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1. Enactments, &c. Indentures and
Indentures and certificates of
not sworn in.
Eleventhly, of duly and fully proved, and shall be taken and received as evidence, without settlement by other proof thereof; and that all certificates given in pursuance to the said acknowledg- act, before the said twenty-fourth day of June, one thousand seven hundred ment, &c.
and thirty, shall be also taken and allowed in all courts as evidence, without other proof; provided the same are duly allowed by two justices of the peace, as by the said act is required.”
By 51 Geo. III. c.80, s. 1, after reciting, that “ Whereas all certificates of certificates here the settlement of poor persons, which have been executed and signed by such two persons only, two persons, purporting to be the churchwardensandoverseers of such parishes; acting as church- but, by reason that the said indentures and certificates have not been signed wardens, &c.,
by distinct persons as churchwardens and other distinct persons as overseers, such indentures and certificates have been or may be deemed to be void,” it is enacted, “ That all indentures for the binding of parish apprentices, and all certificates of the settlements of poor persons, which have been heretofore executed and signed by two persons only, acting or purporting to act in the capacity of church warden as well as of overseers of the poor, and also all such indentures and certificates as shall hereafter be so signed, shall be considered as good, valid and effectual, as if the same had been executed and signed by distinct persons as churchwardens, and distinct persons as overseers of the poor, according to the said recited act; any thing therein or in any other act contained to the contrary thereof notwithstanding."
Sect. 2. “That nothing in this act contained shall extend to do away or alter any decision which may have taken place in any court of law, respecting the binding of any parish apprentice, or the settlement of any poor person before the passing of this act."
And by 54 Geo. III. c. 107, after reciting that whereas by 8 & 9 W.JII. settlement valid,
c. 30, it is enacted, “That persons coming to inhabit in any parish, townalthough church. ship, or place, shall bring with them a certificate under the hands and seals wardens, &c., of the churchwardens and overseers of the poor, or the major part of them,
of some other parish, township, or place, thereby owning and acknowledging the person or persons, mentioned in the said certificate, to be an inhabitant or inhabitants legally settled in that parish, township, or place; and whereas divers parishes contain within themselves several townships, hamlets, or chapelries, each of which separately maintains its own poor; and whereas in such parishes the churchwardens are, for the most part, sworn into their offices as church wardens of the whole parish, although in truth and in fact they act as church wardens of the separate townships, hamlets, or chapelries, therein contained ; and whereas divers indentures for the binding of parish apprentices, and certificates of the settlements of poor persons, have heretofore been signed and executed by a person or persons styling himself or themselves, and stated in such indentures and certificates, to be churchwarden or church wardens, chapelwarden or chapelwardens, of the township, hamlet, or chapelry, binding such poor apprentices, or granting such certificate; and whereas such person or persons have not been sworn into the office of churchwarden or chapelwardens of such township, hamlet, or chapelry, but of church warden of the parish wherein such township, hamlet, or chapelry, is contained; it is therefore enacted, That all indentures for the binding of poor apprentices, and all certificates of the settlements of poor persons, which have been heretofore signed and executed, or which shall hereafter be signed and executed by a person or persons, who at the time of his or their signing and executing such indenture, or certificate of settlement, acted as church warden or churchwardens, chapelwarden or chapelwardens, of the township, hamlet, or chapelry, binding such poor apprentice, or granting such certificate of settlement, shall be deemed and taken to be as good, valid, and effectual, as if the same had been signed and executed by a person or persons actually sworn into the office of church warden or chapelwarden of such township, hamlet, or chapelry; provided always, that such person or persons shall have been duly sworn into the office of churchwarden of the parish wherein the township, hamlet, or chapelry, binding such poor apprentice, or granting such certificate, be contained, or into the office of churchwarden or chapelwarden of such township, hamlet, or chapelry."
Sect. 2. “ That all indentures for the binding of poor apprentices, and Eleventhly, Of all certificates of the settlement of poor persons, which shall have been here- settlement by tofore signed and executed, or which may hereafter be signed and executed acknowledge by the overseers of the poor of any township, hamlet, chapelry, or place, and the church warden or church wardens, chapelwarden or chapelwardens, acting for or appointed in respect of such township, hamlet, chapelry, or place, or &c. the major part of them, shall be deemed and taken to be as good, valid, and effectual, as if the said indentures and certificates had been signed and executed by such overseers and the church wardens of the parish wherein such township, hamlet, chapelry, or place, is situate, or the major part of them.”
Sect. 3. “ Provided always, that nothing herein contained shall be construed to alter, impeach, or affect, the settlement of any person, for whose removal order of justices shall have been duly made before the passing of this act."
