on the premises. On Monday, the 12th, the first day of term, the tenant admitted that he had received the declaration, but did not say when. PER CURIAM.(a) You must serve another declaration.

Rule refused.

The KING against FORD and Others. Thursday, January 22.

To justify a distress for taxes under stat. 43 G. 3, c. 99, s. 33, it is not necessary that there should have been a personal demand by the collector, or personal refusal by the party distrained upon. Nor is it essential that the demand to which the refusal applies should have specified the precise amount claimed, if the debtor understood what the amount was, and did not object to it.

THE defendants were indicted for assaulting John Scattergood, then being in lawful possession of goods seized for 67. 15s. 6d., arrears of assessed taxes, with intent to put him out of possession of the said goods; also upon a count for a common assault. At the trial before Lord Denman, C. J., at the sittings in Middlesex after last Michaelmas term, it appeared that the goods, which were Ford's, had been distrained on his premises for taxes due from him, and that the prosecutor, a broker's man, had been left in possession. To shew that the taxes had been regularly demanded before putting in the distress, Pollard, the appraiser *employed on that occasion, gave evidence to the following

effect:-On the 23d of January, Pollard went with Denham, the collector [*589 (who was since dead), to Ford's house, where they saw a female, Ford not being at home. Denham demanded the taxes of her, and said that he had called often before, and would distrain on the following day if they were not paid; to which the woman answered, that Ford had been told before of Denham's coming for taxes, but said he could not pay. Pollard then left a message with the woman, requesting Ford to call upon him, which Ford afterwards did, and stated that he was very poor and could not pay. On the 24th of January, Denham and Pollard went again to Ford's, and saw there the same woman, who said that they could not pay the taxes. Denham then distrained. It was objected, on behalf of the defendants, that this was not sufficient evidence of a demand and refusal within the terms of stat. 43 G. 3, c. 99, s. 33, which enacts that if any person "shall refuse to pay the several sum and sums charged upon him" by any act or acts granting the duties therein mentioned, "upon demand made by the collector" of the division or place, &c., the collector may distrain for the amount. The Lord Chief Justice held that it was not necessary to shew a refusal given by the householder himself, or to the collector personally; but that it was sufficient if the circumstances shewed that the householder, from poverty or otherwise, would not pay, and if the party meeting with the refusal was one authorised by the collector to act for him; and he left it to the jury to say whether they were satisfied in this case that there had been a refusal. The jury were of that opinion, and found a verdict of guilty on the second count, *an acquital being directed on the first by reason of a variance between [$590 the indictment and evidence, as to the amount of arrears. In the present term (January 19th), Sir John Campbell, Attorney-General, moved for judg ment on the defendants, and cross motions were made,(b) on behalf of different defendants, by

Humfrey, and Dunbar, for a new trial, on the ground of misdirection. There was no evidence to go to the jury, of demand or refusal. As to the demand, there had neither been a personal application to the defendant, nor a communication to him in writing: and it was not proved that the woman whom Denham and Pollard saw, was a person who usually acted on Ford's behalf. In Cullen

(a) Littledale and Williams, Js.

(b) Before Lord Denman, C. J., Littledale, and Williams, Js.

v. Morris, 2 Stark. N. P. C. 577, 586, where it became a question whether the plaintiff at a certain time was entitled to vote at an election as a householder paying scot and lot, Abbott, C. J., said: "It is necessary that I should state my opinion in point of law as to the right of voting, and that opinion is, that the plaintiff had a right to vote. He had paid the poor's-rates for several years; there had been no personal demand of the rates which were due, and no written paper, containing a demand of the rates, had been left at his house, although an application had been made at the house." Here the case is stronger, because the statute authorises a distress only where there has been a demand and refusal. There was no evidence that the communication made by Denham on the 23d of January ever came to Ford's knowledge. And as to a refusal, there was nothing *591] to show that the answer given by *the woman on the 24th was Ford's answer; nor did it even purport to be so. And it does not appear that the demand or refusal had reference to any specific sum.

