August 12th. Notice was given of a meeting on that day to make a rate; and the meeting was adjourned from time to time (not including the vestry of August 28th, which was a special one) till September 14th, on which day the rate books were signed by more than seven of the vestrymen present. This is the only way in which a rate can be made in large parishes. It cannot be completed within the one day for which notice is given. Sect. 69 must have a reasonable construction. The meeting there spoken of must be for the purpose of resolving upon a rate; the preparation of it for signature must be done afterwards within such time as a work of that kind may require. The case states that the vestry clerk proceeded to make out the rate with all reasonable despatch after the resolution of August 12th. If that resolution was not the making of a rate, it may fairly be considered that the meetings by adjournment, while the vestry clerk was employed upon the details, down to September 14th, when the rate was *signed, all constituted one [*702 meeting for the present purpose, and that the rate was, substantially, made on the day first named. Sect. 69 says that the rate, "when signed by the said vestrymen," &c., shall be collected and received; but not that it must be signed at the meeting first spoken of. [WIGHTMAN, J.-By what vestrymen is the rate made if the same do not attend on the first and the subsequent day?] The vestrymen attending need not be the same. "The said" in sect. 69 refers to the vestrymen generally, as mentioned in sect. 13. [COLERIDGE, J.—If different persons attend at a meeting subsequent to the first, can they dissent from the resolution, or are they merely ministerial?] If they refuse to sign, the rate wants sanction; but the expense of preparing it will have been rightfully incurred. [Lord DEN MAN, C. J.-As to the insufficiency of time, if more than one day is required, the difficulty may be obviated by proper adjournments.] It is suggested that notice was not given of purpose for which the meeting of September 14th was held; but the notice given for the first meeting extended to every meeting held by adjournment from it. The special meeting of August 28th is unnecessarily introduced into the case, the confirmation there mentioned not being required by the local act. It is true that stat. 1 & 2 W. 4, c. 60, 8. 28, requires the acts of one vestry to be confirmed by the next but, by sect. 27, that enactment does not overrule the provisions of a local act. The objection that the rate, if made on September 14th, is misdated, would at most be only matter of form; by sect. 97 of the local act, no rate to be made under it could be vacated or quashed for want of form:" and, by stat. 17 G. 2, c. 38, s. 8, such a defect would not *invalidate a distress. The signature on September 14th, as it appears by the case, was a sufficient signing of the rate. (The argument on this and other points not determined by the judgment is omitted.)

the

[*703

Peacock, in reply.-If the meeting of September 14th was to be VOL. XIII.-53

deemed a mere continuation by adjournment of the meeting on the 12th August, the avowry should have been framed accordingly. And the minutes show several meetings, but only one of which the purpose is specified by notice. [Lord DENMAN, C. J.-Notice seems necessary only where the meeting separates without adjournment.] Notice of the purpose is a necessary preliminary to any meeting which is held for making a rate. Čur. adv. vult. Lord DENMAN, C. J., in Hilary vacation (February 3d), 1847, delivered the judgment of the Court. After a short notice of the pleadings, his Lordship said:

Several questions were raised for the consideration of the Court: but the learned counsel were desired to confine their attention in the first instance to one point: namely, whether the avowry, supposing it to contain an allegation that a poor rate was lawfully made, be sufficiently sustained by proof.

Now on behalf of the defendant it was contended, either that such assessment was made at a meeting of the vestry holden on the 12th August, 1839, or on the 14th September following; or that the proceedings of the two meetings considered together amount to a valid assessment, it being admitted that the precise day on which they were holden, if both or either be in other *respects sufficient, is not material. It certainly appears, both from the pleadings and the proof, that more than two meetings were in fact holden.

*704]

The first allegation is: that on the 12th August, 1839 (laid under a videlicet) a meeting of the vestrymen of the said parish was held in pursuance of the said act, for the purpose of making one general rate and assessment, and that, at such meeting, "a certain rate or assessment of one shilling in the pound was adjudged and determined to be necessary, and was then and there unanimously agreed upon and made." Now, supposing this to amount to an allegation that a rate was in fact made, the statement in the case plainly shows that all which was done at the meeting was preparatory only, and that then no rate or assessment was in existence at all, and of course cannot be said to have been made.

