without provision for their payment by means of the recourse afforded, upon executions under 12 Vic. ch. 81, sec. 177.See Jones v. Johnson et al., 20 L. J., N. S. 11. Were the statute (sec. 177) not so stringent in its terms, the case of Holdsworth v. The Mayor &c. of Clifton (11 A. & E. 490), and the late case of Pallister v. The Mayor of Gravesend (19 L.I.C. P. 358), would be much in point in support of the action, especially the latter, but the distinction between our statute and the imperial statutes referred to in that case are obvious. In ours we find expressed the very prohibition that was there contended to be implied, but which was held not to exist. Taking this action to be brought for the recovery of a debt or debts incurred (on any account) since the defendants became a corporation, either without any by-law to authorise the contracting or any by-law settling the yearly rate for the payment of such debt or debts, it appears to me the defendants are not liable, and that the want of a suffi cient by-law may be pleaded, if not in the nature of a special non est factum or never indebted, at least in confession and avoidance.-5 Co. 119; Thompson v. Rock, 4 M. & S. 338; Harmer v. Rowe, 6 M. & S. 146; Hill v. Manchester and Salford Water Works Company, 2 B. & Adol. 544; 5 B. Adol. 866, S. C.; Pontet v. Bassingstoke Canal, 3 Bing, N. S. 433; Paxton v. Popham, Downing v. Chapman, Pole v. Hanobin, 9 East. 408, 416; Wigg v. Shuttleworth, 13 East. 87; Jones v. Woollam, 5 B. & A. 769. The objections apply with equal force to both the first and last counts, even if the account stated is assumed to have been under the seal of the corporation and founded upon other considerations than in the deed stated in the first count.-The Mayor of Ludlow v. Charlton, 9 C. & P. 242; 6 M. & W. 815, S. C.; Regina v. Mayor of Warwick, 8 Q. B. 926; De Grave v. Corporation of Monmouth, 4 C. & P. 111. The question remains, whether the omission of a rate settled in the by-law is sufficiently pleaded. I think the pleas impliedly allege a by-law or by-laws, but without setting out the same, to shew what they do contain-they merely indirectly assert what they do not contain. No ground of special demurrer has however been assigned in this point, if objectionable.

Some authorities bearing on this point will be found in 1 Sid. 50 pl. 13; Ib. 97 & 425; 6 Mod. 237; 2 Sal. 498; 1 Stra. 227, 10 Co. 88, 92; 1 Saund. 317, (2) b.; 2 Saund. 409 (2); 4 East. 340; 13 East. 87; 8 M. & W. 720; 15 M. & W. 48; 1 A. & E. 795.

I have hesitated a good deal in considering whether the pleas are not liable to the objection of not sufficiently shewing whether there are any by-laws on the subject of this debt other than the deed declared on in the 1st count, and if any, what provisions they contain, so as to shew forth to the court that they do not settle any rate, as required by the 177th section, instead of simply negativing that fact; but the best opinion I can form is, that on general demurrer it must be intended that there are by-laws to which the pleas refer, although not distinctly averred, and that such by-laws do not contain any provision for either a single or a yearly rate for the payment of the demands specified in the first and last counts.

I cannot satisfy myself that, although within their own knowledge and under their own control, it was incumbent on the defendants to set out the by-laws in full, or that it is not sufficient for them to allege that the by-laws do not settle the rates required by the 177th section. If there were by-laws such as the statute directs, the plaintiff might have stated them in reply, being open and accessible to him, although in the defendants' custody (12 Vic. ch. 81, sec. 199), and taken issue upon the facts. Instead of doing so he demurred, not on the ground of uncertainty in this respect, but of the defendants being estopped by their deed, or liable on the face of the declaration, notwithstanding the alleged omission or defect in the by-law or by-laws passed for the creation of the debt or debts for which the action is brought. Upon the whole therefore, in my opinion,

1st. The pleas do contain a legal defence to the action; 2nd. And are not repugnant, admitting as they do the due execution of the deed, but denying liability, on the ground that it is invalid and not binding upon them, for the reasons therein stated. I do not think the admission, being explicit, makes any material difference, or that the intro

G

duction of the word "supposed" before the word "instrument," &c. (as in the plea in the case reported in 4 M. & W. 621) would have qualified the admission in any material degree, for the word supposed has been held equivalent to alleged, and a sufficient confession in a plea confessing and avoiding.-Gale v. Carpen, 1 A. & E. 46; 3 N. & M. 863, S. C.; Gould v. Lasherry, 4 Ty. 865; 1 C. M. & W. 254, S. C.; 5 Ty. 64; 4 A. & E. 489; Eavestaff v. Russell, 10 M. & W. 366. The pleas only admit the instrument or the debts sub modo, and in order to avoid them by new matter, the consideration for the debt in question-whether work, labour and materials, money lent or otherwise—is not stated by either party; all we have is the deed or covenant to pay at a future day, and the account stated payable on request, founded upon some presumed considerations, without such debts being provided for by settled rates in this by-law authorising or creating the same.

