[418] EDWIN WARD ~ ~ A R ~ I ~ ~ , - ~ ~ ~ ~ ~ ~ ~ & EWOT; LOUIS LORANT,-

~ e ~ e n ~ u n g is Brmr [July 9, 11, 18513.

D~st.ingu~shed in ~ ~ n ~ ~ o ~ ~ ~ v. Creek&, 1868, L.W. 4 C.9. 485.1

Poor R a t e - V e s t r ~ - ~ d j o u r ~ ~ ~ s ~ - l r e s t ~ ~ e n de facto-P~ead~~g.

[News' Dig. v. 1461; xi. 2550. S.G. 15 Jur. 955; and, in Q.S., 13 Q.B. 687.

A rate for the relief of the poor, which i s lawfu~ly made in other respects, is not

rendered invalid by the circumstance that some of th0 vestrymen, who con-

curred in making it, were vestrymen de facto, and not de jure.

Where notice of the purpose of a vestry meeting hahs beon duly given, and that

mwting has b ~ ~ u n but not c o n ~ ~ l e ~ ~ a certain ~ u s ~ n ~ s , and the meeting i s

regularly adjourned, such business may Lawfuliy be completed at the adjourned

m e ~ t ~ n g , though the notice for ~un~nioning such adjourned meeting does not

s t a b the purpose for which i t is sunmoned.

A vestry, duly assembled by notice for that, purpose, on the 12th of A u ~ s t , re-

solved '' That a rats of one shilling in the pound be made, and the same is

hereby made and kid, and i s to be collected fo~hwi th~ ' This r~o lu t ion was

signed by the requisite number of vestrymen ; but oxlf! of the persons so actiilg

was not a t that time a v ~ t ~ n ~ a n de jure. The parish wm w large that the

estimate of the a s s~sn~en t s rquired by the 6 and 7 Wm. 4, c, 96 (Pwochial

Ass~ss~ne '~~ts Act), could not be prepared and signed at that vestry. It was

resohed " that the vestrymen be summoned for the 4th of September, to elect a

director of the poor in the place of," etc., and the vestry then adjourned t o the

4th of S e p t e m ~ r . A special meeting of then vwtry was held an t.he 28th of

August, when the minute8 of the last meetsing were read and aonfirzned, and

other businem was transacted, On the 4th af S e p t e m ~ r there was a general

meeting of the v~tryrnen, pursuant to ad~ournment from the 12th of August,

w b n the minutes of the last v w t q were read and confirmed, and the vestry wa8

occupied with hearing a~plications from poor parishioners for relief from pay-

ment of the p 0 a r - r ~ ~ . On

the 9th of September, another general mwting of the ve&q was held, when the

minutes of the last vestry were read and c o n f i r ~ n ~ ; the vestry was occupied

as before, and adjourned to Wne 14th. On tli0 14th of September, the vestry-

men again met, having rcwivd a. s u ~ o ~ s ; which, however, did not stab the

purpose of the intended tin^^ and four [419] vob.mea, a r r a n g ~ in con-

tinuous alphabetical order, lika one book, w0re produced, containing the par-

ticulars of the assessment required by the 6 and ?' Wm. 4, c. 96, and the last of

these books was duly signed, and tha rate thus c o ~ ~ l e t ~ , wa& a ~ l o ~ ~ by the

JuTUsticea :

Edd, thst the rate thus made was x valid rate.

In replevin for seizing tke plaintiff's gwds under a distress for &is rate, a.n avon-ry

a ~ ~ e ~ ~ that a poor-rat@ had been made after the passing of a Csrtain specified

Local Act, and before We taking of the said goods, and whilst the property of

the p l a i n t i ~ was, and the plaintiff in respect thereof was, liable to be rated,

to wit, on t*he 12th August, 1839 :

T h i s meeting adjourned to the 9th of ~ ~ ~ ~ ~ ~ ~ r .

Reld, thab this was a good avow~y? and was proved by fie fact8 above stated.

This wm a n action of replevin. The declaration was in the o ~ d i I ~ a ~ form, and

averred the taking and detain in^ of the goods and chattels of the plain&

To t h i s d ~ l a r a t ~ o n the delfendant made avowry, as one of the collechrg af the poor-

rates of the parish of Saint Pancras, acting in execution of the warrant of distrese

mentioned in the latter part of the avowry,

avowry stated, that the ~ l ~ ~ n t i f f was the o c c u p ~ ~ r of two houses in the pari&

of Saint Pancrag% NOS. 2 and 4, Gordaa Street, and as such liable to & rat& the

relief of the poor : that, after the passing of the Local Act, 59 Gm, 3, c. xxsix., and

whilst the praperty of the plaintiff, and the plaintiff in rmpecl thermf, %rere liable to

be rated, to wd, on the 12th day of August, in th year of our Lord 1839, a met ing of

vBtsqmen of %ha parish was Izeld in pursuance of khe &0ve Ach to wit, for wit. purpose

of making one such g0nerd rate O r a s s ~ s ~ 0 n t as by the laws then in force church-

1.64

SCADDING ?I. LOBANT E185 13 III H.L.C., #W

wardens and overseers of the poor then were enabled or empower^ to make, as the said

v ~ t r ~ e n , or any seven or more of them, should judge or determ~ne to be necessary for

the purposes specified: [&@I that more than seven, t o wit , twenty-two v ~ t r y ~ u e n

(whose names were set out) were then and them present at that meeting : that, copies

of notice of such ~ ~ t i n g , and the purpose thereof, were du€y a tked on the several

churches and chapels in the parish, duly signed : that a c h a i ~ a n w m duly elected at

such meeting in the absence of the vicar : that, at such meeting, a rate or assessment of

one shilling in the pound waB judged and d e t ~ ~ ~ n e d to be n ~ ~ a ~ , and was then

and there unanimously agreed upon and made) by all the vestrymen present a t such

last-mentioned mesting, upon all the property within the parish liable to be1 rated to

the relief of the poor, and upon an estimak of the net annual value of the heredita-

ments rated, with deductions1 of annual cost of repairs, eta : that such rate, in addition

to every other ptarticular which the form of making out such rate required to be set

forth, contained an account of every particular set for& at the head of the respeotive

columns in the form given in the s~hedule annexed to the 6 and 7 Wm, 4, c. 96, so far

as could be a s ~ ~ a ~ n e d ; and which said rats or ~ e s s m e n t then was such a general

rate or a s s ~ n ~ e n t as, by the several laws then in force, c h u ~ h ~ a r d e n s and overseers

of the poor then were enabIed or e~powered to make: that after the making of the

said rate, and before iks allowance by two justices%, to wit, on the 14th of Sep~mber, in

the yea- of our Lord 1839, a certain other meeting of the v e s ~ m e n was held, ak vhich

more than seven, to wit, thirben vestrymen (whose names were specified) were pr&

stint: that the ve&ymen present, a t the meeting of the 12th of August having ad-

journed t ~ e n i ~ ~ v e s to meet on the 14th of Septer~ber, ft. printed notice of the said last-

mentioned meeting so to be held by adjournment as aforesaid, with the name1 of the

vestry clerk subjoined, was left at the usual place of abode of every vestryman, three

days previous to the day appointed for such [a211 mewting : that at, the said meeting

a c h a i r ~ a n was eleotsd, and the staid rate &o agreed upon and made at the said firs&

mentioned meeting was then and there duIy signed by eight vestxpien (whose n a m s

were set out) present a t the l a s ~ m ~ t ~ o n e d m ~ t i n g , and -who had a h been, p r s

sent at the said f i r s ~ ~ e n t ~ o n e d m ~ t , i n g , and a& &.ha time thesaid rate wm

