1847. The QUEEN v. WESTBROOK. The QUEEN v. EVEREST. yard on the marl dry, and so much per thousand of the bricks made. We are brought, then, to the conclusion, that the parish officers have done right in considering the royalty as a portion of the rent; and we see no objection to the conclusion at which they have arrived, that, primâ facie, the amount of royalty reckoned in the rate will be paid in the year for which the rate is made. Still, it must be always remembered, that the ultimate question is that propounded by the statute; and, therefore, the amount which has been paid, and which it is reasonable to infer will be paid, is only evidence, and not the fact itself to be ascertained. When, therefore, the case came to the sessions, it was open to the appellant to prove such uncertainty in the market, and also all such circumstances as shewed that the parish officers had done wrong in concluding, that, from such a quantity made or expected to be made, the land might be reasonably expected to let from year to year at a rent measured by that quantity. Such evidence would have raised a question of fact for the sessions, and they would have had, upon the whole, to sustain or reduce the amount of the assessment. It may well be that, although at the end of the year the lessee has made so many bricks that he can afford to pay £150 as royalty to the landlord, he could not prudently, at the beginning of the year, contract, at all events, to pay more than £100; and, if so, the latter, rather than the former, would be the sum which the land may be expected to let from year to year. This, then, was what we understand the sessions to mean in Westbrook's case, by the special finding. The parish officers estimate the rent at a supposed amount of the bricks actually made, and the royalty then payable on such amount, and from this they make such deductions as reduce the rateable value to 159. 10s.; but the sessions say, that, placing the tenant exactly on the same footing as to the incidents of his occupation, but calling on him to say beforehand what rent he would pay per acre, he would not be expected to give more than £10 per acre, which, on the whole, would amount to little more than £100. This latter appears the true criterion rather than the former, and the rate must be amended accordingly. But it is not so easy to deal with Everest's case; the sessions ask us what is the net annual value of the land? and add, if the sums paid are to be considered in the nature of a rent, and as such to form the basis of the rate, then the order is to be confirmed. If either of the modes contended for by the appellant be right, the case should be sent back for the rate to be adjusted accordingly. Now, neither of the appellant's modes are correct, nor were contended so to be. They were in effect to rate land occupied in one mode as if it were occupied in another, those modes producing different rates of profit, and commanding different amounts of rent,-than which nothing could be more unreasonable. But, on the other hand, although the sums paid are to be considered in the nature of the rent, it does not follow that they must form the basis of the rate in the sense of fixing its amount. The true question is that which the sessions asked, but which they must answer for themselves, by finding on the evidence, according to the principle we have laid down, which is in the words of the statute, what is the rent at which the land might reasonably be expected to let from year to year, remembering the purposes to which it is to be applied, and the privileges which the tenant will enjoy under his contract, and by reason of the occupation, and after making all the deductions specified by the statute. It by no means follows that this mode of examining will produce so great a change in Everest's case, as it does in Westbrook's; the 1847. The QUEEN v. WESTBROOK. The QUEEN V. EVEREST. 1847. v. WESTBROOK. The QUEEN circumstances may be such as to risk, market, and comThe QUEEN petition, as may make the difference little more than nominal; the market may be so good, and the competition so great, as to make the risk almost nothing. Still this is a question for trial; and for the purpose of trying that, this case must go back to the sessions; both orders should go back to their respective session, that the rates may be amended according to the principles laid down. v. EVEREST. Rates to be amended. END OF HILARY VACATION. 1847. Court of Queen's Bench. EASTER TERM, 1847. The QUEEN v. The Inhabitants of CLIXBY. ON The examination of the pauper, William Robinson, duly taken and signed, was as follows:-" At the parish of Clixby, in the said parts, a few days before Old Mayday, in the year 1818, being then unmarried, and not having a child or children, I was hired by W. T., then of Clixby aforesaid, to serve Messrs. J. F., J. D., and J. T., on a farm occupied by them at Clixby aforesaid, for a year from the said Old May-day. I duly entered upon the said service, and continued in the same for a whole year, and during the said service and under the same, I resided and slept in the said parish of Clixby, serving the said Messrs. J. F., J. D., and J. T." At the trial of the appeal, an objection, which was duly raised by the grounds of appeal, was taken to the examination, that the residence of the pauper in the parish of Clixby for a period of forty days, while he was in the alleged service there, did not sufficiently appear. The sessions held the examination to be sufficient, and, The QUEEN 1847. after hearing evidence in support of the settlement, confirmed the order; but, on application by the appellants, Inhabitants of granted a case for the opinion of this Court upon the CLIXBY. question whether the residence of the pauper in the v. appellant parish sufficiently appeared on the examination. If this Court shall be of opinion that the examination is sufficient upon that point, the order of sessions to stand confirmed; but if the Court shall be of a contrary opinion, then the order to be quashed. Willmore and d'Eyncourt, in support of the order of sessions.-The examination states that the pauper entered into the service and continued in the same for one whole year, and during the said service, and under the same, resided and slept in the said parish of Clixby; the meaning of which must be, that, during the whole of that time the pauper resided and slept in that parish, and not, as is suggested, that he resided and slept there during some part of that time. The word "during " in legal proceedings implies continuance, as "durante viduitate" and "durante vitâ." The Court has already given this construction to the word "during" in Regina v. Anderson (a), where the examinations set up a settlement by serving an annual office, and the Court said, that, "during which years" must be taken to mean strictly "during the whole of which years." Wildman and Denison, contrà.-The case of Regina v. Anderson (a) is not conclusive, because there the examination used the very words of the statute, and the terms "durante viduitate" and "durante vitâ" are not applicable, because they are only words of condition. The word "during" does not necessarily imply "throughout," which it must in order to support the examination. (a) Antè, p. 479. |