Eleventhly, Of settlement by acknowledgment, &c.

4. Of the signature, &c.

When a certificate will not be presumed to be valid, though 80 years old.

equally imposed upon, and must have been induced to believe that the cer-
tificate was genuine, and had been executed by competent officers. If we
were bound, in point of law, to allow this objection, we must do so, not-
withstanding the grievous injustice which would result from it, and though
one of the consequences would be, that no prudent person would, from
henceforth, receive a certificate, and the object of the statute would be en-
tirely defeated. But, as it seems to me, it is by no means necessary, in
order to render such an act as this binding upon the parish, that the church-
wardens shall have been previously sworn. The parish may allow him to
act as their officer de facto, though there may be another, who is officer
de jure; and if they do hold him out as churchwarden de facto, and suffer
him to act in that capacity, they cannot be permitted to practise the fraud
of afterwards denying the validity of his acts. At present, therefore, I am
disposed to think, that the fact of the churchwardens not having been sworn
until after the execution of the certificate, does not vacate it. It is clear,
from the statement in the case, that the parish have all along, almost from
the year 1758 down to the time when the present order of removal was
made, been acting upon the certificate, as good and valid. It is not then, in
my opinion, too much for us to presume that it is so; and I think cases
may be put from which we may assume it to be really valid. It may have
happened, for instance, that the churchwardens were first sworn at, or shortly
after their nomination, and were afterwards sworn again at the visitation, in
September. Piper, the only person respecting whom there is any dispute,
may have wished to be, and may actually have been, sworn at Easter,
although the administration of the oath was not recorded, and may after-
wards, in September, have been required to take the oath again. We may
presume this, and I think it is perfectly fair and reasonable to presume it.
To the other parish these persons were held out as churchwardens duly and
legally appointed; and unless some such presumption as I have suggested
is admitted, we must, on the other hand, be driven to presume, that which a
court of law never can presume, that a fraud was contemplated and prac-
tised. I am, therefore, of opinion, that justice requires us to presume that
the churchwarden had been sworn when he executed this certificate; and
then it follows that the certificate is valid, and it becomes unnecessary to
decide upon the other points raised in the case.—Littledale, J. (a) I am of the
same opinion. If it were necessary to decide the question of law, whether
the execution of a certificate is an act which a churchwarden de facto, who
has not been sworn, has authority to do, I should wish for time to consider that
point, upon which I at present entertain great doubts. But I think we need
not decide that question, because the lapse of time is quite sufficient to justify
us in presuming, that every thing necessary to be done to make the certificate
valid and binding, was done. I think that we may fairly presume that
Piper, upon his nomination to the office, went before the commissary and
took the oath, and that the fact of his having taken it at that time, was,
from some circumstance or other, omitted to be registered. We cannot pre-
sume fraud and illegality, which we must do, if we decide against the cer-
tificate upon this objection. With respect to the supposed necessity of both
the churchwardens signing the certificate, the statute only requires that the
major part of the aggregate body of churchwardens and overseers shall sign,
and not that the major part of each of those classes of officers shall sign.
Upon the whole, it seems to me that we must consider this as a valid certifi-
cate, and, therefore, that the order of sessions must be quashed.

Rex v. Upton Grey, E., 11 Geo. IV. MSS. A certificate was signed by
two churchwardens and two overseers on the 16th of April, 1748. On the 27th
of May, 1747, five overseers were appointed, two of whom signed the certifi-
cate. A church rate was signed, on the 28th of May, 1748, by four church-
wardens. Five overseers and four churchwardens were appointed in 1746.
-The Court would not presume any facts, to make this certificate valid;
and confirmed the order of sessions rejecting it.

(a) Holroyd, J., was absent.

Eleventhly, Of settlement by acknowledgment, &c.

