upon

the one

case, the indenture was produced on one side, and there was no evidence to
impeach it on the other, and Le Blanc, J., says, "The question then is,
whether by any intendment of law such an indenture can be good?" and
both Judges say, it might be considered good "by intending that there was
a custom in the particular parish to have only one churchwarden." There
are two acts of parliament which bear upon this question, and which contain
similar language; the 43 Eliz. c. 2, s. 5, which relates to parish apprentices,
and the 8 & 9 W. III. c. 30, which relates to the granting of certificates.
Both these acts require that there shall be the concurrence of the church-
wardens and overseers" or the major part of them," to give validity to the
indentures and certificates respectively, and therefore decisions
throw a light upon the other; and notwithstanding the statute 17 Geo. II.
c. 38, s. 3, which gives to the justices a power of appointing an additional
overseer when one shall die in the course of the year, I think that this case
is to be considered as it would have been prior to the period when that act
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
originally appointed, and an appointment of less than two is, upon the face
of it, bad; but if by custom there may be only one churchwarden 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 objec-
tion to the certificate, because in that case there was only one overseer origi-
nally 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 churchwardens 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 churchwardens; 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 churchwarden 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
it. 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 church-
warden 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 settlement by acknowledgment, &c.

4. Of the signature, &c.

face of the certificate itself. For these reasons I am of opinion, that as against
the parish which has granted this certificate, we ought to hold that this over-
seer was duly authorised to do the act in question, and therefore that the
order of sessions must be confirmed.-Holroyd, J. I am also of opinion
that the order of sessions must be confirmed. I think, upon the authorities
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 churchwarden 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 instru-
ment, I think we are to take it, that the person who is called "the only over-
seer" of the poor, was, in point of law, the survivor of two; for unless there
had been two persons appointed, who, together with the churchwardens,
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 intend-
ment, 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 churchwarden, 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 func-
tions, 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 in-
stance, 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, I
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, 66
res magis valeat quam pereat," we ought to conclude that
this certificate has been legally granted by persons who describe themselves
as "the only churchwarden 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

settlement by acknowledg

ment, &c.

4. Of the signature, &c.

churchwarden by custom, we must presume, particularly after an acquiescence Eleventhly, Of of sixty-three years, that the person who signed the certificate was a majority of the existing body, and consequently that this was a valid certificate.Littledale, J. I am of the same opinion. A certificate signed by one churchwarden and one overseer alone, would certainly not be sufficient, unless the law would intend something more. But it appears to me, that upon the face of this instrument, we are at liberty to intend those circumstances which are necessary to give it validity. First, with respect to the churchwarden, I think there is no difficulty in intending that he was such a churchwarden as the custom of the parish would authorise, inasmuch as, by custom, there may be only one churchwarden in a parish. Then, secondly, with respect to the overseer, though a certificate signed by one overseer would be bad, still we are at liberty to assume, from the language of this certificate, that there were originally two overseers appointed, but that one had died after the appointment, and before the certificate was granted. It is said, we are called upon to intend death instead of the continuance of life. So we are; and I think we are at liberty to do so, until the contrary be shewn. But we are placed in the situation of choosing between two intendments, a particular, and a general intendment; first, that a party should be presumed to live, when once shewn to be alive; and second, that every thing shall be presumed to be right according to law. Now the question is, Which of these two intendments is to prevail? because it is impossible that both can operate. The intendment that every thing is to be presumed to be right according to law, is a general intendment, and, I think, ought to prevail, especially in a case of this description, until the contrary is shewn. In the cases of Rex v. Clifton, and Rex v. St. Margaret's, Leicester, the question of intendment did not arise, because the facts did not warrant it. There the appointment of one overseer was nugatory, being contrary to the statute. But here, after the lapse of sixty-three years, the description of the overseer may warrant us in presuming an original appointment of two overseers, and enable us to intend that one of them had died. The cases of Rex v. Hinckley and Rex v. Earl Shilton, are authorities to warrant the Court in saying, that every thing must be presumed to be rightly done, until the contrary is proved. So in Rex v. Morris, which was the case of an appointment by justices of one overseer for a hamlet in a particular parish, in which the question was, whether only one overseer could by law be appointed, Lord Kenyon says, "This Court has invariably made a distinction between orders of justices and convictions, and said, that every thing is to be intended in support of the former;" and speaking of the objection there, as to the supposed illegality of the appointment of one overseer, he said, "we are not left to conjecture that no other person was appointed overseer of this place, for it appears on the order of sessions, that this was an appeal of one of the overseers." Now, when we apply what that learned judge says to the present case, that every thing should be intended in support of the order of justices, I think it will justify our opinion on the present occasion. This certificate is a public document, and though not framed by justices of the peace, yet being the act of the parish officers, the Court, for the same reason that it intends every thing in favour of an order of justices, will intend every thing in favour of an instrument made by parish officers. On the whole, therefore, I am of opinion that this is a valid certificate. Order of sessions affirmed. Rex v. Austrey, 6 M. & S. 319. The case is fully stated in the judgment given by Lord Ellenborough :

