v. The Baptist Mill Company, from which I cannot distinguish this case. -Best, J. If it were true that we must either overrule Rex v. The Baptist Mill Company, and the cases confirming that decision, or the case of Rex v. The Earl of Pomfret, I should be inclined to support the former. But it is not necessary, inasmuch as there is a material distinction between them. Here it seems to me to be clear, that Mr. Carlyon is an occupier of land. All that the adventurers take under the indenture, is a license to enter and dig and take away the minerals. But when they have so done, and the minerals are brought to grass, a division of the ore between them and the landlord takes place. This, then, is the same as if, instead of working for wages, they worked on condition of being paid by a certain share of the produce. Order of sessions quashed.

Rex v. Welbank & Others, 4 M. & S. 222. Upon an appeal against a poor's rate for the township of Arkengarthdale, in the N. R. of Yorkshire, by the defendants, as trustees under the will of G. Browne, the sessions confirmed the rate, subject to the following case. The defendants were rated thus: The trustees under the will of G. Browne for 20007., annual rent paid by the Arkengarthdale and Derwent Mine Company, for and in respect of two-thirds of the Arkengarthdale lead mines, andf or other minerals and fossils, (except coal), within the parish of Arkengarthdale, and also in respect of their being owners, proprietors, and occupiers, of the moors, commons, and wastes within the manor of Arkengarthdale. Amount 20001. Assessment 1501., (being 1s. 6d. in the pound.) J. Williams, in support of the rate, compared this case to the case of tolls, in which it had been adjudged, that though the tolls per se were not rateable, yet if they be annexed to something corporeal, such as a sluice or bridge, &c., which is rateable, the occupier of such bridge or sluice, &c., shall be rated in respect to the tolls. Here the trustees are rated as the occupiers of the moors, commons, and wastes under which the mines, in respect of the profits of which they are assessed, lie, so that they have a corporeal visible property within the parish, the value of which is enhanced by the annexation of these profits. And whenever that is the case, the principal thing shall be rated according to its value, as it is increased by the thing appendant to it, although the latter would not of itself be the subject of rate.-Lord Ellenborough, C. J. This rate appears to be ill on this single ground, that it is a conjoint rate in respect of two things, one of which is not rateable. The rent is clearly not the subject of rate, the other may or may not be. But it cannot be good as a conjoint rate. Le Blanc, J. If these trustees had been rated in a large sum in respect of their being the owners and occupiers of the moors, commons, and wastes, equal to the profits they derive from the mines, perhaps the Court might have said, we will not enter into the question of proportion; but here the rate is imposed in respect of two distinct properties, namely, the rent, and the surface of the land.-Order of sessions quashed.

Rex v. Earl of Pomfret and others, 5 M. & S. 139. A rate was imposed upon P., owner of the lead ore in certain lead mines, in respect to the dutylead reserved in a lease of said mines, being one-fifth share of the lead to be smelted from the ore raised from said mines. The case was elaborately argued by Richardson and J. Williams, in support of the rate, who relied upon Rowle v. Gells, Rex v. St. Agnes, and R. v. The Baptist Mill Company; and by Scarlett, Tindal, and Gillbee contra. The Court took time to consider.-Lord Ellenborough, C. J., in delivering judgment, said, We are of opinion that the present case is substantially different from all the cases cited, and that a decision against the present rate will not break in upon the principle, or overturn the authority of any one of those cases. In the present case, the rights of the parties rated, who are the appellants, and those of the persons by whom the mines are worked, depend upon the terms of a written contract, a lease; by the terms whereof the appellants have demised to others the whole of their mines and veins of lead and lead ore: and therefore they cannot be said to be the occupiers of any part, unless the render or reservation of one-fifth part of the lead to be smelted from the ore raised from the mines, can operate as an exception of a portion of the mines, or of the ore raised from them. A reservation of a part of

able.

7. Mines.

Fifthly, What the thing demised cannot properly operate as a render, and it may be property is rate- admitted that it operates as an exception. See Co. Litt. 47 a, 142 a. But this is not a reservation of any part of the thing demised-it is not a reservation of any part of the ore, or of the mineral, in its natural and primitive state; but of something of a quality, name, and character, entirely different; of a metal, produced from that mineral, by the laborious and expensive process of smelting, in which the native mineral is mixed with another matter, viz. with coal or charcoal; and by the effect of fire upon both, a metal is obtained, which is to be considered, for this purpose at least, as entirely different from either of the two, and rather as a manufacture of art and labour, resulting from the use and application of those materials, than the original earth itself. This lease puts the parties unequivocally in the character of landlords and tenants. The reasons upon which the Court relied in The King v. The Baptist Mill Company, do not apply to this case: but it is brought substantially within the principle of the case of The King v. The Bishop of Rochester, 12 East, 353. For these reasons, we are of opinion, that the appellants were not liable to be rated for the lead rendered to them under the lease, and consequently that the order of sessions must be quashed, and the rate amended by striking out this part of it. [See Rex v. St. Austell, ante, 76.]

