able. 5. Tithes. tenant of the land.-But by the Court: The order must be quashed. The Fifthly, What farmer of the tithes is primâ facie liable to the poor rates; and therefore property is rateunless he can throw that charge over upon another, the tax must be made upon him. The tenant of the land in this case can never be said to be the occupier of the tithes; for he is either a person who buys the tithes, or else he is to be taken as only excused from paying any; and nobody can say, but that though the parson thinks fit to excuse a parishioner, he will still remain in point of law the occupier of the tithes. This agreement being only by parol, cannot enure as an under-lease of a thing that lies only in grant. Suppose it was the case of underwoods which are sold standing, and the vendee grubs them up; can it be imagined that makes him the occupier? Or suppose the tenant sells the whole crop standing, will that make him less the occupier of the land? If it should, it would be impossible for the officers of the parish to know whom to charge. We must take this tenant of the land to be like any other buyer of the tithes, since he has no more title to them than any stranger whatsoever; and when the parson or his farmer receives a sum of money in lieu of tithe, that is in law a receipt of the tithe; with this only difference that it is not tithe in kind. In the case of a composition (as this is) or a modus, it was never thought but that the parson was chargeable as occupier of the tithe; therefore there being no colour to charge the tenant of the land, the order of sessions must be quashed. The above case does not expressly decide the question, whether an incum- Observations. bent, who grants a lease of his tithes, is still liable to be rated in respect of those tithes,; or whether the burden is transferred with the right to take them upon his lessee. The legislature in making tithes ex nomine rateable, might studiously have it in view to include tithes, whoever might be the owner, knowing that if they were in lay hands they could not be reached by the words "parson or vicar;" (see Rex v. Lacy, 5 B. & C. 709;) and as they are capable of being demised, and are in law a tenement, there seems no reason why the person to whom they are demised should not be regarded as the occupier for the purposes of the poor rate, in the same manner as the occupiers of lands are held liable to the rate in respect thereof, and not their landlords. In Rex v. Turner, 1 Bott, 126, where the vicar had let out his tithes to the several persons from whom they were payable, and the sessions found that he was not the occupier: the Court held that those persons ought to pay the rate on the tithes, though Parker, C. J., thought the vicar ought to have been considered the occupier. Admitting that a mere parol agreement between the incumbent or tithe owner, and the tithe payer, for a sum of money in lieu of tithe, passes no interest in the tithe itself, but only enures by way of retainer or discharge, the lessee, by deed, stands in a very different situation: he takes the interest of his lessor, becomes the beneficial occupier, in the sense in which the tenant of land, paying rent, is a beneficial occupier, and is on the same principle rateable. In the above case, (Rex v. Lambeth,) it is said, the farmer of the tithe is primâ facie liable, and it is also implied that this primâ facie liability can only be got rid of, by showing that he holds by parol only. The inference is, that if he holds by deed duly executed, he is the person to be rated in respect of the tithe, and not the incumbent or improprietor; and this conclusion is warranted by the principles upon which rateability is determined in all other cases. See 1 Eagle on Tithes, 19. The rector is, in some instances, exonerated from this burthen by an When rector is arrangement for the extinguishment of tithes, in an Inclosure Act. Thus liable. where, by such an act, it was provided that a certain corn rent, " free from all taxes and deductions whatsoever, except land tax," should be issuing out of the lands to be inclosed, and other lands in the parish, and be paid to the rector in lieu of all great and small tithes, &c., it was held, that this corn rent was not liable to be assessed to the relief of the poor. Mitchell, Clerk, v. Fordham, 6 B. & C. 274. So where a private enclosure act enacted, that there should be issuing and payable to the vicar, out of the lands, a yearly sum, "free and clear of all rates, taxes, and deductions whatsoever," it was likewise held that the Fifthly, What vicar was not rateable to the poor, in respect of the yearly sum paid to him. property is rate- Chatfield, Clerk v. Ruston, 3 B. & C. 863. able. 5. Tithes. If one be entitled to the tithe of all fish caught in the parish, he is rateable in respect thereof. Oblations and other offerings are rateable. 