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1827.

that parish for relief, when he required it. It also appeared, that William Bray, the pauper, had been occasionally re

The KING lieved by the parish officers of St. Mary's Bourne, nearly v.

WHITCHURCH ever since his apprenticeship, whenever he wanted it, and has so received relief constantly for the last seven or eight years. The court of Quarter Sessions thought the certificate inadequately executed, and quashed the order of removal.

Nolan, Selwyn, and Poulter, in support of the order of sessions. The sessions thought the certificate bad, and they were right in their opinion. It is void ab origine, and in toto ; and no presumption arising from its age, can be allowed to operate in its favour, Rex v. Margam (a). The Certificate Act, 8 and 9 W. 3, c. 30, requires the certificate to be under the hands and seals of the churchwardens and overseers, or the major part of them, that is, the major part of both, where there are both ; Rex v. Clifton, (6). Rex v. St. Margarets, Leicester (c). This certificate, though it professes to be executed by both churchwardens, and both overseers, is in fact executed by one churchwarden only, therefore, it is not that which it professes to be, and ought to be, namely, a corporate act, done by the whole corporate body; and is no more binding upon the parish, than a deed purporting to be the deed of four, and executed by only two or three, could be binding upon the rest. But, assuming that execution by three out of four parish officers would be good, still this certificate would be void, because the party executing as church warden, was not churchwarden de jure, and did not legally fill that character at the period of the execution. He was nominated before, but was sworn in after the date of the certificate, therefore he was not the churchwarden, for by the ecclesiastical law, “ the office of all churchwardens is reputed to continue until the new churchwardens

(a) 1 T. R, 775. See Rex v. (6) 2 East, 168. Tamworth, Burr. S. C. 770.

(c) 8 East, 332.

1827.

that shall succeed them be sworn (a). Churchwardens The King are of ecclesiastical jurisdiction, and when nominated, WHITCHURCH.

and refused to be sworn by the ecclesiastical officer, this Court will grant a mandamus to him who swears them in (6); and the 54 Geo. 3, c. 107, which enacts, that where churchwardens of a parish have granted certificates from townships within it, such certificates shall be good, though they have not been sworn in for the township, contains an express proviso, that they shall have been duly sworn in as churchwardens of the parish. It may be said that the certificate was executed by a party who was churchwarden de facto ; but that will not help the case; for this was not such an act as a churchwarden de facto has authority to do: 4 Vin. Abr. Churchwarden,

527, where it is said, “if there be a churchwarden de jure, and a churchwarden de facto, in the same parish, this latter cannot justify the laying out of, or receiving money, but he is accountable to the church warden de jure; he is no more than another man." The cases of Rex v. Hinckley (c), Rer v. Catesby (d), and Rex v. Earl Shilton (e), will probably be relied upon as adverse to the present argument, but they are not so in reality. In those cases the court drew a presumption in favour of the validity of the certificate, because there was no evidence before them to rebut that presumption; here there is positive proof to rebut any presumption that could otherwise be drawn in favour of the certificate. In Rex v. Austrey (f), a certificate 30 years old, signed by two church wardens and one overseer, but bearing only two seals, was held to be not properly executed; and the doctrine of presumption was not attempted to be prayed in

118;

(a) 1 Burn's E. L. 410; Can.

Foot v. Prowse, 1 Stra. 625. (6) Rer v. Harris, 3 Burr. 1420; Com. Dig. Mandamus(a); Anon. 2 Chitty Rep. 254.

(c) 12 East, 361.

(d) 4 D. & R. 434; 2 B. & C. 884; 2 D. & R. M. C. 278.

(e) 6 D. & R. 104; 2 D. & R. M. C. 525.

() 1 Phillipps on Evidence, (5th edition), 469.

1827.

v.

aid of the instrument, because it appeared upon the face of it not to be executed by all those by whom it purported The King to be granted. Again, the statement of the attestation of

WHITCHURCH. this certificate is false, and renders it void. The attesting witness is represented to have sworn to the execution of the certificate by all the parish officers, though it is in fact executed by only three. The

age

of the instrument might have rendered this mode of proof unnecessary; but as it has been resorted to, the misdescription is fatal; and besides, the magistrates allowing the certificate, may have been deceived by it, and then the instrument is bad, because the allowance was fraudulently obtained. Lastly, if the certificate is bad in any of these respects, the circumstance of its having been acted upon, and the parties having been relieved under it,' for however long a period, will not render it valid, because that has been done under a mistaken belief, that the parties were duly certificated.

