tion of Divine service and offices therein, and for the other expenses necessarily and legally incident to their office for the then current year; wherefore they, the churchwardens aforesaid, and the overseers of the poor, and other the parishioners and inhabitants (rate-payers) of the said parish, on the 14th of July, 1858, met together in the vestry-room of the said parish pursuant to notice thereof previously and duly given according to law, to make a rate in order to raise funds for the purposes aforesaid;" and the said article then proceeded to state at the said meeting the making of a church-rate of 3d. in the pound was proposed and seconded, but an amendment negativing the same was carried, whereupon a poll was demanded by the said churchwardens, and duly had, and that, in the result of the said poll, the said rate was carried by a large majority: That the second article of the said libel, in supply of proof thereof, referred to the original vestry meeting book of the aforesaid parish of Hadleigh, and annexed four paper writings to the said libel, marked respectively, No. 1, No. 2, No. 3, and No. 4, and alleged and proposed that marked No. 1 to be and contain the original notice convening the said vestry meeting of the 14th of July, 1858: That the third article of the said libel pleaded that the said John and Joseph Green, at the time of making the said rate, were joint *occu

piers of a certain farm and premises in the parish of Hadleigh, [*472

of the yearly rateable value of 4877., and that they were duly and legally assessed to the said rate at the sum of 6l. 13s. 9d.: That the notice so mentioned and referred to in the said first and second articles of the said libel was as follows,-"Notice is hereby given. The churchwardens, overseers, and other principal inhabitants of this parish are requested to meet in the vestry on Wednesday, the 14th July instant, atpast 9 o'clock in the forenoon, to examine the churchwardens' accounts and to grant them a rate. Given under our hands this 3d day of July, 1858. J. Rand, W. Grimwade, churchwardens:" That, on the 22d of February, 1860, the judge of the Arches Court, and sitting as such judge thereof, heard counsel for John and Joseph Green against the admission of the libel to proof, and for Rand and Grimwade in behalf of admitting the said libel to proof; and it was objected before the said judge that the said notice convening the said meeting of the said 14th of July, 1858, was insufficient, on the following grounds,-that no parish was mentioned by name in the said notice, and that consequently it was no notice to the parishioners of Hadleigh, and that, from the mere circumstance of the affixing of such notice on the doors of the parish church of Hadleigh, it could not be held to be a notice to the parishioners or rate-payers of that parish,-that the said notice was not in its terms positive,-that the parish or vestry or any meeting could be held, it containing a mere request to meet, and not an absolute appointment of a meeting, and that the notice was defective on the ground that by its terms it was directed to the churchwardens, overseers, and principal inhabitants of the said parish, not to the rate-payers or parishioners thereof generally: That the said judge of the said Arches Court overruled all the said objections *to the said notice, [*473 and held that the same was good and sufficient in point of law, and admitted the said libel to proof: That the said suit in the said Arches Court is still pending and being prosecuted against the said John and Joseph Green: That the said John and Joseph Green are

advised and believe that the said decision of the said judge of the Arches Court, so holding the said notice to be good and sufficient in point of law, and admitting the said libel to proof, was and is erroneous: And that no appeal against the said decision, has been made or is pending.

There was a further affidavit stating that there now are, and during the whole of the year 1858 there were, persons,-naming three clergymen of the church of England and a solicitor,-who were, inhabitants of the parish of Hadleigh, but who by reason of their living in lodgings were not assessed to any of the parochial rates, &c., and that there were several messuages, lands, hereditaments, and premises in the tenure or occupation of divers persons who then were not nor ever at any time had been resident therein or thereupon, and who were not then, neither had they since been, inhabitants of the parish, but who nevertheless then were and from time to time since had been and were then rated and assessed to the poor-rates and church-rates from time to time made in the said parish; and that among such persons there were influential persons of good standing in society, some of whom occupied property of considerable magnitude in the parish, and contributed largely to the parochial charges.

