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Right of Parishioners to be Present.] It seems to follow, as a consequence, that if a parishioner absenting himself from a vestry meeting, is bound by the acts of the majority who do meet; he has a right to be present, and may, if he be excluded, bring an action on the case against any who excludes him. (Vin. Abrid. Vestry, A. 3; Str. 624; 8 Mod. 52, 351, 354; Lord Raym. 1388.)
Illegal to close the Doors of a Vestry.] Indeed, it has been lately said by the court, that it is illegal to close the doors of a vestry, especially during a poll, so as to exclude voters. (Q. v. St. Mary, Lambeth, 3 Nev. and Per. 416.) In that case, indeed, the court refused a mandamus for a fresh election, because it did not appear
any voter had been excluded; but the doors had been kept closed, and the admittance of voters had been delayed. (And vide 8 Ad. and Ell. 356.)
Demand of Poll.] Where a poll is demanded it ought to be granted. In Q. v. St. Mary, Lambeth, (8 Ad. and Ell. 361,) Lord Denman said, " there is no doubt of the law, that the rate payers in vestry are to elect, and that if a poll be demanded, it should be kept open for all qualified persons," and vid. 2 Nev. and Man. 464. But though this is generally true, yet if the subject of the vote be not legal, the court of queen's bench will not enforce a poll by mandamus.
Thus where an illegal proposition, viz., to misapply some parochial charitable funds, was made in vestry, which was passed by a show of hands, and a poll demanded and refused by the person presiding at the vestry, the court refused a mandamus to direct such person to grant a poll; the court saying, they ought not to grant the writ for the purpose of putting it to the vote whether a breach of trust should be committed. (1 Ad. and Ell. 380.)
Acts of former Vestries.] The acts of one vestry are not absolutely binding on a succeeding vestry; they may be confirmed or rescinded by such succeeding vestry ; but the confirmation of a second vestry is not necessary to make the acts of the preceding one valid. (Mawley v. Babet, 2 Esp. 687.)
Adjournment of j It seems clear, upon principle, as well as upon authority, that the chairman of a vestry meeting has no authority to interrupt, adjourn, or postpone the business of the meeting ; his duty in the chair, is merely to regulate the proceedings, and as far as he can, to forward the business which the meeting is assembled to dispatch, if it be such as the meeting can legally entertain and proceed on; any attempt on his part, therefore, to stop or postpone the business, is a violation of his duty, and altogether illegal. In discussing the matters brought before the meeting, or in determining whether they are to be discussed on one day or another, and in voting upon them, he has no more authority, nor any further voice than any other member of the vestry, except where by statute, in case of an equality of votes, he has the power to give a casting vote. But whilst the business is actually in progress, he may, and he ought, adopting the well established rules of public meetings, to regulate, control, and direct the course and order of proceeding, and in cases of difference of opinion, so to order and conduct his arrangements as to enable every member to express his opinion, and if necessary give his vote without personal inconvenience, or difficulty ;
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whereby the real opinions of the voters may be ascertained in a satisfactory and impartial manner.
Adjournment of Time.] In Stoughton v. Reynolds, (2 str. 1045; Fortesc. 168; Cas. temp. Hardw. 274) it was decided that the right of adjourning a meeting whilst the poll for the election of a churchwarden was proceeding, was not vested in the chairman of such meeting, but in the whole assembly, where all are on an equal footing ; although there might be a difficulty in polling for an adjournment, yet as there was no other
way, that must be taken. (2 Burr. 1020.) In this case the adjournment was one of time, and was in fact an interruption of business legally proceeding, and the proposal of a postponement of it to a future time was without any plea of necessity, or even convenience to justify it; if the chairman had an arbitrary power of postponement for a day, why not for a week or longer period? But this decision by no means interferes with the right which every chairman has to make a bona fide adjournment, whilst a poll or other business is proceeding, if circumstances of violent interruption make it unsafe, or seriously difficult for the voters to tender their votes ; nor of adjourning the place of polling, if the ordinary place used for that purpose be insufficient, or greatly inconvenient.' In most of such cases, the question will turn upon the intention and effect of the adjournment, if the intention and effect were to interrupt and procrastinate the business, such an adjournment would be illegal; if, on the contrary, the intention and effect were to forward or facilitate it, and no injurious effect were produced, such an adjournment would, it is conceived, be generally supported.
