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Fifthly, What perty within it, except these tolls; the tolls yield an annual profit. Bell property is rate is rated in the assessment for the relief of the poor of Cockermouth as follows:

able.

11. Docks, canal tolls, &c.

Sixthly, Property, where to

be rated.

In parish or parishes where property lies.

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He is not lessee of the stallage, nor of the sweepings of the market, which are rented by other persons, who are severally rated for them to the relief of the poor in the same rate. The question is, whether Bell is rateable in respect of these tolls. P. Courteney, in support of the order of sessions, contended that Bell was rateable as occupier of the soil of the market; not, indeed, as having the entire occupancy, but as occupying it by a partial pernancy of the profits, which is enough. (Rex v. Baptist Mill Company, 1 M. & S. 612; ante. These tolls are in the nature of stallage or pickage; for the setting down sacks in the market is an user of the soil, of the same nature, if not to the same extent, as pitching a stall; and it has been adjudged, that although every man has, of common right, liberty to come into a public market for the purpose of buying and selling, yet has he not, of common right, liberty to place a stall there; and trespass may be obtained for it by the owner of the soil. Mayor of Northampton v. Ward, 2 Str. 1238; Mayor of Norwich v. Swann, 2 Bla. Rep. 1116.-Lord Ellenborough, C. J. I cannot say, upon this statement, that the appellant is an occupier of land. Would be not be equally entitled to the toll, although the sacks were not set down in the market, but were upheld on the shoulders of those who exposed the corn to sale? There is nothing to give this toll a corporeal quality.Bayley, J. Bell is assessed in the rate for corn tolls, which, it is plain from the statement of the case, were mere market tolls, and not incident to the soil. In Heddey v. Welhouse. (Moor, 474, cited in 2 Str. 1239,) the distinction is well taken; for it is said, if the king grant a fair or market with toll certain to one and his heirs, to be holden in land, which is borough English, and the grantee die, the heir at the common law shall have the market and the toll; but the younger son shall have the stallage and pickage with the soil, by the custom.-Holroyd, J. These tolls would be equally payable if the soil had belonged to another. Order quashed.

(Sixthly)—Property, where to be rated.

It has been observed, and the words of the 43 Eliz. are to that effect, that property, whatever may be its kind, if it is rateable, shall be rated in the parish where it is situated. Thus all who occupy real property within the district, though dwelling elsewhere, come within the act. So that if a man occupy lands in the several parishes of A. B. and C., and reside in the parish of D., he is liable to be rated in all the four parishes; in A. B. and C. for the land he occupies in each respectively, and in D. as an inhabitant; Jeffrey's case, 5 Co. 66; 1 Bott, 122; but he cannot be rated for personal property whch is not within the parish where he is an inhabitant. Rex. v. North Curry, 4 B. & C. 953; 6 D. & R. 424; post, 116.

In ordinary cases, therefore, no difficulty can arise upon this subject; but where there is an unbroken occupation extending through several parishes, and the profits arising from such occupancy are received in one or more of the several parishes, and not in due proportions in all, the respective claims of the several parishes for poor rates do not appear so susceptible of a satisfactory adjustment. Accordingly, the reports present many cases in which this question has arisen, upon the rating of canals, gas-works, &c. It was formerly holden that navigations and canals were rateable in those parishes only in which the tolls were payable; but it is now settled that these companies are rateable to the poor in every parish through which their canals or works pass, in proportion to the profits which the land occupied by them in such parish yields. Thus where a canal passed through several parishes, in which the tonnage dues varied, it was held that the company were rateable to the relief of the poor of each parish for the amount of tonnage dues

actually earned there, and not for part of the whole amount earned along the whole line of the canal, in proportion to the length of the canal in that parish. Rex v. Inhabitants of Kingswinford, 1 M. & R. 20; 7 B. & C. 236. In like manner, the main pipes of water-works are now holden to be rateable in the several parishes in which they are laid. Rex v. Mayor of Bath, 1 East, 609; Bott, cont. 91; Rex v. Rochdale W. W. Co., 1 M. & S. 634; Bott, cont. 106.

