1849. The QUEEN บ. READ and others. ham, in discharge of the said parish, and which said "1847, July 6.- Disallowed Messrs. expenses, incurred in years 1844 "Ditto, December quarter £ S. d. 262 3 3 050 £262 8 3 "These bills are disallowed on the ground that those parties who create a charge shall bear it. The proceedings upon which these charges are made were instituted in the years 1844-45, and, as rates are not to be made retrospectively (a), these expenses cannot, I conceive, at this late period, be charged upon the present rates of Cheltenham. Therefore I do disallow the said sum of 2621. 3s. 3d., and a further sum of 5s., as above. And I do hereby certify the sum of 2621. 8s. 3d. to be due from Messrs. John Read, Joseph Hardwick, Charles Norman, and M. P. Hurlstone, the parties rendering this account; and do order and direct them to pay over the said sum so disallowed into the hands of J. H. Bowley, Esq. treasurer of the Cheltenham Union, within seven days of the date hereof. "Given under my hand this 6th day of July, 1847. "E. MURRELL." The facts stated in the affidavits sufficiently appear from the judgment of the Court. The Attorney-General (Sir J. Jervis) and Greaves showed cause (b). These items were properly disallowed Lord Denman, C. J., Coleridge, Wightman and Erle, Js. 10. (a) Rex v. Dursley, 5 A. & E. (b) Nov. 18th, 1848, before by the auditor, because the overseers had no right, out of the funds in their hands in August, 1846, to pay charges incurred in the years 1844 and 1845. It is true that the overseers who went out of office in 1845 handed over to their successors a sum of money which was more than sufficient to pay the debt then due to Messrs. Williams and Griffiths, but the misapplication of those funds by the overseers of 1845-46 will not justify the payment which had been made by the overseers in August, 1846. The auditor acted upon the authority of the case of Rex v. Dursley (a), where it is said, "It is a general rule with respect to parish rates, founded on obvious principles of policy and justice, that they are not to be made retrospectively. The payers being a fluctuating body, nothing, generally speaking, is more just or more likely to conduce to economy than to hold that they who create a charge shall themselves bear it." The same principle is laid down in Woods v. Reed (b), and Tawney's case (c). Cowling in support of the rule. The authority of the cases cited is not disputed. The charges made by Messrs. Williams and Griffiths are admitted to be fair and reasonable; and it is submitted, that if the debt was justly due, and the overseers receive the money for the payment of that debt, and in March, 1845, hand over to their successors more than sufficient for that purpose, and the overseers for 1846 receive in money, and rates due but not collected, more than was requisite for the payment of the whole bill due to Messrs. Williams and Griffiths, that the payment of the sum of 2621. 8s. 3d. in August, 1846, was legal, and that such sum was improperly disallowed by the auditor. In Rex v. Dursley (d) it was sought to compel the parish officers to make a rate to (a) 5 A. & E. 10. (c) 2 Ld. Raym. 1009. 1849. The QUEEN บ. READ and others. 1849. The QUEEN v. READ and others. liquidate a debt incurred several years before, but it was there distinctly stated that the parish had no funds in hand, which distinguishes it from the present case. In Rex v. The Chapelwardens of Bradford (a), it is said that the regular way is to raise money beforehand, in order that the money may be paid by the existing inhabitants at the time on whom the burthen ought properly to fall. But inasmuch as the overseers of Cheltenham, in 1846, received from their predecessors more than sufficient to cover all debts then due, the then existing ratepayers were not prejudiced by the payment of this debt. Cur. adv. vult. PATTESON, J., now delivered the judgment of the Court. This was an appeal against the disallowance by the auditors of 2621., omitting fractional sums, by the appellants, the overseers, in August, 1847. It appeared that the attorneys, acting in various matters for the parish, had become entitled to 491. for matters concluded before March, 1845, and 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. It was agreed the money was fairly due, but the two sums of 491. and 2137. were disallowed, on the principle, that the charges created in any year should be borne by the ratepayers of that year. The appellants rely for answer on the fact, that the overseers who went out of office in March, 1845, leaving the debt of 497., handed over to their successors 4571. which had been collected, so that the overseers for 1845 -46, 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 3,3761. of uncollected rate, so that from that sum, which was after(a) 12 East, 556. wards collected, the overseers for 1846-47 might have paid both the debt of 491., 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 proceeds thereof, still that the ratepayers are not prejudiced thereby; for if the debt had been paid out of the uncollected rates, 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 pay ment. 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 2137. 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 longer 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 1849. The QUEEN บ. READ and others. 1849. The QUEEN บ. READ and others. or receive costs: therefore the costs of any suit concluded within the six months before January, 1846, would be properly included in the rate made in that 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 any unforeseen debt not included 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 2131. were not presented to his consideration at the time he made. the disallowance. Disallowance as to 2137. quashed; as to 491. confirmed. |