Rex v. Samborn, 3 T. R. 609. The certificate stated that T. A. and R. B. of Samborn, churchwarden and overseer of the parish of Great Coughton, acknowledged the pauper to be settled at Samborn, in their said parish of Great Coughton. The hamlet of Samborn maintains its own poor separately from the parish, and has a churchwarden and overseer of their 4. Of the signaT. A. and R. B., were churchwardens and overseers of Samborn, at ture, &c. the time of granting the certificate. It was objected that evidence ought Persons describto have been received, to shew that the persons described in the certified as officers of the parish, may cate as the officers of the parish, were the officers of the hamlet.—Buller, J. be proved to have The evidence does not contradict, but it explains the certificate. been officers of the hamlet.

own.

Rex v. St. Ives, 2 Sess. Ca. 153. A mandamus was moved for, to compel the churchwardens and overseers to sign a certificate, acknowledging a poor person being settled in their parish, on an affidavit that he had served an apprenticeship there, and that he was capable of getting a good livelihood elsewhere; but the Court rejected the motion as a very strange attempt.

Fifthly-Of Allowance and Attestation. (a)

&c.

Certificates to be signed by two

Rex v. Wooton, St. Lawrence, Burr. S. C. 581; 2 Bott, 713. The parish 5. Of allowance, officers of St. Lawrence gave to Thomas Pryor, the pauper, a common printed form of a certificate, acknowledging him to be settled in St. Lawrence. It was signed and sealed by the parish officers, and attested by two witnesses. justices; but they But the blanks for the allowance of justices were not filled up, and no name are not obliged to of any justice signed thereto. On his return to the parish granting the sign. certificate, they relieved him until the time of his removal.-By Lord Mansfield, C. J. A certificate cannot conclude the parish, unless properly signed. The certificate act specifies certain checks and guards upon certificates. The justices are not obliged ministerially to allow and sign a certificate; they are not bound, at all events, to allow and sign it; they have a discretion to allow it, or not to allow it, if it be liable to objection. The act requires a conclusive certificate, to be under the checks and guards therein particularised. This certificate wants them; therefore it is no certificate within this act. And if it be not a certificate within the act, it cannot conclude the parish.-Yates and Aston, Js., concurred.

Rex v. Austin (See case, ante). The certificate was allowed by two justices of Derbyshire. The certifying parish (Appleby) was situated partly in Derby and partly in Leicester.-By the Court. The allowance of a certificate by two justices was not, like the removal of a pauper, strictly an act of jurisdiction, although the justices had a discretionary power to refuse or allow a certificate; yet the allowance was merely a voucher that credence was due to the acknowledgment of the churchwardens and overseers, that the pauper was settled in their parish. For this purpose, the justices of either county might be supposed to have a competent knowledge of the parties, although one end of the parish might be situate in an adjoining county; and, therefore, they might be taken to be within the meaning of

the act.

Rex v. Boston, 2 Bott, 561. It was decided that the justices who allowed the certificate, might also attest as witnesses; but that it must appear upon the certificate that they took upon them to act in both capacities. Barleycroft v. Coleoverton, 1 Strange, 402; 2 Bott, 710. Order of removal from B. to C., reciting that the pauper had come with a certificate, allowed according to the act, from C. to B., and being now become chargeable, they send him back to C. Moved to be quashed, because it is not said the certificate was attested, but only that it was allowed. Sed per Curiam. The attestation is by the statute made previous to the allowance; and, therefore, when they say it was allowed according to the act of parliament, we must intend it was attested, for otherwise it could not be so allowed. Order confirmed.

If the parish is in two counties, the Justices of either

may allow it.

The justices who as witnesses.

allow, may attest

When due allowance presumed.

(a) See division of the subject, ante, 662.

Eleventhly, Of settlement by acknowledgment, &c.

5. Of allowance, &c.

6. Proof of certificate.

A parish certifi

thirty years'
date, acknow-
ledging the pau-
per's grandfather
and father to be-
long to the ap-
pellant parish,
produced by a
rated inhabitant
who was over-
seer of the re-

Rex v. Ashton Keynes, Burr. S. C. 725. The certificate was signed by A. B. and P. J., and in the allowance it was certified that P. J. came before the justices, and made oath that he was present with the other witness and saw it signed by the parish officers, and that his name was his own writing. The sessions thought this no certificate, because A. B.'s signature was not proved before the justices. But the Court were clear, that there was sufficient proof of A. B.'s attestation, for P. J. swears that he was present with A. B. and saw the officers sign it, &c., and is above thirty years old and it was very unreasonable for the parish to quibble it off, in this manner, now.

