Barber being chosen churchwarden of Aldermanbury in London, Who are exsuch writ was granted (h). M., 21 Jac., Stampe, clerk of the King's Bench, was chosen churchwarden of Kingston, and had a writ of privilege to the Spiritual Court, requiring them not to compel him to take the oath; which writ being disobeyed, he had a prohibition (i). empted from being Church wardens. By the 6 Will. c. 4, ss. 2, 3, every person that shall use and exercise the art of an apothecary within the city of London and seven miles thereof, being free of the company of apothecaries, and who shall be duly examined of his skill in the said mystery, and shall be approved for the same, shall, for so long as he shall use and exercise the said art, and no longer, be freed and exempted from all parish offices; and if he shall be chosen and elected into any such office, or be disquieted or disturbed by reason thereof, he shall, on producing a testimonial under the common seal of the said corporation, of [400] such his examination, approbation, and freedom, to the person by whom he shall be so elected or appointed, or by or before whom he shall be summoned, returned, or required to serve or hold any such office, be absolutely discharged from the same, and such nomination, election, return, and appointment shall be void and of none effect. And all persons that shall use and exercise the said art of an apothecary within any other part of the realm, and have been brought up and served in the said art as apprentices for seven years according to the statute of the 5 Eliz. c. 4, shall be freed and exempted from all such offices within the several places where they live, so long as they shall use and exercise the said art, and no longer; and if any person so qualified shall be elected or chosen into any such office, such nomination, election, return, and appointment shall be void, unless he shall voluntarily consent and agree to hold the same. By the 1 Will. c. 18, s. 7, 11, commonly called the Act of Toleration, if any person dissenting from the Church of England shall be chosen or otherwise appointed to bear the office of churchwarden, or any other parochial office, and such person shall scruple to take upon him such office in regard of the oaths or any other matter or thing required by the law to be taken or done in respect of such office; he shall and may execute the same by a sufficient deputy by him to be provided, that shall comply with the laws in that behalf: provided, that the said deputy be allowed and approved by such persons and in such manner as such officer should by law have been allowed and approved. And every teacher or preacher in holy orders, or pretended holy orders, that is, a minister, preacher or teacher of a congregation, and duly qualified by the said act, shall be exempted from being chosen or appointed to bear the office of churchwarden, or any other parochial office. (h) 2 Roll. Abr. 272. (i) 1 Roll. Abr. 368. Who are ex empted from wardens. [See 52 Geo. 3, c. 155, s. 9.-Every Roman Catholic being Church. minister shall be exempted from the office of churchwarden, on taking the oath, and conforming to the regulations prescribed by 31 Geo. 3, c. 32, s. 8. No serjeant, drummer, or corporal of the militia, nor any private man, from the time of his enrolment until his discharge, shall be liable to serve as a peace or parish officer; 42 Geo. 3, c. 90, s. 174. No excise, or custom officers; 7 & 8 Geo. 4, c. 53, s. 11; 3 & 4 Will. 4, c. 51, s. 12. No alien born, or alien naturalized (k). "If the parish," says Lord Stowell," had returned a papist, Jew, or a child of ten years of age, or a person convicted of felony, I conceive the ordinary would be bound to reject (1)." In Adey v. Theobald (m), the court refused to compel a Quaker to undertake the office. Deafness is no ground of exemption (n). When a person first elected churchwarden had, on the payment of a fine, been excused, a person elected in his place, at the same vestry meeting, is bound to serve, unless some exemption is shown (o).] [ 401 ] Choosing wardens. By the 10 & 11 Will. c. 23, s. 2, all persons who have prosecuted a felon to conviction, and the first assignee of the certificate thereof, are exempted from the office of churchwarden, in the parish where the offence was committed. [Repealed by 7 Geo. 4, c. 84.