Lime works are rateable in the hands of the occupier.

Slate works, pot

Rex v. Alberbury, 1 East, 534; 1 Bott, 223. An appeal was made against a rate, and the rate was amended by the sessions by adding the names of certain persons as joint occupiers of certain lime works. The risk of working the limestone was stated to be great, and it was also stated that they paid a certain sum per annum as a royalty to the proprietors of the quarry. And the question for the court was, the rateability of these persons for these lime works.-Lord Kenyon, C. J. The only question is, whether the persons named in the rate are rateable in respect of that species of property? The landlords, who derive a certain profit upon it in the nature of rent, could not have been rated, because that would be to rate the subject-matter twice. But what possible objection can there be to the rate upon the occupiers ? There is no pretence to call this a mine. But the land itself is convertible into a source of profit; said, indeed, to be uncertain, but it is well known to be productive: and the very statement of the case shows it to be so. And as to the quantum, that must be settled by the sessions.

It is not every excavation of the earth which is a mine; and, therefore, ter's claypits, &c. stone-quarries, lime-works, (Rex v. Alberbury, 1 East, 534; 1 Bott, 223,) slate-works, (Rex v. Woodland, 2 East 164; 1 Bott, 228,) a potter's claypit, (Rex v. Brown, 8 East, 528,) and the like, are not considered in the nature of mines, or rateable as such; but are considered merely as land rendered additionally productive by a particular mode of working it, and the occupiers are rateable, in respect thereof, accordingly. Steer's Pur. L. 413.

8. Saleable underwoods. When saleable

underwoods are rateable.

8. Woods.

[The words of the 43 Eliz. c. 2, s. 1, are" saleable underwoods."]

Rex v. Mirfield, 10 East, 219; 1 Bott, Cont. 68; 1 Nol. P. L. 152, 153, 230. The sessions quashed a rate upon appeal, and stated that the woods which were the subject of the rate were underwoods, which were usually cut down once in 21 years, and then, and not before, were profitable to the appellant. That these underwoods were then standing to complete the 21 years' growth. And the question was, whether these woods were saleable underwoods within stat. 43 Eliz. c, 2, and liable to be rated every year, according to the annual average, or only when cut down and sold ?—Lord Ellenborough, C. J., delivered the opinion of the court, after consideration, that saleable means such as are intended for sale, in contradistinction to such as are to supply the land with estovers for fuel, and other purposes of the estate; and are, therefore, rateable at all times, according to their value, in exact proportion with the rest of the property in the parish. The objection to this is, that the property ought not to be rated until the produce of it has been severed from the land, and until it has supplied the occupier with the means of paying. But it is not necessary that any of the profits

should have been actually reaped or taken from the property during the period for which the rate is made; but the property is at all times rateable according to the improvement in its value, or in the rent which might fairly be expected from it. The property of these underwoods is at all times liable to be rated whenever rates are made. Rate confirmed.