Sir John Campbell, Attorney-General, with whom was W. Clarkson, shewed cause in the first instance. It lay on the defendants to justify their assault; the objection raised by them does not do so. The statute says nothing of a personal demand if that were necessary, the law might always be evaded by the householder keeping out of the way. There is no reason for insisting on the same strictness, under this statute, as is necessary to place a party in contempt: but the demand made here would have been sufficient, in the case of an award, to ground an attachment. The collector left his message with a person who appeared to act as servant, and who afterwards said that Ford could not pay. It was a sufficient refusal, after a proper demand, that the collector could not get the taxes. And Ford did expressly refuse to a person employed by the collector. The passage cited from Cullen v. Morris, 2 Stark. N. P. C. 586, does not apply to this case: here a demand had been made upon Ford on the 23d, by Pollard, who was employed by Denham.

Humfrey, and Dunbar, contrà. If the householder kept out of the way, a written demand might be left at the house. A demand, in the case of an award, would not be sufficient, if made by a third person, unless he had a power *5921 of attorney. [Lord DENMAN, C. J. I was of opinion, as to the first count, that, as the indictment specified a particular amount of arrears, and a different one was proved, that count was not maintainable but upon the second, which mentioned no sum, I thought there might be a verdict against the defendants, if the prosecutor was lawfully in possession for any amount. That raises the question as to personal demand and refusal, and whether it ought to be shewn that the specific sum was demanded.] Cur. adv. vult. Lord DENMAN, C. J. on this day delivered the judgment of the Court as follows:-We think that in this case no rule should be granted. By the statute, a distress is to be taken only if there shall have been a demand and refusal of the taxes, but nothing is said to apply that provision to particular individuals or particular sums; it is sufficient if there has been a demand of the taxes which the party has understood, and he has not objected to the amount, but has refused to pay. The doctrine laid down in Cullen v. Morris, 3 Stark. N. P. C. 586, has the authority of a very learned Judge, and has been acted upon by parliamentary committees in deciding upon the qualification of voters, and with reference to that subject it may be correct; but we think it is not applicable to the present case. Rule for a new trial refused.

*593]

*The KING against The Inhabitants of FOLESHILL.

January 24.

Saturday,

A stratum of coal lay in parishes A. and B,, and was worked in both, but all coal was brought to the surface by a shaft in A.: Held, that in a rate upon the proprietor for a

coal-mine, engines, and machinery in A., he could not be assessed in respect of the coa gotten from the part of the stratum in B.

ON appeal against a poor rate for the parish of Foleshill in the county of the city of Coventry, by which George Wheilden was assessed in the sum of 5251. for a coal-mine, engines, and machinery in his occupation in that parish, the sessions reduced his rate to 3207., subject to the opinion of this Court on the following case

Mr. Wheilden is the owner and occupier of a coal-mine, situate partly in the parish of Foleshill, and partly in the adjoining parish of Exhall. At the time when the rate was made, he was getting coal partly from that part of the mine the surface of which is in Foleshill, and partly from that of which the surface is in Exhall. The pits, engines, and all the fixed machinery for working the whole of the mine, and by which the same is made available, are in Foleshill alone, in which parish all the coal which is taken from the whole mine is brought to the surface of the earth. Wheilden is assessed in Exall at 210. for that part of the mine of which the surface is in Exhall. The sessions found that, if the parish officers of Foleshill were entitled to rate Wheilden in that parish for the whole profits of his mine, 5257. was a proper sum; but that, if they were only entitled to rate him for the profit derived from the steamengines and other machinery, and for the coal gotten from that part of the mine the surface of which is in Foleshill, the assessment ought to be reduced to 3201. *The question for this Court was, on which of the two principles the rate was to be made.