so unanimous~y agreed t5 and made as aforesaid: that at the said las~ment~oned

mwting, after the signing of the mid rate, and before the allowance by two justice

a f ~ ~ a r d s ~ e n t ~ o n e d , the saxae eight vestrymen signed the dacllration rquimd by

the 6 and 7 Wm. 4, c. 96, to wi t , at the foot of the said r a ~ - t h a t i s te say (a declara-

tion in writing p ~ ~ ~ ~ u ~ a r l ~ described in the a v o ~ ~ ) : that proper entries were made

in t8h0 proper book of the names of all the vestrymen attending the mid rneetinp, and

of all orders and ~roceedings at% such tin^: t,hat, after the m a ~ i n ~ of the rate,

and before the allowance by two ju&ices8 spwial meeting of the vestrymea was sum-

moned, and held on the 28th of August, in the year aforesaid, at which eighteen vestry-

men {whose names mre set forth) were present; of which meeting and of the pdrpose

thereof a printed notice, with the name of the vestry clerk s u ~ j o i n ~ d , wag left a t the

abode of each vestryman fourteen days previously: that such meeting was the next

s u ~ s e ~ u ~ n t meeting to the ~ r s ~ m e n t ~ o n e d meeting : that the said rab, so agreed upon

and mante at the said fir~-men~ioned meet in^, was then and there unan~mously con-

firmed, and entry of such con~rmation made in 8 proper book: that proper entries

of the names of all the vsstrymen attending tbe meeting, and of all proceedings a t the

meeting, had been made in a proper book. The t~vowry then stated the allowance and

c o n f i ~ a t i o n of the rata by two justices, and notice thereof on the church doors, and

notice to the p~aint,iff of the premises. It then alleged the rating of the ~ l a ~ n t ~ f f , in

%;he sum [a21 of CEll, demand of payment*, and refusal to pay; and, distress.

The plaintiff pleaded in ba-r de i ~ ~ ~ i a , upon which issue was joined.

Upon the trial of the cause before Mr. Justice W i ~ h t ~ a n , a verdict wa0 found by

consent for the plaintiff, eubject t o a special case to be stated for the opinion of the

Court of Queen’s Bench, with liberty f o r either party t o turn that case into a special

verdict. The Court of Quee~’s Bench, after taking time to consider, on the 3rd day of

February, 1847, gave judgment for the plaintiff (13 Q.B. Rep. 687).

!%e special case was then turned into a special verdict, by which the jury found

that the parish of Ssint Panwas, from the p a r 1819 to the year 1832, was governed

bp the Local Act 59 Gao. 3, e. xxxix. : that in khe year 1832 the pari& adopted the Act

of 1 and 2 Wm. 4, c. 60, which was the law in the parish for the election d vmtrgmen

165

If1 F€.L.C., 423 SCADDING 2). LORANT [1851]

from that time to the ~ m ~ e n c e m e ~ t of the mit : that the election took plwe annually,

one-third of the vwtrymen going out by rotation annually, and vacancies from death

or other causes being filled up a t the same t

ceeded ten t h ~ u s a ~ d : that on the 6th day of May, 1839, an election, in fact, of forty-six

persons, took place to supply the places of forty who were to go out by rotation, and

six occasion& vacancies : that the said forty-six persons were not duly elected, nor waFr

there any due election of v ~ t r ~ ~ ~ n in 1839, but the said forty-six persons c o n t i n u ~

to act as vestrymen during 1839, and were all qualified ik act as vestrymen i f they had

b n duly elected: that nineteen of them formed a portion of the forty who were to

go out by rotation in that year : that on the 12th of August, 1839, a meeting of the

persons acting as vestrymen of the parish was duly convened and held, in the

manner and for the purpose in the avowry mentioned ; and that copiee of notice of

the meeting and of the purpose t h e m f were affixed as mentioned in the avowry ; and

that all those persons who were previously members of th6 vestry and were not to go out,

by rotation, as well as the fortysix persons elected in fact a t the a b o v ~ m e n t i o n ~

election in 1839, were summoned : that, of &e forty who were to go out by rotation in

the year 1839, those who were not re-elected were noi summoned to that or any s u b

quent m ~ i n g : and that Richard Horspool was elected chairman. (The verdict then

set out the entry of the proceedings at the masting in the book keppt for that purpose

according to the 59 Geo. 3, e. xxxix. as follows) :-

'' Vestry Minute Book, No. 13.--l?arish of Saint Pancras, in the county of

Middlesex. A t a general meeting of the vestrymen of the said parish, held at the

Vestry Rooms, Gordon Street, on Monday, the 12t11 of August, 1839, pursuant

to adjournment.

(' Richard Horspool, Esquire, in the chair, and thirty other vestrymen

prasent, viz." (Names stated.)

The vestry proceeded

to the order of the day (pursuant to the minutes of the last vestry, and to letters of

suminons issued for the purpose by the vestry clerk) to make a general rate fer the

relief of the poor of this parish. The notice of the present meeting, and the purpose

thereof, as published on the churches and chapels of this parish on Sunday last,

pursuant to the dc t for r ~ u l a t i ~ g vestry notices, was presented and read. The

extract from the minutes of the directors of the poor presented with the estimate of

the expenditure a t the last vestry was referred to, and ordered to be entered on the

m i n u ~ s , as follows : "-(here followed the extract and estimate, and then the reports

from committees for assessments)-" R ~ ~ 4 2 ~ ~ " s o ~ v ~ d unanii~ ous~y, that a general

rate of one shilling in the pound be made and laid on the inhabitants and occupiers

of houses, lands, tenements, and hereditaments, tithes impropriate, and impropriation

of tithes in the parish of Saint Pancras, in the county of Middlesex, for and towards

the relief of t3he poor of the said parish, and other purposes eharpable thereon,

according to law, and the said rate is hereby made and laid nccordinglg, and i s to

be collected forthwith."-" Xesolved, that the vestrymen be summoned for Wednes-

day, the 4th of September next, to elect and appoint a director of the poor in the

place of Mr. W. Michaux.

Eight of the persons

present (who were named, and were eight of those mentioned in the avowry) were

among those reelected vho were to go out by rotation at $he election of 1839, and

nine (also named) were among t h w then elected for t,he first time,

and fourteen (also named, who, t>ogether with the eight above men-

tioned, were the twenty-two m e n t ~ o n ~ in the a7QWI-y) were persons

who had bmn elected a t the two preceding elections, and were then rwAected, A

special general meeting of the persons acting as vestrymen was held on the1 28th of

August, 1839, such meeting being the next subsequent meeting to that of the, 12th of

August. Richard Horspool was elected chairman, when the minutes of the last meet-

ing were read and confirmed, and the meeting was then occupied with considering

a r ~ o ~ ~ y ~ e ~ ~ d a t ~ o n and plan for making additions and improvements to the workhouse

of the parish. On the 4th of September, 1839, a general meeting of the persons

acting as vestrymen was held, pursuant to adjournment from the meeting of the

12th of August, a t which James Braidley was chairman, and a t whirh the minutes of

the last vestry were read and con~rmed, after which the vestry heard applica-

tions from poor parishioners for relief from p a y ~ e n t of the poor-rata This meet-

'' The minutes of the last vestry were read arid confirmed.

Adjourned to the 4th September next."

The special verdict went on to state the following facts.

166

SCADRLNG o. LORANT ClSSl] I11 H.L.G., 426

ing was adJourned to t,he 9th of September, when the ~ ~ ~ i 1 u ~ s of the la t i ~ ~ e e t i n ~

were read and confirmed, further app~icat~ons for relief were cons~dered, and the

meeting was adjourned to the 14th of Sep~inber.