It remains therefore to be considered whether, at a subsequent meeting held on the 14th September following, a valid rate was made, either by an independent act of that meeting, or by the joint effect of the two meetings of the 12th August and the 14th September. And, with a view to this point, it may be necessary to advert to the provisions of the said local act, as to the holding of the meetings of the vestrymen, generally, and specially for the purpose of making rates. By the 4th section the vestrymen (to the number of seven) may meet to execute the act, and may adjourn themselves to meet at such future time and place as they may appoint; and, if no adjournment be made, then follow certain provisions not observed in this case, and therefore not material to be noticed. The 69th section respects the making of rates: and, by

that, seven *vestrymen at least must be present, and notice of such meeting (for making a rate), and of the purpose thereof, must be previously given.

[*705

Now the allegation with reference to the second meeting (14th September) is as follows: that, after the making of the said rate, and before the allowance thereof, to wit, on the 14th September, at a meeting (describing it), the said rate so agreed upon and made at the said firstmentioned meeting (12th August) was duly signed by eight of the vestrymen present. And, as to the effect of this second meeting, relied upon for the defendant, in the first place the avowry describes the rate as having been made at the first-mentioned meeting; and next (though this perhaps is rather an objection to the avowry itself) it is not alleged that the meeting of the 12th August was adjourned to the 14th September, but the contrary appears; and lastly, against considering the rate as having been made at the latter meeting, it does not appear that such meeting was held (according to the provisions of the said 69th section) for the purpose of making a rate. It is indeed perfectly clear, both from the allegations in the avowry itself and the proofs contained in the statement of the case, that the making of the rate was contemplated at the meeting of the 12th August and not of the 14th September.

We are of opinion therefore that, from the defect in the avowry, or in the proof of it, or in both, the defendants have failed to establish the fact that a legal rate was duly made; and that our judgment must be for the plaintiff. Judgment for plaintiff.

*IN THE EXCHEQUER CHAMBER.

(Error from the Queen's Bench.)

LORANT v. SCADDING. May 29.

[For marginal note, see p, 687, antè.]

[*706

AFTER the decision in Scadding v. Lorant (antè, p. 687), the special case was turned into a special verdict, which did not substantially differ from the case; and judgment was entered up for the plaintiff. The defendant Lorant brought error thereupon in the Exchequer Chamber, assigning errors in the common form, and also that the facts found by the verdict showed that the plaintiff in error did, with the cause alleged in his avowry, take the goods, &c.; and that the said facts were sufficient to support the avowry, and disclosed a good and valid rate. Joinder. The case was argued in last Hilary vacation.(a)

(a) February 7th. Before MAULE, CRESSWELL, and WILLIAMS, JS., and PARKE, ALDERSON, and ROLFE, Bs. The argument was commenced on the 3d February, when COLTMAN, J., and PLATT, B., were also present; but the Court adjourned shortly after the beginning of the argu

ment.

Watson, for the plaintiff in error.-First: The rate was a valid rate; and, on this part of the argument, it matters not whether the rate was made on the 12th August or the 14th September. It was made by vestrymen de facto, though not de jure. But the title of the vestrymen cannot be impeached on a question arising out of a distress for a rate made by them. [PARKE, B.-It seems that churchwardens de facto may maintain an *action for money had and received against a *707] former churchwarden; Turner v. Baynes, 2 H. Bl. 559.] Penny v. Slade, 5 New Ca. 319, also is an authority, on this point, for the plaintiff in error. If objections to title could be taken incidentally in this manner, there would be no limit to the unravelling of elections: it might be contended that an irregularity at the very first election of vestryman would vitiate all subsequent elections. By sect. 9 of the local act it is an offence to act as vestryman without a qualification; but it is provided, nevertheless, that all the acts of vestrymen, before conviction, Ishall be valid.