Stat. 1 and 2 Geo. IV. c. 32, after reciting that “ Whereas in divers Certain inden parishes, townships, hamlets, chapelries and places in England, for a long cates of settleperiod of time, only one church warden or chapelwarden has been annu- ment declared ally appointed, where two or more churchwardens or chapelwardens had valid. formerly been appointed for each of such parishes, townships, hamlets, chapelries or places: And whereas divers indentures for the binding of parish apprentices, and certificates of the settlements of poor persons, which may have been executed and signed by such single church warden or chapelwarden, acting in and for a parish, township, hamlet or place, for which formerly two or more churchwardens or chapelwardens had been appointed, may, on that account, if contested in a court of law, be deemed to be nuli and void: And whereas much litigation has recently arisen between parishes, owing to the discovery of such defect as above mentioned in the appointment of churchwardens and chapelwardens; and it would tend to prevent future litigation, if such indentures and certificates as before mentioned were in certain cases declared to be valid and effectual :” Enacts, “That from and after the passing of this act, all indentures for the binding of parish apprentices, and certificates of the settlement or settlements of poor persons, which have been, previous to the passing of this act, executed or signed by one church warden or chapelwarden, acting or purporting to act in the capacity of church warden or church wardens, chapelwarden or chapelwardens, for any parish, township, hamlet, chapelry or place in England, for which two church wardens or chapelwardens had formerly been appointed, shall be deemed and taken to be as good and effectual, to all intents and purposes, as if the same indentures or certificates had been executed by one or more church warden or chapelwarden, churchwardens or chapelwardens legally appointed.”
Secondly—The Form of the Certificate and Allowance. To the Churchwardens and Overseers of the Poor of the Parish of
in the 2. The form of
certificate. County of We the churchwardens and overseers of the poor of the parish of
in the county of do hereby certify, own, and acknowledge, that E. F. labourer, is an inhabitant legally settled (a) in our parish of aforesaid. In witness whereof we have hereunto set our hands and seals, the
in the year of our Lord Attested by
A. B. ?
Churchwardens. N. 0.
C. D. I
Overseers of the poor. We R. S. and T. U. esquires, two of his Majesty's justices of the peace in and for Justices' allowthe said county of
do allow of the above written certificate. And we do ance. also certify, that N. 0., one of the witnesses who attested the sume, hath this day made oath before us, the said justices, that he the suid N. 0. did see the churchwardens
(a) Certificate acknowledging the been held sufficient. Rex v. Hilperlon, pauper to be an inhabitant, without Burr. S. C. 227, using the words “ legally settled," has
Eleventhly, of and overseers of the poor of the parish of aforesaid, whose names and seals are settlement by thereunto subscribed and set, severally sign and seal the same ; and that the names of acknowledg- N. 0. und P. Q., who are the witnesses attesting the said certificate, are respectively ment, dc. of their own proper hand writing. Given under our hands this day of
3. Of the direc. tion, &c. Certificate need
Thirdly-Of the Direction of the Certificate. The statute does not require any particular direction ; and, therefore, if the certificate is not addressed at all, the omission will not vitiate. In
Rex v. Lillington, 1 East, 438, Lord Kenyon said, A certificate need not be not be directed to directed to the particular parish to which it is delivered. But, he added, which it is deli- a certificate is not a transferable instrument from one parish to another; for
then it would operate as a licence for vagrancy. That is, after it has perBut a particular
formed its office in one parish, it cannot be taken to another for the same parish must be intended. purpose; and so from parish to parish as often as the certificated person
shall choose to remove himself. And in Rex v. Lubbenham, 4 T. R. 251, Lord Kenyon, C. J., said, there must be a particular parish in contemplation at the time of granting the certificate. [And see post, 684, 5.]
Rex v. St. Nicholas, in Harwich, 2 Stra. 1163. The pauper came into St. Nicholas, in Harwich, with a certificate from Woolverstone, addressed to the parish of Harwich, near Dover Court. The sessions were of opinion, as there was a mistake in the name of the parish in the address of the certificate, that Harwich could not be obliged to receive the pauper. But it was ruled they were, for it is not to be considered as a certificate to any particular parish, but as a general acknowledgment of his being a pa
rishioner of Woolverstone, and is conclusive against them for all the world. May be to parish A certificate was directed “ To the churchwardens and overseers of the parish in city and parish of Holy Trinity, or any other parish in the city and county of county of Coventry,” this certificate was held to be valid. Rex v. Lillington, (supra.)
Fourthly-Of the Signature and Seuls of the Certificate. 4. Of the signa- The 8 & 9 W. III. c. 30, (ante, 662,) requires the certificate to be under
the hands and seals of the church wardens and overseers, or the greater part be signed by a
of them. majority of the
Rex v. Tamworth, 3 Burr. S. C. 770. A certificate must be signed by a churchwardens
majority of church wardens and overseers, or it is void. Same point in Řer If signed by one v. Maryam, 1 T. R. 775.