By the 1st section of Sturges Bourne's Act, 58 G. 3, c. 69, it was provided that, "no vestry or meeting of the inhabitants in vestry of or for any parish should be holden until public notice should have been given of such meeting, and of the place and hour of holding the same,

*474] and the special purpose thereof, three days *at the least before the

day to be appointed for holding such vestry, by the publication of such notice in the parish church or chapel on some Sunday during or immediately after Divine service, and by affixing the same, fairly written or printed, on the principal door of such church or chapel." That provision is modified by the 7 W. 4 & 1 Vict. c. 45, s. 2, which requires the notice to be affixed "on or near to the doors of all the churches and chapels within such parish or place." In Bacon's Abridgment, Churchwardens (C), it is said, that "the churchwardens have no power to make any rate themselves, exclusive of the parishioners; their duty being only to summon the parishioners, who are to meet for that purpose." So, in Burn's Ecclesiastical Law, Church-Rate, 9th edit. Vol I., p. 378, it is said, that "rates for reparation of the church are to be made by the churchwardens, together with the parishioners, assembled upon public notice given in the church." The law is laid down in similar terms in Steer's Parish Law, 3d edit. 444. In Smith v. Deighton, 8 Moore's P. C. 175, it was held that it is essential to the validity of a church-rate, that the notice summoning the parishioners together should clearly apprise them of the special purpose for which the vestry meeting is to be called. Dr. Lushington, in giving judgment, there says: "Undoubtedly, it was the intention of the legislature in framing this statute (58 G. 3, c. 69), to provide that due information should be given to all the parishioners of the special purpose for which their attendance is required. These enactments were made to remedy the great evils that had arisen from convening a meeting upon a general notice, the parishioners being entirely ignorant of the particular purpose for which they were called upon to meet." The notice in question is defective in three respects,-first, it is no notice of a vestry,-secondly,

it gives no certain notice that a *vestry will be held-thirdly, it is not a notice to the rate-payers of the parish of Hadleigh, but [*475 is directed to the wrong persons, viz. "to the churchwardens, overseers, and other principal inhabitants" of the parish. Rated parishioners are not necessarily inhabitants of the parish: Richardson v. Gladwin, 1 Ellis, B. & E. 138 (E. C. L. R. vol. 96). This notice in terms, therefore, includes persons who have no right to attend the vestry, and excludes some who have a right to attend. Medland v. Paine, 4 Jurist, N. S. 1283, was also referred to.

ERLE, C. J.-I am of opinion that there ought to be no rule in this case. The duty imposed by law upon the churchwardens, is, to give notice to those who have a right to attend, that a vestry meeting will be held, and also of the purpose for which it is to be so held. The notice in question appears to me to comply substantially with these requisites. It is a notice intended for the parish of Hadleigh, and is affixed on or near the parish church of Hadleigh; and it is in these words,-"Notice, &c. The churchwardens, overseers, and other principal inhabitants of this parish are requested to meet in the vestry on Wednesday, the 14th July instant, at, &c., to examine the churchwardens' accounts, and to grant them a rate." It is said that this was calculated to mislead those to whom it was addressed. But, when we consider, that, under the old law, when the notice was orally given in the church, as many of us will remember,-it was in terms addressed to "the inhabitants of this parish," I think the written or printed notice is much more capable of being understood if it is directed to the inhabitants of "this parish," the parish of the church on which it is affixed, than if the parish were designated by the name of the saint to whom in former days it was dedicated. Then, is the notice addressed to [*476 *the persons who have a right to attend the vestry? At common law, all the residents in the parish would be included in the invitation to attend. The term "resident" being a very loose term, the 58 G. 3, c. 69, gave a more defined rule whereby to ascertain who were the parties entitled to be present, viz., those who occupy property liable to be rated at that meeting. Is this notice so addressed that any person. having a right to attend could reasonably consider himself excluded by it? No case has ever decided that the notice must be addressed to persons occupying rateable property in the parish: and the argument of Mr. Philbrick has failed to satisfy me that any inhabitant of the parish of Hadleigh who is liable to be rated, could consider himself excluded from the vestry by the terms of this notice. It is said that there are certain persons to whom this document would seem to be addressed who are merely lodgers, and therefore are not entitled to be present at the vestry meeting. That, however, can hardly be relied upon as a tangible objection. Then it is said that this is not a notice, but a mere request to attend. The adoption of language of common courtesy surely will not vitiate a notice. There is a clear intimation here that a vestry meeting will take place at the time and place mentioned, and for the purpose mentioned, viz., to make an ordinary church-rate. If this had been a meeting for the making of a church-rate for any unusual purpose, -for instance, for the purpose of raising a sum to pay off money borrowed, that should have been specifically expressed on the face of the notice. But this is professedly for an ordinary church-rate; and I think

nobody who wished to understand it could possibly be misled by it. It requires some degree of astuteness to find any fault with it. I must confess my utter inability to see that this notice is open to any objection.