Sixthly-Proof of Certificate.

Rex v. Netherthong, 2 M. & S. 337. Order of removal, from Netherthong to Honley, discharged. Case: A person, who was a rated inhabitant, and cate of more than overseer of the poor of Netherthong, produced a certificate, dated in 1756, from Honley to Netherthong, acknowledging the pauper's grandfather and father to belong to Honley. It was objected, that before such certificate could be received and read in evidence, some account must be given of it, and whence it came, which the witness was not competent to give, being a rated inhabitant of Netherthong. The sessions refused to permit the witness to give evidence. It was admitted that after Rex v. Ryton, (post, 675), the ruling of the sessions could not be sustained; but it was prayed that the case might be remitted to be heard on the merits.-Lord Ellenborough, C. J. I remember upon the trial of an action for a false return to a mandamus, a corporator was called to produce some of the corporation muniments, and objection was taken to his admissibility. But Lord Kenyon said, that he should hold him capable, as a depositary of the muniments, of being brought forward for the purpose of producing them, and that if the party objecting wished to enquire as to the custody he might, and that he would receive the evidence. If the tent to give that parties choose to stand on such a point as this, it may be as well that they should abide by it. Order of sessions quashed. Scarlett mentioned the 3 Geo. II. c. 29, s. 8, which directs that a certificate, after it has been allowed, and the oath of its execution certified by the justices, shall be evidence without further proof.

spondent parish, evidence, though

was held to be

it was objected that some account should be given of it, and that the witness

was not compe

account; and it

seems that if necessary he might be examined as to the custody.

On an appeal, the respondents, in order to prove the fact of the delivery to them of a certificate given by the appellants, acknowledging the pau

per to be their settled inhabit

ant, produced an

old book from their own parish chest, in which was an entry of that fact in the hand writing of a former parish officer: Held, that such evidence was inadmissible.

Rex v. Debenham, 2 B. & A. 185. Removal from Debenham to Kenton, quashed. Case: The pauper had gained a settlement in Debenham, unless it could be shewn that his father at the time resided in that parish under a certificate from Kenton. No such certificate could be found in the custody of Debenham. The pauper's father, James Driver, proved, that in 1771, having been removed from Debenham to Kenton, Debenham refused to allow him to return, unless Kenton would grant him a certificate; to this Kenton consented. An order for granting this certificate was made at the quarterly meeting of the directors and guardians of the incorporated hundreds of Loes and Wilford, (in which Kenton is situated,) as appeared by an entry in the minute book of the proceedings of the hundred-house quarterly meetings, dated 20th March, 1771. And to prove that such certificate was delivered to the respondents in pursuance of such order, a book was produced from the parish chest of Debenham, on the outside of the cover was "Certs. Rec'd. Bonds do. Coppys of Orders, 1756." This book contained memorandums of orders of removal, of bonds, and certificates received. The certificates were regularly numbered, and under the title of certificates received, was the following entry, dated 1771, "No. 88. John Polkins from Kenton.-No. 89. James Driver, do." There were a variety of other certificates subsequently entered. The sessions were of opinion that this book was not admissible in evidence. Nolan and Dover supported the order, and Scarlett and Primrose contra.-Abbott, C. J. The principles of the law of evidence in this country are founded on the strongest sense, and soundest reasoning. It is of the first importance to preserve them strictly; inasmuch as they are the great safeguards of the subject, in the administration of justice in all cases, from those involving property of the most trifling amount, to those where the life of an individual is at stake. I therefore should be extremely unwilling to come to any decision which should break in upon any established principle. It is an established principle, that

Eleventhly, Of settlement by acknowledg

ment, &c.