The rate was made on the 12th of August, when it was decided by a competent number of vestrymen that a rate should be made, and of a certain amount. It is not essential to making a rate that it should be entered in a book with all the names of the persons rated and the sums assessed upon them stated therein. Nor was it essential to the mere making of the rate that it should be signed by the vestrymen under the 69th section; their signature was an act to be done subsequently to the making. [ALDERSON, B.-I have no doubt that the rate may be considered as made before the signing. MAULE, J.-The word "rate" will vary in its signification; the making a "rate" may be the resolution that a rate shall be made; the inspecting a "rate" would rather mean the inspecting the rate book; the paying a "rate" must mean the sum assessed on an individual; and here "signing" the “rates” must mean signing the rate books.] If the rate was not made on the 12th of August, it was made on the 14th of September, when the rate *7081 books had been filled up, and it was consummated by the signatures of the vestrymen. The meeting on 14th September was duly held by successive adjournments. Due notice of this adjourned meeting was given according to the fourth section of the local act; for the act does not require notice of the purpose of an adjourned meeting; and the Court below appears to have been in error as to this. In law, the adjourned meetings are considered as held on the day of the original meeting, like the quarter sessions; St. Andrew's, Holborn, v. St. Clement Danes, 2 Salk. 494, 606, Lingfield v. Battle, 2 Salk. 605, Rex v. The Justices of Surrey, 1 M. & S. 479; or sittings at Nisi Prius; Cheetham . Sturtevant, 12 M. & W. 515.† There can, therefore, be no general rule of law requiring notice of the purpose of an adjournment.

It is also objected that the rate is in four books, not containing any reference to each other, instead of being in one book. [PARKE, B.

This seems like an objection to the binding of the books.] The name of the plaintiff below, at all events, is in only one book, so that the objection is resolved into an objection that all persons liable are not rated, which is matter of appeal only. [PARKE, B.-Go to the next point.] Another objection is, that the rate was not signed; but the rate is not the less signed because the statutory declaration, under stat. 6 & 7 W. 4, c. 96, s. 2, is interposed, and so authenticated by the same signing. [ALDERSON, B.-The provision, that the rate shall be signed, means, I suppose, that the vestrymen are to sign that it is a rate; has anything equivalent been done?] The declaration follows the schedule, and has the words "the above rate."

[*709

Then as to the sufficiency of the avowry. It is sustained by the special verdict. The avowry alleges that the rate was made on the 12th August: it is immaterial whether the rate was made on that or a subsequent day; and the date is laid under a videlicet. The only material allegation is, that the rate was made at such time and in such manner as to authorize the distress. Even if the rate was not completed until 14th September, the allegation that it was made on 12th August was proved; for the authorities already cited show that the adjourned meetings are to be taken as held on the day of the original meeting.

Nor is it material that the rate was not signed by persons whose names are alleged in the avowry, and by no others. The signing is merely a ministerial act. It appears that seven vestrymen signed; and this alone is material. A variance in the names is unimportant; Draper v. Garratt, 2 B. & C. 2 (E. C. L. R. vol. 9), Perreau v. Bevan, 5 B. & C. 284, 296 (E. C. L. R. vol. 11).

The allegation that the rate was confirmed on the 28th August is also immaterial; for the rate required no such confirmation.

Peacock, contrà, after contending, on the grounds taken in the Court below, that the avowry was not proved, and that the variance as to the alleged meetings was material, because, if the adjournments had been truly stated, it would have appeared that three notices were necessary, observed that neither the general rule as to immateriality of dates, nor the fiction that *adjourned meetings were in law part of the [*710 original meeting, would aid the avowry, which distinctly alleged that the meeting of the 14th September was a "certain other meeting." He then argued that the rate was invalid. The rate was not signed; the declaration only is signed. If at the foot of the rate a resolution for the appointment of a collector had been written, and the names of the vestrymen had then been signed under this resolution, would this be a signing of the rate? [MAULE, J.—I think it would.] The declaration merely verifies what is stated in the columns, and not the heading; the signing therefore does not reach the heading. [MAULE, J.—If “signing” means adjudging that the rate is proper, perhaps the signing in this case may be insufficient; but, if it means only marking that the