*477] *BYLES, J.(a)—I also am of opinion that this is a perfectly good notice. In country parishes, the persons whose duty it is to give these notices are usually not very learned or very skilled in language: these documents, therefore, should receive a liberal and not a strict and forced construction. I entirely agree with my Lord, that, when one sees that this notice is issued by the churchwardens, and purports to convene a meeting in the vestry for the purpose of granting them a rate, it is impossible to doubt that it was intended at that meeting to make a church-rate. As to the objection that the notice is bad because it is addressed to "the churchwardens, overseers, and other principal inhabitants of this parish," and therefore includes some who have no right and excludes others who have a right to attend the meeting, it cannot be doubted that the notice would have been perfectly good if it had been addressed to "the inhabitants of this parish" generally. The addition of the word "principal" only shows that the word "inhabitants" was not intended to include every person who sleeps in the parish. All it means is, inhabitants who are in a superior station to some others, persons, it may be, who in respect of their being ratepayers are principal or superior to others who do not enjoy the privilege of being taxed. As to the description of the parish as "this parish,' instead of "the parish of Hadleigh," I think it is quite sufficient. Even if it had said "this parish," and had then gone on and described the parish by a wrong name, I incline to think the maxim of Lord Bacon, "Præsentia corporis tollit errorem nominis," would have applied. If I give to John Smith a ring, saying at the time "I give you this ruby ring," and the ring is a diamond ring and not a ruby, that would be a good *gift of the thing actually handed over. Here, the notice *478] being stuck up on the church, it is the same as if it had in terms

addressed itself to "the inhabitants of the parish on the church of which this notice is affixed." I think we should be encouraging idle and mischievous objections to these notices, if we sanctioned the minute criticism here sought to be applied.

KEATING, J.-I am of the same opinion. It is no doubt proper that these notices should be required to state with reasonable accuracy the persons who are to attend and the object for which their attendance is desired. But they must at the same time receive a reasonable construction. I think this notice is sufficient, and that we ought not to cast any doubt upon it by granting a rule. Rule refused.(b)

(a) Williams, J., was engaged in the Divorce Court.

(b) A similar application was made to the Court of Exchequer, and with the like result.

The court refused a rule for payment of money under an award, where it appeared that the costs (unascertained) of certain proceedings in Chancery were payable to the other party under the same award.

By an order of reference made at the last Surrey Assizes, a verdict was found for the plaintiff for the sum claimed in the declaration, subject to the award of a barrister, who was empowered to direct that the verdict should stand for such sum as he should think proper, and to whom the cause and all matters in difference between the parties were referred, to order and determine what he should think fit to be done by either of them respecting the matters in dispute,-the costs of the cause to be paid to the plaintiff by the defendant, and the costs of the reference and award to be in the discretion of the arbitrator, who was empowered to direct and award to and by whom and in what manner the same should be paid.

*

[*479

By a judge's order of the 7th of May, 1860, it was directed that the costs of the cause should abide the event as to the amount of damages awarded.

The arbitrator made his award on the 9th of October, as follows:"I award that there is not nor was there at any time a partnership inter se between the plaintiff and the defendant: And I award and direct that the proceedings now pending in the Court of Chancery between the plaintiff and the defendant be stayed, and that the costs thereof be paid by the plaintiff: And I further award and assess the damages to which the plaintiff is entitled for the determination of his employment and alleged interests in the business, and for his being charged at the Mansion House and imprisoned, and indicted at the Central Criminal Court, at the sum of 208.; and I award and direct that the verdict found for the plaintiff in the said cause shall stand for that sum; and I further award that there is due from the defendant to the plaintiff a balance of 481. 6s. 7d. ; and I award and direct that such balance be paid by the defendant to the plaintiff: And I further award and direct that the action for slander now pending by the plaintiff against the defendant be stayed, but that the costs thereof be paid by the defendant: And I further award and direct that the plaintiff and the defendant do each bear his own costs of the reference and pay onehalf the costs of this award; and that, if either party shall in the first instance pay the whole or more than half the costs of the award, the other party shall repay him so much of the amount as shall exceed the half of the last-mentioned costs."

The whole of the costs of the award, amounting to 1037. 178. 10d., was paid by the plaintiff.

*On the 19th of November, the defendant was personally served, and payment of the sum of 481. 68. 7d., the balance mentioned [*480 in the award and thereby ordered to be paid by the defendant to the plaintiff, and also the sum of 517. 188. 11d., the moiety of the sum so paid by the plaintiff to the arbitrator for his award, were duly demanded of him, but they remained unpaid.

Upon an affidavit setting forth the above facts, and further alleging that the plaintiff claimed no costs against the defendant in respect of the action of slander referred to in the award,