Rex v. Clifton, 2 East, 168. The appointment of one overseer alone for
a township is bad in law, and a certificate granted by such overseer cannot four church war. avail; for, by the statute of Elizabeth, the church wardens and not less than
two substantial householders, are required to be nominated overseers. The statute of W. III. directs that it shall be made by the church wardens and overseers, or the major part of them; or, where there are no churchwardens, by the overseers; and a certificate, like the present, is not granted by either one or the other of those descriptions of persons. The 13 & 14 Car. II. requires, at least, two persons to be appointed overseers for a township. Therefore, this latter statute requiring two to be appointed, and the statute
of W. III. having required the certificate to be executed by the overseers, So if signed by where there are no churchwardens, and there having been but one overseer township.
appointed by the township, by whom this certificate was granted, I am of opinion this was void. Per Grose, J.
In Rex v. St. Margaret's, Leicester, 8 East, 332. A certificate signed by two churchwardens, one of whom was sole overseer, was decided to be a nullity. To remedy which inconvenience, the 51 Geo. III. c. 80, s. 1, was
passed; for which see ante, 664. A parish certifi. Rex v. Catesby, 2 B. & C. 814. Removal of George Cox, from Badby, to cate, purported to be granted in
Catesby. Case: The respondents produced a certificate dated the 10th of May, 1761 by A., the in 1761, stating that W. Goodman, the only churchwarden, and E. Webb, only churchwar.
the only overseer of the parish of Catesby, did certify the parish of Badby, den, and B., the only overseer of that they did acknowledge Thomas Cox to be settled in Catesby.- Bayley, the parish : Held, J. Upon the principle established in several cases it seems to me that this that it must be taken to have
is a good certificate. In Rex v. Hinkley, Lord Ellenborough and Le Blanc been a good cer- J., both say, that if any intendment can by law be made to support an tificate, because
indenture of apprenticeship, the Court must make that intendment. In that
church warden and one overseer, where there are
dens and two overseers, it is void.
one overseer of a
such an instru.
that the certifi.
cy was filled up.
case, the indenture was produced on one side, and there was no evidence to Eleventhly, Of impeach it on the other, and Le Blanc, J., says, “ The question then is, settlement by whether by any intendment of law such an indenture can be good ?” and
acknowledgboth Judges say, it might be considered good " by intending that there was
ment, dc. a custom in the particular parish to have only one church warden.” There
4. Of the signaare two acts of parliament which bear upon this question, and which contain ture, &c. similar language; the 43 Eliz. c. 2, s. 5, which relates to parish apprentices, it may be intendand the 8 & 9 W. III. c. 30, which relates to the granting of certificates. ed in favour of Both these acts require that there shall be the concurrence of the church
ment, that by wardens and overseers" or the major part of them,” to give validity to the custom there was indentures and certificates respectively, and therefore decisions upon the one warden in the throw a light upon the other; and notwithstanding the statute 17 Geo. II. parish, and that c. 38, s. 3, which gives to the justices a power of appointing an additional two overseers overseer when one shall die in the course of the year, I think that this case nally appointed, is to be considered as it would have been prior to the period when that act but that one of
them died, and passed. Generally speaking, there are two churchwardens in every parish; but, by custom, there may be one only. By law, there must be two overseers cate was granted originally appointed, and an appointment of less than two is, upon the face before the vacanof it, bad; but if by custom there may be only one church warden appointed, and if there be two overseers duly appointed, death may reduce the number to one, and then the question would be, whether, prior to the statute 17 Geo. II., that churchwarden and that overseer might not do the act in question, as constituting the major part of the persons originally appointed. In the case of Rex v. Št. Margaret's, Leicester, there was a very plain and decisive objection to the certificate, because in that case there was only one overseer originally appointed, and it was with reference to that fact, that the language of Lord Ellenborough and Lawrence, J., there is to be applied. They said that the certificate act, 8 & 9 W. III. c. 30, requires that a certificate shall be granted under the hands and seals of the church wardens and overseers of the parish, or the major part of them. It has since been decided, in Rex v. Hinckley and Rex v. Earl Shilton, that though the word in the statute is “churchwardens,” yet, by custom, if one only be appointed, that one will be sufficient to satisfy the word church wardens; but it being clear that, by law. less than two overseers cannot be appointed, there must have been originally two overseers; and in the case of Rex v. St. Margaret's, Leicester, it was stated as a fact that there was one only. In Rex v. Clifton the certificate was stated to be under the hand and seal of J. W., “ only overseer of the poor of the township," and therefore the Court decided, not upon the language of the certificate itself, but upon the fact that originally there had been an appointment of one only. The cases of Rex v. Hinckley and Rex v. Earl Shilton, both establish this proposition, that if a certificate, or the binding of a parish apprentice, be by one church warden and one overseer, it is good, and it is only because in this case the certificate describes Edward Webb as “the only overseer,” that we are at liberty to assume that there was originally a bad appointment. Now let us consider the law of presumption, with reference to that point. Are we to presume that it was non rite actum. The statute says that the justices are to appoint two overseers. Are we then to presume that the justices have deviated from their duty and appointed one only, or are we not rather to presume that two overseers had been duly appointed, and that one of them had died ? The law will presume that a party has conformed to the law; and if we are to make any presumption, it is ut res magis valeat quam pereat. Between these two, I say, that presumption ought to prevail which assumes that the justices have conformed to the law; and therefore I think we ought rather to support the instrument than destroy
