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![handle is hein.slavery/ssactsengr0079 and id is 1 raw text is: THE QUEEN V. BIRMINGHAM
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
roecover, 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 [408] Legislature; and it
is very convenient so to provide for it: but it may have been equally thought con-
venient 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 oil the parish books would know
best the circumstances and character of those who either by temporary pressure or
decay are all but on them. Much reliance therefore cannot be placed on the argument
of intention or convenience in favour of the defendant's limitation.
We attach much more weight to the argument, that the section contains no words
expressly devesting 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 devest 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, [409] 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. Muit (ante, p. 382), the authorities favour
this view. They begin with Doe dem. Jackson v. Hiley (10 B. & C. 885) : there it was
unknown or uncertain in whom the legal estate, originally in the feoffees, was vested ;
and Lord Tenterden says (p. 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
seventeenth section the Legislature intended to remedy. The same fact existed in
Doe dem. Higgs v. Terry (4 A. & E. 274), and in Doe dem. Hobbs v. Cockell (4 A. & E. 478).
Alderman v. Neate (4 M. & W. 704), 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 den. Jackson
v. Hiley (10 B. & C. 885). Allason v. Stark (9 A. & E. 255), 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 dem. Jackson v. Hiley (10 B. & C. 885),
and Doe dem. Higgs v. Terry (4 A. & E. 274), by the difficulty which existed in [410]
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 Rucmball v. Munt (ante,
p. 382), we have already stated to be in favour of the lessors of the plaintiff.
Upon this view 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 defendant.
THE QUEEN against THE CHURCHWARDENS AND OVERSEERS OF THE PARISH OF
BIRMINGHAM. (CHELTENHAM against BIRMINGHAM.) Wednesday, January 21st,
1846. The grounds of appeal against an order removing a widow, with her
children, to her maiden settlement, were: 1. That the order and examinations
930
8 Q. B. 408.](ViewImageLocal?handle=hein.slavery/ssactsengr0079&div=1&collection=&method=preview&ext=.png&size=3)