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Fifthly, Il'hat 7. Mines. (a)

property is rate.

able, The words of the 43 Eliz. c. 2, s. 1, are “ coal mines." (a)

In Rer v. Cunningham and others, 6 East, 478; 1 Bott, 235; 1 Nol. P. L. 7. Mines. 147, a rate upon “ iron and coal mines” was quashed, because iron mines Iron mines not are not rateable to the poor, and therefore ought not to have been rated rateable. jointly with coal mines.

In the case of the Governor and Company for smelting down lead against Lead mines not Richardson and others, 3 Burr, 1341 ; 1 Bla. Rep. 389; 1 Bott, 137; 1

rateable. Nol. P. L. 148; a point was reserved before Mr. J. Bathurst at Carlisle assizes, 1761, which was thus : The defendant had distrained for the poor rate assessed on the occupiers of the lead mines lying in the parish of Alston ; upon which they brought this action. The case stated, that the plaintiffs were lessees from Greenwick Hospital ; that they worked the mine, but did not live in the parish of Alston ; that the profits of the hospital that year amounted to 1900l., but those to the plaintiffs, the lessees, were quite precarious and uncertain, and that some years they gained nothing ; that no lead mines had ever been assessed, except in an instance or two since making this distress.—By Lord Mansfield, C.J. The question is no more than this: Whether a lessee of lead mines, whereon no rent is reserved, other than a certain proportion of the ore to be raised, is rateable to the poor under the 43 Eliz. ? Now nothing can be clearer, than that these mines are not within the letter of the statute; for the legislature could never intend by the word coal mines to comprehend other species of mines. If they had meant to include them, they would either have enumerated them, or used the general word mines. So that the expression, coal mines, expressly excludes mines of any other sort, as much as if they have been excepted. And there

(a) Coal mines. The owner and oc- and cope (Rowls v. Gell, Cowp. 451 ; cupier of coal mines is rateable to the 1 Bott, 149), in tin mines, toll tin and poor, at the sum for which the mine farm tin (Rer v. St. Agnes, 3 T. R. 480; would let, subject to outgoings. The 1 Bott, 188; Rer v. St. Austell, 5 B. & A. lessee of coal mines is rateable for the 693 ; 1 D. & R. 351), or the like (see amount of royalty or rent which he pays, Rer v. Buptist Mill Company, 1 M. & S. and in neither case is any allowance to 612; Boit, cont. 101); although they be made for money expended in rendere receive by compromise from the tenants, ing the mines productive. The King v. not the ore itself, but the estimated value Attwood, 6 B. & C. 277. Coal mines of it in money (Rer v. St. Austell, supra); alone being expressed in the statute, it for here is a reservation of part of the has been holden that mines of other mi- thing demised, which operates, not as a nerals are not within it, and cannot be render, but as an exception out of the rated. Lead-smelting Company v. Riche demise. See Co. Lit. 47 a, 142 a. In ardson, 3 Burr. 1341; 1 Bla. Rep. the case of coal mines, the occupiers of 389; 1 Bott, 137. Consequently the them are liable to be rated for them as occupiers of a lead-mine (Idem), or iron- long as they continue to work them, mine (Rer v. Cunningham, 5 East, 478; whether they produce a profit or not ( Rer 1 Bott, 235), are not rateable for them, v. Parrott, 5 T. R. 593 ; Bott, 209); nor for an engine, erected for the purpose but they are not rateable for them before of drawing the water from an iron-stone they are worked and productive, (per mine, if used for no other purpose. Rer Lord Ellenborough, C. J., in Rer v. v. Bilston, 5 B. & C. 851 ; 8 D. & R. Bishop of Rochester, 12 East, 353), nor 734, S. C. ; nor are the landlords who after they cease to be worked. Rer v. let them to the occupier, liable to be rated Bedworth, 8 East, 387. Stone quarries for the money rent (Rer v. Bishop of or lime works—(Rer v. Alberbury, 1 East, Rochester, 12 East, 353; Rex v. Well- 534 ; 1 Bott, 223), slate works (Rer v. bank, 4 M. & S. 222), or rent in the Woodland, 2 East, 164 ; Bott, 228), smelted metal of the mides (Rer v. Earl a potter's clay pit (Rer v. Brown, 8 East, of Pomfret, 5 M. & S. 139), which they 528), and the like, are not considered in receive for them. But the owners of the nature of mines, but as land rendered mines are holden to be rateable for the additionally productive by a particular portion of the ore raised, which they re- mode of working it; and the occupiers ceive by agreement from those who work are rateable for it as such. in the mines : in lead mines called lot VOL. IV.

