case the king against harnan and other a order of justice appoint five  overseer for the same place be bad SC Sess Cas SC Const page pl upon the  return of a certiorari ante a it appear that the justice have appoint the  defendant Harman c in all five in number to be overseer of the poor of the  parish of saint clement Dane that a ratebook not say what ratebook have be  tender not say by who to the defendant Harmans maidservant who refuse to  accept it and threaten to throw it out of door that a poorsrate be tender to  the defendant Harman himself not say by who but that he refuse it and neglect  to execute the office and attend the justice at several meeting therein  specify wherefore they adjudge he guilty of neglect his duty and fine he  twenty shilling for each neglect and order his good to the distrain for  payment of the same the question be whether this be a good appointment of  overseer within the statute Elizabeth c and whether the order to distrain be  regular sir Thomas Abney for the plaintiff argue that at commonlaw accord to  the learned doctor Prideaux prideaux duty of churchwarden b the poor be modern  maintain by the clergy and poorsbox in the church some of which be yet remain  the Elizabeth c which be the first statute that mention overseer and the  ground of the statute Elizabeth upon which this appointment be make say that  two or more of the justice one quorum shall have power to appoint four three  or two substantial householder of the parish to be overseer of the poor have  respect to the proportion and greatness of the same parish or parish which  word give the justice a discretionary power to nominate a great number of  overseer to take care of the poor if the greatness of the parish require it  and the question be whether five overseer can be appoint within the statute  the car c S appoint two or more overseer in Northumberland c county therein  mention and yet those county be adjudge to be mention only for example and it  be hold that the Act extend to all England Stokeland v Brockland lodge Sett  Rem Const a parish contain several will may have more overseer king v Welbeck  Const b and this parish of saint clement Dane have distinct will that be ware  and distinct jurisdiction to several purpose though a conviction be good or  ill as to the whole yet a order may be good for part and void for part in the  case of the king v saint James Clerkenwell easter term Geo Foley c the justice  have appoint four overseer of the poor the appointment mention that two of  they be substantial householder and inhabitant of the parish of saint James  Clerkenwell the other two be only say to be substantial householder and the  order be affirm as to the first two and quash as to the two other though it be  move to quash the whole this appointment name five overseer a b c d e the  defendant Harman be first name and therefore it be good as to he and if void  be so only as to he who be last appoint as to the order for distrain the  defendant good that be but the justice process and ought not to have be return  at all for the court never take notice of such process Mr solicitor general  for the plaintiff the statute of Elizabeth concern wage give the justice no  express power to order the payment of husbandry wage and yet the court allow  they to make order upon it for payment only because it be the usage and  because do application be make here till it become a usageSee stram stram d  the statute give the justice no original jurisdiction to discharge apprentice  and yet the court allow their usage in exercise it Const e in the case of  Modena v Norris before the commissioner of privycouncil it be hold by Lord  Macclesfield c that the commission be good by usage though seem contrary to  the statute of queen whether and the late master of the roll sir Joseph Jekyll  g be the only one who doubt it modern modern er p and refuse to sit under the  commission in the borough of Bewdleys case Peer wms ld ray a the court will  not overturn a usage of seven year though direct contrary to the statute of  queen whether in award a venire and so be the opinion of all the twelve judge  if this appointment be ill the appointment ever since the year be so and then  all the parishioner who have pay to such overseer may bring action against  they the parish of saint Martin have for several year last always have a great  number than four overseer saint Giles parish have several time have ten  overseer and this present year it have eight saint Andrew Holborn have have  more than six overseer from the year to the year and from that time to this  year it have have six Stepney have have above four overseer for a great number  of year the quash this appointment may therefore produce ten thousand action  which all the head at the bar club together can not defend a man against and  all these overseer be liable to the action of the parishioner for money have  and receive to their use can it be the intent of the legislature in pass the  statute car that will shall have two or more overseer and the great parish in  London shall have no more than four wherefore he conclude that the appointment  be good Mr hollings for the defendant usage accord to the opinion of Lord  Vaughan expound only doubtful act not plain and obvious statute this parish  have so many overseer only to have so many fine and not for lawful convenience  the instance of usage be about the year but if that be to prevail it ought to  be the usage about the time of make the statute of Elizabeth as such  contemporary usage be the best expositor if ten thousand action may be bring  for such appointment it be a sign of ten thousand oppression have be commit by  the justice the statute of Elizabeth say that the churchwarden of every parish  and four three or two substantial householder shall be overseer of the poor  can the word four three or two give a power to appoint a indefinite number  especial as it begin with the great number and go downward which be a argument  that they be not to exceed four overseer be always mention in the plural  number so that they can appoint one but see king v morris term Rep and king v  Besland Consts p l b which show the meaning of the legislature for when the  Act speak of the justice it say two or more c but when it speak of the  overseer it say four three or two and the vary the expression in the common  clause show a different intention in the legislature the statute Henry c say  that a duke may have six chaplain c can a great number be retain within that  statute certain there can and yet there be no negative word in that Act any  more than in the statute of Elizabeth if a statute shall appoint proof to be  make by four three or two witness can a great number of witness be require  this modern be but one appointment and the last man be as much appoint thereby  as he who be first name for it be not five different appointment as to bring  action against the officer they may justify under the justice warrant think it  be illegal in the justice to grant it the defendant ought to have be indict  for refuse to accept the office and not fine after several meeting for not  come to they for no