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

8. Underwoods. Rex v. Inh.of Ferrybridge, 2 D. $Ryl.634 ; 1 B. 4. C. 375. Upon an appeal Firs and larch of R. R. Milnes, Esq., against a rate made for the relief of the poor of the planted with oaks township of Ferrybridge, in the W. R. of Yorkshire, the sessions ordered the sheltering the latrate to be amended by striking out a portion of the rate assessed upon the ter, and cut from appellant, amounting to 161. 16s. 10d. in respect of his woods and plan- the oaks grew

as tations, subject to the opinion of the Court of K. B. on the following case. larger and requirThe appellant is the occupier of 650 acres of land in Ferrybridge. It ed more space, appeared in evidence, that in the years 1785 and 1786, 340 acres of the

cut, not growing said land were planted with oak and ash closely intermixed with Scotch again, and some firs and larches. At different periods, portions of the firs and larches were

of them yielding

a profit by sale, cut down for the purpose of thinning the plantations, and some of these are not saleable thinnings were sold under the name of fir and larch poles, but the greater underwoods withpart were used in the erection of buildings. Considerable thinnings of the the primary ob? firs and larches have been made within the last four years, and produced a ject of planting profit ; many of them were of the height of from 30 to 40 feet, and them being to contain from 10 to 12 cubic feet of wood, and were 30 years old. This and not to derive wood is cut without reference to size, in order to allow room for the ashes a profit from

them per se by 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 Semble. That profit by cutting the firs and larches from time to time, when the oaks and they are not un. ashes by reason of their growth require more space. Fifteen years ago, 18 cerwood at all. 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 underwcod. 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

8. Underwoods.

Fifthly, W hat of wood, such as hazel, which are valuable only as underwood, and which property is rate- must have been planted originally for the purpose of acquiring profit by able. 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
he 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 he


no means follows; for by the 45 Edw. III. c. 3, gros bois of the age of Fifthly, H'hat 20 years, in respect of which the clergy had claimed tithe, under the name property is rate. syłra cuedua, is expressly exempted froin tithe. Now, gros bois means tim- able, ber; 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.

8. Underwoods. 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 sylra cædua 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 cedua seems to comprehend, ri 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 npwards." Underwood, therefore, is one species of sylra 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. 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. 1'rent

Mersey Navigation, 6 D. F 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. f. C. 827.

Rex v. Watson, 5 East, 480; 1 Bott, 237; 1 Nol. P. L. 172. In this Members of a case W'. appealed against a rate, because E. H. and others were not rated corporate body, for certain common lands upon which they had commonable rights, which fec certain com. rights they enjoyed and used. The justices confirmed the rate. The case mon lands, exer. stated that the mayor, &c., of Huntingdon were the owners in fee of these cising their right lands, which were used as a common of pasture, and stocked by such such lands, are resident burgesses as thought proper to stock, under certain restrictions. rateable. 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 sụm 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 Quere, Whether a been decided that a common in gross is a tenement, and it should seem from common in gross 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

be rateable.

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Fifthly, What something which is rateable; and being rateable, it must be rated in the property is rate- hands of those who have the beneficial possession. able.

Rex v. the Trustees for the Burgesses, g-c., of Tewkesbury, 13 East, 155 ;

Bott, Cont. 86; 1 Nol. P. L. 173. Upon appeal against the poor's rates 9. Commons, &c. after mentioned, tried at the borough sessions of Tewkesbury, between the Aftermath let out trustees appointed by an act of the 48 Geo. III. for the burgesses or freemen

and principal householders of the borough, appellants; and the churchwardens and overseers of the parish of Tewkesbury, respondents: the sessions were of opinion, that the trustees themselves must be considered as the occupiers, and liable to such rates, and stated the following

case. The first of the rates appealed against, was made on the 13th of October, 1809, as follows


What assessed.

Trustees of the Aftermath of the £ 16 10 0
Severn Ham.

Severn Ham.
The other was in the same form. Before stat. 48 Geo. III., intituled, " An
act for inclosing lands in the borough and parishes of Tewkesbury in the
county of Gloucester, and for vesting the after or lattermath of a meadow
called Severn Ham, within the said borough and parish, in trustees for certain
purposes,” the burgesses or freemen of the borough of Tewkesbury resident
within the borough for the time being, and the occupiers for the time being
of certain houses situate within the borough, were entitled to a right of
common for a limited number of their own cattle only, in the Severn Ham,
for a certain period in every year, which right of common was, according
to the form and effect of the said act, afterwards' suspended by order of
the commissioners therein named, and the after or lattermath of the Serern
Ham was, by the act declared to be vested in certain trustees therein men-
tioned, and their successors, to be appointed by virtue thereof, by the
name of “the trustees for the burgesses or freemen and principal house-
holders of the borough of Tewkesbury in the county of Gloucester, appointed
by an act passed in the 48 Geo. III., for ever freed and discharged of and from
all right, &c., whatsoever, which any person or persons could or might have
in or to the same, or any part or parcel thereof, upon certain trusts therein
declared.” And by the act it was further enacted, “that the said trustees,
or any nine or more of them, at any of their meetings to be holden in pur-
suance of that act, might let and set annually the after or lattermath of the
said meadow called Severn Ham, so vested in them as aforesaid, or any part
or parts thereof, to any person or persons whomsoever, at the best and most
improved yearly rent or rents that could be reasonably had or obtained for
the same; and also might let and set the after or lattermath of the said mea-
dow called Severn Ham in pastures for horses, cattle, and sheep, to different
persons, in such manner as to rates and regulations as they should (subject
to the restrictions in that act contained) from time to time appoint; or they
might by writing under their hands and seals lease or demise for such term
of years and in such manner as by the said act is described ; and that the
rents and profits arising from the after or lattermath of the said meadow
called Severn Ham should, after the payment of all costs, charges, and
expences incident to and attending the execution of the several powers to
be by the said trustees exercised by virtue of that act, in the month of April
in every year be paid and divided by the said trustees unto and between
such burgesses or freemen of the borough of Tewkesbury aforesaid, and such
occupiers of houses within the said borough as would respectively have
been entitled to rights of common in, over, and upon the said meadow, if
that act had not passed, according to their respective rights and interests.”
On the 12th of August, 1809, the trustees not being able to let the said
aftermath together for a sum equal in their judgment to its value, let
it out in pastures at a certain sum per head for horses, cattle, and sheep, to
various persons, under the authority of the said act, for sums of money
amounting together to 2951., but subject to expences of between 30 and 401.
The several persons who took the aftermath in pastures, enjoyed the same

