Landlords not resident within the parish, having leased lead mines and other mine rals, with liberty to the tenants to dig, &c., reserving a certain annual rent, and also certain proportions of the be raised, are at any rate not assessable to the for such certain occupiers of rateable property in the parish of St. Agnes, appealed against the poor rate, because J. P. Andrews, trustee of J. Enys, a minor, was 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. Andrews, as trustee of J. Enys, is entitled to a certain dish or measure arising out of certain lands and tin bounds in St. Agnes, 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 gotten 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, and is uncertain, but also produces a considerable sum annually.--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 a 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 case on which they had not been heard. But refused by the Court-Lord Kenyon, C, J., said he approved of the cases of Rowls 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; 1 Nol. P. L. 94. The trustees appealed to the sessions against a poor's rate made for the parish of Hunstonworth, in the county of Durham, in which they, being lessors as after-mentioned, were rated in the sum of 501., being one moiety of the certain rent of 1001. reserved by the said lease. The sessions confirmed the rate, subject to the opinion of this court on a case, which set forth the lease under which the rent was reserved. This was an indenture of lease, dated the 30th of May, 1805, and made between 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 "all the mines, veins, &c., parcels, and wastes of lead ore and other minerals and fossils, and also all the seams of coal then open or discovered, or which should or might, during the time therein mentioned, be opened or discovered, within, under, or upon the township lands called Nuckton, in the parish of Hunstonworth, and within certain other lands therein mentioned; together with full liberty and authority for the lessees to dig and search for pits, &c., under any of the said lands, for getting all the lead ore, minerals, and coals, in or upon the said mining grounds:" with other 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 term, 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 100l.," 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 relief of the poor rent, on ore being raised; whatever the question might be as to the proportion of ore reserved, when in fact any should be raised. able. 7. Mines. 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 stated, that no coal mines had been wrought within the grounds mentioned 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 1001. reserved by the lease, and which was deemed a fair proportion for that part of the mining ground which is in the parish of Hunstonworth; 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 (b). 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 defendants were rated to the relief of the poor of the parish of Rowberrow, in the county of Somerset, for “lot, toll, and free share of the calamine, and for calamine yard and barn ;-amount 91." against which they appealed, when the sessions amended the rate by expunging "the calamine yard and barn," and assessing the "lot, toll, and free share of the calamine at 81. 13s. 2d., subject to the following case:-The defendants were lessees of a lot, toll, or free share of all calamine, or lapis calaminaris, raised within the manor of Rowberrow, in the parish of Rowberrow, in the proportion of one part in four; they are not, nor were at the time of making the rate, in the occupation of any land or buildings whatsoever within the 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 (a) Rex v. Nicholson, 12 East, 330; and Williams v. Jones, 12 East, 346. (b) See Rex v. Bedworth, 8 East, 387, where the lessee of a coal mine, which, having ceased to be productive, was no longer worked, was held not liable to be The lessees under the lord of the free share of all calamine raised manor of lot and within the to be rated to the poor, as occupiers parish where the manor lies; none resident in the parish. of land in the of them being v. St. Agnes, 3 T. R. 480.-Lord Ellenborough, C. J., said, If these lessees of lot, toll, and free share are rateable at all, it appears to me they must be rateable as for property falling under the description of land. There appears to me to be a demise of a specific portion of the produce of the land, or in other words, land itself, free from risk or uncertainty; it is by the express terms of the finding stated to be an interest without risk. We might, otherwise, have been pressed with the question, whether the naming coal mines in the statute, was, according to the rule, expressio unius exclusio alterius, to all intents an exclusion of other mines; or was only put for example, as the naming a class in the statute of circumspecte agatis (2 Inst. 487): for certainly the judges who have held it to amount to the exclusion of other mines, have generally coupled it with this reason, that other mines are subject to risk. Now here the portion of calamine is divested of risk; it is the clear profit to which the lord is entitled, independent of any contingency; the whole is raised by the labour of the adventurer, and, when raised, the lord may be considered as working with the adventurers by the hands of the labourers; but, when raised, the lord's share redounds to him. That constitutes land, and may be fairly construed as such within the meaning of this statute. The case of Rowls v. Gells, (ante, p. 72,) and the other cases, do not admit of any distinction comprehending this case. This is not merely a demise of a personal chattel, of the ore after it is gotten, but of the ore which is to be gotten, and which is part of the solid mass of the land; therefore, under that description, it is assessable in the hands of the occupier.