The cases on this subject, somewhat abridged, are as follows. It will be perceived that in some of them the question whether tolls are rateable, and in what manner they may become so, is also discussed and determined. Rex v. Inhabitants of Lower Mitton, 9 B. & C. 810. A canal company were authorised to receive a mileage toll for goods conveyed on the canal, and in lieu of the mileage duty, distinct tolls on every vessel passing through two locks in a certain part of the canal, were to be taken. Upon an appeal, the sessions were of opinion that the profits of the locks were not rateable in the parish in which they were situated only, but that they should be divided amongst all the parishes in proportion to the length of the canal in each parish, in the same manner as the general profits of the canal were divided. A case was granted; and after it had been argued,

Bayley, J., delivered the judgment of the Court. The question in this case is, whether the profits of the locks situated in Lower Mitton are rateable in all the parishes through which the canal runs, in proportion to the length of each parish, or not. The sessions were of opinion that they were, and we think that their decision was wrong. It is now fully established in Rex v. Milton, 3 B. & A. 112; Rex v. Palmer, 1 B. §. C. 546, that the proprietors of a canal or navigation are rateable as the occupiers of land, covered with water, in the particular parish in which the land lies; and it follows from thence, and it was so decided in Rex v. Kingswinford, 7 B. & C. 236, that they are rateable in each parish in proportion to the profit which that part of the land covered with water, which lies in the parish, produces. If it is more productive than other parts of the canal, either because there is more traffic, or because larger tolls are due upon it, or because the outgoings and expences there are less, it must be assessed at a higher proportionate value. It is, however, contended, that there is a distinction between the case of a canal or navigation and a lock; and that the lock is profitable, because it is supplied with water from the rest of the canal lying in other parishes. This argument, supposing it to be well founded, only proves that a part of the source of profit is derived from the other parishes in which the canal-lies, and that consequently a part only of the lockage dues ought to be ascribed to those parishes, for the dues are payable as well for the use of water derived from the Severn, as from the canal; and also for the use of the soil and fixed machinery of the locks; and therefore the rule adopted by the sessions, even according to the argument used by the respondents, was wrong. We are, however, of opinion, that there is no distinction as to the principle of its rateability, between a lock and a portion of a canal or river navigation; and, that whether the subject-matter of the occupation be productive of itself, or rendered productive by something brought from another parish, or by being used in conjunction with property in another parish, no difference is to be made in the mode of rating. Thus, whether the water in a canal be brought from the same parish or another parish, whether conveyed in pipes, or carts, or by engines, makes no difference, if the land in which it is placed be thereby rendered more valuable. It makes no difference whether it remains comparatively still, as in a canal, or moves constantly, as in a river, or occasionally, as in a lock; nor does it make any difference that unless there was a canal in another parish connected with the lock, no profit would be gained. It might as well be contended, that the profits of a bridge which would not arise unless there were roads to it, or of land rendered more valuable by roads in an adjoining parish, should be rated in part only in the parish in which such bridge or land is

situate.

Sixthly, Property, where to

be rated.

In parish where

property is.

Decisions as to able, and in what tolls being rate

proportion in each parish.

The order of sessions must therefore be quashed, and the sessions must The rule of raterate the company according to the annual profit or value which the subject ing.

Sixthly, Property, where to

be rated.

In parish where property is.

Tolls are not rateable per se, but contra, when mixed with a rate upon other property, which, as having substance and locality with in the parish, is properly rateable there.

of occupation within the parish produces. This, in general, would be properly estimated at the rent which a tenant would give, he paying the poorrates, and the expences of repairs, and the other annual expences necessary for making the subject of occupation productive, and a further deduction should be allowed from that rent, where the subject is of a perishable nature, towards the expence of renewing or reproducing it. This is the rule laid down in Rex v. the Duke of Bridgewater's Trustees, 9 B. & C. 68, and Rex v. Tomlinson, 9 B. & C. 162. It must therefore be referred back to the sessions, to adjust the rate upon this principle.

Rex v. Sir A. Macdonald and others, devisees in trust under the will of the late Duke of Bridgewater, 12 East, 324; Bott, Cont. 75; 1 Nol. P. L. 79, 80, 88, 129. On appeal against a poor rate made for the township of Manchester, the rate was confirmed, subject to the following case :—

