The case set out the entry: the only material parts were the fol

Gambier having appealed against the rate to the Sessions, and notice of such appeal having been given, a case was, by consent of parties, and by order of Erle, J., stated for the opinion of this Court, pursuant to stat. 12 & 13 Vict. c. 45, s. 11. The material parts of the case were

as follows.

The land and buildings" secondly mentioned in the assessment are rented by the Directors of convict prisons from the Duchy of Cornwall, under a lease dated 31st December, 1852, for a term of ninety. nine years from 29th September, 1850, subject to a yearly rent of 234l. 108., and, after the expiration of the first twenty-two years of the said term, subject to certain additional rents for the land which should have been brought into cultivation; and subject also to certain royalties on peat, &c., which should be raised or gotten, and which, or the products of which, should be carried off the premises whether for sale or otherwise which lease was granted on the surrender of a former lease of 30th June, 1851.

*The lease of 31st December, 1852, states that the buildings [*348 and part of the waste land thereby demised are to be used as a convict establishment, for the confinement and employment of convicted prisoners, in (among other occupations) the reclaiming and cultivating the lands thereby demised, pursuant to covenants therein contained, and for purposes connected therewith, and contains a covenant by the lessees to use all the premises thereby demised as and for a convict establishment and purposes connected therewith, and not for any other purpose whatsoever, unless with the consent of the lessor. The directors to expend, within five years from the commencement of the term, the sum of 15,000l. in substantially repairing the buildings upon the demised premises; to reclaim, improve, and cultivate so much of the lands as should be capable of being reclaimed, improved, and cultivated;

U

and the term to be determinable on the 29th day of September, 1854, or on the 29th day of September in any subsequent year, by either party giving twelve months' notice to determine the same. The lease also contains a power for the lessor, in certain events, at any time after 29th September, 1872, without notice, to re-enter upon and resume possession of part of the waste land thereby demised, and also deter mine the lease of the "minister's house" and appurtenances on 29th September, 1854, or on 29th September in any subsequent year, on giving twelve months' notice.

The prison and buildings connected therewith have been used by the directors as a convict establishment, pursuant to the terms of the lease of 30th June, 1851, from the commencement of the said term until the surrender of that lease, and thenceforth to the present *time, *349] pursuant to the terms of the said mentioned lease: and the land included in both the existing leases has during all that time been occupied by the directors, together with the prison; and the convicts have been employed in the improvement and cultivation thereof; and about fifty acres have been brought into a good state of cultivation; and more is in the course of being reclaimed and cultivated. The cost of the improvements and cultivations necessary to fit the establishment for the reception of convicts, and of the erection of all new buildings, have been paid out of the Home Office convict estimates.

The rent and taxes (including property tax, highway rates, tithes and poor-rates), and also the salary of the governor, which has been fixed at 500l. per annum, have been and are paid out of the same fund.

The produce of the land (part of which has been converted into a kitchen garden for the use of the establishment) is either consumed in the establishment or sold; the amount received from such sales being placed to the service of the prison expenditure, thus reducing the amount drawn from the convict estimates. The peat dug from off the land is consumed as fuel in the prison, and also in the manufacture of gas for prison consumption. No part of the produce of the land has been sold or disposed of otherwise than as above mentioned.

A house within the precincts of the prison, and a small strip of land occupied therewith as a garden, have been assigned to and are occupied by the governor of the prison, as "quarters," together with stables, coachhouse, and outbuildings used for the governor's house, two ponies, and pony carriage. The governor is required *by the Secretary *350] of State to keep one horse for use on the public service. The governor's house consists of a drawing-room, a dining-room, a kitchen, four bed rooms, and two attics. The quarters occupied by the deputy governor, the assistant chaplain and the steward, each containing a somewhat less number of rooms than the governor's quarters, are also situate within the precincts of the prison, and are occupied by those officers respectively. All the above quarters are occupied rent free.

