and pay all such taxes and assessments as should become due and payable in respect thereof.

The commissioners, in 1809, made their award, which, after allotting East Plain to certain persons, went on to order,-" that the said allotment or parcel of ground shall, from time to time, and at all times hereafter, be subject to and charged and chargeable with the payment of such proportion of all rates, taxes, and assessments, parliamentary, parochial, or otherwise, out of the yearly value thereof, to the several townships or divisions within the said parish of Cartmel as are hereinafter mentioned; (that is to say,) to the township or division of Broughton, after the rate of two thirteenth parts or shares of the whole annual value thereof," &c. (the case then proceeded to state the proportions in which East Plain was directed by the award to contribute to the other townships respectively), "such several *rates or assessments to be made in proportion as the said allotment bears in value with the estates of other proprietors in the said several townships or divisions." Since the making of the abovementioned award, the poor-rates, in respect of East Plain, have been paid to the several townships within the parish of Cartmel, in the proportions named in the award. Thus, if there be a rate of 6d. in the pound on the annual value of lands in the township of Broughton, then East Plain pays to the overseer of the poor for the township of Broughton a rate of 6d. in the pound on two thirteenth parts of the annual value, and so, mutatis mutandis, of the other townships.

[*565

On these facts the appellants contended that, as East Plain was a part of a marsh which was derelict of the sea, and which marsh abutted on the townships of Lower Holker and Lower Allithwaite, East Plain was situate within one or other of those townships, and that the respondents ought to have ascertained within which of them it was situate, and to have removed accordingly; and that a removal to a parish which had no poor-rate and no overseers was bad. But the sessions held that, as East Plain, where the pauper gained a settlement, was within the appellant parish of Cartmel, it was for the appellants to shew, not merely that there was no poor-rate made, and no overseer ever appointed for the parish at large, but that East Plain was within some one or other of the seven townships; and they were of opinion that, as far as appeared, it might be within none of those townships, although it was within the parish of Cartmel. They therefore confirmed the order.

*Armstrong, in support of the order of sessions. The onus of shewing that the party is improperly removed lies, in this case, on the appellants, [*566 a primâ facie case having been established by the respondents, who have shewn that East Plain is within the parish of Cartmel. The overseers are created officers for the parish by stat. 43 Eliz. c. 2, s. 1; and stat. 13 & 14 C. 2, c. 12, s. 1, directs the removal to the parish. In Rex v. Kirkby Stephen, Burr. S. C. 664, there was an order of removal to the "parish of Kirkby Stephen," which contained ten townships maintaining their own poor, one named also Kirkby Stephen; and there it was held, that this township must be considered the parish meant by the order; and the removal, having in fact been made to the township, and not being appealed against, was held good; and Lord Mansfield said, that the township was as a parish for this purpose. So here the Court will apply the removal, which is nominally to the parish, to such township as East Plain belongs to. Although East Plain does not raise a poor-rate, eo nomine, yet it contributes rateably to each township; and therefore the pauper must be removeable, at any rate, to some one of the townships. [WILLIAMS, J. That would not sanction this order of removal.] Suppose East Plain were not within any township, it is still in the parish of Cartmel. Or suppose it necessarily to be in some one of the townships; on whom does the onus lie of avoid ing the present removal, by shewing to which township the removal ought to have been made? [WILLIAMS, J. You are to give evidence to sustain your order. There are no overseers on whom this order can be binding.] Then

overseers should be appointed. The place is not extra-parochial, whe*567] ther the settlement be in East Plain merely, or in the parish generally; Rex v. Crowland, 8 B. & C. 711. Primâ facie, the parish is liable. [LITTLEDALE, J. There is no doubt a great difficulty; but it is like the case of roads lying between parishes, and repaired by all the parishes adjacent to them, so that it is questionable in what parish they are; there, in the case of an indictment for non-repair, the prosecutor has to show in what parish they lie.]

Peel, contrà, after stating that the parties, with the view to precluding further litigation, were desirous of having the decision of the Court whether the pauper was not settled in one township, and which was stopped by the Court. Lord DENMAN, C. J. It is impossible to say how the matter may turn out on further inquiry. The mere fact of the inclosure is not sufficient to guide us. But, at all events, we must see that no party is called on to do that which he is not bound to do.

LITTLEDALE, and WILLIAMS, Js., concurred.

Order of sessions quashed.