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7. Mines.

Fifthiy, I'hat was a very good ground of exempting them; as from the nature of working properly is rate- them they are liable to more hazard and expence than coal mines are. And able.

at that time, all copper, lead, and tin mines, in Derbyshire, Cornuall, and Mendip in Somersetshire (which are the only counties where works of that kind were then established), were governed by particular laws; whereby any stranger, conforming to the ceremonies thereby required, was at liberty to work those mines, without any reward to the owner of the soil. And as all these undertakings were attended with infinite hazard and expence, and often ruined the projectors, it is no improbable conjecture, that the legislature meant, for this reason, and in order to encourage them to proceed in undertakings of this public utility, to exempt them from any other burthen or imposition than those that the miners' law had imposed. Indeed, if a man has taken a lease of land, with privilege to dig for mines, he may be rated for the land : But that is not the present case. And where the legislature have not imposed a tax, this Court cannot do it by construction. For example, the fees of a physician or lawyer are not made liable by the act, and, therefore, cannot be rated.—Mr. J. Denison was of the same opinion.—By Mr. J. Wilmot. Another thing which convinces me that the legislature meant only to include coal mines is, that in stat. 31 Eliz. c. 7, concerning cottages, they have used the words coal mines and all other mineral works ; which plainly shews, they never understood that coal mines would comprehend other sorts

of mines. The lessee of a Rowls v. Gell, Coup. 451; 1 Bott, 149; 1 Nol. P. L. 90, 98, 148. The lead mine under

plaintiff Rowls was lessee under the crown of all lead mines with their
the crown, with
the lot and cope, appurtenances, within the soke and wapentake of Wirksworth, with the lot
is rateable in re- or cope within the said soke and wapentake, and was assessed for the same,
spect of the lot
and cope.

as for an estate of 5001. a-year. The duty of lot payable to the plaintiff, as
lessee of the crown, is the thirteenth dish or measure of lead ore, got,
dressed, and made merchantable, at all the lead mines within the said soke
and wapentake; and cope is sixpence for every load or nine dishes of lead
ore raised at such mines. These duties are paid to and received by the
plaintiff, without any risk or expence in working the mines, and in that
year wherein they were assessed, amounted to the clear sum of 500l.: but
they are uncertain, and vary every year. All persons have a right to dig for
and get lead ore in the said soke and wapentake, conforming to the custom
there: and the miners are entitled to a certain quantity of land above and
on each side of such mine.—Lord Mansfield, c. J., delivered the resolution
of the Court. The poor rate is not a tax on the land, but a personal charge
by reason of the annual profits which the lessee of the crown receives out of
the land, and which is not charged at all before to the poor. In general,
the farmer or occupier of land, and not the landlord, is liable to this tas.
For it arises by reason of the land in the parish, and the landlord is never
assessed for his rent, because that would be a double assessment, as his lessee
had paid before. Lead mines are not within the statute of 43 Eliz. They
are in themselves uncertain, and may prove unsuccessful to the adventurers.
Taxes, therefore, upon the adventurers would be hard, and they are there-
fore excused. But he, who in case they do prove of value, receives a stipu-
lated benefit from the profit or value of them, is not excusable on the same
ground; and therefore is expressly charged to the land-tax, as that falls upon
the landlord. He is alike liable to the poor rate for his visible real property
in the parish ; though, where the poor tax is a charge on the lessee, the
landlord doth not pay in respect of his rent. Where the adventurer or
lessee of the mine pays nothing, it is no double tax in any light; because
the lord pays, not for that which the lessee or adventurer is excused from
paying for, but the lord

for his own. It is not a mere casual profit, but an annual revenue, if any; and very different from the casual profits of a manor, which are not annual; for there may be none for years. But if the mine produces profit to the miner, the lord's share is certain, annual, and an annual rent is paid for it constantly. The miner is obliged to pay certain proportions to the owner of the land. What reason then is there to exempt these proportionable revenues ? It makes no difference to the adventurer; it doth not prejudice or benefit him. But as such obligatory

pays

1

payment is in respect to the land, the land-owner ought not to receive it Fifthly, I'lat clearer or neater than any other part of his estate, when he is at no trouble, property is rateexpence, or possible risk. Therefore, we are all of opinion that the plaintiff able. is liable to be rated for this property. Note.-In the above case of Rowls v. Gell, the crown lessee was, as it