6. Proof of cer

nothing said or done by a person having at the time an interest in the sub-
ject matter, shall be evidence either for him or persons claiming under
him. Now the entry in this book is of that description; for it is made by a
person having an interest to make it, inasmuch as it is produced as proof of
the delivery of a certificate by which the parish of which the party making
an entry is an inhabitant, is to be relieved from the burden of maintaining tificate.
the individual named in the certificate. I think, therefore, that the safest
course which the court can pursue will be to hold, that the sessions were
justified in rejecting this evidence. There are, however, in this case, other
circumstances from which the sessions may draw the conclusion, (if they
shall think fit so to do,) that the certificate was in fact delivered. I think,
therefore, that the case should go back to be reheard upon that point.-
Bayley, J. I am entirely of the same opinion, that the entry in this book
was not evidence, the effect of it being to advance the interest of the person
who made it.-Holroyd, J., concurred. Case sent back to be reheard.

Rex v. Ryton, 5 T. R. 259. Where the respondents produced a certificate, more than thirty years' old, purporting to be granted to their parish by the appellant parish, the Court of King's Bench said that it was sufficient for the respondents barely to produce the certificate to the sessions, without giving any account of it. [See Rex v. Netherthong, ante, 674.]

Rex v. Wooton St. Lawrence, Burr. S. C. 581; 2 Bott, 713. The certificate had not been duly allowed, still it was argued that it amounted to an admission by the parish of the pauper's then settlement; but the Court held that if it was not a certificate within the act, it did not conclude the parish, and if allowed as evidence and presumption, would lead to great litigation. But in Rex v. St. Nicholas, Harwich, Burr. S. C. 171., Wright, J., said, that the neglect to deliver, did not make the certificate ineffectual; the parish who gave the certificate is, at all events, bound by the certificate, and the certificate is therefore good as against them. [When allowance presumed, ante, 673.]

Seventhly-Of the Delivery of Certificates. (a)

of certificates.

The mere delivery of a certifi. friendly society to a member, un. 54, not sufficient to prevent a set

cate from a

der 33 Geo. 3. c.

tlement.

A certificate of the master must be delivered, to prevent his apprentice from 7. Of the delivery acquiring a settlement.(b) Rex v. Wernley. [See case and judgment, post.] Rex v. Egremont, 14 East, 253. Wm. Gainsford removed from Egremont to Cockermouth, order quashed. Case: The pauper was bound apprentice to J. Raney, April 18th, 1802, for seven years, and served more than forty days of the latter part of his apprenticeship with J. B. in Cockermouth, who came into that parish with a certificate from an Amicable Society, acknowledging him to be a member of that society. On the certificate was an indorsement signed by a justice, according to the act. The only question was, Whether the production of the certificate was sufficient evidence under the 33 Geo. III. c. 54, without proof of its having been delivered to the churchwardens and overseers of Cockermouth? It was said, that this evidence was sufficient, for the 18th sect. of the act provided that such a certificate so attested and certified," shall be taken, deemed, and allowed in all courts whatsoever, as duly and fully proved, and shall be taken and received as evidence, without other proof thereof." But that if this were not sufficient, yet the sessions, under the circumstances, might presume that it had been delivered as it was produced in court by the parish of Cockermouth.-Lord Ellenborough, C. J. To warrant them in presuming any fact there must be presumable matter. The mere giving of the certificate by the society to the member, is not made sufficient by the act to protect his residence under it in the parish, without a delivery of it to the parish officers. The 17th sect.

(a) See division of the subject, ante,

662.

(b) In the above case of Rex v. St. Nicholas, Harwich, Chapple, J., is reported to have said, that the delivery to an inhabitant, though it did not appear that he was a parish officer, is sufficient;

but this mode would afford such an op-
portunity for fraudulently defeating the
object of the regulation, that the courts
would hardly countenance such doctrine,
especially as the statute seems to require
a delivery to the churchwardens or over-
seers.