After the resolution passed a t the meeting of the 12th of August, the vestry clerk

p r o c ~ e d with all reasonable d e ~ p a ~ h ttcp make up fouE boGks, which, when c o ~ l ~ p l e t ~ ,

coj~~aii~ed, in addit~ion to every other particu~ar which the f o ~ n of making out the

rate ir~entioned in the said resolution required to be set forth, the names of the several

occupiers of tlie rateable property, within the said parish; also the names of the

owxiers of such property, and the description of the p r o p e ~ y rated, and the1 name and

situation of such property ; and also the gross wtimated rental and rateable value

thereof, and tlie amount of an assessment, of one shilling in the pound upon such

rateable value, besides every other particular set forth a t tlie head of the respective

columns in the form given in the schedule annexed to the “ Parochial A s s e ~ i ~ ~ e ~ i t ~

Act,’’ so far as the same could be ascertain^, The special verdict then alleged that

the four books were not completed by the 9th ~eptember. In making them up, the

reso~utioiis and acts of the i n ~ t ~ n g s of the 4th and 9th Sept~~nber were acted upoli,

as to those owners of property in the parish with whom c o m ~ ~ i t i o ~ ~ s were entered

into a t those 3~~eet~ngs. KO one of the four books contained the particulars of all

the rateable property in the parish, but the four books taken together did contain

them. Each book coritained the f e l l o ~ i ~ g entry ata the c o m m e ~ ~ ~ e ~ e n t . thereof : -

‘‘ Saint Paner:rs, Middlesex-An Assessment for the relief of the poor of the parish

of Saint Pancras, in the county of Xiddlesex, and for other pur-[~Z6]-p~es charge

able thereon according to law, made this 12th day of August, 1839, after the rate of

one s ~ ~ i l l i ~ ~ g in the pound, by the vestrymen of the parish of Saint Pancras, in the

county of Middlweur, acting under and by virtue of the provisions of a statute made

in the 59th year of the reign of King George IIL, intituled ‘‘ An Act f o r establishii~~

a Select i.Teetry ill the Parish of Saint Pancras, in the county of ~iddlesex, and for

other purposes relating thereto f ‘ which mte and assessi~ent w a s made and assessed

at a meeting of the said v~ t rymen , when seven or more, and not less than nine, of

them were present, eh., being within the said parish, of which ~ e e t i n g notice was

given according to law, and which said rate of oiie shilling in the pound i s to be

collected fo~thwith.”

On the 14th S e p t ~ m ~ e r , 1839, a general meeting of the persons acting as vestry-

men was held, at which ~ ~ i l l i a ~ P ic~ i i an , one of the ch~rcl~wardens, was chairman,

of which tlie following was the entry : -

‘‘ The minutes of the last mmtiug were read and confirmed.-The vestry clerk

presented the books containing the rate made on the 22th ultimo. The vestry pro-

ceeded to the order of the day, pursuai~t o letters of s u m ~ o n s issued for the purpoee,

to settle and sign the new ratsbooks.--Resolved, that the said books be now signed.

The said rate-books were t~ereupon signed by ten vestr~men.-~esolved, that the

vestry clerk make application f w the allowance and confir~nation of the, said rate by

&WO Justices of the county of Middlesex, and t~ereupon cause due notice of such

allowance to be given pursuant to the Act for r ~ u l a t ~ n g vestry n o t ~ c ~ ~ - ~ d j o u r n e ~ . ”

The special verdict then stated that fifteen persons (named in the m i n u ~ s ~ were

present a t that meeting, that five of ihem were persons eIected in 1839, having been

then in rotation to go out; that four were persons then elected for the first

time, and six were persons who had beeii chosen in the two ~ r m ~ ~ n ~ years, A

~ e ~ l a i ~ a ~ o n was written in each of the four books, at the end of the p ~ r t ~ c u i a r s con

tained therein, of which the fo~lowing i s a copy :--‘‘ We [here follow the names of

ten persons] do dmlrare the several particulars specified in the respective columns of

the above rate to be true and correct, so far as we have been able to a~certain them ;

to which end we have used our best endeavours;” and immediate~y under the said

declaration the said ten persons signed their names, which was the only daclariltion

or signature in any of the four books, except that of the justices.

The special verdict the11 stated the c o n ~ r ~ a t i o n a d aflowance of two Justices

entered in each of the books, and due notice thereof; that, subject to the question

whether the :~fo~esaid s ~ ~ i n g was a s u ~ c i e r ~ t ~ignature of the r a t e ~ o o k s , ~ aiid

* Sec. 69 c d the 59 Geo. 3, e. xxxix., says : I‘ And a11 such rates or a s s e s s ~ e n ~ so

to be made, when signed by the said vestrymen, or any seven or more of them, aiid

167

_I_ I___ __ 11” I I_ ~ -I” ~ - _ _ I _ _

IIX E.L.C., 438 S ~ A ~ ~ ~ ~ ~ 2’. LORANT [I85 I]

whether the facts disclosed cons t i t u~ a s u ~ c ~ e n t making of the rate, the minute8

and entries cantain a carreet account of what tuok place at the several meetings ; that,

except so f a r as the facts stated constitute a rate, no rate was made; and that there

was no notice an or near to the doors of the churciim or chapels in the parish, that

the purpose of any of the meetingsy except that of the 12th of ~ u g u s t , was to make

a rate.

The verdict then stated, nearly in the terms of the avowry, that the defendant

Lorant was a collector of rates in the parish ; that the plaintiff was liable to be rated

in respect of the houses Nos. 2 and 4, Gordon Strttst, and that the sum of $11 was

demanded and refused, as in the avowry mentioned, m d the seizure and detention

cQ~plained of made for the purpose and in the m a n ~ e r in the avowry men-

tioned.

The question raised by the special verdict was, whether, upon the whole matter

aforesaid, the defendant, of his own wrong and without the muse by him in his said

avow^ aIlegd, took and d e t ~ i n ~ the goods and chattels of the p ~ a i r ~ t ~ f f , as in the