7. Mines. were, the landlord to the miners; which observation will perhaps tend to shew the difference between it and the next succeeding case.

Rer v. Parrott and others, 5 T. R. 593; 1 Bott, 209; 1 Nol. P. L 183. The lessee of a The appellants are lessees of some coal mines at Exhall, in Warwickshire, able, although he and appealed to the sessions against a poor rate, which was there confirmed, derive no profit subject to the opinion of this court on the following case: The appellants KB There was a are in possession of the colliery for which they are rated under a lease from prospective adMessrs. Arnold and Farmer, by which they were bound to work the colliery, vantage to be oband to pay a sixth part of the money produced by the sale of the coals got see, independentthere, without any deduction on account of the expence of working; it was ly or preseut proproved that upon an average of the last three years, the appellants paid

fits. 30011. 15s. 7{d. as a sixth part of the produce of the coals sold, and that they lost two farthings and half a farthing on every ton of coals sold. That the colliery always was and still is a losing adventure from the first of their taking it; and that they must have known it at the time they took it, and their inducement for taking it was, that when they had worked out the coal in this colliery, they would be able to get at coal of their own, which was adjoining; and that this was a cheaper way of getting at it than any other which they could have adopted. Lord Kenym, C. J. It is said, that this burthen is to be laid where the benefit arises; but that rule cannot hold in a variety of instances that might be put. Suppose a landlord makes so hard a bargain with his tenant, that the latter derives no benefit from the farm, must not the tenant be rated to the poor? The landlord certainly is not liable. This case differs from that of Rowls v. Gell, (ante, p. 72), in this respect; that was the case of lead mines, which are not rateable under the statute of Eliz., and there the question was, Whether or not the lessee were rateable for certain annual profits which he received without any risk on his part? Of the decision in that case it is not necessary for me to say any thing at present: I will form my opinion upon that question when it arises again. But here the property is rateable under the express words of 43 Eliz. c. 2. It appears in the case that there has been a clear profit of 10001. 3-year since the lease was granted; and the question is, Whether the appellants, who are occupiers of these mines, which it is admitted are rateable property, are or are not liable to be rated in respect of this property ?. Their objection is, that they have made an unprofitable bargain with the lessors; but we cannot examine into that; it being sufficient to make them liable, that they are the occupiers of rateable property.

Order of sessions confirmed.

Rex v. Bedworth, 8 East, 387; 1 Nol. P. L. 184. J. W. was assessed Coal mine ceasing for a colliery, as of the annual value of 2001., at 5l. : he appealed against is not rateable. the rate. The sessions struck out of the rate the assessment, and stated in a special case, that the colliery was demised for a term of years to W., at 2001. annual rent, whether coal should be gotten or not: and that the coals were totally exhausted, and the mines ceased to be worked. In the argument, the case of Rex v. Parrott (supra) was referred to; in which, though the lessees of a coal mine worked it at a loss to themselves, after paying their rent, they were still liable to be rated. Per Lord Ellenborough, C. J. In that case the subject-matter itself was profitable, and produced value to the owner, though the immediate occupiers derived no profit from it. But bere the mine itself is exhausted, the subject-matter of profit is gone, although the rent, which was no doubt calculated upon the probable average produce of the whole term, be still payable. But, with respect to the parish, he is only rateable for the concurrent annual value during the period for which the rate is made; and when the thing which he occupies no longer affords any such concurrent value, the subject matter of the rating is gone. Rex v. St. Agnes, 3 T. R. 480; 1 Bott, 188; 1 Nol, P. L. 91, 92. Two

Toll tin and farm dues are rateable. 7. Mines.