*568]

*The KING against WILLIAM DUNSFORD.

Jan. 21.

Wednesday,

Whether any excavation in the earth be a mine or not, depends upon the mode in which it is worked, and not on the substance obtained from it. But the sessions are to apply that principle, and to find as a fact whether it be a mine or not. Therefore, where an occupier of a quarry of freestone was rated for it, and for the land adjacent used for depositing the rubbish from the quarry, and the sessions confirmed the rate, subject to a case, in which it was found that he occupied such " quarry," and the method of working it was particularly described, and the question left to this Court was, whether the land and excavation were legally exempt from poor-rate, this Court sent back the case, on the ground that it was for the sessions to find whether it was a mine or not.

On appeal by William Dunsford against a rate made for the relief of the poor of the parish of Monckton Farleigh, in Wiltshire, wherein the appellant was rated for "stone quarry and land," the sessions confirmed the rate, subject to the opinion of this Court upon the following case:

The appellant is an occupier of a quarry in the parish, from which quarry freestone is obtained. The quarry is not open like a pit, and is approached by a wagon-way extending from the highway, about 300 yards in length, and communicating with an inclined plane at the mouth of the quarry. The land on each side of this wagon way, in extent about two acres, is applied to the purpose of depositing the rubble and waste materials from the quarry. A shaft was formerly sunk in the quarry, but was found to be useless, and is now filled up; and the quarry is entered by a level. The freestone lies in layers about twenty-four feet thick; above the layers of freestone is a layer of rubble and ragstone, and beneath the layers of freestone is coarse hard stone. A layer of freestone, when once entered upon, is followed out: the ragstone above, which forms the ceiling, being supported by pillars of freestone left for the purpose. One of the excavations pursues the course of the layer ninety-seven yards under ground. The workmen work by candle light only. They are not common *569] labourers, but men skilled in the *business of excavating. It requires three years' practice to make what is called a good quarryman. Skill and judgment are necessary in excavating the freestone, particularly with respect to the pillars which are left to support the superincumbent soil. The tools used are pickaxes, wedges, and an axe for squaring. Rollers and cranes are used to raise the stone into wagons, and sledges to drive the wedges and rollers. Saws are also used to cut the stone into square masses. The first pro

cess is "picking," which consists in tracing out the layers of freestone: next, "jadding," which consists in removing the part of the layer which is loose. The freestone is then split from the rock, and then squared. Wagons are backed into the entrance of the quarry, down the level under ground, to the spot where the stone is brought, and raised by cranes and rollers. Steam-engines are not used, nor gunpowder for blasting; nor are there any air passages, or tunnels, or gate-heads. One passage is kept open until the stone is exhausted, and then another opened. The quarry is worth 300l. to 4001. a year. The greater part of the surface of the soil above the quarry is cultivated and occupied by another person who is rated for it. The question for this Court was, whether the land and excavation above mentioned were or were not legally exempt from poor-rate.

Sir W. W. Follett, Solicitor-General, and Channell, in support of the order of sessions. The sessions having confirmed the rate as to both the land and the excavation, every fact must be presumed, in favour of the rate, which could be found as a fact by them. As to the land, no question arises; the only question remaining, therefore, is that of amount. As to the *excavation, the [*570 rate will be resisted on the ground that it is a mine. It is, perhaps, too late, since the decisions in Rex v. Sedgley, 2 B. & Ad. 65, and Rex v. Brettell, 3 B. & Ad. 424, to contend for the rateability of any mines except coal mines. But Lord Tenterden's language in Rex v. Sedgley, 2 B. & Ad. 73, shews that the question, whether any given excavation be a mine or not, is one of fact; and, that being so, this Court, after the confirmation of the rate by the sessions, will not examine the evidence, in order to determine whether the finding was correct or not. At the utmost, the Court can only inquire whether it was impossible, upon the facts stated, that this should be a mine; and if there be no such impossibility, they will confirm the finding. Besides the inference which arises from the confirmation of the rate, the case in terms states that this was a quarry. Rex v. Sedgley, 2 B. & Ad. 65, does not assist in determining the fact any further than by establishing the principle, that the true criterion is, not what material is taken out, but the method of working. In Rex v. Brettell, 3 B. & Ad. 424, the Court certainly did determine, in opposition to the finding of the sessions, that the excavation was a mine: but their attention was not sufficiently confined to the circumstance that the question was one, not of law, but of fact. The attempt in the latter case was to obtain a consideration of the principle of estimating the fact, which had been laid down in Rex Sedgley, 2 B. & Ad. 65, and also, if possible, to shew that that principle was inapplicable. [WILLIAMS, J. This Court has always required that the ses sions should decide as to occupation. In a case(a) *where the sessions positively found that a party rated was not an occupier, and then [*571 stated the facts from which they drew their conclusion, Lord Kenyon, said, “If the sessions had confined themselves to the finding of the fact of occupation on the face of their order, the consequence stated would have followed but that is the very question which they have left for this Court.".... "They have stated all facts which were necessary to enable us to draw the conclusion at law."] It is true that the Court will decide whether facts found by the sessions justify the legal inference as to occupation: but the question whether a particular excava tion be a mine or not, is itself one of fact. This Court can have only imperfect materials for determining such a question of fact; they have not the proper witnesses before them, and are necessarily without the requisite local knowledge. But, even supposing the question of fact open, the decision must be in favour of the rate. (They then proceeded to argue that the work in question was not a mine; and they mentioned Rex v. Alberbury, 1 East, 534; Rex v. Woodland, 2 East, 164; Rowls v. Gells, 2 Cowp. 451; Rex v. Sedgley,