Upon this principle it appears to me, we are at liberty to assume that in this case, William Goodman was, by the custom of this parish, the only churchwarden appointed; that Edward Webb was the only surviving overseer, that he duly granted the certificate in the character in which he is described upon the face of the instrument, which he would not have done had he not been regularly and duly appointed; and that we are bound to intend, according to the language of Lord Ellenborough, in Rex v. Hinckley, that there had been originally a good and valid appointment of two, there being no evidence to shew what the appointment was, or to rebut the inference arising from the
Eleventhly, of face of the certificate itself. For these reasons I am of opinion, that as against settlement by the parish which has granted this certificate, we ought to hold that this overacknowledg- seer was duly authorised to do the act in question, and therefore that the ment, &c.
order of sessions must be confirmed.-Holroyd, J. I am also of opinion 4. Of the signa
that the order of sessions must be confirmed. I think, upon the authorities ture, &c. which have been cited, and likewise upon the principles which ought to
govern us, assuming that the authorities did not exist, that this certificate was good in point of law, or at least that the sessions might legally draw the conclusion, and intend from the circumstances which appeared in evidence, that it was a good certificate. The certificate was granted on the 17th May, 1761, by two persons who were at that time to be taken as the only existing parish officers. It is submitted to by the parish to whom the pauper is sent, as a good certificate, and now after a lapse of sixty-three years, it is for the first time called in question. If any intendment or presumption can legally be made in favour of the validity of such an instrument, it must be in a case of this description ; and I think that the justices had authority in point of law to presume such facts as would make it a good certificate, assuming such facts to have had existence. That such facts might really exist, there seems no doubt; at least upon the authority of the cases cited. It is perfectly clear that by custom there may be only one church warden in a parish. There must be two overseers appointed in addition to the churchwardens; and then, according to the 43 Eliz. c. 2, such persons shall be called overseers of the poor, and are to take charge of them. Now upon the face of this instrument, I think we are to take it, that the person who is called "the only overseer” of the poor, was, in point of law, the survivor of two; for unless there had been two persons appointed, who, together with the church wardens, were to be overseers of the poor, the statute of Elizabeth would not have been satisfied. Indeed, the description of himself as “the only overseer" would not be correct, unless there had been two overseers originally appointed, and therefore it is a fair presumption, arising from the face of the certificate, that he was the survivor of two. Suppose an issue had been directed to try simply whether he was or was not the overseer of the parish; if it was shewn that there had been only one originally, the issue must have been found that he was not the overseer of the parish, and if the onus was to be thrown upon those who are called upon to support the certificate, (even assuming that it had been submitted to for an hundred years), it could not, by legal intendment, be considered a good certificate. I think, however, that the magistrates were abundantly warranted in presuming, as they have done, that there had been an appointment of two overseers originally, and that if there was by custom only one church warden, they had a right to presume the fact in favour of the certificate. If so, then the certificate must be considered as signed by a majority of those who would be the original existing body. Whether it is absolutely necessary for the purpose of executing their functions, that the majority of the original existing body should continue to exist or not, is a question which we need not decide, because if that was necessary, the 17 Geo. II. would not have been passed, for then, in case the original churchwardens and overseers had been reduced below a majority, as for instance, if there were originally four, and they were reduced to two, all their functions must be at an end during the residue of the year, until that statute had passed. It is, however, unnecessary to decide that question. In this case the sessions have drawn, as they had a right by law to do, the proper conclusion from the presumption of facts, in holding that this was a legal certificate, and as they have done that, I think we should not be justified in reversing their order. But, independently of what they have done, ! am of opinion that, according to the authorities of Rex v. Hinckley and Rex. v. Earl Shilton, we are bound by law to make every intendment that can reasonably be made in favour of the certificate. Acting upon the maxim, res magis valeat quam pereat,” we ought to conclude that this certificate has been legally granted by persons who describe themselves as “ the only church warden and the only overseer,” which the latter person could not have done with propriety, unless there had been two originally appointed ; and inasmuch as there might have been originally only one