At some little distance from the building of the prison, and not connected with it by boundary wall, or otherwise, is a row of eight cottages, which, if rateable, ought to be assessed at 901. a year. Persons employed in the prison occupy these cottages; and for some of them the occupiers pay rent; and in other cases the value of the occupation is taken. into account and diminishes the wages paid to such occupiers.

Near these cottages, and also unconnected with the building of the prison, is a dwelling-house, of a rateable value of 201. a year, occupied by the medical officer" of the establishment.

And, at a little distance from this house, is a house and garden occupied by the chaplain of the establishment; and, if rateable, is of the rateable value of 35l. a year.

In addition, a great part of a building called "the barracks," situate at a short distance from the prison, has been assigned as quarters for the subordinate officers and their families: and another part of these barracks is occupied by a grocer, who resides and carries on his business there on his own account, supplying goods to the residents in the convict establishment, and to others who deal with him. The last-mentioned officers or some of them pay rent for their quarters to the direc[*351 tors; whilst in other cases it is calculated in their wages similar to the cottages in the row. Each officer occupies one or two rooms according to the number of his family.

No more rooms are occupied by the governors or by the other officers than are necessary for the proper discharge of their duties as officers of the prison, and for the adequate accommodation of the families of such of them as are married men and have families. But the coachhouse and extent of stabling of the governor are not necessary to enable him properly to discharge his duties. The several officers, however, have no discretion in respect of the houses and apartments assigned to them, respectively; such houses and apartments being so assigned by the directors of prisons for their occupations as such officers.

A part of the building within the prison walls is occupied as a canteen by one Samuel Piper, for the sale of beer to the prison officers, no profit being derived therefrom beyond what is sufficient to pay the wages of a man who supplies the beer.

All the rents which are paid by any of the officers, and the proceeds of the land, are placed to the service of the prison expenditure, thus reducing the amount drawn from the convict estimates.

The land and buildings demised by the said lease contains in the whole thirty-three acres, or thereabouts.

The land and buildings called Rundlestone, is situate apart, and at a distance of half a mile from the prison and barracks before mentioned, and consists of 8 acres of meadow land, worth a yearly rent of 11. 58. per acre, 50 acres of rough land, worth a yearly rent of 58. per *acre; and 145 acres of waste land, worth a yearly rent of 18.

[*352

per acre; and of a small farm-house: and these premises are rented by the directors of convicts' prisons from the Duchy of Cornwall, under a lease dated 7th May, 1852, for a term of thirty-one years from 29th September, 1850, subject to a rent of 301. a year, and to certain royalties for all peat, &c., which, or the products of which, should be sold, or disposed of otherwise than for the use of the convict establishment. The directors employ convicts of the establishment in clearing and cultivating this farm; and all its proceeds have been used or disposed of for the benefit of the establishment and not otherwise.

The question for the opinion of this Court was stated to be:

Whether, under the circumstances above stated in respect of the "land and buildings" included in the rate, or any and what part thereof, any person is rateable to the relief of the poor. If the Court shall be of opinion that no one is rateable to the relief of the poor in respect of the occupation of any part of the said land and buildings, then it is agreed that the said rate shall be amended by striking out the assessment on the appellant. If the Court shall be of opinion that, in respect of the occupation of the said lands and buildings, or any part thereof, any one is rateable as aforesaid, then the assessment on the appellant is to stand to such extent as the Court may think fit: and, if the parties should differ as to the amount at which the rateable part of the said lands and buildings ought to be assessed, the question of such amount shall be disposed of by the Court itself naming a sum, or otherwise as the Court may direct.

*353]

*In either case such costs are to be paid as this Court shall adjudge: and it is agreed that judgment shall be entered by the Sessions accordingly.