(a) Rex o. St. Mary the Less, Durham, 4 T. R. 479; and see Lord Kenyon's judgments in Rex v. Field, 5 T. R. 591, and Rex v. Whittlebury, 6 T. R. 466.

B. & Ad. 65; Rex v. Brettell, 3 B. & Ad. 424; Rex v. The Baptist Mill Company, 1 M. & S. 612. But on this point the Court gave no decision.) Sir John Campbell, and Bingham, contrà. The question whether this be or be not a mine, is one which this Court will decide upon the facts stated in the case, in conformity with the course adopted in Rex v. Alberbury, 1 East, 534, Rex v. Woodland, 2 East, 164, Rex v. Brown, 8 East, 528, Rex v. Sedgley, 2 *B. & Ad. 65, and Rex v. Brettell, 3 B. & Ad. 424. It is true that in *572] Rex v. Sedgley, 2 B. & Ad. 65, the decision of this Court coincided with that of the sessions; but the finding of the sessions was not insisted upon in the argument, nor made a ground of the decision. Afterwards, in Rex v. Brettell, 3 B. & Ad. 424, this Court reversed the decision of the sessions, though the counsel in support of the order attempted there, as here, to exclude the discussion on the merits, by treating the question as one of fact conclusively decided by the sessions. Besides, the sessions, here, do not find this to be a mere quarry; nor, if they did so, would that finding be conclusive, for it may still be a mine. But their finding merely amounts to this; they state the facts and send the statement here, in order that this Court may decide whether those facts bring the case within the interpretation which has been given to the legislative exemption of mines. It is, therefore, a question of law, not of fact; or, at least, a mixed question, like occupation. It is very important that this Court should decide upon the present question, in order to secure uniformity in the decisions upon these points, and to prevent minute distinctions being taken. Assuming that the question is for this Court, the excavation here was clearly a mine. (The argument on this point is omitted.)

Lord DENMAN, C. J. The case of Rex v. Sedgley, 2 B. & Ad. 65, cannot be questioned. It was decided after deliberation, and subsequently recognised in Rex v. Brettell, 3 B. & Ad. 424. We are therefore bound by the decision. But the question here is, whether the Court of Quarter Sessions, who were to take that decision as their guide, have done so, as far as they should. Lord *573] Tenterden, in his judgment *in Rex v. Sedgley, 2 B. & Ad. 73, says, of the question whether or not the work be a mine, that it, "perhaps, is rather a question of fact than of law." The legal principle is, that the method of working is to be looked to; but it is for the sessions to apply the legal principle to the finding of the fact. Had they found that this was or was not a mine, the finding would have bound us. They have indeed found that the work is a quarry, but they have not negatived its being a mine. They have confirmed the rate: but still they have put the question to this Court, and have avoided saying whether the work be or be not a mine. This Court must refuse to decide that question: we must lay down the law, and call upon the sessions to find the fact. The case must, therefore, be reheard, and the sessions must apply to it the information which they possess, and their knowledge of the English language. In this case, they have sent us only evidence as to a fact. LITTLEDALE, J. The cases of Rex v. Sedgley, 2 B. & Ad. 65, and Rex v. Brettell, 3 B. & Ad. 424, have decided that the substance obtained is unimportant and that the important question is the mode of getting it. Then it becomes a question of fact whether this be a mine or not. That the sessions have not decided, but have sent it for the decision of this Court. If, in fact, this be a mine, it is exempt from rate. The sessions are to determine whether the method in which it is worked shews it to be a mine. There is no difficulty here, except that arising from the extension of the quarry into ninety yards of subterraneous works. *574] Suppose the extension had been for twenty, or ten yards only, what would have been the character of the work? How can we say that such a question is matter of law? It must be decided by the sessions.