declaration coniplained of, or whether he did so with the cause by him in his avowry

~~~ leged .

The &U& of Exchequer Chamber, after a ~ u ~ e n t o he spacial ~erdict , an the

29th Nay, 1549, ~ e v ~ ~ e d the judgment of the Queen’s Bench (13 Q.S. ’706). The

present writ of error was then brought against the judgment of the Court of Exchequer

~ h a m ~ r .

Mr. Peacock and Mr. G. Denman :-The main question is, whether any valid rate

was made by the vestry. The Court of Queen’s Bench properly answered that question

in the negative. The resolution passed on the 12th of August was merely an order

that. the rate should be made. Thorn who contend

that what was then done amounted to making a rate, must show that i t was a t that

time a perfect ~ r o ~ e e ~ ~ ~ g . Even the Court of Exchequer

Chamber agreed that the resolution of the 12th of Augu& was not s complete rate.

No one was at that time assessed in such a manner that, if d i s sa t i s~~d , he might

appeal; yet without such an a s s e s ~ e n t there cannot be a rate? for nothing else can

enable a man to know whether he is assessed higher than his neighbou~. If there was

no rate made on the 12th of August, there certainly was none made on any other

day, for there wm not any proper adjourn men^ of the several m e ~ t i n ~ , nor m y

proper notice of the business ta be transacted at any of the adjourned meetings. ‘In

that rmpwt, what was done was void, as not being done in a c c o r ~ a ~ c e with the

provisions of the 4th section of the 59 Geo. 3, c. xxxix. The meeting of the 12th

of August was summoned for the purpose of making a rate. Could that meeting

adjourn withaut having effected that purpose? If it could, then could the a d j o u ~ n e ~

meeting be held without a notice on the church door being Freviausly given, stating

the purpose for which such adjourned meetirig was to be held? Bath these, bu.1;

especiall~ the latter of thesey questions must be answered in the negative, If so,

then all that was done OR the 14th of September is invalid. S ~ p p ~ ) s i n g that the

first meeting could lawfully be adjourned, then the vestrymen must be s u r ~ ~ o i ~ e d ,

with notice of the purpose of the second. Nothing of this sort, was done, and there-

fore the rate was not properly made. The meeting to make a rate i s a meeting for

a special purposq and, accord~ng to the decision in The Queen v. BeEtom (11 Q.B.

3’79), no special a u t ~ ~ r i t y to be exercised by. a meeting of persons under the pr+

visions of a special statute? and not 8% common law, can be wxeroised by them upon

ad jou~men t . If the adjourned meet~ng was th8t a t which the rate was to be made,

then up t o the last moment a rateable inhabitant might object to i t because its amount

was unnwessarily large, o r for any other reason ; but he would be prevented from doing

this i f such adjourned meeting was to be bound by the previous resolution, and the

books there produced were to be taken as conclusive on the questio~ of the amount,

of his ~ a t e ~ b ~ ~ ~ t ~ . There was no d j ~ c u l t ~ in making the rat& at one meeting; or

if there was, i t was the result of the negligence of the vwtry in not h a ~ i n g the proper

n ~ a t e r ~ a ~ s ready, and that negligence cannot confer new powers on tkose who were

guilty of it. Id i s dea r that the vestrymen cannot adjourn one nieeting, leaving a

special business unfinished ; resolve that a sum-~~3O]-mons shall be issued for ailother

allowed snd c o n f i ~ e d ~ etc. and notice of the allowanc~ given, ‘‘ shall and may be

coliected,” eb.

168

No such rate was made then.

That cannot be shown.

-- - -- 1--1 ~ - ~ I-- __I_--

SCADUING 2). LORANT 1118511 XIX H.L.C., 431

meeting, for another special business ; and then, at a third or fourth meeting, resume

the business which had been left u n ~ n i s ~ l ~ a t the first. Yet that was done in this

case; for on the 12th of September the vestry resolved that “ a rate be made ...... and

be GollecLed f o ~ h w i t h and then resolved &at the vestrymen be summoned for the

4th of Sep~mber , to elect a d i r ~ ~ r of the poor in the room of Mr. W. ~ ~ ~ c ~ ~ a u ~ , and

then adjourned to the 4th of September for the purpose of that election. It i s im-

possible ohat any one could consider this as an adjouri~ment for the purpose of making

a rate, and consequently, if another meeting was to be held for that purpose, it was

necessary that there should be a notice specially summoning the vestrymen to make

a rate. There had been no notice of that kind here, and consequently the meeting

was incapable of lawfu~ly making the rate.

The law intended that

the busineas proposed for a certain day should be terminated on that day ; a different

practice might inflict injustice on many persons. A rate might be proposed, and

ordered to be made, but the making of it might be delayed till a certain day of adjourn-

ment, and in ihe meantime many of the i n h a b ~ t a ~ ~ t s of he parish would have changed.

Then comes the question, whether the avowry, as now framed, is suBcient in

itself, and is sufficiently proved. The avovry states that the rate was made on the

12th of August, and the names of the ves t ry~~en niaking i t are given under a ~ ~ d e ~ i c e ~ .

It was, so far 8s that allegation goes, made a t a meeting, of mhich notice had beeu

given on the church doors. But the avowry goes on to say that, at I‘ a certain other

meeting,” held on the 4th of September, “ the rate so agreed upon, and made a t the

first-mentioned meeting,” was signed. Yet the argument on the other side is, thaL

the 12th of August and the 14th. of September are ide1~-[~3l]-tical, a l t h o ~ i ~ h t ese

and other statementa in the avowry expressly distinguish between the two days. The

doctrine of the Court of ~ ~ c h e ~ u e r Chamber, that all these meetings constituted but

one, cannot be supported, for no fiction of law can be introduced here f o r such a

purpose. The fiction here, too, is contrad~cted by the fact, that several of the inter-

vening days of adjournment were occupied with business that had no reference to

the rate.

[Lord ~ r o u g h a n ~ . - ~ e same debate is carried on, though the day for taking i t

haa been adjourned; and the resolution passed a t the last is in every respect tho

same as if it had k n passed on the first day.]

That may be so with reference to debates in the Rouses of Parliament, or with

reference to the: decisions of one of the superior Courts, pro~oul~ced in the same term :

but in both these cases that i s an established fiction of law. It is not 60 with reference

to veshry meetings. There is no authority for saying that an adjourned meeting is

part of an original meeting.

[Lord Brougham.-Is it not so almost e3: .vi terminif The Lord Chancellor.--

Does not t,he S B ~ B author it^ continue from deby to day if the business is declared

not to be concluded, as from hour te hour in the same day$ Suppose we mere to

adjourn now €w a quarter of an hour, would it not be the same meeting when the

House resumed its sittings?]

But in the avewry, the days are stated to be two distinct; d q s , for the rate i s

said to be mlade a% the first ~ e e t i n g , and signed a t a *( certain other meeting.” The

adjourament was not made for the particular purpose then in hand, nor was there

iiny notice a t i,he same time given that the others were ~ e e t i n ~ by a d ~ o u r x i i ~ ~ e ~ ~ ~

from the 12th of August. In Dickinson’s Sessions Law it i s shown that an indictment

ought to be alleged not to have been preferred at a sessions held by ad~o~rnmen t ,

but a t a sessions held on a particular E4321 day, and continued by adjournment to

mother day; and the authority for this is the case of The Parishes of Lingfield and

Battle (2 Salk. 605). In like manner, in The King v. ~ e ~ ~ ~ n ~ ~ l ~ (Bur. Set. Cas. 88),

it appeared t h r i t in the caption of an order, the sessions were said to be holden 0x1

such a day by a d j o u ~ m e n t ;but as it did not appear when the general sessions were

holden, the order was quashed. The same rule was adopted in The King 17. ~ ~ a ? ~ ~ ~ ~ ~

(Bur. Set;. Cas. 102). There are many Acts of Parljament in which ehurchurarden~

and vestries are a u t ~ o r i ~ e d to hold meetings; but there is none which declares that

the power of an adjourned meeting shall dways relate back to another, so as to make

what is done a t the adjourned as valid as i f done a t the original meeting.

