mee. & Wels. 704; s. c. 8 Law J. Rep. (N.S.) Exch. 89.

Apprenticeship, Settlement by-54 Geo. 3. c. 107.-Execution by Officers of Township-Order for Binding-Evidence-56 Geo. 3. c. 139.-Allowance-Jurisdiction.

A parish apprentice was bound by indenture executed by A. B, churchwarden of the township of L, and by C. D, one of the overseers of the same township :-Held, sufficient under 54 Geo. 3. c. 107. s. 2.

The indenture, which was duly allowed by two Justices under 56 Geo. 3. c. 139. s. 1, recited that it was made by virtue of an order under the hands and seals of A. L. and J. N. C, Justices of the Peace in and for the county, &c., made in pursuance of the statute in such case made and provided, and bearing date, &c.-Held to be good primary Evidence of the order for binding, which was not produced.

The allowance of an indenture of apprenticeship by Justices under 56 Geo. 3. c. 139. s. 1, need not appear on the face of it to be made within their jurisdiction.

On an appeal against an order of two Justices for the West Riding of Yorkshire, for the removal of William Moore, his wife and their three children, from the township of Stainforth, in the said riding, to the township of Kirkby Malham, in the same riding, the Sessions, discharged the order, subject

to a

CASE.

The examinations on which the said order was made, so far as the same are material to the present case, were as follows:-The examination of W. Moore, the pauper : "When I was about ten years of age, being a poor child belonging to the township of Langcliffe, in the said West Riding, I was bound apprentice by the churchwardens and overseers of the township of Langcliffe to John Maugham, then of the township of Kirkby Malham, tailor, with consent of two Justices of the peace (one of them being of the quorum), of the West Riding of the county of York-the said township of Kirkby Malham being within a reasonable distance of the said township of Langcliffe -by indenture, bearing date the 17th of July 1832, from the day of the date of the

NEW SERIES, XVII.-MAG. CAS.

said indenture until I should attain the age of twenty-one years. I went into the service of the said J. Maugham, under the said indenture, immediately after the execution thereof, and served him under it for about three years, and I resided under the said indenture with the said J. Maugham, in the said township of Kirkby Malham, as his apprentice for the said term of three years. About the end of three years from the time of my binding, my master, the said J. Maugham, not having any work, and not being able to provide me with food and clothing, sent me home to my uncle, W. Kitchen, with whom I remained for many years afterwards, and never went back to Maugham, or served any further under my indenture. Shortly after Maugham sent me back to my uncle, I went with my uncle down to the Magistrates' meeting at Gargrave, in the said West Riding, where Maugham also went. Maugham there produced a copy or duplicate of my indentures, I cannot say which, which he delivered to the Justices present; and the circumstances being inquired into, it was agreed my apprenticeship should be dissolved, and the copy or duplicate indenture which Maugham produced was given up to my uncle."

The examination of S. Hale, who was clerk to the Justices in 1822, and attesting witness to the indenture, verified the execution of the indenture by the parties, and the signature of the Justices to the consent at the foot of the indenture.

The examination of R. Forster:-"I was churchwarden of the township of Langcliffe, and W. King was one of the overseers from the spring of 1822 to the spring of 1823, and during the month of July 1822 the indenture of apprenticeship now produced was signed, sealed, and delivered by us, on the day of the date thereof, as such churchwarden and overseer." The indenture was produced by T. Robinson, constable of Langcliffe, who proved that he had searched the chest containing the documents belonging to the township officers, and relating to the township of Langcliffe, and had there found it. It was as follows:

"This indenture, made the 17th day of July 1822, witnesseth that R. Forster, churchwarden of the township of Langcliffe, in the West Riding of the county of York, and W. King, overseer of the

E

poor of the said township, by and with the consent of His Majesty's Justices of the Peace for the said riding, whose names are hereunto subscribed, and by virtue and in pursuance of an order in writing made by and under the hands and seals of A. L, and J. N. C, Justices of the Peace in and for the said riding, in pursuance of the statute in that case made and provided, and bearing date the 16th of July instant, have put and placed, and by these presents do put and place W. Moore, aged &c., a poor child of the said township of Langcliffe, apprentice to J. Maugham of Kirkby Malham, &c.-[The indenture then stated the binding and the usual covenants.] In witness, &c.

"R. Forster (L.S.) "W. King (L.S.) "J. Maugham (L.S.) "We, whose names are hereunto written, Justices of the Peace for the riding aforesaid (whereof one is of the quorum), do consent to the putting forth W. Moore an apprentice according to the intent and meaning of this indenture, and do sign this our allowance of such indenture of apprenticeship before the same hath been executed by any of the other parties thereto, in pursuance of the statute in such case made and provided. Dated this 16th day of July

1822.

"J. N. Coulthurst. "Anth. Lister."

At the trial, the appellants firstly objected, under grounds of appeal which raised the objection, that the examinations were bad, inasmuch as it did not therein appear that the binding of the said pauper apprentice was by proper officers of the said township of Langcliffe, or that such binding was by a proper and sufficient number of such proper officers. The Sessions overruled the objection, subject to the opinion of this Court.

The appellants secondly objected, under grounds of appeal that raised the objection, that the examinations were bad, inasmuch as they did not shew that previous to the making of the said indenture any order of Justices had been made that the overseer or overseers of the place to which the said W. Moore belonged should be at liberty to bind him apprentice, or if any evidence of such order was set forth in the said exami

nations, it was secondary evidence improperly admitted by the Justices who made the order appealed against, no evidence having been given before them to account for the non-production before them of the said original order of binding. The Sessions overruled this objection, subject to the opinion of this Court.

The appellants thirdly objected, under grounds of appeal which raised the objection, that the allowance of the said indenture was bad on the face of it, inasmuch as it did not shew that it was made within the jurisdiction of the Justices who made the same. The Sessions held the last-mentioned objection to be fatal, subject to the opinion of this Court.

If this Court should be of opinion that any one of these three objections was a valid one, then the order of Sessions was to be confirmed, otherwise the order of Sessions was to be quashed (1), and the order of removal was to be confirmed.

Ingham, in support of the order of Sessions. As to the first objection, so much as relates to the binding by the churchwarden may be struck out, as inapplicable to a township, and there will then remain a binding by one overseer-The Kingv. Nantwich (2), The King v. the Justices of the North Riding of Yorkshire (3). By 13 & 14 Car. 2. c. 12. s. 21. two or more overseers are to be appointed for every township, who are to perform all acts for the relief of the poor mentioned in 43 Eliz. c. 2; and it is clear this statute intended such acts to be done on consultation of all the officers. But it will be said that intendment will be made in favour of this indenture as it has been allowed by the Justices, and The King v. Hinckley (4), and The King v. Catesby (5) will be cited; but here it distinctly appears that during the time there were two overseers appointed for the township. Secondly, there is no legal evidence of an order for binding under 56 Geo. 3. c. 139. s. 1. This point is decided by The Queen v. East Stonehouse (6). There, the indenture of apprenticeship