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1827.

s and

signature is affixed to it, was not sworn into office until The King

after the day on which it bears date; and, therefore, it

has been contended, that his execution being an act done WHITCHURCH. 7

before he was sworn in, was done without authority,
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 equally imposed upon, and must have been
induced to believe that the certificate 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, notwithstanding 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 entirely
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 churchwarden shall have been
previously sworn in. 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 church-
warden de facto, and suffer him to act in that capacity,
they cannot be permitted to practice the fraud of afterwards
denying the validity of his acts. At present, therefore,
I am disposed to think that the fact of the churchwarden's
not having been sworn in until after the execution of the cer-
tificate, 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 in at, or shortly after their nomination,

and were afterwards sworn in again at the visitation in

1827. September. Piper, the only person respecting whom there The King is any dispute, may have wished to be, and may actually

WHITCHURCH. have been sworn in at Easter, although the administration of the oath was not recorded, and may afterwards, 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 church wardens 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 practised. I am, therefore, of opinion, that justice requires us to presume that the churchwarden had been sworn in 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 in, 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(6). 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 presume fraud and illegality, which we must do, if we decide against the certificate upon this objection. With repect to the supposed necessity of both the churchwardens signing the

(a) Holroyd, J., was absent. (b) Ante, 407. VOL. 1.

21

1827.

under which the apprentice had regularly served his time The King

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

and proved to have been lost, and when the parish in WHITCHURCH.

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 (6), 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

1827.

v.

valid, and that the Court would not inquire into the validity 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 church warden 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, Rex 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.

It con

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. tains 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 churchwarden whose

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

1827.

signature is affixed to it, was not sworn into office until The King

after the day on which it bears date; and, therefore, it tv.

has been contended, that his execution being an act done WHITCHURCH.

before he was sworn in, 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 equally imposed upon, and must have been
induced to believe that the certificate 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, notwithstanding 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 entirely
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 churchwarden shall have been
previously sworn in. 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 church-
warden de facto, and suffer him to act in that capacity,
they cannot be permitted to practice the fraud of afterwards
denying the validity of his acts. At present, therefore,
I am disposed to think that the fact of the churchwarden's
not having been sworn in until after the execution of the cer-
tificate, 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 inade, 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 in at, or shortly after their nomination,

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