C. A. 1905 SEYMOUR V. PICKETT. appropriation of the 201. previously paid. Upon that point I have come to the same conclusion as my brethren-that the plaintiff was entitled to do so. In The Mecca (1) it was decided that, when no appropriation has been made by a debtor at the time of payment, the creditor is entitled to appropriate "up Stirling L.J. to the very last moment." That I think means until something has happened which prevents the creditor from exercising his right-some such event as, for instance, if the creditor has already made an appropriation and has communicated it to the debtor. By bringing an action the creditor may in fact shew that he has made an appropriation, and the very form of the writ may shew a communication of the appropriation to the debtor. And the same result may arise in other ways. In Friend v. Young (2), for instance, it was held that the form of a proof in bankruptcy by a creditor shewed that an appropriation had been made by him and amounted to a communication of it to the debtor. And in Smith v. Betty (3) an action was brought in which the defendant pleaded the Statute of Limitations, and at the trial an order was made by which an account was directed in substance excluding statute-barred items, and it was held that the form of that order also prevented a subsequent appropriation by the plaintiff of a particular payment to statute-barred items. I do not profess to give an exhaustive account of the circumstances which may preclude a creditor from exercising his right of appropriation. All that it is necessary now to say is that, until something has happened which would render it inequitable for the creditor to do so, he is at liberty to exercise his right. In the present case certainly nothing had occurred down to the second trial which rendered it inequitable for the plaintiff to exercise his right. The question whether anything had taken place which rendered it necessary or desirable for him to make the appropriation did not arise until the second trial. At that time there was no writ or pleading which debarred the plaintiff from exercising his right, and at the trial he did exercise it in answer to a question put to him by his counsel, and it seems (1) [1897] A. C. 286. (2) [1897] 2 Ch. 421. (3) [1903] 2 K. B. 317. C. A. to me that he was in no way precluded from so doing. This point does not appear to have been raised before the Divisional SEYMOUR Court, and in these circumstances I think the plaintiff is entitled to judgment for 217., with costs in the usual way. 1905 v. PICKETT. Appeal allowed. Solicitors: Wilkinson, Howlett & Wilkinson; Lumley & Lumley. W. L. C. 1905 Feb. 2. POPLAR GUARDIANS v. MARTIN. Poor Law-Wilful Refusal or Neglect of Person to maintain himself—Refusal of Offer of Work subject to Conditions-Vagrancy Act, 1824 (5 Geo. 4, c. 83), s. 3. By s. 3 of the Vagrancy Act, 1824, a person who is able wholly or in part to maintain himself by work or by other means, and wilfully refuses or neglects so to do, by which refusal or neglect he becomes chargeable to the parish, is made liable to conviction as an idle and disorderly person. An able-bodied pauper was offered work at a farm colony, in return for which he was to receive board and lodging and a small weekly payment; the offer was subject to certain conditions, (inter alia) that he would not only not enter any premises where intoxicating drink was sold, but would discourage others from doing so; that he would attend the meetings on Saturday nights of the particular body to which the colony belonged and special meetings fixed from time to time, and would attend some place of worship once on a Sunday. The pauper refused to sign an agreement embodying those terms and left the colony, and again became chargeable to the parish: Held, that, in considering whether the refusal of the pauper to accept work was reasonable, regard must be had to the conditions upon which the work was offered; that in order to constitute a wilful refusal or neglect within the meaning of the section the conditions attached to the offer of work must be such as relate to the work itself or to the workman's conduct in its performance; that the above-mentioned conditions, though not in themselves unreasonable conditions to attach to an offer of employment, were not such that a refusal to accept work on such conditions amounted to a wilful refusal or neglect on the part of the pauper to maintain himself, and that he was therefore not liable to be convicted as an idle and disorderly person. CASE stated by a metropolitan police magistrate. The respondent was charged on an information and warrant for that he, being a person able wholly or in part to maintain himself by work or other means, did wilfully refuse or neglect so to do, by which refusal or neglect he became chargeable to the common fund of the Poplar Union. The respondent was an able-bodied person of thirty-nine years of age, and on February 23, 1904, he was admitted to the Poplar workhouse. On April 13, 1904, he and ten other pauper inmates were taken by the labour master to the farm colony established by William Booth at Hadleigh in Essex for the reception and employment of destitute men. Under the terms of an agreement between the appellants and William Booth the respondent could have started work at the colony on probation, receiving as remuneration his food and lodging free and 6d. a week in the nature of pocket-money, and if the respondent had after two or three weeks been employed