Sivut kuvina


If one having churchwardens, should be signed by all the overonly appointed, and signed seers. No express decision has occurred on this subject, by him, it is but it was determined, that it must be made by two overvoid.

seers at least; for the appointment of one overseer only, is bad in law, by 13 & 14 Car. Il. c. 12. (1); and if but one is appointed, a certificate signed and sealed by him is void. (2)

Quære, whe

A further question arose in the preceding case, whether ther parish churchward

where a township situate within a parish has no churchens must sign wardens of its own, and maintains its poor separately, the a township certificate.

churchwardens of the parish at large ought to join with the overseers of the township in granting certificates ? The court did not decide the point; but two (3) of the three judges present intimated as the inclination of their opinion, that it was unusual, might be inconvenient, and seemed unnecessary for them to do so. (4)

Name of office stated.

The certificate should give to those who sign it, the addition of churchwardens or overseers, according to their official situation in the parish. Yet if the officers of a hamlet, situate within a parish, and maintaining its own poor, describe themselves as officers of the parish at large, and acknowledge the persons mentioned to be legally settled within the parish, it is not such a defect as vitiates the instrument, but may be explained by parol evidence of the fact. (5)

Justices have

The justices have a discretionary power to refuse or discretion to refuse or allow allow a certificate; but unless they allow it by regularly certificate. filling up the blanks, and signing their names, it is not Form of attest- within the act, and cannot conclude the parish. (6) And ation.

(1) Ante, Vol. I. 47.

(2) Rex v. Clifton, 2 East, 168. It seems as if the point might have been made in Rex v. Samborn, 3 Term Rep. 609., but it was not.

(3) Lawrence and Le Blanc Js.

(4) Rex v. Clifton. supra (2). But see 2 & 3 Ann. c.6. s.3. by which this is cured, as also 17 Geo.II. c.38. s. 15.

(5) Rex v. Samborn, 3 Term Rep.609.

(6) Rex v. Wooton St. Lawrence, Burr. S.C.581. Rex v. Boston, Sır. 94.

if the justices appear to sign only as witnesses, without using words to signify their allowance, it is not sufficient. (1) But the same person may under 8 & 9 W. III. c. 30. allow as magistrates, and attest as witnesses, when it appears they take upon them to act in both capacities. (2)

c. 29.

A certificate was attested by A. B. a marksman, and Attestation P. I. The justices' certificate and allowance was as fol- under 3Geo.II. lows: We, &c. do herby certify, that he the said P. I. came before us, this day, and made oath that he was present with the other witness above mentioned, and did see the said churchwardens and overseers severally sign and seal the said certificate; and that his name is of his own proper hand-writing. And we do allow of the certificate above written. It was argued that this certificate was insufficient; for 3 Geo. II. c. 29. s. 8. requires, that the attesting witnesses, or one of them, shall make oath before the justices who allow it, “ that such witness or witnesses did see the execution of it; and that the names of such witnesses attesting the certificate are of their own proper hand-writing.” Whereas here, the name or mark of A. B. was not proved to be his own hand-writing, for P. I. only proves, that his own name is of his own hand-writing. But the whole court were extremely clear, that there was sufficient proof of A. B.'s attestation. P. I. swears, “ that he was present with B. and did see the churchwardens and overseers severally sign and seal the said certificate.” And this is above thirty years ago. (3) It would be very unreasonable, that the parish, who gave the certificate so long ago, should quibble it off in this manner now.


It seems that 3 Geo. II. c. 29. was only passed for the 3Geo:II.c.29. purpose of facilitating the proving certificates, and was cilitate proof

of certificates, (1) Rex v. Boston, ante, 170. (2). (2) Ibid. (3) See Rex v. Farringdon, post, 172. (1). (1) Rex v. Ashton Reynes, Burr. S. C. 725.

and does not not intended to take away any mode of proof which take away any existed prior to the statute. (1) A certificate therefore of proving, nor under 8 & 9 W. III. is good, for that act certainly is not repeal the form repealed by 3 Geo. II. (2) under 8 & 9 W. III.

Thus, a certificate more than thirty years old, regularly allowed and signed by two justices, according to 8 & 9 W. III. was held valid, without further evidence, although it did not certify the affidavit of the witnesses, in the form prescribed by 3 Geo. II. c. 29, because a certificate of that age proved itself. (3)

But where a certificate of attestation is relied upon as proof of the original certificate, the forms required by 3 Geo. II. c. 29. must be strictly followed.

