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far from there being any inconsistency, it is necessarily involved in the principle on which the rate rests; that the distinction can be made, and has been made, is no slight proof of the soundness of that principle. The moment the engine leaves the railway of the company, what it earns ceases to have any connexion with their occupation of the railway; it may, and of course does increase the value of the occupation of that other line, on which it then works, and will, of course, in the shape of toll, proportionately increase the rate which the occupier will pay; but, if it were allowed to swell the charge on the company, it could only do so in respect of the profits of the trade, and this our principle excludes.

But it is said, lastly, that this principle works injustice between the company and the other corporations, or individuals who carry upon their line; their engines and their trade are said to pay nothing to the poor's rate directly, and indirectly only in respect of their toll, which may be supposed to be calculated so as to bear its own rate, whereas the company pay on their tolls and on their fares. Colour is given to this objection from the fact, which might seem to explain it, that the company fill two characters, the other party one only; but the proper answer is a denial of the fact,-the company do not pay directly or indirectly on their fares, they pay only on the increased value of their occupation of the land, occasioned by whatever circumstances.

If a trader should underlet to a lodger a room in his house, in which he derives the most profitable trade imaginable, such lodger would pay no poor-rate at all, but, as the trader would proportion the rent at which he let the lodging to the advantages which such lodger derived from them, the total rent which a trader would pay, and the rate which could be imposed on it, would be proportionably increased; but could he complain of any injustice, or say that he carried on his own trade

1844.

THE QUEEN

v.

THE GRAND JUNCTION RAILWAY Co.

1844.

THE QUEEN

v.

THE GRAND JUNCTION RAILWAY Co.

in the rest of his house to disadvantage, because in his rate the value which the trade so carried on in the residue gave to the occupation was also taken into account in fixing the quantum of the rate? Yet those parties who carry on a trade on the company's line are in effect but in the nature of lodgers, or parties enjoying a profitable easement on the line, and, by the consideration they pay, increase its general value.

In the examination which the case has compelled us to make, we have been necessarily led into a reconsideration of the principles on which the decision in the case of the South-Western Railway Company proceeded. That decision was not directly impugned, but the distinction of facts relied on has appeared to us on examination so unsubstantial, that it was necessary, in order to a decision against this rate, to examine the principles on which that was upheld; and in a matter of such vast importance and such apparent novelty, where, too, the decision of this Court cannot be reviewed in a Court of error, we were not unwilling again to examine the question.

Upon the whole, we are satisfied with the decision of the sessions; it appeared to us founded upon a just application of established principles, and in accordance with many decided cases, and conflicting with none.

Judgment for the respondents.

· END OF EASTER TERM.

Court of Queen's Bench.

TRINITY TERM, 1844.

1844.

THE QUEEN v. The Justices of CHESHIRE.

May 26th.

AT a special sessions holden at Oakmere, Cheshire, Two neighbour

March 30th, 1843, the inhabitants and ratepayers of the township of Little Barrow applied to the justices to appoint two or more overseers of the poor for that township, which they refused. In Michaelmas Term, E. Yardley obtained a rule nisi for a mandamus to the justices to make such appointment.

The affidavits in support of the rule stated, that the parish of Barrow consists of two townships, Great Barrow and Little Barrow, the parish church being situate in the former. That the population of the parish amounts to about 668 persons, of whom about 428 are resident in Great Barrow, and 240 in Little Barrow. That, in 1837, these two, together other townships in Cheshire, were formed into a union, called the Great Boughton Union, under the 4 & 5 Will. 4, c. 76, and that, since the formation of this

ing divisions of a parish used the same parish church,

situate in one

of them. Each

of them had an

overseer, col

lector of taxes,

surveyor of highways, and

constable appointed out of its inhabitants,

rish at large; each overseer poor-rates in

but by the pa

collected the

his own divi

sion, and kept

with his own

ac

counts, but

these were after

wards entered

in one book, and passed jointly; both

ed part of the

divisions form

union, one guardian of the poor has been annually elected by each township, except once, when no nomi- same union, and the poor of both nation of a guardian was made by Little Barrow, and were maintainthen there was only one guardian for Great Barrow; that ed at their joint the accounts of the two townships in the books of the did not appear

expense; but it

that either had separately ap

pointed its own overseers :-Held, that these divisions, not being separate and distinct townships as to the maintenance of their own poor, were not entitled to an appointment of separate overseers, under the 13 & 14 Car. 2, c. 12, s. 21.

VOL. I.

R

N. S. C.

1844.

THE QUEEN

v.

CHESHIRE.

union have been kept separate, and that the warrants from time to time issued by the guardians of the union,

The Justices of directing payments out of the poor-rates of Little Barrow to the treasurer of the union, have been directed to the overseer of Little Barrow alone, and such payments have been made by him without the control or interference of the overseer of Great Barrow; that, since the formation of the union, the overseer appointed for Little Barrow has acted in the maintenance and management of the poor there, separate and apart from the overseer of Great Barrow; that the accounts of the two overseers have been separately kept and passed, both before the justices and the auditor of the union; that the justices of Cheshire have from time to time made orders for the removal of paupers from Great Barrow to other parishes and townships, and, in some instances, for the removal of paupers from other parishes and townships to Little Barrow. That separate surveyors of highways have been appointed for each township, and that two constables have acted in the parish, one for each township; and that county and highway rates have been collected, levied, and paid over in each, separately from the other; that in old books and documents (a) the townships of Great and Little Barrow are enumerated as separate and distinct, and have been considered to be so in the memory of the oldest inhabitants of the parish.

Affidavits were filed in answer, stating, that though the parish of Barrow has been and still is divided into two parts, yet that no line of boundary between the two

(a) See "The Vale Royal of England, or the County Palatine of Chester illustrated, performed by William Smith and William Webb;" published by Daniel King, Lond., 1656, folio. And

"The Head Constable's Assistant, or a Mize Book for the County of Chester," &c.; in which the town. ships of Great and Little Barrow are enumerated as separate townships.

is or has ever been ascertained. That two overseers, two surveyors of highways, two constables, two churchwardens, and two collectors of taxes have always been, and still are, appointed jointly for the parish at large without reference to townships; that the custom has been to elect an inhabitant of Great Barrow to perform the duties of a parish officer on that side of the parish, and an inhabitant of Little Barrow for the same purpose on the other side, but that this custom has prevailed for convenience only, and to prevent the officers having the trouble of going over the whole parish to collect the rates, &c. That, before the formation of the Great Boughton Union, the accounts of Great and Little Barrow were not kept separate, but jointly, as appears from the oldest parish documents (a); and that, in these documents, all the (b) orders for poor leys and other leys are made, not for the officer of each division or township, but of both jointly; and that, in a book kept by the parish, there are minutes of rates granted to churchwardens and other officers by the parish at large. That churchwardens have always been appointed for the entire parish, but that of these, one has taken that part called Great Barrow, and the other the part called Little Barrow, for the sake of convenience, though their accounts have always been made out on the same sheet of paper; and that, on the settlement of their accounts (c), when one officer had a balance due to

(a) Some books, containing parish accounts, were put in with these affidavits. The accounts commenced A. D. 1693, and ended A. D. 1743.

(b) One of the entries in a parish book produced was as follows:-" May 26, 1695. Assessed a poor leay for the whole rish, for J. J. and T. F." &c.

pa

(c) The entry in the book produced for the year 1693, of the churchwardens' accounts, was in this form :

"C. S.'s accounts for the further side of the parish.

"J. J.'s accounts for the other

side of the parish;❞—and, at the
end: "Paid the same to J. J. for
part of his disbursements."

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