Rex v. Inh. of Ferrybridge,2 D. & Ryl. 634 ; 1 B. § C. 375. Upon an appeal of R. R. Milnes, Esq., against a rate made for the relief of the poor of the township of Ferrybridge, in the W. R. of Yorkshire, the sessions ordered the rate to be amended by striking out a portion of the rate assessed upon the appellant, amounting to 167. 16s. 10d. in respect of his woods and plantations, subject to the opinion of the Court of K. B. on the following case. The appellant is the occupier of 650 acres of land in Ferrybridge. It appeared in evidence, that in the years 1785 and 1786, 340 acres of the said land were planted with oak and ash closely intermixed with Scotch firs and larches. At different periods, portions of the firs and larches were cut down for the purpose of thinning the plantations, and some of these thinnings were sold under the name of fir and larch poles, but the greater part were used in the erection of buildings. Considerable thinnings of the firs and larches have been made within the last four years, and produced a profit; many of them were of the height of from 30 to 40 feet, and contain from 10 to 12 cubic feet of wood, and were 30 years old. This wood is cut without reference to size, in order to allow room for the ashes and oaks to spread. The purpose of introducing firs and larches into those plantations, being to keep the same thick and sheltered, and to make a profit by cutting the firs and larches from time to time, when the oaks and ashes by reason of their growth require more space. Fifteen years ago, 18 other acres of the said land were planted in a like manner; and five years ago, 17 other acres of the said land were also planted in a like manner. The 18 acres have been thinned by cutting out a portion of the firs and larches, but no profit was derived by such thinning. The 17 acres have not yet been thinned. The roots or boles of the firs and larches which are cut, die in the ground and produce no shoots. The whole of the land so planted hath been always rated to the relief of the poor.-After argument, per Bayley, J. The stat. 43 Eliz. does not throw the charge of maintaining the poor on the occupiers of every species of property, but only on the occupiers of property of certain particular descriptions there specified, and amongst others it speaks of the occupiers of saleable underwoods. The legislature does not use the word "Underwoods" per se, but" Saleable Underwoods:" and they have not in this or in any former statute affixed any definite meaning to the term "Underwood." If they had done so, we should feel ourselves bound to adopt that as the meaning of the word in construing the present act. It has been said that all wood comes within the description either of timber or underwood, and, therefore, that as firs and larches are not timber, they must be considered as underwood. It is not necessary to decide whether this be correct, because by the statute of Eliz. saleable underwoods only are subject to be rated to the relief of the poor. It may, however, be observed, that if all wood which is not timber, be underwood, it would follow, that horse-chesnuts, limes, plane-trees, and aspens would come within that description. Yet, surely, it would be a perversion of language to call such trees underwood. Generally speaking, that term is applied to a species of wood which grows expeditiously and sends up many shoots from one stool, the root remaining perfect from which the shoots are cut, and producing new shoots, and so yielding a succession of profits. It is probable that this is the description of coppice and underwood to which the statute of Eliz. applies. But it is not necessary to decide that, inasmuch as that statute also requires that it should be saleable underwood, and the word saleable in Rex v. Inh. of Mirfield has been held to denote such as is intended or destined for sale, in contradistinction to such as is to supply the land with estovers for fuel and other purposes of the estate. It does not, therefore, come within the description of saleable underwood, unless the prospect of deriving a profit by sale was the main object of the proprietor when the plantation was made. There are some species

of wood, such as hazel, which are valuable only as underwood, and which
must have been planted originally for the purpose of acquiring profit by
sale. But of all plantations, fir is perhaps the least valuable, being chiefly,
I believe, intended for protection rather than profit. It is found as a fact
in this case, that these firs and larches were planted principally for the
purpose of affording protection to the oak and ash. The latter were the
most valuable. The firs, too, were cut only for the purpose of thinning the
plantation. Some, indeed, were sold, but the greater part were used in the
erection of buildings on the estate. Here, the trees, when cut, were 30
feet high, which to be sure does not accord with one's notions of underwood.
Nor could they have been planted with a view to a profit by sale, for if so,
the cuttings would have taken place with reference to their size; but here,
the cuttings were made, in fact, merely for the purpose of thinning the
plantations, and with reference to the main object, the encouragement of
the growth of the more valuable trees. It is quite clear, therefore, that
profit was not the sole or even principal object for which the firs and
larches were originally planted; and if so, they are not saleable under-
woods within the meaning of the 43 Eliz. It seems to me, that it would
be most mischievous if property of this description was liable to be rated.
It is an object of national policy to encourage the growth of timber. The
grower of timber gives up a present profit with a view to future advantage,
and it is fit that he should be encouraged to do so. If this be rateable
property, then, according to the King v. the Inh. of Mirfield, 10 East, 219,
it must be rateable annually to the relief of the poor, though it should
not happen to be cut more than once in 20 years. The grower, therefore,
will be subject to an annual charge long before he can derive any profit.
That would operate as a great discouragement to the growth of timber;
and I cannot, therefore, think that the legislature meant to subject property
of this description to such an annual charge. The object of the statute was,
to subject to the rate all such property only as yielded a succession of profits.
I am, therefore, of opinion, that whether this be underwood or not, at all
events it is not saleable underwood, and therefore not rateable to the relief
of the poor.-Holroyd, J. I am also of opinion that the firs and larches
mentioned in this case are not saleable underwoods within the meaning of
those words, as used in the 43 Eliz. The word "underwood" must be
there taken to be used in its popular sense, unless it be shewn to have been
used differently by the legislature in that or other statutes. According to
its popular meaning it signifies coppice, as distinguished from haut bois.
Admitting, however, that these firs and larches were underwood, I am
clearly of opinion, that they are not saleable underwoods within the meaning
of the statute of Eliz. The general subject of rate in that statute is
property yielding renewable profits; for even coal mines when worked may
be said, in some sense, to yield a succession of profits. Underwoods cut at
stated periods do yield a succession of profits from time to time, though not
annually. This is clearly not wood of that description, for when it is once
cut, the root is destroyed, and there is no succession of profit. In order to
ascertain whether these be saleable underwoods, the object for which they
were planted and the mode of management ought to be taken into considera-
tion. It appears that, upon one occasion, even though eighteen acres were cut,
no profit whatever was thereby produced; and that is a strong circumstance to
shew, that the cuttings were not made with a view to sale, but to encourage
and preserve the oaks and ashes. I am, therefore, clearly of opinion, that
these firs and larches are not saleable underwoods within the meaning of the
statute of Eliz.-Best, J. In the reign of Eliz., underwood was probably
more generally used for fuel than at present; it yielded also a profit at
certain intervals, though not annually. The legislature, too, have not
merely used the term underwood, but have qualified it by the word saleable,
thereby meaning that species of underwood which is generally produced for
the purposes of sale, which is cut down at stated periods, produces new
shoots, and thereby yields, at certain intervals, profits coming as nearly as
possible to annual profits. It has been argued, that as these firs would be
titheable, they are, therefore, subject to be rated to the poor; but that by