3rd. The defendants do not deny their being indebted, except as the legal inference from what they state-viz., facts shewing that they never were bound legally, either by the covenant or account stated, which last may consist merely of the admission contained in the former, and which might have been thereby supported in evidence if traversed.

4th. Lastly, the defendants are not estopped, the doctrine of estoppel not applying when the deed or subject matter is attacked upon some collateral ground, shewing it illegal, void or not binding in law. On the whole, therefore, I think judgment should be for the defendants, although I express this opinion with much diffidence, the whole subject of municipal corporations, their by-laws and the statutes under which the defendants were created being new to me. We have not hitherto been called upon to consult and become familiar with the English decisions respecting rates and assessments for local or occasional purposes, and I have not met with any case resembling the present, nor am I aware of any imperial statute containing a restrictive proviso like the one in question, although there may be such. Without the aid or guidance of precedents or authorities more in point than those I have seen, I cannot but

entertain the opinion, however repugnant to the apparent justice of the plaintiff's case, that the omission to comply with the proviso deprives the deed declared upon, and on the same principle the alleged account stated of its valid and binding effect upon the defendants, and that judgment should therefore be against the demurrer.

Since writing the above, I have seen the act passed last session (30th August 1851) to enable municipal corporations in Upper Canada to contract debts to the crown, in the purchase of public works, without imposing a special rate or tax for the payment of the same, and it clearly shews that the proviso in section 177 is correctly interpreted, as relating to all debts incurred by the municipal corporations, whether for loan or otherwise.

MCLEAN, J.-The writ in this action appears to have been sued out on the 12th day of March 1851, on an instrument under the seal of the corporation, dated 15th May 1850, payable on the 1st day of January 1851. By the 198th section of 12 Vic. ch. 81, under which the corporation which gave the undertaking in question was elected and acted, it is enacted that all debts, bonds, obligations and other instruments, to be executed in behalf of any corporation elected or to be elected under that act, shall be valid if sealed with the seal of the corporation, and signed by the head of such corporation, or by such other person as shall, by any by-law to be passed in that behalf, be authorized to sign the same on behalf of the corporation.

In all the pleas the defendants admit the making of the instrument or the incurring of the debt by them since the making of the act of 12th Vic. ch. 81, but seem to rest their defence on the alleged fact that a special rate per annum, over and above and in addition to all other rates whatsoever, was not settled in the by-law passed by the defendants for the creation of such debt, to be levied in each year in payment of the debt so created, as required by the statute. There is no distinct allegation, as there ought to be, that a by-law was in fact passed to create this debt; but the making of such by-law is left to be inferred from the statement that in the by-law passed to create the

debt no special rate was settled for its payment. The plea should not only have alleged in positive terms that the debt was created by a by-law, but it should have set out the by-law, so that it might appear that the provisions required by law were not contained in it. But it is not objected to on this account; and we must confine ourselves to the objections which are set forth in the special demurrer-the first of which is, that the pleas contain no legal defence or answer. By the 198th sec. 12 Vic. ch. 81, the instrument declared on, being for the payment of a debt and under the seal of the corporation, is prima facie valid and binding on the defendants; but it is, I think, competent for them to shew that, though executed with all the formalities deemed essential under that section, it was nevertheless given under circumstances which must relieve the defendants, as a corporation, of any liability at law upon it. When it is declared that all debts, bonds, obligations and other instruments, to be executed in behalf of any corporation under that act, shall be valid if sealed with the seal of the corporation and signed by the head of the corporation or other authorized person, it must not be supposed that an unlimited power is given to the several corporations of contracting debts in contravention of the other provisions of the statute. If all instruments under the corporate seal, and signed by the proper officer, were unimpeachable evidences of debt, and binding under all circumstances, the salutary provisions of the statute, which restrain all the municipal councils from contracting debts without providing the ways and means of paying them, would in fact be nugatory, and there would be nothing to prevent such bodies from running into heedless extravagance. The clause declaring evidences of debt made in a particular manner to be valid, must be taken to mean that such evidences of debt shall be valid if given for a debt which may be legally contracted. It is clearly the duty of municipal corporations, as soon as practicable, to make an estimate of the probable amount which may be necessary for all public objects within the year, and then to cause to be assessed and levied (under the 177th section) upon