The property in respect of which the appeal was made, was described in the assessment as the Rochdale canal, lock, tunnel, dues or rates; and certain warehouses were named; and the assessment was made upon Sir Archibald Macdonald (and others), trustees of the late Duke of Bridgewater. The appellants were not, at the time of making the assessment, inhabitants of Manchester, but were then and still are entitled to and in the receipt of the tonnage in respect of vessels passing through the lock built upon the Rochdale canal, under an act of the 34 Geo. III. The 2d sect. reciting, that "Whereas the Duke of Bridgewater hath expended a considerable sum in making wharfs for the convenience of the public, adjoining or near to his canal at Manchester, and when the proposed junction is made with his canal, the profits of the Duke of Bridgewater arising from his wharfs will be considerably diminished; he nevertheless consents to such junction on being authorised to build a lock upon the Rochdale canal, near the junction, and to collect certain rates hereinafter mentioned, as a compensation for such diminution in the profits of his wharfage ;" authorises the duke, &c., "at his or their own expence, to build a proper lock upon the said Rochdale canal, at or near Castle Field, &c.; and to take at the said lock for his and their own benefit, as a compensation, &c., the following rates, viz. (naming rates for goods carried from the Rochdale canal to the dock), which rates shall be payable, and paid at or near the said lock to the said duke, &c., and shall be collected by such person as the said duke, &c., shall by writing, &c., appoint to receive the same." The lock was built in pursuance of this act. The tonnage is of the amount charged in the assessment. The appellants did and do still occupy the lock and warehouses and wharfs mentioned therein; and they are of the value assessed. The case set forth that no inhabitants of Manchester or other persons were rated in respect of their personal property in the township. The proprietors of the Rochdale Canal Company were not rated for their locks upon the said canal situated within the township, or for the tonnage, tolls, duties, or rates arising from such locks, or otherwise, from the said canal within Manchester; this being provided for by an act of the 47 Geo. III.-After argument, per Lord Ellenborough, C. J. The question stands on the rateability of the property of the trustees. The case states that they are the occupiers of the lock, and of the several wharfs and warehouses mentioned in the rate; and it is not disputed that the property rated yields profit; but it is objected that they are rated for dues or rates, that is, for the tolls payable at the lock under the act of parliament; and that the Court have held tolls not to be rateable. But the Court have only said that tolls are not rateable, per se, but only when connected and rated conjunctively with real and substantial property, situated in the parish; which, as yielding profit there by means of the tolls, is the proper subject of rating within the act of Elizabeth. Now here the lock itself is rated, which is something real and substantial, locally situated in the township, and producing profit; and the addition of the dues or rates is merely giving other names for the same thing. These dues or rates are given by the act of parliament as a compensation to the Duke of Bridgewater, for the loss of his profits of certain wharfs adjoining to his canal at Manchester; which wharfs were before clearly rateable in respect of those profits: the rates, therefore, made payable at the lock were substituted as a

Sixthly, Property, where to

be ruted.

compensation for and in lieu of the wharfage before enjoyed: they are the substituted medium of profit arising, as the act describes, from those wharfs. The Court, therefore, by this decision, will not break in upon that which they have recently decided, that tolls per se, and when not mixed with a rate upon other property, which, as having substance and locality within the In parish where parish, is properly rateable there, are not liable to be rated. The other judges concurring, the rate and order of sessions were confirmed.

property is.

Rex v. Rebowe, 1 Bott, 142; 1 Nol. P. L. 86, 99, 215. Two light- The tolls of a houses were erected at Harwich by Sir I. R. by virtue of a patent, which light-house, also granted to him, for the maintenance thereof, certain tolls payable by all where rateable. ships coming into or passing by the harbour. Part of these tolls were collected by the defendant at Harwich, and the remainder in other parts of the kingdom. He did not reside in the parish, and was no occupier there, excepting by having two persons who lodged in one of the light-houses, to take care of them. He was rated to the light-houses, and the sessions confirmed the rate. The Court decided that the tolls were not rateable there, not being locally situated in the parish. According to what was stated in argument in the case of Rex v. Cardington, (a subsequent case,) the ground of decision was, that the vessels did not come within the parish, and therefore the tolls were not due there.

Note. In a MS. note of this case in the possession of Mr. Douglas, it is expressly stated that the Court observed, that it was not set forth in the case, that Rebowe was rated for the house, but only for the tolls. Doug. 118, n.; 1 Bott, 143.

Rex v. Tynemouth, 12 East, 46, Bott, Cont. 74; 1 Nol. P. L. 100, 177, 215. Upon an appeal of W. Fowke, Esq. against a rate for the relief of the poor of the township of Tynemouth, in the county of Northumberland, the sessions amended the rate by striking out Mr. F.'s name, and that of his servant R. W., subject to the opinion of the court upon two points; 1st, whether R. W. be rateable for two rooms in Tynemouth light-house? 2d, whether Mr. F. be rateable for the tolls in respect of the light-house? By certain letters patent of the 17 Car. II. and by the 42 Geo. III., Mr. F. is entitled to Tynemouth light-house, and certain tolls payable in respect of the same, for every ship passing by the light-house, and belonging or trading to the ports of Newcastle and Sunderland, or either of them, or the creeks or members of the same; and for certain tolls from every ship belonging to any foreigner or stranger coming or passing by the light-house. The light-house is in the parish of Tynemouth, the tolls are payable upon ships sailing on the German ocean, and benefited by it. They never come within the township of Tynemouth, and neither Mr. F. nor any of the receivers of the tolls or duties reside in the township of Tynemouth, and the tolls are collected out of it by a person appointed by Mr. F. R. W. is a servant of Mr. F. at an annual salary, and resides within the walls of the light-house, to take care of the lighthouse: and is rated for these two rooms, as occupier, at 61. And Mr. F. is rated for the tolls, in respect of the light-house, at750l. —Lord Ellenborough, C. J. It is no question now whether this property could be rated in some other way; as if the light-house, whose light is the meritorious cause of earning the tolls, were in consequence let at a larger rent; but this is a rate specially upon the tolls, and therefore the case is not distinguishable from Rex v. Rebowe, (supra), which is so immediately in specie, and in all its eircumstances the same, and has been so long considered and acted upon as law, that it concludes the question. What local property is there within the township on which this rate or the tolls can be levied? The tolls are not received there; nor do the ships from which they are collected come within the township; the subject-matter of the rate has no locality within this township. As to the other point, it is equally clear that it is the occupation of the master by his servant, and not the occupation of the servant himself, and therefore the rate on the servant is bad on that ground. Order of sessions confirmed.