upon brickwork he could have earned 4d. a yard for digging clay, at which rate of pay it was possible for some men to earn 30s. a week. He was told to go to work in the brickfield at the colony. It was not possible to do more than guess at the remuneration which he might have earned later on. These terms were explained to the respondent, and he was asked to sign an undertaking to conform to the rules of the colony; but he refused to work upon the said terms or to sign the undertaking, and left the colony. On April 18, 1904, he returned to the Poplar workhouse, and again became chargeable on the rates. It was contended on behalf of the appellants that the respondent had rendered himself liable to conviction as an idle and disorderly person under 5 Geo. 4, c. 83, s. 3. The learned magistrate decided against this contention, but stated a case for the opinion of the Court, which was remitted to him by the Court to inquire whether the respondent did actually refuse wilfully to maintain himself. (1) (1) When the case was originally before the Divisional Court the conditions upon which work at the farm colony was offered by the Salvation Army were not part of the special case, nor had they been considered by the learned magistrate in arriving 1905 POPLAR GUARDIANS v. MARTIN. 1905 POPLAR GUARDIANS v. MARTIN. On July 28, 1904, the parties again appeared before the magistrate, when the evidence already set out was repeated, and it was further proved that on April 13, 1904, the respondent came to the colony, and that on the next day one Charles Durman handed to him a form of agreement to sign, and that the respondent refused to sign the agreement or to work upon the terms thereof. The respondent would not have been allowed to work at the colony except upon his agreeing to all the terms of the agreement. He assigned no reason for his refusal, except that the remuneration was insufficient. He stated that he was a member of the Church of England, and it was proved that there was a church of the Church of England which he could have attended. The learned magistrate was of opinion that the conditions. contained in the agreement by which the colonist was required to undertake to discourage other colonists from entering premises where intoxicating liquors were sold and was to attend the Saturday night roll-call and other special meetings, which were explained to be a form of church parade, and was to attend some place of worship once on a Sunday, were not reasonable conditions to be attached to his employment, and that the respondent was justified in refusing to work on those conditions, and was therefore not guilty of the offence charged. The question for the opinion of the Court was whether the conditions contained in the agreement and referred to in the case were reasonable or not. The material portion of the agreement which every colonist was required to sign was in the following terms: "I agree to obey all the rules and regulations made for the good conduct and management of the colony, and to carry out all the instructions which may be given me by the officers and superintendents under whom I work. I promise to abstain from all intoxicating drink whilst resident on the colony; and I pledge myself not to enter any premises where intoxicating drink is sold, and to discourage others from doing so. I also promise to abstain must be had to the conditions upon magistrate for rehearing with a direction to that effect. from the use of all profane or obscene language whilst on the colony. I promise to attend the Saturday night roll-call meetings in the Citadel, and any special meetings which may from time to time be arranged by the governor of the colony. I also promise to attend some place of worship once on a Sunday." Colam, for the appellants, contended that there had been a wilful refusal to work on the part of the pauper, and that the conditions attached to the offer of employment were not unreasonable. [LORD ALVERSTONE C.J. referred to Carpenter v. Stanley. (1)] The respondent did not appear. LORD ALVERSTONE C.J. The question raised by this case is one of considerable difficulty. The question which we have to consider is whether the respondent, being able wholly or in part to maintain himself, or his family, by work or other means, wilfully refused or neglected to do so, by reason of which refusal or neglect he became chargeable to the parish. He was offered work in return for his food and lodging and 6d. a week pocket-money, and conditions in many respects most salutary and useful were attached to the offer; for instance, that the money made by his work was to go to a fund in which he had an interest, though what his exact interest was we are not informed; and it further appeared that if he stayed in the employment he might become qualified to earn a higher rate of wages in a short time. Taking these facts by themselves, and if there had been nothing else in the case, I should hesitate before coming to the conclusion that a man who was offered without restriction employment of that kind, and who declined it, had not wilfully refused to work. It is true that the respondent objected to the rate of pay as insufficient, and if under the circumstances it appeared that the pay, the food, or the lodging offered him were such as to shew that he was not getting a substantial remuneration for his work, there might be good ground for his refusal to work; but that is not the case here. (1) (1868) 33 J. P. 37. 1905 POPLAR GUARDIANS V. MARTIN. |