The € o m of proceeding adopted in this case was ineffectual: it cannot be COB-

Thew ~ d j o u ~ m e n t ~ were, besides, illegal in ~ e m s e l v ~ .

H.L. x. X 69 6a

I11 H.hC., 483 SCADDINC: 'U. LORBKT [I8511

tended that the signing which occurred on the 14th of September was a signing of

the rata The four books prepared between the 12th of August and the 14th of

September contained a declaration which was signed, but that was not a signing of

the rate, urlless the declaration is taken to be the rate. But i f i t is, then arises the

other difficulty, that the rate was made on the 14th of September, and not on the 12th

of August, and, if so, there is no resolution of the 14th September warranting the

rate. In truth, the signatures merely attested that the statements made in the

different columns of the four books were correct, not that the persons signing theill

declared a rate of a shilling in the pound to be necessary or proper. The Local Act

requires the rate itself to be signed, and this signature of the books is not a coaii-

pliance with the Act, Here, too, there was a contradiction on the face of the document

itself, for the heading of the book is, " Assessment for the Relief of the Poor made on

the 12th of August, 1849," whereas the signature which is supposed [433] to be the

making of this assessment is dated 14th September, 1849. The persons signing did

not declare that they were then signing what was done on the 12th of August, and in

truth they could not so declare, for it is not pretended that they were present on that

day. Assuming that the rate had been made on the 12th of August, they signed a

declaration that the books then made up, namely, on the 14th of September, were

correct. Now the case of The Queen v. Fordltam (11 Ad. and El. 73) shows that if

the rate is not properly signed, it is of no force or validity.

In another respect this rate waa not properly signed. Of those who were present

on the 14th of September, only six who were properly and lawfully vestrymen signed

the rate. No rate can be valid under the Local Act, if signad by IWB than seven

vestrymen ; and the signature of one man, who merely act& as a vestryman but is not

lawfully in office, is not sufficient t o make up the required number, so as to afford a

compliance with the Act. No

doubt corporations de facto may do an act which is to keep up the corporation.

That is a matter of necessity; but here no such necessity existed, for there were eighty

vestrymen against whose title no objection existed. The necessity to do an act is

often, in cases of corporations, the test of the title to do the act. Kyd on Corporations

(p. 453). This case differs from that of Penney v. Slade (7 Scott, 285 ; 5 Bing. N.C.),

where the appointment of overseers was held not to be a, judicial but a ministerial

act, and where therefore an irregularity in their appoint.ment left unquestioned before

the tribunal which had authority to adjudicate on it, was held not to affect the vaIidity

of a rate made by these irregularly appointed overseers. And it also differs from

that of [434] I 'umer v. Baynes (2 H. B1. 559), where it was heId that churchwardens

de facto, whose election was doubtful, might maintain an action against a former

churchwarden for money had and received by him to the use of the parish, became

there the necessity of the case allowed such a proceeding, while here no such necessity

exista.

Mr. Prendergast and Mr. Needham (Mr. Bagley was with them), for the defendant

in error.-The objection to the rata on account of a supposed defect in the title of the

vestrymen cannot be sustained. Persons in possession of an office are competent to

perform the duties of that office, so far as third parties are concerned. Here the

vestrymen who made the rate were de facto in office, and the Court will not, in AIL

action for levying the rate, inquire into the lawf ulness of their election.

[The Lord Chancellor.-You need not trouble yourself with the question whether

the vestrymen de facto had power tQ make this rata. The; main pointe are these.

First, when was the rate made in point of law and of fact? Secondly, whatever period

you fix as that a t which the rate was made, was there sufficient notice given of the time

and purpose of the meeting? Thirdly, does the avowry sufficiently allege a lawful

making of the rate, and is the avowry proved '?I

Argument continued.-There is no dispute that proper notice was given that there

was to be a meeting on the 12th of August, for the purpose of making a rate. That

meeting took place, and the object was effected as f a r as it was possible to effect it.

A resolution was passed that a rate of a certain amount was then and them made.

That meeting was adjourned to the 4th of September. The computation [43] accord-

ing to which the rate was to be levied was strictly part of the businese of the day on the

4th of September and again oq the 14th of September. On the latter day the com-

putation was compIeted, and the books being then perfectIy prepared, the v m t v e n

170

Vestrymen de f a c a have no authority to make a rate.

SCADDING 'U. LORANT e18 5 1 J XI1 H.L.C., a36

terminated the business which had been begun on the 12th of August, and signed the

dedaration which the law requires.

[The Lord Chancellor.-Was the rate in coiitemplat~on of law made on the 12th of

August or the 14th of September?]

It cannot be asid to have been finally made till it had been allowed by the justices.

Yet in many respecta it was made when the resolution was passed, for itt then hcante

binding on the par is hi one^, and the meeting of the 12th of August was in fact

regularly carried on by adjournment from the 12th of August to the 14th of Septenx-

ber. From the moment the resolution was passed, all the inhabitants of the parish

were aware of the rate, and its amount, and considered it as imposed; but the neces-

sities of business, for which the law must, and do%, make ~ ~ o w a n c e , co i~~e l l ed the

vestrymen to perform some part of the form of completing the rate on 8 s u ~ s ~ u e ~ i t ~

day. There can be no doubt that. the v&ry could have adjourned from one hour to

another on the same day ; and an ad jou rn~en t from one day to another i s equally

justified. The rule which applies to: the session of Parliment, Lcttless v, ~ # ~ ~ ~ e ~

(4 Term. Rep. 660), and The fiirrg v, Thzrrston (1 Lev. 91), or to Quarter Sessions,

The X

c. 'i'), applies in the same manner to the b u s ~ n ~ of a vwtry. ~ ~ # ~ g h t o n v. ~ e y ~ ~ ~ s

(2 Str. 1045) and The Queem v. O'O$y (12 Ad. and El, 139). [436] The incon-

venience d refusing to adopt that, as the rule of law would be very serious.

[Mr. Peacock,---There is no objection to the power of the vestry h adjourn, but

i t i s contended that notice of the purpose of the adjourned meeting must be given.

There is no rule that a fresh notice of the purpose of a meeting must be given

when i t is an adjourned meeting, and when due notice of the purpose has been given

on conve,ning the original meeting. In The S k g v. fIar&s (1 Barn. and Ad. 936),

at a meeting of the corporation of amb bridge, held on the 31st of May, 1530, by

adjournment from the 2'7th of April, one of the Grand Common Days of this corposa-

tion, it was resolved to remove the town clerk from his office, and We Court of King's

Bench held that no previous notice to the memhra of the c o ~ o r a t ~ o n f the purposes

of the adjourned meeting was necesmry, inasmuch zhs it was held by adjonsnmmt

from one of the days on which by charter the corporation is appointed to meet, and

when every meniber of the corporat~on is s u p p ~ e d to be present. That case is much

stronger than &e present, for there no notice of the purpose of the meeting to be

held on the Charter day had been given j bu t here $he notice of the purpose of the

riieeting of the 12th August was expressly given. The principle a ~ p ~ i c a ~ l ~ to al

such cases is cIearIy stated by Mr. Justice Goleridge in the case of The Qzceea v. Gr"im-

shaiu (10 Q.B. 755), "that a quarterly meeting may indeed be adjourned to complete

unfinished business, and in such cases no summons may be necessary; but that no

fresh business which may casually arise can be t~ansacted a t this adjourned meeting,

unless notice and summo~s have been issued." In Butt v. Fellowes (3 Curt. 680, 687),

the notice of the purpose of. the original meeting was given by a churchwarden, who,

not 14371 being duly elected, had no right as such t o give the notice; but LLR the notice