In this case an order of removal of J. Smith, from St. Margaret's, Leicester, to Austrey, was confirmed, subject to a case. The question now remaining for the opinion of the Court, arose upon a certificate, duly attested and allowed by two justices, granted to the pauper, purporting to be the certificate of J. S., J. P., and J. B., churchwardens and overseers of Appleby, acknowledging the pauper to be settled at Appleby. In witness whereof (the certificate stated) we have hereunto set our hands and seals, the 4th of April, 1768. This certificate, the case states, is under the hands of S., P., and B., but there are only two seals, one opposite to the names of S., and P., styled churchwardens, and the other opposite the name of B., styled

The certificates

must be under

the distinct and several seal of cach church

warden and over

seer.

4. Of the signature, &c.

Eleventhly, Of overseer. And the question is, Whether this is a good certificate within the settlement by 8 & 9 W. III. c. 30? If it is not a good certificate, the order of sessions acknowledg- must be confirmed. The certificate, required by sect. 1. is a certificate under ment, &c. the hands and seals of the churchwardens and overseers of the poor, or the major part of them, or under the hands and seals of the overseers of the poor, where there is no churchwarden. The certificate in question being a certificate by the two churchwardens, and by one only of the overseers, and under two seals only, it was objected that it was not a certificate under the hands and seals of the churchwardens and overseers of the poor, or the major part of them. In answer to this, it was contended, that if several persons seal and deliver an instrument, by putting their several seals upon one and the same piece of wax or wafer that is put upon the instrument, or using the same as their several seals, and delivering the instrument as their respective deeds, that the seal becomes the several seal of each, and that the instrument becomes the deed of all: and that this reasoning is applicable to the present case as shewing, that, in law, the seal opposite the names of the two churchwardens, is to be considered as the distinct seal of each, and therefore, that the certificate testifying that the three had, in witness thereof, set their hands and seals thereto, and having been allowed by two justices, and the certificated person having been received under the same, was to be considered in law as being under the hands and seals of the three. In considering how far the cases of deeds are applicable to a case like the present, it is to be recollected, that in those cases the parties alone, under whose authority the deeds were executed, are bound by them. But the present is the case of the execution of a power, which binds and operates upon other persons at their peril, and subjects them to indictments as for crimes, in case of their disobedience to the power, if it be duly executed. In the execution of powers, all the circumstances required by the creators of the power (however unessential and otherwise unimportant) must be observed, and can only be satisfied by a strictly literal and precise performance. (Hawkins v. Kemp, 3 East, 440.) It is also a general principle of law, whenever a power is given to particular persons to do any written act in a particular manner, and under certain particular circumstances,-whether it be to parish officers or magistrates, to grant certificates, under which, if duly executed, other persons, especially public officers, are bound to act, or to grant warrants, or make orders, that their authority must appear on the instrument itself. It must thereby appear, that they are the persons authorised, and that the certificate, warrant, or order, was made in the manner and under the circumstances required; otherwise it is not obligatory, but void: the mere statement that the parties, in witness thereof, have put their hands and seals to such an instrument, does not make it so, unless it really have their hands and seals put to it; nor, in the execution of a power has it, as it seems to us, their hands and seals to it, so as to make it a good execution of a power requiring such execution to be under their hands and seals, unless it be apparent, upon the instrument itself, that it has the hand and seal of each put to it. The statute is to be construed, in a case like this, according to common parlance and understanding, and so as to be a security to persons who are bound to obey the powers given by it at their peril, and not to be construed according to what may be brought within its words by nice legal reasoning, applicable merely to deeds, and by which construction persons bound to obey the execution of the power, if it be duly granted, cannot ascertain whether it be so or not, without delay, enquiry, expence and trouble. In Thaire v. Thaire, Palm. 109, 112, where there was a submission to arbitration, "so that the award be delivered under their hands and seals," it was made a question, whether an award sealed, but not signed, was a good award: the point argued being, Whether the sealing, which was virtually a signing, was sufficient; or whether the words of the submission should be intended, in common parlance, an actual writing of their hands? The judges of C. P. were at first divided, but it was finally decided by the whole Court, not that a virtual signing would do, but that there ought to be an actual signing under their hands. So, where an act is to be under the hands and seals of the three, a mere virtual sealing by any of the three

Eleventhly, Of settlement by acknowledg

ment, &c.