WILLIAMS, J. I am of the same opinion. The case of Rex v. Sedgley, 2 B. & Ad. 65, was carefully considered, both at the time, and afterwards in Rex v. Brettell, 3 B. & Ad. 424, these cases, are, therefore, binding authorities. It is immaterial now to say what doubts I might have felt in such cases as Rex v.

Woodland, 2 East, 164, and others. It is not suggested that there can be involved in the present question any principle of law but one, namely, that the criterion is, not what is earned, but how it is earned. If so, the sessions in each case are to consider whether, applying that rule, they are satisfied that the excavation is a mine, or not. If this Court were to enter into that question, the discussions would be interminable. I hope that the sessions, having now the rule, will exercise their judgment, and apply that rule to the facts. Case sent back to the sessions(a)

*In the Matter of CHARLES WALMSLEY, Gent., One, &c. Thurs

day, January 22.

[*575

A trustee delivered to his attorney, acting in that character, papers relating to the trust affairs. The attorney himself had some beneficial interest in the trust property. A bill in equity was filed against the trustee, and against the attorney and other parties interested, for a discovery of the property; whereupon the trustee demanded the papers of the attorney for the purpose of preparing his account. The plaintiffs gave the attorney notice to retain them; which he did. The trustee obtained a rule nisi in this Court for a delivery of the papers to him. Pending the rule, an order was made in the chancery suit, at the instance of the plaintiffs, that the attorney, within seven days after service of the order, should deposit the papers with his clerk in court. On cause being shewn soon afterwards against the rule in this Court, it did not appear whether or not the attorney had yet complied with the order in Chancery, the time for filing affidavits in answer to this rule having expired before the time for depositing the papers: but, inasmuch as the attorney was compellable by attachment to deposit them, this Court discharged the rule.

A RULE was obtained in last Michaelmas term, (November 7th) calling upon Charles Walmsley, an attorney of this Court, residing in the county of Chester, to shew cause why he should not deliver to Moses Hadfield or his attorney, upon oath, all title-deeds, books, accounts, papers, and writings in his custody or power, belonging to the late John Braddock, Esq., deceased, or to his trust estate, or affairs. By the affidavits on which the rule was granted, the following facts appeared: Mr. Braddock devised all his real and personal estate to Moses and George Hadfield, their heirs, executors, &c., upon trust for the benefit of his daughters for their respective lives, and afterwards for their children, and appointed the devisees his executors. He died in 1816, leaving three daughters; one of whom married the above-mentioned Charles Walmsley. George Hadfield died in 1831. He was in all material respects the acting trustee during his life, and employed Mr. Walmsley as attorney in the trust affairs and management of the estate. After G. Hadfield's death, Moses Hadfield took the execution of the trusts, and continued to employ Walmsley as attorney therein; and he, in the course and by reason of such employment, became possessed of books of account, deeds, and *other documents, formerly the testator's. In Easter term, 1834, Samuel Walmsley and Margaret, his wife, one of the daughters of the said testator John Braddock, filed a bill in Chancery against Moses Hadfield, and against Samuel Hadfield, who was executor (with the said Moses) of George Hadfield's will, praying a discovery of all the real and personal estate and effects which were of the said John Braddock at the time of his death, and of the subsequent receipt and application of the rents, profits, &c.; and that an account might be taken, &c. Charles Walmsley and his wife were made defendants in the suit. In March, 1834, Moses and Samuel Hadfield demanded of C. Walmsley all the documents in his hands relating to Mr. Braddock's affairs, stating that they did so in consequence of the proceeding in Chancery. Some of the papers were accordingly

(a) On the re-hearing, the sessions found that the excavation was a mine.

[*576