Another attempt was made at a subsequent period, to rate the owner of this lighthouse for the profits which he derived from it; and Lord Ellenborough, on the former occasion, having observed, in giving judgment, "It is no question now whether this property could be rated in some other way, as

Sixthly, Pro

perty, where to

be rated.

In parish where property is.

Tolls taken by a corporation are rateable.

if the lighthouse, whose light is the meritorious cause of earning the tolls, were, in consequence, let at a larger rent;" the parish took care to rate Mr. Fourke as occupier of the lighthouse instead of his servant, and fixed the amount at 500l., it being stated in the case sent for the opinion of the Court of K. B. on this second occasion, that if the lighthouse should be let, together with the tolls, it would be worth 500l. a-year to be rented by a third person; but, if let without the tolls, it would be worth 61. a-year only. There were also these facts added,-that about a thirty-eighth part of the entire number of vessels paying tolls come within the township of Tynemouth, and receive their loading there. The tolls received in respect of such last-mentioned vessels, do not equal in amount the expence of maintaining the light and managing the lighthouse; the whole of which expences are incurred within the township of Tynemouth. No tolls from any ships whatever are received in the township of Tynemouth, nor do any of the collectors thereof, or Mr. Fowke, reside in that township.

It was contended, in support of the rate, that by the terms of the letters patent and of the act of parliament, it was apparent that the privilege of having the light was connected with the lighthouse itself, and that therefore the whole was rateable.

Bayley, J. The tolls do not arise from the building, nor from any thing of necessity connected with it, and this case, therefore, is not distinguishable from that of Rex v. Coke, (infra.) Here the act of parliament declares the lighthouse to be a public benefit, and it ought not to be burthened with an additional charge. The order of sessions was quashed, and the sessions were directed to amend and alter the rate by reducing the charge made and assessed, to 61. Rex v. W. Fowke, 5 B. & C. 814.

66

Rex v. Coke, 5 B. & C., 797; 8 D. & R. 666. In this case, a poor-rate was imposed upon a lighthouse, together with the duties and contribution money payable in respect of ships passing by the same," the annual value of the same being stated to be 2,2501. over and above the expence of keeping up the lighthouse and lights. The lighthouse was situated in the parish and occupied by a servant of the owner, but the duties were collected out of the parish. Held that these duties did not constitute part of the annual profits of the house or land where the light was placed, and were not rateable.

Bayley, J., after going through the cases cited in argument, and distinguishing them from the present, except Rex v. Rebowe and Rex v. Tynemouth, which were very similar, proceeded to observe-" Even if by the terms of the letters patent, it were imperative upon the grantee to burn his lights within this particular lighthouse, still, if the privilege is not given to him by reason of his being the occupier of that house, it would not be appurtenant to, but distinct from, the house where it was to be exercised; and the duties payable to him, in respect of the light, would be profits arising from the exercise of the privilege, and not from the house or land where it happens to be exercised."-Per Holroyd, J. Here the benefit for which the tolls are paid (which is an incorporeal hereditament) is not one of the things mentioned in the 43 Eliz., for it constitutes a benefit not received within the parish, but received by ships elsewhere, or not received at all if they pass in the day-time when no light is burning.-Per Littledale, J. To make tolls rateable, there must not only be a profit produced within the parish, but it must also arise from the use of the thing, and in respect of it. Here the ships have not that sort of use; they have merely a transient view of the light as they pass. They do not come within the lighthouse as they do within a dock: in that case they have the actual use and occupation of the dock. They not only do not come near the thing itself, which is the subject of profit, but they do not come within the parish. This is distinguishable from all the other cases where the tolls themselves have arisen în respect not only of what was produced in the parish, but from the actual use of the thing which was the subject of the rate. It was ordered that the rate be amended by striking out 2,250l., and inserting 47., the annual value of the house.

On a motion to confirm a tax laid by the justices on the toll of a corporation, Holt, C. J., said, That on a reference to him by both parties, he was of

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