Adjournment of Poll.] In R. v. The Archdeacon of Chester, (1 Ad. and Ell. 342) notice had been given that a vestry would be held in the church, but that if a poll were demanded it would be adjourned to the town hall. At the meeting there was a show of hands, upon which a poll was demanded, and thereupon the chairman, without taking the sense of the meeting, adjourned the poll to the town hall. It was held, that the proceeding was regular, no business having been interrupted by it, and the adjournment in the particular event being part of the original appointment. In the course of the argument, Lord Denman said, “This is not properly an adjournment, may not a chairman appoint a convenient place for taking the poll? Suppose the proceedings had been originally appointed to take place in the church, and the meeting had become so tumultuous, that it became necessary to adjourn to the churchyard, would it have been irregular to do so ?" And in the case of R. v. The Churchwardens of Lambeth, Parke, J., speaking of the case of Stoughton v. Reynolds, said, “in that case the adjournment was to a subsequent day," and asked if the poll could not have been adjourned from one room to another.
In the case of Baker v. Downing and Wood, 1 Curt. 507, one of the principal questions raised was, whether it was legal when a vestry meeting was assembled in the vestry-room, for the purpose of granting a church-rate, and a poll demanded, to adjourn such poll from the vestry-room to the town-hall
, it being stated in the original notice for the vėstry meeting, that if a poll' were demanded, such adjournment would be made? A further objection was also made, that the townhall was private property, and consequentls, that the parishioners had not a right to insist on legal access to it. Election held to be good.
Duration of Poll at Elections. The second question in the above case of Baker F. Downing and Tivod, was whether the time fired for the duration of the poll, which was also stated in the abore notice, and which was to be from the time of the adjournment of the poll on the 25th of September, (the day fixed for the restry meeting.) till four o'clock on that day, and from ten in the forenoon till four in the afternoon on the 26th, and again, from ten in the forenoon till twelve at noon on the 27th, was sufficient with reference to the number of persons entitled to vote. The learned judge said, “it is not rery easy to determine what time should be allowed, so as to give every person entitled an opportunity of recording his vote; and all that can be said is, that where no custom exists, a reasonable time should be given. It has been stated, that the number of rate payers (the number entitled to vote) amounted to between one thousand five hundred and one thousand six hundred, some have calculated the number at one thousand six hundred, and Mr. S., who had the best means of forming an accurate judgment of the number, estimates it at one thousand five hundred and fifty. But on his second examination, his attention having been called to the circumstances, and speaking from the means he possessed, and after the poll had been taken, he states the number of parishioners qualified to vote, at no more than one thousand two hundred and twenty-two. There is not sufficient evidence to satisfy me that all the parishioners qualified and desirous of voting, might not, if due diligence had been used, have recorded their votes before the time when it was understood the poll was to cease. Ninety polled in an hour, is no great number; some, indeed, think that one hundred and fifty might be polled in an hour ; but even if only one hundred were polled in an hour, there was sufficient time for all persons desirous of voting to attend for that purpose. I must say, that it would have been more satisfactory if the poll had keen kept open till four o'clock of the last day.”
Time allowed for Parties to pay their Rates.] It having been made a point in the argument, that time should not only be allowed to enable parties to vote, but also for those whose rates were unpaid to qualify themselves by paying them. The learned judge said, " at the commencement of the poll, there was a considerable number of persons not qualified to vote, but during the pendency of the poll, one hundred and fifty persons paid their rates, and were thereby qualified; and it has been suggested, that if one hundred and fifty qualified during eleven hours or eleven hours and a half, had the time allowed for the poll been double what was actually allowed, the effect might have been to double the number of votes. But I do not think that the number of voters could have been materially increased if the poll had been kept open for a longer time. It has been urged, however, that time ought to have been allowed for every person to qualify himself, to pay his rate and tender his vote. It is true, that if a person qualified himself at the very last moment and tendered his vote, it ought to be accepted. But I do not accede to the proposition, that the time allowed for the poll, should be calculated with reference to such a principle. I apprehend that the time need only be fixed so as to allow every person qualified to tender and record his vote, without any reference as to what may be done by persons not already qualified. It is no part of the purpose for which a poll is demanded, that it should give time for the payment of the rates, but only to allow persons already qualified sufficient time to tender and record their votes. The question is, was the time sufficient to allow all persons qualified to vote " The learned judge thought that sufficient time had been allowed, and consequently that the rate was valid.
Time of Polling according to a Custom.] In R. v. The Commissary of Winchester, (7 East, 574) it was held, that where there is a custom to determine the period of polling, the custom must be abided by, provided such a time be reasonable. It was also said that the electors cannot abridge the time. It is conceived, however, that few ancient customs, though reasonable at the time they were established, would suit the increased numbers of some of our populous parishes.