4. Of the signa

appears to us not sufficient; but it ought to be under the actual distinct
seal of each of the three, that is to say, under a distinct and several sealed
impression adopted by each of the three. The necessity and importance of
requiring this is still more striking in cases of warrants of imprisonment,
(where they are required to be under the hands and seals of two justices of
the peace), where resistance and death might follow, and where the justifi- ture, &c.
cation or high criminality of the officer or of the party to be apprehended,
would depend upon the uncertainty, and upon the subsequent establishment
by extrinsic proof, whether the seal, if one sealed impression on the warrant
would in any case do, was used so as to be considered in law the seal of both
or one: the consequence is, we think, the certificate is void, and that the order
of sessions must be confirmed.

Rex v. Whitchurch, 7 B. & C. 573; 1 M. & R. Mag. Ca. 167. Order of removal of William Bray, &c., from Whitchurch to St. Mary's Bourne, quashed. Case: A certificate was produced, by which J. Harbutt, W. Piper, W. Arundel, and W. Phillpott, churchwardens and overseers of St. Mary's Bourne, acknowledged W. Bray, jun., and his wife, William, Mary, and Elizabeth, their children, to be inhabitants settled in St. Mary's Bourne. Signed, &c., " In witness whereof we have hereunder set our hands and seals, this 7th day of September, 1758. (L. S.), W. Piper, (L. S.), churchwardens; W. Arundell, (L. S.), the mark of W. Phillpott, (L. S.), overseers. Attested by us, T. May, A. Neave."

It was directed to Whitchurch, and was duly allowed on the 12th of September, 1758. William Bray, jun., the grandfather of the pauper, resided in Whitchurch till the time of his death, in 1799; William Bray, his son, also named in the certificate, had resided there ever since the certificate was granted; and the pauper had resided there from the time of his birth, till the time of this order. It appeared by the visitation books, that St. Mary's Bourne is in the diocese of Winchester, and is a peculiar within the jurisdiction of the Chancellor's visitation. Harbutt and Piper were not sworn churchwardens in 1758, till the 15th of September. No churchwardens appeared by the books to have been sworn at the visitation, from 1751 to 1758 the visitation book for 1750 was lost. It appeared from the registrar, that it was the course of office to make an entry in the visitation books of the swearing of churchwardens, at the time of swearing, whether the swearing takes place at the visitation, or afterwards. If it took place afterwards, the registrar always entered it, but he had not looked over the books before his time to see whether there was any entry of such subsequent swearings. At Easter, 1750, J. Longman was nominated churchwarden. In 1757, T. Cowdey and E. Maltin were nominated churchwardens, and Harbutt signed the nomination. At Easter, in 1758, Thomas Harbutt and William Piper were nominated churchwardens. The pauper was, on the 7th day of December, 1790, bound by indenture to his grandfather, for seven years, which he served in Whitchurch. The father of the pauper, sixteen or seventeen years ago, received relief from the overseers of St. Mary's Bourne, he at that time residing at Whitchurch. He has also, constantly, for these last two years, received relief from St. Mary's Bourne; and no objection was made upon his application for relief, when he required it. The pauper had been occasionally relieved by St. Mary's Bourne, nearly ever since his apprenticeship, whenever he wanted it, and has constantly received relief for the last seven or eight years. The sessions thought the certificate inadequately executed.—Bayley, J. The certificate, upon the validity of which the question in this case turns, was granted nearly seventy years ago. It contains the names of four persons, whom it describes as churchwardens and overseers of St. Mary's Bourne. It appears by the visitation book, that the churchwardens were sworn into office three days after the allowance of the certificate; therefore it has been contended, that the execution by Piper being an act done before he was sworn, was done without authority, and is not binding upon the parish. Now, though the fact may be, that at the time when he executed this certificate he had not taken the oath of office, still the other parish into which the pauper went, and in which, in consequence of his having the certificate, he was suffered to reside, must have been

A certificate granted in 1758 by four persons, as churchwar

dens and overseers, was signed seers, and by one

by both over

churchwarden. The churchwar

den was nominated at Easter,

and sworn in September, the usual time for swearing churchthere was no proof of his having been sworn the certificate. The parish reand his family in another parish,

wardens, and

when he signed

lieved the pauper

at various times, from 1758 to

1827: Held, first,
that the execu-
tion by two over-
churchwarden,
was an execution
of the church-
by the major part
wardens and

seers and one

overseers; and secondly, that after such a lapse of time, the Court the churchwarden was sworn

will presume that

before he signed the certificate.