Insufficient al- The certificate in the preceding case was stated in lowance under the margin to be “ allowed by us, being first proved to .

be duly executed as the statute in that case directs and appoints.” It was signed by two justices, but this allowance did not in any other manner certify an affidavit made by one of the witnesses according to 3 Geo. II. c. 29. On the other leaf of the same sheet of

paper was a writing purporting to be made by the same two justices, but not signed by them, certifying that such an affidavit was made. Two judges doubted whether the requisites of 3 Geo. II. c. 29. had been sufficiently complied with. (4) But the remaining judge (5) thought, that every thing (as in the case of the justice's order) should be intended in favour of the attestation, and as the magistrates had stated, “ that it was proved to be duly executed, it must be supposed to be so; because if the formalities required by the act were not complied with, the certificate would be false.”

(1) Per Ashhurst J., Rex v. Farringdon, 2 Term Rep. 466.
(2) Per Buller J., Ib.
(3) Rex v. Farringdon, ante, 153. (3).
(4) Ashhurst and Grose Js.
(5) Buller J.

A certificate is not a transferrable instrument from one Direction of parish to another (1), and some particular parish must be certificate. in contemplation at the time of granting it. (2) But it need not be directed to any particular parish (3), for it takes effect only by delivery (4), and a mistake in the direction does not vitiate it. (5)

It is said to be conclusive evidence of the pauper's settlement in the parish by which it is granted up to the time of granting it, although not actually delivered until after the party's removal from the place where he came to reside under it. (6)

The 8 & 9 W. III. requires, that it be delivered to the Delivery. parish officers of the certificated parish, in order to prevent the party's removal from thence, or his acquiring a settlement there. (7)

Part II. Sect. III.

To whom a Certificate extends.

A CERTIFICATE extends to three classes of persons. To whom it, Ist, Those actually named in it; 2d, Those who are part extends. of the person's family at the time it is granted; 3d, Those

[ocr errors]

(1) Per Lord Kenyon C. J., Rex v. Wymondham, infra, (3). (2) Eod. Jud. Rex v. Lubbenham, 4 Term Rep. 251.

(3) Rex v. Lillington, 1 East, 488., where the direction was To the churchwardens, &c. of the parish of H., or any other parish in the city or county of Coventry.” A dictum in Rex v. Wymondham, 6 Term Rep. 552., seems contra, but see it explained in the foregoing case; and the opinion of Chapple J. Rex v. St. Nicholas in Harwich, post, (5).

(4) Rex v. Wensley, 5 Term Rep. 154.

(5) Rex v. St. Nicholas in Harwich, Burr, S. C. 171. The direction was “ To the churchwardens and overseers of the poor of the parish of Harwich, near Dover-court, &c.” The session found that the proper narne of the parish was “St. Nicholas in Harwich," and that there was no such parish as Harwich near Dover-court.

(6) Rex v. Buckingham, Cald. 64. (7) Rex v. Wensley, ante, (4).

who become so while he continues to reside under it. (1) Family named. It extends therefore to all who are mentioned expressly,

although they afterwards live away from their parent, and form the head of another family. (2) But unless where a person is thus described, it only includes such as live under the same roof with the pater familias, and form his fire-side (3), or in other words, constitute a part of his family or household. (4)

Extends to It extends therefore to all his children, whether born after-born children, and before or after the certificate is granted (5); to those by a second wife. second wife, taken while the pauper resides under the

certificate, after the death of a first, who had removed into the parish and resided with him under it (6), as also to the second wife herself, married under such circumstances. (7)


Certificate Also when an unemancipated daughter was delivered of under 33G.III. a bastard child in the township of Idle, during her father's

residence there, with a certificate acknowledging him to be a member of a friendly society established under 33 Geo.III. c. 54., the certificate was held to extend not only

(1) See the opinion of GroseJ., Rex v. Storrington, 7 Term Rep. 153.

(2) Rex v. Testerton, 5 Term Rep. 258. Per Lord Kenyon C.J., Rex v. Darlington, 4 Term Rep. 797. Rex v. Bath Easton, 8 Term Rep. 446. But these determinations do not create any distinction between children named and those who are not so, while they continue part of the father's family residing under the certificate; and therefore the child's derivative settlement shall shift with the father's whether named or otherwise. See Rex v. Leek Wooton, 16 East, 118., and particularly the judgment of Le Blanc J. Ibid. 124. Also Rexv. Cold Ashton, Burr. S.C. 444. Rex v. Dedham. Ibid. 528. there relied on. As to the effect of a certificate on the settlement of illegitimate children, see ante, Vol. I.

(5) Per Lord Kenyon, Rex v. Darlington, supra, (2).
(4) Rex v. Mortlake, 6 East, 397.
(5) Rex v. Sherborne, Burr. S. C. 182. Rex v. Bray, Burr. S. C. 529.
(6) Rex v. Sherborne, ante, (5).

(7) Rex v. Hampton, 5 Term Rep. 266. Buller J. dissent. upon the ground that the second wife was protected by the certificate, only as part of her husband's family, and that upon his death she was no longer a part of it. See post, 179. (1).

« EdellinenJatka »