[*594 Hill, and Waddington, in support of the order of sessions. The proprietor must be rated for his coals in the parish where they are naturally found. This is the plain meaning of the statute 43 Eliz. c. 2, s. 1, which directs the overseers of every occupier of coal-mines in the said parish. The mine, in this case, is partly worked in Exhall: how, can it be said that the proprietor is not the occupier of a mine in Exhall? and why is the rate to be laid, not where the coal is worked, but where it is brought to the pit's mouth? If this were so, it would be in the choice of a person occupying mines in several parishes to deter mine in which parish he should be rated for the whole of that property. The land used in a parish ought to contribute to its burdens: and there is more reason for rating mines in the parish where they lie, than other property, because the working exhausts and takes away the value of the land. A principle something like that contended for on the other side was adopted when canals were rated at the termini; but the rule now prevailing is a different and more reasonable one. This case bears a strong analogy to Rex v. The Corporation of Bath, 14 East, 609, where the corporation had reservoirs in a parish without the city, for collecting water from certain springs, which water they distributed by aqueducts and underground pipes through that parish, and into others within the city. It was contended, there, that the corporation were rateable in that parish where the reservoirs lay, for the whole profits of the water; but the Court held otherwise, deciding, however, that the corporation were [*595 rateable there for the reservoirs within that parish. Lord Ellenborough says, in his judgment, "It should seem to follow as a consequence from what has been said already, that if the corporation of Bath be occupiers of any visible property, producing profit in any other parish, and falling by reasonable construction within the same description of property as the reservoirs already mentioned, they should be liable in like manner to be rated for it pro tanto, in such other parish." That applies to the present case. The principle recogni sed in Rex v. The Corporation of Bath, 14 East, 609, has been acted upon in Rex v. The Brighton Gas Light Company, 5 B. & C. 466, and many similar cases. [WILLIAMS, J. The rating of tubes and pipes, as a subject of profitable occupation in a parish, though they conveyed the water to a different parish, is as strong a case as can well be.]

local

Sir F. Pollock, Attorney-General, Amos, and H. R. Reynolds, contrà. The cases of canals and water-pipes are not applicable here. In those there was an actual occupation of land which the parish officers were entitled to consider as worth a rent, whether occupied more or less profitably in the particular parish. But here, by the reduction of the rate in Foleshill, it is assumed that something may be rated as a coal-mine in Exhall, which is not, in fact, a coal-mine there. The rate, as it now stands, is for the coal obtained in Foleshill only, and for the profit of the steam-engines and *other machinery there. But *596] the principle adopted is a mistaken one as to all the matters rated. The word "mine" is used in two senses: popularly, it signifies the place where the strata are, though unworked; legally, that only is a mine which is in a course of being worked. If the stratum is in one parish, and the access to it in another, the coal-mine is where the access is obtained in the other parish it is merely a coal-field. When the coal is brought to light, and becomes available to the uses of man, then, and no sooner, is it a source of wealth capable of being rated. It does not become so merely by being separated from the earth, or by being placed on the trams under ground, to be brought to the shaft. In this respect it is like a mineral spring, which is rated where it first rises from the earth, and no inquiry made as to the channels it may have flowed through. Suppose a coal-mine in a parish adjoining the sea extends into strata lying under the sea; can it be said that the produce of those strata should be exempt from rate? It is the approach that gives the mine its character and its value; the coal would be useless but for the shaft: and, further, where coal is brought to the surface, the shaft and works in that place acquire an increased value, in proportion to that of the coal brought up; as, in Rex v. Miller, Cowp. 619, it was held, that the profits of the mineral spring were to be considered as part of the produce of the land, which, therefore, was subject to a higher rate, as land, in proportion to those profits. The value of the works in Foleshill, therefore, is to be reckoned by that of the coal brought up there, whether gotten *597] in *Foleshill or in Exhall; the shaft must be rated in respect of the convenience it affords for raising all the coal. In 1 Nolan's Poor Laws, p. 151, 4th ed., it is said, that the mine may be considered as the capital, and the coals at the pit's mouth as its return. It might have happened, in this case, that the appellant had been owner of the mine in Foleshill only, and had had a mere license to work the coal in Exhall (and Doe dem. Hanley v. Wood, 2 B. & Ald. 724, shews that such a liberty may be granted without a demise); then the appellant would not have been an occupier in Exhall, and, if so, he would clearly not have been rateable any where for the coal gotten in that parish, unless he could be rated for the shaft in Foleshill in respect of the convenience it afforded him for bringing up that coal. By the argument on the other side, a great difficulty would be thrown on parish officers; they may know the parishes through which a canal is dug, or pipes are laid, but they cannot trace a coal mine through different parishes, so as to say that any ascertained portion of coal is obtained in one parish or in another; and, even supposing this practicable now, the possibility of it could not have been contemplated when the statute of Elizabeth was passed..