Pashley, for the respondents. First, as to the prison. It is found that the coach-house and extent of stabling, occupied by the governor within the walls, are not necessary to enable him properly to discharge his duties." The governor therefore is a rateable occupier; Rex v. Terrott, 3 East, 506. And, as he occupies the whole together, he must be rated for the whole, as in that case. Indeed it is not necessary to rely upon the excess, in order to show that he is rateable for all that he occupies in the prison. In Regina v. Temple, 2 E. & B. 160 (E. C. L. R. vol. 75), it was held that premises, hired by the Privy Council for the use of a normal school, on which the principal and masters resided, were subjects of rate. [Lord CAMPBELL, C. J.-There is a difference of use, at any rate, in the two cases. There the parties went voluntarily for instruction: here the building is devoted to persons suffering the sentence of the law.] The Court has repeatedly, as in Regina v. Sterry, 12 A. & E. 84, 92 (E. C. L. R. vol. 40), expressed regret that the mere occupation of valuable property has not, without any distinction as to public and private purposes, been deemed sufficient to constitute a rateability. [COLERIDGE, J.-It may be said that such

an expression of regret shows how strongly it was felt that the objec-
tionable rule was fixed. Lord CAMPBELL, C. J.-You had better clear
the way by discussing, in the first place, the question whether any one
is rateable for that which is mere prison.] Any one who occupies is so.
[Lord CAMPBELL, *C. J.-What profit does the prison produce?]
[*354
The case is like that of a lunatic asylum, which is rateable in
the hands of a private person, or of the normal school in Regina v.
Temple. The Privy Council, in the case last mentioned, were much in
the same position as the directors here, under stat. 13 & 14 Vict. c. 39.
The latter are not servants of the Crown, but "public officers appointed
to perform certain duties assigned to them by the Legislature," accord-
ing to the distinction laid down by Lord Lyndhurst, C., in the case of
The Commissioners of Woods and Forests. (a) The leading case in
favour of the non-rateability of property occupied for a public purpose
is Rex v. The Commissioners of Salter's Load Sluice, 4 T. R. 730.
But that case, so far as it can be supported, is explained by this Court
in Birkenhead Dock Trustees v. Birkenhead Overseers, 2 E. & B. 148,
157, 8 (E. C. L. R. vol. 75), on the ground that the Court adopted the
construction that the direction of the local act amounted to a prohi-
bition to apply the tolls to the payment of poor's rate:" and the same
explanation is given by Lord Campbell, C. J., in Regina v. Temple, 2
E. & B. 168 (E. C. L. R. vol. 75). In Rex v. St. Luke's Hospital, 2
Burr. 1053, the hospital was held not rateable because it was vested in
trustees who had no interest; but that principle has been disallowed in
later cases; Rex v. The Mayor, &c., of York, 6 A. & E. 419 (E. C. L.
R. vol. 33), Regina v. Harrogate Commissioners, 15 Q. B. 1012 (E.
C. L. R. vol. 69). [Lord CAMPBELL, C. J.-That is, a trustee who
occupies but takes no benefit may be rated if his cestui que trust takes
a benefit.] A profitable occupation, though in the *carrying out
[*355
of a public duty or a charitable trust, creates liability to rate;
Rex v. Munday, 1 East, 584, Rex v. Catt, 6 T. R. 332, Rex v. Hurdis,
3 T. R. 497, Regina v. Ponsonby, 3 Q. B. 14 (E. C. L. R. vol. 43);
though it is otherwise where there is no occupation at all except what
consists in the mere appropriation to the public purpose; Lord Amherst
v. Lord Sommers, 2 T. R. 372, Regina v. Shee, 4 Q. B. 2.(b) [WIGHT-
MAN, J., referred to Regina v. Shepherd, 1 Q. B. 170 (E. C. L. R. vol.
41).] Several questions were there raised: the first discussed seems to
have been whether the gaoler, matrons, &c., were occupiers; Regina v.
The Justices of Worcestershire, 11 A. & E. 57 (E. C. L. R. vol. 39),
was relied on, where it was held that the justices of a county were not
liable for buildings which they held, to be used as a county hall, courts
of justice, and judges' lodgings. [Lord CAMPBELL, C. J.-Possibly it
.may not be too late to reconsider the cases: but certainly in Regina v.

(a) Viscount Canterbury v. The Attorney-General, 1 Phill. R. 306, 324.
(b) See 2 E. & B. 173 (E. C. L. R. vol. 75).
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