Fifihly, H’hat occupiers of rateable property in the parish of St. Agnes, appealed against property is rute- the poor rate, because J. P. Andreus, trustee of J. Enys, a minor, was able. omitted to be rated for the fee farms of tin arising out of his premises in

St. Agnes. And also because N. Donnithorne was omitted to be rated for toll tin raised in the parish of St. Agnes, and to which they are entitled. The rate was quashed at the sessions, subject to the opinion of the court on the following case :-J. P. Andreus, as trustee of J. Enys, is entitled to a certain dish or measure arising out of certain lands and tin bounds in St. Aynes, called toll and farm tin; which toll is one-fifteenth part of all the tin gotten in the lands of J. Enys, within the parish of St. Agnes ; and which said farm tin or due is one-twelfth part, after the said fifteenth part is deducted, for toll of all such tin so gotien within the tin bounds in the parish; and which said dues or duties are due and payable by the laws and customs of the Stannaries of Cornwall, free and clear of all risk and deductions whatsoever ; but they are uncertain, and vary every year; yet for many years last past have produced a considerable sum annually. And N. Donnithorne is entitled to a certain dish or measure called toll tin or dues, arising out of certain lands in St. Agnes, and due and payable in the manner before stated, and which toll varies, is uncertain, but also produces a considerable sum ann

nnually.--Morris moved, that this case might be sent down to the sessions, in order that Andrews and Donnithorne should be made parties to it. For though it was held in Rex v. Maddern, that rate might be quashed on an objection similar to the present, without giving notice to the party whose name was omitted; yet in this instance the parties below had colluded together, and had consented that the rate should be quashed, subject to the opinion of this court whether Andrews and Donnithorne ought to be rated on the statement of a cise on which they had not been heard. But refused by the Court-Lord Kenyon, C. J., said he approved of the cases of Rouls v. Gell and Rex v. Maddern, though these two persons would not be precluded from objecting to their being charged in any future rate on any ground they might think proper. But they were not parties to this case, and could not make any objection to the order of sessions. Order of sessions confirmed.

Rex v. The Bishop of Rochester and others, trustees, &c., 12 East, 353 ; sident within the 1 Nol. P. L. 94. The trustees appealed to the sessions against a poor's rate parish, having

made for the parish of Hunstonuorth, in the county of Durham, in which

they, being lessors as after-mentioned, were rated in the sum of 501., being rals, with liberty one moiety of the certain rent of 1001. reserved by the said lease. The to the tenants to dig, &c., resery.

sessions confirmed the rate, subject to the opinion of this court on a case, ing a certain an- which set forth the lease under which the rent was reserved. This was an nual rent, and also certain pro

indenture of lease, dated the 30th of May, 1805, and made between the portions of the Bishop of Rochester and the other trustees of the one part, and A. Surtees ore which should and others of the other part; whereby the trustees demised to the lessees be raised, are at any rate not as.

“ all the mines, veins, &c., parcels, and wastes of lead ore and other minesessable to the rals and fossils, and also all the seams of coal then open or discovered, or relief of the poor which should or might, during the time therein mentioned, be opened or rent, on ore being discovered, within, under, or upon the township lands called Nuckton, in raised; whatever the parish of Hunstonworth, and within certain other lands therein menthe question might be as to

tioned; together with full liberty and authority for the lessees to dig and the proportion of search for pits, &c., under any of the said lands, for getting all the lead ore reserved, when in fact any

ore, minerals, and coals, in or upon the said mining grounds:" with other should be raised. powers for the erection of machinery and other buildings on the mining

grounds, and for facilitating the working of the mines as therein mentioned : “ to hold the demised premises to the lessees for the term of 21 years, yielding and paying therefore, yearly, during the said térm, unto the said lessors, their heirs, &c., for and in respect of the said lead ore and other minerals, the clear yearly rent or sum of 1001.,” payable half yearly. There were also reserved, by way of rent, certain proportions of such lead ore as should be gotten from and out of the said mining grounds. There was also a separate rent reserved for the coals, when wrought, and a rent for damages done to the ground tenants. The lessees were bound to pay all manner of taxes, rates, assessments, and impositions whatsoever, parlia