-ED.] No person living out of the parish, although he occupies lands within the parish, may be chosen churchwarden; because he cannot take notice of absences from church, nor disorders in it, for the due presenting of them (p). [But a person may be parishioner without inhabiting a house, for he may occupy a farm (2). A partner in trade, lodging in another parish, is bound to serve in the parish wherein is his house of trade; and even a non-resident partner in house of trade has been held liable to serve the office of churchwarden (r).] [III. Choosing Churchwardens. By Can. 118, "The churchwardens and sidesmen shall be chosen the first week after Easter, or some week following, according to the direction of the ordinary (s)." (k) [Anthony v. Seger, 1 Cons. 10.] (m) [1 Curteis, 447, Court of Arch- (0) [Birnie v. Weller and Elliott, 3 Hagg. 474.] (p) Gibs. 215. (9) [Brook v. Owen, 3 Phill. 517, in note.] (r) [Stephenson v. Langston, 1 Consist. 379. See also Rex v. Poynder, B. & C. 178; and Att. Gen. v. Foster, 10 Ves. 333.] (s) This is not so; for this canon relates only to swearing the churchwardens: but the time of their choice is, by canon 90, to be in Easter week, Serjt. Hill's MSS. notes. And by Can. 89, "All churchwardens or questmen, in every parish, shall be chosen by the joint consent of the minister and the parishioners, if it may be; but if they cannot agree upon such a choice, then the minister shall choose one, and the parishioners another: and without such a joint or several choice, none shall take upon them to be churchwardens." The books of common law interpret this with a limitation; namely, if a custom hath not been for the parishioners to choose both. In which case when two have been chosen by the parish, on pretence of custom, and one by the incumbent on the foot of this canon, and the ecclesiastical judge hath refused to admit the swearing more than one of those who have been chosen by the parish, upon surmise of such custom; mandamuses have been frequently granted by the Temporal Courts to swear the person so elected by the parish: and also prohibitions have gone, in cases where the Spiritual Court hath attempted to try or overrule the custom, or otherwise to do any thing to the prejudice of that title. Upon which occasion it hath been said, that churchwardens are lay incorporations and temporal officers; and that of common right every parish ought to choose their own churchwardens, which right is not to be overthrown but by proof of a contrary custom; and that although one is sworn, a writ may go to swear another in the same place, to the end both parties may be made capable to try the right (t). When two sets of churchwardens are sworn in, the right is to be settled in an action. A quo warranto will not be granted, as the office does not concern the rights or prerogatives of the crown (u). For, by Coke, Chief Justice: A convocation hath power to make constitutions for ecclesiastical things or persons, but they ought to be according to the law and custom of the realm: and they cannot make churchwardens that were eligible to be donative, without act of parliament. And the canon is to be intended, where the parson had nomination of a churchwarden before the making of the canon (v). [It has been said that the Ecclesiastical Court has no authority to determine the question of the validity of an election, and that the extent of discretion which it should exercise in swearing in or declining to swear in persons alleged to be chosen churchwardens is difficult to be defined, and that it can be tried only by an action at law (x). See however Anthony v. Seger (y), where the validity of the election was tried, and Chitty's Burn's Justice (z), where it is said, and supported by (t) Gibs. 215; Cro. Car. 551; 1 Keb. 517; 3 Burr. 1420; [Noy, 31-139; 2 Roll. 234; Degge, p. i. c. 12.] (u) 2 Str. 1196; 4 T. Rep. 381. (v) Godol. 162. (x) [Rep. of Eccles. Commiss. 45, 1832.] (y) [1 Consist. 11.] In London. Churchwar den not to serve twice. [ 402 ] In London. authorities, that the Spiritual Court may become the means of trying the validity of the election by a return of "not elected," or not duly elected;" and the right may be tried by an action for a false return.