Dampier and H. Bosanquet, contrà. The Court will intend every thing in favour of this certificate, and will hold it to be valid, if consistently with law they possibly

The pauper and his family have received relief under it from the parish of St. Mary's Bourne, at various times from the year 1758, a period of almost 70 years, and during the whole of that period, the officers of that parish have known of the existence of the certificate, have acted upon it, and have treated it as a valid instrument. Their own conduct, therefore, has raised the strongest possible presumption in favour of its validity, and it is now too late for them to dispute it. It is said that the doctrine of presumption cannot be applied to this case; but the authorities upon that point, cited by the other side, shew that it may; and there are other authorities to the same effect. In Rer v. Long Buckby (a), the Sessions presumed that an indenture of apprenticeship executed 30 years before, and

can.

(a) 7 East, 45; 3 Smith, 92, nom. R. v. Long Buckley.

1827.

under which the apprentice had regularly served his time The KING

for seven years, when the indenture was given up to him, 0. WHITCHURCH.

and proved to have been lost, and when the parish in which he was settled, under the indenture, had relieved him for the last twelve years; was properly stamped in proportion to the apprentice fee of 121., received by the master, although the deputy-registrar and comptroller of the stamp duties proved that it did not appear in the office that any such indenture had been stamped or enrolled during that period; and the judgment of the justices was confirmed by this Court. The intendment of law ought to be as strong in a case of this nature, as in the case of an estate or an easement, where long enjoyment is evidence so conclusive, that, as Lord Coke lays it down, the Court will presume an act of Parliament, rather than defeat long possession. There are two grounds upon which this certificate may be supported: first, because the certifying parish are bound by the recitals in their own certificate, at least as against the certified parish; and secondly, upon the general principle that one party treating with another, and representing himself as filling a particular character, is estopped from afterwards denying that he did fill that character. The objection that the churchwarden was incompetent to act, because he had not been sworn, has no weight. There is no evidence of any churchwardens having been sworn in from the year 1751 to the

year 1758. It may, therefore, be inferred, that the churchwardens of 1758, held over; and if so, they must be considered as having been virtually re-elected; in which case, it would not be necessary that they should be re-sworn, and thus they would be, de jure, as well as de facto, the churchwardens. But at any rate, the executing churchwarden was churchwarden de facto; and that was sufficient to render him competent to act(a); for it was decided in Rex v. Wymondham (b), that a certificate signed by a majority of the parish officers de facto, was

(a) R. y. Mitchell, Mann, N. P. Digest, 132. (6) 6 T. R. 552.

valid, and that the Court would not inquire into the va

1827. lidity of the titles of the officers who signed the certificate. The KING The ceremony of swearing in is not necessary to give the

WHITCHURCH churchwarden authority to act; he may execute the duties of his office before he is sworn in; 4 Vin. Abr. tit Churchwarden, page 526., where it said, “a churchwarden may execute his office before he is sworn, though it is convenient that he should be sworn;" and where 1 Vent. 267., and Noy. 139, are referred to as authorities for the position. The main ground, however, is, that this certificate must, from its age, be presumed to have been duly executed, and for that, Rer v. Catesby (a), is an express authority. It was there said by Littledale, J., “ 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." And again, “ 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.” The same general intendment must be made in this case, as was made in that, and upon that ground, if upon no other, this certificate must be held to be valid.

BAYLEY, J.-The certificate, upon the validity of which the question in this case turns, was granted in the year 1758, a period of no less than 69 years ago. It contains the names of four persons, whom it describes as churchwardens and overseers of the parish of St. Mary's Bourne, and it is signed by three of those persons, who thereby hold themselves out as such church wardens and overseers; namely, by two overseers and by one churchwarden. The principal objection raised against the validity of the certificate is, that the church warden whose

(a) 4 D. & R. 434 ; 2 B. & C. 814 ; 2 D. & R. M. C. 278.

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