by tuning in their cattle from the 12th of August, 1809, to the 13th of

Fifthly, WhatFebruary, 1810, and the trustees did not occupy it, unless such letting and property is rateenjoyment in pursuance thereof amount in law to an occupation by them. able. No alteration has been made since the passing of the act in the proportion of the poor rates of the parish assessed on the occupiers of the said houses 9. Commons, &c. there, who were previously entitled to such right of common on the Serern Ham, nor has any deduction been made from the assessments in consequence of the alterations introduced by the act. The question was, Whether the trustees were liable to be rated in respect of the after or lattermath ? If they were, the rates and order of sessions were to be confirmed; if not, the rates were to be amended accordingly. After argument, in which Rex v. Watson, 5 East, 480, was cited as an authority to shew that the persons who took the lettings for their cattle, and not the trustees, were the proper parties to be rated; Lord Ellenborough, C. J., said, there the corporation could not take in the cattle of a stranger, but here the trustees may contract with any persons to take in their cattle by the year, or by the month, or week; and here not being able to let it altogether, they took in the cattle of different persons at so much a head. Who then can be said to be the occupiers, if they are not in this case? The letting is at so much a head, without any definitive time, or for any definitive portion of the aftermath, nor were the trustees bound to limit the number of cattle, though they might have done so.-Grose, J., agreed.-Le Blanc, J. The persons whose cattle were taken in had no definitive portion of the aftermath let to them.--Bayley, J. In the Huntingdon case the portions of those who had a right to stock were ascertained, but here there was nothing to limit the trustees from taking in others, Order of sessions confirmed.

Rer v. The Mayor, Aldermen, and Burgesses of Sudbury, 1 B. &. C. 389; Where a corpora2 D.G. R. 651, S. C.; 1 Nol. P.L. 173, 174. Upon an appeal by the mayor,

tion, consisting of

a mayor, alder. aldermen,and capital burgesses of the borough of Sudbury, against the poor rate men, and twentyof Ballingdon in Essex, on the ground that they were rated for property which four capital hur they did not occupy, the sessions confirmed the rate, subject to the opinion in fee of certain of the Court of K. B. on the following case :-Richard De Clare, about the pasture lands, Year 1250, granted certain pasture land, called Portman's Croft, in the and appointed a hamlet of Ballingdon, to “his burgesses and whole commonalty of Sud- keys of the gates, bury;" and Charles the Second, by his charter, under which the corporation clean the ditches, now exists, confirmed the said grant to the mayor, aldermen, and burgesses. Preserve the

im This land is inclosed, and the corporation, consisting of a mayor, six alder- pound cattle tres. men, and twenty-four capital burgesses, appoint and have always, within passing thereon ; the time of living memory, appointed, a person who is called the ranger of held annually. the commons, to keep the keys of the gates, clean the ditches, preserve the made such regu. fences, impound cattle trespassing, and do other acts of a similar descrip- ing their pas: tion. They have, during all that time, at a court called a Court of tures, and the Orders and Decrees, annually made such regulations concerning their number of cattle commons, as they thought proper, and given a public notice of them by the to turn on, and common crier; and for the year when the rate in question was imposed, the the sum to be paid order declared, that every burgess who had a right to turn on his cattle to in respect thereof, feed on the commons, should put two head of cattle, and no more, on Port- after deducting man's croft. It then proceeded to appoint the day when the cattle should the expences of be turned on, and to fix the price of each head of cattle, which price is the land, was disalways paid by the freemen exercising this right (who amount to more than tributed among 100) to the treasurer of the corportion. The mayor, aldermen, and capital the burgesses burgesses (being resident) enjoy the same right upon the same terms, and some on : Held, that of them exercised it during the year for which the rate was made. The cattle the corporation are branded by the ranger when turned on. The whole of the money thus paid rated to the poor, to the treasurer, after deducting the expences incident to the management as the beneficial of the land, is distributed among the poorer burgesses, who have, but do occupiers of these not, on account of their poverty, exercise, a right of depasturing cattle. pastures. The mayor, aldermen, and capital burgesses were rated, in their corporate capacity, as the occupiers of Portman's croft; and the questions for the opinion of this court were, whether there was any rateable occupation of Portman's croft; and if there were, whether the corporation or individuals who depastured their cattle upon it, were liable to be rated ? In support



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