-ED.] ["The proper and regular mode is for the churchwardens to return two persons to succeed them: but this is not exclusive of other methods, and though customary, is not indispensably necessary, provided the court has satisfactory information of the election in any other way (y)." [To a question whether a churchwarden, in London, who had served one year as under-churchwarden, could be compelled to take the office of upper-churchwarden, the late Dr. Harris gave the following opinion: ["The intent of the 89th canon seems to have been to hinder the continuance of any person in the office of churchwarden for more than a year, unless under particular circumstances; and if a majority in vestry should choose the same person a second time, without good reason, and a precedent for so doing, I have no doubt but that the officer so elected would be warranted for refusing to serve, and would be excused and dismissed if prosecuted in an Ecclesiastical Court before the ordinary. ["But the proviso in the above mentioned canon (except perhaps they be chosen again in like manner) must, I think, be understood to authorise a second election in special cases, and on a justifiable account; and in the present instance, as the second election of Mr. Conach for a second year is according to the constant custom of the parish of St. Ethelburg (London), I apprehend that he would be obliged to take the oath, if cited for that purpose into the Ecclesiastical Court by the present churchwarden, who in strictness of law does not go out of office till the new elected one has been sworn. ["27th April, 1767. GEORGE HARRIS.” [The mode of election is first by show of hands, and then by polling (z).] T., 7 Car. A prohibition was granted against the churchwarden chosen by the parson of St. Magnus, nigh London bridge, by force of the canon; upon a surmise, that the parish hath a custom to choose both churchwardens (a). And, by Holt, Chief Justice: In London, generally, both the churchwardens are appointed by the parish (b). E., 17 Jac., Warner's case. Warner, one of the churchwardens of All-Hallows, in London, prayed a prohibition; for that whereas, by the custom of the said parish, the parishioners used every year to elect one of the parish, who had borne the office of scavenger, sidesman, or constable, to be church (y) [Anthony v. Seger, 1 Consist. 10, Lord Stowell.] (*) [See Anthony v. Seger, 1 Con sist. 10, and title Vestry.] (a) 2 Rolle's Abr. 287. warden; and that every year one who had been so elected churchwarden, was to continue a year longer, and to be the upper-churchwarden, and another was to be chosen to him, who is called the under-churchwarden, that such a choice being made in that parish of the said Warner to be churchwarden, the parson notwithstanding that election nominated one Carter to be churchwarden, and procured him to be sworn in the Ecclesiastical Court, and denied the said Warner to be churchwarden according to the election of the parishioners; and this by colour of the late canon, that the parson should have the election of one of the churchwardens; and this being against the custom, a prohibition was prayed, and a precedent shown in the common bench, E., 5 Jac., for the parishioners of Walbrook, in London, where such a prohibition was granted: for it being a special custom, the canons cannot alter it, especially in London, where the parson and churchwardens are a corporation to purchase and demise their lands; and if every parson might have election of one churchwarden, without the assent of the parishioners, they might be much prejudiced thereby (c). But although the greatest part of the parishes in London choose both the churchwardens by custom; yet in all the new erected parishes the canon shall take place (unless the act of parliament, in virtue of which any church was erected, shall have specially provided that the parishioners shall choose both); inasmuch as no custom can be pleaded in such new parishes (d). H., 5 Geo. 1, Catton v. Berwick. At a Court of Delegates. By custom. The custom was, for the parson to appoint one, and the two old churchwardens the other: but it went no further. In this case the two churchwardens could not agree, so the one presents Berwick, and the parishioners at large choose Catton. It was insisted for Berwick, that his case was like that of coparceners, where if they disagree, the ordinary may admit the presentee of which he will, except the eldest alone pre- [ 403 ] sents. On the other side it was said, that the cases widely differed; for in the case of a presentation the ordinary hath a power to refuse, but he hath not so in the case of churchwardens, for they are a corporation at common law, and more temporal than spiritual officers. And a case was cited to have been adjudged in the King's Bench, where, to a mandamus to swear in a churchwarden, the ordinary returned that he was a very unfit person; but a peremptory mandamus was granted, because the ordinary was not a judge in that case. And the court held, that by this disagreement the custom was laid out of the case; and then they must resort to the canon: under (c) Cro. Jac. 532; Cro. Car. 515, 552. VOL. I. (d) Gibs. 215. M M |