6. Manors, &c. Quere, Whether quit rents and manors! But the mere extinguishment of the tithe, and the substitution of an annual rent, or other sufficient consideration, will not discharge the rector's liability to the poor's rate, in respect thereof. Thus where, by an enclosure act, it was provided that the tithes of a certain parish should be abolished, and that, in lieu of them, the commissioners should award to the rector a certain annual rent, equal in value to a certain portion of the lands in the parish; to be paid by the owners of those lands, in such proportions as the commissioners should award; it was held that the rector was liable to be rated to the poor, in respect of this rent or annual payment, the act not having expressly exempted it from that burden. Rex v. Boldero, Clerk, 4 B. & C. 467; 6 D. § Ryl. 467. Rex v. T. Carlyon, Clerk, and another; 3 T. R. 385; 1 Bott, 186; 1 Nol. P. L. 145, 167, 211. Upon an appeal to the quarter sessions in Cornwall against a poor rate, the same was confirmed, subject to the opinion of the court on a case stating, that the appellants were the proprietors of the tithe-sheaf of the parish of Paul, and also of one-tenth of all fish caught, and brought on shore within the parish, for which they and their tenants were rated. The only question made was concerning the rateability of fish, which being a property yielding a certain annual profit, the sessions confirmed the rate.-Lord Kenyon, C. J. This question is decided by the express terms of 43 Eliz. c. 2, s. 1, which, after mentioning parsons and vicars in the number of the persons who are to contribute to the relief of the poor, enumerates (among other things) tithes impropriate and propriations of tithes, in respect of which the rate is to be made, and indeed the spirit of the law coincides with the words of this statute; for the legislature intended that when rates were made, every person should contribute according to the benefit which he received within the parish. Here the parties receive a certain benefit arising from the tithe of fish in this parish, and run no risk whatever. Then it is said, that only property which is visible should be rated; but I think it is carrying the rule of exemption too far; for oblations and other offerings which constitute the rectorial or vicarial dues are rateable.-Order of sessions confirmed. 6. Manors and their Profits. The overseer of Stoke Nayland in Suffolk made a rate, in which he charged the quit-rents of several manors within the parish; which rate the casual profits of justices refused to sign, because the quit-rents ought not to be taxed. Whereupon the overseer, on application to the King's Bench, obtained a rule to enforce the justices to sign it, which was strongly opposed; but the Court ordered the rate to be signed, and a warrant to distrain; so that if any person thought himself aggrieved he might bring an action upon the distress, and the matter in law be brought in question. Carth. 14. The rents and manor are not rateable to the poor. In another like case, Eyre, J., said, that a quit-rent is not taxable to the poor, for the tax ought to be laid on the occupier. But Holt, C. J., said, It was otherwise ruled in the case of one Williams of Suffolk. Comb. 264. Finally, in Rex v. Vandewall; 2 Burr, 991; 1 Bott, 131; 1 Nol. P. L. casual profits of a 88, 80, 204; this point came to be fully considered. S. V., esq. lord of the manor of A., was charged to the poor rate for the manor itself (exclusive of the demesne lands,) consisting of quit-rents, fines for renewal of copyholds, and other casual fruits and profits; he occupying nothing else in the parish. The justices confirmed the rate. The order being removed by certiorari, it was objected that the lord was not an inhabitant, nor were the rents and profits of the manor rateable under the statute.-By Lord Mansfield, C. J. The rents and casual profits of the manor are not rateable to the poor; which he said was so clear there was no need to enter into any reasonings about it; and so far as appeared to the Court such a rate had never been attempted before. Note.-In Rex v. Alberbury (post), Lord Kenyon, C. J., said that the principle the case of quit-rents went upon was, the objection of double rating the same property in the hands of the landlord as well as the tenant. 