this realm. So help you God, and the contents of this book (i). But now by stat. 5 & 6 Will. 4, c. 62, s. 9, it is enacted, "that in future, every person entering upon the office of churchwarden or sidesman, before beginning to discharge the duties thereof, shall, in lieu of such oath of office, make and subscribe in the presence of the ordinary, or other person before whom he would but for the passing of this Act, be required to take such oath and declaration, that he will faithfully and diligently perform the duties of his office. And such ordinary and other person is hereby required to administer the same accordingly. The regular and proper course is for the outgoing churchwardens to present their successors to the ordinary for admission; but this is not necessary in point of law, as the ordinary will admit the new churchwardens if he be otherwise reasonably satisfied of their election (j). The admission of the churchwardens by the ordinary ought undoubtedly to take place before they begin to discharge the duties of their office. This is required, not only by the ecclesiastical law (k), but also by statute (1), and is necessary to complete their legal title (m). Indeed it is provided by the canon that the old churchwardens and the sidesmen shall continue in office until the new churchwardens are sworn (n), and the common law authorities, when fairly examined, cer (i) Gibs. Cod. 243. See Anthony v. Seger, 1 Hagg. Con. 10. Story v. Colk & Preedy, 6 N. E. C. Sup. 33. k) Can. 118. (7) 5 & 6 Will. 4, c. 62, s. 9. (m) Can. 118; 5 & 6 Will. 4, c. 62, s. 9. Prid. 62, 121. (n) Can. 118. tainly seem, upon the whole, to support this provision (o). It is moreover laid down by Prideaux, that, until they are sworn, churchwardens can do no legal act as churchwardens, nor can they have any authority, whatever money they lay out on the church account, to make or levy any rate, or take any other method again to reimburse themselves; but whatever they do of this kind, while unsworn, is all to their own wrong; and if the parish refuseth to pay them, they can have no remedy in law to force them to it (p): at the same time it seems that if they do act before admission, their acts will, for some purposes at least, be supported as the acts of officers de facto if not de jure (q). If a person duly elected refuse to take upon himself the office of churchwarden, he may be proceeded against in the Ecclesiastical Courts, and compelled to take the oath (r), or rather make the necessary declaration (s), before the proper officer, and if he still refuse, he might formerly have been excommunicated (t). And may now, by virtue of the stat. 53 Geo. 3, c. 127, which abolishes excommunication except in certain specified cases, and substitutes the writ de contumace capiendo in lieu of the writ de excommunicato capienda, be declared contumacious, and taken under a writ de contumace capiendo. This latter writ issues out of Chancery, upon a significavit from the Ecclesiastical Courts, signifying to the Queen in Chancery that he has been pronounced contumacious, and no prohibition lies to that court (u), nor will the temporal courts set aside the writ de contumace capiendo, or discharge him on habeas corpus. But if a person who has already filled the office should be chosen a second time without good reason or a precedent for so doing, he will not be compelled to serve (v). Where, however, there is a custom, as in the old parishes of the city of London, to re-elect the under churchwarden to serve for the following year as upper churchwarden, a person who has already filled the former office, will not be excused from filling the latter in accordance with the custom (w) If a party, having privilege of exemption, be chosen, he may have his writ of privilege to the Ecclesiastical Court commanding them not to admit him, and, if it be disobeyed, a prohibition lies (x). Or he may, upon citation into the Ecclesiastical Court, to compel him to enter upon the office of (u) Gibs. Cod. 216. (v) See the opinion of the learned Dr. Harris to this effect, in Burn's Ecc. Law, by Phil. Vol. i. p. 40, a. (w) Ibid. (x) Stamp's case, Palmer, 392; S. C. 2 Roll. Abr. 268; Wilson's case, 1 Roll. Abr. 368; Barber's case, ibid. Prowse's case, Cro. Car. 389; Sir Wal- churchwarden, appear and set forth his objections in an Act on petition (y). This office of archdeacon or other ordinary in admitting the churchwarden is ministerial only; for the churchwarden being a temporal officer, the ordinary cannot exercise any judicial authority in the matter (z). He has no power to decide on the validity of the election, or even to inquire whether it be disputed or not, nor can he exercise any discretion as to the fitness of the party chosen. If a colourable title is shown, he is bound to admit, whether the Act be of any validity or not; and if he refuses, he may be compelled by mandamus (a). Therefore, where to a mandamus to swear in churchwardens the ordinary returned that there were two causes depending before him, which had been afterwards consolidated into one, in which two sets of persons claimed to have been duly elected, and that he could not, consistently with his duty, and with the law and practice of the Episcopal Court, swear or admit the prosecutors, until it should have been judicially determined in the cause then depending before him that they were duly elected into such office, the court held the return bad, as he had no power to try the right, and a peremptory mandamus (b) issued. Admission of Churchwardens. 37 And in a more recent case, in which a scrutiny of votes was pending between two sets of adverse parties, each of whom claimed to have been duly elected, the court directed the mandamus to go, and said that it was clear, according to the old practice, that where there are two sets of parties who have each a colourable title to the office of churchwarden, both sets must be sworn in (c). So where a return to a mandamus to swear in a churchwarden stated that he was a person unfit, being a poor dairyman, and the like, and the question was whether the archdeacon could refuse to swear and admit the churchwarden so elected for any cause whatsoever, it was resolved that he had no such power; for the churchwarden is a temporal officer; he hath the property and custody of the parish goods; and as it is at the peril of the parishioners, so they may choose and trust whom they think fit, and the archdeacon hath no power to elect, or control their election (d). But this doctrine must not be taken to be correct in its largest sense, for offices the most ministerial leave a discretion not to join in an illegal act, and although it is the duty of the ordinary not to take slight exceptions, he is bound to take care that an election in his opinion void in itself, shall have no legal effect: this is a duty which he owes to the parish, and to the general (c) R.v.Archdeacon of Middlesex, 5 N & M. 494. So in R. v. The Rev. Joseph Corfe, B. C., M. T. 1847. MS. the writ went, although the defendant had already admitted the adverse claimant. It should, however, be mentioned, that in this case no cause was shown. (d) R. v. Rice, Ld. Raymond, 138; S. C. 1 Salk. 166; 5 Mod. 325. |