man can be say to be negligent in a office which he never  accept of and they ought to have proceed against he by indictment as a  constable must be indict for refuse to take the office when be be choose into  it the king v pope Mod Hayward sergeant for the defendant this first point be  whether the Act of parliament warrant this appointment second whether the  proceed of the justice be legal first to what purpose shall the legislature  have appoint the number of overseer in a retrograde manner four three or two  if a great number can be make in a unlimited manner in the case of the king v  Clerkenwell there be but four overseer appoint so that the Act be not exceed  justice may certain appoint payment of husbandry wage for it be the intention  of the statute that they shall do so but they can make a order for the payment  of coachmens or modern er p valet wage or the like Modenas case be not  judicial determine and it be not for nothing that so great a man as the late  master of the roll dissent from it and refuse to sit under the commission and  it be but the commissioner owl private judgement which be not authority at all  in law and as to the number of action that may arise from quash this  appointment I believe it have be adjudge that where a man have pay money to a  officer act under such a warrant be can afterward bring a action against he  for money have and receive to his use they say that this order ought not to  have be return when they themselves be the person who return it second the  justice proceed be unwarranted by law the proper method be by indictment see  king v Jones post a they may have apply for a mandamus to compel the defendant  to execute the office of overseer at this rate any man your lordship or myself  may be appoint a overseer without any opportunity of avoid a distress the  statute appoint three meeting of the justice to be once a month on a Sunday  after church here they have meet three time a month and upon other day and for  the defendant not attend have fine he they may as well meet every day and so  have fine the defendant three hundred and sixtyfive pound ayear lee chief  justice there be two consideration in this case the one be the order of  appointment the second be the order of modern distress and if that be to be  consider mere as a warrant of distress it ought not to be remove here and the  court can make any judgement upon it but it seem here that it must be consider  as a adjudication as much as if it be a order of removal for it say that  Harman be adjudge to have neglect his duty c so that it be a adjudication upon  the face of it like the case of a order of settlement which be consider as a  adjudication the exception to it seem very strong particular in that instance  of his servant refusal of the ratebook and his refusal of a rate without save  who tender they whether a parishioner or not as to the other part of the case  which relate to the appointment I be very doubtful whether it come in such a  way as the court shall quash the appointment for if but four overseer be to be  appoint and five be appoint I can see but it will be void in the whole the  statute Henry c appoint a certain number of chaplain and where a person at one  and the same time appoint more it be hold not to be void in toto but that the  three first promote be well appoint and that it be only void as to the other  drury case   SC jenk SC cro Elizabeth SC more SC Hugh entry a but here where  we be confine to the word of the order which be a appointment of five we can  determine which of they we be to strike out I do not think this case be like  the case of Clerkenwell for there the court bad a plain and distinct return to  determine upon and full direction from the statute this appointment be to make  one position and we can make no difference between the first and the last name  in this appointment a appointment if or the year ensue have be hold well  enough in several case see king v sparrow ante SC stram king v Searl Foley  king v Helling burr king v Stubbs term Rep b page justice I think that both  the objection be well take that the order be a void order and that it ought to  be quash for the whole for I think it be void for the whole where a statute  give a new power or create a new authority it imply a negative that it shall  not be exceed lee chief justice I do not lie any stress upon the usage that  have be mention of parish for that can control the law I take the jurisdiction  of the justice about wage to arise from the liberal construction which this  court have make upon the statute and not from their usage of such a power in  the case of all apprentice the court of late have allow a application to the  session original upon the construction of the Act though there be a case  otherwise in sander but the late case allow it upon the construction of the  Act in drury case the question be whether the retainer be not absolute void  and jenk hold modern er p that it be void as to all but afterward in   it be  hold not to be absolute void for the whole probin justice there be no  necessity for the court to give a opinion upon the appointment for it may come  before the modern court in a regular way if this order be like a process and  not a adjudication of the justice the court will not take notice of it but the  justice adjudge the party to be guilty of a offence and in the same instrument  they order a distress which be like a order of settlement but as the offence  therein set forth be of a distinct nature there ought to have be several  judgement it do not appear that the party have sufficient notice that he be  appoint overseer and therefore I concur with my Lord and brother that this be  a order and that it ought to be quash as to the other point where a new  authority be create it be hard to say that the justice shall exceed the number  appoint by it and as my brother page say the new authority imply such a  negative the usage that shall vary a Act of parliament must not be the usage  of a particular place or parish but universal through the kingdom and that be  the case of Bewdley usage ancient and immemorial obtain the sanction of a law  but the usage here cite be both particular and have arise of late year in the  case of Clerkenwell there be a distinction in the return two be well describe  and two not here the court can say which overseer be appoint well and which  not chapel justice I think it more reasonable to restrain the justice to the  number appoint in the Act than to permit they to exceed it for if they may  appoint eighteen as it have be say they have do in some parish they may as  well appoint half the parish and a particular usage ought not to destroy a  express Act of parliament and in the case of Brecknock I think it be hold that  a usage contrary to a charter be not good I think the adjudication of the  penalty and distress be a void adjudication in every part the ratebook be  tender to the maid and she may refuse it for it do not appear to have be  tender by a parishioner or what ratebook it be lee chief justice let the rule  for quash the order be make absolute and let the other stand for further  consideration