7. Mines. (a) The words of the 43 Eliz. c. 2, s. 1, are "coal mines." (a) In Rex v. Cunningham and others, 5 East, 478; 1 Bott, 235; 1 Nol. P. L. 147, a rate upon "iron and coal mines" was quashed, because iron mines are not rateable to the poor, and therefore ought not to have been rated jointly with coal mines. In the case of the Governor and Company for smelting down lead against Richardson and others, 3 Burr, 1341; 1 Bla. Rep. 389; 1 Bott, 137; 1 Nol. P. L. 148; a point was reserved before Mr. J. Bathurst at Carlisle assizes, 1761, which was thus: The defendant had distrained for the poor rate assessed on the occupiers of the lead mines lying in the parish of Alston; upon which they brought this action. The case stated, that the plaintiffs were lessees from Greenwich Hospital; that they worked the mine, but did not live in the parish of Alston; that the profits of the hospital that year amounted to 1900l., but those to the plaintiffs, the lessees, were quite precarious and uncertain, and that some years they gained nothing; that no lead mines had ever been assessed, except in an instance or two since making this distress.-By Lord Mansfield, C.J. The question is no more than this: Whether a lessee of lead mines, whereon no rent is reserved, other than a certain proportion of the ore to be raised, is rateable to the poor under the 43 Eliz.? Now nothing can be clearer, than that these mines are not within the letter of the statute; for the legislature could never intend by the word coal mines to comprehend other species of mines. If they had meant to include them, they would either have enumerated them, or used the general word mines. So that the expression, coal mines, expressly excludes mines of any other sort, as much as if they have been excepted. And there (a) Coal mines. The owner and occupier of coal mines is rateable to the poor, at the sum for which the mine would let, subject to outgoings. The lessee of coal mines is rateable for the amount of royalty or rent which he pays, and in neither case is any allowance to be made for money expended in rendering the mines productive. The King v. Attwood, 6 B. & C. 277. Coal mines alone being expressed in the statute, it has been holden that mines of other minerals are not within it, and cannot be rated. Lead-smelting Company v. Richardson, 3 Burr. 1341; 1 Bla. Rep. 389; 1 Bott, 137. Consequently the occupiers of a lead-mine (Idem), or ironmine (Rex v. Cunningham, 5 East, 478; 1 Bott, 235), are not rateable for them, nor for an engine, erected for the purpose of drawing the water from an iron-stone mine, if used for no other purpose. Rer v. Bilston, 5 B. & C. 851; 8 D. & R. 734, S. C.; nor are the landlords who let them to the occupier, liable to be rated for the money rent (Rex v. Bishop of Rochester, 12 East, 353; Rex v. Wellbank, 4 M. & S. 222), or rent in the smelted metal of the mines (Rex v. Earl of Pomfret, 5 M. & S. 139), which they receive for them. But the owners of mines are holden to be rateable for the portion of the ore raised, which they receive by agreement from those who work in the mines: in lead mines called lot VOL. IV. and cope (Rowls v. Gell, Cowp. 451; 1 Bott, 149), in tin mines, toll tin and farm tin (Rer v. St. Agnes, 3 T. R. 480; 1 Bott, 188; Rex v. St. Austell, 5 B.& A. 693; 1 D. & R. 351), or the like (see Rer v. Baptist Mill Company, 1 M. & S. 612; Bott, cont. 101); although they receive by compromise from the tenants, not the ore itself, but the estimated value of it in money (Rex v. St. Austell, supra); for here is a reservation of part of the thing demised, which operates, not as a render, but as an exception out of the demise. See Co. Lit. 47 a, 142 a. In the case of coal mines, the occupiers of them are liable to be rated for them as long as they continue to work them, whether they produce a profit or not (Rer v. Parrott, 5 T. R. 593; Bott, 209); but they are not rateable for them before they are worked and productive, (per Lord Ellenborough, C. J., in Rex v. Bishop of Rochester, 12 East, 353), nor after they cease to be worked. Rex v. Bedworth, 8 East, 387. Stone quarries or 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 clay pit (Rex v. Brown, 8 East, 528), and the like, are not considered in the nature of mines, but as land rendered additionally productive by a particular mode of working it; and the occupiers are rateable for it as such. F Fifthly, What property is rateable. 