Landlords not re.

leased lead mines and other mine

mentary or parochial, already or thereafter to be taxed on the demised Fifthly, What premises, or on the lead ore, or other minerals, coals, or fossils, gotten property is ratethereout, or on the lessors or lessees in respect thereof. The case also

able. stated, that no coal mines had been wrought within the grounds mentioned

7. Mines. in the lease. That the lessees had other lead mines in the neighbourhood, but had gotten no ore from under the grounds of the lessors mentioned in the lease, and consequently no proportion of lead ore had been rendered or become due to the lessors. The lessors stood rated in 50l. being a moiety of the certain rent of 100l. reserved by the lease, and which was deemed a fair proportion for that part of the mining ground which is in the parish of Hunstonuorth; and the lessors, if liable at all, did not object to the fairness of the appointment. The rate was in the following form : “ Lord Crewe's trustees for certain annual rent paid them by Easterby, Hall, and Co. for the liberty of opening the mines within their lands, spoil of ground, &c., 501.-Rate 8l. 15s.” None of the lessors reside or have any dwelling house in the parish of Hunstonworth. The lessees were not rated to the relief of the poor in respect of the demised mines. After argument; per Lord Ellenborough, c. J. The trustees can only be rated as inhabitants or as occupiers within the parish. We have so recently (a) put a construction upon the word inhabitant in the statute of Elizabeth, as meaning a residence within the parish, that it is unnecessary to discuss the matter again ; and the fact of such inhabitancy is negatived by the case. Neither are they occupiers of the property for which they are rated : so far from it, that they cannot maintain trespass for any injury done to property which they are supposed to occupy: and even if they were the actual occupiers of coal mines, they would not be rateable for them before they were worked and productive (6). But this is no more than a contract with tenants for the payment of a certain rent for ores supposed to lie under the surface; and if the tenants should open the ground and raise the ore, reserving a certain proportion of ore to the ground landlords ; there is no occupation of any thing within the statute. If hereafter the tenants should open the ground and raise the ore, the trustees will then be entitled to certain proportions, and such profits may come within a different rule, as lot and cope : upon which no question at present arises.- Grose, and Bayley, Js., agreed. —Le Blanc, J. "If the trustees were rateable at all, it must be as occupiers of the mines, or some proportion of them : but here they are rated as for a rent eo nomine, for which, if they were rateable, every landlord might by the same rule be rated for his rent. Order quashed.

Rex v. Baptist Mill Company, 1 M. & S. 612; Bott, 232. The defen- The lessees under dants were rated to the relief of the poor of the parish of Rowberrow, in the the lord of the county of Somerset, for “ lot, toll, and free share of the calamine, and for free share of all calamine yard and barn ;-amount 91." against which they appealed, when calamine raised the sessions amended the rate by expunging “ the calamine yard and barn,” and assessing the “ lot, toll,' and free share of the calamine to be rated to the at 8l. 138. 2d., subject to the following case :—The defendants were poor, as occupiers lessees of a lot, toll, or free share of all calamine, or lapis calaminaris, parish where the raised within the manor of Rowberrow, in the parish of Rowberrow, in the manor lies, none proportion of one part in four; they are not, nor were at the time of making resident in the the rate, in the occupation of any land or buildings whatsoever within the parish. parish of Rowberrow, unless the court shall be of opinion, as the sessions were, that the lot, toll, and free share above mentioned, are to be considered as land; all the lessees reside in Bristol ; they run no risk, nor incur any expence whatever, and have, since the commencement of the lease, received a quantity of calamine, of considerable value as the lord's lot, toll, or free share.-C. F. Williams, and W. G. Adam, in support of the order of sessions, cited Lord Bute v. Grindall, 2 H. Blacks. 266; Rowls v. Gells, Cowper, 451; and Rex

manor, are liable

(a) Rer v. Nicholson, 12 Eust, 330; longer worked, was held not liable to be and Williams v. Jones, 12 East, 346. rated for it, though he was still bound

(6) See Rer v. Bedworth, 8 Eust, 387, by his covenant to pay the rent reserved where the lessee of a coal mine, which, to his landlord. Anté, p. 73. having ceased to be productive, was no

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