could be given by a private parishioner, and he being such, the Court held it to be

sufficient, and. having been given, the rihte which was made at an adjourned mwting

was heId good. The decision there is very strongly in favour of the defendant in

error, bccause the ~ e g ~ ~ l a T i t ~ of the p r o c ~ d ~ n ~ ~ was a question expressly raised 011 the

face of the record.

It i s a mistake to suppose that the vmtry WM adjourned from the 12th of August

t o the 4th of September, for the purpose of electing a director in the place of Mr, 'iv.

Michaux. The adjournment was a geatvral adjournment to the 4th of September, and

then a special order was made that notice should be given of the dection of a director

on that day. That was not the business f o r which the meeting was adjourned; but it

having been determined to adjourn, notice of this special business was given, thRt i t

might be lawfully introduced at such adjourned meeting, which thereby became for

that parbicular purpose a special meeting. This WM in accordance with the prin-

ciple stated by Mr, Justice Cderidge in The & % e m v. ~ r ~ ~ ~ h u w (10 Q.B. 5'5). The

effect of an ad jou rn~en t is to continue all things in the same stats in which they were

when the a d j o u ~ ~ e n ~ took place.

The form of the rate here was perfectIy good, and according to The &use% v.

~ o r ~ ~ a ~ (11 Ad. and El. 73), a rate, ~ h o ~ g h not exa&ly f o ~ ~ o w ~ n g We form pre-

171

XI1 H.L.C., 438 SCADDING ‘U. LORGNT [185 11

scribed by that Act, is good, for the words “ of no force and validity ” in the 2nd

section of the 6 and 1 Wm. 4, c. 96, only apply to the case of the declaration a t the

foot of the columns not being signed by the parish officera Here they were duly

signed, and therefore the objection does not arise. Nor is them any good objection

to the rate, on the ground that if adjourn-~4~]-ments are allowed after the voting of

a particulsr rate and the formal completion of it, the persons who are to pay i t will

not be the same; for the liability is established by the resolution to impose the rate.

That was held with relation to the calls made by a railway company in Ex parte

Tooke (18 Law Journ. Q.B. 343), and the principles there stated are equally applicable

to cases of rates.

The avowry i s good, and is supported by the facts found by the specisl verdict, for

it shows that a rate was made after the passing of the Act, while the plaintiff was liable

to be rated, and before seizure of his goods. As to the form of the avowry, it is

justified by the case of the A ~ t ~ ~ n ~ ~ - G e r z e r a l v, CEerc (12 Mee. and W. 640). There

an i n f o ~ a t i o n was filed a t the suit- of the Crown, and it was alleged that, after the

passing of a Customs’ Act,, and before an informat>ion filed, to wit, on the 30th of

August, 1842, the offic0rs seized as forfeited certain French wines, for that before the

filing of the information, and before the said 30th of August, to wit, on the 20th of

August, one T. S. entered the wines for exportation to obtain a drawback, and before

the said 30th of August, 1842, the officers examined the wines, and found that they

were of less value than the drawback. It was proved that the examination and seizure

took place on the same day, and on a motion to arrwt the! judgment on the ground

of the variance, the Court held that the words ‘‘ before the 30th of Auguet ” might be

omithd as surplusage. In the same manner the words in this avowry, which appear

to render i t doubtful when the rate was made, if any such there are, may be rejwted,

and the avowry must be taken to allege in substGsnce that a rate wa8 lawfully made

before the seizure of the plaintiff’s goods.

The avowry is supported by the facta. It is said on &a E4393 other side, that to

treat the several ~ e e ~ n ~ as one is to rely on a fiction of law. But it is no fiction of

law that a meeting regularly called for a specified purpose was as a matter of neceesity

extended over severs1 days. There is no doubt #at the first meeting was properly

summoned, and being so, it might lawfully be adjourned, and what was done a t it

might be- described as done at the first meeting, of which, in law, it formed part,

The avowry, therefore, iFv sufficient, and is proved.

Xr. Peacock, in reply.--When the first meeting was adjourned, there was no~hing

to show in respset of what+ property t,he rate was made. The rate, therefore, then

resolved on was invalid. The King v. The Aire and Calder Navigatiorz (2 Barn, and

Cr. 713).

The case of E% parte Tooke (18 Law Journ. Q.B. 343) is not applicable, for the

directors of a company make a complete call when they resolve &at a call of so muck

’per share shall be made; but in making a rate of so much in the pound on the rateable

value of property in a parish, the vrntry has to discover and declare what i s the r a t e

ab15 value of the property possessed by each ~ndividual, before the rate on him is

complete.

The Lord Chancellor.-~~y ~ords,-This case arisw in an action of replevin, in

which the plaintiff complains that his goods were seized by the defendant.

The defendant justifies the act by an avowry which alleges that the goads were

seized for a. poor-rate, which rate was made under the authority of a statute, and a

distress warrant was issued in order to levy that rate.

Several objections have been taken on the part of the plaintiff against the judg-

ment given by the Judges in the [440] Court below in favour of the defeudant. Those

objections have ultimately resolved themselves into three. It i s first objected that the

rate which is set forth in the avowry was not made by competent author~ty.

It appears that by the statute of We 59 Geo. 3, c. rxxix., authority is given to the

vwtry of the parish of Saint Paneras. to meet, and by a majority of the persons

present, consist~ng of not less than seven, to make a, poor-rate; and it i s stated that

the poor-rate in question was not made under the authority given by the statute, by

reason that some of the persons who joined in making the rate bad not been legally

elected to the oEce of vestrymen. 1% is undoub t~ , however, that they acted in point

178

SCADUING zf. LORANT [ 185 I] I11 H.L.C., 441

of fa& as vestrymen, and that when they were assembled in the vestry, they were

acting in that character; and it i s for so doing that the rate itself is now sought to

be impeached.

It is therefore objected that, by reason of those persons thus Wing as v e s ~ e n

not having been duly elected, their acta were void, and that the poor-rate made by

and with their concurrence ought not to be considered legal.

It is further objected that, in the avowry in this case, the parby has alleged that,

after the passing of a certain Act of Parliament (to which I have already alluded),

and before the taking of the goods, and whilst the property of the plaintiff in reapect

thereof was liable to be rated, t o wit, on the 12th of August, a certain rate, that is the

rate in question, was made. And then it proceeds to state that the rate which was so

made contained all the particulars required by the statute 6 and 7 Wm. 4, c. 96. And

upon the facts which are set forth in the special verdict, it is objected, on the part of

the plaintiff, that the allegation to which f have just referred is not proved. And the

objection arises out of the following facts.

It appeared that on the 12th of August a meeting of the E4411 vestry of the parish

had taken place, and that a t that vestry meeting it was resolved that a rate of one

shilling in the pound should be made, and it was thereby made; but that, in conse-

quence of the parish of Saint Pancrae consisting of many thousand inhabit an^, the

rate-books could not be made up a t once, that is to say, the rate of one shilling in the

pound could not be a t that meeting apportioned and applied to the several inhabitants

of the parish liable to be rated, partly on acount of their numbere, and partly be-

cauge of the necessity of ascertaining the amount of property liable t o be rated, and

also of ascertaining what number o r proportion of the inhabitants liable to be rated

would be incompetent to pay the rate ; all which things it was necessary to ascertain,

in order to fix the amount to be assessed upon the inhabitant ratepayers ; so that tile

sum required for the purpoae of the relief of the poor might be raised.

Under these c i ~ u m s t a n c ~ it was impwsible co~pletaly to discharge the duty of

