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that, seven *vestrymen at least must be present, and notice of such meeting (for making a rate), and of the purpose thereof, must be [*705
( previously given.
Now the allegation with reference to the second meeting (14th Sep. tember) 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. [*706
(Error from the Queen's Bench.) LORANT v. SCADDING. May 29.
[For marginal note, see p, 687, antè.] 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. 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 ves. trymen 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
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
may maintain an *action for money had and received against a
former church warden; 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, shall 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 *708]
August, it *was made on the 14th of September, when the rate
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 c. Sturtevant, 12 M. & W. 515.7 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 e. 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 original meeting, would aid the avowry, which distinctly alleged
[*710 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
rate signed is the rate resolved on, I think this rate has been well signed. The 69th section does not seem to make the signing a judicial act any more than the allowance by justices, which is merely ministerial.] The Commissioner's signature to the jurat under an affidavit is not a signature of the affidavit itself.
The main question is, whether vestrymen de facto could make this rate. If the old vestrymen are still in office because they have not been duly replaced by their successors, then the old vestrymen should have had notice of the original meeting; the act of the vestry was void, unless every vestryman had due notice of it; Dobson v. Fussy, 7 Bing. 305 (E. C. L. R. vol. 20). “All voluntary acts, not necessary to carry on the business of the corporation, seem to be void, whether done by an usurper
or a *mayor de facto, or under the authority of either : some *711]
necessary acts, too, are certainly void, in both cases;" 1 Kyd on Corporations, 451. The act of making this rate by vestrymen de facto was not necessary in any sense. It was not necessary for the purpose of maintaining the existence of the vestry; for it had no such object or tendency: nor was it necessary for the relief of the poor, for there was a sufficient number of vestrymen de jure to do the act. Watson replied.
Cur. adv. vult. ALDERSON, B., now delivered the judgment of the Court.
Upon the pleadings in this case, and upon the facts found by the special verdict, several questions arose, and were fully argued.
The first and most material question was, whether the rate was a valid rate. Under the 69th section of the local act power is given to seven or more of the vestrymen to meet, at such time and place as to them shall seem proper, to make a rate, notice of such meeting and of the purpose thereof having been given on the Sunday immediately preceding; and the rates and assessments so to be made, when signed by the vestrymen, or any seven or more, and allowed and confirmed by two Justices of the Peace for Middlesex, and notice given upon the Sunday next after in the parish church, may be collected and received by the person or persons appointed to receive them by the vestry. At a meet- . ing on the 12th August, which was duly convened, due notice having *712]
been given of the purpose of the meeting, *namely, the making
of the rate, it was resolved by the vestrymen then present, exceeding seven in number, that a rate of 18. in the pound, for the relief of the poor, should then be made; but, as the number of parishioners was very large, it was impossible at that meeting actually to make a rate by assessing each individual in a certain sum; the meeting was therefore adjourned to a future day, and from that day to another, and so on until the 14th September, when the rate had been written out in four books, containing all the requisites of stat. 6 & 7 W. 4, c. 96, and agreeing with the resolutions of the 12th August. One of these books included the name of the plaintiff. The vestry proceeded to
resolve on signing, and to settle and sign, the rate books in pursuance of notice given to each vestryman for that purpose, and also resolved that application should be made for the allowance and confirmation of the rate to two justices; and a declaration was therefore written in each of the books at the end, to this effect; that the subscribing vestrymen, nine in number, declared the particulars specified in the above rate to be true and correct as far as they knew : and the nine vestrymen signed their names.
Notice was given of several adjournments, but not of the purpose of these adjournments.
Several objections were made to the validity of the rate, none of which we think well founded.
One objection was, that the forty-six vestrymen appointed in May, 1839, were not duly elected, as was the fact; and that no notice of the meeting was given to some of the vestrymen, who, if their election was to be held void, still continued to act like legal vestrymen. The answer to that objection is, that, as the forty-six *vestrymen were de
[*713 facto vestrymen, the rate made by them or all of them, having
, had due notice, was valid as the rate of the church wardens and overBeers de facto.
Another objection was, that there were four books, and that there ought to have been but one; and this also we think untenable.
Then it was said that the signature of nine vestrymen was not a sufficient signature within the meaning and intention of the local act, it being only a declaration to satisfy stat. 6 & 7 W. 4, c. 96, and not with the intention of authenticating the rate as a complete rate, which should be acted upon under the local act. We have already intimated our opinion in the course of the argument that the signature may very well answer both purposes : and this objection therefore must fail.
It was scarcely contended by Mr. Peacock, for the plaintiff below, that the rate was invalid simply because made on different days, if made at different meetings duly adjourned for the purpose from the first day; but he contended that a special notice of the purpose of each meeting, although an adjourned one, was necessary. We think that, as due notice, containing a statement of the purpose of the meeting, was given for the first meeting, it was good for all the adjourned meetings, which are in truth merely continuations of that meeting; and the objection therefore must fail. The rate, therefore, in our opinion, was a valid rate.
The remaining questions are, whether all the material allegations contained in the avowry, and the whole of which are traversed by the plea in bar, are proved; and, if they are, whether, after the verdict, the avowry is good. The allegation that at the first meeting, *namely, that on the 12th August, a certain rate was made by all
[*714 the vestrymen present at it, according to the form requhed by stat. 6 & 7 W. 4, c. 96, was proved by the fact found that it was begun at that meeting, and completed finally on the 14th September, to which day the