Lord DENMAN, C. J. I am clearly of opinion that this was a coal-mine in Exhall, where a part of the coal lay. It is too great a refinement to say that there was no mine there because all the works for raising the coal were not within that parish. According to that argument, if a coal-mine extended into twenty parishes, and all the coal was brought to the surface in one, the proThe difficulty of ascertaining prietor must be rated in that only.

*598] what is raised in each parish may be great, but here the sessions have

ascertained it.

LITTLEDALE, J. It is contended, that there can be no coal-mine in a parish unless the apparatus for raising the coal be there. But that the law does not

consider this necessary to constitute a mine, is clear from the language of Lord Coke:-"If a man hath mines hid within his land, and leases his land, and all mines therein, there the lessee may dig for them," &c. (a) So that, in legal understanding, there is a coal-mine where there are coals capable of being gotten; and the moment the coal is severed, it is gotten. There may be no machinery at the place where it is severed; but if men are sent in for that purpose, it is the same thing. The case of a spring is very different: it cannot be ascertained where that originates, or through what parishes it may pass; but a vein of coal, when particular circumstances are known respecting it, may now be traced without difficulty, though this may not have been so in the reign of Elizabeth. The case of the corporation of Bath, 14 East, 609, was very much like this: but the present case is stronger than those in which companies have been held rateable for pipes laid in the ground to convey an artificial rill of water here the subject of the rate is coal naturally existing at the place where the rate is imposed. As to the pits and shafts, they are rated in the one parish in which they are available for raising coal; if another shaft became necessary for raising *the coal in the other parish, it would be the subject of a rate there.

[*599

WILLIAMS, J. Without violating the ordinary sense of words, the appellant may be considered as occupier of a coal-mine in both the parishes. It has been said, that no value has been ascribed to the shaft and machinery, in respect of the benefit derived, through them, from the coal situate in Exhall; but they are rated, and, if the principle of the rate is not wrong, I do not see how we can say that they are rated erroneously.

Örder of sessions confirmed.

The KING against The Inhabitants of ST. NICHOLAS, COLCHESTER. Saturday, January 24.

If a tenement has been hired, and the occupation of it has commenced, less than a year before the passing of st. 1 W. 4, c. 18, (30th of March, 1831,) the occupation, to give a settlement, must be such as will satisfy the requisites of that act. If a person, hiring a tenement, underlet any part of it, he has not the actual occupation of the tenement within the terms of stat. 1 W. 4, c. 18, sect. 1, if there be any exclusive occupation given by such underletting. And the smallness of the part underlet, and of the rent paid for it, and the shortness of the term for which it is underlet, make no difference.

On appeal against an order of two justices, removing Sanders Sparrow from the parish of St. James to the parish of St. Nicholas, both in the borough of Colchester, the sessions confirmed the order, subject to the opinion of this Court upon the following case:

By agreement in writing, dated March, 1831, the pauper hired a freehold messuage, comprising two tenements, in St. Nicholas, for the term of two years, at the rate of 607., payable half-yearly. On the 25th of March, the keys were delivered to the pauper. On the 7th of November, a distress was put in for the half year's *rent due at Michaelmas, 1831, and the goods were sold under the distress by the bailiff employed by the landlady, who paid her [*600 the half year's rent out of the produce, and paid over the suplus (deducting costs) to the pauper. At Lady-day, 1832, the pauper gave up possession in pursuance of an agreement made with one Hutchinson, under which the latter took exclusively upon himself the liability to pay the arrear of rent due from the pauper. During the year commencing at Lady-day 1831, and expiring at Lady-day, 1832, three rooms in the said messuage were underlet by the pauper

(a) Saunder's case, 5 Rep. 12 a; and see, to the same effect, Co. Litt., 54 b.