the meeting, and the meeting adjourned to a certain day. On that day it again

assembled, and s u b s ~ u e n t a d ~ o u ~ ~ e n ~ , tJirea o r four in number, took place up to

the 14th of ~ e p t e m ~ r . It appears by the verdict, that on the 14th of September the

vestrymen whoae ministerial duty it was to prepare the rate-books for the vestry had

the books fully prepared. They were then presented ta and adopted by the vestry,

and signed.

Under that state of facts put forward as constituting his 1iabiIity to be rated, the

defendant says the rata cannot bcl sustained, and consequently the question that arises

upon that is, whether, those facts being proved, his property is to be considered as

having been duly rated.

It is further objected that, by the 69th section of the Act which gives the authority

to make the r a k to the vmtry, or to a majority of not less than seven, it must be

done E4421 a t a meeting of which notice must have been given on the previous Sunday,

and that the notice must state the purpose of the meeting. It is clear that, with

regard to the meeting on the 12th of August, notice bad been given in conf~rmity with

the statute. By the feud section of the Acta in queetion, it is prwided that of any

adjourned meeting which may be necessary for the vestry, notice must be given three

days before the time appointed for holding such meeting, and also notice to each of

the vwtrymen ; but the Act does not give any direction whatever that the notice shall

contain more than an intimation of the fact of the adjourned mwting being about

to be held. It does not require that the purpoae of that meeting shall bei stated in the

notice. The 69th section having, in express terms, provided that notice shall be

given of the purpose for which the meeting is t o be held, the fourth section only pro-

vidw that notices of the meeting shall be given, and it, contain8 no requisition in

regard to a statement of the purpose for which i t i R to be held.

But it is objected on the part of the plaintiff in error, that inasmuch as the entire

business of making the rate was not completed on the 12th of August, each subsequent

meeting, at, which anything was to be done in relation to making the rate, ought, to be

deemed a di&inct m d subst~ntive meeting, unconnec~d for this purpose with the

previous meeting, and requiring as much notice of the purpose of the adjourned rneet-

ing as the originaK meeting required.

That is answered on the other side by saying, that. the statute is the guide which is

to regulate and govern these matters, and that you are bound ta Five nseh notioe a&

I73

111 X.L.C., 445

the &&tub requires, and no other. And that has h n done in this case, by giving

tbe notice, stating the purpose of the meeting, on the Sunday preceding the 12th of

August, and giving notice of the fact of the adjourned meetings in respect of

each of the othem.

These are the objections and answers for your hrdships’ consideration : First,

that the vestrynzen who made the rate had not bean duly constituted for this purpose,

ECme of the vestrymen not being duly elected, though acting dc (acto as vestry^^.

Secondly, that with respect to the meetings a t which the rate was partially made,

namely, thoge a t which the books from time ta time were gone into, before being

ultimately approved on the 14th of September (there being several of such meetings),

and the notices of them not containing th0 purport of the business for which they

were to be held, all that was done a t those meetings is rendered perfectly invalid for

the purpose of making the r a w .

The further q u ~ t i o n raised by the pla~ntiff in error is, whether or not the mode in

which the rate is alleged tcr have been made upon the avowry is supported by the facts

which are stated in the special verdict to have been the facta that took place.

Your Lordships have heard argumeuts in relation to these points, and I Lhere€ore

bag to state that# the first question for you to determine is, if author~ty be given by U

statute for a majority of the vestrymen, or for seven or more, to make a rate, would

the rate, unobject~onable in other respects, be valid if made Eg seven vestrymen d p

facto, one of such v e s t r ~ e n ot being a v ~ t r y n ~ a n de jwe.

The second question I should propose to your Lordships is this : by the statute of

the 59 Geo. 3, c. xxxix., authority is given to the vestry to. make a rate, notice of the

meeting and the purpose thereof being first given on the Sunday immediately pre-

ceding such meeting; and by the same statuta i t ie enacted that, of each adjourned

1 n ~ t - [ ~ 4 4 ~ - i n g to be held, 8 notice in writing shall be given to each vestryn~an three

days previous to such intended meeting. A t a general meeting of the vestrymen o f

the parish, held OII the 12th of August, it was remlved that the rate be made; butL &e

a s s ~ ~ ~ n t was not then made, and the ~ r ~ t ~ e n adjourned generally to several

succwsive days, the last being the 14th of September, when the assmsment was coni-

pleted and made. Xotice was duly given of the meeting held on the 12th of August,

and of the purpose of that meeting. Noticeas were dso given of the adjourned meet-

ings to each of the inhabitants.

The question I should propose would be this: If the last-mentioned notices did not

state any purpose in connection with the a d j o u r i i ~ meetings, supposing the rate

be~or~meiitioned to be otherwise valid, was the assessment invalid by reason of the

notice of such adjourned meetings not stating- the purpose of suck respective adjourned

meetings

The third question I should propose is this: In an action of replevin, the avowry

alleging that a poor-rate had been made, after the passing of a certain specified Act,

und before the taking of the plaintiff’s goods, and whilst the property of the plaintiff

in respect thereof was liable to be rated,--ta wit , O K ~ the 12th of A u ~ ~ , - w o u ~ d the

allegation be well proved by proof of the fo~lowing facts: that a vestry was held on

the 12th of August, a t which it was rasolved unanimoudy that a genwal rate of one

shilling in the pound slmuld be made and laid on the inhabitanta and occupiers of

housw, lands, tenements, %nd h e r ~ i t a n i e n t ~ in the parish, for and towards the relief

of the poor of the said parish, and other purposes chargeabIe thereon, according to

law: and ‘‘ the said rate is hereby made and laid accordingly, and i s to be colleckd

f o ~ h w i t h that the assessment could not then be c o m p l e ~ , in c o n s ~ u ~ n c e of tbe

number of the inhabitants of the parish liable to be [44ij] rated and the necessity of

ascertaining the assessment necessary to be made, in order actually to ascertain the

amount required for the poor; that the vestry adjourned generally to several ~ucces-

sive days up to the 14th of September, and upon that day the assessment was

c o m p l e ~ ; that upon each of the ~ d j o u ~ m e n t ~ d a y s the vestrymen proceeded upon

business connected with the assessment, namely to hew applications from psrsom

to be relieved from payment of the poor-rate, and from persons making ~ m p o s ~ t i v n

with re8pect8 to the same; but although the vestry clerk proceeded with all r e ~ o n a b l ~

despatch to make up the books necessary to complete the rate, wch books were not,

completed until the 14th of S e p t e m ~ r , when the vsatry clerk p r m n h d the book5

contain in^ the rate mention^ in the r e ~ l ~ t i o n adopted on the 12th of Auguat, and

the amemmenta upon the i n h a b ~ t ~ ~ t ~ , calcu~ated according to the resolution a t the

171

SCADDINCr 21. LORANT [I8511

S C A ~ ~ l ~ ~ 21. LORANT [I851 J rn H.L.C., 446

sum of one shilling in the pound ; that the v ~ ~ y m e n ~iereupon p r o c e ~ e d tcp settle

tirid sign the r a~books , and it was molved that the vesty clerk should then make

application for the allowance and ~ o n f i ~ a t ~ o n of t-he rate before two justices, and

should cause due notsice to be given t.hermf,

My Lords, it appears tcp me that these three questions embrace all the point@ which

have been made at the bar in order to impeach the judgment of the Court below ; and

in conclusion, as your Lordsbips have the assiatance of the learned Judges in forming

an opinion upon those points, I beg leave to move that the questions which I have now

read be sub~~iitted to their considerat~on.

Lord Brougham-I entirely agree with what, my noble and learned friend on the

woolsack has stated.