Eleventhly, Of settlement by acknowledg ment, &c.

says, that no members of the society who shall come to inhabit in any parish, and shall deliver to the churchwardens and overseers of the poor of such parish a certificate, &c., shall be removable till actually chargeable. But if it remain in the pocket of the certificated person, that is not sufficient to prevent 7. Of the delivery a settlement being gained under him. Here there is an absence of any proof of its having been delivered to the parish officers before the period when the apprentice served his master in Cockermouth, and therefore an exclusion of any presumption of the fact.-Order of sessions quashed.

of certificates.

8. Persons protected, &c.

Certificate pro

tects paupers residing in a poor. house of their

another parish.

Eighthly-Persons protected by Certificates from Removal. (a)

Rex v. St. Peter and St. Paul, Bath, Cald. 213. The pauper was removed from the parish of L. and W. to St. Peter and St. Paul, Bath. Order confirmed. Case: The parishes of St. Peter and St. Paul, had together purchased a piece of land, in L. and W., and built thereon a common poor-house. In this they placed the pauper, and others, giving them certificates to L. and parish situated in W. The pauper had not been chargeable to L. and W., but was removed by it on the ground that he was not an object of the certificate act, and therefore not protected by it.-Lord Mansfield, C. J., held that no restriction was imposed against two parishes uniting under 9 Geo. I. c. 7, s. 4, to purchase a building for their poor, and that they might purchase it in a third parish; that when it is once purchased, it becomes a part of the local system of each parish; and if the poor will not go there, they are not entitled to relief. And that the certificate acts authorise the whole body of the poor, of whatever denomination, and with whatever object, to leave their own, and to remove into any other parish, provided they can obtain the protection of a certificate. -Buller, J., as to the difficulty about bastards gaining settlements by birth, I should doubt whether the poor-house is not to this purpose to be considered as part of the parishes to which it so belongs, as in the case of children born in gaols. Order quashed.

9. What individuals, &c.

is included in a certificate, so as to prevent his gaining a settlement by hiring and service.

Ninthly-To what Individuals a Certificate extends. (a)

Rex v. Sherborne, Burr. S. C. 182. The case stated that the pauper's father came to Sherborne with a certificate including his wife and family from An unborn child Thornford. About two years after, his wife died, and he married the pauper's mother; and three years after this marriage, the pauper was born, in Sherborne, whilst his father resided under the certificate. When the pauper was sixteen, he was hired and served for a year to an inhabitant of Sherborne.The Court held that the pauper did, by his birth, come by certificate into Sherborne; and that he was restrained to the two modes of acquiring a settlement specified in the statute.-(No argument was raised as to the second wife.) S. P. Rex v. Bray, M., 19 Geo. II., Burr. S. C. 259; and Rex v. Buckingham, Burr. S. C. 314.

If a parish grant

a certificate to a spinster with child, acknow. ledging both to be legally settled in the parish so certifying, such parish is bound to receive the child born a bas

But a certificate,

stating the woman to be unmarriedandagree

ing to receive her

Rex v. Ipsley, Burr. S. C. 650. A certificate was given by Studley to Ipsley, which acknowledged " Ann Causier, a spinster, and the child she now goeth with, to be legally settled in Studley:" She was delivered of a child in Ipsley, and removed to Studley. The Court held that the parish of Studley was bound by this certificate, thus noticing the woman's being unmarried and with child, and acknowledging the child she then went with to be legally settled in that parish.

Rex v. Mathon, 7 T. R. 362. The parish of Mathon engaged by a certitard in the certificate to receive and relieve M. C. with the child of which she was then fied parish. pregnant, and all other children she might thereafter have. Some years after she had an illegitimate child in the certificated parish.-Lord Kenyon. It is not now necessary to question the propriety of Rex v. Ipsley, as that certainly went much beyond the former cases on the subject. However, that is distinguishable from the present, as that only extended to the child with which the woman was then pregnant, and a child en ventre sa mere is capable of being described. But this child was not born till eight years after the certificate was granted, and being illegitimate, it is not included within the general words of the certificate, which extends only to legitimate children.

and all the children she might thereafter have,

does not extend to a bastard born several years after.

(a) See division of the subject, ante, 662.