Volume XIII. 1850. v. READ. Cowling, contrà. Rex v. Dursley (a) is an authority not disputed, as to the principle there laid down that The QUEEN parishioners are not to be rated for the declared purpose of reimbursing officers for past expenditure. So far it agrees with Rex v. Chapelwardens of Haworth (b), and is supported by Piggott v. Bearblock (c). But it differs from this case, because, there, the overseers of the year had no funds in hand, and application was made for a mandamus to enforce the laying of a rate for the express purpose of reimbursement. Here the overseers who made the payment had received a surplus from the preceding year's rate. The disallowance is at all events wrong as to 10l. 19s. 8d., which was incurred in the first quarter of the year 1846, and was, therefore, regularly paid by the overseers who came into office in March of that year; the half-yearly rates being made in January and in July or August. The strictness insisted upon by the auditor would create much difficulty and inconvenience by obliging overseers to call in the attorneys' bills while business was going on. Or, if this were not requisite when the business was continuous, yet, if, by any circumstance, the continuity were broken, however late in the year, the bill must be called in and provided for; and, if the overseers neglected to do this, the attorney must lose his costs. decessors in office. So, again, where a legal charge has accrued so late as to render it impossible to make and collect a rate out of which the former overseers might have been reimbursed, in which case it is lawful for the succeeding overseers to pay the charge." [Erle J. asked if the Court could take judicial notice of this document. The Attorney General admitted that it ought to have been verified, and was not.] (a) 5 A. & E. 10. (c) 4 Moore's P. C. C. 399. (b) 12 East, 556. 1849. (The rest of the argument on this side, being fully Queen's Bench. stated in the judgment of the Court, is not here reported.) Cur. adv. vult. The QUEEN V. READ, PATTESON J., in this term (May 5th), delivered the judgment of the Court. This was an appeal against the disallowance by the auditor of 2627. (omitting the fractional sums) paid by the appellants, the overseers, in August 1847. It ap peared that the attorneys acting in various matters for the parish had become entitled to 497. for matters concluded before March 1845, and to 2137. for litigation and other business concluded before March 1846, and had sent in their bill for the first time in August 1846, and were then paid. The It was agreed that the money was fairly due: but the two sums of 497. and 2137. were disallowed on. the principle that the charges created in any year should be borne by the ratepayers of that year. appellants rely for answer on the fact that the overseers who went out of office in March 1845, leaving the debt of 491., handed over to their successors 4571. which had been collected, so that the overseers for 1845-6 from that balance might have discharged that, debt; and that the overseers who went out of office in March 1846 handed over to their successors 33761. of uncollected rate, so that from that sum, which was afterwards collected, the overscers for 1846-7 might have paid both the debt of 497. due March 1845, and the further debt of 2137. due March 1846; and that, although they made a further rate in July 1846, and paid the whole debt in August 1846 out of the pro Volume XIII. ceeds thereof, still that the ratepayers are not preju 1849. The QUEEN V. READ. diced thereby; for, if the debt had been paid out of the uncollected rate which sufficed till July, the rate then made would have been required earlier, and so the ratepayers supposed to be affected have not been made. liable to additional payment. We are desirous of giving effect to the principle relied on by the auditor; but we think it does not properly apply to the debt of 2131. Retrospective rates are said to be unjust because they transfer the burthen of payment from those who incur the debt; but prospective rates, which are made prospectively for any long period, are open to other objections; and rates de die in diem, or for short periods, are almost impracticable. The course, therefore, adopted in this parish, of making rates from half year to half year, upon an estimate of the expected wants of that time, appears on the whole a reasonable, as it is a very common, arrangement for adapting the present income to the present expenses; and rates so made fall sufficiently within the correct principle. It is the duty of the overseer to endeavour to provide for the debts incurred within his year; and it is a compliance with this duty if, at any time before he leaves office, he makes a rate sufficient to cover all the debts he has contracted. The debt of 2137. now in question was chiefly for litigation, and the suits terminated at various periods of the year of office and it should be observed, with respect to costs of litigation, that they cannot properly be taken into an estimate till the suit is over, as it often depends on the event whether the suitor will have to pay or receive costs. Therefore the costs of suits concluded within the six months before January 1846 1849. The QUEEN V. READ. would be properly included in the rate made in that Queen's Bench. month, while the costs subsequent to January would fall to the estimate for the next rate in July. Assuming, then, the payment in August to be made out of the proceeds of the July rate, the question arises, are the ratepayers so damnified that this payment should be held illegal, and the burthen of it thrown on the officers? We think not. The July rate seems the appropriate fund for the costs subsequent to January ; and, as to the costs prior to January, which might have been paid out of the January rate, the amount of uncollected rate handed over by the outgoing overseers was sufficient to pay that and all other debts left by them. If the proceeds thereof had been applied to this debt, the July rate would have been required rather earlier, perhaps in June: but it is not to be intended that the ratepayers in July are substantially different from the ratepayers of June. On the contrary, it is reasonable to assume that they are substantially the same during the whole year of office. It follows that the ratepayers of July are not damnified. Although the rate is founded on an estimate, it is not so exclusively appropriated to the expenses included therein but that it may be lawfully applied to an unforeseen debt not iucluded therein; and, where, from the year of office being different from the year for rating, a portion of uncollected rate is handed over, the successors are justified in considering an unforeseen debt of their predecessors as a charge on the rate so handed over by them. We do not interfere with the auditor's disallowance of the sum of 497. and it is due to him to say that the grounds on which we alter his decision as to the Volume XIII. 2137. were not presented to his consideration at the 1849. The QUEEN V. READ. time he made the disallowance. Appeal allowed as to 2134 Disallowed as to 491. Monday, NORTH and Another against WAKEFIELD. Where a deed DEBT on a on a promissory note for 10007., dated 20th is not set out on oyer, but is pleaded according to its alleged legal effect, Non est factum puts in issue the alleged effect of the deed as well as its execution. ation on a pro June 1845, made by the defendant, payable to the plaintiffs on demand. Pleas. 1. That defendant did not make the note. Issue thereon. 2. That the note was the joint and several note of defendant and one William Goddard; and that, after To a declar- the making of the note, to wit on 27th October 1827, plaintiffs, by a certain deed poll of that date, without the consent of defendant, released the said William Goddard from the said promissory note, and from all actions, suits, claims and demands whatsoever upon and in respect thereof; and thereby then also released defendant from the same. Verification. missory note, defendant pleaded that the note was the joint and several note of him self and G.; that plaintiff, by deed poll without defendant's consent, re leased G. from the note and and thereby also released 3. That the note was the joint and several note of defendant Goddard; and that defendant made the same all actions &c.; for the accommodation, and as the surety, of Goddard, and not otherwise; and that there never was any other the same. Re- value or consideration for the making of the note by plication, Non aufendant from est factum. Held, That, as the plea did not set out the deed on oyer, the replication put in issue the execution of such a deed as released the defendant. And that a deed of release, executed by plaintiff and others, creditors of G., containing an express clause that the release to G. should not operate to discharge any one jointly liable with G. on securities to the said creditors, did not release the defendant; and that, therefore, defendant was entitled to the verdict on this issue, |