l k e Judges retired to consult, and after some time returned.

[46] Lord Chief Baron.---iWiy Lords,--In ~ ~ s w e ~ to th first quest.ioIi p~~oposed by

your Lordships, I have to report the unanimous @pinion of the Judges in the affirma-

tive. We think that the v e s t r ~ e n de ~~c~~ were as competent to join in making a

rate as the v ~ t r ~ ~ e n de jure.

In answer to the second question proposed by your ~ ~ . d s h i p s , I have to report that

w e arc) uRaI~in~ously of opinion that &e rato was not rendered invalid by reason of

the alleged defect in the notices of the adjourned meeting. We think it was s u ~ c i e n t

to give notice on the church door of the purpme for which the first meeting was to

assemble) and that that notice extended t~ all the a d j o u ~ e d meetings, such adjouI-n~d

m ~ t i n ~ s being for the purpose of completing the unfinished business of the previous

~ e ~ t i n g s , ar.d all being in continuat~on of the first meeting.

In answer to the third question, I have to report to your Lordships the unanimous

opinion of the %Judges, that the substance of the allegation is, that the rate was made

after the passing of the Act, and before kbe taking of the gods, and whilst the pro-

pe&y of the p l ~ ~ n t ~ ~ in error was liable to be rated for the rate ; and we are unani.

niously of opinion that the facts sta.ted in the spwial verdict will support the

allegation.

The Lord ( ~ h ~ ~ n c e ~ ~ o r . - ~ o u r Lordships have hemd the opinion which the learned

JudgB have just delivered as the opinion e n ~ ~ a i n ~ by them, and in that opinion f

esitirely concur.

But it i s ~ t ~ s € ~ c ~ r y

to know that, if the. rate had bean j rnpe~hable upon any ground of what niay be called

merits, as contradist~nguished from t ~ h n i c a l ~ t y , the party might have obtained

redress ; but, a t t~he same time, your [&73 Lordships will not feel at all inclined to

overlook the statute, but you will rather feel inclined to secure t - h observance of the

statute, which is so framed for the purpose of giving the vestrymen the power of

making Upon the present occasion, t,herefore, whether the objections are

t ~ ~ i c a l or substant~al, your Lordsh~ps will look to the St*atute, and give your judg-

ment accordi~g to the c@nstruction of the statute; and it i s sa t~ i s f ac~ry tt>. know that,

if there were any objections ~ u b s ~ ~ ~ t i ~ ~ y ~mpeach~ng the rate, the plaintiff in error

has had an o ~ p o r t u i ~ i t ~ of t k i n g them, and that it was also open to him to take any

t ~ ~ i c a ~ objection he might be advised.

But, my Lords, as it now appears, by the opinions of the Learned Judgm, given

unanimo~sly, that the adjourned mee~ings were to be ~ n s i ~ e ~ d as a c o ~ t i n u a ~ ~ o n

of the first meeting, and that the first meeting vas duly convened ; that answem the

objection, which q p e a r s to have mare af substance in it than any other.

With r e p r d to t,he c o m ~ t ~ n c e of the ~ e s t r y m ~ ~ i , who were v ~ t r y n ~ e n de ~~~~~,

but not vestrymen de jure, to make the rate, your Lordships will see tit once the

i ~ p o r t a ~ ~ c e of that object,ion, when you consider how many public officetrs and persons

there are who art? charged with very important duties, m d whose title to tlie oEce on

the part of tbe public cannot be ascertained at tho time. You will a t once see to what

it would lead if the validity of their acts, when in mch office, depended upon the

propriety of their election. It might tend, if doubts were cast upon khan, to cons+

quences of the most destructive kind. It would create uncertainty with respect, tQ

the obedience ta publio officers, aad it might afso lead to pei-sons, instead of resorting

to the ordinary legal. remedies to set right anything done by the officers, taking the

law into their o m hands.

1: think, therefore, that the p r i n c ~ p ~ e laid down by t.he E4483 learned Judges, a8

175

*

The objections are all in the nature of technical objectio-lis.

rate.

In H.LC., 449 DE BODE 2’. BEG. [I8511

the principle of law, is one that is in conforn~ity with public convenience, with refer-

ence to the disoharge of the duties c o n n ~ t e d with the office.

I feel, therefore, perfectly mtisfied myself with regard ta the opinion which the

Iearned Judges have delivered; and, entirely concurr~ng in that opin~on, I submit

that the j u d g ~ e n t of the Court below ought tcl be confirmed.

Lord ~rougham.-I quite agree with what my noble and learned friend has just

now said,

The last point, is, no doltbt, as he said, of great importance. We had it a few

years ago in a case that came before us in exactly the same form in which i t is now

stated.

Judgment for defendant, in error, with cwts.

The following Order was a f t e ~ ~ r d s enntered on the Journals:-“ That the said

jud~rnent, given in the Court of E s c h ~ u e r C h ~ b e r , r e ~ ~ ~ i n g a j u d ~ e n t given in

the Court Gf Queen’s Rench for the said plaint^^ in error, hs, aad the same is hereby

affirmed, and that the record be remitted, to the etnd that such p r ~ ~ i n g may be

had ereu upon as if no such w r i t of error had been brought into this House.”-Lurds*

~ u ~ r B a ~ s , 1851, p. 359.

[449] TEE BARON DE ~ O D E , - ~ ’ ~ a ~ ~ t i ~ if& EWOT; THE Q ~ ~ E ~ , - - ~ e f e ~ ~ a ~ ~

in Error [July 10,11, 185ll.

[h-lews’ Dig. P. 61, 65; vi. 632, 1028; viii. 182, 319; xiii. 2897; siv. 1798. S.C.,

in Q.B., 8 Q.R. 208; 10 Jur. 773; in Ex. Ch,, 13 Q.B. 380; 14 Jur. 970, Com-

mented on in Thomas v. Reg., 1874, L.R. 10 Q.B. 43; and Rustomjee v. Beg.,

1876, 1 Q.B.D. 496; 2 Q.B.D. 71; and cf. Peather P. Beg,, 1865, 6 B. and S.

257 j T o b k P. Beg., 1864, 33 L.J. C.P. 199 ; ~ ~ ~ ~ ~ s o r a d A n a ~ v l ~ s By. Co. v,

Reg., 1886,ll A.C. 607 ; ~~~~~T v. Baird (1892~, A.C. 491 j Poll v. Lord A ~ ~ o ~ u t e ,

1899, 1 F, 823.1

Pe fitiim o f ~ ~ g h ~ S t a ~ ~ te.

A., tt. British subject, claimed to be entitJed to ~mpensa t ion for certain losses

suffered by him t h ~ u g h c o n ~ ~ a t ~ o n of his property in the first French

~ ~ v o l u t ~ o n . The Gover~ments of England and France entered into conven-

tio-ns r ~ ~ e c t i n g compens~t~on to be afforded to British subjeeb. The E n g l i s ~ ~

~ ~ v e r n m e n t received all the money agreed upon between the two government^

as the amount of comp%nsation, and u n d e r ~ k to &kfy all uls claimants.

An Act of Parliament was passed dwlaring how claims were to be preferred

and liquidated. A, presented his claim to commissioners appoint& under

the Act, and adopted the modes of proceeding provided by it; h i s claim was

rejected. After payment. of the claims which were ~ t a b ~ ~ ~ e d h ule satis-

faction of the c o ~ ~ ~ i ~ n e r s , a surplus remained, which, in accordance with

one of the provisions of the Act, wag paid over to tha Lords of t;he Treasury.

A. proceeded to make his claim afresh under a petition of right :

Reld, that he had no remedy except under the p r o ~ i s i ~ n s of the statute.

In the year 1839, the Baron ~ lemen t Josepph Philip Pen de Bode, the father of the

~ l ~ ~ n t ~ f f in this writ of error, prwented to the &ueen a, petition of right, c l ~ m i n g an

ind%mnit~ for losses, suffered by him at, &he time of the first French ~ ~ o l ~ t i o n . The

ph it ion set foi-th a narrative of the foIlowing fa&.

Before the treaty of Munster and peace of ~ ~ ~ ~ a l i ~ , caneluded b6tween France

and the ~ e r ~ a n empire in 1648, &e pmvince of Lower Alsace belonged to Germany,

but was by that treaty ceded to France, the legal proprietary rights of the German

immediate nobility being exprwsly prtwerved. The Barony of kenste stein' of

which the lordship of Sulz formed part, was an ancient fief, descendable in &e dire&

male line, and was held, ~ ~ e d ~ ~ ~ y , under [4&0lj the empire, the Arch~is~opa o.f

Cologne being ifx protectors, and having &e righb to appoint a new feudatory on the

failure of issue male of any p r ~ e d ~ n g line, such f e u d % t o ~ being a member af the

immediate nobility of the empire. Baron Charles Frederick de Bode was one of the

~ ~ ~ i a t e nobility of the empire, and in 1176 he m a r r i ~ Mary, d~ughter of Thomas

Kynnersley, Esq., of Loxley Park, in the county of Stafford, where Clement Jmeph was

brn,1777. Qn t ~ % f ~ i l u r e ~ f the ~ e ~ a n line of oha an Soubise, in 1786, t h e t ~ e a Baron

Charles Frederick de Bode obtained from the A r c h b i ~ ~ p of Cologne Ule ~ p p o ~ n ~ e n ~

176