7. Mines. Lead mines not rateable. was a very good ground of exempting them; as from the nature of working them they are liable to more hazard and expence than coal mines are. And at that time, all copper, lead, and tin mines, in Derbyshire, Cornwall, and Mendip in Somersetshire (which are the only counties where works of that kind were then established), were governed by particular laws; whereby any stranger, conforming to the ceremonies thereby required, was at liberty to work those mines, without any reward to the owner of the soil. And as all these undertakings were attended with infinite hazard and expence, and often ruined the projectors, it is no improbable conjecture, that the legislature meant, for this reason, and in order to encourage them to proceed in undertakings of this public utility, to exempt them from any other burthen or imposition than those that the miners' law had imposed. Indeed, if a man has taken a lease of land, with privilege to dig for mines, he may be rated for the land: But that is not the present case. And where the legislature have not imposed a tax, this Court cannot do it by construction. For example, the fees of a physician or lawyer are not made liable by the act, and, therefore, cannot be rated.-Mr. J. Denison was of the same opinion.-By Mr. J. Wilmot. Another thing which convinces me that the legislature meant only to include coal mines is, that in stat. 31 Eliz. c. 7, concerning cottages, they have used the words coal mines and all other mineral works; which plainly shews, they never understood that coal mines would comprehend other sorts of mines. : Rowls v. Gell, Cowp. 451; 1 Bott, 149; 1 Nol. P. L. 90, 98, 148. The plaintiff Rowls was lessee under the crown of all lead mines with their appurtenances, within the soke and wapentake of Wirksworth, with the lot or cope within the said soke and wapentake, and was assessed for the same, as for an estate of 500l. a-year. The duty of lot payable to the plaintiff, as lessee of the crown, is the thirteenth dish or measure of lead ore, got, dressed, and made merchantable, at all the lead mines within the said soke and wapentake; and cope is sixpence for every load or nine dishes of lead ore raised at such mines. These duties are paid to and received by the plaintiff, without any risk or expence in working the mines, and in that year wherein they were assessed, amounted to the clear sum of 5001.: but they are uncertain, and vary every year. All persons have a right to dig for and get lead ore in the said soke and wapentake, conforming to the custom there and the miners are entitled to a certain quantity of land above and on each side of such mine.-Lord Mansfield, C. J., delivered the resolution of the Court. The poor rate is not a tax on the land, but a personal charge by reason of the annual profits which the lessee of the crown receives out of the land, and which is not charged at all before to the poor. In general, the farmer or occupier of land, and not the landlord, is liable to this tax. For it arises by reason of the land in the parish, and the landlord is never assessed for his rent, because that would be a double assessment, as his lessee had paid before. Lead mines are not within the statute of 43 Eliz. They are in themselves uncertain, and may prove unsuccessful to the adventurers. Taxes, therefore, upon the adventurers would be hard, and they are therefore excused. But he, who in case they do prove of value, receives a stipulated benefit from the profit or value of them, is not excusable on the same ground; and therefore is expressly charged to the land-tax, as that falls upon the landlord. He is alike liable to the poor rate for his visible real property in the parish; though, where the poor tax is a charge on the lessee, the landlord doth not pay in respect of his rent. Where the adventurer or lessee of the mine pays nothing, it is no double tax in any light; because the lord pays, not for that which the lessee or adventurer is excused from paying for, but the lord pays for his own. It is not a mere casual profit, but an annual revenue, if any; and very different from the casual profits of a manor, which are not annual; for there may be none for years. But if the mine produces profit to the miner, the lord's share is certain, annual, and an annual rent is paid for it constantly. certain proportions to the owner of the land. exempt these proportionable revenues? It adventurer; it doth not prejudice or benefit The miner is obliged to pay What reason then is there to makes no difference to the him. But as such obligatory payment is in respect to the land, the land-owner ought not to receive it Fifthly, What clearer or neater than any other part of his estate, when he is at no