Elections by show of Hands.] Election by show of hands is a rude and imperfect mode of election; and where two or more candidates are put up together, such a mode of election is impracticable and illegal. (Cowp. 539.) In Campbell v. Maind, (1 Nev. 8 Per. 564) Alderson, B., said, “ It appears that Maund and Hobbs were put up together, and Goodhind and Hill together, suppose a person to be desirous to vote for Hobbs and Goodhind he could not do it, whereas by a poll he could. So also a show of hands would be no criterion of the number of votes under 58 Geo. 3, c. 69, which gives to voters a plurality of votes in proportion to the amount of their assessment. (7 Ad. and Ell. 259.) An election by show of hands alone, therefore, is necessarily inconsistent with the allowance of a plurality of votes in any one person. (1 Nev. and Per. 571, and vide 2 Nev. and Mann. 464.)
Poll without a show of Hands.] It is no valid objection to the proceedings at an election that the chairman directed a poll without first taking a show of hands, although a show of hands was demanded, and a poll not demanded, but objected to. (7 Ad. and El. 254.)
Persons not present at show of Hands may Vote at a Poll.] Nor is there any objection to a person not present at the show of hands voting afterwards, if a poll be granted. (5 Ad. and Ell. 874.)*
With regard to wills made subsequenly to the 1st of January, 1838, it is enacted by 1 Vict. c. 26, s. 9, that “no will shall be valid unless it shall be in writing, and executed in manner hereafter mentioned, that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; and such signature shall be made, or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
Roger's Ecclesiastical Law. A very valuable publication.--Ed. C.M.
By s. 13. Every will executed in manner hereinbefore mentioned shall be valid, without any other publication thereof.
By the statute of frauds, (29 Car. 2, c. 3, s. 5) it was not required that the will should be signed “at the foot or end of the same, but it was only generally required that the signature of the testator should be “made” in the presence of witnesses ; the late statute requires that it shall be made 56
or acknowledged" in the presence of witnesses present at the same time.
Almost immediately after the statute of frauds, it was decided that where a man wrote a will with his own hand, and his name appeared in it written by himself, it was a sufficient signing within the statute, whether the name appeared at the top or bottom, or any other part of the will ; since the statute 29 Car. 2, c. 3, had not appropriated any particular place in the will for that purpose. (3 Lev. 1; Freem. 538 ; 9 Ves. 248.) But now the signature must be “at the foot or end."
Sealing is not a sufficient signing. (1 Wils. 313; 2 Ves. sen. 454 ; 1 Ves. jun. 11.) But a mark a sufficient signing, whether the person, making his mark, can write or not. (8 Ad. and El. 94.) Execution of a codicil, which is on the same sheet of
with the will, referring to and confirming it, has been considered as a sufficient execution of the whole. (16 Ves. 167; and vide 2 B. and B. 650.)
Where the will is written on separate sheets, each must be signed ; a signature of the two first sheets is insufficient, especially if there was an intention that the whole should be signed. (Doug. 241.) But where the will was written on one sheet only, the last page of which was signed and attested, it was held sufficient, although the will itself stated that the testator had signed the two first sides, which, however, had not been done. (2 Brod. and Bing. 650.)
It was held, under the statute of frauds, that it was not necessary for the testator actually to sign his will in the presence of witnesses, (3 P. Wms. 254 ; 2 Tyrw. 73) therefore it was held sufficient for the testator to own his signature in their presence; (ib. ; 1 Ves. and Bea. 362, and the cases there cited; 2 Ves. 454; 1 Ves. jun. 10; 8 Ves. 504; 18 Ves. 183) and it is expressly provided by 1 Vict. c. 26, s. 9, that “acknowledging shall be sufficient;" it was also held, under the statute of frauds, that the witnesses need not be present at the same time, when either the testator signed or owned his signature; thus, where a devisor published his will in the presence of two witnesses, who attested it in his presence, and some time after sent for a third, and again published it in his presence, the attestation was held to be sufficient; (contrà, 1 P. Wms. 740) this doctrine was established in conformity to the weight of authority, though it seems unwillingly. (1 Ves. jun. 14; vide also Prec. Chan. 184; 3 Burr. 1773; 1 Ves. and B. 362.) But the statute, (1 Vict. c. 26) as to future wills, requires that the signature of the testator “shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time.”
The words in the recent statute as to the attestation, are the same as those in the earlier statute; it is not necessary that a devisor should
Both statutes in this have adopted the rule of the civil law, as reformed by the Code in the Novels. (Gilb. Rep. 261.)