no means follows; for by the 45 Edw. III. e. 3, gros bois of the age of 20 years, in respect of which the clergy had claimed tithe, under the name sylra cadua, is expressly exempted from tithe. Now, gros bois means timber; and, by the common law, includes oak, ash, and elm; and, by the custom of the country, in particular places, many other species of trees. Every species of wood which is not timber by the common law or by custom, is titheable. By the statute of Eliz. no species of wood, but saleable underwood, is liable to be rated to the relief of the poor. It has been said, that sylva cœdua and underwood are synonymous. In Ford v. Rackster, 4 M. & S. 137, however, Lord Ellenborough, delivering the judgment of the court, says, “ Sylva cædua and subbois, or underwood, are not, it should seem, from 45 Edw. III., synonymous; for subbois is stated to be comprehended in it, not to be it itself, or to be the same thing with it. Sylva cædua seems to comprehend, vi termini, besides underwood, all such wood as is occasionally cut, either in body, branch, or root, with the statutable exception only of gros bois, properly so called, when it is of that age at which it is, by the 45 Edw. III., exempt from being tithed, i. e., of 20 years or upwards." Underwood, therefore, is one species of sylva cadua, and, possibly, the firs and larches may be sylva cædua, though not underwood. It is, however, unnecessary to decide in this case, whether these firs be underwood or not. It is sufficient to say, that they are not saleable underwoods, and, therefore, that they are not rateable to the relief of the poor. Order of sessions confirmed.

9. Commons, Way-leaves, Rights of pasture.

Fifthly, What property is rate.

able.

8. Underwoods.

&c.

That commons, which afford a beneficial occupation, are rateable, seems 9. Commons, scarcely to have been disputed; the only difficulty has been to determine rights of pasture, upon whom the rate ought to be imposed. The following cases shew that the party to be rated must not only be the beneficial occupier, but he must have such a possession as will enable him to maintain an action of trespass, which a mere commoner cannot sustain. See, in particular, Rex v. Trent & Mersey Navigation, 6 D. & R. 47; 4 B. & C. 57. In most cases, therefore, where the common belongs to a coporate body, the corporation, and not the members individually, must be rated. A mere right of common is not rateable, nor is a right of way, if not accompanied with exclusive occupation, or any other easement, upon the same principle. See 9 B. & C. 827.

Rex v. Watson, 5 East, 480; 1 Bott, 237; 1 Nol. P. L. 172. In this case W. appealed against a rate, because E. H. and others were not rated for certain common lands upon which they had commonable rights, which rights they enjoyed and used. The justices confirmed the rate. The case stated that the mayor, &c., of Huntingdon were the owners in fee of these lands, which were used as a common of pasture, and stocked by such resident burgesses as thought proper to stock, under certain restrictions. That some of the resident burgesses stocked fully, that others did not, and some not at all. That in the latter case, an annual payment was made by those who did stock to those who did not; and that E. H. &c., were resident burgesses and did stock. In the course of the argument it was observed by Lawrence, J., that the word occupation, properly speaking, implies possession. By Lord Ellenborough, C. J. This is not an incorporeal hereditament. The corporation are the owners, in fee, of the land, and they dole it out annually, according to the custom, to certain of the burgesses, such of them as take it paying a certain sum to those who do not turn on any stock. Then when the number of those who stock is ascertained, what is there to distinguish them from other tenants in common, each of whom might maintain trespass for an injury done to his occupation in common? It has been decided that a common in gross is a tenement, and it should seem from thence that it is rateable. But I consider this not as an incorporeal hereditament, but as a corporeal tenement, of which the several burgesses who stock are tenants in common. And we cannot say that an enjoyment of land, which is of such value as that those who do not actually enjoy it, but who might if they so pleased, are entitled to a compensation from those who do, is not

Members of a corporate body,

which holds in

fee certain common lands, exercising their right such lands, are rateable.

of common on

Quere, Whether a Corateable.

common in gross