trouble, property is rateexpence, or possible risk. Therefore, we are all of opinion that the plaintiff is liable to be rated for this property. Note. In the above case of Rowls v. Gell, the crown lessee was, as it were, the landlord to the miners; which observation will perhaps tend to shew the difference between it and the next succeeding case. Rex v. Parrott and others, 5 T. R. 593; 1 Bott, 209; 1 Nol. P. L 183. The appellants are lessees of some coal mines at Exhall, in Warwickshire, and appealed to the sessions against a poor rate, which was there confirmed, subject to the opinion of this court on the following case: The appellants are in possession of the colliery for which they are rated under a lease from Messrs. Arnold and Farmer, by which they were bound to work the colliery, and to pay a sixth part of the money produced by the sale of the coals got there, without any deduction on account of the expence of working; it was proved that upon an average of the last three years, the appellants paid 30017. 15s. 74d. as a sixth part of the produce of the coals sold, and that they lost two farthings and half a farthing on every ton of coals sold. That the colliery always was and still is a losing adventure from the first of their taking it; and that they must have known it at the time they took it, and their inducement for taking it was, that when they had worked out the coal in this colliery, they would be able to get at coal of their own, which was adjoining; and that this was a cheaper way of getting at it than any other which they could have adopted. Lord Kenyon, C. J. It is said, that this burthen is to be laid where the benefit arises; but that rule cannot hold in a variety of instances that might be put. Suppose a landlord makes so hard a bargain with his tenant, that the latter derives no benefit from the farm, must not the tenant be rated to the poor? The landlord certainly is not liable. This case differs from that of Rowls v. Gell, (ante, p. 72), in this respect; that was the case of lead mines, which are not rateable under the statute of Eliz., and there the question was, Whether or not the lessee were rateable for certain annual profits which he received without any risk on his part? Of the decision in that case it is not necessary for me to say any thing at present: I will form my opinion upon that question when it arises again. But here the property is rateable under the express words of 43 Eliz. c. 2. It appears in the case that there has been a clear profit of 1000l. a-year since the lease was granted; and the question is, Whether the appellants, who are occupiers of these mines, which it is admitted are rateable property, are or are not liable to be rated in respect of this property? Their objection is, that they have made an unprofitable bargain with the lessors; but we cannot examine into that; it being sufficient to make them liable, that they are the occupiers of rateable property. Order of sessions confirmed. Rex v. Bedworth, 8 East, 387; 1 Nol. P. L. 184. J. W. was assessed for a colliery, as of the annual value of 2001., at 57. he appealed against the rate. The sessions struck out of the rate the assessment, and stated in a special case, that the colliery was demised for a term of years to W., at 2001. annual rent, whether coal should be gotten or not: and that the coals were totally exhausted, and the mines ceased to be worked. In the argument, the case of Rex v. Parrott (supra) was referred to; in which, though the lessees of a coal mine worked it at a loss to themselves, after paying their rent, they were still liable to be rated. Per Lord Ellenborough, C. J. In that case the subject-matter itself was profitable, and produced value to the owner, though the immediate occupiers derived no profit from it. But here the mine itself is exhausted, the subject-matter of profit is gone, although the rent, which was no doubt calculated upon the probable average produce of the whole term, be still payable. But, with respect to the parish, he is only rateable for the concurrent annual value during the period for which the rate is made; and when the thing which he occupies no longer affords any such concurrent value, the subject-matter of the rating is gone. Rex v. St. Agnes, 3 T. R. 480; 1 Bott, 188; 1 Nol. P. L. 91, 92. Two able. 7. Mines. coal mine rate The lessee of a able, although he derive no profit N.B There was a prospective advantage to be obsee, independently of present pro from the mine. tained by the les fits. Coal mine ceasing to be productive, is not rateable. Toll tin and farm dues are rateable. |