-Le Blanc, J. I concur in opinion with my lord, that this property is rateable to the poor. In Rowls v. Gells, and Rex v. St. Agnes, (ante, p. 73), the rate was confined to the person in respect to the toll-dish of lead and tin raised; here the owner of the land is entitled to a certain portion of the ore when raised, which he lets, or allows persons to stand in his place as to that share; and we will not enquire whether this were a legal demise, for he authorises them to receive, and they do receive it. They stand, therefore, in the situation of the lessee in Rowls v. Gells, and the person entitled in Rex v. St. Agnes. But subsequent cases have been cited, in which it is supposed that the authority of Rowls v. Gells and Rex v. St. Agnes, has been disturbed; which supposition is only raised by laying hold of particular expressions of the court to be found there. The cases of Williams v. Jones, and Rex v. Nicholson, are totally different; for those were the profits of a ferry, arising out of a right to convey passengers over a river: it was impossible in those cases to say that the persons were occupiers of any thing but the boat and tackle in which the passengers were conveyed, in the same manner as a stage-coachman is the owner of his coach; it was therefore impossible to make the doctrine of Rowls v. Gells bear on those cases. Viewing all the cases on the subject, and the principle upon which Rowls v. Gells was decided, and likewise the public convenience, as it regards this species of property, and not seeing that the original construction on the words, occupier of land, may not comprehend a person so far an occupier as to receive a portion of the land discharged of any risk, I cannot say that this company is not rateable.—Bayley, J. I am of the same opinion. I cannot distinguish this from the case of granting a share in the land, which is not co-extensive with the entire interest. It is not doing any violence to this lease to consider the lessees under it as occupiers of land. I lay out of consideration all the cases in which it has been holden that adventurers are not liable. Order of sesssions confirmed. Rex v. The Inhab. of St. Austell, 5 B. & A. 693; 1 D. & Ryl. 351 ; 1 Nol. T. C. esquire, for Crinnis Copper Dues. Amount taken at two-fifths Assessment at 3s. in the pound £4080 0 0 1632 0 0 244 16 0 The sessions amended the rate by striking out this assessment, and stated the following case :-Mr. Carlyon, at the time of making the rate, was not money, an inhabitant of St. Austell, nor the occupier of any land, house, or other able. 7. Mines. Fifthly, What were calcined or smelted, been sold or disposed of by the adventurers, property is rate- sometimes by public, and sometimes by private sale, as and when they thought fit, without any controul or interference by, or on the part of the said Thomas Carlyon. No part of the ores raised had ever been rendered to Carlyon in kind; but in lieu thereof, one-eighth part of the money, from time to time arising from the sales of the ores, had been hitherto paid to him in pursuance of the said indenture. He had been, from time to time, rated and assessed towards the relief of the poor of the parish of St. Austell, in respect of such one-eighth part of the money so arising as aforesaid, and had paid the several assessments up to the making of the rate appealed against. In support of the order of sessions, many cases were cited.Abbott, C. J. I am of opinion that, in this case, Mr. Carlyon is liable to be rated for the dues in question. I am unable to distinguish this case from Rowls v. Gell, (ante, 72), and Rex. v. The Baptist Mill Company, (ante, 75), and I think, therefore, that we ought to decide conformably to those authorities. Notwithstanding all that has been urged upon this subject, I cannot distinguish between the cases where a party takes an interest under a specific contract, as in this case, and where the adventurers work under a custom previously existing throughout a district. The case is distinguishable from the case of The King v. The Earl of Pomfret, 5 M. & S. 139, (post, 79), in two respects; first, because there was an actual demise in that case of all the mines, under which the possession, both of that part which was worked and that which was not worked, passed to the lessees; but here there is an express reservation of part. In the second place, the share reserved to the lord, in The King v. Earl of Pomfret, was of smelted lead; but here the reservation is of part of the native mineral. On these grounds, it seems to me that we ought to decide in favour of the rate; and I do that with the less reluctance, because it is still open to the party to institute an action against the person who may levy for the rate, and so to bring the question before a higher tribunal. Bayley, J. We ought to lay out of the question the circumstance of this being a failing mine. For it is a beneficial and useful property to the person on whom this rate has been made; and it was held in Rex v. Parrott, 5 T. R. 593, that a coal mine, whether profitable or not, is still rateable. In Rowls v. Gell it was first decided, that a party was rateable for lot and cope. It is said, indeed, that the party rated there was a lessee. That distinction makes no difference, for if the lot and cope had not been rateable in the hands of the original proprietor, it would not have been so in the hands of his lessee. The true ground of that decision was, that the party was there considered as an occupier of the land. Rex v. St. Agnes, (ante, 73), proceeded on the same ground; and in Rex v. The Baptist Mill Company, (at the time of which decision this court were peculiarly familiar with the words of the act of parliament,) it was determined, that the lessees under the lord of the manor of his lot and free share of calamine were liable to be rated as occupiers of land; and the decision went on the ground, that the lord of the manor would, but for the lease, have been rateable for it also, for the court considered him as occupying the land by the hands of the adventurers. The latter were to work the mine, and he was to receive part of the ore gotten, and the court considered him as joint occupier with them. In Rex v. The Bishop of Rochester, (ante, 74), the mine was let; and whether it was worked or not, still the bishop was completely out of possession of it, and the adventurers worked for their own exclusive profit. There, the rent reserved was a money-rent, and the relation between the parties to the contract was that of landlord and tenant, and all that the bishop of Rochester had was the reversion of the land. But, in this case, the adventurers have not the sole and exclusive occupation of the mine; they have only the sole and exclusive privilege of working it. It seems to me, therefore, that, according to the authorities to which I have referred, Mr. Carlyon must, in this case, be considered as the occupier of land; and, therefore, that he is liable to the present rate.-Holroyd, J. In the view I have taken of this case, I entirely agree with the rest of the court. The case of Rowls v. Gell, although it was doubted by Lord Kenyon in Rex v. Parrott, seems to me to have been well decided. It was confirmed by Rex |